DISSENTING OPINION
The majority opinion rules the question of obscenity on the basis of whether there was evidence from which a jury could say the book was obscene, although declaring it is our duty, as it is, to make an independent judgment on the mixed question of law and fact on the constitutional issue. Under the recent decisions of the United States Supreme Court it seems quite clear to me the book cannot constitutionally be held obscene under the facts of this case. These decisions are binding on us. I therefore respectfully dissent and adopt as my dissenting opinion most of the opinion prepared by Judge Higgins, Commissioner in Division One, which reads as follows:
On March 31, 1965, Detectives Edwin Kuster and Ezell Nance of the St. Louis Police Department went to the W. A. Burgdorf Book Seller Shop at 4744 McPherson, St. Louis, Missouri. According to Detective Kuster, “Detective Nance waited outside, and I went in and conducted myself as a customer. * * * I asked Mr. Smith if he had the book CANDY to sell, and he said he did. And I told him I wanted to buy a copy, and * * * He went back to this service counter at the rear of the store, and he produced a copy of the book CANDY. * * * He gave me the book, and I gave him the seventy-five cents, and I asked him if he were familiar with the book, and he said that he had read it and found it very amusing. * * * I went on and got my partner, Detective Nance, and then we both went back in the store and placed Mr. Smith under arrest. * * * We asked him if he had any more copies of the book.” Mr. Smith pointed them out and eight additional copies were confiscated. The purchased book, a paperback copy of CANDY, Bran*71don 75‡, bearing the name of Maxwell Kenton (apparently a nom de plume of the authors, Terry Southern and Mason Hof-fenberg), became Exhibit 1; the eight identical confiscated books became Exhibit 2.
In addition to Exhibit A, defendant’s case consisted of his own testimony, other exhibits, and the testimony of a number of expert witnesses, none of whose qualifications were questioned. Their testimony offers sufficient detail on literary style, plot, purpose, content, and value of CANDY to render unnecessary further review of the book; however, a brief synopsis available from the introductory portions of [the paperback] edition is an aid to understanding the evidence and the book itself.
The cover and synopsis page of the paperback edition say of the book:
“THE MOST WHISPERED ABOUT BOOK OF THE CENTURY!
“A modern day Alice in Wonderland, more scandalous than Lolita, is CANDY.
“This is the delightfully shocking tale of. an innocent, pure, young girl living and loving in today’s crazy, mixed-up world, and trying to make sense out of the nonsense that she finds.
“A biting, satirical comment on the frustrations of Society, CANDY is the book the whole world is talking about * * * the book about which the critics have been raving — and the censors roaring!
“IF YOU WANT TO BE SHOCKED, TICKLED, ENTERTAINED, HERE IS THE PERFECT ANSWER FOR YOU * * * IN THE FORM OF THE WITTIEST, BAWDIEST BOOK OF THIS ERA!
“Was she VERY good — or very, very BAD ?”
The paperback has this introduction:
“The publication of Candy in this country became inevitable following the favorable court rulings for Lady Chatterley’s Lover by Lawrence, Tropic of Cancer by Miller, Fanny Hill by Cleland and a host of other works dealing frankly with sex.
“Candy is an hilariously funny spoof on sex and is tepid when compared with (other) probing and disturbing works
“Until recently, sex has been treated with such deadly seriousness that this spoof on sex is refreshing in the extreme. Candy is good clean fun.”
The tone of the paperback edition of Candy’s adventures is set by an epigram in French from the works of Voltaire which may be translated: “Candide, chased from earthly paradise, walked a long time without knowing where — Candide, quite stupified, couldn’t really see anymore how he was a hero.”
Rollin Eugene Smith admitted the sale of a paperback edition of CANDY to Detective Kuster and that he had previously read the hardback Putnam edition of CANDY. Exhibits B-l, C-l, E-l, E-2, and F-l in evidence as items from the book page of the Sunday editions of the St. Louis Post-Dispatch for August 9, 1964, August 16, 1964, September 13, 1964, September 20,1964, and October 18, 1964, showed CANDY on the list of national best sellers for 8, 8, 13, 14, and 18 weeks; B-l and C-l also showed CANDY in the $5.00 Putnam edition as “the novel that’s fast becoming as famous as LOLITA”; F-l proclaimed that “112,000 Americans love CANDY, National Best Seller, The Comic Masterpiece by Terry Southern and Mason Hoffenberg”; and D-l and E-2 described CANDY as “#1 best seller in TIME magazine, A novel by Terry Southern and Mason Hoffenberg, 120,000 copies in print.” In connection with his testimony, it was stipulated that CANDY appeared on the national best-seller list in the Sunday Post-Dispatch for thirty-four weeks between June 21, 1964, and January 31, 1965. Exhibits G through BB were best-seller lists from TIME magazine, showing CANDY’s position June 5, *721964 (10) ; June 19 (6) ; June 26 (S) ; July 3 (4) ; July 17 (IS) ; August 7 (3) ; August 14 (5) ; August 21 (4) ; September 4 (2) ; September 11 (1); September 18 (1); October 9 (1); October 23 (1); October 30 (1) ; November 6 (2) ; November 13 (3) ; November 20 (2) ; November 27 (3); December 4 (3); December 11 (3); December 25 (4); February 12, 1965 (8). Mr. Smith was familiar with these matters prior to his arrest for the sale of CANDY. He had no reason to doubt their accuracy and, after having read CANDY, he formed an opinion that it was not obscene. While traveling outside the St. Louis area he had observed TROPIC OF CANCER, LADY CHATTERLEY’S LOVER, and FANNY HILL on other bookstore shelves. He had discussed the book with students, teachers, and professional people who constituted the clientele of the store.
Miss Louise French was the assistant buyer in the bookshop for Scruggs-Vander-voort-Barney, Inc., owner of three department stores in the St. Louis area. Prior to the arrest of Mr. Smith her bookshops had purchased CANDY at wholesale and had sold eighteen hardback, and an estimated fifteen paperback, editions. Mrs. Thomas Sherman of the St. Louis Post-Dispatch called her once a week “to get our best-selling ten titles * * She was aware of CANDY’s position on various best-seller lists.
Robert Faith was district manager for three Doubleday Book Shops in the St. Louis area. Prior to March 31, 1965, his stores made retail sales of between two hundred and two hundred fifty hardback, and approximately five hundred paperback, volumes of CANDY without arrest. Their wholesale orders of CANDY were received by mail. He, too, was aware that CANDY was listed on various best-seller lists.
William G. Dixon was assistant buyer in the book department of Famous-Barr. Prior to Mr. Smith’s arrest Famous-Barr sold approximately three hundred hardback editions of CANDY through its five bookstores in the St. Louis area without arrest. He was unable to say how many paperback copies Famous-Barr sold during the same time.
Peter L. Simpson held B.A. and M.A. degrees in English from St. Louis University; was assistant professor of English at Lin-denwood College for two years; had taught in the evening college at Washington University and as a graduate fellow at St. Louis University; had instructed and lectured in English at Southern Illinois University; had published articles of literary criticism and poetry both locally and nationally; had traveled extensively and had become acquainted with the reading habits of people in all parts of the country. He was familiar with the form of literary expression known as satire and explained satire as “a way of presenting manners or morals in a given culture that may be absurd * * * or to the detriment, usually of society. Satire is concerned more with correcting * * * the manners and the morals of society * * * and usually this is done by presenting human actions in ridiculous or absurd circumstances so that the inequities or absurdities are made quite clear.” In his opinion CANDY was “a work of art” and told a story in an accepted and literary sense. “It is a form of narrative satire in related episodes. It is carried along in terms of the experiences of a single character around whom all the events revolve.” He thought that CANDY had a plot and, as to the type of literature, “it is a form of satire.” Offered opinions on obscenity vel non from this witness were refused but cross-examination elicited additional observations: As to whether CANDY is a work of art, Mr. Simpson answered, “Yes. * * * It uses the power of imagination to construct a work of literature that tries to give us in terms of its own methods a vision into the way that life is being lived today.
“Q. * * * would you say that this is an accurate portrayal of life as it is known today? * * * A. * * * It is satire. * * * An accurate portrayal of life, no. * * * It is, as I said, devices of humor *73and ridicule which often partake also of the absurd, and when you talk about life as it is lived today, I guess you are trying to make some kind of judgment as to what normal life is. * * *
"Q. Would you say this is a good or a bad satire ? A. I would say it is moderately good satire.
“Q. * * * Will you tell this Court and jury what your opinion is of this plot? A. Well, * * * I understand a plot as a principle of organization around which the whole work revolves, and it is a series of episodes dealing with the experiences of a very shallow and stupid young girl * * * getting into various situations that could take place in our society. If a shallow, stupid young girl could go to college, she could go to a hospital; she could go, I suppose, even to a motel, she could go home. It takes her through various places where I guess shallow, stupid girls could be expected to go, and shows in excessive ways what the commercialization and what the cheapening of the meaning of sex in contemporary life has done to keep her from any honest, decent touch with other human beings or with life as it ought to be lived. * * * I think I was asked the question in my course in the evening college at Washington U as to whether there would be any harm in reading it, and I said no, I thought it was a funny book * * * if they wanted to read it, they might get some enjoyment out of it.” Mr. Simpson also stated that the portrayal of Candy Christian as a shallow, stupid young girl did not mean the book should not be available for public consumption.
Norman D. Hinton held B.A. and M.A. degrees from the University of Tulsa and a Ph.D. degree from the University of Wisconsin, all in English Literature; was Associate Professor of English at St. Louis University, and had taught previously at Princeton University and as a graduate assistant at the University of Wisconsin; was a member of The Modern Language Association, the Medieval Academy, the American Name Society, and the State Linguistics Society; had published over twenty articles on English Literature in journals and in the new Catholic Encyclopedia; had a pamphlet “coming out” on Aldous Huxley’s novel, POINT COUNTER POINT; had an article in the Journal of the American Name Society on Chaucer’s REEVE’S TALE, one of the Canterbury Tales; and was preparing an article for the Western Michigan Medieval Conference on the ninth of the Canterbury Tales. Dr. Hinton considered TROPIC OF CANCER and CANDY to be works of literary art. With reference to the description of matters pertaining to sex in CANDY and CANCER, he evaluated TROPIC OF CANCER as treating such matters “largely for shock value; I don’t believe that is true of CANDY.” Dr. Hinton compared CANDY as similar in style to previous works of author Southern in that they all attack some aspect of American life. “ * * * I have expressed myself on (CANDY) * * * in the St. Louis Review. I take CANDY to be again a satiric attack on certain peculiar aspects of American notions towards sex. For instance, that the woman always is not really involved in the act, but simply feels sorry for the man, or is fulfilling some need of his as his superior, or in other words, detached from it and not really a partner in any kind of act of love, but merely takes pity on this poor creature. Also the notion, the whole notion, I think, of over-romantic love. What it of course comes down to, and what is not expressed frequently, is some kind of normal human desire, but the rhetoric in which it is couched is of course those of excessive sentimentality, or pretending to be engaged in another occupation altogether from time to time, * * * (CANDY) is written the same way that all of his other books have been written, episodic and with a good deal of playing with words and generally witty approach to the subject matter throughout.” He was familiar with reviews of CANDY by Nelson Algren in LIFE Magazine, Stanley Kauff-man in the New Republic, and William *74Styron in the New York Review of Books, and was aware of others.
Dr. Hinton’s opinion of CANDY’s social importance was that “it dealt with a particular ill of the American social scene. * * it was a very important one. I would feel that attitudes towards sexual relationship which are distorted for purposes of sentimentalization or commercialization are very dangerous things, and I believe that is what the book deals with. * * * I believe the author presents for ridicule this distorted view of sex. * * * I think it makes fun of various literary styles as well as its thematic material, and I think it makes fun of certain fashions in contemporary literature as well.” In his opinion the book does not go beyond customary limits of candor as reflected in books currently on the market. In comparison to TROPIC OF CANCER, “It is less candid; * * * It does not go further (than LADY CHATTERLEY’S LOVER) * * * it does not go as far as FANNY HILL.” CANDY “is typical of writers who deal with what we call satire; irony; burlesque; parody; and associated forms. To deal bluntly, or with a good deal of candor about such matters. I would refer to Rabelais, to Swift; Shakespeare; to Chaucer; to Boccaccio; numerous other writers whose works are traditionally taught in university courses and who are reprinted widely. * * * there are a number of what one might call ribald puns in Shakespeare, which deal with words that are not commonly spoken today, at least in polite society; * * * I would say that Chaucer deals in terms that are sometimes at least as frank as CANDY. The Miller’s Tale is the most famous example, I believe * * Finally, Dr. Hinton’s opinion was that the predominant appeal of CANDY is not to the prurient interest.
Cross-examination of Dr. Hinton elicited his opinion that CANDY “deals with thematic material which is of some importance * * * in contemporary society. I believe it makes an effective presentation of this ridicule, of this material. * * * there is a good deal of wit and verbal style in the presentation * * *. It deals with material which plays a prominent role in the life of the average citizen. * * * It portrays what is thought to be love, but it is not. * * * it shows by spoofing, by ridicule, false views, false notions of love that one sees displayed in contemporary writing. * * *
“Q. Do you believe that this book has any shock value or not? A. I believe that in order for a book to be a satire or parody or burlesque, that it has to deal in exaggeration and restatement of material as part of the equipment of the satirist so as to force you by your shock at seeing familiar materials in a different setting to re-examine the rules you generally apply to those things. In TROPIC OF CANCER I don’t find that present. I find shock for the sake of shock.
“Q. You don’t believe this book has any shock for the sake of shock in it? A. Not solely for that purpose, no.”
In respect to particular episodes and expressions of “need” of Candy (the girl), Dr. Hinton said, “It appears that Southern extends this desire over into the physical universe; the bar stool, the statue of Buddha, and various other objects, I believe.” In respect to the barstool and the bohemian hunchback, Dr. Hinton believed: “that is a —one of the points which I find the material exaggerated beyond the normal situation, and that that is advisedly not to be taken as a description of reality. This is one of the sort of movements of CANDY in what literary critics call the mythic dimension. She sort of becomes the things which the entire universe needs. I believe this is done by Southern deliberately to over-state and show how silly the whole attitude is; that this is, of course, impossible. * * * It serves the purpose of satiric exaggeration. * * * It is precisely in places like this that you realize that this is in no way a realistic portrayal of sex. * * * If I say it distorts certain values, a satire on American society, then I have said what I think is good about the book.”
*75Upon further cross-examination, the witness was asked to read a single isolated passage, selected for its candor, and to tell what literary value its words had “in connection with the whole book as you know it.” Dr. Hinton answered: “One can only relate them again to the dominant theme in the book. Aunt, I believe her name is Livia, represents in one moment the suburban woman acting naughty in a night club. Another moment, when she thinks that Candy has spent the night with her husband Jack, that is, with Livia’s husband Jack, she acts like any enraged wife despite all her juvenile attempts to act sophisticated on sexual matters. I think that this is so obviously, statements like this are so obviously overdone and so clearly presented in a way that even Candy objects — she blushed later in the same passage — they represent a kind of secondary theme in the book. The uncle, —I mean Aunt Livia and Uncle Jack appear to be quite solid members of the community, and the sort of places they go, and the people they talk to, and yet they enjoy this kind of verbal playing with terms considered — even that they say they consider naughty. And yet when it comes right down to something happening later on in the book, Aunt Livia displays a good deal of shock and outrage, and threatens Candy angrily; and then later herself participates in an act with the doctor. I think Aunt Livia is a fairly important secondary character. In fact she is far worse than Candy, because she simply does this in a spirit of fun without any, evidently having any meaning behind her utterances. It seems obvious also that when it comes right down to an extramarital matter concerning her husband, her reactions are quite normal; and when it concerns herself, she writes Candy a letter boasting about it. She seems to me to be a thoroughly hypocritical person, and therefore in line with the dominant theme of the book.
“Q. Would you say that is offered for shock value? * * * A. * * * Well, * * * in the whole context of the book, I think it has other purposes than shock value, which I have just been talking about. Right there by itself, I assume that it does have shock value.” The court thereafter refused any further cross-examination on isolated passages taken out of the book’s context.
Dr. Hinton had recommended the book to “friends and colleagues” thinking “they would find it an amusing book.”
Anthony Morley was a priest and coordinator of Episcopal Church planning for the St. Louis metropolitan area. He studied at Haverford College in Philadelphia and as a Fulbright Scholar at the University of Vienna for one year; held a Bachelor’s degree in Theology at the Episcopal Theological School in Cambridge, Massachusetts; engaged in graduate work at General Theological Seminary in New York City for three years; was an avid newspaper and book reader, television viewer, and extensive traveler. His work took him to various parts of the country where he came in contact with lay people of his church. In Father Morley’s opinion, “contemporary national community standard in regard to sex morality is extremely lax or permissive. That is to say, that in our daily life and the things that we are exposed to, and raise no objection to being exposed to every day, there is a great deal of open, undisguised and powerful appeal to sexual consciousness, and since there is no great outcry against this in the community, I would say it was obvious that the country permits in its general social contacts a very high degree of what you might call sexual exposure. And you can take that in any sense you want; that is, verbally, or photographically, or sketched pictures, acting on television, advertising; just photographs and word articles in newspapers and magazines. * * * there is a very wide degree, a very high degree of the acceptance of the outright appeal to sexual feelings, and outright stimulation of sexual feelings, and this is part of the accepted community standard of the United States at this time. Whether this is desirable is another question. Now, in more highly literary works, and I take it *76from previous discussion that CANDY would be considered one of these, * * * it seems to me that by and large anything goes, and there is not extensive objection to what is written or portrayed or alluded to in literature until somebody does it in a satirical or fun-poking way. * * * I think we all allow anybody who is making fun of anything to take certain liberties of exaggeration. An obvious exaggeration is the political cartoons in the newspaper.” As to limitation of such exaggeration when the subject is sex, “There is no rational limitation in my mind.”
Carl Dudley was the pastor of Berea Presbyterian Church. He had gone to Cornell University and had graduated from Union Theological Seminary; had studied at New York School of Social Work, Museum of Modern Art, in labor management school at the University of West Virginia, and at McCormick Theological Seminary on the church and the industrial society. Based on his travels, profession and work, Reverend Dudley “would say there is a wide acceptance of a variety of attitudes towards sex as well as toward many other things. Particularly so in literature, where a particular position is taken by an author and argued for one reason or another in a free society to establish his point of view. * * there is a tremendous latitude * * * For particular expressions, or for expressions of particular views * * *.
“Q. Would you say * * * that the book begins to impinge on the attitude of some other person, or on the health of society? A. I would say it enters into this insofar as it is a healthy antidote to other kinds of literature which are available. * * *
“Q. * * * Would you say that this book CANDY is within the scope of the wide acceptance of the great variety of attitudes towards sex in the modern American community? A. I would say yes * * Only that I don’t think this book appeals to most people. I think its appeal is relatively limited to those people who are apt to look for novels on the subject that this portends to deal with.
“Q. THE COURT: Are you saying that this doesn’t measure up, then, to the national standards of morality? A. I think it is * * * I think it is a very healthy addition to the standard of morality.”
As to social significance, Reverend Dudley thought that CANDY “delightfully buffoons what many people are taking very seriously and trying to get their kicks out of it. * * * I think the social significance is that it takes — it lampoons, it really makes into slapstick what many people are reading to find — what many people take so very seriously, namely, vicarious sexual experience, and as such I think it is an important book. * * * I think it is a good book.” Reverend Dudley felt the author’s intention was to spoof immorality, and in comparison to religious areas in which immorality has been spoofed, he testified: “Probably comparing similar things, I have always enjoyed reading the Gospels with the sense of Jesus taking off and lampooning the social pride and — of the people of his time by really laughing at them. * * *
“THE COURT: Would you say that such a book as this strengthens and fortifies the morality of this nation? A. If I may say, sir, I would say that book undermines immorality.
“THE COURT: You wouldn’t say, however, that it strengthens morality, would you? A. Insofar as cutting the ground out of the opposition is concerned, yes.”
Donald Finkel was poet in residence, teaching at Washington University;, was an active writer of poems and had written three books; held a Bachelor’s degree in Philosophy and a Master’s in English from Columbia University; had done postgraduate teaching at the Universities of Illinois and Iowa; had instructed in English at Barnes College and Washington University. Mr. Finkel had read CANDY as well as other works by Terry Southern, i. e., the *77movie script, Dr. STRANGELOVE, MAGIC CHRISTIAN, and his short stories, and had found similarity in the style of each work. “The method usually is satirical; that is, he blows up what he considers to be human weaknesses, usually contemporary human weaknesses, until they appear ridiculous. He also used * * * what we call the episodic narrative. This only means that he orders his story by little episodes in which the hero or heroine passes through a whole series of little adventures. Each chapter is a new adventure, usually.” He would classify CANDY as satire, “one of the oldest forms” of literary expression. He would not call CANDY hard-core pornography. CANDIDE by Voltaire is a work of recognized literary merit. Comparing CANDIDE and CANDY, “I think that there are some very intentional similarities, both in the choice of name and * * * that the writer of CANDY chose an epigraph * * * from Voltaire’s CANDIDE, as if to say * * * you should look for further parallels. * * * It strikes me that what Southern was doing was taking off on a variation of CANDIDE, but then he became freer as he went along. CANDIDE is a very naive young man. Candy is a very naive young lady. Candide believes that everyone is really good; that this is the best of all possible worlds. He has been taught this by a very wise professor, Professor Pangloss. There is a wise, or seemingly wise, professor in this book at the very opening, Professor Mephesto. Both of them are conceived of as wrong by the writer. At least one gets the sense that both the doctors who teach these young people are teaching them wrongly, are really phonies.” Both characters are taken through a series of episodes in which they should learn that people are not as they thought they were, but “both of them very foolishly persist to the end of the book.”
As to social importance of CANDY, “I think it is the usual kind of social importance that any satire has, if it works, and I think this intends to work. It is holding up to ridicule certain attitudes that people have, namely, in the case of this book, sexual attitudes highly romantic and sentimental and foolish sexual attitudes, which are reinforced by television, the movies, magazines, popular magazines. It also holds up those sexual attitudes, contemporary ones, for mockery. I think that this is very healthy. I think that is the whole point of satire, is to be a kind of check on human foolishness and when humans get too foolish, they ought to become aware of the foolishness. That is what satire tries to do and what this book tries to do, is to mock this foolishness so that we recognize it. It has to display it, has to exaggerate it to do this. * * * I felt in reading (CANDY) that he is also mocking at the soft headed liberal who feels that all he has got to do is love, and in this case it is all she has to do is love people in unfortunate positions; the Mexican gardener, the humpback, to achieve some sort of beautiful relationship without understanding for a moment the position and the problems and the needs of the Mexican gardener and the humpback. And of course she fails miserably to achieve any kind of understanding with them or of them, and she certainly doesn’t help them out in any way. And I think that this is pretty much the same kind of thing that one conceives of the soft headed liberal doing.”
David T. Thomas, Assistant Chancellor of the Archdiocese of St. Louis, was also assistant pastor at the Cathedral, did parish work, and was secretary on the Commission on Liturgy, Music and Art in the Catholic Church. He was ordained at Kenrick Seminary in St. Louis; had a doctorate in church law from Gregorian University in Rome; was serving in the office of censor of books for the church. He read “all kinds” of books, wrote book reviews for the St. Louis REVIEW, and traveled extensively. His opinion as to national contemporary community standards pertaining to morality and to sexual representations in literature was that “little by little the level or the development of appreciation of literature is *78or has been growing in our country. Perhaps the word ‘sophistication’ is the word people don’t like, but there is a true sophistication. One mark of this sophistication is the appreciation of literature. * * * the whole level has risen. Adults can be more like adults because of their education, and there is no damage that I can see among people who take reading seriously of, well, for instance the more honest, not hide it because it is sort of a dirty attitude concerning sexual morality. More people can talk about it now without blushing or giggling or behaving like an adult did in the past. The subject can be handled with reverence and honesty and is taken seriously, more out in the open, * * All literature and writing treats of sex “because it is part of the human nature. * * * But it is much more open; much more frank; much more true today than it was ten, twenty years ago.” In his opinion, this is not in conflict with Christian morality.
As to whether satire or parody on matters pertaining to sex have anything to do with prurience, Father Thomas said, “sexual matters can be mentioned. They can even be spoofed in literature without any question of impurity or absolutely have nothing to do with pornography or prurience. * * You can describe it as hyperbole; purposeful exaggeration to get a point across.” A book which is obscene and contains pornographic matter could, in the opinion of Father Thomas, be good satire or a good spoof, and such a book, if good satire and good spoofing, would “very definitely” have social importance. In respect to effects of allegedly obscene books on average persons, Father Thomas answered the court: “I could not see any great danger to Christian morality in giving people freedom to read what they choose.” He amplified his statement on cross-examination. “If you mean by obscene something that is filthy in its writing, and calculated to bring forth prurient thoughts, perhaps actions, if that is what you mean by obscene, I wouldn’t recommend this to anybody, nor do I read anything except professionally of that nature. * * * But if you mean by obscene parts ■ dealing with the human body, for instance, having to do with sexual relations, if that is what you mean by obscene, then I would have to have a discussion with you because obscenity in that sense is not true.
“Q. You wouldn’t take an abnormal sex scene and use it to describe or teach morality, would you ? A. I could.”
John W. Higgins was a physician, psychiatrist, and practicing psychoanalyst. His undergraduate work and doctorate in medicine were accomplished at Cornell University; his internship in internal medicine at Yale University Teaching Hospital; his psychiatric training at Cincinnati General Hospital; his psychoanalytic training at Western Institute for Psychoanalysts in New Haven, Connecticut. He had practiced psychiatry since 1951 and was currently associate professor of Clinical Psychiatry at St. Louis University, was a fellow of the American Psychiatric Association, a Dipló-mate of the Board of the American Board of Neurology and Psychiatry, a member of the American Psychoanalytic Association, a member of the Group for the Advancement of Psychiatry; had written approximately twenty publications in his field, and had traveled fairly extensively in the United States. In Dr. Higgins’s opinon on national contemporary community standards of morality, nudity, discussion of sexual matters in a vivid sense, and vivid descriptions of lovemaking were accepted as a part of the national standard. In his opinion, CANDY did not violate the accepted national standard. He found no relation between CANDY and books covering sexual perversion and sexual crimes or abnormal sexuality.
Lee Rainwater was a professor of Sociology and Anthropology at Washington University. He held a Master’s degree in Sociology and a Ph.D. degree in a group called the Committee on Human Development of the University of Chicago; had *79previously been a lecturer at Chicago University in a course dealing with symbolic behavior and mass media analysis; had been associate director of a private research firm in Chicago, Social Research, Incorporated, which specialized in the study of mass media for business and media firms; was a fellow of the American Sociological Association, a fellow of the American Psychological Association, of the Society for the Psychological Study of Social Issues, of the Society for the Study of Social Problems, the National Council on Family Relations, and of the Society for the Scientific Study of Sex; had written four books and twenty-four articles concerned with family behavior, family relations, and marital relations; had also traveled extensively in the United States.
Asked for his opinion on national contemporary community standards, Dr. Rainwater testified that “the national standard at this point is one which allows and permits a wide range of subject matter particularly in books. * * * almost any subject matter is acceptable so long as the author’s intent can be seen as serious. * * * the standard includes that the author be given the benefit of the doubt; that is, that very few people are willing to condemn an author or a work which they know about unless they are really very sure that his intent was a negative or destructive or un-constructive one.” According to Dr. Rainwater, CANDY was “well within” the national standard.
The State made no rebuttal.
The crucial and dispositive question is whether the State met its burden of proving CANDY obscene under present constitutional standards of protection of freedoms of speech and press.
In a Book Named “John Cleland’s Memoirs of a Woman of Pleasure” et al. v. Attorney General of the Com. of Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1, the United States Supreme Court, in reversing an adjudication of FANNY HILL as obscenity, reviewed its landmark case, Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, and its tests of obscenity, and stated: We defined obscenity in Roth in the following terms: '[Wjhether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.’ 354 U.S. at 489, 77 S.Ct. at 1311. Under this definition, as elaborated in. subsequent cases, three elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters ; and (c) the material is utterly without redeeming social value. * * * Each of the three federal constitutional criteria is to be applied independently.” 383 U.S. 1. c. 418, 419, 86 S.Ct. 1. c. 977. See also Mishkin v. New York, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56; Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 969, 16 L.Ed. 2d 31. “‘[Cjommunity’ * * * in determining standards of decency, does not mean the local area involved but relates to a national standard.” State v. Vollmar, Mo., 389 S.W.2d 20, 27 [17], citing Manual Enterprises, Inc. v. Day, 370 U.S. 478, 488, 82 S.Ct. 1432, 8 L.Ed.2d 639; Jacobellis v. State of Ohio, 378 U.S. 184, 195, 84 S.Ct. 1676, 12 L.Ed.2d 793.
“Prurient interest” was defined, Roth v. United States, 354 U.S. 476, 487, fn. 20, 77 S.Ct. 1304, 1310, 1 L.Ed.2d 1498, as “material having a tendency to excite lustful thoughts”; “ * * * Itching; longing; uneasy with desire or longing; of persons, having itching, morbid, or lascivious longings; of desire, curiosity, or propensity, lewd,” Webster’s New International Dictionary (Unabridged, 2d ed.) ; “A showful or morbid interest in nudity, sex, or excretion, and if it goes beyond customary limits of candor in description or representation of such matters,” A.L.I., Model Penal Code, § 207.10(2) (Tentative Draft No. 6, *801957); “patent offensiveness” or “indecency” was defined, Manual Enterprise v. Day, supra, 1. c. 482, 82 S.Ct. 1. c. 1434, as applying to materials “so offensive on their face as to affront current community standards of decency”; and Jacobellis v. State of Ohio, supra, 1. c. 191, 84 S.Ct. 1. c. 1680, stated: “It should also be recognized that the Roth standard requires in the first instance a finding that the material ‘goes substantially beyond customary limits of candor in description or representation of such matters.’ This was a requirement of the Model Penal Code test that we approved in Roth, 354 U.S. at 487, n. 20, 77 S.Ct., at 1310 * * * See Manual Enterprises, Inc. v. Day, 370 U.S. 478, 482-488, 82 S.Ct. 1432, 1434-1438”; “social value” was defined, Roth v. United States, supra, 354 U.S. 1. c. 484, 77 S.Ct. 1. c. 1309, as applying to “All ideas having even the slightest redeeming social importance — unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion — have the full protection of the guaranties, unless excludable because they encroach upon the limited area of more important interests.” This was amplified by Jacobellis v. State of Ohio, supra, 378 U.S. 1. c. 191, 84 S.Ct. 1. c. 1680: “ * * * material dealing with sex in a manner that advocates ideas * * * or that has literary or scientific or artistic value or any other form of social importance, may not be branded as obscenity and denied the constitutional protection. Nor may the constitutional status of the material be made to turn on a ‘weighing’ of its social importance against its prurient appeal, for a work cannot be proscribed unless it is ‘utterly’ without social importance.”
Two other tests warrant mention even though they do not appear to have been adopted by majority opinion of the United States Supreme Court: Mr. Justice Stewart in his concurring opinion in Jacobellis v. State of Ohio, supra, 378 U.S. 1. c. 197, 84 S.Ct. 1. c. 1683, concluded without definition that laws dealing with obscenity “are constitutionally limited to hard-core pornography.” Later, in his dissent in Ginzburg v. United States, supra, 383 U.S. 1. c. 498, 86 S.Ct. 1. c. 956, he bottomed his reluctance to act in the field of censorship upon an observation: “Censorship reflects a society’s lack of confidence in itself. It is a hallmark of an authoritarian regime. Long ago those who wrote our First Amendment charted a different course. They believed a society can be truly strong only when it is truly free. In the realm of expression they put their faith, for better or for worse, in the enlightened choice of the people, free from the interference of a policeman’s intrusive thumb or a judge’s heavy hand. So it is that the Constitution protects coarse expression as well as refined, and vulgarity no less than elegance. A book worthless to me may convey something of value to my neighbor. In the free societv to which our Constitution has committed us, it is for each to choose for himself.” In this framework he described materials coming within his test of hard-core pornography as referring to and including “photographs, both still and motion picture, with no pretense of artistic value, graphically depicting acts of sexual intercourse, including various acts of sodomy and sadism, and sometimes involving several participants in scenes of orgy-like character. They also include strips of drawings in comic-book format grossly depicting similar activities in an exaggerated fashion. There are, in addition, pamphlets and booklets, sometimes with photographic illustrations, verbally describing such activities in a bizarre manner with not attempt whatsoever to afford portrayals of character or situation and with no pretense to literary value. All of this material * * * cannot conceivably be characterized as embodying communication of ideas or artistic values inviolate under the First Amendment. * * * ” 383 U.S. 1. c. 499, fn. 3, 86 S.Ct. 1. c. 957. See also dissent of Harlan, J., in Ginzburg v. United States, supra, 383 U.S. 1. c. 493, 85 S.Ct. 969. “Pandering,” was discussed in Ginz-burg v. United States, supra, and in Mish-kin v. United States, supra, where the court *81held that circumstances of the sale of alleged obscenity was a consideration in determining close cases of alleged obscenity; and that if commercial exploitation is shown, such may support a determination of obscenity, “even though in othér contexts the material would escape such condemnation.” Ginzburg v. United States, supra, 383 U.S. 1. c. 476, 86 S.Ct. 1. c. 950.
State v. Vollmar, supra, 389 S.W.2d 1. c. 27[18], provides the rule in Missouri for review of obscenity cases as distinguished from other jury cases: “In cases in which fact questions are submitted to a jury, appellate review of the fact issues is ordinarily limited to a determination of whether there was substantial evidence from which the jury could reasonably have found the facts in question. However, we accept the now prevailing view that in obscenity cases the issue for determination is subject to constitutional limitations and the courts are faced with an obligation to make an independent determination of the constitutional issue which cannot be avoided by considering ‘obscenity’ as a fact question only. See ‘Censorship of Obscenity,’ 45 Minn. Law Review 114. We will accordingly make our own determination of the mixed question of law and fact as to whether the publications in question are obscene.” See Jacobellis v. State of Ohio, supra, 1. c. 190, 84 S.Ct. 1. c. 1679; Roth v. United States, supra.
In this, as in all criminal cases, the burden is on the State to prove defendant guilty of the offense charged beyond a reasonable doubt; and here that burden is to establish beyond a reasonable doubt that defendant possessed with intent to sell a publication which was obscene and, therefore, not entitled to constitutional protection. The record in this case, tested by the recognized standards, fails to sustain that burden and the judgment of conviction must, therefore, be reversed.
The book itself, its publishers’ synopses, and the witnesses’ descriptions, show CANDY to be satirical comment on, and a funny spoof of, attitudes toward sex and other matters in present-day society; the evidence also characterized the book as a work of art, stated it to be less candid in comparison to other approved works, showed it to possess literary quality and merit, and that its predominant appeal was not to prurient interest. The prosecution produced no evidence, expert or otherwise, to rebut such showing and, considered test by test, CANDY is not shown to be beyond the pale of constitutional protection. The evidence under each test in fact shows the contrary.
First, the evidence fails to sustain the burden of showing that the predominant appeal of CANDY was to “prurient interest.” Dr. Hinton’s opinion was that the predominant appeal of CANDY was not to prurient interest; Father Thomas testified that sexual matters can be spoofed in literature without being pornographic or appealing to prurient interest; Dr. Higgins found no violation by CANDY of accepted current national community standards; Dr. Rainwater stated that CANDY was well within such standards. There was no evidence that the book went beyond the national standard; that it had the proscribed effect on anyone, or that it appealed to or stimulated anyone’s prurient interest; and the book itself, read as it must be as a whole and without lingering emphasis on isolated passages, Grove Press, Inc. v. Christenberry, 2 Cir., 276 F.2d 433, Haldeman v. United States, 10 Cir., 340 F.2d 59, 62 [6,7], does not provide such proof.
Second, the evidence fails to sustain the burden of proving CANDY to be “patently offensive,” a test amplified to require a finding that the alleged obscenity substantially exceeds customary limits of candor in describing matters. Dr. Hinton felt that TROPIC OF CANCER treated of sexual matters largely for shock value which was not true of CANDY; that CANDY did not go beyond customary limits of candor reflected in other books on the current market; that it was less candid than TROPIC *82OF CANCER (not obscene in Grove Press, Inc. v. Gerstein, 378 U.S. 577, 84 S.Ct. 1909, 12 L.Ed.2d 1035); that it did not go further in candor than LADY CHATTERLEY’S LOVER (approved for publication in Grove Press, Inc. v. Christenberry, supra); and that it did not go as far as FANNY HILL (publication permitted by Memoirs v. Com. of Massachusetts, supra). The candor of CANDY was comparable, in his opinion, to that of certain mentioned classics taught in schools. Father Morley described the contemporary national community standard in regard to sex morality as lax or permissive in respect to exposure to sexual matters in communications, particularly literature. Reverend Dudley testified that CANDY was within the scope of the currently accepted attitude toward sex. In the opinion of Father Thomas, the frank and open treatment of sex in current literature was not in conflict with Christian morality. Both Dr. Higgins and Dr. Rainwater testified that the matters portrayed by CANDY were a part of and did not violate the current national standard. There was no evidence that CANDY was patently offensive or indecent, that it exceeded customary limits of candor, or that it violated current national community standards. Candid description and exaggeration of sexual matters is present in the book but, as Mr. Fink-el testified, the book loses its purpose and point without such candor; and such description, even though at times utilizing four-letter words, offensive to many, does not render the material obscene. Grove Press v. Gerstein, Inc., supra; Grove Press, Inc. v. Christenberry, supra.
Third, the evidence fails to sustain the burden of showing CANDY to be “utterly without redeeming social value.” Even if the book possessed the requisite prurient appeal and patent offensiveness to subject it to proscription under the first two tests, possession of “only a modicum of social value” would preclude a judgment of obscenity. Memoirs v. Com. of Massachusetts, supra, 383 U.S. 1. c. 419, 86 S.Ct. 975. The evidence showed that CANDY had received public acceptance and wide distribution in that six months prior to defendant’s arrest 112,000 persons had read and “loved” the book; it was on the St. Louis Post-Dispatch and TIME Magazine best-seller lists for many weeks prior to the arrest; it had been reviewed seriously by literary critics. Mr. Smith testified that he did not consider that he was selling an obscene book; he was aware of its national acclaim and had discussed it with the clientele of the bookstore. Mr. Simpson stated that CANDY had a plot and told a story in an accepted literary sense; that it was a work of art; and that he had recommended it to his students. Dr. Hinton considered CANDY to be a work of literary art and his quoted testimony deals at length with the social value possessed by the book. He, too, had recommended the book to others. Reverend Dudley characterized CANDY as a “healthy antidote” to other kinds of available literature and a healthy addition to the standard of morality. He attributed particular social significance to its lampoon of vicarious sexual experience; he thought CANDY to be an important book. Mr. Finkel emphasized what he thought to be intentional similarities to Voltaire’s CANDIDE, a classic satire, through reference to the French quotations from CANDIDE and in the choice of name for the book. He testified that CANDY possessed the usual kind of social importance of any satire; it holds up for ridicule “sexual attitudes highly romantic and sentimental and foolish,” which requires candor and exaggeration; it also mocks the soft-headed liberal. Father Thomas was of the opinion that satire and spoofing of sexual matters have social importance, and that he could see no danger in people having freedom to read what they choose. Dr. Higgins also testified that there was no relationship between CANDY and books on sexual perversion and between CANDY and sexual crime and abnormal sexuality, thus rebutting the opinion held by some that erotica produces antisocial sexual conduct. Note again the testimony that CANDY is well within the national *83community standard and its favorable comparison to other works, FANNY HILL, TROPIC OF CANCER, LADY CHATTERLEY’S LOVER, also once alleged to be obscene, but, upon trial, found acceptable under the constitutional standards and tests applied here. .As with the previous two tests, the State produced no evidence to sustain its. burden of proving CANDY to be utterly without redeeming social value; nor did it attempt a rebuttal of defendant’s evidence of CANDY’s social value; and the book itself tells a story of a principal character’s problems in a literary sense. Respondent concedes, even, that the authors of CANDY are recognized literary figures and that the book might be said to be well written, it being respondent’s position that “well written obscenity is still obscene.” The difficulty with that position is that respondent tendered no proof in satisfaction of its burden to prove such assumed obscenity.
Respondent cites Books, Inc. v. United States, 1 Cir., 358 F.2d 935, a conviction of a book entitled LUST JOB as obscene.1 That case contains an exception which leaves it without point here, in that “there is evidence which was absent in (Memoirs v. Massachusetts, supra [and in this case]) ‘that the book was commercially exploited for the sake of prurient appeal, to the exclusion of all other values,’ ” 358 F.2d 1. c. 938, thus raising a true jury issue on alleged obscenity.
If there is a “hard-core pornography” test, it may be passed quickly in that respondent does not urge any consideration of its case by that test, and the only evidence on this came from Mr. Simpson and Mr. Finkel that CANDY was neither pornographic nor hard-core pornography.
The “pandering” test also may be summarily dismissed because, in the language of respondent’s brief, “the state did not at the trial, and does not now rely on evidence of ‘pandering,’ ” and there was no evidence of advertising or improper use of the book within the purview of “pandering.”
Respondent argues that this conviction should be affirmed on the theory that it is not necessary for the prosecution to produce expert testimony on the various standards, and that the only evidence necessary to show obscenity of CANDY was the book itself. The first part of this contention overlooks the State’s burden to prove its case beyond a reasonable doubt whether by expert testimony or otherwise. On the whole point, respondent relies on State v. Vollmar, supra, and State v. Becker, 364 Mo. 1079, 272 S.W.2d 283, both of which are distinguishable in that State v. Vollmar held on the authority of State v. Becker only that the trial court did not abuse its discretion in refusing defendant’s offered expert testimony on community standards and on whether the material was in fact obscene, the ultimate issue for the jury’s determination. See State v. Vollmar, supra, 389 S.W.2d 1. c. 29-30 [25]; State v. Becker, supra, 272 S.W.2d 1. c. 287 [5], It should be noted that both those cases, instead of a written literary work such as CANDY, dealt only with pictorial and photographic matter, the obscene nature of which was patent on its face. See description of those materials in State v. Vollmar, supra, 1. c. 28-29 [21] and State v. Becker, supra, 272 S.W.2d 1. c. 285 [1]. “Opinion testimony ordinarily is not received where the trier of the facts is as capable as the witness of drawing conclusions from the facts proved,” Schmitt v. Pierce, Mo., 344 S.W.2d 120, 128 [6] ; and, in the case of obscene pictures, a juror “is as capable of judging a publication as an alleged expert,” State v. Vollmar, supra, 389 S.W.2d 1. c. 30 [25].
United States v. Klaw, 2 Cir., 350 F.2d 155, contains many parallels and is in point with this case. Defendant, as the owner of *84Nutrix Company, an establishment that printed and published stories, photographs, and drawings, was convicted of mailing obscene matter. His materials contained photographs or crude drawings of females —“some scantily clad, some tightly trussed, and all voluptuous — subjecting other men and women to various tortures and indignities.” They “bore such titles as ‘Sorority Girls Stringent Initiation,’ * * * ‘Men in the Ladies Room,’ and the like.” All of these materials are described as “sado-maso-chistic” with reference to Krafft-Ebing’s Psychopathia Sexualis for further elucidation. Such materials are pictorial and thus comparable to the materials described in State v. Vollmar and State v. Becker, supra, and are a contrast to the written literary format of CANDY. As in CANDY’s case, the prosecution rested its case on exhibits consisting of the materials themselves,' of which the court said: “It may be conceded that the ‘sado-masochistic’ trash disseminated by Nutrix is not artistic or aesthetically pleasing. Nor is any claim made that it has any redeeming literary or social value whatsoever.” 350 F.2d 1. c. 160 [1], That court then proceeded, 350 F.2d 1. c. 164—165 [5-7], to review the same constitutional tests and cases treated here, and to reverse the conviction. The language of Judge Moore’s conclusions is appropriate to this disposition: “* * * (j)urors should not consider their own personal reactions as setting the standard; there is too much truth in the observation that ‘what is pornography for one man is the laughter of genius to another.’ * * * the only predicate for any conclusion about prurient appeal was the material itself, as if res ipsa loquitur. The jurors were, therefore, left to speculate. They were invited to behold the accused material and, in effect, conclude simply that it is undesirable, it is distasteful, it is disgusting. * * * Because the jury was given no basis for understanding exactly how and why the material appeals to its audience, whether deviate or average person, it may too readily supply an explanation — ‘prurient appeal.’ * * * Too easily the jury could aid suppression simply on the basis of speculations and suspicions about the prurient appeal of material to some unknown, undefined person whose psyche is not known. With the First Amendment in the background, this cannot be abided. The state of the record gave the jurors impermissibly broad freedom to convict just because, having no more informative evidence than the material itself, they might think that the average person would ‘recognize’ that the material has prurient appeal. But again, to whom? * *■ * it is the record and not our feelings that must control. Here the jury had no opportunity to judge the exhibits presented to them by any standard other than their own speculation as to ‘prurient interest.’ If they knew the standard set as a matter of law by other cases, their result might have been different. ‘Due process of law’ would be a meaningless cliche if the nonsensical trash that is the subject of this prosecution were allowed to be the basis of a conviction by judge or jury without any proof demonstrating that it has the proscribed effect on any of our citizenry. * * * While there is some merit to the opinion of those who say that appellate courts should not have to sit as a board of censors supervising the work of the police, the motion picture censorship bureaus, the schools, the churches, and the other organizations that have their lists of good and bad books and motion pictures, there is even more merit to the view that once these preferences are enforced upon others, we ‘cannot avoid making an independent constitutional judgment on the facts of the case as to whether the material involved is constitutionally protected.’ * * Unless there be this protection, a witch hunt might well come to pass which would make the Salem tragedy fade into obscurity. Having in mind the alternatives of jail or freedom, courts must be aware of the facts of the ‘held-not-to-be-obscene’ or ‘approved’ cases, and ensure that the proof is sufficient to allow a fact finder to set this case apart from them. Otherwise it would be altogether too easy for any prosecutor to *85stand before a jury, display the exhibits involved, and merely ask in summation: ‘Would you want your son or daughter to see or read this stuff?' A conviction in every instance would be virtually assured.” 350 F.2d 1. c. 167-170 [12, 13], What is said there as to the burden of proof necessary to establish “prurient appeal” applies with equal force to the burden of proof of “patent offensiveness,” “utter lack of redeeming social value,” “hard-core pornography,” and “pandering.” See also United States v. 392 Copies of Magazine “Exclusive,” D.C. Md., 253 F.Supp. 485, 493, where the court agreed with United States v. Klaw, supra, as to the need of evidence in addition to the alleged obscenity itself unless the elements of appeal to prurient interest, patent offensiveness, and utter lack of redeeming social importance were obvious on the face of the material as was the case of the pictorial nude material there reviewed; and see also United States v. West Coast News Co., 6 Cir., 357 F.2d 855, 859 [4], where both prosecution and defendant availed themselves of expert witnesses on the issue of obscenity.
Respondent recognizes that United States v. Klaw, supra, held that a “jury was not capable of applying the tests and determining whether materials were obscene” without evidence other than the alleged obscenity itself, but would avoid the impact of this authority by saying only that this is not the rule in Missouri, citing State v. Vollmar and State v. Becker, previously distinguished. Respondent also mentions Kahm v. United States, 300 F.2d 78, of which suffice to say that it preceded United States v. Klaw in time by more than three years and was prior as well to the citation and distinction of United States v. Klaw in Mishkin v. State of New York, supra, 383 U.S. 1. c. 510, 86 S.Ct. 1. c. 964, where a conviction based on obscenity was affirmed because “[n]ot only was there proof of the books' prurient appeal, * * * but the proof was compelling.”
Finally, the United States Supreme Court in Redrup v. New York, 386 U.S. 767, 87 S. Ct. 1414, 18 L.Ed.2d 515, May 8, 1967, decided that distribution of two paperback books, Lust Pool and Shame Agent, two magazines, High Heels and Spree, and eight magazines, Gent, Swank, Bachelor, Modern Man, Cavalcade, Gentleman, Ace, and Sir, all allegedly obscene, “is protected by the First and Fourteenth Amendments from governmental suppression, whether criminal or civil, in personam or in rem.” In reversing convictions for publication of these materials as alleged obscenity, the court reviewed its tests for obscenity as summarized in a book named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General of the Com. of Massachusetts, supra, 383 U.S. 1. c. 41&-419, 86 S. Ct. 1. c. 977, and held that “[wjhichever of these constitutional views is brought to bear upon the cases before us, it is clear that the judgments cannot stand.” A for-tiori, if these are protected publications under the First and Fourteenth Amendments, CANDY merits the same protection and it cannot serve as the subject matter of an obscenity prosecution.
Since the above was written by Judge Higgins, there have been two other developments :
First, the United States Supreme Court on June 12, 1967, handed down eleven decisions, in each of which the Court granted certiorari and summarily reversed obscenity convictions, citing the Redrup case, supra, as authority.2
*86Second, the Supreme Court of Pennsylvania in a seven to two decision handed down September 29, 1967, Commonwealth v. Dell Publications, Inc., Pa., 233 A.2d 840, has ruled that “Candy”, under both Redrup, supra, and Roth v. United States — Memoirs v. Massachusetts, supra, tests is not constitutionally obscene. The observations of the Pennsylvania court on the Redrup decision and the other eleven decisions are worth quoting here, as follows [footnotes omitted]:
“On May 8, 1967, without the fanfare of its 1966 trilogy, the Court handed down a cryptic per curiam opinion disposing of three consolidated cases, Redrup v. State of New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515, which may yet prove to be the most significant of its obscenity opinions. The impact of this opinion, along with those cases summarily decided on the last day of the Term, comes as close to a holding that, in the eyes of the present Court, ‘Candy’ is not per se constitutionally obscene as is possible without a direct ruling on the book itself. Although the Court had originally granted review in Redrup to consider problems of scienter upon the assumption that the materials involved were obscene in the constitutional sense, it decided to dispose of the case upon the ground that they were not obscene under the first and fourteenth amendments. The Court noted that while it was badly split concerning the precise definition of obscenity, each of the seven justices who reached the merits agreed that under their individual approaches the materials were not legally obscene. * * *
“Redrup seems to signify the Court’s final abandonment of its futile search for a definition of obscenity vel non. For significantly, instead of attempting to determine what constituted obscenity, the Court approached the problem in terms of those circumstances under which the publication of otherwise unobjectionable material might be constitutionally restricted, 87 S.Ct. at 1415:
‘In none of , the cases was there a claim that the statute in question reflected a specific and limited state concern for juveniles. See Prince v. Commonwealth of Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645; cf. Butler v. State of Michigan, 352 U.S. 380, 77 S.Ct. 524, 1 L.Ed.2d-412. In none was there any suggestion of an assault upon individual privacy by publication in a manner so obtrusive as to make it impossible for an unwilling individual to avoid exposure to it. Cf. Breard v. City of Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233; Public Utilities Comm’n of District of Columbia v. Poliak, 343 U.S. 451, 72 S.Ct. 813, 96 L.Ed. 1068. And in none was there evidence of the sort of “pandering” which the Court found significant in Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31.’
“As has already been indicated in this opinion, none of the three situations described in Redrup are present in the case at bar. The importance of Redrup to obscenity litigation in general, and to the instant case in particular, is amply demonstrated by eleven decisions handed down by the Court on the last day of the 1966 Term, June 12, 1967. In each case the Court granted certiorari and summarily reversed an obscenity conviction citing Redrup as its sole authority. In other words, none of the materials involved in these litigations was, in the Court’s view, obscene in the constitutional sense. * * *3
⅜ ⅝ ⅝ ⅝ ⅜ ⅜
*87“None of the published works involved in the Redrup related cases comes close to having achieved the national recognition afforded 'Candy/ Indeed, to our knowledge, none of them were reviewed in any publication and none certainly appeared on any best seller lists. Moreover, the reported opinions of the lower courts indicate that no serious attempt was made to defend them on the ground of redeeming social importance. We can only conclude therefore that under both Redrup and the Roth-Memoirs test the court below erred in finding ‘Candy’ constitutionally obscene.”
In my opinion, the foregoing further strengthens the view that “Candy” is not constitutionally obscene on the facts before us and that the judgment of conviction herein should be reversed outright.
. Although it had not occurred when Judge Higgins wrote the above, this case has since been reversed by the United States Supreme Court, 388 U.S. 449, 87 S.Ct. 2098, 18 L.Ed.2d 1311.
. Schakman v. California, 388 U.S. 454, 87 S.Ct. 2107, 18 L.Ed.2d 1316 (1967); Mazes v. Ohio, 87 S.Ct. 2105, 18 L.Ed. 2d 1315 (books); Books, Inc. v. United States, 388 U.S. 449, 87 S.Ct. 2098, 18 L.Ed.2d 1311, 388 U.S. 453 (books; reversing 1st Cir.); Aday v. United States, 87 S.Ct. 2095, 18 L.Ed.2d 1309 (books; reversing 6th Cir.); Avansino v. New York, 388 U.S. 447, 87 S.Ct. 2093, 18 L.Ed.2d 1308 (books); Sheperd v. New York, 388 U.S. 444, 87 S.Ct. 2093, 18 L. Ed.2d 1306 (books); Cobert v. New York, 388 U.S. 443, 87 S.Ct. 2092, 18 L.Ed.2d 1305 (movies); Ratner v. California, 388 U.S. 442, 87 S.Ct. 2092, 18 L.Ed. *862d 1304 (movies); Friedman v. New York, 388 U.S. 441, 87 S.Ct. 2091, 18 L.Ed.2d 1303 (books); Keney v. New York, 388 U.S. 440, 87 S.Ct. 2091, 18 L.Ed.2d 1302 (books); A Quantity of Books v. Kansas, 388 U.S. 452, 87 S.Ct. 2104, 18 Ed.2d 1314 (books).
. In a footnote the Pennsylvania court said this about these eleven cases: See 35 Law Week 3430-31 (June 13, 1967) for a summary of the issues raised in the cases cited notes 41 and 42 supra. Examples of the paperbacks held not to be obscene in the constitutional sense are: *87“Lust Job”, “Orgy Club”, “Sex Life of A Cop”, “Passion Priestess”, and “Sin Warden.” See especially the description of “Sex Life of A Cop” in United States v. West Coast News Co., 357 F.2d 855, 857-858 (6th Cir. 1966), rev’d sub nom, Aday v. United States, 388 U.S. 447, 87 S.Ct. 2095, 18 L.Ed.2d 1309 (1967) * * * >J