specially concurring.
I concur in the opinion of the court that the cause must be reversed for failure to prove the requisite scienter. My disagreement with the majority is its holding that the trial court erred when it instructed the jury that the State does not have to introduce expert testimony on whether or not the movies are obscene.
The holding of the majority adopts the defendant’s argument that the instruction in question should not have been given because it incorrectly interprets prior case law, creates an impression to the jury of the lower prosecutorial burden of proof, unfairly lessens the credibility of the evidence given by the defendant’s witnesses, and increases the likelihood that jurors will substitute their own personal judgments or biases in place of the proper Statewide standard.
I cannot agree with any of the reasons put forth by the majority for its holding. The instruction embodies a correct statement of the law as derived from the holding of our supreme court in People v. Ridens (1972), 51 Ill. 2d 410, that the offending publications themselves are sufficient evidence of their obscenity. The majority in our case attempts to distinguish Ridens and the cases following its rationale upon the fact that in those cases the defendants offered no expert testimony. This distinction is not accurate since the rationale in Ridens has been followed in cases where expert testimony was presented by the defense. In People v. Tannahill (1976), 38 Ill. App. 3d 767, the court stated:
“In Paris Adult Theatre I v. Slaton, 413 U.S. 49, 37 L. Ed. 2d 446, 93 S. Ct. 2628, decided on the same day as Miller, no expert evidence as to whether the materials were obscene was introduced. The court ruled, however, that the films themselves were obviously the best evidence of what they represent. Here, too, regardless of the presence of testimonial evidence, the magazines are evidence of their own obscenity and the factfinders, properly instructed as to the definition of ‘obscene’, concluded that the magazines were, in fact, obscene. The magazines graphically depict sexual intercourse, masturbation, fellatio, cunnilingus, group sex and other varieties of sexual activity with emphasis typically focused on the genitals. Despite expert testimony to the contrary, we cannot say that the State failed to prove beyond a reasonable doubt that the magazines are obscene.” 38 Ill. App. 3d 767, 771.
The majority states that City of Chicago v. Kimmel (1964), 31 Ill. 2d 202, is not controlling because it predated the pronouncement of “community” as being the Statewide community. However, People v. Better (1975), 33 Ill. App. 3d 58, was decided after the adoption of the Statewide standard in People v. Butler (1971), 49 Ill. 2d 435. The Better court stated:
“Concomitantly, defendants’ argument that the trial court should have allowed expert testimony on the subject of contemporary community standards is without merit. The fact-finder, be it a jury or a trial judge, is best qualified to determine contemporary community standards. Expert testimony concerning contemporary community obscenity standards, while desirable, is not constitutionally mandated, and the absence of such testimony in the instant case did not prevent the trial court from determining, as fact-finder, the applicable community standards.” 33 Ill. App. 3d 58, 66.
Therefore, I do not agree that the holding in Ridens is inapplicable to the case at bar.
The defendant argued and the majority seems to accept the contention that this instruction gives the jury the impression of a lower prosecutorial burden of proof. I disagree with this conclusion for two reasons. First, the object of jury instructions is to convey to the jury the correct principles of law applicable to the evidence submitted, so that the jury may, by the application of proper legal principles, reach the correct conclusion. (People v. Richards (1978), 64 Ill. App. 3d 472.) Certainly this jury instruction is a correct statement of the law as expressed by our supreme court in Ridens. Second, if this instruction were not given the jurors might have erroneously concluded that the State did not introduce testimony or evidence because it was against the State’s position.
I do not agree that the credibility of the defense experts was diminished by the instruction. These experts stood unimpeached; neither their credentials nor their testimony was attacked.
I also think that the majority’s concern is misplaced that the jurors when given such an instruction will substitute their own personal judgments in place of a Statewide standard. I am confident that a jury instructed properly on the standards for determining obscenity will reach the proper conclusion. The courts have addressed this problem in other cases and have clearly indicated that the best safeguard against unbridled jury discretion is proper jury instructions on the definition of obscenity. People v. Will (1975), 30 Ill. App. 3d 35; People v. Watson (1975), 26 Ill. App. 3d 1081.
The Supreme Court in Smith v. United States (1959), 431 U.S. 291, 305, 52 L. Ed. 2d 324, 338, 97 S. Ct. 1756, 1766, stated:
“[Ojur decision that contemporary community standards must be applied by juries in accordance with their own understanding of the tolerance of the average person in their community does not mean, as has been suggested, that obscenity convictions will be virtually unreviewable. We have stressed before that juries must be instructed properly, so that they consider the entire community and not simply their own subjective reactions, or the reactions of a sensitive or of a callous minority.” (Emphasis added.)
Our supreme court in People v. Jenkins (1977), 69 Ill. 2d 61, said:
“In our judge-and-jury system it is the duty of the court to inform the jury as to the law. We must assume that jurors do not fall short of their constitutional functions and follow the instructions of the trial judge. This assumption is part and parcel of our system. As Mr. Justice Holmes long ago observed: ‘But it must be assumed that the constitutional tribunal does its duty ° e e.’ Aikens v. Wisconsin (1904), 195 U.S. 194, 206, 49 L. Ed. 154, 160, 25 S. Ct. 3, 6.” 69 Ill. 2d 61, 66.
While I question the wisdom of not requiring more of the State in an obscenity prosecution, I do not question that Ridens expresses the law to be followed, and I cannot set it aside under the thoughtful but erroneous rationale of the majority.