Clapp, Jayne and Francis. The opinion of the court was delivered by Clapp, S.j.a.d.
Defendants were convicted under an indictment charging them with having in their possession obscene moving picture films "with intent to utter or expose [the same] to the view of another," contrary to the provisions of N.J.S. 2 A:115-2. They appeal.
The films, eight millimeters in size, were part of the stock in trade of a retail novelty store in Union City, N.J. operated by defendants, who were respectively the owner of the store and his clerk. At the opening of the trial below, defendants admitted possession of the movies with intent to sell the same. Furthermore, in response to the court's question, they through their attorney then agreed that the case involved but a single question, namely, whether or not the films were obscene.
Three rolls of these films were exhibited to the trial court (which heard the case without a jury) on the representation made by a State's witness that they were typical of the films found by the police at the store. In fact, the defendant who owned the store testified later that the three rolls, which he had seen at the time they were exhibited to the court, and the other rolls which were taken by the police from the store were all of the same character (and it may be noted, by the way, in answer to one of the arguments advanced on behalf of that defendant, that this very testimony contains an implication that he possessed actual knowledge of the character of these films). At the time of the oral argument before us we also, on the special request of defendants' counsel, viewed these three films.
Defendants have devoted a good part of their brief to a consideration of authorities and law review articles dealing with the law of obscenity. But this is no case in
which to enter upon a discussion of that subject; there is no borderline question here. In fact, we see no reason even to state the nature of the three movies. It is sufficient merely to say, with respect to at least two of the three films, that the motion for acquittal made below on the ground that these films were not obscene was properly denied. The test question on the issue of obscenity, as stated in Adams Theatre Co. v. Keenan , 12 N.J. 267, 272 (1953),
"is whether the dominant note of the presentation is erotic allurement 'tending to excite lustful and lecherous desire,' dirt for dirt's sake only, smut and inartistic filth, with no evident purpose but 'to counsel or invite to vice or voluptuousness.'"
Cf. Bantam Books, Inc. v. Melko , 25 N.J. Super. 292 (Ch. Div. 1953), modified 14 N.J. 524 (1954). Not only the dominant note, but indeed the sole crude note of those two movies was erotic allurement of a pornographic character, within the standard above laid down. It could not be pretended that the sale of these films served any socially defensible purpose, State v. Weitershausen , 11 N.J. Super. 487, 491 (App. Div. 1951), nor, in our view, any venial purpose.
Counsel for defendants raise other questions on the appeal. But, as above indicated, all other issues were eliminated from the case by agreement of the attorney who appeared for defendants below. There is, to be sure, a rule -- usually applicable where the attorney for a party is silent (i.e. , fails to object) in the face of action taken or omitted below -- which enables an appellate court under certain conditions to notice plain errors not brought to the trial court's attention. R.R. 1:5-1(a). But where the State does not attempt to bring in proof as to various issues because of an express waiver by defendants' attorney, an appellate court will not grant a new trial calling for proof of those issues -- except in that unusual case where, after taking the waiver into account, it very definitely appears that the defendant has been convicted unjustly. Cf. State v. Haines , 18 N.J. 550, 565 (1955); State v. Picciotti , 12 N.J. 205, 211
(1953); State v. Ferrell , 29 N.J. Super. 183, 187, 188 (App. Div. 1954). Applying this rather rigorous standard, we find none of the other contentions, now presented, to be deserving even of attention, except possibly one.
This contention is that the State did not, and probably could not, establish an intention on defendants' part to utter and expose the films to the view of others , as charged in the ...