For affirmance -- Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For reversal -- None. The opinion of the court was delivered by Jacobs, J.
[35 NJ Page 285] On February 15, 1960 the Essex County Grand Jury returned indictments which charged that the Hudson County News Company did, without just cause, sell
and distribute certain obscene and indecent books and publications in violation of N.J.S. 2A:115-2, and on the same day returned an indictment which charged that Milton Medwin did, without just cause, possess with intent to utter and expose to the view of others, certain obscene and indecent books in violation of N.J.S. 2A:115-2. The Hudson County News Company is a wholesale distributor and Mr. Medwin is the operator of a retail store. After the State had furnished a bill of particulars, the defendants moved in the Essex County Court for dismissal of the indictments before trial. The court ruled that some of the material specified in the bill of particulars was, as a matter of law, not obscene but concluded that the indictments should proceed to trial with respect to the remaining material. It denied the motions to dismiss and the defendants appealed from the interlocutory orders pursuant to leave granted by the Appellate Division. See R.R. 2:2-3; R.R. 3:5-5(b)(6)(a). We certified the appeals on our own motion while they were pending in the Appellate Division. See R.R. 1:10-1(a).
Substantially all of the states have statutes which declare the distribution of obscene material to be criminal conduct and punishable as such. See American Law Institute, Model Penal Code, Tentative Draft No. 6, p. 5 (1957). In our own State there has been such legislation for almost a century. See, for example, L. 1868, c. 536; L. 1869, c. 440; L. 1898, c. 235, § 53; R.S. 2:140-2. When the 1951 revision of the laws relating to the administration of civil and criminal justice was adopted, it provided in N.J.S. 2A:115-2 that anyone who, without just cause, utters or exposes to the view of another or possesses with intent to utter or expose to the view of another, or to sell, "any obscene or indecent book, pamphlet, picture or other representation" is guilty of a misdemeanor. In 1957 and again in 1959 the Legislature amended N.J.S. 2A:115-2 to embody express references to those who shall "sell, import, print, publish, loan, give away," etc. any obscene or indecent
material including "any mechanical or electronic recording on a record, tape, wire or other device." See L. 1957, c. 175; L. 1959, c. 97. Although the legislative draftsmanship was somewhat inartistic, it appears evident to us from the statutory terminology and history, including the introducer's statement (see Deaney v. Linen Thread Co., 19 N.J. 578, 584 (1955)), that while these enactments were intended to clarify and expand the statute they were not at all intended to alter its basic design. Accordingly, we readily accept the construction advanced by the State and the defendant Medwin to the effect that the "without just cause" clause at the commencement of the statute modifies all of the later prohibitory provisions including those embodied in the 1957 and 1959 amendments.
Our Legislature has never attempted a definition of obscenity and while our courts have referred to the imprecise nature of the obscenity concept they have not at any time questioned that the statutory terminology in its present form is sufficient to withstand constitutional attack. See State v. Kohler, 40 N.J. Super. 600 (App. Div. 1956), certification denied, 22 N.J. 225 (1956); State v. Weitershausen, 11 N.J. Super. 487 (App. Div. 1951), certification denied, 7 N.J. 79 (1951); cf. Adams Newark Theatre Co. v. City of Newark, 22 N.J. 472, 480 (1956), affirmed 354 U.S. 931, 77 S. Ct. 1395, 1 L. Ed. 2 d 1533 (1957); Adams Theatre Co. v. Keenan, 12 N.J. 267, 273 (1953); McFadden's Lounge, Inc. v. Div. of Alcoholic Bev. Control, 33 N.J. Super. 61 (App. Div. 1954); Bantam Books, Inc. v. Melko, 25 N.J. Super. 292, 302 (Ch. Div. 1953), modified 14 N.J. 524 (1954). In 1957 the American Law Institute submitted a proposed definition to the effect that a thing is to be considered obscene "if, considered as a whole, its predominant appeal is to prurient interest, i.e., a shameful or morbid interest in nudity, sex, or excretion and if it goes substantially beyond customary limits of candor in description or representation of such matters." See Tentative Draft No. 6, supra, at p. 1, et seq. Shortly thereafter the
Supreme Court in Roth v. United States (Alberts v. State of California), 354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2 d 1498 (1957), held that the Federal and California obscenity statutes were not, on their face, violative of the freedom of expression guarantees and definiteness requirements of the United States Constitution. See Lockhart and McClure, Censorship of Obscenity, 45 Minn. L. Rev. 5, 25 (1960). In the course of its opinion the court seemed to adopt, at least at one point, the Institute's definition. But cf. Lockhart and McClure, supra, at p. 56; Schwartz, Criminal Obscenity Law, 29 Pa. Bar Assoc. Quar. 8 (1957). In State v. Jackson, Or., 356 P. 2 d 495, 507 (1960), Justice Rossman, after discussing and rejecting other definitions of obscenity, embraced fully the one proposed by the Institute. In People v. Richmond County News, 9 N.Y. 2 d 578, 216 N.Y.S. 2 d 369, 175 N.E. 2 d 681 (1961), Judge Fuld, after noting that the Supreme Court's opinion in Roth, while indicating outer limits, did not lay down any definition of obscenity which would be binding in the local interpretation of state legislation, strictly construed New York's obscenity statute as applicable "only to what may properly be termed 'hard-core pornography'"; the court examined the magazine which was the subject of the prosecution and held that, as a matter of law, it was not obscene within the meaning of New York's obscenity statute. See Lockhart and McClure, supra, at pp. 58, et seq.
Because of the grant of leave to appeal from the trial court's interlocutory orders, these proceedings are now before us on sparse records which do not even contain the material alleged by the State to be obscene. It seems to us that the preferable course would have been to have denied the leave, thus deferring appellate consideration until after trial; if the trial resulted in acquittal there would have been no occasion for review and, if conviction resulted, the appeal would have been on the basis of complete records enabling fair judicial treatment of the concrete rather than the abstract. See United States v. International Union, 352 U.S. 567, 590,
77 S. Ct. 529, 1 L. Ed. 2 d 563, 577 (1957); cf. Brandeis, J. in Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 341, 56 S. Ct. 466, 80 L. Ed. 688, 707 (1936); Frankfurter, J. in Poe v. Ullman, 81 S. Ct. 1752 (1961). The appellants have not dealt in any form with the definitions of obscenity which have been suggested in the legal writings; nor have they questioned in anywise the constitutional sufficiency under our State Constitution (or under the Federal Constitution) of a statutory provision that it shall be criminal to knowingly sell (or possess with intent to sell) obscene material. The only points which the appellants have raised before us are (1) that the New Jersey statute is unconstitutional in that it does not embody the word "knowingly" and therefore (so they argue) seeks to declare the obscenity offense without any requirement as to scienter, contrary to Smith v. People of State of California, 361 U.S. 147, 80 S. Ct. 215, 4 L. Ed. 2 d 205 (1959) and (2) that the "without just cause" phrase in the New Jersey statute is too vague on its face and therefore violative of due process requirements within Thornhill v. State of Alabama, 310 U.S. 88, 100, 60 S. Ct. 736, 84 L. Ed. 1093, 1101 (1940) and later Supreme Court cases. See Winters v. People of State of New York, 333 U.S. 507, 515, 68 S. Ct. 665, 92 L. Ed. 840, 849 (1948); United States v. Cardiff, 344 U.S. 174, 176, 73 S. Ct. 189, 97 L. Ed. 200, 202 (1952). We shall deal with the specific points raised by the appellants but shall not discuss or pass on related issues which were neither briefed nor argued by any of the parties. See Oliver v. Russo, 29 N.J. 418, 420 (1959); Higgins v. Krogman, 142 N.J. Eq. 691, 694 (E. & A. 1948).
In People v. Smith, 161 Cal. App. 2 d Supp. 860, 327 P. 2 d 636 (1958), the California Superior Court upheld the criminal conviction of a bookseller for violation of a Los Angeles City ordinance which made it unlawful for any person to have in his possession any obscene ...