Price, Sullivan and Lewis. The opinion of the court was delivered by Sullivan, J.A.D.
Defendants appeal from judgments of conviction for the possession and sale of obscene magazines. The judgments were based on five indictments, four of which charged defendants with sale and distribution, and the fifth charged defendants with possession with intent to utter. There were six magazines involved in the judgments of conviction.
The applicable statute is N.J.S. 2A:115-2:
"Any person who, without just cause, utters or exposes to the view or hearing of another, or possesses with intent to utter or expose to the view or hearing of another, any obscene or indecent book, publication, pamphlet, picture, * * * or any person who shall sell, * * * or distribute or possess with intent to sell, * * * any obscene or indecent book, publication, pamphlet, picture * * * is guilty of a misdemeanor."
It is initially contended that this statute, under which defendants were indicted and convicted, is unconstitutional
because the statutory phrase "obscene or indecent" is vague and indefinite and lacking in proper standards. This, say defendants, is in violation of the due process clauses in the United States and New Jersey Constitutions.
Such argument lacks merit. In Roth v. United States , 354 U.S. 476, 1 L. Ed. 2d 1498, 77 S. Ct. 1304 (1957), the Supreme Court of the United States held that the words "obscene, lewd, lascivious, or filthy * * * or other publication of an indecent character," as used in the federal obscenity statute, and the words "obscene or indecent" as used in the California Penal Code, when measured by common understanding and practice, gave adequate warning of the conduct proscribed, and marked boundaries sufficiently distinct for judges and juries fairly to administer the law.
Defendants next contend that the magazines in question are not obscene. They concede that obscenity, as such, is unprotected under the First and Fourteenth Amendments to the United States Constitution, Roth, supra , and N.J. Const., Art. I, par. 6, Adams Theatre Co. v. Keenan , 12 N.J. 267 (1953). However, defendants say that the only workable definition for criminal obscenity is "hard core pornography," and it is this type of obscenity which is proscribed by our statute and which is outside the constitutional protection afforded speech and press. Defendants point out that this interpretation of obscenity has been adopted in several of our states. People v. Richmond County News, Inc. , 9 N.Y. 2d 578, 216 N.Y.S. 2d 369, 175 N.E. 2d 681 (Ct. App. 1961); Attorney General v. The Book Named "Tropic of Cancer," Mass. , 184 N.E. 2d 328 (Sup. Jud. Ct. 1962). Contra, Monfred v. State , 226 Md. 312, 173 A.2d 173 (Ct. App. 1961). Cf. State v. Hudson County News Co. , 75 N.J. Super. 363 (Cty. Ct. 1962).
We do not agree that the only workable definition for criminal obscenity is "hard core pornography." Obscenity and pornography are synonymous terms. The addition of the adjectival phrase "hard core" merely indicates a certain type of obscenity. Accordingly, we do not adopt the holding in
State v. Hudson County News Co. , 75 N.J. Super., supra , at p. 375, that N.J.S. 2A:115-2, the statute here involved, must be interpreted to include within its prohibitions only those materials which may be regarded as "hard core obscenity or pornography and no more."
It is unquestioned that the Federal or a State Government may limit the meaning of obscenity, so called, to "hard core pornography." In New Jersey, however, our Supreme Court, in dealing with the phrase "lewd and indecent," established the test, "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 ...