Conford, Freund and Sullivan. The opinion of the court was delivered by Conford, S.j.a.d.
Defendant was charged and convicted in the Newark Municipal Court of violating section 20.19 of the Revised Ordinances of the City of Newark which provides, inter alia , that "no person shall import * * * any * * * thing which is obscene, indecent or impure, or manifestly tends to corrupt the morals of youth." The conviction was affirmed on appeal and trial de novo in the Essex County Court.
It appears that at the trial in the County Court it was established that some 37 photographs of male nudes, which were introduced into evidence, were found in defendant's possession at his home. He testified he had arranged to have these sent to him from various places outside Newark, including England, Washington, D.C., and Lakewood, N.J. Defendant is a mature male, having been employed by the Federal Government for over 30 years. There is no proof that he exhibited these photographs to anyone else. He testified he did not.
After the trial in the County Court the photographic exhibits were taken by a member of the staff of the Sheriff of Essex County, who was the prosecution witness against defendant, and turned over to the United States Postal authorities. The latter lost all of them, seemingly irretrievably. However, exact duplicates of a single one of these photographs have since been discovered and submitted to the court, and we have heretofore ruled in this matter on motion that the validity of the conviction will have to stand or fall upon the basis of this one exhibit since there can be no substitute for
appellate appraisal of the identical material impugned where the charge is obscenity. See State v. Hudson County News Co. , 41 N.J. 247, 257 (1963).
Defendant attacks the conviction on a number of separate grounds, but we find one of them dispositive in his favor and therefore do not discuss the others. This is that the exhibit before us is not obscene, within the most recent authoritative judicial expressions concerning the obscenity of pictorial representations.
The exhibit is a front-view photograph of a nude boy of about 15 years of age, showing his body from about half-way down his thighs to the top of his head. He stands, arms akimbo, just as he might appear in a club-house shower room. His genitalia are no more concealed or accentuated than any other part of his body caught by the camera lens. The opinion of the County Court holding the exhibits obscene states: "In my view, the photographs tend to stress the genital organs with the apparent intent of appealing to the prurient interests of homosexuals." It may be that other photographs in the group of exhibits admitted in evidence warranted the conclusion stated. The surviving exhibit remaining before us does not, in our judgment.
In any event, a determination of this prosecution in favor of the defendant is strongly indicated by the opinion of Mr. Justice Harlan, rendered for himself and Mr. Justice Stewart, in Manual Enterprises v. Day , 370 U.S. 478, 479-495, 82 S. Ct. 1432, 8 L. Ed. 2 d 639 (1962). That opinion expands upon Roth v. United States , 354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2 d 1498 (1957), in defining the criteria of obscenity as against First Amendment standards of constitutionality. No other member of the court in Manual Enterprises expressly disagreed with Mr. Justice Harlan's views in the regard mentioned, and they have been specifically accepted by our own Supreme Court in State v. Hudson County News Co., supra (41 N.J. , at pp. 255, 256).
Manual Enterprises involved the mailability of magazines consisting largely of photographs of nude or near-nude male
models, within an act of Congress prohibiting the mailing of obscene material. In setting aside an administrative order barring the publications from the mails as obscene, Justices Harlan and Stewart held that a determination of obscenity required a finding of the concurrency of two characteristics of the impugned material: (1) patent (or "self-demonstrating") offensiveness or indecency; and (2) dominant theme to average person, applying contemporary community standards, of appealing to a prurient interest. Conceding, apparently, that the peculiar nature of the photographs there before the court*fn1 was such as might appeal to the prurient interest of male homosexuals, a readership to which the magazines containing them were clearly addressed, the Justices nevertheless held the material not obscene because not patently offensive or indecent in terms of minimal national standards of decency. The photographs were held no more objectionable "than many portrayals of the female nude that society tolerates" (370 U.S. , at p. 490, 82 S. Ct. , at p. 1438). It was pointed out that much pictorial material in artistic and scientific works might appeal to the prurient interest of viewers or readers but yet not be offensive to the point of self-demonstrating indecency (370 U.S. , at pp. 487, 488, 82 S. Ct. , at p. 1432). Therefore the magazines in question were found not obscene although "dismally unpleasant, uncouth and tawdry."
In respect of the segment of society on which the effect of impugned material should be judged for offensiveness and prurient appeal, within the Roth-Manual Enterprises criteria of obscenity, the New Jersey Supreme Court in State v. Hudson County News Co., supra , after thorough review of the authorities, approved the frame of reference of "the average member of society" rather ...