Lora, Seidman and Milmed. The opinion of the court was delivered by Seidman, J.A.D.
[155 NJSuper Page 95] In these consolidated matters defendants were indicted for knowingly selling to a person under the age of 18 years, in violation of N.J.S.A. 2A:115-1.8, obscene material as defined in N.J.S.A. 2A:115-1.7. They were found guilty in separate jury trials. Each received a suspended six-month jail sentence and was fined $200. Both appealed.
The basic facts in these cases are virtually identical. On April 9, 1973 a Linden police sergeant had his son enter a number of stores in order to purchase magazines alleged to be obscene for persons under 18. The sergeant observed the purchases and later filed complaints against the sellers, among whom were these defendants, leading to their indictment. His son, 14 years of age at the time, was over six feet in height and weighed more than 180 pounds. Defendants denied seeing the sergeant or his son on the day in question. Neither recalled selling any allegedly obscene magazines to the youth. They did not deny displaying the magazines in question in their stores, nor did they disclaim knowledge of the character and content of the materials sold. They do not raise on appeal the issue of whether the materials were obscene for persons under 18 within the meaning of the statute.
Six points are listed as grounds of appeal, but there are essentially two major contentions. One is that the trial judge erroneously refused to charge the jury, as requested, that if the State failed to prove beyond a reasonable doubt "that the defendant knew the age of the minor, or from his appearance an ordinary prudent man should have ascertained the age of the minor, then the jury must find the defendant not guilty as charged." The other, in various forms, challenges the statute in question as being unconstitutional in that it (1) contravenes the "variable obscenity test for minors, outlined in Ginsberg v. New York: and modified by the present definition of obscenity in Miller v. California "; (2) is vague and overbroad, (3) "violates due process because the scienter requirement is impermissibly broad and burdensome," (4) fails to provide a sufficient guide for law enforcement officials, and (5) defendants "did not have proper notice of that which the statute forbade."
We reject defendants' attack upon the statute substantially for the reasons expressed by Judge Muscatello in his written opinion in the Law Division. See also State v. Siegel , 139 N.J. Super. 373 (Law Div. 1975).
The remaining ground of appeal pertains to the trial judge's denial in both cases of the following request to charge:
If the jury finds as a fact that the defendant did sell to the minor herein on April 9, 1973 certain material that defendant knew was obscene for a person under eighteen years of age and that defendant was aware of the items sold to that defendant [ sic ], but that the State has failed to prove beyond a reasonable doubt that the defendant knew the age of the minor, or from his appearance an ordinary prudent man should have ascertained the age of the minor , then the jury must find the defendant not guilty of the offense as charged. [Emphasis supplied]
The thrust of defendants' argument is that N.J.S.A. 2A:115-1.8 requires that the prosecution prove that appellants had knowledge of the age of the minor, and "[i]n the case before the court it is unquestionable that the jury could have found that the minor involved may have appeared to be well over eighteen years of age on the date of the sale, even though, he was only fourteen." They maintain that the jury should accordingly have been instructed as requested.
The pertinent portion of the charge was as follows:
Now in this case the State must prove beyond a reasonable doubt the following before you can come in if you do at all with a guilty verdict. One. That the defendant knowingly sold S-1 and S-2, they are the two publications in evidence to Thomas Bright, Jr. Two. On April 9, 1973, Thomas Bright, Jr. was under the age of eighteen years. Three. That is S-1 and S-2 are material obscene for persons under the age of eighteen.
The State must prove that Thomas Bright, Jr. was in fact under eighteen. The fact that Thomas Bright, Jr. may have appeared to be eighteen years of age or over is not itself a defense to this charge. * * * *
The convictions here were under N.J.S.A. 2A:115-1.8, which provides that "[a] person who knowingly sells to a person under 18 years of age material obscene for persons under 18, as defined in this act, is guilty of a misdemeanor." Defendants construe the phrase "knowingly sells to ...