all the nouns. For example, it was an offense to distribute or exhibit an obscene picture, even though, literally, distribution and exhibition seemed to be offenses only when the materials distributed or exhibited were writings, papers, or books (In re Sekuguchi, 123 Cal.App. 537, 11 P.2d 655 (1932)).

Meaning of "Obscene"

The former statute applied to "obscene" or "indecent" matter of specified classes, but there was no statutory definition of either term. Most of the reported California cases dealing with this statute came from the Appellate Department of the Los Angeles Superior Court. That court stated that a book is obsecene "if it has a substantial tendency to deprave or corrupt its readers by inciting lascivious thoughts or arousing lustful desire" (People v. Wepplò, 78 Cal.App.2d Supp. 959, 178 P.2d 853 (1947)), a definition which the United States Supreme Court in Roth v. United States, 354 U. S. 476, 1 L.Ed.2d 1498 (1957), the case in which the court first directly held that obscene matter may constitutionally be banned, found satisfactory.

The new law applies generally to "obscene matter," and provides (Pen. C. sec. 311, subd. (a)):

'Obscene' means that [1] to the average person, applying contemporary standards, the predominant appeal of the matter, taken as a whole, is to prurient interest, [2] i.e., a shameful or morbid interest in nudity, sex, excretion, which goes substantially beyond customary limits of candor in description or representation of such matters [3] and is matter which is utterly without redeeming social importance.

Part 1 of this provision is a definition of obscene found in the Roth case, above, and approved by the United States Supreme Court, except that there is missing a specific requirement that the standards be "community" standards. This omission is probably not of great practical significance. Whether or not the instructions to the jury refer to the "community," and whether "community" means city, county, state, or nation, the jury will presumably tend to reflect the attitudes prevalent in the locality in which it sits. In any eyent, it appears that the United States Supreme Court, and. other appellate courts, will, in deciding an obscenity case, make an independent determination (see One, Inc. v. Olesen,

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+355 U. S. 371, 2 L.Ed.2d 352 (1958); Sunshine Book Co. v. Summerfield, 355 U. S. 372, 2 L.Ed.2d 352 (1958); Grove Press, Inc. v. Christenberry, 175 F.Supp. 488, 494, (S.D.N.Y. 1959) aff'd. 276 F.2d 433; Commonwealth v. Moniz, 155 N.E.2d 762, 765 (Mass. 1959)). Part 2 of the definition of obscene, i.e., the definition of "prurient interest," is language devised by the American Law Institute for its Model Penal Code (Model Penal Code, sec. 207.10 (2), Tent. Draft No. 6, 1957) and sanctioned by the United States Supreme Court in the Roth

case.

Part 3 of the definition-"and is matter which is utterly without redeeming social importance"-is perhaps the most intriguing portion of the entire law. This language (which doesn't quite fit grammatically with what precedes it) was evidently inspired by this portion of the majority opinion in the Roth case (354 U. S. at pp. 484-5):

All ideas having even the slightest redeeming social importance-unorthodox ideas, controversial ideas, even, ideas hateful to the prevailing climate of opinion-have the full protection of the (free speech and free press) guarantees, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. Thus, the United States Supreme Court took the position that matter which predominantly appeals to prurient interest does not have the slightest redeeming social importance and is not protected matter. Because the language in the statute "is matter which is utterly without redeeming social importance"-is linked to the rest of the definition by "and," the statute literally seems to assume that matter can predominantly appeal to prurient interest yet have redeeming social importance, and thus be protected. This appears to be the understanding of the California Supreme Court. In a case decided before enactment of the new law (Aday v. Superior Court, 55 A.C. 796, 362 P.2d 47 (1961)), in which the court was concerned with probable cause for issuance of a search warrant for alleged obscene matter, it noted that "the literary, educational, scientific, or other social values of a book alleged to be obscene are to be taken into consideration" and went on to say:

[The text of the books involved in the case] is such that an average person, applying contemporary