In re ALBERT J. HARRIS on Habeas Corpus, 56 Cal. 2d 879

McCOMB, J. Petition for a writ of habeas corpus. Petitioner’s salesman was arrested, without a warrant, for selling obscene books in violation of

section 311, subdivision 3, of the Penal Code. Incident to the arrest, virtually all the “books, magazines, writings, publications and papers” in petitioner’s bookstore were seized. Petitioner was thereafter charged in two counts with selling two specific books in violation of

section 311, subdivision 3, of the Penal Code. At his trial all the material which had been seized was introduced into evidence for the purpose of showing “intent or notice.” Petitioner offered evidence that the books sold were not, according to contemporary community standards, obscene. The evidence consisted of expert testimony, comparable writings and pictures adjudged in Los Angeles County to be not obscene, and comparable writings and publications purchased in the community. All the offered evidence was excluded by the trial court.

Petitioner contended before the trial court, and contends here, that he was thus denied due process of law. This is the sole question necessary for us to determine : Was it a denial of due process for the trial court not to allow defendant to prove contemporary community standards? Yes. The standard for judging obscenity adequate to withstand the charge of constitutional infirmity is whether to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest. (Roth v.

United States, 354 U.S. 476, 489 [77 S.Ct. 1304, 1 L.Ed.2d 1498] ; Aday v. Superior Court, 55 Cal.2d 789, 797 [5] [13 Cal.Rptr. 415, 362 P.2d 47] ; cf. Smith v. California, 361 U.S. 147, 165 [80 S.Ct. 215, 4 L.Ed.2d 205] ; Grove Press, Inc. v. Christenberry, 175 F.Supp. 488, 502; Lockhart and McClure, Censorship of Obscenity, 45 Minn.L.Rev. 5, 98; Lockhart and McClure, Literature, the Law of Obscenity, and the Constitution, 38 Minn.L.Rev. 295, 348.) Under the foregoing rule, the trial court’s ruling denied petitioner due process of law.

In view of our conclusions, it is unnecessary to discuss other arguments made by counsel. Petitioner is ordered discharged from custody. Gibson, C. J., Traynor, J., Schauer, J., Peters, J., White, J., and Dooling, J., concurred.