Williamson

Defendant was convicted of violating section 311, subdivision 3 of the Penal Code (selling an obscene book). The case comes to this court on the certification of the Appellate Department of the Los Angeles County Superior Court.

The alleged offense was committed on May 12, 1961. Section 311 provides that “Every person who wilfully and lewdly . . . 3. . . . sells, distributes, keeps for sale, or exhibits any obscene or indecent writing, paper, or book; ... 6. ... is guilty of a misdemeanor.’’ Following a jury trial in the Municipal Court for the Los Cerritos Judicial District, defendant was convicted. The appellate department reversed the judgment of conviction on the theory that the court had erroneously and prejudicially instructed the jury with respect to the definition of obscenity.

The defendant contends that “as a matter of law and fact, the book, Fear of Incest, is constitutionally protected expression’’; that it is protected by the freedoms of speech and press. This thesis is based upon the premise that the book is not obscene under a proper definition of that term for it has been held that "[o]bscenity is not protected by the Constitution.” (Aday v. Superior Court, 55…