The opinion
Orth, J.,
dissenting:
I am not able to join the opinion of the Court. The material which the majority find not to be obscene I feel is hard-core pornography. It is on facing pages 18 and 19 of the Washington Free Press, vol. 3, no. 5, June 1 *231 through June 15, 1969. The text and cartoons there appearing have been described in the majority opinion but the printed word cannot give the full flavor of them. They are crudely drawn but graphic in depicting what they intend to convey. The material is an exhortation to do the things illustrated, ending with the command, “Stew It, Shoe It, Even Chew it If Ya Want, But . . . DO IT! * * * The End . . . Now Go To It.” The things implored to be done, appropriately illustrated, include “Shit on it”, “Tit on it,” “Fuck it”, “Suck it”, “Yank it”, “Crank it”, “Flog it”, “Sog it”, “Clog it”, “Eat it”, “Heat it”, “Beat it”. The drawing under “Tit on it” is a close-up of one enormous female breast with a finger tickling an erect nipple. “Yank it” is illustrated by depicting the lower part of a gross stomach, a penis, scrotum and pubic hair. The penis, outsize both in length and diameter and in full erection, is in the grasp of a hand of another person and is being squeezed. Under “Crank it” there appears what seems to be the same gross stomach, penis, scrotum and pubic hair with the same hand twisting or rotating the penis. “Flog it” shows a naked female secured by a chain running from a collar around her neck to a ring in the wall. Her hands are apparently bound behind her back. She has massive upstanding breasts with large erect nipples. A hand holding a whip of a cat-o-nine-tails type protrudes in a corner of the frame in a position indicating it is being used to stimulate the woman's genitalia. “Sog it” is illustrated by a debilitated, emaciated, grotesque male fondling his large and thick but limp penis. “Clog it” shows in profile the middle torso, from the lower stomach to the upper thigh, of a man standing upright, clearly depicting his scrotum and pubic hair. His penis, extremely large in diameter, is thrust its entire length in the mouth of a woman. One of her large breasts can be seen. It is bare and marked by an upstanding teat. Her face is distorted by the penis thrust down her throat. Her heavy lidded eyes are crossed, and there are droplets of what may be perspiration or semen flying in the air around her face. “Eat it” is illustrated by a drawing of *232 the upper torso of a man. He is standing between a woman’s wide spread legs. Her genitalia are fully exposed and his hands are stretching open her vulva. He is licking his lips and on his face is an expression of pleasurable anticipation. There is a discharge popping out of the woman’s genitalia. The subject “Heat it” is an obese woman, naked, distinguished like the others by massive upstanding breasts with large paps. She is seated, her head thrown back, her eyes closed, her mouth open, her tongue lolling. What appears to be clouds of steam and drops of perspiration surround her head. A naked man is kneeling at her side. He is holding her left breast in his hand and its nipple is between his bared teeth. “Beat It” features another fat woman, naked except for shoes, bending over from the hips, her large buttocks full face to the viewer. She is looking over her shoulder, a smile on her face. This then, its full scandalous effect somewhat lost in the describing of it, is actually the material which in the “constitutionally — mandated independent, reflective judgment” of the majority is not obscene.
My independent constitutional appraisal of this material leads inevitably and inexorably to the conclusion that it is hard-core pornography. It enjoys all the characteristics of such obscene matter which we discussed in Levin v. State, 1 Md. App. 139, 144-146 , cert. denied, Court of Appeals of Maryland, 247 Md. 740 and Supreme Court of the United States, 389 U. S. 1048 . We summarized the characteristics in Donnerberg v. State, 1 Md. App. 591, 600 . The material here focuses predominantly upon what is sexually morbid, grossly perverse, and bizarre without any artistic merit or scientific purpose of justification. There is no desire to portray the material in pseudo-scientific or “arty” terms. It goes substantially beyond customary limits of candor and deviates from society’s standards of decency in the representation of the matters in which it deals. It is not designed to be a truthful description of the basic realities of life as the individual experiences them but its main purpose is to stimulate erotic response. It has a patent absence of any redeeming *233 social value. It can be recognized by the insult it offers, invariably, to sex and to the human spirit. It speaks for itself and screams for all to hear that it is obscene. Not to hear its screams is to be deaf indeed. I hear them loud and clear.
There has been only one test of obscenity applied by the Court of Appeals and this Court since the opinion in Roth v. United States, 354 U. S. 476 , in which was also decided Alberts v. California. We set it out in Donnenberg v. State, supra, at 598, as we found it established from the definition of obscenity in Roth — “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interests” — as reiterated in Jacobellis v. Ohio, 378 U. S. 184 , elaborated in Ginzburg v. United States, 383 U. S. 463 , adjusted in Mishkin v. New York, 383 U. S. 502 and summarized in A Book Named ‘John Cleland’s Memoirs of a Woman of Pleasure’ v. Attorney General, [the Fanny Hill decision] 383 U. S. 413 . 1 The Supreme Court stated it in Redrup v. New York, 386 U. S. 767 , 770-771:
*234 “(a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex;
(b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters;
(c) the material is utterly without redeeming social value * * *
[T]he three elements must coalesce.”
It is patent that if material falls within what may be considered this Court’s definition of hard-core pornography as set out in Donnenberg, it meets the test of Roth . And I think our definition of hard-core pornography, as it must, “stay[s] within the bounds set by the constitutional criteria of the Roth definition.” Mishkin v. New York, 383 U. S. 502, 507 . 2
For material to be obscene in the constitutional sense, the three elements of the Roth test must be present and *235 coalesce whether or not the material is hard-core pornography. The distinction is that if material is hard-core pornography, no proof other than the viewing of it is required to determine that it is obscene. Donnenberg v. State, supra, at 600.
The majority conclude that the material here is not hard-core pornography. They do so in a summary manner. Although recognizing that “in some instances” proof other than the viewing of the material may be dispensed with, they state that this “evidentiary shortcut” has been permitted “only in dealing with the most flagrant pornography.” I see a distinction with a real difference between their “most flagrant”, which appears to be of their own coinage, and Mr. Justice Stewart’s “easily identifiable” (concurring in Ginzburg v. United States, supra, at 499) or the “clearly identifiable” as used in the opinion of the Court in Redrup , at 770. And while, as the majority point out, such material may be “typically of the ‘black market’ variety- — that sold ‘under the counter’ in the ‘sleazy bookstore’ ”, it is obvious from Mr. Justice Stewart’s elaboration on his concept of this class of material, note 2 supra, that it is not so limited. In any event, I do not appreciate why a deck of “French playing cards” or “the venerable ‘two-by-four’ of schoolboy memory” is “most flagrant” obscenity and the material here is not. The majority seem to be in accord that the matter in Donnenberg, supra and Levin, supra was hard-core pornography. But accepting, arguendo, the majority’s criterion of “most flagrant”, I am unable to understand why the material in those cases was “most flagrant” and the material here is not. In Levin it consisted of photographs of a nude male with his penis in erection; there was no depiction of sexual activity and no textual exhortations as here. In Donnenberg, the photographs suggested, but did not depict, as does the material here, unnatural sexual practices. And while it is clearly evident that the stag movie in Lancaster v. State, 7 Md. App. 602 , was hardcore pornography, it does not necessarily follow that the material here is not.
*236 Although I believe that the strips of drawings in comic book format, here before us, grossly depicting perverted and unnatural sexual activities in an exaggerated fashion, are unquestionably of that distinct and clearly identifiable class into which hard-core pornography falls, I nevertheless accent what is obvious in the circumstances by discussing how the three elements of Roth are to be found from a mere viewing of the material so that no other proof of its obscenity is required.
The appeal to prurient interest requirement must be construed in the light of the test of obscenity as stated in Roth : “whether to the average person, applying contemporary community standards, the dominant theme of the material as a whole appeals to prurient interest.” 354 U. S. at 489 . This does not mean, as I see it, that the material must appeal to the prurient of the average person in the context of “being attractive” or “interesting”. It would seem that the average person would ordinarily find obscenity repulsive and revolting so that it would not appeal to him in that sense. Rather, “appeal” in the constitutional obscenity context is used in the sense of “an urgent request, entreaty or supplication”, 3 as, for example, as used in an “appeal” for funds. The prurient interest requirement under the Roth test is met if the average person finds, applying contemporary community standards, that the dominant theme of the material taken as a whole seeks to excite lustful thoughts or lascivious longings and, thus appeals to prurient interest, of all it is likely to reach. And it also may be directed to a clearly defined deviant sexual group rather than the public at large. Mishkin v. New York, supra, at 508. The material before us exhorts the commission of unnatural or perverted sexual practices. Its announced theme is an appeal to prurient interest. “Ya gotta tit on it”; “you ought to yank it and crank it”; “you can always flog it, sog it, clog it”; “hey, listen, you can eat it, heat it and beat it.” *237 And as pointed out the meaning of these terms is graphically illustrated. And then it commands, “Do it — now go to it”. It seeks to arouse an obsessive interest in improper matters of sexual nature. It is material having a tendency to excite lascivious and lustful thoughts. “Prurient interest may be excited or appealed to” by it. See Roth, supra, note 20 , 354 U. S. at 487 . It graphically depicts perverted sexual acts involving several participants in scenes of orgy-like character. It is apparent from the mere viewing of it, that it is an appeal, in the sense of a call, an entreaty, a supplication, to prurient interest of all those it is likely to reach.
The material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters. I need no “expert” to lead me to a conclusion that the representation of sexual matters by the material here affronts any and all contemporary community standards. It is clearly beyond customary limits of candor and deviates from society’s standards of decency. A community cannot, where liberty of speech and press are concerned, condemn that which it generally tolerates. But here the community condemns what the cartoons depict and advocate. The commission of unnatural or perverted sexual practices is unlawful. Code, Art. 27, § 554. Expert testimony is not required to prove that a community finds unacceptable sexual acts which it declares a crime and prosecutes for their commission.
The material screams that it is utterly without redeeming social value. There is no pretense of artistic value in its presentation. It is not offered as a work of art or a literary endeavor or an educational sex manual. It lacks even the purported criticism of a public official that the drawing, considered with the surrounding text, indicated in Dillingham v. State, supra. The majority find that the publication before us “is packed with political comment and with vigorously urged political views.” They feel that because the views are unpopular and outrageous they are socially valuable. They quote Terminiello v. Chicago, 337 *238 U. S. 1 , 4 to the effect that a function of free speech under our system of government is to invite dispute. With this I have no quarrel. But it provides no excuse for the obscenity here. I agree that with the exception of the material on pages 18 and 19, the publication here is not obscene. But to sanctify the cartoon material on the nebulous predicate that it is political criticism, or an expression of “dissent, rebellion, revolution, iconoclasm, hedonism, libertarianism, anti-authoritarianism and anti-establishment protest”, so that its dominant character is “polemic rather than prurient”, is to dignify it without reason and to read into it what is simply not there. The other parts of the publication, in the circumstances, do not purify the obscene material. I cannot find that this hard-core pornography is so integral a part of the publication as a whole as to preclude appellant’s conviction of distributing obscene matter. I see no such reasonable connection between the obscene matter and the theme of the balance of the paper, whatever it may be, sufficient to purge the cartoon material of its obscene character. In other words, hard-core pornography may not be constitutionally distributed merely by making it part of a publication which may be otherwise constitutionally proper. The material here cannot conceivably be characterized as embodying communication of ideas or artistic values inviolate under the 1st Amendment unless we come to the rule that a State is utterly without power to suppress, control or punish the distribution of any matter upon the ground of its “obscenity”. This Court has not indicated a disposition to adopt such a rule and only two members of the Supreme Court have consistently adhered to such a rule. 4
Appellant was convicted at a bench trial in the Circuit Court for Prince George’s County on a charge that he “did unlawfully and knowingly sell and have in his possession with intent to sell lewd, obscene and indecent *239 newspapers” on 23 June 1969. 5 It is not disputed that evidence which was entered by stipulation was sufficient to show that appellant sold and possessed with intent to sell the newpaper involved, the Washington Free Press, vol. 3, no. 5, June 1 through June 15, 1969. The newspaper was admitted in evidence without objection. Having found the matter to be obscene, the next inquiry is whether it was established that appellant had knowledge of the character and content of the subject matter of the paper. If this knowledge was not proved, appellant did not “knowingly” sell or possess the paper, and scienter, as a necessary element of the offense, would be lacking. The majority reach this point only after determining that the paper was not obscene, and thus need not have reached it at all. But after deciding that the conviction must be reversed because the publication was constitutionally protected by freedom of speech, they declare: “Even were the material before us obscene by any test, however, the conviction of appellant here would have to be reversed because of the utter failure of the State to show any evidence of scienter on his part as required by Smith v. California, [ 361 U. S. 147 ].” What Smith v. California held was that a law which eliminated all mental elements from the crime was unconstitutional, the ordinance in question there opening too far the door barring federal and state intrusion into the area of freedom of speech and press because it made a crime the mere possession in a bookstore of an obscene book with no element of scienter required. Pointing out that the holding in Roth , did not *240 recognize any state power to restrict the dissemination of books which are not obscene, the Court thought that such an “ordinance’s strict liability feature would tend seriously to have that effect by penalizing booksellers, even though they had not the slightest notice of the character of the books they sold.” (Emphasis added). At 152. But it said, at 154:
“We need not and most definitely do not pass today on what sort of mental element is requisite to a constitutionally permissible prosecution of a bookseller for carrying an obscene book in stock; whether honest mistake as to whether its contents in fact constituted obscenity need be an excuse; whether there might be circumstances under which the State constitutionally might require that a bookseller investigate further, or might put on him the burden of explaining why he did not, and what such circumstances might be.”
Thus, although Smith determined that a defendant criminally charged with purveying obscene material must be shown to have had some kind of knowledge of the character of such material, the quality of that knowledge was not defined. The Supreme Court had the opportunity to define it in Redrup v. New York, 386 U. S. 767 , for the point was squarely before it in that case and in one of the other two cases therein considered, Austin v. Kentucky, but it did not do so, disposing of the cases on the ground that the materials could not constitutionally be adjudged obscene by the States — an issue two of the justices in dissent thought had been deliberately excluded from review. The majority complain that I take too narrow a view of Smith . Apparently they want Smith construed so as to say what they would like it to say, but the fact remains that it expressly did not define scienter. The majority then turn to Mishkin v. New York, supra, decided before Redrup . But, as they recognize, the Court in Mishkin also stated that its ruling made “it unneces *241 sary for us to define today ‘what sort of mental element is requisite to a constitutionally permissible prosecution.’ ” 383 U. S. at 511. However, the Mishkin opinion found that the argument that there was insufficient proof of scienter was without merit and listed the facts in that case which showed scienter. This by no means precludes other and different facts in other cases being sufficient to prove scienter. In short, proof of scienter is not required to be within the factual posture of Mishkin .
The statute here meets the test of Smith for it requires that the act proscribed be committed “knowingly”. Code, Art. 27, §§ 417 (a) and 418. I do not feel that it is necessary that a person know that material is obscene in law. If he had knowledge of character and content of the subject matter and thought it not constitutionally obscene, he would still be guilty if it were found obscene on judicial investigation. And I do not think that actual knowledge of the nature and content is constitutionally required ; a person may have constructive knowledge; Appellant claimed he did not read the particular issue of the newspaper involved. But he knew the character of the Washington Free Press, so much so in fact that he did not sell it in his Ocean City Shop after discussion with Worcester County authorities. He knew it had run afoul of the law in Montgomery County, and he went so far as to check with the authorities in Prince George’s County, but not as to the issue here involved. The Assistant State’s Attorney to whom he talked made clear in his testimony on appellant’s behalf that what he conveyed to appellant was that one issue might be all right but another obscene. “* * * I did convey to Mr. Woodruff that you must look at each issue individually, but that as a general proposition it would not be the position that the mere existence of this or any newspaper would be a crime. * * * As a policy matter the Washington Free Press would not be considered in and of itself an illegal newspaper, that it would have to be considered on a one by one basis * * At another point in his testimony he said, “The question that was asked of me by Mr. Wood- *242 ruff was would as a general policy there be the same type of situation in Prince George’s County as there had been in Montgomery County relating to the Washington Free Press. I told Mr. Woodruff in my opinion there would not, but that it would not be possible to pass judgment in the future as to the legality of something that hadn’t yet come out. I think that Mr. Woodruff understood that as far as the one to one idea.” The majority recognize that “[pjroof of knowledge on the part of an entrepreneur of the merchandise he carries may be indirect, as well as direct. The knowledge may be general, as well as specific.” But they conclude, in the face of the record here, that “there was simply no evidence, direct or indirect, of scienter whatsoever.” With what information appellant had about the Washington Free Press and the notice from his discussions with the Assistant State’s Attorney for Prince George’s County, it was no legal excuse that he had not read this particular issue. I would find in the circumstances that he had constructive knowledge of the nature and content of the specific issue here involved. He cannot claim lack of knowledge by closing his eyes to what was there to see when he had reasonable cause to look. Greenway v. State, 8 Md. App. 194, 201-202 . See Carter v. State, 10 Md. App. 50, 53-56 ; Donnenberg, et al. v. State, 1 Md. App. 591, 604 . I think a holding that the knowledge requirement of the statute was met by the evidence adduced would not be constitutionally precluded and would be otherwise proper. I would so hold.
Since by my independent constitutional judgment on the facts there was evidence sufficient in law to prove the corpus delicti of the crime charged and the criminal agency of appellant, he stands properly convicted. 6
*243 The case was decided below on the sole issue of hardcore pornography vel non. 7 The majority do not share the lower court’s view that the material was hard-core pornography but they reach this conclusion almost as an after thought. They first discuss whether the material was obscene under the Roth test as if hard-core pornography had not even been an issue below, and complaining that the State had produced no expert testimony, make an independent constitutional judgment that the material was not obscene. “[N]ot only do not all three of the neces *244 sary elements coalesce, but none of the three even stands alone.” They reverse the judgment. And they provide for a new trial on remand, “[s]ince it is possible that the State may be able to produce expert testimony, as indeed they indicated they would if the judge’s finding that the material was hard-core pornography had not foreclosed the effort, to prove the three elements of obscenity under Roth * * *.” I find the grant of a new trial incongruous with their opinion and, in any event, they leave the lower court without guidelines for retrial. For example, the majority do not indicate what contemporary community standard- they will accept, whether national, state, local or otherwise. So the State does not know what community’s contemporary standard it shall attempt to prove and the trial court does not know what community’s contemporary standard it may properly find controlling. Nor do the majority suggest what type of evidence could overcome their specific finding that “in looking at the entire newspaper, the redemptive social value speaks for itself.” And they expressly hold: “Not even the cartoon taken as a whole, far less the entire newspaper taken as a whole, is wholly devoid of redeeming social value.” I am hard pressed to imagine how the “expert testimony” they call for will be able, in the face of such a finding and holding, to change their independent constitutional judgment that the publication has redeeming social value to an independent constitutional judgment that it is utterly without redeeming social value.
Two matters in the majority opinion as it relates to “expert testimony” give me pause. I am in disagreement with the majority as to what qualifies a person as an expert witness with regard to the three elements of the Roth test and I think that the established law is not in accord with their view of the function of this Court in passing upon the lower court’s determination whether or not a witness is qualified as an expert in the field of obscenity. The majority feel that the refusals to accept the testimony of Mrs. Ann Sweat and James Harold Hamilton were “abuses of the [trial] court’s discretion.” Ordinarily *245 whether a witness is qualified to express an opinion on the subject on which he is called to testify is a matter of the trial court to pass upon in the first instance and the court’s ruling will not be reversed unless it is shown to have been based upon an error of law or to have been the result of an abuse of judicial discretion. Yudkin v. State, 229 Md. 223 . But I point out: “In obscenity litigation, however, this court will be required to scrutinize more closely the rulings of the trial judge with respect of the qualifications and competency of witnesses offered as experts. * * * The trial judge must be mindful, therefore, of our obligation to assess his rulings in this regard in light of their objective correctness instead, merely, of determining whether he has, or has not, abused his discretion or that he is in error as to the law.” Hewitt v. Board of Censors, supra, at 582-583. That persons who qualify as experts under Hewitt are hard to come by is shown by the detailed discussion in the Hewitt opinion of the witnesses offered as experts who testified in that case. And see Sanza v. Board of Censors, supra, in which of the numerous witnesses produced by the Board, the Court of Appeals found only two qualified as experts in their particular field under the Hewitt requirements.
In assessing the trial judge on his objective correctness in refusing to permit Mrs. Sweat to testify I am not satisfied that under the Hewitt requirements, she was qualified as an expert on redemptive literary value and community standards, and find no error in her rejection by the court. Her educational background and work experience — she had been in library work for 8 years and was the “assistant coordinator of adult services for the Prince George’s County Memorial Library”, selecting adult materials for the library System 8 — did not in themselves make her an expert in the fields for which she was of *246 fered. She said that in making her selections she took into consideration “such things as the current community standards for morality and sexual practices and so forth.” But when asked why she thought she had a familiarity with “community standards in the presentation of sexual matters” she said she felt .“it is a part of the total community” and that it was “the responsibility of the librarian to find out what is the nature of the community in which she is employed.” Asked how she apprised herself of the contemporary community standards with regard to sexual matters specifically, she replied, “I think, perhaps, it is just more contact with people.” This generality did not, in my opinion, sufficiently establish her qualifications.
Hamilton was offered as an expert on “the community standards of literary social values.” He was a branch librarian at the Suitland Branch Library of the Prince George’s County Memorial Library System. He received a Master’s degree in library science in 1968. He had read a newsletter, published by the American Library Association, which “is devoted entirely to intellectual freedom concern across the nation. * * * Censorship, questions of censorship, or perhaps, librarians who have been in difficulty because of something they did select and put in their library. There have been some such cases but not a great many, but some.” But when he was asked if he knew “the average community standard with regard to the presentation of sexual matters”, he said, “No; I wouldn’t want to say that I knew what the average man thought in regard to those matters.” He was excused. Defense counsel observed that the witness had been offered “for his criticism of the material, for the social value, specifically on the test dealing with any redeeming social value in the publication.” The majority opinion does not state why he was offered but observes that he, as well as Mrs. Sweat, might have thrown some light on contemporary community standards. Hamilton said he could not. I find no error in the court’s refusal to permit him to testify as an expert.
*247 I note that neither the trial judge in his consideration of the evidence, nor this Court in its independent appraisal of the facts, is required to accept the opinions and conclusions of the two witnesses who testified as experts on the question of redeeming social value, even if they may be properly considered experts in that field. Nor do I find error requiring reversal in the refusal of the trial court to admit into evidence other publications purchased in Prince George’s County. That they were offered for sale in the community did not mute the scream of the hard-core pornography in the publication here at issue. Nor did the mere offering of them for sale, perhaps illegally, absent proof of how many were sold and to whom, tend to establish that the matters they presented, even if shown to be comparable to the material at hand, represented the local contemporary community standard, if that is the standard to be applied, as to sexual matters.
It may well be that “the price of freedom * * * of speech or of the press is that we must put up with, and even pay for, a good deal of rubbish.” The material in Bennett v. State, 11 Md. App. 248 , provides an example. The material here does not. I do not believe that the 1st Amendment requires that the public put up with the fulsome and noisome rubbish before us. It is hardcore pornography and I would affirm the judgment.
Judge Anderson and Judge Powers each authorizes me to state that he joins this dissent.
. We would now add: “and as emasculated in Stanley v. Georgia, 394 U. S. 557 .” Prior to Stanley the opinions were within the context of the unequivocal holding in Roth , at 485, that “* * * obscenity is not within the area of constitutionally protected speech or press.” Stanley seemed to place obscenity squarely within the protection of the 1st and 14th Amendments by holding, at 568, that those Amendments prohibit making mere private possession of obscene material a crime. But it asserted that Roth and the cases following were not impaired by its holding. Emboldened by this assurance of the continuing validity of Roth and the cases following, I am constrained to agree that we are to continue the test under Roth-Alberts for want of something better approved by the Supreme Court. See concurring opinion in Dillingham v. State, 9 Md. App. 669, 700-719 .
We note, however, that of late the Supreme Court has taken to rely on Redrup v. New York, 386 U. S. 767 , in summarily setting aside state findings that material was constitutionally obscene, but not, of course, without concurring and dissenting opinions. See, for example, Cain v. Kentucky, 90 S. Ct. 1110 ; Walker v. Ohio, 90 S. Ct. 1884 ; Hoyt v. Minnesota, 90 S. Ct. 2241 . Redru/p recognized four disparate views of the individual justices or combinations of justice's as to the constitutional question of obscenity and set them out at 770-771. The Court held at 771:
“Whichever of these constitutional views is brought to bear upon the cases before us, it is clear that the judgments cannot stand.”
. I note that in his concurring opinion in Jacobellis v. Ohio, supra, Mr. Justice Stewart concluded that under the 1st and 14th Amendments criminal laws in the area of obscenity were constitutionally limited to hard-core pornography. He did not attempt to define it but said: “* * * I know it when I see it * * 378 U. S. at 197 . However, in his dissenting opinion in Ginzburg v. United States, supra, he observed: “There does exist a distinct and easily identifiable class of material in which all of these elements [of the Both test] coalesce.” 383 U. S. at 499. This material, he said, was hard-core pornography, and “in order to prevent any possible misunderstanding”, he set out in note 3 at 499 a description “borrowed from the Solicitor General’s brief, of the kind of thing to which I have reference.” Note 3 reads:
“ * * * Such materials include photographs, both still and motion picture, with no pretense of artistic value, graphically depicting acts of sexual intercourse, including various acts of sodomy and sadism, and sometimes involving several participants in scenes of orgy-like character. They also include strips of drawings in comicbook format grossly depicting similar activities in an exaggerated fashion. There are, in addition, pamphlets and booklets, 'sometimes with photographic illustrations, verbally describing such activities in a bizarre manner with no attempt whatsoever to afford portrayals of character or situation and with no pretense to literary value. All of this material * * * cannot conceivably be characterized as embodying communication of ideas or artistic values inviolate under the First Amendment. * *
. See The American Heritage Dictionary of the English Language (1969).
. See Ginzburg v. United States, 383 U. S. 463, 476, 482 (dissenting opinions); Jacobellis v. Ohio, 378 U. S. 184, 196 (concurring opinion); Roth v. United States, 354 U. S. 476, 508 (dissenting opinion).
. It seems from the language used that the count of the indictment charging the offense was drawn under § 418 (a), Art. 27 of the Maryland Code as it existed prior to its repeal by ch. 394, Acts 1967. But the language was sufficient to charge the offense proscribed by the new § 418 enacted in lieu thereof by ch. 394 and applicable to acts occurring on and after 1 June 1967. New § 418 provides inter alia: “Every person who knowingly * * * in this State * * * distributes * * * or has in his possession with intent to distribute * * * any obscene matter is guilty of a misdemeanor.” By § 417 “matter” includes “newspaper”, subsection (1); “distribute” meáns to transfer possession of, whether with or without consideration, subsection (3); and “knowingly” means having knowledge of the character and content of the subject matter, subsection (4).
. Ordinarily when an action has been tried by the lower court without a jury we may not set aside its judgment on the evidence unless clearly erroneous, giving due regard to the opportunity of the lower court to judge the credibility of the witnesses. Maryland Rule 1086. Both the credibility of the witness and the weight of the evidence are matters for the trier of fact. Rasnick v. State, 7 Md. App. 564; Taylor v. State, 7 Md. App. 558 . We apply these rules in *243 reviewing cases involving convictions for offenses ranging from the felony of murder in the first degree to the misdemeanor of disorderly conduct. But in Jacobellis, supra, the Brennan opinion expressly rejected the contention that the determination whether material was obscene “can be treated as a purely factual judgment on which a jury’s verdict [or a court’s verdict when it is the trier of fact’] is all but conclusive, or that in any event the decision can be left essentially to state or lower federal courts with [the Supreme Court] exercising only a limited review such as that needed to determine whether the ruling below is supported by ‘sufficient evidence’. * * * Since it is only ‘obscenity’ that is excluded from the constitutional protection, the question whether a particular work is obscene necessarily implicates an issue of constitutional law. * * * Our duty admits of no ‘substitute for facing up to the tough individual problems of constitutional judgment involved in every obscenity case.’ ” 378 U. S. at 187-188 . The opinion reaffirmed the principle that in obscenity cases the Court had to make an independent constitutional judgment on the facts of the case as to whether the material involved is constitutionally protected. Id., at 190 . The Court of Appeals and this Court have assumed this obligation. Sanza v. Board of Censors, 245 Md. 319 ; Donnenberg v. State, supra. See concurring opinion in Dillingham v. State, supra, 710-714.
. The State came to trial prepared to prove, first that the material was hard-core pornography and second, were it to fail in that, to establish that the material was obscene under the RothAlberts test even though not hard-core. The Assistant State’s Attorney told the court:
“[I]t is the State’s position * * * that the material on those pages [pages 18 and 19 of the newspaper] is hard-core pornography * * * and therefore, requiring * * ®, no proof other than the viewing by the court. However, if the court decides that it does not meet the standard of hard-core pornography the State will proceed with witnesses in order to meet the Roth-Alberts standards of regular pornography.”
The lower court considered the newspaper which was in evidence. No other evidence was adduced by the State in its case in chief. The court found that the material constituted a prima facie showing of obscenity. Appellant put on his case. The judge held the material to be hard-core pornography and found appellant guilty.
. She said the “Prince George’s County book selections policy was the basic guideline in selecting materials.” She “thought” that “it generally states that the library is an. information center for the community, that we provide materials on both sides of controversial questions, that we make available material to the public, serve as a communication center for the public.”