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04/25/78 COMMONWEALTH v. ANTHONY C. MASCOLO (AND A

April 25, 1978

COMMONWEALTH
v.
ANTHONY C. MASCOLO (AND A COMPANION CASE) *FN1



Suffolk. Complaints received and sworn to in the Municipal Court of the City of Boston on April 1, 1976. Upon appeal to the Superior Court the cases were tried before Bennett, J.

Hale, C.j., Keville, & Brown, JJ.

SYLLABUS BY THE COURT

Search and Seizure. Obscenity, Community standard. Constitutional Law, Obscenity. Practice, Criminal, Examination of jurors, Instructions to jury, View, New trial, Appeal to Superior Court. Evidence, Relevancy and materiality.

The opinion of the court was delivered by: Keville

There is no requirement that a magistrate view an allegedly obscene film prior to the issuance of a warrant for its seizure. [269-270]

A search warrant authorizing seizure of a named film and "all records relating to the production, manufacture, distribution or purchase of said film" did not constitute an impermissible general warrant. [270-271]

At the trial of indictments charging possession of an obscene motion picture film with intent to disseminate, there was no error in the denial of the defendants' motion that the jury be drawn from a Statewide venire. [271]

At the trial of indictments charging possession of an obscene motion picture film with intent to distribute, there was no abuse of discretion in denying the defendants' motion to permit defense counsel to question prospective jurors directly where the Judge had adequately questioned prospective jurors concerning possible bias. [272]

At the trial of indictments charging possession of an obscene motion picture film with intent to distribute, there was no merit to the defendants' contention that G. L. c. 272, §§ 29 and 31, are unconstitutionally overbroad or vague. [272]

The right to privacy applicable to certain sex related conduct between consenting adults does not protect commercial display of pornographic films in public theatres. [272-273]

Viewed as a whole, the Judge's charge to the jury in a criminal case was not coercive although it contained certain elements of the charge from Commonwealth v. Tuey, 8 Cush. 1 (1851), and referred to the fact that it was Friday afternoon. [273-276]

At a criminal trial, the Judge's mention of the possibility of an appeal in instructing the jury was not likely to have the effect of reducing the jurors' appreciation of the significance of their verdict. [276-277]

At the trial of indictments charging possession of an obscene motion picture film with intent to distribute, there was no error in the Judge's instructions on the knowledge required for conviction under G. L. c. 272, § 29, or on the subject of obscenity. [277]

At the trial of indictments charging possession of an obscene motion picture film with intent to disseminate, the Judge did not abuse his discretion in admitting in evidence certain business records of the corporate defendant to show the individual defendant's control of the ...


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