Home COMMONWEALTH vs. BERNARD J. DONAHUE.

358 Mass. 803

October 29, 1970

The defendant was convicted on twenty-one complaints charging violations of G. L. c. 272, Section 28A (as appearing in St. 1959, c. 492, Section 2). One complaint charged a sale of a pictorial magazine alleged to be obscene, and twenty complaints charged possession with intent to sell certain other pictorial magazines alleged to be obscene. The complaints were tried before a judge sitting without a jury. The defendant appealed, the case having been made subject to the provisions of G. L. c. 278, Sections 33A-33G. The defendant has raised numerous issues. On the view we take of the case, however, one is dispositive and we shall limit our discussion to that. The magazines involved in this case were of the "girlie" magazine variety. Most featured pictures of nude or seminude women, often focusing on their genitals. A few had pictures of both males and females in various suggestive poses. None of the pictures, however, explicitly portrayed copulation or other sexual congress. As we observed in Commonwealth v. Palladino, ante, 28, 32, recent decisions of the Supreme Court in Redrup v. New York, 386 U.S. 767, Central Magazine Sales, Ltd. v. United States, 389 U.S. 50, Schackman v. California, 388 U.S. 454, and Bloss v. Dykema, 398 U.S. 278 (see Hunt v. Keriakos, 428 F. 2d 606 [1st Cir.]) "extend the protection of the First Amendment to publications . . . which, although depicting male and female nudity in sexually provocative poses, do not portray actual sexual congress or other activities commonly known as hard core pornography." So long as these decisions stand we have no choice but to follow them. But as we observed in the Palladino case, following the statement above quoted, "we are entirely in accord with the views stated by Mr. Justice Harlan in his dissent in the Bloss case, supra, in which he was of opinion that proscribing material of the sort here involved was `the permissible exercise of state power.'" Chief Justice Tauro did not participate in the deliberations or decision in this case.

Judgments reversed.

Findings set aside.

Judgments for the defendant.

Home JULIAN LANE & another vs. COMMISSIONER OF CORPORATIONS AND TAXATION & others.

358 Mass. 803

October 29, 1970

On December 24, 1966, Hyman N. Levowich died in Florida, where his will and a codicil were admitted to probate. Ancillary administration with the will (and a codicil) annexed was allowed in this Commonwealth by a decree dated June 18, 1968, which was revoked on October 23, 1968. New hearings with respect to ancillary administration then were held, principally concerning the issue whether Levowich's domicil at his death was in Florida or Massachusetts. On February 21, 1969, a probate judge entered a new decree granting ancillary administration. The Commissioner of Corporations and Taxation and two other persons appealed. The evidence is reported (over 1,300 pages of the transcript of ten days of trial and more than 100 exhibits). The probate judge made no specific findings and no report of material facts. In the circumstances, the entry of the decree imported a finding of every fact essential to sustain it within the scope of the pleadings and supported by the evidence. The judge's implied findings will not be reversed because, in our opinion, they are not plainly wrong. See Colbert v. Hennessey, 351 Mass. 131 , 134; Bannish v. Bannish, 357 Mass. 279 , 280-281; Newhall, Settlement of Estates (4th ed.) Section 301. The oral and documentary evidence was conflicting. There was, nevertheless, strong support for the probate judge's implied finding that Levowich had his domicil in

Page 804

Florida. That issue was "mainly a question of fact to be determined from all the evidence." See Commonwealth v. Davis, 284 Mass. 41 , 49-52. See also Slater v. Munroe, 313 Mass. 538 , 540-546.

Decree affirmed.