The point now advanced was not raised by counsel either at the trial or on appeal. Obviously, a ruling relating to procedural matters in the course of a trial may be reviewed only on appeal and is not subject to collateral attack.
As a matter of fact on the merits the point now interposed as an obvious afterthought is worthy of but scant consideration. It frequently happens in cases in which there are multiple defendants that one or more of them may enter a plea of guilty in the course of the trial, and the trial goes on as to the remaining defendants. It would be unthinkable to stop the trial under such circumstances, and start it over again with another jury as to the remaining defendants. Even a request for such a course is unknown.
The second ground of the motion is an assertion on the part of counsel that in Manual Enterprises v. Day, 370 U.S. 478, 82 S. Ct. 1432, 8 L. Ed. 2d 639, decided on June 25, 1962, subsequently to the trial and final disposition of the appeal in the case at bar, the Supreme Court modified its previous definition of 'obscenity', which had been formulated in Roth v. United States, 354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498, decided on June 24, 1957. In the instant case the jury was instructed at the trial in accordance with the formula of the Roth case, and the Court of Appeals also proceeded on the same basis. The judgment of conviction is res judicata. A subsequent change in the law, even if it occurred, does not warrant a reopening of the judgment. Warring v. Colpoys, 74 App.D.C. 303, 122 F.2d 642 (Vinson, J.); United States v. Gandia (C.A.2d) 255 F.2d 454.
It is not necessary, however, to rely on this basic principle, because a consideration and analysis of the opinions of the Supreme Court conclusively demonstrate that counsel is in error in contending that the Supreme Court has changed the definition of 'obscenity'. In the Roth case, the Supreme Court adopted as a test of obscenity whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest (p. 489, 77 S. Ct. p. 1311).
In Manual Enterprises v. Day, the decision of the Court was by a vote of 6 to 1.
There was no majority opinion. One opinion was written by Mr. Justice Harlan, with whom only Mr. Justice Stewart joined. It contains statements to the effect that in addition to appealing to the prurient interest, any material to be deemed obscene, must also be patently offensive on its face. None of the other members of the Court besides Mr. Justice Stewart, concurred in this opinion. Mr. Justice Black concurred in the result without, however, writing an opinion. Mr. Justice Brennan wrote a concurring opinion, the Chief Justice and Mr. Justice Douglas joining with him. Mr. Justice Brennan stated that he agreed that 'the judgment below must be reversed, though for a reason different from my Brother Harlan.' Consequently, if Mr. Justice Harlan's opinion is to be construed as suggesting a modification of the standard of obscenity previously enunciated in the Roth case, it is purely a minority view of two members of the Court. The conclusion is inescapable, therefore, that there is no basis for counsel's contention that the Supreme Court has modified the test of obscenity.
The motion is denied on the ground that the motion and the files and records of the case conclusively show that the defendant is entitled to no relief.