¶1ON APPELLANT’S MOTION FOR LEAVE TO FILE A MOTION FOR REHEARING
¶2We have been obliged to revisit Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) in order to review, discuss and decide some issues raised in this and more or less companion causes. One contention defying final disposition is that somehow the definition of “patently offensive” in V.T.C.A. Penal Code, § 43.21(a)(4) —“so offensive on its face as to affront current community standards of decency”
¶3In Millerthe Supreme Court did observe: “It is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas or New York City.” Id.,413 U.S. at 32, 93 S.Ct. at 2619.
¶4Then, in Smith v. United States, 431 U.S. 291, 97 S.Ct. 1756, 52 L.Ed.2d 324 (1977), after reprising the “three part test” of Miller, the Supreme Court stated that it makes clear that “contemporary community standards take on meaning only when they are considered with reference to the underlying questions of fact that must be resolved in an obscenity case,” id.,431 U.S. at 300, 97 S.Ct. at 1763. Just as appeal to prurient interest is one such question of fact, so “patently offensive is to be treated in the same way,” id.,431 U.S. at 301, 97 S.Ct. at 1764. Turning to the federal issue before the Court, in the course of its discussion about standards, the opinion recalls its earlier holdings that 18 U.S.Ct. § 1461 embodies an application of local rather than national standards and “[similarly, obscenity is to be judged according to the average person in the community, rather than the most tolerant or the most prudish,” id., 431 U.S. at 304, 97 S.Ct. at 1766. Then in that part of the opinion usually excerpted by proponents of the school of “tolerance” the Supreme Court said:
“Our decision that contemporary community standards must be applied by juries in accordance with their own understanding of the tolerance of the average person in their community does not mean, as has been suggested, that obscenity convictions will be virtually unreviewa-ble. We have stressed before that juries must be instructed properly, so that they consider the entire community and not simply their own subjective reactions, or the reactions of a sensitive or of a callous minority.” Id.,431 U.S. at 306, 97 S.Ct. at 1766.
¶5Lastly, a footnote observation in the opinion of the Supreme Court in New York v. Ferber, - U.S. -, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982) has caught the eyes of some. After reiterating the thought expressed in Miller— that people in Las Vegas may not be permitted to set standards in Maine and Mississippi, see ante — Jusitce White adds, “It would be equally unrealistic to equate a community’s toleration for sexually oriented material with the permissible scope of legislation aimed at protecting children from sexual exploitation.” Id.,102 S.Ct. at 3357, n. 12.
¶6In our judgment none of the foregoing statements, observations or remarks by the *389Supreme Court was intended or designed to define current community standards of obscenity in terms of tolerance, as still contended.
¶7But to put the argument to rest, we now hold that when a properly instructed jury in this State renders a verdict of guilty reflecting its conclusion that the material at issue is obscene, it has found the material exceeds the limits of what the community tolerates. That is, rearranging somewhat the order of statutory factors, the jury has:
first determined that facial content of the material insults (affronts) current community standards of decency to the point of being patently offensive to the average person in the community;
then, after examining the whole of the material, concluded that the average person, applying contemporary community standards,4 would find the material arouses (appeals to) such a shameful or morbid interest in sex as to be prurient;5
and finally, decided that the material in its entirety was without important (serious ) literary, artistic, political or scientific value in the community.
¶8So construed, the guilty verdict means the material on trial is obscene beyond the limits of tolerance of the community.
¶9With these observations and comments, we deny the motion for leave to file a motion for rehearing.
¶10. All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.
¶11. Indeed, the charge implicitly approved in Millerinstructed the jury to apply contemporary standards of the State of California in determining whether the material “appeals to the prurient interest” and whether the material “goes beyond customary limits of candor and affronts contemporary standards of decency,” id, 413 U.S. at 31, 93 S.Ct. at 2618.
¶12. In Smith v. United States, supra, the Supreme Court opined that it would be “inappropriate for a legislature ... to try to define the contemporary community standard of appeal to prurient interest or patently offensiveness, if it were even possible for such a deñnition to be formulated,” id.,431 U.S. at 302, 97 S.Ct. at 1764.
¶13. As used here the phrase is not couched in terms of “decency,” nor in its charge did the trial court limit the jury to what it might consider “indecent.”
¶14. Previously defined by the Legislature, prurient interest in sex may be “a shameful or morbid interest in nudity, sex, or excretion...” See former § 43.21(3).