Opinion
8 Div. 342.
June 29, 1973.
Appeal from the Circuit Court, Madison County, John D. Snodgrass, J.
Roger H. Bedford, Russellville, for appellant.
The allegedly obscene materials upon which appellant's conviction is based are not obscene in the constitutional sense as a matter of law, given their manner of dissemination, and are protected expression under the First and Fourteenth Amendments to the Constitution of the United States. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498; Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515; Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1; Reno, Obscenity Revisited — 1972, 58 ABA Jour. 736 (July, 1972); Burgin v. South Carolina, 404 U.S. 806, 92 S.Ct. 46, 30 L.Ed.2d 39; Burgin v. State, 255 S.C. 237, 178 S.E.2d 325. The constitutionally required national test for violation of community standards was not applied by the trial court. Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L. Ed.2d 293; Visual Educators, Inc. v. Koeppel, 289 Ala. 410, 268 So.2d 22. The trial court erred in finding the materials to be obscene in the absence of affirmative evidence of the existence of each element of the constitutionally relevant test for obscenity. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, supra; Memoirs v. Massachusetts, supra; Visual Educators, Inc. v. Koeppel, supra; McKinney v. State, 287 Ala. 648, 254 So.2d 714; Reno, Obscenity Revisited — 1972, 58 ABA Jour. 736, July, 1972. Title 14, Section 374(4), Code of Alabama, 1940, as amended, as applied to the defendant is repugnant to the First, Fifth and Fourteenth Amendments to the United States Constitution and the conviction of defendant thereunder denies him due process of law and freedoms of speech and press. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498; Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584; Poulos v. Rucker, M.D. Ala., D.P., 288 F. Supp. 305; McKinney v. City of Tuscaloosa, 49 Ala. App. 21, 268 So.2d 488; Delta Book Distributors, Inc. v. Cronvich, E.D.La., 304 F. Supp. 662; Sokolic v. Ryan, D.P., 304 F. Supp. 213.
William J. Baxley, Atty. Gen., and Barry E. Teague, Asst. Atty. Gen., for the State.
The materials upon which appellant's conviction is based are obscene as a matter of law and are not entitled to the protection of the First and Fourteenth Amendments to the Constitution of the United States. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498; Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1; McKinney v. State, 287 Ala. 648, 254 So.2d 714; Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515. The obscene materials upon which appellant's conviction is based are obscene under the National Test for Violation of Community Standards. Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793; McKinney v. State, 287 Ala. 648, 254 So.2d 714; Visual Educators, Inc. v. Koeppel, 289 Ala. 410, 268 So.2d 22. Appellate Courts have power to review lower court determinations concerning obscenity. Ackerman v. United States, (1961, CA 9 Cal) 293 F.2d 449; Grove Press, Inc. v. Christenberry, (1960, CA 2 NY) 276 F.2d 433; Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793, supra; Kahm v. United States, (1962, CA 5) 300 F.2d 78. The burden of proof of the prosecution was overcome by introduction of the publications into evidence. McKinney v. State, 287 Ala. 648, 254 So.2d 714, supra.
Brazelton appeals from eight nonjury convictions of having, with knowledge of its content, exhibited, commercially distributed, given away or offered to do so, or possessed with intent to sell, etc., obscene printed or written material known by him to have been judicially found to be obscene. See Act No. 856 approved September 8, 1961, particularly § 4(2). In each case he was fined $500.00 and sentenced to six months imprisonment in the county jail. The jail sentences were to run concurrently.
The parties stipulated, inter alia,
"11. That there had been a prior adversary hearing on the obscenity of the publication vel non before the issuance of the warrant and the arrest of the defendant in each case, although the defendant does not admit the constitutional adequacy of said proceedings.
"12. That there has been an equitable proceeding as provided under Title 14, Section 374(5) of the Code of Alabama of 1940, as amended, before the issuance of the warrant and the arrest of the defendant."
The offending printed matter consisted, in seven of the cases, of books of mainly female genital pictures and in the eighth of a paperback book devoted to descriptions (and little else) of copulation and what under Code 1940, T. 14, § 106 comes within the crime against nature.
We have reviewed the entire record under Code 1940, T. 15, § 389. Under Miller v. California, ___ U.S. ___, 93 S.Ct. 2607, 37 L.Ed.2d 419 and Kaplan v. California, U.S. ___, 93 S.Ct. 2680, 37 L. Ed.2d 492, we think the standard laid down in Jones v. City of Birmingham, 45 Ala. App. 86, 224 So.2d 922, as to the scope of the community being the venue from which the jury venire comes is applicable here. That is, the standards of Madison County as to what is or is not obscene. Of this, the judge as sole trier of fact could take notice although, if controverted, the defendant must be allowed to give proof. Ohio Bell Tel. Co. v. Public Utilities Comm., 301 U.S. 292, 57 S.Ct. 724, 81 L. Ed. 1093 and cases cited in Glisson v. State, 43 Ala. App. 700, 200 So.2d 493.
The genitalia picture books are quite like those in McKinney v. State, 287 Ala. 648, 254 So.2d 714. The paperback is within the influence of Kaplan v. California, supra.
Noting the allegation of the Brazelton's knowing that the matter had been judicially obscene, we consider that this element from the statute, supra, is to supply scienter. Perhaps a Dr. Johnson or a John Stuart Mill would be aware of the content of every book in his library. However, such omniscience should not be attributable to every bookseller. Hence, the importance of prior warning. See Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 S. Ct. 631, 9 L.Ed.2d 584.
Here Brazelton had open to him the right to appeal from the civil proceeding referred in stipulation No. 11, supra. Since the stipulation treats the determination as a fact, this fact became sufficient to support the trier of facts (here the trial judge) in his finding sub judice, inter alia, that Brazelton knew of the prior adjudication.
We consider that the judgment below is due to be
Affirmed.
All the Judges concur.