Opinion
Nos. 71-221 and 71-231
Decided September 26, 1973.
Criminal law — Obscene literature — Injunction against sale and distribution — R.C. 2905.34 and 2905.35 — Standards for determination of obscenity — Conviction affirmed, when.
APPEALS from the Court of Appeals for Franklin County.
ON REMAND from the Supreme Court of the United States.
In these causes relator, appellee herein, filed an action in the Court of Common Pleas to enjoin the sale and distribution of certain magazines and books by appellants on the ground that they were obscene.
The Court of Common Pleas granted relator's amended petition for a permanent injunction and the Court of Appeals affirmed the judgment.
Appellants' motions to certify the record were overruled by this court on September 15, 1971.
Upon appeal to the Supreme Court of the United States, that court vacated this court's judgments and remanded the causes for further consideration in light of Miller v. California (1973), 37 L. Ed. 2d 419; Paris Adult Theatre I v. Slaton (1973), 37 L. Ed. 2d 446; Kaplan v. California (1973), 37 L. Ed. 2d 492; United States v. 12 200-Ft. Reels of Super 8mm. Film (1973), 37 L. Ed. 2d 500; United States v. Orito (1973), 37 L. Ed. 2d 513; Heller v. New York (1973), 37 L. Ed. 2d 745; Roaden v. Kentucky (1973), 37 L. Ed. 2d 757; and Alexander v. Virginia (1973), 37 L. Ed. 2d 993.
Upon remand, the causes are now before this court pursuant to appellants' motions to certify the record.
Mr. John C. Young, city attorney, Mr. William J. Melvin and Mr. Robert A. Cohen, for appellee.
Messrs. Campbell Boyland, Messrs. Brownfield, Kosydar, Bally Sturtz, and Mr. Walter J. McNamara, III, for appellants.
In State, ex rel. Keating, v. Vixen, ante, 215, this court held that R.C. 2905.34 and 2905.35 comport with the standards for determining obscenity enunciated in Miller v. California (1973), 37 L. Ed. 2d 419. Those statutes were applied in the initial Vixen opinion, reported in 27 Ohio St.2d 278, in determining whether the film in question was obscene.
In like fashion, those statutes may be used in the instant appeals to determine whether the materials in question are obscene.
It is apparent that, if these causes were remanded to the Court of Common Pleas, the trier of the facts, given the standards expressed in Miller and the provisions of R.C. 2905.34 as guides for determining the issue of obscenity, could come to no other conclusion than the one reached in the first instance.
Inasmuch as "* * * we have authority to render such judgment as the lower court would now be required to render, if the cause were remanded" ( State, ex rel. Keating, v. Vixen, 27 Ohio St.2d 278), we allow the motions to certify the record and affirm the judgment of the Court of Appeals.
Judgment affirmed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.