Opinion
3 Div. 124.
June 29, 1973. Rehearing Denied July 26, 1973.
Appeal from Circuit Court, Montgomery County; Richard P. Emmet, Judge.
James M. Trinkler was convicted of violating the Obscenity Law of Alabama by the Circuit Court of Montgomery County, Emmet, J., and he appealed.
Affirmed.
Certiorari denied, 291 Ala. ___, 282 So.2d 344.
Ferris S. Ritchey, Jr., Birmingham, Robert Eugene Smith, Towson, Md., D. Freeman Hutton, Atlanta, Ga., for appellant.
William J. Baxley, Atty. Gen., John A. Yung IV, and Don. C. Dickert, Asst. Attys. Gen., for the State.
Obscene printed matter: fine, $2,000.00 and jail sentence of one year.
It was stipulated, inter alia,
"11. That there had been no prior adversary hearing on the obscenity of the publications vel non before the issuance of the warrant and the arrest of the Defendant.
"12. That there has been no 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."
Certain matter is regarded as a "silent witness" on scienter. See McKinney v. State, 287 Ala. 648, 254 So.2d 714. This notably would apply to a book if the cover is lubricious enough to invite (or entice) a prurient examination of the contents. The printed matter sub judice, Exhibits A and B we hold to fall under the silent witness rule of evidence.
On authority of Brazelton v. State, 50 Ala. App. 723, 282 So.2d 342 (8th Div. 342, this day decided) and authorities therein cited the judgment below is hereby
Affirmed.
All the Judges concur.