In rе Claude David BALLEW v. STATE of Alabama. Ex parte Claude David Ballew.
SC 480.
Supreme Court of Alabama.
May 9, 1974.
Rehearing Denied June 6, 1974.
296 So.2d 206
HARWOOD, Justice.
The appellant operated an “Adults Only” book store in Mobile. As a result of a sale of a magazine entitled “Penelope, Issue No. 1” he was indicted for selling hard-core pornography. His trial resulted in a verdict of guilty, the jury imposing a fine of $500.00. The court imposed an additional punishment of hard labor for Mobile County for one year.
The Court of Criminal Appeals affirmed the judgment without an opinion. The appellant duly petitioned this court for a writ of certiorari, and we granted the writ.
The indictment against this defendant reads:
“The GRAND JURY of said County charge, that, before the finding of this indictment CLAUDE DAVIS BALLEW whose name is to the Grand Jury otherwise unknown than as stated, did knowingly and unlawfully sell to Don Smitherman, who was over 18 years of age, a magazine entitled ‘Penelope, Issue No. 1’ containing pictures and photographs of the female human body depicting the female genitals in such a manner as to be obscene or to represent hard-core pornography, after said Claude Davis Ballew had been notified in writing by an Assistant Attorney General of the State of Alabama, pursuant to Act Number 698, Acts of Alabama, Regular Session, 1969, that there was reasonable cause to believe that said magazine was obscene and hard-core pornography against the peace and dignity of the State of Alabama.”
We do not consider it arguable but that the appellant was proceeded against under the provisions of Act No. 698, approved 10 September 1969. See 1969 Acts of Alabama, pps. 1253 through 1255. This Act now appears in the Recompiled Code of Alabama, 1958, Cumulative Pocket Part 1971, as
“(a) No prosecution may be commenced against any person fоr violating
sections 374(16k) and374(16l) of this title unless the accused is first served with prior written notice that there is reasonable cause to believe the material upon which such prosecution is based violates this chapter, and the accused has, after receiving such notice violated this chapter.“(b) The written notice provided for in paragraph (a) of this section
374(16m) may be given by only the following officials; the state attorney general and any assistant attorney general; the district attorney, county solicitor, their assistants and deputies, or any person whose office and duty is to prosecute criminal actions before any state, county or municipal court; the sheriff; the chief of police of any municiрality or town; and the duly authorized law enforcement employees of the department of public safety.“(c) Any person receiving such written notice provided for in paragraph (a) of this section
374 (16m) shall have the right within 30 days from such notice to file an appropriate action for declaratory judgment to determine the validity of such written notice, but no such action shall, by reason of the commencement thereof, stay or in any way delay or postpone any prosecution for the violation of this chapter. (1969 p. 1254, § 4, appvd. Sept. 10, 1969.)”
In the trial below the State introduced in evidence the magazine entitled “Penelope, Issue No. 1.” Additional evidence introduced by the State showed that the Mobile Book Mart is located on Conception Street in Mobile, Alabama. The front of the store had a sign reading “Adult Book Store” followed by the legend, “No one under twenty-one years of age admitted.” The front window glasses were rendered opaque by being painted over. The Mobile Book Mart is operated by Clarence Cantey. On 13 May 1970, the premises were visited by Robert E. Morrow, an Assistant Attorney General. On display for sale was the magazine “Penelope, Issue No. 1,” along with other magazines. After inspecting the magazinеs Mr. Morrow served a written notice on the appellant to the effect that he had reasonable cause to believe that certain magazines on display, including “Penelope, Issue No. 1” were obscene, and that continuing to offer the materials for sale constituted a violation of Act 698. The next day, Donald T. Smitherman, a 29 year old member of the Vice and Narcotics Squad of the Mobile Police Department, entered the store and purchased a copy of “Penelope, Issue No. 1” from the appellant who was in charge of the store as manager.
The defense offered only one witness, Dr. Robert M. Dowd. Dr. Dowd, who at the time of the trial was currently on leave from the Department of Psychiatry of Tulane University Medical School. He was spending his leave as Assistant Professor of Family Health and Population Dynamics, studying psychiatric aspects of family planning. Dr. Dowd testified as an expert on the question of whether “Penelope, Issue No. 1” appealed predominately to a prurient interest in sex or nudity, and whether the magazine had any redeeming social value.
Dr. Dowd testified that in his opinion the magazine did not appeal predominately
He further testified that the magazine had redeeming social value in that it would tend to satisfy male curiosity as to female form, and in that aspect might be educаtional.
He further testified that in his opinion the magazine might be educational to adult females in that some females are curious about their bodies in comparison with the bodies of other females, and in this sense might also be therapeutic.
As stated above, the magazine “Penelope, Issue No. 1” was received in evidence. It was therefore before the court and jury at the trial level, it was before the Court of Criminal Appeals, and is now before us. From the outside of the front cover to the back of the back cover, the magazine consists of nude females in poses contrived to depict their genitals and breasts. The weight to be accorded Dr. Dowd‘s testimony was within the province of the jury, аs was the weight to be accorded all of the evidence. From the verdict rendered, it must be inferred that the jury attached little or no weight to Dr. Dowd‘s testimony. The trial judge by his entry of the judgment pursuant to the verdict, and the Court of Criminal Appeals by its affirmance of the judgment, apparently found no reason to question the conclusions of the jury in this aspect. From our examination of “Penelope, Issue No. 1,” we too are in hearty accord with the correctness of the jury verdict in this aspect.
We hold that Act 698, in all parts other than
In Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), are new standards for guidance as to what constitutes obscenity as a matter of law. They are, (a) whether the “average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. The standard set forth in Memoirs v. Massachusetts, 383 U.S. 413 at 419, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966), that the work be utterly without redeeming social value was repudiated, and superceded by (c) above. The court further held that patently lewd exhibition or representation of the genitals was a proper subject for regulation in an obscenity stаtute.
In Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973), the court held that the states have a legitimate interest in regulating commerce in obscene material in places of public accommodation, even though minors be excluded therefrom, and further, that it was not error “* * * to fail to require ‘expert’ affirmative evidence that the materials were obscene when the materials themselves were actually placed in evidence * * *.”
We come now to a consideration of whether Act No. 698 (
In said case E. L. Wright, Jr., as Chief of Pоlice of Montgomery, Alabama, without any prior administrative or judicial proceeding, before a neutral party, served a written notice on an exhibitor in Montgomery, who proposed to show in his thea-
The written notice advised the exhibitor that he could seek a declaratory judgment in the circuit court as to the obscenity vel non of the film, and further advised the exhibitor that “the exhibition of this film prior to obtaining the declaratory judgment might result in prosecution.”
United Artists Corporation, the owner and distributor of the film, upon the exhibitor‘s deсlining to show the film after receipt of the notice, brought an action in which it alleged the unconstitutionality of Act No. 698 (
The three judge district court held that
The basis of the court‘s decision that
We are in accord with the conclusion reached that
We are not in accord with the conclusion of the court that
The decisions of federal courts other than the Supreme Court of the United States are not binding upon a state court of last resort. Lokos v. State, 278 Ala. 586, 179 So.2d 714 (1965); Liddell v. State, 287 Ala. 299, 251 So.2d 601 (1971).
In its opinion, the three judge court wrote:
“Under Alabama law, the absence of a separability clause means that the statute is to be considered as an indivisible whole. San Ann Tobacco Co. v. Hamm, 283 Ala. 397, 406, 217 So.2d 803(1969).”
We consider this statement too general and too broad and a misconception of the doctrines of our cases on the subject. It is true that in San Ann Tobacco Co., supra, this court wrote on rehearing as follows:
“We recognize that a separability clause should be given effect, where possible, to save a legislative enactment. Allen v. Walker County, 281 Ala. 156, 199 So.2d 854 (1967); Alabama State Federation of Labor v. McAdory, 246 Ala. 1, 18 So.2d 810 (1944). (We called it a severability clause in Hall v. Underwood, 258 Ala. 392, 63 So.2d 683 [16].)
“Here, the absence of such a clause in Act No. 78, in connection with the fact that the part of the Act discussed in the original opinion was clearly of doubtful constitutionality, and as we stated—‘it is difficult to understand why the five words were added by amendment to § 3 of the Act,’ give evidentiary strength to
our conclusion that the Legislature intended for all the amendments in Act No. 78 to stand or fall together, and thus Act No. 78 has been stricken in its entirety.” (Emphasis supplied.)
In other words, the absence of separability clause gave evidentiary strength to the conclusion arrived at in the original opinion that the legislature intended the amendments provided by Act No. 78 to stand or fall together, but was not conclusive thereof.
The rule of our cases is stated in Wilkins v. Woolf, 281 Ala. 693, 208 So.2d 74 (1968), as follows:
“Another guiding principle of paramount importance is that courts seek to sustain, and not strike down, the enactments of a coordinate department of government. Evеry legislative act is presumed to be constitutional and every intendment is in favor of its validity. Tucker v. State, 231 Ala. 350, 165 So. 249 (1935); Gray v. Johnson, supra [235 Ala. 405, 179 So. 221 (1938)]. Although a statute may be invalid or unconstitutional in part, the part that is valid will be sustained where it can be separated from that part which is void. State ex rel. Farmer v. Haas, 239 Ala. 16, 194 So. 395 (1940). If after the deletion of the invalid part, the remaining portions of an Act are complete within themselves, sensible, and capable of execution, the Act will stand notwithstanding its partial invalidity. Springer v. State ex rel. Williams, 229 Ala. 339, 157 So. 219 (1934).
“Certainly the existence of a severability clause in the Act itself cannot but strengthen this principle.”
In State ex rel. Crumpton v. Montgomery, 177 Ala. 212 at 241, 59 So. 294, at 303 (1912), this court observed that the presence of a separability clause “serves only to render certain the legislative intent with respect to passage of the valid parts * * *.” See also A. Bertolla & Sons v. State, 247 Ala. 269, 24 So.2d 23 (1945).
Here, the dominant purpose of Act 698 is to proscribe the sale or loaning for a monetary consideration to a person eighteen years of age or older of obscene, hard-core pornography. Apparently, the legislature sought by
However, without
The grounds asserted as error in support of the petition for certiorari are, (a) “that the provisions of
What we have written we think disposes of ground (a) of the petition for certiorari.
Grounds (b) and (c) we think are disposed of by the holding in Frank v. Man-gum, 237 U.S. 309, 35 S.Ct. 582, 59 L.Ed. 969 (1915), to the effect that
Upon full consideration of the grounds asserted as error in support of the petition for the writ of certiorari, it is our conclusion that the Court of Criminal Appeals did not err in its memorandum judgment affirming the judgment here involved. Accordingly, the judgment of the Court of Criminal Appeals is due to be affirmed.
Affirmed.
MERRILL, COLEMAN, BLOODWORTH, McCALL and FAULKNER, JJ., concur.
HEFLIN, C. J., and MADDOX, J., concur specially.
JONES, J., dissents.
HEFLIN, Chief Justice (concurring):
I concur in the rеsult reached by the majority opinion in this case, and I am in basic agreement as to the rationale employed. There are some points, however, which, I feel, need to be clarified.
First, I think that there is no doubt that the statute involved,
Second, while I do not agree with the generalized treatment given the issue of retrospectivity by the majority opinion, I don‘t think there is any problem of retrospective application of Miller standards in this case. The statute as written is аs specific as Miller requires and was when petitioner was indicted and convicted. Furthermore, the jury applied the old “utterly” standard and not the current “serious” standard of Miller. An independent examination of the evidence demonstrates that the jury‘s determination that the matter was utterly without redeeming social value was correct. If a defendant has had the benefit of the “utterly” test, then it is inescapable that he has had benefit of the “serious” test, because any matter which is utterly without value could have no serious value. See Pierce v. State, 292 Ala. 473, 296 So.2d 218 (1974).
I feel, however, that under some circumstances ex post facto considerations are applicable to judicial decisions, especially where judicial engraftments favorable to the prosecution are added to a statute. Since there is a difference of opinion on the issue of retrospective application of Miller to conduct which occurred prior to Miller‘s issuance, not only among members of this court but among courts around the country, see Chobot v. Circuit Court for Milwaukee County, 61 Wis.2d 354, 212 N.W.2d 690 (1973) (limiting construction may be applied to punish conduct occurring prior to the construction); State v. Welke, Minn., 216 N.W.2d 641 (1974) (construction in case at bar does not afford requisite notice with respect to sale four years ago). I feel constrained to elaborate upon my views of this issue.
The difficulty arises, in my view, because of two factors: (1) The Supreme Court limits the scope of state regulation of obscenity to “sexual conduct specifically dеscribed” but apparently invites courts to cure defects in statutes by judicial construction, and (2) the court eliminates the “utterly without redeeming social value” test which was very difficult to meet, and replaces it with the “[without] serious literary, artistic, political, or scientific value” test which is a standard less difficult for the prosecution to meet. These two developments must be considered independently
Assume first that Miller had been issued without any mention of judicial construction supplying the required specificity. As of June 21, 1973, the constitutional rule would be that for a statute to be valid (and a prosecution under it to be upheld) the statute would have to havе defined obscenity in terms of sexual conduct specifically described. From that day forth any court reviewing an obscenity conviction would begin by examining the statute under which the defendant was tried. If the statute as written was specific at the time the alleged violation occurred then the conviction could be affirmed, but if not, it could not be. There is no question of retrospective application—the statute either was specific or it was not, and the decision would turn on that point.
In Miller, however, the court went a step further. The decision indicates that the statute as written or construed must be limited as mentioned. If, prior to Miller, the statute had been construed to be limited to “sexual conduct” and that conduct specifically described in the opinions so construing the statute, then the defect of vagueness would have been cured by prior judicial construction and the defendant could not complain that he did not have notice of the activity proscribed. In such instance a defendant‘s conviction under the previously judicially construed statute would be valid. Pierce v. State, supra (statute limited by previous construction); United States v. Thevis, 484 F.2d 1149 (5th Cir. 1973) (
But what if there had been no prior construction of the statute, and as written, it was not specific as Miller required? Clearly, the statute would fail to pass the vagueness muster and the conviction would have to be reversed. State v. Welke, supra.
But the court in Miller indicated that the judicial construction could be supplied subsequent to the issuance of Miller itself. Does this mean that in deciding pending cases, a court can affirm a conviction by construing the statute in the very case before it as being specific enough to meet the Miller requirement? How can it be said that the defendant had noticed that his actions were criminal when the alleged crime was committed if the court only clarifies what the statute means now—a year or two after the allegedly criminal acts.
In construing a statute the court is essentially performing a legislative act. This is especially true in instances where the court is curing some constitutional defect by construction. See Art Theater Guild, Inc. v. State, Tenn., 14 Crim.L.Rptr. 2497 (Tenn. Feb. 19, 1974) (“The function of this Court is to interpret a statute . . . and [it] cannot usurp the prerogatives of the legislature by supplying essential elements to a statute which have been omitted . . . .“). Thus, even though as a general rule ex post facto principles may not apply to court decisions, clearly in a case like that described above, ex post facto principles should be considered. See United States v. Lang, 361 F.Supp. 380 (C.D.Cal.1973) (Application of Miller standards in pending case is “the functional equivalent of an ex post facto application of the law.“) In a case where there is no prior authoritative construction, the courts’ adoption of a Miller type construction can only operate prospectively. That is, from the date the court adopts a specific construction properly limiting the statute, all potential wrongdoers will have notice as to what activity is outside the scope of the statute. The statute will be, by construction as of the date of the opinion, as specific as Miller requires. But to attempt to have the construction relate back one or two years or more in order to affirm pending cases
In Papp v. State, 281 So.2d 600 (Fla.App.1973), the Florida District Court of Appeals, Fourth District had this precise issue before it. That court stated:
“The [Florida obscenity] statute is susceptible of judicial construction by which its scope may be limited to ‘obscene material’ as defined in Miller v. California, supra. It is our view, however, that for this court to so construe the statute and at the same time apply it tо Mr. Papp‘s conduct which was brought into question in the courts of this state before the statute had been thus limited by judicial construction, would amount to a denial to Papp of due process of law, because at the time of his alleged offense [1969] neither the statute nor judicial construction thereof gave adequate notice of the conduct sought to be proscribed.”
See also Stroud v. State, Ind., 300 N.E.2d 100 (1973).
The second aspect of the Miller case mentioned above which tends to cause confusion as far as ex post principles are concerned is the new social value norm. The Miller decision lightens the burden the state must carry in proving the matter before the court is obscene since it is no longer necessary to meet the “utterly without social valuе” test but instead the state need only prove the matter has no “serious literary, artistic, etc., value.” Hence, in the future prosecutors should have a less burdensome burden of proof in this connection.
In pending cases, however, there should be little doubt but that the heavier burden must have been carried at trial. In United States v. Thevis, supra, the defendants had been convicted under
The Supreme Court of Florida handled this matter with the following language:
“On the matter of standards of obscenity, the U.S. Supreme Court has now afforded a sensible test and guidelines in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), and Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973), decided on June 21, 1973. The new test will no doubt prove more effective in future infractions of
§ 847.011 and of the newFla.Stat.Ch. 73-120 . We cannot, in our view, however, by reason of ex post facto principles apply new standards in the now-judicially-approved ‘new test’ of obscenity to earlier offenses in determining the sufficiency of the statutory language to warn the average person of common intelligence as to whаt constitutes the prohibited offense. This is particularly true of ‘(c)’ of the test in Miller as to ‘literary, etc. value‘. It may or may not be true of (a) and (b) in view of our statutory language and its construction as it may have been published as notice to an offender on the date of the offense in question.“Sub judice the test set forth in these latest U.S. judicial holdings with respect to ‘c’ (‘literary value‘) as to what now constitutes obscenity was not available
on May 5, 1971, as amplification of the notice to appellant of the proscribed conduct; such a modification of the old test in the new holdings cannot now be echoed to the date of the earlier offense. The ‘old test’ (Memoirs v. Mass., 383 U.S. 413, 419, 86 S.Ct. 975, 978, 16 L.Ed.2d 1 (1966)) that the allegedly obscene mattеr be ‘utterly without redeeming social value‘, must apply in such instance, for such was the test upon which defendant was on notice of the date (May 5, 1971) of the alleged violation.” Rhodes v. State, supra.
The Florida Court went on to hold that the “utterly” test had been properly applied below, and furthermore, that judicial construction of the Florida obscenity statute since 1969 but before Miller supplied any needed particularity in the statute.
Another clear expression of the principles involved in applying Miller is found in United States v. Lang, supra:
“The newly formulated Miller test eases the prosecution‘s burden, and enhances the likelihood of successful prosecution. The new test simply requires that the prosecution show, inter alia, that ‘the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.’ Miller, supra, 413 U.S. at 24, 93 S.Ct. at 2615 (emphasis added). In short, the Court‘s new test substantially changes the law of obscenity, and as a general proposition now makes it easier to convict the defendants. Therefore, to prosecute defendants under the judicially devised Miller definition of obscenity and to instruct the jury on it would, without fig leaves, be the functional equivalent of an ex post facto application of the law. This the due process clause forbids. Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964). Moreover, to apply retroactively the judicial construction now placed on
§ 1461 would further deprive defendants of due process by having denied them fair warning that their acts, when committed, constituted a crime.”
In summary, it seems clear that, for pending prosecutions, Miller requires this court to examine the statute and prior cases under it to dеtermine whether the defendant was given proper notice of what constituted the crime. Moreover, it is abundantly clear that the only social value norm which can constitutionally be applied in cases pending at the time Miller was issued is the more stringent “utterly” test. Thus the courts must examine convictions obtained prior to Miller in light of these potential ex post facto problems.
Since the statute here applicable meets the Miller requirements of specificity and since the defendant was given the benefit of the “utterly” test at trial and upon review before this court there is no reversible error in the record on these issues.
MADDOX, Justice (concurring specially).
I concur wholeheartedly in the opinion with the exception of that part which holds Section 4 of Act 698, Acts, 1969 [
“(a) No prosecution may be commenced against any person for violating Sеctions 2 and 3 of this Act unless the accused is first served with prior written notice that there is reasonable cause to believe the material upon which such prosecution is based violates this Act, and the accused has, after receiving such notice violated this Act.
“(b) The written notice provided for in paragraph (a) of this Section 4 may be given by only the following officials: the State Attorney General and any Assistant Attorney General; the district attorney, county solicitor, their assistants and deputies, or any person whose office and duty is to prosecute criminal actions before any state, county or municipal court; the sheriff; the chief of police
of any municipality or town; and the duly authorized law enforcement employees of the Department of Public Safety. “(c) Any person receiving such written notice provided for in paragraph (a) of this Section 4 shall have the right within 30 days from such notice to file an appropriate action for declaratory judgment to determine the validity of such written notice, but no such action shall, by reason of the commencement thereof, stay or in any way delay or postpone any prosecution for the violation of this Act.”
I realize that a three-judge District Court has held that not only Section 4, but Act 698, in its entirety, is unconstitutional, but as Justice Harwood points out, that decision is not binding upon us. In fact, Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), reaffirmed the principle that it is the function of the statеs to regulate obscenity and that this is “. . . a power reserved to them under the Constitution, a power which they have . . . exercised continuously from before the adoption of the First Amendment to this day.”
Under the guidance of Miller, I believe the Federal District Court is incorrect about Section 4 (the notice provision). The authority which the Federal District Court cites is all pre-Miller. In Miller, the majority of the Supreme Court of the United States pointed out:
“Under the holdings announced today, no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depicit or describe patently offensive ‘hard core’ sexual conduct specifically defined by the regulating state law, as written or construed. We are satisfied that these specific prerequisites will provide fair notice to a dealer in such materials that his public and commercial activities may bring prosecution. See Roth v. United States, supra, 354 U.S. 476, at 491-492, 77 S.Ct. 1304, at 1312-1313, 1 L.Ed.2d 1498 (1957). Cf. Ginsberg v. New York, supra, 390 U.S. 629, at 643, 88 S.Ct. 1274, at 1282, 20 L.Ed.2d 195 (1969).” [Emphasis added.]
As I read this admonition in Miller, a majority of the Supreme Court seems to think a notice to peddlers of obscenity that they could suffer prosecution is not constitutionally impermissible.
As a matter of fact, in Gable v. Jenkins, 309 F.Supp. 998 (N.D.Ga.1970), aff‘d per curiam, 397 U.S. 592, 90 S.Ct. 1351, 25 L.Ed.2d 595 (1970),
“However, as to the necessity of the prior adversary hearing, this goes merely to the competency of the evidence in an obscenity prosecution and would not bar a prosecution based on other legally obtained evidence. Matter seized illegally, i. e., without a hearing, must be returned. In Marcus v. Search Warrants of Property, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961), the evil was that the hearing as to the obscene nature of the material was held after seizure; thereby, the Supreme Court concluded that the procedure employed was unconstitutional. There is proper procedure existing in the Georgia law that can aсhieve constitutional standards, i. e., a prior adversary judicial proceeding before the seizure of the allegedly obscene items.3 Accordingly,
Georgia Code 26-3
The obscene material in this case was purchased after the seller had been warned that the material was considered obscene. It was not seized under a warrant or incident to an arrest.
From a policy standpoint, the notice provision of Act 698 puts an additional requirement on the prosecution—to give written notice to a seller advising him that his material is considered obscene. This notice is required before a prosecution can be commenced.
Most violators of the law are not favored with a warning before a prosecution can be commenced. Since I do not believe that a prior judicial determination that material is obscene must be held before a prosecution can be commenced, I cannot agree with the majority on this point.
I think the majority here and the Federal District Court have both misinterpreted the purpose of the notice provision. I believe the legislative purpose was probably designed to notify book dealers that a book or magazine he was selling was obscene. He could not be prosecuted until he was notified. Many citizens might object to the state policy which requires that a seller of obscene material should be forewarned, but the Legislature has decided differently. Under Miller, the regulation of obscenity, within the guidelines there announced, is one for the individual state legislatures or state judges interpreting state law. At least, that is what I think Miller says.
I believe these notice provisions are beneficial to a potential defendant in an obscenity case. In Hawkins v. State, 124. Ga.App. 53, 183 S.E.2d 239 (1971), the defendant considered the notice provisions to be beneficial. Hawkins was being prosecuted for violating one of Georgia‘s obscenity statutes. He claimed that the “notice” provision of the subsequent law (which dealt only with minors, but which contained a notice provision like Section 4 of Act 698) required that he be notified in writing before the prosecution could be commenced. The court did not rule in Hawkins’ favor, but it seems obvious that to require that the prosecutor notify a potential defendant that what he is doing is considered illegal before the state can prosecute is beneficial to the defendant.
There is another reason why I think the notice provision is not unconstitutional. The fact that a crime is “knowingly” committed is always an important consideration. It is conceivable that a dealer might not be aware of each and every thing which is contained in the books or magazines he sells. I think that is the reason the Legislature put the notice provision in the statute. Miller sets up the latest guidelines for prosecution of obscenity cases. I do not believe that the State must establish in an adversary hearing the obscenity vel non of every film, book, magazine, or other material before а prosecution can be commenced. Consequently, I disagree that Section 4 is unconstitutional.
JONES, Justice (dissenting).
My views have been expressed in McKinney v. City of Birmingham, 292 Ala. 726, 296 So.2d 236 (1974), released simultaneously with this opinion, and I respectfully dissent on the same grounds.