*1 Kent Prosecutor 1976]
KENT
EMMETT
COUNTYPROSECUTOR ROBERT
GOODRICH
CORPORATION
(Calendar
7,
2).
Argued
Docket No. 55873.
November
No.
1,
April
Decided
1976.
County
City Attorney
Plaintiffs Kent
and the
Rapids
complaint against
brought
Grand
defendant Robert
Corporation
injunctive
Emmett Goodrich
relief to
the film "The Devil in Miss
Jоnes”. The Kent
Court,
Wal, J.,
permanent
Circuit
John H. Vander
issued a
injunction.
Burns,
J.,
Appeals, T. M.
The Court of
P.
and Mc-
(Docket
(Holbrook, J.,
Gregor,
dissenting),
J.
reversed
No.
18420).
appeals.
Plaintiff
Held:
sale,
obscenity
distribution,
The civil
statute is aimed at the
printed paper materials,
of written or
picture
not the exhibition of a motion
Lindemer, J.,
Coleman, J., concurring,
dissented on the
grounds
obscenity
the civil
statute is directed to the
pictures
reading
exhibition of motion
it to eliminate mo-
say
tion
film is strained. The statute does not
that the
picture, photograph, figure
writing
forbidden are on
paper
paper.
or book
(1974)
App
53 Mich
Opiniоn op the Court Obscenity Obscenity 1. —Civil Statute. —Motion Pictures. barring sale, The civil statute is directed to distri- bution, acquisition printed paper of written or materials, (MCL exhibition of a motion film 27A.2938). 600.2938;MSA
Dissenting Opinion Lindemer, JJ. Colemаn and Obscenity Obscenity 2. —Civil Statute —Motion Pictures. The civil statute is directed to the exhibition of motion por References Points in Headnotes 2d, Lewdness, [1, Indecency, 9, 26, Obscenity 50 Am Jur 32. §§ 2d, 148,198, seq. 73 Am Jur Statutes §§ 271 et 396 pictures reading tо eliminate dim is 27A.2938). (MCL 600.2938; MSA strained *2 III, Johnston, Donald A. Chief Assistant Prose- cuting Attorney, plaintiffs.
Stephen M. for defendant. Taylor J. The issue is whether the civil obscen Levin, ity statute may applied to bar the showing of the film "The Devil Miss Jones”.1
The provides: legal "The chief any city, executive or office of village township prosecuting charter attorney county may institute and maintain an action in the against any person, circuit court enjoin corporation firm or the sale or further sale or the distribution or further distribution or the book, magazine, of pamphlet, comic book, story paper, writing, paper, picture, drawing, photоgraph, figure image printed written or matter of an lewd, indecent lascivious, filthy, disgusting, indecent or or which con- tains an article or instrument of indecent or immoral purports use or purpose.” to be for indеcent or immoral use or 600.2938;
MCLA
MSA 27A.2938.
"sale”,
is aimed at
"distribu-
permanently enjoined
showing
The trial court
of the film. The
reversed,
Appeals
declaring:
Court of
injunction
improperly granted
"It is our conclusion that
was
law,
statutory
judicial,
'specifi-
since there is no state
either
which
cally
depictions
defines’ the
of sexual conduct which the state
regulate.
judge
power
authoritatively
The trial
lacked the
construe
(1974).
App 267, 275;
the statute.” 53 Mich
Read in context writing, story paper, paper, picture, comic drawing, photograph, figure image writ- matter”) picture, photo- ten or graph, the words
figure image picture, photo- a mean figure graph, paper writing paper, on — paper, magazine paper, photographic paper. book Our construction the statute is reinforced "acqui- "sale”, "distribution”, use the verbs possession”. sition or Those words do describe of a motion film. A film is producer directly distributed or licensed through a distributor to an exhibitor who shows or public. exhibits the film An to the exhibitor does viewing not "sell” or "distribute” the film to the *3 public. "acquisition possession”
The words or in context appear permanent acquisition directed at the and possession2 prohibited of the material rаther than possession temporary the who, of one like a motion picture any acquire exhibitor, does at not time or possess any interest in the material and who is required shortly. to return it significant gist
In this cоnnection that the complaint against picture of the tor is the a motion exhibi- allegedly obscene mate-
acquisition
possession.
rial, not its mere
Michigan’s
obscenity
statute reveals its
purpose
picture
to
the
cover
exhibition of motion
the
observed that
power
2d
protects
[2]
In
542
individual
Stanley Georgia,
to
(1969),
regulate obscenity
right
the United States
"[i]t
in the
to receive information and ideas”.
is now well established
privacy
"does
of his own home”. The Court also
557,
Supreme
not
568, 564;
extend to mere
Court held that
the
possession by
Constitution
the states’
Ed
22 L 253
396
256
"show”
verb
inclusion of
film
by
film”.3
noun "motion
present
its
took
The сriminal
265).4
(1957
The civil
PA
in 1957
form
126).5
(1958 PA
1958
in
enacted
was first
lends,
sells,
gives away,
knowingly
distrib-
"Any person
either
who
sell, lend, give away,
utes,
distribute,
either to
or offers
shows or transmutes
transmute,
intent
in his
with
or has
or
show
transmute,
distribute,
lend,
or
sell,
give away,
show or
to
either
advertise in
loan, gift,
indecent,
per,
knowingly
manner,
offers for either
any
or who otherwise
obscene, lewd, lascivious, filthy
distribution, any
or
sale or
newspa-
book, magazine, pamphlet,
or masochistic
sadistic
record,
drawing,
picture,
phonograph
story paper, writing, paper,
recording
film,
image,
tape
figure,
wire or
photograph, motion
written,
indecent character
аny
matter of an
or recorded
require
to be
may
may
or other means
mechanical
or
not
which
representations
sensory
auditory,
of such
visual
transmuted into
character,
misdemeanor,
upоn
guilty
conviction shall
of a
shall be
county jail
not more than 1
punished by imprisonment
for
in the
$1,000.00, by both such fine and
year
imprisonment.
by
not more than
a fine of
section, possession
purpose
of or more identical
"For the
of this
lewd, lascivious,
obscene,
filthy
any
copies, or 6 or more articles of
story paper, writing,
newspaper,
magazine, pamphlet,
indecent
paper,
picture
printed
slide,
record, picture drawing, photograph,
phonograph
motion
written,
recording,
any
film,
tape
figure, image,
wire or
prima
shall be
of an indecent
or recorded matter
sell, lend, give away,
рossession with intent
to
evidence of
facie
750.343a;
distribute,
28.575(1);
thing.”
MSA
MCLA
show or transmute
217,
265,
1961 PA
PA
as amended
added
64,
The civil obscenity statute is not direсted to the exhibition of a motion person, corporation firm or sells or is about to sell or with intent to sell or distribute or distributes distribute or has in his acquire possession about to with intent to sell or distribute
book, magаzine, pamphlet, paper, story writing, paper, comic picture, drawing, photograph, figure, image printed written or obscene, lewd, lascivious, of matter filthy, an indecent disgusting, indecent or or which contains an article or instru- purports ment of indecent or immoral use or to be for indecent or purpose, county immoral use or the circuit chancery court of such in jurisdiction adjudicate upon shall have and exercise the lawful propriety sale, distribution, possession acquisition of such under provisions in enjoin and same accordance with the of this act and to adjudged propеr. if not to lawful and legal any city, village "Sec. 2. The chief executive of office township prosecuting attorney county may charter institute against person, maintain an action the court such firm or corporation enjoin sale further sale or the or further distribution distribution or the any book, magazine, pamphlet, paper, picture, drawing, photograph, figure book, story paper, writing, comic written or matter an indecent character.” PA 126. *5 253 Lindemer, J. Dissenting affirmed. Appeals is
The Court of Fitzgerald, Kavanagh, J., and Williams C. Levin, J. JJ., concurred with in the decision of Ryan, J., no this part took case.
Lindemer, (dissenting). The construction J. rigidly more examinеd always criminal statutes is us to that of Justice Levin asks than civil statutes. Legislature regulate desired believe that lewd, lascivious, filthy, that inde- through the disgusting extensively cent or more my opinion It is process than civil. distribution of such material that statute’s of "The Devil Miss Jones”. covers exhibition reading that my opinion It further film is eliminate say The statute does not the words strained. image” a photograph, figure mean "picture, figure writing on picture, photograph, brings To so hold to mind paper paper. or book Mr. Bumble who remarked: * * * that, ass, supposes
"If the law the law is a a idiot.” Oliver Twist Charles Dickens. California, 2607;
Miller (1973), L Ed 2d establishes the standards is di- applicable here. civil rected to the exhibition of motion Appeals The Court of should be reversed. Coleman, J., Lindemer, concurred with J.