State v. Hart, 49

Citation287 N.C. 76,213 S.E.2d 291
Decision Date14 April 1975
Docket NumberNo. 49,49
CourtUnited States State Supreme Court of North Carolina
PartiesSTATE of North Carolina v. Dillard P. HART and Drewry Hall.

James H. Carson, Jr., Atty. Gen., Edwin M. Speas, Jr., Asst. Atty. Gen., Richard F Kane, Associate Attorney, Raleigh, for the State of North Carolina, appellant.

Harriss, Ruis & Mulligan, by Ronald H. Ruis and Michael J. Mulligan, Durham, for defendant appellees.

HUSKINS, Justice:

Prior to the enactment of Chapter 1434 of the 1973 Session Laws, G.S. § 14--190.2(h) (1973 Cum. Supp.) provided in pertinent part:

'Nothing in this section shall be construed as preventing any law enforcement officer from arresting any person when that person is charged under a proper warrant or indictment with a criminal violation of this Article . . ..'

Chapter 1434 of the 1973 Session Laws, Effective July 1, 1974, rewrote G.S. § 14--190.2(h) to read as follows:

'No person, firm or corporation shall be arrested or indicted for any violation of a provision of G.S. 14--190.1, G.S. 14--190.3, G.S. 14--190.4, G.S. 14--190.5, G.S. 14--190.6, G.S. 14--190.7, G.S. 14--190.8, G.S. 14--190.10, or G.S. 14--190.11 until the material involved has first been the subject of an adversary determination under the provisions of this section, wherein such person, firm or corporation is a respondent, and wherein such material has been declared by the court to be obscene or in the case of G.S. 14--190.10 or G.S. 14--190.11, to be sexually oriented and until such person, firm or corporation continues, subsequent to such determination, to engage in the conduct prohibited by a provision of the sections hereinabove set forth.'

It thus appears that at the time these defendants were arrested G.S. § 14--190.2(h) contained no provision prohibiting the arrest or indictment of an alleged violator of G.S. § 14--190.1 et seq. until the material involved had first been the subject of an adversary determination and declared by the court to be obscene. That provision became the law on July 1, 1974--after defendants had been arrested, tried, and sentenced, but during the pendency of their appeals. We are thus confronted with the question whether the amendment to G.S. § 14--190.2(h), effective July 1, 1974 during the pendency of this appeal, inures to the benefit of defendants and abates this prosecution.

We note at the outset that the 1973 amendment to G.S. § 14--190.2(h) does not Reduce the punishment or otherwise Remove any burden imposed upon these defendants by prior law. To the contrary, that amendment places an additional procedural burden upon the State to obtain an adversary judicial determination that the material in question is obscene, and thereafter disseminated by the accused, before he may be arrested or indicted. And no other provision of Chapter 1434 of the 1973 Session Laws reduces the punishment or otherwise removes any burden imposed on an accused by the law in effect prior to July 1, 1974. In that setting, appellate courts will not give effect to such changes in the law pending an appeal if the subsequent legislation (1) contains a savings clause or (2) manifests a legislative intent to the contrary, or (3) where there is a constitutional prohibition. State v. Currie, 284 N.C. 562, 202 S.E.2d 153 (1974); State v. Cameron, 284 N.C. 165, 200 S.E.2d 186 (1973), cert. denied 418 U.S. 905, 94 S.Ct. 3195, 41 L.Ed.2d 1153 (1974); State v. Harvey, 281 N.C. 1, 187 S.E.2d 706 (1972); State v. Pardon, 272 N.C. 72, 157 S.E.2d 698 (1967).

Chapter 1434 of the 1973 Session Laws contains no savings clause; and we are aware of no constitutional prohibition which prevents giving retroactive effect to the changes wrought by the enactment of that chapter. In our view, however, there is in Chapter 1434 a Manifest legislative intent that said chapter should be applied prospectively only and should not be applicable to pending prosecutions.

In the interpretation of statutes the legislative will is the controlling factor. 'Indeed, it is frequently stated in effect that the intention of the legislature constitutes the law.' 73 Am.Jur.2d, Statutes § 145 (1974). A construction which operates to defeat or impair the object of the statute must be avoided if that can reasonably be done without violence to the legislative language. Ballard v. Charlotte, 235 N.C. 484, 70 S.E.2d 575 (1952). Where possible, the language of a statute will be interpreted so as to avoid an absurd consequence. Hobbs v. Moore County, 267 N.C. 665, 149 S.E.2d 1 (1966); Young v. Whitehall Co., 229 N.C. 360, 49 S.E.2d 797 (1948); State v. Scales, 172 N.C. 915, 90 S.E. 439 (1916); State v. Earnhardt, 170 N.C. 725, 86 S.E. 960 (1915).

'Of course criminal statutes must be strictly construed. (Citations omitted.) But this does not mean that a criminal statute should be construed stintingly or narrowly. It means that the scope of a penal statute may not be extended by implication beyond the meaning of its language so as to include offenses not clearly described. (Citations omitted.) Even so, an interpretation which leads to a strained construction or to a ridiculous result is not required and will not be adopted. State v. Pinyatello, 272 N.C. 312, 158 S.E.2d 596 (1968). 'While a criminal statute must be strictly construed, the courts must nevertheless construe it with regard to the evil which it is intended to suppress. And the rule that statutes will be construed to effectuate the legislative intent applies also to criminal statutes.' 7 Strong's N.C.Index 2d, Statutes § 10; State v. Brown, 221 N.C. 301, 20 S.E.2d 286 (1942); State v. Hatcher, 210 N.C. 55, 185 S.E. 435 (1936); State v. Humphries, 210 N.C. 406, 186 S.E. 473 (1936).' State v. Spencer, 276 N.C. 535, 173 S.E.2d 765 (1970).

When Chapter 1434 of the 1973 Session Laws is subjected to these rules of construction, it is manifest that the legislature intended the changes wrought by that enactment to be prospective only beginning July 1, 1974. Chapter 1434 amended G.S. § 14--190.1 et seq. by (1) changing the definition of 'obscenity' fashioned in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), and Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966), to conform to the new definition of obscenity contained in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), (2) defining 'sexual conduct' to conform to the holding in Miller, and (3) amending former G.S. § 14--190.2(h) to prohibit the arrest or indictment of any person, firm or corporation for a violation of G.S. § 14--190.1 et seq. until the material involved had been declared obscene in an adversary proceeding and the material thereafter disseminated.

The foregoing changes did not repeal the former anti-obscenity statutes but only amended them effective July 1, 1974. 'As a general rule, except in so far as an amendment may operate as an implied repeal of a statute . . ., the amendment of a criminal statute does not affect the prosecution or punishment of a crime committed before the amendment became effective, but as to such crimes the original statute remains in force.' 22 C.J.S. Criminal Law § 26, at 87 (1961).

It appears that the definition of 'obscenity' in our former statute under which these defendants are charged placed a heavier burden on the State to convict than the definition prescribed in Miller v. California, supra. Since the latest amendment to G.S. § 14--190.1 through G.S. § 14--190.11 (a codification of Chapter 1434 of the 1973 Session Laws) makes it easier for the State to convict violators, the amendment affords these defendants no grounds on which to contend that their convictions are now illegal and must abate.

Further, we note that although Chapter 1434 of the 1973 Session Laws was ratified on April 13, 1974, the General Assembly specifically provided that the act become effective July 1, 1974. This clearly demonstrates the manifest intent of the General Assembly that Chapter 1434 should not be applied retroactively. Otherwise, we have an obviously absurd result: An act ratified on April 13, 1974 with its effective date postponed until July 1, 1974, and yet to be retroactively applied to all prior pending prosecutions! To further confound the hiatus, such an interpretation and application of Chapter 1434 would mean, In effect, that the State had no anti-obscenity statutes from April 13, 1974 through June 30, 1974, because prosecutions initiated during that period would not have become final before July 1, 1974, on which date all pending prosecutions would have to be abandoned. Such a result could not have been intended by the General Assembly and we will not adopt an interpretation which produces a result so obviously ridiculous. We hold that the Legislature manifestly intended that Chapter 1434 of the 1973 Session Laws should become effective on July 1, 1974, and should be applied prospectively only. It necessarily follows that the charges against these defendants were not abated by the enactment of Chapter 1434 of the 1973 Session Laws.

Defendants next contend that insertion of a definition of 'sexual conduct' into G.S. § 14--190.1 by enactment of Chapter 1434 of the 1973 Session...

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