Ballew v. State

• Decision Date: 09 May 1974
• Citation: 292 Ala. 460,296 So.2d 206
• Parties: In re Claude David BALLEW v. STATE of Alabama. Ex parte Claude David Ballew. SC 480.
• Court: Alabama Supreme Court

Page 206

296 So.2d 206

292 Ala. 460

In re 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.

Ferris S. Ritchey, Birmingham, Robert Eugene Smith, D. Freeman Hutton, Atlanta, Ga., for petitioner.

William J. Baxley, Atty. Gen., George M. Van Tassel, Jr., Asst. Atty. Gen., and Francis A. Poggi, Jr., Sp. Asst. Atty. Gen., for the State.

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 DAVID 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 Rocket Part 1971, as Chapter 64C, Title 14, Sections 374(16j) through 374(16o), and for convenience will at times be so referred to hereinafter.

Section 374(16j) contains specific definitions of words used in the Act, such as 'nudity,' 'sexual conduct,' 'sado-masochistic abuse,' 'hard-core pornography,' 'obscene,' etc. 'Obscene' is defined as a description or representation in any form of nudity, sexual conduct, sexual excitement, or sado-masochistic abuse, when it, (1) Predominately appeals to the prurient, shameful, or morbid interest, and (2) is patently offensive to prevailing or contemporary standards in the adult community as a whole with respect to what is suitable material, and (3) is utterly without redeeming social value or importance. Section 374(16k) makes the sale or loan to a person eighteen years of age or over, of any picture, photograph, drawing, magazine, pamphlet, etc., of a person, or portion of the human body, which depicts nudity, sexual conduct, or sado-masochistic abuse and which is obscene or represents hard-core pornography.

Section 374(16m) reads:

'(a) No prosecution may be commenced against any person for violating sections 374(16k) and 374(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 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 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.)'

Section 374(16o) provides that the provisions of Chapter 64c are cumulative of, and in addition to, all laws dealing with obscene or hard-core pornography, and shall not be construed to repeal other laws on such matters.

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 magazines 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 to a prurient sex interest in that it pictures 'just female nudes,' and is not sick or morbid.

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 educational.

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, as 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 Section 374(16m) (Notice to be given) is clear and unambiguous. It sufficiently defines what is pornographic as to fully warn anyone of what is prohibited activity.

In Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419, 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, 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 statute.

In Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446, 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 (Sections 374(16j) through 374(16o), is unconstitutional in toto because of the unconstitutionality of Section (16m), particularly in view of the recent decision rendered 5 January 1974 by a three judge Federal District Court for the Middle District of Alabama, Northern Division,...