Coble v. City of Birmingham
Decision Date | 30 June 1980 |
Docket Number | 6 Div. 94 |
Citation | 389 So.2d 527 |
Parties | Jimmy E. COBLE v. CITY OF BIRMINGHAM. |
Court | Alabama Court of Criminal Appeals |
Ferris Ritchey, Birmingham, for appellant.
W. Otis MacMahon III, Asst. City Atty., Birmingham, for appellee.
This appeal involves a violation of § 16-18, General Code of Birmingham. Appellant was fined $350.00 and sentenced to 180 days hard labor.
The City of Birmingham charged in a Complaint that Jimmy Coble, the appellant, knowingly and unlawfully "sold an obscene book or magazine or matter entitled ... 'Special No. 20' to D. S. Luker which depicted or portrayed the following sexual conduct: Actual act or acts of homosexuality between males, homosexuality between females, sexual intercourse, fellatio, contrary to and in violation of Section 16-18 of the General Code of the City of Birmingham, Alabama, 1964, as amended." The appellant was tried in the Municipal Court without a jury, and was convicted. He appealed to the Jefferson Circuit Court.
The appellant filed, in the circuit court, a motion to suppress evidence and a motion to quash, both of which were overruled after supporting evidence was presented at a hearing prior to trial. The appellant was tried by a jury in the Jefferson Circuit Court and was found guilty as charged in the Complaint.
At the hearing on the motions, Richard Townes, Commander of the Administrative Vice Division for the City of Birmingham, acknowledged that he had discussed with Sgt. Triplett, Lt. Webb, and Officer Luker the type of bookstores in which arrests for obscenity violations would be made. Townes denied that they had decided not to make arrests of distributors of publications such as "Hustler," "Oui," "Playboy," and "Penthouse." Townes stated, "We just decided that we would enforce the City Ordinance that was pertaining to pornography." The record reveals the following:
James Melvin Burns, Magistrate of the City of Birmingham testified, that on June 5, 1978, he was familiar with the guidelines in the City Code for issuing arrest warrants. After viewing "Special Number 20," the witness recognized two photographs in the magazine. Burns, when asked whether he knew in June, 1978, the criteria necessary to constitute obscenity, answered, "I don't remember what my thought processes were."
Regarding the determination of probable cause, the record reveals the following:
According to Burns, no adversary hearing was held when D. S. Luker brought to the Magistrate the affidavit which resulted in the appellant's arrest.
Counsel for the defense, questioning Burns regarding his basis for determining probable cause, was allowed to read into evidence a portion of the transcript from a previous trial involving the appellant, the appellee, and the magazine now under review, "Special Number 20." That transcript reads:
Detective Sgt. L. H. Triplett testified that he was in charge of the Birmingham Vice Division Gambling and Pornography Detail. According to Triplett, plans for arrest or investigations of employees of adult bookstores or for purchases of magazines from adult bookstores were made by him, not by his superiors, although he kept his superiors aware of his activities. The witness admitted that he discussed with his superiors the type of materials which would be purchased to secure arrests for violations of Ordinance 16-18, as amended.
Also, Triplett admitted that they decided to limit their arrests to operators of adult bookstores who sold publications such as "Special Number 20." Triplett explained this decision by stating:
Triplett testified that the decision was made to make arrests whenever publications such as "Special Number 20" could be purchased and that adult bookstores were the only places where such publications could be purchased.
Triplett denied that he and his men were instructed "not to worry about or to consider" publications such as "Hustler," "Playboy," "Oui," and "Penthouse." The witness explained that the decision to occasionally look at such publications was made; however, the decision to "ignore" those publications was not made. Although the witness never made any arrests involving those publications, the publications were purchased by his men. According to Triplett, publications such as "Hustler" are sold throughout the City of Birmingham; however, magazines such as "Special Number 20" are sold only in adult bookstores.
Triplett stated that some books which were purchased from adult bookstores had never been presented to the Magistrate for the purpose of making arrests. When asked whether those books were obscene, the witness stated:
During further questioning, Triplett denied that he had instructed the...
To continue reading
Request your trial-
Hunt v. State
...and (3) selectivity based on an unjustifiable standard. Elmore v. State, 445 So.2d 943 (Ala.Cr.App.1983); Coble v. City of Birmingham, 389 So.2d 527, 533 (Ala.Cr.App.), cert. denied, 389 So.2d 535 (Ala.1980); Starley v. City of Birmingham, 377 So.2d 1131 (Ala.Cr.App.), cert. denied, 377 So.......
-
M.S. News Co. v. Casado, 80-2093
...Indeed it has been held by some courts that criminal prosecutions for obscenity need not be by jury trials. See Coble v. City of Birmingham, 389 So.2d 527, 533 (Ala.Cr.App.1980); Holderfield v. City of Birmingham, 380 So.2d 990, 991-93 (Ala.Cr.App.1979), cert. denied, 449 U.S. 888, 101 S.Ct......
-
Squires v. City of Saraland
...and (3) selectivity based on an unjustifiable standard. Elmore v. State, 445 So.2d 943 (Ala.Crim. App.1983); Coble v. City of Birmingham, 389 So.2d 527, 533 (Ala.Crim. App.), cert denied, 389 So.2d 535 (Ala. 1980); Starley v. City of Birmingham, 377 So.2d 1131 (Ala.Crim.App.), cert. denied,......
-
Henry v. State
...and that no presumption of guilt or inference of any kind should be drawn from his failure to testify.' " Coble v. City of Birmingham, 389 So.2d 527, 535 (Ala.Cr.App.), cert. denied, 389 So.2d 535 (Ala.1980) (quoting Whitt v. State, 370 So.2d 736, 739 In the case before us, defense counsel ......