Fortner v. State
| Decision Date | 06 October 1975 |
| Docket Number | No. CR,CR |
| Parties | Dan W. FORTNER and Sharon Lee Holcombe, Appellants, v. STATE of Arkansas, Appellee. 75--98. |
| Court | Arkansas Supreme Court |
John M. Fincher, North Little Rock, for appellants.
Jim Guy Tucker, Atty. Gen., by Terry Kirkpatrick, Asst. Atty. Gen., Little Rock, for appellee.
The appellants Dan W. Fortner and Sharon Lee Holcombe were convicted at a jury trial in the Pulaski County Circuit Court on information filed by the prosecuting attorney charging them with selling an obscene motion picture film in violation of Ark.Stat.Ann. § 41--2729 (Supp.1973). The appellant Fortner was fined $2,000 and sentenced to three years in the penitentiary, and the appellant Holcombe was fined $2,000. The appellants rely on the following points for reversal:
'The court erred in refusing to grant defendants' supplemental motion to dismiss.
The court erred in refusing to grant defendants' motion to dismiss.
The trial court erred in denying defendant Holcombe's motion for directed verdict at the conclusion of the state's case.
The closing argument of the attorney for the state was improper and so prejudiced defendant Holcombe that the conviction must be reversed.
The trial court erred in refusing to give certain jury instructions requested by defendants and in giving certain jury instructions over the objection of defendants.'
Ark.Stat.Ann. § 41--2729 (Supp.1973) provides as follows:
'Hereafter it shall be unlawful for any person knowingly to exhibit, sell, offer to sell, give away, circulate, produce, distribute, attempt to distribute, or have in his or her possession any obscene film.'
Section 41--2729, supra, makes the enumerated acts unlawful but Ark.Stat.Ann. § 41--2731 (Supp.1973) makes the selling of obscene films a felony and mere possession a misdemeanor. The appellants argue that the statute is unconstitutionally overbroad because it makes mere possession of an obscene film a criminal act. Their same argument was thoroughly rejected in our recent decision in the case of Smith v. State, 258 Ark. ---, 528 S.W.2d 360 (1975), and we find no merit to that contention here. For a more thorough discussion on this point see Levy v. Albright, 204 Ark. 657, 163 S.W.2d 529 (1942), cited in Smith, supra.
In support of their assignment that the trial court erred in refusing to grant their motion to dismiss, the appellants recite three reasons, separately designated as 'A,' 'B' and 'C.' They contend under 'A' that § 41--2729, supra, as judicially construed, is vague and indefinite and thus violative of due process in that it does not provide fair notice of what is prohibited. They argue under 'B' that wholly aside from the difficulties in determining what standards obtain in Arkansas, the 'new Miller' test is exquisitely vague and lacking in the precision necessary in legislation touching upon First Amendment rights; and, they argue under 'C' that the information charged only that the defendants, on a particular date, at a certain business location, did sell an obscene motion picture film, and that the information is constitutionally insufficient. The arguments under reasons 'A' and 'B' were advanced and rejected in Smith v. State, supra, and we find no merit in the appellants' contention under 'C.'
Ark.Stat.Ann. § 43--1006 (Repl.1964) reads as follows:
The appellants do not deny that the information satisfies the statutory requirements but they contend that the information does not set forth facts which would enable the appellants to plead an acquittal or conviction in bar of future prosecution for the same offense. The appellants cite two cases, Hagner v. United States, 285 U.S. 427, 52 S.Ct. 417, 76 L.Ed. 861 (1932), and United States v. Debrow, 346 U.S. 374, 74 S.Ct. 113, 98 L.Ed. 92 (1953), in support of this argument. In both cases the United States Supreme Court upheld the validity of criminal indictments because they gave the defendants sufficient notice of their alleged crimes. Indeed, the test set forth in Hagner and quoted in Debrow indicates that it is the court record and not the indictment alone which forms the basis for a plea of former jeopardy. In these cases the court said:
We find no merit in the appellants' second assignment.
We must agree that the trial court erred in denying defendant Holcombe's motion for directed verdict at the conclusion of the state's case. It is true that a verdict should be directed only when there is no factual issue to go to the jury. Parker v. State, 252 Ark. 1242, 482 S.W.2d 822 (1972). But as we view the record in the case at bar, there was no evidence from which the jury could have found, without resorting to surmise and conjecture, that the appellant Holcombe had knowledge that the film sold was an obscene film, as required for conviction under § 41--2729, supra. The appellant Holcombe correctly asserts that there was no direct evidence that she was even present during the conversation in which the appellant Fortner described the film to the investigating officer. There was testimony that she was the person who put the money from the sale into the cash register, and there was also testimony that the cash register was located on a counter which was in front of the film racks from which...
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