French v. Shriver

• Decision Date: 07 February 1972
• Citation: 3 Pack 727,476 S.W.2d 636,225 Tenn. 727
• Parties: , 225 Tenn. 727 Bill FRENCH and Ronnie Walker, Petitioners, v. Thomas H. SHRIVER, District Attorney General, Respondent.
• Court: Tennessee Supreme Court

Page 636

476 S.W.2d 636

3 Pack 727, 225 Tenn. 727

Bill FRENCH and Ronnie Walker, Petitioners, v. Thomas H. SHRIVER, District Attorney General, Respondent.

Supreme Court of Tennessee.

Feb. 7, 1972.

Herbert R. Rich, Nashville, for petitioners; Philip M. Carden, Nashville, of counsel.

David M. Pack, Atty. Gen. of Tennessee, C. Hayes Cooney, Asst. Atty. Gen. of Tennessee, for respondent.

OPINION

CHATTIN, Justice.

This matter is before this Court on a petition for the common law writs of certiorari and supersedeas. The petition was granted by a member of this Court and set for hearing at the December 1971 Session of this Court. It was ordered arguments and briefs be confined to the following issues:

'(1) Whether T.C.A. Section 39--3003, et seq., provide exclusive methods of procedure for the prosecution of actions arising thereunder; and

'(2) If such procedures are not exclusive, whether the procedure used in the case now before the Court has any foundation under the laws of the State of Tennessee.'

After careful consideration, we are of the opinion the writs heretofore granted should be sustained and the proceedings in the trial court superseded and dismissed.

On September 9, 1971, an Assistant Attorney General for Davidson County purchased two alleged obscene magazines and took photographs of other alleged obscene material at the Swingers Adult News and Peep Show, an alleged business operated by petitioners for the purpose of sale, display, distribution or exhibition of obscene material in violation of our Obscenity Laws, T.C.A. Section 39--3003 et seq.

Pursuant to acquiring this information, the Assistant Attorney General appeared before Honorable John T. Boone, Jr., Judge of the Metropolitan General Sessions Court, Part III, and made affidavit for the issuance of a search warrant.

The warrant was issued and directed the officer to make an inventory of the business house operated by petitioners of certain alleged obscene material displayed or exhibited for sale and distribution; and that the warrant and inventory be returned before the judge issuing the warrant.

On the same day, after the search warrant had been returned with the inventory, the District Attorney General filed a petition in the criminal court of Davidson County for a show cause order against petitioners requiring them to appear before the Judge of the Criminal Court, Division I, of Davidson County, on September 13, 1971, at two P.M., and show cause why the items described in the search warrant and inventory exhibited to the petition should not be ordered subject to seizure.

Judge John L. Draper granted the petition and caused the scire facias or show cause order to issue and be served on petitioners together with the petition.

Also, on the same day, the Clerk of the Criminal Court issued a subpoena duces tecum to which was attached a copy of the inventory to the search warrant requiring them to bring with them one copy of all the magazines and other alleged obscene material set forth in the inventory at the hearing on September 13, 1971.

On September 13, 1971, the parties appeared in court as directed. Petitioners filed a motion to quash the subpoena, to withdraw the show cause order, to dismiss the petition for the show cause order and quash the search warrant.

The trial judge overruled the motion. The matter was set for hearing on October 15, 1971.

On October 11, 1971, petitioners filed their petition in this Court for writs of certiorari and supersedeas.

The petition alleged the trial court acted illegally and beyond its jurisdiction in sustaining the petition for the writ of scire facias or show cause order.

Petitioners concede T.C.A. Section 39--3003 et seq., are not exclusive in the sense they preclude the use of other legal methods of procedure for the prosecution of actions arising thereunder.

However, they insist those code sections are exclusive with respect to seizure and suppression of any obscene material.

T.C.A. Section 39--3003 provides in part:

'It shall be a misdemeanor for any person to knowingly sell, distribute, display, exhibit, possess with the intent to sell, distribute, display or exhibit; or to publish, produce, or otherwise create with the intent to sell, distribute, display or exhibit any obscene material. This paragraph shall not be construed to permit the seizure or suppression of any material, obscene or otherwise, such seizure or suppression to be lawful only as expressly provided for by law. Provided however, that if the district attorney-general is of the opinion that this section is being violated, he may file a petition in a circuit, chancery, or criminal court of his district relating his opinion, and request the court to issue a temporary injunction enjoining the person named in said petition from removing the obscene material from the jurisdiction of the court pending an adversary hearing on said petition. Where a temporary injunction is so issued, such adversary hearing shall be held within two (2) days after joinder of issues, at which hearing the court will determine whether or not the material in question is, in fact, obscene. On a finding of obscenity, the court shall continue its injunction in full force and effect for a period not to exceed forty-five (45) days or until an indictment on the matter has been submitted to the grand jury. If forty-five (45) days elapse and the grand jury has taken no action, the injunction terminates. The injunction...