McKinney v. State, 6 Div. 806
| Decision Date | 18 November 1971 |
| Docket Number | 6 Div. 806 |
| Citation | 254 So.2d 714,287 Ala. 648 |
| Parties | Chester McKINNEY, Individually v. STATE of Alabama. --811. |
| Court | Alabama Supreme Court |
Ferris S. Ritchey, Jr., Birmingham, Robert Eugene Smith, Towson, Md., for appellants.
William J. Baxley, Atty. Gen., and Charles H. Barnes, Asst. Atty. Gen., for the State.
Chester McKinney owned and operated an 'Adults Only' book store on 5th Avenue, North, in Birmingham, Alabama. The windows of the store were painted so that the items offered for sale were not visible except to those who entered the store. It does not appear that there was any type of promotion or advertising to stimulate the sales of the book store or any sales to minors.
On March 9, 1970, one D. H. Johnson, Chief Investigator for the Attorney General's office of the State of Alabama, visited the book store as an investigator of pornography and purchased six magazines which were openly offered for sale. The magazines he purchased were sealed with cellophane covers so that they could not be picked up and thumbed through. The front and back covers, however, were clearly visible through the cellophane covers and in one or more of these covers were the photographs of a female with her feet spread-eagled apart, exposing her genital organs. On the basis of the sale and purchases of these magazines the Assistant Attorney General in the State of Alabama filed bills of complaint against each magazine in the equity side of the Circuit Court of Jefferson County praying that the magazines be adjudicated obscene and that a temporary injunction be issued against their further exhibition or sale in this State. Together with the bill of complaint was an affidavit from the Assistant Attorney General alleging that in his opinion the purchased magazines were obscene. The magazines themselves were attached as exhibits to the bills. The respondent demurred to the complaint raising constitutional questions and upon the demurrers being overruled he filed an answer denying that the magazines were constitutionally obscene and a cross-bill seeking an injunction restraining further interference with the operation of the business. The bills were filed pursuant to the provisions of Alabama Law on Obscenity which appears as Chapter 64 of Title 14 in the pocket part of the 1958 Recompiled Code of Alabama.
Paragraph 7 of each of the complaints charged as follows:
The cases were consolidated for trial.
Only one witness testified for the complainant. He merely testified to the purchase of the magazines in question from the book store and as to its location and the fact that it had the quotation 'Adults Only' on the sign both inside and outside the store and as to the other facts set forth above.
The respondent called as his only witness the Assistant Attorney General who had instituted the proceedings. He was examined by the complainant as to his legal knowledge of the various opinions of the courts on the matter concerning the subject of obscenity. For what purpose this examination was conducted, we do not speculate.
No further evidence was offered by either party, thereupon the court entered the following decree:
'FINAL DECREE
'This cause came on to be heard and was submitted upon pleadings and proof as noted on June 23, 1970.
'This cause was filed under Title 14, Section 374(3) of the Code of Alabama of 1940 as recompiled and amended.
'The party Complainant is properly styled under the provisions of Chapter 64--A of said Title 14 and the party Respondents are properly named thereunder. The prayer for relief in the original Bill of Complaint prays for an adjudication by the Court that the magazine, the subject of this action, contains matter that is obscene, for a permanent injunction against the preparing, selling, exhibiting, commercially distributing, giving away or offering to give away or possessing it with the intent to sell and commercially distribute or exhibit or offer to give it away, and for its surrender, seizure and destruction.
'The Cross-Bill of the Respondent, Chester McKinney, prays for a ruling by the Court that the matter contained in the said magazine is not obscene, and further prays that the Court will enjoin the Complainant-Cross-Respondent from enforcing the said Statute upon which the Bill of Complaint is founded and from instituting any new civil or criminal proceedings against Respondent-Cross-Complainant.
'The Court must found its adjudication of obscenity, vel non, upon the prescribed definition contained in the said Section 374(3) as follows:
"'Obscene' means lewd, lascivious, filthy and pornographic and that to the average person, applying contemporary community standards, its dominant theme taken as a whole appeals to prurient interest.' The Court finds that the publication complained against comes within the definition of 'printed or written matter or material' as set forth in said subsection.
'Applying the above definition of the word 'obscene' to the printed or written material or matter complained against the Court finds that it is obscene. The Court gives weight and credence to the testimony of the...
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Pierce v. State
...the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.' McKinney v. State, 287 Ala. 648, 254 So.2d 714 (1971), cert. denied, 405 U.S. 1075, 92 S.Ct. 1499, 31 L.Ed.2d 809 (1972). (Since there are a number of cases involving McKinn......
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Gilbert v. City of Montgomery
...arises in the instant case as to whether such error was reversible error. Following the precedent of Pierce and McKinney v. State, 287 Ala. 648, 254 So.2d 714 (1971), cert. den. 405 U.S. 1075, 92 S.Ct. 1499, 31 L.Ed.2d 809 (1972), this Court, based on the evidence, finds the publication to ......
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McKinney v. City of Birmingham
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Jackson v. City of Muscle Shoals
...obscene publications, etc.' became law. Our unofficial code has assigned this enactment to T. 14, §§ 374(1)--374(16). See McKinney v. State, 287 Ala. 648, 254 So.2d 714. The criminal provisions of this Act are set forth in § 4 thereof. Subsection (1) of said § 4 reads in pertinent part as '......