McKinney v. State

• Decision Date: 09 May 1974
• Citation: 292 Ala. 484,296 So.2d 228
• Parties: In re Chester McKINNEY v. STATE of Alabama. Ex parte Chester McKinney. SC 486.
• Court: Alabama Supreme Court

Page 228

296 So.2d 228

292 Ala. 484

In re Chester McKINNEY v. STATE of Alabama Ex parte Chester McKinney.

SC 486.

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.

FAULKNER, Justice.

This is a pornography case involving the sale of a magazine entitled 'New Directions' after it had been judicially found to be obscene.

Now Directions' is published in North Hollywood, California by Jaybird Enterprises Inc. The masthead states that it is a 'cultural, scientific, educational, and sociological publication produced and distributed to illuminate the conviction that the unclothed human body is worthy of respect and deserving of increased acceptance in our culture . . . Subscription rates, $14.00 per year. Second-class postage paid in North Hollywood, California.' A review of its pictures contained in the magazine introduced into evidence as an exhibit reveal photographs of nude man and women exposing their genital organs in a revolting manner; male kissing female body near her genital organ; female kissing male in a like manner; females shown with their legs spread-eagle apart exposing their genital organs; male kissing the female breast; male sitting over female with his genital organ touching her mouth, and many more similar poses--the magazine contains 61 pages in all. After review of pictures of these grotesque nudes, a person of reasonable sensibilities will conclude that it is no wonder God made man and woman to wear clothes. Without them some are the most unattractive animals in His kingdom.

'New Directions' was one of a number of magazines declared to be obscene in a decree rendered by the Circuit Court of Mobile County on February 26, 1970, in an action styled, State of Alabama, ex rel Attorney General of Alabama, ex rel District Attorney of the 13th Judicial Circuit of Alabama v. The Magazine, 'Jaybird U.S.A.', No. 16, Vol. 4, No. 4; The Magazine, 'New Directions', No. 14, Vol. 4, No. 4, et al., Case Number 76399. Each of the magazines was determined to be mailable matter and each was declared to be contraband. There appears to be a typographical error in the style of the case which refers to No. 14, Vol. 4, No. 4 of 'New Directions'. The decree refers to No. 16, Vol. 4, No. 4.

On March 11, 1970, a State attorney accompanied by a State investigator, went to the Paris Bookstall, Birmingham, Alabama, a place of business operated by McKinney, and personally delivered a letter to McKinney informing him that 'New Directions' had been judicially declared to be obscene. On March 31, 1970, these officers returned to the Paris Bookstall and purchased the magazine, 'New Directions' from McKinney. While there, and with McKinney looking on, and in the presence of the investigator, the State attorney 'flipped' through the pages of the magazine. Afterwards, they left, and the investigator signed a complaint charging McKinney with violating Title 14, § 374(4), Code of Alabama 1940, Recompiled 1958, ¹ by selling obscene material which had been judicially declared to be obscene. McKinney was convicted in a trial before a jury and was given the maximum sentence under the statute. Before retiring, the jury was charged by the court that the only issue of fact for them to decide involved the question of selling material judicially declared obscene as charged in the complaint.

McKinney appealed his conviction to the Court of Criminal Appeals. The appellate court affirmed the trial court without rendering an opinion. Upon his application for rehearing being denied, McKinney filed a petition for certiorari, alleging deprivation of constitutional rights; that this was a case of first impression. We granted certiorari.

Neither McKinney nor the State introduced evidence in the trial on the question of obscenity, vel non. McKinney raised that issue in a motion to quash the complaint which the trial judge overruled. A motion to exclude the evidence was also overruled by the trial court. The validity of the judgment of the Mobile Circuit Court was questioned by McKinney on objection to its introduction in evidence, first in the sense that he was not a party to the action, second that the State had to prove by affirmative evidence that the subject magazine was obscene in this trial.

The action in the Mobile Circuit Court was filed pursuant to the provisions of Act No. 856, § 5 through § 11, Acts of Alabama 1961, Vol. II. The court acting as trier of fact found the magazine to be obscene. The 1961 Act defines obscene to mean '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.' (Emphasis added.)

The Act passes the constitutional test laid down by United States Supreme Court decisions. Under Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419, the court set out new guides to use in regulating obscene material. State offenses must be limited to works which:

1. Depict or describe sexual conduct which is specifically defined by applicable State law (as written or authoritatively construed) and

2. Taken an a whole, appeals to the prurient interest in sex and

3. Portrays sexual conduct in a patently offensive way, and

4. Taken as a whole does not have serious literary, artistic, political, or scientific value.

The guide for determining what is 'patently offensive' or appeals to the 'prurient interest' is to be 'the average person' applying contemporary community standards. We construe 'contemporary community standards' to encompass the State of Alabama. National standards are not required under Miller. While a trial court may empanel a jury in an advisory capacity to measure the essentially factual issues of 'prurient appeal' and 'patent offensiveness' by the prevailing 'contemporary community standards' it is not constitutionally required. Allexander v. Virginia, 413 U.S. 836, 93 S.Ct. 2803, 37 L.Ed.2d 993 (1973). Furthermore, when the material itself is placed into evidence, 'expert' State testimony as to its allegedly obscene nature, or other ancillary evidence of obscenity, is not constitutionally required. Kaplan v. California, 413 U.S. 115, 93 S.Ct. 2680, 37 L.Ed.2d 492 (1973).

Constitutional safeguards are provided in the Act for one charged with violating its provisions. Section 5 provides for the institution of proceedings for an adjudication in a Circuit Court. (While this section provides that the action shall be filed in a Court of Equity, under The Rules of Civil Procedure adopted by this court on July 3, 1973, there is now only one form of action known as a 'Civil Action'. Rule 2, Rules of Civil Procedure.) Section 6 of the Act provides the type of complaint to be filed and the allegations which the complaint shall contain. Section 7 provides that an order to show cause shall be issued and service of same, upon the res and the person charged. Section 8 gives the respondent the opportunity to file defensive pleadings and permits answer by amicus curiae. Section 9 provides for maximum promptness of the hearing commensurate with constitutional requirements, including due process, freedom of the press, and freedom of speech. The burden is on the State to prove obscenity, vel non, in the adjudication of same.

Section 12 provides,

'Any mailable matter which is sent or caused to be sent, brought or caused to be brought into this State for sale or commercial distribution, or which in this State is sold, exhibited or commercially distributed, given away or offered to be given away or offered to be given away by any person, with knowledge of the decree finding it to be obscene, or is in the possession of any such person with intent to sell or commercially distribute or exhibit, or give away or offer to give away, is subject to the provisions of Section 4 of this Act.'

We now decide the question of whether the Mobile Circuit Court decree was binding on McKinney since he was not a party to the action and since obscenity, vel non, was not permitted as an issue by the trial court.

The Mobile action was in personam and in rem. The magazine, 'New Directions,' the subject matter in this case, was one of the res declared by the court to be obscene. The decree of the court, which was not appealed, established the status of the res, and the decree as to the status of the res was conclusive against all the world as to that status. McCann v. Ellis, 172 Ala. 60, 55 So. 303 (1911). See Brennen v. Ellis, 173 Ala. 718, 55 So. 306 (1911); Jones v. Adler, 183 Ala. 435, 62 So. 777 (1913). See also Toole v. State, 170 Ala. 41, 54 So. 195 (1911), an in rem action against 114 barrels of beer for its condemnation where the court said the status of the property was to be fixed as to all the world.

The status of the res, 'New Directions' being established, and there being no change in the standards of obscenity under the statute from the time of the Mobile hearing to the trial below, no evidence of obscenity, vel non, was required in this case.

The standards under our statute were the same ante Miller as they were post Miller. We conclude that McKinney, after due notice of the decree, was subject to criminal prosecution for selling material judicially declared obscene.

We note in passing what Mr. Justice Douglas said in his dissent in Miller:

'If a specific book, play, paper, or motion picture has in a civil proceeding been condemned as obscene and review of that finding has been completed, and thereafter a person publishes, shows, or displays that particular book or film, then a vague law has been made specific.'

Justice Douglas contends that until there has been a civil proceeding placing the tract beyond the pale, there should be...