McKinney v. State
| Decision Date | 07 May 1976 |
| Parties | In re Chester McKINNEY v. STATE of Alabama. Ex parte Chester McKinney. SC 1089. |
| Court | Alabama Supreme Court |
Petition for writ of certiorari to the Court of Criminal Appeals.
Ferris S. Ritchey, Jr., Birmingham, Robert Eugene Smith, Atlanta, Ga., for petitioner.
William J. Baxley, Atty.Gen., and Joseph G.L. Marston, III, Asst.Atty.Gen., for the State, respondent.
Petitioner was convicted on October 24, 1973, in the Circuit Court of Jefferson County for selling a magazine, "Nude Figure." Previously, the magazine had been judicially declared to be "obscene" by the Mobile Circuit Court, in equity. The conviction was affirmed by the Court of Criminal Appeals on October 29, 1974, rehearing denied November 26, 1974, 57 Ala.App. ----, 333 So.2d 842. The Court of Criminal Appeals in its opinion (per Harris, J.) wrote that the "precise issues raised on this appeal were decided adversely to appellant by the Supreme Court of Alabama on May 9, 1974, in Ex parte McKinney, 292 Ala. 484, 296 So.2d 228." As it was constrained by law to do, the Court of Criminal Appeals properly followed the 5-4 opinion of this Court (per Faulkner, J.) in Ex parte McKinney, 292 Ala. 484, 296 So.2d 228 (1974). (SC 486).
On December 9, 1974, petitioner filed a petition for writ of certiorari in the instant case. On January 9, 1975, we denied the petition in a memorandum per curiam opinion, five justices concurring, four justices dissenting. On January 23, 1975, petitioner filed an application for rehearing.
In the meanwhile, this same petitioner filed a petition for writ of certiorari with the United States Supreme Court in the prior McKinney case [our SC 486], supra. We delayed our determination in the instant case, leaving the cause pending on rehearing, awaiting the United States Supreme Court's ruling in McKinney [our SC 486], U.S. Supreme Court No. 74-532. On June 23, 1975, the petition for certiorari was granted by the United States Supreme Court.
Therefore, on September 5, 1975, we withdrew our opinion in the instant case, granted rehearing and issued the writ of certiorari. We advised counsel for both sides that it would be unnecessary to submit the instant case until after the United States Supreme Court had rendered its decision in the other McKinney case.
On March 23, 1976, the United States Supreme Court rendered a unanimous opinion authored by Mr. Justice Rehnquist in McKinney v. State of Alabama, 424 U.S. 669, 96 S.Ct. 1189, 47 L.Ed. 387, 44 L.W. 4330, reversing and remanding our case SC 486. The court held that our Alabama procedures, insofar as they precluded petitioner from litigating the obscenity vel non of "New Directions" as a defense to his criminal prosecution, violated the First and Fourteenth Amendments, citing Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965...
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