People v. Zerilli

• Citation: 14 Mich.App. 513,165 N.W.2d 619
• Decision Date: 29 November 1968
• Docket Number: Docket No. 3728,No. 1,1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Sam ZERILLI, Defendant-Appellant
• Court: Court of Appeal of Michigan (US)

Page 619

165 N.W.2d 619

14 Mich.App. 513

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Sam ZERILLI, Defendant-Appellant.

Docket No. 3728.

Court of Appeals of Michigan, Division No. 1.

Nov. 29, 1968.

Released for Publication March 19, 1969.

Ernest Goodman, Goodman, Eden, Robb, Millender, Goodman & Bedrosian, Detroit, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, William L. Cahalan, Pros. Atty., Samuel J. Torina, Chief Appellate Lawyer, Barbara K. Hackett, Asst. Pros. Atty., Wayne County, Detroit, for appellee.

Before T. G. KAVANAGH, P.J., and LEVIN and NEWBLATT, ^* JJ.

PER CURIAM.

Plaintiff appeals his jury trial conviction of possession with intent to sell and sale of obscene publications. ¹

The publications that were purchased by police officers from the defendant at his Tip-Top Book Store were typical so-called 'girlie' and 'nudist' magazines.

We are satisfied that the seized publications are of the same type held not to be 'obscene in the constitutional sense' ² in Redrup v. New York (1967), 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515, and in the cases collected in footnote 3 of Ginsberg v. State of New York (1968), 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195.

No claim has been made that the statute in question reflects 'a specific and limited state concern for juveniles,' nor is there 'any suggestion of an assault upon individual privacy by publication in a manner so obstrusive as to make it impossible for an unwilling individual to avoid exposure to it,' nor is there 'evidence of the sort of 'pandering' which the Court found significant in Ginzburg v. United States (1966), 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31.' See Redrup v. New York, Supra, 386 U.S. p. 769, 87 S.Ct. p. 1415.

Reversed. The defendant is discharged.

* STEWART A. NEWBLATT, Circuit Judge for the County of Genesee, appointed by the Supreme Court for the hearing month of June, 1968, pursuant to § 306 P.A.1964, No. 281.

1 C.L.1948, § 750.343a as amended by P.A.1964, No. 143 (Stat.Ann.1968 Cum.Supp. § 28.575(1)).

2 A Book Named 'John Cleland's Memoirs of a Woman of Pleasure' v. Attorney General of Commonwealth of Massachusetts (1966), 383 U.S. 413, 418, 86 S.Ct. 975, 16 L.Ed.2d 1.