holding that "[p]hrases such as 'to cause any child to become delinquent,' [and] 'to induce, aid, or encourage any child' . . . [found in predecessor statute to § 12-15-13] cannot meet the strict standard of specificity required in a criminal statute affecting expression protected by the first amendment"
How later courts described this case
- holding that "[p]hrases such as 'to cause any child to become delinquent,' [and] 'to induce, aid, or encourage any child' . . . [found in predecessor statute to § 12-15-13] cannot meet the strict standard of specificity required in a criminal statute affecting expression protected by the first amendment"
Written by the judges who cited it.
The opinion
PITTMAN, District Judge
(dissenting in part).
I concur in the opinion and decree with the exception of the unconditional release in Case No. 2898 — N of the films seized at the following theaters: 80 Drive-In, Inc., Selma, the Festival Cinema, Birmingham, the Auto Movies #1, Jefferson County, and the Etowah Art Center, Attalla. I dissent from this portion of the decree.
I concur in the release of the films to the plaintiffs, but I would order the plaintiffs to deliver to the defendants’ prosecuting attorneys, upon the request of the defendants respectively, with reasonable notice to the plaintiffs, one print of each of the films seized for the use in the preparation and trials of the criminal cases involving such films now pend *824 ing in the respective courts. On the question of releasing, I would follow Metzger v. Pearcy, 7th Cir. 1968, 393 F.2d 202 , and which is partially followed by Tyrone, Inc. v. Wilkinson, 4th Cir., 1969, 410 F.2d 639 , supra, footnote 27, p. 1213 of this majority opinion.
The use of these films unconstitutionally seized presents the question of whether the doctrine “fruit of the poison tree” is applicable. I do not think so. We have held these seizures and pending charges were done in good faith. At the time of the seizures there had not been a clear pronouncement by the Fifth Circuit or the United States Supreme Court on seizures of films by law enforcement officers, after full viewing, incident to an arrest for an offense committed in their presence.
These films were publicly advertised, publicly exhibited to thousands of persons, including the seizing officers. The projection of these films and the sources of the projections were in obvious view of the seizing officers and hundreds of others present at the theaters at the time of their seizures. There was no invasion of the privacy of an individual’s person, his home, sanctuary, or property in the classic sense of searches without a search warrant, but the seizures were incident to arrests. There are no benefits accruing to the prosecution or detriments to those criminally charged by reason of evidence obtained which was not known to be in their possession or undisclosed before the seizures.
As we have attempted to accommodate and resolve the problem of suppression in the name of the law in the sensitive area of First Amendment rights in a realistic manner, we should examine the other side of the coin and accommodate and realistically resolve problems resulting from our rulings in order that the public may have its valid laws effectively enforced.
Our resolution should be equitable to all concerned. We have said to the defendants that you cannot seize films as you did in these instances in the future. I would say to the plaintiffs in this case, the defendants have the right to the use of these films in these pending prosecutions. I believe the courts not only should be concerned with sound legal theory, but also should be concerned with sound practical applications of legal theories in an equitable manner where existing sound legal theories come into conflict and are resolved in a particular case.
In all likelihood, these films will be removed from the state. It is highly doubtful the defendants can obtain them except by the acquiescence of the owners-plaintiffs, which is unlikely. In the event of plaintiffs’ objections, difficult legal problems will arise by reason of them being beyond the effective process powers of the state and other defendants which are probably insurmountable. 1
*825 ORDER
PER CURIAM.
A preliminary injunction, based upon detailed findings of fact and conclusions of law, was made and entered in the above-captioned cases on September 30, 1969. The members of the panel constituting the three-judge court in this case, after determining that it would be appropriate to conduct an in-chambers conference with the attorneys representing the parties, directed that such a conference be held. Pursuant to said directive, the attorneys representing the parties in these cases and the judges constituting the panel in said cases met for an in-chambers conference December 18, 1969.
During the conference it was stipulated and agreed that any and all issues that were not specifically decided by this court in the opinion and order of September 30, 1969, were waived. This waiver specifically includes a claim for damages by the plaintiffs in 306 F.Supp. 802 . It was further agreed by the attorneys representing the parties in these cases, without any waiver as to the positions heretofore taken by the parties upon the issues involved, that the preliminary injunction issued September 30, 1969, could be enlarged without further proceedings into a permanent injunction.
Accordingly, it is ordered that the preliminary injunction made and entered in the above-captioned cases September 30, 1969, be and the same is made permanent.
It is further ordered that the costs incurred in this proceeding be and they are hereby taxed against each of the parties incurring same.
. In a robbery case on a motion for a new trial for a crime which occurred in Birmingham, Alabama, concerning witnesses in Houston, Texas, the court stated: “The court has no power to compel the attendance of an out of state witness, * * *. Title 15, Sections 297-300, Code of Alabama, 1940; * * Argo v. State, 42 Ala.App. 454 , 168 So.2d 19, at p. 23 , certiorari to Supreme Court of Alabama denied 277 Ala. 177 , 168 So.2d 23 .
Where it appeared that witness had departed the state, trial court in criminal prosecution properly refused defendant’s motion for the issuance of an attachment for the witness [to compel attendance]. Inman v. State, 39 Ala.App. 496 , 104 So.2d 448 .
Code of Alabama 1940, Title 7, Sections 426, 487, 489, are apparently applicable in criminal proceedings (although these sections are set out in a chapter under civil procedures). Strange v. State, 43 Ala.App. 599 , 197 So.2d 437 at p. 441, 442 .
“A ‘subpoena duces tecum’ * * * commands a person who has in liis possession or control some book or paper * * * to attend and produce it for use at the trial. * * * [Code (of Alabama) 1940, Title 7, Section 487].” Ex *825 parte Hart, 240 Ala. 642 , 200 So. 783 . “The proper procedure by which the production of the papers may be required of a person who is not a party to the cause is by a subpoena duces tecum. Code [of Alabama] 1940, Title 7, Section 489.” Ex parte Monroe County Bank, 254 Ala. 515 , 49 So.2d 161 , 23 A.L.R.2d 856 .