Petition — Gerald Matheny v. State of Alabama

eee

IN THE |

Supreme Court of the United States’

October Term, 1975

No. @5~49(¢) 1

GERALD MATHENY,

Petitioner,

STATE OF ALABAMA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE ALABAMA COURT OF CRIMINAL APPEALS

ROBERT EUGENE SMITH, ESQ.

GILBERT H. DEITCH, ESQ.

2005 One Hundred Colony Square

Atlanta, Georgia 30361

Attorneys for Petitioner

Of Counsel:

J. PAUL LOWRY, ESQ.

Post Office Box 411

Montgomery, Alabama 36101

laterite

The Paul M. Harrod Company, Baltimore, Maryland 21234

INDEX

TABLE OF CONTENTS

Page

I ds oh ee eee ge aes ate a ere l

cS St wh beet eds Vere a eee 2

ee Do sg Sh eee we ee ee ee bee 2

Constitutional and Statutory Provisions Involved ........ 2

I A rs nk ke nee ee eee eee 3

Reasons for Granting the Writ

1. The provisions of Title 14 Code of Alabama

Section 374 were, at the time of the offenses

here charged, unconstitutionally vague in

violation of the First, Fifth, and

Fourteenth Amendments to the United

es I ok Seva dane bees eseun 4

Il. The materials involved herein are not

obscene in the constitutional sense as

a matter of law and are thus protected

expression under the First and

Fourteenth Amendments to the

Constitution of the United States ........... 10

SE isd whee ak oe wee OR ORO RER ORD SSE CS OES 12

I ea te a ee ee ea are ne eras el eee ale l

TT a iain ile ee aS ari a a eal tg ee i te io 1]

i a Se a ak elie a al i ne eta a eae 13

il

TABLE OF CITATIONS

Cases

Page

aay ©. OB... FD UE. G60 CURB nn cw cccccccccccen 11

Bouie v. City of Columbia, 378 U.S. 347 (1964) ........ 9

Corinth Publications v. Wesberry, 388 U.S. 448 (1967) ...11

Grove Press v. Gerstein, 378 U.S. 577 (1964) ......... 11

Hoyt v. Minnesota, 399 U.S. 524 (1970)............. 1]

Jacobellis v. Ohio, 378 U.S. 184 (1964) ............. 10

Jenkins v. Georgia, 418 U.S. 153 (1974) ............. 10

Kaplan v. California, 413 U.S. 115 (1973)............. 4

Manual Enterprises, Inc. v. Day, 370 U.S. 478, 488 ..... 10

McKinney v. Alabama No. 74-532 ................5. 3

McKinney v. Parson No. 75-428 ................... 10

Memoirs v. Massachusetts, 383 U.S. 413 (1966) ......... 7

Miller v. California, 413 U.S. 15 (1973) .............. 4

Paris Adult Theatre I v. Secton, 413 U.S. 49 (1973) ...... 4

Pierce v. State, 292 Ala. 473, 296 So.2d 218 (1974) ..... 8

Pinkus v. California, 400 U.S. 922 (1970) ............ 12

Pinkus v. Pitchens, 429 F.2d 416 (CA9 1970) ......... 12

ms We Ge, GD WS SUP EUUTUD oc ccc cccenccecas 4

U.S. v. 12-200 Ft Reels of Film, 413 U.S. 123 (1973) ....4

Walker v. Ohio, 398 U.S. 434 (1970) ............... 1]

Miscellaneous

Bf ES ES i el

Amendments to the Constitution of the United States

Eas es os ee ee ee 2

RR rea al petra ent 4 oe irate rah a2 2

Fourteenth SAT AAAs PAO: ee A IER FR

Title 14 Code of Alabama, Section 374 ......... 2,3.4,10

IN THE

Supreme Court of the United States

October Term, 1975

No.

GERALD MATHENY,

Petitioner,

STATE OF ALABAMA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE ALABAMA COURT OF CRIMINAL APPEALS

The Petitioner respectfully prays that a Writ of Certiorari

issue to review the opinion and judgment of the Alabama

Court of Criminal Appeals entered in the above case on

February 18, 1975.

OPINION BELOW

The opinion of the Alabama Court of Criminal Appeals

appears as Appendix A hereto.

2

JURISDICTION

The judgment of the Alabama Court of Criminal Appeals

was entered on February 18, 1975. A Petition for Writ of

Certiorari was filed by Petitioner and denied by the Alabama

Supreme Court in an Order entered May 1, 1975. A copy of

the Order appears as Appendix B hereto. On July 30, 1975,

Mr. Justice Powell granted an extension to Petitioner to and

including September 28, 1975, within which to file this

Petition. This Court’s jurisdiction is invoked under Title 28

United States Code §1257(3).

QUESTIONS PRESENTED

1. Whether the provisions of Title 14 Code of Alabama

Section 374, on their face and as construed and applied to

authorize judgments of conviction of Petitioner herein, were,

at the time of the offenses here charged, unconstitutionally

vague in violation of the First, Fifth, and Fourteenth

Amendments to the Constitution of the United States.

2. Whether the provisions of Title 14 Code of Alabama

Section 374, on their face and as construed and applied to

authorize judgments of conviction of Petitioner herein, are

violative of the First, Fifth, and Fourteenth Amendments by

allowing convictions based upon nonobscene material entitled

to constitutional protection as a matter of law.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The First, Fifth, and Fourteenth Amendments to the

Constitution of the United States, along with Title 14 Code

of Alabama Section 374, appear as Appendix C hereto.

3

STATEMENT OF THE CASE

On July 12, 1973, Petitioner was employed at Jimmy’s

Newstand in Montgomery, Alabama. On that date, the

Petitioner sold three magazines to an employee of the State

District Attorney’s office; the magazines were entitled “Krazy

Kittens No. 5,” “Gay Blades,” and “Depraviiy Post.”

On the basis of the above described sales, Petitioner was

charged with three counts of violating Title 14 Code of

Alabama Section 374 (4), which prohibits the commercial

distribution of obscene matter. After a trial by jury,

Petitioner was found guilty of all three counts on December

3, 1973. Petitioner was thereupon sentenced to imprisonment

for a period of six months and assessed a fine of $500.00.

On appeal, the judgment and sentence was affirmed by

the Alabama Court of Criminal Appeals in the judgment and

opinion which is here sought to be reviewed. The Alabama

Supreme Court subsequently denied a Petition for Writ of

Certiorari, adding the following caveat:

“In denying this writ it is not to be understood that

this Court approves or disapproves all of the

language used in the opinion rendered by the Court

of Criminal Appeals in this case.”’

The statute under which Petitioner was convicted, Title

14 Code of Alabama Section 374, is currently before this

Court in the case of McKinney v. Alabama, No. 74-532,

certiorari granted June 23, 1975. The constitutionality of the

statute is challenged in McKinney on _ several grounds

including, inter alia, those raised in the instant case. The

Court may therefore wish to defer disposition of this Petition

pending resolution of the McKinney case.

4

REASONS FOR GRANTING THE WRIT

THE PROVISIONS OF TITLE 14 CODE OF

ALABAMA SECTION 374 WERE, AT THE TIME

OF THE OFFENSES HERE CHARGED,

UNCONSTITUTIONALLY VAGUE IN

VIOLATION OF THE FIRST, FIFTH, AND

FOURTEENTH AMENDMENTS TO THE UNITED

STATES CONSTITUTION.

State law as written or authoritatively construed, under

which obscene materials are regulated, must comply with the

First Amendment standards set forth in Miller vy. California,

413 U.S. 15 (1973). Title 14 Code of Alabama Section 274 as

it was written at the time Petitioner was arrested, tried and

convicted in these cases did not comply with the standards set

by Miller. Nor has that statute been “authoritatively

construed” to include the Miller safeguards.

On June 21, 1973, this Court announced its holdings in

five cases which drastically changed the constitutional

framework of all obscenity laws. Mil’er v. California, 413 US.

1S (1973); Paris Adult Theatre I v. Slaton, 413 US. 49

(1973); United States v. Orito, 413 U.S. 139 (1973); Kaplan

v. California, 413 U.S. 115 (1973); United States v. 12-200

Ft. Reels of Film, 413 U.S. 123 (1973). The statute under

which Petitioner was convicted is unconstitutional for its

failure to meet the strict specificity requirements set forth in

those decisions. When judged by the standards enunciated

therein, the statute under which Petitioner was convicted

must be found void for vagueness.

5

Mr. Chief Justice Burger, in Miller v. California, supra,

conceding the failure of this Court to set forth precise

constitutional standards, writes in part as follows:

“Apart from the initial formulation in the Roth

case, no majority of the Court has at any given time

been able to agree on a standard to determine what

constitutes obscene, pornographic ea oy

regulation under the States’ police power. a

vet — v. New York, 386 U.S. 767, 770-771

(1967). We have seen ‘a variety of views among the

members of the Court unmatched in any other

course of constitutional adjudication.’ Interstate

Circuit, Inc. v. Dallas, 390 U.S. at 704-705 (1968).

413 US., at 22.

After recognizing the failure of any constitutional

definition of what is obscene to be accepted by a majority of

this Court, the opinion goes on to state the singular varying

factor which represents a consensus of prior decisions of the

Court:

“This much has been categorically settled by the

Court, that obscene material is unprotected by the

First Amendment, Kois v. Wisconsin, 408 U.S. 229

(1972). United States v. Reidel, 402 U.S. 351, 354

(1972). Roth v. United States, 354 U.S. 476, 485

(1957). ‘The First and Fourteenth Amendments

have never been treated as absolute (footnote

omitted).’ Breard v. Alexandria, supra, 341 U.S. 622

at 642 (1951), and case cited. See Times Film Corp.

v. Chicago, 365 U.S. 43, 47-50 (1961); Joseph

Burstyn, Inc. v. Wilson, supra, 343 U.S. at 502.

(1952). 413 U.S., at 23.

6

Thereupon the Court goes on to state a new

constitutional standard for State cases:

“We acknowledge, however, the inherent dangers of

undertaking to regulate any form of expression.

State statutes designed to regulate obscene materials

must be carefully limited. See Interstate Circuit,

Inc., v. Dallas, supra, 390 U.S. at 682-685 (1968).

As 2 result, we now confine the permissible scope

of such regulation to works which depict or

describe sexual conduct. That conduct must be

specifically defined by the applicable State law as

written or authoritatively construed. A State offense

must also be limited to works which, taken as a

whole, appeal to the prurient interest in sex, which

portray sexual conduct in the patently offensive

way and which, taken as a whole, do not have

serious literary, artistic, political or scientific value.”

413 US., at 23-24, (emphasis supplied).

The opinion of Mr. Chief Justice Burger, speaking for the

majority pointing to the prospective operation of the newly

announced constitutional standards, after either future

legislative enactment or authoritative judicial construction,

stated:

“Under the holdings announced today, no one will

be subject to prosecution for the sale or exposure

of obscene materials unless these materials depict or

describe patently offensive ‘hard core’ sexual

conduct specifically defined by the regulating State

law, as written or construed. We are satisfied that

these specific prerequisites will provide fair notice

to a dealer in such materials this his public and

commercial activities may bring prosecution. See

Roth v. United States, supra, 354 U.S. at 491-492

(1957).” 413 U.S., at 27.

7

Miller v. California, supra, is the key case in which this

Court defined the standards which now must be used to

identify obscene material that a State or the federal

government may regulate without infringing the First

Amendment. It is obvious that the Court undertook to

formulate standards more concrete than those that have ever

been in the past. The sharpness of the break with Roth when

the Court handed down Memoirs v. Massachusetts, 383 U.S.

413 (1966) was not nearly so great as the break with Memoirs

that occurred in Miller v. California. The Court was very

careful to announce that statutes designed to regulate obscene

materials must be carefully limited and the Court confined

the permissible scope of obscenity regulation to works which

depict or describe sexual conduct specifically defined by the

applicable obscenity statute as written or as authoritatively

construed.

The Court discussed the press materials to which the

regulation would be confined, the press materials which would

constitute the offense and the guide lines necessary to

forewarn a potential wrongdoer. That element of the

three-part test and the key guideline for the trier of fact in

the new tripartite test clearly indicate the facial invalidity of

the Alabama statute here:

“Whether the work depicts or describes, in a

patently offensive way, sexual conduct that is

specifically defined by the law...If the state law

that regulates obscene material is thus limited as

written and construed, the material may be

regulated.” 413 U.S., at 24-25 (emphasis added).

The Alabama statute here under review has never

“specifically defined” the proscribed sexual depictions as

required by the mandates of Miller. The Alabama Court of

Appeals found such a specific definition in the case of Pierce

v. State, 292 Ala. 473, 296 So.2d 218 (1974). The Court

below quoted from the Pierce decision as follows:

“... Wwe now confine the permissible scope of such

regulation to works which depict or describe sexual

conduct. That conduct must be specifically defined

by the applicable state law, as written or

authoritatively construed. A state offense must also

be limited to works which, taken as a whole, appeal

to the prurient interest in sex, which portray sexual

conduct in a patently offensive way, and which,

taken as a whole, do not have serious literary,

artistic, political, or scientific value.

“The basic guidelines for the trier of fact must be:

(a) whether ‘the average person, applying

contemporary community standards’ would find

that the work, taken as a whole, appeals to the

prurient interest, Kois v. Wisconsin, supra, 408 U.S..,

at 230 (1972), quoting Roth vy. United States,

supra, 354 US., at 489 (1957), (b) whether the

work depicts or describes, in a patently offensive

way, sexual conduct specifically defined by the

applicable state law, and (c) whether the work,

taken as a whole, lacks serious literary, artistic,

political, or scientific value...’ Miller v. California,

413 U.S. 15, 93 S.Ct. 2607.”

It is obvious that the Pierce opinion does not, in and of

itself, define the proscribed sexual conduct with the

specificity required by Miller. Reading the Miller guidelines

into a statute does not define the sexual conduct to be

proscribed. Such an incorporation merely adopts the Miller

standards, one of which requires that the state law define the

sexual conduct to be proscribed.

a

9

Further, even assuming arguendo that the Pierce decision

provided the Alabama statute with a constitutionally

acceptable authoritative construction pursuant to the

mandates ot Miller, such a construction cannot save the

statute as it applies to Petitioner’s conviction since the

construction occurred subsequent to his conviction. The

Petitioner here was convicted on December 3, 1973, for

conduct which occurred on July 12, 1973. The Pierce

decision, upen which the Court below relies, was rendered by

the Alabama Supreme Court on May 9, 1974, nearly a year

after the conduct which forms the basis for Petitioner's

conviction.

The principle that a subsequent construction cannot save

an unconstitutional statute, insofar as the statute is applicable

to conduct which occurred prior to the construction, was

enunciated by this Court in Bouie v. City of Columbia, 378

U.S. 347 (1964). In Bouie this Court reversed convictions for

a crime which was “not enumerated in the statute” at the

time of the alleged violating conduct. In so reversing, it was

noted:

‘*A deprivation of the right of fair warning can

result not only from vague statutory language, but

also from an unforeseeable and retroactive judicial

expansion of narrow and _ precise statutory

language.”

It is violative of the most fundamental precepts of due

process to uphold the statute under which Petitioner was

convicted on the basis of a construction occurring nearly one

year after the alleged violating conduct. At the time Petitioner

engaged in the conduct complained of, he was faced only

with an unconstitutionally vague statute giving little or no

guidance as to the conduct proscribed.

10

In summary, Title 14 Alabama Code Section 374 has

never received the authoritative construction specifically

defining the proscribed sexual depictions as required by

Miller. Further, even assuming such a construction can be

found in Pierce, supra, that construction cannot save the

statute as it applies to conduct occurring prior thereto. This

same argument is currently before this Court in the case of

McKinney v. Farsons, No. 75-428, Petition for Writ of

Certiorari to the United States Court of Appeals for the Fifth

Circuit filed September 18, 1975.

THE MATERIALS INVOLVED HEREIN ARE NOT

OBSCENE IN THE CONSTITUTIONAL SENSE AS

A MATTER OF LAW AND ARE. THUS

PROTECTED EXPRESSION UNDER THE FIRST

AND FOURTEENTH AMENDMENTS TO THE

CONSTITUTION OF THE UNITED STATES.

The doctrine necessitating an independent appellate

review of the alleged obscenity of materials found obscene at

the trial level was enunciated by this Court in Jacobellis vy.

Ohio, 378 U.S. 184 (1964). It was there held that the Court’s

duty “admits of no ‘substitute for facing up to the tough

individual problems of constitutional judgment involved in

every obscenity case’.” /d, at 188, quoting Manual

Enterprises, Inc. v. Day, 370 U.S. 478, 488.

The continuing validity of this doctrine and of the

appellate duty it imposes was affirmed by this Court only last

year in Jenkins v. Georgia, 418 U.S. 153 (1974). Jenkins

involved a reversal of a state obscenity conviction predicated

upon an exhibition of the film “Carnal Knowledge.” The

ll

reversal was based upon this Court’s own viewing of the film,

and the finding that it was not, as a matter of constitutional

law, obscene. /d. This Court is respectfully called upon to

perform the judicial duty delineated above, and thus to

determine the obscenity vel non of the materials alleged to be

obscene in the within proceedings.

Findings of obscenity have been reversed by this Court

as to press materials devoted entirely to explicitedly depicting

or describing the sexual activities of its characters, including

detailed and vernacular descriptions reaching the ultimate in

explicitness, of heterosexual intercourse, masturbation,

beastiality, oral-genital intercourse, sado-masochism, and

homosexual activity; e.g., Memoirs v. Massachusetts, supra,

(“Fanny Hill’); Aday v. United States, 388 U.S. 441 (1967)

(“Sex Life of a Cop,” see description of book at 357 F.2d

855): Corinth Publications v. Wesberry, 388 U.S. 448 (1967)

(“Sin Whisper,” see description of book at 146 S.E.2d 764);

Walker v. Ohio, 398 U.S. 434 (1970) (“Orgy Club”); Hoyt v.

Minnesota, 399 U.S. 524 (1970) (“The Way of a Man with a

Maid,” “‘Lady Susan’s Cruise Lover,” and three other books);

and Grove Press v. Gerstein, 378 U.S. 577 (1964) (“Tropic of

Cancer’).

With respect to motion picture films, the Court has

reversed findings of obscenity as to films which depict totally

nude women, films which show nude and partially nude

women and men engaged in sexual gyrations, simulated

intercourse and simulated oral-genital intercourse, all

emphasizing pubic and rectal areas, films showing lesbian

sexual activity and heterosexual activity between men and

women. Morever, this Court affirmed a reversal by the Ninth

Circuit Court of Appeals of a finding of obscenity of a “stag

film depicting a nude woman masturbating, with emphasis on

12

the female genitalia and sexual gyrations.” Pinkus v. Pitchess,

429 F.2d 416 (CA 9 1970), affirmed sub. nom., Pinkus vy.

California, 400 U.S. 922 (1970). :

The press materials at bar when considered as a whole,

and as judged against press materials of similar or more

explicit content heretofore determined by this Court not to

be obscene in the constitutional sense should thus be held

protected.

CONCLUSION

For the foregoing reasons, a Writ of Certiorari should

issue to review the judgment and opinion of the Alabama

Court of Criminal Appeals.

Respectfully submitted,

ROBERT EUGENE SMITH, ESQ.

GILBERT H. DEITCH, ESQ.

2005 One Hundred Colony Square

Atlanta, Georgia 30361

(404) 892-8890

Attorneys for Petitioner.

Of Counsel:

J. PAUL LOWRY, ESQ.

Post Office Box 411

Montgomery, Alabama 36101

(205) 262-6629

A. 1

APPENDIX “A”

THE STATE OF ALABAMA — JUDICIAL DEPARTMENT

THE ALABAMA COURT OF CRIMINAL APPEALS

OCTOBER TERM, 1974-75

3 Div. 295

Gerald Matheny, alias

State

Appeal from Montgomery Circuit Court

DeCARLO, JUDGE

Selling obscene matter; six months hard labor and $500. fine.

On July 12, 1973, K. W. Jones, an investigator for the

District Attorney’s office, went to Jimmy’s News Stand in

Montgomery, Alabama, and purchased from Gerald Matheny,

three publications; “Krazy Kittens Number 5”, “Gay Blades”

and “Depravity Post”’.

A2

Appellant was charged in the county court with violation of

T. 14, § 374 (4), Cumulative Pocket Part, Code of Alabama,

1940, and in November, 1973, an indictment was returned by

the Grand Jury of Montgomery County. The indictment

contained three separate counts charging appellant with selling,

exhibiting or commercially distributing non-mailable and

obscene printed or written matter or material to K.W. Jones.

Each count was the same except for charging appellant with

the above offense as to each of the different publications.

Among the grounds asserted by appellant on demurrer

to the indictment were (1) the State’s failure to show under

which statute it was proceeding and (2) that the accusation

charging appellant with commercially distributing ‘“non-

mailable” and obscene printed or written material or matter

was vague and misleading. The demurrer was overruled and a

motion to suppress denied. Subsequently, a jury found

appellant guilty on all counts.

Appellant asserts he has been denied equal protection of

the law under the Constitutions of the United States and the

State of Alabama. Counsel argues each of the statutory enact-

ments pertaining to obscenity, (T. 14), § 374 (1) (16),

September 8, 1961, (under which this prosecution was based)

and (T. 14), § 374 (16j-o0), both acts being found in Cumulative

Pocket Parts, Code of Alabama, 1940, have different definitions

of the same offense and contain different punishment. He

insists this double standard precludes the trial court from

clearly instructing the jury.

The thrust of this argument is that the interpretation of

“obscenity” is so indefinite and uncertain, an offense cannot

readily or clearly be defined.

A3

This contention fails under : ierce v. State, 292 Ala. 473,

296 So.2d 218, wherein the Alabama Supreme Court

incorporated the “Miller” tests into its construction of the

word “obscene”’.

Pierce, supra, provides reasonable standards of guilt,

which were adopted from these Miller guidelines:

** | we now confine the permissible scope of such

regulation to works which depict or describe sexual

conduct. That conduct must be specifically defined

by the applicable state law, as written or

authoritatively construed. A state offense must also

be limited to works which, taken as a whole, appeal

to the pruient interest in sex, which portray sexual

conduct in a patently offensive way, and which,

taken as a whole, do not have serious literary, artistic,

political, or scientific value.

“The basic guidelines for the trier of fact must

be: (a) whether ‘the average person, applying

contemporary community standards’ would find

that the work, taken as a whole, appeals to the

pruient interest, Kois v. Wisconsin, supra, 408 U.S.,

at 230 (1972), quoting Roth v. United States, supra,

354 US., at 489 (1957), (b) whether the work

depicts or describes, in a patently offensive way,

sexual conduct specifically defined by the applicable

state law, and (c)whether the work, taken as a whole,

lacks serious literary, artistic, political, or scientific

value. . .”’Miller v. California, 413 U.S. 15, 93 S.Ct.

2607.

Although the Alabama obscenity statutes may not portray

the precision necessary to weather all criticism, they do not

offend due process requirements. These statutes are cum lative

and set forth the offense intended to be punished.

A4

“« | ** * * [T]he Constitution does not require

impossible standards’; all that is required is that

the language ‘conveys sufficiently definite warning

as to the proscribed conduct when measured by

common understanding and practices* * *.” United

States v. Petrillo, 332 U.S. 1, 7-8, 67 S.Ct. 1538,

1542, 91 L.Ed. 1877. These words, applied according

to the proper standard for judging obscenity, already

discussed, give adequate warning of the conduct

proscribed and mark’ * * * boundaries sufficiently

distinct for judges and juries fairly to administer

the law * * *. That there may be marginal cases

in which it is difficult to determine the side of the

line on which a particular fact situation falls is no

sufficient reason to hold the language too ambiguous

to define a criminal offense * * *’. . .” Roth v.

United States, 354 U.S. 476, 77 S.Ct. 1304.

Under the Miller standards, as engrafted by Pierce, supra,

we believe adequate warning of indictable conduct is present

and affords judges and juries a distinct purview in which to

administer the law.

Next, the appellant’s complaint concerning the difference

in punishments is unsupported. A careful reading of both

statutes indicates the range of punishment is the same for

selling.

ll

Appellant contends the court erred in not permitting

introduction of alleged comparable material available in the

community, and testimony relating to so-called ‘“‘x-rated”

movies shown in the vicinity.

AS

The availability of similar materials in a community

does not automatically make them admissible as tending to

prove the non obscenity of the publications the appellant

is charged with selling.

we . the mere fact that materials similar to the

brochure at issue here ‘are for sale and purchased

at book stores around the country does not make

them witnesses of virtue.” 481 F.2d, at 30. Or,

as put by the Court of Appeals in United States

v. Manarite, 448 F.2d 583 (CA2 1971):

*“. . « ‘Mere availability of similar material by itself

means nothing more than that other persons are

engaged in similar activities.” Hamling v. U.S., 94

S.Ct. 2887.

The rejection of this evidence was proper. McKinney vy.

Birmingham, 52 Ala. App. 605, 296 So.2d 197, cert. den.,

292 Ala. 726, 296 So.2d 202, and authorities cited therein

It is insisted that the introduction of the alleged obscere

publications without expert testimony of a community

standard was a denial of due process.

The Supreme Court of the United States in Hamling,

supra, emphasized that jurors had the ability, without the

benefit of expert testimony, to ascertain the sense of the

“average person” in applying community standards.

In the case at bar, the jurors were entitled to draw on

their own knowledge in determining the view of the average

person of their community concerning what was considered

obscene. Hamling, supra.

The materials were sufficient in themselves for resolving

the issue. Kaplan vy. California, 413 U.S. 115, 93 S.Ct. 2680.

A6 A7

IV

“Q. (By Mr. Thomas): Do you know whether or

not marijuana is sold in Montgomery, Alabama?

a ae

Finally appellant argues that the trial court was in error

when it allowed the State to cross-examine a witness called

on as an expert in this manner:

“(Mr. Lowery): We object, that’s not - - -

“Q. (By Mr. Thomas): Have you found that it is

the community standard in Montgomery, Alabama,

that it is accepted in Montgomery, Alabama, that

these books be sold — not that the books ~ You

testified that a book just like this is sold at a Pak A

Sak. (Referring to State’s Exhibit No. 3.) “A. Well,

“QO. I want to see the book. But you testified that

it is sold at the Pak A Sak. Is it your testimony

that it is accepted as a community standard in

Montgomery, Alabama that these type pictures,

such as this (Indicating), be sold in Montgomery,

Alabama? “A. / would say that the fact that they

are sold and the people buy them is prima facie

evidence that they are accepted within the

community. (Emphasis added)

“Q. Why would you say that? “A. Well, I think

it’s fairly obvious that if they are sold and people

buy them, then somebody is buying them within

the community.

“Q. Well, do you know whether or not marijuana

is sold within this community?

“(Mr. Lowery): Your Honor, we object to any

marijuana; that’s a prejudicial against - - -

“(Mr. Thomas): This cross examination, and I want

to know what this witness is [sic] statement is all

about; what is his opinion based on?

“(Mr. Thomas): This is a comparison and an

analogous situation, Judge; both of them are against

the law.

“(Mr. Lowery): If we’re going to go into marijuana,

Judge, we'll have to get an indictment.

“(The Court): Gentlemen, you all are going to get

me in a verdict direct, because I’m going to make

some observations here directly.

“(Mr. Lowery): We object, your Honor.

“(The Court): I’m going to sustain the objection.

“Q. (By Mr. Thomas): All right. I'll ask you another

question. Do you know - - would you consider the

fact that because marijuana is sold in Montgomery,

Alabama that it is accepted as a community standard

for marijuana to be sold?

“(Mr. Lowery): Objection.

“(The Court): No, I don’t think that question was

covered, Mr. Thomas, as a community standard.

“(Mr. Thomas): Well, he stated that because a book

is sold in a book store, Your Honor, that therefore

ergo, it would be accepted by the community.

‘(The Court): Well, the marijuana proposition

wouldn’t be accepted as a standard, except as a

medication or a drug.

A8

“(Mr. Thomas): I understand.

“(The Court): Well, rephrase your question.

“(Mr. Thomas): Now, what did you say, excuse,

Judge. I’m asking you how to ask it so I can get it in.

I want to know whether or not he thinks it is a

community standard.

“(The Court): The fact that marijuana is sold and

used in Montgomery, is that accepted as a community

standard as a medication or as a medicine? (Emphasis

added) ;

‘“(Mr. Lowery): Note our objection to the court’s

question.

“(The Court): Well, the court is going to overruled

[sic] your objection to that. (Laughter). now, go

ahead and answer it, please sir.

“(The Witness): Judge, would you repeat that

question? (Laughter).

“(The Court): Read it back to him, Mr. Reporter.

(Whereupon, the reporter read the question back

to the witness.)

“(The Court): You understand that question?

“(The Witness): This question presumes that I have

knowledge that marijuana is sold in Montgomery.

I have no personal knowledge that marijuana is.

“(The Court): No, it doesn’t presume that either.

“(The Witness): Well, the fact that it is sold, if that

is a fact -- -

A9

“(The Court): Well, you read it - - I don’t have

knowledge of it — but you read it in the paper where

they try these marijuana cases.

“(The Witness): I do know from what I read in the

papers.

“(The Court): All right. Go ahead and answer the

question, if you can.

“(The Witness): /t is a medication, I would say, no.

As I understand the question, | would say no.

(Emphasis added)

“(The Court): That answers it.

“(Mr. Lowery): We move to exclude that answer.

“(The Court): Overruled.

“(Mr. Lowery): We move for a mistrial.

“(The Court): Overruled.

“(Mr. Lowery): All right, your Honor, we except.”

Counsel argues that this testimony of unrelated conduct

by way of hypothesis was irrelevant to the offense charged.

It is his contention that selling marijuana is a separate criminal

offense, and this testimony implied the sale of the publications

in evidence was no more justified than a sale of marijuana.

Al0

In George yv. State, 240 Ala. 632, 200 So. 602, Justice

Livingston wrote:

“Expert witnesses may be cross-examined and their

opinion obtained based on other states of facts

assumed by the party examining them to have been

proved upon a hypothetical case; and they may be

cross-examined on purely imaginary and abstract

questions. Such questions are not only permissible

in order to get the opinion of the expert witness

upon all possible theories of the case, but they

are allowed to test the value and accuracy of the

opinion of the witness himself.” (Emphasis added).

It is our judgment that the question under review was an

attempt to test the value and accuracy of the witness’s opinion

in how he arrived ai a community standard. Further, in view

of the witness’s negative answer, the appellant suffered no

prejudice. The court’s ruling was proper.

We have examined the publications presented in the case

and find them obscene. Our review of the record and the

material seems to require this comment. Anyone reading

Chaucer’s “Canterbury Tales” for the first time would be

unable to comprehend its meaning without some extrinsic

knowledge or aid. It is our observation, however, that a person

reading or reviewing the printed matter in this case needs

nothing more to insure his comprehension than the ability to

see and read.

AFFI? MED. -

All the Judges concur.

All

APPENDIX “B”

THE STATE OF ALABAMA -- - - - JUDICIAL DEPARTMENT

THE SUPREME COURT OF ALABAMA

OCTOBER TERM, 1974-75

Ex Parte: Gerald Matheny

PETITION FOR WRIT OF CERTIORARI

TO COURT OF CRIMINAL APPEALS

S.C. 1238 (Re: Gerald Matheny

Vv.

State of Alabama)

FAULKNER, JUSTICE.

In denying this writ it is not to be understood that this

court approves or disapproves all of the language used in tle

opinion rendered by the Court of Criminal Appeals in this case

Al2

WRIT DENIED.

Heflin, C.J., Bloodworth, Almon and Embry, JJ., concur.

1. J. O. Sentell, Clerk of the Supreme Court of Alabaria, do

hereby certify that the foregoing is a full, true and correct

copy of the instrumeni(s) herewith set out as same appears

of record in said Court.

Witness my hand this | day of May 1975.

/s/ J.O. Sentell

Clerk, Supreme Court of Alabama.

A. 13

APPENDIX “C“

UNITED STATES CONSTITUTION

First Amendment

Congress shall make no law respecting an establishment of

religion, or prohibiting the free exercise thereof; or abriding

the freedom of speech, or of the press; or the right of the

people peaceably to assemble, and to petition the Government

foi a redress of grievances.

Fifth Amendment

No person shall be held to answer to a capital, or otherwise

infamous crime, unless on a presentment or indictment of a

Grand Jury, except in cases arising in the land or naval forces,

or in the Militia, when in actual service in time of War or public

danger; nor shall any person be subject for the same offense

to be twice put in jeopardy of life or limb; nor shall be

compelled in any criminal case to be a witness against himself,

not be deprived of life, liberty, or property, without due

process of law; nor shall private property be taken for public

use, without just compensation.

Fourteenth Amendment, Section 1].

All persons born or naturalized in the United States, and

subject to the jurisdiction thereof, are citizens of the United

States and of the State wherein they reside. No State shall make

or enforce any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall any

A. 14 A. 15

State deprive any person of life, liberty, or property, without matter, or any mailable matter known by such person

due process of law; nor deny to any person within its to have been judicially found to be obscene under

jurisdiction the equal protection of the laws. this chapter, shall be guilty of a misdemeanor and,

upon conviction, shall be imprisoned in the county

TITLE 14 ALABAMA CODE §374 jail, or sentenced to hard labor for the county, for

not more than six months, or may be fined not more

than five thousand dollars for each offense, or be

both so imprisoned and fined in the discretion of the

court.”

ow ens —

“(a) Section 374(3):

‘“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.

‘*“(b) Section 374(4):

— OPES 1 cement

“Importation, sale or possession of obscene printed

or written matter; penalties —

“[1] Every person who, with knowledge of its

contents, sends or causes to be sent, or brings or

causes to be brought, into this state for sale or

commercial distribution, on in this state prepares,

sells, exhibits or commercially distributes, or gives

away or offers to give away, or has in his possession

with intent to sell or commercially distribute, or to

give away or offer to give away, any obscene printed

or written matter or material, other than mailable

matter, or any mailable matter known by such person

to have been judicially found to be obscene under

this chapter, shall be guilty of a misdemeanor and,

upon conviction, shall be imprisoned in the county

jail, or sentenced to hard labor for the county, for

not more than one year, and may be fined not more

than two thousand dollars for each offense, or be

both so imprisoned and fined in the discretion of

the court. ‘‘{2] Every person who, with knowledge of

its contents, has in his possession any obscene printed

or written matter or material, other than mailable