158 Ind. App. 496 - Thomas v. State

¶1Case Summary

Buchanan, P.J.

¶2William Thomas (Thomas) appeals from his conviction of Offering to Sell Obscene Literature pursuant to IC 1971, 35-30-10-1, Ind. Ann. Stat. § 10-2803 (Burns 1956 Repl.) (the Statute).

¶3We reverse.

¶4FACTS

¶5On June 23, 1970, a police officer purchased a magazine titled “Duo” from the Trans Media Bookstore in Indianapolis, Indiana, and three days later Thomas as manager of the store was charged by affidavit with violation of the Statute, i.e., Offering to Sell Obscene Literature.

¶6After a Motion to Quash Affidavit was overruled Thomas was tried on December 6, 1971 before a jury and found guilty as charged, and on December 10, 1971, the court entered judgment which fined Thomas $1,000.00 and costs.

¶7This appeal followed the subsequent overruling of a Motion To Correct Errors.

¶8 *497ISSUE

¶9Because this conviction must be reversed we need not consider numerous other issues raised by Thomas, confining ourselves to this question:

¶10Is the Statute constitutional?

¶11DECISION

¶12CONCLUSION—It is our opinion that the Statute is unconstitutional and the conviction must be reversed.

¶13Since Thomas was tried and this appeal perfected the United States Supreme Court decided: Miller v. California (1973), 413 U.S. 15; Paris Adult Theatre I v. Slaton (1973), 413 U.S. 49; Kaplan v. California (1973), 413 U.S. 115; U.S. v. 12 200-ft. Reels of Super 8mm Film (1973), 413 U.S. 123; U.S. v. Orito (1973), 413 U.S. 139; Keller v. N.Y. (1973), 413 U.S. 483; Roaden v. Ky. (1973), 413 U.S. 496; Alexander v. Virginia (1973), 413 U.S. 836.

¶14Chief Justice Arterburn speaking for a unanimous Indiana Supreme Court thereafter interpreted the thrust of these decisions to be that the Statute, (entitled “Obscene literature and devices or instrument or article for procuring abortion— Circulation, possession, manufacture”) is “unconstitutional for the reason that it is too general in nature and does not set out specifically the sexual or obscene acts which, when depicted in any of the media named by the statute, constitute a violation of the statute.” Stroud v. State (1973), 261 Ind. 58, 300 N.E.2d 100.1

¶15The subject of obscenity awaits the wisdom of the Legislature.

¶16The Statute having been declared unconstitutional the conviction of Thomas is reversed.

*498White and Sullivan, JJ., concur.

¶17Note.—Reported at 308 N.E.2d 293.

¶18. To the same effect, Mohney v. State (1973), 261 Ind. 56, 300 N.E.2d 66, and Mohney and Geraghty v. State (1973), 157 Ind. App. 622, 300 N.E.2d 678.