¶1Defendant was charged in two counts with knowingly having in his possession obscene pictures with intent to show them and to give them away, contrary to MCLA § 750.343a (Stat Ann 1969 Cum Supp •§ 28.575 [1]). A jury convicted him on both counts and he was placed on ‘probation for two years and fined $500.
¶2In the instant case the photographs while enclosed in a black opaque case were stolen from defendant’s car while it was parked in his own driveway. There was no testimony at the trial that defendant had ever shown or given away any of the pictures, or any similar to them. Without determining. whether or not the pictures were obscene, we. conclude that, even, if they were, mere private possession of ■ obscene -pictures in his home or curtilage would not be ■' a crime. In Stanley v. Georgia (1969), 394 US 557 (89 S Ct 1243, 22 L Ed 2d 542) the Court said:
“We hold that the First and Fourteenth Amendments prohibit making mére private possession of obscene material -‘a crime,, Roth and the cases following that decision are not impaired by today’s holding. As we have said, the States retain broad power to regulate obscenity; that power simply does not extend to mere possession by the individual, in the privacy of Ms own home.”
¶3Because of our ruling it is unnecessary to decide the other questions raised by the defendant.
¶4Conviction and sentence vacated and defendant released.