Herman v. State

¶1On rehearing, appellants cite the decision of the New Hampshire Supreme Court in State v. Harding, N. H., 320 A. 2d 646, upholding the constitutionality of the New Hampshire obscenity law, but dismissing the conviction, holding that the defendant had not had sufficient warning because the statute had not previously been construed by the New Hampshire court. They also cite Miranda v. Hicks, decided on June 4, 1974, 15 CrL. 2309, where the court invalidated the California obscenity statute which had been construed in the light of Miller, holding that the prohibition of hard core pornography in materials containing “graphic depictions of sexual activities” did not provide fair notice to those who would depict sexual activity. The court held that the term “hard core” pornography was no more precise than the term “obscenity” and the language “graphic depiction of sexual activity” did not meet the specificity test. We do not find these cases persuasive for on June 24, the United States Supreme Court in Hamling, et al v. United States, — U.S. —, 94 S. Ct. 2887, 4 L. Ed. 2d 590 (1974) [3] involving a conviction for mailing and conspiring to mail an obscene advertising brochure, cited Roth v. United States, 354 U.S. 476 (1957), mentioning that it found in that case that the statute did not deny the due process guaranteed by the Fifth Amendment because “too vague to support conviction for crime”, again reiterating that finding, and then stating:

“Nor do we find merit in petitioners’ contention that cases such as Bouie v. City of Columbia, 378 U.S. 347 (1964), require reversal of their convictions. The Court in Bouie held that since the crime for which the petitioners there stood convicted was ‘not enumerated in the statute’ at the time of their conduct, their conviction could not be sustained. Id., at 363. The Court noted that ‘ 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.’ 378 U.S., at 352. But the enumeration of specific categories of material in Miller which might be found obscene did not purport to make criminal, for the purpose of 18 U.S.C. § 1461, conduct which had not previously been thought criminal. That requirement instead added a ‘clarifying gloss’ to the prior construction and therefore made the meaning of the federal statute involved here ‘more definite’ in its application to federal obscenity prosecutions. Bouie v. City of Columbia, 378 U.S., at 353. Judged by both the judicial construction of § 1461 prior to Miller, and by the construction of that section which we adopt today in the light of Miller, petitioners’ claims of vagueness and lack of fair notice as to the proscription of the material which they were distributing must fail.”

¶2Petition denied.