MATHENY v. ALABAMA. - 425 U.S. 982 (1976)
U.S. Supreme Court
MATHENY v. ALABAMA. , 425 U.S. 982 (1976)
425 U.S. 982
State of ALABAMA.
Supreme Court of the United States
May 19, 1976
On petition for writ of certiorari to the Court of Criminal Appeals of Alabama.
The petition for a writ of certiorari is denied.
Mr. Justice BRENNAN, with whom Mr. Justice STEWART and Mr. Justice MARSHALL join, dissenting.
Petitioner was convicted in the Circuit Court for Montgomery County, Ala., of violating Ala.Code Tit. 14, 374(4) (Supp. 1973). That law provides in pertinent part:
- '(1) Every person who, with knowledge of its contents, . . . 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 . . . 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 . . . 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 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.'
- "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.'
The indictment filed against petitioner charged him with three counts of violating 374. The first count charged petitioner with selling a magazine primarily containing photographs of nude women. Genitals were exposed in some of the photographs. Count Two of the indictment charged petitioner with selling an unillustrated short novel containing descriptions of sexual acts. The third count of the indictment charged the sale of another unillustrated short novel also containing descriptions of sexual acts.
Upon inquiry to the trial court, petitioner's jury was instructed that it could 'return a verdict as to either one of the counts in the indictment.' Record, at 100. The jury subsequently returned the general verdict 'We the jury find the defendant guilty.' Record, at 102. Petitioner was adjudged guilty by the trial court and ultimately sentenced to six months of imprisonment and assessed a fine of $500. The judgment and sentence was affirmed by the Alabama Court of Criminal Appeals. Matheny v. State, 55 Ala.App. 119, 313 So.2d 547 (1975). A petition for writ of certiorari was denied by the Alabama Supreme Court. Matheny v. State, 294 Ala. 765, 313 So.2d 552 (1975).
It is my view that 'at least in the absence of distribution to juveniles or obtrusive exposure of unconsenting adults, the First and Fourteenth Amendments prohibit the State and Federal Governments from attempting wholly to suppress sexually oriented materials on the [425 U.S. 982 , 984]