Mohney v. State

300 N.E.2d 678 (1973)

Harry Virgil MOHNEY and Donald Geraghty, Defendants-Appellants, v. STATE of Indiana, Plaintiff-Appellee.

No. 172A23.

Court of Appeals of Indiana, First District.

September 4, 1973.

Robert Eugene Smith, Baltimore, Md., Gilbert H. Deitch, Atlanta, Ga., Arnold Baratz, Indianapolis, for appellants.

PER CURIAM.

The defendant-appellants (Mohney and Geraghty) were convicted by a jury of "knowingly selling and offering to sell obscene literature and devices" as defined by IC XX-XX-XX-X, Ind. Ann. Stat. § 10-2803 (Burns 1972).

We reverse the judgment and conviction and remand to the trial court for the purpose of discharging the defendants Mohney and Geraghty. Our authorities for doing so are the recent cases of Stroud v. State, Ind.Sup.Ct., 300 N.E.2d 100, decided August 21, 1973, and Mohney v. State, Ind. Sup.Ct., 300 N.E.2d 66, decided August 21, 1973, both of which declare the statute in question unconstitutional.

Reversed and remanded.