State v. Bryant

185 S.E.2d 854 (1972)

280 N.C. 407

STATE of North Carolina v. Joe BRYANT et al.

No. 162.

Supreme Court of North Carolina.

January 28, 1972.

*856 Atty. Gen. Robert Morgan, Asst. Atty. Gen. Christine Y. Denson, for the State.

Smith & Patterson and Michael K. Curtis, Greensboro, for John Knoll and Don Childs, defendant appellants.

Earle R. Purser, Raleigh, for Joe Bryant and B. R. Queen, defendant appellants.

SHARP, Justice.

Appellants argued in the Court of Appeals that the items seized, "based on their content and on the manner in which they were distributed and offered for sale, are not obscene." However, no exhibits were made a part of their case on appeal. The Court of Appeals did not consider this question and, in this Court, appellants do not argue it.

Here, defendants pose three interlocking questions: (1) Could the State constitutionally seize "substantially the entire inventories" of defendants' three stores as an incident to their arrest upon charges of disseminating obscenity prior to a judicial determination that the materials seized were obscene? (2) Did the Superior Court have jurisdiction to make a preliminary determination whether the material seized at the time of defendants' arrest was obscene and to order those items it determined to be obscene held until defendants' trial in the District Court upon the pending charges? (3) Do defendants have a right to appeal from Judge Clark's "interlocutory order"?

The answer to question (3) is that an appeal will lie if Judge Clark's order "may destroy or impair or seriously imperil some substantial right of the appellant." State v. Childs, 265 N.C. 575, 578, 144 S.E.2d 653, 655. Indubitably, if "substantially the entire inventories" of defendants' three stores were unlawfully seized in violation of the constitutional guaranty against unreasonable searches and seizures, Judge Clark's order, which directed the Raleigh Police Department to retain ninety-five percent of the seized items pending final determination of the charges against defendants, would destroy, impair, or seriously imperil their substantial rights. Furthermore, if Judge Clark had no jurisdiction of the parties and the subject matter, his order was void in toto. In either event defendants would be entitled to appeal, and the dismissal of their appeal would be error.

The question whether police officers may make a massive seizure of reading materials, pictures or films before their obscenity has been established in a properly constituted adversary hearing is a serious one indeed. See A Quantity of Copies of *857 Books v. Kansas, 378 U.S. 205, 12 L. Ed. 2d 809, 84 S. Ct. 1723 (1964) and cases therein cited; Freedman v. Maryland, 380 U.S. 51, 85 S. Ct. 734, 13 L. Ed. 2d 649 (1965). However, we do not reach that constitutional question because Judge Clark had no jurisdiction to make the order from which defendants appealed.

The prosecution of defendants was instituted under G.S. § 14-189, which, inter alia, made it unlawful to display obscene literature for the purpose of sale, and G.S. § 14-189.1, which made it unlawful to disseminate obscenity knowingly and purposely. Both statutes created misdemeanors, for which "the district court has exclusive, original jurisdiction." G.S. § 7A-272 (1969). Until defendants were tried and convicted in the District Court and appealed to the Superior Court for a trial de novo that court had no jurisdiction of the cases. G.S. § 7A-271(a) (5) (1969).

Seemingly the solicitor and the Attorney General, both of whom signed the motion in which Judge Clark was requested to make a "preliminary adjudication of obscenity," anticipated G.S. § 14-190.2 (Supp.1971). However, this statute, which is a part of Chapter 405 of the Session Laws of 1971, did not become effective until 1 July 1971, twenty-eight days after Judge Clark made his order. Furthermore, Section (a) of G.S. § 14-190.2 states that its purpose "is to provide an adversary determination of the question of whether books, magazines, motion pictures or other materials are obscene prior to their seizure." (Italics ours.) Clearly, this statute evidences the legislative intent to prevent wholesale seizures such as occurred here prior to an adversary judicial determination that the materials seized were obscene. Section (c) requires that any law enforcement officer who has reasonable ground to believe that obscenity is being disseminated in a public place "shall, without seizing such material, notify the solicitor for the judicial district.. . ." Section (h) makes it clear that G.S. § 14-190.2 does not prohibit a law enforcement officer "from seizing for evidentiary purposes single copies of. . . printed material, which he reasonably believes to be obscene within the meaning of G.S. § 14-190.1, when such seizure is made pursuant to a lawful arrest." (Emphasis added.)

The Attorney General argues in his brief (1) that Judge Clark's order determining that he had jurisdiction of the cause, that the items seized were obscene, and that the seizure was lawful, "was a mere interlocutory order" not binding on the trial court and, therefore, not presently appealable even if erroneous; and (2) that a defendant's remedy at this point is to note his exception and perfect his appeal along with the appeal of the case in event of conviction." This argument is patently without merit. Judge Clark's order is void in toto, and defendants' right to have it so declared may not thus be delayed.

Finally, the property in suit was seized as an incident to defendants' arrest on warrants upon which they cannot now be tried. These warrants charge offenses created by G.S. § 14-189 and G.S. § 14-189.1 (1969). Chapter 405 of the Session Laws of 1971 repealed these statutes as of 1 July 1971, and all pending prosecutions based upon them ended on that date. State v. McCluney, N.C., 185 S.E.2d 870; State v. Pardon, 272 N.C. 72, 157 S.E.2d 698, and cases therein cited.

The decision of the Court of Appeals is reversed, and this cause is remanded to that court to the end that it direct the Superior Court to vacate the order of Judge Clark made in this case and enter an order releasing the materials described therein to the defendants.

However, we are constrained to point out that the order releasing the material seized will constitute no adjudication that it is not obscene. If defendants thereafter intentionally disseminate any part of it in a public place the question of obscenity may be determined in proceedings instituted *858 under G.S. § 14-190.1 or G.S. § 14-190.2 (Supp.1971), statutes which have been in effectand available for that purpose since 1 July 1971.

Reversed and remanded.