State v. Wendling

217 N.W.2d 768 (1974)

STATE of Minnesota, Respondent, v. LeRoy WENDLING, Appellant.

No. 44134.

Supreme Court of Minnesota.

April 26, 1974.

Robert J. Milavetz, Minneapolis, for appellant.

Warren Spannaus, Atty. Gen., St. Paul, Gary Flakne, County Atty., Keith M. Stidd, City Atty., Edward C. Vavreck, Asst. City Atty., Minneapolis, for respondent.

Heard before OTIS, MacLAUGHLIN, and YETKA, JJ., and considered and decided by the court.

PER CURIAM.

Defendant was convicted of exhibiting obscene materials in violation of the obscenity ordinance of the city of Minneapolis, Minneapolis Code of Ordinances, § 870.080.

Since the alleged criminal acts of defendant took place before our decision in State v. Welke, Minn., 216 N.W.2d 641, filed March 1, 1974, he did not have the clear notice of legislative proscription that Welke requires.

As this court stated in State v. Carlson, Minn., 216 N.W.2d 650, 651 (1974), decided the same day as Welke:

"* * * [W]e prefer to err, if at all, on the side of that fair notice vouchsafed in Welke. The state's interest is, in our view, sufficiently served by the *769 clear notice of authoritative construction made in Welke without burdening the state and the defendants with the uncertainties and expense of reappeals to the United States Supreme Court concerning its application of conduct antecedent to Welke."

This rationale is also applicable to the case at bar.

Our decision on the above issue makes it unnecessary to consider the other assignments of error raised by defendant in this appeal.

Reversed with directions to dismiss the complaint.