State v. Hart

213 S.E.2d 291 (1975)

287 N.C. 76

STATE of North Carolina v. Dillard P. HART and Drewry Hall.

No. 49.

Supreme Court of North Carolina.

April 14, 1975.

*293 James H. Carson, Jr., Atty. Gen., Edwin M. Speas, Jr., Asst. Atty. Gen., Richard F. *294 Kane, Associate Attorney, Raleigh, for the State of North Carolina, appellant.

Harriss, Ruis & Mulligan, by Ronald H. Ruis and Michael J. Mulligan, Durham, for defendant appellees.

HUSKINS, Justice:

Prior to the enactment of Chapter 1434 of the 1973 Session Laws, G.S. § 14-190.2(h) (1973 Cum. Supp.) provided in pertinent part:

"Nothing in this section shall be construed as preventing any law enforcement officer from arresting any person when that person is charged under a proper warrant or indictment with a criminal violation of this Article. . .."

Chapter 1434 of the 1973 Session Laws, effective July 1, 1974, rewrote G.S. § 14-190.2(h) to read as follows:

"No person, firm or corporation shall be arrested or indicted for any violation of a provision of G.S. 14-190.1, G.S. 14-190.3, G.S. 14-190.4, G.S. 14-190.5, G.S. 14-190.6, G.S. 14-190.7, G.S. 14-190.8, G.S. 14-190.10, or G.S. 14-190.11 until the material involved has first been the subject of an adversary determination under the provisions of this section, wherein such person, firm or corporation is a respondent, and wherein such material has been declared by the court to be obscene or in the case of G.S. 14-190.10 or G.S. 14-190.11, to be sexually oriented and until such person, firm or corporation continues, subsequent to such determination, to engage in the conduct prohibited by a provision of the sections hereinabove set forth."

It thus appears that at the time these defendants were arrested G.S. § 14-190.2(h) contained no provision prohibiting the arrest or indictment of an alleged violator of G.S. § 14-190.1 et seq. until the material involved had first been the subject of an adversary determination and declared by the court to be obscene. That provision became the law on July 1, 1974after defendants had been arrested, tried, and sentenced, but during the pendency of their appeals. We are thus confronted with the question whether the amendment to G.S. § 14-190.2(h), effective July 1, 1974 during the pendency of this appeal, inures to the benefit of defendants and abates this prosecution.

We note at the outset that the 1973 amendment to G.S. § 14-190.2(h) does not reduce the punishment or otherwise remove any burden imposed upon these defendants by prior law. To the contrary, that amendment places an additional procedural burden upon the State to obtain an adversary judicial determination that the material in question is obscene, and thereafter disseminated by the accused, before he may be arrested or indicted. And no other provision of Chapter 1434 of the 1973 Session Laws reduces the punishment or otherwise removes any burden imposed on an accused by the law in effect prior to July 1, 1974. In that setting, appellate courts will not give effect to such changes in the law pending an appeal if the subsequent legislation (1) contains a savings clause or (2) manifests a legislative intent to the contrary, or (3) where there is a constitutional prohibition. State v. Currie, 284 N.C. 562, 202 S.E.2d 153 (1974); State v. Cameron, 284 N.C. 165, 200 S.E.2d 186 (1973), cert. denied 418 U.S. 905, 94 S. Ct. 3195, 41 L. Ed. 2d 1153 (1974); State v. Harvey, 281 N.C. 1, 187 S.E.2d 706 (1972); State v. Pardon, 272 N.C. 72, 157 S.E.2d 698 (1967).

Chapter 1434 of the 1973 Session Laws contains no savings clause; and we are aware of no constitutional prohibition which prevents giving retroactive effect to the changes wrought by the enactment of that chapter. In our view, however, there is in Chapter 1434 a manifest legislative intent that said chapter should be applied prospectively only and should not be applicable to pending prosecutions.

In the interpretation of statutes the legislative will is the controlling factor. *295 "Indeed, it is frequently stated in effect that the intention of the legislature constitutes the law." 73 Am.Jur.2d, Statutes § 145 (1974). A construction which operates to defeat or impair the object of the statute must be avoided if that can reasonably be done without violence to the legislative language. Ballard v. Charlotte, 235 N.C. 484, 70 S.E.2d 575 (1952). Where possible, the language of a statute will be interpreted so as to avoid an absurd consequence. Hobbs v. Moore County, 267 N.C. 665, 149 S.E.2d 1 (1966); Young v. Whitehall Co., 229 N.C. 360, 49 S.E.2d 797 (1948); State v. Scales, 172 N.C. 915, 90 S.E. 439 (1916); State v. Earnhardt, 170 N.C. 725, 86 S.E. 960 (1915).

"Of course criminal statutes must be strictly construed. [Citations omitted.] But this does not mean that a criminal statute should be construed stintingly or narrowly. It means that the scope of a penal statute may not be extended by implication beyond the meaning of its language so as to include offenses not clearly described. [Citations omitted.] Even so, an interpretation which leads to a strained construction or to a ridiculous result is not required and will not be adopted. State v. Pinyatello, 272 N.C. 312, 158 S.E.2d 596 [1968]. `While a criminal statute must be strictly construed, the courts must nevertheless construe it with regard to the evil which it is intended to suppress. And the rule that statutes will be construed to effectuate the legislative intent applies also to criminal statutes.' 7 Strong's N.C.Index 2d, Statutes § 10; State v. Brown, 221 N.C. 301, 20 S.E.2d 286 [1942]; State v. Hatcher, 210 N.C. 55, 185 S.E. 435 [1936]; State v. Humphries, 210 N.C. 406, 186 S.E. 473 [1936]." State v. Spencer, 276 N.C. 535, 173 S.E.2d 765 (1970).

When Chapter 1434 of the 1973 Session Laws is subjected to these rules of construction, it is manifest that the legislature intended the changes wrought by that enactment to be prospective only beginning July 1, 1974. Chapter 1434 amended G.S. § 14-190.1 et seq. by (1) changing the definition of "obscenity" fashioned in Roth v. United States, 354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957), and Memoirs v. Massachusetts, 383 U.S. 413, 86 S. Ct. 975, 16 L. Ed. 2d 1 (1966), to conform to the new definition of obscenity contained in Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973), (2) defining "sexual conduct" to conform to the holding in Miller, and (3) amending former G.S. § 14-190.2(h) to prohibit the arrest or indictment of any person, firm or corporation for a violation of G.S. § 14-190.1 et seq. until the material involved had been declared obscene in an adversary proceeding and the material thereafter disseminated.

The foregoing changes did not repeal the former anti-obscenity statutes but only amended them effective July 1, 1974. "As a general rule, except in so far as an amendment may operate as an implied repeal of a statute . . ., the amendment of a criminal statute does not affect the prosecution or punishment of a crime committed before the amendment became effective, but as to such crimes the original statute remains in force." 22 C.J.S. Criminal Law § 26, at 87 (1961).

It appears that the definition of "obscenity" in our former statute under which these defendants are charged placed a heavier burden on the State to convict than the definition prescribed in Miller v. California, supra. Since the latest amendment to G.S. § 14-190.1 through G.S. § 14-190.11 (a codification of Chapter 1434 of the 1973 Session Laws) makes it easier for the State to convict violators, the amendment affords these defendants no grounds on which to contend that their convictions are now illegal and must abate.

Further, we note that although Chapter 1434 of the 1973 Session Laws was ratified on April 13, 1974, the General Assembly specifically provided that the act become effective July 1, 1974. This clearly demonstrates the manifest intent of the General Assembly that Chapter 1434 should *296 not be applied retroactively. Otherwise, we have an obviously absurd result: An act ratified on April 13, 1974 with its effective date postponed until July 1,1974, and yet to be retroactively applied to all prior pending prosecutions! To further confound the hiatus, such an interpretation and application of Chapter 1434 would mean, in effect, that the State had no anti-obscenity statutes from April 13, 1974 through June 30, 1974, because prosecutions initiated during that period would not have become final before July 1, 1974, on which date all pending prosecutions would have to be abandoned. Such a result could not have been intended by the General Assembly and we will not adopt an interpretation which produces a result so obviously ridiculous. We hold that the Legislature manifestly intended that Chapter 1434 of the 1973 Session Laws should become effective on July 1, 1974, and should be applied prospectively only. It necessarily follows that the charges against these defendants were not abated by the enactment of Chapter 1434 of the 1973 Session Laws.

Defendants next contend that insertion of a definition of "sexual conduct" into G.S. § 14-190.1 by enactment of Chapter 1434 of the 1973 Session Laws, after the date of their arrest, denies them due process and amounts to an ex post facto application of the law when that definition is applied to them. This contention has no merit. It was advanced and rejected in United States v. Thevis, 484 F.2d 1149 (5th Cir. 1973), and by this Court in State v. Bryant and Floyd, 285 N.C. 27, 203 S.E.2d 27, cert. denied 419 U.S. 974, 95 S. Ct. 238, 42 L. Ed. 2d 188, (1974).

State v. Bryant and Floyd, 16 N.C.App. 456, 192 S.E.2d 693 (1972), remanded 413 U.S. 913, 93 S. Ct. 3065, 37 L. Ed. 2d 1036 (1973), was remanded by the Supreme Court of the United States to the North Carolina Court of Appeals for further consideration in light of Miller v. California, supra. The Court of Appeals reconsidered the constitutionality of G.S. § 14-190.1 as applied to the defendants in light of Miller, made an independent judgment on the facts and considered both the Miller and Memoirs definitions of obscenity. After applying the "dual standards test" of both Miller and Memoirs, the Court of Appeals concluded that the film in question was obscene under both standards and again held that G.S. § 14-190.1 was not unconstitutional on its face and not unconstitutional as applied to defendants. 20 N.C.App. 223, 201 S.E.2d 211 (1973). On appeal to this Court, we affirmed. State v. Bryant and Floyd, 285 N.C. 27, 203 S.E.2d 27, cert. denied 419 U.S. 974, 95 S. Ct. 238, 42 L. Ed. 2d 188 (1974). (1974).

The dual test was designed to protect, and does protect, defendants from any ex post facto application of the law. Whether pre-Miller material is obscene is determined by testing the material under both Memoirs and Miller. "This procedure avoids an ex post facto application of Miller and keeps Memoirs intact for the purposes of judging offenses committed prior to the Supreme Court decision in Miller. Unless the material is judged to be obscene under both Memoirs and Miller there can be no conviction." United States v. Millican, 487 F.2d 331 (5th Cir. 1973), cert. denied, 418 U.S. 947, 94 S. Ct. 3233, 41 L. Ed. 2d 1177 (1974); accord, State ex rel. Chobot v. Circuit Court for Milwaukee, 61 Wis.2d 354, 212 N.W.2d 690 (1973).

Decision here is controlled by State v. Bryant and Floyd, supra. Defendants' voluntary pleas of guilty remove the necessity of proof by the State and present for review "only whether the indictment [warrant] charges an offense punishable under the Constitution and law." State v. Wynn, 278 N.C. 513, 180 S.E.2d 135 (1971). Even so, an examination of the materials disseminated by defendants discloses hard-core pornographic publications which are obscene under both Memoirs and Miller definitions of obscenity. Therefore, since the warrants charge an offense under a constitutional statute, the verdicts and judgments must be upheld.

*297 For the reasons stated, the decision of the Court of Appeals is reversed and the case remanded to that court for further remand to the Superior Court of Alamance County to the end that the judgments pronounced by Judge Clark upon defendants' voluntary pleas of guilty may be reinstated.

Reversed and remanded.