{ "id": 1621180, "name": "Dan W. FORTNER & Sharon Lee HOLCOMBE v. STATE of Arkansas", "name_abbreviation": "Holcombe v. State", "decision_date": "1975-10-06", "docket_number": "CR 75-98", "first_page": "591", "last_page": "597", "citations": [ { "type": "official", "cite": "258 Ark. 591" }, { "type": "parallel", "cite": "528 S.W.2d 378" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "252 Ark. 1242", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1629841 ], "weight": 2, "year": 1972, "opinion_index": 0, "case_paths": [ "/ark/252/1242-01" ] }, { "cite": "161 U.S. 29", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5701357 ], "opinion_index": 0, "case_paths": [ "/us/161/0029-01" ] }, { "cite": "157 U.S. 286", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3583925 ], "opinion_index": 0, "case_paths": [ "/us/157/0286-01" ] }, { "cite": "346 U.S. 374", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6931358 ], "year": 1953, "opinion_index": 0, "case_paths": [ "/us/346/0374-01" ] }, { "cite": "285 U.S. 427", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1175347 ], "year": 1932, "opinion_index": 0, "case_paths": [ "/us/285/0427-01" ] }, { "cite": "204 Ark. 657", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1444140 ], "weight": 2, "year": 1942, "opinion_index": 0, "case_paths": [ "/ark/204/0657-01" ] }, { "cite": "258 Ark. 549", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1621218 ], "weight": 4, "year": 1975, "opinion_index": 0, "case_paths": [ "/ark/258/0549-01" ] } ], "analysis": { "cardinality": 569, "char_count": 10839, "ocr_confidence": 0.899, "pagerank": { "raw": 1.7366866335291698e-07, "percentile": 0.7063817234132183 }, "sha256": "d1e21fe4bb8b97c8e30f14b61429f8fd52b130cbe775d2894a348a2afa3177ec", "simhash": "1:262193295a84ddfc", "word_count": 1820 }, "last_updated": "2023-07-14T18:03:57.275817+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Dan W. FORTNER & Sharon Lee HOLCOMBE v. STATE of Arkansas" ], "opinions": [ { "text": "J. Fred Jones, Justice.\nThe appellants Dan W. Fortner and Sharon Lee Holcombe were convicted at a jury trial in the Pulaski County Circuit Court on information filed by the prosecuting attorney charging them with selling an obscene motion picture film in violation of Ark. Stat. Ann. \u00a7 41-2729 (Supp. 1973). The appellant Fortner was fined $2,000 and sentenced to three years in the penitentiary, and the appellant Holcombe was fined $2,000. The appellants rely on the following points for reversal:\n\u201cThe court erred in refusing to grant defendants\u2019 supplemental motion to dismiss.\nThe court erred in refusing to grant defendants \u2019 motion to dismiss.\nThe trial court erred in denying defendant Holcombe\u2019s motion for directed verdict at the conclusion of the state\u2019s case.\nThe closing argument of the attorney for the state was improper and so prejudiced defendant Holcombe that the conviction must be reversed.\nThe trial court erred in refusing to give certain jury instructions requested by defendants and in giving certain jury instructions over the objection of defendants.\u201d\nArk. Stat. Ann. \u00a7 41-2729 (Supp. 1973) provides as follows:\n\u201cHereafter it shall be unlawful for any person knowingly to exhibit, sell, offer to sell, give away, circulate, produce, distribute, attempt to distribute, or have in his or her possession any obscene film.\u201d\nSection 41-2729, supra, makes the enumerated acts unlawful but Ark. Stat. Ann. \u00a7 41-2731 (Supp. 1973) makes the selling of obscene films a felony and mere possession a misdemeanor. The appellants argue that the statute is unconstitutionally overbroad because it makes mere possession of an obscene film a criminal act. This same argument was thoroughly rejected in our recent decision in the case of Smith v. State, 258 Ark. 549, 528 S.W. 2d 360 (1975), and we find no merit to that contention here. For a more thorough discussion on this point see Levy v. Albright, 204 Ark. 657, 163 S.W. 2d 529 (1942), cited in Smith, supra.\nIn support of their assignment that the trial court erred in refusing to grant their motion to dismiss, the appellants recite three reasons, separately designated as \u201cA,\u201d \u201cB\u201d and \u201cC.\u201d They contend under \u201cA\u201d that \u00a7 41-2729, supra, as judicially construed, is vague and indefinite and thus violative of due process in that it does not provide fair notice of what is prohibited. They argue under \u201cB\u201d that wholly aside from the difficulties in determining what standards obtain in Arkansas, the \u201cnew Miller\u201d test is exquisitely vague and lacking in the precision necessary in legislation touching upon First Amendment rights; and, they argue under \u201cC\u201d that the information charged only that the defendants, on a particular date, at a certain business location, did sell an obscene motion picture film, and that the information is constitutionally insufficient. The arguments under reasons \u201cA\u201d and \u201cB\u201d were advanced and rejected in Smith v. State, supra, and we find no merit in the appellants\u2019 contention under \u201cC.\u201d\nArk. Stat. Ann. \u00a7 43-1006 (Repl. 1964) reads as follows:\n\u201cThe language of the indictment must be certain as to the title of the prosecution, the name of the court in which the indictment is presented, and the name of the parties. It shall not be necessary to include statements of the act or acts constituting the offense, unless the offense cannot be charged without doing so. Nor shall it be necessary to allege that the act or acts constituting the offense were done wilfully, unlawfully, feloniously, maliciously, deliberately or with premeditation, but the name of the offense charged in the indictment shall carry with it all such allegations. The State, upon request of the defendant, shall file a bill of particulars, setting out the act or acts upon which it relies for conviction.\u201d\nThe appellants do not deny that the information satisfies the statutory requirements but they contend that the information does not set forth facts which would enable the appellants to plead an acquittal or conviction in bar of future prosecution for the same offense. The appellants cite two cases, Hagner v. United States, 285 U.S. 427 (1932), and United States v. Debrow, 346 U.S. 374 (1953), in support of this argument. In both cases the United States Supreme Court upheld the validity of criminal indictments because they gave the defendants sufficient notice of their alleged crimes. Indeed, the test set forth in Hagner and quoted in Debrow indicates that it is the court record and not the indictment alone which forms the basis for a plea of former jeopardy. In these cases the court said:\n\u201cThe true test of the sufficiency of an indictment is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, and \u2018sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.\u2019 Cochran v. United States, 157 U.S. 286; Rosen v. United States, 161 U.S. 29.\u201d\nWe find no merit in the appellants\u2019 second assignment.\nWe must agree that the trial court erred in denying defendant Holcombe\u2019s motion for directed verdict at the conclusion of the state\u2019s case. It is true that a verdict should be directed only when there is no factual issue to go to the jury. Parker v. State, 252 Ark. 1242, 482 S.W. 2d 822 (1972). But as we view the record in the case at bar, there was no evidence from which the jury could have found, without resorting to surmise and conjecture, that the appellant Holcombe had knowledge that the film sold was an obscene film, as required for conviction under \u00a7 41-2729, supra. The appellant Holcombe correctly asserts that there was no direct evidence that she was even present during the conversation in which the appellant Fortner described the film to the investigating officer. There was testimony that she was the person who put the money from the sale into the cash register, and there was also testimony that the cash register was located on a counter which was in front of the film racks from which the obscene film was selected. The evidence indicates that Holcombe was employed as a clerk in the place, and it is easy to surmise that she knew what was going on and what was being sold from the film rack where she worked as cashier. Juries, however, are not permitted to indulge in surmise and conjecture in arriving at a guilty verdict in the trial of one accused of crime. A jury verdict of guilty must be based on competent evidence and there is no evidence in the record that Holcombe knew anything about the content of the film or how it compared with the \u201cpeep shows\u201d in the back part of the place. Having concluded that the judgment must be reversed as to Holcombe, we do not reach the appellants\u2019 fourth assignment since the argument complained of is not likely to occur at a new trial.\nThe appellants contend that the trial court erred in giving certain jury instructions requested by the state and in refusing certain instructions requested by the defendants. With the exception of the instruction on scienter contained in the state\u2019s instruction No. 1 given by the court in the case at bar, the alleged errors pertaining to the instructions also arose in Smith v. State, supra, and were decided adversely to the appellants\u2019 contention. The portion of the instruction objected to reads as follows:\n\u201cAs used herein, \u2018Knowingly\u2019 means having general knowledge of, or reason to know, or a belief which warrants further inspection or inquiry of the character and content of a film which is reasonably susceptible of examination by the defendant.\u201d\nThe felony statute under which the appellants were charged was Act 411 of 1967, Ark. Stat. Ann. \u00a7\u00a7 41-2729 \u2014 41-2731 (Supp. 1973). This Act did not define scienter. The above portion of the instruction vigorously objected to, was apparently lifted from Act 133 of 1969 entitled \u201cAN ACT Prohibiting the Sale or Loan of Pornographic Literature to Minors ...,\u201da misdemeanor statute digested as Ark. Stat. Ann. \u00a7\u00a7 41-2732 \u2014 41-2734 (Supp. 1973), where scienter is defined under \u00a7 41-2732 (g) as follows:\n\u201c \u2018Knowingly\u2019 means having general knowledge of, or reason to know, or a belief or ground for belief which warrants further inspection or inquiry of [sic] both.\u201d\nWe are of the opinion that the trial court went further than he should have gone in adding to the state\u2019s instruction No. 1 the phrase: \u201cor a belief which warrants further inspection or inquiry of the character and content of a film which is reasonably susceptible of examination by the defendant.\u201d We do not pass upon the use of this language as part of an instruction in a case arising under \u00a7\u00a7 41-2732 \u2014 41-2734, supra, because that is not the situation in the case before us. Here the appellants were charged under the felony statute, \u00a7 41-2729, and we are of the opinion that to sustain a conviction thereunder, scienter requires more than a mere belief which warrants further inspection or inquiry. The appellants\u2019 own requested instructions No. 1 and No. 16, which were given by the trial court, if not in conflict with the state\u2019s instruction No. 1, certainly added no clarification to all the instructions. The appellants\u2019 instruction No. 1 was given as follows:\n\u201cThree essential elements must be proved in order to establish the offense charged in the Information as violation of Arkansas Statutes 41-2729:\nFIRST: That the motion picture charged in the Information is obscene, as I shall shortly explain the meaning of that term to you.\nSECOND: That the Defendant exhibited, sold or offered to sell the motion picture charged as obscene in the Information.\nTHIRD: That the Defendant had knowledge of or reasonably should have known the nature, character, and content of the motion picture.\nThe burden is upon the Prosecution to prove beyond a reasonable doubt each of the essential elements of the crime; the law never imposes a duty upon any defendant in a criminal case the burden of calling any witnesses or producing any evidence.\u201d\nThe appellants\u2019 requested instruction No. 16 was given as follows:\n\u201cThe mere fact alone that a defendant knew the contents of the motion picture film, if you should find such a fact, does not for that reason alone justify a conclusion that the said defendant knew that the character of the film herein was conceivably obscene in the Constitutional sense.\u201d\nThe judgments as to both appellants are reversed and this case remanded for a new trial.\nReversed and remanded.", "type": "majority", "author": "J. Fred Jones, Justice." } ], "attorneys": [ "John M. Fincher, for appellants.", "Jim Guy Tucker, Atty. Gen., by: Terry Kirkpatrick, Asst. Atty. Gen., for appellee." ], "corrections": "", "head_matter": "Dan W. FORTNER & Sharon Lee HOLCOMBE v. STATE of Arkansas\nCR 75-98\n528 S.W. 2d 378\nOpinion delivered October 6, 1975\nJohn M. Fincher, for appellants.\nJim Guy Tucker, Atty. Gen., by: Terry Kirkpatrick, Asst. Atty. Gen., for appellee." }, "file_name": "0591-01", "first_page_order": 631, "last_page_order": 637 }