{
  "id": 1665022,
  "name": "STATE of Arkansas v. Gary Lee BROWN",
  "name_abbreviation": "State v. Brown",
  "decision_date": "1979-03-19",
  "docket_number": "CR 78-164",
  "first_page": "41",
  "last_page": "45",
  "citations": [
    {
      "type": "official",
      "cite": "265 Ark. 41"
    }
  ],
  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [
    {
      "cite": "263 Ark. 249",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1672712
      ],
      "weight": 2,
      "year": 1978,
      "opinion_index": 0,
      "case_paths": [
        "/ark/263/0249-01"
      ]
    }
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  "last_updated": "2023-07-14T18:31:48.026206+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "We agree. Harris, C J., and Fogleman and Holt, JJ."
    ],
    "parties": [
      "STATE of Arkansas v. Gary Lee BROWN"
    ],
    "opinions": [
      {
        "text": "Darrell Hickman, Justice.\nGary Lee Brown was convicted of selling an obscene film in violation of Ark. Stat. Ann. \u00a7 41-3578, et sequentes (Repl. 1977), and fined $1,000,00.\nBrown appeals alleging he was improperly charged with a violation of that statute which was repealed by Act 464 of 1977 (Ark. Stat. Ann. \u00a7 41-3501, et seq.). We agree with Brown\u2019s argument in this regard.\nThe State on cross-appeal alleges the trial court improperly instructed the jury. We also agree with this argument. The State properly perfected its appeal by lodging the record within 60 days after filing a notice of appeal as required by Rules of Crim. Proc., Rule 36.10 (1977).\nThere is no contention that the film that Brown sold was not obscene. The argument is whether the statute Brown was charged with violating was repealed by a comprehensive obscenity law enacted in 1977.\nThe General Assembly, by Act 464 of 1977, passed legislation titled, \u201cAn Act to Establish a Comprehensive Obscenity Law for the State of Arkansas.\u201d Part of the prohibited conduct in that Act relates to the sale of obscene material. Section 2, Subsection (8), provides:\n\u201cPromote\u201d means to produce, direct, perform in, manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, publish, distribute, circulate, disseminate, present, exhibit, or advertise, for consideration, or to offer or agree to do any of these things for consideration.\nViolation of Act 464 is a class B misdemeanor for which the punishment is a fine not to exceed $500.00 or a sentence not to exceed 90 days.\nThe statute Brown was charged with violating reads:\n... 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.\nViolation of this law is a felony and is punishable by a fine not to exceed $2,000.00 or imprisonment for not less than one, nor more than five years, or both. Ark. Stat. Ann. \u00a7\u00a7 41-3578 and 41-3580.\nClearly both laws prohibit one from selling an obscene film and cannot be reconciled. Since Act 464, which includes a repealing clause which repeals all laws or parts of laws in conflict therewith, was passed after the statute under which Brown was convicted, it repeals that part of Ark. Stat. Ann. \u00a7 41-3578 which deals with selling obscene films.\nWe recently held that Act 464 of 1977 did not repeal that portion of these statutes (Ark. Stat. Ann. \u00a7 41-3578, et seq.) which might relate to showing an obscene film where there was no consideration paid. Buck v. Steel, Judge, 263 Ark. 249, 564 S.W. 2d 215 (1978). Act 464, as we have referred to herein, prohibits promotion only where consideration is involved. The Arkansas statute, which Brown is accused of violating, does not mention consideration.\nConsequently, Brown was improperly charged and convicted, and, therefore, the judgment is reversed and dismissed.\nThe State argues in its cross-appeal that the trial judge improperly instructed the jury regarding knowledge. Both the State and Brown offered instructions on \u201cknowingly\u201d, that is, the knowledge that one must have to be guilty of violating the law. The trial court rejected both offered instructions and instead gave an instruction based on knowledge contained in Ark. Stat. Ann. \u00a7 41-203(2) (Repl. 1977). That instruction is as follows:\nA person acts knowingly with respect to his conduct or the attendant circumstances when he is aware that his conduct is of that nature or that such circumstances exist. A person acts knowingly with respect to a result of his conduct when he is aware that it is practically certain that his conduct will cause such a result.\nThe State argues this was error, not only because of the content of the instruction, but because this definition of \u201cknowingly\u201d is to be used only in connection with the criminal code, Ark. Stat. Ann. \u00a7 41-203 (Repl. 1977). Instead, the State offered this instruction:\nThe Defendant is charged with knowingly selling an obscene film. The State must prove beyond a reasonable doubt that the Defendant, had knowledge of the film in issue. It is not necessary that Defendant be shown to have actually seen the film, but only that the Defendant knew the nature and character of the film. It does not matter that the Defendant did not believe the film was obscene. If the Defendant knew the nature and character of the film, that is, knew that it was sexually explicit and contained descriptions or depictions of sexual conduct, then the requirement of knowledge would be satisfied. [Emphasis added.]\nThis instruction was improper because the emphasized language could be misleading to a jury. It might leave the implication with the jury that the matter would not have to be obscene.\nThe State offered another instruction as an alternative instruction based on knowledge as defined in Ark. Stat. Ann. \u00a7 41-3581 (g). That instruction, taken almost verbatim from the statute, would have been the proper instruction to be given by the court. The reason it should have been given is because this definition of \u201cknowledge\u201d was to be applied to prosecutions for violation of Ark. Stat. Ann. \u00a7 41-3578.\nThis was a pre-criminal code prosecution and since there could be others for this same offense, we have attempted to clarify the situation for the correct and uniform administration of criminal law.\nReversed and dismissed.\nWe agree. Harris, C J., and Fogleman and Holt, JJ.",
        "type": "majority",
        "author": "Darrell Hickman, Justice."
      }
    ],
    "attorneys": [
      "Bill Clinton, Atty. Gen., by \u2018.Joyce Williams Warren, Asst. Atty. Gen., for appellee and cross-appellant.",
      "Pearce & Robinson, for appellant and cross-appellee."
    ],
    "corrections": "",
    "head_matter": "STATE of Arkansas v. Gary Lee BROWN\nCR 78-164\nSubstituted Opinion on Denial of Rehearing delivered March 19, 1979\n(Division II)\nBill Clinton, Atty. Gen., by \u2018.Joyce Williams Warren, Asst. Atty. Gen., for appellee and cross-appellant.\nPearce & Robinson, for appellant and cross-appellee."
  },
  "file_name": "0041-01",
  "first_page_order": 65,
  "last_page_order": 69
}