{ "id": 8572216, "name": "STATE OF NORTH CAROLINA v. JOE BRYANT, JOHN KNOLL, DON CHILDS and B. R. QUEEN", "name_abbreviation": "State v. Bryant", "decision_date": "1972-01-28", "docket_number": "No. 162", "first_page": "407", "last_page": "413", "citations": [ { "type": "official", "cite": "280 N.C. 407" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "183 S.E. 2d 824", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": -1 }, { "cite": "12 N.C. App. 530", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550844 ], "opinion_index": -1, "case_paths": [ "/nc-app/12/0530-01" ] }, { "cite": "157 S.E. 2d 698", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "272 N.C. 72", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570716 ], "opinion_index": 0, "case_paths": [ "/nc/272/0072-01" ] }, { "cite": "380 U.S. 51", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1525226 ], "weight": 3, "year": 1965, "opinion_index": 0, "case_paths": [ "/us/380/0051-01" ] }, { "cite": "378 U.S. 205", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6166152 ], "weight": 3, "year": 1964, "opinion_index": 0, "case_paths": [ "/us/378/0205-01" ] }, { "cite": "144 S.E. 2d 653", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "655" } ], "opinion_index": 0 }, { "cite": "265 N.C. 575", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8576362 ], "pin_cites": [ { "page": "578" } ], "opinion_index": 0, "case_paths": [ "/nc/265/0575-01" ] } ], "analysis": { "cardinality": 564, "char_count": 12659, "ocr_confidence": 0.539, "pagerank": { "raw": 1.5416897386569651e-07, "percentile": 0.6729913597279223 }, "sha256": "8e79f8b16d077f78791a5892ba12905bb749d492aade73618d76923633c81cd3", "simhash": "1:c58bded208898954", "word_count": 2044 }, "last_updated": "2023-07-14T16:17:02.302234+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. JOE BRYANT, JOHN KNOLL, DON CHILDS and B. R. QUEEN" ], "opinions": [ { "text": "SHAEP, Justice.\nAppellants argued in the Court of Appeals that the items seized, \u201cbased on their content and on the manner in which they were distributed and offered for sale, are not obscene.\u201d 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.\nHere, defendants pose three interlocking questions: (1) Could the State constitutionally seize \u201csubstantially the entire inventories\u201d of defendants\u2019 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\u2019 arrest was obscene and to order those items it determined to be obscene held until defendants\u2019 trial in the District Court upon the pending charges? (3) Do defendants have a right to appeal from Judge Clark\u2019s \u201cinterlocutory order\u201d?\nThe answer to question (3) is that an appeal will lie if Judge Clark\u2019s order \u201cmay destroy or impair or seriously imperil some substantial right of the appellant.\u201d State v. Childs, 265 N.C. 575, 578, 144 S.E. 2d 653, 655. Indubitably, if \u201csubstantially the entire inventories\u201d of defendants\u2019 three stores were unlawfully seized in violation of the constitutional guaranty against unreasonable searches and seizures, Judge Clark\u2019s 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.\nThe 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 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, 13 L.Ed. 2d 649, 85 S.Ct. 734 (1965). However, we do not reach that constitutional question because Judge Clark had no jurisdiction to make the order from which defendants appealed.\nThe 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 \u201cthe district court has exclusive, original jurisdiction.\u201d 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 nono that court had no jurisdiction of the cases. G.S. 7A-271(a)(5) (1969).\nSeemingly the solicitor and the Attorney General, both of whom signed the motion in which Judge Clark was requested to make a \u201cpreliminary adjudication of obscenity,\u201d 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 \u201cis to provide an adversary determination of the question of whether books, magazines, motion pictures or other materials are obscene \u25a0prior to their seizure.\u201d (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 \u201cshall, without seizing such material, notify the solicitor for the judicial district. ...\u201d Section (h) makes it clear that G.S. 14-190.2 does not prohibit a law enforcement officer \u201cfrom seizing for eviden-tiary 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.\u201d (Emphasis added.)\nThe Attorney General argues in his brief (1) that Judge Clark\u2019s order determining that he had jurisdiction of the cause, that the items seized were obscene, and that the seizure was lawful, \u201cwas a mere interlocutory order\u201d not binding on the trial court and, therefore, not presently appealable even if erroneous; and (2) that a defendant\u2019s remedy at this point is to note his exception and perfect his appeal along with the appeal of the case in event of conviction.\u201d This argument is patently without merit. Judge Clark\u2019s order is void in toto, and defendants\u2019 right to have it so declared may not thus be delayed.\nFinally, the property in suit was seized as an incident to defendants\u2019 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, ante, p. 404; State v. Pardon, 272 N.C. 72, 157 S.E. 2d 698, and cases therein cited.\nThe 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.\nHowever, 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 under G.S. 14-190.1 or G.S. 14-190.2 (Supp. 1971), statutes which have been in effect \u2014 and available for that purpose \u2014 since 1 July 1971.\nReversed and remanded.", "type": "majority", "author": "SHAEP, Justice." } ], "attorneys": [ "Attorney General Morgan, Assistant Attorney General Denson for the State.", "Smith cmd Patterson and Michael K. Curtis for John Knoll and Don Childs, defendant appellants.", "Earle R. Purser for Joe Bryant am,d B. R. Queen, defendant appellants." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JOE BRYANT, JOHN KNOLL, DON CHILDS and B. R. QUEEN\nNo. 162\n(Filed 28 January 1972)\n1. Courts \u00a7 14; Obscenity\u2014 former obscenity statutes \u2014 preliminary determination of obscenity \u2014 jurisdiction of superior court\nWhere defendants were charged with unlawful display of obscene literature for the purpose of sale in violation of [former] G.S. 14-189 and with dissemination of obscenity in violation of [former] G.S. 14-189.1, the superior court did not have jurisdiction to make a preliminary determination of whether materials seized at the time of defendants\u2019 arrest upon those charges were obscene and to order those items it determined to be obscene held pending defendants\u2019 trial in the district court, since both, statutes created misdemeanors for which the district court had exclusive orginial jurisdiction. G.S. 7A-271(a) (5); G.S. 7A-272.\n2. Criminal Law \u00a7 148\u2014 orders appealable \u2014 void preliminary determination of obscenity\nDefendants could appeal from a superior court order that determined that 95% of the materials seized from defendants were obscene and could be retained by the police pending trial of defendants in the district court for disseminating obscenity, where the order was void in toto because the superior court had no jurisdiction of the parties and subject matter. Ch. 405, Session Laws of 1971.\n3. Obscenity\u2014 charges under repealed obscenity statutes\nDefendants cannot be tried on warrants charging unlawful display of obscene literature for the purpose of sale in violation of [former] G.S. 14-189 and disseminating obscenity in violation of [former] G.S. 14-189.1, since those statutes were repealed as of 1 July 1971 and all prosecutions based upon them ended on that date.\nAppeal by defendants under G.S. 7A-30(1) from the decision of the Court of Appeals reported in 12 N.C. App. 530, 183 S.E. 2d 824.\nThe four defendants operate three book stores in the City of Raleigh. Queen and Bryant operate the Adult Book Store at 208 S. Wilmington Street; Knoll operates the J & J Book Store at 123 W. Martin Street; and Childs operates the J & J Book Store at 107 Fayetteville Street.\nOn 18 May 1971 defendants were arrested upon individual warrants issued from the District Court Division of the General Court of Justice in Wake County. Knoll, Childs, and Queen were separately charged with unlawfully exhibiting obscene literature for the purpose of sale in violation of G.S. 14-189 (1969). Bryant, Knoll, and Childs were each charged with unlawfully selling two or more specifically designated publications featuring sexual activities in violation of G.S. 14-189.1 (1969).\nAs an incident to the arrest of defendants upon these warrants, police officers in the City of Raleigh seized approximately 1,450 magazines, films, pictures and other items' of merchandise from the J & J Book Store on Fayetteville Street; 1,755 such items from the Adult Book Store on Wilmington Street; and 790 similar items from the J & J Book Store on W. Martin Street. The inventory shows that a total of approximately 4,000 items were seized from the three stores. Many of the items taken were duplicates; from ten to fourteen copies of some books1 were seized.\nOn 25 May 1971 a detective of the Raleigh Police Department swore out warrants in which he charged that in violation of G.S. 14-189.1 each defendant did, on 18 May 1972, unlawfully \u201coffer for sale obscenity\u201d as indicated by the \u201cinventory hereto attached.\u201d This inventory listed the items which the police had seized from the respective stores on 18 May 1971.\nOn 19 May 1971, the day following defendants\u2019 arrest and the seizure of the material from their stores, the solicitor of the Tenth District and the State\u2019s Attorney General filed with Judge Edward B. Clark, one of the judges presiding in the Superior Court of Wake County, a \u201cmotion for injunction hearing.\u201d The motion stated that \u201can adversary proceeding to determine preliminarily the obscenity of the materials held is necessary in order to afford the defendants due process in the further retention of the seized materials. . . .\u201d Judge Clark granted the motion and conducted a hearing on 25 May 1971, at which both the State and defendants offered evidence, made oral arguments, and submitted written briefs. Thereafter Judge Clark examined all the items seized in the three stores. On 2 June 1971 he entered an order in which he found, inter alia, that the materials taken constituted \u201csubstantially the entire inventories\u201d of the three stores; that the items on the list by which he had placed an X were obscene; that those he had marked Return were not obscene. Less than five percent of the items seized were marked Return.\nJudge Clark held as a matter of law that the Superior Court had jurisdiction of the parties and the subject matter; that the seizure of the materials from the stores \u201cwas proper, lawful and not unconstitutional\u201d; that all items marked X were obscene and that those marked Return were not. Pending the trial of defendants upon the warrants charging them with the dissemination of obscenity, or further orders \u201cby a Court having jurisdiction over the parties and the subject matter,\u201d he ordered the Raleigh Police Department to hold as evidence the items marked X. The items marked Return he ordered delivered to the operator of the store from which they were taken.\nDefendants excepted to the findings of fact and conclusions of law and appealed to the Court of Appeals. In an opinion filed 20 October 1971 that court dismissed the appeal upon the grounds that Judge Clark\u2019s Order Eetaining Evidence was interlocutory and did not impair any substantial right of appellants; that the seizure of the defendants\u2019 merchandise was lawful and they had been afforded their constitutional rights by the adversary hearing which Judge Clark conducted.\nDefendants appealed to this Court on the ground that a substantial constitutional question had been decided adversely against them. At the same time they petitioned for certiorari under G.S. 7A-27(d) (1) (1969). The Attorney General moved to dismiss the appeal and resisted the petition for certiorari. On 9 December 1971 we denied the motion to dismiss and allowed certiorari.\nAttorney General Morgan, Assistant Attorney General Denson for the State.\nSmith cmd Patterson and Michael K. Curtis for John Knoll and Don Childs, defendant appellants.\nEarle R. Purser for Joe Bryant am,d B. R. Queen, defendant appellants." }, "file_name": "0407-01", "first_page_order": 427, "last_page_order": 433 }