{ "id": 8561054, "name": "STATE OF NORTH CAROLINA v. DILLARD P. HART AND DREWRY HALL", "name_abbreviation": "State v. Hart", "decision_date": "1975-04-14", "docket_number": "No. 49", "first_page": "76", "last_page": "83", "citations": [ { "type": "official", "cite": "287 N.C. 76" } ], "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": "207 S.E. 2d 766", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": -1 }, { "cite": "22 N.C. App. 738", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11313566 ], "year": 1974, "opinion_index": -1, "case_paths": [ "/nc-app/22/0738-01" ] }, { "cite": "383 U.S. 413", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6171859 ], "opinion_index": -1, "case_paths": [ "/us/383/0413-01" ] }, { "cite": "413 U.S. 15", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11338628 ], "weight": 3, "opinion_index": -1, "case_paths": [ "/us/413/0015-01" ] }, { "cite": "180 S.E. 2d 135", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "278 N.C. 513", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560822 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/278/0513-01" ] }, { "cite": "61 Wis. 2d 354", "category": "reporters:state", "reporter": "Wis. 2d", "case_ids": [ 8669446 ], "weight": 2, "year": 1973, "opinion_index": 0, "case_paths": [ "/wis-2d/61/0354-01" ] }, { "cite": "94 S.Ct. 3233", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1974, "opinion_index": 0 }, { "cite": "41 L.Ed. 2d 1177", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1974, "opinion_index": 0 }, { "cite": "418 U.S. 947", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6187774 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/us/418/0947-01" ] }, { "cite": "487 F. 2d 331", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 217343 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/f2d/487/0331-01" ] }, { "cite": "201 S.E. 2d 211", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "20 N.C. App. 223", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551257 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc-app/20/0223-01" ] }, { "cite": "93 S.Ct. 3065", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1973, "opinion_index": 0 }, { "cite": "37 L.Ed. 2d 1036", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1973, "opinion_index": 0 }, { "cite": "413 U.S. 913", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11346602 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/us/413/0913-01" ] }, { "cite": "192 S.E. 2d 693", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "16 N.C. App. 456", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552369 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc-app/16/0456-01" ] }, { "cite": "95 S.Ct. 238", "category": "reporters:federal", "reporter": "S. Ct.", "weight": 2, "year": 1974, "opinion_index": 0 }, { "cite": "42 L.Ed. 2d 188", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 2, "year": 1974, "opinion_index": 0 }, { "cite": "203 S.E. 2d 27", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1974, "opinion_index": 0 }, { "cite": "285 N.C. 27", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561642 ], "weight": 2, "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/285/0027-01" ] }, { "cite": "484 F. 2d 1149", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 238301 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/f2d/484/1149-01" ] }, { "cite": "354 U.S. 476", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6160660 ], "weight": 3, "year": 1957, "opinion_index": 0, "case_paths": [ "/us/354/0476-01" ] }, { "cite": "173 S.E. 2d 765", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "276 N.C. 535", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562463 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/276/0535-01" ] }, { "cite": "186 S.E. 473", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1970, "opinion_index": 0 }, { "cite": "210 N.C. 406", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626664 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/210/0406-01" ] }, { "cite": "185 S.E. 435", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1970, "opinion_index": 0 }, { "cite": "210 N.C. 55", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622838 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/210/0055-01" ] }, { "cite": "20 S.E. 2d 286", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "221 N.C. 301", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627582 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/221/0301-01" ] }, { "cite": "158 S.E. 2d 596", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "272 N.C. 312", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572856 ], "opinion_index": 0, "case_paths": [ "/nc/272/0312-01" ] }, { "cite": "86 S.E. 960", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1915, "opinion_index": 0 }, { "cite": "170 N.C. 725", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8662340 ], "year": 1915, "opinion_index": 0, "case_paths": [ "/nc/170/0725-01" ] }, { "cite": "90 S.E. 439", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1916, "opinion_index": 0 }, { "cite": "172 N.C. 915", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11256259 ], "year": 1916, "opinion_index": 0, "case_paths": [ "/nc/172/0915-01" ] }, { "cite": "49 S.E. 2d 797", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1948, "opinion_index": 0 }, { "cite": "229 N.C. 360", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12166064 ], "year": 1948, "opinion_index": 0, "case_paths": [ "/nc/229/0360-01" ] }, { "cite": "149 S.E. 2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "267 N.C. 665", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560451 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/267/0665-01" ] }, { "cite": "70 S.E. 2d 575", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1952, "opinion_index": 0 }, { "cite": "235 N.C. 484", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625551 ], "year": 1952, "opinion_index": 0, "case_paths": [ "/nc/235/0484-01" ] }, { "cite": "157 S.E. 2d 698", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "272 N.C. 72", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570716 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/272/0072-01" ] }, { "cite": "187 S.E. 2d 706", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "281 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573594 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/281/0001-01" ] }, { "cite": "94 S.Ct. 3195", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1974, "opinion_index": 0 }, { "cite": "41 L.Ed. 2d 1153", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1974, "opinion_index": 0 }, { "cite": "418 U.S. 905", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6178212, 6178779, 6178493, 6178640, 6178043, 6177916, 6177789 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/us/418/0905-04", "/us/418/0905-07", "/us/418/0905-05", "/us/418/0905-06", "/us/418/0905-03", "/us/418/0905-02", "/us/418/0905-01" ] }, { "cite": "200 S.E. 2d 186", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "284 N.C. 165", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560660 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/284/0165-01" ] }, { "cite": "202 S.E. 2d 153", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "284 N.C. 562", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563267 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/284/0562-01" ] }, { "cite": "383 U.S. 413", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6171859 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/383/0413-01" ] }, { "cite": "413 U.S. 15", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11338628 ], "weight": 4, "opinion_index": 0, "case_paths": [ "/us/413/0015-01" ] } ], "analysis": { "cardinality": 762, "char_count": 17842, "ocr_confidence": 0.579, "pagerank": { "raw": 9.624567716571594e-07, "percentile": 0.9814261371995047 }, "sha256": "549e196329c52d2786365e7d533f8c0cfbd028e95d5c1877e272518b1196b697", "simhash": "1:2d0cb95a6fad87e9", "word_count": 2928 }, "last_updated": "2023-07-14T16:20:34.133436+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. DILLARD P. HART AND DREWRY HALL" ], "opinions": [ { "text": "HUSKINS, Justice.\nPrior to the enactment of Chapter 1434 of the 1973 Session Laws, G.S. 14-190.2(h) (1973 Cum. Supp.) provided in pertinent part:\n\u201cNothing 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. ...\u201d\nChapter 1434 of the 1973 Session Laws, effective July 1, 1974, rewrote G.S. 14-190.2(h) to read as follows:\n\u201cNo 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.\u201d\nIt 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, 1974 \u2014 after 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.\nWe 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, 41 L.Ed. 2d 1153, 94 S.Ct. 3195 (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).\nChapter 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.\nIn the interpretation of statutes the legislative will is the controlling factor. \u201cIndeed, it is frequently stated in effect that the intention of the legislature constitutes the law.\u201d 73 Am. Jur. 2d, Statutes \u00a7 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).\n\u201cOf 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]. \u2018While a criminal statute\u2019 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.\u2019 7 Strong\u2019s N. C. Index 2d, Statutes \u00a7 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].\u201d State v. Spencer, 276 N.C. 535, 173 S.E. 2d 765 (1970).\nWhen 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 \u201cobscenity\u201d fashioned in Roth v. United States, 354 U.S. 476, 1 L.Ed. 2d 1498, 77 S.Ct. 1304 (1957), and Memoirs v. Massachusetts, 383 U.S. 413, 16 L.Ed. 2d 1, 86 S.Ct. 975 (1966), to conform to the new definition of obscenity contained in Miller v. California, 413 U.S. 15, 37 L.Ed. 2d 419, 93 S.Ct. 2607 (1973), (2) defining \u201csexual conduct\u201d 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.\nThe foregoing changes did not repeal the former anti-obscenity statutes but only amended them effective July 1, 1974. \u201cAs 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 becomes effective, but as to such crimes the original statute remains in force.\u201d 22 C.J.S., Criminal Law \u00a7 26 at 87 (1961).\nIt appears that the definition of \u201cobscenity\u201d 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.\nFurther, 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 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.\nDefendants next contend that insertion of a definition of \u201csexual conduct\u201d 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 ___ U.S. _, 42 L.Ed. 2d 188, 95 S.Ct. 238 (1974).\nState v. Bryant and Floyd, 16 N.C. App. 456, 192 S.E. 2d 693 (1972), remanded 413 U.S. 913, 37 L.Ed. 2d 1036, 93 S.Ct. 3065 (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, swpra. 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 \u201cdual standards test\u201d 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 __U.S_, 42 L.Ed. 2d 188, 95 S.Ct. 238 (1974).\nThe 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. \u201cThis 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.\u201d United States v. Millican, 487 F. 2d 331 (5th Cir. 1973), cert. denied, 418 U.S. 947, 41 L.Ed. 2d 1177, 94 S.Ct. 3233 (1974) ; accord, State ex rel. Chobot v. Circuit Court for Milwaukee, 61 Wis. 2d 354, 212 N.W. 2d 690 (1973).\nDecision here is controlled by State v. Bryant and Floyd, supra. Defendants\u2019 voluntary pleas of guilty remove the necessity of proof by the State and present for review \u201conly whether the indictment [warrant] charges an offense punishable under the Constitution and law.\u201d 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.\nFor 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\u2019 voluntary pleas of guilty may be reinstated.\nReversed and remanded.", "type": "majority", "author": "HUSKINS, Justice." } ], "attorneys": [ "James H. Carson, Jr., Attorney General; Edwin M. Speas, Jr., Assistant Attorney General; Richard F. Kane, Associate Attorney, for the State of North Carolina, appellant.", "Harriss, Ruis & Mulligan by Ronald H. Ruis, Attorney for defendant appellees." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DILLARD P. HART AND DREWRY HALL\nNo. 49\n(Filed 14 April 1975)\n1. Statutes \u00a7\u00a7 7, 10 \u2014 amendment of criminal statute pending appeal \u2014 effect\nWhere an amendment of a criminal statute does not reduce the punishment or otherwise remove any burden imposed on defendants by prior law, appellate courts will not give effect to such change 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.\n2. Statutes \u00a7 5\u2014 construction \u2014 legislative intent\nIn the interpretation of statutes the legislative will is the controlling factor.\n3. Statutes \u00a7 5 \u2014 construction \u2014 object of statute\nA construction of a statute 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.\n4. Obscenity; Statutes \u00a7 10 \u2014 dissemination of obscenity \u2014 amendment changing definition of obscenity \u2014 conviction under old statute\nSince the definition of \u201cobscenity\u201d in the former statute under which defendants were charged with dissemination of obscenity placed a heavier burden on the State to convict than the definition prescribed in the amendment to G.S. 14-190.1 et seq. by Chapter 1434 of the 1973 Session Laws, the amendment affords defendants no grounds on which to contend that their convictions under the former statutes are now illegal and must abate.\n5. Obscenity; Statutes \u00a7 10 \u2014 dissemination of obscenity \u2014 adversary determination of obscenity \u2014 nonretroactivity\nThe legislature intended that Chapter 1434 of the 1973 Session Laws, including the amendment to G.S. 14-190.2 (h) prohibiting an arrest or indictment for a violation of G.S. 14-190.1 et seq. until the material involved has been declared obscene in an adversary proceeding and the material thereafter disseminated, should become effective 1 July 1974 and should be applied prospectively only; therefore, the amendment, which became effective during the pendency of defendants\u2019 appeal, did not inure to their benefit and abate the charges against them.\n6. Obscenity; Constitutional Law \u00a7 35 \u2014 dissemination of obscenity \u2014 change in definition of \u201csexual conduct\u201d \u2014 dual tests \u2014 ex post facto laws\nThe insertion in G.S. 14-190.1 of a definition of \u201csexual conduct\u201d conforming to the holding of Miller v. California, 413 U.S. 15, by the enactment of Chapter 1434 of the 1973 Session Laws, after the date of defendants\u2019 arrest for dissemination of obscenity, did not deny them due process or amount to an ex post facto application of the law when that definition is applied to them since a determination of whether pre-Miller material is obscene is made by testing the material under both Miller and the old test set forth in Memoirs v. Massachusetts, 383 U.S. 413.\nOn certiorari to the Court of Appeals to review its decision, 22 N.C. App. 738, 207 S.E. 2d 766 (1974), arresting judgments pronounced by Clark, J., 21 January 1974 Session, Alamance Superior Court.\nDefendants were charged in separate warrants with the unlawful and willful dissemination of obscene materials in violation of G.S. 14-190.1 (a). Defendant Hall was arrested on 18 December 1972, and defendant Hart on 1 February 1973.\nDefendants were found guilty in district court and appealed to the Superior Court of Alamance County for trial de novo.\nOn 28 January 1974 both defendants moved for dismissal on the. ground that G.S. 14-190.1 (a) had not been construed by the appellate courts of this State in accordance with the law laid down in Miller v. California, 413 U.S. 15, 37 L.Ed. 2d 419, 93 S.Cti 2607 (decided 21 June 1973). Both motions were denied, and each defendant thereupon pleaded guilty \u201cassuming that the statute is valid and constitutional.\u201d After determining by a pre-sentence inquiry and adjudication that defendants had freely, understandingly and voluntarily pled guilty, Judge Clark sentenced each defendant to six months in prison, suspended for two years upon the following conditions, \u201cto which the defendant gave assent: pay a fine of $500.00 and the costs. That he not violate the statutes of this state relating to the sale or distributing under G.S. 14-190.1. He is not to engage or become employed in business of distributing obscene materials.\u201d\nEach defendant appealed to the Court of Appeals, and that court treated the appeal as a petition for certiorari and granted the writ.\nOn 13 April 1974 the General Assembly ratified Chapter 1434, 1973 Session Laws, revising and rewriting the anti-obscenity statutes of North Carolina, effective July 1, 197U. Section 5 of Chapter 1434 provides that no person, firm or corporation shall be arrested or indicted for any violation of G.S. 14-190.1 et seq., \u201cuntil 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 . . . and until such person, firm or corporation continues, subsequent to such determination, to engage in the conduct prohibited .... \u201d\nThe Court of Appeals, concluding that Chapter 1434 of the 1973 Session Laws contained no savings clause or other provision manifesting legislative intent that it should be applied prospectively only, held that defendants were entitled to the benefit of the adversary hearing provisions above quoted. Since defendants had not received such a hearing before these warrants were issued, that court concluded that the criminal actions against these defendants had abated. We allowed the State\u2019s petition for certiorari to review that decision.\nJames H. Carson, Jr., Attorney General; Edwin M. Speas, Jr., Assistant Attorney General; Richard F. Kane, Associate Attorney, for the State of North Carolina, appellant.\nHarriss, Ruis & Mulligan by Ronald H. Ruis, Attorney for defendant appellees." }, "file_name": "0076-01", "first_page_order": 104, "last_page_order": 111 }