CRIMINAL LAW — Offering to Sell Obscene Materials — Where Obscenity Statute Declared Unconstitutional. — Where a State obscenity statute was declared unconstitutional due to its failure to be sufficiently specific in defining the sexual or obscene acts which would constitute a violation of the statute, the State could not prosecute defendant for offering to sell obscene materials.
GARRARD, J.
Defendant was convicted under four counts of the sale of obscene materials in violation of IC 1971, 35-30-10-1, Ind. Ann. Stat. § 10-2803 (Burns 1956 Repl.).
Following the grant of certiorari in Stroud v. Indiana (1973), 413 U.S. 911, 93 S.Ct. 3038, 37 L.Ed.2d 1025, our Supreme Court declared this statute unconstitutional. Mohney v. State (1973), 261 Ind. 56, 300 N.E.2d 66; Stroud v. State (1973), 261 Ind. 58, 300 N.E.2d 100.
The state, however, argues that those cases involved the sale of obscene materials, while the case before us should be considered as a conviction of offering for sale. This assertion is simply not supported by the record. However, even if it were, it would be of no consequence.
The factor in Miller v. California (1973), 413 U.S. 15, 97 S.Ct. 2607, 37 L.Ed.2d 419, expressly adopted by our Supreme Court in Mohney and Stroud determining the unconstitutionality of the act in question is its failure to be sufficiently specific in defining the sexual or obscene acts which would constitute a violation of the statute. The defect is of no less significance in offering to sell than in an actual sale.
Judgment reversed with instructions to discharge the defendant.
Hoffman, C.J. and Staton, J., concur.
NOTE. — Reported at 318 N.E.2d 372.