People v. Zerilli , 14 Mich. App. 513 ( 1968 )

14 Mich. App. 513 (1968) 165 N.W.2d 619

PEOPLE
v.
ZERILLI

Docket No. 3,728.

Michigan Court of Appeals.

Decided November 29, 1968.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Richard J. Padzieski, Assistant Prosecuting Attorney, for the people.

Goodman, Eden, Robb, Millender, Goodman & Bedrosian, for defendant.

PER CURIAM:

Plaintiff appeals his jury trial conviction of possession with intent to sell and sale of obscene publications.^[1]

The publications that were purchased by police officers from the defendant at his Tip-Top Book Store were typical so-called "girlie" and "nudist" magazines.

We are satisfied that the seized publications are of the same type held not to be "obscene in the constitutional sense"^[2] in Redrup v. New York (1967), 386 U.S. 767 (87 S. Ct. 1414, 18 L. Ed. 2d 515), and in the cases collected in footnote 3 of Ginsberg v. New York (1968), 390 U.S. 629 (88 S. Ct. 1274, 20 L. Ed. 2d 195).

No claim has been made that the statute in question reflects "a specific and limited state concern for juveniles," nor is there "any suggestion of an assault upon individual privacy by publication in a manner so obtrusive as to make it impossible for an unwilling individual to avoid exposure to it," nor is there "evidence of the sort of `pandering' which the Court found significant in Ginzburg v. United States (1966), 383 U.S. 463 (86 S. Ct. 942, 16 L. Ed. 2d 31)." See Redrup v. New York, supra, p 769.

Reversed. The defendant is discharged.

T.G. KAVANAGH, P.J., and LEVIN and NEWBLATT, JJ., concurred.

NOTES

[1] CL 1948, § 750.343a as amended by PA 1964, No 143 (Stat Ann 1968 Cum Supp § 28.575[1]).

[2] Memoirs v. Massachusetts (1966), 383 U.S. 413, 418 (86 S. Ct. 975, 16 L. Ed. 2d 1).