State v. All Star News Agency

PER CURIAM: This appeal involves a civil proceeding wherein the State seeks forfeiture and destruction, under §§ 542.281 and 542.301, RSMo 1978, of allegedly obscene materials. A Notice of Adversary Hearing was issued on June 6, 1977. On June 8, 1977, an adversary hearing on the probable obscenity of the items covered by the notice began. On June 16, 1977, the trial court found probable cause and a warrant issued. On July 8, 1977, a jury began its deliberations. On August 2, the jury returned verdicts finding most of the items obscene. On September 23, 1977, the trial court entered its declaration of forfeiture and order of destruction. An appeal was taken to the Eastern District of the Missouri Court of Appeals, where an opinion was filed and adopted on January 23, 1979. On May 17, 1979, the cause was transferred to this Court by order of this Court. On September 17, 1979, it was argued and submitted. On April 10, 1979, an opinion was filed and adopted in this Court in State v. All Star News Agency, Inc., 580 S.W.2d 245 (Mo. banc 1979), which appeals involved civil proceedings in September, 1977. The State concedes that under the facts in this case, the opinion in All Star, supra, if still viable, requires reversal; but contends the opinion in All Star, supra, if flawed. We do not agree. The judgment is reversed and the cause remanded for proceedings not inconsistent with the opinion in State v. All Star News Agency, Inc., 580 S.W.2d 245 (Mo. banc 1979). BARDGETT, C. J., and DONNELLY, SEILER, WELLIVER, MORGAN and HIGGINS, JJ., concur. RENDLEN, J., dissents.