
    XLNT CORPORATION, Respondent, v. The MUNICIPAL COURT OF KANSAS CITY, Missouri, et al., Appellants.
    No. 59491.
    Supreme Court of Missouri, En Banc.
    Dec. 30, 1976.
    Rehearing Denied Feb. 14,1977.
    Dan G. Jackson III, Asst. City Atty., Kansas City, for appellants.
    Donald Y. Pierce, Jr., Kansas City, for respondent.
   DONNELLY, Justice.

On August 21, 1975, and September 4, 1975, an agent of respondent was summoned to appear in the Municipal Court of Kansas City, Missouri, to answer a charge that respondent had exhibited obscene movies. The case was continued from time to time and on September 23,1975, counsel for respondent filed his Petition for Writ of Prohibition with the Circuit Court of Missouri, Sixteenth Judicial Circuit. On September 23, 1975, the Honorable J. Donald Murphy, Judge of the Circuit Court, issued a Preliminary Writ of Prohibition.

The parties then filed pleadings and stipulations as to facts and, on January 26, 1976, Judge Murphy decided the issues in respondent’s favor and entered the following conclusions of law:

“1. That by reason of the specific prohibition contained in Kansas City, Missouri, Code Section 22.1 (1968) * * *, the Municipal Court of Kansas City, Missouri, cannot provide a jury in the trial of alleged violations of said city’s obscenity ordinances.
“2. That under the decisions of United States Supreme Court and the Supreme Court of the State of Missouri in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) and McNary v. Carlton, et al., 527 S.W.2d 343 (Mo. banc September 8, 1975), respectively, the courts of this state, including those of its municipal subdivisions, cannot proceed in the prosecution of an alleged violation of an obscenity law or ordinance without first impaneling a jury to determine the issues of obscenity pursuant to the guidelines set forth in Miller, supra. Accordingly, the exercise of jurisdiction in such cases by the Municipal Court of Kansas City, Missouri, without the ability to provide a jury as the trier of fact as to the issues of obscenity contained in the charges against the plaintiff herein, would be a clear violation of the mandates set forth in the decisions of the United States Supreme Court and the Missouri Supreme Court en Banc aforesaid, * *

A peremptory writ of prohibition was entered February 6, 1976.

Appellants appealed to this Court. Section 530.080, RSMo 1969; Rule 97.06.

The parties agree that the Municipal Court was barred by ordinance from providing respondent with a trial by jury.

In Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), the United States Supreme Court reformulated the constitutional tests for determining obscenity under the First and Fourteenth Amendments to the Constitution of the United States. In Hamling v. United States, 418 U.S. 87,94 S.Ct. 2887, 41 L.Ed.2d 590 (1974), the Court explained the Miller holding. In McNary v. Carlton, 527 S.W.2d 343 (Mo. banc 1975), this Court construed Miller, as explained in Hamling, to mean that, in determining obscenity under the First and Fourteenth Amendments, a jury determination of contemporary community standards is constitutionally required.

In City of Kansas City, Missouri v. Darby, 544 S.W.2d 529 (Mo. banc 1976), (decided December 13, 1976), this Court held that a constitutionally acceptable determination of obscenity cannot be made in the Municipal Court in Kansas City because no jury is available, and that this constitutional deficiency cannot be cured by the process of allowing an appeal to the circuit court and making a jury available there.

Accordingly, we must conclude that Judge Murphy did not err in prohibiting the Municipal Court of Kansas City from proceeding with respondent’s trial. Prohibition will lie where a right to a jury trial is improperly denied. Ex parte Peterson, 253 U.S. 300, 305, 306, 40 S.Ct. 543, 64 L.Ed. 919 (1920).

The judgment is affirmed.

All concur.  