
    Chester McKINNEY v. STATE.
    6 Div. 671.
    Court of Criminal Appeals of Alabama.
    Oct. 29, 1974.
    Rehearing Denied Nov. 26, 1974.
    Ferris S. Ritchey, Jr., Birmingham, Robert Eugene Smith, Atlanta, Ga., for appellant.
    William J. Baxley, Atty. Gen., and George M. Van Tassel, Jr., Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted in the Circuit Court of Jefferson County on October 24, 1973, (Judge Jasper, Presiding) for selling a magazine, “Nude Figure”, that had been judicially declared to be obscene in an equity proceeding before Judge Joseph M. Hocklander in the Mobile Circuit Court on February 26, 1970.

The question of obscenity was not submitted to the jury under express instructions by Judge Jasper. The sole question submitted to the jury was the guilt vel non of appellant in selling the magazine.

The jury returned a verdict of guilty as charged in the District Attorney’s complaint and assessed a fine of $500.00. The trial judge added six months hard labor for Jefferson County as additional punishment.

The precise issues raised on this appeal were decided adversely to appellant by the Supreme Court of Alabama on May 9, 1974, in Ex parte McKinney, 292 Ala. 484, 296 So.2d 228.

This case should be affirmed on authority of the above case.

Affirmed.

CATES, P. J., and ALMON and TYSON, JJ., concur.

DeCARLO, J., recuses himself.  