The matter is before the court on defendants' motion to settle the form of the judgment and for an order enjoining plaintiff, Prosecutor of Monmouth County, from proceeding against defendants on any indictment for a violation of N.J.S.A. 2A:115-2 and for an order directing plaintiff to deliver to defendants the motion picture "Man and Wife" previously seized by plaintiff as evidence of an alleged crime.
This action was brought under N.J.S.A. 2A:115-3.5 to enjoin the showing of the motion picture "Man and Wife" and for an order compelling defendants to surrender to plaintiff any copy of the film in the possession of defendants for destruction in accordance with N.J.S.A. 2A:115-3.7. Defendants filed a counterclaim for a declaration that the
motion picture was not obscene. After the final hearing the court filed an opinion [111 N.J. Super. 489], holding that plaintiff had failed to sustain the burden of proving the film obscene whereas defendants had sustained their burden of proving the film was not obscene. The opinion concluded, "There will be a judgment declaring that 'Man and Wife' is not obscene."
The statement of events leading to the filing of the complaint is set forth in some detail in the earlier opinion. Defendant Wilson is the owner and operator of a theatre in Keyport. Defendant Large is employed by Wilson as a motion picture projectionist. On June 12, 1970 a warrant for the arrest of Wilson was obtained charging a violation of N.J.S.A. 2A:115-2 based upon Wilson's exposing to view an "indecent motion film entitled 'Man and Wife'." At the time of the arrest the copy of the motion picture being shown was seized. On June 23, 1970 the Monmouth County Grand Jury handed up an indictment charging the defendants with a violation of N.J.S.A. 2A:115-2. The complaint in this action was filed June 24, 1970.
The prosecutor has threatened to move the indictment. The question is whether this Court should restrain the prosecutor from proceeding on the indictment and order the prosecutor to return the seized motion picture to the defendants.
Ordinarily equity will not enjoin criminal proceedings. Eleuteri v. Richman , 47 N.J. Super. 1, 26 (App. Div. 1957), aff'd 26 N.J. 506 (1958), cert. den. 358 U.S. 843, 79 S. Ct. 52, 3 L. Ed. 2 d 77 (1958); Moresh v. O'Regan , 122 N.J. Eq. 388 (E. & A. 1937); Dell Publishing Co. v. Beggans , 110 N.J. Eq. 72 (Ch. 1932); 4 Pomeroy's Equity Jurisprudence (5th ed. 1941), § 1361b, p. 978. An exception to the rule is made where property rights are involved and there is a serious claim that the prosecution is not authorized by law. S. & R. Amusement Corp. v. Quinn , 136 N.J. Eq. 420, 423 (Ch. 1944). Arbitrary acts of officials acting without due process of law will be enjoined.
Higgins v. Krogman , 140 N.J. Eq. 518, 520-521 (Ch. 1947), aff'd 142 N.J. Eq. 691, 693 (E. & A. 1948). A prosecutor will be enjoined from violating a person's property rights acting under color of authority. Bantam Books, Inc. v. Melko , 25 N.J. Super. 292, 298 (Ch. Div. 1953), modified 14 N.J. 524 (1954).
The application now made in this matter does not fall strictly within any of the exceptions referred to.
N.J.S.A. 2A:115-3.5 was adopted as a supplement to Title 2A by L. 1962, c. 166. Section 8 stated that its provisions "are supplemental to other remedies set forth in Title 2A of the New Jersey Statutes." N.J.S.A. 2A:115-3.10. The Act provides an expeditious civil remedy for the determination of whether "any book, magazine, pamphlet, comic book, story paper, writing, paper, picture drawing, photograph, figure, image or any written or printed matter" being sold or about to be sold is obscene. On a finding of obscenity the sale or distribution of the matter will be enjoined and the matter will be destroyed. N.J.S.A. 2A:115-3.7. Plaintiff has the burden of proving obscenity by a preponderance of the evidence as opposed to the burden of beyond a reasonable doubt in the case of an indictment under N.J.S.A. 2A:115-2.
N.J.S.A. 2A:115-3.5 does not refer to the right of a defendant to file a counterclaim. Since the action is a civil action, a ...