dissenting.
The United States Supreme Court has directed us to give further consideration to this case in the light of Miller v. California and its companion cases. Miller announced new guidelines for determining whether material may be considered obscene and therefore beyond First Amendment protection. In certain respects these new guidelines appear to be less rigorous than those which they replaced and to that extent Miller has eased the prosecution’s burden. The majority opinion in Miller, however, went further than merely announcing new guidelines. Insofar as pertinent to the case now before us, the importance of Miller is the requirement which it makes that a criminal statute dealing with obscenity to be constitutionally valid must be specific. Chief Justice Burger’s opinion, while regarding as categorically settled that obscene material is unprotected by the First Amendment, expressly acknowledged “the inherent dangers of undertaking to regulate any form of expression” and recognized that “State statutes designed to regulate obscene materials must be carefully limited.” The opinion then contains the following:
“As a result, we now confine the permissible scope of such regulation to works which depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed.” (Emphasis added.)
*229Our statute, G.S. 14-190.1, contains no such specific definitions nor has it yet been authoritatively construed so as to supply them. The statute became effective on 1 July 1971. Defendants in the present case are charged with having violated it by acts which allegedly occurred on 10 September 1971. To now construe the statute so as to supply the specific definitions which Miller requires and which the statute obviously lacks, requires the exercise of judicial legislating to a degree which in my opinion is beyond the power of the courts to perform. The Legislature alone has the power to amend our statute so as to give it the specificity which Miller requires for its validity. Even when adopted such amendments may not be applied ex post facto to defendants in the present case. I vote to vacate the judgments.