Petitioner did not take exception to any of the judge’s findings of fact or his failure to find additional facts. The validity of the findings by Judge Exum are not, therefore, before this Court.
The only assignments of error brought forward on appeal are Nos. 1 and 10. Both are, in most general terms, directed at the judge’s conclusion that, since he had decided the film has serious literary and artistic value, it was unnecessary for him to decide whether the sexual scenes in the film are patently offensive or appeal to the prurient interest.
The applicable parts of the statute are as follows:
“ (b) For purposes of this Article any material is obscene if :
(1) The material depicts or describes in a patently offensive way sexual conduct specifically defined by subsection (c) of this section; and
(2) The average person applying contemporary statewide community standards relating to the depiction or representation of sexual matters would find that the material taken as a whole appeals to the prurient interest in sex; and
(3) The material lacks serious literary, artistic, political, educational or scientific value; and
(4) The material as used is not protected or privileged under the Constitution of the United States or the Constitution of North Carolina.
*743(c) Sexual conduct shall be defined as:
(1) Patently offensive representations or descriptions of actual sexual intercourse, normal or perverted, anal or oral;
(2) Patently offensive representations or descriptions of excretion in the context of sexual activity or a lewd-exhibition of uncovered genitals, in the context of masturbation or other sexual activity.” G.S. 14-190.1 (b) (c).
This Court is of the opinion that a court could appraise more fairly any conceivable “serious literary and artistic value” of the film by first deciding whether: (1) the wide screen representations and descriptions of actual sexual intercourse, normal and perverted, anal and oral, the exhibition of uncovered genitals in the context of masturbation and other similar sexual activities amounted to a depiction of sexual conduct in a patently offensive way, and (2) whether the average person applying contemporary North Carolina standards relating to the depiction or representation of sexual matters in a public theatre would find that the material taken as a whole appeals to the prurient interest in sex.
In view, however, of the present form of the statute which, in addition to requiring positive findings on the questions of offensive display of sexual conduct patently offensive to the average person, requires an additional negative finding that the material lacks serious literary, artistic, political, educational or scientific value, we cannot say that the judge erred as a matter of law. Absent a finding that the material lacks the described values the material cannot be said to be “obscene” within the meaning of our present statute.
Consideration of the only assignments of error brought forward for review requires the conclusion that the judgment must be affirmed.
Affirmed.
Judge Martin concurs. Chief Judge Brock dissents.