concurring in part and dissenting in part.
I concur with the majority in rejecting assignments of error 1-3 and 5-10. However, in my opinion, defendants’ assignment of error 4 should be sustained.
As the majority indicates, the question presented by this assignment is: What is the allowable unit of prosecution under G.S. *24§ 14-190.1? All sides agree that it lies within the province of the General Assembly to fix the unit of prosecution. Furthermore, the majority seems impliedly to endorse, in principle, the rule of statutory construction laid down in Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955) — that where a legislature fails clearly and unambiguously to establish the unit of prosecution, such ambiguity should be resolved in favor of lenity toward the defendant. But unlike the majority I discern in G.S. § 14-190.1 no clear expression of legislative intent to punish separately and cumulatively for each and every obscene item disseminated, regardless of the number of transactions involved.
In Bell the issue was whether the simultaneous interstate transportation of two women in violation of the Mann Act constituted two offenses or only one. The relevant provisions of the Act were: “Whoever knowingly transports in interstate or foreign commerce . . . any woman or girl for the purpose of prostitution or debauchery . . . shall be fined not more than $5,000 or imprisoned not more than five years, or both.” (Emphasis added.) The Supreme Court refused to construe “any” as a mandate to punish separately and cumulatively for each and every woman unlawfully transported. The Supreme Court stated:
When Congress has the will it has no difficulty in expressing it — when it has the will, that is, of defining what it desires to make the unit of prosecution and, more particularly, to make each stick in a faggot a single criminal unit. When Congress leaves to the Judiciary the task of imputing to Congress an undeclared will, the ambiguity should be resolved in favor of lenity. And this not out of any sentimental consideration, or for want of sympathy with the purpose of Congress in proscribing evil or antisocial conduct. It may fairly be said to be a presupposition of our law to resolve doubts in the enforcement of a penal code against the imposition of a harsher punishment. This in no wise implies that language used in criminal statutes should not be read with the saving grace of common sense with which other enactments, not cast in technical language, are to be read. Nor does it assume that offenders against the law carefully read the penal code before they embark on crime. It merely means that if Congress does not fix the punishment for a federal offense clearly and without ambiguity, doubt will be resolved against turning a *25single transaction into multiple offenses. . . . [Emphasis added.]
The resemblance between Bell and the present case is obvious. As the Mann Act prohibited the unlawful interstate transportation of "any woman or girl,” so our G.S. § 14-190.1 proscribes the dissemination of “any obscene writing, picture, record or other representation or embodiment of the obscene.” I cannot espy in the word “any” an unambiguous mandate to punish separately for each “stick” in the transactional “faggot” any more than the Supreme Court could. Accordingly, applying the Bell rule of lenity, I construe “any” in the context of our statute to signify the number of transactions in which a defendant sells at least one obscene item.
The State contends that since each indictment charges with disseminating a different item, the determination whether each item was obscene must be made independently, thus justifying separate, and cumulative, punishments. However, by this reasoning the State could prosecute separately and cumulatively each and every obscene photograph in a large magazine on the ground that subsection (a)(1) prohibits the dissemination of “any obscene . . . picture.” But I do not think the General Assembly intended to appoint the staple gun to be the arbiter of the unit of prosecution. I fully recognize that under my conception of the statute a retailer who sells a single obscene item may be subject to the same punishment as a distributor who delivers 100 obscene items to a store. However, until the General Assembly unambiguously declares a contrary intent, we should assume that a single sale in contravention of G.S. § 14-190.1 does not spawn multiple indictments.
In the present case, since the evidence showed that Schoch participated in two unlawful transactions, and Smith in only one, the trial court should have dismissed three of the indictments against Schoch and two of the indictments against Smith.