Opinion
35238.
DECIDED OCTOBER 19, 1954.
Exhibiting, transporting obscene literature. Before Judge Manning. Cobb Superior Court. April 10, 1954.
Ben F. Smith, for plaintiff in error.
Luther C. Hames, Jr., Solicitor-General, contra.
The court did not err in denying the amended motion for a new trial as to count two, but did commit reversible error in denying the motion as to count 1.
DECIDED OCTOBER 19, 1954.
William Chapman was convicted in Cobb County on an indictment containing two counts under Code §§ 26-6305 and 26-6301 respectively, felonies. Count one, omitting the formal parts, reads: ". . . for that the said accused . . . on February 4th, 1954 . . . did unlawfully then and there feloniously, have and possess and knowingly exhibit to another, indecent, obscene books, pamphlets and printed papers devoted to pictures and stories of deeds of lust, and draw, print, process and prepare the same for the manufacture, with intent to sell and expose and circulate the same, . . ."
Count two reads: ". . . for that the said accused . . . on February 4th, 1954 . . . did unlawfully then and there feloniously transport and convey indecent, obscene books and pamphlets devoted to pictures and stories of deeds of lust, with intent to sell, expose and circulate the same, upon State Highway No. 6 . . ."
The indictment was returned on February 9, 1954. The defendant filed a motion for new trial on the statutory grounds, and thereafter added nine special grounds. This motion was denied and the defendant assigns error on this judgment.
The evidence substantially shows: John Lee, a deputy sheriff assigned to the Solicitor-General's office in Cobb County, testified that he investigated the circumstances surrounding the discovery of literature in the car of the defendant, and that, while the defendant was in the custody of the officers of Cobb County, the defendant made a statement freely and voluntarily, in the presence of the officer, to the effect that the car in which the literature was discovered belonged to the defendant; that it had broken down and he was intending to pull it to a garage in Powder Springs; that he met a man a week or two before at the "Round Top," a drive-in between Powder Springs and Clarkdale; that the man gave him some of the pamphlets, which the defendant took to his place of employment; that he and another employee made (manufactured) the literature discovered in the car. The officer further testified that personal photographs of the defendant were found among the literature in the car, and identified a series of cards as being contained in the literature; that the defendant explained the use of tinfoil on a machine where he worked, and that he had manufactured the literature at his place of employment. The defendant denied that he had sold and of the literature but admitted that he had given some to seven, eight, or ten people around Mableton, Austell, and Powder Springs.
Officer J. H. Barnes, of the Atlanta Police Department, assigned to the vice detail, testified that on February 4, 1954, the defendant made a free and voluntary confession to him that the photographic plates which the officer had found in Economy Auto Store, and which were identified by the officer and tendered into evidence as State's exhibit, belonged to the defendant; that he had used them to make pictures; that no one had assisted him in the preparation of the prints; that all of the drawings and preparation were accomplished at the Economy Auto Store in Fulton County; that he prepared the plates discovered in the Economy Auto Store and the pamphlets discovered in the automobile of the defendant; and the witness identified the material found in the defendant's car as a reproduction from the plates.
The State offered Wm. H. Hardy, a commercial photographer, who qualified as an expert, and he explained the process used as being the "Effut" type developed by Eastman Kodak Company, and identified and explained the process of reproduction by a machine which was exhibited to the jury.
The State also offered Officer L. A. Veal, assigned to the vice squad, Atlanta Police Department, who corroborated the testimony of Officer Barnes.
Emmett Burton, a member of the Cobb County Police Department, testified that, during the late hours of February 3, 1954, or the early hours of February 4, 1954, while he was detailing the southern division of Cobb County, he saw a vehicle at the garage, which appeared to be heavily loaded, and that he examined the vehicle at the garage just out of Austell, in Cobb County, and found the literature offered as State's exhibits, together with a blue type of cards; and that he began an investigation to determine the owner of the car.
Lt. Bates, of the Cobb County Police Department, testified that the car belonging to the defendant was brought to the police office and carried over to the garage; that he, together with Fulton County officers whom he had called, questioned the defendant, and that the defendant made a free and voluntary confession in his presence and in the presence of officers Barnes and Veal.
Deputy Sheriff John Lee was recalled and testified that in the confession of the defendant the defendant told the officer he had manufactured the pamphlets in Fulton County and had bundled the various pictures separately and was planning to bring them to his home in Cobb County and assemble them in book form and stapled together; and that he was going to give a part of the assembled literature to the man who had given him the original plates.
The State tendered into evidence State's exhibits #1 and #2, which were alloy plates, and two packages of books; exhibits #3 and #4, which were reproductions from exhibits #1 and #2. State's exhibits ##6, 7, 8 and 9 were reproductions from the plate, State's exhibit #1. State's exhibits #10 and #11 were tendered as being the same as contained on the alloy plate #1. The State offered in evidence exhibit #13, a series of cards portraying lewd acts; exhibit #16, personal photographs of the defendant, and #17, a box containing series of panels that comprised the two pictorial stories constituting the bulk of evidence taken from the car of the defendant by the officers. All of the State's exhibits were admitted over the objection of the defendant.
The defendant offered witnesses as to his good character and made a statement as follows: "Well, I will tell you the truth about the thing, I didn't know it was against the law when I was fooling with them, or I wouldn't have been fooling with them. I know now it was wrong. And you can get messed up sometimes, and get off on the wrong track. I didn't sell any of them, or print any of them or anything else in Cobb County. I had them in the back of my car, and they had been in there for a long time, and I just never had disposed of them. That was the reason they weren't together. So, I didn't intend to sell them. But I just never had gotten rid of them. So I will appreciate it if you will make it as light as you can, because I understand now that I done wrong, and if I get out of this I will straighten up. It has learned me a lesson. I didn't take any of them in my home, and they had only been in my car. And there wasn't any put together or anything in Cobb County. So I will leave it in your hands to do what you can with it. I know I made a mistake, and I will take it. That is all."
As to the general grounds, aside from the uncontradicted testimony of the many officers, the defendant in his statement to the jury in effect admitted his guilt as to count 2. Counsel for the defendant in his original brief insisted upon the general grounds but did not argue them, claiming in his brief that he would argue the general grounds in person. This counsel did not do. The court, in approving the brief of evidence, passed this order: "The foregoing brief of evidence in the case of The State vs William (Bill) Chapman, charged with felony, is hereby approved as true and correct, and ordered filed as a part of the record in said case. The lewd pictures and booklets illustrating and discussing acts of sodomy and other forms of sexual perversion are not included due to their vicious indecency. This 10 day of April, 1954. Jas. T. Manning, Judge Superior Court, Cobb Circuit."
We have studied carefully the nine special grounds, and in view of the whole record we find that none of them is meritorious. We might say that in view of this record the court did not abuse its discretion in denying the motion for a continuance. The court had already granted to the defendant's counsel a continuance to the date requested by counsel. All witnesses had been instructed to return on the date to which the case was continued.
There was nothing intricate about this case as to either the facts or the law. As to count 1, the evidence pertaining thereto is supported only by a confession, which is not corroborated by any evidence, as required by Code § 38-420.
The court committed reversible error in denying the motion for a new trial as to count 1, but not as to Count 2.
Reversed in part and affirmed in part. Townsend and Carlisle, JJ., concur.