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In Gornto the Supreme Court held: "Code Ann. § 26-2101, supra, is not violative of the First, Fourth, Fifth, Ninth and Fourteenth Amendments of the United States Constitution on the ground that the constitutional right to mere possession of obscene material recognized in Stanley v. Georgia, 394 U.S. 557 (89 SC 1243, 22 L.Ed.2d 542), necessarily implies the right to purchase such material and, hence, the right of others, including appellant, to distribute it.
Summary of this case from Playmate Cinema v. StateOpinion
26166.
ARGUED NOVEMBER 9, 1970.
DECIDED DECEMBER 3, 1970.
Distributing obscene materials; constitutional question. Glynn State Court. Before Judge Little.
Haas, Holland, Freeman, Levison Gibert, Jack S. Hutto, for appellant. Terrence Nichols, Solicitor, William R. Killian, for appellee.
The judgment sentencing appellant for the offense of distributing obscene materials is not erroneous for any reason urged.
ARGUED NOVEMBER 9, 1970 — DECIDED DECEMBER 3, 1970.
This is an appeal from a conviction, in the State Court of Glynn County, of the offense of distributing obscene materials, Code Ann. § 26-2101 (Ga. L. 1968, pp. 1249, 1302), which provides in part as follows: "(a) A person commits the offense of distributing obscene materials when he sells, lends, rents, leases, gives, advertises, publishes, exhibits or otherwise disseminates to any person any obscene material of any description, knowing the obscene nature thereof, or who offers to do so, or who possesses such material with the intent so to do. (b) Material is obscene if considered as a whole, applying community standards, its predominant appeal is to prurient interest, that is, a shameful or morbid interest in nudity, sex or excretion, and utterly without redeeming social value and if, in addition, it goes substantially beyond customary limits of candor in describing or representing such matters. Undeveloped photographs, molds, printing plates and the like shall be deemed obscene notwithstanding that processing or other acts may be required to make the obscenity patent or to disseminate it. (c) Material, not otherwise obscene, may be deemed obscene under this section if the distribution thereof, or the offer to do so, or the possession with the intent to do so is a commercial exploitation of erotica solely for the sake of their prurient appeal."
1. Code Ann. § 26-2101 is not violative of the First and Fourteenth Amendments of the United States Constitution on the ground of vagueness. Gable v. Jenkins, 309 F. Supp. 998 (4) (N.D. Ga., 1969), affirmed, Gable v. Jenkins, 397 U.S. 592 ( 90 S.C. 1351, 25 L.Ed.2d 595). Enumerated error 1 is without merit.
2. Code Ann. § 26-2101, supra, is not violative of the First, Fourth, Fifth, Ninth and Fourteenth Amendments of the United States Constitution on the ground that the constitutional right to mere possession of obscene material, recognized in Stanley v. Georgia, 394 U.S. 557 ( 89 S.C. 1243, 22 L.Ed.2d 542), necessarily implies the right to purchase such material and, hence, the right of others, including appellant, to distribute it. In the Stanley case supra, pp. 567-568, the Supreme Court specifically negated any relationship of interdependence between the States' recognized broad power to regulate the public distribution of obscenity, and the mere possession of such material by the individual in the privacy of his home, to which the States' power does not extend. See also, Gable v. Jenkins, 309 F. Supp. 998, 1000, supra. Enumerated error 2 is without merit.
3. "There is no necessity for an adversary hearing on the question of obscenity of publications prior to the institution of a criminal action against the distributor, where the publications have been obtained by the prosecuting officers by purchase and no seizure of the publications is required for evidence." Peachtree News Co. v. Slaton, 226 Ga. 471 ( 175 S.E.2d 539). The evidence in the present case was obtained by purchase. Enumerated error 3 is without merit.
4. The sole contents of the magazine sold by appellant were photographic depictions of nudity (including unclothed human male and female genitalia in close proximity) and acts of homosexuality, sadism and masochism, and verbal descriptions (in coarse, vulgar language) of acts of masturbation, homosexuality, sodomy, bestiality, sexual intercourse (fornication), sadism and masochism. The jury was correctly charged as to the statutory definition of obscene material, as contained in Code Ann. § 26-2101 (b, c). Their finding, that the above-described material comes within such statutory definition, is authorized by the evidence, which supports their verdict of guilty. Enumerated error 4 is without merit.
5. The statute in question is not unconstitutional as applied on the grounds that there was evidence neither of what had and had not been held previously to be obscene nor that the material in question appealed predominantly to the prurient interest of the "average member of the community." A clergyman testified for the State as to community standards and generally as to the material's appeal to prurient interest and exceeding customary limits of candor, etc. Furthermore, the standard to be applied is not what may or may not have been held to be obscene in other jurisdictions, but what is acceptable in the local community. The jurors represented the average members of their own community and, as the triors of fact, were charged with the responsibility of making such determination, guided by the evidence presented and by their individual and collective awareness of the standards and norms of their community. Enumerated error 5 is without merit.
6. Accordingly, the trial court did not err in denying appellant's motions to dismiss, for a directed verdict, for a new trial, and in arrest of judgment, or in rendering judgment on the verdict of guilty.
Judgment affirmed. All the Justices concur.