IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1968
No. 293
ROBERT
ELI STANLEY,
Appellant,
-VS-
THE STATE OF GEORGIA, Appellee.
WESLEY
R. ASINOF
Counsellor Appellant
3424 First National Bank Building
Atlanta, Georgia 30303
CONCISE
STATEMENT OF GROUNDS OF THIS COURT'S JURISDICTION
This was a
criminal
proceeding brought by the State of Georgia charging the appellant with
a
felony, possessing obscene material in violation of Georgia Code
26-6301 as
amended by an Act of the General Assembly of 1963, p. 78.
The
judgment of affirmance
by the Supreme Court of Georgia sought to be reviewed was dated April
9, 1968,
and an order denying a rehearing was dated and filed April 22, 1968.
The notice
of appeal was filed in the Supreme Court of Georgia May 1, 1968.
Jurisdiction
of this appeal
has been conferred on this court under and by virtue of 28 U.S.C.A. No.
1257
(2).
The cases
believed to
sustain the jurisdiction of this court are Lovell v. City of Griffin,
Georgia,
(1938) 303 U. S. 444, (82 L. Ed. 949, 58 S. Ct. 666); Standard Oil Co.
of
California v. Johnson, (1942) 316 U.S. 481 (86 L. Ed. 1611,62 S. Ct.
1168);
Redrup v. N. Y., Austin v. Ky. and Gent v. Arkansas, 386 U. S. 767 (87
S. Ct.
1414) and Smith v. California, 361 U. S. l4, 7 (80 S. Ct. 215).
The
validity of a statute
of Georgia is involved in this appeal, to be found in Ga. Laws 1963, p.
78, and
is set forth verbatim in an appendix to this jurisdictional statement.
1. Whether
Georgia Code
section 26-6301 (Ga. Laws, 1963, p. 78), under which the appellant was
convicted, is repugnant to the First and Fourteenth Amendments to the
Constitution of the United States guaranteeing freedom of press and due
process
in that the statute removes the element of scienter from the definition
of the
offense of possessing obscene matter, and makes the mere possession of
such
matter a crime.
2. Whether
a search warrant
issued by a U. S. Commissioner authorizing a search of premises for
bookmaking
records and other wagering paraphernalia, founded on affidavits that
the
person's home sought to be searched has not registered as a gambler
under the
Wagering Tax Act, is invalid since the holding by this court in
Marchetti v. U.
S., 88 S. Ct. 697 No.2, Oct. Term, 1967, decided Jan. 29, 1968 and
Grosso v. U.
S. 88 S. Ct. 709 No. 12, Oct. Term, 1967, decided Jan. 29,1968.
3. Whether
the Supreme
Court of Georgia erred in holding and deciding that the search warrant
and the
search conducted there under were legal.
4. Whether
a state officer,
acting in concert with federal agents executing a federal search
warrant issued
for failure to register as a gambler, were constitutionally authorized
to seize
motion picture films concealed in a desk drawer of appellant's home on
a claim
by the state officer that the films were obscene where such search
warrant did
not describe the films to be seized and there was no prior adjudication
that
they were obscene.
5. Whether
a state may
constitutionally punish an individual for the mere possession of films
alleged
to be obscene where there is no evidence to show the appellant had
prior
knowledge that they were obscene, or that he had ever viewed them, or
that he
had permitted juveniles to view them, or that he was publishing them in
a
manner so obtrusive as to make it impossible for an unwilling
individual to
avoid exposure to them, or that he was "pandering" them.
The
appellant was indicted
by the Fulton County Grand Jury for the offense of possessing obscene
matter,
to-wit: three reels of motion picture film. (R. 11-12)
Upon his
arraignment he
filed a general demurrer to the indictment on three grounds. (a) That
the
indictment failed to charge an offense; (b) that the Act of 1963, under
which
the indictment was drawn, offended the State Constitution; and (c) that
the Act
was in conflict with the First and Fourteenth Amendments to the U. S.
Constitution in removing the element of scienter from the definition of
the
offense. The trial court, after hearing argument of counsel, overruled
the
demurrer on all grounds.
Appellant
also filed a special
demurrer to a portion of the indictment alleging that "accused should
reasonably have known of the obscene nature of said matter," contending
that it violated his First and Fourteenth Amendment rights by removing
scienter
from the offense. This demurrer was overruled by the court.
Both the
general and
special demurrers, and the orders of the trial court overruling them,
are
contained from pages 13 through 17 of the record.
Appellant
filed a motion to
suppress the three reels of film from evidence (R. 29-36) on the
grounds they
were seized from his home by an Investigator of the Criminal Court
"without a lawful search warrant particularly describing said articles
to
be seized," and that "no prior adjudication had been made that said
articles
were obscene" in violation of his First and Fourteenth Amendment rights.
Evidence
was heard by the
trial court on this motion, at which time the State introduced in
evidence a
federal search warrant and supporting affidavits issued for the
violation of
the Federal Wagering Tax Act (R. 37-57) (R. 87). After argument of
counsel the
motion was overruled. (R. 22 and 23.)
The case
proceeded to trial
before a jury, and a verdict of guilty was returned and sentence of one
year
imposed. (R. 19 and 20.)
The
evidence for the State
consisted of testimony by federal agents and one state officer that
they
searched the appellant's home pursuant to the federal search warrant
for the
seizure of wagering paraphernalia. They found no such articles
described in the
warrant, but during the course of the search discovered the three reels
of film
described in the indictment concealed in a desk drawer of one of the
bedrooms.
They found a motion picture projector and a screen, ran the film and
determined
in their opinion they were obscene. The films were then seized, the
appellant
placed under arrest and the indictment and conviction followed.
The
verdict of the jury was
returned January 19,1967, sentence pronounced Jan. 19, 1967 and motion
for new
trial filed the same day, (R. 21) and overruled Nov. 20, 1967.
Notice of
appeal to the
Supreme Court of Georgia was filed December 14, 1967 (R. 6 and 7). The
appellant enumerated as error the overruling of the motion to suppress
evidence, the overruling of the general demurrer to the indictment, the
holding
by the trial court in its rulings on the demurrers that the Act of the
General
Assembly under which the appellant was tried was constitutional and not
in
conflict with the First and Fourteenth Amendments to the United States
Constitution; and that the evidence did not support the verdict in that
the
State failed to prove that appellant exhibited the alleged obscene
films to any
other person. (R. 286-289)
The
unconstitutionality of
the Act of 1963, p. 78, under which appellant was convicted, was first
raised
in the trial court by the 3rd ground of the general demurrer (R. 14 and
15) and
the special demurrer (R. 17) and were
overruled by the
trial court (R. 16 and 18), enumerated as error in the Georgia Supreme
Court,
(Grounds 2, 5, and 6, R. 286 and 287) passed on by the Georgia Supreme
Court
adversely to appellant in the 4th section of the opinion, (R. 295, 296
and 297)
and motion for rehearing on this ground was made (R. 301 and 302,
ground 3) .
The
invalidity of the
search and seizure was first raised in the trial court by the motion to
suppress prior to trial (R. 29-36), overruled by the trial court (R. 22
and 23)
, enumerated as error in the Georgia Supreme Court (R. 286) (Ground 1)
, and
passed on by the Supreme Court of Georgia in Sec. 1 of the opinion (R.
290) . A
motion for rehearing of this ground was made (R. 299, 300 and 301,
grounds 1
and 2).
The
insufficiency of the
evidence in failing to show that appellant had exhibited the films to
an
unwilling individual or a minor was raised in enumeration of error No.8
in the
Georgia Supreme Court, passed upon by that Court in Sec. 6 of its
opinion (R.
297) , and a motion for rehearing was made on this ground in par. 4 (R.
302).
GROUNDS
UPON WHICH FEDERAL
QUESTIONS ARE CONTENDED
TO BE SUBSTANTIAL
1.
Also
appended hereto is a
verbatim copy of the Georgia statute to which the appeal has been taken
in this
case.
Apr.
9, 1968
IN
THE SUPREME COURT OF GEORGIA.
24484.
STANLEY v. THE STATE 708
FRANK UM,
Justice. Robert
E. Stanley was convicted of the offense of possessing obscene matter
under an
indictment framed under the provisions of Code § 26-6301. He
appealed.
Jurisdiction of the appeal is in this court by reason of two attacks by
demurrer upon the constitutionality of the law under which the
defendant was
indicted and tried. The demurrer was overruled by the trial court and
the
appellant enumerates that judgment and other rulings of court as error.
We will
deal with the enumerations of error in the order in which they are made.
1.
Appellant made a motion
to suppress evidence to wit: the three rolls of motion picture film
seized by
the officers while conducting a search of the appellant's premises. It
appeared
that special agents of the intelligence division of the U. S. Internal
Revenue
Service and an investigator from the Solicitor General's Office of
Fulton
County, acting under authority of a Federal Search Warrant issued by
the U. S.
Commissioner authorizing the search of the defendant's dwelling for
certain
bookmaking records particularly described in the warrant, while
conducting the
search discovered three rolls of motion picture film in the bedroom of
the
defendant, placed said film in a projector, showed said pictures and
observed
that said films depicted nude men and women engaged in acts of sexual
intercourse and sodomy. The investigator 'seized said films as being
contraband
obscene matter possessed by the defendant in violation of Sec. 26-630 I
of the
Georgia Code as amended and placed the defendant under arrest on that
charge.
The defendant moved to suppress the evidence on the ground that its
seizure
violated his constitutional rights in that it was seized under a
warrant not
specifically describing the thing to be seized, and before this court
he relies
principally upon the case of Marcus v. Search Warrant, 367 U.S. 717 (__
L.
Ed__, __Sup. Ct.__) That case is clearly distinguishable from this
case. The
basis of the decision in that case was that the warrant under which the
seizure
of the lewd and pornographic material was had was not specific as to
any
property to be seized and was therefore a void warrant. Thus the search
and
seizure there was illegal ab initio. In this case it was specifically
held by
the trial court, in overruling the motion to suppress, that the warrant
and the
search there under were legal, and in so ruling the trial court
committed no
error. In Georgia "when the peace officer is in the process of
effecting a
lawful search," he may discover or seize "any stolen or embezzled
property, any item, substance, object, thing or matter, the possession
of which
is unlawful, or any item, substance, object, thing or matter, other
than the private
papers of any person, which is tangible evidence of the commission of a
crime
against the laws of the State of Georgia." (Ga. L. 1966, pp. 567, 568;
Ga.
Code Anno. Suppl. Sec. 27-303 (e). Such seizure as was had in this case
has
been expressly held not to be a violation of constitutional guarantees
either
State or Federal. Cash v. State, 222 Ga. 55, 58 (__S.E.__); Harris v.
U.S., 331
U.S. 145 (__L. Ed__, Sup. Ct); Palmer v. U. S. (CCA, DC), 203 Fed. 2d
66;
Johnson v. U.S. (CCA, DC), 293 Fed. 2d 539; U. S. v. Eisner (CCA 6) 297
Fed. 2d
595)
Even if it
be said that the
ruling made in the Marcus case is, in terms, broad enough to encompass
the
seizure of the lewd, lascivious and pornographic material involved in
this
case, it must be observed that the ruling made in that case was made
with
relation to and in the context of Constitutional guarantees of freedom
of the
press and freedom of speech. Here no such question is involved. There
is no
merit to the appellant's contention in this regard and the trial court
did not
err in overruling the motion to suppress the evidence.
2. The
indictment in this
case which charged that the defendant on a specified date "did
knowingly
have possession of obscene matter," thereafter describing three rolls
of
motion picture film in detail and concluding with the allegation: "said
accused having knowledge of the obscene nature of such motion picture
film and
matter; said motion picture films when considered as a whole and
applying
contemporary community standards that exist in this county, being
obscene
matter whose predominant appeal is to a shameful and morbid interest in
nudity
and sex; and accused should reasonably have known of the obscene nature
of said
matter, said act of accused being contrary to the laws of said state,
the good
order, peace and dignity thereof," sufficiently charged the defendant
with
an offense under the provisions of Code Sec. 26-6.301, as amended by
the act
approved March 13, 1963 (Ga. L. 1963, p. 78 et seq.). It is not
essential to an
indictment charging one with possession of obscene matter that it be
alleged
that such possession was "with intent to sell, expose or circulate the
same."
3. The
contention that the
act approved March 13, 1963, is unconstitutional, null and void on its
face in
that it was passed and enacted by the general assembly of Georgia as an
amendment to a code section which had previously been declared to be
unconstitutional (Simpson v. State 218 Ga. 337 (___S.E) is without
merit.
Section 1 of the 1963 Act clearly states that "Code Chap. 26-63 … as
amended, particularly by an Act approved March 17, 1956 (Ga. L. 1956,
p. 801),
is hereby amended . . ." The 1956 Act had in a similar fashion amended
Chapter 26-63 by striking there from Code Sec. 26-6301 and inserting in
lieu thereof
a new section to be numbered Section 26-6301 and it was that section as
reenacted in 1956 which was held to be unconstitutional in Simpson v.
State
supra. The fact that the 1963 Act particularized the portion of Code
Chap.
26-63 to be amended and referred to Sec. 26-6301 and further provided
that the
Chapter, should be amended by striking that code section in its
entirety (which
was the effect of this court's ruling in the Simpson case) in no way
vitiated
the effect of the act to amend Code Chap. 26-63.
4.
Defendant contended in
the 3rd ground of his general demurrer to the indictment that the law
under
which he was indicted is unconstitutional, null and void as in conflict
with
the first and 14th Amendments to the Constitution of the United States
guaranteeing
freedom of the press and due process of law in that it seeks to punish
persons
charged with the violation of the law if they reasonably should know of
the
obscene nature of such matter, it being contended that the requirement
of
reasonable knowledge would withdraw the element of scienter from the
definition
of the offense and would render a person guilty without actual
knowledge of the
obscene nature of the matter. This contention is without merit. As we
construe
the statute the language "if such person has knowledge or reasonably
should know of the obscene nature of such matter," merely amounts to a
statutory expression of a rule of evidence, which has been extant in
this state
over many years. Whether a person has knowledge of a fact is a matter
peculiarly
within the mind of such person, and it is rarely if ever that the
defendant's
guilty knowledge is susceptible of direct proof. For this reason this
court has
adhered to the principle that guilty knowledge may be shown by
circumstances as
well as by actual and direct proof. Rivers v. State, 118 Ga. 42 (2)
(__S.E.__);
Birdsong v. State, 120 Ga. 850, 852 (3)(S.E). Therefore, if the
evidence shows
that the defendant knowingly possessed matter which is obscene and that
he
reasonably should have known of its obscene nature, and this latter
fact is
shown by circumstances relating to the way and manner in which he came
into the
possession of the matter or relating to the length of time he has had
possession of it, coupled with a showing that such defendant is
sufficiently
informed as to the community standards as to be chargeable with
knowledge of
the obscene nature of the matter then he can be convicted even though
direct
proof of his actual knowledge of the obscene nature of the
matter is incapable of being produced. The
statute is therefore not unconstitutional for any of the reasons urged
and the
trial court did not err in overruling the general and special demurrers
of the
defendant in which sought to raise this issue.
5.
Appellant filed a plea
in abatement in which he made the contention that since the matter he
was
charged with possessing had not been declared to be obscene by a court
of
competent jurisdiction in accordance with the provision of the act
approved
March 3, 1964 (Ga. L. 1964, p. 161-65; Code Ann. Supp!. Chap. 26-63A)
as
required by Section 2 of the Act approved April 1, 1965 (Ga. L. 1965,
p. 489)
that he could not be prosecuted for merely possessing the films in
question.
This contention is without merit. The provisions of Section 2 of the
Act of
1965 apply only to that act, that is, to the provisions of Section 1 of
the
1965 Act which added a new section to be known as Code Sec. 26-6301.1
and those
provisions do not apply to Code Sec. 26-6301 under which the appellant
was
prosecuted. Furthermore the provisions of the 1965 Act apply only to
pornographic literature, and the matter for the possession of which the
defendant was prosecuted in this case was in no sense literature as
that term
is defined by recognized authorities. See, for example, Webster’s New
World
Dictionary of the American Language, p. 856.
6. The
evidence authorized
the verdict and no error of law appearing the judgment will be
affirmed.
Judgment affirmed. All the Justices concur.
24484
SUPREME COURT OF GEORGIA
The
Honorable Supreme Court
met pursuant to adjournment. The following judgment was rendered:
Robert Eli Stanley v. The State.
This case
came before this
court upon an appeal from the Superior Court of Fulton County; and,
after argument
had, it is considered and adjudged that the judgment of the court below
be
affirmed. All the Justices concur.
Bill of
Costs, $30.00
CRIMES - SALE,
POSSESSION, ETC. OF OBSCENE
MATTER.
Code § 26-6301 Amended.
No. 53
(House Bill No. 132).
An Act to
amend Code
Chapter 26-63, relating to obscene pictures and abusive and vulgar
language, as
amended, particularly by an Act approved March 17, 1956 (Ga. L. 1956,
p. 801) ,
so as to provide that any person who shall knowingly bring, or cause to
be
brought into this State for sale or exhibition, or who shall knowingly
sell or
offer to sell, or who shall knowingly lend or give away or offer to
lend or
give away, or who shall knowingly have possession of, or who shall
knowingly
exhibit or transmit to another, any obscene matter, or who shall
knowingly
advertise for sale by any form of notice, printed, written, or verbal,
any
obscene matter, or who shall knowingly manufacture, draw, duplicate or
print,
any obscene matter with intent to sell, expose, or circulate the same,
shall,
if such person has knowledge or reasonably should know of the obscene
nature of
such matter, be guilty of a felony, and upon conviction thereof, shall
be
punished by confinement in the penitentiary for not less than one year
nor more
than five years; to provide that upon the recommendation of the jury,
said
offense may be punished as for a misdemeanor; to provide for
definitions; to
provide for sever ability; to repeal conflicting laws; and for other
purposes.
Be it
enacted by the
General Assembly of Georgia:
Section 1.
Code Chapter
26-63, relating to obscene pictures and abusive and vulgar language, as
amended, particularly by an Act approved March 17, 1956 (Ga. L. 1956,
p. 801),
is here by amended by striking Code section 26-6301 in its entirety,
and
inserting in lieu thereof a new section 26-6301 to read as follows:
"26-6301.
Any person
who shall knowingly bring or cause to be brought into this State for
sale or
exhibition, or who shall knowingly sell or offer to sell, or who shall
knowingly
lend or give away or offer to lend or give away, or who shall knowingly
have
possession of, or who shall knowingly exhibit or transmit to another,
any
obscene matter, or who shall knowingly advertise for sale by any form
of
notice, printed, written, or verbal, any obscene matter, or who shall
knowingly
manufacture, draw, duplicate or print any obscene matter with intent to
sell,
expose or circulate the same, shall, if such person has knowledge or
reasonably
should know of the obscene nature of such matter, be guilty of a
felony, and
upon conviction thereof, shall be punished by confinement in the
penitentiary
for not less than one year nor more than five years; provided, however,
in the
event the jury so recommends, such person may be punished as for a
misdemeanor.
As used herein, a matter is obscene if, considered as a whole, applying
contemporary community standards, its predominant appeal is to prurient
interest, i.e., a shameful or morbid interest in nudity, sex or
excretion.
Section 2.
In the event any
section, subsection, sentence, clause or phrase of this Act shall be
declared
or adjudged invalid or unconstitutional, such adjudication shall in no
manner
affect the other sections, subsections, sentences, clauses or phrases
of this
Act, which shall remain of full force and effect, as if the section,
subsection, sentence, clause or phrase so declared or adjudged invalid
or
unconstitutional was not originally a part hereof. The General Assembly
hereby
declares that it would have passed the remaining parts of this Act if
it had
known that such part or parts hereof would be declared or adjudged
invalid or
unconstitutional.
Section 3.
All laws and
parts of laws in conflict with this Act are hereby repealed.
Approved
March 13, 1963.
The
questions involved in
this appeal are substantial and of gravity and importance. If any of
the
questions have been improvidently taken by this appeal where the proper
mode of
review is by petition for certiorari, appellant requests this appeal
and the
papers whereon the appeal was taken be regarded and acted on as a
petition for
writ of certiorari and as if duly presented to the Supreme Court at the
time
the appeal was taken.
28
U.S.C.A. No. 2103
Com. Of
Pa. v. Ed. of Dir.
of City Trust of Phila.
353 U.S. 230.
Respectfully
submitted,
WESLEY R. ASINOF
Counsel for Appellant
34.24 First Nat. Bank Bldg.
Atlanta, Ga. 30303