SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1968
THE STATE OF GEORGIA, Appellee.
3424 First National Bank Building
Atlanta, Georgia 30303
opinion of the Georgia
Supreme Court in this case is officially reported in 224 Ga. 259 and
unofficially reported in 161 S.E.2d, 309 and a copy thereof is appended
STATEMENT OF GROUNDS OF THIS COURT'S JURISDICTION
This was a
proceeding brought by the State of Georgia charging the appellant with
felony, possessing obscene material in violation of Georgia Code
amended by an Act of the General Assembly of 1963, p. 78.
judgment of affirmance
by the Supreme Court of Georgia sought to be reviewed was dated April
and an order denying a rehearing was dated and filed April 22, 1968.
of appeal was filed in the Supreme Court of Georgia May 1, 1968.
of this appeal
has been conferred on this court under and by virtue of 28 U.S.C.A. No.
sustain the jurisdiction of this court are Lovell v. City of Griffin,
(1938) 303 U. S. 444, (82 L. Ed. 949, 58 S. Ct. 666); Standard Oil Co.
California v. Johnson, (1942) 316 U.S. 481 (86 L. Ed. 1611,62 S. Ct.
Redrup v. N. Y., Austin v. Ky. and Gent v. Arkansas, 386 U. S. 767 (87
1414) and Smith v. California, 361 U. S. l4, 7 (80 S. Ct. 215).
validity of a statute
of Georgia is involved in this appeal, to be found in Ga. Laws 1963, p.
is set forth verbatim in an appendix to this jurisdictional statement.
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
in that the statute removes the element of scienter from the definition
offense of possessing obscene matter, and makes the mere possession of
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.
Court of Georgia erred in holding and deciding that the search warrant
search conducted there under were legal.
a state officer,
acting in concert with federal agents executing a federal search
for failure to register as a gambler, were constitutionally authorized
motion picture films concealed in a desk drawer of appellant's home on
by the state officer that the films were obscene where such search
not describe the films to be seized and there was no prior adjudication
they were obscene.
a state may
constitutionally punish an individual for the mere possession of films
to be obscene where there is no evidence to show the appellant had
knowledge that they were obscene, or that he had ever viewed them, or
had permitted juveniles to view them, or that he was publishing them in
manner so obtrusive as to make it impossible for an unwilling
avoid exposure to them, or that he was "pandering" them.
appellant was indicted
by the Fulton County Grand Jury for the offense of possessing obscene
to-wit: three reels of motion picture film. (R. 11-12)
filed a general demurrer to the indictment on three grounds. (a) That
indictment failed to charge an offense; (b) that the Act of 1963, under
the indictment was drawn, offended the State Constitution; and (c) that
was in conflict with the First and Fourteenth Amendments to the U. S.
Constitution in removing the element of scienter from the definition of
offense. The trial court, after hearing argument of counsel, overruled
demurrer on all grounds.
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
from the offense. This demurrer was overruled by the court.
special demurrers, and the orders of the trial court overruling them,
contained from pages 13 through 17 of the record.
filed a motion to
suppress the three reels of film from evidence (R. 29-36) on the
were seized from his home by an Investigator of the Criminal Court
"without a lawful search warrant particularly describing said articles
be seized," and that "no prior adjudication had been made that said
were obscene" in violation of his First and Fourteenth Amendment rights.
was heard by the
trial court on this motion, at which time the State introduced in
federal search warrant and supporting affidavits issued for the
the Federal Wagering Tax Act (R. 37-57) (R. 87). After argument of
motion was overruled. (R. 22 and 23.)
proceeded to trial
before a jury, and a verdict of guilty was returned and sentence of one
imposed. (R. 19 and 20.)
evidence for the State
consisted of testimony by federal agents and one state officer that
searched the appellant's home pursuant to the federal search warrant
seizure of wagering paraphernalia. They found no such articles
described in the
warrant, but during the course of the search discovered the three reels
described in the indictment concealed in a desk drawer of one of the
They found a motion picture projector and a screen, ran the film and
in their opinion they were obscene. The films were then seized, the
placed under arrest and the indictment and conviction followed.
verdict of the jury was
returned January 19,1967, sentence pronounced Jan. 19, 1967 and motion
trial filed the same day, (R. 21) and overruled Nov. 20, 1967.
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
by the trial court in its rulings on the demurrers that the Act of the
Assembly under which the appellant was tried was constitutional and not
conflict with the First and Fourteenth Amendments to the United States
Constitution; and that the evidence did not support the verdict in that
State failed to prove that appellant exhibited the alleged obscene
films to any
other person. (R. 286-289)
the Act of 1963, p. 78, under which appellant was convicted, was first
in the trial court by the 3rd ground of the general demurrer (R. 14 and
the special demurrer (R. 17) and were
overruled by the
trial court (R. 16 and 18), enumerated as error in the Georgia Supreme
(Grounds 2, 5, and 6, R. 286 and 287) passed on by the Georgia Supreme
adversely to appellant in the 4th section of the opinion, (R. 295, 296
and motion for rehearing on this ground was made (R. 301 and 302,
ground 3) .
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
, enumerated as error in the Georgia Supreme Court (R. 286) (Ground 1)
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,
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).
UPON WHICH FEDERAL
QUESTIONS ARE CONTENDED
TO BE SUBSTANTIAL
wherein this court held that an ordinance, dispensing with the element of scienter, in a prosecution for possession of obscene articles, was unconstitutional as in conflict with the First and Fourteenth Amendments.
Marchetti v. United States, No.2-Oct. Term, 1967 (36 U. S. Law Week, 4143) and
Grosso. v. United States) No. 12-0ct. Term, 1967 (36 Law Week 4,150) the United States Supreme Court held:
"We conclude that nothing in the Court's opinions in Kahriger and Lewis now suffices to preclude petitioner's assertion of the constitutional privilege as a defense to the indictments under which he was convicted. To this extent Kahriger and Lewis are overruled."
Amendment Four of the United States Constitution.
"It follows that, under the Fourteenth Amendment, a State is not free to adopt whatever procedures it pleases for dealing with obscenity as here involved without regard to the possible consequences for constitutionally protected speech."
appended hereto is a
verbatim copy of the Georgia statute to which the appeal has been taken
Apr. 9, 1968
IN THE SUPREME COURT OF GEORGIA.
24484. STANLEY v. THE STATE 708
E. Stanley was convicted of the offense of possessing obscene matter
indictment framed under the provisions of Code § 26-6301. He
Jurisdiction of the appeal is in this court by reason of two attacks by
demurrer upon the constitutionality of the law under which the
indicted and tried. The demurrer was overruled by the trial court and
appellant enumerates that judgment and other rulings of court as error.
deal with the enumerations of error in the order in which they are made.
Appellant made a motion
to suppress evidence to wit: the three rolls of motion picture film
the officers while conducting a search of the appellant's premises. It
that special agents of the intelligence division of the U. S. Internal
Service and an investigator from the Solicitor General's Office of
County, acting under authority of a Federal Search Warrant issued by
the U. S.
Commissioner authorizing the search of the defendant's dwelling for
bookmaking records particularly described in the warrant, while
search discovered three rolls of motion picture film in the bedroom of
defendant, placed said film in a projector, showed said pictures and
that said films depicted nude men and women engaged in acts of sexual
intercourse and sodomy. The investigator 'seized said films as being
obscene matter possessed by the defendant in violation of Sec. 26-630 I
Georgia Code as amended and placed the defendant under arrest on that
The defendant moved to suppress the evidence on the ground that its
violated his constitutional rights in that it was seized under a
specifically describing the thing to be seized, and before this court
principally upon the case of Marcus v. Search Warrant, 367 U.S. 717 (__
Ed__, __Sup. Ct.__) That case is clearly distinguishable from this
basis of the decision in that case was that the warrant under which the
of the lewd and pornographic material was had was not specific as to
property to be seized and was therefore a void warrant. Thus the search
seizure there was illegal ab initio. In this case it was specifically
the trial court, in overruling the motion to suppress, that the warrant
search there under were legal, and in so ruling the trial court
error. In Georgia "when the peace officer is in the process of
lawful search," he may discover or seize "any stolen or embezzled
property, any item, substance, object, thing or matter, the possession
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
against the laws of the State of Georgia." (Ga. L. 1966, pp. 567, 568;
Code Anno. Suppl. Sec. 27-303 (e). Such seizure as was had in this case
been expressly held not to be a violation of constitutional guarantees
State or Federal. Cash v. State, 222 Ga. 55, 58 (__S.E.__); Harris v.
U.S. 145 (__L. Ed__, Sup. Ct); Palmer v. U. S. (CCA, DC), 203 Fed. 2d
Johnson v. U.S. (CCA, DC), 293 Fed. 2d 539; U. S. v. Eisner (CCA 6) 297
Even if it
be said that the
ruling made in the Marcus case is, in terms, broad enough to encompass
seizure of the lewd, lascivious and pornographic material involved in
case, it must be observed that the ruling made in that case was made
relation to and in the context of Constitutional guarantees of freedom
press and freedom of speech. Here no such question is involved. There
merit to the appellant's contention in this regard and the trial court
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."
contention that the
act approved March 13, 1963, is unconstitutional, null and void on its
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
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,
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
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.
supra. The fact that the 1963 Act particularized the portion of Code
26-63 to be amended and referred to Sec. 26-6301 and further provided
Chapter, should be amended by striking that code section in its
was the effect of this court's ruling in the Simpson case) in no way
the effect of the act to amend Code Chap. 26-63.
Defendant contended in
the 3rd ground of his general demurrer to the indictment that the law
which he was indicted is unconstitutional, null and void as in conflict
the first and 14th Amendments to the Constitution of the United States
freedom of the press and due process of law in that it seeks to punish
charged with the violation of the law if they reasonably should know of
obscene nature of such matter, it being contended that the requirement
reasonable knowledge would withdraw the element of scienter from the
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
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
over many years. Whether a person has knowledge of a fact is a matter
within the mind of such person, and it is rarely if ever that the
guilty knowledge is susceptible of direct proof. For this reason this
adhered to the principle that guilty knowledge may be shown by
well as by actual and direct proof. Rivers v. State, 118 Ga. 42 (2)
Birdsong v. State, 120 Ga. 850, 852 (3)(S.E). Therefore, if the
that the defendant knowingly possessed matter which is obscene and that
reasonably should have known of its obscene nature, and this latter
shown by circumstances relating to the way and manner in which he came
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
informed as to the community standards as to be chargeable with
the obscene nature of the matter then he can be convicted even though
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
trial court did not err in overruling the general and special demurrers
defendant in which sought to raise this issue.
Appellant filed a plea
in abatement in which he made the contention that since the matter he
charged with possessing had not been declared to be obscene by a court
competent jurisdiction in accordance with the provision of the act
March 3, 1964 (Ga. L. 1964, p. 161-65; Code Ann. Supp!. Chap. 26-63A)
required by Section 2 of the Act approved April 1, 1965 (Ga. L. 1965,
that he could not be prosecuted for merely possessing the films in
This contention is without merit. The provisions of Section 2 of the
1965 apply only to that act, that is, to the provisions of Section 1 of
1965 Act which added a new section to be known as Code Sec. 26-6301.1
provisions do not apply to Code Sec. 26-6301 under which the appellant
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
is defined by recognized authorities. See, for example, Webster’s New
Dictionary of the American Language, p. 856.
the verdict and no error of law appearing the judgment will be
Judgment affirmed. All the Justices concur.
SUPREME COURT OF GEORGIA
Honorable Supreme Court
met pursuant to adjournment. The following judgment was rendered:
Robert Eli Stanley v. The State.
came before this
court upon an appeal from the Superior Court of Fulton County; and,
had, it is considered and adjudged that the judgment of the court below
affirmed. All the Justices concur.
CRIMES - SALE,
POSSESSION, ETC. OF OBSCENE
Code § 26-6301 Amended.
(House Bill No. 132).
An Act to
Chapter 26-63, relating to obscene pictures and abusive and vulgar
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
brought into this State for sale or exhibition, or who shall knowingly
offer to sell, or who shall knowingly lend or give away or offer to
give away, or who shall knowingly have possession of, or who shall
exhibit or transmit to another, any obscene matter, or who shall
advertise for sale by any form of notice, printed, written, or verbal,
obscene matter, or who shall knowingly manufacture, draw, duplicate or
any obscene matter with intent to sell, expose, or circulate the same,
if such person has knowledge or reasonably should know of the obscene
such matter, be guilty of a felony, and upon conviction thereof, shall
punished by confinement in the penitentiary for not less than one year
than five years; to provide that upon the recommendation of the jury,
offense may be punished as for a misdemeanor; to provide for
provide for sever ability; to repeal conflicting laws; and for other
enacted by the
General Assembly of Georgia:
26-63, relating to obscene pictures and abusive and vulgar language, as
amended, particularly by an Act approved March 17, 1956 (Ga. L. 1956,
is here by amended by striking Code section 26-6301 in its entirety,
inserting in lieu thereof a new section 26-6301 to read as follows:
who shall knowingly bring or cause to be brought into this State for
exhibition, or who shall knowingly sell or offer to sell, or who shall
lend or give away or offer to lend or give away, or who shall knowingly
possession of, or who shall knowingly exhibit or transmit to another,
obscene matter, or who shall knowingly advertise for sale by any form
notice, printed, written, or verbal, any obscene matter, or who shall
manufacture, draw, duplicate or print any obscene matter with intent to
expose or circulate the same, shall, if such person has knowledge or
should know of the obscene nature of such matter, be guilty of a
upon conviction thereof, shall be punished by confinement in the
for not less than one year nor more than five years; provided, however,
event the jury so recommends, such person may be punished as for a
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
In the event any
section, subsection, sentence, clause or phrase of this Act shall be
or adjudged invalid or unconstitutional, such adjudication shall in no
affect the other sections, subsections, sentences, clauses or phrases
Act, which shall remain of full force and effect, as if the section,
subsection, sentence, clause or phrase so declared or adjudged invalid
unconstitutional was not originally a part hereof. The General Assembly
declares that it would have passed the remaining parts of this Act if
known that such part or parts hereof would be declared or adjudged
Section 3. All laws and parts of laws in conflict with this Act are hereby repealed.
March 13, 1963.
questions involved in
this appeal are substantial and of gravity and importance. If any of
questions have been improvidently taken by this appeal where the proper
review is by petition for certiorari, appellant requests this appeal
papers whereon the appeal was taken be regarded and acted on as a
writ of certiorari and as if duly presented to the Supreme Court at the
the appeal was taken.
28 U.S.C.A. No. 2103
Pa. v. Ed. of Dir.
of City Trust of Phila.
353 U.S. 230.
WESLEY R. ASINOF
Counsel for Appellant
34.24 First Nat. Bank Bldg.
Atlanta, Ga. 30303