IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1968
No. 293
ROBERT
ELI STANLEY,
Appellant,
-VS-
THE STATE OF GEORGIA, Appellee.
JURISDICTIONAL STATEMENT
WESLEY
R. ASINOF
Counsellor Appellant
3424 First National Bank Building
Atlanta, Georgia 30303
TABLE OF CASES....
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.
QUESTIONS PRESENTED BY THE APPEAL
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.
CONCISE STATEMENT OF THE CASE
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.
The reason why this question is so substantial as to require plenary consideration is that the Georgia statute permits a conviction for possessing obscene articles “if the defendant should reasonably have known of the obscene nature of said matter" and thus deprives the accused of his liberty even though he has no actual knowledge that it is obscene. Such statute thus places every citizen in jeopardy of punishment by the State for possessing matter of which he may not have actual knowledge, or for believing, as he has a right to under the freedom of press clause of the First Amendment, that in his opinion it is not obscene.
Such question is also so substantial as to require plenary consideration because it deprives a citizen of the right given by the First Amendment to judge for himself, if he so chooses, as to what photographs, writings or books he may possess in the privacy of his own home.
The case believed to sustain the jurisdiction of this court on this ground is Smith v. California, 361 U. S. 147
It was recognized in the Smith case that in other types of offenses, such as food and drug legislation, "the public interest in the purity of its food is so great as to warrant the imposition of the highest standard of care on distributors - in fact an absolute standard which will not hear the distributor's plea as to the amount of care he has used." However, the distinction was made because "there is not specific constitutional inhibition against making the distributors of food the strictest censors of their merchandise, but the constitutional guarantees of the freedom of speech and of the press stand in the way of imposing a similar requirement on the bookseller."
The United States Supreme Court there held that "by dispensing with any requirement of knowledge of the contents of the book on the part of the seller, the ordinance tends to impose a severe limitation on the public's access to constitutionally protected matter."
If the State is prohibited, by the First and Fourteenth Amendments, from removing the element of scienter from the offense of selling or pandering obscene material, and is thus prohibited from punishing a bookseller for selling an obscene book where such seller has no actual knowledge of its contents, may the States prescribe any less a standard against those who are not charged with pandering, selling or distributing, but merely possessing the same material? To put the matter in converse, are the States to be prohibited from convicting a seller who has no knowledge of the contents of the book he is selling, but may the same State convict such seller of possessing the same book, even though he was without the same knowledge?
The indictment in this case charges the appellant with knowingly possessing obscene matter. It further charges that he should reasonably have known of the obscene nature of said matter. If he has been called upon to defend his actual knowledge that is one thing. If he has been called upon to defend that he should reasonably have known of the obscene nature of said matter that is another. If the State is able, by some sort of proof, direct or circumstantial, to show that the appellant should reasonably have known of the obscene nature of said matter, such proof could be adduced far short of proving the he actually did know. This removed the element of scienter, and thus took from the appellant the constitutional protection of the First and Fourteenth Amendments.
It would be virtually impossible for any person to have either actual knowledge that any matter is obscene, or could reasonably be expected to have such knowledge, without having actually or constructively possessed such matter beforehand. For an individual to have knowledge of the contents of a reel of film, or to reach a determination of his own that it is obscene, can be arrived at in only two ways. First, by viewing the film. Second, by having been told by another person that in his opinion it is obscene. Thus, in order to learn firsthand it would be necessary that one possess the film in order to see it and thus discover for himself his own opinion of its contents. To obtain the opinion of another that such film is obscene is to be deprived of the constitutional right to access of such picture, and thus be deprived of freedom of speech and press. Furthermore, the opinion of one man that a certain film is obscene may oftentimes not be shared by others. Consequently, in order for one to have knowledge of the contents of a film, or to make a determination for himself that it is obscene, necessarily requires its possession, and such possession has been made an offense under Georgia law.
Therefore, if A picks up a book at a newsstand or library, not knowing of its contents, he is in possession of it. If he reads it, in order to make a determination that it is actually constitutionally protected matter, and after reading it learns that it is obscene, he has violated the Georgia law because he has possessed it at the time he knows it to be obscene. Such a law is obviously unconstitutional, and cannot stand. If he should only have reasonably known of the obscene nature of said matter, instead of actually having such firsthand knowledge, the unconstitutionality of such statute is further removed by one more degree.
On May 8, 1967, the United States Supreme Court decided three different cases at one time. Redrup v. State of New York, Austin v. Kentucky, and Gent v. State of Arkansas, 386 U. S. 767, 87 S. Ct., 1414, Nos. 3, 16 and 50, October Term, 1966. All three cases involved selling and offering obscene literature. All three cases were reversed on First and Fourteenth Amendment grounds. In percuriam decision, the Supreme Court held:
In the case at bar, the State has sought and is seeking, to deprive the appellant of his liberty upon the mere claim that he possessed, (apparently for his own use) three reels of film, contended by the State to be obscene, and that he either knew, or reasonably should have known, that they were obscene. No sale is alleged. No exhibition or attempted exhibition is alleged. No advertisement is alleged. No corruption of minors is alleged. No transportation is alleged. In fact, nothing is alleged to have been done by the appellant other than the fact that he did "possess" such matter.
The statute offends the Federal Constitution, and must be so declared. The overruling of the general and special demurrer on these grounds was error, and such ruling should be reversed.
2.
The next question presented by this appeal is also substantial in that at the time the warrant was issued the Wagering Tax Act was being enforced under the authority of United States v. Kahriger 345 U. S. 22 and Lewis v. United States 348 U. S. 419 holding the statute to be constitutional.
The warrant was issued by the U. S. Commissioner on the probable belief that a lottery or wagering operation was being carried on at the residence of the appellant, and that inasmuch as sworn evidence was presented that appellant had not registered or paid his tax as purportedly required by federal law, a warrant should issue to require the seizure of such implements of gambling as might be found in use there.
On the 7th day of September 1966, the date the warrant was issued and executed, the federal wagering tax act was being enforced.
However, as of this date of writing this jurisdictional statement both Kahriger and Lewis have been specifically overruled by the Supreme Court.
On January 29, 1968, two weeks after the appellant filed his original brief and enumeration of errors in the Georgia Supreme Court in this case, in the case of
If, in the instant case, the Agent had seized wagering material as a result of the execution of the search warrant, a conviction based thereon would have fallen for the same reasons as those urged in Marchetti and Grosso) on the theory that appellant would not have been required to criminate himself by registering.
If, applying this same analogy to the validity of the search warrant, the appellant had registered as a gambler and paid his tax, there never would have been federal grounds for the issuance of the search warrant because he would obviously not have violated the federal statute by conducting a wagering operation. Consequently, having the constitutional right to exercise his Fifth Amendment protection by not registering as a gambler bars that same failure to register from being the basis for which a search warrant (the commencement of a prosecution) might validly issue.
The search warrant was therefore void, the seizure of the films were illegal, the finding of the trial court that as a matter of law the warrant was valid and the holding of the Georgia Supreme Court in division one of its opinion that the warrant and the search there under were legal, was erroneous under the Fourth and Fourteenth Amendments to the U. S. Constitution.
3.
The search and seizure question, while not an appealable question, is substantial and should be treated as a certiorariable question under 28 U.S.C.A. No. 2103.
Appellant, in his motion to suppress, alleged the films to have been seized "without a lawful warrant."
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
Originally it was recognized by the Supreme Court of the United States in Wolf v. people of State of Colorado, (1949), 338 U.S. 25, that "in a prosecution in a State court for a State crime the Fourteenth Amendment does not forbid the admission of evidence obtained by an unreasonable seizure." In Mapp v. Ohio, 367 U.S. 643, (1961), the Supreme Court overturned this theoretical principle of law, declaring that: "Since the Fourth Amendment's right of privacy has been declared enforceable against the States through the Due Process Clause of the Fourteenth Amendment, it is enforceable against them by the same sanction of exclusion as is used against the Federal Government."
On the same day that Mapp was handed down by the Supreme Court the same principle was applied to the statutes of the State of Missouri as they authorized the search for and seizure of materials sought to be declared obscene. In Marcus v. Search Warrants of Property, 367 U. S. 717, the Supreme Court declared the Missouri statute to be in violation of the Due Process clause of the Fourteenth Amendment.
In Marcus, the appellants, owners of a newsstand where numerous books and periodicals had been seized by police officers under a warrant issued by a magistrate, moved to suppress the evidence because the procedures applied (1) "allowed a seizure by police officers 'without notice or any hearing afforded to the movants prior to seizure for the purpose of determining whether or not these publications are obscene,' and (2) because they 'allowed police officers and deputy sheriffs to decide and make a judicial determination after the warrant was issued as to which magazines were obscene and were subject to seizure, impairing movants freedom of speech and publication'." The Supreme Court then determined that the question was "whether the use by Missouri in this case of the search and seizure power to suppress obscene publications involved abuses inimical to protected expression" and noted that the authority given to "police officers under the warrants issued in this case, broadly to seize 'obscene publications,' poses problems not raised by the warrants to seize 'gambling implements' and 'all intoxicating liquors' involved in the cases cited by the Missouri Supreme Court." The Supreme Court, after applying the foregoing principles, held:
In Marcus, the Supreme Court was dealing with even a stronger position insofar as the prosecution was concerned. In Marcus) a search warrant had been obtained in the language of the statute and the complaint authorizing the police officers to seize such magazines as in his view constituted "obscene publications." In the case at bar no warrant had been obtained authorizing even this broad seizing power.
In Marcus, there was in existence a State statute specifically authorizing the issuance of such a warrant, and prescribing the procedure therefore. Such a warrant was obtained. In the case at bar the officer executing the search of the appellant's home did not seize any matter or thing called for by the warrant, but made a decision, ad hoc, that the three reels of film were obscene, without benefit of any prior adjudication by a court or the Literature Commission.
The appellant recognizes that if an officer, executing a valid search warrant, discovers evidence of another and different crime or sees what is known to be contraband, he may make a seizure, even though the warrant does not particularly describe the article being seized. However, as pointed out in the Marcus case, supra, the State court's "assimilation of obscene literature to gambling paraphernalia or other contraband for purposes of search and seizure does not therefore answer the appellants' constitutional claim, but merely restates the issue whether obscenity may be treated in the same way." (Emphasis added.)
In quoting from Speiser v. Randall) 357 U.S. 513, the Supreme Court reiterated in Marcus that "The line between speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed, or punished is finely drawn. The separation of legitimate from illegitimate speech calls for sensitive tools."
It is to be plainly noted in this case at bar that the officer, after discovering the three reels of film and making an inspection thereof, did not seek to enlist the aid of a qualified magistrate to make oath to him what he had seen, and to secure an adjudication by such magistrate that the films were obscene, so that at least the semblance of judicial authority would have been obtained so as to authorize the seizure of the films. Instead, the officer called the Solicitor General, whose duty it is to prosecute, and was advised to use "his own judgment" as to whether the films were obscene.
At what stage of the proceedings in this case did the films become obscene, so as to remove them from the constitutionally protected realm of the First Amendment, and place them in the unprotected area of "obscenity" as held in Roth v. United States, 354 U.S. 476? Were they obscene when the appellant first came into possession of them, if he ever did? Were they obscene when the officer first viewed them, or when he reported his findings to the Solicitor General? Did they become obscene when the Chairman and members of the Literature Commission viewed them, or did they only become obscene when the jury in this case returned its verdict finding the appellant guilty of possessing obscene articles?
What is obscenity, and how has it been defined by the courts? Did the appellant know that it was obscene before he had himself viewed it? Was the appellant able to apply the same contemporary community standards as those who later testified at the trial in making his determination that the films were obscene? All these questions, and many more, come to mind in now trying to second guess whether the officer, in making such a determination, was applying the same standards and criteria as to those in which the appellant was asked when the films were seized.
The appellant urges that inasmuch as such a thin line exists between obscenity and non-obscenity that no one article is either all white or all black, so that a mere ministerial officer of the law, engaged in the competitive enterprise of ferreting out crime, may not be authorized to substitute his judgment for that of the appellant and make a determination, on the spot, that the films found in the desk drawer of the appellant's home were to be classified as obscene.
The motion to suppress the films as evidence should have been sustained, and the holding by the Georgia Supreme Court that no question of freedom of speech or of the press is involved is error.
APPENDIX
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.
CONCLUSION
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