180 S.E.2d 712 (Ga. 1971), 26249, Evans Theatre Corp. v. Slaton

Docket Nº:26249.
Citation:180 S.E.2d 712, 227 Ga. 377
Opinion Judge:MOBLEY, Presiding Justice.
Party Name:EVANS THEATRE CORPORATION et al. v. Lewis R. SLATON.
Attorney:Albert M. Horn, Glenn Zell, Margie Pitts Hames, Atlanta, for appellants. Lewis R. Slaton, Dist. Atty., Hinson McAuliffe, Sol. Gen., Thomas E. Moran, Frank A. Bowers, Atlanta, Keating, Clancy, Bertsch & Johnston, Cleveland, Ohio, for appellee.
Case Date:March 04, 1971
Court:Supreme Court of Georgia
 
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Page 712

180 S.E.2d 712 (Ga. 1971)

227 Ga. 377

EVANS THEATRE CORPORATION et al.

v.

Lewis R. SLATON.

No. 26249.

Supreme Court of Georgia.

March 4, 1971

Rehearing Denied March 18, 1971.

Page 713

Syllabus by the Court

1. The trial court did not err in finding the film 'I Am Curious (Yellow)' to be obscene.

2. The courts of this State are not estopped from finding a film obscene because of a holding by the United States Court of Appeals, Second Circuit that the same film is not obscene.

3. The State has an interest in the welfare, peace, and good order of its citizens and communities, and may in a proper case maintain an action at the instance of the district attorney to enjoin an existing or threatened nuisance, even though the nuisance constitutes a crime punishable under the criminal laws.

4, 5. The injunction in the present case must be considered as an interlocutory one, and the obsecene material can not be destroyed as contraband at the interlocutory stage.

6. The trial judge did not abuse his discretion in denying a continuance to appellants.

7. It is a crime under our criminal law (Code Ann. § 26-2101) to exhibit an obscene film to the public even though minors are not invited to view it.

Albert M. Horn, Glenn Zell, Margie Pitts Hames, Atlanta, for appellants.

Lewis R. Slaton, Dist. Atty., Hinson McAuliffe, Sol. Gen., Thomas E. Moran, Frank A. Bowers, Atlanta, Keating, Clancy, Bertsch & Johnston, Cleveland, Ohio, for appellee.

MOBLEY, Presiding Justice.

Lewis R. Slaton, District Attorney of the Atlanta Judicial Circuit, and Hinson McAuliffe, Solicitor General of the Criminal Court of Fulton County, brought a complaint in Fulton[227 Ga. 378] Superior Court against Evans Theatre Corporation, operator of Loew's Grand Theatre, a motion picture theater in Atlanta, and Marion Smith and John Herbert, managers of the corporation, alleging that defendants have advertised in the local papers the showing of a film, 'I Am Curious (Yellow),' which is obscene within the definition of obscene materials in Code Ann. § 26-2101 (Ga.L.1968, pp. 1249, 1302), and its exhibition is prohibited by that section. Plaintiffs demanded that rule nisi issue, the film be declared obscene and subject to seizure, and defendants be temporarily and permanently enjoined from exhibiting the film within the jurisdiction of the court.

After a hearing, the trial judge held that the film 'I Am Curious (Yellow)' is obscene and subject to seizure. It was ordered that all copies in the possession of defendants be seized, and that defendants, their associates, agents, and employees, be restrained and enjoined from distributing, exhibiting, or otherwise showing the film in any theater or other place where the public is permitted within the jurisdiction of the court.

Defendants filed an appeal from this judgment, making the following enumerations of error: The court erred (1) in finding and holding the film 'I Am Curious (Yellow)' to be obscene; (2) in enjoining appellants from showing or exhibiting the film; (3) in ordering the film seized as contraband; (4) in proceeding with the complaint in the absence of statutory standards, provision for jury trial, and other constitutional safeguards; (5) in refusing a continuance to appellants where the complaint was unverified and no showing of urgency was made; (6) in not holding that the State was estopped or precluded from prosecuting the complaint because of the Federal Court of Appeals (404 F.2d 196) holding the film not to be obscene; and (7) in finding and holding that Code Ann. § 26-2101 extends to the exhibiting of an alleged obscene film to consenting adults.

1. The first error enumerated is the finding that the film is obscene.

Page 714

The General Assembly has defined obscene material as follows: '* * * (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 [227 Ga. 379] utterly without redeeming social value and if, in addition, it goes substantially beyond customary limits of candor in describing or representing such matters...

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