Allen v. State, 54502
| Decision Date | 17 November 1977 |
| Docket Number | No. 1,No. 54502,54502,1 |
| Citation | 240 S.E.2d 754,144 Ga.App. 233 |
| Parties | Edna ALLEN et al. v. The STATE |
| Court | Georgia Court of Appeals |
Glenn Zell, Atlanta, for appellants.
Hinson McAuliffe, Sol., Richard E. Stark, Asst. Sol., Atlanta, for appellee.
Pursuant to a search warrant obtained on an affidavit based on actual viewing by the affiant police officer, two movies, "Cheryl Surrenders" and "Sex Before Marriage," which were being exhibited at an Atlanta theater, were seized. The defendants, the ticket taker and projectionist, respectively, were arrested. They were charged in separate accusations of two counts each of distributing obscene materials in violation of Code § 26-2101. A jury convicted defendants and sentence was imposed. In a joint appeal, no issue as to the obscene nature of the materials has been raised. Held :
1. Denial of defendants' pre-trial motion to suppress the evidence on the basis of unlawful search and seizure was correct. The record shows that the warrant issued on a showing of probable cause before a neutral and detached magistrate. The state carried its burden that the search and seizure of the film was lawful.
2. Defendants were accused in separate accusations of the same identical offenses which were consolidated for trial. Their motions for severance were denied. Defendants, in support of their contention that they were entitled to a severance, rely on our decision in State v. Connelly, 138 Ga.App. 121, 225 S.E.2d 519. There, it was held that if a defendant was indicted separately for a jointly committed crime he has a right to a separate trial, unless he waives it, even though the offense was jointly committed. Bonner v. State, 140 Ga.App. 314, 231 S.E.2d 120, reached a different and conflicting result, viz., joint or separate trials of a joint offense is matter that rests within the sound discretion of the trial court. The Supreme Court has resolved any conflict in our holdings when it held in Padgett v. State,239 Ga. 556, 238 S.E.2d 92, that when two or more defendants are charged with different offenses, they may be tried jointly where the offenses were part of a common scheme or plan; and if a joint trial does not prevent or hinder a fair determination of each defendant's guilt, there is no abuse of discretion in denying severance. Here, we do not have different offenses but the same identical crimes provable by the same evidence in which one defendant aided and abetted the other in its commission. See Division (3) infra. The facts of this case fall within the rationale of Padgett. Thus the grant or denial of severance was a discretionary matter and we find no abuse. As State v. Connelly, supra, conflicts with the Supreme Court's decision in Padgett, it cannot be followed.
3. The defendant Allen contends that the evidence is legally insufficient as to her as it failed to show that she had any control over the film and also...
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...it into a jail term solely because the defendant is indigent.' " Accordingly, I would reverse the judgment. 1. Allen v. State, 144 Ga.App. 233, 240 S.E.2d 754 (1977), cert. denied, 439 U.S. 899, 99 S.Ct. 264, 58 L.Ed.2d 247 (1978); Wood v. State, 144 Ga.App. 236, 240 S.E.2d 743 (1977), cert......
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Showcase Cinemas, Inc. v. State, 60241
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