Dyke v. State

• Decision Date: 24 September 1974
• Docket Number: No. 29011,29011
• Citation: 209 S.E.2d 166,232 Ga. 817
• Parties: Edward H. DYKE v. The STATE.
• Court: Georgia Supreme Court

Page 166

209 S.E.2d 166

232 Ga. 817

Edward H. DYKE v. The STATE.

No. 29011.

Supreme Court of Georgia.

Sept. 24, 1974.

Gilbert H. Deitch, Altanta, Robert Eugene Smith, Baltimore, Md., for appellant.

Hinson McAuliffe, Sol., Thomas R. Moran, Jr., Asst. Sol., Atlanta, for appellee.

Syllabus Opinion by the Court

INGRAM, Justice.

We review in this case appellant's conviction in the Criminal Court of Fulton County on two counts of exibiting obscene material in violation of Code Ann. § 26-2101. Categorically, the appeal deals with three areas of enumerated trial error: (1) the overruling of appellant's motion to dismiss the two-count accusation; (2) the sufficiency of the evidence; and (3) various rulings by the court during the trial, including the correctness of the jury instructions. Each of the alleged errors in these categories will be examined in this opinion.

The case arose as a result of a visit made on October 23, 1973, by a Fulton County investigator to the Festival Cinema Theatre in Atlanta to view a film entitled 'Devil in Miss Jones.' After purchasing a ticket and seeing the movie, the investigator presented an affidavit to a judge in Fulton County and obtained a warrant to search the theatre premises and seize the film. On the following day, the investigator returned to the theatre with two Atlanta policemen and after they viewed the film, the warrant was served and several employees of the theatre were arrested. Appellant was at a counter in the lobby and the officers first asked him who was the manager of the theatre. Appellant replied that he was the manager and the investigator then identified himself and arrested appellant and two other employees. A commitment hearing was held on November 2, 1973, and as a result of that hearing appellant was bound over for trial. Three days later, the same investigator returned to the theatre and again viewed the same film being exhibited there. A second warrant was obtained on another affidavit by the investigator and commitment hearing was waived on it. Thereafter, a two-count accusation was drawn charging appellant with exhibiting obscene material on these two separate dates and the case went to trial before a judge and jury. At the trial, the state presented oral evidence from the investigator, including testimony that appellant was present on each occasion when the film was shown. The state also exhibited the film to the jury. Appellant presented the testimony of a clinical psychologist regarding the nature of the film and its social value. After receiving instructions from the trial judge, the jury returned a verdict of 'guilty' on both counts and appellant received a sentence of 12 months and a $1,000 fine on each count, to be served consecutively.

I.

Motion to Dismiss.

Appellant argues that Code Ann. § 26-2101, the obscenity statute under which he was convicted, is too vague and overly broad to withstand the constitutional attacks made on it in this case and that his conviction is a denial of due process of law. It is also argued that the accusation is fatally defective because it did not specify the requisite elements of the offense with which appellant was charged.

Appellant acknowledges the decision of this court in Slaton v. Paris Adult Theatre I, 231 Ga. 312, 201 S.E.2d 456 (decided October 30, 1973), but argues that the construction given the obscenity statute in that case is erroneous because the statute fails to give fair warning that criminal liability under it is dependent upon standards announced by the U.S. Supreme Court in Miller ¹ after the Georgia statute was written.

All of these well reasoned arguments were made on behalf of appellant in his counsel's brief filed in this court on June 30, 1974. Four days later, the U.S. Supreme Court decided the case of Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590, approving the application of a pre-Miller federal mailing statute to post-Miller defendants. Although the Miller obscenity standards were not spelled out in this federal statute, the Court there rejected the same argument urged here by appellant and in doing so, stated: '. . . the language of Roth ² was repeated in Miller along with a description of the types of material which could constitutionally be proscribed and the adjuration that such statutory proscriptions be made explicit either by their own language or by a judicial construction . . .' Id., p. 2906.

We pointed out in Paris Adult Theatre I, supra, 'that the Georgia statutory definition (of obscenity) has been previously suthoritatively construed by this court to include those standards for obscenity as permitted by Miller.' 231 Ga. 312, 316, 201 S.E.2d 456, 459. We also cited several case examples where this court has defined obscenity, within the meaning of this statute, in substantially the same descriptive language used by the Supreme Court in Miller. This list of case examples was not intended to be exhaustive, but merely to illustrate that obscenity under the Georgia statute had been previously construed in a manner consistent with the new Miller standards. Therefore, the public generally, including commercial exhibitors of films, had been given fair warning because the descriptive language used in Miller contained similar descriptions of obscene materials.

More importantly, all of appellant's constitutional arguments in this case must fail for the reason that on July 25, 1974, the U.S. Supreme Court denied certiorari in Paris Adult Theatre I v. Slaton, -- U.S. --, 94 S.Ct. 3227, 41 L.Ed.2d 1173, after consideration by the court of remarkably similar constitutional attacks made on the Georgia obscenity statute for vagueness and overbreadth, and also for alleged denial of due process resulting from this court's previous construction of the obscenity statute in the Paris Adult Theatre case. This removed the constitutional challenge to the present obscenity statute in Georgia and further discussion of these same issues would be pointless.

We turn next to appellant's contention that the accusation under which he was tried is fatally defective, as it failed to allege the requisite elements of the offense, i.e., the specific standards for judging obscenity set forth in Miller, supra. As noted by the Supreme Court in Hamling,supra, 'the various component parts of the constitutional definition of obscenity need not be alleged in the (accusation) in order to establish its sufficiency . . .' 94 S.Ct. 2887, 2908. The language used in the present accusation described the offense in the language of the statute and contained the same construction approved by this court in Paris Adult Theatre I, supra. We cannot agree that it is defective as it adequately alleges the offense with which appellant was charged in each count. See Code Ann. § 27-701.

II.

Sufficiency of the Evidence.

Appellant contends that the evidence is insufficient to sustain a finding that the film is obscene and that the evidence fails to prove he had any control over the showing of the film or knowledge of its content.

Appellant argues that this film is not merely a 'stag film,' but is a full length film with a continuous story line, an attempt at innovative lighting, and that a moral can be gleaned from viewing it. Therefore, appellant asserts, the film is not 'utterly without redeeming social value,' one of the tests still required in Georgia to find obscenity. Appellant argues that the film has at least a modicum of social value since it goes beyond a mere 'pretense,' and appellant relies on United Artists Corp. v. Gladwell, 373 F.Supp. 247 (S.D.Ohio, 1974), and United States v. Language of Love, 432 F.2d 705 (2d Cir. 1970), to conclude that under the evidence in this case, including the testimony of the clinical psychologist, this film is not obscene.

We are not bound to approve the jury's finding that this film is obscene, since it is clear the United States Supreme Court has determined that an independent appellate review must be made of the material to decide the constitutional fact of obscenity. Jenkins v. Georgia, 418 U.S. 153, 94 S.Ct. 2750, 41 L.Ed.2d 640 (1974); see also United States v. Groner, 479 F.2d 577 (5th Cir. 1973), and Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964). We have discharged this constitutional duty by an en banc review of this film, 'Devil in Miss Jones.' Each member of this court concludes from viewing the film that it is rank, hard core pornography. The conduct of the film actors includes individual and group sexual acts of intercourse, fellatio, and cunnilingus. The film is primarily devoted to scenes depicting bizarre acts of both natural and aberrational sexual conduct that are not necessary to describe in further detail here. During these scenes, the camera focuses primarily upon the actors' genitals which are displayed in a lewd manner. The majority of the scenes depict sexual activity and they appear to exist solely for their own lewd and lascivious purpose and add no other discernible meaning to the film. The so-called plot which appellant urges is accomplished by the placing of a brief backdrop in the initial scene of the film which shows a woman committing suicide for which she is to be sent to hell. However, she is permitted to return to earth to lead a life consumed with lust while awaiting the devil's call to go to hell. This woman, who is 'Miss Jones,' then indulges in every conceivable sexual perversion which she can devise until her time on earth is ended. The rather brief opening scene is followed by the major portion of the film which is devoted to a variety of sexual experiences. In the final scene, Miss Jones is summoned by he devil and doomed to spend infinity with a deranged male completely uninterested in her voracious sexual appetite.

It is our view that an otherwise obscene film cannot be constitutionally salvaged by adding to it a vague moral which is superimposed on the predominant theme...