Evans Theatre Corp. v. Slaton

CourtGeorgia Supreme Court
Writing for the CourtMOBLEY
Citation227 Ga. 377,180 S.E.2d 712
Decision Date04 March 1971
PartiesEVANS THEATRE CORPORATION et al. v. Lewis R. SLATON. No 26249.

Page 712

180 S.E.2d 712
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 * * *' Code Ann. § 26-2101.

At the hearing the trial judge viewed the film before making his finding that it was obscene. Counsel for appellants have made the film available for our viewing of it, and we have done this.

The film was produced in Sweden. It shows a young Swedish woman questioning the social, political, and moral values of her own country and other countries. She meets a young man and immediately engages in sexual intercourse with him. In extended scenes the young woman and her sex partner are shown completely nude and, in the course of the film, they engage in numerous acts of sexual intercourse, natural, unnatural, bizarre, and violent. In a dream fantasy the young woman murders and castrates her sex partner. All of these scenes are explicit.

Appellants urge that the two expert witnesses testifying in their behalf explained that the film's main or dominant appeal is to social, political, and moral issues, and that the scenes portraying sexual activity were essential to, and integrated with, the film's main political and moral themes, and do not exceed the standards embodied in other films and books being shown in the country

Appellants contend that the failure of appellees to introduce any evidence of community standards to determine the question of obscenity requires a reversal of the judgment finding the film obscene, and cite Hudson v. United States, 234 A.2d 903, a case in the District of Columbia Court of Appeals, in which a criminal conviction was reversed because the Government offered no evidence of community standards prevailing in the nation generally. We are, of course, not bound by that decision.

In Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793, in an opinion concurred in by two Justices of the...

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29 practice notes
  • State v. Epic Tech, LLC, 1180675, 1180794
    • United States
    • Supreme Court of Alabama
    • 25 Septiembre 2020
    ...the maintenance of that nuisance may also be a violation of the criminal law. Ridge v. State, supra ; Evans Theatre Corporation v. Slaton, 227 Ga. 377, 180 S.E. 2d 712 (1971), cert. denied[,] 404 U.S. 950, 92 S. Ct. 281, 30 L.Ed. 2d 267 (1971)." General Corp. v. State ex rel. Sweeton, 294 A......
  • People ex rel. Busch v. Projection Room Theater
    • United States
    • United States State Supreme Court (California)
    • 1 Junio 1976
    ...260, 261; Cactus Corporation v. State ex rel. Murphy (1971) 14 Ariz.App. 38, 480 P.2d 375; Evans Theatre Corporation v. Slaton (1971) 227 Ga. 377, 180 S.E.2d 712, cert. den. 404 U.S. 950, 92 S.Ct. 281, 30 L.Ed.2d 267; New Rivieria Arts Theatre v. State (1967) 219 Tenn. 652, 412 S.W.2d 890, ......
  • People ex rel. Busch v. Projection Room Theater
    • United States
    • United States State Supreme Court (California)
    • 4 Marzo 1976
    ...260, 261; Cactus Corporation v. State ex rel. Murphy (1971) 14 Ariz.App. 38, 480 P.2d 375; Evans Theater Corporation v. Slaton (1971) 227 Ga. 377, 180 S.E.2d 712, cert. den. 404 U.S. 950, 92 S.Ct. 281, 30 L.Ed.2d 267; New Rivieria Arts Theatre v. State (1967) 219 Tenn. 652, 412 S.W.2d 890, ......
  • People v. Mature Enterprises, Inc.
    • United States
    • New York City Court
    • 1 Marzo 1973
    ...401 U.S. 480, 91 S.Ct. 966, 28 L.Ed.2d 205 (1971), supra. Convictions were also obtained in Georgia (Evans Page 922 Theatre v. Slaton, 227 Ga. 377, 180 S.E.2d 712 (1971), cert. den., 404 U.S. 950, 92 S.Ct. 281, 30 L.Ed.2d 267); Missouri (Hoffman v. Dickinson Operating Co., 468 S.W.2d 26); O......
  • Request a trial to view additional results
29 cases
  • State v. Epic Tech, LLC, 1180675, 1180794
    • United States
    • Supreme Court of Alabama
    • 25 Septiembre 2020
    ...the maintenance of that nuisance may also be a violation of the criminal law. Ridge v. State, supra ; Evans Theatre Corporation v. Slaton, 227 Ga. 377, 180 S.E. 2d 712 (1971), cert. denied[,] 404 U.S. 950, 92 S. Ct. 281, 30 L.Ed. 2d 267 (1971)." General Corp. v. State ex rel. Sweeton, 294 A......
  • People ex rel. Busch v. Projection Room Theater
    • United States
    • United States State Supreme Court (California)
    • 1 Junio 1976
    ...260, 261; Cactus Corporation v. State ex rel. Murphy (1971) 14 Ariz.App. 38, 480 P.2d 375; Evans Theatre Corporation v. Slaton (1971) 227 Ga. 377, 180 S.E.2d 712, cert. den. 404 U.S. 950, 92 S.Ct. 281, 30 L.Ed.2d 267; New Rivieria Arts Theatre v. State (1967) 219 Tenn. 652, 412 S.W.2d 890, ......
  • People ex rel. Busch v. Projection Room Theater
    • United States
    • United States State Supreme Court (California)
    • 4 Marzo 1976
    ...260, 261; Cactus Corporation v. State ex rel. Murphy (1971) 14 Ariz.App. 38, 480 P.2d 375; Evans Theater Corporation v. Slaton (1971) 227 Ga. 377, 180 S.E.2d 712, cert. den. 404 U.S. 950, 92 S.Ct. 281, 30 L.Ed.2d 267; New Rivieria Arts Theatre v. State (1967) 219 Tenn. 652, 412 S.W.2d 890, ......
  • People v. Mature Enterprises, Inc.
    • United States
    • New York City Court
    • 1 Marzo 1973
    ...401 U.S. 480, 91 S.Ct. 966, 28 L.Ed.2d 205 (1971), supra. Convictions were also obtained in Georgia (Evans Page 922 Theatre v. Slaton, 227 Ga. 377, 180 S.E.2d 712 (1971), cert. den., 404 U.S. 950, 92 S.Ct. 281, 30 L.Ed.2d 267); Missouri (Hoffman v. Dickinson Operating Co., 468 S.W.2d 26); O......
  • Request a trial to view additional results

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