Feldschneider v. State

• Citation: 127 Ga.App. 745,195 S.E.2d 184
• Decision Date: 15 November 1972
• Docket Number: No. 1,No. 47599,47599,1
• Parties: Stephen FELDSCHNEIDER v. The STATE
• Court: Georgia Court of Appeals

Page 184

195 S.E.2d 184

127 Ga.App. 745

Stephen FELDSCHNEIDER v. The STATE.

No. 47599.

Court of Appeals of Georgia, Division No. 1.

Nov. 15, 1972.

Rehearing Denied Dec. 15, 1972.

Alexander & Jarrard, Alan M. Alexander, Jr., Athens, for appellant.

Ken Stula, Sol., Athens, for appellee.

Syllabus Opinion by the Court

EVANS, Judge.

The defendant was tried and convicted of the offense of distributing obscene materials. He was sentenced to serve 12 months imprisonment at hard labor but was granted probation upon payment of a fine in the amount of $500. The appeal is from the judgment and sentence. Hold:

1. Defendant moved for a directed verdict because the State did not make a showing that, applying contemporary community standards, the predominant appeal of the comic book was to prurient interests and was without redeeming social value.

First of all, while a trial judge may direct a verdict of not guilty in a criminal case, it is never error to fail to do so. Nalley v. State, 11 Ga.App. 15(7), 74 S.E. 567; Bell v. State, 15 Ga.App. 718(2), 84 S.E. 150; Curtis v. State, 28 Ga.App. 219(4), 110 S.E. 907; Johnson v. State, 75 Ga.App. 581(1), 44 S.E.2d 149. It is true the General Assembly of Georgia in 1971 enacted a statute which provides that the trial judge 'may' direct a verdict of acquittal (Ga.L.1971, pp. 460, 461; Code Ann. § 27-1802), but this is simply permissive, not mandatory, and the Act is cumulative of the existing law, as such right already inhered in the trial judge. See Bell v. State, 15 Ga.App. 718(2), 84 S.E. 150, supra. But there was sufficient evidence for a conviction in this case, even though the State did not introduce any witness to testify as to what the contemporary community standards are, and whether the comic book in question offended same; and whether its appeal was to prurient interests, and whether it was without redeeming social value. A jury is entitled to consider as proven certain matters, even without any testimony being introduced. It is provided in Code § 38-102 that 'presumptive evidence consists of inferences drawn by human experience from the connection of cause and effect, and observations of human conduct.' Thus, jurors are entitled to use their own common sense as intelligent human beings on many questions. They most likely knew what 'contemporary community standards' are as regards the comic book in evidence, both in Clarke County and in other parts of the State of Georgia, and of the United States. Each of them doubtless had much knowledge of what is going on in this country through news media, radio, television, newspapers, etc. Shakespeare laid the scene of many of his plays in Italy, though he had never visited that country. Thomas E. Watson wrote 'The Story of France' which is highly regarded by the French people, though he never visited France. It is most likely that the jurors found this book, as I do, offensive, utterly without redeeming social value, published for the purpose of appealing to prurient interest in perversion and degeneracy, and an affront to the contemporary community standards of any community anywhere.

2. Defendant contends the trial judge erred in failing to direct a verdict of not guilty after defendant had offered testimony tending to show that the comic book did not violate the various elements of Code Ann. § 26-2101 (Ga.L.1968, pp. 1249, 1302; 1971 p. 344) as to contemporary community standards, appeal to prurient interests, and being without redeeming social value. But the testimony of such witness, at best, created an issue for determination by the jury on these questions, and did not authorize a directed verdict of not guilty.

3. Defendant enumerates as error the action of the trial court in 'refusing to allow appellant's witness Nordan to testify to community standards other than the local community of Athens, Clarke County, Georgia. The trial court excluded a large portion of this testimony because defendant's counsel sought to elicit same by asking leading questions, and which, of course, the trial judge properly excluded. Thereafter, the witness was allowed to testify as to whether the comic book offended contemporary community standards, not as an expert, but as an individual with the right to express an opinion on the subject. Assuming arguendo that the enumeration of error properly described the action of the trial court to which exception is taken, the witness in effect was allowed to testify under the same rules as an expert. An expert in such cases gives opinion testimony only, which the jury may completely disregard, without rhyme or reason. Code § 38-1710; Ocean Acc. & Guarantee Corp. v. Lane, 64 Ga.App. 149(1), 12 S.E.2d 413.

4. Defendant enumerates as error the trial court's charge in which he limited 'contemporary community standards' to the local community, and excluded consideration of community standards of other places. This is the question that gives us most concern in this case. The two excerpts from the charge to which exception is taken are as follows: '1. The standard to be applied is not what may or may not be obscene in other jurisdictions, but what is acceptable to the local community.' (Emphasis supplied.)

'2. You jurors are taken to represent the average members of your own community, and as triors of facts you are charged with the...