Fishman v. State

• Decision Date: 14 March 1973
• Docket Number: No. 47385,Nos. 1,2,3,47385,s. 1
• Citation: 128 Ga.App. 505,197 S.E.2d 467
• Parties: Phillip FISHMAN et al. v. The STATE
• Court: Georgia Court of Appeals

Page 467

197 S.E.2d 467

128 Ga.App. 505

Phillip FISHMAN et al. v. The STATE.

No. 47385.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

March 14, 1973.

Syllabus by the Court

1. It was not error to overrule the motions for directed verdict and new trial on the ground that the material disseminated could not form the basis of a conviction in that it was as a matter of law not obscene in the constitutional sense.

2. Obscenity must be tested by the standards of the national, not the local, community.

3. One not qualified as an expert may not state his conclusory opinion on a question determining the ultimate guilt or innocence of the defendant on trial.

4. It is not a compliance with Code Ann. § 27-1403 to furnish counsel with a list of the witnesses on whose testimony the charges against him were founded only at the moment of calling the case for trial.

5. Certain documents relating to business permits were properly admitted in evidence but may only be considered for the limited purposes mentioned in this division of the opinion.

6. Enumerations of error not likely to recur need not be passed upon.

Fishman, Jernigan and Smith were jointly indicted, tried and convicted on two counts of selling magazines alleged to be obscene under Code Ann. § 26-2101. The proof showed that a movie house known as Paris Adult Theater had a magazine sales counter in the right rear corner of its lobby; that two adult males picked out and purchased one magazine each from the display racks; that the magazines were sold and the money taken by the defendant Smith, and that the defendant Jernigan was present on one occasion and assisted Smith to the extent that he went behind the cash register, showed Smith how to ring up the sale, and computed the tax. Fishman was never shown to have been on the premises or to have any connection with the transaction other than as president of the corporation owning the theater.

After conviction the defendants' motion for new trial was overruled, and the case appealed to the Supreme Court, which has transferred it to this court on the basis that no constitutional question is involved.

D. Freeman Hutton, Atlanta, Robert Eugene Smith, Towson, Md., for appellants.

Ken Stula, Solicitor, Athens, for appellee.

DEEN, Judge.

1. In passing on the obscenity issue, a statement of criteria is in order. First, we construe Code Ann. § 26-2101(b) to be substantially in the language of and to express the meaning of the term as defined in Roth v. United States, 354 U.S. 476, 491-492, 77 S.Ct. 1304, 1 L.Ed.2d 1498. Further, understand Code Ann. § 26-2101(c) to apply the standards enunciated in Ginzburg v. United States, 383 U.S. 463, 86 S.Ct. 942, 16 L.Ed.2d 31; that is, in a close case where there is a valid argument of the existence of some slight social value of a literary, historical, artistic or technical nature, a finding of obscenity will not be made 'even though the book is found to possess the requisite prurient appeal and to be patently offensive' (Memoirs v. Mass., 383 U.S. 413, 419, 86 S.Ct. 975, 978, 16 L.Ed.2d 1) unless there is also clear evidence that the material has passed the threshold of permitted exposure in that its commercial dissemination amounts to pandering, or it is made available to juveniles or it becomes impossible for the unwilling individual to avoid exposure. Cf. Great Speckled Bird of Atlanta v. Stynchcombe, D.C., 298 F.Supp. 1291. It is apparent that material which is utterly mindless, which contains no ideas and raises no connotations whatever except those related to 'raw sex,' which completely lacks all artistry in its pictorial representations and even the minimum standards of stylistic expression or thought in its verbiage, may be held utterly without redeeming social value, whereas other material, although exceeding in candor the standards of acceptability, may nevertheless, by the ideas it expresses, although out of tune with the mainstream of contemporary local thought, have some value which protects it under First Amendment guarantees, and both courts and juries must make an honest effort to distinguish between that which they find personally unacceptable and that which, under any standard, is mawkish trash and verbal or pictorial garbage. Milton, condemning censorship as evil in the Areopagitica, was dealing with ideas, a commodity in which we find State's Exhibit 1 singularly lacking. The written filler is almost meaningless in its lumbering attempts to invoke mental images of extremely basic physical activities. The main effort at prurient appeal is concentrated in the photographs, including a large percentage of anatomical close-ups, of the type described as constitutionally obscene in Miller v. United States, 431 F.2d 655; United States v. 392 Copies, etc., D.C., 253 F.Supp. 485; 4 Cir., 373 F.2d 633; City of Youngstown, v. DeLoreto, 19 Ohio App.2d 267, 251 N.E.2d 491 and State v. Bongiorno, 103 N.J.Super. 515, 247 A.2d 893, these cases drawing the distinction between nudity per se, which is not obscene, and exclusiveness of prurient emphasis which constitutes the subject matter of hard core pornography. Taking these criteria into account, we have no difficulty in upholding the jury verdict finding the material obscene in the constitutional sense. Enumerations of error 1, 20 and 24 are therefore without merit insofar as subject matter is concerned.

2. Enumerations of error 21, 22, 23, 27 and 28 are meritorious in that the case was tried on the theory that the 'community standards' referred to in Code Ann. § 26-2101(b) refer solely to the standards of the local community in which such matter has been exhibited, excluding consideration of community standards of other places. As was correctly held in Feldschneider v. State, 127 Ga.App. 745, 195 S.E.2d 184, Gornto v. State, 227 Ga. 46 (5), 178 S.E.2d 894 must yield to the holdings of the Supreme Court in Jacobellis v. Ohio, 378 U.S. 184(3), 84 S.Ct. 1676, 12 L.Ed.2d 793; Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498; Manual Enterprises, Inc. v. Day, 370 U.S. 478, 82 S.Ct. 1432, 8 L.Ed.2d 639; Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1, and Redrup v. N.Y., 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515, in this regard. Since these cases were written the U.S. Supreme Court has reversed the following convictions in memorandum opinions, simply citing Redrup as authority: Childs v. Oregon, 401 U.S. 1006, 91 S.Ct. 1248, 28 L.Ed.2d 542; Bloss v. Michigan, 402 U.S. 938, 91 S.Ct. 1615, 29 L.Ed.2d 106; Hartstein v. Mo., 404 U.S. 988, 92 S.Ct. 531, 30 L.Ed.2d 539; Wiener v. Cal., 404 U.S. 988, 92 S.Ct. 534, 30 L.Ed.2d 539; Burgin v. South Carolina, 404 U.S. 806, 92 S.Ct. 46, 30 L.Ed.2d 39. The community standards to be applied are those of the national, not the immediate local community.

3. Enumerations of error 5 through 10 complain of allowing Tate Brown, an investigator for the district attorney's office and former employee in the sheriff's office, to testify as to what various photographs in state's Exhibits 1 and 2 depicted that in his personal opinion the material was obscene, that it predominantly appealed to a prurient interest and that he found no redeeming social value in it, along with other similar testimony, over the objection that he had not been qualified by background or training to render such an opinion. We agree that there was no attempt to qualify this witness as an expert, nor did he qualify as one swearing to his opinion and belief, under Code § 38-1708 because he stated no facts on which his opinion was based. The witness' nonexpert testimony of what he thought the pictures in the magazine depicted was irrelevant because the magazines themselves were tendered in evidence and were the best evidence of what they contained. Dobbins v. Blanchard, Humber & Co., 94 Ga. 500(4), 21 S.E. 215. More important, the witness was being asked his mere conclusory opinion as to the ultimate fact the jury was called on to decide, that is, whether the magazines sold were obscene, which was a question for the jury and not the witness to decide. See Akin v. Randolph Motors, Inc., 95 Ga.App. 841(3), 99 S.E.2d 358; Central R. v. DeBray, 71 Ga. 406; Fowler-Flemister Coal Co. v. Evans, 20 Ga.App. 200, 92 S.E. 1010; Bailey v. Ga. R. & C. Co., 32 Ga.App. 793, 124 S.E. 907. Obviously, when one is on trial for a crime, whether or not the conduct proved brings it within the statutory inhibition can never be a mere matter of conclusory opinion, even for a juror who must decide it on the evidence before him, and much less on the opinion of the prosecutor. It was error to allow the witness Brown to express his personal opinion of the obscenity, prurient appeal, and lack of social value of the material. The fact that Brown was asked on cross examination what he understood the meaning of obscenity to be did not open the door to an expression of opinion by him of the ultimate issue of the obscenity of the magazines, and it was error to admit his nonexpert opinion testimony. The testimony of Julius Bishop complained of in enumerations of error 14 through 19 was not subject to the same objections, but, as pointed out above, the inquiry cannot be limited to the standards and tenets of the local as opposed to the national community. The testimony is admissible, the credit to be given it to be for the jury, which should take into consideration any limitations of knowledge on the part of the witness as shown by proper cross examination.

4. The second and third enumerations of error deal with the inability of counsel for the defendants to obtain a list of the State's witnesses until a few moments before the case went on trial. Code § 27-1403, as amended by Ga.L.1966, pp. 430, 431 requires that every person charged with crime 'shall be furnished, on demand, previously to his arraignment, with a copy of the accusation, and a list of the witnesses on whose testimony the charge against him...