Good v. State, No. 47169

CourtUnited States Court of Appeals (Georgia)
Writing for the CourtHALL; BELL; EVANS; PANNELL
Citation127 Ga.App. 775,195 S.E.2d 264
PartiesJoseph R. GOOD, Jr. v. The STATE
Decision Date04 December 1972
Docket Number2,3,No. 47169,Nos. 1

Page 264

195 S.E.2d 264
127 Ga.App. 775
Joseph R. GOOD, Jr.
v.
The STATE.
No. 47169.
Court of Appeals of Georgia, Division Nos. 1, 2, 3.
Dec. 4, 1972.
Rehearing Denied Dec. 20, 1972.

Page 265

[127 Ga.App. 777] Calhoun & Kernaghan, William C. Calhoun, Augusta, for appellant.

R. William Barton, Dist. Atty., Augusta, for appellee.

Syllabus Opinion by the Court

[127 Ga.App. 775] HALL, Presiding Judge.

Defendant theater owner appeals from his conviction for exhibiting obscene motion pictures. His primary enumeration of error is the denial of his motion to suppress the film on the ground of illegal seizure. The State concedes that the seizure was made under the authority of an arrest warrant based only on the affidavit of the District Attorney stating that the films were obscene and that there was no prior adversarial hearing to determine the issue of abscenity.

After some years of confusion in the law, it now appears that a piror adversarial hearing to determine obscenity is not a constitutional prerequisite for seizure of materials as evidence in a criminal prosecution. Milky Way Productions v. Leary, D.C., 305 F.Supp. 288, affirmed 397 U.S. 98, 90 S.Ct. 817, 25 L.Ed.2d 78; United States v. Fragus, 428 F.2d 1211 (5th Cir.); Russ v. Hand, No. 14724, March 1, 1971 (N.D.Ga.). C.f., A Quantity of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809; Marcus v. Search Warrant, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127; Kingsley Books, Inc. v. Brown, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469; Metro Theater v. Slaton, 228 Ga. 102, 184 S.E.2d 144; Walter v. Slaton, 227 Ga. 676, 182 S.E.2d 464; Evans Theater Corp. v. Slaton, 227 Ga. 377, 180 S.E.2d 712, all of which involve condemnation or injunction proceedings.

The test of lawful seizure, then, is whether it was made incident to a lawful arrest or pursuant to a lawful search warrant; and the usual issues, such as probable cause, are involved. Here there was an arrest warrant. The [127 Ga.App. 776] defendant contends that a search warrant was essential. We do not believe the distinction is material in this type of obscenity case. The film was exhibited publicly. There was no 'search' necessary. The issue is whether there was probable cause to believe the film was obscene-the only basis for a criminal prosecution and therefore the only basis for the issuance of an arrest warrant.

A major difficulty in this case is that the sufficiency of the warrant does not appear to have been argued. We have no transcript of the motion to suppress, but based on the contentions made on this appeal, the chief issues were considered to be the necessity for a search warrant and for a prior adversarial hearing. However, a

Page 266

copy of the warrant is in the record. It is clearly insufficient on its face to show probable cause. It merely states the bold conclusion of the affiant District Attorney (who admitted at the trial he had never seen the film) that the defendant had exhibited two named films which were obscene material.

'Admission in evidence of allegedly obscene motion picture films seized under the authority of a warrant issued by a justice of the peace on a police officer's affidavit giving the films' titles, and stating that he had determined from personal observation of the films and of the theatre's billboard that they were obscene, was erroneous, as the issuance of the warrant without the justice of the peace's inquiry into the factual basis for the officer's conclusions fell short of constitutional requirements demanding necessary sensitivity to freedom of expression.' Lee Art Theatre, Inc. v. Virginia, 392 U.S. 636, 88 S.Ct. 2103, 20 L.Ed.2d 1313.

The admission of the film was erroneous and the balance of the evidence cannot save the verdict. Under our Constitution, the test of obscenity is 'whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.' (Emphasis supplied.) Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.ed.2d [127 Ga.App. 777] 1498. We cannot conceive of how a jury could apply the Roth test to a film without having seen it, i.e., make a sophisticated value judgment on the libidinous effect of a visual experience, without having had the experience. The most detailed and apparently objective second-hand oral description could not have the same impact and would necessarily be colored by the effect on the narrator. However, even if we made the dubious assumption that the oral evidence of several witnesses might support a verdict, it could hardly demand one.

The illegal admission of the film itself cannot be held harmless error. In a criminal case, 'before a constitutional error can be held to be harmless, the court must be able to declare its belief that it is harmless beyond a reasonable doubt.' Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. This court cannot say beyond a reasonable doubt that the jury did not base its verdict upon the inadmissible film.

The trial court erred in denying the motion to suppress the film and its admission was not harmless error. In view of this determination, it is unnecessary to consider defendant's other enumerations of error.

Judgment reversed.

BELL, C.J., EBERHARDT, P.J., and CLARK and STOLZ, JJ., concur.

PANNELL, DEEN and QUILLIAN, JJ., dissent.

EVANS, J., not participating.

PANNELL, Judge (dissenting).

The defendant was convicted of exhibiting obscene motion pictures in a theatre operated and controlled by him and he appeals to this court seeking a reversal on a number of grounds relating primarily to the overruling of his motion to suppress the motion picture films seized by the arresting officers, one of which was [127 Ga.App. 778] being exhibited at the time of the arrest, the admission and rejection of evidence, the overruling of demurrers to the indictment, and other grounds.

I find nothing in the briefs or in the record to substantiate the statement in the majority opinion that: 'The State concedes that the seizure was made under...

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4 practice notes
  • Walter v. State, No. 49079
    • United States
    • United States Court of Appeals (Georgia)
    • April 10, 1974
    ...essential. Milky Way Productions v. Leary, D.C., 305 F.Supp. 288, affirmed, 397 U.S. 98, 90 S.Ct. 817, 25 L.Ed.2d 78; Good v. State, 127 Ga.App. 775, 195 S.E.2d 264 and The exhibition of an obscene motion picture is a crime involving the welfare of the public at large, since it is contrary ......
  • Maddox v. State, No. 49957
    • United States
    • United States Court of Appeals (Georgia)
    • January 14, 1975
    ...suppress. In view of this determination, it is unnecessary to consider the defendant's other enumerations of error. See Good v. State, 127 Ga.App. 775, 777, 195 S.E.2d Judgment reversed. PANNELL, P.J., and CLARK, J., concur. ...
  • Lundy v. State, No. 47456
    • United States
    • United States Court of Appeals (Georgia)
    • February 28, 1973
    ...Syllabus Opinion by the Court [128 Ga.App. 327] PER CURIAM. The instant appeal is controlled by the ruling made in Good v. State, 127 Ga.App. 775, 195 S.E.2d Judgment reversed. ...
  • Lowery v. State, No. 50823
    • United States
    • United States Court of Appeals (Georgia)
    • July 15, 1975
    ...Page 133 2. 'In view of this determination, it is unnecessary to consider defendant's other enumerations of error.' Good v. State, 127 Ga.App. 775, 777, 195 S.E.2d 264, Judgment reversed. PANNELL, P.J., and CLARK, J., concur. ...
4 cases
  • Walter v. State, No. 49079
    • United States
    • United States Court of Appeals (Georgia)
    • April 10, 1974
    ...essential. Milky Way Productions v. Leary, D.C., 305 F.Supp. 288, affirmed, 397 U.S. 98, 90 S.Ct. 817, 25 L.Ed.2d 78; Good v. State, 127 Ga.App. 775, 195 S.E.2d 264 and The exhibition of an obscene motion picture is a crime involving the welfare of the public at large, since it is contrary ......
  • Maddox v. State, No. 49957
    • United States
    • United States Court of Appeals (Georgia)
    • January 14, 1975
    ...suppress. In view of this determination, it is unnecessary to consider the defendant's other enumerations of error. See Good v. State, 127 Ga.App. 775, 777, 195 S.E.2d Judgment reversed. PANNELL, P.J., and CLARK, J., concur. ...
  • Lundy v. State, No. 47456
    • United States
    • United States Court of Appeals (Georgia)
    • February 28, 1973
    ...Syllabus Opinion by the Court [128 Ga.App. 327] PER CURIAM. The instant appeal is controlled by the ruling made in Good v. State, 127 Ga.App. 775, 195 S.E.2d Judgment reversed. ...
  • Lowery v. State, No. 50823
    • United States
    • United States Court of Appeals (Georgia)
    • July 15, 1975
    ...Page 133 2. 'In view of this determination, it is unnecessary to consider defendant's other enumerations of error.' Good v. State, 127 Ga.App. 775, 777, 195 S.E.2d 264, Judgment reversed. PANNELL, P.J., and CLARK, J., concur. ...

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