Gornto v. State, 26166

• Decision Date: 03 December 1970
• Docket Number: No. 26166,26166
• Citation: 227 Ga. 46,178 S.E.2d 894
• Parties: Annie C. GORNTO v. The STATE.
• Court: Georgia Supreme Court

Page 894

178 S.E.2d 894

227 Ga. 46

Annie C. GORNTO v. The STATE.

No. 26166.

Supreme Court of Georgia.

Dec. 3, 1970.

Syllabus by the Court

The judgment sentencing appellant for the offense of distributing obscene materials is not erroneous for any reason urged.

This is an appeal from a conviction, in the State Court of Glynn County, of the offense of distributing obscene materials, Code Ann. § 26-2101 (Ga.L.1968, pp. 1249, 1302), which provides in part as follows: '(a) A person commits the offense of distributing obscene materials when he sells, lends, rents, leases, gives, advertises, publishes, exhibits or otherwise disseminates to any person any obscene materials of any description, knowing the obscene nature thereof, or who offers to do so, or who posssesses such material with the intent so to do. (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 utterly without redeeming social value and if, in addition, it goes substantially beyond customary limits of candor in describing or representing such matters. Undeveloped photographs, molds, printing plates and the like shall be deemed obscene notwithstanding that processing or other acts may be required to make the obscenity patent or to disseminate it. (c) Material, not otherwise obscene, may be deemed obscene under this section if the distribution thereof, or the offer to do so, or the possession with the intent to do so is a commercial exploitation of erotica solely for the sake of their prurient appeal.'

Haas, Holland, Freeman, Levison & Gibert, Atlanta, Jack S. Hutto, Brunswick, for appellant.

Terrence Nichols, Sol., William R. Killian, Brunswick, for appellee.

FELTON, Justice.

1. Code Ann. § 26-2101 is not violative of the First and Fourteenth Amendments of the United States Constitution on the ground of vagueness. Gable v. Jenkins, 309 F.Supp. 998(4) (N.D.Ga.1969); affirmed, Gable v. Jenkins, 397 U.S. 592, 90 S.Ct. 1351, 25 L.Ed.2d 595. Enumerated error 1 is without merit.

2. Code Ann. § 26-2101, supra, is not violative of the First, Fourth, Fifth, Ninth and Fourteenth Amendments of the United States Constitution on the ground that the constitutional right to mere possession of obscene material, recognized in Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542, necessarily implies the right to purchase such material and, hence, the right of others, including appellant, to distribute it. In the Stanley case, supra, pp. 567-568, 89 S.Ct. 1243, the Supreme Court specifically negated any relationship of interdependence between the States' recognized broad power to regulate the public distribution of obscenity, and the mere possession of such material by the individual in the privacy of his home, to which the States' power does not extend. See also, Gable v. Jenkins, supra, 309 F.Supp. 998, 1000(5). Enumerated error 2 is without merit.

3. 'There is no necessity for an adversary hearing on the question of obscenity of publications prior to the institution of a criminal action...