Jenkins v. State

• Decision Date: 02 July 1973
• Docket Number: No. 27692,27692
• Citation: 230 Ga. 726,199 S.E.2d 183
• Parties: Billy JENKINS v. The STATE.
• Court: Georgia Supreme Court

Page 183

199 S.E.2d 183

230 Ga. 726

Billy JENKINS v. The STATE.

No. 27692.

Supreme Court of Georgia.

July 2, 1973.

Syllabus by the Court

The evidence amply supports the verdict of guilty by the showing of the film Carnal Knowledge in violation of the definition of distributing obscene materials under Georgia statutes.

Smith, Gardner, Wiggins, Geer & Brimberry, Peter Zack Geer, Charles F. Hatcher, Albany, for appellant.

Robert Reynolds, Dist. Atty., Albany, Tony H. Hight, Atlanta, for appellee.

JORDAN, Justice.

Billy Jenkins appeals his conviction and sentence for the offense of distributing obscene materials. The conviction is based on the fact that he exhibited the film Garnal Knowledge in a movie theater in Albany, Georgia.

The threshold question to be decided is whether or not the showing of the film Carnal Knowledge violates Code Ann. Ch. 26-21 prohibiting the distribution of obscene materials. The trial jury, under proper instructions from the court, has found the defendant guilty. After a review of the record and a viewing of the film by this court we affirm.

Code Ann. § 26-2101(b) provides that '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.' The accusation charges the defendant 'with the offense of distributing obscene material.' The accusation without expressly referring to Code Ann. § 26-2105 is then cast in the language of the prohibited acts as defined in Code Ann. § 26-2011. The appellant contends that the accusation is defective in that it fails to include the definition of obscene materials as defined in Code Ann. § 26-2101(b). This view is adopted by the minority which seizes upon this alleged defect to hold Code Ann. § 26-2105 unconstitutional.

It is our view that a statute can provide criminal punishment without the definition of obscenity being included within that specific code section. The chapter in which Code Ann. § 26-2105 is included at its very beginning amply defines obscenity and this particular Code section, which is merely a part of the chapter, must be read in accordance with the entire chapter. This court has held that sections of the code which relate to the same subject matter shall be construed together. See Touchton v. Echols County, 211 Ga. 85, 87, 84 S.E.2d 81. It seems clear then that the definition of obscenity as set forth in the chapter applies to all of the code sections dealing with this same question.

The trial court correctly charged this definition of obscenity as the guideline for the jury to apply in this particular case. In Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498, it was held that 'obscenity is not within the area of constitutionally protected freedom of speech or press.' Memoirs v. Mass., 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1, gave a test of obscenity to the effect that it must be established that the dominant theme appeals to prurient interest, the material affronts contemporary community standards, and is utterly without redeeming social value. This test has been included in our law (Code Ann. § 26-2101(b)) thus making our present statute considerably more restrictive than the new test set forth in the recent case of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419. The Miller case, supra, further held that juries can consider State or local community standards in lieu of 'national standards,' thereby bringing the holding of this court in Gornto v. State, 227 Ga. 46, 178 S.E.2d 894 in line with Miller, supra, on this point.

This court has held that the exhibition of an obscene motion picture is a crime involving the welfare of the public at large, since it is contrary to the standards of decency and propriety of the community as a whole. Evans Theatre Corporation v. Slaton, 227 Ga. 377, 180 S.E.2d 712. In Slaton v. Paris Adult Theater I 228 Ga. 343, 185 S.E.2d 768 this court held that the films involved in that case were 'hard core' pornography and that the commercial exhibition of such pictures is not protected by the first amendment. The Supreme Court of the United States which in effect affirmed the Paris case, supra, held that states have a legitimate interest in regulating commerce in obscene material and its exhibition in places of public accommodation, including 'adult' theaters; further holding that the exhibition of obscene material in such places of public accommodation is not protected by any constitutional doctrine of privacy, and that a commercial theater cannot be equated with a private home. See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446.

We hold that the evidence in this record amply supports the verdict of guilty by the showing of the film Carnal Knowledge in violation of the definition of distributing obscene materials under our Georgia statutes.

Judgment affirmed.

All the Justices concur, except UNDERCOFLER, HAWES and GUNTER, JJ., who dissent.

GUNTER, Justice (dissenting).

The majority has today affirmed the criminal conviction of the appellant for showing the motion picture 'Carnal Knowledge' to a theatre audience in Dougherty County, Georgia. The majority has held that the exhibition of this film in this 'local community' is not entitled to the protection of the First Amendment as applied to Georgia and this 'local community' by the Fourteenth Amendment. I am in disagreement with the majority, and I respectfully dissent. Having viewed this film with the other members of the court, I must say, quite subjectively of course, that it is inconceivable to me that this work can be relegated to that area of verbal, written, and performing expression which falls outside of the protection of the First Amendment to the Constitution of the United States. Today's majority decision has drastically narrowed the concept of the First Amendment as applied to the performing arts in Georgia and 'local communities' in Georgia.

I am in disagreement with my brothers of the majority for several reasons, and I shall atempt to set them forth in this dissent.

I.

The decision of the Supreme Court of the United States in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (decided June 21, 1973), inaugurated a new era in the continuing constitutional contest between obscenity-pornography and the First Amendment. As the Miller decision said, the history of the Supreme Court's obscenity decisions has been 'somewhat tortured.' at 20, 93 S.Ct. at 2612. I would go one step further and say that the Supreme Court's decisions in this area, handed down during the recent and relatively short period of the First Amendment's entire history, have made it impossible for a dealer in such material to make a determination, with any degree of certainty, as to whether the material falls within the protection of the First Amendment or falls outside of its protection.

Miller gave a new definition of pornographic, unprotected material; Miller laid down basic guidelines for the trior of fact to use in determining what is protected material from what is unprotected material; Miller changed the yardstick for measuring obscene material from 'national standards' to 'contemporary community standards'; and Miller reiterated that if the application of its definitions, guidelines, and standards does not sufficiently protect First. Amendment rights in any case, then First Amendment values are 'adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary.'

In the case at bar the film 'Carnal Knowledge' was shown by the appellant to a theatre audience in Dougherty County, Georgia; a warrant and accusation were issued against the appellant charging him with having committed a crime by showing the film; and the appellant's trial and conviction by a jury followed. All of this took place in the first four months of 1972, long before the changing of definitions, guidelines, and yardsticks of measurement by the Miller decision rendered June 21, 1973. Yet the Miller criteria have been applied by the majority in this case in affirming the appellant's conviction. That cannot be done, and for the majority to have done it in this case is, in my view, a denial of due process of law to the appellant.

In 1972 the appellant had every legal right to believe that the yardstick that he was to use in distinguishing unprotected from protected material was 'national standards.' The Supreme Court's opinion in Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964), now relegated by Miller to a mere plurality decision, said: 'We thus reaffirm the position taken in Roth to the effect that the constitutional status of an allegedly obscene work must be determined on the basis of a national standard.' Six Justices made up the Jacobellis majority, and not one of them gave the slightest indication that a national standard was not the yardstick to be applied.

Understandably then, appellate court judges or persons dealing in material that might be unprotected legitimately used a national standard yardstick to determine for themselves whether the material was protected or not. In the case of Feld-schneider v. State, 127 Ga.App. 745, p. 749, 195 S.E.2d 184, p. 186 (1972), the Court of Appeals of Georgia said: 'The trial court erred in limiting the meaning of contemporary community standards to 'the local community-to your own community.' If we were allowed to apply and be guided by the recent Gornto case by the Supreme Court of our own state, the trial court's charge would have been correct; but we are controlled by the three recent decisions of the United States Supreme Court, to wit, Jacobellis v. Manual...