Playmate Cinema, Inc. v. State
| Decision Date | 16 July 1980 |
| Docket Number | No. 59449,59449 |
| Parties | PLAYMATE CINEMA, INC. et al. v. The STATE. |
| Court | Georgia Court of Appeals |
Glenn Zell, Atlanta, for appellants.
Hinson McAuliffe, Sol., Leonard W. Rhodes, George M. Weaver, Asst. Sols., for appellee.
Playmate Cinema, Inc. (hereafter Playmate), Arnold Godfrey and David Papineau were convicted in the State Court of Fulton County of selling obscene material, possessing obscene devices for the stimulation of human genital organs and distributing obscene material.
1. In enumerations of error 1 and 2, Playmate contends its conviction and sentence is not authorized under Georgia law and the trial court erred in denying Playmate's motion for a new trial. We disagree. The state presented evidence which established that the name of the corporation and the Playmate Cinema, where the offenses occurred, were the same; the address of the corporation and the Playmate Cinema were the same; Playmate was incorporated for the purpose of operating a theatre; the annual report and the articles of dissolution of Playmate were signed by appellant Papineau, who was present on the date of the offenses and was manager of Playmate Cinema; Papineau was listed as the registered agent, president and manager of Playmate; and appellant Godfrey testified that Playmate owned the Playmate Cinema. This evidence is more than sufficient to support the findings, and is in accordance with Georgia law. Classic Art Corp. v. State, 245 Ga. 448, 265 S.E.2d 577 (1980).
2. In regard to Enumeration 3, appellants contend that the trial court erred by failing to give a charge on circumstantial evidence, absent request, as the only evidence relating to the element of knowledge of appellants Papineau and Playmate was circumstantial. Appellants base their contention on Nelms v. State, 150 Ga.App. 720, 258 S.E.2d 531 (1979).
The requirement that a charge on circumstantial evidence be given absent a request was first imposed in Hamilton v. State, 96 Ga. 301, 22 S.E. 528 (1895), when the court said: "The failure to give some such instruction, in a close and doubtful case like the present, will entitle the accused to a new trial." Id., at 302, 22 S.E. at 528. In Toler v. State, 107 Ga. 682, 33 S.E. 629 (1899), the Supreme Court followed the rule laid down in Hamilton, supra, and went on to state that this does not mean "that such failure will require a new trial where the guilt of the accused is clearly and convincingly proved, and where the charge of the court as to the amount and character of proof requisite to a lawful conviction is such as to leave no room for doubt that the verdict would have been the same even if the court had . . . stated to the jury the technical rule relating to circumstantial evidence."
In Jones v. State, 105 Ga. 649, 31 S.E. 574 (1898) the court again refused to grant a new trial on the ground that the trial court failed to give a charge on circumstantial evidence, indicating that only if it were a doubtful case, or there was some evidence to rebut an almost conclusive presumption of guilt, would the court reverse.
Next in this long line of cases is McGruder v. State, 213 Ga. 259, 98 S.E.2d 564 (1957), which seems to impose a stricter rule than Hamilton, Toler and Jones, supra, by requiring reversal in all cases where the only proof of an essential element of an offense is by circumstantial evidence and the trial judge fails to charge on circumstantial evidence, even without a request to so charge. This court followed McGruder in the Nelms case, applying the rule strictly. However in Nelms the court recognized that the rule set forth in McGruder applies only in "close or doubtful" cases, citing Germany v. State, 235 Ga. 836(2), 221 S.E.2d 817 (1976) as authority. Germany does, in fact, limit application of the rule, as there the court held that "no new trial is required for failure to charge Code § 38-109 (circumstantial evidence) where the case is not close or doubtful and the charge on reasonable doubt is full and fair." Id. at 843, 221 S.E.2d at 822. Although the rule was reiterated in Williams v. State, 239 Ga. 12, 13(2), 235 S.E.2d 504 (1977), Germany is the last definitive decision on the subject by the Supreme Court of Georgia, and thus it is controlling. Hall v. Hopper, 234 Ga. 625, 216 S.E.2d 839 (1975).
Having shown how this rule evolved and is applied, it is clear why we required reversal in Nelms. Nelms falls in the category of a "close or doubtful" case, and the defendant also presented another reasonable hypothesis save that of his guilt. Thus, in Nelms we did no more than apply the rule first enunciated in Hamilton v. State, supra, in 1895 and we see no reason to disturb that opinion. The instant case does not fall within the ambit of Nelms ; i. e., it is not a close and doubtful case and the evidence fails to suggest any reasonable hypothesis save that of guilt. In fact, appellant Godfrey testified that only one person worked each shift at the theatre, and that person ran the film and handled sales in the store where the magazines and sexual devices were sold; that appellant Papineau was the manager of Playmate and the adult bookstore in the same building housing Playmate; that Papineau came to the theatre and shop daily; that the books and devices were on open display; and that Mr. Papineau worked various shifts. Thus, it is apparent that Papineau ran the films and worked in the adult bookstore where the magazines and sexual devices were on display, and were sold. Further, Papineau was present at the time the films were seized, and was president of Playmate. This review of all the evidence relative to knowledge on the part of Papineau and Playmate shows no other reasonable hypothesis save that of guilt. Accordingly, it was not error for the trial court to omit giving a charge on circumstantial evidence, absent request, and this enumeration is without merit.
3. In Enumeration 4 appellants attack Code Ann. § 26-2101 on the ground that it is unconstitutional. The argument that the statute is vague and overbroad has been decided adversely to appellants in Gornto v. State, 227 Ga. 46(1), 47, 178 S.E.2d 894 (1970) and Sewell v. State, 238 Ga. 495, 233 S.E.2d 187 (1977). Although appellants contend the issue of unconstitutionality because the statute is an invasion of privacy in violation of the...
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