Sanders v. State, 29842

Decision Date02 June 1975
Docket NumberNo. 29842,29842
Citation216 S.E.2d 838,234 Ga. 586
PartiesArthur SANDERS, Jr. v. The STATE.
CourtGeorgia Supreme Court

Glenn Zell, Atlanta, for appellant.

Tom Moran, Asst, Solicitor, Atlanta, for appellee.

Syllabus Opinion by the Court

INGRAM, Justice.

The film, 'Deep Throat,' is here for review of the trial court's judgment that it is obscene. This court has viewed the film and considered the enumerations of error. In our judgment, the film is obscene as a matter of law and fact.

Appellant's motion for a trial by a jury of not less than twelve jurors was properly denied by the trial court. Only five jurors are required by statute for the trial of misdemeanor cases in the Criminal Court of Fulton County. See Ga.L.1890-91, Vol. 2, p. 935, as amended by Ga.L.1935, p. 498. The present Constitution authorizes the General Assembly to prescribe any number, not less than five, to constitute a trial jury except in the superior court where twelve jurors are mandatory. See Code Ann. § 2-5101, Const. art. VI, & XVI, par 1.

Appellant also argues that a jury of five persons is 'constitutionally inadequate' because it denies him equal protection of the law. We reject this argument in view of Georgia authority to the contrary. See, McIntyre v. State, 190 Ga. 872(5), 11 S.E.2d 5. The Supreme Court of the United States has not determined what minimum number of jurors can still constitute a 'jury.' In Williams v. Florida, 399 U.S. 78, 92, 90 S.Ct. 1893, 1901, 26 L.Ed.2d 446 (Fn. 28) it is observed 'We have no occasion in this case to determine what minimum number can still constitute a 'jury,' but we do not doubt that six is above that minimum.' Absent a holding by the United States Supreme Court that a five-man jury is constitutionally inadequate, we approve the constitutional minimum of five prescribed by the 1945 Constitution of Georgia for all courts except superior courts.

We find no error for any reason enumerated and argued in this appeal and affirm the trial court. See Dyke v. State, 232 Ga. 817, 209 S.E.2d 166 (cert. denied by U.S. Supreme Court April 28, 1975).

Judgment affirmed.

All the Justices concur, except GUNTER, J., who concurs in the judgment only.

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6 cases
  • Ballew v. Georgia
    • United States
    • United States Supreme Court
    • March 21, 1978
    ...by this Court that a five-person jury was constitutionally inadequate, the Court of Appeals considered itself bound by Sanders v. State, 234 Ga. 586, 216 S.E.2d 838 (1975), cert. denied, 424 U.S. 931, 96 S.Ct. 1145, 47 L.Ed.2d 340 (1976), where the constitutionality of the five-person jury ......
  • Ballew v. State, 51795
    • United States
    • United States Court of Appeals (Georgia)
    • April 6, 1976
    ...by being tried before a five-person jury in the Criminal Court of Fulton County. This contention was ruled upon in Sanders v. State, 234 Ga. 586, 216 S.E.2d 838 (cert. denied by U.S. Supreme Court Feb. 23, 1976, 424 U.S. 931, 96 S.Ct. 1145, 47 L.Ed.2d 340) wherein the Supreme Court said: 'W......
  • Robinson v. State, 54054
    • United States
    • United States Court of Appeals (Georgia)
    • July 7, 1977
    ...constitutionally adequate as prescribed by the 1945 Constitution of Georgia for all courts except superior courts. Sanders v. State, 234 Ga. 586, 587, 216 S.E.2d 838 (1975); Ballew v. State, 138 Ga.App. 530, 535(6), 227 S.E.2d 65 (1976). This enumeration is without 5. In the fifth enumerati......
  • Sanders v. Georgia
    • United States
    • United States Supreme Court
    • February 23, 1976
    ...conduct specifically defined . . . below . . ..' The judgment of conviction was ultimately affirmed by the Georgia Supreme Court, 234 Ga. 586, 216 S.E.2d 838. It is my view that 'at least in the absence of distribution to juveniles or obtrusive exposure to unconsenting adults, the First and......
  • Request a trial to view additional results

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