Simpson v. State, 21752

• Decision Date: 01 October 1962
• Docket Number: No. 21752,21752
• Parties: Lonnie SIMPSON et al. v. The STATE.
• Court: Georgia Supreme Court

Page 907

127 S.E.2d 907

218 Ga. 337

Lonnie SIMPSON et al. v. The STATE.

No. 21752.

Supreme Court of Georgia.

Oct. 1, 1962.

Syllabus by the Court.

By exempting radio and television stations, theatres and newspapers from operation of its provisions making criminal the possessing, selling, etc., of obscene materials while subjecting all others so doing to the terms of the law, the statute (Ga.L.1956, p. 801; Code Ann. § 26-6301) offends Art. I, Section I, Par. II of the Constitution (Const. of 1945; Code Ann. § 2-102) in that it denies equal protection, and it was error to overrule the demurrer to the indictment raising this question.

This is a criminal case involving a joint indictment against the accused that they did unlawfully sell and offer to sell and did possess for the purpose of selling at a certain newsstand certain indecent, obscene and immoral pictorial magazines, pamphlets and booklets, tending to debauch the morals, the accused having knowledge of the nature of the contents of said publications; the indictment thereafter setting forth descriptions of said pictures and subject matter contained in the booklets. The indictment is alleged to be an offense of 'violating Sec. 26-6301, Supp.Code of Ga.' Before pleading to the merits of the indictment, the defendants presented their demurrers and plea in abatement. After a hearing thereon the court overruled the same, and the exception is to this judgment, the pleadings having raised certain constitutional attacks upon the statute and the indictment. In particular, one of the constitutional attacks is that the statute upon which the indictment is based is discriminatory in that it violates Art. I, Sec. I, Par. II of the Constitution of Georgia (Code Ann. § 2-102; Const. of 1945) providing that 'Protection to person and property is a paramount duty of government and shall be impartial and complete.'

The case is before this court on review because of the constitutional attacks upon the statute.

Buchanan, Edenfield & Sizemore, Newell Edenfield, Atlanta, for plaintiff in error.

Paul Webb, Sol. Gen., J. Walter Le Craw, Asst. Sol., Atlanta, for defendant in error.

DUCKWORTH, Chief Justice.

While the demurrer attacks the indictment upon many grounds including constitutional attacks upon the statute (Ga.L.1956, p. 801; Code Ann. § 26-6301), a decision on the attack upon the law which asserts that it offends Art. I, Sec. I, Par. II of the Constitution of Georgia (Code Ann. § 2-102) which provides that, 'Protection to person and property is the paramount duty of government, and shall be impartial and complete,' will dispose of the case. The invoked clause of the Constitution interdicts discrimination in laws. It demands uniformity and impartiality and hence, forbids discrimination. But it is well established law by decisions of this court that this clause of the Constitution allows classification by legislation when and only when the basis of such classification bears a direct and real relation to the object or purpose of the legislation, and when thus classified, uniformity upon all those coming within the class satisfies the Constitution. Coy v. Linder, 183 Ga. 583, 189 S.E. 26; Carmichael v. Atlanta Gas-light Co., 185 Ga. 34, 193 S.E. 896; Geele v. State, 202 Ga. 381, 43 S.E.2d 254, 172 A.L.R. 196; The Ledger-Enquirer Co. v. Brown, 213 Ga. 538, 100 S.E.2d 166. To the same effect see 16A C.J.S. Constitutional Law §...