Stanley v. State, 24484

• Decision Date: 09 April 1968
• Docket Number: No. 24484,24484
• Citation: 224 Ga. 259,161 S.E.2d 309
• Parties: Robert Eli STANLEY v. The STATE.
• Court: Georgia Supreme Court

Page 309

161 S.E.2d 309

224 Ga. 259

Robert Eli STANLEY v. The STATE.

No. 24484.

Supreme Court of Georgia.

April 9, 1968.

Rehearing Denied April 22, 1968.

Wesley R. Asinof, Atlanta, for appellant.

Lewis R. Slaton, Sol. Gen., J. Robert Sparks, J. Walter LeCraw, Atlanta, for appellee.

Syllabus Opinion by the Court

FRANKUM, Justice.

Robert E. Stanley was convicted of possessing obscene matter under an indictment framed under the provisions of Code Ann. § 26-6301. He appealed. Jurisdiction of the appeal is in this court by reason of two attacks by demurrer upon the constitutionality of the law under which the defendant was indicted and tried. The demurrer was overruled by the trial court and the appellant enumerates that judgment and other rulings of the court as error. We will deal with the enumerations of error in the order in which they are made.

1. Appellant made a motion to suppress evidence, to wit, the three rolls of motion picture film seized by the officers while conducting a search of the appellant's premises. It appeared that special agents of the intelligence division of the U.S. Internal Revenue Service and an investigator from the Solicitor General's Office of Fulton County, acting under authority of a Federal search warrant issued by the U.S. Commissioner authorizing the search of the defendant's dwelling for certain bookmaking records particularly described in the warrant, while conducting the search discovered three rolls of motion picture film in the bedroom of the defendant, placed said film in a projector, showed said pictures and observed that said films depicted nude men and women engaged in acts of sexual intercourse and sodomy. The investigator seized said films as being contraband obscene matter possessed by the defendant in violation of Code Ann. § 26-6301 and placed the defendant under arrest on that charge. The defendant moved to suppress the evidence on the ground that its seizure violated his constitutional rights in that it was seized under a warrant not specifically describing the thing to be seized, and before this court he relies principally upon the case of Marcus v. Search Warrants, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127. That case is clearly distinguishable from this case. The basis of the decision in that case was that the warrant under which the seizure of the lewd and pornographic material was had was not specific as to any property to be seized and was therefore a void warrant. Thus the search and seizure there was illegal ab initio. In this case it was specifically held by the trial court, in overruling the motion to suppress, that the warrant and the search thereunder were legal, and in so ruling the trial court committed no error. In Georgia 'when the peace officer is in the process of effecting a lawful search,' he may discover or seize 'any stolen or embezzled property, any item, substance, object, thing or matter, the possession of which is unlawful, or any item, substance, object, thing or matter other than the private papers of any person, which is tangible evidence of the commission of a crime against the laws of the State of Georgia.' Ga.L.1966, pp. 567, 568; Code Ann. § 27-303(e). Such seizure as was had in this case has been expressly held not to be a violation of constitutional guarantees either State or Federal. Cash v. State, 222 Ga. 55, 58, 148 S.E.2d 420; Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399; Palmer v. United States, 92 U.S.App.D.C. 103, 203 F.2d 66; Johnson v. United States, 110 U.S.App.D.C. 351, 293 F.2d 539; United States v. Eisner (CCA 6) 297 F.2d 595.

Even if it be said that the ruling made in the Marcus case is, in terms, broad enough to encompass the seizure of the lewd, lascivious and pornographic material involved in this case, it must be observed that the ruling made in that case was made with relation to and in the context of constitutional guarantees of freedom of the press and freedom of speech. Here no such question is involved. There is no merit to the appellant's contention in this regard and the trial court did not err in overruling the motion to suppress the evidence.

2. The indictment in this case which charged that the defendant on a specified date 'did knowingly have possession of obscene matter,' thereafter describing three rolls of motion picture film in detail and concluding with the allegation: 'said accused having knowledge of the obscene nature of such motion picture film and matter; said motion picture films when considered as a whole and applying contemporary community standards that exist in this county, being obscene matter whose predominant appeal is to a shameful and morbid interest in nudity and sex; and accused should reasonably have known of the obscene nature of said matter, said act of accused being contrary to the laws of said state, the good order, peace and dignity thereof,' sufficiently charged the defendant with an offense under the provisions of Code § 26-6301, as amended by the Act approved March 13, 1963 (Ga.L.1963, p. 78 et seq.). It is not essential to an indictment charging one with possession of obscene matter that it be alleged that such possession was 'with intent to sell, expose or circulate the same.'

3. The contention that the Act approved March 13, 1963, is unconstitutional, null and void on its face in that it was passed and enacted by the General Assembly of Georgia as an amendment to a Code section which had previously been declared to be unconstitutional (Simpson v. State, 218 Ga. 337, 127 S.E.2d 907) is without merit. Section 1 of the 1963 Act clearly states that 'Code Chap. 26-63 * * * as amended, particularly by an Act approved March 17, 1956 (Ga.L.1956, p. 801), is hereby amended * * *.' The 1956 Act had in a similar fashion amended Chapter 26-63 by striking therefrom Code § 26-6301 and inserting in lieu thereof a...