Walter v. State, 49079

• Decision Date: 10 April 1974
• Docket Number: No. 2,No. 49079,49079,2
• Parties: William WALTER v. The STATE
• Court: Georgia Court of Appeals

Page 662

206 S.E.2d 662

131 Ga.App. 667

William WALTER v. The STATE.

No. 49079.

Court of Appeals of Georgia, Division No. 2.

April 10, 1974.

Rehearing Denied April 24, 1974.

Glenn Zell, Atlanta, for appellant.

Hinson McAuliffe, Sol., Thomas R. Moran, Atlanta, for appellee.

Syllabus Opinion by the Court

STOLZ, Judge.

The defendant appeals from his conviction of violations of Code Ann. § 26-2101 (Ga.L.1968, pp. 1249, 1302; 1971, p. 344). He was tried on a three-count accusation, was convicted on two counts, and received a sentence of 12 months on each count and a fine of $1,000 on each count.

On October 27, 1970, the State of Georgia, through the Fulton County District Attorney and the Fulton County Solicitor General, brought an adversary hearing in the Superior Court of Fulton County complaining that three films, 'Zap', 'Innocent Nymph Part II', and 'The Virgin Runaway,' were obscene, violated Code Ann. § 26-2101, and were subject to seizure by the district attorney and the solicitor general. The petition requested that a rule nisi issue requiring the defendant to show cause on a date certain why the motion pictures should not be declared obscene and subject to seizure, and required the defendant to produce upon the hearing a print of each of the motion pictures. The petition further prayed that the motion pictures be declared obscene and subject to seizure, that the defendants be temporarily and permanently enjoined from exhibiting the motion pictures within the jurisdiction of the court, and that the defendant be temporarily restrained and enjoined from destroying, altering, concealing, or removing the motion pictures beyond the jurisdiction of the court. The defendant was duly served and the matter came on for hearing pursuant to the rule nisi. After hearing evidence, the judge of superior court entered an order finding the films to be hard-core pornography and that the court had the authority under the law to issue a search warrant order based on a finding of probable cause that the films were obscene. The court then ordered the Sheriff of Fulton County to seize one copy of the films, and granted the other temporary injunctive relief sought in the petition. The defendant appealed to the Supreme Court of Georgia. The finding of the trial court was affirmed in that court. Walter v. Slaton, 227 Ga. 676, 182 S.E.2d 464. The solicitor thereafter filed a three-count accusation against the defendant Walter, alleging that on October 21, 1971, the defendant distributed an obscene film entitled 'Zap'; that on October 22, 1971, the defendant distributed an obscene film entitled 'Innocent Nymph Part II'; and that on October 28, 1971, the defendant distributed an obscene film entitled 'The Virgin Runaway.' Subsequently, in compliance with the aforesaid court order, a deputy sheriff of Fulton County proceeded to the defendant's place of business to seize the aforesaid films, but did not do so, as is more fully set out hereinafter. Thereafter, citation for contempt was issued against the defendant requiring him to show cause on a day certain why he should not be adjudged in contempt. At the hearing on the contempt citation, the solicitor attempted to call the defendant to the stand for cross examination. Defense counsel objected and asserted that the defendant could not be compelled to take the stand and testify, as there were pending criminal charges against the defendant involving the matter. The court stated that it was simply giving the defendant an opportunity to explain his conduct in not complying with the court order. The court then stated that it would find the defendant in contempt of court and would confine the defendant to jail until such time as he produced the aforesaid films. Whereupon the defendant agreed to turn the films over to the court or to the district attorney with the understanding that the defendant was doing so involuntarily. The defendant's motion to suppress the evidence thus obtained was overruled, as were his objections to the admission of the films in evidence at the trial of the case.

After the trial by jury, the defendant was found not guilty on one count and guilty on the other two counts. Held:

1. Art. I, Sec. I, Par. VI of the Constitution of Georgia of 1945 (Code Ann. § 2-106) states, 'No person shall be compelled to give testimony tending in any manner to criminate himself.' Code Ann. § 38-416 states that no person shall be compelled 'to give evidence for or against himself.' (Emphasis supplied.)

In Marshall v. Riley, 7 Ga. 367, the plaintiff brought suit against the defendant on a promissory note, to which a special defense was made that the note was given for services rendered by the plaintiff as a practitioner of medicine; that he never was licensed by the Board of Physicians, established by the statute of the state, and was, therefore, not entitled to sue for and recover compensation for such services. Prior to trial, the defendant filed interrogatories for the plaintiff, which addressed themselves to the principal defense in the action. The plaintiff objected to answering the interrogatories because 'an answer by the plaintiff, acknowledging that he had no license, would, under the Statute, subject him to a prosecution for a misdemeanor, or any acknowledgment which might be used as a link in a chain of evidence on such a prosecution.' The trial court overruled the objection and required answer to the interrogatories. The Supreme Court reversed. Justice Lumpkin, speaking for the court (7 Ga. page 370) noted: 'The maxim of the Common Law, nemo tenetur seipsum prodere, that no man is bound to accuse himself of any crime, or to furnish any evidence to convict himself of any crime, is founded in great principles of constitutional right, and was not only settled in early times in England, but was brought by our ancestors to America, as a part of their birthright.' It is in full sympathy with this great, great cornerstone of Anglo-Saxon jurisprudence that we view the situation presented by the case at bar. Here, the initial petition brought by the district attorney and the solicitor general sought to declare the motion picture obscene, subject to seizure, and to enjoin the defendant from exhibiting motion pictures in the jurisdiction of the court and from destroying, altering, concealing, or removing the films beyond the jurisdiction of the court. In the initial proceeding, the court found that there was probable cause to believe that each of the films was obscene and hard-core pornography as a matter of fact and as a matter of law. The Sheriff of Fulton County was thereafter ordered to seize one copy of each of the films in the possession of the defendant and to forthwith transport and deliver the same to the custody of the Solicitor General of Fulton County. The defendants, their associates, agents, and employees were restrained and enjoined from distributing or exhibiting or otherwise showing each of the films within the jurisdiction of the court, and were enjoined from removing the same from the jurisdiction of the court, or altering, modifying, cutting or in any way tampering with each of the films before surrendering the same to the sheriff for delivery to the solicitor general. Thus, we are concerned with the defendant's First Amendment rights under the Constitution of the United States. Freedom of speech and press, which are protected by the First Amendment from infringement by Congress, are among the fundamental personal rights which are protected by the Fourteenth Amendment (Code § 1-815) from invasion by state action. Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949. 'Code Ann. § 26-2101 is not violative of the First and Fourteenth Amendments of the United States Constitution on the ground of vagueness. Gable v. Jenkins, 309 F.Supp. 998(4) (N.D.Ga.1969), affirmed, Gable v. Jenkins, 397 U.S. 592, 90 S.Ct. 1351, 25 L.Ed.2d 595) . . . Code Ann. § 26-2101, supra, is not violative of the First, Fourth, Fifth, Ninth and Fourteenth Amendments of the United States Constitution on the ground that the constitutional right to mere possession of obscene material, recognized in Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542, necessarily implies the right to purchase such material and, hence, the right of others, including appellant, to distribute it.' Gornto v. State, 227 Ga. 46, 47, 178 S.E.2d 894, 896, U.S. cert. denied, 402 U.S. 933, 91 S.Ct. 1525, 28 L.Ed.2d 868.

In A Quantity of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809, it was held that a warrant of seizure in which 1715 copies of a book were seized prior to a hearing on the issue of obscenity, was unconstitutional under the First and Fourteenth Amendments of the United States Constitution. This decision is predicated on the reasoning that 'if seizure of books precedes an adversary determination of their obscenity, there is danger of abridgement of the right of the public in a free society to unobstructed circulation of nonobscene books.' P. 213, 84 S.Ct. p. 1727. See also Central Agency, Inc. v Slaton, Civil Action No. 13025, Northern District of Georgia, Atlanta Division, decided August 26, 1969; and Sherpix, Inc. v. Slaton, Civil Action No. 13024, Northern District of Georgia, Atlanta Division, decided September 2, 1969, holding that before a seizure of alleged obscene material could be made under Code Ann. § 26-2101, an adversary hearing on the question of obscenity must first be had. A similar result was reached by the United States Court of Appeals for the Seventh Circuit in Metzger v. Pearcy, 393 F.2d 202.

While the probable-cause hearing before the judge of superior court is a permissible procedure that may be utilized prior to the seizure of obscene materials, it is not essential. Milky Way Productions v. Leary, D.C., 305 F.Supp. 288, affirmed, 397 U.S. 98, 90 S.Ct. 817, 25 L.Ed.2d 78; Good v. State, 127 Ga.App. 775, 195 S.E.2d 264 and cits.

The...