Wood v. State

Decision Date14 November 1977
Docket NumberNo. 54503,No. 1,54503,1
Citation240 S.E.2d 743,144 Ga.App. 236
PartiesRaymond WOOD v. The STATE
CourtGeorgia Court of Appeals

Glenn Zell, Atlanta, for appellant.

Hinson McAuliffe, Sol., Richard E. Stark, Asst. Sol., Atlanta, for appellee.

BELL, Chief Judge.

The defendant was convicted of two counts of selling obscene material, viz., two magazines. On appeal he does not raise any issue concerning the sufficiency of the evidence.

On June 4, 1976, at about 1:30 p. m., an Atlanta policeman purchased a magazine from defendant who was the only attendant present at the "Plaza Adult Bookstore." This officer returned to this store at about 4:30 p. m., and purchased another magazine from defendant. He then arrested defendant. The latter voluntarily locked the store and was taken to the police station. The officer made the arrest without a warrant. Held :

1. A pre-trial motion to dismiss was denied. The basis for the motion was that since the arresting officer had not obtained a prior judicial determination as to whether the two magazines were obscene and hence no arrest warrant, the arrest and the resulting closing of the store amounted to a prior restraint of expression in violation of the First Amendment of the Constitution. In Hall v. State, 139 Ga.App. 488, 229 S.E.2d 12, and relying on Roaden v. Kentucky, 413 U.S. 496, 93 S.Ct. 2796, 37 L.Ed.2d 757, as controlling authority, it was held that the arrest and seizure of obscene materials without a constitutionally sufficient warrant is unreasonable and the evidence not admissible. These cases are inapposite as we are not dealing with a seizure of evidence following a warrantless arrest. Here the policeman purchased the two magazines which form the basis for this prosecution. We have examined them and they clearly show that the officer had probable cause to arrest the defendant because of a violation of our obscenity statute committed in the officer's presence. The defendant then voluntarily locked the store. There was no prior restraint of the freedom of expression by any unlawful state-initiated or state-enforced restraint. See Robinson v. State, 143 Ga.App. 37, 237 S.E.2d 436.

2. The accusation was drawn in two counts alleging two separate violations of Code § 26-2101 on the same day. The evidence shows that purchases were made on the same date but at different times. Thus two separate crimes were alleged and proven. See Rucker v. State, 133 Ga.App. 180, 210 S.E.2d 365. It was not error to overrule defendant's demurrer on the ground that there was only one crime committed, and that the accusation alleged the same offense twice.

3. The court charged the jury on constructive knowledge in the exact language of Code § 26-2101(a). The identical contention made here that this charge violates minimum constitutional standards set forth in Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590, has been rejected by the Supreme Court in Sewell v. State, 238 Ga. 495, 233 S.E.2d 187.

4. The court charged the jury that: "...

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17 cases
  • Penthouse Intern., Ltd. v. McAuliffe
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • February 6, 1980
    ...system of prior restraint. Cf. Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965); Compare Wood v. State, 144 Ga.App. 236, 240 S.E.2d 743 (1977) (warrantless arrest of individual who sold two obscene magazines to policeman did not constitute a seizure or prior restrain......
  • Wood v. Georgia
    • United States
    • U.S. Supreme Court
    • March 4, 1981
    ...v. State, 144 Ga.App. 233, 240 S.E.2d 754 (1977), cert. denied, 439 U.S. 899, 99 S.Ct. 264, 58 L.Ed.2d 247 (1978); Wood v. State, 144 Ga.App. 236, 240 S.E.2d 743 (1977), cert. denied, 439 U.S. 899, 99 S.Ct. 265, 58 L.Ed.2d 247 2. According to their testimony, all of the petitioners had by t......
  • Showcase Cinemas, Inc. v. State, 60241
    • United States
    • Georgia Court of Appeals
    • April 27, 1981
    ...209 S.E.2d 166; and Pierce v. State, 239 Ga. 844, 239 S.E.2d 28. We have followed these decisions in such cases as Wood v. State, 144 Ga.App. 236, 237(3), 240 S.E.2d 743; Simpson v. State, 144 Ga.App. 657, 659(4), 242 S.E.2d 265; Dixie Books, Inc. v. State, 147 Ga.App. 593, 594(2), 249 S.E.......
  • Maryland v. Macon
    • United States
    • U.S. Supreme Court
    • June 17, 1985
    ...purchase are later retrieved as evidence. See, e.g., Baird v. State, 12 Ark.App. 71, 671 S.W.2d 191 (1984) (en banc); Wood v. State, 144 Ga.App. 236, 240 S.E.2d 743 (1977), cert. denied, 439 U.S. 899, 99 S.Ct. 265, 58 L.Ed.2d 247 (1978); People v. Ridens, 51 Ill.2d 410, 282 N.E.2d 691 (1972......
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