We review in this case appellant’s conviction in the Criminal Court of Fulton County on two counts of exhibiting obscene material in violation of Code Ann. § 26-2101. Categorically, the appeal deals with three areas of enumerated trial error: (1) the overruling of appellant’s motion to dismiss the two-count accusation; (2) the sufficiency of the evidence; and (3) various rulings by the court during the trial, including the correctness of the jury instructions. Each of the alleged errors in these categories will be examined in this opinion.
The case arose as a result of a visit made on October 23, 1973, by a Fulton County investigator to the Festival Cinema Theatre in Atlanta to view a film entitled "Devil in Miss Jones.” After purchasing a ticket and seeing the movie, the investigator presented an affidavit to a judge in Fulton County and obtained a warrant to search the theatre premises and seize the film. On the following day, the investigator returned to the theatre with two Atlanta policemen and after they viewed the film, the warrant was served and several employees of the theatre were arrested. Appellant was at a counter in the lobby and the *818 officers first asked him who was the manager of the theatre. Appellant replied that he was the manager and the investigator then identified himself and arrested appellant and two other employees. A commitment hearing was held on November 2, 1973, and as a result of that hearing appellant was bound over for trial. Three days later, the same investigator returned to the theatre and again viewed the same film being exhibited there. A second warrant was obtained on another affidavit by the investigator and a commitment hearing was waived on it. Thereafter, a two-count accusation was drawn charging appellant with exhibiting obscene material on these two separate dates and the case went to trial before a judge and jury. At the trial, the state presented oral evidence from the investigator, including testimony that appellant was present on each occasion when the film was shown. The state also exhibited the film to the jury. Appellant presented the testimony of a clinical psychologist regarding the nature of the film and its social value. After receiving instructions from the trial judge, the jury returned a verdict of "guilty” on both counts and appellant received a sentence of 12 months and a $1,000 fine on each count, to be served consecutively.
I.
Motion to Dismiss.
Appellant argues that Code Ann. § 26-2101, the obscenity statute under which he was convicted, is too vague and overly broad to withstand the constitutional attacks made on it in this case and that his conviction is a denial of due process of law. It is also argued that the accusation is fatally defective because it did not specify the requisite elements of the offense with which appellant was charged.
Appellant acknowledges the decision of this court in
Slaton v. Paris Adult Theatre I,
All of these well reasoned arguments were made on behalf of appellant in his counsel’s brief filed in this court on June 30, 1974. Four days later, the U. S. Supreme Court decided the case of Hamling v. United States, 94 S. C. 2887 (41 LE2d 590) (1974), approving the application of a pre-Miller federal mailing statute to post-Miller defendants. Although the Miller obscenity standards were not spelled out in this federal statute, the court there rejected the same argument urged here by appellant and in doing so, stated: ". . . the language of Roth 2 was repeated in Miller, along with a description of the types of material which could constitutionally be proscribed and the adjuration that such statutory proscriptions be made explicit either by their own language or by judicial construction . . Id., p. 2906.
We pointed out in
Paris Adult Theatre I,
supra, "that the Georgia statutory definition [of obscenity] has been previously authoritatively construed by this court to include those standards for obscenity as permitted by Miller.”
More importantly, all of appellant’s constitutional arguments in this case must fail for the reason that on July 25, 1974, the U. S. Supreme Court denied certiorari in Paris Adult Theatre I v. Slaton after consideration by *820 the court of remarkably similar constitutional attacks made on the Georgia obscenity statute for vagueness and overbreadth, and also for alleged denial of due process resulting from this court’s previous construction of the obscenity statute in the Paris Adult Theatre case. This removed the constitutional challenge to the present obscenity statute in Georgia and further discussion of these same issues would be pointless.
We turn next to appellant’s contention that the accusation under which he was tried is fatally defective, as it failed to allege the requisite elements of the offense, i.e., the specific standards for judging obscenity set forth in Miller, supra. As noted by the Supreme Court in Hamling, supra, "the various component parts of the constitutional definition of obscenity need not be alleged in the [accusation] in order to establish its sufficiency ...” 94 S. C. 2887, 2908. The language used in the present accusation described the offense in the language of the statute and contained the same construction approved by this court in Paris Adult Theatre I, supra. We cannot agree that it is defective as it adequately alleges the offense with which appellant was charged in each count. See Code Ann. § 27-701.
II.
Sufficiency of the Evidence.
Appellant contends that the evidence is insufficient to sustain a finding that the film is obscene and that the evidence fails to prove he had any control over the showing of the film or knowledge of its content.
Appellant argues that this film is not merely a "stag film,” but is a full length film with a continuous story line, an attempt at innovative lighting, and that a moral can be gleaned from viewing it. Therefore, appellant asserts, the film is not "utterly without redeeming social value,” one of the tests still required in Georgia to find obscenity. Appellant argues that the film has at least a modicum of social value since it goes beyond a mere "pretense,” and appellant relies on United Artists v. Gladwell, 373 FSupp. 247 (S. D. Ohio, 1974), and United States v. Language of Love, 432 F2d 705 (2d Cir. 1970), to conclude that under the evidence in this case, *821 including the testimony of the clinical psychologist, this film is not obscene.
We are not bound to approve the jury’s finding that this film is obscene, since it is clear the United States Supreme Court has determined that an independent appellate review must be made of the material to decide the constitutional fact of obscenity. Jenkins v. Georgia, 94 S. C. 2750 (41 LE2d 642) (June 24, 1974). See, also, United States v. Groner, 479 F2d 577 (5th Cir. 1973); and, Jacobellis v. Ohio,
It is our view that an otherwise obscene film cannot be constitutionally salvaged by adding to it a vague moral which is superimposed on the predominant theme of the film which is an appeal to a prurient interest in sex. This *822 film, in the opinion of the court, is utterly without redeeming social value. It is barren of any effort to express an idea or serve even a questionable social purpose. We find, upon application of the standards set forth in Paris Adult Theatre I v. Slaton, supra, that the film, "Devil in Miss Jones,” is obscene as a matter of constitutional law and fact.
Appellant further argues the evidence is legally insufficient to sustain his conviction for exhibition of this film because it failed to show he had control over the showing of the film or knowledge of its content. The evidence shows that the film was advertised on the marquee of the theatre managed by appellant and that the theatre was an "adult theatre.” Appellant was shown to be on the premises when the film was exhibited on the two separate dates charged in the accusation and, on the second occasion, appellant sold tickets for admission to see it. This was sufficient to authorize the jury to conclude that on each occasion appellant at least aided and abetted in the exhibition of the film. See Code Ann. § 26-801. Appellant’s reliance upon
Sokolic v. State,
We must also reject appellant’s contention that the evidence failed to prove scienter or guilty knowledge by him of the nature of the film itself. Under Code Ann. § 26-2101, the applicable test for knowingly exhibiting obscene material is whether the defendant has "knowledge of facts which would put a reasonable and prudent man on notice as to the suspect nature of the material.” The evidence need not show appellant actually knew the film was legally obscene. See, Rosen v. United States,
Appellant further urges that his constitutional right against self-incrimination was violated when the state was permitted to introduce into evidence appellant’s statement that he was the manager of the theatre. Appellant’s argument is that this statement was elicited by the state investigator without first giving the warning required by Miranda v. Arizona,
III.
Rulings by the Court.
Appellant strongly contends that the trial court erred in not suppressing as evidence the motion picture film seized twice by the state because the affidavits used to obtain the search warrants were legally insufficient. Appellant argues that in each instance the affiant merely recited what he considered to be "highlights” of the film to obtain search warrants without relating the entire text of the film to the judge who issued the warrants. Appellant further argues that affiant’s subjective evaluation that the film was "hard core pornography” does not support the affidavit for constitutional purposes. Appellant primarily relies on the rule applied in Lee Art Theatre v. Virginia,
A review of the affidavits used to secure the two warrants issued in this case reveals factual descriptions of numerous representative scenes depicted in the film. These affidavits were sufficient to show probable cause for the issuance of the warrants. See, Heller v. New York,
We also note that a commitment hearing was held nine days after service of the first warrant and at that adversary hearing the committal judge determined from the evidence that probable cause existed to conclude there was a violation of the Georgia obscenity statute by appellant. Thereafter, appellant proceeded at his own risk to participate in the exhibition of another copy of the same film by selling admission tickets to the theatre. With regard to the seizure of the second copy of the film, we are aware of the implication of prior restraint. As stated in Heller v. New York, supra, p. 492, "On a showing to the trial court that other copies of the film are not available to the exhibitor, the court should permit the seized film to be copied so that showing can be continued pending a judicial determination of the obscenity issue in an adversary proceeding.” In the present case, at the time of seizure of the second copy, there had been a judicial determination (of probable cause) in an adversary proceeding that the film was obscene. In addition, there has been no showing here that seizure of the second copy left the exhibitor without another copy to exhibit, nor is there any evidence that he made any request to copy the film. The Supreme Court, in Heller, was seeking to strike a balance between the facilitation of seizing allegedly obscene material as evidence while minimizing the effect of prior restraint of possible First Amendment rights. See, Crecelius v. Commonwealth,
We conclude that the search and seizure in this case were not invalid for any reason urged by appellant.
*825
Appellant also argues that he was denied a fair trial by the trial court’s interference with the presentation of the defense in the case, and by other conduct which demonstrated prejudice against appellant during the trial of the case. A review of the record does reveal a good deal of conflict between the court and counsel during the trial but it fails to show prejudice against appellant. Most of it occurred in an effort by the court to require counsel in the case, both for the state and the defendant, to present properly to the jury admissible evidence on the correct legal issues to be decided in the case. It is the duty of the trial court to control the trial of the case and to insure a fair trial to both sides on the disputed issues in the case. Sometimes this requires interference by the court with the conduct of counsel or with a witness in the trial. The trial judge has broad discretion in handling these matters and we are loath to interfere with that discretion unless it is manifestly abused by clearly demonstrated prejudice or unfairness. While another trial judge may not have conducted the trial of this case in the same way as this trial judge did, we do not agree the trial court interfered so as to deprive the appellant of a fair trial. See,
Carr v. State,
It is also urged in this appeal that the trial court improperly instructed the jury on the law in the case and the conviction must be reversed because of it. Appellant argues that the jury was prevented from intelligently passing upon the issues in the case because the trial court gave instructions on the law to the jury four times during the trial and that each instruction was different. Appellant also contends that parts of the instructions were argumentative and incomplete.
It is well settled by case law that the charge of the court must be taken in its entirety when considering its impact upon the jurors. See,
Cooper v. State,
Appellant also urges that in explaining the community standard portion of the obscenity statute, the trial judge improperly used confusing and argumentative language. Excerpts from the language complained of in the charges are as follows: "... the community of Georgia, as evolved from generation to generation along with our civilization ... by general consensus of the community of Georgia as a whole, would be offensive to the common instincts of decency of people generally ...” Subsequent to the trial of this case, the United States Supreme Court in Hamling, supra, approved the use of similar language in the following charge: "The trial court instructed the jury that it was to judge the obscenity vel non of the brochure by reference to 'what is reasonably accepted according to the contemporary standards of the community as a whole,. . . This phrase means, as it has been aptly stated, the average conscience of the time, and the present critical point in the compromise between candor and shame, at which the community may have arrived here and now.’ ” 94 S. C. 2887, 2900. We conclude the trial court’s instruction in the present case was not error.
Finally, we note the trial court clearly pointed out to the jury that all elements of the definition of obscenity "must coalesce and co-exist.” We believe this instruction served to cure any error in the court’s use of the disjunctive "or,” rather than the conjunctive "and” in the parts of the charge complained of by appellant. Appellant *827 also argues that the failure of the trial judge to define the words, "shameful or morbid,” as requested by appellant at the trial, prevented the jury from intelligently passing upon the appellant’s guilt and denied appellant a fair trial. We agree with the appellee that these words used in the statute to define a prurient interest in sex are not words of art but rather are words of common understanding and meaning which require no definition themselves for understanding by the jury.
Therefore, we conclude that the instructions of the trial court, when considered in their entirety, were correct and did not deprive appellant of a fair trial.
Appellant further claims a denial of his double jeopardy rights under the State (Code Ann. § 2-108) and Federal (Fifth Amendment) Constitutions in that he was convicted and sentenced for two crimes when there was but one single transaction in this case. Appellant cites Code Ann. § 26-506 (multiple prosecutions for same conduct) to contend here there was but one course of conduct and that if a crime has been committed, he can be punished only once for it. Appellant argues that the accusation charged him in two counts of violating the same statute and that the proof involved a regularly scheduled showing of a motion picture in a theatre with no disruption of scheduling. The exhibition of the film on two separate dates, appellant argues, does not permit the state to "pyramid” the charges and punishment against him. Appellant relies primarily upon the cases of
Phillips v. State,
The facts of the present case are distinguishable from Phillips and Estes. Code Ann. § 26-2101 states that, "A person commits the offense of distributing obscene materials when he ... exhibits or otherwise disseminates *828 to any person any obscene material..Unlike the multifaceted lottery, a separate offense occurred each time the obscene film was exhibited. Under the rationale of Phillips and Estes, perhaps it could logically be argued that if appellant sold tickets to see the film on different dates, but had exhibited the movie only once, there would be only a single crime, but that is not the case here. There were two distinct episodes involving different dates of exhibition and even different copies of the same film. This record shows two criminal violations, not a single crime.
This court agrees that First Amendment rights deserve strong protection, e.g.,
Sanders v. State of Georgia,
Judgment affirmed.