54 S.E.2d 669 | Ga. Ct. App. | 1949
1. To project on a screen, by the device and method of a moving-picture apparatus, pictures of human beings, men, women and children, naked, would authorize a jury to return a verdict of guilty under the Code, § 26-6301.
2. Where one is charged with a crime, it is no defense that others are committing the same crime.
The court overruled the demurrers, both general and special. Counsel for the defendant duly filed exceptions pendente lite to the judgment overruling the demurrers. After the introduction of the evidence, the statement of the accused, and the charge of the court, a jury, after deliberation, returned a verdict of guilty. Thereupon the defendant filed a motion for a new trial based on the usual general grounds, and thereafter added what is termed a first amendment to the original motion and a second one. The motion as amended was overruled by the superior court. The defendant assigns error here on the overruling of his demurrers, both general and special, and on the final judgment overruling his amended motion for a new trial.
George T. Cornett testified for the State substantially: He was with the Police Department of Fulton County, in the crime laboratory. He, with other officers, on or about September 2, 1948, went to the Hangar Theatre at Hapeville, Georgia, Joe Mansell, of the solicitor's office, was with him. The object of the visit was to see a picture running at the theater, the name of the picture being "The Valley of the Nude." The visit was about 2:15 p. m. The witness bought a ticket; the theater was about one-half or two-thirds full, mostly men, with a few women. The witness did not see any boys and girls; he did not know whether there were any rules with reference to separating the men and women; he got in line with other people, and when it came his turn he purchased a ticket for 50 cents and went in and sat down and saw the show. There were other patrons seeing the pictures; there were other pictures than "The Valley of the Nude." The witness saw the entire picture. Thereafter he took possession of the picture, "The Valley of the Nude," brought it back into the crime laboratory and locked it up in the laboratory for evidence. The witness procured the picture from the projecting room of the Hangar Theatre. He went into the projection room as soon as that picture ran and the third picture *699 started. It was being rewound. Joe Mansell went with the witness to the projecting room. The moving-picture operator was in the projecting room by himself when the witness went there. The witness did not recall seeing Gore. The picture film which was taken from the Hangar Theatre "is lying there on the table at the present time."
On cross-examination, the witness testified substantially: He not only seized the film of the picture, "The Valley of the Nude," that was in the projecting room, but he took all of the films; but "The Valley of the Nude" is the only one the officers kept. The film is unintelligible of itself. It must be projected to be able to see it. "A person can look at it with a magnifying glass with a light behind it to see it." The witness testified that it would take quite a while to see all of the picture with a magnifying glass. In the opinion of the witness the film is not a picture in the commonly accepted sense such as one would see in a magazine, but it is generally known as the same thing. The film is not intelligible unless one uses a light back of it. The reflection of the film is not a tangible thing that one can carry about in his hands, but it is an image that must be transmitted with light on it. It is not a negative, but it is a positive. The positive film throws a shadow on the screen and that makes a picture. A motion picture is a series of still pictures. One may take a picture made with a still camera and project it on the screen just the same as that picture. "In other words it just reflects that positive picture on the screen, that was what was going on in that particular theater that particular day."
J. W. Gilbert testified for the State: He is Lieutenant of the Fulton County Police Department. He was at the Hangar Theatre in September 1948 and was accompanied by Chief Fitzgerald, Mr. Hughes, Mr. Williams, Mr. Estes, Mr. Haynes of the Police Department, Mr. Mansell, and Mr. Clayburn of the solicitor's office. They all went in and looked at the picture, "The Valley of the Nude." The persons mentioned went into the theater at different times; each paid 50 cents for a ticket. It was stipulated that the film in court was the one that was being shown at the time the visits were made there by the parties mentioned, and that it would be shown to the jury. It was thus shown. The witness testified that a Mr. Pullen was *700 operating the projector. The witness had been to the Hangar Theatre on previous occasions; he saw the defendant at the theater on previous occasions. The defendant made a statement voluntarily that he was operating the theater; that he had brought the film in from Florida.
Joe Mansell testified for the State, corroborating the testimony of the witnesses set out above. J. W. Estes testified for the State, substantially as to the facts testified by the witnesses previously introduced by the State. Mrs. V. V. Cummings testified that she had seen the entire picture, "The Valley of the Nude," exhibited at the Hangar Theatre. Accompanying her was Mrs. J. D. Lewis. Both bought a ticket and went into the theater. She got into this theater in the same manner that she goes into all picture theaters.
The film was introduced in evidence, and is attached to the evidence in this case as an exhibit. It is the same film reel that was exhibited and viewed by the jury, projected onto a screen, all by consent and agreement of the parties in the court and in the presence of the defendant, the court, and counsel for the State and for the defendant.
The defendant made the following statement in his behalf: "This film, I have been showing it since 1936 all over the United States. It is running today in Tampa, Florida. It has run in most of Georgia and had a six weeks' engagement in Jacksonville. It is running now in Dayton, Ohio, and has run in Columbus. It is passed by the National Board of Censorship. There is no way in the world that it could be immoral. The picture [has] just been published recently in magazines that I have bought in Atlanta on the newsstands, and just recently the Atlanta Journal carried a scene from the picture. The picture ran at Lakewood since I have been arrested. For the showing of that film there and another film, they have me under $23,500 bond. That is a pretty stiff bond for something that is not immoral. The film is rented from the Southeastern Attractions at Charlotte, North Carolina, through the same channels that all of these films are rented."
By request of and with the consent of all parties concerned, the same film reel was exhibited to and shown to the members of this court by projection of the film onto a screen. *701 1. The contentions of both the defendant and the State are thoroughly and ably presented by counsel both for the defendant and for the State. Counsel for the defendant very clearly present the issues to be decided, which are: "1. Whether the allegations contained in the indictment charge the offense defined in the basic statute. 2. Whether the complaint was pled with sufficient particularity to put the accused upon notice of what he was compelled to defend. 3. Whether the court erred in rejecting certain evidence (ground 1 of the amended motion; ground 1 of the second amendment). 4. Whether the evidence was sufficient to sustain a conviction."
We will deal first with the contentions of the defendant. (a) General demurrer. Counsel for the defendant earnestly contend that the general demurrer should have been sustained. The basis of this argument is, that the section as set out above from the Code of 1933 was codified from the act of 1878-1879 (Ga. L. 1878-79, p. 163); that the said act named every means of disseminating obscenity known at the time of the passage of the act; that moving pictures were entirely unknown, and could not therefore have been in the contemplation of the General Assembly; that the act of March 28, 1935, merely changed the punishment for the offense defined in the act of 1878-1879; that the act of March 27, 1941, like the act of 1935. is an amendatory act wholly within the legislative scheme originating in the act of 1878-1879; that there is no broadening of the offense and no description of any device prohibited not mentioned in the basic statute; and that no act of the General Assembly has at any time mentioned the projection of films as a prohibited device to disseminate obscenity.
Counsel cite in this connection the case of Sanders v.State,
Counsel then proceed to call our attention to the case of McBoyle v. United States,
Counsel then call our attention to the case of Hayes v.State,
"The foregoing proposition is supported by the authorities with practical unanimity. Reference to a few of the adjudicated cases will serve to illustrate the application of the rule above stated. In Ex parte Jackson,
Counsel then call our attention to the principle that penal statutes must be strictly construed and their terms may not be extended, and in support of this contention counsel cite the following cases: Schane v. Atlanta,
Then the ejusdem generis rule, to the effect that general terms following specific terms are confined to the same kind, is argued. This principle is set forth in the Code, § 102-102. It is true that if the accused can admit all accusations of the indictment and still be innocent of the offense charged, the indictment is defective. Every indictment must be complete within itself, and charge a crime, and every substantial element of the offense alleged to be committed. This principle is supported by the following authorities: Stoner v. State,
(b) Counsel insist that the special demurrers are good. They carry with them their own argument.
(c) Counsel contend that the court erred in overruling the motion for a new trial on the general grounds, and that the evidence and a view of the picture will reveal a total failure to prove the material allegations in the indictment.
(d) The next contention is that the first amendment to the motion for a new trial should have been sustained, and that this pertained to a rejecture by the court, of a photograph printed in a magazine of general circulation through the United States mails in Fulton County, being the identical pictures alleged to have been exhibited by this plaintiff. It is contended that the plaintiff was entitled to the evidence, particularly under *705 the sole objection to the introduction of the magazine pictures, as follows, "What might or might not be in some other publication or magazine is irrelevant and immaterial and has nothing to do with this case."
The second amendment to the motion for a new trial complains that the court rejected evidence that the identical picture, "The Valley of the Nude" was being advertised and exhibited by the Cascade Heights Theatre during the same week. This evidence was offered to show the prejudice and bias of the prosecutor.
The above are substantially the contentions of the defendant, and will be dealt with further in the second division of this opinion.
The contention of the State is, of course, that the general and special demurrers were properly overruled. We think that these contentions are sound. It will be observed that Code § 26-6301 makes penal the possession or exhibition of any indecent or obscene photograph, picture, or article of indecent and obscene use. It is true that the section of the Code under which the instant indictment was founded is a codification of the acts of 1878-1879 (Ga. L. 1878-79, p. 163), and that the acts of 1935 (Ga. L. 1935, p. 158), and the acts of 1941 (Ga. L. 1941, p. 358), were amendments to the original act of 1878-1879, and it is true also that motion-picture projection was unknown in 1878 and for many years thereafter. And it is perhaps true that the General Assembly in 1878-1879 did not have in mind photographs and pictures as now projected and exhibited in moving-picture theaters when the basic act was adopted. But the General Assembly on February 14, 1935, passed an act adopting the Code of 1933 as published and proclaimed by the Governor. The adoption by the legislature of the Code of 1933 amounted to a re-enactment of each section thereof as contemporary statutes. See State ofGeorgia v. Camp,
The jury passed upon the facts in this case. The publication is to be judged in the light of present-day standards and not by any future standard that might prevail. In Holcombe v. State,
In Montross v. State,
2. Special ground 1 assigns error on the excluding from the consideration of the jury of an exhibit of the defendant, which consisted of documents in magazines circulated through the mails and newsstands in Fulton County, the pictures in the magazines being the same or similar to the pictures shown on the moving-picture *708 screen in "The Valley of the Nude." And special ground 2 assigns error because the court refused to allow evidence offered by the defendant that other moving-picture theaters were exhibiting the same picture which the defendant was accused of illegally showing. The Supreme Court, in Montross v. State, (headnote 4), supra, said: "Where a defendant was indicted for giving away an indecent pictorial newspaper tending to debauch the public morals, with intent to circulate the same, when he sought in his statement to read to the jury an article in another newspaper, and to exhibit to them pictures publicly displayed elsewhere in the city where the trial occurred . . there was no error on the part of the court in interrupting the accused, and prohibiting him from so doing." And the court further said, on pp. 267 and 268: "As well might the keeper of a lewd and disorderly house, or the proprietor of a gaming house or tables, claim that he had not violated the law, when called upon to answer for his offense, because others indulged in these nefarious practices openly and with impunity and were not prosecuted for their offenses against public order and decency. . . No respectable magistrate could for a moment tolerate a spectacle so gross and outrageous." It thus appears that the court did not commit error in refusing the evidence proffered by the defendant.
The court did not err in overruling the motion for a new trial for any of the reasons assigned.
Judgment affirmed. MacIntyre, P. J., and Townsend, J., concur.