Dixie Books, Inc. v. State

147 Ga. App. 593 (1978)

249 S.E.2d 634

DIXIE BOOKS, INC. v. THE STATE.

56505.

Court of Appeals of Georgia.

Submitted September 13, 1978.

Decided September 28, 1978.

Rehearing Denied October 18, 1978.

Robert Eugene Smith, Charles W. Boyle, for appellant.

Hinson McAuliffe, Solicitor, Andrew J. Hairston, James L. Webb, Leonard W. Rhodes, Assistant Solicitors, for appellee.

BANKE, Judge.

This prosecution for distributing obscene materials was initiated after Fulton County law enforcement officers purchased two magazines, one entitled "Eros" and the other entitled "Masturbation Confessions," from the appellant bookstore. The jury found the appellant not guilty as to "Eros" but guilty as to "Masturbation Confessions." A motion for new trial was denied, and this appeal followed. Held:

1. We have made an independent review of "Masturbation Confessions" and have determined that it is obscene as a matter of law and thus that it is not protected expression under the First and Fourteenth Amendments to the United States Constitution. The magazine is nothing more than a collection of photographs depicting women exhibiting their genitalia from various positions and engaging in masturbatory activities with the aid of dildos and vibrators. Although there is some textual discussion concerning the various ways in which people allegedly masturbate, there is no pretense of expressing any idea of value which could reasonably be labeled literary, artistic, political or scientific. "The material amounts to nothing more than a `public portrayal of hard core sexual conduct for its own *594 sake, and for the ensuing commercial gain' and is accordingly obscene as a matter of law under Miller v. California, 413 U.S. 15 (93 SC 2607, 37 LE2d 419) (1973) [Cits.]." Hess v. State, 145 Ga. App. 685-686) (244 SE2d 587) (1978). See generally Code Ann. § 26-2101 (b).

2. The jury instruction on constructive knowledge did not violate constitutional standards for proof of scienter. See Sewell v. State, 238 Ga. 495 (4) (233 SE2d 187) (1977); Wood v. State, 144 Ga. App. 236 (3) (240 SE2d 743) (1977); Simpson v. State, 144 Ga. App. 657 (4) (242 SE2d 265) (1978).

Judgment affirmed. Smith, J., concurs. Deen, P. J., concurs specially.

DEEN, Presiding Judge, concurring specially on rehearing.

I agree fully with the majority opinion. Appellant strongly contends in his brief and motion for rehearing that "explicit depictions or descriptions of sexual activities, including detailed and vernacular descriptions reaching the ultimate in explicitness" as to bestiality, oral-genital intercourse, homosexual, heterosexual, masturbation and sadomasochism are not obscene, citing such illustrations as "Orgy Club," "Sex Life of a Cop," "Sin Whisper" and "The Way of a Man with a Maid." The latter all involve pre-Miller v. California, 413 U.S. 15 (93 SC 2607, 37 LE2d 419) (1973) tests and materials.

The jury was authorized to find that the materials taken as a whole lack serious scientific, artistic, political and literary value.