Hostetler v. State , 145 Ga. App. 55 ( 1978 )

145 Ga. App. 55 (1978) 243 S.E.2d 256

HOSTETLER
v.
THE STATE.

54952.

Court of Appeals of Georgia.

Submitted January 10, 1978. Decided February 3, 1978. Rehearing Denied February 28, 1978.

Glenn Zell, for appellant.

Hinson McAuliffe, Solicitor, Leonard W. Rhodes, Assistant Solicitor, for appellee.

WEBB, Judge.

Milton Hostetler appeals from his conviction of distributing obscene materials in violation of Criminal Code § 26-2101. We affirm.

1. A constitutional attack is made upon Criminal Code § 26-2101 (c) which extends the definition of proscribed "obscene material" to "any device designed or marketed as useful primarily for the stimulation of human genital organs." It is contended that this section is overbroad, arbitrary and capricious, that it constitutes an unreasonable invasion of an adult's or married couple's right of sexual privacy, and that no necessity or rational basis appears for the total prohibition of these types of devices. These arguments were rejected in Pierce v. State, 239 Ga. 844 (239 SE2d 28) (1977), followed this day in Underwood v. State, 144 Ga. App. 684 (1978).

2. We find insufficient cause for reversal in the failure of the trial court to charge verbatim Hostetler's requests 2, 3 and 4 since the principles were adequately covered in the charge as given. Teal v. State, 234 Ga. 159 (3) (214 SE2d 888) (1975); Hunter v. State, 135 Ga. App. 172 (1) (217 SE2d 172) (1975) and cits.

3. The questions sought to be raised by enumeration of error 11 have been decided adversely to Hostetler. Robinson v. State, 143 Ga. App. 37, 38 (3) (237 SE2d 436) (1977).

4. Remaining arguments have been made and rejected in prior decisions and must similarly fail here. See Ballew v. State, 138 Ga. App. 530 (227 SE2d 65) (1976) and cits.; Wood v. State, 144 Ga. App. 236 (1977) and cits.; Underwood v. State, 144 Ga. App. 684, supra, and cits.

Judgment affirmed. Quillian, P. J., and McMurray, J., concur.