Pierce v. State , 145 Ga. App. 680 ( 1978 )

Banke, Judge.

Each of the above defendants was convicted of distributing obscene materials in violation of Code Ann. § 26-2101. Each attacked the constitutionality of the statute and appealed to the Supreme Court, which rejected the constitutional attacks and transferred the appeals to this court in Pierce v. State, 239 Ga. 844 (239 SE2d 28) (1977) and Ritchie v. State, 240 Ga. 15 (240 SE2d 551) (1977). Since the appeals are before us on identical enumerations of error and almost identical briefs, we have considered them together.

1. The appellants contend that the items seized were constitutionally protected forms of expression that cannot lawfully be termed obscene. Several of the publications introduced into evidence do not accompany the physical evidence transmitted to this court. Therefore, we are unable to make an independent determination of whether they are obscene as we would ordinarily be required to do under Jenkins v. Georgia, 418 U. S. 153, 160 (94 SC 2750, 41 LE2d 642) (1974). See Dyke v. State, 232 Ga. 817, 821 (209 SE2d 166) (1974); Simpson v. State, 144 Ga. App. 657 (3) (1978). However, none of the convictions in the cases before us was dependent upon a finding that the missing publications are obscene, since each count which charges the distribution of one of the missing publications also charges distribution of various items of sexual paraphernalia. As to these counts, "the jury could lawfully return a finding of guilty of distributing obscene material upon being convinced beyond reasonable doubt that any one of the . . . items was obscene.” Robinson v. State, 143 Ga. App. 37 (3), 39 (237 SE2d 436) (1977). From our own examination of the physical evidence, it is abundantly clear that these items were "designed or marketed as useful primarily for the stimulation of human genital organs . . .” Code Ann. § 26-2101 (c). Accordingly, the verdicts on these counts were authorized.

Two counts in Case No. 55376 were based solely upon publications, to wit: "Pleasure Tools and Their Uses” and "Hot Cheerleaders.” We have examined both these publications and have concluded that they, too, are obscene as a matter of law; that is, applying contemporary community standards and considering each magazine as a whole, they appeal predominantly to the prurient interest, lack serious literary, artistic, political or scientific value, and depict in a patently offensive way the types of sexual conduct specifically listed in the statute. Code Ann. § 26-2101 (b). Therefore, they are not protected expression under the first and Fourteenth Amendments to the United States Constitution (see Miller v. California, 413 U. S. 15 (93 SC 2607, 37 LE2d 419) (1973); Simpson v. State, 144 Ga. App. 657 (3), supra), and the verdicts on these counts were also authorized.

Submitted February 2, 1978 Decided April 4, 1978 Rehearing denied April 18, 1978 — Cert, applied for. Michael Clutter, Robert Eugene Smith, for appellants. Arthur K. Bolton, Attorney General, Hinson McAuliffe, Solicitor, Leonard W. Rhodes, Richard E. Stark, Assistant Solicitors, for appellee.

2. The appellants also urge that seizure of the sexual devices without a warrant violated the constitutional prohibition against unreasonable searches and seizures. This contention is without merit. See Sewell v. State, 238 Ga. 495 (2) (233 SE2d 187) (1977); Robinson v. State, 143 Ga. App. 37 (5), supra; Wood v. State, 144 Ga. App. 236 (1) (240 SE2d 743) (1977); Simpson v. State, 144 Ga. App. 657 (2), supra; Underwood v. State, 144 Ga. App. 684 (3) (1978).

3. The jury instructions on constructive knowledge did not violate constitutional standards for proof of scienter. See Sewell v. State, 238 Ga. 495 (4), supra; Wood v. State, 144 Ga. App. 236 (3), supra; Simpson v. State, 144 Ga. App. 657 (4), supra.

Judgment affirmed.

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