Gore v. State , 79 Ga. App. 696 ( 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.

DECIDED JULY 16, 1949. B. E. Gore was indicted by the grand jury of Fulton County for violation of the provisions of the Code, § 26-6301. Omitting the formal parts, the indictment charged the defendant with the offense of "felony . . for that the said accused, in the County of Fulton and State of Georgia, on the 21st day of September, 1948, with force and arms, having possession thereof, did knowingly exhibit to J. W. Gilbert, Joe Mansell, Lewis Clayburn, and other persons whose names are to the grand jury unknown, indecent and obscene pictures of naked men and naked women exhibiting their private parts, said pictures tending to debauch the morals of spectators and persons to whom same were exhibited, said pictures being motion pictures and having been exhibited by being projected on a projection screen and surface in the Hangar Theatre, by the use of a film and a projecting machine, commonly called a moving-picture machine," alleged to be in violation of law. Before pleading to the merits, the defendant filed a general demurrer, as follows: "The indictment is demurred to generally on the ground that the same fails to set forth facts constituting a criminal offense under the laws of the State of Georgia, and particularly under the statute codified as § 26-6301 of the Code of Georgia of 1933." And special demurrers: "(a) the said indictment does not allege how many pictures were possessed and exhibited in the manner pointed out in the said indictment, whether there was one picture or more pictures, or any definite number of pictures, and this defendant is put on no notice of any facts or allegations which would enable him to defend against any particular picture, if there be more than one; said indictment contains no allegation setting out the manner in which said pictures, or any of them, tended to debauch the morals of said Gilbert, Mansell, and Clayburn, or others. (b) Said indictment fails to allege what private parts of men and women were exhibited, and fails to say whether or not such private parts were imprinted upon or were a part, of or were images on the picture, or pictures, and this defendant is not put upon any notice as to whether he is charged with the exhibiting the private parts of men and women, or pictures containing imprints, images, or counterfeits of such, nor is he put upon notice as to what private parts were so exhibited. (c) Because there is no allegation in the indictment to indicate whether naked women were pictured separate and apart and in a group containing only females, or whether the pictures of naked men were pictured separate and apart and in a group containing only males, or whether there was a mixture of males and females in the group exhibited. (d) There is no allegation in said indictment tending to negative the said pictures were exhibited to a group congregated for scientific study, nor that same were exhibited as a part of a course of study of human anatomy or related subjects commonly dealt with in the study of medicine."

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 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 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. 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, 86 Ga. 717 (12 S.E. 1058), and call our attention to an excerpt from that decision as follows: "When a specific enumeration concludes with a general term, it is held to be limited to things of the same kind." Counsel then go on to give us the historical fact that motion pictures were first projected in 1889 by Thomas Edison, eleven years after the passage of the act of 1878-1879, from which Code § 26-6301 was codified, and that it was not until 1903 that motion-picture projection as we know it today was conceived.

Counsel then proceed to call our attention to the case of McBoyle v. United States, 283 U.S. 25 (51 Sup. Ct. 340,75 L.ed. 816), Justice Holmes delivered the opinion for the Supreme Court. Involved in that case was a conviction of McBoyle for transporting from Illinois to Oklahoma an aeroplane that he knew to have been stolen. The Circuit Court of Appeals affirmed the conviction. Upon certiorari to the United States Supreme Court, the inferior court was reversed. The Supreme Court held that the criminal statute regulating the transportation between States of motor vehicles or any self-propelling vehicles not designed for running on rails, knowing the same to be stolen, did not apply to aeroplanes, but that in everyday speech "vehicles" called up a picture of vehicles moving on land. It is contended that the instant case should be reversed on the principle contained in that decision of the Supreme Court of the United States.

Counsel then call our attention to the case of Hayes v.State, 11 Ga. App. 371 (75 S.E. 523), wherein this court said: "It is contended that the act of the General Assembly of Georgia, regulating the use of automobiles, and the ordinance of the City of Atlanta, both of which it is alleged in the indictment the defendant was violating at the time of the homicide, are so indefinite and uncertain as to be incapable of enforcement. It is the duty of the judicial department, wherever possible, to construe an act of the legislative department so as to make it valid and binding and give due effect to all of its terms. Hence, a statute ought not to be held void for uncertainty if it is possible to give a reasonably particular construction to its terms, so as to make them capable of enforcement. But while this is true, the State can not make an act penal without defining the act in terms sufficiently clear for any person to understand that in performing the act he is guilty of a violation of a statute. The maxim that ``ignorance of the law is no excuse for crime' is founded upon the theory that the citizen may ascertain the law and know that the act which he is performing has been condemned. If it is impossible for him to ascertain that a given act has been made penal, it would be manifestly unfair for the State to punish him for a commission of the act. If the law is of such doubtful construction, and describes the act denominated as a crime in terms so general and indeterminate, as to make the question of criminality dependent upon the idiosyncrasies of individuals who may happen to constitute the court and jury, and of such a nature that honest and intelligent men are unable to ascertain what particular act is condemned by the State, the law is incapable of enforcement and will be held to be null and void.

"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, 45 Ark. 158, it was held that a statute making it a misdemeanor to ``commit any act injurious to the public health or public morals, or the perversion or obstruction of public justice, or the due administration of the law,' is void for uncertainty. . . The same rule has been announced with reference to a statute which undertook to make penal the combining of two or more persons for the purpose of ``mob violence' the statute not undertaking to define or designate what acts should be deemed or considered mob violence. Augustinev. State, 41 Tex. Cr. R. 59, 73 (52 S.W. 77, 96 Am. St. Rep. 765. The Supreme Court of the United States has said that 'laws which create crime ought to be so explicit that all men subject to their penalties may know what acts it is their duty to avoid. Before a man can be punished, his case must be plainly and unmistakably within the statute.' U.S. v. Brewer, 139 U.S. 278,280 (11 Sup. Ct. 538, 35 L. ed. 190). A statute of Indiana undertook to make it unlawful for any person to haul over any of the turnpikes or gravel roads during certain conditions of the weather, on a narrow-tired wagon, a load of more than 2,000 pounds, or on a broad-tired wagon, a load of more than 2,500 pounds. This statute was held to be too uncertain and too indefinite for the reason that the statute did not sufficiently describe a narrow-tired wagon and a broad-tired wagon. Cook v. State, 26 Ind. App. 278 (59 N.E. 489). The Supreme Court of Wisconsin has thus announced the rule; ``A law which takes one's property or liberty as a penalty for an offense must so clearly define the acts on which the penalty is denounced that no ordinary person can fail to understand his duty and the departure therefrom which the law attempts to make criminal, since one can not be said to wilfully violate a statute which is so contradictory or blind that he must guess what his duty is thereunder'."

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, 127 Ga. 36 (56 S.E. 91); McAllister v. State, 122 Ga. 744 (2) (50 S.E. 921);Thorn v. State, 13 Ga. App. 10 (78 S.E. 853); Pritchett v. State, 51 Ga. App. 228.

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, 5 Ga. App. 716;Dukes v. State, 9 Ga. App. 537; Mathews v. State,16 Ga. App. 312; Hall v. State, 47 Ga. App. 833; Pruitt v.State, 102 Ga. 688; Glover v. State, 126 Ga. 594. Counsel contend that the crime alleged in the indictment in the instant case was never intended by the legislative enactment codified in the Code, § 26-6301, supra.

(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 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, 189 Ga. 209 (2) (6 S.E.2d 299); Martin v. State, 75 Ga. App. 807 (44 S.E.2d 562); Central ofGeorgia Ry. Co. v. State, 104 Ga. 831 (2) (31 S.E. 531);Davis v. Davison, 160 Ga. 545, 546 (128 S.E. 743);Daniel v. Citizens Southern Nat. Bank, 182 Ga. 384, 395 (185 S.E. 696); Stevens v. Duncan, 189 Ga. 730 (7 S.E.2d, 745). In the act of 1941 (Ga. L. 1941, pp. 358, 360), it is stated: "Nothing in this act shall be construed to alter or repeal Section 26-6301 of the Code of 1933. . . The General Assembly of the State of Georgia hereby expresses its intention that said section shall stand and continue as the law of the State of Georgia, and that the present enactment shall only be supplementary thereto." It will thus be observed that, even though the legislature of 1878-1879 when using the words "photographs and pictures" did not have in mind photographs and pictures as alleged in the indictment in the instant case and supported by the evidence, the General Assembly of 1935 adopting the Code of 1933 and the General Assembly of 1941 certainly knew and intended that Code § 26-6301 should apply to moving pictures and photographs as we know them today.

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,5 Ga. App. 47, 50 (62 S.E. 647), this court said: "We can not adopt the suggestion of counsel that it (Code § 26-6303) is aimed alone at language suggestive of sexual intercourse, or tending to excite lewdness or to debauch the public morals. The word 'obscene' means ``offensive to the senses, repulsive, disgusting, foul, filthy, offensive to modesty or decency, impure, unchaste, indecent, lewd'. Century Dictionary. We think that the phrase ``obscene and vulgar language,' as used in the statute, includes any foul words which would reasonably offend the sense of modesty and decency of the woman or women . . in whose presence the words were spoken, under all the circumstances of the case. It would be absurd to tolerate the suggestion that to speak of a woman's rump in a loose or jocular connection would not be offensive to the modesty and decency of the ordinary woman. . . Any gross reference to the private parts of a woman, or to any of the surrounding portions of her person, is, by common consent of mankind, indecent and shocking to feminine modesty. . . We recognize that real modesty, and not prudery, and not pruriency, is the object of the law's protection." Also, in Redd v.State, 7 Ga. App. 575 (3, 4) (67 S.E. 709), the court said: "Whether an act is decent or indecent depends upon the time, the place, and all the circumstances surrounding its commission, including the intention, actual or implied, of the actor. When, by general consensus of the people and practical unanimity of public opinion, an act tending to debauch the morals is understood to be offensive to the common instincts of decency if done under particular circumstances, that act when so done is, in contemplation of law, a notorious act of indecency." And at page 582 of the same opinion, the court points out that whether an act is indecent or obscene is "according to the prevailing social standards in this State, and according to the notions of decency and indecency now commonly recognized among our people."

In Montross v. State, 72 Ga. 261 (53 Am. R. 840), the court said: "A glance at the pictures with which the papers sent up in the record are illustrated, and a slight examination of the printed matter, will be sufficient to fix the character of this publication as indecent, with an unmistakable tendency to vitiate the public taste and to debauch the public morals." This court, in Kitchens v. State, 78 Ga. App. 795 (52 S.E.2d 564), said: "(a) Every indictment or accusation of the grand jury shall be deemed sufficiently technical and correct which states the offense in the terms and language of the Code or so plainly that the nature of the charge may be easily understood by the jury. (b) The act of appearing in a public place on the part of a man dressed only in his underwear, with a nude woman, is, by general consensus of the people and practical unanimity of public opinion, an act tending to debauch the morals, and is understood to be offensive to the common instincts of decency. Such an act, therefore, is a notorious act of indecency, and the indictment charging it alleges a violation of Code § 26-6101." The picture, "The Valley of the Nude," pictured a place where numerous men, women, and children were playing and living in the nude, exposing their persons to one another, eating, playing sleeping together — naked. In our opinion it was in violation of the statute under which the indictment was drawn and the evidence amply authorized the conviction under the general grounds.

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 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.