Cargal v. State

Bell, Chief Judge.

Defendant was convicted of selling obscene materials, two magazines, in violation of Code § 26-2101.

On October 13, 1975, a police officer purchased two magazines entitled "Little Girls Together” and "Sixty Nine,” respectively, from defendant at a book store in Atlanta. The front of the store advertised "Adult Books” and "Mini Movies.” Held:

1. Defendant complains that the evidence does not support the verdict in that the state’s proof was insufficient to establish the requisite scienter or knowledge of the obscene nature of the materials. There was sufficient evidence adduced from which the jury could find that the defendant had knowledge of the content and nature of the materials. See Dyke v. State, 232 Ga. 817 (209 SE2d 166).

Submitted September 21, 1977 Decided November 14, 1977 Rehearing denied December 5, 1977 Michael Clutter, Robert Eugene Smith, for appellant. Arthur K. Bolton, Attorney General, Hinson McAuliffe, Solicitor, Leonard W. Rhodes, Richard E. Stark, Assistant Solicitors, for appellee.

2. Defendant urges that the magazines are not obscene as a matter of law and thus protected under the First and Fourteenth Amendments. We have examined each and hold them to be hard core pornography and obscene under our obscenity statute, Code § 26-2101 (b).

3. The court charged the jury on knowledge in the language contained in Code § 26-2101 (b). The contention that this charge failed to meet minimum constitutional standards enunciated in Hamling v. United States, 418 U. S. 87 (94 SC 2887, 41 LE2d 590) has no merit as it has previously been rejected by the Supreme Court in Sewell v. State, 238 Ga. 495 (233 SE2d 187).

Judgment affirmed.

McMurray and Smith, JJ., concur.