Dixie Books, Inc. v. State

Court of Appeals of Georgia

Dixie Books, Inc. v. State

249 S.E.2d 634, 147 Ga. App. 593, 1978 Ga. App. LEXIS 2862

CourtCourt of Appeals of Georgia

DecidedSeptember 28, 1978

Docket56505

StatusPublished

Cited by5 cases

This text of 249 S.E.2d 634 (Dixie Books, Inc. v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Dixie Books, Inc. v. State, 249 S.E.2d 634, 147 Ga. App. 593, 1978 Ga. App. LEXIS 2862 (Ga. Ct. App. 1978).

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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]*594sake, 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).

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.

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. Been, P. J., concurs specially.

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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]*594sake, 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).

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.

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. Been, P. J., concurs specially.

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249 S.E.2d 634, 147 Ga. App. 593, 1978 Ga. App. LEXIS 2862, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dixie-books-inc-v-state-gactapp-1978.

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