Petition — Ballew v. Georgia

IN THE

Supreme Court of the United States

OCTOBER TERM, 1976

a

EE

CLAUDE D. BALLEW,

Petitioner

STATE OF GEORGIA,

Respondent

PETITION FOR A WRIT OF CERTIORARI

ro TH

GEORGIA COURT OF APPLALS

ROBERT FUGENE SMITH, Esq

1409 Peachtree St., NE.

Atlanta, Georgia 30309

ittorney for Petitioner

Oy Counsel

MICHAEL CLUTTER, Esq

1409 Peachtree St., N.E.

Atlantia, Georgia 30309

‘ intel a —_— ;

The Paul M. Harrod Company, Baltumore, Maryland 21234

INDEX

TABLE OF CONTENTS

Page

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Questions Presented bundweuaked seek eubesehbesnenkaal 2

Constitutional and Statutory Provisions

Dl ~dedeed be ecb den eheees bbhescebecocbeutes 3

Dt; sends eee b hed ae ierdd we hea ee bee ae bee one 3

Reasons for Granting the Writ: —

1. This case presents for review an issue

expressly reserved by this court in

Williams v. Florida, 399 U.S. 78 (1970) —

The minimum number of jurors required

to guarantee the constitutional right

to jury trial in criminal cases................... 4

Il. The jury instructions on the issue of

scienter failed to meet the minimum

constitutional standards enunciated by this

court in Hamling v. United States, 418

Dt -. dence eeeiedendmaeedtecenbe’ 9

Ill. The motion picture film “Behind the

Green Door” upon which petitioner's con-

viction rests is an artistic work of national

acclaim which may not, as a matter of

applicable constitutional law, be held

obscene since it constitutes expression

protected under the First and Fourteenth

Amendments to the United States Con-

a he i a es ee ad

ii

Page

ed es le oe ee ee eee eld Cae ie ee ae. 16

INDEX TO APPENDICES

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cid « 6 dhe 66 0nd 6 6066 H400 00 eb eb 0d ben bes )

RE a ee oe eee ee 10

TABLE OF CITIATIONS

Cases

Aday v. United States, 388 U.S. 447 (1967).............. 14

Baldwin v. New York, 399 U.S. 66 (1970) ............. —

Corinth Publications v. Westberry, 388 U.S. 448 (1967)... .. 14

DeStefano v. Woods, 392 U.S. 631 (1968) ................ 5

Duncan v. Louisiana, 391 U.S. 145 (1968).............. 4.5

Grove Press v. Gerstein, 378 U.S. 577 (1964)... .......... 14

Hamling v. U.S., 418 U.S. 87 (1974). ............. —

Hoyt v. Minnesota, 399 U.S. 524(1970)................ 14

Jacobellis v. Ohio, 378 U.S. 184 (1964) ............. 12,14

Jenkins v. Georgia, 418 U.S. 153 (1974)... .............. 14

Manual Enterprises, Inc. v. Day, 370 U.S. 478 (1962)... . 11,12

Viazes v. Ohio, 388 U.S. 453 (1967).............-2..0.2.. 14

Memoirs v. Massachusetts, 383 U.S. 413 (1966)........... 14

Mishkin v. New York, 383 U.S. 502 (1966) .............. 10

Pinkus v. California, 400 U.S. 922 (1970)................ 15

Pinkus v. Pitchess, 429 F.2d 416 (CA 9 1970) ............ 15

Sanders v. State, 234 Ga. 586, 216 S.E.2d 838............. 6

Smith v. California, 361 U.S. 147 (1959) ........00...... 10

Williams v. Florida, 399 U.S. 78 (1970) ............4,6,7,8,9

ill

Page

Articles

Zeisel, The Waning of the American Jury,

ES ee 8

Diamond, A Jury Experiment reanalyzed,

7 Mich. Journal of Law Reform 520................. 8

Zeisel & Diamond, Convincing Empirical Evidence

41 Univ. of Chicago Law Review281................. 8

Miscellaneous

Georgia Constitution (Georgia Code Annodated)

a

Georgia Laws 1935, Volume 2, p. 498 ...................3

United States Constitution:

ee a ec ecole veaseutses 3,10,11,15

EN i a 3,4,5,7

Fourteenth Amendment............... 34 10,11,15

IN THE

Supreme Court of the United States

OCTOBER TERM, 1976

CLAUDE D. BALLEW,

Petitioner

STATE OF GEORGIA.

Re spondent

PETITION FOR A WRIT OF CERTIORARI

TO THE

GEORGIA COURT OF APPEALS

Ihe Petitioner respectfully prays that a Writ of Certiorari

issue to review the opinion and judgment of the Georgia Court

of Appeals entered in the above case on April 6, 1976

OPINION BELOW

The opinion of the Georgia Court of Appeals is not yet

reported, but a copy thereof is set forth in Appendix A hereto

2

JURISDICTION

The Judgment of the Georgia Court of Appeals was

entered on April 6, 1976. An application for rehearing was

timely filed and denied on May 6, 1976. Copy of said denial is

sei forth in Appendix B hereto. Thereafter, the Supreme Court

of Georgia denied a,timely filed Petition for Writ of Certiorari

on July 9, 1976. Copy of said denial is set forth herein in

Appendix C. Mr. Justice Powell grantec! an extension of time to

and including December 6, 1976 within which to file this

Petition. The Court's jurisdiction is invoked under Title 28

United States Code § 1257(3).

QUESTIONS PRESENTED

1. Whether a jury comprised of five persons is sufficient

to afford to an accused in a criminal prosecution the right to

trial by jury granted by the Sixth and Fourteenth Amendments

to the United States Constitution?

2. Whether jury instructions on scienter allowing a find-

ing of “constructive knowledge” in an obscenity case are

sufficient to meet the constitutional minimum standards of

scienter set forth in Hamiling v. United States, 418 U.S. 87

(1974)?

3. Whether the motion picture film “Behind the Green

Door” can, as a matter of law, be held obscene or whether it

constitutes speech protected by the First and Fourth Amend-

ments to the United States Constitution?

3

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The pertinent provisions of the First, Sixth, and Four-

teenth Ame idments to the United States Constitution, as well

as Article V1, Section XVI of the Georgia Constitution (Georgia

Code Annotated §2-5101) and an Act Establishing the Criminal

Courts of Atlanta (Georgia Laws 1890-91, Volume 2, p. 935,

as amended by Georgia Laws 1935, Volume 2, p. 498) are set

forth in Appendix D hereto.

STATEMENT

Petitioner was convicted in the Criminal Court of Fulton

County on two counts of distributing obscene materials, the

charges being predicated upon two exhibitions of the motion

picture film “Behind the Green Door” at the Paris Art Theatre

in Atlanta, Georgia. Petitioner was alleged to have been an

employee of the theatre at the time the film was exhibited.

Prior to his trial, Petitioner filed several motions in the

Criminal Court of Fulton County, including a Motion to

Impanel a Twelve-Person Jury in the Superior Court of Fulton

County, alleging that the five-person juries provided in the

Criminal Court of Fulton County are unconstitutional. All of

Petitioner's motions were denied.

Petitioner was then tried before a five-person jury in the

Criminal Court of Fulton County and found guilty on both

counts. He thereafter appealed his conviction to the Georgia

Court of Appeals which affirmed the trial judgment in all

respects in a judgment and opinion for which review is sought

by this Petition.

4

REASONS FOR GRANTING THE WRIT

THIS CASE PRESENTS FOR REVIEW AN ISSUE

EXPRESSLY RESERVED Br THIS COURT IN

WILLIAMS V. FLORIDA, 399 US. 78 (1970) —

THE MINIMUM NUMBER OF JURORS REQUIRED

TO GUARANTEE THE CONSTITUTIONAL RIGHT

TO JURY TRIAL IN CRIMINAL CASES.

The as yet undecided status of the issue here presented for

review - the minimum number of jurors necessary to guarantee

the constitutional right to a trial by jury in criminal matter —

was explicitly recognized in Williams v. Florida, 399 U.S. 78

(1970). The Williams case presented two issues of major import,

one of them dealing with the Sixth Amendment right to jury

trials as applied to the States through the Fourteenth Amend-

ment.

Williams was convicted of robbery in a Florida State

Court, his judgment of conviction being predicated upon a

verdict of guilty returned by a six-person jury. Prior to his trial,

Williams had sought to empanel a twelve-person jury, challeng-

ing the Florida State statute which provides for six person juries

in all but capital cases. His motion was denied and the issue of

the constitutionality of juries comprised of less than twelve

persons was therefore presented in this Court.

The Court first of all noted that the Sixth Amendment

right to trial by jury in criminal cases had been made applicable

io the States through the Fourteenth Amendment in Duncan v.

Louisiana, 391 U.S. 145 (1968). It was noted that, pursuant to

5

Duncan, the Fourteenth Amendment guarantees an accused in

state criminal trials the right to a jury in all cases which would

invoke such a right if tried in federal court. Williams’ robbery

trial clearly fell within the scope of the Duncan holding. See

Baldwin v. New York, 399 U.S. 66 (1970) and De Stefano v.

Woods, 392 U.S. 63! (1968).

Having noted that the Sixth Amendment right to jury trial

in criminal matters was thus applicable, this Court went on to

decide whether that concept of “trial by jury” necessarily

required a state jury of twelve persons:

“The question in this case then is whether the con-

stitutional guarantee of a trial by ‘jury’ necessarily

requires trial by exactly 12 persons, rather than some

lesser number — in this case, 6.” 399 US., at 86.

The Court rejected the Petitioner’s contention and held

that, in order to adequately guarantee the constitutional nght

to jury trial in criminal matters, States need not provide for

juries of exactly twelve persons:

“We hold that the 12-man panel is not a necessary

ingredient of ‘trial by jury,’ and that respondent's

refusal to empanel more than 6 members provided

for by Florida law did not violate petitioner's Sixth

Amendment rights as applied to the States through

the Fourteenth.” /d.

In thus deciding that a twelve-person jury is not consti-

tutionally mandated, however, this Court did not determine

what minimum number would be required to guarantee this

Sixth Amendment right. Indeed, that question was expressly

reserved:

6

“We have no occasion in this case to determine what

minimum member can still constitute a ‘jury,’ but we

do not doubt that 6 is above that minimum.” 399

U.S., at 91 n.28.

The fact that the question was left unresolved in Williams

was expressly noted by the Georgia Court of Appeals in reject-

ing Petitioner’s argument in this case. The failure of this Court

to determine what minimum number can still constitute a

“jury” was cited below as, inrer alia, the justification for rejec-

tion of Petitioner's argument at the State level:

“The Supreme Court of the United States has not

determined what minimum number of jurors can

still constitute a ‘jury.’ In Williams v. Florida, 399

U.S. 78, 92, 90 S.Ct. 1893, 1901, 26 L.Ed.2d 446

(Fn. 28) it is observed “We have no occasion in this

case to determine what minimum number can still

constitute a “jury,” but we do not doubt that six is

above that minimum.’ Absent a holding by the

United States Supreme Court that a five-man

jury is constitutionally inadequate, we approve the

constitutional minimum of five prescribed by the

1945 Constitution of Georgia for all courts except

superior courts.” Ballew v. State, Ga. App.

: S.E.2d , quoting Sanders y.

State, 234 Ga. 586, 216 S.E.2d 838.

The instant Petition squarely presents the issue for final

resolution by this Court. Whatever the outcome, it is respect-

fully submitted that the open-ended uncertainty precipitated

by the Williams footnote should be eliminated. As was noted

by Mr. Justice Harlan in Williams, supra:

>

. o™\

“The court's elaboration of what is required provides

no standard and vexes the meaning of the right to a

jury trial in federal courts, as well as state courts, by

uncertainty . . . . The uncertainty that will hence-

forth plague the meaning of trial by jury is itself a

further sufficient reason for not hoisting the anchor

to history.” 399 U.S., at 126.

It is also necessary to delineate the minimum number

required to safeguard the Sixth Amendment guarantee of trial

by jury in order to eliminate the “slipper slope” recognized

by the Court in Williams, supra:

“The Thompson opinion also reasoned that if a jury

can be reduced from 12 to eight, then there was

nothing to prevent its similarly being reduced to four

or two or even zero, thus dispensing with the jury

altogether. See 170 US at 353, 42 L Ed at 1067. That

bit of logic, resurrected today in Mr. Justice Harlan’s

concurring opinion, post, at 126, 26 L Ed 2d at 468,

suffers somewhat as soon as one recognizes that he

can get off the slippery slope before he reaches the

bottom.” 399 U.S., at 91 n.28.

When viewed in light of the purposes of the jury trial right,

it cannot be doubted that the jury of five provided for the

Petitioner in this case was insufficient. It has been recognized

that among the purposes of a jury trial in criminal matters is

that of interposing members of the community between

corrupt or overzealous prosecutors and compliant judges:

“Providing an accused with the right to be tried by

a jury of his peers gave him an inestimable safe-

guard against the corrupt or overzealous prosecutor

and against the compliant, biased, or eccentric

judge.” 391 U.S., at 156.

This purpose was expounded upon by this Court in Williams

which noted that the jury also serves the purpose of providing

the common sense judgment of the community:

“{T}he essential feature of a jury obviously lies in

the interposition be*ween the accused and his accuser

of the common sense judgment of a group of laymen,

and in the community participation and shared

responsibility that results from that group's

determination of guilt or innocence.” 399 U.S., at 99.

The Court in Williams, although failing to reach the issue

of the required minimum, did enunciate the principles to be

applied in that determination:

“{T]he number should probably be large enough to

promote group deliberation, free from outside

attempts at intimidation, and to provide a fair pos-

sibility for obtaining a representative cross section of

the community.” /d.

When judged against these criteria, the five-person jury pro-

vided by the Georgia statute here under review must be found

wanting. Statistical studies subsequent to the Williams decision

have adequately established that smaller juries are significantly

less representative of minority positions. See, e.g., Zeisel, The

Waning of the American Jury, 58 A.B.A. Journal 367;

Diamond, A Jury Experiment Reanalyzed, 7 Mich. Journal of

Law Reform 520; Zeisel and Diamond, Convincing Empirical

Evidence, 41 University of Chicago Law Review 281.

If the purpose of a jury is to interpose the conscious of

the community between the prosecutor and a compliant judge,

a broad cross-section must be afforded in order to assure that

the compliant judge is not merely replaced by a single com-

pliant juror with the ability to determine guilt or innocence.

9

Group deliberation and group dynamics necessitate at least the

six-person minimum found constitutionally acceptable in

Williams.

THE JURY INSTRUCTIONS ON THE ISSUE OF

SCIENTER FAILED TO MEET THE MINIMUM

CONSTITUTIONAL STANDARDS ENUNCIATED

BY THIS COURT IN HAMLING V. UNITED

STATES, 418 U.S. 87 (1974).

The jury which tried Petitioner instructed in an improper

manner upon the issue of scienter or knowledge on the part of

the Petitioner. As to the issue of knowledge, the jury was

instructed as foliows:

“(T]he word ‘knowing’ as used herein shall be

deemed to be either actual or constructive know-

ledge of the obscene content of the subject matter.

And a person has constructive knowledge of the

obscene content if he has the knowledge of facts

which would put a reasonable and prudent man on

notice as to the suspect nature of the material.”

The instruction to return a verdict of guilty upon a find-

ing of “constructive knowledge” is patently erroneous when

the current constitutional minimum standards of scienter are

considered. The most recent decision of this Court on the

requirements of scienter is Hamling v United States, 418 U.S.

87 (1974). There, the Court states:

“We think the ‘knowingly’ language of 18 U.S.C.

§ 1461 and the instructions given by the district court

in this case satisfy the constitutional requirements of

10

scienter. It is constitutionally sufficient that the

prosecution show that the defendant had knowledge

of the contents of material he distributes, and that he

knew the character and nature of the materials.”

As the above decision clearly demonstrates, the Con-

stitution requires a finding of actual rather than constructive

knowledge. The requirement of actual knowledge is necessary

to eliminate the chilling effect which will flow from any

lesser standard. Smith v. California, 36' US. 147 (1959).

As the Court stated in Mishkin vy. New York, 383 US.

502 (1966):

“The Constitution requires proof of scienter to avoid

the hazard of self-censorship of constitutionally

protected material and to compensate for the

ambiguities inherent to the definition of obscenity.”

s The present constitutional minimum standard of scienter

clearly requires actual knowledge. The trial Court erroneously

instructed the jury that a finding of guilty could be predicated

upon constructive knowledge.

The Court of Appeals rejected Petitioner's argument in

this regard by noting that the instruction is in accordance with

Georgia statutes. This overlooks the fact that the argument is

constitutionally based and that a statute may not authorize

that which the Constitution forbids. Petitioner’s argument in

this regard is predicated upon rights derived from the First and

Fourteenth Amendments to the United States Constitution.

Since these rights may not be abrogated by any state statute,

reliance upon the authorization of the statute does not answer

Petitioner's constitutional objections.

The present constitutional minimum standards of scienter

clearly require actual knowledge. The trial Court erroneously

instructed the jury that a finding of guilty could be predicated

upon constructive knowledge as well as actual knowledge.

Petitioner’s conviction must, therefore, be reversed.

THE MOTION PICTURE FILM “BEHIND THE

GREEN DOOR” UPON WHICH PETITIONER’S

CONVICTION RESTS IS AN ARTISTIC WORK OF

NATIONAL ACCLAIM WHICH MAY NOT, AS A

MATTER OF APPLICABLE CONSTITUTIONAL

LAW, BE HELD OBSCENE SINCE IT CON-

STITUTES EXPRESSION PROTECTED UNDER

THE FIRST AND FOURTEENTH AMENDMENTS

TO THE UNITED STATES CONSTITUTION.

The Court is respectfully requested to independently

review the alleged obscenity of the motion picture film upon

which Petitioner's conviction is predicated. The doctrine

necessitating an independent appellate review of the alleged

obscenity of materials found obscene at the trial level had its

origins in this Court’s decision in Manual Enterprises, Inc. v

Day, 370 U.S. 478 (1962). That case involved action by a

local postmaster in withholding delivery of certain magazines

after finding them obscene. The publishers who had mailed the

magazines brought suit in the United States District Court

seeking injunctive relief. but their complaint was dismissed

without opinion. The Court of Appeals affirmed the dismissal,

holding that the evidence supported the administrative findings

that the magazines were obscene and thus non-mailable matter.

This Court reversed in a judgment announced by Mr. Justice

Harlan.

The Court thought the dispositive question to be whether

or not the magazines were in fact obscene. 370 U.S., at 488. On

this issue, the Court noted that the determination below had

been made under improper assumptions as to the law of

obscenity. The Court, however, decided against remanding the

case for an initial determination of the obscenity issue below:

“Whether this question [of obscenity] be deemed

one of fact or of mixed fact and law, see Lockhart

and McClure, Censorship of Obscenity: The Develop-

ing Constitutional Standards, 45 Minn L Rev 5, 114-

115 (1960), we see no need of remanding the case

for initial consideration by the Post Office

Department or the Court of Appeals of this missing

factor in their determinations.” 370 U.S., at 488.

The Court decided that the determination of that issue must

ultimately rest with it:

“That issue, involving factual matters entangled in a

constitutional claim, see Grove Press, Inc. v. Christen-

berry (CA 2 NY) 276 F2d 433, 436, is ultimately one

for this Court. The relevani materials being before us,

we determine the issue for ourselves.” /d.

The doctrine of independent review was again invoked by

this Court in Jacobellis v. Ohio, 378 US. 184 (1964).

Jacobellis involved a conviction of a Cleveland, Ohio motion

picture theatre operator for possessing and exhibiting the film

“The Lovers.” On appeal, this Court reversed in a judgment

announced by Mr. Justice Brennan. On the issue of independent

review, Mr. Justice Brennan, relying in part upon Manual Enter-

prises, Inc. v. Day, supra, states:

13

“Since it is only ‘obscenity’ that is excluded from the

constitutional protection, the question whether a

particular work is obscene necessarily implicates an

issue of constitutional law. See Roth v. United States,

supra, 354 US, at 497-498, 1 L ed 2d at 1541, 1515

(separate opinion). Such an issue, we think, must

ultimately be decided by this Court. Our duty admits

of no ‘substitute for facing up to the tough individual

problems of constitutional judgment involved in

every obscenity case.’ Id., at 498, | Led 2d at 1514;

see Manual Enterprises, Inc. v. Day, 370 US 478, 488,

8 L ed 2d 639, 647, 82 S Ct 1432 (opinion of Harlan,

J.)." 378 US., at 188.

It was noted that the duty of appellate review is not a pleasant

one, but it was held to be one which must be exercised:

“We are told that the determination whether a

particular motion picture, book, or other work of

expression is obscene can be treated as a purely

factual judgment on which a jury’s verdict is all but

conclusive, or that in any event the decision can be

left essentially to state and lower federal courts, with

this Court exercising only a limited review such as

that needed to determine whether the ruling below is

supported by “sufficient evidence.” The suggestion is

appealing, since it would lift from our shoulders a

difficult, recurring, and unpleasant task. But we

cannot accept it. Such an abnegation of judicial

supervision in this field would be unconsistent with

our duty to uphold the constitutiona! guarantees.”

378 U.S., at 187-188.

Mr. Justice Brennan, in an opinion joined by Mr. Justice Gold-

berg, went on to conclude that reversal was necessary since the

film “The Lovers” was not obscene. This conclusion as to the

film was concurred in by Mr. Justice Stewart.

14

The continuing validity of the Jacobellis doctrine and of

the appellate duty it imposes was affirmed by this Court only

recently in the case of Jenkins v. Georgia, 418 U.S. 153 (1974),

That case involved a conviction under a state obscenity statute

founded upon the exhibition of the film “Carnal Knowledge.”

This Court reversed the conviction based upon its own viewing

of the film, and the finding that the film could not, as a

matter of constitutional law, be heid obscene.

The Court is respectfully called upon to perform the

judicial duty above delineated and thus to determine the

obscenity vel non of the nationally acclaimed motion picture

film “Behind the Green Door’ upon which Petitioner’s convic-

tion rests.

In any independent review, the past findings of this Court

on the sole issue of obscenity have obvious bearing. In this

respect it is important to note that findings of obscenity have

been reversed by this, Court as to press materials devoted

entirely to explicit depictions or descriptions of sexual

activities, including detailed and vernacular descriptions reach-

ing the ultimate in explicitness as to heterosexual intercourse,

masturbation, beastiality, oral-genital intercourse, sado-

masochism, and homosexual activity. See, €.g., Memoirs y.

Massachusetts, 383 U.S. 413 (1966) (“Fanny Hill”); Aday

v. United States, 388 U.S. 447 (1967) (“Sex Life of a Cop”

described at 357 F.2d 855); Corinth Publications v. West-

berry, 388 U.S. 448 (1967) (“Sin Whisper” described at

146 S.E.2d 764); Mazes v. Ohio, 388 US. 453 (1967)

(“Orgy Club”); Hoyt v. Minnesota, 399 US. $24 (1970)

(“The Way of a Man with a Maid,” “Lady Susan's Cruise

Lover,” and three other books); Grove Press y. Gerstein,

378 U.S. 577 (1964) (“Tropic of Cancer”).

1S

In the area of motion picture films. this Court has

reversed findings of obscenity as to films which depict totally

nude women; films which depict nude and partially nude men

and women engaged in sexual gyrations. simulated inter-

course, and simulated oral-genital contact. all emphasizing

pubic and rectal area: and films depicting lesbian sexual activity

and hetero-sexuai activity between men and women Moreover.

this Court has affirmed a reversal by the Ninth Circuit Court of

Appeals of a finding of obscenity as to a “stag film depicting a

nude woman masturbating, with emphasis on the female

genitalia and sexual gyrations.” Pinkus v. Pitchess. 429 F 24

416 (CA 9 1970), affirmed sub nom Pinkus » California, 400

U.S. 922 (1970)

When the nationally acclaimed motion picture film

“Behind the Green Door” is considered as a whole and judged

against press materials of a similar or more explicit nature here-

tofore determined by this Court not to be obscene, the

conclusion is inescapable that the film constitutes protected

speech under the First and Fourteenth Amendments to the

Constitution of the United States. It should be so held and

Petitioner's conviction should thus be reversed

16

CONCLUSION

For the foregoing reasons, a Writ of Certiorari should issue

to review the judgment and opinion of the Georgia Court of

Appeals.

Respectfully submitied,

ROBERT EUGENE SMITH, Esq.

1409 Peachtree Street, NE.

Atlanta, Georgia 30309 |

(404) 892-8890

Attorney for Petitioner.

Of Counsel:

MICHAEL CLUTTER, Esq.,

1409 Peachtree Street, N.E.

Atlanta, Georgia 30309

(404) 892-8890

A.l

APPENDIX “A”

51795. BALLEW(C. D.) v. THE STATE. W-33

WEBB, Judge.

Claude Ballew appeals his conviction on two counts of

distributing obscene materials in violation of Criminal Code §

26-2101. The conviction involved the exhibitions on

November 9 and 26, 1973 at an Atlanta theatre of motion

picture films entitled “Behind the Green Door.” Ballew

enumerates thirteen alleged errors, consolidated on argument

into six issues.

1. The first is that the film is not obscene under

applicable constitutional law. We were requested to make an

independent appellate review of the film and make our own

determination of obscenity vel non.

Our Constitution provides that both of our appellate

courts are“for the trial and correction of errors of law .. .”

Art. VI, Sec. Il, Pars. [V and VIII (Code Ann. §§ 2-3704,

3708). There is no constitutional provision for an independent

appellate determination of the weight of evidence. and it

seems to have been well settled that the appellate court's

review as to evidence is limited to its legal sufficiency, not its

weight. Proctor v. State, 235 Ga. 720, 721 (221 SE.2d 413):

Ridley v.. State. Ga. ( SE.2d ) (#30426, Feb 2,

1976). Even so, our Supreme Court has made de novo

independent reviews of movie films to decide the constitutional

fact of obscenity without reference to the “trial and correction

of errors of law” constitutional limitation. Slaton v Paris

Adult Theatre 1, 23) Ga. 312, 318 (201 Sk.2d 456, 413 US.

49, 93 SC 2628, 37 LE2ld 446), Dyke v State, 232 Ga. 817

(209 SE.2d 166) (cert. denied by US. Supreme Court April

28. 1975}.

A.2

Our view has been that we are limited to a determination

of whether there was sufficient evidence to support the jury's

verdict. The Supreme Court of the United States held, however,

that on appeal in an obscenity case the appellate court cannot

merely decide whether there was sufficient evidence to support

a finding by the jury that the material is obscene, but must

review independently the constitutional fact of obscenity

and make a determination of such vel non. Miller yv. California

413 U. S. 15, 25 (93 SC 2607, 37 LE.2d 419): Jenkins v

Georgia, 418 U.S. 153, 160 (6) 164 (94 SC 2/50. 41 LE.2d

642, 650, 652). That Court held that juries do not have

unbridled discretion in determining what is patently offensive,

and the jury’s verdict does not preclude all further appellate

review of an accused's assertion that his film was protected by

the First and Fourteenth Amendments.

This issue of independent review had been invoked earlier

in Jacobellis v. Ohio, 378 U.S. 184, 188 (84 SC 1676, 12 LE.2d

793, 798) wherein Mr. Justice Brennan stated: “Since it is only

‘obscenity’ that is excluded from the constitutional protection,

the question whether a particular work is obscene necessarily

implicates an issue of constitutional law [cit. omitted]. Such an

issue, we think, must ultimately be decided by this Court.

Our duty admits of no ‘substitute for facing up to the tough

individual problems of constitutional judgment involved in

every obscenity case.” ”

| Mr. Justice Brennan also said that failure to independently

review would be “an abnegation of judicial supervision. . .

inconsistent with our duty to uphold the constitutional

guarantee.”

Our own Supreme “Court stated in Dyke v. State. 232 Ga.

817, 821, supra: “We are not bound to approve the jury's

finding that this film is obscene, since it is clear the United

States Supreme Court has determined that an independent

appellate review must be made of the material to decide the

constitutional fact of obscenity.”

A. 3

Our duty to uphold the constitutional guarantees is no

less than that of the justices of the respective supreme courts

of the United States and of this State, and although we abhor

even the suggestion of censorship we nevertheless viewed an

exhibition of this film in its entirety. Our purpose was two-

fold; to determine if there was sufficient evidence to support

the verdict; and, in accordance with the decisions of those

courts cited hereinabove (which in our opinion exceed our

constitutional appellate review limitation) to decide by an

independent appellate review the constitutional fact of

obscenity vel non. “{T]here comes a point where this Court

should not be ignorant as judges of what we know as men.”'

Section 26—2101(b) of the Criminal Code in effect at

the time of the violations* provided: “Material is obscene

if considered as a whole, applying community standards, its

predominant appeal is to prurient interest, that is, a shameful

or morbid interest in nudity, sex or excretion, and utterly

without redeeming social value and if, in addition, it goes

substantially beyond customary limits of candor in describing

or representing such matters.”

The film, considered as a whole, and applying contem-

porary community standards, predominantly appeals to the

prurient interest. It is without redeeming social value, and it

is 2 shameful and morbid exhibition of nudity with particular

and all-encompassing emphasis on sexual acts. It goes sub-

stantially beyond customary iimits of candor in representing

and portraying nudity and sex. The film presents patently

' Mr. Justice Frankfurter in Warts v. Indiana, 338 U.S. 49,

$2, sc _93 LE 1801, 1805. See Bryon v. Felker, Ga.

App. ( SE )(No. 51675, decided Jan. 28, 1976).

2 The law was amended in 1975 and broadens somewhat

the definition of obscene materials. Ga. L. 1975, p. 498.

A.4

offensive exhibitions and representations of ultimate sexual

acts and manipulations, normal and perverted. It shows

unabashedly offensive and lewd views of the genitals of both

male and female participants, and is replete with portrayals of

individual and group acts of masturbation, cunnilingus, fellstio

and sexual intercourse. It is degrading to sex. Except for the

opening and a few other scenes toward the conclusion, it is

rank, hard core pornography, and each exhibition in the theatre

was “a public portrayal of hard core sexual conduct for its own

sake, and [presumably] for the ensuing commercial gain.”

Miller v. California, 413 U.S. 15, 35 supra. The film “Behind

the Green Door” is obscene as a matter of constitutional law

and fact, and is unprotected by the First and Fourteenth

Amendments. Miller v. California, 413 U.S. 15, 23, supra; see

also, Liles v. Oregon, 543 P.2d 698, 44 LW 3623 (cert. den.

by United States Supreme Court May 3, 1976, 75—983),.

2. Ballew’s second contention is that the evidence was

insufficient to support the verdict. We do not agree.

The film, obviously, is the best evidence of what it re—

presents, and having been before the trial court no other

affirmative evidence is necessary to determine its obscenity

vel non. Examining the record and viewing a projection of the

film, we conclude that the jury’s determination that the picture

was obscene was supported by the evidence. Paris Adult Theatre

Lv. Slaton, 413 U.S. 49, 56, supra; Hamling v. United States,

418 U.S. 87, 100, 94 SC 2887, 41 LE.2d 590, 610. “Sex and

nudity may not be exploited without limit by films or picutres

exhibited or sold in places of public accommodation any more

than live sex and nudity can be exhibited or sold without limit

in such public places.” Miller v. California, 413 U.S. 15, 25,

supra.

Ballew asserts, however, that the evidence was insufficient

to connect him, beyond a reasonable doubt, with the exhibition

of this film, “* Behind the Green Door.” The theatre he managed

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was an “adult theatre, and the film was advertised on the

marquee. He was present when the film was exhibited on the

dates of his arrest. On at least one of the occasions involved

herein he sold tickets, and pressed a button to allow entrance

into the seating area. He checked the cash register and locked

the door after each arrest.

In Dyke v. Georgia, 232 Ga. 817, 822, supra, “Appellant

furhter argues the evidence is legally insufficient to sustain

his conviction for exhibitior. of this film because it failed to

show he had control over the showing of the film or knowledge

of its content. The evidence shows that the film was advertised

on the marquee of the theatre managed by appellant and that

the threatre was an ‘adult theatre.” Appellant was shown to

be on the premises when the film was exhibited on the two

separate dates charged in the accusation and, on the second

occassion, appellant sold tickets for admission to see it. This

was sufficient for the jury to conclude that on each occasion

appellant at least aided and abetted in the exhibition of the

film. See Code Ann. § 26-801.”

We also reject Ballew’s assertion that the evidence failed

to prove guilty knowledge by him of the nature of the film.

Under Criminal Code § 26—2101(a) “knowing” as used therein

“shall be deemed to be either actual or constructive knowledge

of the obscene contents of the subject—matter; and a person

has constructive knowledge of the obscene contents if he has

knowledge of facts which would put a reasonable and prudent

man on notice as to the suspect nature of the material.” See

Dyke v. State, at page 822, and cases cited.

3. The next argument is that the trial judge improperly

instructed the jury as to the law so as to deny him his con—

stitutional rights guaranteed by the First, Fifth and Fourteenth

Amendments. An examination of the various charges

complained of, however, reveals that they as a whole comport

with Criminal Code § 26-2101, and those approved in Dyke v.

State, 232 Ga. 817, supra, and Slaton v. Paris Adult Theatre /.

A. 6

231 Ga. 312 supra. One charge complained of was a quotation

of the definition of obscene material as set forth in § 26—2101.

There is no merit in this complaint.

4. Error is charged on the Court's denial of Ballew’s

motion to supress the motion picture film because the search

warrants were issued upon affidavits allegedly insufficient to

supply probable cause. This same contention was made in

Dyke v. Georgia, 232 Ga. 817, 823, 824, supra. The affidavits

upon which the two search warrants were issued herein contain

rather accurate and full factual descriptions of representative

scenes on the film, and were sutficient to show probable cause

for issuance of the warrants.

5. Ballew contends his conviction on two counts in the

accusation were but a single transaction and his conviction

thereon violated his constitutional rights against double

jeopardy as guaranteed by the Fifth Amendment and the

Georgia Constitution. Interestingly, this same argument was

made in Dyke v. Georgia, 232 Ga. 817, 827, supra, counsel for

Ballew having been counsel for Dyke.

Here, the accused was first arrested for showing the film

on November 9, and the film was seized under the search

warrant. The accused waived commitment hearing. Subse —

quently, the accused was arrested on another warrant for

showing the same picture, from another copy of the film, on

November 26. The statement of Mr. Justice Ingram in the

Dyke case (232 Ga. at pages 827, 828) is equally applicable

here. “Appellant argues that the accusation charged him in two

counts of violating the same statute and that the proof involved

a regularly scheduled showing of a motion picture in a theatre

with no disruption in scheduling. The exhibition of the film on

two separate dates, appellant argues, does not permit the state

to ‘pyramid’ the charges and punishment against him. . . but

that is not the case here. There were two distinct episodes

involving different dates of exhibition and even different

copies of the same film. This record shows two criminal

violations, not a single crime.” So it is in this case.

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6. Lastly, appellant complains that he was denied his

right to jury trial under the Sixth and Fourteenth Amendments

by being tried before a five—person jury in the Criminal Court

of Fulton County.

This contention was ruled upon in Sanders v. State, 234

Ga. 586 (216 SE.2d 838) (cert. denied by U.S. Supreme Court

Feb. 23, 2976) wherein the Supreme Court said: “We reject

this argument in view of Gerogia authority to the contrary. See

McIntyre v. State, 190 Ga. 872 (5) (11 SE.2d 5). The Supreme

Court of the United States has not determined what minimum

number of jurors can still constitute a ‘jury.’ In Williams y.

Flordia, 399 U.S. 78, 92 (Fn. 28) it is observed: “We have no

occasion in this case to determine what minimum number can

still constitute a “jury,” but we do not doubt that six is above

that minimum.” Absent a holding by the United States Supreme

Court that a five-man jury is constitutionally inadequate, we

approve the constitutional minimum of five prescribed by the

1945 Constitution of Georgia for all courts except superior

courts.”

We find no error and affirm the trial court

Deen, P. J., and Quillian, J., concur.

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APPENDIX “B”

GEORGIA COURT OF APPEALS

May 6, 1976

51795. BALLEW (C. D.) V. THE STATE W-33

Please substitute the attached new page 7 for that

previously furnished in the opinion rendered in the above

case on April 6, 1976. The judgement is not affected and the

motion for rehearing is denied.

A.9

APPENDIX “C”

CLERK'S OFFICE, SUPREME COURT OF GEORGIA

Atlanta July 9, 1976

Dear Sir;

Case No. 31362 Claude Davis Ballew v. The State.

The Supreme Court today denied the writ of certioran

in this case.

Very truly yours,

MRS. JOLINE B. WILLIAMS,

Clerk

tv

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APPENDIX “D”

Constitutional and Statutory Provisions

The pertinent provisions of the First Amendment are:

“Congress shall make no law . . . abridging the freedom of

speech, or the press...”

The pertinent provisions of the Sixth Amendment are:

“In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury of

the State and district wherein the crime shall have been

committed...”

The pertinent provisions of the Fourteenth Amendment

are’

“No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of

life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the equal

protection of the laws.”

Article VI, Section XVI of the Georgia Constitution

‘Georgia Code Annotated § 2—5101) provides:

“The right of trial by jury except where it is otherwise

provided in this Constitution, shall remain inviolate, but

the General Assembly may prescribe any number, not less

than five, to constitute a trial, or traverse jury, except

in the superior court.”

A. 11

States has not determined what minimum number of jurors

can still constitute a “jury.” In Williams vy. Flordia, 399 U.S.

78, 92, 90 S.Ct. 1893, 1901, 26 L.Ed.2d 446 (Fn.28) it is

observed “We have no occasion in this case to determine what

minimum number can still constitute a ‘jury,’ but we do not

doubt that six is above that minimum.” Absent a holding by

the United States Supreme Court that a five—man jury is

constitutionally inadequate, we approve the constitutional

minimum of five prescribed by the 1945 Constitution of

Georgia for all courts except superior courts.

We find no error for any reason enumerated and argued

in this appeal and affirm the trial court. See Dyke v. State,

232 Ga. 817, 209 S.E.2d 166 (cert. denied by U.S. Supreme

Court April 28, 1975).

Judgement affirmed

All the Justices concur, except GUNTHER, J., who

concurs in the judgment only.