# Motion to Dismiss — Robinson v. Georgia

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0263%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Motion to Dismiss
- **Published:** January 1, 1978
- **Citation:** 435 U.S. 991

## Text

Supreme Court, U.S.

FILED
JAN 30 1978

ne JR., CLERK

IN THE

Supreme Court of the United States

NO. 77-915

ERNEST H. ROBINSON,
Appellant,
VS.
STATE OF GEORGIA,
Appellee.

APPELLEE’S MOTION TO DISMISS AND
MOTION TO AFFIRM IN THE ALTERNATIVE
WITH SUPPORTING BRIEF

ON APPEAL FROM THE COURT OF APPEALS
OF GEORGIA

LEONARD W. RHODES
Assistant Solicitor General

ANDREW J. HAIRSTON
Assistant Solicitor General

Attorneys for Appellee

53 State Court Building
160 Pryor Street, S.W.
Atlanta, Georgia 30303
(404) 572-2911

TABLE OF CONTENTS

APPELLEE’S MOTION TO DISMISS AND

MOTION TO AFFIRM IN THE
ee 6 eee eks wade e whe dhe 8s te

FEAR TL ee re re

I.

II.

Il.

IV.

V.

A. Appellant did not demand a trial by jury
composed of more than five persons.......

B. A jury of five persons is constitutionally
adequate for the trial of misdemeanor
cases where the maximum possible
imprisonment is twelve months...........

Section 26-2101(c) of the Criminal Code of
Georgia does not totally prohibit the
dissemination of devices designed or

marketed as useful primarily for the
stimulation of human genitals, nor is the
statute unconstitutional for any reason
asserted by the appellant...................

Jury instructions on scienter that required the
State to prove beyond a reasonable doubt
that the accused had knowledge, either

actual or constructive, and that constructive
knowledge is knowledge of facts which would
put a reasonable and prudent person on notice
as to the suspect nature of the material, are
sufficient to meet constitutional minimum

The trial court did not err in admitting into
evidence the devices seized by the officers

at the time appellant was arrested...........
The question of obscenity vel non was not
raised by appellant in the Court of Appeals

of Georgia nor was it passed upon...........

ETS cho tnctenknne bbe cscs see cess
CERTIFICATE OF SERVICE...............

i

.. 22

A

TABLE OF CASES
Page
Alexander v. Virginia, 413 U.S. 836, 93 S. Ct.

Se Es Kan Guede ce dus UAbne dene scewencess 8
Baldwin v. New York, 399 U.S. 66 (1970)......... 5,8
Ball v. The State of Georgia, 9 Ga. App. 162,

dane donecwhenades ven se GASE NO. 156432
DAVID BURNETTE: CASE NO. 156433
ELIZABETH GREEN; and CASE NO. 156431
JAMES SHAW,
Defendants. |

SECOND MOTION TO DISMISS OR IN THE
ALTERNATIVE DEMUR

Defendants move the Court to dismiss the above
cases on the grounds that a five-person jury is used to
determine innocence or guilt, and under the Sixth and
Fourteenth Amendments of the United States Consti-
tution this is constitutionally invalid since the lowest
number of jurors allowed in a criminal trial is six.
Further, Art. VI, Sec. XVI, para. I, of the State Con-
stitution (Code 2-5105) and Georgia L. 1890-1891, Vol.
2, p. 935, Georgia L. 1935, 498, are unconstitutional on
their face and as applied, as said laws permit a five-
person jury and therefore deny the Defendants a six-
person jury trial under the Sixth and Fourteenth
Amendments.

la

2a

WHEREFORE, Defendants pray that their Second
Motion to Dismiss be sustained.

GLENN ZELL
Attorney for Defendants

Suite 822, 15 Peachtree St., N.E.
Atlanta, Georgia 30303
(404) 524-6878

William v. Florida, 399 U.S. 78, 136
Baldwin v. New York, 399 U.S. 60

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0263%3A2. Public record. Not legal advice.