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STOP, INC. v. THE STATE.
57141.
SHULMAN, Judge.
Distributing obscene material. Fulton State Court. Before Judge Moran.
A jury found appellant guilty of two counts of violating Code Ann. 26-2101 (c). This appeal follows.
1. Appellant's constitutional attack on Code Ann. 26-2101 (c), his challenge to the denial of his motion to suppress evidence seized without a warrant, and his complaint as to the jury charge concerning scienter have been considered and decided adversely to appellant in Sewell v. State, 238 Ga. 495 (1), (2), (4) (233 SE2d 187). See also Teal v. State, 143 Ga. App. 47 (238 SE2d 128).
2. We have reviewed the magazine and various devices forming the basis of this prosecution. The materials fall within the definition of Code Ann. 26-2101 (b), (c), and are, accordingly, obscene as a matter of law. See, e.g., Pierce v. State, 145 Ga. App. 680 (1) (244 SE2d 589).
DEEN, Chief Judge, concurring specially.
I concur fully with all that is said in the majority opinion. Let me state further that the 16-page graphic color close-up photography of the magazine Erotic Fetishes has been reviewed in its entirety as required by the statute. The front cover focuses on an elongated curved hydra-headed dildo approximately twenty-five inches long, with one end inserted in the mouth of a nude female and the other in the female genitals of a second nude.
Some of the supposed artistic, educational, scientific and literary justification or value of the writings and photography in the magazine sets forth theories such as fetish acquisition, erotic symbolism and the role of fantasy. Sigmund Freud psychoanalysis and child sex postulations are discussed fully such as his view that every child is a "polymorphous pervert." He is quoted: "To put it plainly, the fetish is a substitute for the woman's (mother's) phallus which the little boy once believed in and does not wish to forego." Freud's sexual obsessions and hangup type of philosophy appears to be the major premise of permissiveness in the magazine and is detailed along with corresponding photographs expounding suggested normalcy of oedipal desires, alleged castration complexes, homosexual and cunnilingus desires. Wrestling trauma, odor fetishism, calf partialist, starched symbolism, the large breast fetish, the rubber fetish and the sadomasochistic element of shoe fetishism is explored. Although many experts may be found to testify that based on their opinion this magazine, both literary writings and artistic close-up photography, and the materials viewed may contain serious educational, scientific, literary and artistic value, however, the law permits the jury to reject this type testimony altogether and use their own common sense based on observation, cause and effect, in determining that the value, if any, may be less than serious, or that there is no value at all.
Strong objections were placed in the record as to the personal religious philosophy of juror number nine: "She had very, very strong religious feelings with regard to sexual explicit material. And on that basis, on the basis of her admission that she would apply her religious convictions over the law she should have been removed or excused for cause, and that was denied." It should be pointed out that the personal religious philosophy of Sigmund Freud, and that of other experts, no less colors their sexual expressions and ethical values.
"The foregoing analysis has tried to show that Freud's aim was to find a movement for the ethical liberation of man, a new secular and scientific religion for an elite which was to guide mankind . . . I have tried to show that psychoanalysis was conceived as, and developed further into, a quasi-religious movement based on psychological theory and implemented by a psychotherapy." Sigmund Freud's Mission, An Analysis of His Personality and Influence, by Erich Fromm, Harper Colophon Books, Harper & Row Publishers, New York, Evanston, San Francisco, London (1972).
"Under the disguise of a therapist and a scientist he was one of the great world reformers . . . But under the disguise of a scientific school, he realized his old dream, to be the Moses who showed the human race the Promised Land, the conquest of the Id by the Ego, and the way to this conquest . . . 'This aggressive cruelty usually lies in wait for some provocation . . . It also manifests itself spontaneously and reveals men as savage beasts to whom the thought of sparing their own kind is alien.' " Sigmund Freud's Mission, supra, pages 82, 94 and 96.
Freud, along with his idol Darwin, viewed humans as "an animal among animals," and based his speculations on this evolutionary philosophical premise and assumption. A Primer of Freudian Psychology, Calvin S. Hall, 1954, The New American Library, Inc., 1301 Avenue of the Americas, New York, N. Y. 10019. Note Chapter 2, "Pornography As a Religious Expression," The Politics of Pornography, Rousas J. Rushdoony, Arlington House Publishers, New Rochelle, N. Y. See: Pierce v. State, 145 Ga. App. 680, 683, 684 (244 SE2d 589) (1978); Spillers v. State, 145 Ga. App. 809, 810 (245 SE2d 54) (1978).
As stated by Dr. John N. Moore, a well respected professor of natural science at Michigan State University, as to the above premise and assumptions, "It is an incredible religion."
I would affirm.
Hinson McAuliffe, Solicitor, Leonard W. Rhodes, Assistant Solicitor, for appellee.
Robert Eugene Smith, Charles W. Boyle, for appellant.
SUBMITTED JANUARY 10, 1979 -- DECIDED MARCH 13, 1979.
Friday May 22 03:06 EDT


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