CARGAL v. GEORGIA 438 U.S. 906 (1978)

On petition for writ of certiorari to the Court of Appeals of Georgia.

The petition for a writ of certiorari is denied.

Mr. Justice BRENNAN, with whom Mr. Justice STEWART and Mr. Justice MARSHALL join, dissenting.

Petitioner, convicted of distributing obscene materials under Ga.Code 26-2101 (1975), asks this Court to decide the question:

"Whether jury instructions on scienter allowing a finding of 'constructive knowledge' in an obscenity case are sufficient to meet . . . constitutional minimum standards . . . ?" Pet. for Cert. 2.

In Bal ew v. Georgia, 435 U.S. 223 ( 1978), we granted certio- [438 U.S. 906 , 907]   rari to consider, but did not reach, precisely this issue. See Pet. for Cert. in Ballew v. Georgia, O.T.1977, No. 76-761, p. 2. I see no reason to suppose that this issue is any less worthy of consideration on certiorari now than it was when we accepted it in Ballew. For this reason, I would grant certiorari. See also Sewell v. Georgia, 435 U.S. 982 , 98 S. Ct. 1635 (1978) (BRENNAN, J., dissenting from dismissal of appeal); Teal v. Georgia, 435 U.S. 989 ( 1978); Robinson v. Georgia, 435 U.S. 989 ( 1978) (BRENNAN, J., dissenting from vacation of judgment and remand). Barring this, I would grant this petition and summarily reverse. See Ballew, supra, 435 U.S., at 246 (opinion of BRENNAN, J.); Sanders v. Georgia, 424 U.S. 931 (1976) ( dissent from denial of certiorari).