435 U.S. 989
98 S.Ct. 1639
56 L.Ed.2d 79
Warren TEALv.State of GEORGIA
No. 77-790
Supreme Court of the United States
April 24, 1978

The appeal is dismissed for want of a substantial federal question.
Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL joins, dissenting.
In this Court, appellant presents constitutional questions identical to those in Sewell v. Georgia, 435 U.S. 982, 98 S.Ct. 1635, 56 L.Ed.2d 76, which are set out in my dissent there.  See id., at 982, 98 S.Ct., at 1636.  For the reasons stated in that dissent, I would set this case for argument on the scienter and void-for-vagueness issues.*
Mr. Justice STEWART, dissenting.


1
This case is in all relevant respects identical to Sewell v. Georgia, ante.  For the reasons stated in my dissenting opinion in that case, I would reverse the judgment of the Georgia Court of Appeals, or, alternatively, note probable jurisdiction and hear argument on the scienter issue.



*
 A review of the record in this case shows that, as in Sewell v. Georgia, ante, at 982, 98 S.Ct. at 1636 (BRENNAN, J., dissenting), the scienter requirement does not save Ga.Code § 26-2101(c) from vagueness.  Although a police officer testified here that, in the course of viewing adult movies, he had seen some of the devices used to stimulate human genitals and, in addition, that he had seen a catalog which marketed the devices for such a use, there was no showing that appellant had seen or should have seen the indicated movies nor that appellant was familiar with any such catalog.  Indeed, the trial judge refused to admit the catalog into evidence because it had no relation to the constructive scienter issue.  Thus the conclusion that the seized devices were "useful primarily for the stimulation of human genital organs," here as in Sewell, was reached solely from an inference to be drawn from the shape of the devices and the arresting officers' guesses and assumptions.


