dissenting.
Dale Loveland and Robert Freeman were convicted of distributing obscene materials in violation of Code Ann. § 26-2101. The evidence adduced at trial showed that police officers purchased two magazines, entitled “Model’s Secrets” and “Oral Exams,” from the Cheshire Cat Bookstore, which magazines were shown to have been distributed from a warehouse operated by the appellants. The warehouse was also shown to contain peep-show projectors and booths, which were apparently there for repair.
Appellants enumerate as error the following charge on commercial exploitation of erotica, based on Code § 26-2101 (d): “Material, not otherwise obscene, may be obscene under this section if the distribution thereof, or the offer to do so, or the possession with the intent to do so is a commercial exploitation of erotica solely for the sake of their prurient appeal.” The court, having previously defined obscene material in accordance with the statute, charged further that “[i]n order to find the magazines in this particular accusation obscene, you must determine that all of the elements of obscenity... that is, the three-pronged test... are present and that they co-exist as to that accusation of the three-pronged test or the commercial exploitation. In other words, it’s got to be one or the other.” Appellants contend that this charge was both confusing and unsupported by evidence. I agree.
The concept of obscenity by commercial exploitation of material not otherwise obscene, i.e., “pandering,” apparently had its genesis in Ginzburg v. United States, 383 U. S. 463 (86 SC 942, 16 LE2d 31) (1966). Pandering had earlier been defined by the United States Supreme Court as “the business of purveying textual or graphic matter openly advertised to appeal to the erotic interest of . . . customers.” Roth v. United States, 354 U. S. 476, 495-496 (77 SC 1304, 1 LE2d 1498) (1957). The United States Supreme Court in Ginzburg approved a trial court finding that by advertising erotic material on the basis of its sexually provocative aspects, the defendant had “proclaimed its obscenity,” despite evidence that the material had some “supposed therapeutic or educational value.” *751“It is important to stress that this analysis simply elaborates the test by which the obscenity vel non of the material must be judged. Where an exploitation of interests in titillation by pornography is shown with respect to material lending itself to such exploitation through pervasive treatment or description of sexual matters, such evidence may support the determination that the material is obscene even though in other contexts the material would escape such condemnation.” Ginzburg, supra, at 475-476. “There is no doubt that as a matter of First Amendment obscenity law, evidence of pandering to prurient interests in the creation, promotion, or dissemination of material is relevant in determining whether the material is obscene.” Splawn v. California, 431 U. S. 595, 598 (97 SC 1987, 52 LE2d 606) (1977).
In the case before us, the evidence simply shows that the materials were seized at a warehouse and that the warehouse supplied the materials in questions to at least two “adult book stores.” This evidence does not show that the magazines, if not otherwise obscene, were obscene by virtue of the appellants’ commercial exploitation of them “as erotica solely for the sake of their prurient appeal.” The evidence shows only that the material made its way to the bookstores by way of appellants’ warehouse before being sold. This is evidence that that the enterprise was a commercial one. It is not, however, in my opinion, evidence of “pandering,” which by definition and concept, would allow this court to condemn as obscene, materials not otherwise obscene because of marketing and advertising methods calling attention to obscene characteristics of the material. In this case, the evidence of warehousing and distribution of the magazines called no attention to their obscene features. This evidence was completely neutral regarding the issue of obscenity, and was not “relevant in determining whether the material is obscene.” Splawn v. California, supra. Had the magazines in question been Reader’s Digest and TV Guide, the evidence that they were stored in and distributed from the same warehouse in the same manner and later sold in adult bookstores, would not permit their condemnation as obscene under the pandering theory.
Without doubt, the magazines in question, which are before us, are obscene within the meaning of Code Ann. § 26-2101 (b). It is probable, in my view, that the jury would have so found without the inappropriate charge on the pandering theory. Code Ann. § 26-2101 (d). This likelihood does not render the error harmless, however. The jury, based on the court’s charge, was required to convict on one of the two alternative theories, only one of which finds support in the evidence. “A charge to the jury which is not authorized by the evidence, and which is calculated to mislead and confuse the jury, *752requires a new trial.” Goodson v. State, 162 Ga. 178, 179 (132 SE 899) (1926); also Bland v. State, 210 Ga. 100 (8) (78 SE2d 51) (1953).
For the reasons expressed herein, I respectfully dissent. I would reverse the appellant’s conviction and remand the case to the trial court for a new trial.
I am authorized to state that Judge Carley joins in this dissent.