56 S.E.2d 772 | Ga. Ct. App. | 1949
Lead Opinion
The Act of 1927, as amended by the Act of 1935 (Ga. L. 1927, p. 234; 1935, p. 152; Code (Ann.) § 68-302), which declares in part: "Every motor vehicle, tractor, and motorcycle, while in use or operation upon the streets or highways, shall at all times be provided and equipped with efficient and serviceable brakes and signaling device, consisting of a horn, bell, or other suitable device for producing an abrupt warning signal," is not void as being too vague and indefinite to be capable of enforcement; and the accusation which charges that the defendant did "then and there drive and operate a certain automobile over and upon that certain public street known as Baker Street in the City of Oglethorpe [in Macon] County while said machine was not provided and equipped with sufficient or serviceable brakes," is substantially in the language of the statute, together with the other necessary allegations — such as being on the public street, etc. — is sufficient to put the defendant on notice as against what facts and charges he must contend and the jury could clearly understand the nature of the offense, and the accusation is definite enough to protect the defendant from a second jeopardy, and the accusation was not subject to general demurrer.
"An indictment which charges the offense defined by a legislative act in the language of the act, where the description of the acts alleged as constituting the offense is full enough to put the defendant on notice of the offense with which he is charged, is sufficiently specific." Glover v. State,
Pursuant to the act of the General Assembly approved March 8, 1945 (Ga. L. 1945, p. 232) requiring that the whole court consider any case in which one of the judges of a division dissents, this case was considered and decided by the court as a whole.
Judgment affirmed. Sutton, C. J., Gardner and Worrill, JJ.,concur. Felton and Townsend, JJ., dissent.
Dissenting Opinion
It is our opinion that a statute seeking to make penal the act or offense of operating a motor vehicle which is not at all times "equipped with efficient and serviceable brakes" is, under the decisions of our Supreme Court in Hayes v. State,
This case basically involves a Federal constitutional question and the answer to our question rests ultimately with the Supreme Court of the United States. It has decided many cases involving the principle of indefiniteness of statutes. The court's basic and fundamental ruling on the question is as follows: "And a statute which either forbids or requires the doing of an act *520
in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law. International Harvester Co. v. Kentucky,
"The question whether given legislative enactments have been thus wanting in certainty has frequently been before this court. In some of the cases the statutes involved were upheld; in others, declared invalid. The precise point of differentiation in some instances is not easy of statement. But it will be enough for present purposes to say generally that the decisions of the court upholding statutes as sufficiently certain, rested upon the conclusion that they employed words or phrases having a technical or other special meaning, well enough known to enable those within their reach to correctly apply them (Hygrade Provision Co.v. Sherman,
Just as one person might be the difference between a crowded and an uncrowded streetcar, three feet of stopping distance might be the difference between efficient and inefficient brakes. But which person in the streetcar, or which three feet of stopping distance, is a matter of degree, and neither the public service corporation nor the motorist should be compelled to guess thereat upon peril of conviction if his estimate fails to concur with that of the court and jury. To do so, as was pointed out by Mr. Justice Holmes, is "to exact gifts that mankind does not possess." International Harvester Co. v. Kentucky,
The above also applies to Chavers v. State (No. 32595), post, which was before the court for consideration at the same time as the instant case.