245 Ga. 49 | Ga. | 1980
The Grand Jury of Upson County, Georgia indicted appellant for the offenses of homicide by motor vehicle in the first degree, violation of Georgia Controlled Substances Act, four counts of failure to stop for stop sign, driving on the left half of a roadway and speeding. Defendant entered pleas of not guilty to each of these charges, but upon trial a jury convicted him of each separate charge. Following sentencing, he appeals to this court.
Statement of Facts
Appellant Mark Cameron Wilson had for a period of time been dating one Tonya Brown, who was the homicide
Assignments of Error
(1) The substantive part of the homicide indictment follows: "In the name and behalf of the citizens of Georgia, charge and accuse Mark C. Wilson with the offense of homicide by motor vehicle in the first degree for that the said accused in the county aforesaid on the 6th day of January, 1979, did then and there, unlawfully and with force and arms without malice aforethought cause the death of one Tonya Brown, a human being, through the violation of Title 68A-901, to-wit: reckless driving, contrary to the laws of said state, the good order, peace and dignity thereof.” To this indictment defendant filed a general demurrer contending that Code § 68A-901 is unconstitutional for vagueness, indefiniteness and incapability of being construed in that it lacks any standards by which the reckless driving statute is to be determined. The trial court overruled the demurrer. Appellant assigns error on that ruling, and the subsequent conviction under that indictment.
Appellant argues that Hayes v. State, 11 Ga. App. 371 (75 SE 523) (1912) demands a finding in his favor. The substantive holding of that case follows:
"(2) A penal law which is of doubtful construction and in which the act denominated as a crime is described in terms so general and indefinite as to make the question of criminality dependent upon the idiosyncrasies of the
With that, the Court of Appeals held that an Act of the legislature (Ga. L., 1910, p. 92) regulating and making penal the operation of an automobile on one of the highways of this state "at a rate of speed greater than is reasonable and proper, having regard to the traffic and use of such highway, or so as to endanger the life or limb of any person, or safety of any property,” is too uncertain and indefinite in its terms to be capable of enforcement. The decision goes on to hold: "(4) A city ordinance which undertakes to make punishable the operation of an automobile upon one of the streets of the city 'in a careless or reckless manner’ is null and void, because it fails to sufficiently define the prohibited act.”
Although Hayes, supra, has not been specifically overruled, it has been severely criticized, and apparently distinguished in Ray v. State, 47 Ga. App. 22 (169 SE 538) (1933), where Judge Guerry wrote: "While this is the rule adopted by the courts of review of this State, it may be well to state that it is not in accord with the rule adopted in a majority of the States, and a statute similarly worded is held in other States to be sound, and not too vague and uncertain. They say further, that, after all, juries are and should be the judges of the particular facts of each case, and the fact that one jury might decide one way and another jury the other is no reason to declare a law null and void.” Ray, supra, went on to hold valid a statute regarding the duty of the operator of an automobile (Ga. L. 1927, p. 237): "[0]vertaking and desiring to pass a vehicle shall blow his horn, and the operator of the vehicle so overtaken shall promptly, upon such signal, turn his vehicle as far as reasonably possible to the right in order to allow free passage on the left side of his vehicle.”
Although the operation of automobiles and law with respect thereto has been developed largely in the Twentieth Century, Webster’s, Third New International Dictionary assigns a precise meaning to the term "reckless driving” as follows: "Driving that evidences a
Mathematical certainty is not always obtainable, and in our judgment is not necessarily a prerequisite to the adoption of a statute. Reasonable certainty of the nature of the offense and the causes of the offense is all that is required. (Compare Gaines v. State, 80 Ga. App. 512 (56 SE2d 772) (1949) in which a majority of the Court of Appeals followed a rule based on reasonable certainty and where two judges of that court contended that Hayes, supra, is the proper rule to be applied.)
As was said in Rose v. Locke, 423 U. S. 48, 49, 50 (1975), "This prohibition against excessive vagueness does not invalidate every statute which a reviewing court believes could have been drafted with greater precision. Many statutes will have some inherent vagueness for '[i]n most English words and phrases there lurk uncertainties.’. .. All the Due Process Clause requires is that the law give sufficient warning that men may conduct themselves so as to avoid that which is forbidden.” Compare Mixon v. State, 226 Ga. 869, 870 (178 SE2d 189) (1970). It appears that Hayes should be somewhat limited in its holding to the particular facts of that case and the statute under consideration which was an attempt to set a limit on speed without any criteria for doing so.
A criminal statute is sufficiently definite if its terms furnish a test based on normal criteria which men of common intelligence who come in contact with the statute may use with reasonable safety in determining its command. Mixon v. State, supra. It would seem that the statute now under attack would reasonably meet that test. Reckless driving under a previous act of the legislature (Ga. L. 1939, pp. 295, 296) in which substantially similar language to the present act was used, was approved in Lancaster v. State, 83 Ga. App. 746 (64 SE2d 902) (1951).
We conclude that Georgia’s reckless driving statute as set forth in Code Ann., § 68A-901 (a) is sufficiently definite to inform a person of common intelligence as to when he is violating the law. See our recent decision in
(2) Appellant’s second enumeration of error, following his objection to the charge of the court of Code Ann. § 68A-901 on the ground that the definition of reckless driving is vague and indefinite, is controlled by our holding in the preceding division, and is without merit.
(3) Appellant contends that the court should have directed a verdict in his behalf on the indictment charging that he did "knowingly control and possess marijuana, more than one ounce.” The evidence though largely circumstantial was sufficient to support the verdict. On the night in question appellant admitted that he was going to Atlanta to pick up a quarter pound of marijuana. He went to Atlanta. The jury was authorized to find that appellant, on the way back when approached by a police officer, attempted to flee. When the officers arrived at the wreck one bag of marijuana was found lying about three feet from the car in which the jury determined appellant was driving and one bag was lying about a foot from appellant’s body. Opinion evidence was submitted that the bags had only been there a short time. This assignment is without merit.
(4) Appellant contends that the various charges should have been severed and that allowing indictments of motor vehicle homicide and possession of marijuana to be tried together was prejudicial to him. There is no question that separate indictments may be joined for the purpose of one trial. Code Ann. § 26-506 (b). Chumley v. State, 235 Ga. 540 (221 SE2d 13) (1975); Jarrell v. State, 234 Ga. 410 (216 SE2d 258) (1975); Coker v. State, 234 Ga. 555 (1) (216 SE2d 782) (1975).
The underlying consideration regarding the issue of a joint trial on two or more indictments is whether undue or great risk of prejudice from a joint disposition of charges would result. Dingler v. State, 233 Ga. 462 (211 SE2d 752) (1975). All of the facts and circumstances surrounding each trial must be examined in determining whether or not a risk of prejudice may occur.
An examination of the record in this case shows that all of the events with which the defendant was charged occurred within a very short time after the appellant
(5) Appellant contends that certain photographs should not have been admitted over his objection because they were in color, enlarged and were designed to reach the passions of the jury and to create sympathy on behalf of the victim. In furtherance of this argument he says there was no question but that the deceased was killed in an automobile accident and that there was no issue as to how she died or which wounds could have caused her death. Appellant’s contention is without merit. Godfrey v. State, 243 Ga. 302 (253 SE2d 710) (1979).
Judgment affirmed.