In their bill of exceptions the defendants assign error on the judgment sentencing each defendant (fourth ground) and ont the denial of their motion for a new trial (third ground). However, in their brief to this court they completely omitted the fourth ground and merely referred to the third ground by asking: “Did the court commit error in overruling plaintiff’s in error motion for new trial?” There was no argument, citation of authority, or statement ■ that such grounds were still relied upon. Therefore, the applicable rule,
*455
as laid down in
Henderson v. Lott,
The second ground upon which the defendants rely is that the trial judge erred in failing to direct a verdict of acquittal for the defendants at the conclusion of the State's evidence. It is nоt error in a criminal case to refuse to direct a verdict of not
guilty. Winford v. State,
The first ground in the bill of exceptions is that the trial judge erred in overruling their general demurrers to the accusation. The defendants urge five contentions as to why Code § 26-5301, per se and аs applied, violates rights secured to them by the Constitutions of the United States and of Georgia. Contentions (3) and (4) attack the Code section in question as unconstitutional as applied, since it was used to enforce racial discrimination, and as unconstitutional in that the arrest was pursuant to the policy, custom, and usage of the State of Georgia, which cоmpels segregation of the races.
Neither of these two contentions can be ascertained from an exаmination of the accusation. A demurrer may properly attack only those defects which appear on thе face of the petition, indictment, or, in this case, accusation. A demurrer which seeks to add facts not so apрarent or to supply extrinsic matters must fail as a speaking demurrer.
Jackson v. State,
Contentions (1) and (2) attack the Code section, on its fаcej as violative of due process of law guaranteed by the *456 Fourteenth Amendment to the United States Constitution and by thе Georgia Constitution, arguing that said Code section is so vague that the defendants are not placed on notice. as to what criminal act they have allegedly committed, rendering it impossible to answer the charge or to make legal defense, and unconscionably vague in that nowhere in the statute does, there appear a definition of disturbing the рublic peace or committing any unlawful act.
Since the defendants were charged only with “disturbing the public peace,” the alleged vagueness of “committing any unlawful act” need not be considered. Chaplinsky v. New Hampshire,
The United States Supreme Court has held that a statute is not unconscionábly vague where its provisions employ wоrds with a well-settled common-law meaning (Waters-Pierce Oil Co. v. Texas,
Here the term “disturbing the public peace” is of generic cоmmon-law origin.
Faulkner v. State,
Further, the crime of unlawful assembly is itself of common-law origin (Reg. v. Pugh (1704), 87 Eng. Reрrint 900; Rex v. Birt (1831), 172 Eng. Reprint 919; 91 C.J.S. 495, § 1;
“The uncertainty in a statute which will amount to a denial of due process of law is not the difficulty, of asсertaining whether close cases fall within or without .the prohibition of the statute, but whether the standard established by the statute is sо uncertain that it cannot be determined with reasonable definiteness that any particular act is disapproved; аnd a criminal statute is sufficiently definite if its terms furnish a test based on -knowable criteria which men of common intelligence who come in contact with the statute may use with reasonable safety in determining its command.”
The last contention (5) assigned, that the Code section *458 confers untrammeled and arbitrary authority upon the arresting officer, has no merit since we have determined that the statute has a clear-сut standard to apprise one of what constitutes a criminal act and thus to guide the conduct of such officer. There is no usurpation of judicial authority, nor the improper delegation of judicial discretion, since the officer involved only makes the arrest when, in his discretion, he believes a crime to have been perpetrated. The innocence or guilt, beyond a reasonable doubt, of the accused must still be determined by judicial process.
This is a case of first imрression in this State, and our research has failed to reveal any full-bench decisions from other jurisdictions on the exact question of the constitutionality of a similar unlawful-assembly statute. Nevertheless, see Cole v. Arkansas,
Judgment affirmed.