Summary
In Fowler v. State, 189 Ga. 733 (8 S.E.2d 77), the Code section attacked in the present case was held to be constitutional as against the same attack here made, and the remaining enumerations of error require merely the application of unquestioned and unambiguous provisions of the Constitution to a given state of facts.
Summary of this case from Huguley v. StateOpinion
13058.
MARCH 13, 1940.
Public indecency. Before Judge Davis. DeKalb superior court. August 1, 1939.
James R. Venable, Robert F. Morgan, E. A. Wright, and B. J. Dantone, for plaintiff in error.
Roy Leathers, solicitor-general, contra.
1. It is declared in the Code, § 26-6101: "Any person who shall be guilty of open lewdness or any notorious act of public indecency tending to debauch the morals shall be guilty of a misdemeanor." The word "indecency" as here employed is qualified by the quoted words which precede and follow it. An act, to come within the sphere of "indecency" within the meaning of the statute, must be public and so indecent as tending to debauch the morals. Redd v. State, 7 Ga. App. 575, 578 ( 67 S.E. 709). When so construed, the statute fixes a standard of conduct for guidance of individuals, and by which they may be judged. Such being the character of the statute, it is not repugnant to the due-process clause of the State constitution, art. I, sec. 1, par. 3 (Code, § 2-103), on the ground, as contended, "that it does not define what is meant by an `act of public indecency,' and defendant is therefore not put on notice as to the nature of the crime" charged. Farrar v. State, 187 Ga. 401 (2) ( 200 S.E. 803).
( a) The case differs from Griffin v. Smith, 184 Ga. 871, condemning, as void for indefiniteness, a municipal ordinance inhibiting the doing of "any thing that is disorderly, either by words or unbecomingly conduct at any place on any street, alley, park, or any place where such disorderly conduct may be seen or heard by any person in said city." the "thing . . disorderly" not being qualified by a provision that it should be such as would tend to debauch or corrupt the public morals or tend to cause a breach of the peace.
( b) The statute in question, construed as above indicated, conforms to the ruling in Cline v. Frink Dairy Co., 274 U.S. 445, 458, referred to in Manley v. State, 166 Ga. 563, 601 ( 144 S.E. 170), that the due-process clause of the 14th amendment to the Federal constitution requires a State to frame its criminal statutes so "that those to whom they are addressed may know what standard of conduct is intended to be required."
( c) The indictment described the particulars of the alleged act of "public indecency tending to debauch the morals" as having been done in the county at a named "public place," and that it was done at a place where "said exposure might have been seen by others." The indictment was not deficient on the ground, as contended by demurrer, that the words "said exposure might have been seen by others" are indefinite in that they fail to designate person or persons who might have seen the exposure.
( d) The judge did not err in overruling the demurrer to the indictment.
2. "When one is on trial charged with the commission of a crime, proof of a distinct, independent, and separate offense is never admissible, unless there is some logical connection between the two, from which it can be said that proof of the one tends to establish the other. This is the general rule, but there are some exceptions to it; as when the extraneous crime forms part of the res gestae; or is one of a system of mutually dependent crimes; or is evidence of guilty knowledge; or may bear upon the question of the identity of the accused, or articles connected with the offense; or is evidence of prior attempts by the accused to commit the same crime upon the victim of the offense for which he stands charged; or where it tends to prove malice, intent, motive, or the like, if such an element enters into the offense charged. Penal Code (1910), § 1019; Cawthon v. State, 119 Ga. 395 ( 46 S.E. 897)." Cox v. State, 165 Ga. 145 ( 139 S.E. 861); Frank v. State, 141 Ga. 243 (2- b-c) (80 S.E. 1016); Williams v. State, 152 Ga. 498, 521-522 ( 110 S.E. 286); Hill v. State, 148 Ga. 521 ( 97 S.E. 442); Lanier v. State, 187 Ga. 534 (3) ( 1 S.E.2d 405). The evidence admitted, of which complaint is made in grounds 4, 5, 6, and 9 of the motion for new trial, is within the exceptions to the general rule stated above; and there was no error in admitting it over the objections presented.
3. Grounds 7 and 8 of the motion complain of rejection of testimony of the State's witness on cross-examination. These grounds do not show substantial error.
4. Ground 9 complains of rulings in regard to the reading of an affidavit by a witness introduced by the State, by whom the solicitor-general stated he had been entrapped, and the affidavit was read for the purpose of cross-examination of the witness with respect thereto. In so far as this ground is sufficient to raise any question for consideration, the rulings were not erroneous for any reason assigned.
5. Grounds 11 to 15, inclusive, complain of refusal to charge certain requests. Upon construction of the Code, § 26-6101, as indicated in the first division supra, and under the rulings in Morris v. State, 109 Ga. 351 ( 34 S.E. 577), and Lockhart v. State, 116 Ga. 557 ( 42 S.E. 787), none of the requests stated correct principles of law properly adjusted to the allegations of the indictment, and to the evidence.
6. The evidence being insufficient to prove the venue, the judgment refusing a new trial must be reversed.
No. 13058. MARCH 13, 1940.
The rulings announced in headnotes 1 to 5, inclusive, do not require elaboration.
The venue was alleged in the indictment as the County of DeKalb, and the crime was alleged to have been committed "at a public place, to wit, a road house and tourist camp known as Stone Edge on Highway 42 in said county." A witness for the State, referring to the allegations of the indictment, testified: "I have been out to Stone Edge on Highway 42 with this defendant, on one occasion." At another place the witness testified: "As to whether the place where this was, where this automobile was parked there on the lot there at the Stone Edge, 42 Highway, was in DeKalb County: It is on the lot, and there was another automobile parked on the lot. That is the parking lot where people come up and park to be served sandwiches, coca-colas and what-not. It is a place where the people coming by, parking, coming into and out of this place could have seen it." At another place the witness testified: "When he put me out I made a complaint to officer Leo Nahlik. After that I called the DeKalb County police. After that I was brought to meet the DeKalb County police by a city car, and was brought on out here, and Chief Dailey and Captain Foster talked to me. After talking to them I took them and showed them where Mr. Fowler lived, and I identified him, and we took him out to Stone Edge where the negroes were, and I identified them. The DeKalb County officers took me out there." At another place the witness testified: "I did not get in Mr. Nahlik's car. Mr. Nahlik was sitting in an automobile, and his partner was inside. I stepped to the automobile and asked him who I should report it to, and he told me to report it to the DeKalb County police. I went in and called them, and he drove on. I didn't even take it up with him any more. I don't know the names of the men who arrived out there to get me. They were city men, uniformed. I came with them out to DeKalb Avenue and some street out here, and met the county police." The solicitor-general, in the examination of an alleged entrapping witness, read to the witness an affidavit that he had made, and stated to the witness that when he came to any part of the affidavit that witness contended was untrue he should indicate it by snapping his finger. When he read from the affidavit, "I work at Stone Edge on 42 Highway, and have worked there about two years, catching curb service. To-day, April 20, 1939, I saw a white man in the DeKalb County police office," the witness snapped his finger. "I thought you were talking about out yonder at the place I work. I saw a white man in the DeKalb County police office. That is true up to there." The foregoing is all the evidence that could be urged as tending to prove the alleged venue of the crime. It is insufficient for that purpose. Proof of the venue is part of the State's case, and failure in that regard is cause for a reversal where the question is properly raised in a motion for new trial. Gosha v. State, 56 Ga. 36 (2); Moye v. State, 65 Ga. 754; Futch v. State, 90 Ga. 472 (2) ( 16 S.E. 102); Holden v. State, 144 Ga. 338 ( 87 S.E. 27); Taylor v. State, 154 Ga. 68 ( 113 S.E. 147); Dickerson v. State, 186 Ga. 557, 559 ( 199 S.E. 142), and cit. On its facts the instant case differs from the case last cited, where the circumstantial evidence was held sufficient to show venue.
Was the question of venue properly raised in this case? "No judgment of a trial court in a criminal case shall be reversed by either the Supreme Court or the Court of Appeals for lack of proof of venue or of the time of the commission of the offense, save where the particular point has been specifically raised by a ground of the original or amended motion for a new trial." Acts 1911, p. 149; Code, § 6-1609. General grounds of a motion for a new trial do not require approval of the trial judge. Harris v. State, 120 Ga. 196 ( 47 S.E. 573); Courson v. Pearson, 132 Ga. 698 ( 64 S.E. 997); Wall v. Wall, 150 Ga. 115 ( 102 S.E. 822). Since before the passage of the act of 1911, supra, lack of venue could be raised in the general grounds of a motion for a new trial, it was the manifest purpose of this statute only to require that the particular point shall be "specifically raised by a ground of the original or amended motion for a new trial," and a ground raising such question in accordance with the statute is in the nature of a general ground merely setting forth the movant's contentions, and does not require approval by the judge, showing his agreement with such contention. The record in the instant case shows that lack of proof of venue was specifically raised by a special ground of the motion for a new trial, and under the rulings just made this court should not refuse to consider such ground merely because it was not unqualifiedly approved by the judge. This ruling accords with the rulings in Landrum v. Landrum, 145 Ga. 307 (2) ( 89 S.E. 201); Louisville Nashville Railroad Co. v. Ogles, 146 Ga. 20 ( 90 S.E. 476): Hatcher v. State, 176 Ga. 454 (4) ( 108 S.E. 278), relating to questions which can be raised only by special grounds of a motion for new trial, as to which qualified or conditional approval would be insufficient. The evidence was insufficient to prove venue, as contended in the motion for new trial, and the judge erred in overruling the motion.
Judgment reversed. All the Justices concur.