Gaines v. State , 80 Ga. App. 512 ( 1949 )

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.

DECIDED DECEMBER 3, 1949. The defendant seems to base his demurrer on, or at least cites as authority, Hayes v. State, 11 Ga. App. 371 (2) (75 S.E. 523), which holds as follows: "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 men who may happen to constitute the court and jury, and is of such a nature that honest and intelligent men are unable to ascertain what particular act it seeks to condemn, is incapable of enforcement, and will be held to be null and void. So much of the act approved August 13, 1910 (Acts 1910, p. 92), regulating the use of automobiles, as undertakes to make 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 the safety of any property,' is too uncertain and indefinite in its terms to be capable of enforcement." In Ray v. State,47 Ga. App. 22, 23 (169 S.E. 538), it is said: "This court in the case of Hayes v. State, 11 Ga. App. 371 (75 S.E. 523), held the act of 1910, making it criminal to operate an automobile on a public highway at a rate of speed greater than is reasonable and proper, having regard to the traffic and use of such highway so as to endanger life, etc., too uncertain and indefinite in its terms to be capable of enforcement. 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. The decision in the Hayes case has been criticized by courts of other States. Schultz v. State,89 Neb. 34 (130 N.W. 972, 33 L.R.A. (N.S.) 403, Ann. Cas. 1912C, 495); State v. Schaeffer, 96 O. St. 215 (117 N.E. 220, L.R.A. 1918B, 945, Ann. Cas. 1918E, 1137); Maxon v. State, 177 Wis. 379 (187 N.W. 753, 21 A.L.R. 1484); 26 A.L.R. 898. The ``rule of reason' doctrine enunciated by the United States Supreme Court in Standard Oil Co. v. United States, 221 U.S. 1 (31 Sup. Ct. 502, 55 L. ed. 619, 34 L.R.A. (N.S.) 834, Ann. Cas. 1912D, 734), is also in conflict with the principle in the Hayes case. Our own courts, in passing on questions of public indecency or otherwise indecently acting, made the jury the sole judges of what is or is not indecent acting, according to the time, place and circumstances surrounding the act. We are bound, however, by the decision in the Hayes case." After so stating, the court in the Ray case thereupon proceeded to hold: "The act of 1927 (Ga. L. 1927, p. 237) which declares that ``An operator overtaking 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 of his vehicle,' is not void because of being too vague and indefinite to be capable of enforcement." The application for certiorari was denied by the Supreme Court in that case. In Lester v. State, 51 Ga. App. 146 (179 S.E. 869), citing the Ray case as authority, it was held: "There is no special demurrer to the indictment and, reduced to its last analysis, the sole question presented by the general demurrer is whether or not the following part of the motor-vehicle law (Ga. L. 1927, p. 237, section 12 (d), Code of 1933, § 68-303 (d)) is so vague and indefinite as to be void: ``An operator of a vehicle overtaking another vehicle going in the same direction, and desiring to pass the same, shall pass to the left of the vehicle overtaken, provided that the way ahead is clear of approaching traffic, but if the way is not clear, he shall not pass unless the width of the roadway is sufficient to allow his vehicle to pass to the right of the centre thereof in the direction in which his vehicle is moving.' Held, that the only part of the statute subject to attack for indefiniteness, to wit, the phrase ``clear of approaching traffic,' is not so vague and indefinite as to invalidate the statute, and that the court did not err in overruling the demurrer to the indictment." InCollins v. State, 51 Ga. App. 147 (179 S.E. 869), this court followed the Ray case and the Lester case. In all of the cases which have been decided by this court since the decision in the Hayes case, the Hayes case has not been cited, unless the precise question was involved, except to distinguish it from the case then under consideration and in some cases the court has even gone further, when it followed theHayes case, and said that they only did so because they were bound by that case. See Poole v. State, 47 Ga. App. 303 (170 S.E. 309); Phillips v. State, 60 Ga. App. 622 (4 S.E.2d 698); Lester v. State, supra; Collins v. State, supra. In the recent case of Watson v. State, 192 Ga. 679 (16 S.E.2d 426), in referring to a line of decisions which cited the Hayes case, the Supreme Court merely said that the question involved there was not the precise question which was involved in the line of cases citing the Hayes case and similar cases in which statutes relating to the operation of motor vehicles were held void for uncertainty, and consequently these decisions did not require a different result in that case. But it seems to us that the court thereupon, and immediately following, threw out the danger signal by saying, "See in this connectionRay v. State, [supra]; Poole v. State [supra]," and held that the demurrer in the Watson case was not meritorious. Thus the Supreme Court has at least on two occasions had a convenient opportunity to disapprove the Ray case if they thought it was unsound; this they did not do. In the instant case the accusation charged 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 with sufficient or serviceable brakes." This accusation was drawn under Code § 68-302 which provides 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. Every motor vehicle using the highways at night shall be equipped with a lamp or lamps clearly visible for a distance of not less than 100 feet from the front and rear." The purpose of the regulations for motor vehicles is the protection of the lives and limbs of all persons upon or using the streets and highways of this State, not only those who may be met, overtaken or passed by drivers but those as well who may accompany the driver. More people are now killed in automobile accidents than were killed in a given year of World War II. The paramount humanitarian purpose of this statute and its adaptability to meet every dangerous situation for the safeguarding of life and limb against the aggression of reckless and wanton operators commend it as a valid enactment and it cannot be declared inoperative in whole or in part unless the whole or the part in question is so imperfect as to render it impossible of execution or is so uncertain that it is impossible to ascertain the legislative intent and thus would be inoperative. Such defects, if they exist, may be urged as a ground of demurrer on the theory that the allegations of the accusation are insufficient to constitute a crime. Abel v.State, 64 Ga. App. 448, 451 (13 S.E.2d 507). It seems to us that the legislative intent in this statute in question is not impossible to ascertain, but is couched in such simple and ordinary language that there can be no doubt about its meaning and the statute is not impossible of enforcement. If it be claimed that the statute under which the defendant was convicted is too vague and uncertain to sustain a conviction in that it is impossible for the driver of the car to know whether or not he is violating it; that the fact of violation depends upon the judgment of the court or jury and not upon the specific criteria contained in the act itself; that one jury may convict and another acquit on the same state of facts, we do not think this contention is sound, for it is inevitable under any system of jurisprudence or any set of facts involved in a criminal transaction that courts differ in their judgment; juries differ in their judgment, but this is no sound reason either for abolishing them or for denying them jurisdiction sufficient to enforce the administration of statutes like the one in question, because if the fact that a jury might decide a case one way and another jury another way upon the same state of facts rendered laws void for uncertainty, then we would have to discard not only many rules of civil law, but also many criminal laws. 26 A.L.R. 897 et seq. Absolute and mathematical certainty is not required in the framing of a statute. Reasonable certainty of the nature and cause of the offense is all that is required. Some admit of much greater precision and definiteness than others, but it is quite obvious that in the instant case the statute must be sufficiently elastic and adaptable to meet all dangerous situations presented in order to safeguard the traveling public, whether foot passenger, horse, or motor vehicle. L.R.A. 1918E, p. 945, 952. Code § 68-302 is as definite and certain in the subject-matter and the numerous situations arising thereunder as the nature of the case and the safety of the public will reasonably admit.

"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,126 Ga. 594 (55 S.E. 592). An accusation which alleges the violation of the statute here in question in the language of the statute together with the other necessary allegations — such as being on a public highway, etc. — is sufficient to put the defendant on notice as against what facts and charges he must contend. Every essential ingredient of the offense charged is set forth in the accusation with sufficient clearness to enable the defendant to clearly understand the nature of the offense, and the accusation is exact enough to protect the defendant from a second jeopardy. Hawkins v. State, 58 Ga. App. 386 (198 S.E. 551). The accusation was not subject to the demurrer and the court did not err in overruling the same.

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.