156 S.E.2d 446 (Ga. 1967), 24113, Wilson v. State

Docket Nº24113.
Citation156 S.E.2d 446, 223 Ga. 531
Opinion JudgeMOBLEY, Justice.
Party NameJohnny C. WILSON v. The STATE.
Attorney2. The words which the indictment charges that the defendant used were opprobrious and abusive within themselves,, and it was not necessary to allege in the indictment in what manner they were opprobrious and abusive. Nor was it necessary to allege in the indictment in what manner the words used ...
Judge PanelLewis R. Slaton, Sol. Gen., J. Robert Sparks, J., Walter LeCraw, Atlanta, for appellee.
Case DateJuly 14, 1967
CourtSupreme Court of Georgia

Page 446

156 S.E.2d 446 (Ga. 1967)

223 Ga. 531

Johnny C. WILSON

v.

The STATE.

No. 24113.

Supreme Court of Georgia.

July 14, 1967

Rehearing Denied July 27, 1967.

Page 447

Syllabus by the Court

1. The language of Code Ann. § 26-6303 which the defendant was charged with violating conveys a definite meaning as to the conduct forbidden, when measured by common understanding and practice, and satisfies the due process requirements of the State and Federal Constitutions.

[223 Ga. 532] 2. The words which the indictment charges that the defendant used were opprobrious and abusive within themselves,

Page 448

and it was not necessary to allege in the indictment in what manner they were opprobrious and abusive. Nor was it necessary to allege in the indictment in what manner the words used tended to cause a breach of the peace.

3. The offense of assault and battery is an entirely separate and distinct offense from that of using opprobrious words and abusive language.

4. The evidence was sufficient to support the verdict.

5. It was not a material variance in the allegation and the proof that the indictment charged offenses committed on T. L. Raborn and the evidence showed the commission of these offenses on T. L. Raburn.

6. It was not error to charge on malicious mischief where the jury was limited in the consideration of this offense to the determination of the question of whether the arrest of the defendant without a warrant was legal.

7. It was not error to permit the prosecuting attorney to read from an opinion of the United States Supreme Court to the court in the presence of the jury. Nix v. State, 149 Ga. 304, 100 S.E. 197; Beam v. State, 208 Ga. 497(3), 67 S.E.2d 573; Ayers v. State, 215 Ga. 325(4), 110 S.E.2d 669. Nor can we say that there is any merit in the defendant's contention that he was denied due process of law because the prosecuting attorney 'failed in his opening statement to give the defendant notice of what he is proceeding on,' where the record does not include the opening statement.

Howard Moore, Jr., Atlanta, for appellant.

Lewis R. Slaton, Sol. Gen., J. Robert Sparks, J., Walter LeCraw, Atlanta, for appellee.

MOBLEY, Justice.

Johnny C. Wilson was indicted and convicted on two counts of assault and battery and two counts of using opprobrious words and abusive language. He appeals from the denial of his motion for new trial, as amended, and of [223 Ga. 533] his motion in arrest of judgment, enumerating five assignments of error.

1. The first assignment of error is the overruling of the general demurrer to Counts 3 and 4 of the indictment, on the ground that Code Ann. § 26-6303, upon which they are founded, 'fails to give defendant adequate notice of the utterances which fall within its ambit and fails to set forth ascertainable standard of guilt,' in violation of the First and Fourteenth Amendments of the Constitution of the United States (Code §§ 1-801, 1-815) and Art. I, Sec. I, Par. III of the Constitution of the State of Georgia (Code Ann. § 2-103).

The defendant was charged with violating the following portion of Code § 26-6303, as amended: 'Any person who shall, without provocation, use to or of another, and in his presence, * * * opprobrious words or abusive language, tending to cause a breach of the peace, * * * shall be guilty of a misdemeanor.' 'Statutory language in defining a criminal offense which conveys a definite meaning as to proscribed conduct when measured by common understanding and practice satisfies due process requirements.' Jones v. State, 219 Ga. 848, 850, 136 S.E.2d 358; 361; Fowler v. State, 189 Ga. 733(1), 8 S.E.2d 77; Millhollan v. State, 221 Ga. 165, 143 S.E.2d 730; United States v. Petrillo, 332 U.S. 1, 67 S.Ct. 1538, 91 L.Ed. 1877; Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498. The language of Code Ann. § 26-6303 which the defendant was charged with violating conveys a definite meaning as to the conduct forbidden, measured by common understanding and practice. While it is a matter for jury determination in each case whether under all the facts and circumstances the words used were of such character that their use was calculated to cause

Page 449

a breach of the peace, as well as to determine whether there was provocation...

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17 practice notes
  • 425 S.E.2d 665 (Ga.App. 1992), A92A1030, State v. Klinakis
    • United States
    • Georgia Court of Appeals of Georgia
    • October 29, 1992
    ...to a violent reaction under the circumstances of the case.' " Lamar, supra [206 Ga.App. 323] at 719 (III). Compare Wilson v. State, 223 Ga. 531, 533(1), 156 S.E.2d 446 (legislative history found in Gooding, supra) (it is a matter for jury determination whether under the circumstances t......
  • 441 S.E.2d 487 (Ga.App. 1994), A93A1815, Smith v. Holeman
    • United States
    • Georgia Court of Appeals of Georgia
    • February 23, 1994
    ...be made "by a law enforcement officer ... if the offense is committed in his presence." OCGA § 17-4-20(a). See Wilson v. State, 223 Ga. 531, 536, 156 S.E.2d 446, cert. den., 390 U.S. 911, 88 S.Ct. 839, 19 L.Ed.2d 885. But, this proviso excuses Holeman only if he was acting as a po......
  • 132 N.E.3d 438 (Ind.App. 2019), 18A-CR-2554, McGuire v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • August 27, 2019
    ..." ‘White son of a bitch, I’ll kill you’ and ‘you son of a bitch, I’ll choke you to death.’ " Wilson v. State, 223 Ga. 531, 156 S.E.2d 446, 534 (Ga. 1967), reh’g denied, cert. denied . In addition, Wilson stated, " ‘You son of a bitch, if you ever put your&......
  • 542 S.W.2d 512 (Mo. 1976), 59088, City of St. Louis v. Tinker
    • United States
    • Missouri Supreme Court of Missouri
    • November 8, 1976
    ...by the evidence that the words were spoken without sufficient provocation, and tended to cause a breach of the peace. (Wilson v. State) 223 Ga. 531, 535, 156 S.E.2d 446, 449--450. 'Count 3 of the indictment alleged that the accused 'did without provocation use to and of M. G. Redding and in......
  • Request a trial to view additional results
17 cases
  • 425 S.E.2d 665 (Ga.App. 1992), A92A1030, State v. Klinakis
    • United States
    • Georgia Court of Appeals of Georgia
    • October 29, 1992
    ...to a violent reaction under the circumstances of the case.' " Lamar, supra [206 Ga.App. 323] at 719 (III). Compare Wilson v. State, 223 Ga. 531, 533(1), 156 S.E.2d 446 (legislative history found in Gooding, supra) (it is a matter for jury determination whether under the circumstances t......
  • 441 S.E.2d 487 (Ga.App. 1994), A93A1815, Smith v. Holeman
    • United States
    • Georgia Court of Appeals of Georgia
    • February 23, 1994
    ...be made "by a law enforcement officer ... if the offense is committed in his presence." OCGA § 17-4-20(a). See Wilson v. State, 223 Ga. 531, 536, 156 S.E.2d 446, cert. den., 390 U.S. 911, 88 S.Ct. 839, 19 L.Ed.2d 885. But, this proviso excuses Holeman only if he was acting as a po......
  • 132 N.E.3d 438 (Ind.App. 2019), 18A-CR-2554, McGuire v. State
    • United States
    • Indiana Court of Appeals of Indiana
    • August 27, 2019
    ..." ‘White son of a bitch, I’ll kill you’ and ‘you son of a bitch, I’ll choke you to death.’ " Wilson v. State, 223 Ga. 531, 156 S.E.2d 446, 534 (Ga. 1967), reh’g denied, cert. denied . In addition, Wilson stated, " ‘You son of a bitch, if you ever put your&......
  • 542 S.W.2d 512 (Mo. 1976), 59088, City of St. Louis v. Tinker
    • United States
    • Missouri Supreme Court of Missouri
    • November 8, 1976
    ...by the evidence that the words were spoken without sufficient provocation, and tended to cause a breach of the peace. (Wilson v. State) 223 Ga. 531, 535, 156 S.E.2d 446, 449--450. 'Count 3 of the indictment alleged that the accused 'did without provocation use to and of M. G. Redding and in......
  • Request a trial to view additional results
1 books & journal articles
  • RIGHTS AGAINST RULES: THE MORAL STRUCTURE OF AMERICAN CONSTITUTIONAL LAW.
    • United States
    • Michigan Law Review Vol. 97 Nbr. 1, October 1998
    • October 1, 1998
    ...405 U.S. at 519 (quoting GA. CODE ANN. [sections] 26.6303 (Harrison Supp. 1971)). (87.) 405 U.S. at 520 n.1 (citing Wilson v. State, 156 S.E.2d 446, 449 (Ga. 1967)); see also Lewis v. City of New Orleans, 415 U.S. 130 (1974) (invalidating Louisiana ordinance that made it unlawful to "c......