State v. Hudson

• Decision Date: 19 January 1981
• Docket Number: No. 36584,36584
• Citation: 247 Ga. 36,273 S.E.2d 616
• Parties: The STATE of Georgia v. Amos HUDSON, Jr.
• Court: Georgia Supreme Court

Page 616

273 S.E.2d 616

247 Ga. 36

The STATE of Georgia v. Amos HUDSON, Jr.

No. 36584.

Supreme Court of Georgia.

Jan. 19, 1981.

W. A. Foster, III, Dist. Atty., Dallas, for appellant.

James I. Parker, Cedartown, for appellee.

CLARKE, Justice.

The trial court held Code Ann. § 26-1808.1 (Ga.L.1976, pp. 1456, 1457) unconstitutional under the equal protection and due process clauses of the United States and Georgia Constitutions. The state appeals. We reverse.

Section 26-1808.1 provides: "Any architect, landscape architect, engineer, contractor, subcontractor, or other person who, with intent to defraud, shall use the proceeds of any payment made to him on account of improving certain real property for any other purpose then (sic) to pay for labor or service performed on, or materials furnished by his order for this specific improvement, while any amount for which he may be or become liable for such labor, services, or materials remains unpaid shall be guilty of a felony ..., or upon the recommendation of the jury, or in the discretion of the trial judge, punished for a misdemeanor .... A failure to pay for material or labor furnished for such property improvements shall be prima facie evidence of intent to defraud."

The defendant here was indicted for the violation of the statute and to this indictment he filed a plea in bar. The trial court sustained the plea on two grounds. The court found that the statute created an impermissible presumption of guilt as to one of the elements of the crime and was so vague and indefinite as to constitute a denial of due process of law. The record in this case contains only the indictment, the plea in bar and the orders of court. Therefore, the trial court's holding is one of facial unconstitutionality since no evidence has been offered upon which it could be found that the statute is unconstitutional in the light of the facts of the case.

(1) "It is well established that vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand." United States v. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 714, 42 L.Ed.2d 706 (1975). The holding in Mazurie has been recognized and followed by this court in Hardison v. Shepard, 246 Ga. 196, 269 S.E.2d 458 (1980). In that case, we held that since it was impossible to determine the nature of the conduct which gave rise to the charge, the statute could not be declared void for vagueness. The case now before the court falls squarely within the above holdings and, therefore, the statute should not be declared unconstitutional for vagueness on its face.

(2) In considering whether the statute contains a constitutionally impermissible presumption as to one of the elements of the crime, we look again to a holding of the United States Supreme Court. In County Court of Ulster County v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979), the court construed a New York statute which provided that with several exceptions the presence of a firearm in an automobile was presumptive evidence of illegal possession of the firearm by all persons then occupying the vehicle. In construing this statute, the court found: "Our cases considering the validity of permissive statutory presumptions such as the one involved here have rested on an evaluation of the presumption as applied to the record before the Court. None suggests that a court should pass on the constitutionality of this kind of statute 'on its face.' It was error for the Court of Appeals to make such a determination in this case." 442 U.S. at 162-63, 99 S.Ct. at 2227-28. Cf. Bellavia v. Fogg, 613 F.2d 369 (2d Cir. 1979). The court made reference to "permissive statutory presumptions," presumptions which permit while not mandating a particular inference.

The court has recognized the value of inferences and presumptions in the fact finding process. "The value of these...