Caby v. State, 37936

• Decision Date: 17 February 1982
• Docket Number: No. 37936,37936
• Citation: 249 Ga. 32,287 S.E.2d 200
• Parties: CABY v. The STATE.
• Court: Georgia Supreme Court

Page 200

287 S.E.2d 200

249 Ga. 32

CABY v. The STATE.

No. 37936.

Supreme Court of Georgia.

Feb. 17, 1982.

Richard M. Cowart, Valdosta, for Donald Ray Caby, et al.

H. Lamar Cole, Dist. Atty., Valdosta, for the State.

SMITH, Justice.

Appellants, a married couple, were each convicted of two counts of cruelty to children. Because the constitutionality of Code Ann. § 26-2801(a) has been called into question, this court has jurisdiction to decide the appeal. Because the evidence does not support the convictions on one of the counts, we affirm in part and reverse in part.

1. Appellants attack the constitutionality of Code Ann. § 26-2801(a) on grounds of vagueness and overbreadth.

a) Code Ann. § 26-2801(a) provides: "A parent, guardian, or other person supervising the welfare of or having immediate charge or custody of a child under the age of 18 commits cruelty to children when he wilfully deprives the child of necessary sustenance to the extent that the child's health or well-being is jeopardized." Appellants assert that the inherent vagueness in the phrase "necessary sustenance" renders the statute unconstitutional.

The "prohibition against excessive vagueness does not invalidate every statute which a reviewing court believes could have been drafted with greater precision. Many statutes will have some inherent vagueness for '[i]n most English words and phrases there lurk uncertainties' .... All the Due Process Clause requires is that the law give sufficient warning that men may conduct themselves so as to avoid that which is forbidden." Rose v. Locke, 423 U.S. 48, 49-50, 96 S.Ct. 243, 244, 46 L.Ed.2d 185 (1975). "A criminal statute is sufficiently definite if its terms furnish a test based on normal criteria which men of common intelligence who come in contact with the statute may use with reasonable safety in determining its command." Wilson v. State, 245 Ga. 49, 53, 262 S.E.2d 810 (1980); United States v. Petrillo, 332 U.S. 1, 8, 67 S.Ct. 1538, 91 L.Ed. 1877 (1946).

Applying this standard, we must conclude that Code Ann. § 26-2801(a) is not unconstitutionally vague for the reason assigned by appellants. "Sustenance is 'that which supports life; food; victuals; provisions;' ... Our statute, in the use of the word 'sustenance,' means that necessary food and drink which is sufficient to support life and maintain health." Justice v. State, 116 Ga. 605, 42 S.E.2d 1013 (1902); see United States v. Vuitch, 402 U.S. 62, 91 S.Ct. 1294, 28 L.Ed.2d 601 (1971).

b) We also find appellants' "overbreadth" challenge to be without merit.

"A law is void on its face if it 'does not aim specifically at evils within the allowable area of [government] control, but sweeps within the ambit of other activities that constitute an exercise' of protected expressive or associational rights." Tribe, American Constitutional Law, § 12-24, p. 710, quoting Thornhill v. Alabama, 310 U.S. 88, 97, 60 S.Ct. 736, 741, 84 L.Ed. 1093 (1940). "[P]articularly where conduct and not merely speech is involved, ... the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 2918, 37 L.Ed.2d 830 (1974).

Under the above authorities, Code Ann. § 26-2801(a) is clearly not void for overbreadth. The statute is not designed to reach legitimate child rearing functions, nor could it reasonably be so construed. See Davis v. State, 234 Ga. 730, 733, 218 S.E.2d 20 (1975).

2. The evidence adduced at trial showed that appellants have two children. The husband is a traveling painter who specializes in truck lettering. For approximately three years prior to their arrest, appellants have been traveling throughout the country, staying close to truck stops where truck drivers congregate. They arrived in Valdosta on February 28, 1981, and registered at a local motel.

On March 21, 1981, a motel clerk found both of appellants' children--David, age 13 months, and Samuel, age two and one-half months--in the motel room unattended. She called the police, who arrested appellants at a local bar and had the children placed in the custody of the Department of Family and Children Services. A DFCS representative, who observed the children at this time, described them as "very pale and very thin." A deputy stated that the younger child ...