Hargrove v. State

• Decision Date: 02 October 1984
• Docket Number: No. 40938,40938
• Citation: 253 Ga. 450,321 S.E.2d 104
• Parties: HARGROVE et al. v. The STATE.
• Court: Georgia Supreme Court

Page 104

321 S.E.2d 104

253 Ga. 450

HARGROVE et al. v. The STATE.

No. 40938.

Supreme Court of Georgia.

Oct. 2, 1984.

As Amended Oct. 10, 1984.

Rehearing Denied Oct. 30, 1984.

Jack G. Slover, Jr., Twitty & Slover, Camilla, Kenneth L. Gordon, Atlanta, Steven Schaikewitz, for Harry Hargrove et al.

J. Brown Moseley, Dist. Atty., Bainbridge, for the State.

Roger A. Kindler, John McKie, amicus curiae.

CLARKE, Justice.

Appellants Hargrove, Kelly and Swetman were indicted for the offenses of dogfighting, gambling and commercial gambling. The jury convicted each of them of dogfighting and gambling and convicted Hargrove and Swetman on the commercial gambling counts. On appeal they raise the constitutionality of OCGA 16-12-37, the dogfighting law and the sufficiency of the evidence relating to all other counts. We hold the statute to be constitutional and affirm.

Appellants were arrested when law enforcement officers from Mitchell County, Dougherty County and the GBI raided a dogfight being held in a wooded area on the property of Hargrove during the early morning hours. Officers were staked out in the wooded area and converged on the pit area when sounds of dog yapping and moaning could be heard. They also overheard someone say, "I'll take five on that." When the officers converged on the scene Swetman was inside a square pit with two dogs which were bloodied with wounds on their legs and the head areas. There was blood on Swetman's arms and clothing. Hargrove was apprehended leaving the pit area and Kelly was found hiding in some bushes.

In addition to the law enforcement officers who testified for the prosecution, the state also called Marc Paulhus, the southeastern regional director of the Humane Society of the United States, who accompanied the officers on the raid. Mr. Paulhus was qualified at trial as an expert on animal affairs and on dogfighting in particular.

He testified as to the general nature of dogs trained to fight, specifically pit bulls, and how dogfights are booked and how fights between particular dogs are contracted in advance. He identified the uses of certain dogfighting paraphernalia seized on Hargrove's property. Weighing scales marked with Swetman's name were found near the pit. Paulhus testified that most contracts specify a fighting weight and therefore the dogs must be weighed before each match. Washtubs were seized at the scene which are used to wash the dogs before a fight to ensure that no poisoning or paralytic agents have been applied to the dogs' coats.

Paulhus also described the use of "breaking sticks" which are used to pry open a dog's mouth when they are separated during a fight. Two of these sticks were taken from the fight pit and one was found in Hargrove's pocket.

Also seized were two treadmills used for endurance and strength training and a device called a "catmill", also for increasing stamina and on which other animals are used as bait.

Paulhus also testified without objection that the ultimate purpose of dogfighting is to make money through gambling. Money is put down on the contracts themselves and bets are made with spectators and opponents.

The first three enumerations of error raise constitutional attacks to the dogfighting statute OCGA § 16-12-37: "(a) A person commits the offense of dogfighting when he causes or allows a dog to fight another dog for sport or gaming purposes or maintains or operates any event at which dogs are allowed or encouraged to fight one another.

"(b) A person convicted of the offense of dogfighting shall be punished by a mandatory fine of $5,000.00 or by a mandatory fine of $5,000.00 and imprisonment for not less than one year nor more than five years."

1. In their first enumeration appellants contend that the statute is unconstitutionally vague and violates due process in that it is not sufficiently definite and certain in its description of the prohibited conduct. They argue that the statute makes it a crime for a person to "allow" a dogfight to occur, and that the conduct thus prohibited is impossible to define; consequently, men of common intelligence are not given fair notice of the conduct which is forbidden.

The inherent vagueness present in the English language has been noted by this court previously. Caby v. State, 249 Ga. 32, 287 S.E.2d 200 (1982); Wilson v. State, 245 Ga. 49, 262 S.E.2d 810 (1980). We have recognized that "mathematical certainty" is not necessary in statutes. Wilson, supra. "[A] criminal statute is sufficiently definite if its terms furnish a test based on knowable criteria which men of common intelligence who come in contact with the statute may use with reasonable safety in determining its command." Stull v. State, 230 Ga. 99, 100, 196 S.E.2d 7 (1973). Price v. State, 253 Ga. 250, 319 S.E.2d 849 (Ga.1984). In addition, the statute must be read as a whole, each phrase or word in conjunction with the other in order to determine the scope of prohibited activity. See McCord v. State, 248 Ga. 765, 285 S.E.2d 724 (1982).

The statute in question does not make unlawful allowing a dogfight to occur but prohibits one from "causing or allowing a dog to fight another dog for sport or gaming purposes." (Emphasis supplied.) OCGA § 16-12-37. Funk & Wagnalls Standard Dictionary defines "allow" as "1. To permit to occur or do. 2. To concede; admit. 3. To make provision for." The definition of "permit" as a verb in the same dictionary includes "1. To allow the doing of; 3. To afford opportunity for." In Colonial Stores Incorporated v. Scholz, 73 Ga.App. 268, 36 S.E.2d 189 (1945), the court held that the term "allow" encompasses knowledge and consent.

We construe "allow" as used in the statute to mean any act which contributes to the cause of a dogfight for sport or gaming purposes or furthers the success of the enterprise of a dogfight for sport or gaming purposes. Thus if a person engages on any level in the planning or financing of the event, including paying an admission, providing a location or wagering on the event or if a person encourages the event by applause or cheering, such person violates the statute. The foregoing examples are not, however, intended to exclude other acts which cause the event to occur or contribute to its success.

We hold the statute is sufficiently definite to put those of common intelligence on notice that knowing participation in a dogfighting event is prohibited.

2. Appellants next contend that the penalty provided for violating the dogfighting statute is excessive and violates the Eighth Amendment to the United States Constitution in that it is disproportionate to the punishment for other crimes within this state and to the punishment for the same crime in other states. Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910); Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977). A punishment is excessive so as to amount to cruel and unusual punishment if it "(1) makes no measurable contribution to accepted goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime." Coker, supra, 97 S.Ct. at 2866.

We will not here set forth the comparisons made by the appellants who cite to states making dogfighting a misdemeanor, and statutes affording misdemeanor punishments for other crimes in this state. Nor will we cite the appellants' list of states making dogfighting a felony and other Georgia felony statutes. We hold as a matter of law that a $5,000 fine with an optional one year in prison does not amount to cruel and unusual punishment for those convicted of dogfighting in this state.

3. Similarly, we reject the argument that the statute is invalid on equal protection grounds. Appellants contend that it is discriminatory to only prohibit dogfighting and to make that crime a felony while the cruelty to animals law, OCGA 16-12-4, which has been held to encompass cockfighting, Brackett v. State, 142 Ga.App. 601, 236 S.E.2d 689 (1977), only provides for misdemeanor punishment. Appellants argue there is no compelling interest which justifies the classification and therefore the statute is arbitrary under Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). This case does not involve a suspect classification and no fundamental rights are limited by the law. The legislature has a wide discretion in the exercise of its police power in setting classifications and penalties. Davis v. State, 248 Ga. 783, 286 S.E.2d 430 (1982). Such laws will not be held invalid if there is any basis upon which the law is aimed at a legitimate state interest. Smith v. Crim, 240 Ga. 390, 240 S.E.2d 884 (1977); Davis, supra.

OCGA § 16-12-4 makes it a misdemeanor for anyone to subject any animal to cruel treatment. The legislature has acted within its discretion in mandating that those who participate in a dogfight organized for sport or gaming purposes should be dealt with more harshly. The state has a legitimate...