Jones v. State, 22415
| Decision Date | 09 April 1964 |
| Docket Number | No. 22415,22415 |
| Citation | 136 S.E.2d 358,219 Ga. 848 |
| Parties | Ashton Bryan JONES v. The STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. Alleged prejudice or bias of a trial judge which is not based on an interest either pecuniary or relationship to a party within a prohibited degree (Code Ann. § 24-102) affords no legal ground of disqualification.
2. The plea in abatement was properly dismissed on motion.
3. (a) Code Ann. § 26-6901 is not so vague, indefinite and ambiguous as to render it invalid as violative of the due process clauses of the State and Federal Constitutions.
(b) The indictment discloses with reasonable certainty that the defendant was charged with violating Code Ann. § 26-6901, and the general demurrer was properly overruled.
4. The special demurrers to the indictment were properly overruled.
5. The motion in arrest of judgment discloses no meritorious ground.
6. Special grounds 1-8, which complain of several portions of the court's instructions to the jury, disclose no error.
7,8,9. The rulings of the court on the admission and rejection of evidence, on which error is assigned in special grounds 9-11 do not disclose error.
10. It is never error in a criminal case to refuse to direct a verdict of acquittal.
11. The sentence imposed, being within the limits provided by law, was not excessive.
Donald L. Hollowell, Howard Moore, Jr., Atlanta, for plaintiff in error.
William T. Boyd, Sol. Gen., J. Walter LeCraw, Asst. Sol. Gen., Eugene Cook, Atty. Gen., Charles A. Williams, Asst. Sol. Gen., Atlanta, for defendant in error.
Ashton B. Jones upon his conviction of violating Code Ann. § 26-6901 () was sentenced by the court. His motion for a new trial was overruled. Error is assigned on the order denying him a new trial. Error is also assigned on (a) the refusal of the trial judge to disqualify himself from presiding in the case; (b) the order dismissing on motion of the State the defendant's plea in abatement; (c) the orders overruling the general and special demurrers to the indictment; and (d) the order overruling the defendant's motion in arrest of judgment.
1. Motion to disqualify. The defendant before pleading to the merits moved to disqualify the trial judge on the ground that he, by reason of bias and prejudice, could not give him a fair and impartial trial. Code Ann. § 24-102 provides the circumstances under which a judge of the superior court may be disqualified. This code section does not provide that bias or prejudice is a ground to disqualify him from presiding in the case. The statutory grounds of disqualification contained in this section are exhaustive. Blakeman v. Harwell, 198 Ga. 165, 31 S.E.2d 50. 'Alleged prejudice or bias of a judge, which is not based on an interest either pecuniary or relationship to a party within a prohibited degree, affords no legal ground of disqualification.' Elder v. Camp, 193 Ga. 320, 18 S.E.2d 622. See also Moore v. Dugas, 166 Ga. 493, 143 S.E. 591.
2. The plea in abatement. The plea alleged that the indictment under Code Ann. § 26-6901 was being applied so as to deny the defendant due process of law and equal protection of the law under the Constitution of Georgia (Code Ann. § 2-103, Const. art. 1, § 1, par. 3) and the Fourteenth Amendment to the Federal Constitution in that 'the said statute is being applied so as to perpetuate a scheme of racial discrimination in places of public worship within the City of Atlanta, Fulton County Georgia, which has long existed under State sanction through legislative enactments, recognized customs and usages, and which has been aided and abetted by the discriminatory enforcement and application of the said statute.' The State moved to dismiss the plea on the grouns that all the allegations contained in the plea go to the merits of the case and are not the proper subject matter for a plea in abatement. This motion to dismiss was sustained.
Pleas in abatement are dilatory pleas. They must be strictly construed, certain in intent and leave nothing to be suggested by intendment. Every inference must be against the pleader. Meriwether v. State, 63 Ga.App. 667(1), 11 S.E.2d 816. The indictment charges the defendant with disturbing divine worship by the doing of certain acts. There is no allegation of the absence of such acts before the grand jury or that the indictment was returned solely by the grand jury 'to perpetuate a scheme of racial discrimination in places of public worship.' 'It has never been the practice in this State to go into an investigation to test the sufficiency of the evidence before the grand jury.' Powers v. State, 172 Ga. 1(3), 157 S.E. 195.
It was not error to dismiss the plea.
3. The demurrers to the indictment. The general demurrers. Code Ann. § 26-6901 provides: 'Any person who shall, by cursing or using profane or obscene language, or by being intoxicated, or otherwise indecently acting, interrupt, or in any manner disturb a congregation of persons lawfully assembled for divine service, and until they are dispersed from such place of worship, shall be guilty of a misdemeanor.' The indictment charged the defendant with the offense of a 'misdemeanor (Sec. 26-6901) for that said accused, in the County of Fulton and State of Georgia, on the 30th day of June, 1963, with force and arms, said accused being at and on the grounds of the First Baptist Church of Atlanta, did interrupt and disturb a congregation of persons then and there lawfully assembled for divine service at said church, by loud talking, shouting, and by sitting on the floor of said church and by otherwise indecently acting contrary to the laws of said State, the good order, peace and dignity thereof.'
(a) The defendant challenges the statute under which he was indicted (Code Ann. § 26-6901) on the ground that the statute is so vague, indefinite and ambiguous that it wholly fails to give the defendant notice of the act and conduct which constitutes a violation of said statute as is required by the due process clauses of the State Constitution and the Fourteenth Amendment to the Federal Constitution.
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. United States v. Petrillo, 332 U.S. 1, 67 S.Ct. 1538, 91 L.Ed. 1877. The statute under consideration proscribes the interruption or disturbance of a congregation of persons assembled for divine service in one of five different ways. The defendant under this indictment is put upon notice that he at a certain day at a named church did by 'loud talking, shouting and by sitting on the floor of said church and by otherwise indecently acting' interrupt and disturb a congregation of persons assembled for divine worship at said church. This court in Folds v. State, 123 Ga. 167, 51 S.E. 305 held that the words 'indecently acting' must be taken in the comprehensive sense and include all improper conduct which interrupts or disturbs a congregation of persons lawfully assembled for divine worship. Any person of common intelligence (and particularly one who claims to be an ordained minister) may determine whether the particular acts and conduct charged him with improper conduct, i. e., indecent acting. See Watson v. State, 192 Ga. 679, 16 S.E.2d 426; Farrar v. State, 187 Ga. 401(2), 200 S.E. 803 and Clark v. State, 219 Ga. 680, 135 S.E.2d 270.
It was not error to overrule this ground of the general demurrer.
(b) The indictment was demurred to on the grounds (1) that it did not charge any offense under the law; (2) that the allegations in the indictment were insufficient to charge the defendant with any offense under any law of the State and, (3) that the allegations in the indictment are so vague, indefinite and ambiguous that they wholly fail to give the defendant reasonable and adequate notice, as required by the due process clauses of the State Constitution and the Fourteenth Amendment to the Federal Constitution.
Laying the indictment by the side of the statute (Code Ann. § 26-6901) discloses that the defendant is charged with the offense prohibited by the statute and that he is apprised with reasonable certainty of the nature of the charge, Glover v. State, 126 Ga. 594, 55 S.E. 592, and that the statute is sufficient to withstand a general demurrer, Ruff v. State, 17 Ga.App. 337, 86 S.E. 784.
The charge that the allegations in the indictment are so vague, indefinite and ambiguous as not to meet the requirements of due process is controlled by the ruling in division 3(a) above.
4. Special demurrers. Ground 1 asserts that the indictment fails to allege that any person or persons were disturbed or give the name of any person who was disturbed. Grounds 2 and 3 allege that the words 'by loud talking, shouting and by sitting on the floor of said church and by otherwise indecently acting' are too vague and indefinite and insufficient to enable the defendant to prepare his defense and that there was no allegation that the 'loud talking' was either profane, abusive, unreasonable or wilful. Ground 4 alleges that the words in the indictment 'by otherwise indecently acting' are vague and insufficient to put defendant on notice of the nature and character of his acts. Ground 5 asserted that the indictment fails to state the State and county of defendant's residence.
The court overruled all of the special demurrers except ground 4 which it sustained, and the words 'and by otherwise indecently acting' were stricken from the indictment. Error is assigned on the overruling of the other demurrers.
This court in considering the sufficiency of an indictment under Code Ann. § 26-6901 in Minter v. State, 104 Ga. 743, 30 S.E. 989 said: ...
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