King v. State

• Decision Date: 23 September 1980
• Docket Number: No. 36249,36249
• Citation: King v. State, 246 Ga. 386, 271 S.E.2d 630 (Ga. 1980)
• Parties: , 16 A.L.R.4th 545 KING v. The STATE.
• Court: Georgia Supreme Court

Page 630

271 S.E.2d 630

246 Ga. 386, 16 A.L.R.4th 545

KING v.The STATE.

No. 36249.

Supreme Court of Georgia.

Submitted May 16, 1980.

Decided Sept. 23, 1980.

Paul S. Weiner, Jonesboro, for appellant.

Robert E. Keller, Dist. Atty., James W. Bradley, Asst. Dist. Atty., for appellee.

Arthur K. Bolton, Atty. Gen., Mary Beth Westmoreland, Staff Asst. Atty. Gen., amicus curiae.

PER CURIAM.

King, the former mayor of Mountain View, appeals his conviction on Count II of an indictment for bribery and a three-year sentence.He was charged with receiving money from the proprietor of the Country Western Lounge to allow it to remain open beyond 3:00 a. m. contrary to a Mountain View ordinance.He enumerates 14 errors.We reverse.

1.There is no merit to appellant's contention in his first enumeration of error that the indictment fails to allege an offense.Humphrey v. State, 231 Ga. 855, 860, 204 S.E.2d 603(1974).

2.Appellant attacks the constitutionality of the criminal statute setting forth the crime of bribery, Code Ann. § 26-2301, ¹ arguing that sub-section (2) of that act does not set forth a criminal purpose and makes all conduct criminal, whether private or related to the function of a government office.He argues subsection (2) must be considered apart from the rest of the statute, and when so considered, it violates constitutional safeguards.

Sub-section (2) must be read in pari materia with the rest of the act.Sub-section (1) clearly makes it a crime to "give or offer to give" to one clothed with governmental authority any benefit, reward or consideration to which he is not entitled, with the purpose of influencing him in the performance of any act related to the functions of his office or employment.Sub-section (2) clearly continues the statement begun in sub-section (1) and makes the crime equally applicable to those clothed with the governmental authority to "solicit or receive" any such benefit, reward or consideration.

A fundamental requirement of a criminal statute is that it gives "fair warning" of what conduct is criminal.Further, it must not be so vague, uncertain or ambiguous as to make it improbable that ordinary people of equal intelligence could misconstrue its meaning.Bribery is a well-known word, used widely and understood generally.Its ordinary signification may mean an " 'act of influencing the action of another by corrupt inducement.'Merriam-Webster's New International Dictionary (2nd Ed., Unabridged)....(A)s a legal word of art, (it) is somewhat broader to include 'offering, giving, receiving, or soliciting of anything of value to influence action as (an) official or in discharge of (a) legal or public duty.'Black's Law Dictionary, (4th Ed.)."Ansley v. State, 124 Ga.App. 670, 672, 185 S.E.2d 562(1971).

The statute is not unconstitutionally vague.Further, the words, "benefit, reward or consideration" all relate to "thing of value" and to meet constitutional standards, need not be specifically defined in the act.Enumeration 2 is without merit.

3.Appellant concedes that a municipality may be made a "political sub-division of the state" by statute.It may also be so designated by constitutional amendment.Thus, his claim of error that Code Ann. § 26-2301, Bribery, is not applicable to the mayor of Mountain View because a municipality under the criminal statutes is not a political sub-division of the state, is without merit.SeeArt. IX, Sec. IV, Par. II, Const. of Ga. of 1976;Code Ann. § 2-6102, Supplementary Powers, where the language of the constitution specifically categorizes counties and municipalities as "political subdivisions" for the purposes of achieving self-government.See alsoCode Ann. Ch. 69-10, Home Rule.Enumeration 3 is without merit.

4.There is no merit to appellant's claim that his motion for directed verdict of acquittal notwithstanding mistrial after a previous trial where the jury could not reach a verdict and motion for directed verdict at the close of the evidence upon retrial were erroneously denied.These enumerations argue there was no language in the ordinance requiring the lounges to "close" at 3:00 a. m. We conclude the language of the ordinance prohibits lounges from selling alcoholic beverages between the hours of 3:00 a. m. and 9:00 a m. each morning.It also permitted an extra hour to clear the premises of its patrons following the close of the bar.The use of the word "close" in the indictment (Count II), though not found in the ordinance, clearly has that meaning and was not prejudicial in any manner to appellant.Enumerations 9 and 12 are without merit.

5.The State in its brief correctly shows, contrary to appellant's contention, that the charter of the City of Mountain View, in Section 6, provides for the enforcement of the city laws as a function of the office of the mayor and council.There is no merit to Enumeration 13.

6.Appellant claims the court erred in failing to charge the jury as to the significance of the "immunity" granted to William Burrell Smith and Al Crass, alleged co-conspirators in the bribery scheme, whose testimony the State relied upon for conviction of appellant under Count II.

There was no error in the absence of a written request to charge on this point where the court otherwise notified the jury that the witnesses were testifying under a grant of immunity.Further, the court did not abuse its discretion in denying an oral request to charge on this point.

7.It was error for the trial judge to refuse to disqualify himself.The commentary following Canon 2 of the Georgia Code of Judicial Conduct explains that a judge "must avoid all impropriety and appearance of impropriety."231 Ga. A-2;Ferry v. State, 245 Ga. 698, 267 S.E.2d 1(1980).Canon 3.C. (1) provides that "A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where: ... (b)he served as a lawyer in the matter in controversy..."231 Ga. A-5;Scogin v. State, 138 Ga.App. 859, 861(2), 227 S.E.2d 780(1976)."We interpret the word 'should' to mean 'shall' in the context of this requirement."Savage v. Savage, 234 Ga. 853, 856, 218 S.E.2d 568(1975);Savage v. Savage, 238 Ga. 16(2), 230 S.E.2d 851(1976).

Furthermore, Code Ann. § 24-102 states that "No judge ... of any court ... shall ... preside, act or serve, in any case or matter ... in which he has been of counsel ... without the consent of all parties in interest...."Although we have held that it is not grounds for disqualification that a judge in his previous capacity as district attorney prosecuted the defendant on another charge (Fowler v. Strickland, 243 Ga. 30, 32(2), 252 S.E.2d 459(1979)), w...