Simmons v. State
| Decision Date | 23 September 1980 |
| Docket Number | No. 36344,36344 |
| Citation | 271 S.E.2d 468,246 Ga. 390 |
| Parties | SIMMONS v. The STATE. |
| Court | Georgia Supreme Court |
James D. Hudson, Athens, for appellant.
Dwight H. May, Richard H. Goolsby, Asst. Dist. Attys., for appellee.
We granted certiorari in Simmons v. State, 154 Ga.App. 234, 267 S.E.2d 806 (1980), to determine the constitutionality of the burden shifting provisions of certain of our firearms laws namely Code §§ 26-2906 and 26-2907 of the Criminal Code of 1968 (Ga.L.1968, pp. 1249, 1324), relating to machine guns, and section 6 of the Firearms and Weapons Act (Ga.L.1968, pp. 983, 985; Code Ann. § 26-9915a), relating to silencers and other firing devices and weapons. Upon further consideration we find that the burden shifting provisions of those laws are not involved here and affirm.
James Gregg Simmons was indicted for and found guilty of possession of a machine gun in violation of the former law and possession of a silencer in violation of the latter. Contrary to the decision of the Court of Appeals, we find that the constitutional challenge to these laws was raised in the trial court on the defendant's motion for directed verdict. Although the challenge could have been made earlier, it was not too late. A criminal defendant may challenge the constitutionality of the statute the violation of which he was convicted for the first time on habeas corpus (Hammock v. Zant, 243 Ga. 259, 253 S.E.2d 727 (1979)), and may challenge the constitutionality of such statute for the first time on appeal. Barnes v. State, 244 Ga. 302(1), 260 S.E.2d 40 (1979). It follows that even though a criminal defendant may challenge, before trial, the constitutionality of the statute alleged in the indictment by demurrer, motion to quash, or plea in bar, by properly raising the constitutional objection, 1 it is not too late to challenge the statute on which an indictment is based on motion for directed verdict.
Sections 26-2906 and 26-2907 of our Criminal Code provide as follows:
§ 26-2907. (Emphasis supplied.)
Sections 26-2901, 26-2902 and 26-2903 refer to the crimes of carrying a concealed weapon, deadly weapons at public gatherings, and carrying a pistol without a license.
The Firearms and Weapons Act (Ga.L.1968, p. 983) refers to sawed-off rifles and shotguns, machine guns, dangerous weapons (e. g., bazookas) and silencers. Section 3 makes knowing possession of such weapons a crime. Section 5 (Code Ann. § 26-9914a) exempts certain law enforcement and peace officers including certain employees of the Board of Corrections, certain military servicemen, certain inoperable weapons, and persons authorized by the National Firearms Act (26 U.S.C. §§ 5841-5862). 2 Section 6 (Code Ann. § 26-9915a) provides as follows: "In any complaint, information, accusation or indictment, and in any action or proceeding brought for the enforcement of any provision of this (Act), it shall not be necessary to negative any exception, excuse, proviso or exemption contained in this (Act), and the burden of proof of any such exception, excuse, proviso or exemption shall be upon the defendant." (Emphasis supplied.)
It should be noted that the Criminal Code merely provides that the prosecution need not negative any exemption, whereas the Firearms Act contains not only that provision but also prescribes that the burden of proof of exemption shall be on the defendant.
Hence the Criminal Code provision in issue, Code § 26-2907, which merely provides that the prosecution need not negative any exemption is burden reducing but is not burden shifting. No contention is made that the Constitution is violated by this burden reduction (i. e., no contention is or could be made that the first two sentences in Code § 26-2906, standing alone, are unconstitutional); the Criminal Code provision shifts no burden to the defendant; and hence the question raised on certiorari as to shifting the burden of proof is not presented by Code §§ 26-2906, 22-2907. Moreover, as will be seen below, the trial court placed no burden of proof on the defendant as to either of the two laws in issue. Therefore, defendant's conviction of possession of a machine gun is affirmed.
As heretofore noted, the Firearms and Weapons Act (Code Ann. § 26-9915a) does provide that "... the burden of proof of any exception, excuse, proviso or exemption shall be upon the defendant." 3 This act does not provide whether this burden of proof is one of producing evidence or one of persuasion (and if one of persuasion...
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