State v. Davis

• Decision Date: 02 December 1980
• Docket Number: No. 36751,36751
• Parties: STATE of Georgia v. DAVIS.
• Court: Georgia Supreme Court

Page 721

272 S.E.2d 721

246 Ga. 761

STATE of Georgia v. DAVIS.

No. 36751.

Supreme Court of Georgia.

Argued Oct. 15, 1980.

Decided Dec. 2, 1980.

Lewis R. Slaton, Dist. Atty., Wallace Speed, Joseph J. Drolet, Asst. Dist. Attys., for appellant.

Robert Coker, Atlanta, for appellee.

J. Melvin England, Atlanta, amicus curiae.

BOWLES, Justice.

Defendant Davies was indicted for criminal solicitation under Code Ann. § 26-1007. ¹ Upon motion of the defendant, the trial court dismissed the indictment finding the statute unconstitutionally vague in its description of prohibited activity and unconstitutionally overbroad in that it embraced speech protected under the First Amendment as well as speech which may properly be punished.

Code Ann. § 26-1007 states, in pertinent part: "A person commits criminal solicitation when, with intent that another person engage in conduct constituting a felony he solicits, requests, commands, importunes or otherwise attempts to cause such other person to engage in such conduct." This is the first time this court has been called upon to interpret this statute since its enactment in 1978. We are dealing here with the allegation of facial unconstitutionality.

1. We begin with the proposition that a solemn act of the legislature is presumed to be constitutional. See Buice v. Dixon, 223 Ga. 645, 157 S.E.2d 481 (1967). It is the duty of our legislators to support the Constitution of the United States just as it is our duty. In enacting this statute, we can presume that the legislature intended to enact a constitutional law and not one which violates the proscriptions of the First Amendment. "(A)ll statutes are presumed to be enacted by the legislature with full knowledge of the existing condition of the law and with reference to it; ... they are to be construed in connection and in harmony with the existing law; and ... their meaning and effect will be determined in connection, not only with the common law and the Constitution, but also with reference to other statutes and the decisions of the courts." Buice v. Dixon, supra, at 647, 157 S.E.2d 481.

All speech is not ultimately protected under the First Amendment. Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72, 62 S.Ct. 766, 768-69, 86 L.Ed. 1031 (1942); City of Macon v. Smith, 244 Ga. 157, 259 S.E.2d 90 (1979). However, even speech which advocates law violation is protected "except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S.Ct. 1827, 1829, 23 L.Ed.2d 430 (1969). The test is generally known as the "clear and present danger" test. "The question in every case is whether the words used are used in such circumstances and of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470 (1919).

It is clear that the commission of a felony is a substantive evil which our legislature has a right to prevent. We construe Code Ann. § 26-1007 as prohibiting only such language as creates a clear and present danger of a felony being committed and is therefore not overbroad as encompassing protected speech.

2. The only language in Code Ann. § 26-1007 which could conceivably be described as vague is that language which states; "or otherwise attempts to cause such other person to engage in such conduct." The words "solicits, requests, commands" and "importunes" are all clearly understandable so that any person seeking to avoid violation of the law could do so.

"To withstand constitutional attack, a statute or ordinance which prohibits speech 'must be carefully drawn or be authoritatively construed to punish only unprotected speech and not be susceptible of application to protected expression.' Gooding v. Wilson, 405 U.S. 518, 522, 92 S.Ct. 1103, (1106), 31 L.Ed.2d 408 (1972)." City of Macon v. Smith, supra, 244 Ga. at 158, 259 S.E.2d 90. Absent a narrowing construction, this relatively broad language ("or otherwise attempts to cause") might be susceptible of constitutional attack. However, we...