Wilson v. State

Decision Date14 July 1967
Docket NumberNo. 24113,24113
Citation156 S.E.2d 446,223 Ga. 531
PartiesJohnny C. WILSON v. The STATE.
CourtGeorgia Supreme Court

Syllabus by the Court

1. The language of Code Ann. § 26-6303 which the defendant was charged with violating conveys a definite meaning as to the conduct forbidden, when measured by common understanding and practice, and satisfies the due process requirements of the State and Federal Constitutions.

2. The words which the indictment charges that the defendant used were opprobrious and abusive within themselves and it was not necessary to allege in the indictment in what manner they were opprobrious and abusive. Nor was it necessary to allege in the indictment in what manner the words used tended to cause a breach of the peace.

3. The offense of assault and battery is an entirely separate and distinct offense from that of using opprobrious words and abusive language.

4. The evidence was sufficient to support the verdict.

5. It was not a material variance in the allegation and the proof that the indictment charged offenses committed on T. L. Raborn and the evidence showed the commission of these offenses on T. L. Raburn.

6. It was not error to charge on malicious mischief where the jury was limited in the consideration of this offense to the determination of the question of whether the arrest of the defendant without a warrant was legal.

7. It was not error to permit the prosecuting attorney to read from an opinion of the United States Supreme Court to the court in the presence of the jury. Nix v. State, 149 Ga. 304, 100 S.E. 197; Beam v. State, 208 Ga. 497(3), 67 S.E.2d 573; Ayers v. State, 215 Ga. 325(4), 110 S.E.2d 669. Nor can we say that there is any merit in the defendant's contention that he was denied due process of law because the prosecuting attorney 'failed in his opening statement to give the defendant notice of what he is proceeding on,' where the record does not include the opening statement.

Howard Moore, Jr., Atlanta, for appellant.

Lewis R. Slaton, Sol. Gen., J. Robert Sparks, J., Walter LeCraw, Atlanta, for appellee.

MOBLEY, Justice.

Johnny C. Wilson was indicted and convicted on two counts of assault and battery and two counts of using opprobrious words and abusive language. He appeals from the denial of his motion for new trial, as amended, and of his motion in arrest of judgment, enumerating five assignments of error.

1. The first assignment of error is the overruling of the general demurrer to Counts 3 and 4 of the indictment, on the ground that Code Ann. § 26-6303, upon which they are founded, 'fails to give defendant adequate notice of the utterances which fall within its ambit and fails to set forth ascertainable standard of guilt,' in violation of the First and Fourteenth Amendments of the Constitution of the United States (Code §§ 1-801, 1-815) and Art. I, Sec. I, Par. III of the Constitution of the State of Georgia (Code Ann. § 2-103).

The defendant was charged with violating the following portion of Code § 26-6303, as amended: 'Any person who shall, without provocation, use to or of another, and in his presence, * * * opprobrious words or abusive language, tending to cause a breach of the peace, * * * shall be guilty of a misdemeanor.' '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.' Jones v. State, 219 Ga. 848, 850, 136 S.E.2d 358; 361; Fowler v. State, 189 Ga. 733(1), 8 S.E.2d 77; Millhollan v. State, 221 Ga. 165, 143 S.E.2d 730; United States v. Petrillo, 332 U.S. 1, 67 S.Ct. 1538, 91 L.Ed. 1877; Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498. The language of Code Ann. § 26-6303 which the defendant was charged with violating conveys a definite meaning as to the conduct forbidden, measured by common understanding and practice. While it is a matter for jury determination in each case whether under all the facts and circumstances the words used were of such character that their use was calculated to cause a breach of the peace, as well as to determine whether there was provocation sufficient to excuse their use (Fish v. State, 124 Ga. 416, 52 S.E. 737), this does not make the statute to vague, indefinite, and uncertain as to render it unconstitutional. Berta v. State, 223 Ga. 267, 271, 154 S.E.2d 594.

The statute is not unconstitutional on the ground stated in the demurrer.

2. The second and third assignments of error complain of the overruling of the defendant's general and special demurrers to the indictment. Count 3 of the indictment alleged that the accused 'did without provocation use to and of M. G. Redding and in his presence, the following abusive language and opprobrious words, tending to cause a breach of the peace: 'White son of a bitch, I'll kill you.' 'You son of a bitch, I'll choke you to death. " Count 4 alleged that the defendant 'did without provocation use to and of T. L. Raborn, and in his presence, the following abusive language and opprobrious words, tending to cause a breach of the peace: 'You son of a bitch, if you ever put your hands on me again, I'll cut you all to pieces."

The general demurrers assert that these allegations are insufficient to state an offense under the Laws of Georgia because it is not alleged that the words spoken were taken or understood in other than their ordinary sense, or that they were intended to be otherwise construed. The special demurrers assert that the allegations that the defendant used 'abusive language and opprobrious words, tending to cause a breach of the peace,' are mere conclusions of the pleader without facts being alleged to show in what manner the words are abusive or opprobrious or in what manner they tended to cause a breach of the peace, so as to enable the defendant to prepare his defense.

The words charged were within themselves opprobrious and abusive (Shields v. State, 89 Ga. 549, 16 S.E....

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16 cases
  • Gooding v. Wilson 8212 26
    • United States
    • U.S. Supreme Court
    • 23 Marzo 1972
    ...because vague and overbroad. The Georgia Supreme Court rejected that contention and sustained the conviction. Wilson v. State, 223 Ga. 531, 156 S.E.2d 446 (1967). Appellee then sought federal haveas corpus relief in the District Court for the Northern District of Georgia. The District Court......
  • McGuire v. State
    • United States
    • Indiana Appellate Court
    • 27 Agosto 2019
    ...to a police officer, " ‘White son of a bitch, I'll kill you’ and ‘you son of a bitch, I'll choke you to death.’ " Wilson v. State , 223 Ga. 531, 156 S.E.2d 446, 534 (Ga. 1967), reh'g denied, cert. denied . In addition, Wilson stated, " ‘You son of a bitch, if you ever put your hands on me a......
  • Wilson v. Gooding
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 19 Agosto 1970
    ...of females on passenger cars, street cars, or other places of like character, shall be guilty of a misdemeanor." 3 Wilson v. State, 223 Ga. 531, 156 S.E.2d 446 (1967). 4 The district court's order called for briefs to be submitted on the constitutional issue, and at this point the State of ......
  • State v. Klinakis
    • United States
    • Georgia Court of Appeals
    • 29 Octubre 1992
    ...to a violent reaction under the circumstances of the case.' " Lamar, supra [206 Ga.App. 323] at 719 (III). Compare Wilson v. State, 223 Ga. 531, 533(1), 156 S.E.2d 446 (legislative history found in Gooding, supra) (it is a matter for jury determination whether under the circumstances the wo......
  • Request a trial to view additional results
1 books & journal articles
  • THOSE ARE FIGHTING WORDS, AREN'T THEY? ON ADDING INJURY TO INSULT.
    • United States
    • Case Western Reserve Law Review Vol. 71 No. 1, September 2020
    • 22 Septiembre 2020
    ...and accompanying text (discussing Gooding and Lewis). (176.) Gooding v. Wilson, 405 U.S. 518, 519 n.1 (1972) (quoting Wilson v. State, 156 S.E.2d 446, 449-50 (Ga. (177.) Id. at 518. (178.) Id. at 534 (Blackmun, J., dissenting). (179.) Id. (180.) Id. at 522 (majority opinion). (181.) Id. at ......

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