Wilson v. State, 35587
| Decision Date | 08 January 1980 |
| Docket Number | No. 35587,35587 |
| Citation | 245 Ga. 49,262 S.E.2d 810 |
| Parties | WILSON v. The STATE. |
| Court | Georgia Supreme Court |
Garland T. Byrd, Butler, for appellant.
Johnnie L. Caldwell, Jr., Dist. Atty., Arthur K. Bolton, Atty. Gen., Harrison Kohler, Asst. Atty. Gen., for appellee.
The Grand Jury of Upson County, Georgia indicted appellant for the offenses of homicide by motor vehicle in the first degree, violation of Georgia Controlled Substances Act, four counts of failure to stop for stop sign, driving on the left half of a roadway and speeding. Defendant entered pleas of not guilty to each of these charges, but upon trial a jury convicted him of each separate charge. Following sentencing, he appeals to this court.
Appellant Mark Cameron Wilson had for a period of time been dating one Tonya Brown, who was the homicide victim. On January 5, 1979, he came to the home of deceased in order to pick her up for a date. The evidence revealed that appellant was on his way to Atlanta to obtain marijuana. Upon leaving the Brown residence to go to Atlanta, he rode around for a time in Upson County, Georgia, accompanied by the deceased and her cousin, Sherry Barfield. Miss Barfield had been asked by the deceased to ride with her in an effort to dissuade appellant from going to Atlanta. Appellant and the deceased left Miss Barfield at her residence about 8:30 P.M. Approximately three hours later appellant and the deceased were seen on U. S. Highway 19-41 in Spalding County, Georgia, by appellant's friends Cindy O'Neal and Ricky White. At that time appellant was driving his automobile. Following conversation on the roadside, appellant was seen to get back in his car on the driver's side and leave in the direction of Thomaston, Georgia. A short while later this same vehicle was travelling on Victor Road in Upson County when a deputy sheriff's unit, responding to a call in the area, met appellant's white sports car when it came over a hill and forced the deputy's unit off the road. At the time, appellant's car was on the wrong side of the road and traveling at an excessive rate of speed. While the deputy could not identify who was driving he did determine that there were two individuals in the car. He immediately turned, gave chase, and alerted other officers in the area. He kept appellant's car in sight during the chase and testified that the vehicle ran four stop signs while traveling continuously on the wrong side of the road and maintaining speeds in excess of 80 miles per hour. On several occasions appellant's car went airborne due to the high rate of speed and the dips in the road. The deputy, upon approaching a hill, noticed what appeared to be lights flashing in the trees. When he topped the hill he saw appellant's vehicle had run into an embankment and begun flipping from side to side on the wrong side of the road. During one of the revolutions a body was seen to be thrown from this automobile and came to rest some 72 feet below the place where the vehicle finally stopped. The deputy, upon approaching the wrecked vehicle, found appellant sitting beside his automobile. Appellant at that point told the deputy that he and his girlfriend had had an argument and that was why he had tried to outrun him. The body some distance away was identified as Tonya Brown and she subsequently died from massive internal injuries suffered in the wreck. Three bags of marijuana were found in close proximity to the vehicle. Evidence was introduced that the marijuana was contained in cellophane packages, lying within a circle where other debris of the automobile had been strewn and did not appear to have been in the area for any extended period of time based on the condition of the packaging. Evidence showed further that no other person had been in the vicinity of the automobile at the time the marijuana was found. A reconstruction expert, after laying a proper foundation, testified that in his opinion appellant had been driving the vehicle at the time of the wreck.
(1) The substantive part of the homicide indictment follows: "In the name and behalf of the citizens of Georgia, charge and accuse Mark C. Wilson with the offense of homicide by motor vehicle in the first degree for that the said accused in the county aforesaid on the 6th day of January, 1979, did then and there, unlawfully and with force and arms without malice aforethought cause the death of one Tonya Brown, a human being, through the violation of Title 68A-901, to-wit: reckless driving, contrary to the laws of said state, the good order, peace and dignity thereof." To this indictment defendant filed a general demurrer contending that Code § 68A-901 is unconstitutional for vagueness, indefiniteness and incapability of being construed in that it lacks any standards by which the reckless driving statute is to be determined. The trial court overruled the demurrer. Appellant assigns error on that ruling, and the subsequent conviction under that indictment.
Appellant argues that Hayes v. State, 11 Ga.App. 371, 75 S.E. 523 (1912) demands a finding in his favor. The substantive holding of that case follows:
"(2) A penal law which is of doubtful construction and in which the act denominated as a crime is described in terms so general and indefinite as to make the question of criminality dependent upon the idiosyncrasies of the men who may happen to constitute the court and jury, and is of such a nature that honest and intelligent men are unable to ascertain what particular act it seeks to condemn, is incapable of enforcement and will be held to be null and void."
With that, the Court of Appeals held that an Act of the legislature (Ga.L.1910, p. 92) regulating and making penal the operation of an automobile on one of the highways of this state "at a rate of speed greater than is reasonable and proper, having regard to the traffic and use of such highway, or so as to endanger the life or limb of any person, or safety of any property", is too uncertain and indefinite in its terms to be capable of enforcement. The decision goes on to hold: "(4) A city ordinance which undertakes to make punishable the operation of an automobile upon one of the streets of the city 'in a careless or reckless manner' is null and void, because it fails to sufficiently define the prohibited act."
Although Hayes, supra, has not been specifically overruled, it has been severely criticized, and apparently distinguished in Ray v. State, 47 Ga.App. 22, 169 S.E. 538 (1933), where Judge Guerry wrote: Ray, supra, went on to hold valid a statute regarding the duty of the operator of an automobile (Ga.L.1927, p. 237): "(O)vertaking and desiring to pass a vehicle shall blow his horn, and the operator of the vehicle so overtaken shall promptly upon such signal, turn his vehicle as far as reasonably possible to the right in order to allow free passage on the left side of his vehicle."
Although the operation of automobiles and...
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