Record and brief — McCord v. Georgia

uomNad

WMice - Supreme Court, Us.

FILED

MAR 4 1982

ALEXANDER L. STEVAS,

ERK

81-1654

NO.

IN THE

Supreme Court of the United States

October Term

ALBERT C. MCCORD

Petitioner,

versus

STATE OF GEORGIA

Respondent.

ON WRIT OF CERTIORARI FROM

THE SUPREME COURT OF GEORGIA

PETITION FOR WRIT OF CERTIORARI

William C. Tinsley, Il

P.O. Box 776

Douglasville, Georgia 30133

(404) 942-0900

TYPOGRAPHY AND PRINTING BY FRANKLIN'S COPY SERVICE, INC. ATLANTA GEORGIA

TABLE OF CONTENTS

Page

Bee Ce PE ccc csccecccssseceecscce ii

QUESTION PRESENTED ......0csccccccccdeccees 1

tT PE a wawecdacde's coasdedesesensedeen 2

STATEMENT OF THE GROUNDS UPON

WHICH JURISDICTION IS INVOKED ............ 2

CONSTITUTIONAL AND STATUTORY

PRO ViIBGOEe INVOLVED on. cc cccsccwescvccescces 2

STA Veeees Ge Bees CARE... cc cccccccvccccces 3

REASONS FOR GRANTING THE WRIT .......... 4

ds ba cnnnendesssccesésbadncecsess 7

APPENDIX A:

Opinion of the Supreme Court of Georgia....... 10

TABLE OF AUTHORITIES

Cases Page

Constitutional Provisions:

Fifth Amendment to the U.S. Constitution ........... 2

Fourteenth Amendment to the

See Es. Cb 6-560 6.60 045088 60b00660666605 2

Cases:

Gooding vs. Wilson,

405 U.S. 529, 92 S. Ct. 1103

EE bs sb. h6n.0 6066000 0keacnesess 6

Herndon vs. Lowery,

301 U.S. 242, 57 S. Ct.

, Se SS Me |) ee reerr or er ery es 6

Jellum vs Cupp,

ee PUTED SG cccdccccdsosccccecacsrces 4

Rose vs. Locke,

423 U.S. 48, 46 L.Ed. 2d 185,

Se es PP PIS Gb i cb ccccccccsccecabecesicn 4

Scarborough vs. ‘State,

231 Ga. 7, 200 S.E.2d

DUP ED GUE606666606566006650006000068008086 5

Statutes-Federal:

ee Pa UME B62 A5 6006605 cba ssecbeediscecercn 2

Statutes-State:

Ga. Criminal Code Chapter 26-20 ................. 5, 6

Ga. Code Ann. §26-2019 ................ cece eens 3, 5

NO.

Supreme Cowt of the United States

OCTOBER TERM

ALBERT C. MCCORD

Petitioner

versus

STATE OF GEORGIA

Respondent

ON WRIT OF CERTIORARI FROM

THE SUPREME COURT OF GEORGIA

PETITION FOR WRIT OF CERTIORARI

QUESTION PRESENTED

The words ‘‘any immoral or indecent act’’ in the Georgia

Child Molestation Statute (Ga. Code Ann. §26-2019) are so

vague and overbroad that they violate the Due Process of

Law guaranteed by the Fifth and Fourteenth Amendment

to the Constitution of the United States.

OPINION BELOW

The Supreme Court of Georgia issued an opinion in this

case, a copy of which appears in Appendix A to this Peti-

tion at page 10.

STATEMENT OF GROUNDS UPON WHICH

JURISDICTION IS INVOKED

The judgment of the Supreme Court of the State of

Georgia was entered on January 7, 1982. The jurisdiction

of the Supreme Court is invoked under 28 U.S.C. §1254(2).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case involves the first section of the Fourteenth

Amendment to the Constitution of the United States, which

provides as follows:

**All persons born or naturalized in the United States and

subject to the jurisdiction thereof, are citizens of the United

States and of the State wherein they reside. No State shall

make or enforce any law which shall abridge the privileges

or immunities of citizens of the United States; nor shall any

State deprive any person of life, liberty, or property, without

due process of law; nor deny to any person within its jurisdic-

tion the equal protection of the laws.’’

This case also involves the Fifth Amendment which pro-

vides as follows:

**No person shall be held to answer for a capital or other-

wise infamous crime, unless on a presentment or indictment

of a Grand Jury, except in cases arising in the land or naval

forces, or in the Militia, when in actual services in time of

War or public danger; nor shall any person be subject for

the same offence to be twice put in jeopardy of life or limb;

nor shall be compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty, or property

without due process of law; nor shall private property be

taken for public use, without just compensation.”’

This case also involves Georgia Laws 1968, pp. 1249, 1302

(Ga. Code Ann. §26-2019) which provides as follows:

‘*A person commits child molestation when he does any

immoral or indecent act to or in the presence of or with any

child under the age of 14 years with the intent to arouse or

satisfy the sexual desires of either the child or the person.”’

STATEMENT OF THE CASE

The Petitioner was indicted for violation of Georgia Laws

1968, pp. 1249, 1302 (Ga. Code Ann. §26-20:9) otherwise

known as child raolestation and convicted by a jury on

February 17, 1981. Prior to trial, the Petitioner filed a Mo-

tion to Quash the indictment (R-5) on the grounds that Code

Section 26-2019 was so vague, indefinite and overbroad so

as to violate the Due Process and Equal Protection Clauses

of the Constitution of the State of Georgia and the Federal

Constitution as set forth in the Sth and 14th Amendment to

the Constitution. The Trial Court heard argument and rul-

ed that the Statute was constitutional. (R-12). At the trial

of the case there was a conflict in testimony between the Peti-

tioner and the victim as to the alleged act. The only evidence

of the crime was testimony by the victim was as follows:

A. “*He stuck his thing between my thing in the middle of

my legs.””

Q. “What else-did anything come out of his thing?’’

A. ‘‘Something white.’’

Q. ‘*What did you do when the white stuff came out?’’

A. ‘He wiped it off’’ (T-57)

REASONS FOR GRANTING THE WRIT

The Petitioner is not aware of any decision by a State or

Federal Appeals Court as to the exact question presented in

the Application.

The present case is unlike Rose v. Locke, 423 U.S. 48, 46

L.Ed. 2d 185, 96 S.Ct. 243 which dealt with an attack on

the constitutionality of a Tennessee Statute proscribing

‘crimes against nature.’’ In that case, the Court held that

**anyone who cared to do so could certainly determine what

particular acts have been considered crimes against

nature .. .”” 462 L.Ed. 2d at 188. Rather the present case

is more in line with the reasoning of the Ninth Circuit Court

of Appeals in the case of Jellum v. Cupp 475 F. 2d 829 (1973)

which considered the meaning of the phrase ‘‘urnnatural con-

duct contrary to the course of nature’’. As the Ninth Circuit

Court said:

**There is simply no commonly accepted, definite mean-

ing of the phrase ‘unnatural conduct contrary to the course

of nature’. Accordingly, we must conclude that the statute,

as construed in Anthony, supplies a jury (or a judge sitting

without a jury) no legally fixed standards under which to

determine guilt. Further, we note that the statute does not

supply any standard or basis for a trial judge to apply in sub-

mitting one case to a jury or refusing to submit another for

jury consideration. This same looseness in the statutory

language would allow a state prosecutor to use the statute

selectively to rid the community of persons subjectively deem-

ed guilty of committing ‘abnormal’ or ‘unnatural’ acts.

As the trial judge state in his well-reasoned opinoin: ‘The

varieties of human sexual behavior are encyclopedic. A begin-

ning inventory, from arson to zooerasty, can be found in

R. von Kraft-Ebing, Psychopathia Sexualis. If a stuatue

allows the district attorney to pick through this catalog and

make a felony of any sex-related act that offends his con-

cept of ‘‘normal’’ behavior, the statute is, of course

unconstitutional.’’’

In like manner, the Georgia law has the same looseness

in the statutory language. What is an ‘‘indecent or immoral

act”’ as outlined in Ga. Code Ann. §26-2019? Under Chapter

26-20 of the Criminal Code, the offenses of rape, sodomy,

bestiality, seduction, incest, adultery, fornication, public in-

decency, prositution, statutory rape, masturbation for hire

and necrophilia have set definite guidelines as to the pro-

hibited conduct. In each of these, the conduct prohibited

refers to either sexual intercourse or an act involving stimula-

tion of the sexual organs of another. If the legislature had

meant to limit the prohibited conduct in this section, it would

have done so as in the other sections of the chapter. None

of the other sections in the chapter define either immoral or

indecent acts as being the type of conduct contained in that

particular section. Therefore even if the sections are to be

construed together there is no clear definition of the pro-

hibited conduct.

- Furthermore the Georgia Supreme Court in its opinion said

that the term “‘indecent act’’ had withstood prior assault in

the case of Scarborough v. State 231 Ga. 7 200 S.E. 2d

115(1973), yet this was a public drunk case in which the Court

held that ‘‘the question comes down to whether the Defen-

dant’s condition was such as to offend the public decency

in this case.’’ The Georgia Supreme Court used the Revised

Fourth Edition of Black’s Law Dictionary for its definition

which defines indecent as ‘‘Offensive to common propriety;

offending against modesty or delicacy; grossly indecorous;

unfit to be seen or heard; unbecoming.’’ P. 909.

This definition of ‘‘indecent act’’ and Black’s Law Dic-

tionary definition of ‘‘immoral’’ emphasize the looseness in

the statutory language which would allow a prosecutor or

a judge to selectively enforce the law, rather than follow the

set guidelines as contained in the other sections of Chapter

20 of the Georgia Criminal Law.

The Petitioner contends that contrary to the State Supreme

Court opinion, the statute is not definite and certain in its

meaning so that ‘‘men of common intelligence would not dif-

fer as to the application of its provision.’’ Especially in light

of the circumstantial evidence of the case contained in the

testimony of the victim, the ambiguity and vagueness of the

Statute is clearly seen.

Not only is this statute vague, but it is also overbroad in

its applicaiton with the potential to prohibit consitutionally

protected conduct. What the community may define as an

*‘immoral act’? may be protected speech under the First

Amendment. Since the statute is overbroad on its face, it

would ‘“‘license the jury to create its own standard ia each

case.’’ Gooding v. Wilson, 405 U.S. 529, 92, S.Ct. 1103

(1972) citing Herndon v. Lowery 301 U.S. 242, 263 57 S.Ct.

732, 741 81 L.Ed. 1066 (1937).

CONCLUSION

Wherefore, Petitioner prays that a Writ of Certiorari issue

from this Honorable Court to review the judgment of the

Supreme Court of Georgia in McCord vs. State of Georgia.

In the event the petition is granted, Petitioner prays that the

judgment of the Court below be reversed.

RESPECTFULLY SUBMITTED

TINSLEY & EMERSON

BY:

WILLIAM C. TINSLEY, Ii

P.O. Box 776

Douglasville, Georgia 30133

942-0900

CERTIFICATE OF SERVICE

I, WILLIAM C. TINSLEY, II, counsel for Petitioner, do

hereby certify that I have this date served a copy of the

foregoing Petition for Certiorari upon Mr. W.A. Foster,

District Attorney, Douglas County Courthouse, Douglasville,

Georgia 30134 and Michael J. Bowers, Attorney General,

132 Judicial Building, 2 Capitol Square, AtJanta, Georgia

30334 by depositing the same in the United States Mail with

adequate postage thereon.

This day of March, 1982.

WILLIAM C. TINSLEY, Ii

ATTORNEY FOR PETITIONER

10

IN THE SUPREME COURT OF GEORGIA

DECIDED: January 7, 1982

38042. ALBERT C. MCCORD V. THE STATE

WELTNER, Justice

Albert C. McCord was convicted by a jury of the offense

of child molestation and sentenced to the penitentiary. He

appeals to this Court, challenging the constitutionality of

Code Ann. §26-2019, and setting forth other enumerations

of error.

The statue in question provides: ‘‘A person commits child

molestation when he does any immoral or indecent act to

or in the presence of or with any child under the age of 14

years with the intent to arouse or satisfy the sexual desires

of either the child or the person.’’ Ga. L. 1968, pp. 1249,

1302; Code Ann. §26-2019. McCord contends that the term

*‘any immoral or indecent act’’ is so vague and indefinite

that it fails to give to a person of ordinary intelligence fair

notice of forbidden conduct.

We disagree. “‘It is a general principle of statutory law that

a statute must be definite and certain in its provisions to be

valid, and when it is so vague and indefinite that men of com-

mon intelligence must necessarily guess at its meaning and

differ as to ist application, it violates the first essential of

due process of law. Hayes v. State, 11 Ga. App. 371 (75 SE

523) [1912].’’ City of Atlanta v. Southern Railway co., 213

Ga. 736, 738 (101 SE2d 707) (1958). The inclusion in a

criminal statute of the term ‘‘indecent condition or act’’ has

withstood prior assault. Scarborough v. State, 231 Ga. 7 (200

SE2d 115) (1973). The phrase ‘‘any immoral or indecent act’’

in conjunction with the requisite element of the offense that

the act be committed ‘‘with the intent to arouse or satisfy

the sexual desires of either the child or the person’’ is suffi-

ciently definite. ‘“We find [the statute] to be definite and cer-

tain in its meaning. Men of common intelligence would not

differ as to the application of its provisions.’’ Anderson v.

Little & Davenport Funeral Home, Inc., 242 Ga. 751, 753

(251 SE2d 250) (1978).

McCord next contends that the State failed to prove venue

and failed to prove that the offense was committed within

four years of the return of the indictment. Venue may be

proved by circumstantial evidence. Loftin v. State, 230 Ga.

92, 94 (195 SE2d 402) (1973). From the testimony that

McCord’s barn was in Douglas County, and that the acts

complained of took place there, the jury reasonably could

infer venue in Douglas County. Similarly, while the evidence

does not contain a precise or an approximate date of the

event, it showed that McCord’s barn was built in 1977, which

is of necessity within four years of the return of the indict-

ment on November 18, 1980. These enumerations are without

merit.

Finally, McCord contends that the trial court erred in refus-

ing to give his requested charge that simple battery is a lesser

included offense of child molestation.

The case of State v. Stonaker, 236 Ga. 1 (222 SE2d 354),

cert. denied, 429 U.S. 833 (1976), while principally known

for other precepts, arose upon a conviction of child molesta-

tion. The court of Appeals, in Division 3, found that the

failure of the trial court to charge simple battery as a lesser

included offense was error. Stonaker v. State, 134 Ga. App.

123 (213 SE2d 506) (1975). On certiorari, we held: ‘‘Under

the facts of this case we hold that simple battery as defined

in Chap. 26-13 of the Criminal Code of Georgia is not a lesser

included crime included in the crime of child molestation as

12

defined in Chapter 26-20 (Sexual Offenses) of the Criminal

Code of Georgia.’’ Stonaker, supra, 236 Ga. at 2. The facts

of Stonaker as set out in the Court of Appeals opinion are

indistinguishable from those before us. This enumeration also

is without merit.

Judgment affirmed. All the Justices concur.