CLARK v. THE STATE., 219 Ga. 680, 135 S.E.2.d 270 (1964)
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Andrew J. Ryan, Jr., Solicitor, R. E. Barker, contra.B. Clarence Mayfield, E. H. Gadsden, for plaintiff in error.
1. The Act (Ga. L. 1960, p. 142), on its face, denied neither due process nor equal protection, and it is therefore not violative of the Fourteenth Amendment of the Constitution of the United States as charged in the demurrer to the accusation. The court did not err in overruling the demurrer.
2. The unbroken line of decisions of this court holding that a brief of evidence must be expressly and unconditionally approved by the trial judge requires a ruling here that papers in this record which are not approved by the trial judge do not constitute a brief of evidence. Since a review of the judgments overruling the motion for new trial and motion to acquit would necessarily require consideration of the evidence, those judgments are affirmed.
This case involves the anti-trespass law (Ga. L. 1960, p. 142) as shown in Code Ann. 26-3005, making it a misdemeanor for any person who refuses to leave the premises of another, "when requested to do so by the owner or any person in charge of said premises, or the agent or employee of such owner or person in charge." A general demurrer was filed to the accusation on the grounds (1) it is unconstitutional on its face because it is so vague, indefinite and uncertain in that it fails to require the person making the demand to leave the premises to present documents or other evidence of possessory right sufficient to apprise defendants of the validity of the demand to leave so as to violate their rights to due process of law under the Fourteenth Amendment of the Constitution; and (2) it is unconstitutionally applied to the defendant in that it makes it a crime to be on the property open to the public after being asked to leave "because of race or color, in violation of defendants rights under the due process and equal protection clauses of the Fourteenth Amendment to the Constitution of the United States." The demurrer was overruled, and after the presentation of evidence the defendant moved for an acquittal, which was overruled. Thereafter, the defendant was found guilty and sentenced. A motion for new trial was duly filed, heard and overruled. The plaintiff in error assigns error on the judgments and rulings complained of as being contrary to law and to the evidence.
1. The demurrer attacks the statute (Ga. L. 1960, p. 142; Code Ama. 26-3005) upon the grounds that it denies the equal protection and due process guaranteed by the Fourteenth Amendment (Code 1-815). This case is a striking illustration of the one-sided appeals constantly made to this Amendment. The heart of the Amendment--everything it seeks to protect--is found in its provision that there must be equal protection of the law and there must be no deprivation of "life, liberty or property" without due process of law. It places them all upon precisely the same level of inviolability. No judge can, with good conscience, give to either "Life" or "Liberty" or "Property" a priority or preferential protection over the other two. Indeed, any judge can harmonize all apparent conflicts in these rights by limiting each to the exact point where to extend it would invade the other. To illustrate, life can be forfeited by its criminal use in a manner that the law provides for its forfeiture because of the inhibited criminal act. Liberty stops where to extend it invades the liberty of another. Property is protected against unauthorized uses of life or liberty. Not only do all judges know that the actual value of property is in its use or sale in harmony with law, Harris v. Duncan,
Rules of pleading and practice adopted by this State have never been challenged by the Supreme Court when they were considered constitutional. We think they are the best, but those who differ with us will not violate them simply because they prefer others. It follows that the court did not err in overruling the demurrer.
This ruling accords with The Civil Rights Cases, 109 U. S. 3 (3 SC 18, 27 LE 835). So long as America thus preserves private property, which includes its possession, use and alienation, Communism can never rule this Nation, as private property is an insuperable barrier to the establishment of Communism. We trust that the Judiciary will always refuse to open the gate to Communism and will obey the constitutional command to protect private property.
2. The only other question sought to be raised is the sufficiency of the evidence. We are not happy with the condition of this record. But the attorneys display either a lack of knowledge of the law governing such records or a disrespect therefor. The unvarying rule--as old as this court, and constantly stated in our decisions--is that a brief of evidence must be approved by the trial judge. Massey v. Pitts, Cook & Company,
The judge approved the bill of exceptions on September 27, 1963, which recited that a "tendered brief of the evidence" was a record necessary to decide the questions raised. Then on October 7, 1963, after he had lost jurisdiction by his certification, he entered upon papers purporting to be the evidence the statement that it was tendered on that date. Jones v. State,
For the reasons stated, all of the judgments and rulings complained of in the bill of exceptions must be affirmed.
Judgment affirmed. All the Justices concur.
1964
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