Shirley v. State
Shirley v. State
Opinion of the Court
Defendant was tried by a jury and convicted of the offenses of hunting at night (OCGA § 27-3-2), hunting upon a public road (OCGA § 27-3-10), and hunting from a motor vehicle (OCGA § 27-3-13).
In connection with the offenses charged, the trial court instructed the jury on the definition of “hunting” as it is defined in OCGA §27-1-2 (39), which reads as follows: “ ‘Hunting’ means pursuing, shooting, killing, taking, or capturing wildlife. This term also includes all lesser acts such as disturbing, harrying, or worrying or placing, setting, drawing, or using any device used to take wildlife, whether any such act results in taking or not, and includes every act of assistance to any person in taking or attempting to take such wildlife.”
The defendant filed no motions but he objected to the charge taken from OCGA § 27-1-2 (39), supra, urging that the definition of “hunting” was vague, overbroad, and placed an unreasonable restraint on lawful conduct. On appeal he adds constitutional challenges to the three substantive Code sections cited above and contends that the term “hunting” is so vaguely defined in those Code sections that a person of ordinary intelligence cannot understand what conduct is or is not prohibited.
There having been no constitutional challenge directed to the substantive Code sections in the trial court, these issues cannot be raised for the first time on appeal. Arp v. State, 249 Ga. 403 (1) (291 SE2d 495) (1982). However, defendant’s objections to the charge of the court remain to be considered.
Defendant urges that the word “pursue” would make criminal the act of a photographer in following wildlife for the purpose of photographing it. The word “pursue” may mean “chase” or “follow,” Funk & Wagnalls Standard Dictionary (1980). On the other hand, the word “pursue,” in the context in which it is used here, may mean: to seek or search for wildlife, for the purpose of shooting or capturing such wildlife. See Funk & Wagnalls, supra, “hunt.” We find that this latter meaning was the one intended by the General Assembly. OCGA § 1-3-1 (a).
Defendant also urges that the words “disturbing, harrying, or worrying” render the definition of hunting overbroad, and thereby inclusive of innocent conduct, because many people who are not hunting wildlife nevertheless may disturb, harry or worry them. However,
Defendant’s objection that the trial court’s instruction to the jury defining “hunting” was vague and overbroad and therefore erroneous is valid and he is entitled to a new trial.
Judgment reversed.
A rational trier of fact could have found the defendant guilty of the three offenses charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
Dissenting Opinion
dissenting.
I disagree that the statutory words (including “pursuing,” “disturbing,” “worrying”) can be interpreted in any context other than that of hunting itself, which is the capturing or killing of game, or attempts to do so. Interpreting the statute in an ordinary manner, it is neither vague nor overbroad.
I am authorized to state that Presiding Justice Marshall and Justice Bell join in this dissent.
Reference
- Full Case Name
- Shirley v. the State
- Cited By
- 12 cases
- Status
- Published