CITY OF ATLANTA v. McCARY, 245 Ga. 582 (1980)

266 S.E.2d 193

CITY OF ATLANTA v. McCARY.

36061.Supreme Court of Georgia.SUBMITTED MARCH 21, 1980.
DECIDED APRIL 8, 1980.

UNDERCOFLER, Chief Justice.

McCary was convicted of “idling and loitering for the purposes of prostitution” contrary to the City of Atlanta Code § 17-2004. The Superior Court of Fulton County, on certiorari, reversed, holding (1) that subsections (c), (d), and (e) of Atlanta Code § 17-2004 under which McCary was convicted, were unconstitutional for lack of due process and equal protection, and (2) the evidence did not justify a rational trier of fact in finding guilt beyond a reasonable doubt. See Jackson v. Virginia 443 U.S. 307
(99 S.C. 2781, 61 L.Ed.2d 560) (1979). An appeal does not lie to this court at the instance of the City of Atlanta in a criminal case, where the defendant has been found not guilty. This precludes our addressing the constitutional issues. But see Lambert v. City of Atlanta, 242 Ga. 645 (250 S.E.2d 456) (1978).[1]

Page 583

Appeal dismissed. All the Justices concur.

[1] Lambert was reversed on other grounds but see Ga. L. 1979, p. 131 (Code Ann. § 26-2023), “Nothing contained in Code Chapter 26-20, relating to sexual offenses, shall prevent any county or municipality from adopting ordinances which proscribe loitering, or related activities, in public for the purpose of procuring others to engage in any sexual acts for hire.” See als Akin v. Hardison, 245 Ga. 57 (1980).

SUBMITTED MARCH 21, 1980 — DECIDED APRIL 8, 1980.
Constitutionality of ordinance. Fulton Superior Court. Before Judge Eldridge.

Andrew J. Hairston, Paul L. Howard, Jr., for appellant.

Glenn Zell, for appellee.