concurring specially.
Concluding that Hall v. State, 268 Ga. 89 (485 SE2d 755) (1997) is factually distinguishable, the court today holds that OCGA § 16-5-60 (b) is not unconstitutional as applied in this case. While I agree that the reckless conduct statute is constitutional when evaluated in the context of Ms. Boyer’s challenge, I do not believe that Hall can be distinguished. As the author of the three-justice dissent in Hall, I adhere to my opinion that the legal analysis employed by the majority in that case was incorrect. Indeed, I respectfully submit that the circuitous attempt in the present case to distinguish Hall reveals that Hall was wrongly decided.
At the time of the ruling on their respective constitutional challenges, neither Ms. Hall nor Ms. Boyer had been tried. The only question presented for decision was the validity of each defendant’s pretrial challenge to the constitutionality of OCGA § 16-5-60 (b). The question presented to the trial court in both cases was whether the terms of the reckless conduct statute convey a sufficiently definite warning of the proscribed conduct when measured by common understanding, and whether those statutory terms also provide explicit standards to prevent arbitrary enforcement. Douglas v. State, 263 Ga. 748, 749 (2) (438 SE2d 361) (1994). In addressing such a pre-trial constitutional challenge, a court is “required to accept well-pleaded allegations of the indictment as the hypothesis for decision” and is, therefore, “bound by the well-pleaded allegations of the indictment. . . .” United States v. Nat. Dairy Products Corp., 372 U. S. 29, 33 (II), in. 2, 37 (IV) (83 SC 594, 9 LE2d 561) (1963).
Thus, this case can and should be resolved only on the basis of the allegations of criminal conduct contained in the indictment. Under those allegations, Ms. Boyer is charged with violating OCGA § 16-5-60 (b) by “roughly handling [the] victim.” Clearly, a person of common intelligence would recognize that an act of subjecting another to rough handling is encompassed within the statutory proscription on “reckless conduct.” See Horowitz v. State, 243 Ga. 441 (254 SE2d 828) (1979). Likewise, OCGA § 16-5-60 (b) is not unconstitutional simply because it permits an officer to make an assessment of what constitutes “rough handling” of the victim before arresting a person for “reckless conduct.” See State v. Miller, 260 Ga. 669, 673 (2) (398 SE2d 547) (1990). Therefore, the trial court erred in declaring that OCGA § 16-5-60 (b) was unconstitutional in this case.
A constitutional challenge to a criminal statute which is not *705based on alleged violations of the First Amendment must be examined in light of the facts of the case at hand. United States v. Mazurie, 419 U. S. 544, 550 (II) (95 SC 710, 42 LE2d 706) (1975). However, where, as here, and as in Hall, the constitutionality of such a criminal statute is raised in the context of a pre-trial attack, the only relevant facts of the case are the terms of the statute itself and the allegations of the indictment or accusation. United States v. Nat. Dairy Products Corp., supra. In this case, the Court perpetuates the erroneous premise of Hall that such a pre-trial constitutional challenge is to be decided on the basis of the evidence which the State intends to introduce at trial to prove the defendant’s guilt. The anomalous effect of the holding in Hall is to convert a defendant’s constitutional attack on a statute into a pre-trial motion for a directed verdict of acquittal. Hall was wrongly decided and should be overruled rather than followed. The order in this case should be reversed because Ms. Boyer failed to prove that the reckless conduct statute is unconstitutional as applied to the allegation that she violated that statute by rough handling the victim.
I am authorized to state that Justice Thompson joins in this special concurrence.