Bolin v. State

• Decision Date: 20 June 1957
• Docket Number: 6 Div. 288
• Parties: Henry H. BOLIN v. STATE of Alabama.
• Court: Alabama Supreme Court

Page 582

96 So.2d 582

266 Ala. 256

Henry H. BOLIN v. STATE of Alabama.

6 Div. 288.

Supreme Court of Alabama.

June 20, 1957.

To The Supreme Court of Alabama:

There is pending in this court an appeal as above styled.

This appellant was tried upon an indictment containing two counts.

Count 1 charged that he did possess, or place, or deposit a stink bomb, or a substitute therefor, etc.

Count 2 charged that the appellant 'did have in his possession for the purpose of making, producing or manufacturing a stink bomb, or a substitute or device therefor, towit, three fourths of a liquid ounce of ethyl mercaptan, one of the ingredients necessary or commonly used in making, producing, or manufacturing such stink bomb or substitute or device therefor, against the peace and dignity of the State of Alabama.'

The appellant's jury trial resulted in a verdict and judgment of guilty as charged in count 2.

It is apparent that count 2 was based upon that portion of Section 369, Title 14, Code of Alabama 1940, which reads as follows:

'It shall be unlawful * * * for any person or persons to have in their possession for the purpose of making, producing or manufacturing any stink bomb, or tear gas bomb, or any substitute or device therefor, any of the ingredients necessary or commonly used in making, producing or manufacturing such stink bomb or substitute or device therefor.'

By appropriate demurrer the appellant has raised and presented the question of the constitutionality of the quoted portion of Section 369, Title 14, Code of Alabama 1940, in light of the Fourteenth Amendment to the United States Constitution, and of Article 1, Section 6 of the Constitution of Alabama of 1901.

It is our conclusion that the above quoted portion of Section 369, Title 14, Code of Alabama 1940, is unconstitutional in view of the doctrine of Carter v. State, 243 Ala. 575, 11 So.2d 764, in that it makes the mental attitude of the actor, which may have no effect at all, the sine qua non of the offense.

We are further of the conclusion that the quoted portion of Section 369, supra, is unconstitutional in that it uses words of no ascertainable meaning, and can include within its scope acts which are innocent of any relation to stink bombs, and sets no ascertainable standard of conduct.

Being without authority to declare the quoted portion of Section 369, supra, unconstitutional we hereby under the provisions of Section 98, Title 13, Code of Alabama 1940, certify the question to the Supreme Court of Alabama.

For your convenience the record in this court is forwarded to you with this request.

Dated this the 28th day of February 1957.

ROBERT B. HARWOOD Presiding Judge

ANNIE LOLA PRICE Judge

AUBREY M. CATES, Jr. Judge

Cooper, Mitch & Black, Birmingham, for appellant.

John Patterson, Atty. Gen., and Robt. P. Bradley and Wm. C. Younger, Asst. Attys. Gen., for the State.

SIMPSON, Justice.

Response to question certified by the Court of Appeals.

The appellant was tried and convicted under Count 2 of an indictment charging that he 'did have in his possession for the purpose of making, producing or manufacturing a stink bomb, or a substitute or device therefor, to-wit, three fourths of a liquid ounce of ethyl mercaptan, one of the ingredients necessary or commonly used in making, producing or manufacturing such stink bomb or substitute or device therefor, against the peace and dignity of the State of Alabama.'

This indictment was drawn under § 369, Title 14, Code of 1940, which is as follows:

'It shall be unlawful for any person or persons to make, manufacture, or possess, or to place, or deposit or throw any stink bombs or tear gas bomb or any substitute or device used therefor which contains foul or offensive odors, in any public building, or store house, or theatre, or motion picture theatre, or any private residence, or any boarding house or other building where people lodge or reside, or within the curtilage of any such building, or on any sidewalk or street in front of any such building or in front of or near any rear or side entrance to any such building, or at any exit to any such building, or in, at, or near any hole or vent, or ventilator in any such building, or for any person or persons to have in their possession for the purpose of making, producing or manufacturing any stink bomb, or tear gas bomb, or any substitute or device therefor, any of the ingredients necessary or commonly used in making, producing or manufacturing such stink bomb or substitute or device therefor.'

The part of the section pertinent for consideration here is that which prohibits 'any person or persons to have in their possession for the purpose of making * * * any stink bomb, * * * any of the ingredients necessary or commonly used in making * * * such stink bomb * * *.'

It is contended by the appellant that said section is vague and uncertain and that the true meaning of the statute is not apparent from its face, and that said section is violative of Article 1, § 6, Constitution of Alabama, and Amendment 14 of the United States Constitution.

The Court of Appeals was of the opinion that said section is unconstitutional in that it makes the mental attitude of the actor the sine qua non of the offense, and further that the statute uses words of no 'ascertainable' meaning. Hence the inquiry to this Court. Title 13, § 98, Code of 1940.

We think the view held by the Court of Appeals to be correct.

If the provision can be sustained as constitutional it must be under the police power of the state which authorizes the imposition of reasonable regulations in the interest of public health, public morals, public safety or the general welfare. Looking to one of the earliest authorities, Blackston defines this power to be 'the due regulation and domestic order of the kingdom: whereby the individuals of the State, like members of a well governed family, are bound to conform their general behavior to the rules of propriety, good neighborhood, and good manners; and to be decent, industrious and inoffensive in their respective stations.' 4 Blackstone Commentaries 162.

Mr. Justice Holmes, speaking for the Supreme Court of the United States in Noble State Bank v. Haskell, 219 U.S. 104, 111, 31 S.Ct. 186, 188, 55 L.Ed. 112, 32 L.R.A.,N.S., 1662, Ann.Cas.1912A, 487, observed:

'It may be said in a general way that the police power extends to all the great public needs. Camfield v. United States, 167 U.S. 518, 17 S.Ct. 864, 42 L.Ed. 260. It may be put forth in aid of what is sanctioned by usage, or held by the prevailing morality or strong and preponderant opinion to be greatly and immediately necessary to the public welfare.'

Consonant with this general theory it has been held that the police power of the state is validly exercised when legislation is enacted to suppress the evils of intemperance and to regulate or outlaw the carrying on of other activities regarded by the general opinion as great public evils. But if a provision of a statute is arbitrary or has no reasonable relation to the object sought to be accomplished by an otherwise valid enactment, the courts will strike it down as an unwarranted exercise by the legislature of the states' police power. Southern Express Co. v. Whittle, 194 Ala. 406, 69 So. 652, L.R.A.1916C, 278.

Otherwise expressed the police power may not be employed to prevent evils of a remote or highly problematical character. Nor may its exercise be justified when the restraint imposed upon the exercise of a private right is disproportionate to the amount of evil that will be corrected. However, the fact that, as a matter of practical operation, innocent parties or property will necessarily by affected to some slight extent, will not render the legislation unconstitutional. Furthermore, acts innocent in themselves may be ordered or prohibited if this be practically necessary in order to secure an efficient enforcement of a valid police order. Willoughby on the Constitution of the United States, 2d Ed., Vol. 3, § 1180, p. 1778.

'The scope of the police power is to be measured by the legislative will of the people upon questions of public concern, not in acts passed in response to sporadic impulses or exuberant displays of emotion, but in those enacted in affirmance of established usage or by such standards of morality and expediency as have by gradual processes and accepted reason become so fixed as fairly to indicate the better will of the people in their social, industrial, and political development.' 11 Am.Jur., § 270, p. 1014.

It is also settled law that 'In enacting a criminal statute, there is an obligation on the State to so frame it that those who are to administer it and those to whom it is to be administered may know what standard of conduct is intended to be required and legislation may run afoul of the due process clause because of a failure to set up any sufficient guidance to those who would be law-abiding, or to advise a defendant of the nature and cause of an accusation he is called on to answer, or to guide the courts in the law's enforcement.' Kahalley v. State, 254 Ala. 482, 483, 48 So.2d 794, 795; Seals v. State, 239 Ala. 5, 194 So. 682; Standard Oil Co. v. State, 178 Ala. 400, 59 So. 667; Carter v. State, 243 Ala. 575, 11 So.2d 764.

And a person is not required to speculate as to the meaning of a statute at the peril of his freedom. Lanzetta v. State of New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888. The intent of the legislature must appear from the face of the statute. Standard Oil Co. v. State, supra.

Guided by these approved canons of constitutional construction, we think it clear that the quoted provision of said § 369 cannot be upheld. It arbitrarily pronounces as unlawful all possession, whether innocent or criminal, of any ingredient, etc., for the purpose of making stink or tear gas bombs. No standards of conduct are set up to guide the innocent or warn the criminal, or to advise a defendant...