Commonwealth v. Rilly

• Decision Date: 28 February 1924
• Parties: COMMONWEALTH v. RILLY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

248 Mass. 1

142 N.E. 915

COMMONWEALTH

v.RILLY.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 28, 1924.

Exceptions and Appeal from Superior Court, Suffolk County; P. J. O'Connell, Judge.

Lincoln L. Reilly was found guilty of violations of G. L. c. 266, § 91, and his motion in arrest of judgment was overruled, and he brings exceptions and appeals. Exceptions overruled, and denial of motion in arrest of judgment affirmed.L. Marks, of Boston, for appellant.

M. Carol, Asst. Dist. Atty., of Boston, for the Commonwealth.

RUGG, C. J.

This indictment charges that the defendant, at divers times set forth in several counts, published in certain newspapers, respecting an article called Fam-O, advertisements containing assertions, representations and statements of fact which were untrue, deceptive and misleading, and which the defendant knew and might on reasonable investigation have ascertained to be untrue, deceptive and misleading. The indictment is based on G. L. c. 266, § 91. That section is in these words:

‘Any person who, with intent to sell or in any way dispose of merchandise, securities, service, or anything offered by such person, directly or indirectly, to the public for sale or distribution, or who, with intent to increase the consumption of or demand for such merchandise, securities, service or other thing, or to induce the public in any manner to enter into any obligation relating thereto, or to acquire title thereto, or an interest therein, makes, publishes, disseminates, circulates or places before the public, or causes, directly or indirectly, to be made, published, disseminated, circulated or placed before the public within the commonwealth, in a newspaper or other publication, or in the form of a book, notice, handbill, poster, bill, circular, pamphlet or letter, or in any other way, an advertisement of any sort regarding merchandise, securities, service or anything so offered to the public, which advertisement contains any assertion, representation or statement of fact which is untrue, deceptive or misleading, and which such person knew, or might on reasonableinvestigation have ascertained to be untrue, deceptive or misleading, shall be punished by a fine of not less than ten nor more than five hundred dollars; * * *’ with a proviso not here material.

The indictment follows the terms of G. L. c. 266, § 91. Therefore, as matter of criminal pleading it is not open to objection.

[2][3] The defendant contends that the statute itself is unconstitutional because it fails to conform to the requirements of Article 12 of the Declaration of Rights of the Constitution of this Commonwealth. That article provides that--

‘No subject shall be held to answer for any crimes or offense, until the same is fully and plainly, substantially and formally, described to him. * * * And no subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled, or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land.’

It is urged that the statute involved in the case at bar does not fix an ascertainable standard of guilt, that it conveys to persons accused of its violation no defined measure of conduct, that it does not forbid any specific act, and that it is so broad as to be vague and uncertain. Article 12 of the Declaration of Rights is an important safeguard of individual liberty. All statutes must conform to its requirements. Crimes can be created only by specification to a reasonable degree of definiteness of conduct forbidden or enjoined. Acts to be done or avoided must be stated with clarity. A guide or rule in the description of conduct must be established capable of being understood by the ordinary member of society. The duty of the individual must be set out with such explicit definition that the law abiding may avoid prosecution and find protection. Commonwealth v. Badger, 243 Mass. 137, 137 N. E. 261;Commonwealth v. Pentz (Mass.) 143 N. E. 322;Commonwealth v. Atlas, 244 Mass. 78, 82, 138 N. E. 243.

The chief attack on the statute is directed against that part which authorizes a verdict of guilty for publishing as an advertisement in a newspaper an untrue, deceptive or misleading assertion, representation or statement, whose untrue, deceptive or misleading nature ‘might on reasonable investigation’ have been ascertained. It is argued that ‘reasonable investigation’ is not a definite standard of conduct, but varies so much with the idiosyncrasies of each individual that it is vague and uncertain.

The common law has established many tests for separating criminal from noncriminal conduct based on what a jury may think is reasonable. Self-defense as a justification in cases of homicide is made out by proof that the defendant had reasonable cause to believe, and in truth did believe, that it was necessary to strike in order to protect his own person, and that the mortal blow was given solely for that purpose. Commonwealth v. Woodward, 102 Mass. 155, 161;Commonwealth v. Crowley, 165 Mass. 569, 570, 43 N. E. 509. In Commonwealth v. Presby, 14 Gray, 65, a police officer was indicted for assault and battery. The defense was that the alleged crime was committed in arresting one for being intoxicated on a public street in the nighttime under the mandate of a statute. It was held that the defense was made out by proof that the defendant acting in good faith had ‘reasonable cause’ to believe that the person arrested was intoxicated even though not intoxicated in fact. The dividing line between guilt and innocence in the criminal law is whether a jury are satisfied beyond a ‘reasonable doubt’ that the defendant committed the crime charged. Commonwealth v. Webster, 5 Cush. 295, 319, 320, 52 Am. Dec. 711. A parge number of statutory crimes are made to depend for one essential element upon conduct described as reasonable or unreasonable. See, for example, ‘without reasonable care,’ G. L. c. 266, §§ 8, 9, with or without ‘reasonable cause,’ G. L. c. 269, § 13; chapter 272, §§ 5, 88, unreasonable neglect or without making reasonable provision, G. L. c. 273, §§ 1, 20; Commonwealth v. Burlington, 136 Mass. 435;Commonwealth v. Ham, 156 Mass. 485, 31 N. E. 639;Commonwealth v. Graham, 157 Mass. 73, 31 N. E. 706,16 L. R. A. 578, 34 Am. St. Rep. 255;Commonweatlh v. Simmons, 165 Mass. 356, 43 N. E. 110;Commonwealth v. Shaman, 223 Mass. 62, 111 N. E. 720, refusal to contribute reasonably, G. L. c. 273, § 15; Commonwealth v. Callaghan, 223 Mass. 150, 111 N. E. 773, ceptiorari denied 241 U. S. 667, 36 Sup. Ct. 551, 60 L. Ed. 1229;Commonwealth v. Rosenblatt, 219 Mass. 197, 106 N. E. 852. See Commonwealth v. Cassidy, 209 Mass. 24, 95 N. E. 214. In all the decisions just cited it was assumed without discussion that the statute was valid and convictions were upheld. These statutes are illustrative and are not intended to be an exhaustive collection. ‘Reasonable cause to know’ has been an essential element for conviction in some aspects of our laws against the sale of intoxicating liquor, and has been explained in our decisions. Commonwealth v. Joslin, 158 Mass. 482, 494, 33 N. E. 653,21 L. R. A. 449;Commonwealth v. Gould, 158 Mass. 499, 508, 33 N. E. 656. An indictment charging a conspiracy to establish a monopoly and to enhance unreasonably the price of a necessity of life in time of war, has been upheld as not vague or indefinite. Commonwealth v. Dyer, 243 Mass. 472, 490, 491, 138 N. E. 296. Definitions of negligence not infrequently refer to the conduct of a ‘reasonable man’ as one of its elements. See Pollock on Torts (3d Ed.) 385, 386. The person of ordinary caution and prudence often embodied in definitions of negligence is but another way of describing the reasonable person. See Altman v. Aronson, 231 Mass. 588, 591, 121 N. E. 505, 4 A. L. R. 1185. There are statutory crimes resting upon negligent conduct. G. L. c. 268, § 29; c. 269, § 3, 4. Negligence of varying degrees had been made the basis of crime under numerous statutes, some of which are reviewed in Brooks v. Fitchburg & Leominster St. Railway, 200 Mass. 8, 86 N. E. 289. Yet courts of other jurisdictions often have said that the distinction between ordinary negligence and gross negligence is incapable of definition. See Massaletti v. Fitzroy, 228 Mass. 487, 494 to 498, 118 N. E. 168, L. R. A. 1918C, 264, Ann. Cas. 1918B, 1088, and cases there reviewed. Reference has been made to these statutes and decisions, not as definitely concluding the point here raised, but because it is unlikely that so many statutes would have been enacted and so many decisions rendered upholding convictions there under if the point here raised were sound. Their cumulative effect is entitled to consideration.

With respect to an argument as to vagueness and indefiniteness it was said by Mr. Justice Holmes in delivering the opinion of the court in Nash v. United States, 229 U. S. 373, 377, 33 Sup. Ct. 780, 781 (57 L. Ed. 1232):

‘The law is full of instances where a man's fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree. If his judgment is wrong, not only may he incur a fine or a short imprisonment, as here; he may incur the penalty of death. ‘An act causing death may be murder, manslaughter, or misadventure according to the degree of danger attending it’ by common experience in the circumstances known to the actor. ‘The very meaning of the fiction of implied malice in such cases at common law was, that a man might have to answer with his life for consequences which he...