Jaquith v. Com.

• Decision Date: 04 June 1954
• Citation: 120 N.E.2d 189,331 Mass. 439
• Parties: JOQUITH v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 189

120 N.E.2d 189

331 Mass. 439

JOQUITH v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued April 5, 1954.

Decided June 4, 1954.

Walter Powers, Jr., Boston, for petitioner.

Charles F. Marsland, Jr., Asst. Atty. Gen., for Commonsealth.

Before QUA, C. J., and RONAN, WILLKINS, and COUNIHAN, JJ.

COUNIHAN, Justice.

This is a petition by Kenneth L. Jaquith for a writ of error to reexamine judgments entered in the Superior Court and to reverse them because of errors of law. G.L.(Ter.Ed.) c. 250, § 9. Pursuant to Rule 50 of the Rules for the Regulation of Practice at Common Law and in Equity, 328 Mass. 726, the single justice of this court, after notice and hearing, affirmed the judgments. The case comes here upon exceptions of the petitioner. There was no error.

In his bill of exceptions the petitioner attacks the validity of the judgments that he was guilty of violations of G.L. (Ter.Ed.) c. 272, § 35, ¹ and of the sentence which was imposed under G.L. (Ter.Ed.) c. 266, § 16, as appearing in St.1943, c. 343, § 1. ² The petitioner, who was represented by counsel, pleaded 'guilty to indictments charging that he 'did commit an unnatural and lascivious act' on several occasions with three named persons, and that he, on two occasions, 'in the nighttime did break and enter the building of Prospect Hill Congregational Church situated in said Somerville, with intent therein to commit a felony, to wit, an unnatural and lascivious act with another person.' He was sentenced for a term of nine to fifteen years in the State prison and we assume that he is now confined there.

In support of his petition he assigns as error the following: '1. Chapter 272, § 35, of G.L. (Ter.Ed.) c. violates art. 12 of the Declaration of Rights of the Constitution of Massachusetts. Said section is therefore void, and sentence and confinement under said section are consequently contrary to law. 2. Said c. 272, § 35, violates the due process clause of the Fourteenth Amendment to the Constitution of the United States, and sentence and confinement therefore are contrary to law. 3. The indictments returned against the defendant under G.L. (Ter.Ed.) c. 272, § 35, violate art. 12 of the Declaration of Rights of the Constitution of Massachusetts and the due process clause of the Fourteenth Amendment to the Constitution of the United States, and are otherwise contrary to law. 4. The sentence and confinement imposed upon your petitioner for violation of G.L. (Ter.Ed.) c. 266, § 16, is contrary to law and contrary to substantial justice.'

We are of opinion that the exceptions are properly before us and we consider them because a 'writ of error is an original, independent action and in its origin and nature is distinguishable from appeals and bills of exceptions, which are continuations of the original action. In criminal cases, as distinguished from civil actions, the writ lies notwithstanding there is a remedy by appeal.' Commonwealth v. Marsino, 252 Mass. 224, 227-228, 147 N.E. 859, 860. G.L.(Ter.Ed.) c. 250, § 9. Compare Lee v. Fowler, 263 Mass. 440, 161 N.E. 910.

The substance of the petitioner's assignments of error, of his bill of exceptions, and of his argument before us is that a charge of committing 'an unnatural and lascivious act' affords no ascertainable standard of conduct and so the statute prescribing such acts is a nullity in that it violates art. 12 of the Declaration of Rights of the Constitution of Massachusetts which reads in part: 'No subject shall be held to answer for any crimes or offence, until the same is fully and plainly, substantially and formally, described to him'. He says it also violates the due process clause of the Fourteenth Amendment to the Constitution of the United States. He further asserts that an indictment in the language of such statute is violative of the same constitutional provisions because it does not set forth the crime with such definiteness of allegation as will enable and accused to understand the charge and prepare his defence.

We are of opinion that the terms of this statute are not violative of the requirements of the constitutional provisions relied upon. We agree that a statute prescribing certain conduct must be sufficiently definite in specifying the conduct which is inhibited so that a reasonable man may not be compelled to speculate at his peril whether a statute permits or prohibits the act he proposes to undertake. If the language of a statute is so variable, vague, or uncertain that it does not plainly set out a crime, then the statute is a nullity. Out of the many cases in which this principle has been affirmed by the Supreme Court of the United States a few citations will suffice. Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 127, 70 L.Ed. 322; Cline v. Frink Dairy Co., 274 U.S. 445, 47 S.Ct. 681, 71 L.Ed. 1146; Lanzetta v. State of New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888; Winters v. People of State of New York, 333 U.S. 507, 515-516, 68 S.Ct. 665, 92 L.Ed. 840. This principle has been recognized in our decisions. Commonwealth v. Daniel O'Connell's Sons, Inc., 281 Mass. 402, 183 N.E. 839; Commonwealth v. Corbett, 307 Mass. 7, 8, 29 N.E.2d 151; McQuade v. New York Central Railroad, 320 Mass. 35, 40, 68 N.E.2d 185; Commonwealth v. Slome, 321 Mass. 713, 715-717, 75 N.E.2d 517; Commonwealth v. Carpenter, 325 Mass. 519, 521, 91 N.E.2d 666.

However, a statute does not fail to satisfy constitutional requirements merely because it uses general terms when such terms so define the offence as to convey to a person of ordinary understanding and intelligence an adequate description of the prohibited act. It is not infrequent that prescribed conduct is incapable of precise legal definition. Commonwealth v. Pentz, 247 Mass. 500, 507, 143 N.E. 322.

Having in mind what we have just said, it is plain that 'an unnatural and lascivious act' are words of common usage and indicate with reasonable clarity the kind and character of conduct which the Legislature intended to prohibit and punish. These words have a well defined, well understood, and generally accepted meaning. The words of this statute 'are common words and may be assumed to be understood in their common meaning by an ordinary jury.' Commonwealth v. Buckley, 200 Mass. 346, 352, 86 N.E. 910, 911, 22 L.R.A.,N.S., 225. They signify irregular indulgence in sexual behavior, illicit sexual relations, and infamous conduct which is lustful, obscene, and in deviation of accepted customs and manners. See Commonwealth v. Wardell, 128 Mass. 52; Commonwealth v. Dill, 160 Mass. 536, 36 N.E. 472; Commonwealth v. Delano, 197 Mass. 166, 83 N.E. 406; Commonwealth v. Allison, 227 Mass. 57, 116 N.E. 265; Commonwealth v. Isenstadt, 318 Mass. 543, 550, 62 N.E.2d 840; 24 Words & Phrases, Lascivious, p. 257. Numerous decisions of the Supreme Court of the United States and of other jurisdictions have sustained ...