Jones v. State

• Decision Date: 03 October 1972
• Docket Number: No. S,S
• Citation: 55 Wis.2d 742,200 N.W.2d 587
• Parties: Bruce E. JONES, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error. tate 86.
• Court: Wisconsin Supreme Court

Page 587

200 N.W.2d 587

55 Wis.2d 742

Bruce E. JONES, Plaintiff in Error, v. STATE of Wisconsin, Defendant in Error.

No. State 86.

Supreme Court of Wisconsin.

Oct. 3, 1972.

Rehearing Denied Nov. 28, 1972.

Myron B. Katz, Milwaukee, for plaintiff in error.

Robert W. Warren, Atty. Gen., Robert D. Martinson, Asst. Atty. Gen., Madison, for defendant in error.

BEILFUSS, Justice.

The issue is whether sec. 944.17(1), Stats., is unconstitutional because of vagueness or overbreadth.

The statute under which the defendant was convicted and now challenges is sec. 944.17(1). It provides as follows:

'Sexual perversion. Whoever does either of the following may be fined not more than $500 or imprisoned not more than 5 years or both:

'(1) Commits an abnormal act of sexual gratification involving the sex organ of one person and the mouth or anus of another.'

The sufficiency of the evidence is not challenged in this review of the postconviction order; therefore facts of the sordid and revolting events that lead to the conviction will be set forth in only such detail as is necessary for a discussion of the application of the statute.

The complainant, James Joseph _ _ in December of 1967, was confined in the county jail of Milwaukee county. He was kept in the same cell as the defendant Jones. On three occasions, December 13, 14 and 16, 1967, he was forced by physical beating, threat, fear, and against his will to take the penis of the defendant in his mouth and then to sexually gratify the defendant. On two of these occasions not only Jones but another prisoner, in the confines of the jail cell, forced the complainant to submit to the same demands by physical force and threat. The complainant was unable to escape from the defendant and because of threats of physical harm or death he was afraid to report the incidents until assured by a deputy sheriff he would be protected. A complaint was made, a trial was had, and the conviction followed.

The defendant, in his challenge to the conviction for his acts, contends sec. 944.17(1), Stats., is unconstitutionally vague in violation of the due process clauses of art I, sec. 8 of the Wisconsin Constitution and the fourteenth amendment of the United States Constitution.

In State v. Starks (1971), 51 Wis.2d 256, 259, 186 N.W.2d 245, 247, we stated:

'The most commonly accepted formula for determining whether a penal statute is too vague to give fair notice of what it prohibits is the one adopted by this court in State v. Zwicker (1969), 41 Wis.2d 497, 507, 164 N.W.2d 512, 517.'

In support of his contention, the statute is void for vagueness, he quotes the sodomy statute as it was prior to 1955. In 1955 the legislature repealed the old sodomy section and replaced it with the present sexual perversion statute (sec. 944.17(1)). The older statute defined sodomy as a 'crime against nature.' A like phrase in a similar Alaskan statute was declared void for vagueness in Harris v. State (1969, Alaska), 457 P.2d 638. Even if we assume the vagueness of that phrase, the question is now moot since it does not appear in our present statute, sec. 944.17. The prior statute does not taint the constitutionality of the present one. It is the constitutionality of the present statute that is in question and not the former which was abandoned by the legislature.

The test for vagueness of a penal statute is whether it gives reasonable notice of the prohibited conduct to those who would avoid its penalties. The defendant cannot hypothesize fact situations but is confined to the conduct charged when it is so obviously within the zone of prohibited conduct that no reasonable man could have any doubts of its criminality. State v. Driscoll (1972), 53 Wis.2d 699, 193 N.W.2d 851; Jordan v. De George (1951), 341 U.S. 223, 71 S.Ct. 703, 95 L.Ed. 886.

The question of vagueness then is whether the statute describes the offense with sufficient definiteness and gives ascertainable standards of guilt. ¹ Is the statute sufficiently definite to give reasonable notice of the prohibited conduct to those who wish to avoid its penalties? If the statute is so obscure that men of common intelligence must necessarily guess at its meaning and differ as to its applicability, it is unconstitutional. State v. Mahaney (1972), 55 Wis.2d 443, 198 N.W.2d 373; State v. Starks, supra; and Giaccio v. Pennsylvania (1966), 382 U.S. 399, 86 S.Ct. 518, 15 L.Ed.2d 447.

The present statute states that an abnormal act of sexual gratification is a violation of the statute only if it involves the sex organs of one person and the mouth or anus of another. For this statute to be violated the abnormal act must entail the sex organ of one person in the mouth or anus of another. Therefore, the words following 'abnormal act' limits and defines what constitutes such an illegal act. The defendant's proffered definitions of abnormal versus normal are immaterial. The Wisconsin legislature has given such term a specific, definite and ascertainable meaning. The statute is simply not vague on its face.

The statute has ascertainable standards, and is sufficiently definite to give reasonable notice of the prohibited conduct. It is clear that oral and anal intercourse is prohibited and nothing more. It is ludicrous to think that the statute is so obscure that men of common intelligence must necessarily guess at its meaning and differ as to its...