Lanham v. State

• Decision Date: 08 April 1935
• Docket Number: 26235
• Citation: 195 N.E. 73,208 Ind. 79
• Parties: LANHAM et al. v. STATE
• Court: Indiana Supreme Court

195 N.E. 73

208 Ind. 79

LANHAM et al. v. STATE

No. 26235

Supreme Court of Indiana

April 8, 1935

Appeal from Criminal Court, Marion County; Frank P. Baker, judge.

For former opinion, see 194 N.E. 625.

Joseph T. Markey and J. B. Kammins, both of Indianapolis, for appellant.

James M. Ogden, Atty. Gen., and James T. Dowling and Merl M. Wall Asst. Attys. Gen., for the State.

OPINION

ROLL, Judge (dissenting).

I concur in the reversal of the judgment in this action, but I cannot agree with the reasoning of the majority of the court or the interpretation placed by them upon the statute in question.

There is no sounder or better settled rule of criminal law than the one relating to certainty and definiteness. From the very nature of things, it is altogether necessary that a criminal statute, to be enforceable, must so clearly and so definitely define the crime that every one could be able to determine with certainty when he is violating the statute. This rule of law was very clearly stated by this court in the case of Railroad Comm., etc., v. Grand Trunk, etc., R. Co. (1913) 179 Ind. 255, 100 N.E. 852, 855, as follows: 'When the Legislature undertook to define an offense and provide punishment therefor in this act, it should have expressed itself in plain and specific terms. * * * An act which leaves the crime to be determined by the jury or any official body is void. A penal statute, to be enforceable, must be general in its scope, and specific and certain in its provisions.'

The Supreme Court of the United States state the rule as follows in the case of United States v. Reese (1875) 92 U.S 214, 220, 23 L.Ed. 563: 'Every man should be able to know with certainty when he is committing a crime.'

The federal court held in the case of Tozer v. United States (C. C. 1892) 52 F. 917, 919: 'In order to constitute a crime, the act must be one which the party is able to know in advance whether it is criminal or not. The criminality of an act cannot depend upon whether a jury may think it reasonable or unreasonable. There must be some definiteness and certainty.'

And again in the case of Chicago & N.W. R. Co. v. Dey (C. C. 1888) 35 F. 866, 867, 876, 1 L. R. A. 744, the court said: 'No penal law can be sustained unless its mandates are so clearly expressed that any ordinary person can determine in advance what he may and what he may not do under it.'

The following authorities sustain the above rule: United States v. L. Cohen Grocery Co. (1921) 255 U.S. 81, 41 S.Ct. 298, 65 L.Ed. 516, 14 A. L. R. 1045; Cook v State (1921) 26 Ind.App. 278-282, 283, 59 N.E. 489; Louisville, etc., R. Co. v. Commonwealth (1896) 99 Ky. 132, 35 S.W. 129, 33 L. R. A. 209, 59 Am. St. Rep. 457; Stoutenburgh v. Frazier (1900) 16 App. D. C. 229, 48 L. R. A. 220.

With this rule of law in mind, let us examine the statute here under consideration and see if it conforms to the above requirements. In the first sentence of the statute (Burns' Ann. St. 1933, § 10-1410) we find the words, 'and being financially able.' It will be noted that the statute does not say who or when one is financially able to support his or her parents, nor does the statute fix any standard whatever. How and by what means is one to determine in advance when he is financially able to support his or her parents? The answer to this question is of much importance. You look to the statute in vain for an answer; you consult your own judgment on the matter, but yet you are not satisfied; you talk to your friends and find they differ on the subject. At last you consult your lawyer, and he must advise you that no one can determine that question but the court or jury trying the case. If this statement is true, under the well-settled rule above set out, the statute is void for uncertainty.

We also find in this first sentence of the statute the words 'without reasonable cause.' Again you find no help in the statute to determine what is reasonable cause. Different people would honestly have different ideas of what constitutes reasonable cause. What one might determine was a reasonable cause, another might honestly think would be far from constituting a reasonable cause. So again the accused must wait for the verdict of the jury...