Markham, Application of
| Decision Date | 26 March 1965 |
| Docket Number | No. 35886,35886 |
| Citation | 178 Neb. 544,134 N.W.2d 84 |
| Parties | Application of Richard L. MARKHAM for a Writ of Habeas Corpus. Richard L. MARKHAM, Appellee, v. Homer BRAINARD, Sheriff of Dodge County, Nebraska, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. A crime must be defined with sufficient definiteness and there must be ascertainable standards of guilt to inform those subject thereto as to what conduct will render them liable to punishment thereunder. The dividing line between what is lawful and unlawful cannot be left to conjecture.
2. A penal law which makes criminal an act which the utmost care and circumspection would not enable one to avoid is invalid.
Clarence A. H. Meyer, Atty. Gen., Richard L. Kuhlman, County Atty., Fremont, for appellant.
Kerrigan, Line & Martin, Fremont, for appellee.
Heard before WHITE, C. J., and CARTER, SPENCER, BOSLAUGH, BROWER, SMITH, and McCOWN, JJ.
This is a proceeding for a writ of habeas corpus brought by Richard L. Markham against the sheriff of Dodge County, Nebraska. The district court found that the imprisonment of the plaintiff was unlawful and ordered that he be discharged from confinement. The defendant appeals.
An information was filed in the district court for Dodge County, Nebraska, alleging that on April 18, 1964, the plaintiff possessed a firearm with a barrel less than 12 inches in length and that in 1961 the plaintiff had been convicted of armed robbery, a crime of violence amounting to a felony. Thereafter the plaintiff was placed in the custody of the defendant pursuant to a mittimus issued out of the district court for Dodge County, Nebraska. The plaintiff then commenced this action, alleging that his detention was unlawful because the statute under which he was held, section 28-1011.07, R.S.Supp., 1961, was unconstitutional.
Section 28-1011.07, R.S.Supp., 1961, provides as follows: Section 28-1011.09, R.S.Supp., 1961, provides that a violation of section 28-1011.07, R.S.Supp., 1961, is a felony and prescribes the penalty to be imposed upon conviction of the offense.
The plaintiff contends that section 28-1011.07, R.S.Supp., 1961, is unconstitutional because it is vague and uncertain and makes criminal an act which an accused may have no way of knowing is criminal at the time of its commission.
The statute prohibits the possession of certain weapons by any person who has been charged with a crime of violence or has been convicted of a crime of violence amounting to a felony. The plaintiff contends that the statute is vague and uncertain because the term 'crime of violence' is not defined in the act.
The term, crime of violence, does not appear to have a well-known or adjudicated meaning. The parties cite no authority in which a definition of the term may be found and it is not defined in any...
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