People v. Blue, Nos. 26434

• Docket Nº: 26435 and 26436
• Citation: 190 Colo. 95, 544 P.2d 385
• Case Date: December 22, 1975

Page 385

544 P.2d 385 190 Colo. 95 The PEOPLE of the State of Colorado, Plaintiff-Appellant,
v.
Roy E. BLUE et al., Defendants-Appellees. Nos. 26434, 26435 and 26436. Supreme Court of Colorado, En Banc. Dec. 22, 1975.

[190 Colo. 98]

Page 387

Dale Tooley, Dist. Atty., Brooke Wunnicke, Chief Appellate Deputy Dist. Atty., Denver, for plaintiff-appellant.

Rollie R. Rogers, Colo. State Public Defender, James F. Dumas, Jr., Chief Deputy State Public Defender, G. Paul McCormick, Deputy State Public Defender, Denver, for defendants-appellees.

LEE, Justice.

Defendants, all of whom had previous felony convictions, were each charged in the district court in a separate information with possession of guns in violation of 1971 Perm.Supp., C.R.S.1963, 40--12--108. ¹ In each case, prior to trial, a motion to dismiss was filed, alleging that the statute was unconstitutional. It was contended that this statute was unconstitutionally vague, overbroad, and that it violated Article II, Section 13, of the Colorado Constitution.

The motions were consolidated for hearing and the trial court concluded that the statute, though not constitutionally vague, was overbroad and did violate Article II, Section 13, of the Colorado Constitution, which guarantees the right to bear arms. The district attorney has appealed the ruling and the three cases are consolidated here for review.

1971 Perm.Supp., C.R.S.1963, 40--12--108 provides:

'Possession of weapons by previous offenders. Any person previously convicted of burglary, arson, or a felony involving the use of force or violence or the use of a deadly weapon, or attempt or conspiracy to commit such offenses, under the laws of the United States of America, the state of Colorado, or another state, within the ten years next preceding or within ten years of his release from incarceration, whichever is greater, who shall possess, use, or carry upon his person a firearm or other weapon mentioned in section 18--1--901(3)(h) or sections 18--12--101 to 18--12--106, commits a class 5 felony. A second or subsequent offense under this section is a class 4 felony.' ²

We affirm the ruling of the district court that the statute is not unconstitutionally vague, and reverse the ruling that the statute is overbroad and violates Article II, Section 13, of the Colorado Constitution. In [190 Colo. 99] our view, defendants have failed to show beyond a reasonable doubt that this statute, which is designed to protect the public health and safety, is unconstitutional. People v. Summit, 183 Colo. 421, 517 P.2d 850; People v. Sneed, 183 Colo. 96, 514 P.2d 776; People v. Kogul, 179 Colo. 394, 501 P.2d 738.

I.

Defendants here contend that the trial court erred in ruling that the statute was not unconstitutionally vague. We find no error in that determination.

Defendants argue that the statute must fall because many of its crucial terms are so vague that a person of ordinary intelligence would of necessity have to guess or speculate as to their meaning. Cited as

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unduly vague are the words 'involving' and 'use of force or violence,' and also the time computation section of the statute, reading in part '* * * within the ten years next preceding or within ten years of his release from incarceration, whichever is greater * * *.'

We have long held that perhaps the first essential of due process is that a statute state its mandate with reasonable clarity. As we said in People v. Cardwell, 181 Colo. 421, 510 P.2d 317, quoting from Connally v. General Const. Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322:

'That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties is a well recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law * * *.'

See also People v. Heckard, 164 Colo. 19, 431 P.2d 1014; Memorial Trusts v. Beery, 144 Colo. 448, 356 P.2d 884. At the same time, we recognize that there is a limit on the degree of exactitude that can be required of any statute:

'* * * (F)ew words possess the precision of mathematical symbols, most statutes must deal with untold and unforeseen variations in factual situations, and the practical necessities of discharging the business of government inevitably limit the specificity with which legislators can spell out prohibitions. Consequently, no more than a reasonable degree of certainty can be demanded. Nor is it unfair to require that one who deliberately goes perilously close to an area of proscribed conduct shall take the risk that he may cross the line.' Boyce Motor Lines v. United States, 342 U.S. 337, 72 S.Ct. 329, 96 L.Ed. 367. See Cardwell, supra.

Bearing these basic principles in mind, and also the proposition that any statute alleged to be vague must be closely scrutinized, People v. District Court, 185 Colo. 78, 521 P.2d 1254, we do not find the statute to be unconstitutionally vague.

[190 Colo. 100] Defendants assert that 'involving,' a term not defined in the Colorado Criminal Code, is objectionable. This court, however, has never required that every statutory word or phrase be specifically defined. We have often made reference to standard dictionaries and to the case law to determine the probable legislative intent in using a particular word. 'Involve' has been defined as 'to have within or as part of itself: contain, include'; 'to require as a necessary accompaniment.' Merriam-Webster New International Dictionary (Third Edition), p. 1191. In People v. Sell, 96 Cal.App.2d 521, 215 P.2d 771, the court held that 'involved' referred to 'being connected with * * * in a natural or logical manner.' And this court has itself, in Croswell v. People, 74 Colo. 547, 223 P. 51, affirmed a sentence to the penitentiary of a defendant convicted under a statute authorizing committal to the penitentiary for 'crimes involving the penalty of imprisonment for life.'

Additional citation of authority is not required. 'Involving' is a common, readily understood word, and whatever imprecision its use may entail does not rise to the level of constitutional infirmity.

Defendants also contend that 'use of force or violence' is extremely vague, citing as support for this proposition Markham v. Brainard, 178 Neb. 544, 134 N.W.2d 84. We do not agree with the holding of the Nebraska Supreme Court. Though this phrase is again not specifically defined by the Colorado Criminal Code, there can be little doubt that most persons would readily comprehend its import. See Merriam-Webster, supra, at pp. 887 and 2554. Indeed, our own statutes make frequent use of the word 'force.' The crime of rape consists of compelling a female to submit by 'force.' Section 18--3--401, C.R.S. 1973. Likewise, robbery is defined as the taking of anything of value from the person or presence of another by 'use of

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force.' Section 18--4--301, C.R.S.1973. Further, courts in other jurisdictions have affirmed convictions on the basis of statutes making reference to 'force and violence' or 'force or violence,' where these terms were not statutorily defined. See, e.g., Gillotti v. State, 135 Wis. 634, 116 N.W. 252; Spencer v. United States, 73 D.C.App. 98, 116 F.2d 801.

Defendants finally contend that the time computation provision of the statute is too vague. And...