People v. McCaughan

Citation49 Cal.2d 409,317 P.2d 974
Decision Date19 November 1957
Docket NumberCr. 6050
CourtUnited States State Supreme Court (California)
PartiesThe PEOPLE of the State of California, Plaintiff and Respondent, v. Velva Irene McCAUGHAN, Defendant and Appellant.

Sutter & Carter and Douglas M. Sutter, Modesto, for appellant.

Edmund G. Brown, Atty. Gen., Doris H. Maier and John Fourt, Deputy Atys. Gen., for respondent.

TRAYNOR, Justice.

A jury found defendant guilty of involuntary manslaughter (Pen.Code, § 192, subd. 2), and the court denied her motion for a new trial. Judgment was suspended, and defendant was admitted to probation for a term of three years on the condition that she serve one year in a county detention facility. Defendant appeals.

Defendant was a psychiatric technician at the state hospital in Modesto in charge of a ward of fifty mental patients. One of the patients in defendant's ward was Grace Belill, a 71 year old woman suffering from involutional psychosis, a mental condition that commonly causes a patient to refuse to eat. On October 12, 1955, a doctor at the hospital noted in Miss Belill's record that if necessary she was to be spoon red. On October 14, 1955, at the noon meal, Miss Belill was not eating, and defendant spoon fed her. During the feeding the patient collapsed and shortly thereafter died. The cause of death was asphyxiation from the aspiration of stomach contents.

The gravamen of the charge against defendant is that she used improper methods and excessive force in spoon feeding the decedent. The People sought to prove that defendant's conduct constituted either criminal negligence or a misdemeanor and that the misdemeanor consisted of a violation of either section 242 (battery) or section 361 (treatment of insane persons) of the Penal Code. The jury was given instructions appropriate to each of the People's theories, including an instruction in the statutory language of section 361, and returned a general verdict of guilty.

Defendant contends that the provisions of section 361 are so vague and uncertain that her conviction thereunder is a denial of due process of law. '(A) statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential od due process of law.' Connally v. General Const. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322; Lanzetta v. State of New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 83 L.Ed. 888; In re Peppers, 189 Cal. 682, 685-687, 209 P. 896. A statute must be definite enough to provide a standard of conduct for those whose activities are proscribed as well as a standard for the ascertainment of guilt by the courts called upon to apply it. Winters v. People of State of New York, 333 U.S. 507, 515-516, 68 S.Ct. 665, 92 L.Ed. 840; In re Peppers, supra, 189 Cal. at pages 685-687, 209 P. at pages 897-898; People v. Building Maintenance Contractors' Ass'n, 41 Cal.2d 719, 725, 264 P.2d 31; People v. Saad, 105 Cal.App.2d Supp. 851, 854, 234 P.2d 785. A statute will be upheld if its terms may be made reasonably certain by reference to the common law (see Connally v. General Const. Co., supra, 269 U.S. at page 391, 46 S.Ct. at page 127; Lorenson v. Superior Court, 35 Cal.2d 49, 60, 216 P.2d 859) or to its legislative history or purpose. See Connally v. General Const. Co., supra, 269 U.S. at pages 391-392, 46 S.Ct. at pages 127-128; People v. King, 115 Cal.App.2d Supp. 875, 878, 252 P.2d 78. A statute will likewise be upheld, despite the fact that the acts it prohibits are defined in vague terms, if it requires an adequately defined specific intent. See People v. Building Maintenance Contractors' Ass'n, supra, 41 Cal.2d at page 724, 264 P.2d at page 35, and cases cited. A court, however, may not create a standard (Lanzetta v. State of New Jersey, supra, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888; Connally v. General Const. Co., supra, 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322), and a specific intent defined in the same vague terms as those defining the prohibited acts does not make a statute acceptably definite.

Section 361 provides: 'Every person guilty of any harsh, cruel, or unkind treatment of, or any neglect of duty towards, any idiot, lunatic, or insane person, is guilty of a misdemeanor.' The phrase 'neglect of duty' has an accepted legal meaning. It means an intentional or grossly negligent failure to exercise due diligence in the performance of a known official duty. See Rapaport v. Civil Service Commission, 134 Cal.App. 319, 323-324, 25 P.2d 265; M. F. Kemper Const. Co. v. City of Los Angeles, 37 Cal.2d 696, 702, 235 P.2d 7; People ex rel. Finigan v. Perkins, 85 Cal. 509, 511, 26 P. 245; Reinhard v. Lawrence Warehouse Co., 41 Cal.App.2d 741, 747, 107 P.2d 501. The word 'cruel' has a commonly accepted meaning. It means '(d)isposed to give pain to others; willing or pleased to hurt or afflict. * * *' (Webster's New International Dictionary, 2d ed., unabridged.) 'Cruel treatment' as used in a criminal statute has been defined to mean the intentional infliction of pain for the mere purpose of causing pain or indulging vindictive passions. Commonwealth v. Lufkin, 7 Allen 579, 581, 89 Mass. 579, 581. It appears, therefore, that if section 361 were limited to the punishment of cruel treatment of, or neglect of duty towards insane persons, it would not be unconstitutionally vague. Defendant, however, directs her attack at the terms 'harsh' treatment and 'unkind' treatment. Webster's New International Dictionary, Second Edition, Unabridged, defines 'harsh' as '1. Offensive to sense as being coarse, rough, grating, discordant, astringent. * * * 2. Offensive to the sensibilities; disagreeable to one's feeling of aesthetic or intellectual propriety. * * * 3. Of persons or things, offensive to a sense of justice or kindness; unfeeling, severe, cruel, unduly rigorous. * * * 4. Offensive to the physical feelings; roughly unpleasant; causing physical discomfort. * * *' The same authority defines 'unkind' as '(n)ot kind, esp., wanting in kindness, sympathy, or the like; hence, cruel; harsh.' It is apparent from the mere recitation of the meanings ascribed to 'harsh' and 'unkind,' most of them indefinite themselves, that men of common intelligence must necessarily guess at the meaning of these words as used in the statute and that they will differ as to their application in a specific situation. The words in question have no established common law meaning. Nor have they any adjudicated meaning. Although section 361 has been in the Penal Code since its adoption in 1872, and although the New York statute (New York Penal Code (1864), § 425), which served as the model for our code section (Rev.Laws of the State of California (1871), vol. IV, § 361, Code Commission note), contains identical language, the terms 'harsh' treatment and 'unkind' treatment have never been construed by an appellate court either in New York or in this state. Referring to the purpose of the statute to protect insane persons, the attorney general contends that, like 'cruel' treatment, the terms 'harsh' treatment and 'unkind' treatment should be limited to mean treatment likely to cause physical harm or pain. We find nothing in the statute, however, indicating that protection was meant to be limited to protection against physical harm or pain. Indeed, the use of the words 'harsh' and 'unkind' in addition to the word 'cruel' indicates that protection was not meant to be so limited.

The trial court correctly interpreted section 361 as requiring a specific intent (see People v. Vogel, 46 Cal.2d 798, 801, 299 P.2d 850; People v. Stuart, 47 Cal.2d 167, 173, 302 P.2d 5) and instructed the jury that to convict defendant under that section they must find that she treated the decedent '* * * with an intent to be harsh, cruel or unkind * * * or with intent to neglect her.' The requirement that defendant must have acted with an intent to be harsh or unkind, however, does not make clear what those words mean.

We conclude that the words 'harsh' and 'unkind' do not provide an ascertainable standard of conduct or a workable standard of guilt and that insofar as it purports, without further definition, to make 'harsh' treatment and 'unkind' treatment criminal offenses, section 361 of the Penal Code is void for vagueness. The court's instruction relating to section 361, given in the language of the statute, was therefore erroneous, and in view of the conflicting evidence as to the nature of defendant's acts and the general verdict the error must be deemed prejudicial. Oettinger v. Stewart, 24 Cal.2d 133, 140, 148 P.2d 19, 156 A.L.R. 1221; Huebotter v. Follett, 27 Cal.2d 765, 771, 167 P.2d 193; Clement v. State Reclamation Board, 35 Cal.2d 628, 643-644, 220 P.2d 897; Screws v. United States, 325 U.S. 91, 106-107, 65 S.Ct. 1031, 89 L.Ed. 1495. The orders appealed from must, therefore, be reversed. Since the reversal may result in a new trial, however, it is necessary to determine whether section 361 is valid in part and to consider several other alleged errors. Code Civ.Proc. § 53.

The fact that a statute is unconstitutional in part does not necessarily invalidate the entire statute. The remaining parts of the statute may be preserved if they can be separated from the unconstitutional part without destroying the statutory scheme or purpose. Danskin v. San Diego Unified School Dist., 28 Cal.2d 536, 555, 171 P.2d 885; Ex parte Gerino, 143 Cal. 412, 420, 77 P. 166, 66 L.R.A. 249. The unconstitutional provisions relating to 'harsh' and 'unkind' treatment are severable from the constitutional provisions relating to 'cruel' treatment and 'neglect of duty' and do not vitiate the whole statute. Since the dominant purpose of the statute to protect insane persons can be effected by the elimination of the severable unconstitutional provisions, the constitutional provisions may stand alone and remain in force....

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