People v. Webb

• Decision Date: 15 December 1983
• Docket Number: Docket No. 63387
• Citation: 128 Mich.App. 721,341 N.W.2d 191
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Carol WEBB, Defendant-Appellee. PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Jacob SANDBERG, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 191

341 N.W.2d 191

128 Mich.App. 721

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Carol WEBB, Defendant-Appellee.

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Jacob SANDBERG, Defendant-Appellee.

Docket No. 63387.

Court of Appeals of Michigan.

Submitted Oct. 12, 1982.

Decided Sept. 14, 1983.

Rehearing Denied Dec. 2, 1983.

Released For Publication Dec. 15, 1983.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., L. Brooks Patterson, Pros. Atty., and Thomas S. Richards, Asst. Pros. Atty., for the People.

Curtis G. Rundell, II, P.C., Clawson (by Curtis G. Rundell, II, Clawson), for Carol Webb.

Stuart L. Young, Birmingham, for Jacob Sandberg.

Before HOLBROOK, P.J., and J.H. GILLIS and DODGE ^*, JJ.

PER CURIAM.

The people appeal, by leave granted, from a circuit court decision and order holding that the child torture statute, M.C.L. Sec. 750.136a; M.S.A. Sec. 28.331(1), is unconstitutionally vague.

Defendants were charged jointly with two counts of child cruelty, M.C.L. Sec. 750.136; M.S.A. Sec. 28.331, for their treatment of defendant Webb's two children, Trevor and Derek, and one count of torturing a child, M.C.L. Sec. 750.136a; M.S.A. Sec. 28.331(1), for their treatment of Derek. Following the preliminary examination, the district judge ordered both defendants bound over on the cruelty count pertaining to Derek, but refused to bind defendants over on the torture count, finding, in part, that the child torture statute is impermissibly vague. ¹

The people filed a claim of appeal in the circuit court challenging the district court's dismissal of the torture count. On February 5, 1982, the circuit court entered an opinion and order finding that the child torture statute is unconstitutionally vague.

On October 5, 1981, while the prosecutor's appeal was pending in the circuit court, defendant Sandberg pled guilty to child cruelty and was sentenced to five years probation, the first year to be served in the county jail. Defendant Webb is presently awaiting trial on the cruelty count.

The child cruelty statute, M.C.L. Sec. 750.136; M.S.A. Sec. 28.331, provides in part:

"Any parent or guardian or person under whose protection any child may be, who cruelly or unlawfully punishes, or wilfully, unlawfully or negligently deprives of necessary food, clothing or shelter, or who wilfully abandons a child under 16 years of age, or who habitually causes or permits the health of such child to be injured, his or her life endangered by exposure, want or other injury to his or her person, or causes or permits him or her to engage in any occupation that will be likely to endanger his or her health, or deprave his or her morals or who habitually permits him or her to frequent public places for the purpose of begging or receiving alms, or to frequent the company of or consort with reputed thieves or prostitutes, or by vicious training depraves the morals of such child, shall, upon conviction, be deemed guilty of a felony."

The child torture statute, M.C.L. Sec. 750.136a; M.S.A. Sec. 28.331(1) provides:

"Any parent or guardian or person under whose protection or control any child may be, who tortures such child, shall be guilty of a felony and may be punished by imprisonment for not more than 10 years."

A statute may be challenged for vagueness on three grounds: (1) it does not provide fair notice of the conduct proscribed; (2) it confers on the trier of fact unstructured and unlimited discretion to determine whether an offense has been committed; and (3) its coverage is overbroad and impinges on First Amendment freedoms. People v. Howell, 396 Mich. 16, 20, 238 N.W.2d 148 (1976). In the instant case, only the first and second grounds are cited.

The circuit court expressed two major concerns in striking down the statute. First, the court noted the varied and subjective meanings which may attach to the term "torture":

"Unlike the various degrees of the assault statutes, with their explicit and distinguishing elements, judges, juries, police and prosecuting attorneys are left to their own subjective judgment as to what constitutes the crime of torture. Such imprecision in a criminal statute must invalidate it." (Footnote omitted.)

Second, the court found that the statutory scheme fails to provide an adequate line of distinction between cruelty to a child and torture of a child.

In People v. Biegajski, 122 Mich.App. 215, 224-225, 332 N.W.2d 413 (1982), a panel of this Court rejected a vagueness challenge to the torture statute, stating:

"Defendant claims the child torture statute is violative of the first two prongs of the Howell test because the statute does not define the word 'torture'.

"The standard employed for ascertaining whether a criminal statute is void for vagueness was enunciated in Lanzetta v. New Jersey [306 U.S. 451, 453, 59 S.Ct. 618, 83 L.Ed. 888 (1939) ]:

" '[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 of due process of law.' "

The Court concluded that the word "torture" has a common and ordinary meaning, and that the statute would not cause people of common intelligence to speculate as to its meaning.

Where a statutory term is not defined in the statute, it is to be given its ordinary meaning. An examination of various dictionary definitions ² discloses that "torture" refers to the intentional infliction of intense or severe pain for various purposes such as sadistic pleasure, coercion and punishment. We interpret the child torture statute as requiring a showing that the defendant intentionally inflicted extreme, intense or severe pain or injury upon the victim. This high degree of pain or injury is an additional element which is not contained in the child cruelty statute. ³ Moreover, the fact that two criminal provisions punish the same conduct does not mean the statutes are unconstitutionally vague. So long as overlapping criminal provisions clearly define the conduct prohibited and the punishment authorized, the notice requirements of the due process clause are satisfied. United States v. Batchelder, 442 U.S. 114, 124, 99 S.Ct. 2198, 2204, 60 L.Ed.2d 755, 764 (1979).

We conclude that the term "torture" does have a commonly understood meaning which gives a person of ordinary intelligence fair notice that his contemplated conduct is forbidden. Batchelder, supra, 442 U.S. 123, 99 S.Ct. 2203-2204, 60 L.Ed.2d 764. The circuit court's order is reversed and the case is remanded to the district court for a determination of whether there is...