State v. Adkins, s. 40309 and 40310

• Decision Date: 05 May 1976
• Docket Number: Nos. 40309 and 40310,s. 40309 and 40310
• Citation: 196 Neb. 76,241 N.W.2d 655
• Parties: STATE of Nebraska, Appellant, v. James E. ADKINS, Appellee. STATE of Nebraska, Appellant, v. Daniel J. SUTHERLAND, Appellee.
• Court: Nebraska Supreme Court

Page 655

241 N.W.2d 655

196 Neb. 76

STATE of Nebraska, Appellant, v. James E. ADKINS, Appellee.

STATE of Nebraska, Appellant, v. Daniel J. SUTHERLAND, Appellee.

Nos. 40309 and 40310.

Supreme Court of Nebraska.

May 5, 1976.

Syllabus by the Court

1. Section 28--4,127, R.S.Supp., 1974, which provides that '(1) It shall be unlawful for any person: * * * (g) To visit or be in any room, dwelling house, vehicle, or place where any controlled substance is being used contrary to the provisions of sections 28--459 and 28--4,115 to 28--4,142, if the person has knowledge that such activity is occurring; * * *' is unconstitutionally vague and overbroad.

2. It is a fundamental requirement of due process of law that a criminal statute be reasonably clear and definite. 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.

3. The test to determine whether a statute defining an offense is void for uncertainty (1) is whether the language may apply not only to a particular act about which there can be little or no difference of opinion, but equally to other acts about which there may be radical differences, thereby devolving on the court the exercise of arbitrary power of discriminating between the several classes of acts, and (2) the dividing line between what is lawful and what is unlawful cannot be left to conjecture.

4. It is not permissible to enact a law which, in effect, spreads an all-inclusive net for the feet of everybody upon the chance that, while the innocent will surely be entangled in its meshes, some wrongdoers also may be caught.

5. It is not the court's duty, nor within its province, especially in the absence of any evidence of legislative intent, to read a meaning into a statute that is not warranted by the legislative language.

Raymond E. Baker, County Atty., Douglas R. Milbourn, Deputy County Atty., Columbus, for appellant.

Mark M. Sipple, Walker, Luckey, Whitehead & Sipple, Charles H. Rogers, Columbus, for appellee Adkins.

R. Steven Geshell, Robak & Geshell, Columbus, for appellee Sutherland.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON and BRODKEY, JJ.

BRODKEY, Justice.

The county attorney of Platte County has brought consolidated error proceedings pursuant to sections 29--2315.01 to 29--2316, R.R.S.1943, to test the constitutionality of subsection (1)(g) of section 28--4,127, R.S.Supp., 1974, as contained in the Nebraska Controlled Substances Act. That portion of the statute reads as follows: '(1) It shall be unlawful for any person: * * * (g) To visit or to be in any room, dwelling house, vehicle, or place where any controlled substance is being used contrary to the provisions of sections 28--459 and 28--4,115 to 28--4,142, if the person has knowledge that such activity is occurring; * * *.' The numbered sections referred to in subsection (1)(g) constitute the entire Nebraska Controlled Substances Act, and a violation of subsection (1)(g) is a misdemeanor.

Neither subsection (1)(g), above quoted, nor any equivalent thereof, appears in the Uniform Controlled Substances Act which was approved by the National Conference of Commissioners on Uniform State Laws in 1970. See 9 Uniform Laws Annotated (Master Ed.), 145, and particulparly section 402, pp. 298, 299, and 301. Nor does that language, or its equivalent, appear in the present federal Drug Abuse Prevention and Control Laws. Title 21 U.S.C.A., s. 801, et seq. A review of the legislative history of Laws 1971, L.B. 326, the Nebraska Controlled Substances Act, is of no assistance in determining the reason for the Nebraska Legislature including the language contained in subsection (1)(g), as there is no discussion of that particular subsection in the record of the committee hearings or of the floor debates. Therefore, our decision as to the constitutionality of subsection (1)(g) will be determined strictly upon the merits of the statute itself, and not upon the intention of the Legislature in enacting the provision.

The factual background of these cases, as reflected by the record, is meager. Appellees, James E. Adkins and Daniel J. Sutherland, were each charged in the county court of Platte County, in separate cases, with being present where controlled substances were being used, in violation of section 28--4,127(1) (g). The separate complaints charged that on or about February 20, 1975, in Platte County, Nebraska, each of them was unlawfully present in the same 1968 Chevrolet automobile in which controlled substances were being used, each of them knowing full well that such activity was occurring. It appears that both individuals, and certain casual acquaintances, were present in the same automobile at the same time and occasion, and under the same circumstances.

Prior to trial, counsel for each appellee moved for a dismissal of the charges, claiming that the statute was unconstitutionally vague and overbroad on its face in contravention of the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution, and sections 1, 3, and 5 of Article I of the Nebraska Constitution. The county court sustained each motion, quashed the complaints, and dismissed the actions. The Platte County attorney appealed to the District Court for Platte County, which affirmed the ruling of the county court and held that section 28--4,127(1)(g) was unconstitutionally vague and overbroad on its face. The cases were consolidated for purposes of appeal, and the Platte County attorney brought error proceedings to this court from the District Court's order dismissing and quashing the complaints and affirming the county court's ruling. The appellees had not been in jeopardy. We affirm the judgment of the District Court.

The crux of appellees' argument that the statute under consideration is unconstitutionally vague and overbroad is that it encompasses within its express language what may essentially be innocent conduct.

Under the express terms of section 28--4,127(1)(g) only three things are necessary to constitute a crime. A person need only (1) be in a place, (2) where a violation of the Controlled Substances Act is being committed, and (3) with knowledge that such activity is occurring. It is evident that the statute as written is broad enough to encompass entirely innocent behavior. Individuals may find themselves in situations such as at parties, theaters, dance halls, hotel lobbies, buses, apartments, taxis, or even in private automobiles, where their conduct has no relation to the acts of others who may be disposed to use controlled drugs. In such situations, must they either immediately leave because of fear of prosecution under the statute under consideration; or perhaps force the others to discontinue the use of the controlled substance; or perhaps have the others arrested. Must a host expel his guest if he discovers the guest is in possession of or using a controlled substance?

Could a college student be convicted under the statute if he merely continued to reside with a roommate whom he knew illegally possessed marijuana? What action would a passenger in a car take when he learns that others in the car have drugs on their persons although they are not at that time using the drugs? Must the passenger demand that he be let out of the car or that the others dispose of anything illegal in their pockets? How about the status of relatives, priests, or doctors attempting to discourage containued violations? What if a person were engaged in a constitutionally protected activity, such as attending a public meeting or voting, when he inadvertently discovers that another person at the meeting or at the polls is in possession of a controlled substance? All the above situations would appear to be covered by the express language of the statute itself, and would result in the imposition of criminal liability upon a person merely because of his or her presence at the scene of the offense with knowledge that such illegal activity was taking place. We do not believe the Legislature intended to make such innocent conduct criminal, and yet by virtue of the overbreadth of the language used, as commonly understood, criminal liability might well result.

There are certain well-established rules for the interpretation of criminal statutes which are applicable in the present case. The general rule as to vagueness is well summarized in State v. Adams, 180 Neb. 542, 143 N.W.2d 920 (1966), where this court stated: 'It is a fundamental requirement of due process of law that a criminal statute be reasonably clear and definite. Markham v. Brainard, 178 Neb. 544, 134 N.W.2d 84. 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. State v. Nelson, 168 Neb. 394, 95 N.W.2d 678. The dividing line between what is lawful and unlawful cannot be left to conjecture.'

A penal statute creating an 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. Any statute which forbids 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. State v. Adams, supra, citing Connally v. General Constr. Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322; State v. Nelson, 168 Neb. 394, 95 N.W.2d 678; State v. Pocras, 166 Neb. 642, 90 N.W.2d 263; State ex rel. English v. Ruback, 135 Neb. 335, 281 N.W. 607. Other cases stating the same rule, with minor variations, are Markham v. Brainard, 178 Neb. 544, 134 N.W.2d 84 (1965); Heywood v....