State v. Bowling

• Decision Date: 16 May 1967
• Docket Number: No. 2,CA-CR,2
• Citation: 427 P.2d 928,5 Ariz.App. 436
• Parties: The STATE of Arizona, Appellee, v. Sandy BOWLING, and Harold Cook, Appellants. 79.
• Court: Arizona Court of Appeals

Page 928

427 P.2d 928

5 Ariz.App. 436

The STATE of Arizona, Appellee, v. Sandy BOWLING, and Harold Cook, Appellants.

No. 2 CA-CR 79.

Court of Appeals of Arizona.

May 16, 1967.

Rehearing Denied June 12, 1967.

Review Denied Sept. 21, 1967.

Darrell F. Smith, Atty. Gen., Carl Waag and Jordan Green, Asst. Attys. Gen., Phoenix, William J. Schafer, III, County Atty., Pima County, Tucson, for appellee.

Lawrence P. D'Antonio, Tucson, for appellant Bowling.

Joseph H. Soble, Tucson, for appellant Cook.

MOLLOY, Judge.

The defendants in this action appeal from convictions upon two counts of an indictment rendered against them by a grand jury. Both were charged in count one of this indictment with conspiracy to commit an act '* * * injurious to the public morals or unlawfully perverting or obstructing justice or due administration of the laws * * *' and in count two of receiving a bribe, while a member of the Arizona State Legislature, '* * * upon an understanding that their official opinions, judgments and actions should be influenced thereby * * *'.

The facts giving rise to these charges are substantially without dispute. A resident of Pima county by the name of Jerry Hanson, the co-proprietor of a tavern, was desirous of obtaining a new liquor license for his business, which would permit the sale of additional types of liquor. ¹ He had a conversation with Bowling, one of the defendants, who was at the time a member of the House of Representatives of the Arizona State Legislature, about assistance in obtaining such license. Bowling informed Hanson that he might be able to assist him, and arranged a meeting between Hanson, himself, and the other defendant, Cook, who was also a member of the Arizona House of Representatives. Hanson testified that Cook was introduced to him only as a legislator, while Bowling testified that Cook was introduced as a real estate broker. At this meeting, Hanson was informed that it would cost approximately $5,000 for the license over and above regular license fees and at a subsequent meeting, it was agreed that Hanson would pay $4,200, over and above the normal license fees, if the liquor license was obtained for him.

An application for such a license was duly submitted and a personal conference with Mr. John Duncan, Superintendent of Liquor Licenses and Control for the State of Arizona, followed, with Hanson, Bowling and Cook all speaking in behalf of the issuance of the license. The statements made in support of issuing the license were in the nature of character references for Hanson and his father, who was a partner in the tavern, and included the argument that such a license was needed because two families were to be supported from this one business. There was no showing in the evidence of any inducements being offered to Mr. Duncan to issue the license nor of any improper persuasions advanced. The testimony is undisputed that Hanson was fully qualified under applicable law for the issuance of the license and that the location as to which the license application pertained fulfilled all of the legal requirements for such a license. ²

About a month after the conversation with Duncan, Cook contacted Hanson to inform him that the license had been issued, and Cook together with Bowling, brought the license to Hanson's home, where Hanson gave them $4,200 in cash. Bowling testified that all of this money was received and retained by Cook; Cook did not take the stand during the trial.

Numerous questions are raised on appeal, but it is our judgment that this proceeding must be disposed of on the basis of the contention that the trial court erred in refusing to direct a verdict of acquittal at the close of the State's case as to both counts of the indictment.

Count one of the indictment charges a crime under A.R.S. § 13--331. This statute, insofar as pertinent here, reads as follows:

'A. It is unlawful for two or more persons to conspire to:

'5. Commit any act injurious to the public health or public morals.

'6. Pervert or obstruct justice or due administration of laws.

'B. A person who violates any provision of this section shall be punished by imprisonment in the state prison for not to exceed one year, or by a fine not exceeding one thousand dollars.

'C. No conspiracies other than those enumerated in this section are punishable criminally.'

From this statute, the following language was selected to charge that the defendants: '* * * did unlawfully conspire with each other to obtain a Series No. 6 Arizona State Liquor License for one JERRY HANSON from JOHN A. DUNCAN, the Superintendent of the Arizona State Department of Liquor Licenses and Control, * * * ³ such act being injurious to the ⁴ public morals or unlawfully perverting or obstructing justice or due administration of the laws * * *.'

Initially, the appellants challenge the language charged in the indictment--that they conspired to commit an act 'injurious to public morals'--on the grounds that it is unconstitutionally indefinite. In State v. Locks, 97 Ariz. 148, 397 P.2d 949 (1964), the Supreme Court of this state struck down as unconstitutionally vague a statute making it a misdemeanor to public an 'obscene or indecent picture.' In this decision our Supreme Court said:

'The law must be definite and certain so that the same standard of conduct may be applied by all persons affected. The dividing line between what is lawful and unlawful cannot be left to conjecture. The citizen cannot be held to answer charges based upon penal statutes, the mandates of which are so uncertain that they will admit to different constructions. The crime and the elements constituting it must be so clearly expressed that the ordinary person can intelligently choose in advance what course it is lawful for him to pursue.'

97 Ariz. at 150, 397 P.2d at 951.

In considering a Utah statute with similar wording, ⁵ the Supreme Court of the United States said:

'Standing by itself, it would seem to be warrant for conviction for agreement to do almost any act which a judge and jury might find at the moment contrary to his or its notions of what was good for health, morals, trade, commerce, justice or order.'

Musser v. State of Utah, 333 U.S. 95, 68 S.Ct. 397, 398, 92 L.Ed. 562 (1948).

The Supreme Court of the United States remanded the Musser case to the Utah Supreme Court to consider whether the language of this statute was unconstitutionally vague. The United States Supreme Court suggested that there was a possibility that under Utah statutory or case law the broad language of the statute might have been limited so as to give the required degree of specificity thereto.

The Supreme Court of Utah, however, was unable to point to any limitations upon the subject language and came to the conclusion that this statute, making it a crime to conspire to commit an act '* * * injurious * * * to public morals * * *' was unconstitutional:

'No language in this or any other statute of this state or other law thereof or any historical fact or surrounding circumstance connected with the enactment of this statute has been pointed to as indicating that the legislature intended any limitation thereon other than that expressed on the face of the words used. We are therefore unable to place a construction on these words which limits their meaning beyond their general meaning. The conviction of the defendants thereunder cannot be upheld. This part of the statute is therefore void for vagueness and uncertainty under the Fourteenth Amendment to the Federal Constitution.'

State v. Musser, 118 Utah 537, 223 P.2d 193, 194 (1950).

Likewise, we know of no statutory or case law in this state which limits the broad sweep of that which is encompassed within the words '* * * injurious to * * * public morals * * *'. Common-law crimes have not survived in this state, and unless certain conduct is singled out by criminal statute, conduct is not a crime no matter how reprehensible. Goodman v. State, 96 Ariz. 139, 393 P.2d 148 (1964). We are aware that if a criminal statute refers by name to a common-law crime, the elements of that common-law crime may give sufficient definitiveness to statutory language. State v. Cota, 99 Ariz. 233, 408 P.2d 23 (1965). However, we know of no common-law crime which bears analogy to the committing of an act 'injurious to public morals.'

In our view, these key words are even more vague and indefinite than the language 'obscene or indecent,' which was struck down by our Supreme Court in State v. Locks, supra. We follow the specific holding of State v. Musser, supra, in declaring that this language is not sufficiently definite to satisfy due process requirements.

The State has contended that California, from whence our state adopted the statutory language under which these defendants were charged, ⁶ has upheld the statute as to constitutionality. The cases cited are: Lorenson v. Superior Court, 35 Cal.2d 49, 216 P.2d 859 (1950); People v. Sullivan, 113 Cal.App.2d 510, 248 P.2d 520 (1952); Calhoun v. Superior Court, 46 Cal.2d 18, 291 P.2d 474 (1955); and Davis v. Superior Court, 175 Cal.App.2d 8, 345 P.2d 513 (1959). An examination of these decisions, however, will disclose no reliance upon that portion of the statute pertaining to acts injurious to the 'public morals.' These decisions all lean upon the words 'to pervert or to obstruct justice or the due administration of the laws', as illustrated in the following language in Lorenson:

'Considering the well-settled meaning at common law of the words 'to pervert or obstruct justice, or the due administration of the laws', the other and more specific provisions in the Penal Code concerning 'Crimes Against Public Justice', and the relative certainty of words employed in statutes which have been held valid, it cannot be said that subsection 5 of section 182 of the Penal Code is unconstitutional.'

216 P.2d at 866.

In each of the four California cases, there was at least one specific criminal statute as to...