State v. Cialkowski, 39691

• Decision Date: 27 March 1975
• Docket Number: No. 39691,39691
• Citation: 227 N.W.2d 406,193 Neb. 372
• Parties: STATE of Nebraska, Appellant, v. Edward Marion CIALKOWSKI a/k/a Edward Marion Hall, Appellee.
• Court: Nebraska Supreme Court

Page 406

227 N.W.2d 406

193 Neb. 372

STATE of Nebraska, Appellant, v. Edward Marion CIALKOWSKI a/k/a Edward Marion Hall, Appellee.

No. 39691.

Supreme Court of Nebraska.

March 27, 1975.

Syllabus by the Court

Section 28--477, R.S.Supp., 1974, is not unconstitutional on the ground that it is vague and indefinite.

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

William G. Line, of Kerrigan, Line, Martin & Hanson, Fremont, for appellee.

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

NEWTON, Justice.

Defendant was charged with contributing to the delinquency of two minor girls. He persuaded them to enter a dancing contest in a place akin to a roadhouse and during the dances to bare breasts and/or buttocks. Following conviction, a motion for new trial was sustained and the case dismissed on the ground that the statutes violates were void because they were vague and indefinite. We reverse the judgment of the District Court.

Section 28--477, R.S.Supp., 1974 provides: 'Any person who by any act, encourages, causes, or contributes to the delinquency, neglect, or need for special supervision, of a child under eighteen years of age, so that such child becomes, or, will tend to become, a delinquent or neglected child, or a child in need of special supervision as defined by section 43--201, shall be deemed guilty of a misdemeanor.' Section 43--201, R.R.S.1943, provides: '(5) A child in need of special supervision shall mean any child under the age of eighteen years * * * (c) who deports himself so as to injure or endanger seriously the morals or health of himself or others; * * *.'

These statutes are intended for the protection of children. Being children they are not yet capable of mature judgment and require the protection of society. It is true that the terms of the statutes are somewhat broad, yet it is practically impossible to draw them with greater specificity and still adequately protect the young. The ways in which a child may be influenced to become delinquent or immoral are multitudinous and often difficult to anticipate. In Commonwealth v. Randall, 183 Pa.Super. 603, 133 A.2d 276, may be found appropriate language. 'The comprehensive words of the statute, 'Whoever, being of the age of twenty-one years and upwards, by any act corrupts or tends to corrupt the morals of any child under the age of eighteen years' certainly convey concrete impressions to the ordinary person. The common sense of the community, as well as the sense of decency, propriety and the morality which most people entertain is sufficient to apply the statute to each particular case, and to individuate what particular conduct is rendered criminal by it.

'It is obvious that the mandates of the statute are salutary measures designed to protect children. 'The ways and means by which the venal mind may corrupt and debauch the youth of our land, both male and female, are so multitudinous that to compel a complete enumeration in any statute designed for protection of the young before giving it validity would be to confess the inability of modern society to cope with the problem of juvenile delinquency.' * * *

'The highest court in the land has recognized that the 'Use of common experience as a glossary is necessary to meet the practical demands of legislation' and that the 'requirement of reasonable certainty does not preclude the use of ordinary terms to express ideas which find adequate interpretation in common usage and understanding.' Sproles v. Binford, 286 U.S. 374, 393, 52 S.Ct. 581, 587, 76 L.Ed. 1167.'

Statutes practically identical with ours were upheld against similar attacks in Brockmueller v. State, 86 Ariz. 82, 340 P.2d 992; State v. McKinley, 53 N.M. 106, 202 P.2d 964; Jung v. State, 55 Wis.2d 714, 201 N.W.2d 58. In numerous instances statutes which simply forbid acts tending to cause child delinquency have been upheld as sufficiently specific. See, State v. Coterel, 97 Ohio App. 48, 123 N.E.2d 438; State v. Sparrow, 276 N.C. 499, 173 S.E.2d 897, which states: "Even so, impossible standards of statutory clarity are not required by the constitution. When the language of a statute provides an adequate warning as to the conduct it condemns and prescribes boundaries sufficiently distinct for judges and juries to interpret and administer it uniformly, constitutional requirements are fully met. United States v. Petrillo, 332 U.S. 1, 67 S.Ct. 1538, 91 L.Ed. 1877.'; McDonald v. Kentucky (Ky.App.), 331 S.W.2d 716; State v. Barone (Fla.), 124 So.2d 490; State v. Montalbo, 33 N.J.Super. 462, 110 A.2d 572; and People v. Bergerson, 17 N.Y.2d 398, 271 N.Y.S. 236, 218 N.E.2d 288, wherein it is stated: 'The test to be applied was recently stated by this court: 'The test is whether a reasonable man subject to the statute would be informed of the nature of the offense prohibited and what is required of him. Such warning must be unequivocal but this requirement does not preclude the use of ordinary terms to express ideas which find adequate interpretation in common usage and understanding.''

We are unable to agree that the statutes are unconstitutional. See State v. Simants, 182 Neb. 491, 155 N.W.2d 788. The judgment of the District Court is reversed and the cause remanded.

Reversed and remanded.

McCOWN, Justice (dissenting).

The memorandum opinion of the District Court states that 'The State did not maintain in County Court or on appeal that the defendant was guilty of such conduct as would tend to encourage a child to commit a crime. * * * Counsel have failed to point out to me any criminal activity the child would have engaged in and they concede there was none.' The opinion also states that the statutes involved are subsections (3)(e) and (5)(c) of section 43--201, R.R.S.1943. Subsection (3)(e) defines a neglected child as one 'who is in a situation or engages in an occupation dangerous to life or limb or injurious to the health or morals of such child;'. Subsection (5)(c) defines a child in need of special supervision as one 'who deports himself so as to injure or endanger seriously the morals or health of himself or others;'.

No question of health is involved and the statutes must be interpreted and applied to acts which are not criminal under any other law of the state or any city or village ordinance. The acts here can only be said to be criminal because they are either injurious to the morals of the child involved or injure or endanger seriously the morals of the child or others. Only concepts of morality are involved, and the statutes apply them to completely undefined and unspecified acts and conduct.

The District Court relied upon the authority of Gesicki v. Oswald, 336 F.Supp. 371 (So.Dist.N.Y., 1971), affirmed 406 U.S. 913, 92 S.Ct. 1773, 32 L.Ed.2d 113 (1972). In that case the New York 'wayward minor' law was involved. The particular language defined a wayward minor as one who '(is) morally depraved or is in danger of becoming morally depraved.' Judge Kaufman, speaking for a three-judge federal court, found the statute unconstitutional for vagueness. Quotation from that opinion is appropriate here. The court said: 'It is clear to us that the terms 'morally depraved' and 'in danger of becoming morally depraved' fall far beyond the bounds of permissible ambiquity in a standard defining a criminal act. Indeed, a penal statute purporting to outlaw 'evil,' as these criteria essentially do, is a paradigm of a statute 'so vague that men of common intelligence must necessarily guess at its meaning and differ as...