State v. Defrances

• Decision Date: 10 October 1977
• Docket Number: No. 59846,59846
• Citation: 351 So.2d 133
• Parties: STATE of Louisiana v. John DEFRANCES.
• Court: Louisiana Supreme Court

Page 133

351 So.2d 133

STATE of Louisiana v. John DEFRANCES.

No. 59846.

Supreme Court of Louisiana.

Oct. 10, 1977.

Sam N. Gregorio, Gregorio & Frazier, Shreveport, for defendant-relator.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Henry N. Brown, Jr., Dist. Atty., James M. Bullers, Asst. Dist. Atty., 26th Jud. Dist., Bossier and Webster Parishes, for plaintiff-respondent.

DIXON, Justice.

This case involves a challenge of the constitutionality of R.S. 14:104, keeping a disorderly place, based on the contention that the statute is void-for-vagueness.

Two indictments were filed against John Defrances both charging violation of R.S. 14:104. The indictments stemmed from an investigation which, the State contends, produced evidence of B-drinking and lewd dancing in two lounges located in Bossier City, Louisiana. Defendant filed motions to quash the indictments alleging the failure to properly indict, the failure to state essential facts constituting the offense charged, and the unconstitutional vagueness of R.S. 14:104. The trial judge granted the motion to quash based on the allegation that the indictment failed to conform to C.Cr.P. 464 because it merely stated a conclusion of law without setting forth the essential facts constituting the offense, and ordered the State to so amend the indictment. The other two motions were denied. Application for writ of certiorari was granted by this court. State v. Defrances, 346 So.2d 214 (La.1977).

Defendant contends that R.S. 14:104, insofar as it makes criminal maintaining a place to be used habitually for "any immoral sexual purpose" is unconstitutionally vague.

R.S. 14:104 provides in part:

"Keeping a disorderly place is the intentional maintaining of a place to be used habitually for any illegal purpose or for any immoral sexual purpose."

R.S. 14:104 was amended to its current form in 1948 after this court's decision in State v. Truby, 211 La. 178, 29 So.2d 758 (1947), declaring unconstitutional that part of R.S. 14:104 which defined the crime of keeping a disorderly place as the "intentional maintaining of a place to be used habitually for any illegal or immoral purpose." The court held that the words "immoral purpose" were vague, indefinite and uncertain, recognizing that it left to the courts the determination of its meaning in any given case, which determination could vary from locality to locality.

In response to Truby, the statute was amended by substituting for the words "for any illegal or immoral purpose" the words "for any illegal purpose or for any immoral sexual purpose" (emphasis added). The effect of the addition of this language in more clearly defining the prohibited conduct has not heretofore been determined.

The United States Supreme Court has enunciated values out of which the void-for-vagueness doctrine, based upon the due process clause of the Fourteenth Amendment to the United States Constitution, arose:

"It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related where a vague statute 'abut(s) upon sensitive areas of basic First Amendment freedoms,' it 'operates to inhibit the exercise of (those) freedoms.' Uncertain meanings inevitably lead citizens to 'steer far wider of the unlawful zone' . . . than if the boundaries of the forbidden areas were clearly marked." Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222, 227-28 (1972). (Footnotes omitted).

The same protection is provided an accused under Article 1, § 13 of the Louisiana Constitution, which states that "(i)n a criminal prosecution, an accused shall be informed of the nature and cause of the accusation against him." Jurisprudence has recognized that " . . . this guarantee requires that penal statutes describe the unlawful conduct with sufficient particularity and clarity such that ordinary men of reasonable intelligence are capable of discerning its meaning and conforming their conduct thereto." State v. Lindsey, 310 So.2d 89, 90 (La.1975). See also Connick v. Lucky Pierre's, 331 So.2d 431, 434 (La.1976).

The State contends that the words "any immoral sexual purpose" sufficiently defines the prohibited conduct, and in oral argument before this court asserted that there is a general understanding of the meaning of these words.

We do not agree that the phrase "immoral sexual purpose" has a generally accepted meaning such that a person of ordinary intelligence would be given fair notice of what conduct is forbidden,¹ or that "sexual" has sufficiently delimited the word "immoral" so as to pass constitutional muster.

Louisiana, in adopting a mode of statutory construction, has struck a middle ground between strict and liberal constructionism. R.S. 14:3, regarding interpretation, provides:

"The articles of this Code cannot be extended by analogy so as to create crimes not provided for herein; however, in order to promote justice and to effect the objects of the law, all of its provisions shall be given a genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision."

Twenty-nine years ago, at the time R.S. 14:104 was amended, what was considered "sexually immoral" perhaps had a generally accepted meaning to the population as a whole. However, with the passage of time, and an increasingly more liberal sexual standard, what may have been considered to fall clearly within the scope of sexually immoral conduct may no longer be interpreted as such by a substantial segment of the population. For example, an embrace between young lovers in public may have been "sexually immoral" and shocking to many almost thirty years ago, but today it would hardly cause a raised eyebrow. Forty years ago ballroom dancing was prohibited as "immoral" at any college function by the trustees of Centenary College, just across the river from defendant's establishment. Sexual mores change with the times, and achieving a consensus of meaning becomes exceedingly more difficult.

Thus a court today, in applying 14:104, is put in the position of having to determine for itself the standard of guilt in a given situation. This clearly goes beyond giving a statute its "genuine construction" but enters the area of creating crimes that are not specifically provided for by statute and infringing on what is reserved as a legislative function.

When the Louisiana Criminal Code was enacted in 1942, and after the 1948 amendment, R.S. 14:104, keeping a disorderly place, and 14:105, letting a disorderly place, appeared to be intended as a prohibition against the keeping or letting of what were commonly known as "bawdy houses," or houses of prostitution. If there still are such places, it is clear that they would be covered by the language "immoral sexual purposes." The danger lies in the potential of this language encompassing certain activity that most would agree is generally not considered to constitute criminal activity. For example, the owners of certain establishments are not informed by 14:104's language as to whether the following activity is prohibited: (1) owners of "swinging singles" apartment complexes; (2) owners of places where sparsely-clad "go go dancers" perform; (3) apartment building owners who rent to unmarried couples who cohabit; (4) owners of bars and lounges that provide comfortable surroundings to accommodate patrons "making out;" (5) owners of bars and lounges where customers engage in the current dance crazes, such as "the bump" which is suggestive of sexual intercourse. The foregoing activity, which might annoy some and shock others, could hardly have been what the legislature had in mind when it was aiming to control the proliferation of bawdy houses. Nevertheless, some law enforcement personnel could construe this conduct as "sexually immoral" and subject otherwise innocent individuals to criminal prosecution. Leaving the definition function to the courts tends to promote the kind of arbitrary and discriminatory enforcement the due process clause sought to protect against. A person of ordinary intelligence must be better informed than he is at present under R.S. 14:104 of conduct which crosses the line from non-criminal to criminal; it is a legislative function to draw the line distinctly.

Reference to statutes in other jurisdictions is helpful to show that the conduct sought to be prohibited may be expressed in clearer, more narrowly drawn language so as to conform to constitutional standards.² (Broad language is not in itself vague, particularly where it is clear that the legislature intended to make criminal all acts of a certain kind. See the comprehensive theft (R.S. 14:67) and gambling articles (R.S. 14:90) which make criminal all unauthorized takings of the property of another, and all...