State v. Denis

• Decision Date: 25 April 1973
• Citation: 304 A.2d 377
• Parties: STATE of Maine v. Roger DENIS.
• Court: Maine Supreme Court

Page 377

304 A.2d 377

STATE of Maine v. Roger DENIS.

Supreme Judicial Court of Maine.

April 25, 1973.

Fernand LaRochelle, Asst. Atty. Gen., Crim. Div., Augusta, for plaintiff.

Fitzgerald & Donovan by Daniel R. Donovan, Bath, for defendant.

Before DUFRESNE, C. J., and WEBBER, WEATHERBEE, WERNICK and ARCHIBALD, JJ.

WERNICK, Justice.

By indictment returned in the Superior Court (York County) defendant, Roger Denis, was charged with having burned, on or about August 22, 1971, the dwelling house of

'. . . Norma Denis, located on Sand Pond in . . . Limington, Maine, property of the said Norma Denis.'

The indictment, as it appears in the record before us, bears the caption, 'Indictment for Violation of 17 M.R.S.A. Section 161 (Arson (First Degree)).' ¹

The defendant moved to dismiss the indictment (on grounds identified and discussed hereinafter). The presiding Justice denied the motion to dismiss. Upon motion of the aggrieved defendant, and in recognition that the matters covered by the interlocutory denial of the motion to dismiss 'ought to be determined by the Law Court before any further proceedings are taken . . .', the presiding Justice, pursuant to Rule 37A(b) M.R.Crim.P., ordered the case reported to this Court for appropriate resolution of the questions raised.

We accept as an additional facet of the case a statement offered by the presiding Justice to assist in a full delineation of the issues, as follows:

'. . . the parties have filed a written stipulation that on the date of the alleged offense the Norma Denis named in the indictment as the owner of the burned property was the wife of the defendant Roger Denis. Because of the complexity and expense of the trial of an arson case and to permit the resolution of the question of law raised by the defendant's motion to dismiss the court permitted the filing of said stipulation and will accept as a fact for the purposes of this motion to dismiss that Norma Denis named as the owner of the burned property in the indictment was at the time of the alleged offense the wife of the defendant Roger Denis.'

Defendant's motion to dismiss crystallizes as the questions to be decided:

(1) is 17 M.R.S.A. § 161 et seq. unconstitutionally vague in violation of the Fourteenth Amendment of the United States Constitution;

(2) if 17 M.R.S.A. § 161 et seq. is not unconstitutionally vague, is it of no effect in view of the wording of § 163;

(3) if 17 M.R.S.A. § 161 is the controlling section, was it a crime under that statute on August 22, 1971 for a husband to burn his own or his wife's property? ²

Addressing the first problem, we note that the 'vagueness' attributed to Section 161 arises not because of its provisions internally considered but only as taken in interrelationship with Section 163. Section 161 specifies that arson is of the 'first degree', punishable 'by imprisonment for not more than 20 years' if the property burned is (1) '. . . property of (the actor) himself or of another' and is (2)

'any dwelling house, mobile home or house trailer, . . ., or any kitchen, shop, barn, stable or other outhouse that is parcel thereof, or belonging to or adjoining thereto, . . ..'

Section 163 prescribes that arson exists in the 'third degree', punishable

'. . . by a fine of not more than $2,000 or by imprisonment for not more than 3 years, or by both' when the property burned is (1) '. . . the property of another person' and (2) is '. . . any personal or real property of whatsoever class or character, . . ..'

The bite of defendant's position is that since the property specification of Section 163-'any personal or real property of whatsoever class or character'-totally encompasses all property purportedly subjected to the greater penalty severity of Section 161, unconstitutional 'vagueness' exists in Section 161. The theory is that 'due process' is violated because the combined import of Sections 161 and 163 allows no rational basis by which, in advance of conduct, any person of ordinary intelligence can be adequately informed whether his actions will be subject to the more serious penalty under Section 161 or the less severe punishment under Section 163; and, therefore, the greater punishment provisions must be nullified as contrary to 'due process.'

The mere statement of this issue reveals that defendant misconceives the 'void for vagueness' doctrine.

Not only Section 161 but also Section 163, each taken within its own contours, is sufficiently clear in meaning, both facially and as each might have rational application to an expansive central core of conduct, to provide adequate prospective delimitation of the kind of human behavior subjected to State control for criminality-as persons of average intelligence may be expected to understand the English language. State v. Aucoin, Me., 278 A.2d 395 (1971); Knowlton v. State, Me., 257 A.2d 409 (1969); Coates v. City of Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971). In such context, that the legislature might have created an uncertainty because language used in the section imposing the lesser punishment seems to cover the same conduct described in another statutory section prescribing more serious punishment is insufficient to produce a framework to which the constitutional doctrine of 'void for vagueness' may be said to be reasonably applicable.

While lack of clarity and uncertainty are necessary ingredients of unconstitutionality for 'vagueness', not every ambiguity, uncertainty or imprecision of language in a statutory pattern eo ipso causes the constitutional 'void for vagueness' doctrine to become reasonably projected as a genuine issue. When, as here, this Court's discharge of its traditional function to interpret legislative intent will eliminate the uncertainty developed (because Section 163 seems to encompass the same property with which Section 161 is concerned), the genuine issue becames the usual one of statutory construction rather than a question of constitutional dimension under the 'void for vagueness' doctrine. Whether the ultimate judicial conclusion is that Section 161 continues to have independent viability or whether Section 163 is held to have produced, by applicable legal principles, a repeal of Section 161 by implication, on either alternative the legislature has provided a person of ordinary intelligence adequate notice of a comprehensible standard by which government will measure his conduct for purposes of criminality and punishment. In such posture the constitutional doctrine of 'void for vagueness' is simply inapposite; the issue is nothing other than a problem of statutory interpretation. Cf. Erlenbaugh v. United States, 409 U.S. 239, 93 S.Ct. 477, 34 L.Ed.2d 446 (1972).

The true question here, then, emerges as the second issue raised by defendant-whether an intention must be attributed to the legislature to have superseded, by implication from the enactment of Section 163, the legal effectiveness of Section 161.

In 1967 the Maine legislature substantially rewrote the text of the Maine law of arson. Among the most important features was the specification of four degrees of arson ranging in decreasing levels of severity.

The legislative penalty scale reveals recognition that since the earliest days of the common law Anglo-American civilization has continuously regarded as of the highest degree of culpability the burning of a dwelling house

". . . because it manifested in the perpetrator, a greater recklessness and contempt of human life, than the burning of any other building, and in which no human being was presumed to be." State v. Rand and Henry, 132 Me. 246, 248, 169 A. 898, 899 (1934)

By affirming in Section 161 that the burning of a dwelling house, or a structure connected with it, is of the 'first degree' of culpability and, hence, the most severely punished, the Maine legislature was plainly and explicitly seeking to continue as current public policy this attitude which had been unimpaired in its continuity for almost a millennium.

The purport of defendant's position is that because there was omitted from Section 163 the few words, 'not included or described in section 161 (or 162)', (words very plainly inserted by the legislature in Section 162 dealing with arson in the second degree), the legislature was undertaking to repudiate the long-standing attitude of Anglo-Saxon and American law that the burning of a dwelling house warrants punishment of the highest degree of severity; and that this result must be judicially announced even though the defendant has failed to assign any current public policy considerations reasonably suggestive of a need for such startling retrogression.

In light of the legislature's scrupulous effort to establish a range of penalty severity in four degrees and its careful use of appropriate words in Section 162 to ensure that the property described as the subject-matter of 'first degree' arson is excluded from the kind of property as to which arson is punishable less severely in the 'second degree', were this Court to hold that the legislature intended that distinctions as to the 'class or character' of the property burned are immaterial to the severity of punishment-except, as defendant's position imports, to make the 'third degree' of severity, the maximum,-this Court would be deciding that in undertaking to prescribe a first and second degree of arson, the legislature in practical effect had been indulging in acts of self-defeating absurdity.

Such irrationality is not to be attributed to the legislature if there are reasonable alternatives by which it may be avoided. A reasonable explanation consistent with legislative rationality, rather than irrationality, is here evident. The totality of Sections 161 to 164, inclusive, taken in pari materia, make transparently clear that the seeming overreach of Section 163 to include all property covered by both Sections 161 and 162 was the result of a scribal omission in textual...