State v. Dickens

• Decision Date: 07 July 1947
• Docket Number: 974
• Citation: 183 P.2d 148,66 Ariz. 86
• Parties: STATE v. DICKENS
• Court: Arizona Supreme Court

183 P.2d 148

66 Ariz. 86

STATE v. DICKENS

No. 974

Supreme Court of Arizona

July 7, 1947

Rehearing Denied August 1, 1947.

Appeal from Superior Court, Maricopa County; Harold R. Scoville Judge.

C Dickens was convicted of flying at such a low level as to endanger the persons on the surface beneath, and he appeals.

Affirmed.

Eli Gorodezky, Robert E. Yount and James A. Struckmeyer, of Phoenix, for appellant.

John L. Sullivan, Atty. Gen., Perry M. Ling, Asst. Atty. Gen., and William P. Mahoney, Jr., Asst. Atty. Gen., for appellee.

Udall Justice. Stanford, C. J., and LaPrade, J., concurring.

OPINION

Udall, Justice.

C. Dickens, the defendant in the court below, the appellant here, a licensed airplane pilot, was informed against in the Superior Court of Maricopa County for an alleged violation of sec. 48-115, A.C.A.1939, which charged him with the crime of flying "at such a low level as to endanger the persons on the surface beneath, * * * a misdemeanor." The case was tried before a jury and the defendant found guilty whereupon the court sentenced him to serve thirty days in the county jail and to pay a fine of $ 300. From the judgment of conviction the defendant has appealed seeking a review of the rulings of the court, particularly with reference to the court's refusal to dismiss the information and to direct a verdict in his favor.

The seven assignments of error raise but two propositions of law that need be considered, the first being that the information does not charge a public offense. It was drawn under sec. 48-115, A.C.A.1939, which reads as follows: "Any aeronaut or passenger who, while in flight over a thickly inhabited area or over a public gathering within this state, shall engage in trick or acrobatic flying, or in any acrobatic feat, or shall, except while in landing or taking off, be at such a low level as to endanger the persons on the surface beneath, or drop any object except loose water, loose sand ballast, or loose sheets of paper, shall be guilty of a misdemeanor and punishable by a fine of not more than five hundred dollars ($ 500), or imprisonment for not more than one (1) year, or both." (Emphasis supplied.)

Although this information was based upon the emphasized portion of the statute, the defendant contends that no offense is stated since there is no allegation in the information that he was flying "over a thickly inhabited area or over a public gathering within this state". Such reasoning overlooks the fact that four offenses are included within the statute by reason of the use of the disjunctive "or", e. g. (1) Trick or acrobatic flying over a thickly inhabited area. (2) Trick or acrobatic flying over a public gathering. (3) Flying at such a low level, except while taking off or landing, as to endanger the persons beneath. (4) Dropping of objects while in flight, except loose water, loose sand, or loose sheets of paper.

The statute is clear, certain, and unambiguous in its meaning, and, therefore, is not subject to construction. Palmcroft Development Co. v. City of Phoenix, 46 Ariz. 200, 49 P.2d 626, 103 A.L.R. 802. It does violence to reason to connect the phrases "over a thickly inhabited area or over a public gathering", which are attached only to the first clause, to the other two clauses separated from the first by disjunctive conjunctions. The use of "or" in this manner directs that a statute should be read in the disjunctive. 50 Am.Jur., Statutes, sec. 281, p. 267. And where, in a statute, the disjunctive form is used, the various members of the sentence are to be taken separately. Wilcox v. Warren Const. Co., 95 Or. 125, 186 P. 13, 13 A.L.R. 211. There is no necessity of alleging each of the offenses included within this statute. The allegation of any one is sufficient. The information, therefore, charges a public offense.

Finally, defendant attempts to bolster his strained construction of this statute by claiming that any other interpretation would prohibit crop dusting by plane. The statutory words themselves dispel this contention by prohibiting low flying only when it is such "as to endanger the persons on the surface beneath".

Defendant Dickens' second proposition of law is that even if the information charges him with a public offense, still he was entitled to an instructed verdict when, at the trial, he pled immunity from state prosecution by invoking, as a matter of defense, the fact that he was amenable to criminal prosecution for the same offense by the United States. He relies upon sec. 48-121, A.C.A.1939, which reads as follows: "Penalty for violation -- Prosecution of offenses. -- A person who violates any provision of this article shall be guilty of a misdemeanor and punishable by a fine of not more than one hundred dollars ($ 100), or by imprisonment for not more than ninety (90) days, or both; provided, however, that acts or omissions made unlawful by this article (of which low flying is one) shall not be deemed to include any act or omission which violates the laws or lawful regulations of the United States; but it shall not be necessary to allege or prove, as part of the case for the people, that the defendant is not amenable, on account of the alleged violation, to prosecution under the laws of the United States. That he is amenable to such prosecution shall be matter of defense, unless it affirmatively appear from the evidenced (evidence) adduced by the people." (Emphasis and explanatory insert supplied.)

Though it goes undenied by the State that defendant properly pled his possible subjection to United States prosecution as a defense, and though federal laws do prohibit the kind of dangerous low flying indulged in by this defendant, still, the penalty provided under federal law for this offense is, we believe, a civil one; while Arizona's immunity statute, as we read it, contemplates immunity from State prosecution only in the event of the possibility of criminal prosecution by the United States. That this is the import of our immunity statute, sec. 48-121, A.C.A.1939, is not only clear from a reading of the words themselves, but is tacitly admitted by the line of defendant's argument, and never denied.

More specifically, the Civil Aeronautics Board set up by the Federal Government is empowered to issue rules and regulations to aid in carrying out its duties as prescribed by the Federal Civil Aeronautics Act, 49 U.S.C.A. § 425. 49 U.S.C.A. § 551(a) (7), being a part of this Act, makes it the duty of this Board to prescribe air traffic rules governing flight altitudes; and once such rules are made, it is unlawful to violate them. 49 U.S.C.A. § 560(a) (5). Such rules were, in fact, promulgated under the title of Civil Air Regulations, sec. 60.105(b) of which prohibits, among other things, flight over noncongested areas at altitudes less than 500 feet (with certain exceptions not here applicable).

The difficulties here revolve, in part, around the nature of the federal penalty for such violation. 49 U.S.C.A. § 622(a) provides:

"Criminal Penalties

"(a) Any person who knowingly and willfully violates any provision of this chapter (except subchapters V, VI, and VII), or any order, rule, or regulation issued under any such provision * * * for which no penalty is otherwise herein provided, shall be deemed guilty of a misdemeanor and upon conviction thereof shall be subject for the first offense to a fine of not more than $ 500, and for any subsequent offense to a fine of not more than $ 2,000. If such violation is a continuing one, each day of such violation shall constitute a separate offense." (Emphasis supplied).

That part of the Act which makes it the duty of the Board to issue regulations governing flight altitudes, 49 U.S.C.A. § 551(a) (7), is found in subchapter VI of the Act, the violations of which are specifically exempted from criminal penalties by 49 U.S.C.A. § 622(a), quoted supra, but are subject, instead, to civil penalties by the specific provisions of 49 U.S.C.A. § 621(a) set forth, in part, below:

"Civil Penalties

"(a) Any person who violates (1) any provision of subchapters V, VI, and VII of this chapter * * * shall be subject to a civil penalty of not to exceed $ 1,000 for each such violation * * *"

Defen...