State v. Fearon

• Decision Date: 21 March 1969
• Docket Number: No. 41113,41113
• Parties: , 40 A.L.R.3d 312 STATE of Minnesota, Respondent, v. Bernard Charles FEARON, Appellant.
• Court: Minnesota Supreme Court

Page 720

166 N.W.2d 720

283 Minn. 90, 40 A.L.R.3d 312

STATE of Minnesota, Respondent, v. Bernard Charles FEARON, Appellant.

No. 41113.

Supreme Court of Minnesota.

March 21, 1969.

Syllabus by the Court

1. The words 'voluntarily drinking' in Minn.St. 340.96, making drunkenness a criminal offense, require that in order to be convicted under the statute the person charged must have consumed intoxicants by choice.

2. Under the evidence presented in this case, defendant as a person suffering from the disease of chronic alcoholism was incapable of drinking voluntarily and therefore his conviction cannot be sustained.

Weis, Frauenshuh & Narveson, Paynesville, Nord, Webster & Brennan, St. Paul, for appellant.

Douglas M. Head, Atty. Gen., Richard H. Kyle, Sol. Gen., St. Paul, Joseph P. Summers, City Atty., Daniel A. Klas, Asst. City Atty., St. Paul, for respondent.

Heard before KNUTSON, C.J., and NELSON, ROGOSHESKE, SHERAN, and FRANK T. GALLAGHER, JJ.

OPINION

FRANK T. GALLAGHER, Justice.

Appeal from a conviction in the municipal court of drunkenness under Minn.St. 340.96.

Defendant was observed in a drunken condition on the evening of April 7, 1967, in the city of St. Paul. He was arrested and subsequently tried for violating § 340.96, which provides:

'Every person who becomes intoxicated by Voluntarily drinking intoxicating liquors is guilty of the crime of drunkenness, and shall be punished as follows: * * *.' (Italics supplied.)

The punishment specified ranges from imprisonment for 40 days or a fine of $40 for the first offense to imprisonment for 60 days to 3 months for the third and each subsequent offense. At trial, defense counsel stipulated that defendant was drunk at the time of his arrest, so the prosecution offered no evidence. As a defense to the charge, defendant asserted that he was a chronic alcoholic and did not drink voluntarily.

Defendant testified in his own behalf, tracing a long history of drinking. He said that he could not control his drinking, although he had made numerous attempts to do so, and that he thought about drinking all the time. By his own admission he has been drunk at least 50 percent of the time for the last 20 years; he has been arrested for drunkenness in Dallas, Los Angeles, and the Twin Cities; and he has lost both his wife and a succession of jobs due to his inability to stay sober. He received a dishonorable discharge from the Army for alcoholism.

Defendant submitted testimony by two psychiatrists, one of whom works with many alcoholics, and by a clinical psychologist, a social worker, and a minister, all of whom work extensively or exclusively with alcoholics. These experts testified that alcoholism is a disease and is recognized as such by the American Medical Association; that a chronic alcoholic does not drink voluntarily and cannot control his drinking; and that defendant is 'classic case' of chronic alcoholism. When asked on cross-examination if he had an opinion as to whether defendant, if sober, would know the consequences of his act, the psychologist stated:

'* * * (I)f the defendant is an alcoholic--and I am convinced that he is--if he were sober, there is a very good chance that on many occasions with respect to consuming alcoholic beverages he would not be able to make a judgment of right or wrong in terms of consequences of his act.'

He further stated that knowing the consequences of any act except those related to drinking is 'the essential of the illness, in a sense.'

All the testimony and the exhibits, which consisted of records from St.Paul-Ramsey Hospital, Willmar State Hospital, and Hazelden, a private alcoholic treatment center, were received subject to a deferred ruling on admissibility. Without specifically ruling on the evidence, the court found defendant guilty as charged and sentenced him to 90 days. The sentence was suspended in view of the fact defendant was being treated at Hazelden at the time of the trial.

Defendant contends that his conviction must be reversed for two reasons: First, because § 340.96 deals with voluntary consumption of intoxicating liquor, it is not applicable to the chronic alcoholic; and, second, drunkenness is symptomatic of the disease of chronic alcoholism and therefore the cruel-and-unusual-punishment clause of the Eighth Amendment bars imposition of criminal sanctions for drunkenness against the chronic alcoholic. Both defendant and the state have confined their briefs to the latter question.

Whether a chronic alcoholic is subject to prosecution under § 340.96 depends upon the meaning of the term ' voluntarily drinking' in the statute. In determining that meaning we are guided by the rule that, unless there is some evidence of a contrary intent, it will be presumed that the legislature intended that the words it used be given their ordinary and usual meaning. State v. Bies, 258 Minn. 139, 153, 103 N.W.2d 228, 239.

The portion of the statute quoted at the beginning of this opinion was originally passed in 1889. L. 1889, c. 13, § 1; G.S. 1891, § 1874. It has remained on the books unchanged since that time. The only amendment came in 1907 and affected only the punishment provisions. L.1907, c. 208. Furthermore, as is typical of statutes dealing with drunkenness, ¹ we have seldom had occasion to review it. In the 80 years since its enactment it has been before the court only twice, and neither appeal involved a prosecution for drunkenness. Pett-Morgan v. Kennedy, 62 Minn. 348, 64 N.W. 912, was a civil action for slander based on a statement that plaintiff was drunk the entire Thanksgiving weekend. Section 340.96 was involved because it made such statement an accusation that plaintiff had committed an indictable crime. The court construed the statute to the extent that it determined that the misbehavior charged involved the element of moral turpitude. However, whether this applied to any intoxication or only to ntoxication to any intoxication or only to intoxication statement is not clear from the opinion.

Much more recently the court had occasion to consider the statute in State v. Murphy, 277 Minn. 355, 152 N.W.2d 507, an appeal from a conviction for unauthorized use of an automobile. The defendant had previously pled guilty to a charge of drunkenness and claimed that because the use of the car occurred while he was in the drunken condition for which he had been convicted, the subsequent prosecution was barred. The court held the two offenses constituted separate acts, distinct as to time and place, and therefore the two prosecutions were proper. In the course of the opinion the court commented on the statute as follows (277 Minn. 357, 152 N.W.2d 509):

'* * * Unlike some ordinances and statutes which punish that offense (drunkenness), § 340.96 does not merely proscribe intoxication in a public place or intoxication accompanied by disorderly or offensive conduct. The statute punishes any excessive drinking to the point of intoxication.'

Unless we are to assume that the court intended to read the word 'voluntarily' out of the statute, we must conclude that it is implicit in the above statement that the prohibition extends only to voluntary excessive drinking. This conclusion seems the proper one, since there is no indication that Murphy at any time contended his drinking was not voluntary. In fact, his argument in the case presumed that the drunkenness conviction was proper. It is therefore highly unlikely the court would use that occasion to take such a significant step as to read 'voluntarily' out of the statute. Further, it has long been clear under Minnesota law that a person cannot be convicted of a crime where there was no intent to do the act which constitutes that crime. State v. Kremer, 262 Minn. 190, 114 N.W.2d 88; State v. Quackenbush, 98 Minn. 515, 108 N.W. 953. Therefore, even without the word 'voluntarily' in the statement, it should not be construed to mean that a person who did not choose to drink is subject to conviction.

State v. Kremer, Supra, is perhaps the best illustration of this concept. There, defendant was convicted a running a red traffic light despite uncontradicted evidence that his brakes failed contrary to his expectations. The court pointed out that if defendant had gone through the light because he did not see it, he would still be subject to conviction; but where he did not intend to proceed forward, he did not intend the act which constituted the crime. Therefore he could not be convicted.

If any inference can be drawn from the omission of the word 'voluntarily' from the court's statement in Murphy and the state or prior law, it is that 'voluntarily drinking' means drinking by choice, with the intent to drink. Such a construction is consistent with the rule set down at the outset--that where there is no evidence of legislative intent to adopt an unusual or particular meaning for the words used in a statute, they should be given their ordinary meaning. The ordinary meaning of the word 'voluntary' is 'produced in or by an act of choice' or of one's own free will. See, Webster's Third New International Dictionary (1961) p. 2564. Since we can find no evidene of any contrary intent by the legislature in this case, we conclude that 'voluntarily drinking' as used in § 340.96 means drinking by choice.

We come then to a question which, in various contexts, has produced considerable concern throughout the country: Can a person who is classed as a chronic alcoholic be said to drink by choice? The question is one involving moral, social, and medical, as well as legal, overtones, for the problem of the alcoholic in our society is of far-reaching proportions. ²

In the context of the present case, however, the answer to the question is not as difficult as it may appear when considered abstractly. The evidence offered by defendant, and unrebutted by the state, is uniformly to the effect that defendant did not drink voluntarily. The experts called by defendant were...