State v. Flinn, s. CC888--CC890

Decision Date02 July 1974
Docket NumberNos. CC888--CC890,s. CC888--CC890
Citation158 W.Va. 111,208 S.E.2d 538
CourtWest Virginia Supreme Court
PartiesSTATE of West Virginia v. Larry Douglass FLINN. STATE of West Virginia v. Jerry Dean BARKER. STATE of West Virginia v. Jerry GENTRY.

Syllabus by the Court

1. A criminal statute must be set out with sufficient definiteness to give a person of ordinary intelligence fair notice that his contemplated conduct is prohibited by statute and to provide adequate standards for adjudication.

2. Statutes involving a criminal penalty, which govern potential First Amendment freedoms or other similarly sensitive constitutional rights, are tested for certainty and definiteness by interpreting their meaning from the face of the statute.

3. Criminal statutes, which do not impinge upon First Amendment freedoms or other similarly sensitive constitutional rights, are tested for certainty and definiteness by construing the statute in light of the conduct to which it is applied.

4. 'When the constitutionality of a statute is questioned every reasonable construction of the statute must be resorted to by a court in order to sustain constitutionality, and any doubt must be resolved in favor of the constitutionality of the legislative enactment.' Point 3 Syllabus, Willis v. O'Brien, 151 W.Va. 628, 153 S.E.2d 178.

5. 'Statutes relating to the same subject, regardless of the time of their enactment and whether the later statute refers to the former statute, are to be read and construed together and considered as a single statute the parts of which had been enacted at the same time.' Point 1 Syllabus, Delardas v. Morgantown Water Commission, 148 W.Va. 776, 137 S.E.2d 426.

6. Subsections 7 and 9 of Code, 1931, 49--1--4, as amended, defining a delinquent child as one who '(a)ssociates with immoral or vicious persons' and as one who '(d)eports himself so as to wilfully injure or endanger the morals or health of himself or others' are void as violative of the Due Process Clauses of Article III Section 10 of the Constitution of West Virginia and the Fourteenth Amendment of the Constitution of the United States.

7. 'A statute may contain constitutional and unconstitutional provisions which may be perfectly distinct and separable so that some may stand and others may fall; and if, when the unconstitutional portion of the statute is rejected, the remaining portion reflects the legislative will, is complete in itself, is capable of being executed independently of the rejected portion, and in all other respects is valid, such remaining portion will be upheld and sustained.' Point 6 Syllabus, State v. Heston, 137 W.Va. 375, 71 S.E.2d 481.

8. The provisions of Code, 1931, 49--7--7, as amended, which provide a criminal penalty for one who 'contributes to, encourages or tends to cause' the delinquency of a minor, when read in pari materia with the subsections of Code, 1931, 49--1--4, as amended, excluding subsections 7 and 9, sufficiently define the offense prohibited and are not violative of the Due Process Clauses of the Constitution of West Virginia or the Constitution of the United States.

9. 'Although a person may be indicted for the offense of contributing to, encouraging or tending to cause the neglect of any child under Code, 49--7--7, as amended, the indictment must use the words of the statute as well as alleging the specific acts or conduct constituting the offense.' Syllabus, State ex rel. Turner v. McClure, 153 W.Va. 855, 173 S.E.2d 167.

Chauncey H. Browning, Jr., Atty. Gen., Richard E. Hardison, Deputy Atty. Gen., David P. Cleek, Asst. Atty. Gen., Charleston, for plaintiff.

Ralph E. Phillips, Ripley, Goodwin, Goodwin, Bryan & Lobert, Joseph R. Goodwin and John C. Lobert, Charleston, for defendants.

SPROUSE, Justice:

These three cases are before this Court upon certification by the Circuit Court of Jackson County. The cases, consolidated for the purposes of argument and decision, involve criminal proceedings instituted against Larry Douglass Flinn, Jerry Dean Baker and Jerry Gentry. Jerry Dean Barker and Jerry Gentry were jointly indicted--Larry Douglass Flinn being separately indicted. Each of the defendants were charged with the violation of Code, 1931, 49--7--7, as amended, commonly referred to as the 'contributing to the delinquency of a minor' statute.

Code, 1931, 49--7--7, as amended, provides: 'A person who by any act or omission contributes to, encourages or tends to cause the delinquency or neglect of any child, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not to exceed five hundred dollars, or imprisoned in the county jail for a period not exceeding one year, or both.'

Chapter 49, Article 1, Section 4, Code, 1931, as amended, defines delinquency as follows:

"Delinquent child' means a person under the age of eighteen years who:

(1) Violates a law or municipal ordinance;

(2) Commits an act which if committed by an adult would be a crime not punishable by death or life imprisonment;

(3) Is incorrigible, ungovernable, or habitually disobedient and beyond the control of his parent, guardian, or other custodian;

(4) Is habitually truant;

(5) Without just cause and without the consent of his parent, guardian, or other custodian, repeatedly deserts his home or place of abode;

(6) Engages in an occupation which is in violation of law;

(7) Associates with immoral or vicious persons;

(8) Frequents a place the existence of which is in violation of the law;

(9) Deports himself so as to wilfully injure or endanger the morals or health of himself or others.'

Upon motions of the defendants in each of these three cases, the indictments were quashed, the circuit court holding that the provisions of Code, 1931, 49--7--7, as amended, were void because they were so vague they violated the Due Process Clauses of the West Virginia and the United States Constitutions. The court, upon its own motion, certified the following questions:

'1. Do the allegations of said indictment charge a violation of the provisions of the Code of West Virginia, Chapter 49, Article 7, Section 7?'

'2. Are the provisions of Code, Chapter 49, Article 7, Section 7, void by reason of vagueness and thereby violative of the Due Process Clauses of the State and Federal Constitutions?'

If the statute in question is unconstitutional, it would not, of course, be necessary to consider the first certified question. We will first consider the constitutional issue raised by the second certified question.

This Court construed the predecessor statute to Code, 49--7--7, in State v. Harris, 105 W.Va. 165, 141 S.E. 637. The earlier statute contained the language, 'Any person who shall by any act cause, encourage, or contribute to the delinquency of a child * * * shall be guilty of a misdemeanor.' We held in Harris that the State was not required to provide the defendant with a bill of particulars, inasmuch as the statutory language was sufficiently definite to apprise the defendant of the crime he was accused of committing. Certain language of the statute involved in Harris also was challenged as being unconstitutional. Without discussing a particular constitutional concept, this Court dismissed that contention stating: "The crime of contributing to the delinquency of a child is complete when acts are committed which directly tend to render the child delinquent, and it is not necessary that the child who is the subject of the crime shall be delinquent or shall become a delinquent child." State v. Harris, Supra at 168, 141 S.E. at 639.

We also said: 'The statute clearly defines the offense created thereby; and the indictment is framed in the words of the statute. The Legislature could not possibly inticipate (sic) and set out in words every particular act that might constitute the offense.' State v. Harris, Supra at 167, 141 S.E. at 638.

As the trial court, in its opinion declaring Code, 49--7--7, unconstitutional, did not cite State v. Harris, Supra, it is difficult to determine on what basis it would distinguish the constitutional issue decided by this Court in Harris from the one in this case. The defendant, in its brief on appeal, cited Harris but made no attempt to distinguish it or ask that it be overruled. The trial court in its opinion indicated that similar statutes are being challenged in courts of other states and that West Virginia trial courts are uncertain of its constitutionality.

Research indicates that eighteen states, including West Virginia, have interpreted such statutes. Seventeen have held the statutes constitutionally valid. One state, Oregon, has held their statute void as violative of the 'delegation of powers' provision of their state constitution. Anderson v. State, 384 P.2d 669 (Alaska); Brockmueller v. State, 86 Ariz. 82, 340 P.2d 992; State v. Barone, 124 So.2d 490 (Fla.); People v. Friedrich, 385 Ill. 175, 52 N.E.2d 120; McDonald v. Commonwealth, 331 S.W.2d 716 (Ky.); People v. Owens, 13 Mich.App. 469, 164 N.W.2d 712; State v. Johnson, 145 S.W.2d 468 (Mo.); State v. Simants, 182 Neb. 491, 155 N.W.2d 788; State v. Montalbo, 33 N.J.Super. 462, 110 A.2d 572; State v. McKinley, 53 N.M. 106, 202 P.2d 964; State v. Sparrow, 276 N.C. 499, 173 S.E.2d 897; State v. Crary, 80 Ohio L.Abs. 417, 155 N.E.2d 262; State v. Coterel, 97 Ohio App. 48, 123 N.E.2d 438; State v. Hodges, 254 Or. 21, 457 P.2d 491; Birdsell v. State, 205 Tenn. 631, 330 S.W.2d 1; State v. Tritt, 23 Utah 2d 365, 463 P.2d 806; State v. Friedlander, 141 Wash. 1, 250 P. 453; State v. Harris, 105 W.Va. 165, 141 S.E. 637; Jung v. State, 55 Wis.2d 714, 201 N.W.2d 58.

At first blush, such overwhelming state precedent, including a decision from this Court, would seem to obviously control the outcome of this case. The defendant on appeal, however, takes the position that the state courts considering the issue have not addressed their decisions to the so-called 'void for vagueness' doctrine contained in a...

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