State v. Frankel

• Decision Date: 04 October 1956
• Docket Number: No. A--373,A--373
• Citation: 125 A.2d 728,42 N.J.Super. 7
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Edmund FRANKEL, Defendant-Appellant. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 7

42 N.J.Super. 7

125 A.2d 728

STATE of New Jersey, Plaintiff-Respondent, v. Edmund FRANKEL, Defendant-Appellant.

No. A--373.

Superior Court of New Jersey.

Appellate Division.

Argued Aug. 27, 1956.

Decided Oct. 4, 1956.

Christian Bollermann, Hackensack, for plaintiff-respondent (Grover C. Richman, Jr., Atty. Gen. of New Jersey, James T. Kirk and David M. Satz, Jr., Deputy Attys. Gen., attorneys).

Leopold Frankel, Paterson, for defendant-appellant (Frankel & Frankel, Paterson, attorneys).

Before Judges CONFORD, DAVIDSON and TOMASULO.

The opinion of the court was delivered by

CONFORD, J.A.D. (temporarily assigned).

This is an appeal from a conviction of the defendant, on trial De novo in the Morris county Court, for violation of N.J.S.A. 39:4--88(a) in that, while driving his automobile on a four-lane highway, he failed to stay in the lane nearest the right-hand side of the highway. The evidence sustaining the conviction was given by a State trooper, who said he followed the defendant on Route 46 in Roxbury Township for 1.1 miles, during which the defendant, driving westerly, continually remained in the inside lane of the two westbound lanes of the highway. Traffic at the time was very light. The defendant testified that he was in that lane for a distance of approximately 600 feet; further, that, at the time, he was looking for a crossroad at which he expected to find, on the other side of the highway, a motor repair shop, to which he was taking his vehicle for repairs. His testimony was, in effect, that while in the inside lane he was expecting momentarily to come upon the left-hand street opening for his destination, although he did not know just where it was.

Defendant raises three principal grounds of appeal: (1) that paragraph (a) of the cited section is unconstitutional in that it fails adequately to apprise the defendant of the manner of operation required in its use of the word, 'normally,' in the provision:

'A vehicle shall normally be driven in the lane nearest the right-hand edge or curb of the highway when that lane is available for travel, * * *';

(2) that the evidence did not justify his conviction in view of his testimony that he was looking for an opening for a left-hand turn and of the statutory exception, 'except when overtaking or passing another vehicle or in preparation for a left turn'; and (3) that in light of N.J.S.A. 39:4--88(d), paragraph (a) was here inapplicable.

1. It is well settled that a penal statute must be couched in language sufficiently definite to apprise the public of the nature of the act prohibited or required to be done. A statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law. State v. New York Central R.R. Co., 37 N.J.Super. 42, 46, 116 A.2d 800, 802 (App.Div.1955). It is, however, common to find regulatory penal statutes or ordinances which are necessarily couched in terms of fairly broad scope because of the peculiar nature of the subject matter in question. In the case cited a municipal ordinance was attacked as unconstitutionally indefinite where it prohibited "loud and unnecessary noise." The court sustained the validity of the ordinance. It cited United States v. Petrillo, 332 U.S. 1, 7, 67 S.Ct. 1538, 91 L.Ed. 1877 (1947), as authority for the rule that 'where the legislative regulatory object is appropriate and the conduct intended to be prohibited is not fairly susceptible of definition in other than general language, there is no constitutional impediment to its use.' (37 N.J.Super., at pages 47, 48, 116 A.2d at page 803.)

As to the statutory provision before us, it would seem fairly clear that the term 'normally' was used in the statute in recognition of the general experience that unusual, emergent or otherwise extraordinary situations will arise on a highway, making compliance with a specific statutory direction for motor traffic dangerous, impracticable, or even impossible. For example, if a heavy stream of traffic, occupying both lanes in either direction, were moving on a four-lane highway, it would be impracticable to comply with the literal provisions of the act. The conditions would not be 'normal.' The requirement for driving in the lane to the right is therefore specified as mandatory only under normal conditions (and where neither of the particular exceptions apply). In our opinion, the nature of the subject matter here...