State v. Hagge

• Decision Date: 01 October 1973
• Docket Number: Cr. N
• Citation: 211 N.W.2d 395
• Parties: STATE of North Dakota, Plaintiff and Appellant, v. Marvin HAGGE, Defendant and Appellee. o. 452.
• Court: North Dakota Supreme Court

Page 395

211 N.W.2d 395

STATE of North Dakota, Plaintiff and Appellant, v. Marvin HAGGE, Defendant and Appellee.

Cr. No. 452.

Supreme Court of North Dakota.

Oct. 1, 1973.

Syllabus by the Court

1. In determining constitutionality of a criminal statute, there is a presumption of constitutionality, and if there are two possible constructions, the one favoring constitutionality is to be used, if the fair meaning of the statute permits.

2. Statutes are to be construed in a practical manner, construing words in their ordinary sense.

3. Statutes must be read as a whole.

4. Due process requires that a criminal statute give adequate warning of the conduct proscribed and mark boundaries distinct enough so judges and juries can fairly administer the law.

5. Section 39--09--01, N.D.C.C., which forbids driving a vehicle in other than a careful and prudent manner, having due regard to the traffic, surface, and width of the highway and other conditions then existing, is constitutional.

6. Language forbidding the driving of a vehicle 'in a manner to endanger the life, limb, or property of any person,' when read together with the other language of Section 39--09--01, does not make the statute unconstitutional.

Richard B. Thomas, State's Atty., Minot, for plaintiff and appellant.

Bosard, McCutcheon, Kerian, Schmidt & Holum, Minot, for defendant and appellee.

VOGEL, Judge.

The sole issue in this case is the constitutionality of Section 39--09--01, North Dakota Century Code, which read as follows at the time of the alleged offense:

'Any person driving a vehicle upon a highway shall drive the same in a careful and prudent manner, having due regard to the traffic, surface, and width of the highway and other conditions then existing, and shall give such warnings as are reasonably necessary for safe operation under the circumstances. No person shall drive any vehicle upon a highway in a manner to endanger the life, limb, or property of any person.'

The defendant was charged with manslaughter in the first degree under Section 12--27--17, N.D.C.C., which defines one type of 'manslaughter in the first degree' as homicide 'perpetrated without a design to effect death by a person while engaged in the commission of a misdemeanor.' The misdemeanor alleged to have been committed by the defendant is a violation of Section 39--09--01, N.D.C.C., quoted above.

The defendant filed a motion to quash, alleging that the statute is unconstitutional and void for vagueness. The trial court granted the motion to quash, finding that the statute 'forbids 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, and thus violates due process of law. The Court believes it would be difficult to properly instruct the jury as to what constitutes an offense under the above statute.'

The principal cases cited by the parties on the question of constitutionality include State v. Joas, 34 N.J. 179, 168 A.2d 27 (1961), upholding a New Jersey statute; State v. Pigge, 79 Idaho 529, 322 P.2d 703 (1958), declaring an Idaho statute unconstitutional; and State v. Adams, 180 Neb. 542, 143 N.W.2d 920 (1966), declaring a Nebraska statute unconstitutional. The three statutes read as follows:

'A person who drives a vehicle on a highway carelessly, or without due caution and circumspection, in a manner so as to endanger, or be likely to endanger, a person or property, shall be guilty of careless driving.' R.S.Cum.Supp. 39:4--97 (New Jersey).

'It shall be unlawful for any person to operate a motor vehicle in a negligent manner over and along the public highways of this state. For the purpose of this section to 'operate in a negligent manner' shall be construed to mean the operation of a vehicle upon the public highways of this state in such a manner as to endanger or be likely to endanger any persons or property.

'The offense of operating a vehicle in a negligent manner shall be considered to be a lesser offense than, but included in, the offense of operating a vehicle in a reckless manner, and any person charged with operating a vehicle in a reckless manner may be convicted of the lesser offense of operating a vehicle in a negligent manner. Any person violating the provisions of this section shall be punished upon conviction in the same manner provided in Section 49--562, Idaho Code.' I.C. Sec. 49--562A, 1951 S.L., c. 256, p. 555 (Idaho).

'Any person or persons who shall operate a vehicle upon any highway in such a manner as to (1) endanger the safety of others or (2) cause immoderate wear or damage to any highway, shall be deemed guilty of a misdemeanor and shall, upon conviction thereof, be punished by a fine of not less than twenty-five dollars nor more than one hundred dollars or by imprisonment in the county jail for not more than thirty days, or by both such fine and imprisonment. It shall be held prima facie evidence that a person has operated a vehicle over a state highway in a manner to endanger the safety of others or so as to cause immoderate use or damage to a state highway, if he has operated such vehicle in a manner contrary to the duly published rules and regulations of the Department of Roads governing the use of state highways.' R.R.S.1943, Sec. 39--7, 108.01 (Nebraska).

In determining the constitutional question we are guided by well-recognized rules of construction, recent statements of which we will briefly summarize.

There is a 'well-established presumption' that every Act of the Legislature is constitutional. City of Fargo v. Fahrlander, 199 N.W.2d 30 (N.D.1972).

In passing on the validity of a statute we will indulge every reasonable presumption in favor of constitutionality unless the statute clearly violates some provision of the State or Federal Constitution. First American Bank & Trust Co. v. Ellwein, 198 N.W.2d 84 (N.D.1972).

Of two possible constructions of a statute, we will choose that one which, without doing violence to the fair meaning of a statute, will render it valid. State v. Julson, 202 N.W.2d 145 (N.D.1972).

Statutes are to be construed in a practical manner, and words used in a statute will be construed in their ordinary sense. City of Minot v. Knudson, 184 N.W.2d 58 (N.D.1971); Walker v....