State v. Metzger

• Decision Date: 14 May 1982
• Docket Number: No. 81-723,81-723
• Citation: 319 N.W.2d 459,211 Neb. 593
• Court: Nebraska Supreme Court
• Parties: STATE of Nebraska, Appellee, v. Douglas E. METZGER, Appellant.

Page 459

319 N.W.2d 459

211 Neb. 593

STATE of Nebraska, Appellee, v. Douglas E. METZGER, Appellant.

No. 81-723.

Supreme Court of Nebraska.

May 14, 1982.

Syllabus by the Court

1. Criminal Law: Constitutional Law. A crime must be defined with sufficient definiteness and there must be ascertainable standards of guilt to inform those subject thereto as to what conduct will render them liable to punishment thereunder.

2. Criminal Law: Constitutional Law. The dividing line between what is lawful and unlawful cannot be left to conjecture.

3. Criminal Law: Statutes. Penal statutes prohibiting the doing of certain things and providing a punishment for their violation should not admit of such a double meaning that the citizen may act upon one conception of its requirements and the courts upon another.

4. Criminal Law: Statutes: Constitutional Law. A statute which forbids the doing of an act in terms so vague that men of common intelligence must necessarily guess as to its meaning and differ as to its application violates the first essential elements of due process of law.

5. Criminal Law: Statutes. The test to determine whether a statute defining an offense is void for uncertainty is whether the language may apply not only to a particular act about which there can be little or no difference of opinion, but equally to other acts about which there may be radical differences, thereby devolving on the court the exercise of arbitrary power of discriminating between the several classes of acts. The dividing line between what is lawful and what is unlawful cannot be left to conjecture.

Dennis R. Keefe, Lancaster County Public Defender and Dorothy A. Walker, Lincoln, for appellant.

John C. McQuinn, II, Asst. City Prosecutor, Lincoln, for appellee.

Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, WHITE, HASTINGS, and CAPORALE, JJ.

KRIVOSHA, Chief Justice.

The appellant, Douglas E. Metzger, was convicted in the municipal court of the city of Lincoln, Nebraska, of violating § 9.52.100 of the Lincoln Municipal Code. The judgment was affirmed by the District Court for Lancaster County, Nebraska, and Metzger has appealed to this court. For reasons set out below, we reverse and dismiss.

Metzger has raised several alleged errors. There is, however, a threshold question which we must address and which is dispositive of the entire matter. According to the evidence, Metzger lived in a garden-level apartment located in Lincoln, Nebraska. A large window in the apartment faces a parking lot which is situated on the north side of the apartment building. At about 7:45 a. m. on April 30, 1981, another resident of the apartment, while parking his automobile in a space directly in front of Metzger's apartment window, observed Metzger standing naked with his arms at his sides in his apartment window for a period of 5 seconds. The resident testified that he saw Metzger's body from his thighs on up.

The resident called the police department and two officers arrived at the apartment at about 8 a. m. The officers testified that they observed Metzger standing in front of the window eating a bowl of cereal. They testified that Metzger was standing within a foot of the window and his nude body, from the mid-thigh on up, was visible.

The pertinent portion of § 9.52.100 of the Lincoln Municipal Code, under which Metzger was charged, provides as follows: "It shall be unlawful for any person within the City of Lincoln ... to commit any indecent, immodest or filthy act in the presence of any person, or in such a situation that persons passing might ordinarily see the same."

Metzger argues that nudity, per se, is not obscene and is a form of free expression guaranteed by the first and fourteenth amendments of the U.S. Constitution, citing Schad v. Mount Ephraim, 452 U.S. 61, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981). We need not, however, address that issue in this case. The more basic issue presented to us by this appeal is whether the ordinance, as drafted, is so vague as to be unconstitutional. We believe that it is. There is no argument that a violation of the municipal ordinance in question is a criminal act. Since the ordinance in question is criminal in nature, it is a fundamental requirement of due process of law that such criminal ordinance be reasonably clear and definite. Markham v. Brainard, 178 Neb. 544, 134 N.W.2d 84 (1965); State v. Adams, 180 Neb. 542, 143 N.W.2d 920 (1966). Moreover, a crime must be defined with sufficient definiteness and there must be ascertainable standards of guilt to inform those subject thereto as to what conduct will render them liable to punishment thereunder. State v. Huffman, 202 Neb. 434, 275 N.W.2d 838 (1979); State v. Nelson, 168 Neb. 394, 95 N.W.2d 678 (1959). The dividing line between what is lawful and unlawful cannot be left to conjecture. State v. Adams, supra; State v. Nelson, supra. A citizen cannot be held to answer charges based upon penal statutes whose mandates are so uncertain that they will reasonably admit of different constructions. A criminal statute cannot rest upon an uncertain foundation. The crime and the elements constituting it must be so clearly expressed that the ordinary person can intelligently choose in advance what course it is lawful for him to pursue. Penal statutes prohibiting the doing of certain things and providing a punishment for their violation should not admit of such a double meaning that the citizen may act upon one conception of its requirements and the courts upon another. State v. Huffman, supra. A statute which forbids the doing of an act in terms so vague that men of common intelligence must necessarily guess as to its meaning and differ as to its application violates the first essential elements of due process of law. Connally v. General Const. Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1925); State v. Pocras, 166 Neb. 642, 90 N.W.2d 263 (1958). It is not permissible to enact a law which in effect spreads an all-inclusive net for the feet of everybody upon the chance that, while the innocent will surely be entangled in its meshes, some wrongdoers may also be caught. State v. Adkins, 196 Neb. 76, 241 N.W.2d 655 (1976).

In State ex rel. English v. Ruback, 135 Neb. 335, 281 N.W. 607 (1938), this court laid down guidelines to assist in determining whether a statute defining an offense is void for uncertainty. In Ruback at 341, 281 N.W. at 610, we said: " 'The test to determine whether a statute defining an offense is void for uncertainty (1) is whether the language may apply not only to a particular act about which there can be little or no difference of opinion, but equally to other acts about which there may be radical differences, thereby devolving on the court the exercise of arbitrary power of discriminating between the several classes of acts. [Citation omitted.] (2) The dividing line between what is lawful and what is unlawful cannot be left to conjecture. [Citations omitted.]' "

In the case of Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972), the U.S. Supreme Court said: "Living under a rule of law entails various suppositions, one of which is that '[all persons] are entitled to be informed as to what the State commands or forbids.' "

In Papachristou, supra, the U. S. Supreme Court declared a vagrancy statute of the city of Jacksonville, Florida, invalid for vagueness, saying at 165, 92 S.Ct. at 845: "This aspect of the vagrancy ordinance before us is suggested by what this Court said in 1876 about a broad criminal statute enacted by Congress: 'It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who...