State v. Neal

• Decision Date: 05 November 1971
• Docket Number: No. 38245,38245
• Citation: 191 N.W.2d 458,187 Neb. 413
• Parties: STATE of Nebraska, Appellant, v. Juanell NEAL, otherwise known as Nancy Woolery, et al., Appellees.
• Court: Nebraska Supreme Court

Page 458

191 N.W.2d 458

187 Neb. 413

STATE of Nebraska, Appellant, v. Juanell NEAL, otherwise known as Nancy Woolery, et al., Appellees.

No. 38245.

Supreme Court of Nebraska.

Nov. 5, 1971.

Syllabus by the Court

1. A crime must be defined with sufficient definiteness to inform reasonable men of what conduct will render them liable to punishment.

2. In order to meet constitutional standards of due process, a penal statute must be sufficiently clear so that a person of ordinary intelligence has fair notice of what exactly is forbidden conduct under the act.

3. In construing a penal statute this court will give it an interpretation which meets constitutional requirements if it can reasonably be done.

4. A penal statute is presumed to be constitutional and unconstitutionality must be clearly established before this court is authorized to declare it void.

5. Section 29--109, R.R.S.1943, requires that in the interpretation of a penal statute the language of the statute be construed by taking into consideration the context and subject matter relative to which they are employed.

6. In examining a statute to ascertain the intent of the Legislature, a court will not examine an operative provision without likewise examining a provision enumerating exceptions, and the statute shall be considered as a whole, in light of the objects and purposes of the act.

7. The term 'unlawfully' is a word of common usage and as such need not be specifically defined in an instruction or statute.

Gordon C. Gobel, County Atty., Fremont, for appellant.

Ray C. Simmons, Fremont, for appellees.

Clarence A. H. Meyer, Atty. Gen., Betsy G. Berger, Asst. Atty. Gen., Lincoln, amicus curiae.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON, and CLINTON, JJ.

WHITE, Chief Justice.

This is a prosecution for the unlawful possession of marijuana under the provisions of L.B. 326 (sections 28--4, 115 to 28--4, 142) enacted by the 82nd Session of the Legislature of Nebraska. The district court sustained demurrers to the informations filed against the defendants and ordered them dismissed. The State then obtained leave to docket error proceedings under section 29--2315.01, R.R.S.1943, to review the orders of the District Court. We sustain the exceptions.

The question presented by the parties is the constitutionality of L.B. 326. L.B. 326 is a comprehensive act designed to regulate the use, possession, manufacture, distribution, delivery, and production of drugs and controlled substances. The act generally is patterned after Public Law 91--513, 91st Congress, H.R. 18583, being the federal Comprehensive Drug Abuse Prevention and Control Act of 1970. The defendants were prosecuted under subsection (5) of section 11 of L.B. 326. Subsection (5) and its immediate context, under attack in this case, provide as follows:

'(3) A person knowingly or intentionally possessing a controlled substance, except marijuana, unless such substance was obtained directly, or pursuant to a valid prescription or order from a practitioner, while acting in the course of his professional practice, or except as otherwise authorized by this act, shall, upon conviction thereof, be sentenced to a term of imprisonment not less than one year nor more than two years in the Nebraska Penal and Correctional Complex, or a fine of not more than five hundred dollars, or to a term of imprisonment in the county jail of not more than six months, or be both so fined and imprisoned.

'(4) Any person knowingly and unlawfully possessing marijuana weighing one pound or less shall, upon conviction thereof, be fined not more than five hundred dollars or shall be sentenced to a term of imprisonment in the county jail of not more than seven days, and shall be held separate and apart from other prisoners, or be both so fined and imprisoned.

'(5) Any person knowingly and unlawfully possessing marijuana weighing more than one pound shall, upon conviction thereof, be sentenced to a term of imprisonment of one year in the Nebraska Penal and Correctional Complex, or shall be fined not more than five hundred dollars, or shall be sentenced to a term of imprisonment in the county jail of not more than six months, or be both so fined and imprisoned.

'(6) If a person is convicted of a violation under this section, as a part of the sentence he shall be required during the period of confinement to attend a course of instruction conducted by the department on the effects, medically, psychologically and socially, of the misuse of controlled substances. He shall also be required to receive medical treatment, while so confined, For the effect upon him of controlled substances. If a person is placed on probation, as a condition of probation he shall attend and complete an identical course of instruction conducted by the department and pay a fee of five dollars for the course. As a further condition the person shall be required to receive medical treatment for the effects of controlled substances abuses.'

The issue presented by this case is narrow. No dispute appears as to the rationale of the district court's decision. It rests upon the proposition that L.B. 326 fails to define the term 'unlawfully' as contained in subsections (4) and (5) of section 11, being the separate penalty provisions of the act for the possession of marijuana. It is asserted, in substance, that since the term 'unlawfully' is not defined in subsections (4) and (5), the statute does not define a crime and, therefore, falls within the prohibition announced by this court in Macomber v. State, 137 Neb. 882, 291 N.W.2d 674, which holds that no person can be punished in this state for any act or omission which is not made penal by the plain import of the written law.

We agree that a crime must be defined with sufficient definiteness to inform reasonable men of what conduct will render them liable to punishment. State v. Nelson, 168 Neb. 394, 95 N.W.2d 678; Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495. Framed in the constitutional context, L.B. 326 must have given the defendants a fair warning of the conduct which the act prohibited or the defendants would have been denied due process of law. In order to meet constitutional standards of due process, a penal statute must be sufficiently clear so that a person of ordinary intelligence has fair notice of what exactly is forbidden conduct under the act. Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964). We agree that the plain import of the statute, under the doctrine of Macomber v. State, Supra, must proscribe the conduct sought to be forbidden. As we have recently said, in construing a penal statute this court will give it an interpretation which meets constitutional requirements if it can reasonably be done. State v. Lewis, 184 Neb. 111, 165 N.W.2d 569; State v. Simants, 182 Neb. 491, 155 N.W.2d 788. A statute is presumed to be constitutional and unconstitutionality must be clearly established before this court is authorized to declare it void. Evans v. Metropolitan Utilities Dist., 187 Neb. 261, 188 N.W.2d 851. Section 29--109, R.R.S.1943, of our penal code, requires in the interpretation of a penal statute, that the language of the statute be construed 'taking into consideration the context and subject matter relative to which they are employed.' It is fundamental that a statute will be examined as a whole in order to ascertain the intent of the Legislature. The fundamental rule of statutory construction, to which other rules of construction must give way, is the ascertainment of the intent of the Legislature. However, in examining the statute to ascertain the intent of the Legislature, a court will not examine an operative provision without likewise examining a provision enumerating exceptions, and the statute shall be considered as a whole, in light of the objects and purposes of the act. Horack, Sutherland Statutory Construction (3d Ed.), s. 4703; School Dist. No. 228 v. State Board of Education, 164 Neb. 148, 82 N.W.2d 8.

The term 'unlawfully' is a word of common usage and as such need not be specifically defined in an instruction or statute. State v. Holland, 183 Neb. 485, 161 N.W.2d 862; Schleif v. State, 131 Neb. 875, 270 N.W. 510; Carrall v. State, 53 Neb. 431, 73 N.W. 939; Hodgkins v. State, 36 Neb. 160, 54 N.W. 86. As a word of common import the word 'unlawfully' generally implies that an act is done which is not authorized by law, in other words, an unauthorized act. We have no difficulty in coming to the conclusion that common usage dictates that 'unlawfully' means unauthorized by law and, therefore, our examination is directed toward just what is authorized and just what is not authorized by L.B. 326. The defendants would have us examine only subsections (4) and (5) of section 11. However, section 2 of the act defines marijuana as a 'controlled substance.' Controlled substances may be lawfully in the possession of a person under circumstances that are outlined in sections 5, 6, 7, 8, 9, and 10 of the act.

As we mentioned before, the act is a comprehensive drug abuse prevention and control act following the federal pattern and must be examined as a whole to determine the clear legislative intent. Section 5 of L.B. 326 sets out the totality of...