State v. Nelson

• Decision Date: 10 April 1959
• Docket Number: Nos. 34513,34514,s. 34513
• Citation: 168 Neb. 394,95 N.W.2d 678
• Parties: STATE of Nebraska, Appellee, v. Eric NELSON, dba Eric Nelson News Company, Appellant. STATE of Nebraska, Appellee, v. Sidney COREN, dba Meyers News Stand, Appellant.
• Court: Nebraska Supreme Court

Page 678

95 N.W.2d 678

168 Neb. 394

STATE of Nebraska, Appellee, v. Eric NELSON, dba Eric Nelson News Company, Appellant.

STATE of Nebraska, Appellee, v. Sidney COREN, dba Meyers News Stand, Appellant.

Nos. 34513, 34514.

Supreme Court of Nebraska.

April 10, 1959.

Syllabus by the Court

1. The constitutionality of a legislative act having been passed upon by this court, and no additional grounds being presented, the same will be adhered to in all future cases in which that question is directly involved and in which it becomes a vital and integral factor in the determination of the issues made.

2. 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.

3. A legislative act 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.

4. The dividing line between what is lawful and unlawful cannot be left to conjecture.

5. The standards of certainty in legislative acts punishing for offenses is higher than in those depending primarily upon civil sanction for enforcement.

Viren, Emmert, Hilmes & Gunderson, Omaha, for Nelson.

Levin & Gitnick, Omaha, for Coren.

Herbert M. Fitle, Charles A. Fryzek, Edward M. Stein, James P. Costello, Walter J. Matejka, Robert H. Blanchard, Omaha, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

SIMMONS, Chief Justice.

These cases began in the municipal court of Omaha by the filing of separate complaints for the violation of an ordinance of the city of Omaha. They were tried at the same time, resulting in a finding of guilt. The defendant in each case was fined. Each defendant appealed separately to the district court, where the causes were again tried at the same time and with the same result. Each defendant brings the cause relating to him here by appeal. The causes were docketed, briefed, and argued separately here.

Each defendant presents assignments of error not common to the other. An assignment of error, common to each cause, is argued here. We deem it controlling and hence consolidate the causes for decision.

We reverse the judgment in each case and remand each cause with directions to dismiss the complaints.

For convenience herein we refer to the State of Nebraska as the city.

The city filed a complaint against each defendant, the charging parts being identical. It is that the defendant 'then and there being did unlawfully offer for sale, attempt to sell, exhibit, keep in his possession with intent to sell or give away to any person, magazines and other publications which, read as a whole are of an obscene nature in violation of Omaha Municipal Code 14924 as amended by Ordinance 18508 Chapter 12 Art. 40.7 contrary to the City Ordinance of the City of Omaha in such cases made and provided, * * *.' (Emphasis supplied.)

The ordinance provided: 'It shall be unlawful for any person to sell, offer for sale, attempt to sell, exhibit, give away, keep in his possession with intent to sell or give away, or in any way furnish or attempt to furnish to any person any comic book, magazine, or other publication which, read as a whole, is of an obscene nature.' Ordinance 18508, c. 12, Art. 40.7, City Ordinance, City of Omaha.

An assignment of error common to both defendants is that the ordinance is vague and indefinite and hence unconstitutional and void.

The defendants here rely on our decision in State v. Pocras, 166 Neb. 642, 90 N.W.2d 263. The city asks that we reconsider the Pocras case. It asks that we apply the rule of construction of ejusdem generis to the Omaha ordinance in accord with the contentions of the dissent in the Pocras case in which the writer of this opinion joined.

The applicable rule is: The constitutionality of an act of the Legislature having been passed upon by this court, and no additional grounds being presented, the same will be adhered to in all future cases in which that question is directly involved and in which it becomes a vital and integral factor in the determination of the issues made. Malin v. Housel, 105 Neb. 784, 181 N.W. 934.

We do not deem it consistent with sound adjudicative procedure to refuse to apply the ejusdem generis rule to one legislative act and then apply it to another similar act. We point out, however, that if we were to do so here it would not remove the invalidity of the ordinance here involved.

In the Pocras case [166 Neb. 642, 90 N.W.2d 264] the defendant was charged in that he 'did unlawfully cause to be offered for sale and dispose of obscene, lewd and indecent publications * * *.' The court held that part of the ordinance which made it unlawful to 'dispose of in any manner, any obscene, lewd, or indecent book' etc., was void for uncertainty as a violation of due process as guaranteed by both state and federal Constitutions.

We there stated this rule: 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. It is sustained by the authorities cited and quoted in the opinion.

In the Pocras case the defendant was charged with an offense based in part on the provision of the ordinance held to be void and accordingly we affirmed a dismissal of the complaint.

The defendants here argue that the provision of the ordinance here involved 'or in any way furnish or attempt to furnish' is subject to a like finding of uncertainty rendering the ordinance void. We need not determine that question.

In the instant cases the language to which the above objection is made was not included in the complaints stating the alleged offenses.

However, in the instant cases the language used in the ordinance 'which, read as a whole, is of an obscene nature' was included in the complaints as an essential element of the offenses charged.

Based on the authorities cited and the rules of law stated in the Pocras case we would find no difficulty in concluding that the above language was void for uncertainty.

The city, however, relies on Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498. The holding there upon which the city relies is epitomized as follows: The standard for judging obscenity, adequate to withstand the charge of constitutional infirmity, is whether, to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest.

The rule of the Roth case was stated as a guide to the finders of fact in considering the evidence.

The city would have us read into the ordinance the above 'standard for judging' as a...