State v. Parker

• Decision Date: 30 July 1969
• Docket Number: No. 5834,5834
• Citation: 109 N.H. 491,256 A.2d 159
• Parties: STATE v. Edward L. PARKER.
• Court: New Hampshire Supreme Court

Page 159

256 A.2d 159

109 N.H. 491

STATE v. Edward L. PARKER.

No. 5834.

Supreme Court of New Hampshire.

Argued Dec. 3, 1968.

Decided July 30, 1969.

George S. Pappagianis, Atty. Gen., and David H. Souter, Asst. Atty. Gen., David H. Souter, Concord, for the State.

Harkaway, Barry & Gall, Joseph F. Gall, Nashua, for defendant.

LAMPRON, Justice.

Criminal complaint charging defendant with willfully and knowingly being in the presence of another person who had illegal possession of marijuana in violation of RSA 318-A:21, III(Supp.). Defendant's motion to dismiss the complaint, because the statute under which he is charged is vague, indefinite and confusing, and lacks a prohibition clause, was denied by Kenneth F. McLaughlin, Special Associate Justice. The questions of law raised by defendant's exception were reserved and transferred to this Court under the provisions of RSA 502-A:17-a.

'That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties, is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law. And 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.' Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322; Cameron v. Johnson, 390 U.S. 611, 88 S.Ct. 1335, 20 L.Ed.2d 182; United States v. Cardiff, 344 U.S. 174, 176, 73 S.Ct. 189, 97 L.Ed. 200.

The vagueness which renders a criminal statute invalid usually arises from uncertainty with respect to persons within its scope or with respect to the nature of the acts which are prohibited. United States v. Cardiff, 344 U.S. 174, 176, 73 S.Ct. 189, 97 L.Ed. 200; 22 C.J.S. Criminal Law § 24, p. 69.

The statute involved in this case reads as follows:

'Whoever is present where he knows a narcotic drug is illegally kept or deposited, or whoever is in the company of a person knowing that said person is illegally in possession of a narcotic drug, or whoever conspires with another person to violate the narcotic drugs law, may be arrested by any peace officer whose duty it is to enforce the narcotic drug laws, and, if convicted, may be punished for the first offense by imprisonment for not more than one year or fined not more than five hundred dollors or both, and for any subsequent offense by imprisonment for not more than five years or by a fine of not less than five hundred dollars not more than five thousand dollars or both.'

The provision of the statute which the defendant is charged with violating is being 'in the company of a person knowing that said person is illegally in possession of a narcotic drug.' With the amount of knowledge which now prevails in regards to drugs it is difficult to maintain with...