State v. Stern

Decision Date16 September 1974
Docket NumberNo. 4319,4319
Citation526 P.2d 344
PartiesThe STATE of Wyoming, Appellant (Plaintiff below), v. Charles H. STERN, Appellee (Defendant below).
CourtWyoming Supreme Court

James N. Wolfe, County and Pros. Atty., Sheridan, Clarence A. Brimmer, Atty. Gen., Bert T. Ahlstrom, Jr., asst. Atty. Gen., Cheyenne, for appellant.

Tom C. Toner of Redle, Yonkee & Arney, Sheridan, for appellee.


Mr. Justice McCLINTOCK delivered the opinion of the Court.

The Sheridan County Attorney has presented bill of exceptions under the provisions of § 7-288 W.S.1957 asserting the district court of that county erred in holding § 6-130 W.S.1957, Cum.Supp.1973 1 unconstitutional as being in violation of §§ 2, 6, 7, 14, and 15 of Article 1 of the Wyoming Constitution 2 and the eighth and fourteenth amendments of the Constitution of the United States. 3

Information filed in the district court charged that Charles H. Stern did 'unlawfully break and enter into a locked or sealed office building * * * against the peace and dignity of the State of Wyoming.' Motion to dismiss the information was filed by defendant claiming that the statute violated the due process clause of the United States Constitution and Article 1, § 6 of the Wyoming Constitution because:

'(a) The statute's meaning is so uncertain, indefinite and vague that it fails to give fair warning of the conduct which it prohibits and

'(b) The statute is outside the scope of the state's police power because it makes innocent acts criminal even though the acts do not interfere with or threaten the public health, safety, morals or welfare.'

The order dismissing the information found that the statute under attack violated the specified sections of the Wyoming and federal constitutions, but is not more specific in declaring in just what respects it is repugnant to those provisions. We gather from the record that the district judge was principally impressed with the argument that the statute was unconstitutionally vague under the sixth section of our Article 1 and the fourteenth amendment to the federal constitution. Both briefs submitted herein argue the applicability of the two due process clauses. We shall therefore similarly confine this opinion.

We have said in Zancanelli v. Central Coal & Coke Co. (1918), 25 Wyo. 511, 173 P. 981, 983, that it is incumbent upon both counsel and the court, in claiming and declaring a statute unconstitutional, to point out the specific provisions of the Constitution claimed or declared to be violated by the legislative act or to which it is claimed to be repugnant, and in Johnson v. Schrader (Wyo.1973), 507 P.2d 814, 819 we reiterated the earlier declaration of this Court in Burton v. School District No. 19 (1934), 47 Wyo. 462, 38 P.2d 610, 612, that the "duty to show an act to be in contravention of the Constitution is upon him who asserts that to be true."

In considering this appeal we have in mind, and without specific reference thereto shall attempt to dispose of the appeal consistently with, certain general principles applicable to determination of the constitutionality of statutes: That the plain, ordinary, and usual meaning of words used in a statute controls in the absence of clear statutory provisions to the contrary, Shaffer v. Davidson (Wyo.1968), 445 P.2d 13, 16; that where there is plain, unambiguous language used in a statute there is no room for construction, and a court may not properly look for and impose another meaning, Town of Clearmont v. State Highway Commission (Wyo.1960), 357 P.2d 470, 475; that where legislative intent is discernible a court should give effect to that intent, Woolley v. State Highway Commission (Wyo.1963), 387 P.2d 667, 673; that every law must be presumed to be constitutional, with all reasonable doubt resolved in its favor, State ex rel. Board of Commissioners of Laramie County v. Wright (1945), 62 Wyo. 112, 163 P.2d 190, 196; and that while generally speaking penal statutes are to be strictly construed, they need not be given overnarrow meanings in disregard of the obvious purpose of the legislative body, United States v. Bass (1971),404 U.S. 336, 351, 92 S.Ct. 515, 30 L.Ed.2d 488.

As we construe Stern's argument, he contends that the statute is fatally defective in that it makes no distinction between conduct calculated to harm and that which is essentially innocent, citing City of Seattle v. Pullman (1973), 82 Wash.2d 794, 514 P.2d 1059, 1063, where it is said that 'if the ordinance's prohibitions do not have a real and substantial relationship to the government's interest, the ordinance is unconstitutional'. Comparing this act with the burglary and burglary tool statutes, 4 he points out that the latter clearly require that the proscribed entry or possession be with intent to steal or commit a felony before it is declared criminal while the former is completely silent as to the intention or purpose with which the breaking and entry are performed or attempted.

He then equates our statute with those which have been held invalid in other states, such as a statute making it a crime intentionally to damage a dwelling or other structure by explosion or setting fire, State v. Dennis (1969), 80 N.M. 262, 454 P.2d 276 and State v. Spino (1963), 61 Wash.2d 246, 377 P.2d 868, and a statute making it unlawful for any person under twenty-one to carry or have in his possession in any public place any knife or sharp pointed instrument which may be used for cutting or puncturing, People v. Munoz (1961), 9 N.Y.2d 51, 211 N.Y.S.2d 146, 172 N.E.2d 535. The reason given in these cases for holding the ordinance or statute void was that the statutory prohibition bore no relation to the public safety.

This legislative impotence to declare innocent acts criminal is in Stern's view all that is needed to establish the invalidity of the statute without regard to its vagueness, but in some of the authorities cited above and in the view of a majority of this Court, the two questions tend to merge. Interpreted in one way the statute may be said not to condemn innocent acts, while construed in another way it may. Apparently conceding that only in the public welfare area 5 may a statute which condemns innocent acts be held proper, the State contends that, properly construed, the statute is clear and unambiguous and does not condemn innocent acts. To reach this result, however, it is argued that the statute is to be interpreted as requiring the existence of an evil intent, sometimes known as scienter and sometimes as mens rea. The State asks us to construe the word 'unlawfully' as supplying both the requirement of knowledge and intentional act in the breaking and entry.

In accordance with the general principles first cited in this opinion, we would agree that if the statute is reasonably subject to the construction contended for by the State we should give full effect thereto, and that it is important to sustain the constitutionality of statutes wherever it is possible. However, a majority of this Court cannot follow that proposition to the point where by a process of construction we furnish to the statute language and purpose which has not been expressed by the legislature. In other words, we decline judicially to incorporate into the statute language that the legislature has omitted. 6

We have no difficulty in concluding that in its definition of this offense of breaking and entry our legislature has advisedly and deliberately omitted any requirement that the act be done with the intent to steal or commit some felony within the building. Sections 6-129 and 6-131 W.S.1957, supra, n. 4, clearly condemn a breaking and entry, or entry alone without breaking, or merely being found in a building, if such entry or presence is with the intent to steal or commit a felony. If it was intended by the legislature that the existence of that intent was essential to constitute the defined crime under § 6-130, it would have been easy enough to include language to that effect, but such addition would have been redundant of what had already been the law with respect to those offenses for some thirty years. The contemporaneous reconsideration and amendment of all three of these statutes in 1957 in respects not presently bearing on our problem-but retaining the distinctive definitions of the offenses-serves to emphasize our belief that the legislature intended the three statutes to be different and that specific intent to steal or commit a felony was not a necessary ingredient of this particular offense.

Having concluded that such specific intent was deliberately omitted, we must next inquire to what extent we are justified in interpreting the statute as requiring some other, or general, evil intent. Stern suggests that the statute condemns not only the intentional breaking and entry of the building but also the accidental breaking and entry by a friendly visitor who gives his neighbor's door a tug sufficient to break a lightly locked door; that it makes a criminal of one occupying a motel who attempts to unlock the wrong door; that the purposeful but innocent act of breaking and entry by a worried neighbor who has not seen his friend for some time and fears he may be sick or unable to take care of himself will constitute a crime. We cannot reject these suggestions as frivolous and must agree that we could declare such acts as innocent and outside the provisions of the law only if we engage in a substantial amount of interpretation or construction of the law.

More specifically considering the situation confronting Stern, no trial was had and no record was made as to the facts of this so-called breaking and entry. However, colloquy of counsel and the court shown in the record discloses without dispute that the defendant was found asleep and in an apparent state of intoxication in the office claimed to have been broken and entered. There was no indication of a...

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