State v. Stevens

• Decision Date: 30 March 1916
• Citation: 157 N.W. 668,33 N.D. 540
• Court: North Dakota Supreme Court

157 N.W. 668

33 N.D. 540

STATE OF NORTH DAKOTA v. C. H. STEVENS

Supreme Court of North Dakota

March 30, 1916

From a judgment of the District Court of Traill County, Pollock, J Defendant appeals.

Reversed.

Demurrer sustained. Conviction set aside.

John Carmody and C. E. Leslie, for appellant.

The statute defines no crime, nor has the legislature created thereby any crime; the statute is void because it delegates legislative powers to the court or to the jury.

It is well settled that the functions of government must be kept separate, and the delegation by the legislature of its powers to other departments of government has always been held unconstitutional. Glaspell v. Jamestown, 11 N.D. 86 88 N.W. 1023; State ex rel. Rusk v. Budge, 14 N.D 532, 105 N.W. 724; State ex rel. Standard Oil Co. v. Blaisdell, 22 N.D. 86, 132 N.W. 769, Ann. Cas. 1913E, 1089; McCrowell v. Bristol, 89 Va. 652, 20 L.R.A. 653, 16 S.E. 867; State ex rel. Miller v. Taylor, 27 N.D. 77, 145 N.W. 425.

The statute is void for uncertainty. A statute or other law that does not definitely state what acts are prohibited is void for uncertainty. Kreulhaus v. Birmingham, 164 Ala. 623, 26 L.R.A.(N.S.) 492, 51 So. 297; Czarra v. Medical Supers. 25 App. D. C. 443; Johnson v. State, 4 Tex.App. 63.

The statute is in effect an ex post facto law of dangerous type, since it is also so indefinite and elastic, and because it leaves to the same body--the court and jury--the power to create the crime. Johnson v. State, supra; 8 Cyc. 1027, and cases cited; Ex parte Jackson, 45 Ark. 158.

But, if the statute is upheld, the conviction of the defendant must still be set aside and the judgment reversed, for the evidence does not prove acts for which he can be convicted under the information. The acts must be done openly, and not in secret, or where the public is excluded. Comp. Laws 1913, § 10250.

Chas. A. Lyche, State's Attorney, for respondent.

There is no delegation of legislative powers to the courts, or to juries, in the statute in question.

The test is whether the language may apply not only to a particular act about which there can be little or no doubt or difference of opinion, but equally to others about which there may be radical differences. Czarra v. Medical Supers. 25 App. D. C. 443.

The law presupposes and presumes a uniform standard of morality and decency throughout our state. The act, in order to constitute a violation of the statute, must be "wilful. " The word "wilful" means "with a bad purpose." Potter v. United States, 155 U.S. 438, 39 L.Ed. 214, 15 S.Ct. 144; Com. v. Kneeland, 20 Pick. 206; Williams v. People, 26 Colo. 272, 57 P. 701; State v. Alcorn, 78 Tex. 387, 14 S.W. 663; Parsons v. Smilie, 97 Cal. 655, 32 P. 702; Richardson v. State, 5 Tex.App. 472; United States v. Three Railroad Cars, 1 Abb. (U.S.) 196, Fed. Cas. No. 16,513; Black's Law Dict. 1242; King v. State, 103 Ga. 263, 30 S.E. 30; Huff v. Chicago, I. & L. R. Co. 24 Ind.App. 492, 79 Am. St. Rep. 274, 59 N.E. 932; Dull v. Cleveland, C. C. & St. L. R. Co. 21 Ind.App. 571, 52 N.E. 1013; Miller v. Miller, 17 Ind.App. 605, 47 N.E. 338, 3 Am. Neg. Rep. 372.

The word "wilful" when used in a penal statute to characterize the forbidden act means evil intent or legal malice, or "without reasonable grounds to believe the act to be lawful." Trice v. State, 17 Tex.App. 43; Rose v. State, 19 Tex.App. 470; Shubert v. State, 16 Tex.App. 645; Thomas v. State, 14 Tex.App. 200; Lane v. State, 16 Tex.App. 172; Savage v. Tullar, Brayton (Vt.) 223; State v. Clark, 29 N.J.L. 98; State v. Preston, 34 Wis. 675; King v. State, 103 Ga. 263, 30 S.E. 30; Cornelison v. State, 40 Tex. Crim. Rep. 159, 49 S.W. 384; High v. State, 26 Tex.App. 545, 8 Am. St. Rep. 488, 10 S.W. 238; Mills v. Glennon, 2 Idaho, 105, 6 P. 116; Bowers v. State, 24 Tex.App. 542, 5 Am. St. Rep. 901, 7 S.W. 247; Ferguson v. State, 36 Tex. Crim. Rep. 60, 35 S.W. 369.

The word "wrongful" means "contrary to justice and fairness." Websters New Int. Dict.; New National Dict. Enc.; Riddell v. PeckWilliamson Heating & Ventilating Co. 27 Mont. 44, 69 P. 241; O'Connor v. Dils, 43 W.Va. 54, 26 S.E. 354; People v. Quanstrom, 93 Mich. 254, 17 L.R.A. 723, 53 N.W. 165; Cullinan v. Burkhard, 41 Misc. 321, 84 N.Y.S. 825; McDonald v. Brown, 23 R. I. 546, 58 L.R.A. 768, 91 Am. St. Rep. 659, 51 A. 213; Re Long, 39 N.Y. S. R. 892, 15 N.Y.S. 657.

"Openly outrages," means to do an act in the open; plainly, publicly, obviously, and in a violent, furious, atrocious, heinous, abusive manner. Webster's New Int. Dict.; Mosnat v. Snyder, 105 Iowa 500, 75 N.W. 356.

"Public decency" are words with a meaning so well understood and legally defined that there can be no question about them when found in a statute. Webster's New Int. Dict.; Comp. Laws 1913, § 9742; People v. Most, 36 Misc. 139, 73 N.Y.S. 220; Penal Code, § 675.

It is true that the legislative powers must not be delegated to other branches or departments of government. But, as to the statute in question, appellant's contention has no merit. It is wholly unlike any of the statutes or ordinances mentioned in the cases cited by appellant. Glaspell v. Jamestown, 11 N.D. 86, 88 N.W. 1023; State ex rel. Rusk v. Budge, 14 N.D. 532, 105 N.W. 724; State ex rel. Miller v. Taylor, 27 N.D. 77, 145 N.W. 425; McCrowell v. Bristol, 89 Va. 652, 20 L.R.A. 653, 16 S.E. 867; Chrisman v. Jackson, 84 Miss. 787, 37 So. 1015; Oakland v. Miller, 90 Miss. 275, 43 So. 467.

Assignments of error and exceptions will be deemed waived and abandoned unless presented to the court by brief and argument. Ashley v. Sioux City, Iowa , 93 N.W. 303; Little Dorrit Gold Min. Co. v. Arapahoe Gold Min. Co. 30 Colo. 431, 71 P. 389; Schmidt v. Beiseker, 19 N.D. 35, 120 N.W. 1096; Pendroy v. Great Northern R. Co. 17 N.D. 433, 117 N.W. 531; Old Rule, XIV, 10 N.D. XLVI, 91 N.W. VIII; New Rule, No. 34, Rules of S.Ct.

OPINION

GOSS, J.

A demurrer was overruled interposed to the following criminal information, omitting formal heading, viz.:

"Heretofore, to wit: On the 18th day of July, 1915, at the county of Traill in said state of North Dakota, one C. H. Stevens did commit the crime of wilfully and unlawfully committing an act which openly outraged public decency and was injurious to public morals, committed as follows, to wit:

"That at said time and place the said defendant, C. H. Stevens, did wilfully and unlawfully entice and procure one Florence Stenmo, then and there a married woman the wife of one Martin Stenmo, and with him then and there living as husband and wife, to go with him, the said defendant, into a certain so-called Pool Hall, situated upon lot 22 in block 30, of the original townsite of Hatton, Traill county, North Dakota, as per the official plat thereof on file and of record in the office of the register of deeds of said county, at or about the hour of 4 o'clock in the afternoon of said day, which was Sunday, and on which day said Pool Hall was closed to the public, by virtue of the law in such case made and provided, and there remained with her alone until after the hour of 11 o'clock in the afternoon of said day, he the said defendant being then and there himself a married man, and so remained with said Florence Stenmo behind locked and barred doors and blinded windows, in the presence of a large crowd of people until said hour, thus openly outraging public decency and injuring public morals;

"This contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of North Dakota.

"Dated at Hillsboro, North Dakota, this 28th day of July, A. D. 1915."

The question presented on the demurrer is whether the facts stated constitute the crime charged. The demurrer should have been sustained. Whether the information charges a crime under the statute depends not upon acts charged, but upon inferences not charged but possible to be drawn from certain facts stated. It is entirely possible for said facts stated to have occurred and yet defendant be not guilty of the crime inferred by the jury. The facts charged are that a married man and a married woman, not husband and wife, remained within said closed building with blinded windows from 4 until 11 o'clock that Sunday afternoon. This statement lacks as much of certainty in charging the commission of this crime as it would in thus attempting to charge instead the commission of the crime of adultery, or of the crime of unlawful cohabitation, or of fornication or of sodomy, or of maintaining a house of prostitution, or possibly any other sexual crime. Unaided by uncertain inference, no crime is charged. That the kind of inferences to be drawn could make the acts charged so supplemented, any one of several crimes according to the uncertain inference is in itself sufficient to condemn as vulnerable to demurrer the information which constitutes a shotgun charge at some one of several crimes possibly charged according to the inferences used to supplement the few facts actually alleged. Defendant could have stated that he committed all the acts charged and yet plead not guilty, a condition rather anomalous in criminal pleading and procedure as would forcefully appear had the charge been larceny, and had the defendant admitted every fact charged in the information but still pleaded not guilty. And an examination of the proof discloses that this defendant was convicted accordingly, not upon what was charged in the information to have occurred, but instead upon facts or inferences of fact not therein charged but which the jury inferred, and the court likewise must have assumed happened as either the result of or the reason for these two persons remaining behind closed doors during that time. The court evidently realized that there was...