State v. Suess

Decision Date14 March 1952
Docket Number35576,Nos. 35575,s. 35575
PartiesSTATE v. SUESS. STATE v. BERKNER.
CourtMinnesota Supreme Court

Syllabus by the Court.

1. Bounded by constitutional restraints the legislature is vested with a great amount of discretion in defining and declaring rules of conduct. A criminal statute must be definite enough to give notice of the conduct required to any one who desires to avoid its penalties. It is unconstitutional for indefiniteness or uncertainty if what it requires or forbids is set out in terms so vague that people of common intelligence have to guess at what it means and if they differ as to its application. Absolute certainty is not required; it is not necessary that there be mathematical precision in the statement of the conduct demanded or disapproved. It is the duty of courts to sustain legislative enactments as reasonably certain when possible, and they will resort to all acceptable rules of construction to discover a competent and efficient expression of the legislative will. Taking into consideration the language of the entire act read in the light of the object evidently in view, if the act is reasonably susceptible of two different constructions, one of which will render it constitutional and the other unconstitutional, the former construction must be adopted. When a legislative act has as its purpose the prohibition of an undesirable form of conduct rather than a specific act, the definition by its very nature must be broad. Due process requires that penal legislation expressed in general and flexible terms furnish a test based on knowable criteria which men of common intelligence who come in contact with the statute may use with reasonable safety in determining its command. Held that M.S.A. § 100.29, subd. 10, is not so general, vague, indefinite, or uncertain as to deny due process of law.

2. An information or indictment in order to be good must aver every essential element of the crime positively and not inferentially. No indictment shall be insufficient by reason of a defect or imperfection in matter of form which does not tend to the prejudice of the substantial rights of the defendant upon the merits. A defendant must know from an information with what he is charged and against what he is required to defend himself. The information or indictment must be considered in its entirety and construed as such. It will not do to dissect it and predicate attacks upon each portion by itself. Held that the information in connection with the second question certified states a public offense.

J. A. A. Burnquist, Atty. Gen., Lowell J. Grady, Asst. Atty. Gen., St. Paul, Attell P. Felix, County Atty., Little Falls, for plaintiff.

Charles A. Fortier, Little Falls, for defendants.

FRANK T. GALLAGHER, Justice.

Defendants, Andrew J. Suess and W. H. Berkner, were each charged by separate informations filed by the county attorney of Morrison county with a violation of M.S.A. § 100.29, subd. 10, making it unlawful--'To throw or cast the rays of a spotlight, headlight, or other artificial light on any highway, or in any field, woodland, or forest, for the purpose of spotting, locating or taking any wild animal, except raccoons when treed, with the aid of dogs, while having in possession or under control, either singly or as one of a group of persons, any firearm or other implement whereby big game could be killed, unless the same is unloaded in both barrels and magazine and properly encased or broken down'.

Each defendant demurred to the information 'on the grounds that the facts stated do not constitute a public offense.' The district court overruled the demurrers in both cases and, with the consent of the state and the defendant in each case, certified to this court, pursuant to § 632.10, the questions involved as important and doubtful. The cases were consolidated for argument and hearing before this court.

In connection with the Suess case, the trial court certified these questions:

'First--Is M.S.A. Section 100.29, subdivision 10, so general or so vague, indefinite and uncertain as to deny due process of law?

'Second--Does the Information, by virtue of M.S.A. Section 610.12 or otherwise, state a public offense?'

With respect to the Berkner case, the trial court certified only the first question above.

The information in the Suess case charges: '* * * that on or about the 16th. day of November in the year A.D. 1950, in the Town of Green Prairie, County of Morrison, State of Minnesota, one Andrew J. Suess, then and there being, did wilfully, wrongfully and unlawfully violate Section 100.29(10) of Minnesota Statutes for 1949 as follows, to-wit: The said Andrew J. Suess, while riding as a passenger in a 1949 Mercury Coupe automobile, did then and there have in his possession and under his control a firearm whereby big game could be killed, said firearm not being then and there unloaded in both barrel and magazine not properly encased or broken down, for the purpose of spotting, locating and taking wild animals, other than raccoons treed with the aid of dogs, while one W. H. Berkner, then and there being the driver of said 1949 Mercury Coupe, did then and there wilfully, wrongfully and unlawfully throw and cast rays of a spotlight upon a highway, field and woodland in said township, for the purpose of spotting, locating and taking wild animals, other than raccoons treed with the aid of dogs, against the form of the statute in such cases made and provided and against the peace and dignity of the State of Minnesota.'

The information in the Berkner case charges: '* * * that on or about the 16th. day of November in the year A.D. 1950, in the Town of Green Prairie, in the County of Morrison, State of Minnesota, one W. H. Berkner then and there being, did wilfully, wrongfully and unlawfully throw and cast the rays of a spotlight upon a highway, field and woodland in said township for the purpose of spotting, locating and taking wild animals, other than raccoons treed with the aid of dogs, while having in his possession and under his control, as one of a group of persons, a firearm whereby big game could be killed, said firearm not being then and there unloaded in both barrels and magazine and not properly encased or broken down, against the form of the statute in such cases made and provided and against the peace and dignity of the State of Minnesota.'

Inasmuch as the trial court certified in both cases the question whether § 100.29, subd. 10, is so general or so vague, indefinite, and uncertain as to deny due process of law, we shall first consider that question, which will dispose of that matter in both cases.

The state contends that § 100.29, subd. 10, is not unconstitutional for vagueness; that if any portion of the statute is vague in a constitutional sense it can be only that portion which reads: 'or other implement whereby big game could be killed'. The state then argues that, assuming without conceding that the above-quoted portion of the statute should be void for vagueness, the remaining provisions of the statute would still be valid under § 645.20, which provides in part that, unless there is a provision in the law that the provisions shall not be severable, the provisions of all laws shall be severable. There is no provision as to nonseverability of § 100.29. The state further argues that neither defendant may be heard to complain of the invalidity for vagueness of the phrase 'or other implement whereby big game could be killed,' because the informations here involved charge each defendant with the possession of a firearm and not of some 'other implement.'

On the other hand, defendants contend that the statute is unconstitutional and that it denies due process of law, because it is so general in its language that it arbitrarily makes acts criminal which are innocent and which it is unreasonable to presume were intended to be criminal violations of the statute, and, further, because the innocent acts prohibited have no reasonable relationship to the legislative purpose. Defendants cite statutes, referred to herein, which they consider necessary for a determination of the above contention, including Minn.St.1941, § 100.055, L.1941, c. 498, § 1, in which M.S.A. § 100.29, subd. 10, had its origin. L.1945, c. 248, repealed § 100.055, and in lieu thereof § 100.29, subd. 1(10), was enacted. L.1949C. 150, § 31, repealed Minn.St.1945, § 100.29, subd. 1(10), and reenacted it as § 100.29, subd. 10, as above set forth, with the phrase, 'It shall be unlawful', inserted at the commencement of the subdivision. Defendants call our attention to the language of § 100.055, which read in part: '* * * for the purpose of spotting, locating, hunting, catching, taking, kiling or wounding Any big game animal.' (Italics supplied.)

The present language of § 100.29, subd. 10, is as follows: '* * * for the purpose of spotting, locating or taking Any wild animal, * * *.' (Italics supplied.)

Section 97.40, subd. 5, defines Wild animals as all living creatures, not human, wild by nature, endowed with sensation and power of voluntary motion, and includes quadrupeds, mammals, birds, fish, amphibians, reptiles, crustaceans, and mollusks. Section 97.40, subd. 8, includes deer, moose, elk, and caribou as Big game. Section 97.40 subd. 10, states that every provision relating to any Wild animal shall be deemed to apply to any part thereof with the same force and effect as it applies to the whole. Section 97.55, subd. 9, makes a violation of § 100.29, subd. 10 or 11, a gross misdemeanor. Section 97.50, subd. 6, provides for the seizure of all motor vehicles, trailers, and airplanes used in violation of § 100.29, subd. 10 or 11.

Defendants maintain that the obvious purpose of the statute is to prevent the shining of Big game animals, which, for practical purposes, they consider means deer in Minnesota. They argue that, when the present statutory definition of Wild animal is...

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