State v. Valencia

• Decision Date: 11 March 1980
• Docket Number: No. 42795,42795
• Citation: 205 Neb. 719,290 N.W.2d 181
• Parties: STATE of Nebraska, Appellant, v. Modesto C. VALENCIA, Appellee.
• Court: Nebraska Supreme Court

Page 181

290 N.W.2d 181

205 Neb. 719

STATE of Nebraska, Appellant, v. Modesto C. VALENCIA, Appellee.

No. 42795.

Supreme Court of Nebraska.

March 11, 1980.

Syllabus by the Court

1. Criminal Law: Statutes: Constitutional Law. The prohibition against excessive vagueness does not invalidate every statute which a reviewing court believes could have been drafted with greater precision.

2. Criminal Law: Statutes: Constitutional Law. Difficulty in determining whether certain marginal offenses are within the meaning of language under attack as vague does not automatically render a statute

unconstitutional for indefiniteness; the test is whether the language conveyed a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.

3. Criminal Law: Statutes: Constitutional Law: Indictments and Informations. Questions of the constitutionality of a statute upon which an information is based may be raised by a motion to quash or a demurrer if the defect is apparent from the face of the statute.

4. Criminal Law: Statutes: Constitutional Law: Pleas. If not apparent from the face of the statute, the constitutionality may be challenged under a plea of not guilty.

Brian C. Silverman and Michael J. Javoronok, Gering, for appellant.

James T. Hansen and Paul S. Rehurek, Gering, for appellee.

Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.

BRODKEY, Justice.

Involved in this appeal is the constitutionality of section 28-1202, R.S.Supp., 1978, which reads as follows: "(1) Except as provided in subsection (2) of this section, any person who carries a weapon or weapons concealed on or about his person such as a revolver, pistol, bowie knife, dirk or knife with a dirk blade attachment, brass or iron knuckles, or any other deadly weapon, commits the offense of carrying concealed weapons.

"(2) It shall be an affirmative defense that the defendant was engaged in any lawful business, calling or employment at the time he was carrying any weapon or weapons, and the circumstances in which such person was placed at the time were such as to justify a prudent person in carrying the weapon or weapons, for the defense of his person, property or family.

"(3) Carrying concealed weapons is a Class IV felony." (Emphasis supplied.)

Defendant below, Modesto Valencia, hereinafter referred to as Valencia, was arrested at his place of employment, a packing house, on a charge not relevant to this appeal. As part of the arrest procedure, one of the arresting officers frisked Valencia to determine whether or not he was carrying any weapons upon his person. During the "pat down," a spring-operating switchblade knife was found in Valencia's left front pants pocket. Following a preliminary hearing on the matter, the State filed a two-count information against the defendant, charging him in the first count with violating section 28-512, R.S.Supp., 1978, theft by deception, and in count II with carrying a weapon concealed on or about his person, in violation of section 28-1202(1), R.S.Supp., 1978. The defendant filed in the District Court for Scotts Bluff County a demurrer to the information on the grounds that count II, based upon section 28-1202, is unconstitutional and void because it is vague and indefinite on its face and as applied, and violates Article I, section 3, Constitution of the State of Nebraska, and the Fifth and Sixth Amendments to the Constitution of the United States; and also on the same date filed a motion to quash the information and each count thereof on the grounds that they are so vague, general, and indefinite as to violate the rights guaranteed to the defendant by the Fifth and Sixth Amendments to the Constitution of the United States. In addition, the defendant subsequently filed a motion to dismiss count II of the information based upon the allegation that section 28-1202, R.S.Supp., 1978, is unconstitutional and void because it is vague and indefinite on its face and as applied, and violates Article I, section 3, Constitution of the State of Nebraska, and the Fifth and Sixth Amendments to the Constitution of the United States.

Defendant's arraignment was postponed pending a hearing on the various motions filed by the defendant. The journal entry of the hearing on the motions reads in part as follows: "The Motion to Quash was argued to the Court. The Court sustains the Motion to Quash as to Count II of the information. The Court determined that a Motion to Quash is the correct motion to raise the issue of constitutionality. The Court finds that Section 28-1202(1) R.S.Supp. (1978) is unconstitutional as applied in the instant case for the reason that the weapon as disclosed by evidence at preliminary hearing does not fall within the specific types of knives prohibited but rather falls within the category of other 'deadly weapon,' and such category is unconstitutionally vague and overboard (sic). The Court further determined the defendant had not waived his Motion to Quash by filing a demurrer, as both motions were intended to raise the question of constitutionality.

"Trial of the cause, set for April 20, 1979, is continued for thirty days to permit the State of Nebraska to appeal the ruling of the Court as to Count II."

The State has appealed from that order to this court. The record before us does not disclose whether Valencia was ever arraigned on this or any other charge; and it seems clear that the defendant has not as yet been placed in jeopardy.

In its brief filed in its appeal, the State sets forth three assignments of error as follows: "(1) The District Court erred in finding R.S.Supp. 28-1202(1) (1978) unconstitutional as applied. (2) The District Court erred in finding the category of other 'deadly weapons' contained in R.S.Supp. 28-1202(1) (1978) vague and overbroad. (3) The District Court erred in finding that the filing of a demurrer does not waive all defects which may be excepted to by a motion to quash." We conclude that the statute in question is constitutional, and reverse the order of the District Court quashing count II of the information, and remand the matter for further proceedings.

It is a fundamental requirement of due process of law that a criminal statute be reasonably clear and definite. State v. Adams, 180 Neb. 542, 143 N.W.2d 920 (1966). We have frequently stated that 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. The dividing line between what is lawful and unlawful cannot be left to conjecture. A crime and the elements constituting it must be so clearly expressed that the ordinary person can intelligently choose in advance what course it is lawful for him to pursue. State v. Huffman, 202 Neb. 434, 275 N.W.2d 838 (1979); State v. Adams, supra. Penal statutes prohibiting the doing of certain things in providing a punishment for their violation should not admit of such a double meaning that the citizen may act upon one conception of its requirements and the courts upon another. State, ex rel. English v. Ruback, 135 Neb. 335, 281 N.W. 607 (1938); Connally v. General Const. Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926). We have also held, however, that it is not necessary for a penal statute to be written so as to be beyond the mere possibility of more than one construction. Although a penal statute is required to be strictly construed, it should be given a sensible construction and general terms therein should be limited in their construction and application so as not to lead to injustice, oppression, or an absurd consequence. State v. Robinson, 202 Neb. 210, 274 N.W.2d 553 (1979); State v. Nance, 197 Neb. 257, 248 N.W.2d 339 (1976). Moreover, the prohibition against excessive vagueness does not invalidate every statute which a reviewing court believes could have been drafted with greater precision. All the Due Process Clause requires is that the law give sufficient warning that men may conform their conduct so as to avoid that which is forbidden. State v. Shiffbauer, 197 Neb. 805, 251 N.W.2d 359 (1977); State v. Briner, 198 Neb. 766, 255 N.W.2d 422 (1977).

Appellee contends that the words "other deadly weapon" as used in section 28-1202(1), R.S.Supp., 1978, are so vague and overbroad as to render the statute unconstitutional, and points out in his brief on appeal certain examples which would appear to make certain innocent conduct criminal in nature, such as a meat cutter in a packing house carrying a knife under his apron, or a grandmother in possession of knitting needles. In this connection we point out that counsel for both parties have apparently overlooked the fact, or have ignored the fact, that the term "deadly weapon" has been statutorily defined in another section of the new Criminal Code. Section 28-109, R.S.Supp., 1978, provides in part: "As used in this code, unless the context otherwise requires: * * * (7) Deadly weapon shall mean any firearm, knife, bludgeon, or other device, instrument, material, or substance, whether animate or inanimate, which in the manner it is used or intended to be used is capable of producing death or serious bodily injury; * * *." (Emphasis supplied.) Applying this definition to section 28-1202(1), it is clear that the Legislature in enacting that statute has designated certain weapons such as revolvers, pistols, bowie knives, dirks or knives with a dirk blade attachment, and brass or iron knuckles, as deadly weapons per se ; and the manner of the actual or intended use of such designated weapons is immaterial under the statute in question. However, with reference to the catchall phrase "or any other deadly weapon" as contained in section 28-1202(1), it is the element of actual or intended use which renders the words "other deadly weapons" sufficiently definite to provide citizens...