State v. Vick, 55310

• Decision Date: 28 March 1973
• Docket Number: No. 55310,55310
• Citation: 205 N.W.2d 727
• Parties: STATE of Iowa, Appellee, v. Layton W. VICK, Appellant.
• Court: Iowa Supreme Court

Page 727

205 N.W.2d 727

STATE of Iowa, Appellee, v. Layton W. VICK, Appellant.

No. 55310.

Supreme Court of Iowa.

March 28, 1973.

Donald E. O'Brien, of O'Brien, Galvin & O'Brien, Sioux City, for appellant.

Richard C. Turner, Atty. Gen., Robert D. Jacobson, Asst. Atty. Gen., Walter W. Barbee, County Atty., for appellee.

Submitted to MOORE, C.J., and MASON, RAWLINGS, HARRIS and McCORMICK, JJ.

MASON, Justice.

Defendant, Layton W. Vick, was tried in a Spirit Lake police court for the offense of assault (with a rifle), found guilty and fined $100. He subsequently appealed to the Dickinson district court, trial was had to a jury and a verdict convicting defendant of assault in violation of section 694.1 was returned. He has appealed from the judgment entered thereon.

The statute involved provides:

'Assault and battery. Whoever is convicted of an assault, or an assault and battery, where no other punishment is prescribed, shall be imprisoned in the county jail not exceeding thirty days, or be fined not exceeding one hundred dollars.'

The charge arose out of an incident involving defendant and several men working for the state highway department on a construction project approximately five miles west of Spirit Lake. Defendant owned and operated a service station located at the northwest corner of the intersection of east-west highway 9 and northsouth highway 32. A public trapshooting range was located north of the station on defendant's property. At about 4:00 p.m. August 2, 1971, defendant erected a target on his property directly west of his station at a distance of some 300 feet. He returned to a point near the station and fired approximately 15 rounds at the target within a period of 15 to 20 minutes. Defendant testified he was shooting in a south-westerly direction, i.e., slightly toward highway 9.

In the morning of August 2 defendant had confronted construction workers attempting to place a fence across highway 32, informing them he would remove it if they continued. He then returned to his station, the men completed their work and the construction work on highway 9, which runs in a westerly direction parallel with defendant's south property line, continued throughout the day. Although suspicious of defendant's motive and purpose in firing his rifle in a path along highway 9, the men proceeded with their work despite the potential danger. Mr. Gary Woltman, an inspector for the state highway commission, testified that while standing some 400 feet west of defendant's station on the north side of highway 9 four shots struck the ground a few feet behind him. Another witness, Gary Classen, observed this incident. Defendant testified his conduct posed no danger to the men working on highway 9 and denied the allegation that he attempted to intimidate them.

Defendant assigns two errors relied on for reversal:

(1) The court erred in overruling defendant's motion to dismiss the cause for the reason chapter 694.1, The Code, 1971, is unconstitutional in that it violates due process as required by article I, section 9, of the Bill of Rights of the Iowa constitution and Amendment 5 of the United States Constitution, more specifically, it does not say it is unlawful to assault anyone, nor does this section define the offense of assault.

(2) The court erred in overruling defendant's motion to dismiss for the reason the State did not meet its burden of showing defendant did not act in self-defense.

I. At the close of the State's evidence and again at the close of all evidence defendant moved to dismiss the charge against him asserting as grounds therefor that section 694.1, The Code, does not say that it is unlawful to assault anybody, doesn't describe the offense and it is in violation of the constitution of Iowa, Constitution of the United States in that it doesn't set out the supposed crime.

The court's ruling on this motion serves as a basis for defendant's first assignment.

Defendant asserts section 694.1 is so vague and standardless that it leaves an individual uncertain as to the particular conduct it prohibits and is therefore unconstitutional.

Ordinarily, statutes, with notable exceptions, regularly enacted by legislatures will be accorded a strong presumption of constitutionality. Where the constitutionality of a statute is merely doubtful or fairly debatable the courts will not interfere. The burden of proving a legislative enactment to be violative of the constitution rests upon those so asserting to the degree of negativing every reasonable basis of support therefor. A constitutional challenge must specify constitutional provisions invoked and state with precision the details of a claimed defect. Farrell v. State Board of Regents, 179 N.W.2d 533, 537--538 (Iowa 1970); Iron Workers Local No. 67 v. Hart, 191 N.W.2d 758, 771, 773 (Iowa 1971); Brown Enterprises, Inc. v. Fulton, 192 N.W.2d 773, 776 (Iowa 1971).

The essential theme of those cases cited by defendant is that a penal statute must define the crime in a manner that permits a reasonable man of common intelligence to comprehend the type of activity proscribed by the statute.

More specifically, defendant claims section 694.1 is unconstitutional because it fails to expressly state 'that it is unlawful to assault anyone, nor does said section define the offense of assault.' The identical arguments, however, were considered by this court over a century ago in The State of Iowa v. Twogood, 7 Iowa 252, 253--254 (Cole's Ed.), wherein it was held:

'* * * The argument is, that the offense charged has not been declared criminal by the Code, and that common law offenses, without a statutory declaration, are not punishable in this State. * * *

'* * * Our Code provides that whoever is convicted of an assault, or an assault and battery, shall be punished by imprisonment, etc. Section 2597. (Original Code section from which section 694.1 is derived. See Code). The offense, then, is declared criminal. For the description of it--or in order to ascertain what would amount to an assault, or an assault and battery--we are left to the common law definition.

'* * * Its criminality (assault) is expressly declared, the statute adopting the definition of it, as known and clearly fixed by the common law.'

While not binding on this court, the United States Courts of Appeal for the tenth circuit recently determined the constitutionality of 18 U.S.C.A. section 111, which reads in part as follows:

'Assaulting, resisting, or impeding certain officers or employees. Whoever forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this title while engaged in or on account of the performance of his official duties, shall be fined not more than $5,000 or imprisoned not more than three years, or both.'

In United States v. Linn, 438 F.2d 456, 458 (10 Cir. 1971), the court summarily held section 111 was not unconstitutionally vague, indefinite or ambiguous, concluding that ' § 111 clearly gives a person of ordinary intelligence fair notice of what conduct...