State v. Woodworth

• Decision Date: 07 October 1975
• Docket Number: No. 503,503
• Parties: STATE of North Dakota, Plaintiff-Appellee, v. Walter WOODWORTH, Defendant-Appellant. Crim.
• Court: North Dakota Supreme Court

Page 243

234 N.W.2d 243

STATE of North Dakota, Plaintiff-Appellee, v. Walter WOODWORTH, Defendant-Appellant.

Crim. No. 503.

Supreme Court of North Dakota.

Oct. 7, 1975.

Rehearing Denied Oct. 30, 1975.

Syllabus by the Court

1. Where a statutory offense corresponds to a common law offense, the common law definition may be employed to determine what acts are proscribed.

2. The common law definitions of words and phrase used in statutory offenses of common law derivation apply unless redefined by statute.

3. The test of definitiveness is met if the meaning of the statute is fairly ascertainable by references to similar statutes or to the dictionary or if the questioned words have a common and generally accepted meaning.

4. The due process clauses of the State and Federal Constitutions require definitiveness of criminal statutes so that the language, when measured by common understanding and practices, gives adequate warning of the conduct proscribed and marks boundaries sufficiently distinct for judges and juries to fairly administer the law.

5. The offense of disturbing the public peace is a common law offense.

6. Breach of peace or disturbing the public peace means disturbing the tranquility enjoyed by citizens of a municipality or community where good order reigns among its members, which is the natural right of all persons in political society.

7. A statute is not invalid for vagueness if a law-abiding person of reasonable intelligence would or should have no difficulty in understanding what conduct is prohibited.

8. A litigant may only assert his constitutional rights or immunities as they may be affected by the statute in question.

9. Unless the statute attempts to regulate any of the constitutional rights and freedoms under the First Amendment to the United States Constitution, a litigant has no standing to challenge the statute, as it may be conceivably applied unconstitutionally to others.

10. The statute in question is not invalid for either vagueness or overbreadth under either the State Constitution or the Federal Constitution.

11. Where a common law offense statute is being challenged for vagueness, we rely upon the proven acts of the defendant Kent Higgins, Sp. Public Defender, Bismarck, for defendant-appellant.

rather than on speculative or hypothetical facts for the test as to what acts are proscribed.

John M. Olson, State's Atty., for plaintiff-appellee.

SAND, Judge.

The appellant, Walter Woodworth, and his brother, Stewart Woodworth, were convicted on August 2, 1974, in the Burleigh County Court of Increased Jurisdiction of disturbing the peace under Section 5--01--05.3, North Dakota Century Code. Walter was sentenced to ten days in the county jail, to be given credit for eight days already served and the balance suspended during good behavior. Walter Woodworth appealed from this judgment.

FACTS

The facts of the case are not in dispute. At two o'clock in the morning of July 2, 1974, the police, in response to a call, came to the intersection of Ninth Street (an arterial street) and Avenue E in Bismarck, where defendant Walter Woodworth and his brother, Stewart, were sitting in the middle of the intersection, partially blocking the street, and making 'a lot of noise.' The intersection is in a residential area. A number of persons were present and five to ten cars passed through the partially blocked intersection. When asked by the police to leave, the Woodworths refused. After failing to persuade them to leave, the officers attempted to physically remove them, whereupon a scuffle broke out. The defendants were arrested and taken to the police station, where they were charged with violating Section 5--01--05.3, N.D.C.C., which provides as follows:

'Any person who commits an act which disturbs the public peace or constitutes disorderly conduct is guilty of a misdemeanor.' ¹

The pertinent part of the complaint charged as follows:

'. . . did commit the crime of disturbing peace/disorderly conduct, committed as follows, to wit: that the . . . defendant did . . . willfully . . . disturb the public peace and engage in disorderly conduct, to wit: did hamper and obstruct traffic on a public street, use loud and boisterous language and shout obscenities and be on a public street in an intoxicated condition, all disturbing the public peace and other citizens.'

At the trial, the defendant questioned the constitutionality of the statute. The trial court noted that the statute sets forth two separate items, each of which constitutes a misdemeanor. The court declared that the portion which 'constitutes disorderly conduct' was unconstitutional because of vagueness, but convicted the defendants of disturbing the peace. The defendant, Walter Woodworth, on appeal, now claims that the whole statute is void for vagueness and also void for overbreadth.

VAGUENESS

The due process clauses of the State and Federal Constitutions require definiteness of criminal statutes so that the language, when measured by common understanding and practices, gives adequate warning of the conduct proscribed and marks boundaries sufficiently distinct for judges and juries to fairly administer the law. In determining whether adequate warning is given, the court should view the statute from the standpoint of the reasonable man who might be subject to its terms. State v. Julson, 202 N.W.2d 145 (N.D.1972); State v. Hagge, 211 N.W.2d 395 (N.D.1973); 21 Am.Jur.2d Criminal Law § 17, page 99.

The mere use of general language does not support a vagueness challenge.

In State v. Hagge, supra, this court had under consideration the constitutionality of Section 39--09--01, N.D.C.C., which read as follows at the time:

'Any person driving a vehicle upon a highway shall drive the same in a careful and prudent manner, having due regard to the traffic, surface, and width of the highway and other conditions then existing, and shall give such warnings as are reasonably necessary for safe operation under the circumstances. No person shall drive any vehicle upon a highway in a manner to endanger the life, limb, or property of any person.'

The court pointed out that by requiring automobiles to be driven 'in a careful and prudent manner, having due regard to the traffic, surface, and width of the highway and other conditions then existing . . .' the statute prescribed ascertainable standards.

The term of expression, 'careful and prudent manner' over the years has acquired an understandable meaning, and as such constitutes a standard. Likewise, the term 'disturb the public peace' has acquired a common meaning. In the instant case, the obstruction of traffic was both hazardous and dangerous, as well as an act prohibited by law. Any ordinary prudent person possessed with ordinary intelligence should have no difficulty realizing that the obstruction of traffic, coupled with boisterous noises, will disturb the public peace.

From the testimony at the trial, it appears the defendants deliberately attempted to create a disturbance so as to cause a certain police officer to appear. They did succeed in creating the disturbance which they actually set out to do. They cannot now be heard to complain that they didn't know what constitutes a disturbance.

". . . The root of the vagueness doctrine is a rough idea of fairness. It is not a principle designed to convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited." State v. Hipp, 298 Minn. 81, 89, 213 N.W.2d 610, 615 (1973), citing from Colten v. Kentucky, 407 U.S. 104, 110, 92 S.Ct. 1953, 1957, 32 L.Ed.2d 584, 590 (1972).

The test of definitiveness of a statute is met if the meaning of the statute is fairly ascertainable by reference to similar statutes or to the dictionary, or if the questioned words have a common and generally accepted meaning. State v. Willis, 218 N.W.2d 921 (Iowa 1974).

The requisite of definiteness demands no more than a reasonable degree of certainty.

"The requisite certainty may sometimes be supplied by materials outside the statutory definition of the offense. Thus, in the case of a statute that deals with offenses difficult to define, the entire text of the statute or the subject dealt with may furnish an adequate standard of definiteness. Words or phrases which might be indefinite in one of their possible senses will not invalidate the statute where they have a well settled common-law or technical meaning which can be employed. Where a statutory offense corresponds to a common-law offense, it is sufficiently certain without any definition, since the common-law definition may be employed even in a jurisdiction which has no common-law offenses as such. And the definiteness requirement is sometimes stated in such a way as to suggest that it is applicable only where the statute creates an offense which was not a crime at a common law." People of Dearborn Heights v. Bellock, 17 Mich.App. 163, 169 N.W.2d 347, 349, 350 (1969), citing from 21 Am.Jur.2d, Criminal Law, § 17. (Underscoring ours.)

We agree specifically with the underscored statement.

Section 5--01--05.3, N.D.C.C., proscribes acts which disturb the public peace or constitute disorderly conduct. The trial court held unconstitutional that portion of the statute making 'disorderly conduct' a crime, but upheld the 'disturbs the public peace' portion under which the defendant was convicted. The striking down of one clause of a statute as unconstitutional does not affect the remainder of it. Section 1--02--20, N.D.C.C.

Disturbing the peace is a common law offense which has acquired an accepted meaning defined as such a violation of the public order as amounts to a disturbance of the public tranquility, by act or conduct either directly having this effect, or by inciting or tending to incite such a disturbance of the...