*1 This case is remanded district court with instructions to grant the for petition mandamus to compel respondents to reinstate James Patrick Grogan’s liquor license forthwith.
SHERIFF, COUNTY, NEVADA, WASHOE Appellant, v. EDWARD SMITH, LEROY Respondent.
No. 7908
November List, General, Robert Attorney Hicks, Larry Carson City; R. Attorney, Wall, District and Kathleen M. Assistant Chief District Deputy Attorney, Washoe County, for Appellant. Murphy, H. Dale Defender, Public Spec- Michael R.
chio, Deputy Defender, Public Washoe County, Respond- ent.
OPINION Mowbray, Court, J.: By indictment in a three-count charged Smith is Leroy Edward violation .first-degree counts of 2(a),1 subsection and with one count murder in 1(e).2 violation of NRS subsection In a pretrial habeas proceeding, challenged Smith the constitu- tionality of the capital murder it seeking have declared for vagueness. ruled, void The district so judge the State has appealed. constitutional,
To be
a statute must be definite.
Cramp
Instruction,
Board of Pub.
(1961).
Winters New
The phrase “common scheme or plan, design” has acquired a common usage law that admits of two different interpreta- sense, tions. In its widely used relates to phrase evidence of uncharged crimes during act, admissible trial where one 2(a): 1NRS subsection degree “2. Murder of the first is murder which is: “(a) Perpetrated by poison, lying wait, torture, means of or or any willful, premeditated killing;” other kind of deliberate and 1(e), amended, 2NRS subsection as Stats. Nev. ch. 5,§ at 1803: Capital perpetrated “1. by: is murder which is “(e) Killing person more than plan, one as the result aof common design.” scheme or 3One terms, vague such test focuses on whether a its is so intelligence speculate that men meaning. of common must as to its Instruction, supra. Cramp v. Board of Pub. of or more or scheme involves the commission two make it
crimes under circumstances impossible one crime all the crimes. Such was the prove proving Nester, definition court in State v. accorded phrase Nester, In evi permitting dence of to show a common or another offense scheme plan carefully distinguished evidentiary was from a second which admits evidence of a offense to prior prove identity, a where features or of crime specific “peculiarities” previously committed the defendant serve as kind of “trademark” they when in the crime. This latter appear subsequent sense the second context in which the “common or phrase plan scheme” has been used: crimes committed under similar operandi modus that tends to establish the of identity the per Paxton, See petrator. Cal.Rptr. (Cal.App. 1967).
Thus, the “common or phrase plan acquired scheme” has common law in one usage single context that means plan two or more offenses before the contemplating plan has been completed, and that means in another context the having and unrelated offenses perpetration independent a sufficient number in common of elements to make the com- mission of the first relevant to a identity determination of the of the second. perpetrator The issue before the court is whether the existence of these two different meanings makes 200.030(1) (e) NRS so vague render it unconstitutional. The judge, declaring district void for vagueness, ruled in part:
“. . .
. . .
One could
two or more
perpetrate
unrelated
homicides, both without premeditation, deliberation and malice
aforethought and be
guilty
capital murder if he
commits
hand,
murders in substantially the same
way.[4]On
*4
homicides,
one could commit two unrelated
with premedita
tion, deliberation, and malice
in the
aforethought
most atro
cious manner and not be
a charge
vulnerable to
of capital
murder if the two homicides were committed in dissimilar
suggestion
guilty
4The
that under one could be
committing multiple
of
aforethought
for
homicides without malice
merit,
“capital
is without
since the statute defines
murder”
perpetrated
killing
as murder
person
as the result of
plan, scheme,
design;
a common
and under NRS
“murder”
killing
being
is defined as the unlawful
of a human
with malice afore
thought.
intended
Legislature
the
not believe
Court does
This
ways.
added.)
(Footnote
results.”
and irrational
arbitrary
such
that the
is
statutory interpretation5
of
rule
A fundamental
alterna
among
by one
the result
of
produced
unreasonableness
rejecting
is
of a statute
reason
possible interpretations
tive
a
would produce
another that
in favor of
that interpretation
independent-
judge’s
the district
Adoption of
reasonable result.6
would lead
of the statute
interpretation
and-unrelated-oifense
Legis
would ascribe
results. It
unreasonable
indeed to
who murdered
one
severely
to
more
punish
lature
purpose
than one who
manner
victims in
characteristic
a series of
manner.
in an uncharacteristic
of victims
a series
murdered
distinction, this
for such
rational basis
Additionally, with
200.030(1)(e)
violative of
render NRS
interpretation
to
Amendment
of the Fourteenth
clause
the equal protection
the
corollary
previously
to
As
Constitution.
the United States
legis
of
constitutionality
favoring
presumption
mentioned
lation,
constructions
alternative
among
that one
fact
mere
difficulties is
constitutional
involve serious
of a statute would
of another. In re
favor
in
that interpretation
to reject
reason
Further, the
Jones, supra.
interpreta
v.
supra;
King,
People
the purpose
with
is inconsistent
the trial court
tion adopted
in the preamble
Legislature
expressed
of the statute as
penal
statutes are
recognized
long
criminal
that
5'Ithas
been
statutory con
of
usual rules
interpreted
all of the
the aid of
be
with
factor to
an additional
is
the rule of strict construction
struction. While
meaning
ascertaining
criminal
of
courts in
be considered
and is to be
considered
only
to be
several factors
is still
one of
it
statutory construction.
conjunction
rules of
with
utilized
1934),
(Cal.App.
where the
Breyer,
See
applicable to civil statutes
rules of construction
court stated: “[T]he
Ledkins,
also,
See,
State
apply
penal
. .”
statutes .
also
well
1956),
ruled:
(Utah
“[I]t
where
statutory
apply
construction
the same basic rules
established
Sands,
compare
Statutes and
2 C.
civil statutes.” And
criminal and
of
Statutory
(4th
1973),
Construction,
§
where it is
366-367
ed.
at
statutory
construction
keeping
with the
“In
stated:
state, penal
against
strictly
construed
are to
criminal statutes
invalidity
partial
than
down for
be more often struck
tend to
statutes
purely
enactments,
are
though
rules of construction
the same
even
civil
legislation.”
types
dealing
purpose
both
for this
followed
(Footnotes omitted.)
Taylor,
principle, see Cannon
an
6For
(Cal.App.
Davis,
parte
Ex
285,
734 200.030(1) (e).
to NRS That Leg as defined purpose, islature, is to aggravated establish deterrent to particularly 798, instances (Stats. 1973, of criminal conduct. Nev. ch. at 1801.) The independent-offense of “common interpretation scheme or to design” Legislature ascribes a purpose to deter the operandi, mere existence of a modus rather than a single preconceived plan contemplates multiple murder. The stated legislation is a factor purpose considered by courts in given State, interpreting statute. Lott 147, (Okla. 151 1950); Sullivan, United States 332 U.S. 689, 693-694 Board of School Bray, Trustees v. 345, (1941). Finally, Legislature has recently reenacted the substituting “single” word for the word “common” “common phrase plan, scheme design”. 740, 1, or Stats. Nev. ch. at 1580-1581.7 § amended, Where a former statute is or a doubtful interpreta tion of a former statute rendered certain subsequent legis lation, it has been held that such amendment is persuasive evidence of what the Legislature intended the first statute. Valentine, (Cal. Groves v. Meyers, 1950). (Wash. P.2d 483 hand, the clear other alternative to the interpretation
On none of by the district these presents problems. A “single involving several plan” contemplated killings would be crime, heinous a more severe particularly justifying deterrent killings punishment and than not involving planned irrational, Such a multiple-murder. distinction would not be would consistent the stated legislative be and purpose, legislative reflect the recent clarification. theOf constructions, alternative canon of every statutory interpreta- tion case, Most important mandates to the approach. instant fairly meaning
such derives from the language of the Brown, statute. United States v. 333 U.S. 25-26 conclude, therefore, We that the single-plan interpretation not do sought does violence purposes implemented the due voiding clause in process vague ambiguous 200.030(1) (e), amended, 740, § 1, 7NRS Stats. Nev. ch. at 1580-1581: Capital perpetrated by: “1. murder is murder which “(e) Killing person willfully, deliberately and with premeditation single plan, design.” as the result of a according multiple one who commits in that he is argue that not may plan single preconceived argue he him; may nor applied the statute notice *6 great too leave interpreted thus the statute as discriminatory and unequal potential reasons, the order reverse we For these law. unconstitutional, and we declaring NRS below answer Smith, held to respondent, that the order court. in district charge JJ., concur. and Thompson, Zenoff J., concurring: J., and C. Batjer,
Gunderson, elected have majority only issue assume that We to discuss. have elected they the issue this case is decide in to be we understand what agree with therefore We 200.030(1) (e), as that NRS conclusion: ultimate majority’s encompassing as only be construed should adopted, originally of a common the result one person more than “[kjilling However, to arrive [single] design kill].” [to that the to notice only conclusion, necessary find it we at this construction, the strictest available seems foregoing Sheriff construed. strictly must be statutes that penal consider v. Dis- (1975); Sardis P.2d 1191 Hanks, Court, trict construed, the words that, employed strictly we think Since difficulty we have intelligible, are legislature quite unconstitutionally 200.030(1) (e) is not agreeing to refer however, so, feeling constrained doWe vague. the majority apparently and principles of the cases many of that issue. ato determination significant feel are BRADDOCK, C. ALMA Appellant, FRED Respondent. BRADDOCK,
No. 7740
No. 7875
November