STATE OF NEBRASKA, APPELLANT, V. CLIFFORD E. HUFFMAN, APPELLEE.
No. 42154.
Supreme Court of Nebraska
February 27, 1979
275 N. W. 2d 838
Larry R. Baumann, for appellee.
Heard before KRIVOSHA, C. J., SPENCER, BOSLAUGH, MCCOWN, CLINTON, BRODKEY, and WHITE, JJ.
KRIVOSHA, C. J.
This matter comes before the court on error proceedings brought by the County Attorney of York County, Nebraska, pursuant to the provisions of
It is without question that a violation of
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. State v. Nelson, 168 Neb. 394, 95 N. W. 2d 678; Heywood v. Brainard, 181 Neb. 294, 147 N. W. 2d 772. The dividing line between what is lawful and unlawful cannot be left to conjecture. State v. Adams, supra; State v. Nelson, supra. The citizen cannot be held to answer charges based upon penal statutes whose mandates are so uncertain that they will reasonably admit of different constructions. A criminal statute cannot rest upon an uncertain foundation. The crime and the elements constituting it must be so clearly expressed that the ordinary person can intelligеntly choose in advance what course it is lawful for him to pursue. Penal statutes prohibiting the doing of certain things and providing a punishment for their violation should not admit of such a double meaning that the сitizen 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; Connally v. General Con-struction Co., 269 U. S. 385, 46 S. Ct. 126, 70 L. Ed. 322. A statute which forbids the doing of an act in terms so vague that men of common intelligence must necessarily guess as to its meaning, and differ as to its application, violates the first essential element of due process of law. State v. Adams, supra; State v. Pocras, 166 Neb. 642, 90 N. W. 2d 263.
In the case of State v. Adams, supra, this court was called upon to determine the constitutionality of
The statute in question makes it a violation not only to operate a motor vehicle “in a manner so as to endanger * * * any person or property,” but likewisе makes it an equal violation to operate a motor vehicle “in a manner * * * likely to endanger any person or property.” (Emphasis supplied.) If, in fact, as we said in State v. Adams, supra, men of common intelligеnce cannot ascertain in advance when they are operating a motor vehicle in a manner so as to endanger any person or property, all the more must it be said that it would be difficult or at least open to sufficient conjecture as to when one was operating a motor vehicle “in a manner so as to * * * be likely to endanger any person or property * * *” (Emрhasis supplied.) Obviously the question of whether one is operating a motor vehicle in a manner so as to be likely to endanger must of necessity involve opinion and therefore be opеn to conjecture. Likewise, whether one is “likely” to be operating a motor vehicle in such a manner as to endanger any person or property may to some extent depend
The determination as to whether the particular driving was, in fact, in a manner “likely” to endanger may in some instances be ascertainable only after the fact. The standard announced in the statute fails to describe a crime and the elements constituting the crime in a clear, prospective manner as required by оur criminal law. There appears within the statute no ascertainable standard by which men of common intelligence can determine what is unlawful. Under the provisions of the act as it now stands, no injury need occur. The test is only to determine if, in fact, one operated an automobile in such a manner “likely” to endanger. In certain instances that may only be ascertainable after the fact and based upon speculation and conjecture. To permit the doing of an act without violation of the statute if performed by an experienced driver, while making the same аct unlawful if performed by a novice driver, is far too vague and indefinite to withstand constitutional attack. We, therefore, find and declare that
AFFIRMED.
MCCOWN and BRODKEY, JJ., concur in result.
CLINTON, J., dissenting.
I respectfully dissent. The majority finds that the statutory language, “operates a vehicle in a manner so as to endanger or be likely to endаnger any person or property shall be guilty of careless driving,” is so vague and unsusceptible of a determinable meaning that it is unconstitutional. I agree that criminal statutes (as well as others) occasionally may be that vague. In my judgment, however, this is not one of those cases.
This court held a predecessor statute, section 39-
It is apparent the opinion in Adams was founded upon the premise that the language describing the act prohibited did not import an element of “careless or negligent operation,” and that some such language was necessary to make it sufficiently precise. The opinion referred to a New Jersey case with the apparent purpose оf indicating the kind of language which would be acceptably definite and said: “The New Jersey statute included an element of careless or negligent operation which is absent from
The first argument of the majority here seems to be that the word “careless,” in
The majority also argues the statute is vague because whether the manner of driving is likely to endanger “may in some instances be ascertainable
Various statutes and ordinances relating to speed limits, in addition to prohibiting driving higher than a specified number of miles per hour, also contain general provisions making it unlawful to drive at a speed “greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing.”
Third, the majority relies upon one of the myths of the law which the courts have long mouthed unthinkingly, i.e., that the statute must be sufficiently definite so persons examining it may be informed of whаt conduct is prohibited, or as stated in the majority opinion, so the “person can intelligently choose in advance what course it is lawful for him to pursue.” Such statements are myths because the real reason for the requirement of reasonable certainty is to enable courts to determine after the fact what the lawmakers intended to prohibit and whether or not there has been a violation. Nothing is more elementary in the law than that ignorance of
In the very nature of language and human understanding, some concepts, such as careless, reckless, negligent, and greater than reasonable under the circumstances, can be described only in quite general terms. I would hold the statute in question constitutional.
SPENCER, Retired Justice, joins in this dissent.