*1 HODGES, C.J., concurs in result. negligent ably find a casuaHink between injury the facts are or where act and SUMMERS, J., part, dissents concurs jury find that undisputed.15 A part. duty is reason- injury from the breach of the cause of the ably foreseeable and the direct duty
injury. A vendor is not relieved the law in at- the minor violated
because However, jury tempting purchase beer. Oklahoma, Appellant, STATE also at that the minor was also conclude attempting purchase by con-
fault suming in violation of the law.16 Boyd beer and Steven JOHNSON Smith, Appellees.
David No. S-90-1067. CONCLUSION Appeals of Oklahoma. Court of Criminal law, a commercial vendor Oklahoma Under 29, 1992. Oct. statutory duty sell beer to not to has Rehearing Opinion on Jan. jurisdic- duty minors. This is consistent recognize that minors are treated tions that duty statutory
differently than adults. A vendors in order to
imposed on commercial the effects of alcohol.
protect minors from consump- statutory duty exists whether off-the-premises of the on- or
tion is for
commercial vendor. that the minor violated the
The fact consuming beer does not purchasing or
when be-
prevent a cause of action because—-as the minor —it is the
tween the seller and responsible party in the
seller who is protec- can facilitate the
action. The vendor by complying with the stat- of minors
utes, determining age of the consumer minors. refusing to sell to
QUESTION ANSWERED. V.C.J., SIMMS,
LAVENDER, OPALA,
HARGRAVE, ALMA WILSON
WATT, JJ. it, recognize that the minor is By Through Hampton chases Hampton v. Ham And mons, (Okla.1987). Therefore, completely 743 P.2d the vendor faultless. comparative negli- the defense of could raise Legislature adopted com- Oklahoma has However, gence. conduct of the vendor is if the parative negligence, which no 23 O.S.1991 wanton, intentional, willful, then found to be recovery longer completely plaintiff bars a from apportioned par- between the fault must not be plaintiff partially While a cause at fault. if the Inc., Stores, Country Tomlinson v. Love's ties. vendor is the allowed because the of action is (Okla.1993); Graham v. Keu- illegally responsible party the vendor more (Okla.1993). illegally pur- 361-363 chel a minor and a minor sells beer to
tionally vague and invalid and that the Sec- failed properly ond Information Amended allege charged. crime under the statute argues Bliss erred *3 1503(C)(1), § determining 47 unconstitutionally vague and invalid. Section provides: buys, Any disposes, C. 1. sells, transfers, possesses or vehi- motor part, knowledge cle or motor vehicle identification number of the vehicle part has vehicle or motor vehicle motor counterfeited, altered, defaced, been de- falsified, stroyed, disguised, forged, obliter- ated, removed, upon guilty or conviction is by felony, punishable imprisonment (5) years, by than five for not more Fifty fine than Thousand Dol- of not more ($50,000.00), imprison- lars such or both ment fine. provisions paragraph 1 of this The apply to a
subsection shall not motor vehi- who, processor cle normal scrap faith, legal and in good of business course processes a vehicle or motor vehicle motor part by crushing, compacting, methods, provided similar vehicle identification number is not removed from part the motor vehicle or motor vehicle prior during any processing. to or paragraph Atty., Thygesen, D. Asst. Dist. Norman apply subsection shall not owner or Bickel, Intern, Legal Muskogee, for Janet a motor possessor of vehicle or authorized appellant. part motor which has been recov- vehicle by ered law enforcement authorities after Fite, Muskogee, appellees. Julian K. having or where the condition been stolen of the vehicle identification number of the OPINION part or motor vehicle is vehicle reported known or has been to law JOHNSON, Judge: pre- authorities. It shall be enforcement law enforcement authorities sumed O.S.1981, knowledge have all vehicle identification 1053.1, appealing of District vehicle or numbers on a motor motor vehi- Bliss, District Court of Mus- altered, counterfeited, part cle are which September kogee County. On falsified, defaced, disguised, forged, obli- CRF-88-527, Judge granted Bliss Case No. terated, removed, when law enforce- Appellees’ charge motion to dismiss the ment or return the mo- authorities deliver Chop Shop O.S.Supp. Operating a under 47 1503(C)(1), part to its tor vehicle or motor for the that 47 reasons 1503(C)(1) possessor after it has unconstitu- owner or authorized
H39
preme
particularly
au-
advised that
recovered
law enforcement
been
involved,
merely speech
conduct and not
having
reported stolen.
thorities after
been
the overbreadth of a statute must not
Judge Bliss offered neither reason nor find-
real,
well,
judged in
but substantial as
uncon-
ing in his Order
this Section
plainly legitimate
relation to the statute’s
Appel-
we must consider
stitutional.
end,
sweep. To that
whatever overbreadth
addressing
their at-
response
lees’
herein
through case-by-
exist should be cured
statute.
tack
said
analysis
of the fact situations to which
sanctions, assertedly, may
applied.
not be
first address
“facial”
We
challenge1 to the overbreadth of Section
guidance,
For further
we look to the con-
statute,
Appellees argue
be
*4
Estates,
in
siderations set forth
su-
Hoffman
not take into consideration re-
cause it does
pra,
Supreme
Court stated as
practices
manufacturing
and because one
follows:
possession
subsection of the statute makes
challenge
In a facial
to the overbreadth
illegal,
legal
possession
and another makes
law,
vagueness
and
a court’s first task
conceivably sweep
into its ambit inno
is to determine whether
the enactment
persons
legitimate
It is a
cent
and
activities.
reaches a substantial amount of constitu-
adju
principle of constitutional
fundamental
not,
tionally protected
If
conduct.
it does
person
dication that “a
to whom a statute
challenge
then the overbreadth
must fail.
may constitutionally
applied
will not be
The court should then examine the facial
challenge
ground
heard to
that statute on the
and,
vagueness challenge
assuming the en-
may conceivably
applied
it
unconsti
implicates
constitutionally pro-
actment
no
others,
tutionally
in
to
other situations not
conduct,
uphold
tected
should
the chal-
v.
before the Court.”2 Broadrick
lenge only
impermissi-
if the enactment is
601, 610,
2908, 2915,
413
93 S.Ct.
37
U.S.
bly vague
applications.
in all
A
of its
(1973).
830,
pre
A
L.Ed.2d
839
statute is
plaintiff
engages in
some conduct that
sumed to
constitutional and the
clearly proscribed
complain
cannot
of
unconstitutionality
alleging its
has the bur
vagueness
applied to the
of the law as
proving
beyond a
den of
same
reasonable
conduct of others. A court should there-
1052,
Nunley
doubt.
v.
1056
complainant’s
fore examine the
conduct be-
381,
(Okl.Cr.1983);
v.
P.2d
S.AH.
753
analyzing
hypothetical applica-
fore
(Okl.Cr.1988). Appellees have failed to
383
added)
(Emphasis
tions of the law.
Id.
carry that burden.
at 102
at 1191.
455 U.S.
S.Ct.
(Okl.Cr.
370,
Pegg
P.2d
light
principles,
in
When viewed
of these
1983),
this Court considered
overbreadth Appellees’ overbreadth attack on Section
recognized
challenge and
the limitations set
Indeed,
no
1503 must fail.
there is
constitu-
Broadrick, supra,
out in
on the use
over-
right
possess
tional
motor vehicles or mo-
on its face. The
breadth to void
parts having altered identification
tor vehicle
Supreme Court advised that
a stat
legitimate
numbers. The State has a
inter-
sparingly
harmful,
facially
controlling
constitutionally
ute
invalid should be used
est
Further,
“unprotected”
1503 does
only as a last resort.
the Su-
conduct. Section
and
Court,
Supreme
recognized
Flip
limited
Supreme
Estates v.
2. The
some
Hoffman
side,
Estates,
102 S.Ct.
exceptions
principle,
455 U.S.
to this
but
narrow
Hoffman
(1982), citing
71 L.Ed.2d
“weighty countervailing poli-
Steffel
because of most
1346,
this Court
where
trial court held that the Amended Informa
held,
considering
sufficiency
“In
properly allege
Specifi
a
tion fails to
crime.
statute,
necessity
must of
that statute
cally, they argue:
light of the
examined in the
conduct of which
(We
Ap-
charged.”
a
that
defendant is
note
allegation that any
1.
no
of the
There is
pellees’
cannot be
in this
conduct
evaluated
passed through
items had not
the hands of
trial.)
officials.
case,
was no
enforcement
since there
receiving
knowing
property
it
been
3.
dealt with the
received such
to have
The statute
crime
in
"(2)
provided,
Every
property
part:
wrongfully
presump-
stolen
obtained.
so stolen or
This
presumed
bought
...
to have
shall
any
requires
part
ther
intent on the
of the ac-
allegation
is no
that
2. There
any
cused to commit
other criminal act nor
items had such
require that
does it
accused alter the
placed in commerce.
allegations
number. These
are
identification
allegation
guilty knowl-
There is no
properly brought
under violation of Section
part
Appellees.
edge
act on the
1503 B.
allegation
Appellees
4. There is no
The fact that none
the items were
operating
chop shop
or had knowl-
were
alleged
passed through
not to have
the hands
edge
stolen status of the items.
(Assertion
of law enforcement officials
num
allegation
There is no
of intent on the
1)
part
ber
forms no
of the definition of the
any
part
Appellees
to commit
possession.
merely
excep
crime of
It is
criminal act.
proviso (paragraph
tion or
3 of subsection C.
allegation
Appellees
6. There is no
1503)
pleaded.
of Section
and need not be
themselves altered
of the numbers
long
purely
that matters
This Court has
held
the items.
pleaded
of defense need
the indict
First,
support
fail to
But,
we note that
negative
ment or information.
position
authority,
citation of
part
averment is an
material
essential and
Second,
reasoning
argument.
we note the
offense,
negative
averment should be
any support
provide
failed to
trial court
pleaded
the indictment or information.
holding the Amended Information defective.
Duggins v.
76 Okl.Cr.
See
(1943);
P.2d
Penn v.
13 Old.
specifically
Amended Information
al-
(1917); Wright
164 P.
Cr.
leges
Appellees,
(1922).
P.
Okl.Cr.
unlawfully, wrong-
“... did then and there
no merit to this
There is
assertion.
conjoint-
fully
feloniously,
acting
while
other,
aiding
abetting
*6
ly, each
the
did
Finally,
Appellees’
we address
asser-
possession
in
certain motor ve-
have
tion that
the Amended Information fails to
parts
with knowl-
hicles and motor
operating
chop
allege that
were
a
edge
num-
the vehicle identification
charged
op-
shop. Appellees were not
and motor vehi-
bers of the motor vehicles
erating
chop shop,
properly
a
which is
altered, counterfeited,
parts
cle
had been
1503(A)(1).
brought
From the
under Section
defaced, destroyed, disguised,
falsified language
charge in
In-
of the
the Amended
(Em-
obliterated,
forged
...”
to-wit:
formation, Appellees
charged
were
with a
added)
phasis
1503(C)(1). However,
violation of Section
we
point
in
must
out that the form of the Informa-
allegations
contained
the Amended
provide designation,
language
the stat-
tion does
a
“INFORMA-
Information track the
For_”,
Style
sepa-
under the
will address each assertion
TION
ute. We
name,
preceding the form
IN-
rately.
Appellees’ assertion number
the case and
As to
FORMATION,
(2),
the formal
allege
to
that the
under which
two
there is no need
case,
charge is to
set out.
the
items listed in the Amended Information had
words,
filled in with the
“OPER-
placed
com- blank was
Surmising
A
alleges,
the information
in re- ATING
CHOP SHOP.”
merce since
listed,
may
have been the source
spect to each item
that the numbers
allege that
that the State failed to
had either been removed or
assertion
on the items
point
they
operating
chop shop,
a
we
three
were
obliterated. As to assertions numbers
(3)
of the
(4),
designation
of the name
specifically
information
out
and four
the
or information is
knowledge.”
to assertions
offense
the indictment
alleges “with
As
(5)
(6),
controlling importance, since it is not
not of
five
and six
numbers
name,
description
crime
1503(C)(1),
the
for the accused to be
the
but
order
thereunder,
charged.
the offense
possession
nei- which characterizes
guilty
found
added)
however,
(Em-
by proof.’’
phasis
may,
be rebutted
the
was
Accordingly,
facts
after
order which
entered on
when the essential
consti-
effect of
tuting
alleged,
a crime are
the mere misno-
June
the
the order
governed by
provisions of 22
mer of the offense in the information is not was
the
O.S.
prejudicial.
§
provided:
See Collins v.
Okl.Cr.
which
(1925), citing
P.
Luther
sustained,
judgment
the
If the demurrer is
(1921);
18 Okl.Cr.
question of can serve prosecuted all future the LANE, P.J., LUMPKIN, V.P.J., for cases 858-101, § O.S.Supp.1974, of 59 et J., PARKS, seq., and that order of the the court BRETT, J., concurs result. sustaining prosecu- the demurer bars further
tion of the
under the
infor-
defendant
same
arising
mation
information
out of his
ON REHEARING
OPINION
operation
day
of Tulsa on the
Rentex
6th
JOHNSON,
Presiding Judge:
Vice
April,
1975.” We based this conclusion on
time,
fact that at
means for
Appellant,
pursuant
to 22
pursue
appeal
the question
the State
O.S.1981, 1053.1,
appealed a
of Dis
constitutionality
pursuant
to 22
was
O.S.
Bliss,
trict
District Court of
1053(3),
1971, §
“Upon
question
reserved
County,
Muskogee
who determined 47
municipality.”.
state or
1503(C)(1)
to be unconstitu
However,
tionally vague and
legislature
invalid. This
issued
our
enacted
reversing
opinion
tidal court and
provide
re
1053.1
*7
manding the case for trial. See State
appeal
judgments holding
v.
automatic
stat-
(November
Johnson, OBJ,
7,1992).
No. 41
utes unconstitutional in criminal cases. We
Boyd
Johnson and Steven David
so
believe it did
in order to avoid the result
herein,
Smith, Appellees,
their Petition
filed
had to reach in
It is
we
Mazurek
absurd
urging
for trial
legislature
that
Court’s remand
that the
think
intended to reward
prior
inappropriate under the law and
the first
a defendant because he was
to have
granted
rulings of this Court. This
erroneously
Court
a trial court
rule a
un-
Rehearing
the Petition for
and directed the
constitutional.
is not tanta-
Such
respond.
sustaining
State to
mount to one
a demurrer to an
where the
indictment
information
defects
rely
decision in
this Court’s
O.S.1991, 504,
appear
enumerated in 22
as
(Okl.Cr.
Mazurek,
H43 judge subsequently before the ruled a holding,
statute unconstitutional. In so Tinkler,
expressly overrule (Okl.Cr.1991) any other to the case they
extent that are inconsistent with this
opinion.
Accordingly, per original opinion as our
herein, is REMANDED trial.
The Clerk of this directed to issue
the mandate forthwith.
LUMPKIN, P.J., CHAPEL, J.,
LANE, J., participating. REVILLA, Appellant,
Daniel Juan Oklahoma, Appellee.
STATE of
No. F-87-993. Appeals
Court of Criminal of Oklahoma.
April
Rehearing Denied June