State v. Nielsen

appellants property answered themselves, conceding they agreed to an- of, agreement providing for sale

one-half, property. the whole of —but appellants are point that

The fourth against damages for breach

entitled to Jet contract,”

of the “first seems to answer

ed there concessions that former’s contract, superseding anyway,

was a —and sup

there is no evidence the record to

port point. the fourth

CROCKETT, J.,C. and CALLISTER TUCKETT, JJ., concur.

ELLETT, J., concurs in result. P.2d Utah,

The STATE of Plaintiff Respondent, Baxter, NIELSEN and Jane

Harold Appellants. Defendants

No.

Supreme Court Utah.

March

Q7 defendants, from Vincent said Guercio to Harold Nielsen and Baxter.” Jane The statute under which the defendants charged 76-12-1, were is Section U.C.A. 1953, and so far as material as follows: persons If conspire: two or more * crime, or, (1) To commit a (cid:127) * * * * * (5) To act to commit morals, public health, the to per- commerce, the to trade or or for justice or version or obstruction of laws;— the due administration of the by punishable imprisonment exceeding county jail one not year, $1,000. exceeding fine not say The that subsection defendants that this court unconstitutional claim has heretofore held in the case of State Hoggan, Logan, appellants. Olson & for Musser, 223 P.2d 193. Utah Hansen, Atty. Gen., Phil L. Salt Lake part That case involved the of the stat City, Daines, respon- David R. Logan, for regarding public only. ute morals was dent. a case wherein a teach to .and practice polygamy charged. was This court ELLETT, Justice: upheld (110 hearing the. statute at the first 534), Supreme appeal Utah defendants P.2d from conviction but “conspiring reversed, to Court of the commit United hold an act for States ing particular or the due adminis the staG of. laws, tration of the in that the ute being defendants under which the defendants were conspire did procure prosecuted obtain and might vague a dis be “so and indefi missal of the case adequately State of Utah v. nite fails to define Guercio, defendant, Vincent Bax offense or reasonable standards Jane ter, changing her statement determining of the facts of guilt.” particular this Since money said case for passing question consideration was not raised the defendants thereby, legislative purpose suggested by not but the Musser case impaired, if Supreme during substantially Court affected or the United States capable fulfilling argument, the statute is still the case was remanded intent, apparent legislative or if re- Supreme pursuant to the fol Utah Court maining portions are ac- sufficient we should lowing language: “We believe complish legislative deduc- question un pass upon raised here not act, op from entire construed in Supreme ible til of Utah has had light contemporary events. portunity issue ultimate deal with this questions with state law federal stricken, If, the invalid when present judgment it. relevant to complete itself which remains is vacated and Court of Utah is capable being executed accord- incon proceedings not cause remanded for intent, apparent legislative ance Musser, 333 sistent herewith.” State v. wholly independent purpose, U.S. 92 L.Ed. 562 S.Ct. rejected, which was must sustained extent; especially rule is back, it got this court the case When provides applicable where the statute superior bowed to a commission words, subjects. the two distinct In other superior in- and held the statute reasons invalidity part not a of a statute does of vagueness and volved therein to be void for where render the invalid remainder uncertainty the Amend- under Fourteenth remains, discarding enough valid after the ment to the Federal Constitution. part, intent and legislative the show to effectuate to furnish means sufficient part The that a a fact statute be saved A statute can intent. held to be does not neces unconstitutional thought severability only entirety of if its sarily parts mean that other are void. also destroyed. is not part may disregarded, The void be the and part Lynch, valid enforced. See Denver v. will sus- part The be valid 92 Colo. 18 P.2d 86 A.L.R. 907. parts the and invalid tained where valid Law, Am.Jur., See also Constitutional it separate and distinct are so policy clearly Section 152. The concluded, clear, presumed may be expressed Statutes, at 82 as § C.J.S. enacted the have would follows: latter, had the former the if without or, invalidity, otherwise may A be known of the as unconstitutional part stated, yet parts not or invalid are he sustained with the offend- the valid interdepen- ing part omitted, paramount intimately if the intent connected or destroyed presumption or chief will be dent as raise mind, presumption in let us enacted the With this not have legislature would up- other, consider the case now before us. will he act one without valid, it will where far as held so only part dealing (d) with We part appears that unconstitutional it is above set out and must decide whether to, such an inducement did not constitute vague ade- “so and indefinite that it fails for, compensation or consideration quately rea- to define offense or they would passage parts guilt.” determining sonable standards for passed without it. not have been justice The crime awas parts meaning various known common to the law. See Wendell’s clearer statute here involved will he made Commentaries, page Blackstone if we set the statute out as follows: law was well defined and consisted of persons conspire: If two or more by the number of acts which had been held any To commit act court to constitute the offense of interfer- health, (a) injurious public to the ing with the court and its officers in morals, (b) injurious due administration of the law. commerce, (c) trade or The fact that the courts had decided that (d) for the or obstruction ways committing there were different due or the administration of the crime of obstructing justice or the due ** laws; *. administration laws not make does It is difficult to there can vague see how Burglary like- indefinite. any interdependence be between wise at common law could be committed provisions listed can ways, above. Each different all of de- which had been any degree stand or fall affect without in cided It courts. was committed ing case, supra, the others. Musser breaking entering dwelling intent part (b) this court above set out to felony. to commit a It also was committed yet unconstitutional. It has not determined by entering open dwelling door or a with- whether (a), (c), (d) are valid or breaking any part building. out void. by breaking entering a was committed church or forth with a barn or stable and so statutory rule of con felony intent to commit a when said out- struction is to hold an enactment buildings are fence with inside of a common clearly appears valid unless it dwelling. provision to violate some Constitu tion of this State or the United nothing thought vague States. There was to be Law, See 16 Constitutional burglary long indefinite about as § C.J.S. particulars indictment out the We hold that the set of the stat charg ute under would amount to crime. which the defendants were ed and convicted is not unconstitutional. It will rioted that statute involved by holding In this we are fortified attempt punish herein for does “ob- In Loren the California Court. “conspiring structing justice” only but for An Los Superior for son v. and commit an act for ob- a geles County, 216 P.2d 35 Cal.2d justice or struction of administra- due practically own identical with our tion of the laws.” At being unconstitutional. was attacked as n charged with These-defendants were con- it is said. page Reporter Pacific spiring act, to-wit, changing an state- do making attacks Lorenson money ments-of’facts case for named upon the conspiracy an criminal offense 'paid to alleged them. It was that said act ground vague uncertain that it is so was' for the obstruction or the as to be violative of the constitutional Nobody 'due administration of the law. requirements process. also He of due could fail the offense what understand equally contends that the indictment was, anybody that such nor could believe not, vague conduct law and indefinite. both at common now, adminis- an interference with the due con- 182 defines criminal Section as tration the laws. spiracy “ committed with acts do an evil act which been defined has justice, pervert or obstruct years hundreds c>f that constitutes . laws.” or the administration of the due , - crime. . Generally speaking, con- conduct which against public justice, there crimes in

Whether be common law stitutes an offense Utah is of the matter or the law includes gist administration of immaterial. is whether the knew that what both an defendants malfeasance nonfeasance they conspired to do defined as officer in administra- had been connection with the things duties, anything age-old one of the as obstruc- known tion and also his ting justice. person It seéms us done hindering clear' to or obstruc- dhargé pursuant thereto ting performance statute and of his made officer Vague obligations. neither nor indefinite but official Such an offense was they .give recognized do generally de- at common reasonable'standards law and firstly Now, termining guilt punishable the defendants misdemeanor. a. conspiracy, quite generally, when entered it has a statu- been made .into lastly by jury and, tory they found de- crime under circum- some .when stances, Burdick, guilty charged. felony. fendants Law

71 382, specific 1, seq.; provisions et 20 in the Penal Code p. (1946), vol. Crimes concerning Against Public 347-354. “Crimes Jus- Cal.Jur. tice,” certainty- of words and the relative California, relating to the statutes been employed in statutes have Against Public “Crimes Justice” subsec-, valid, be said cannot I, VII, Penal found in Part Title Code tion 5 of section 182 the Penal rescues, Bribery, escapes, perjury, Code. unconstitutional. evidence, falsifying and other acts which would have been considered offenses case was- holding in the Lorenson The against at administration of of People quoted approval in the by legis- common law are criminal made Sullivan, Appeals, District Court of 182, lative subdivi- enactment. Section Cal.App. California, 113 Fourth District of 5, making sion a more 510, 520, de 2d a case 248 P.2d which was punishable to commit case, be supra, was cided after the Musser against public offense The' justice. Supreme fore the the United Court of meaning pervert “to or ob- the words States. justice, struct or the due administration judgment the District' Court easily

of the laws” is ascertained ref- hereby should be and it is affirmed. erence either law or to to the common specific the more enumerated crimes CROCKETT, J., J., C. TUCljCETT, * ** I, Part Title VII. concur. Although, higher standards .of certain CALLISTER, (dissenting).

ty required penal will be than of civil Justice:' statutes, Levy Leasing Siegel, 258 Co. v. rely heavily upon The defendants this 595, U.S. 42 S.Ct. 66 L.Ed. court’s decision in State v. Musser where sufficiently statute is cértain it em portion 76-12-1 it was held that the ploys long usage words of with a com (5) relating acts “to meaning, “notwithstanding mon law an morals” because was unconstitutional .degree as to element the definition vague and In that was uncertain. ** might which estimates differ.” defendants had been convicted under the; meaning Considering teaching advocating the well-settled practice pervert polygamy. at common law words This court affirmed,, “to appeal justice, or obstruct taken due adminis- the conviction2 and was laws,” Up tration of and more to the States Court. United Musser, 118 Utah 223 P.2d 193 State v. P.2d 110 Utah 6 ) (194 . vagueness point, guilt. (Citation able standards of omit- issue Legislation may had been uncertainty ted.) run of the statute afoul of raised, had claim although the defendants Due Process Clause because it fails to process adequate guidance ed that had been due who denied to those be law-abiding, under the 14th issue would defen- Amendment. to advise arguments be during first raised the oral dants nature of the offense with by ques they prompted charged, guide fore Court and was to trying tions from the bench. The courts in those accused. who are set aside the remanded the convictions and (Emphasis added.) case to this court for consideration phrase “per- The State contends that the question.3 version or

Mr Jackson, speaking for Justice due administration more of the laws” majority Court, of the stated: “injurious public definitive than morals.” to points phrase It out that the had a former narrowly It is obvious that is no this accepted meaning well-defined and at com- presume drawn statute. to do not We law, citing in mon numerous authorities interpretation may to what it as support thereof.4 itself, Standing by include. it would seem to be warrant conviction for except Utah has no crimes or offenses agreement to act which do almost those that are created or ordin judge jury might find at the mo- 76-12-1, Under (1) ance.5 subsection contrary ment to its notions of his or general conspiracy statute, may persons our trade, good health, morals,

what was charged be conspiring with commit a to commerce, justice or order. Therefore, (S) must crime.6 subsection inquiry This led to an to whether the as specifically “spelled refer acts not out” to attempts so much that cover in Lati- our criminal statutes. Mr. Justice effectively it nothing. covers Statutes mer, concurring opinion his the sec defining may pur- case,7 recog crimes fail their ond decision Musser (cid:127) pose they provide do not some reason- nized this and stated: 95, Utah, Crimes, (1946); 3. Musser v. State of U.S. 68 333 6th Ed. Vol. § 1401 (1948). seq. p. S.Ct. 92 L.Ed. 562 et do not These authorities g., Mochan, 4. E. directly prob Commonwealth Pa. v. deal constitutional Super. 454, Sykes (1955); 110 A.2d 788 herein involved. lem (1962) v. Hammond, Director of Public Prosecutions 5. Moorehouse v. 60 Utah 528; Case, A.C. Roberts Cokes Insti 209 P. 883 Bailey (1569); Regina undoubtedly statutory tutes 139 6. This refers (1956), 15; Law, Perkins, N.I. Criminal crime. p. (1958); Marshall, 1, supra. Clark and 7. Note * * * provi- suggested has been that the (5) subsection a catch-all phrase can interpreted guides, be to indi- sion limits. without standards or legislative cate a effect intent to limit its opinion majority State and specified those acts which are place great upon certain reliance decisions legislature in other stat- sections of the upholding courts of California8 being injurious utes as morals. constitutionality conspiracy of a California argument This overlooks fact statute9 which is almost identical with legis- if the acts were denounced 76-12-1(5), U.C.A. 1953. The Lorenson crime, lature would constitute a appears case leading (1) subsection in- covers those respect. police captain parties conspire stances where to com- others were indicted for com mit a crime. robbery, mit to commit assault with a contemplated must have ad- some acts deadly weapon “pervert and to or obstruct ditional to those defined crimes when justice or the due administration of the wording selected the The acts used. laws.” The court that, “In Califor encompassed by phraseology sub- nia, statutes relating to ‘Crimes appear to be those over Against ’Public are found in Part Justice’ above the ones in mentioned subsection 10 I, VII, Title of the Penal Hence, Code.” Otherwise, (1). the enacted “(t)he meaning of the words pervert ‘to provision. a useless justice, obstruct or the due administra statute, interpreting legis- the tion of the laws’ easily is ascertained presumed lature will be to have inserted reference either to the common law or to every part for a and to have in- specific the more crimes enumerated in every part given that tended effect. I, Part Title VII. A conspiracy with or should, Significance meaning and among public perform officials not to their possible, every phrase, be accorded and duty official to enforce criminal laws is a construction favored which will justice obstruction of and an indictable every operative render word than rather offense at common law.” phrases one which makes some or sub- nugatory. adopt If we sections the fore- No mention was made of Musser v. 11 going rule of construction we must hold State in the case, although Lorenson the. Superior Court, 49, 8. v. Code, Lorenson 35 Cal.2d 9. Calif.Penal Sec. subd. 5. (1950); People Sullivan, counterpart 216 P.2d 859 v. Chapter Utah’s found in Cal.App.2d 510, (1952); 113 (76-28-1 248 P.2d 520 28 of our seq.), Penal Code et Superior Court, v. Calhoun Cal.2d 46 U.C.A.1953. 3, supra. 291 P.2d 474 11. Note that cases have chartered boun- Supreme 'three the United States of decision years daries, its limitless sea of otherwise two published about been had criminality. prior thereto. subsequent California cases of Sul- ^[******] Hence, interpreted by supra) the follow- Califor- (note and Calhoun

livan cases, later nia not limit- However, a still section subd. in ed Lorenson. foregoing less *. but contracted .case,12 the three of the decisions Mus- rule of analyzed and cases were “public only the term morals” was While latter In this recognized. was ser State State, precisely involved in Musser v. charged defendant was language opinion nevertheless justice pervert and obstruct conspiracy to (previously quoted) indicates and due administration and United States Court was aware of Cali- defraud State cheat provisions the other of subsection violation property means fornia of subject to our them considered tak- Penal Code 4570 of section the same frailties. Quentin with- manuscript of San ing a out Again, while this court’s decision by means permission of warden out Mussqr con second of State v. book. distribute sell and acts to such morals,” “public fined the lan to the term charge of court’ The. “[t]he guage opinion has contained the main to cheat justice obstruct application phrase perver “for applied in cannot be the state and defraud the due sion or Code, Section sweep under Penal full .its Mr. administration laws.” Justice the in- .182,. down If we narrow svtbd. opinion, Wade, stated: author of that conspiracy under subdivision to a dictment argument before this section to violate 1 or 5 of why developed reason we no court has Code, it stand.” will Penal legislature in- should believe Tobriner,14 speaking . Mr. language, tended, using Justice fol- Appeals, made Court of District meaning broad limited to a less should be lowing observations: in- therein used would words than the ' ordinary lan- No their sense. constitutionality dicate in of the Califor- n any of statute upon guage fact this or in statute," rests nia however letter, any prison Cal.App. Superior Court, take from the oner or 12. Davis person writing, etc., (any confined from 2d 345 P.2d 513 ' ' any á misdemeanor therein. makes il Which Presently permission person, Justice 14: Associate of without ány' pris- of of warden, the State California. to communicate’ with

7g any HENRIOD, other law J., this state or thereof or concurs in the dissentr surrounding ing opinion historical or circum- CALLIS'FER, of fact .J. connected with

stance the enactment of HENRIOD, (concurring in the Justice: pointed this statute has been to as indi- dissenting opinion CALLISTER, J.) cating any intended I limitation thereon other that ex- concur in .opinion than the dissenting of Mr. pressed on the doing words used. Callister. In suggest so I Justice face of place to, We are therefore unable to the main opinion con- disregard seems struction on these our own words which limits law. upon

their meaning their mean- Some punch lines of the main ing. This opinion purporting support copiously therefore vagueness void for and uncer- refer to the common Blackstone, law and tainty under Amendment the Fourteenth both of which or whom so far case (Emphasis to the Federal Constitution. concerned, inapropos. Our státute added.) and case law posthumous are honorable testimonials to this. 76-1-11, Sec. U.C.A. foregoing court in the did not. 1953, says “A public crime or offense is “public see fit limit or define morals” an act or committed omitted in violation reference either to lazo the common of a law forbidding it, or commanding specific crimes our Penal enumerated in annexed, upon conviction, any against injurious public Code. Acts of the following punishments: Death, 1) decency morals and were common law 2) Imprisonment, 3) Fine, 4) Removal from crimes as perverting were acts or obstruc- ” * * office. Neither the common law ting justice administering or the due Blackstone, nor know, so far as I said what laws.15 penalty conspiring was for commit to. foregoing, view of the am any I constrain- act perversion “for the or obstruction ed to dissent and to hold that 76-12-1(5), justice,” charge in this —the —and making it conspire a crime to to commit unrevealed the main opinion. Was it act “for the death, imprisonment obstruction (and for long), how from, or the due administration fice, fine or removal our laws,” “any like act suggests, obviously referring to other sec — morals,” is vagueness void for and uncer- pen tions of the statute to determine- the tainty under the alty? Fourteenth Amendment Did common law or Blacksone to the Federal Constitution. penalty set the pervert Burdick, Crimes,

15. 1 Law § standable, opinion, “perversion my than statu it one of our justice? Was obstruct justice.” phrases Both ordeal, or obstruction it trial penalties, tory or comma, only by a in the separated were the thumb water, by hanging, champion, paragraph of statute. the same simple answer same the rack? or screw to the common is made if reference opinion agree I main that one with reference make the crime it should law as to unconstitutional, may part be of a statute is that simpler answer penalty. A constitutionally may but another any law crimes common there aren’t supports preserved. opinion the main But statutory, Moore Utah, they purely — by citing 82 Statutes this conclusion C.J.S. up. clearly points house Hammond1 v. Hornbook, not but of which § —all Therefore, disarming to consider is is applicable here, premises thesis since it its or Blackstone law talk about common separate parts. clarity obscurity on hap what would in this One wonders case. excerpt Lorenson from the California being a pen person accused were help, ac- it is based on case does not since perversion witch or a sorcerer under crimes, ceptance of common —which justice statute. espouse. not this state does compare in this case To the statute forgets opinion that where The main disarming. statute, equally is burglary ambiguity in a vagueness is a there could elementary student any I think school statute, elementary such criminal statute, it and burglary understand read our ac- is to be in favor doubt resolved defy I penal implications. But fear its of constitutional cused favor instead know understand Rhodes scholar debatably available words reconciliation of ectoplasmic wording constrictions of the to the common lexicographer, but not any act conspiring “to commit citizen.2 jus- for the or obstruction section, part de- tice.” in the Musser of which was Mr. The whole Justice Jackson agreed stroyed being in knock- unconstitutional with such conclusion fate, the same ing phrase “to act in- case should receive out the commit Musser com- morals,” of a phrase only irrespective the circumstance jurious Twins. separating the ma verbal euphonious, more but much under- Siamese more Ringwood State, 2d 8 Utah P. 1. 60 Utah P.2d 943.

Case Details

Case Name: State v. Nielsen

Court Name: Utah Supreme Court

Date Published: Mar 28, 1967

Citation: 426 P.2d 13

Docket Number: 10342

Court Abbreviation: Utah