*1 pleaded guilty case, 2d 124. In that N. defendant W. shooting kill, wound, offense of with intent years. The court him to 5 or maim. sentenced Subsequently, defendant moved for leave to with- plea grounds draw his on of the involuntariness plea and ineffective assistance of counsel. The alleged “represented” defendant that counsel “led them to believe” that the defendant would re- 5-year denying In ceive sentence. mo- defendant’s pro- tion, the court held: “The verbatim record of arraignments ceedings plea at of defendant searching inquiry sentence is filled with and clear statements court and defense counsel. Defend- acknowledgment ant’s in context leaves no room for respecting plea doubt voluntariness of the and effec- tive assistance of counsel.”
The record indicates
the defendant under-
charges,
possible penal-
stood the nature
ties,
rights,
pleas
guilty.
his
and the effect of his
Furthermore,
specifically
the court
notified the de-
by any plea bargain
fendant
it was not bound
agreement.
support
This record does not
defend-
pleas
guilty
involuntary.
ant’s claim that his
were
Ristau,
See State v.
201 Neb.
Affirmed. Nebraska, State of appellant, v. Modesto C. appellee. Valencia,
Filed March 1980. No. 42795. *2 Javoronok, J. Brian C. Silverman Michael appellant. appellee. Rehurek, for T. Hansen and Paul
James J., Boslaugh, Heard before Krivosha, McCown, C. JJ. Hastings, Clinton, Brodkey, White, J. Brodkey, constitutionality appeal is the Involved this Supp., 28-1202, which reads as fol- section (2) “(1) Except provided in subsection as lows: this weapons weapon any person section, who carries a or person on or about his such as a a concealed pistol, revolver, knife, dirk or knife bowie with attachment, knuckles, or iron brass or dirk blade deadly weapon, any commits the offense of other carrying weapons. concealed
“(2) affirmative defense that the de- It shall be an any calling engaged business, was lawful fendant any employment carrying the time he was or weapon at weapons, in which or and the circumstances person placed such was at the time were as to such carrying weapon justify prudent person or a person, property weapons, his for the defense of family.
‘‘(3) Carrying weapons is a Class IV fel- concealed (Emphasis supplied.) ony.” Valencia, below, Modesto hereinafter
Defendant place Valencia, his was arrested at referred to charge employment, packing house, rele- on a procedure, appeal.. part As arrest vant to this arresting officers frisked to de- one of Valencia any carrying termine whether or not he was upon During "pat weapons person. down,” a his spring-operated was in Va- switchblade knife found Following pants pocket. prelim- lencia’s left front inary hearing matter, State a two- on the filed against charging defendant, information count violating first R. him in the count with by deception, II S. theft count carrying on or his with person, concealed about
in violation of section 28-1202 Supp., 1978. defendant filed in the District *3 County in- for Scotts Bluff a demurrer to the Court formation grounds upon II, on the that count based void is unconstitutional and because section vague applied, and indefinite on face and as it is its I, 3, section Constitution of the and violates Article Nebraska, Sixth of and the Fifth and Amend- State States; and to the Constitution the United ments quash to date filed a motion the on the same also grounds count on the and each thereof information that violate general, they vague, are so and indefinite as to by rights guaranteed the to the defendant the the and Sixth Amendments to Constitution of Fifth addition, In the defendant subse- States. the United quently II count of the in- filed a motion to dismiss upon allegation that section 28- based the formation and void R. S. unconstitutional vague on its face and as it is and indefinite because applied, I, Constitu- Article violates Nebraska, Fifth the and Sixth the State of tion of Amendments the United Constitution to the States. arraignment postponed pending
Defendant’s was hearing by on the the various motions filed defend- journal entry hearing ant. The on the the motions part Quash reads argued as follows: “The to was Motion to Court. The Court sustains Motion Quash as II to Count of the information. The Quash Court determined that Motion to the cor- constitutionality. rect motion to raise issue of (1) Supp. The Court finds that section 28-1202 (1978) applied is unconstitutional in the instant as by for case the reason that the as disclosed preliminary hearing evidence at fall does not within specific types prohibited of knives but rather category ‘deadly weapon,’ within falls of other category unconstitutionally vague and such [sic]. overboard The Court further determined the defendant Quash had not waived his Motion to filing demurrer, as both were intended motions question constitutionality. raise the April cause, 20, 1979, “Trial of the set is con- thirty days permit tinued for the State of Ne- appeal ruling braska to of the Court as to Count II.’’ appealed
The State has from that order to this court. The record before us does not disclose arraigned any whether Valencia was ever on this or charge; other and it seems that the clear defendant yet placed jeopardy. has not as been appeal, In its brief filed in its the State sets forth assignments “(1) three of error as follows: finding (1) Supp. District Court erred in 28-1202 (1978) (2) applied. unconstitutional The District finding category ‘deadly Court erred in of other *4 weapons’ (1) (1978) Supp. contained in R. S. 28-1202 (3) vague and overbroad. The District Court erred finding filing of a demurrer does not may excepted waive all defects which be a mo- quash.’’ tion to question We conclude that the statute in constitutional, and reverse the order
723 quashing the District Court count II of the informa- proceedings. tion, and remand the matter for further requirement process It is a fundamental due reasonably law that a criminal statute be clear and Adams, 542, definite. State v. 920 180 Neb. 143 N. W. 2d (1966). frequently haveWe stated that a crime must be defined with sufficient definiteness guilt there must be ascertainable standards of to in- subject form those thereto as to what conduct will punishment render them liable to thereunder.
dividing line between what
is lawful and unlawful
conjecture.
cannot be left to
A crime and the ele-
constituting
clearly expressed
ments
it must be so
ordinary person
intelligently
can
choose in
pursue.
advance what course it is lawful for him to
Huffman,
434,
State v.
202 Neb.
Neb.
N. W. 607
v. General
Co.,
385,
Const.
269 U. S.
46 S. Ct.
724
ing people may their conduct so conform as to Shiffbauer, v. avoid that which is forbidden. 197 State (1977); 805, Briner, 251 2d v. Neb. N. W. 359 State (1977). 198Neb. 2d N. W.
Appellee deadly “other contends that the words (1), weapon” Supp., as used in section 28-1202 vague to are so overbroad as render the points unconstitutional, in statute out his brief examples appeal appear on make certain such certain which would nature, in conduct criminal innocent packing carrying aas meat cutter in a house apron, grandmother posses- in knife under his or a knitting point sion of needles. In this connection we parties apparently out that counsel for both have ignored fact, fact, overlooked the the or have “deadly weapon” statutorily the term has been defined Section another of the new Criminal Code. provides part: code, “As used in this unless the context otherwise * * * (7) requires: Deadly weapon any mean shall bludgeon, firearm, knife, device, or other instru- ment, material, substance, or whether animate or inanimate, which in manner it is used or in- capable producing to he tended used is death or * * bodily injury; (Emphasis supplied.) *.” serious (1), Applying this definition to section 28-1202 it enacting Legislature clear that statute designated weapons revolvers, has certain as such pistols, knives, bowie or dirks knives with a dirk attachment, blade knuckles, and brass or iron deadly weapons per se; and the manner of designated weapons or actual intended use of such question. immaterial under the statute However, phrase any with reference to the catchall “or other deadly weapon” as contained in section 28-1202 it is the element of actual or intended use which deadly weapons” renders words “other suffi- ciently provide opportunity definite to citizens an statute; their conform conduct and to dis- tinguish involving culpable con- between situations involving cealment, those innocent conceal- It element of ment. is this use intended use object “deadly weapon” which saves the term from being vague or overbroad. case,
Since the involved in this a switch- specific type knife, is not blade enumerated in *6 (1), Supp., 1978, R. 28-1202 S. we have serious deadly as to a whether switchblade knife is a doubts weapon per being Legis- se, that decision one for the if to determine it to lature chooses amend that statute question. ques- conclude, however, We that the object specifically of whether an tion or not “deadly weapon” in the statute mentioned is a clearly question by a of fact to be decided trier the prosecutions fact statute, of this under and the question depend upon of this resolution will evi- the. adduced as to in or dence the use intended use the object question. “deadly weapon”
However, if even were term statutes, to be not defined in have our we still would question as to serious whether the use of that term question render the would statute in unconstitutional vagueness because Dallman, or overbreadth. In Stout v. (6th 1974), Cir., 2d 992 F. the court held dangerous weapon” the words “other in a providing person, statute that no while armed with a pistol, dangerous weapon, knife, or other shall steal person anything value, from the of another were vague so as to render the statute unconstitutional. difficulty determining The court held further marginal whether certain offenses are within the meaning language vague under attack as does not automatically render a statute unconstitutional language indefiniteness; test whether the conveyed sufficiently warning a definite proscribed by conduct when common measured un- derstanding practices. In that case the court pointed ‘dangerous weapon’ also out: “The term appears
also
without definition in the federal bank
robbery
2113(d).
§
statute.
U.S.C.
A consider
upheld
able number of convictions have been
under
also,
See,
Lewis,
that Act.”
State v.
184 Neb.
(1969).
In the instant quash and the were both filed the same demurrer
727 day, hearing. and on ruled at same Under these facts, we do not believe that section R. R. S. apply preclude 1943, would so the accused from using ity quash a motion to to attack the constitutional- Evjue,
of the statute. In State v. 253 Wis. (1948), 2d N. W. the court held that an informa- charges language tion which an offense of a stat- ute which is unconstitutional no states offense jurisdictional. general the defect rule is p. 461, 2d, Law, stated in 21 Am. Jur. Criminal § question validity as follows: "The as to the of the statute on which the information is based is not properly by plea question, raised in bar. Such if it goes constitutionality face, to the of the on statute its by by quash. should be raised demurrer or motion to generally constitutional, If the statute is and for peculiar some circumstance to the situation of the unconstitutional, accused is that is a matter which is properly general plea triable under the issue guilty.” case, therefore, not In the instant since the question interpretation defect was a matter of appear itself, the statute it would either mo- quash proper tion to method to ute. or a demurrer would be a
challenge constitutionality of the stat- question If it be contended that the of the con- stitutionality only applica- in this case involved its tion to this defendant virtue extraneous facts according forégoing circumstances, then, to the authority, constitutionality of the statute could plea should contested at trial under a of guilty. case, In this so far as we are able to ascer- yet tain, a trial has not been held in the instant case. We conclude that the District Court inwas error in quash sustaining the motion to on information ground question, statute in section 28- Supp., 1978, unconstitutionally was vague and overbroad. The order of the District *8 reversed, remanded, Court and the cause under proceedings R. S. R. for further opinion, appears
consistent with this as it yet placed legal jeop- defendant has not as been ardy.
Reversed and remanded for further PROCEEDINGS. concurring part dissenting J., and Clinton, part. join portion majority opinion I in the of the which holds the statute constitutional. I dissent from that portion opinion expresses of the which doubt that the deadly weapon switchblade knife in evidence is a per provisions se under the of section 28-1202 R. design 1978. I believe S. and the manner clearly in which the knife functions demonstrate deadly weapon per it is a se and that the intention of possessor is immaterial. open A switchblade knife is one which is made to automatically primary purposes and one of its is use weapon. Imports Corporation Kelly, as a 378F. 2d 1014 Precise v. (2nd 1967). Cir., spring-powered The knife here consists of a 3^-inch long. blade and a handle about 5 inches On the handle is a which, button which activates the blade position, when the closed is recessed in the handle. One end of the handle contains a slit or opening through pressed which, when the button projects speed forward, the blade with such that the eye cannot follow the movement. The blade can by pushing retracted in similar fashion button opposite shape strength in the direction. The designed piercing, the blade indicate that it is stabbing. shape design i.e., of the handle purpose. indicate the same At the end of the handle through propelled which blade is are two metal projections apparent purposes knobs, of which apply are to enable the user to forward force and leverage by forefinger thumb; use of the thus projected, before the if blade is the knife is held against body, pushing of the button would *9 projections penetrate. also These the blade cause leverage more con- in the if the knife is used afford ventional Patently, dagger. knife is the
fashion of a deadly. obviously weapon. designed be It can as a except blade is a dirk It is in essence of the A is one dirk and retractable. shorter Where, weapons specifically listed in the statute. general statute, of an enumeration words follow
the particular general things, words will of classes things applying generally of the be construed as though specifically general enumer- class as same Grainger, 555, 38 N. of 151 Neb. In re Estate ated. 435; End, 2d 45 N. W. State v. 232 Minn. 2dW. clearly class of is within the The switchblade 378. enumerated items. weapon as to admit is of such a character Where a question respect, of one conclusion of but “deadly weapon” is the statute it is a within whether weapon question law, is such that of but where a depends deadly the manner and cir- character on its question question use, of its cumstances Ky. Angel jury. Commonwealth, 289 v. for the fact 281, 2d 640. 158 S. W. joins J., dis- in this concurrence
Boslaugh, sent. concurring. J.,
White, (1), Supp., agree 28-1202 I that section agree I the remainder with not unconstitutional specified majority opinion that a unlawfully, only may possessed by upon but the statute possession proof as well as such itself of the prove which would facts and circumstances other * * “* to be used is or intended manner it used bodily injury; producing capable death or serious * * posses- Mere 1978. § 28-109 *.” standing weapon, alone, would not sus- such a sion tain a conviction. joins McCown, J., authorized to state
I am this concurrence. joins J., C. this concurrence.
Krivosha, Nebraska, appellee, Mays, State of Roddess v. M.
appellant. N. 2d 545
289 W.
Filed No. 42845. March 1980. *10 Berry, Creager, appellant. Anderson & for Douglas, Attorney Lynne General, Paul L. appellee. Fritz, Rae J., Boslaugh,
Heard before Krivosha, McCown, C. Clinton, Brodkey, White, JJ. Hastings, Krivosha, C. J. appellant, Mays, appeals Roddess M. from an County,
order the District Court for Red Willow denying Mays’ Nebraska, motion for new trial on newly basis of volved discovered evidence. The facts in- original conviction are set out in the Mays, case of State v. Neb. 279 N. W. 2d repeated will herein. opinion, As we noted in our earlier defense counsel