State v. Musser

223 P.2d 193, 118 Utah 537, 1950 Utah LEXIS 214

• Court: Utah Supreme Court
• Decided: October 20, 1950
• Docket: 6816
• Status: Published

Opinions

WADE, Justice.

Section 103 — 11—1, U. C. A. 1943, denounces as a criminal offense for two or more persons to conspire

“(5) To commit any act injurious * * * to public morals * * *”

Our problem here is to determine whether the broad sweep of that general language, in view of the whole context of that statute and our other statutory and common laws and the history and background of the enactment of that statute may be by construction limited so as to define the offense therein denounced so as

“to give adequate guidance to those who would be law-abiding, to advise defendants of the nature of the offense with which they are charged, or to guide courts in trying those who are accused”

under that subdivision. Musser v. State, 333 U. S. 95, 68 S. Ct. 397, 398, 92 L. Ed. 562.

Appellants were convicted of an offense under the above subdivision. We sustained that conviction on the grounds that the evidence showed that they were parties to “an agreement to advocate, counsel, advise and urge the practice of polygamy and unlawful cohabitation by other persons”. State v. Musser, 110 Utah 534, 175 P. 2d 724, 734. Although the appellants urged that their conviction violated the Fourteenth Amendment to the Federal Constitution, the question here presented was never specifically assigned or argued in any court until inquiries from the bench suggested it during the argument before the United States Supreme Court. That court set aside the convictions and remanded the case to us for further consideration. Musser v. State, supra.

The problem which we must decide as stated above, must be answered in the negative. The argument before this court has developed no reason why we should believe that the legislature intended, in using this language, that it should be limited to a meaning less broad than the words therein used would indicate in their ordinary sense. No language in this or any other statute of this state or other law thereof or any historical fact or surrounding circumstance connected with the enactment of this statute has been pointed to as indicating that the legislature intended any limitation thereon other than that expressed on the face of the words used. We are therefore unable to place a construction on these words which limits their meaning beyond their general meaning. The conviction of the defendants thereunder cannot be upheld. This part of the statute is therefore void for vagueness and uncertainty under the Fourteenth Amendment to the Federal Constitution.

In the case of City of Price v. Jaynes et al., 113 Utah 89, 191 P. 2d 606, 607, we struck down a city ordinance on this ground. That ordinance provided that the right of the people of that city “to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated”, and denounced the violation of that provision as a crime.

While the wording of this ordinance was taken directly from the Fourth Amendment to the Federal Constitution, and the terms thereof have been many times construed by the courts of this nation, still we were of the opinion that under the decision in Musser v. State, supra, that ordinance was void on account of vagueness and uncertainty. If that ordinance was void on that account and in view of the many judicial constructions which have been placed upon those words, certainly in the absence of any judicial construction of the words of this statute, which is equally vague and uncertain, we are not justified in the absence of some historical basis therefor in limiting this statute by construction.

The judgment of the lower court is therefore reversed. The convictions of the defendants are vacated and set aside.

PRATT, C. J., and WOLFE and McDONOUGH, JJ.. concur.