State v. Malusky , 59 N.D. 501 ( 1930 )

I dissent. We are construing an habitual criminal statute which authorizes the imposition of life sentences in the penitentiary in cases where the law is applicable. In § 4 of the statute the legislature provided that the act should "not apply to offenses made felonies by statute not involving moral turpitude." The legislative history clearly shows that this act would not have been passed at all but for the insertion of this proviso. What does this proviso mean? What was in the mind of the law making body? That is the question to be judicially answered. I agree that the act should not be strictly construed, but in my opinion there is a vast difference between construing a penal statute strictly in favor of the accused and against the state and construing it strictly against the accused and in favor of the state. As I view it the latter is the effect of the majority holding here. Surely, an act that authorizes the imposition of a life sentence should be reasonably clear in its statement of the conduct on account of which such a penalty is imposed. The legislature having said that the extreme penalties provided should not apply to offenses made felonies by statute not involving moral turpitude, it has in effect said that there are such offenses. It cannot be assumed that it employed so much language to no purpose whatsoever. It is the duty of the court to ascertain if possible what this language means. It is the duty of the court to say what felonies the legislature had in mind when it excepted offenses not involving moral turpitude or, if it cannot do so, to hold the act void for indefiniteness. In my opinion the court can not possibly give effect to the legislative intention by indulging in a process of reasoning to the conclusion that all forbidden acts involve moral turpitude. For the purpose of applying this act the very clear legislative determination to the contrary should be conclusive on the court. Any construction of the language employed by the legislature based upon a judicial conception of moral turpitude which obviously differs from that which was in the legislative mind, is in my judgment not permissible. It not only construes a highly penal statute strictly against the accused, but it makes the penalties applicable upon a much broader basis than was plainly intended.

It seems to me that the majority members of the court in the instant case, by their construction, effectually strike from the act the proviso, which is a vital part of it, and give effect to the remaining three sections as though the proviso did not exist. This they do while agreeing that the proviso was intended to qualify the three sections which they enforce but without being able to agree upon the extent to which the sections enforced are qualified. When a highly penal statute is so indefinite in its meaning that a majority of the members of the court of last resort in the state are unable to agree upon an interpretation, it is surely lacking in that degree of clearness and certainty which heretofore has always been required of penal statutes.

How can the decision in the instant case be thought to accord with the rule of construction applied in State v. Fargo Bottling Works Co. 19 N.D. 396, 26 L.R.A.(N.S.) 872, 124 N.W. 387, at page 402 of the state report, as follows?

"Penal statutes, therefore, ``like all others, are to be fairly construed according to the legislative intent as expressed in the enactment, the court refusing on the one hand to extend thepunishment to cases which are not clearly embraced in them, and on the other equally refusing by any mere verbal nicety, or forced consideration or equitable interpretation, to exonerate parties plainly within their scope.'"

The majority apparently do agree that the offense in question involves moral turpitude, but they reach this result by a process of reasoning that proves every felony to be morally turpitudinous and hence leaves no room for the operation of the proviso. This statute given the most latitudinous construction possible can not be considered to authorize an individual judge to impose the extreme penalties provided for conduct which he considers to be morally turpitudinous. As I view the matter, it is not a question of the individual opinion of any judge or number of judges as to what is or is not turpitudinous conduct. But it is a question as to what the legislature had in mind when it adopted the proviso. The individual judge might well think that a liquor offense is one of the most heinous offenses in the category of crime, yet if he understood that people generally — and particularly the members of the legislature — did not so regard it and in fact did not consider such a violator to be guilty of moral turpitude at all, judicial duty would require the law to be enforced accordingly. Neither, in my opinion, is it proper, in considering whether or not liquor offenses were thought by the legislature to be offenses involving moral turpitude, to use as examples the most flagrant violations, for the act in question and the exception apply according toclasses of offenses and not according to the circumstances of the particular offense. Hence, while judicially considering whether or not one offense involves less of moral turpitude than another, we consider it only for the purpose of arriving at legislative intention and not for the purpose of expressing an individual or personal view.

If there be any felony that involves less of moral turpitude than the possession of a few ounces of fermented grape juice, I know not what it is; therefore, I do not know what could have been in the mind of the legislature when it used the expression "offenses made felonies by statute not involving moral turpitude" if not such an offense. The majority not only do not suggest any other, but they practically eliminate the possibility of there being one. Hence, by saying in legal effect that one guilty of possessing a few ounces of fermented grape juice obtained or allowed to ferment since February 1, 1920 (this date is used in view of § 10,145b12, 1925 Supplement to the Compiled Laws of 1913, which recognizes that liquors acquired prior to that date may be lawfully possessed), might be sentenced under the law in question to life imprisonment, the majority members, it would seem, deny all effect to the proviso.

True, one opinion does contain the suggestion that the proviso was added to the law in question for the sole purpose of excusing from its extreme penalties those who might have been convicted of felony in some other state on account of some act which is not prohibited here. This rather ingenious suggestion appears to me to be altogether fanciful. Having denied to ordinary words their usual and well understood meaning, this opinion attaches a latent meaning which, it seems to me, would not readily occur to anyone. By this construction moral turpitude is made to mean a quality (no quality in particular) of any act done which would violate some penal statute existing in North Dakota. I am unable to understand how such an ordinary expression can be thought to convey this rather peculiar meaning. If this be the meaning the legislators had in mind when they employed the expression "moral turpitude," they were surely straining for originality; for although they had copied the Baumes Law of New York almost completely (See §§ 1941-1943, chapter 41, article 174, Cahill's Consolidated Laws of New York, 1928 Anno. Supp.), they omitted the following expression therein referring to crimes committed in other states as a basis for applying the added punishment "crimes which if committed within this state would be felonies." Was this language rejected for vagueness and uncertainty? According to this principal opinion they substituted for this indubitably definite criterion that of "moral turpitude" which, this opinion says, means the same thing. Then, it proceeds, "viewed in this light there is no indefiniteness or uncertainty as to the offenses to which the provisions of the statute shall apply."

It may very well be that our penal laws were thought by the legislature to accord so perfectly with moral law as to have become, in their minds, synonymous with it. Perhaps mere reference to moral turpitude should at once suggest a survey of our penal code, but I sincerely doubt the connotation. If "moral turpitude" were intended to refer only to offenses committed in other states, as this opinion suggests, a world of doubt would have been removed by the addition of a parenthetical phrase so that it would have read: "Provided, that the provisions of this Act shall not apply to offenses made felonies by statute (in other states) not involving moral turpitude."

Under the law before us the proviso means something or it means nothing. As I see it the result of the majority opinions makes it to mean nothing. It is in legal effect stricken from the act. But if this represents a misunderstanding of the holdings of the majority, and if their opinions are more properly construed as holding that the offense in question is one clearly embraced in the act as one involving moral turpitude, they reach a result which, it seems to me, can not be reached by applying ordinary rules of construction heretofore consistently followed. Admittedly, the legislature, in providing for imposition of double and life sentences for habitual criminals, set an indefinite standard of conduct as a test — one which had been previously held in a number of jurisdictions not to embrace liquor offenses —, nevertheless it is said that the legislators here, though employing this ambiguous test, clearly intended to embrace such offenses. I can not so divine their intention. I do not know which construction of the variously defined standard they intended to adopt. Certainly, the legislature has furnished no guide pointing to the construction or constructions adopted by the majority. But it is reasonably certain that it had two classes of felonies in mind; viz., common-law felonies and statutory felonies, and that it provided that the act should apply to all of the former and only to such of the latter as involve moral turpitude. We know that there are many statutory felonies that are mere extensions of common law felonies and involve the same moral elements. We also know that the offense in question is not one of them. How, then, can it be said that this offense falls clearly within the act? Before a double sentence or a life sentence is judicially passed, all substantial doubts as to whether the law by fair intendment authorizes it should be removed.

The judgment appealed from should be reversed and the original sentence restored.