DocketNumber: 7908
Citation Numbers: 542 P.2d 440, 91 Nev. 729
Judges: Gunderson, Mowbray, Thompson, Zenoff
Filed Date: 11/14/1975
Status: Precedential
Modified Date: 8/7/2023
By the Court,
Edward Leroy Smith is charged in a three-count indictment with two counts of .first-degree murder in violation of NRS
To be constitutional, a statute must be definite. Cramp v. Board of Pub. Instruction, 368 U.S. 278 (1961). Due process under the Fifth and Fourteenth Amendments requires strict application of this principle to penal statutes, for life, liberty, or property may not be placed in jeopardy by a statute which provides no warning or notice of the prohibited conduct. Winters v. New York, 333 U.S. 507 (1948). In assessing a statute’s validity, however, the judiciary has long recognized a strong presumption that a statute duly enacted by the Legislature is constitutional. Maye v. Commonwealth, 189 S.E.2d 350, 351 (Va. 1972); In re King, 90 Cal.Rptr. 15, 23, 474 P.2d 983, 991 (1970); People v. Jones, 64 Cal.Rptr. 622, 624 (Cal.App. 1967); State v. Bailey, 236 P. 1053 (Ore. 1925). The inevitable tension between these principles has not been eased by the putative formulas or tests for vagueness that do little more than rephrase the principle of definiteness.
The phrase “common plan, scheme or design” has acquired a common law usage that admits of two different interpretations. In its widely used sense, the phrase relates to evidence of uncharged crimes admissible during trial where one act,
Thus, the phrase “common plan or scheme” has acquired a common law usage in one context that means a single plan or scheme contemplating two or more offenses before the plan has been completed, and that means in another context the perpetration of two independent and unrelated offenses having a sufficient number of elements in common to make the commission of the first relevant to a determination of the identity of the perpetrator of the second. The issue before the court is whether the existence of these two different meanings makes NRS 200.030(1) (e) so vague as to render it unconstitutional. The district judge, in declaring NRS 200.030(1) (e) void for vagueness, ruled in part:
“. . . One could . . . perpetrate two or more unrelated homicides, both without premeditation, deliberation and malice aforethought and be guilty of capital murder if he commits the murders in substantially the same way.[4 ] On the other hand, one could commit two unrelated homicides, with premeditation, deliberation, and malice aforethought in the most atrocious manner and not be vulnerable to a charge of capital murder if the two homicides were committed in dissimilar*733 ways. This Court does not believe the Legislature intended such arbitrary and irrational results.” (Footnote added.)
A fundamental rule of statutory interpretation
On the other hand, the clear alternative to the interpretation by the district court presents none of these problems. A “single plan” involving several contemplated killings would be a particularly heinous crime, justifying a more severe deterrent and punishment than other killings not involving planned multiple-murder. Such a distinction would not be irrational, would be consistent with the stated legislative purpose, and would reflect the recent legislative clarification. Of the two alternative constructions, every canon of statutory interpretation mandates this approach. Most important to the instant case, such meaning fairly derives from the language of the statute. United States v. Brown, 333 U.S. 18, 25-26 (1948).
We conclude, therefore, that the single-plan interpretation does not do violence to the purposes sought to be implemented by the due process clause in voiding vague and ambiguous
NRS 200.030, subsection 2(a):
“2. Murder of the first degree is murder which is:
“(a) Perpetrated by means of poison, or lying in wait, torture, or by any other kind of willful, deliberate and premeditated killing;”
NRS 200.030, subsection 1(e), as amended, Stats. Nev. 1973, ch. 798, § 5, at 1803:
“1. Capital murder is murder which is perpetrated by:
“(e) Killing more than one person as the result of a common plan, scheme or design.”
One such test focuses on whether a statute, by its terms, is so vague that men of common intelligence must speculate as to its meaning. Cramp v. Board of Pub. Instruction, supra.
The suggestion that under NRS 200.030(1) (e) one could be guilty of capital murder for committing multiple homicides without malice aforethought is without merit, since the statute defines “capital murder” as murder perpetrated by killing more than one person as the result of a common plan, scheme, or design; and under NRS 200.010, “murder” is defined as the unlawful killing of a human being with malice aforethought.
NRS 200.030(1) (e), as amended, Stats. Nev. 1975, ch. 740, § 1, at 1580-1581:
“1. Capital murder is murder which is perpetrated by:
“(e) Killing more than one person willfully, deliberately and with premeditation as the result of a single plan, scheme or design.”
'It has long been recognized that criminal and penal statutes are to be interpreted with the aid of all of the usual rules of statutory construction. While the rule of strict construction is an additional factor to be considered by courts in ascertaining the meaning of criminal statutes, it is still only one of several factors to be considered and is to be utilized in conjunction with the other rules of statutory construction. See People v. Breyer, 34 P.2d 1065, 1066 (Cal.App. 1934), where the court stated: “[T]he rules of construction applicable to civil statutes also apply to penal statutes . . .” See, also, State v. Ledkins, 303 P.2d 1099, 1101 (Utah 1956), where the court ruled: “[I]t is well established that the same basic rules apply to statutory construction of criminal and civil statutes.” And compare 2 C. Sands, Statutes and Statutory Construction, § 44.19, at 366-367 (4th ed. 1973), where it is stated: “In keeping with the principle of statutory construction that criminal statutes are to be strictly construed against the state, penal statutes tend to be more often struck down for partial invalidity than purely civil enactments, even though the same rules of construction are followed for this purpose in dealing with both types of legislation.” (Footnotes omitted.)
For an application of this principle, see Cannon v. Taylor, 87 Nev. 285, 486 P.2d 493 (1971); Ex parte Davis, 63 P.2d 853 (Cal.App. 1936); Penrose v. Whitacre, 61 Nev. 440, 132 P.2d 609 (1942).