Opinion
Argued April 15, 1925
Affirmed June 16, 1925 Rehearing denied September 8, 1925
From Multnomah: GEORGE TAZWELL, Judge.
For appellant there was a brief and oral argument by Mr. Chriss A. Bell.
For respondent there was a brief over the names of Mr. Stanley Myers, District Attorney, and Mr. Jay Stockman, Deputy District Attorney, with an oral argument by Mr. Stockman.
REHEARING DENIED. AFFIRMED.
This is a criminal proceeding, wherein Julius Bailey was convicted of the crime of nonsupport and sentenced to six months' imprisonment in the county jail, under the following statute:
"Any person who, without just or sufficient cause, shall fail or neglect to support his wife, or female children under the age of eighteen years, or male children under the age of sixteen years, shall be deemed guilty of a felony and shall be punished therefor by confinement in the state prison for not more than one year, or by imprisonment in the county jail for not less than thirty days nor more than one year." Or. L., § 2166.
The defendant demurred to the indictment on the ground that the charge contained therein failed to state facts sufficient to constitute a crime, and, to sustain his demurrer, contended that the indictment failed to state the acts and set forth the particular circumstances of the crime charged in accordance with the commands of Sections 1437, 1448, Oregon Laws; that the indictment was vague and indefinite and did not inform the defendant of the nature and cause of the accusation as commanded by Section 11, Article 1, Oregon Constitution; and that Section 2166 was violative of Section 1, Article XIV, Constitution of the United States, and of the Fifth and Sixth Amendments thereof, and of Section 20, Article I, and Section 1, Article IV, Oregon Constitution.
On appeal to this court, the defendant asserts that Section 2166, Or. L., is unconstitutional, and that for this reason the trial court erred in overruling the demurrer. Among his alleged reasons for attacking the statute is his assertion that it violates the Fifth and Sixth Amendments of the United States Constitution. This contention may be dismissed with the observation that these provisions contain no restriction on the powers of the state to legislate: State v. Laundy, 103 Or. 443 ( 204 P. 958, 206 P. 290, and authorities there cited). However, the salutary provisions of these amendments have been carried into our state Constitution and most of them may be found in the different sections of Article I thereof.
The defendant contends that the statute involved herein is so indefinite that its meaning cannot be understood from its words. The rules of construction applying to civil statutes likewise apply to criminal statutes.
The paramount rule of statutory construction, then, requires that we ascertain and give legal effect to the expressed intention contained in the statute.
A criminal offense cannot be created by inference or implication. Nor can the embrace of a criminal statute reach beyond the plain import of the language used: State v. Le Blanc, 115 Me. 142 ( 98 A. 119).
A valid criminal law must definitely show with reasonable certainty what acts or omissions the law-making body intended to prohibit and punish: 1 Cyclopedia of Criminal Law, Brill, § 62. But reasonable definiteness in view of the conditions is all that is required: State v. Lawrence, 9 Okla. Cr. 16 ( 130 P. 508); State v. Schaeffer, 96 Ohio St. 215 ( 117 N.E. 220, Ann. Cas. 1918E, 1137, L.R.A. 1918B, 945). Moreover, under this statute, the dividing line between what is lawful and what is unlawful is not left to conjecture.
Subject to the prohibitions of the federal and state Constitutions, the legislative assembly of the state has power to declare what acts or omissions shall constitute a crime. An examination of our session laws will disclose that every legislative assembly creates new offenses that were before unknown, and renders criminal certain acts and omissions which, prior to the enactments of that session, were innocent in their nature.
The power to denounce as a crime the omission of a husband to support his wife and children was exercised by the legislative body in the enactment of the statute under consideration, and was not delegated to the trial judge or jury as contended by counsel for defendant.
Section 11 of Article I. Oregon Constitution, would be ineffectual and unavailing if the indictment and statutes did not inform the defendant of the nature and cause of the accusation against him.
As a general rule, an indictment is sufficient when it alleges the acts constituting the crime charged, in the words of the statute defining the crime: State v. Scott, 63 Or. 444 ( 128 P. 441). This is familiar law in our jurisdiction.
Again, an indictment can rise no higher than the statute, which is its source; and statutes so indefinite and uncertain as to fail to inform the defendant of the nature of the charge against him are universally held by the courts to be void.
A criminal statute should be couched in plain and concise language, so that every man of ordinary intelligence may know when he has or has not violated the law.
We need cite no authorities in support of our holding that the legislature cannot legally enact a law in violation of the limitations of our Constitution. But, in language that any man of ordinary intelligence can understand, the act in question denounces as criminal a husband's omission to support his wife and children. The meaning of the term "support" has been judicially determined in this jurisdiction, and is well understood, as are the words "just or sufficient cause," as used in the statute. The term "support" is plainly interpreted in State v. Langford, 90 Or. 251, 261 ( 176 P. 197), where this court said:
"An excellent statement of the rule in its broad outlines is found in State v. Waller, 90 Kan. 829 ( 136 P. 215, 49 L.R.A. (N.S.) 588, 595), where the court says: `Sustenance which barely meets animal needs, which does not more than relieve the pangs of hunger, cover nakedness, and afford shelter from the elements, is not support or maintenance. He is obliged to provide such a place of abode, such furniture, such articles of food, wearing apparel, and use, such medicines, medical attention, and nursing, such means for the education of children, and such social protection and opportunity, as comport with the health, comfort, welfare, and normal living of human beings according to present standards of civilization, considering his own means, earning capacity, and station in life.'"
There is nothing indefinite in the statute. It would be impracticable to attempt to define by law the quantity or quality of bread, meat, clothing or medical attention, that a husband should provide for his wife.
The presumption is always in favor of the constitutionality of a law; and, until the contrary appears beyond a reasonable doubt, it is our duty to assume that such statute is valid, and not violative of the prohibitions of the Constitution. Statutes similar to ours have been attacked from different angles, and such legislation has been uniformly sustained by the courts: 2 Schouler, Marriage, Divorce, Separation (6 ed.), § 1328, and authorities there cited; 2 Cyclopedia Criminal Law, Brill, § 1137; 30 C.J., p. 1099. In the illustrative case of State v. Cucullu, 110 La. 1087, 1094 ( 35 So. 300), the court, in upholding such statutes, wrote:
"The performance by a husband and father of the legal duties which he voluntarily assumed in contracting marriage is a matter which not only affects the particular parties in interest, but the public at large, as affecting the general public welfare. The state * * is deeply interested in upholding and seeing enforced the rights and obligations springing from the family relations, for upon their being upheld and enforced rests the well-being of society itself."
The wife abandonment act of the state of Illinois is similar to our nonsupport statute. The case of People v. Heise, 257 Ill. 443 ( 100 N.E. 1000), brought under that act, is much in point here. In that case the defaulting husband was convicted for neglecting to provide for the support and maintenance of his wife without "good cause." On appeal he alleged much the same matter that is here charged as constituting violations of the constitutional provision of the state. He asserted that the act violated the Constitution of Illinois in nine particulars, one of the most important being that it delegated legislative power to the courts. All objections involving its validity were overruled, but the case was reversed on the ground that the prosecution was barred by the statute of limitations.
That privileges or immunities must belong to all citizens on the same terms, and that there must be a proper classification of the subjects of legislation, is conceded. There are no exemptions set out in Section 2166. That section applies to any and every person who, without just or sufficient cause, fails or neglects to support his wife.
We have considered all the objections and citations contained in defendant's well-prepared brief, but we are of opinion that he has not substantiated his contention, and are compelled to hold the statute assailed to be a valid law. The legislative assembly created the statute in question and committed it to the courts for enforcement.
This case is affirmed.
AFFIRMED. REHEARING DENIED.
McBRIDE, C.J., and BEAN and BELT, JJ., concur.