STATE V. FERRIS, 1969-NMCA-093, 80 N.M.
663, 459 P.2d 462 (Ct. App. 1969)
STATE OF NEW MEXICO,
Plaintiff-Appellant,
vs.
JOHN WILLIAM FERRIS, Defendant-Appellee
COURT OF APPEALS OF NEW MEXICO
1969-NMCA-093, 80 N.M. 663, 459 P.2d 462
APPEAL FROM THE DISTRICT COURT OF CURRY
COUNTY, BLYTHE, Judge
JAMES A MALONEY, Attorney General, RAY
SHOLLENBARGER, Ass't. Atty. Gen., Santa Fe, New Mexico, Attorneys for
Appellant.
FRED THARP, JR., Clovis, New Mexico,
Attorney for Appellee.
WOOD, Judge, wrote the opinion.
Waldo Spiess, C.J., William R. Hendley, J.
{1} Defendant was charged
with issuing four worthless checks. The trial court dismissed the information,
holding that certain language in § 40-49-5(B), N.M.S.A. 1953 (Repl. Vol. 6,
Supp. 1967) violated constitutional requirements of due process because of
vagueness. The State appeals. There are three questions: (1) Is certain
language in § 40-49-5(B), supra, void for vagueness? (2) Even if certain of the
statutory language is void, should the information have been dismissed? (3)
Will reinstatement of the information subject defendant to double jeopardy?
{2} Generally speaking, §
40-49-4, N.M.S.A. 1953 (Repl. Vol. 6) makes it unlawful to issue worthless
checks. For the purposes of this appeal, defendant has stipulated that he
issued four checks in violation of § 40-49-4, supra. Section 40-49-5, N.M.S.A.
1953 (Repl. Vol. 6, Supp 1967) reads:
"Any person violating section 40-49-4 New Mexico
Statutes Annotated, 1953 Compilation {*665} shall
be punished as follows:
"A. When the amount of the check, draft or order, or the
total amount of the checks, drafts or orders, are for more than one dollar
($1.00) but less than twenty-five dollars ($25.00), imprisonment in the county
jail for a term of not more than thirty days [30] days or a fine of not more
than one hundred dollars ($100), or both such imprisonment and fine.
"B. When the amount of the check, draft or order, or the
total amount of the checks, drafts or orders, are for twenty-five dollars
($25.00) or more, imprisonment in the penitentiary for a term of not less than
one [1] year nor more than three [3] years or the payment of a fine of not more
than one thousand dollars ($1,000) or both such imprisonment and fine."
{3} The entire statute is set
forth because in determining the question of unconstitutional vagueness the
statute as a whole must be considered. See State v. Minns,
80 N.M. 269,
454
P.2d 355 (Ct. App. 1969), cert. denied
80 N.M. 234,
453 P.2d 597 (1969).
{4} The check are: September
6 - $15.00; September 9 - $10.00; September 13 - $5.00; and September 15 -
$10.00. Since no check is for $25.00 or more, the penalty of § 40-49-5(B),
supra, is not applicable unless two or more of the checks are added together to
reach that total. It is this "totaling" that the trial court ruled
was unconstitutionally vague.
{5} The "vagueness"
rule requires that the statutory language convey a sufficiently definite
warning of the proscribed conduct. If the language is so vague that men of
common intelligence must necessarily guess at its meaning and differ as to its
application, then the statute violates due process. State v. Minns, supra. Numerous
cases apply this rule in connection with definitions of a criminal offense. See
State v. Minns, supra. Neither party cites a decision applying the rule to
criminal penalties. However, our opinion is that a penalty provision, being a
part of a criminal statute, is subject to the rule. See State v. Buford,
65
N.M. 51,
331 P.2d 1110, 82 A.L.R.2d 787 (1958). Specifically, a statute
declaring criminal penalties may be so vague that it offends due process. See
United States v. Evans, 333 U.S. 483, 92 L. Ed. 823, 68 S. Ct. 634 (1948).
{6} Our concern is with the
words, "total amount of the checks", as they appear in § 40-49-5(A)
and (B), supra. In determining whether they are void for vagueness we do not
consider factual difficulties such as what checks may be added together to
arrive at the "total amount". Compare Advance Loan Company v. Kovach,
79 N.M. 509,
445 P.2d 386 (1968); Flank Oil Co. v. Tennessee Gas Transmission
Company, 141 Colo. 554, 349 P.2d 1005 (1960). Our concern is whether "* *
* uncertainty is inherent in the enactment itself, resulting from
inconsistencies or ambiguities or indefiniteness in the language used, * *
*." Beatty v. City of Santa Fe,
57 N.M. 759,
263 P.2d 697 (1953); see
Lanzetta v. New Jersey, 306 U.S. 451, 83 L. Ed. 888, 59 S. Ct. 618 (1939).
{7} In contending § 40-49-5,
supra, is not void for vagueness, the State relies on In re Dick, 64 Cal.2d
272, 49 Cal. Rptr. 673, 411 P.2d 561 (1966). See also, In re Watkins, 64 Cal.2d
866, 51 Cal. Rptr. 917, 415 P.2d 805 (1966). These cases interpret a California
statute providing a reduced penalty if the total of the checks does not exceed
a certain amount. They are not applicable; neither of these cases discuss the
question of vagueness.
{8} Under § 40-49-5(A),
supra, a worthless check for more than $1.00 but less than $25.00 subjects the
offender to a county jail term. So does the total amount of checks between
those amounts. If the issuance of one check within this range is punishable, is
the offender to be punished
{*666} for
each check issued within this range? Or, under the statutory language, may an
offender issue any number of worthless checks and receive only one punishment
so long as the amount is less than $25.00?
{9} Under § 40-49-5(B),
supra, a worthless check for $25.00 or more subjects the offender to a
penitentiary term. Suppose the offender issues four worthless checks, each for
$25.00. Under the statutory language is he to receive one or four punishments?
What if he issues one worthless check for $25.00, one for $10.00 and one for
$5.00? Under § 40-49-5, supra, is he subject to one penitentiary term, or a
penitentiary term plus one or two county jail terms? If he issues an additional
worthless check for $11.00, is he then subject to two penitentiary terms?
Compare In re Dick, supra.
{10} Just how are the penalty
provisions to be applied in a "totaling" situation? The statute is
uncertain. This uncertainty is compounded when § 40-49-4, supra, is considered
because that section makes each worthless check a separate offense. Does the
statute provide for only one punishment for multiple offenses? Compare Scott v.
District of Columbia, 122 A.2d 579 (Mun.Ct. App.D.C. 1956). Men of common
intelligence must necessarily guess at the meaning of the statutory language.
We agree with the trial court. The provisions of § 40-49-5, supra, concerning
the "totaling" of checks, are so vague that they offend due process
and are void. See N.M. Att'y Gen. Opinion 66-80 (June 22, 1966).
Should the information have been dismissed?
{11} The information charged
defendant with issuing worthless checks contrary to §§ 40-49-4 and 40-49-5(B),
supra. Section 40-49-5(B), supra, declares a penalty which may be imposed for
violating § 40-49-4, supra. The information charged an offense without
reference to the penalty. Sections 41-6-6 and 41-6-7, N.M.S.A. 1953 (Repl. Vol.
6). Compare Roessler v. State,
79 N.M. 787,
450 P.2d 196 (Ct. App. 1969). Since
the information was sufficient without reference to the penalty, the reference
to § 40-49-5(B), supra, in the information was surplusage. Section 41-6-36,
N.M.S.A. 1953 (Repl. Vol. 6).
{12} The information was
dismissed after the trial court ruled that the "totaling" provision
of § 40-49-5(B), supra, was void. Such action confuses a conviction with a
sentence based on that conviction. A sentence is not an element of the
conviction; rather, the sentence is a consequence of the conviction. State v.
Larranaga,
77 N.M. 528,
424 P.2d 804 (1967); State v. Silva,
78 N.M. 286,
430
P.2d 783 (Ct. App. 1967).
{13} Here, the information
being sufficient, defendant could be convicted of issuing the four worthless
checks, even though the "totaling" provision is void. Such a
conviction would not be a useless act. Even if all of § 40-49-5, supra, should
be unconstitutional, a penalty exists under § 40A-29-11, N.M.S.A. 1953 (Repl.
Vol. 6). Compare State v. Thompson,
57 N.M. 459,
260 P.2d 370 (1953).
{14} However, all of §
40-49-5, supra, is not unconstitutional. We hold only the "totaling"
provision void. These provisions are severable. See State v. Klantchnek,
59
N.M. 284,
283 P.2d 619 (1955). Severing the "totaling" provisions
does not impair the force and effect of the remaining part of § 40-49-5, supra.
The legislative purpose as expressed in the remaining part of § 40-49-5, supra,
can be given force and effect without the "totaling" provisions. We
cannot say the Legislature would not have enacted the remaining part if it had
known the "totaling" provisions were void. See Bradbury & Stamm
Const. Co. v. Bureau of Revenue,
70 N.M. 226,
372 P.2d 808 (1962).
{15} Severing the
"totaling" provisions from § 40-49-5, supra, leaves the remaining
portion of that section consistent with § 40-49-4, supra, which makes an
offense out of each worthless check issued. If defendant is convicted of
issuing four worthless checks, he may be sentenced for
{*667}
each offense under the remaining portion of § 40-49-5, supra. The trial
court erred in dismissing the information.
Will reinstatement of the information subject defendant to
double jeopardy?
{16} Defendant contends that
regardless of the disposition of this appeal he cannot be tried on the charge
of issuing the four allegedly worthless checks. He claims that the proceeding
at which the information was dismissed was on the "merits" and that
he was in jeopardy in that proceeding. The contention mistakes both the facts
and the law.
{17} The case was called. The
State asked that defendant be arraigned. Defendant then waived a preliminary
hearing and waived a jury trial. The court then asked if defendant was ready to
plea. His counsel stated that "* * * prior to the entry of a plea, I have
a motion. * * *" The motion was to dismiss because of the vagueness of the
"totaling" provisions of § 40-49-5(B), supra. Defendant's motion was
sustained; the information was dismissed before a plea was entered.
{18} The proceeding did not
consider the "merits" of the charge; it considered only whether the
"totaling" provisions of § 40-49-5, supra, were void for vagueness.
The information was dismissed before the case was at issue. Even if there had
been a plea, however, the defendant would not have been in jeopardy until the
trial had commenced. A jury having been waived, defendant would not have been
in jeopardy until "* * * the presentation of at least some evidence on
behalf of the state. * * *" State v. Rhodes,
76 N.M. 177,
413 P.2d 214
(1966). Here, the information was dismissed before any evidence was presented.
Since defendant has not yet been in jeopardy, reinstatement of the information
will not subject him to double jeopardy.
{19} The order dismissing the
information is reversed. The cause is remanded with directions to reinstate the
information on the docket and proceed consistently with this opinion.
Waldo Spiess, C.J., William R. Hendley, J.