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District Court of Appeal, Third District, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Velva Irene McCAUGHAN, Defendant and Appellant.*

Cr. 2710.

Decided: January 24, 1957

Sutter & Carter by Douglas M. Sutter, Modesto, for appellant. Edmund G. Brown, Atty. Gen., by John Fourt and Doris H. Maier, Deputy Attys. Gen., for respondent.

Appellant and her codefendant were jointly charged with involuntary manslaughter. Penal Code, sec. 192, subd. 2. The jury found appellant guilty as charged but found her codefendant not guilty, and appellant's motion for a new trial was denied. Judgment was suspended and she was granted probation for a term of three years on condition that she serve one year in a county detention facility.

As the court instructed the jury, the State relied upon a violation of either section 242 (battery) or section 361 (treatment of insane persons) of the Penal Code as constituting the commission of the unlawful act denounced by section 192, subdivision 2, of that code.

Since it is our conclusion that the provision of section 361 are so vague and uncertain as to violate due process, it becomes unnecessary to discuss the numerous other contentions made by appellant, or to summarize at length the facts disclosed in the very voluminous transcript. The pertinent facts show that the deceased died from asphyxiation caused by the aspiration of food while being spoon-fed by the defendants. The patient was being fed in this manner pursuant to the orders of the physician in charge to ‘spoon feed if necessary.’ The criminal aspects of the case arise out of the means employed by the defendants to so feed the patient.

Section 361 provides as follows:

‘Every person guilty of any harsh, cruel, or unkind treatment of, or any neglect of duty towards, any idiot, lunatic, or insane person, is guilty of a misdemeanor.’

It is similar to section 2654 of the Penal Code, and although both sections date from the adoption of the code, neither has ever been considered by a reviewing court in this State.

Under the provisions of Penal Code, section 4, penal statutes are to be ‘* * * construed according to the fair import of their terms, with a view to effect its objects and to promote justice.’ Such statutory rule, however, is subject to the further rule that:

‘No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids.’ Lanzetta v. State of New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888.

Or, as the court in the Lanzetta case also stated,

‘The applicable rule is stated in Connally v. General Const. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322[328]: ‘That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law; and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.’'

This principle was in the case of In re Peppers, 189 Cal. 682, 685–688, 209 P. 896, 897, where the phrase ‘oranges shall be considered unfit for shipment when frosted to the extent of endangering the reputation of the citrus industry, if shipped’ was held invalid. Also, in Orloff v. Los Angeles Turf Club, 36 Cal.2d 734, 227 P.2d 449, the word ‘immoral’ was held to be insufficient. And in People v. Saad, 105 Cal.App.2d Supp. 851, 854, 234 P.2d 785, 787, the words ‘practices inimical to the public interest’ were held to be ‘too indefinite in their import to serve in a definition of criminal conduct.’ Again, in the case of In re Lockett, 179 Cal. 581, 178 P. 134, 139, where words not of the English language were used in a criminal statute, Mr. Chief Justice Angellotti, in a separate concurring opinion wherein he summarized the opinion of the court which held the words attacked were too uncertain, stated: ‘It must be conceded, I think, that it is essential to the validity of a statute creating a criminal offense that it show in language capable of being understood by person of ordinary intelligence what it is that is prohibited. This, it has been said, can only be done by the use of terms or words of settled meaning * * *.’

In the present case even if we assume that the word ‘cruel’ has a well-settled meaning, or that the defendant was well aware of the ‘duty’ she owed to the deceased, certainly the same cannot be said of the phrase ‘harsh or unkind treatment.’ Webster's New International Dictionary, 2d Edition, Unabridged, defines ‘harsh’

‘(1) Offensive to sense * * * (2) Offensive to the sensibilities * * * (3) Of persons or things, offensive to sense of justice or kindness; unfeeling; severe; cruel; unduly rigorous; as a harsh parent, philosophy, punishment, opinion. (4) Offensive to the physical feelings; roughly unpleasant; causing physical discomfort; as, a harsh climate, cure.’

The synonyms given for the word ‘harsh’ are: coarse, stiff, strident, discordant, jangling, crude, clashing, disagreeable, rigorous and relentless, in that order. The same authority gives the following definition of ‘unkind.’

‘1. Not kind; esp., wanting in kindness, sympathy, or the like; hence, cruel; harsh. 2. Now Dial. a. Unsuitable; unfavorable. b. Not thriving c. Ungenial; rough * * *’

The prosecution's answer to such contention by defendant is that all of the elements contained in section 361 must be considered in the conjunctive; that when so considered the section is sufficiently clear and certain to meet the constitutional requirements. In any event, it is argued, the defendant did not question the validity of the section in the trial court, and in fact two of the instructions given by the court pertaining to that section were requested by the defendant; hence its validity cannot be questioned at this time.

As has been noted, it is the duty of the courts under Penal Code, section 4, to determine the ‘fair import’ of the statute in order to effect ‘its objects and to promote justice.’ But when ‘* * * the legislature declares an offense in words of no determine signification, or its language is so general and indefinite as that it may embrace within its comprehension, not only acts commonly recognized as reprehensible, but others also which it is unreasonable to presume were intended to be made criminal, the courts, possessing no arbitrary discretion to discriminate between those which were and those which were not intended to be made unlawful, can do nothing else than declare the statute void for its uncertainty.’ Czarra v. Board of Medical Supers., 25 Cal.D.C. 443.

Here it is readily apparent that the first portion of the prosecution's argument would have this court in effect amend section 361 by changing the disjunctive ‘or’ to the conjunctive ‘and’. As noted in United States v. Reese, 92 U.S. 214, 23 L.Ed. 563, to construe the statute in the manner contended for by the State would in effect be to make a new law, not to enforce an old one. This is no part of the duty of the courts. ‘It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained and who should be set at large. This would, to some extent, substitute the judicial for the legislative department of the government.’ United States v. Reese, supra.

Turning next to the second portion of the prosecution's contention, it is fundamental that constitutional questions may be raised at any stage of the proceedings. Here the question of the constitutionality of the act involves and determines the further question of whether a crime has been committed. Necessarily if the law is void, no crime has been committed and none could be committed under it, and the court would have no jurisdiction over the person of the defendant or the subject matter of the action. Under such circumstances the question is jurisdictional and can be raised at any stage of the proceedings. People v. Rodriguez, 58 Cal.App.2d 415, 136 P.2d 626. And it further would appear that if our conclusion be valid as to section 361, then appellant's counsel, by submitting the instructions referred to by the prosecution, could no more cure the jurisdictional defects than could the State by relying on said section.

Lastly, since the jury returned a general verdict, and since we hold that one of the sections under which the jury could have found the defendant guilty of a violation of section 192, Penal Code, was unconstitutional, the verdict must be set aside inasmuch as this court cannot speculate as to whether the jury found the defendant guilty of a lawful or an unlawful act.

The judgment is reversed.

PEEK, Justice.

VAN DYKE, P. J., and SCHOTTKY, J., concur.

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