State v. Scofield

¶1(dissenting).

¶2I dissent. I cannot agree with the view of the majority opinion.

¶3This appeal presents for our review the defendant’s conviction of embezzlement, charged in the information as follows:

“That on or about the 4th day of August, 1966, and in Pima County, Arizona, and before the filing of this Information, the said JAMES I. SCOFIELD committed theft by embezzling from ECONOCAR INTERNATIONAL, INC. OF TUCSON, one 1966 Plymouth, Arizona License No. JMN-145, serial No. RH 41B61291071, all in violation of A.R.S. § 13-682(4) as amended, and § 13-688.”

¶4The constitutional validity of A.R.S. § 13-682(4) was timely attacked in the trial court by a motion to dismiss the information, with no success. In the trial court, as well as on appeal, the defendant argued that the statute is “void for vagueness.” The defendant predicates his claim of unconstitutionality on the vagueness of the word "fraudulently.”

¶5Due process of law is denied if a statute 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. State v. Cota, 99 Ariz. 233, 408 P.2d 23 (1965); Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926). A statute must be definite enough to provide a standard of conduct for those whose activities are proscribed as well as a standard for the ascertainment of guilt by the courts called upon to apply it. Winters v. People of State of New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840 (1948).

¶6A statute, however, will be upheld if its terms may be made reasonably certain by reference to the common law or to its legislative history or purpose. See, Connally v. General Construction Co., supra. It likewise will be upheld, despite the fact that the acts it prohibits are defined in vague terms, if it requires an adequately defined specific intent. People v. Building Maintenance Contractors’ Association, 41 Cal.2d 719, 264 P.2d 31 (1953). A court, however,, may not supply the definitions necessary to-render a deficient statute valid. State v. Locks, 97 Ariz. 148, 397 P.2d 949 (1964), Lanzetta v. State of New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939); People v. McCaughan, 49 Cal.2d 409, 317 P.2d 974 (1957).

¶7The Supreme Court of the United States, in United States v. Cardiff, 344 U.S. 174, 73 S.Ct. 189, 97 L.Ed. 200 (1952), referred to the vice of vagueness in criminal statutes as:

“The treachery they conceal either in-determining what persons are included or what acts are prohibited. Words which are vague and fluid … may be as much of a trap for the innocent as. the ancient laws of Caligula.” 73 S.Ct. at 190.

¶8A statutory command or prohibition in the creation of new crimes, therefore,, should be very definite and easily understood by the common man. State v. Menderson, 57 Ariz. 103, 111 P.2d 622 (1941); State v. Cota, supra.

¶9The subject statute proscribes “fraudulently failing to return a leased motor vehicle” within a specified period of time after expiration of the lease. But what is meant by “fraudulently?” The definitions adopted by courts across the country are as numerous as the courts themselves. The California courts have stated:

“The word ‘fraudulently’ is very broad in its meaning. No definite and invariable rule can be laid down as a general proposition defining fraud, as it includes all surprise, trick, cunning, dissembling, and unfair ways by which another is deceived.”

¶10People v. Casagranada, 43 Cal.App.2d 818, 111 P.2d 672, 675 (1941); People v. Simmons, 12 Cal.App.2d 329, 55 P.2d 297, 299 (1936).

¶11In People v. Swenson, 127 Cal.App.2d 658, 274 P.2d 229, 233 (1954), the word *318“fraudulently” was construed to mean with intent to defraud:

“As the term is used in an embezzlement statute making punishable a fiduciary of money who should ‘fraudulently’ convert the same to his own use, the word has some other than its usual meaning implying deceit, deception, artifice, trickery, and means conversions made •with intent to deprive the beneficiary of the money permanently … (Emphasis in original) 274 P.2d at 233.

¶12In Rick v. United States, 82 U.S.App. D.C. 101, 161 F.2d 897 (1947), the word “fraudulent” was described as including an intent and involving a subject matter of which someone is to be deprived. In the case of State v. Patterson, 66 Kan. 447, 71 P. 860 (1903), the word “fraudulently” in an information alleging that the defendant did fraudulently embezzle and convert to his own use certain money was held to relate specifically to the defendant’s intent in converting the city’s money to his own use. (71 P. at 861).

¶13In Raney v. State, 105 Tex.Cr.R. 608, 290 S.W. 179 (1927), the appellate court approved the trial court’s definition of “fraudulent taking” as meaning the person taking the property knew at the time that the property was not his own, that the property was taken without the consent of the owner and that the property was taken with the intent to deprive the owner of the value of it and to appropriate it to the use or benefit of the person taking.

¶14The Utah Supreme Court, in the case of State v. Bland, 93 Utah 384, 73 P.2d 964 (1937), concluded that the word “fraudulent” in a statute prohibiting the fraudulent use of a false or fictitious name was inserted in the statute “so that persons who habitually used a fixed pseudonym would not be held guilty of a felony.” The court stated:

“ … the word ‘fraudulent,’ inserted in section 125, must have been intended to require proof that defendant gave a wrong name with a bad motive … ” 73 P.2d at 965.

¶15In State v. Reinke, 147 S.W.2d 464 (Mo. 1941), where the word “fraudulently” was used in an instruction in a first degree robbery case, the court held:

“ ‘Fraudulently’ as used in the instruction refers to the doing of the act knowingly and purposely, not accidentally or by mistake.” 147 S.W.2d at 465.

¶16See also, State v. Yell, 104 N.H. 87, 178 A.2d 289 (1962).

¶17In State v. Harris, 313 S.W.2d 664 (Mo. 1958), the Supreme Court of Missouri held that the words “feloniously and fraudulently” were not of similar import to the statutory term “intent to defraud.” In arriving at this conclusion, the court analyzed the difference as follows:

“Webster’s New Int. Dictionary, 2d Ed., defines the adjective ‘fraudulent’ as: T. Using fraud; tricky; deceitful. 2. Characterized by, founded on, or proceeding from, fraud; of the nature of fraud. 3. Obtained or performed by artifice.’ The use of the adverbial form would carry with it the idea that an act was performed by means of fraud, artifice, trick or deceit. Such means might be unlawful but not inconsistent with an intent to return to its owner property so obtained.

“In the same dictionary ‘defined’ is defined as: ‘To deprive of some right, interest or property, by deceit; to cheat; as, to defraud a servant, a creditor, the state; — with of before the thing taken or withheld.’ ‘Intent’ is the purpose or design with which an act is done. [Citation omitted] An intent to defraud indicates a purpose or design to deprive someone of a lawful right, interest, or property by fraudulent means and is inconsistent with an intent to return the property to its owner.” 313 S.W.2d at 670.

¶18From this heterogenous mass of judicial definitions of “fraudulently,” it becomes obvious that a layman would encounter nothing but confusion were he to attempt to work out his own definition of the word. Without knowledge of the meaning of the *319word, how could he determine what act on. his part would run contrary to law? The State, in its brief filed herein, argues that:

“The Legislature did not wish to designate every failure to return a vehicle a crime since it is the deliberate, unjustifiable retention of another’s vehicle which is intolerable. But situations are conceivable where the failure to return is for a justifiable reason. Accordingly, the Legislature modified ‘fails to return’ by the word ‘fraudulently’ to designate the willful, deliberate and unjustifiable failure to return as a crime.”

¶19And,

“ … ‘fraudulently’ designates an unjustifiable, deliberate failure to return. ‡ …»

¶20I find no merit in this argument. As previously indicated, it is not our function to supply definitions necessary to validate a defective statute. State v. Locks, supra. Furthermore, the legislative history of the subject statute indicates that the legislature may have intended the word “fraudulently” to mean something other than “willfully.”

¶21In 1958, a bill (S.B. 217) was introduced to the state senate which, in substance, proscribed the act of “willfully and intentionally” failing to return a leased motor vehicle within a specified period of time after ■ expiration of the lease. The bill was subsequently amended, after submission to legislative committees, by deletion of the words “willfully and intentionally” and substitution therefor of the word “fraudulently.” This bill was not enacted into law by the 1958 legislature.

¶22In 1959, it was introduced in the House of Representatives as House Bill 224, the pertinent part of which stated that a person is guilty of theft by embezzlement who:

“Has leased or rented a motor vehicle or trailer and who fraudulently fails to return the motor vehicle or trailer to its owner within ten days after the lease or rental agreement has expired.”

¶23The bill was amended to include equipment or tools, and in such amended form was enacted into law. Laws 1959, ch. 55, § 1. It would thus appear that the meaning of the word “fraudulently” was not intended to be synonymous with “willfully and intentionally.” 1

¶24In view of the problem concerning the meaning of the word “fraudulently,” I cannot hold that the statute under which the information in this case was filed is definite and certain enough to permit this conviction to stand. The judgment of the lower court should be reversed and the case dismissed.