An Act of New Jersey declares:
"Any person not engaged in any lawful occupation, known to be a
member of any gang consisting of two or more persons, who has been
convicted at least three times of being a disorderly person, or who
has been convicted of any crime in this or any other State, is
declared to be a gangster. . . ."
Every violation is punishable by fine not exceeding $10,000 or
imprisonment not exceeding 20 years, or both.
Held: repugnant to the due process clause of the
Fourteenth Amendment, because of its vagueness and uncertainty. P.
306 U. S.
453.
120 N.J.L. 189; 198 A. 837, reversed.
APPEAL from a judgment affirming a conviction and sentence of
three men as gangsters.
See also 118 N.J.L. 212, 192 A.
89.
Page 306 U. S. 452
MR. JUSTICE BUTLER delivered the opinion of the Court.
By this appeal, we are called on to decide whether, by reason of
vagueness and uncertainty, a recent enactment of New Jersey, § 4,
c. 155, Laws 1934, is repugnant to the due process clause of the
Fourteenth Amendment. It is as follows:
"Any person not engaged in any lawful occupation, known to be a
member of any gang consisting of two or more persons, who has been
convicted at least three times of being a disorderly person, or who
has been convicted of any crime in this or in any other State, is
declared to be a gangster. . . [
Footnote 1]"
Every violation is punishable by fine not exceeding $10,000 or
imprisonment not exceeding 20 years, or both. § 5.
In the court of quarter sessions of Cape May County, appellants
were accused of violating the quoted clause. The indictment charges
that, on four days, June 12, 16, 19, and 24, 1936,
"they, and each of them, not being engaged in any lawful
occupation; they, and all of them, known to be members of a gang,
consisting of two or more persons, and they, and each of them,
having been convicted of a crime in the State of Pennsylvania, are
hereby declared to be gangsters."
There was a trial, verdict of guilty, and judgment of conviction
on which each was sentenced to be imprisoned in the state prison
for not more than ten years and not less than five years, at hard
labor. On the authority of its recent decision in
State v.
Bell, 188 A. 737, 15 N.J. Misc. 109, the supreme court entered
judgment affirming the conviction. 118 N.J.L. 212, 192 A. 89. The
court of errors and appeals affirmed, 120 N.J.L. 189, 197 A. 360,
on the authority of its decision,
Page 306 U. S. 453
State v. Gaynor, 119 N.J.L. 582, 198 A. 37, affirming
State v. Bell.
If, on its face, the challenged provision is repugnant to the
due process clause, specification of details of the offense
intended to be charged would not serve to validate it.
Cf.
United States v. Reese, 92 U. S. 214,
92 U. S. 221;
Czarra v. Board of Medical Supervisors, 25 App.D.C. 443,
453. It is the statute, not the accusation under it, that
prescribes the rule to govern conduct and warns against
transgression.
See Stromberg v. California, 283 U.
S. 359,
283 U. S. 368;
Lovell v. Griffin, 303 U. S. 444. 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. [
Footnote 2] The applicable rule is
stated in
Connally v. General Construction. Co.,
269 U. S. 385,
269 U. S.
391:
"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."
The phrase "consisting of two or more persons" is all that
purports to define "gang." The meanings of that
Page 306 U. S. 454
word indicated in dictionaries and in historical and
sociological writings are numerous and varied. [
Footnote 3] Nor is the
Page 306 U. S. 455
meaning derivable from the common law, [
Footnote 4] for neither in that field nor anywhere in
the language of the law is there definition of the word. Our
attention has not been called to, and we are unable to find, any
other statute attempting to make it criminal to be a member of a
"gang." [
Footnote 5]
In
State v. Gaynor, supra, the court of errors and
appeals dealt with the word. It said:
"Public policy ordains that a combination designed to wage war
upon society shall be dispersed and its members rendered incapable
of harm. This is the objective of section 4 . . . and it is
therefore a valid exercise of the legislative power. . . . The
evident aim of this provision was to render penal the association
of criminals for the pursuit of criminal enterprises; that is the
gist of the legislative expression. It cannot be gainsaid that such
was within the competency of the legislature; the mere statement of
the purpose carries justification of the act. . . . If society
cannot impose such taint of illegality upon the confederation of
convicted criminals, who have no lawful occupation, under
circumstances denoting . . . the pursuit of criminal objectives, it
is helpless against one of the most menacing forms of evil
activity. . . . The primary function of government . . . is to
render security to its subjects.
Page 306 U. S. 456
Then undertaking to find the meaning of 'gang' as used in the
challenged enactment, the opinion states:"
"In the construction of the provision, the word is to be given a
meaning consistent with the general object of the statute. In its
original sense, it signifies action -- 'to go;' in its modern
usage, without qualification, it denotes -- in common intent and
understanding -- criminal action. It is defined as 'a company of
persons acting together for some purpose, usually criminal,' while
the term 'gangster' is defined as 'a member of a gang of roughs,
hireling criminals, thieves, or the like.' Webster's New
International Dictionary (2d ed.). And the Oxford English
Dictionary likewise defines the word 'gang' as 'any company of
persons who go about together or act in concert [in modern use
mainly for criminal purposes].' Such is plainly the legislative
sense of the term."
If worded in accordance with the court's explication, the
challenged provision would read as follows:
"Any person not engaged in any lawful occupation, known to be a
member of any gang consisting of two or more persons (meaning a
company of persons acting together for some purpose, usually
criminal, or a company of persons who go about together or who act
in concert, mainly for criminal purposes), who has been convicted
at least three times of being a disorderly person or who has been
convicted of any crime in this or in any other State, is declared
to be a gangster (meaning a member of a gang of roughs, hireling
criminals, thieves, or the like)."
Appellants were convicted before the opinion in
State v.
Gaynor. It would be hard to hold that, in advance of judicial
utterance upon the subject, they were bound to understand the
challenged provision according to the language later used by the
court. Indeed, the state supreme
Page 306 U. S. 457
court (
State v. Bell, supra) went on supposed analogy
between "gang" and offenses denounced by the Disordery Persons Act,
Comp.Stat.Supp. 1930, § 59-1 upheld by the court of errors and
appeals in
Levine v. State, 110 N.J.L. 467, 470, 166 A.
330. But the court in that case found the meaning of "common
burglar" there involved to be derivable from the common law.
The descriptions and illustrations used by the court to indicate
the meaning of "gang" are not sufficient to constitute definition,
inclusive or exclusive. The court's opinion was framed to apply the
statute to the offenders and accusation in the case then under
consideration; it does not purport to give any interpretation
generally applicable. The state court did not find, and we cannot,
that "gang" has ever been limited in meaning to a group having
purpose to commit any particular offense or class of crimes, or
that it has not quite frequently been used in reference to groups
of two or more persons not to be suspected of criminality or of
anything that is unlawful. The dictionary definitions adopted by
the state court extend to persons acting together for some purpose,
"usually criminal," or "mainly for criminal purposes." So defined,
the purposes of those constituting some gangs may be commendable,
as, for example, groups of workers engaged under leadership in any
lawful undertaking. The statute does not declare every member to be
a "gangster" or punishable as such. Under it, no member is a
gangster or offender unless convicted of being a disorderly person
or of crime as specified. It cannot be said that the court intended
to give "gangster" a meaning broad enough to include anyone who had
not been so convicted or to limit its meaning to the field covered
by the words that it found in a dictionary, "roughs, hireling
criminals, thieves, or the like." The latter interpretation would
include some obviously not within the statute, and would exclude
some plainly covered by it.
Page 306 U. S. 458
The lack of certainty of the challenged provision is not limited
to the word "gang" or to its dependent, "gangster." Without
resolving the serious doubts arising from the generality of the
language, we assume that the clause "any person not engaged in any
lawful occupation" is sufficient to identify a class to which must
belong all capable of becoming gangsters within the terms of the
provision. The enactment employs the expression, "known to be a
member." It is ambiguous. There immediately arises the doubt
whether actual or putative association is meant. If actual
membership is required, that status must be established as a fact,
and the word "known" would be without significance. If reputed
membership is enough, there is uncertainty whether that reputation
must be general or extend only to some persons. And the statute
fails to indicate what constitutes membership, or how one may join
a "gang."
The challenged provision condemns no act or omission; the terms
it employs to indicate what it purports to denounce are so vague,
indefinite and uncertain that it must be condemned as repugnant to
the due process clause of the Fourteenth Amendment.
Reversed.
MR. JUSTICE FRANKFURTER took no part in the consideration or
decision of this case.
[
Footnote 1]
The section continues:
"
provided, however, that nothing in this section
contained shall in any wise be construed to include any participant
or sympathizer in any labor dispute."
The proviso is not here involved.
[
Footnote 2]
Champlin Rfg. Co. v. Commission, 286 U.
S. 210,
286 U. S. 242,
286 U. S. 243.
Cline v. Frink Dairy Co., 274 U.
S. 445,
274 U. S. 458.
Connally v. General Construction Co., 269 U.
S. 385,
269 U. S.
391-393.
Small Co. v. American Sugar Rfg. Co.,
267 U. S. 233,
267 U. S. 239.
United States v. Cohen Grocery Co., 255 U. S.
81,
255 U. S. 89-92.
Collins v. Kentucky, 234 U. S. 634,
234 U. S. 638.
International Harvester Co. v. Kentucky, 234 U.
S. 216,
234 U. S.
221-223.
Cf. People v. Belcastro, 356 Ill. 144,
190 N.E. 301.
People v. Licavoli, 264 Mich. 643, 250 N.W.
520.
[
Footnote 3]
American dictionaries define the word as follows:
Webster's New International Dictionary (2d ed.): "gang . . .
Act, manner, or means of going; passage, course, or journey. . . .
A set or full complement of any articles; an outfit. A number going
in or forming a company; as a
gang of sailors; a
gang of elk. Specif.: . . . A group of persons associated
under the same direction; as a
gang of pavers; a
gang of slaves. . . . A company of persons acting together
for some purpose; usually criminal, or at least not good or
respectable; as, a political
gang; a
gang of
roughs. . . ."
Funk & Wagnalls New Standard Dictionary (1915): "gang . . .
A company or band of persons, or sometimes of animals, going or
acting together; a group or squad: sometimes implying cooperation
for evil or disreputable purposes; as, a
gang of laborers;
a
gang of burglars; he set the whole gang at work. . .
."
Century Dictionary and Cyclopedia (1903): "gang . . . A number
going or acting in company, whether of persons or of animals: as, a
gang of drovers; a gang of elks. Specifically -- (a) A number of
persons associated for a particular purpose or on a particular
occasion: used especially in a depreciatory or contemptuous sense
or of disreputable persons: as, a gang of thieves; a chain-gang . .
. (b) A number of workmen or laborers of any kind engaged on any
piece of work under supervision of one person; a squad; more
particularly, a shift of men; a set of laborers working together
during the same hours. . . ."
Part of the text of the definitions given by the Oxford English
Dictionary (1933) reads: "gang . . . A set of things or persons . .
. A company of workmen . . . A company of slaves or prisoners . . .
Any band or company of persons who go about together or act in
concert (chiefly in a bad or depreciatory sense, and in mod. usage
mainly associated with criminal societies) . . .
To be of a
gang: to belong to the same society, to have the same
interests. . . ."
Another English dictionary, Wyld's Universal Dictionary of the
English Language, defines the word as follows: "gang . . . 1. A
band, group, squad; (a) of labourers working together; (b) of
slaves, prisoners &c. 2. (in bad sense) (a) A group of persons
organized for evil or criminal purpose: a gang of burglars &c;
(b) (colloq., in disparagement) a body, party, group, of persons:
"I am sick of the whole gang of university wire-pullers. . . ."
See: Asbury, Herbert, The Gangs of New York, 1927,
Alfred A. Knopf. Thrasher, Frederic M., "Gangs" in Encyclopaedia of
the Social Sciences, 1931, vol. 6, p. 564, and The Gang: A study of
11 Gangs in Chicago, 1927, University of Chicago Press.
[
Footnote 4]
See, e.g., Champlin Rfg. Co. v. Commission,
286 U. S. 210,
286 U. S.
242-243.
Connally v. General Const. Co.,
269 U. S. 385,
269 U. S. 391.
Nash v. United States, 229 U. S. 373.
[
Footnote 5]
Cf. Kans.Laws 1935, c. 161. Ill.Laws 1933, p. 489, held
unconstitutional in
People v. Belcastro, 356 Ill. 144, 190
N.E. 301. Mich.Comp.Laws (Mason, Supp. 1935) § 17115-17167, held
unconstitutional in
People v. Licavoli, 264 Mich. 643, 250
N.W. 520.