Summary
loitering not coupled with any other overt conduct
Summary of this case from Ford v. United StatesOpinion
No. 25908 No. 25845
Decided April 15, 1974.
Defendant was charged with violating the statute, 1971 Perm. Supp., C.R.S. 1963, 40-9-113(2)(c), which provides that a person commits a Class 1 petty offense if he loiters for the purpose of engaging or soliciting another person to engage in deviate sexual intercourse. Prior to trial the county court held the statute unconstitutional and granted defendant's motion to dismiss and the People appealed.
Affirmed
1. CONSTITUTIONAL LAW — Loitering Statute — Distinction. An unconstitutional loitering statute involves merely status, whereas a constitutional one couples status with an overt act.
2. VAGRANCY — Loitering Statute — Unconstitutional — Due Process — Negative. Loitering statute, 1971 Perm. Supp., C.R.S. 1963, 40-9-113(2)(c), prohibiting loitering for the purpose of soliciting another for deviate sexual intercourse — which failed to require the loitering to be coupled with any other overt act, and merely required that the loitering need only be coupled with the state of mind of having "the purpose of engaging or soliciting another person to engage in . . . deviate sexual intercourse" — was unconstitutional, as it did not satisfy constitutional due process requirements.
3. Loitering Statute — Suggestion — Untenable — Amend — Inconsistencies. People's suggestion — that Supreme Court interpret loitering statute so that it prohibits loitering only when the loitering is coupled with the overt act of solicitation — is untenable, since such construction would force court, in effect, to amend the statute and would also produce inconsistencies within the Code.
Appeal from the County Court of the City and County of Denver, Honorable Irving Ettenberg, Judge.
Dale Tooley, District Attorney, Brooke Wunnicke, Chief Appellate Deputy, for plaintiff-appellant.
Milnor H. Senior, P.C., for defendant-appellee.
Paul H. Hunter, Milo N. Gonser, William F. Reynard, amicus curiae, for American Civil Liberties Union of Colorado.
George E. Gibson, the appellee, was charged with violating 1971 Perm. Supp., C.R.S. 1963, 40-9-113(2)(c) which provides:
"A person commits a Class 1 petty offense if he:
Loiters for the purpose of engaging or soliciting another person to engage in . . . deviate sexual intercourse."
Prior to trial the county court held the statute unconstitutional and granted appellee's motion to dismiss. The People have now brought this appeal. We affirm.
This direct appeal from the county court was permitted under C.R.S. 1963, 39-7-26(2), but this (and all of chapter 39) were repealed in 1972. Chap. 44, § 1 Colo. Sess. Laws, 1972. Section 26(2) was not reenacted. There is pending here another direct appeal from a Denver County Court determination of unconstitutionality of a criminal statute. People v. Garcia, No. 26320, 189 Colo. 347, 541 P.2d 687. Time for appeal to the Superior Court has expired in both cases. We, in effect, suspend the rules and take jurisdiction of these two cases in order that the issues of constitutionality may be determined on review. Absent a legislative change or change in our Rules of Criminal Procedure in this respect, future appeals should be to the district courts, except as to the City and County of Denver it shall be to the Superior Court.
[1,2] As pointed out by the People, in Arnold v. City and County of Denver, 171 Colo. 1, 464 P.2d 515 (1970), we made the critical distinction between an unconstitutional loitering statute which involves merely status and a constitutional one which couples status with an overt act. We cited the following language from Goldman v. Knecht, 295 F. Supp. 897 (D. Colo. 1969):
"'Conceivably, loitering or strolling on public property which obstructs the orderly government process would be offensive, and conceivably loitering and strolling about, when coupled with preparation to commit a criminal offense or with interference with the activities of others, might be within the scope of legislative prohibition, but the statute does not require the loitering or strolling to be associated with any other conduct.'" (Emphasis added.)
The statute now before us suffers from the same infirmity as the vagrancy statute held unconstitutional in Goldman. The statute fails to require the loitering to be coupled with any other overt conduct. Rather, the loitering need only be coupled with the state of mind of having "the purpose of engaging or soliciting another person to engage in . . . deviate sexual intercourse." We now reaffirm our acceptance of the Goldman rationale and hold that 1971 Perm. Supp., C.R.S. 1963, 40-9-113(2)(c) does not satisfy constitutional due process requirements.
The People have cited to us the rule that if a statute is fairly susceptible of two interpretations, one of which is constitutional and the other unconstitutional, a reviewing court must construe the statute so as to render it constitutional. If the statute is to be construed at face value, as we have done, it is susceptible to but one interpretation. The result is that it is unconstitutional.
[3] The People have suggested that we interpret the statute so that it prohibits loitering only when the loitering is coupled with the overt act of solicitation. The problems with the People's suggested construction are twofold. First, it would require this court to usurp a legislative function, and secondly, it would render the statute inconsistent with at least one other section of the Criminal Code. 1971 Perm. Supp., C.R.S. 1963, 40-2-301 provides that "a person is guilty of criminal solicitation if he commands, induces, entreats, or otherwise attempts to persuade another person to commit a felony." (Emphasis added.) The old Criminal Code did make it a felony to engage in "unnatural carnal copulation committed per anus or per os." C.R.S. 1963, 40-2-31(1). Under the new Criminal Code, however, it is no longer a crime of any sort, much less a felony, to engage in consensual deviate sexual intercourse. The statutory comment on 1971 Perm. Supp., C.R.S. 1963, 40-3-401 to 40-3-411 states that "voluntary participation in deviate sexual acts is not made a crime."
Additionally, under the old Code, "the solicitation of any unnatural carnal copulation" was made a crime. C.R.S. 1963, 40-2-31(2). Under the new Code solicitation for deviate sexual intercourse is no longer prohibited. Thus, the People's construction would produce the following inconsistencies within the Code: (1) under the solicitation statute a crime occurs only when one entices another to commit a felony, while 40-9-113(2)(c) would make it illegal to solicit another for a non-crime; (2) the new Code legalized solicitation for deviate sexual intercourse, while 40-9-113(2)(c) would prohibit the same solicitation if coupled with loitering. Because the People's construction would force us in effect to amend the statute, and because the construction would produce inconsistencies within the Code, we are obliged not to make this construction.
Judgment affirmed.
MR. CHIEF JUSTICE PRINGLE, MR. JUSTICE HODGES and MR. JUSTICE KELLEY dissent.