U.S. Supreme Court LANZETTA v. STATE OF NEW JERSEY, 306 U.S. 451 (1939)

[Page 306 U.S. 451, 453]

sion, State v. Gaynor, 119 N.J.L. 582, 197 A. 360, 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, 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, 368, 51 S.Ct. 532, 535, 73 A.L. R. 1484; Lovell v. Griffin, , 58 S.Ct. 666. 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 Const. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127: '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.'

[Page 306 U.S. 451, 454]

word indicated in dictionaries and in historical and sociological writings are numerous and varied. [Footnote 3] Nor is the

[Page 306 U.S. 451, 455]

meaning derivable from the common law,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]

[Page 306 U.S. 451, 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. Footnotes

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 Ref. Co. v. Corporation Commission, 286 U.S. 210, 242, 243 S., 52 S.Ct. 559, 567, 568, 86 A.L.R. 403; Cline v. Frink Dairy Co., 274 U.S. 445, 458, 47 S.Ct. 681, 685; Connally v. General Const. Co., , 391-393, 46 S.Ct. 126, 127, 128; Small Co. v. American Sugar Ref. Co., 267 U.S. 233, 239, 45 S.Ct. 295, 297; United States v. Cohen Grocery Co., , 89-92, 41 S.Ct. 298, 300, 301, 14 A.L.R. 1045; Collins v. Kentucky, 234 U.S. 634, 638, 34 S.Ct. 924, 925; International Harvester Co. v. Kentucky, , 221-223, 34 S.Ct. 853, 854, 855. Cf. People v. Belcastro, 356 Ill. 144, 190 N.E. 301, 92 A.L. R. 1223; 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 (1902): '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 Encyclopedia of the Social Sciences, 1931, vol. 6, p. 564, and The Gang: A Study of 1313 Gangs in Chicago, 1927, University of Chicago Press.

Footnote 4 See, e.g., Champlin Ref. Co. v. Corporation Commission, 286 U.S. 210, 242, 243 S., 52 S.Ct. 559, 567, 568, 86 A.L.R. 403; Connally v. General Const. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127; Nash v. United States, , 33 S.Ct. 780.

Footnote 5 Cf. Kans.Laws 1935, c. 161. Ill.Laws 1933, p. 489, Ill.Rev.Stat. 1937, c. 38, 578, held unconstitutional in People v. Belcastro, 356 Ill. 144, 190 N.E. 301, 92 A.L.R. 1223. Mich.Comp.Laws (Mason's Supp.1935) 17115-167, held unconstitutional in People v. Licavoli, 264 Mich. 643, 250 N.W. 520.