KENNETH L. JAQUITH vs. COMMONWEALTH.

COUNIHAN, J. This is a petition by Kenneth L. Jaquith for a writ of error to reexamine judgments entered in the Superior Court and to reverse them because of errors of law. G. L. (Ter. Ed.) c. 250, Section 9. Pursuant to Rule 50 of the Rules for the Regulation of Practice at Common Law and in Equity, 328 Mass. 726, the single justice of this court, after notice and hearing, affirmed the judgments. The case comes here upon exceptions of the petitioner. There was no error.

In his bill of exceptions the petitioner attacks the validity of the judgments that he was guilty of violations of G. L. (Ter. Ed.) c. 272, Section 35, [Note Page440-1] and of the sentence which was imposed under G. L. (Ter. Ed.) c. 266, Section 16, as appearing in St. 1943, c. 343, Section 1. [Note Page440-2] The petitioner, who was represented by counsel, pleaded guilty to indictments charging that he "did commit an unnatural and lascivious act" on several occasions with three named persons, and that he, on two occasions, "in the nighttime did break and enter the building of Prospect Hill Congregational Church situated in said Somerville, with intent therein to commit a felony, to wit, an unnatural and lascivious act with another person." He was sentenced for a term of nine to fifteen years in the State prison and we assume that he is now confined there.

In support of his petition he assigns as error the following: "1. Chapter 272, Section 35, of G. L. (Ter. Ed.) violates art. 12 of the Declaration of Rights of the Constitution of Massachusetts. Said section is therefore void, and sentence and confinement under said section are consequently contrary to law. 2. Said c. 272, Section 35, violates the due process clause of the Fourteenth Amendment to the Constitution of the United States, and sentence and confinement

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therefore are contrary to law. 3. The indictments returned against the defendant under G. L. (Ter. Ed.) c. 272, Section 35, violate art. 12 of the Declaration of Rights of the Constitution of Massachusetts and the due process clause of the Fourteenth Amendment to the Constitution of the United States, and are otherwise contrary to law. 4. The sentence and confinement imposed upon your petitioner for violation of G. L. (Ter. Ed.) c. 266, Section 16, is contrary to law and contrary to substantial justice."

We are of opinion that the exceptions are properly before us and we consider them because a "writ of error is an original, independent action and in its origin and nature is distinguishable from appeals and bills of exceptions, which are continuations of the original action. In criminal cases, as distinguished from civil actions, the writ lies notwithstanding there is a remedy by appeal." Commonwealth v. Marsino, 252 Mass. 224, 227-228. G. L. (Ter. Ed.) c. 250, Section 9. Compare Lee v. Fowler, 263 Mass. 440.

The substance of the petitioner's assignments of error, of his bill of exceptions, and of his argument before us is that a charge of committing "an unnatural and lascivious act" affords no ascertainable standard of conduct and so the statute proscribing such acts is a nullity in that it violates art. 12 of the Declaration of Rights of the Constitution of Massachusetts which reads in part: "No subject shall be held to answer for any crimes or offence, until the same is fully and plainly, substantially and formally, described to him." He says it also violates the due process clause of the Fourteenth Amendment to the Constitution of the United States. He further asserts that an indictment in the language of such statute is violative of the same constitutional provisions because it does not set forth the crime with such definiteness of allegation as will enable an accused to understand the charge and prepare his defence.

We are of opinion that the terms of this statute are not violative of the requirements of the constitutional provisions relied upon. We agree that a statute proscribing certain conduct must be sufficiently definite in specifying

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the conduct which is inhibited so that a reasonable man may not be compelled to speculate at his peril whether a statute permits or prohibits the act he proposes to undertake. If the language of a statute is so variable, vague, or uncertain that it does not plainly set out a crime, then the statute is a nullity. Out of the many cases in which this principle has been affirmed by the Supreme Court of the United States a few citations will suffice. Connally v. General Construction Co. 269 U.S. 385, 391. Cline v. Frink Dairy Co. 274 U.S. 445. Lanzetta v. New Jersey, 306 U.S. 451. Winters v. New York, 333 U.S. 507, 515-516. This principle has been recognized in our decisions. Commonwealth v. Daniel O'Connell's Sons, Inc. 281 Mass. 402. Commonwealth v. Corbett, 307 Mass. 7, 8. McQuade v. New York Central Railroad, 320 Mass. 35, 40. Commonwealth v. Slome, 321 Mass. 713, 715-717. Commonwealth v. Carpenter, 325 Mass. 519, 521.

However, a statute does not fail to satisfy constitutional requirements merely because it uses general terms when such terms so define the offence as to convey to a person of ordinary understanding and intelligence an adequate description of the prohibited act. It is not infrequent that proscribed conduct is incapable of precise legal definition. Commonwealth v. Pentz, 247 Mass. 500, 507.

Having in mind what we have just said, it is plain that "an unnatural and lascivious act" are words of common usage and indicate with reasonable clarity the kind and character of conduct which the Legislature intended to prohibit and punish. These words have a well defined, well understood, and generally accepted meaning. The words of this statute "are common words and may be assumed to be understood in their common meaning by an ordinary jury." Commonwealth v. Buckley, 200 Mass. 346, 352. They signify irregular indulgence in sexual behavior, illicit sexual relations, and infamous conduct which is lustful, obscene, and in deviation of accepted customs and manners. See Commonwealth v. Wardell, 128 Mass. 52; Commonwealth v. Dill, 160 Mass. 536; Commonwealth v. Delano, 197 Mass. 166;

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Commonwealth v. Allison, 227 Mass. 57; Commonwealth v. Isenstadt, 318 Mass. 543, 550; 24 Words & Phrases (Perm. ed.) 257. Numerous decisions of the Supreme Court of the United States and of other jurisdictions have sustained statutes similar in form and phraseology to the one with which we are here concerned. It would unduly prolong this opinion to cite them. It is enough to say that it generally has been held that the common sense of the community, as well as the sense of decency, propriety, and morality which all respectable persons usually entertain, is sufficient to apply the statute to a situation and determine what particular kind of conduct offends. Further specifications in the indictments would be an offence against common decency.

What we already have said disposes of the contention of the petitioner that these indictments are defective because they fail to inform him of the nature of the crime with which he is charged so that he would be able to prepare a defence. The charge is made in the language of the statute. G. L. (Ter. Ed.) c. 277, Section 45. [Note Page443-1] This is enough. Commonwealth v. Allison 227 Mass. 57, 61. Commonwealth v. Dyer, 243 Mass. 472, 490-491. Commonwealth v. Pentz, 247 Mass. 500, 507-509.

The petitioner further argues that these indictments violate the due process clause of the Fourteenth Amendment to the Constitution of the United States in that they do not set forth the crimes with which he was charged with sufficient certainty to enable him to plead convictions on these indictments in bar of any future prosecution. Because of what we have said hereinbefore we are convinced that these indictments are not lacking in the certainty required to define the charges alleged in them. Moreover, we are of opinion that in order to protect himself from a second prosecution the petitioner may resort to the record and even to parol evidence to show facts which resulted in a prior conviction. No case in Massachusetts has been brought to

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our attention, and we have found none, in which this point has been decided. It was so held, however, in Batrell v. United States, 227 U.S. 427, where at page 433 it was said, "As to the objection that the charge was so indefinite that the accused could not plead the record and conviction in bar of another prosecution, it is sufficient to say that in such cases it is the right of the accused to resort to parol testimony to show the subject-matter of the former conviction, and such practice is not infrequently necessary." This rule has been generally followed in other jurisdictions.

There is no merit to the fourth assignment of error that "The sentence and confinement imposed upon your petitioner for violation of G. L. (Ter. Ed.) c. 266, Section 16, is contrary to law and contrary to substantial justice." To refute this it is enough to point out that violation of c. 272, Section 35, is punishable "by imprisonment in the state prison for not more than five years . . . ." The petitioner pleaded guilty to indictments charging five violations of this statute. The same sentence as that imposed could have been arrived at by imposing sentence on each count of the indictments under c. 272, Section 35, to run on and after the expiration of prior sentences.

Exceptions overruled.