State v. Crocker

CARTER, Justice,

with whom GOD-FREY, Justice, joins, concurring:

I concur fully in Parts II through IX, inclusive, of the majority opinion and in the *78 result reached by the majority. I strongly disagree, however, with the scope of the holding in Part I of the majority opinion dealing with the Due Process of Law challenge to the “Depraved Indifference” murder statute, 17-A M.R.S.A. § 201(1)(B), and with the rationale put forth by the Court for that holding. My disagreement is founded upon what I consider to be the unnecessary “overbreadth” of the majority’s consideration and decision of the constitutional issue. I believe the dimensions of the challenge to the statute should be determined by the facts of this case and that the Court’s holding should be of the same restricted scope.

The majority states the central contention made by this defendant in challenging this statute as:

. . . [T]hat the depraved indifference murder statute requires no greater quantum of proof to secure a conviction than does the criminal negligence manslaughter statute [17-A M.R.S.A. § 203(1)(A)] . . . and [that] any murder conviction that might be founded on the depraved indifference portion of the statute is arbitrary and thus invalid.

Majority Op. at 63 (emphasis added). It is my conviction that, on well established constitutional principles, the challenge, framed as broadly as it is, may not prevail. It is a critical error to enter into the consideration of the constitutionality of the statute (and ultimately to decide it) on the basis of an unquestioning acceptance of the defendant’s overly broad statement of this challenge. The majority’s failure to indulge in the appropriate propositional refinement of the question at issue leads it to enter upon hazardous ground where it need not and should not go, in this case.

I believe it to be sound doctrine that this Court should refrain from making judgments on the constitutionality of a statutory provision that are broader in scope than necessary to resolve the precise constitutional question in the factual context in which it is raised. This policy of strict necessity in disposing of constitutional issues has been concisely stated as a rule that “. . . [constitutional issues affecting legislation will not be determined ... in broader terms than are required by the precise facts to which the ruling is to be applied ... [or] at the instance of one who fails to show that he is injured by the statute’s operation .... ” Rescue Army v. Municipal Court, 331 U.S. 549, 569 , 67 S.Ct. 1409, 1419 , 91 L.Ed. 1667 , 1678 (1947). 1

This policy first emerged in our constitutional jurisprudence as a predicate upon which an appellate court might refuse to exercise its jurisdiction to review a lower court’s determination as to the constitutionality of a legislative enactment. See Rescue Army. An early, concise statement of the principle, as such a predicate, was set forth in Liverpool, New York and Philadelphia Steamship Co. v. Commissioners of Emigration, 113 U.S. 33 , 5 S.Ct. 352 , 28 L.Ed. 899 (1884). In that case, the Court held that it would not consider a constitutional challenge to the validity of a statute absent a showing that the statute, properly construed, necessarily operated to bar recovery of the particular payments sought by the complaint. Implicit in this holding is the premise that the constitutionality of a statute is tó be determined in the context of the specific facts of its application to the circumstances of the particular case. The Court discussed the operative principle in the following language:

If, on the other hand, we should assume the plaintiff’s case to be within the terms of the statute, we should have to deal with it purely as an hypothesis, and pass upon the constitutionality of an act of Congress as an abstract question. That is not the mode in which this court is accustomed or willing to consider such questions. It has no jurisdiction to pronounce *79 any statute, either of a State or of the United States, void, because irreconcilable with the Constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies. In the exercise of that jurisdiction, it is bound by two rules, to which it has rigidly adhered, one, never to anticipate a question of constitutional law in advance of the necessity of deciding it; the other never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied. These rules are safe guides to sound judgment. It is the dictate of wisdom to follow them closely and carefully.

Id. at 39 , 5 S.Ct. at 355 (emphasis added).

The Court subsequently, in the Rescue Army case, invoked the policy again as a basis to decline to exercise its jurisdiction to review a lower court’s determination of statutory constitutionality. The Court there went to particular pains to set forth the jurisprudential predicates of what it called its “.. . policy of strict necessity in disposing of constitutional issues.” 331 U.S. at 568 , 67 S.Ct. at 1419 , 91 L.Ed. at 1678 . The salient points of the analysis set forth in that case are: (1) that the policy is one of substance and not merely procedural or discretionary, 2 (2) that the reasons for the policy are a variety of considerations that go to the nature and function of judicial review as it properly operates within the context of the competing functions of the various departments of our constitutional scheme of government, 3 (3) that the impact of such considerations in the application of the policy cannot be abstractly identified or didactically prescribed, 4 (4) that the operation of the policy is not dependent upon the presence or absence of other nonconstitu-tional issues in the case, 5 and (5) that the policy is to be applied on a case-by-case basis. 6

Although the Liverpool and Rescue Army cases, narrowly construed, stand only for the proposition that an appellate court ought not exercise its jurisdiction to entertain, in the course of appellate review, constitutional challenges which present only facial, general, or abstract attacks upon the constitutional validity of statutory enactments, the policy of strict necessity has not been so delimited in its application. In United States v. Raines, 362 U.S. 17 , 80 S.Ct. 519 , 4 L.Ed.2d 524 (1960), the United States Supreme Court expanded the impact of the policy by applying it directly as a substantive rule of law for purposes of re *80 viewing the validity of a lower court determination of the unconstitutionality of a statute. The Court stated, “[w]e think that under the rules we have stated, the court should then have gone no further and should have upheld the Act as applied in the present action, and that its dismissal of the complaint was error.” Id. at 27 , 80 S.Ct. at 526 , 4 L.Ed.2d at 532 (emphasis added). The “rules” to which the Court refers in its holding are those set forth in the Liverpool case, 113 U.S. at 39 , 5 S.Ct. at 355 , quoted supra at 78-79. The Court in Raines then made the following additional observation:

Kindred to these rules is the rule that one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional.

362 U.S. at 21 , 80 S.Ct. at 522 , 4 L.Ed.2d at 529 (citations omitted).

The Raines case demonstrates that the policy of “strict necessity” in the disposition of constitutional challenges to legislation is not restricted in its application to questions of the propriety of the exercise of the court’s jurisdiction on appellate review but that it is, as well, a substantive principle of law to be applied by appellate tribunals in reviewing the propriety of a lower court’s decision determining issues of constitutional challenges to the validity of legislative enactments. The case also establishes that the application of the policy does not necessarily restrict the court to simply refusing to exercise its jurisdiction over a constitutional question. Nor does it require, or, indeed, properly permit the court to uphold facially for all circumstances the constitutionality of the statute in question. It states that the policy permits the court to set the dimensions of the constitutional issue presented in relation to the facts of the specific case and to determine the constitutionality of the statute in the context of those facts and the dimensions to be imputed from them. Implicit in all of this is the proposition that the court may properly leave open, for later adjudication, questions of the constitutionality of the statute in other factual contexts.

This latter proposition was given direct application in United States v. National Dairy Products Corp., 372 U.S. 29 , 83 S.Ct. 594 , 9 L.Ed.2d 561 (1963). There, the Court dealt with a constitutional challenge to the validity of § 3 of the Robinson-Patman Act, 15 U.S.C. § 13a, which made it a crime to sell goods at “unreasonably low prices for the purpose of destroying competition or eliminating a competitor.” Id. at 29, 83 S.Ct. at 594 , 9 L.Ed.2d at 563-64 . This language was attacked as unconstitutionally vague and indefinite as applied to a sale below cost made by the defendants. On appeal, the defendant contended that § 3 was to be “tested solely ‘on its face’ rather than as applied to the conduct charged in the indictment. . .. ” Id. at 31, 83 S.Ct. at 597, 9 L.Ed.2d at 565 . 7 The Court observed in deciding the case:

It is true that a statute attacked as vague must initially be examined “on its face,” but it does not follow that a readily discernible dividing line can always be drawn, with statutes falling neatly into one of the two categories of “valid” or “invalid” solely on the basis of such an examination.

Id. at 32 , 83 S.Ct. at 597 , 9 L.Ed.2d at 565 . Citing the language of Raines and noting the Court’s many holdings that statutes are not necessarily invalidated as vague simply because difficulty may be found in determining whether certain “marginal offenses” fall within their language, the Court stated that “[v]oid for vagueness simply means that criminal responsibility should not attach where one could not reasonably understand that his contemplated conduct is proscribed. ... In determining the sufficiency of the notice a statute must of necessity be examined in the light of the conduct with which a defendant is *81 charged.” Id. at 32-33 , 83 S.Ct. at 597-598 , 9 L.Ed.2d at 565-66 (citation omitted) (emphasis added). On this basis, the Court upheld the constitutionality of § 3 of the Act as applied to the sales alleged in the indictment at the case then at bar. That the Court’s holding of the statute’s constitutionality was limited in its scope by the facts of the case was made expressly clear by the Court. Id. at 36-37, 83 S.Ct. at 599-600 , 9 L.Ed.2d at 568 . Subsequently, in Parker v. Levy, 417 U.S. 733 , 94 S.Ct. 2547 , 41 L.Ed.2d 439 (1974), the Court held that the proper standard of review for a vagueness challenge to articles 133 8 and 134 9 of the Uniform Code of Military Justice 10 was that applied in the National Dairy Corporation case. The Court stated that:

Since appellee could have had no reasonable doubt that his public statement urging Negro enlisted men not to go to Vietnam if ordered to do so were both “unbecoming an officer and a gentlemen,” and “to the prejudice of good order and discipline in the armed forces,” in violation of the provisions of Arts. 133 and 134, respectively, his challenge to them as unconstitutionally vague under the Due Process Clause of the Fifth Amendment must fail.

Id. at 757 , 94 S.Ct. at 2562 , 41 L.Ed.2d at 458 . Similar application of the strict necessity policy may be seen in the case of United States v. Mazurie, 419 U.S. 544 , 95 S.Ct. 710 , 42 L.Ed.2d 706 (1975). In reversing a court of appeals’ determination of the unconstitutionality of a statute, the Court noted that “[i]t is well established that vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand. United States v. National Dairy Products Corp., 372 U.S. 29 , 83 S.Ct. 594 , 9 L.Ed.2d 561 (1963).” 419 U.S. at 550 , 95 S.Ct. at 714 , 42 L.Ed.2d at 73 . Likewise, in United States v. Powell, 423 U.S. 87 , 96 S.Ct. 316 , 46 L.Ed.2d 228 (1975), the Court sustained against constitutional challenge a federal statute prohibiting the mailing of firearms capable of being concealed on the person, 18 U.S.C. § 1715 . Noting that the court of appeals, in sustaining the constitutional challenge, dealt with the statute generally and on a facial basis, the Court stated:

While doubts as to the applicability of the language in marginal fact situations may be conceived, we think that the statute gave respondent adequate warning that her mailing of a sawed-off shotgun 22-inches-long was a criminal offense. Even as to more doubtful cases than that of the respondent, we have said that “the law is full of instances where a man’s fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree.”

Id. at 93, 96 S.Ct. at 320 , 46 L.Ed.2d at 234 (citation omitted). The Court said that it would not strain to inject doubt as to the meaning of words in any situation where no doubt could be felt by the normal reader in construing the statutes under challenge for vagueness. The Court even went on to note that “[t]he fact that Congress might, without difficulty, have chosen ‘[cjlearer and more precise language’ equally capable of achieving the end which it sought does not mean that the statute which it in fact drafted is unconstitutionally vague.” Id. at 94 , 96 S.Ct. at 320 , 46 L.Ed.2d at 325 (citation omitted).

The doctrine emanating from this line of cases is that except where First Amendment rights are at stake, 11 all constitutional *82 challenges to legislation, with very few exceptions, 12 especially in the field of criminal law, based on federal due process of law are to be measured on an “as applied” basis rather than upon the basis of general or facial sufficiency of statutory language. United States v. Channel, 423 F.Supp. 1017 (D.Md.1976). Not surprisingly, this Court has previously adopted and applied this body of rules in deciding questions raised by constitutional challenges to various statutes. The Court stated in State v. Richardson, Me., 285 A.2d 842, 846 (1972):

One who seeks to assert a particular conglomerate of circumstances in which the operation of the statute might be unconstitutional must prove such facts in an actual case to test the constitutionailty [sic] of the statute, as applied, rather than to seek to invalidate it on its face by hypothesizing marginal situations in which the statute might be conceived to operate with unduly oppressive or unjustifiably arbitrary impact indicative of unconstitutionality.

In the same opinion, the Court said by way of particular analysis:

Hence, a constitutional attack, launched facially against ... the statute at issue, and predicated upon due process and equal protection considerations, must fail when, as is true of the present statute, the core of the statute has reasonable application to a substantial expanse of situations clearly lying within the scope of the evils which the State ... may constitutionally seek to prevent. Regardless, therefore, of conceivable instances of over-inclusiveness, or excessiveness, at the fringes of ... [the statutory language], facial constitutional attack must fail, United States v. Raines . ..

Id. at 845 (emphasis in original).

These principles should be observed here, for they have a long-standing and important place in the constitutional jurisprudence of this court. Matheson v. Bangor Publishing Co., Me., 414 A.2d 1203, 1205 (1980) (“We have ... reiterated the undesirability of the Law Court’s deciding constitutional issues prematurely or otherwise than in the context of a fully developed factual situation that demands a constitutional decision.”); Osier v. Osier, Me., 410 A.2d 1027, 1029 (1980) (“As a general rule courts should endeavor to resolve the controversies before them without deciding constitutional issues, reaching such an issue only ‘[if] it is entirely necessary to a decision on the cause in which it is raised.’ State v. Good, Me., 308 A.2d 576, 579 (1973).... ”); Clardy v. Town of Livermore, Me., 403 A.2d 779, 782 (1979) (“. . . [I]t is a cardinal rule of appropriate judicial functioning that a court should avoid decision of a constitutional question where the legislative enactment that occasions the question is fairly open to an interpretation making decision of it unnecessary.”); State *83 v. Fitanides, Me., 373 A.2d 915, 921 (1977) (“... [W]e note that our interpretation [of the statute] is in accord with the well-settled canon that a statute shall be construed in reasonable manner to avoid jeopardizing its validity on constitutional grounds.”); State v. Good, Me., 308 A.2d 576, 579 (1973) (“As the complaint does not allege an offense, we arrive at a necessary disposition of this appeal without reaching the constitutional issues.”); Johnson v. Maine Wetlands Control Board, Me., 250 A.2d 825, 827 (1969) (“It has long been the judicial policy of this Court to decline to pass upon the question of constitutionality of a statute unless this is entirely necessary to a decision of the cause in which it is raised.”). See also State v. Fantastic Fair, 158 Me. 450, 466-67 , 186 A.2d 352, 362-63 (1962); McGary v. Barrows, 156 Me. 250, 258 , 163 A.2d 747, 752 (1960); Baxter v. Waterville Sewerage District, 146 Me. 211, 214 , 79 A.2d 585, 587 (1951).

In point of fact, this Court has very recently sustained this very “Depraved Indifference” murder statute against federal due process attack for vagueness on an “as applied” rationale. State v. Flick, Me., 425 A.2d 167, 174 (1981). We stated in that case:

In State v. Parker, Me., 372 A.2d 570, 573 (1977), we said:

A criminal statute fails to give fair warning of its scope, in accordance with due process requirements, if “a person of ordinary intelligence” could not “reasonably understand” that it forbids the conduct for which he is criminally charged, United States v. Hariss, 347 U.S. 612 , 74 S.Ct. 808 , 98 L.Ed. 989 (1954).

We cannot find that § 201(1)(B) falls so far short of this standard as to have denied defendant a fair trial.

Id. (emphasis added). Such a holding can only be interpreted as a determination that the statute “as applied” to the facts in Flick did not violate federal due process rights of the defendant. I see no need to go further, as a matter of rational technique, in the present case than did the Court in Flick .

We have previously construed the statute in question in this case as being intended to impose criminal liability for the offense of murder where death has resulted from conduct of the accused which has “created such a high tendency to produce death that the law attributes to him the highest degree of blameworthiness.” State v. LaGasse, Me., 410 A.2d 537, 540 (1980). We have said that it was the legislative intent to punish as murder conduct which a jury would find to be “so heinous in the eyes of the law as to constitute murder.” State v. Woodbury, Me., 403 A.2d 1166, 1173 (1979). I have no difficulty with construing the statute as intended to proscribe conduct resulting in death which a defendant should have known would create a “very high degree” of risk of death or serious bodily injury under circumstances making it unjustifiable for the defendant to take such a risk. It is apparent to me that such a construction fairly represents the legislative intent in enacting the statute.

Accepting all of that, I submit that it is necessary for us, in testing the constitutionality of this statute for purposes of the present attack, to determine only whether the conduct of this defendant in bringing about the death of this victim, as disclosed by the evidence in this case, leaves any room for reasonable doubt as to whether his conduct was within the standard of conduct intended by the Legislature to qualify for punishment as murder. There is no need for us to go to a facial reading of the statute.

Accepting the stated modality of analysis, there can be no question on the facts of this case but that the conduct of the defendant which resulted in the death of this five-year-old child was so egregious, in terms of its culpability, that the Legislature intended by the “Depraved Indifference” murder statute to punish that conduct by conviction for the offense of murder. The majority states, and it is undeniably true, that the only distinction between depraved indifference murder and manslaughter by criminal negligence is one of degree. Distinctions of degree are often operative in determina *84 tions of criminal responsibility. To characterize a distinction of levels of criminal offense, however, as one of degree is not to resolve the potential constitutional problem that is raised by a challenge for vagueness. Where there is no basis from the language of the statute (even as amplified by our interpretative judicial glosses upon it) nor by interpolation from the facts to which the statute is applied, for a discernible demarcation point at which the degree of culpability involved passes from that which is sufficient for one offense to that required for a higher offense, the potential for constitutional deficiency persists. The Holmesian acceptance of distinctions of degree 13 is simply a recognition of a particular modality of legislative expression and judicial analysis and not an abolition of all requirements of reasonable clarity and certainty where degrees of conduct are to determine significantly different levels of punishment. The need for analysis may continue, even where the test is one of degree, depending on the facts of the particular case raising the challenge to the specific language and standards of the statute.

The evidence in this case reveals that the victijn, Timothy, was severely malnourished and dehydrated when admitted to the emergency room. These were conditions consistent only with an extended period of deprivation of food and water. He had suffered an injury to the right side of his head, the entire portion of which was covered by bruises. He was comatose. He had suffered severe brain damage. He was near death. His body was covered with bruises, discolored areas, scrapes, and abrasions of varying ages. There were numerous burn marks on his body and extremities, which could have been made by cigarettes. His heels and other parts of his body had pressure sores, a condition that indicated that Timothy had been lying in one position for several days. Dr. Irwin testified that the trauma causing the brain damage would have caused Timothy to lose consciousness immediately upon its occurrence. He said that the damage was consistent with a single blow. He also said that the various bruises and burns of differing ages were consistent with a continuing pattern of child abuse. The boy ultimately died of the combined effects of starvation and of his head injury.

There was also sufficient evidence from which the jury could have found, as the majority points out, that the defendant, for purposes of disciplining him, swung Timothy around by his feet and let him go head first into the wall. Surely, the jury could have inferred, on this record, that defendant knew that his act precipitated a very great and unjustified hazard of Timothy’s death; or that he could have concluded that swinging a five-year-old child around by the feet and letting him go head first into a wall was conduct so shocking and heinous as to demonstrate a depraved indifference to the value of human life such as to create a very high degree of risk of death. The jury could have found that the victim’s debilitated, emaciated, weakened condition existed at the time the defendant threw him violently against he wall, making that conduct even more reprehensible and likely to result in death.

On such facts as these, there is no need to reach out, in sustaining this particular conviction, to uphold the constitutionality of this statute as it may apply to all future circumstances. We should depart from our well-established policy of judicial restraint in dealing with constitutionally based assaults upon statutory validity only where:

. . . [N]o refinement or clarification of issues which we can reasonably anticipate would bring into better focus the question of whether the contested section is written so vaguely and indefinitely that one whose conduct it affected could only guess what it meant.

United States v. Petrillo, 332 U.S. 1, 6 , 67 S.Ct. 1538, 1541 , 91 L.Ed. 1877, 1882 (1946) (emphasis added).

I have doubt that the statute can be successfully defended in all circumstances against challenge for vagueness. But I *85 have no doubt whatever that testing this statute as it applies to the facts of this defendant’s conduct, as revealed by the evidence in this record, the statute gave the defendant adequate notice that his conduct in question was proscribed by the statute and that the Legislature intended conduct of such a heinous level of culpability to be punishable as murder when it resulted in death. This is the only basis on which the defendant has any right to challenge the validity of the statute. United States v. Raines, 362 U.S. at 21 , 80 S.Ct. at 522 , 4 L. Ed.2d at 529 ; State v. Richardson, 285 A.2d at 846 . It is necessary to go only that far in order to establish that the defendant has not been deprived of any established federal or state due process right by the application of this statute to his conduct. On this basis, the conviction is obviously properly sustained, the statute survives and what may be the very viable and challenging issues as to whether its application will survive attack in “marginal” factual situations remain open for decision on another day when necessity shall require their adjudication. See United States v. Powell, 423 U.S. at 93 , 96 S.Ct. at 320 , 46 L.Ed.2d at 234 .

. The defendant asserts that the statutory provision is violative of due process rights under both the State and Federal Constitutions. The application of federal due process standards is appropriate, since the limitations imposed by the Maine Constitution upon the State to act on the subject matter of the statute are not any more demanding than the federally imposed restrictions. See State v. Richardson, Me., 285 A.2d 842, 844 (1972).

. The policy is one of substance founded in considerations transcending any limitations imposed upon it that are procedural in nature or which should derive from “... the diversities of jurisdiction and procedure, whether of the state courts, the inferior courts, or this Court.” 331 U.S. at 570 , 67 S.Ct. at 1420, 91 L.Ed. at 1678-79.

. The fundamental reasons for the policy “... lie in all that goes to make up the unique place and character, and our scheme, of judicial review of governmental action for constitutionality. They are found in the delicacy of that function, particularly in view of possible consequences for others stemming also from constitutional roots; the comparative finality of those consequences; the consideration due to the judgment of other repositories of constitutional power concerning the scope of their authority; the necessity, if government is to function constitutionally, for each to keep within its own power, including the courts; the inherent limitations of the judicial process, arising especially from its largely negative character and limited resources of enforcement; withal in the paramount importance of constitutional adjudication in our system.” 331 U.S. at 571 , 67 S.Ct. at 1421, 91 L.Ed. at 1679.

. Such considerations “... cannot be reduced to any precise formula or complete catalogue.” 331 U.S. at 573 , 67 S.Ct. at 1421, 91 L.Ed. at 1680.

. The operation of the policy in the most general sense is not circumscribed by limitations resulting from the fact that the policy has often been implemented by reliance upon the presence of other grounds for decision than those going to the issues raised by the constitutional challenge. “... [Wjhen such alternatives are absent, as in this case, application must rest upon considerations relative to the manner in which the constitutional issue itself is shaped and presented.” 331 U.S. at 573 , 67 S.Ct. at 1421, 91 L.Ed. at 1680.

. The application of the policy must be relative to the particular facts and procedural posture of the individual case in which the constitutional challenge is made. 331 U.S. at 575 , 67 S.Ct. at 1423, 91 L.Ed. at 1681.

. See this Court’s disposition of a case where the challenging defendant made a similar assertion of facial constitutional deficiency. State v. Richardson, Me., 285 A.2d 842, 844-45, 846 (1972).

. 10 U.S.C. § 933 .

. 10 U.S.C. § 934 .

. 10 U.S.C. §§ 890 et seq.

. This exception to the doctrine of “strict necessity” is acknowledged in United States v. Powell, 423 U.S. at 92 , 96 S.Ct. at 319 , 46 L.Ed.2d at 233 and in United States v. Mazurie, 419 U.S. at 550 , 95 S.Ct. at 714 , 42 L.Ed.2d at 713 . The rationale for this exception is set forth in United States v. Raines, 362 U.S. at 22 , 80 S.Ct. at 523 , 4 L.Ed.2d at 530 , as the inhibitory effect upon freedom of speech which would result from the application of the rules which make up the doctrine. The inhibitory impact of a statute upon speech requires “stricter standards of permissible statutory vagueness,” since “... a man may the less be *82 required to act at his peril here, because the free dissemination of ideas may be the loser.” Smith v. California, 361 U.S. 147, 151 , 80 S.Ct. 215, 217 , 4 L.Ed.2d 205, 210 (1959). See also Winters v. New York, 333 U.S. 507, 509-10, 517-18 , 68 S.Ct. 665, 667-68, 671-72 , 92 L.Ed. 840 , 846-47, 850-51 (1948); Thornhill v. Alabama, 310 U.S. 88, 97-8 , 60 S.Ct. 736, 741-42 , 84 L.Ed. 1093, 1099-1100 (1940).

. Those exceptions are set out in United States v. Raines, 362 U.S. 17, 22-23 , 80 S.Ct. 519, 523-524 , 4 L.Ed.2d 524, 530 (1960) and it is said they exist because of the need to balance the application of the “strict necessity” doctrine against “weighty countervailing policies.” Id. The only one of these exceptions that could conceivably bear upon the present case is that which the Court implies might exist if the application of the doctrine to sustain a statute’s constitutionality “.. . [w]ould constitute such a revision of its text as to create a situation in which'the statute no longer gave an intelligible warning of the conduct it prohibited.” Id. Treating the present statute on the facts of this case and in the light of our prior judicial interpretations of it does not require the extensive emasculation of its text required to make this possible exception applicable to this case. So interpreted, the statute gives “... clear notice that a reasonably ascertainable course of conduct is mandated....” United States v. Powell, 423 U.S. 87, 92 , 96 S.Ct. 316, 320 , 46 L.Ed.2d 228, 234 (1975). The Fourteenth Amendment does not completely proscribe the Legislature from requiring a person, in assessing the legality of his conduct, to estimate rightly some matter of degree. See Nash v. United States, 229 U.S. 373, 377 , 33 S.Ct. 780, 781 , 57 L.Ed. 1232 (1913).

. Majority Op. at 67, n. 7.