CONCURRING OPINION I concur in the reversal of the judgment in this action, but I cannot agree with the reasoning of the majority of the court or the interpretation placed by them upon the statute in question.
There is no sounder or better settled rule of criminal law, than the one relating to certainty and definiteness. From the very nature of things it is altogether necessary that a criminal statute, to be enforceable, must so clearly and so definitely define the crime that every one could be able to determine with certainty when he is violating the statute. This rule of law was very clearly stated by this court in the case of Railroad Comm.,etc. v. Grand Trunk, etc., R. Co. (1913), 179 Ind. 255, 264, 100 N.E. 852, as follows:
"When the legislature undertook to define an offense and provide punishment therefor in this act, it should have expressed itself in plain and specific terms. . . . An act which leaves the crime to be determined by the jury or any official body is void. A penal statute, to be enforcable, must be general in its scope and specific and certain in its provisions."
The Supreme Court of the United States states the rule as follows, in the case of United States v. Reese (1875),92 U.S. 214, 23 L. Ed. 563:
"Every man should be able to know with certainty when he is committing a crime."
The Federal Court held in the case of Tozer v. UnitedStates (1892), 52. Fed. 917, 919:
"But, in order to constitute a crime, the act must be one which the party is able to know in advance whether it is a criminal or not. The criminality of an act cannot depend upon whether a jury may *Page 87 think it reasonable or unreasonable. There must be some definiteness and certainty."
And again in the case of Chicago, etc., R. Co. v. Dey (1888), 35 Fed. 866-867, 1 L.R.A. 744, the court said:
". . . no penal law can be sustained unless its mandates are so clearly expressed that any ordinary person can determine in advance what he may and what he may not do under it."
The following authorities sustain the above rule. United States v. Cohen Grocery Co. (1921), 255 U.S. 81, 41 Sup. Ct. Rep. 298, 65 L. Ed. 516, 14 L.R.A. 1045; Cook v. State (1901),26 Ind. App. 278-282-283, 59 N.E. 489; Louisville, etc., R. Co. v.Commonwealth (1896), 99 Ky. 132, 35 S.W. 129, 33 L.R.A. 209;Stoutenburgh v. Frazier (1900), 16 App. Cas. (Dist. Col.) 229, 48 L.R.A. 220.
With this rule of law in mind, let us examine the statute here under consideration and see if it conforms to the above requirements. In the first sentence of the statute we find the words "and being financially able." It will be noted that the statute does not say who or when one is financially able to support his or her parents, nor does the statute fix any standard whatever. How and by what means is one to determine in advance, when he is financially able to support his or her parents? The answer to this question is of much importance. You look to the statute in vain for an answer; you consult your own judgment on the matter, but yet you are not satisfied; you talk to your friends, and find they differ on the subject. At last you consult your lawyer, and he must advise you that no one can determine that question but the court or jury trying the case. If this statement is true, under the well settled rule above set out the statute is void for uncertainty.
We also find in this first sentence of the statute the words,"without reasonable cause." Again you find no *Page 88 help in the statute, to determine what is reasonable cause. Different people would honestly have different ideas of what constitutes reasonable cause. What one might determine was a reasonable cause, another might honestly think would be far from constituting a reasonable cause. So again the accused must wait for the verdict of the jury, before he can determine whether he is a criminal or not. It is easy to conceive of cases, that would clearly come within or without the terms of this statute. But most of the cases with which the courts will have to deal are not such cases. They are border line cases, in which it is altogether possible to convict a person who acted honestly and in accord with his very best judgment; who desired to be a law abiding citizen and had no intent whatever of violating the law; who made an honest effort to inform himself as to what the law required him to do and acted accordingly. Yet he finds that a jury has convicted him of a crime.
I fully agree with the majority opinion that the words "without reasonable cause" has reference to the existence of some fact or state of facts existing at the time of the alleged offense, that would cleanse the conduct of the accused of its criminal character, and not to relieve him of the duty to support his parents in the future, if the statute can be so construed as to impose such a legal duty.
We desire to call attention to the ambiguity in the exemption clause. This provision says, that the provisions of this act shall not apply to children who have not lived with or who have not been supported by their parents when such children were minors. It seems to me that it could be argued with much force that the statute applies to any child who had been supported during any period of its minority. If it was supported by or lived with its parents for a week or a month before *Page 89 it became twenty-one years old, then it certainly did live with and was supported by its parents when it was a minor.
We all appreciate the moral obligation that rests upon children to care for their parents in time of need. This moral obligation, however, should not be a sufficient reason for the court to overstep its proper bounds. "The courts cannot venture upon the dangerous path of judicial legislation to supply omissions, or remedy defects in matters committed to a co-ordinate branch of the government. It is far better to wait necessary corrections by those authorized to make them, or, in fact, for them to remain unmade, however desirable they may be, than for judicial tribunals to transcend the just limits of their constitutional powers." State v. West Side R. Co. (1898), 146 Mo. 155, 169, 14 S.W. 949. People v. City of Valparaiso (1912),178 Ind. 673, 100 N.E. 70.
It is my judgment that the statute under which appellants were convicted is too indefinite and uncertain to be valid, and for that reason I concur in reversing the judgment.