State v. Hill

Decision Date03 March 1962
Docket NumberNo. 42743,42743
Citation189 Kan. 403,369 P.2d 365,91 A.L.R.2d 750
Parties, 91 A.L.R.2d 750 The STATE of Kansas, Appellant, v. Ronnie HILL, Appellee.
CourtKansas Supreme Court

Syllabus by the Court

1. A criminal statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must guess at its meaning and differ as to its application, lacks the first essential of due process of law.

2. Whether a statute is vague and indefinite and therefore fails to inform an accused of the nature and cause of the accusation against him as required by section ten of the bill of rights of the constitution of Kansas, is determined by the test applicable to whether the statute violates due process of law under the fourteenth amendment to the constitution of the United States.

3. Allegations purporting to charge a public offense in a complaint or information do not serve to validate an offense intended to be charged under a statute void on its face, since it is the statute, not the accusation under it, that must prescribe the rule to govern conduct and warn against transgression.

4. The rule that the construction of a statute by the courts of one state before its adoption by another state is controlling, does not apply in determining the constitutionality of the statute by courts of the adopting state. The construction of a statute is not to be confused with the duty of determining its validity when measured by constitutional guarantees.

5. The rule of strict construction is to be applied to a criminal statute, and courts should not extend it to embrace acts or conduct not clearly included within its prohibitions, and exceptions in such a statute are construed liberally in favor of a person charged with a violation thereof.

6. Age does not invest a statute with constitutional validity, neither does it rob it of such validity.

7. G.S.1949, 21-955 and 21-956 are examined and construed, and it is held: Section 21-956 is an exception to Section 21-955, and that in determining the offense intented to be proscribed 21-956 has precisely the same meaning as if it were appropriately incorporated in 21-955, and constitutes an integral part of the offense as defined.

8. The statute, as construed in the preceding paragraph, is further examined and, as more fully set forth in the opinion, is held to be so vague, indefinite and uncertain that it fails to provide a reasonable definite standard of guilt to apprise the defendant of the nature and cause of the accusation against him in violation of section ten of the bill of rights of the constitution of Kansas, and the due process clause of the fourteenth amendment to the constitution of the United States.

A. K. Stavely, Asst. Atty. Gen., argued the cause, and William M. Ferguson, Atty. Gen., and Richard L. Mankin, County Atty., Emporia, were with him on the briefs, for appellant.

Robert H. Nelson, Wichita, argued the cause, and W. A. Kahrs, H. W. Fanning, and Richard C. Hite, Wichita, were with him on the briefs, for appellee.

James W. Porter and Frank C. Sabatini, Topeka, were on briefs for Respect Sunday Committee of Topeka, Kansas, as amici curiae.

Dale Kidwell, George W. Ball, Jack H. Greene and Kenneth Nohe, Wichita, were on briefs for Wichita Respect Sunday Committee, Inc., as amici curiae.

Wendell L. Garlinghouse, Warren W. Shaw, William Hergenreter and Carl W. Quarnstrom, Topeka, were on briefs amici curiae.

FATZER, Justice.

This is an appeal by the state from an order of the district court of Lyon County, Kansas, discharging the defendant, Ronnie Hill. The information charged that on July 30, 1961, the defendant, the assistant manager of the Safeway Store at Emporia, did unlawfully and willfully expose to sale and did sell certain merchandise, to-wit: Three packs of Chiclets chewing gum, one box of Blue Cheer soap, and one can of Dash dog food, on the first day of the week, commonly called Sunday, the said merchandise not being within the exemption of G.S.1949, 21-956, contrary to law (G.S.1949, 21-955).

On August 10, 1961, the defendant appeared in person and with counsel and entered a plea of not guilty. The state and the defendant entered into a written statement of fact which was agreed to, and a jury being waived, trial was by the court. Thereafter the defendant filed a motion to quash the information, the ruling on which was reserved by the court until the completion of argument by counsel. The defendant also filed a motion to dismiss the information and to discharge him on the grounds that G.S.1949, 21-955, on which the information was based, when construed with G.S.1949, 21-956, is so vague, indefinite and uncertain that he was unable to ascertain what was or was not permitted to be sold under the statute in violation of rights granted him under sections one and ten of the bill of rights of the constitution of Kansas and the fifth (sic) amendment to the constitution of the United States.

At the conclusion of the argument the district court overruled the defendant's motion to quash the information, but sustained his motion to be discharged. In rendering judgment the court filed a written memorandum opinion in which it concluded that 'the exception to the statute in question contains words that are so general, vague and indefinite that individuals charged with administering this penal statute are unable to determine the meaning of the same. The statute is declared inoperative and void. * * * Defendant is discharged.' The state timely appealed, having reserved the question (G.S.1949, 62-1703, third).

The crux of the appeal is the validity of G.S.1949, 21-955 and 21-956 under which the prosecution was commenced, and it follows that if the statute can be sustained, the information cannot be questioned since it followed the language of the statute (State v. Ashton, 175 Kan. 164, 173, 262 P.2d 123). In seeking reversal, the state concedes that although the statute, in substantially the same form, has been a part of the law of the territory and state of Kansas since 1855, it has not heretofore been challenged on the grounds presently urged. Hence, our previous decisions are not helpful in deciding the constitutional questions presented.

As preliminary to discussing those questions we note briefly the historical background of the sections directly involved. They were originally enacted in 1855 (L. 1855, Ch. 53, Sec. 34 and Sec. 35) by the so-called 'bogus legislature' and were taken bodily from the Missouri statute, where they were originally enacted in 1825, and, with some amendments, continue to be the law of that state. When enacted in 1855 they read:

'Sec. 34. Every person who shall expose to sale any goods, wares, or merchandise, or shall keep open any ale or porter house, grocery, or tippling shop, or shall sell or retail any fermented or distilled liquor, on the first day of the week, commonly called Sunday, shall, on conviction, be adjudged guilty of a misdemeanor, and fined not exceeding fifty dollars.

'Sec. 35. The last section shall not be construed to prevent the sale of any drugs or medicines, provisions, or other articles of immediate necessity.'

The sections were repealed by the Territorial Legislature of 1859 (Ch. 89, Sec. 1, General Laws of Territory of Kansas, 1859) and were reenacted at that session (Ch. 28, Sec. 248 and Sec. 249). They were embodied in our General Statutes of 1868 in Chapter 31, Sections 258 and 259 relating to crimes and punishments. They remained unchanged and were included in all of the subsequent general statutes of the state until the Commission to Revise the General Statutes of 1923 revised the first section (21-955) by eliminating reference to intoxicating liquors which were covered by other laws, but the second section (21-956) was not changed. As revised, they were embodied in the Revised Statutes of 1923. The sections appear in the General Statutes of 1949 and read:

'21-955. Every person who shall sell or expose to sale any goods, wares or merchandise, or shall keep open any grocery, on the first day of the week, commonly called Sunday, shall on conviction be adjudged guilty of a misdemeanor, and fined not exceeding fifty dollars.

'21-956. The last section shall not be construed to prevent the sale of any drugs or medicines, provisions, or other articles of immediate necessity.'

In support of its contention the district court erred in discharging the defendant, the state contends that the sections involved are independent statutes; that 21-955 makes it an offense to sell or expose to sale on Sunday any goods, wares or merchandise, and that those terms have well-settled meanings in law; that there is nothing vague, uncertain or indefinite about them, but actually, and with a reasonable degree of certainty, they define the offense intended to be prohibited. It asserts that 21-956 neither creates an offense nor imposes a penalty, and does nothing more than withdraw from the scope of 21-955 the sale or exposure to sale on Sunday of 'any drugs or medicines, provisons, or other articles of immediate necessity' and lawfully permits their sale notwithstanding the broad prohibition of 21-955; that 21-956 is merely defensive and if a defendant can show the articles he is charged with selling were those excepted by that section, he cannot be convicted, but the burden rests upon the seller to establish the need for the articles was that of the purchaser and resulted from circumstances in the nature of an unexpected emergency, or if foreseen by the purchaser, was such that it could not have been reasonably provided against, and urges that no sufficient reason exists to hold the statute vague or ambiguous.

The defendant strenuously argues the two sections must be construed as one statute to determine whether an offense has been committed; that while 21-956 excepts certain articles enumerated in 21-955, it has precisely the same meaning as if it were appropriately incorporated in that se...

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