State v. Gunzelman

• Decision Date: 04 November 1972
• Docket Number: No. 46673,46673
• Citation: 502 P.2d 705,210 Kan. 481
• Parties: , 58 A.L.R.3d 522 STATE of Kansas, Appellee, v. Jack R. GUNZELMAN, Appellant.
• Court: Kansas Supreme Court

Page 705

502 P.2d 705

210 Kan. 481, 58 A.L.R.3d 522

STATE of Kansas, Appellee, v. Jack R. GUNZELMAN, Appellant.

No. 46673.

Supreme Court of Kansas.

Nov. 4, 1972.

Syllabus by the Court

1. In creating an offense which was not a crime at common law the legislature must make the statute sufficiently certain to show what was intended to be prohibited and punished, otherwise it will be void for uncertainty. But reasonable certainty is all that is required, and liberal effect is always to be given to the legislative intent in view of the evil to be corrected.

2. The test to determine whether a criminal statute is void by reason of its being vague and ambiguous is-does the language convey a sufficient definite warning as to the conduct proscribed when measured by common understanding and practice? If the statute does it is not void for vagueness.

3. The word 'threat' as used in K.S.A.1971 Supp. 21-3419 means a communicated intent to inflict physical or other harm on any person or on property. (K.S.A.1971 Supp. 21-3110(24).) The word 'terrorize' means to reduce to terror by violence or threats, and terror means an extreme fear or fear that agitates body and mind.

4. Given limiting definitions for the words 'threat' and 'terrorize', as those terms are understood by men of common intelligence, K.S.A.1971 Supp. 21-3419 proscribing terroristic threats survives any constitutional challenge for vagueness and uncertainty under Section 10, Bill of Rights, Constitution of the State of Kansas and under Amendment 14, § 1, Constitution of the United States.

5. Evidence of other offenses may not be elicited for the first time on the cross-examination of the accused for the purpose of attacking his character or credibility unless he has first introduced evidence of his good character (K.S.A. 60-447) or introduced evidence admissible solely for the purpose of supporting his credibility. (K.S.A. 60-421.)

6. The record in a prosecution for terroristic threats and for battery of a law enforcement officer is examined on appeal and it is held the persistent efforts of the county attorney on cross-examination of the accused advised the jury of prior convictions of the accused, this constituted prejudicial error and a new trial should be granted.

Thomas C. Boone, Hays, argued the cause and was on brief for appellant.

H. D. Oelschlaeger, County Atty., argued the cause, and Vern Miller, Atty. Gen., was with him on brief for appellee.

FROMME, Justice.

Jack R. Gunzelman was tried and convicted for the crime of battery of a law enforcement officer (K.S.A.1971 Supp. 21-3413) and for the crime of making a terroristic threat against another person (K.S.A.1971 Supp. 21-3419). He appeals from conviction and sentence thereon.

Appellant attacks the constitutionality of the terroristic threat statute, claiming it is vague, indefinite and uncertain. In addition, he attacks his conviction as to both charges on the ground of prejudicial trial error relating to conduct of the county attorney in cross-examining the appellant regarding prior convictions.

The charges arose from an incident which occurred at the home of a highway patrol officer, Bobby L. Norton, in Stockton, Kansas, on the evening of April 5, 1971. A brief recitation of the facts will be helpful. Appellant was in the roofing business and hired employees to drive his roofing trucks. Patrolman Bobby L. Norton had issued a traffic ticket to one of the truck drivers for not having a driver's license. At 9:30 that evening Norton received a call on the telephone from appellant who claimed Norton was picking on the drivers. Appellant warned the patrolman to quit stopping his vehicles. No violence was threatened over the telephone. Later that same evening the appellant and his driver appeared at the patrolman's front door. The following took place on or near the front porch of the home.

The patrolman testified that the appellant was belligerent when he and his driver, Aguilera, came to see the patrolman. The patrolman's wife answered the door bell, then she retreated inside the house. Her husband stepped out on the porch. It was after 9:30 P.M. and the children were in bed. Appellant accused the patrolman of picking on his drivers and said, 'I am warning you for the last time that you are not pulling my drivers over for no reason and arresting them; . . .' By this time the patrolman's wife was looking out of a darkened bedroom window and was worried about her husband's safety. Appellant said, 'You have a wife and family. You had better give some thought to that. You are gone a lot of nights. Where is your bedroom? I will be back.' According to the patrolman's testimony appellant walked around and peered into a window south of the porch.

The patrolman told appellant to leave. Appellant turned toward the street. The patrolman turned to go up the steps to the porch. He heard movement and had partially turned back toward the street when he was hit in the rib cage by the appellant's fist. He fell against the iron railing of the porch and as he straightened up he received a direct blow in the right eye. Appellant then swung a wild blow which failed to connect, and he returned to his truck. The patrolman looked around him for the driver Aguilera, did not see him but decided to go into the house. The patrolman said to the appellant, 'Jack, you know you have had it.' The appellant replied, 'Go ahead and arrest me. I have money to fight it.' The patrolman went into the house and appellant drove off in his truck.

The patrolman's wife had heard the iron railing on the porch rattle when appellant knocked the patrolman back against the railing. She was able to hear part of the conversation including, 'I am warning you for the last time. You had better quit picking on my men.' She saw appellant shaking his finger at her husband. She was frightened. She saw the man lunge at her husband and heard the blow. She called the sheriff on the telephone. The appellant was arrested later that night.

The terroristic threat statute under which appellant was charged reads as follows:

'A terroristic threat is any threat to commit violence communicated with intent to terrorize another, or to cause the evacuation of any building, place of assembly or facility of transportation, or in wanton disregard of the risk of causing such terror or evacuation.

'A terroristic threat is a class E felony.' (K.S.A.1971 Supp. 21-3419.)

According to a comment by the judicial council, which comment appears below the statute, this is a new provision designed to fill a gap in the law. The idea was drawn from the American Law Institute's Model Penal Code, § 211.3. This section of the Model Penal Code reads:

'A person is guilty of a felony of the third degree if he threatens to commit any crime of violence with purpose to terrorize another or to cause evacuation of a building, place of assembly, or facility of public transportation, or otherwise to cause serious public inconvenience, or in reckless disregard of the risk of causing such terror or inconvenience.' (MPC § 211.3)

The American Law Institute's comments, which follow this section of the code, may be helpful. In part they read:

'. . . Where, as in the present section, the object is to prevent serious alarm for personal safety, such as may arise from letters or anonymous telephone calls threatening death, kidnapping or bombing, the class of threats can be narrowly defined, and the gravity of the offense can be related both to the seriousness of the threat and the disturbing character of the psychological result intended or risked by the actor. . . .' (MPC § 211.3)

Under the constitutional attack lodged by the appellant, he contends the statute was enacted to proscribe threats in connection with campus unrest, fire and bomb threats to public buildings and threats which arise from mob violence. He argues the statute is vague, indefinite and uncertain if it is extended to terroristic threats to person or property of an individual as it does not advise the ordinary citizen of the required nature of the proscribed threats.

This constitutional attack is based on Section 10, Bill of Rights, Constitution of the State of Kansas; and Amendment 14, § 1, Constitution of the United States.

A criminal statute which either forbids or requires an act in vague terms 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. A 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. (State v. Blaser, 138 Kan. 447, 26 P.2d 593; State v. Rogers, 142 Kan. 841, 52 P.2d 1185; State v. Carr, 151 Kan. 36, 98 P.2d 393.) In creating an offense which was not a crime at common law the legislature must make the statute sufficiently certain to show what was intended to be prohibited and punished, otherwise it will be void for uncertainty. But reasonable certainty is all that is required, and liberal effect is always to be given to the legislative intent in view of the evil to be corrected. (State v. Davidson, 152 Kan. 460, 105 P.2d 876; State v. Hill, 189 Kan. 403, 369 P.2d 365, 91 A.L.R.2d 750.) These rules have been recognized and applied in our more recent cases. See Tri-State Hotel Co. v. Londerholm, 195 Kan. 748, at page 765, 408 P.2d 877, where it was said the test to determine whether a criminal statute is void by reason of being vague and ambiguous is-does the language convey a sufficient definite warning as to the proscribed conduct when measured by common understanding and practice? If the statute does it is not void for vagueness. See, also, State ex rel. Smith v. Fairmont Foods Co., 196 Kan. 73, 78, 410 P.2d 308, and State v. Johnson, 196 Kan. 208, 211, 410 P.2d 423.

The main thrust of appellant's constitutional argument is based upon a failure by the legislature to define the words 'threat' ...