502 P.2d 705 (Kan. 1972), 46673, State v. Gunzelman

Docket Nº:46673.
Citation:502 P.2d 705, 210 Kan. 481
Party Name:STATE of Kansas, Appellee, v. Jack R. GUNZELMAN, Appellant.
Attorney:[6] Thomas C. Boone, of Hays, argued the cause and was on the brief for the appellant. H.D. Oelschlaeger, county attorney, argued the cause, and Vern Miller, attorney general, was with him on the brief for the appellee.
Case Date:November 04, 1972
Court:Supreme Court of Kansas

Page 705

502 P.2d 705 (Kan. 1972)

210 Kan. 481

STATE of Kansas, Appellee,


Jack R. GUNZELMAN, Appellant.

No. 46673.

Supreme Court of Kansas

November 4, 1972

Page 706

[Copyrighted Material Omitted]

Page 707

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.

[210 Kan. 482] 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.

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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[210 Kan. 483] 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...

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