State v. Conley

• Decision Date: 25 January 1975
• Docket Number: No. 47472,47472
• Citation: 531 P.2d 36,216 Kan. 66
• Parties: STATE of Kansas, Appellant, v. Robert CONLEY, Appellee.
• Court: Kansas Supreme Court

Page 36

531 P.2d 36

216 Kan. 66

STATE of Kansas, Appellant, v. Robert CONLEY, Appellee.

No. 47472.

Supreme Court of Kansas.

Jan. 25, 1975.

Syllabus by the Court

1. The test whether a state statute is so vague and indefinite and therefore fails to inform the accused of the nature and cause of the charge against him as required by section 10 of the Kansas Bill of Rights is the same as that applicable in determining whether a statute violates the due process clause of the fourteenth amendment to the federal constitution.

2. The test to determine whether a criminal statute is unconstitutionally void by reason of being vague and indefinite is whether its language conveys a sufficiently definite warning as to the conduct proscribed when measured by common understanding and practice. If a statute conveys this warning it is not void for vagueness. Conversely, a statute which either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application is violative of due process.

3. In an appeal by the state from an order dismissing an information and discharging the defendant, the provisions of K.S.A. 21-3503(1)(b) are held to be so vague and uncertain they fail to establish reasonably definite standards of guilt in accord with constitutional requirements of due process.

Patrick J. Reardon, County Atty., argued the cause, and Vern Miller, Atty. Gen., was with him on the brief for appellant.

Frederick N. Stewart of Murray & Tillotson, Chartered, Leavenworth, argued the cause and John C. Tillotson, Leavenworth, was with him on the brief for appellee.

HARMAN, Commissioner:

This is an appeal by the state from an order dismissing an information and discharging the defendant Robert Conley, who was charged by an information in the general language of K.S.A. 21-3503(1)(b), with committing the offense of incident liberties with a child. The issue on appeal, one of first impression, is whether that statute is unconstitutionally vague and indefinite as ruled by the trial court.

The constitutional provisions asserted to be violated by the enactment in question are section 10 of the Kansas Bill of Rights which states:

'In all prosecutions, the accused shall be allowed . . . to demand the nature and cause of the accusation against him . . .,'

and the due process clause of the fourteenth amendment to the federal constitution.

The test whether a state statute is so vague and indefinite and therefore fails to inform the accused of the nature and cause of the charge against him as required by our Bill of Rights is the same as that applicable in determining whether a statute violates the due process clause of the fourteenth amendment to the federal constitution (State, ex rel., v. Fairmont Foods Co., 196 Kan. 73, 410 P.2d 308). In State v. Hill, 189 Kan. 403, 369 P.2d 365, 91 ALR2d 750, we discussed that test thus:

'It is well recognized that in order to satisfy the constitutional requirements of due process, a state statute must be sufficiently explicit in its description of the acts, conduct or conditions required or forbidden, to prescribe the elements of the offense with reasonable certainty. The standards of certainty in a statute punishing for criminal offenses is higher than in those depending primarily upon civil sanction for enforcement. The offenses must be defined with appropriate definiteness. There must be ascertainable standards of guilt, but impossible standards of specificity are not required. Men of common intelligence cannot be required to guess at the meaning of the statute. The vagueness may be for uncertainty with respect to persons within the scope of the statute or in regard to applicable tests to ascertain guilt. The test is whether the language conveys a sufficient definite warning as to the proscribed conduct when measured by common understanding and practice.' (pp. 410-411, 369 P.2d pp. 370-371.)

If a statute conveys such a warning it is not void for vagueness (State v. Gunzelman, 210 Kan. 481, 502 P.2d 705). Conversely, a statute which either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application is violative of due process (Connally v. General Const. Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322). In Giaccio v. Pennsylvania, 382 U.S. 399, 86 S.Ct. 518, 15 L.Ed.2d 447, the matter was discussed in this fashion:

'It is established that a law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits or leaves judges and jurors free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case.' (pp. 402-403, 86 S.Ct. pp. 520-521.)

K.S.A. 21-3503(1)(b), under which defendant-appellee here was prosecuted, became effective July 1, 1970, as part of our new criminal code. In its entirety the statute provides:

'Indecent liberties with a child. (1) Indecent liberties with a child is engaging in either of the following acts with a child under the age of sixteen (16) years who is not the spouse of the offender:

'(a) The act of sexual intercourse;

'(b) Any fondling or touching of the person of either the child or the offender done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender or both.

'(2) Indecent liberties with a child is a class C felony.'

As initially promulgated by the Judicial Council Advisory Committee on Criminal Law Revision (see April, 1968 KJC Bull. Special Report, p. 56) and as intoduced in the 1969 legislative session (SB No. 9, 1969 session, § 21-3503) this proposed new act in pertinent part provided:

'(1) Indecent liberties with a child is engaging in either of the following acts with a child under the age of 16 years who is not the spouse of the offender:

'(a) The act of sexual intercourse;

'(b) Any lewd fondling or touching of the sex organs of either the child or the offender done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender or both. . . .' (Our emphasis.)

The Advisory Committee's Comment was in part as follows:

'This section is in lieu of the former provision relating to statutory rape. The name of the crime has been changed. The prohibited conduct includes not only sexual intercourse, but other indecent sexual conduct. . . .

'The proposal adopts part of the Illinois Criminal Code, 11-4.' (p. 56.)

As will already have been noted from comparison of the recommended act with the final product, two changes in the language of the proposed statute were made by the legislature in the course of its enactment: The adjective 'lewd' as a modifier of the words 'fondling or touching' was eliminated; and in lieu of the words 'sex organs', the term 'person' was substituted.

The state argues that taken as a whole the statute gives sufficient notice of that which is prohibited conduct; that the term 'indecent' when coupled with the term 'liberties' is so well known as to be self-defining and understandable to the ordinary person of common intelligence; perfect standards of specificity in criminal statutes are neither required nor always possible, and finally, that appellate courts of Illinois and other states having similar statutes have found them to be constitutionally definite.

Appellee contends that the term 'person' as referring to the body of a human being is impermissibly vague and indefinite; it may include anything from instep to ear lobe and from fingertip to fingertip; the words 'fondling or touching' are indefinite and may mean anything from a handshake to sexual intercourse. Appellee also argues the term 'sexual desires' is indefinite and vague because there may be different levels of this emotion. Granted, as to this latter contention, but we are not much troubled with it as with the two preceding contentions, because the term 'sexual desires' does have a well recognized meaning.

In 10 Vernon's K.S.A., Criminal Code, 21-3503, the authors make the following comment:

"Any fondling or touching' of part (b) is general language which is intended to cover various types of lewd physical contacts which do not necessarily culminate in sexual intercourse or 'unlawful sex act' defined at section 21-3501. The entire context of the physical contact should determine whether or not it is within the scope of this section.

'Part (b) requires the contact be with 'the intent to arouse or to satisfy the sexual desires of either the child or the offender' so that an inadvertent touching of the intimate parts of another person does not constitute an offense.

'As a statutory standard of criminal conduct, part (b) is exceedingly vague. . . . Consequently, the validity of the section may be questioned.' (pp. 388-389.)

In eliminating the term 'lewd' and in substituting the word 'person' for the words 'sexual organs', as contained in the proposed draft by the advisory committee and the initial bill introduced by the senate judiciary committee, the legislature obviously broadened the scope of the offense denominated 'indecent liberties with a child'. In fact the only limitations remaining are that the offense be committed upon a child under sixteen years of age who is not the spouse of...