531 P.2d 36 (Kan. 1975), 47472, State v. Conley

Docket Nº:47472.
Citation:531 P.2d 36, 216 Kan. 66
Party Name:STATE of Kansas, Appellant, v. Robert CONLEY, Appellee.
Attorney:[6] Patrick J. Reardon, county attorney, argued the cause, and Vern Miller, attorney general, was with him on the brief for the appellant. Frederick N. Stewart, of Murray and Tillotson, Chartered, of Leavenworth, argued the cause, and John C. Tillotson, of the same firm, was with him on the brief...
Case Date:January 25, 1975
Court:Supreme Court of Kansas
 
FREE EXCERPT

Page 36

531 P.2d 36 (Kan. 1975)

216 Kan. 66

STATE of Kansas, Appellant,

v.

Robert CONLEY, Appellee.

No. 47472.

Supreme Court of Kansas

January 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.

Page 37

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 [216 Kan. 67] 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...

To continue reading

FREE SIGN UP