563 P.2d 408 (Kan. 1977), 48247, State v. Kirby

Docket Nº:48247.
Citation:563 P.2d 408, 222 Kan. 1
Party Name:The STATE of Kansas, Appellee, v. James M. KIRBY, Appellant.
Attorney:[6] Gerald E. Wells, of Arabia and Wells, of Wichita, argued the cause, and Paul Arabia, of the same firm, was with him on the brief for the appellant. Stephen M. Joseph, assistant district attorney, argued the cause, and Curt T. Page 2 Schneider, attorney general, and Vern Miller, district attor...
Case Date:March 25, 1977
Court:Supreme Court of Kansas

Page 408

563 P.2d 408 (Kan. 1977)

222 Kan. 1

The STATE of Kansas, Appellee,


James M. KIRBY, Appellant.

No. 48247.

Supreme Court of Kansas

March 25, 1977

Syllabus by the Court

1. The test to determine whether a criminal statute is unconstitutionally void

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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.

2. The provisions of K.S.A.1976 Supp. 21-3431 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 of law.

Gerald E. Wells, of Arabia & Wells, Wichita, argued the cause, and Paul Arabia, Wichita, was with him on the brief for the appellant.

Stephen M. Joseph, Asst. Dist. Atty., argued the cause, and Curt T. [222 Kan. 2] Schneider, Atty. Gen., and Vern Miller, Dist. Atty., were with him on the brief for the appellee.

PRAGER, Justice:

This is a direct appeal in a criminal action in which the defendant-appellant, James M. Kirby, was charged with and convicted of criminal injury to persons as defined by K.S.A. 1976 Supp. 21-3431. The essential facts of the case are not really in dispute and are as follows: On February 4, 1975, Gaylord and Patsy Taylor and their two children resided at 1354 North Yale in Wichita. That evening, when they went to bed, they could hear extremely loud music coming from one of the houses across the street. Some time later Mr. Taylor was awakened by the sound of breaking glass. He then heard gun shots. He and his wife crawled into their son's bedroom and sent the boy to a basement bedroom. Taylor called the police who informed him that a similar report had already been received. Taylor later discovered what was identified as a spent bullet on the living room floor. When the police officers arrived at the Taylor home they found a shattered mirror tile in the living room and a series of holes in a window screen, storm window, window shade, and curtain in the living room. Later that evening it was discovered that another bullet had entered the closet of the Taylor boy's bedroom, passing through several toys and lodging in a group of record albums in the closet. From the damage to the house the police were able to ascertain that the bullets had come from the house across the street at 1333 North Yale.

The police officers proceeded to that house and observed lights on inside and loud music. At first they could get no response from the occupants. Then one of the officers knocked on the front door with a flashlight. He looked through a window and observed two men walking towards the door. One of the men was the defendant Kirby who had a rifle in one hand and a drink in the other. The other man was Donald Bukacek. He opened the door and the officers walked into the house. A .30-caliber M-1 rifle was lying at the defendant's feet. An inquiry was made as to who owned the house and at this point Dr. Ernest Bubienice entered the room and stated he was the owner. In the following conversation the defendant when asked stated that the rifle was his. The defendant was given a Miranda warning and placed under arrest. The [222 Kan. 3] defendant stated that he had been shooting the rifle, but did not know how many rounds he had fired. Dr. Bubieniec also admitted shooting the gun. Further conversation revealed the shooting had taken place in the kitchen. Later in the kitchen a detective counted 60 bullet holes in the wall and ceiling. A .30-caliber shell casing was found on the kitchen table. The police investigator observed the words 'Big Don' written over the holes in the wall. Apparently 'Big Don' was Donald Bukacek. Although there was some dispute at the trial as to whether or not the two bullets found at the Taylor home had been fired by the defendant Kirby, there was sufficient evidence to establish that as a fact. The testimony showed that the defendant Kirby had no prior acquaintance

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with the Taylors and that he did not intentionally fire any bullets towards the Taylor home. There was no evidence that the defendant intended to injure anyone by the firing of the weapon. The bullets were all directed toward the ceiling of the Bubieniec house and at least two had ricocheted into the Taylor home across the street.

At the trial there was a great deal of argument as to the interpretation to be given K.S.A. 1976 Supp. 21-3431. At the close of the state's evidence and again prior to the submission of the case to the jury, the defendant moved for his acquittal and for a dismissal of the case on the grounds that K.S.A. 1976 Supp. 21-3431 is unconstitutional because it is...

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