State v. Kirby, 48247

• Decision Date: 25 March 1977
• Docket Number: No. 48247,48247
• Citation: 222 Kan. 1,563 P.2d 408
• Parties: The STATE of Kansas, Appellee, v. James M. KIRBY, Appellant.
• Court: Kansas Supreme Court

Page 408

563 P.2d 408

222 Kan. 1

The STATE of Kansas, Appellee, v. 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

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. 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 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 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 vague and fails to inform a reasonable person of the nature of the proscribed conduct as required by Section 10 of the Bill of Rights of the Kansas Constitution and by the Fifth and Fourteenth Amendments to the Constitution of the United States. These motions were overruled by the trial court and the case was submitted to the jury. Following his conviction the defendant appealed to this court raising again the question of the constitutionality of 21-3431 and numerous trial errors pertaining to the admission of evidence and the instructions of the court.

In determining the constitutional issue raised on the appeal we should first consider some of the basic principles which have been applied in cases where various Kansas statutes have been attacked as being unconstitutionally vague and indefinite. These principles were recently discussed in State v. Conley, 216 Kan. 66, 531 P.2d 36, and in State v. Gunzelman, 210 Kan. 481, 502 P.2d 705. In Conley we stated that the test whether a 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. The test to determine whether a criminal statute is unconstitutionally void by reason of being vague and indefinite is whether its langjuage 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. At its heart the test for vagueness is a commonsense determination of fundamental fairness. (Kansas City Millwright Co., Inc. v. Kalb, 221 Kan. 658, 562 P.2d 65 (Decided March 1977).) This court has always held that the constitutionality of a statute is presumed, that all doubts must be resolved in favor of a statute's validity, and that before it can be stricken it must clearly appear that the statute violates the constitution. If there is any reasonable way to construe a statute to be constitutionally valid, the court should do so. (Brown v. Wichita State University, 219 Kan. 2, 547 P.2d 1015.)

With these basic principles in mind we now turn to a close examination of K.S.A. 1976 Supp. 21-3431 to determine its constitutionality. 21-3431 defines the offense of criminal injury to persons in the following language:

'21-3431. Criminal injury to persons. Criminal injury to persons is the maiming, wounding, disfiguring, causing great bodily harm, or endangering of life of a person under circumstances which would constitute murder or manslaughter if death had ensued.

'Criminal injury to persons is a class E felony.

'This section shall be supplemental to and a part of the Kansas criminal code.'

The predecessor to 21-3431 was K.S.A. 21-435 (Corrick) which provided as follows:

'21-435. Maiming, wounding, disfiguring or causing great bodily harm; penalty.

'If any person shall be maimed, wounded or disfigured, or receive great bodily harm, or his life be endangered by the act, procurement or culpable negligence of another, in cases and under circumstances which would constitute murder or manslaughter if death had ensued, the person by whose act procurement or negligence such injury or danger of life shall be occasioned shall, in cases not otherwise provided for, be punished by confinement and hard labor not exceeding five years, or in a county jail not less than six months.'

At the time the old criminal code was completely revised by the Judicial Council in 1968, 21-435 was eliminated as a crime under the new code. The old statutes pertaining to crimes against persons, including homicides, assaults, and batteries, were complotely redrafted and included in the new criminal code which contained general provisions applicable to all crimes included thereunder. The old code, which had been the law of this state for 100 years, combined assaults and batteries together in the same statutes without any attempt to differentiate between the two offenses. The new criminal code as drafted by the Judicial Council and adopted as the law of this state effective July 1, 1970, separates assaults and batteries into two distinct classes of crime and provides for specific statutes governing each of these crimes. In K.S.A. 21-3408 assault is defined as an intentional threat or attempt to do bodily harm to another coupled with apparent ability and resulting in immediate apprehension of bodily harm. No bodily contact is necessary. In 21-3410 aggravated assault is defined so as to require an unlawful assaulting, or striking at another with a deadly weapon or committing assault by threatening or menacing another while...