State v. Carpenter, 53689

• Decision Date: 03 April 1982
• Docket Number: No. 53689,53689
• Citation: 231 Kan. 235,642 P.2d 998
• Parties: STATE of Kansas, Plaintiff/Appellant, Cross-Appellee, v. Eugene CARPENTER, Defendant/Appellee, Cross-Appellant.
• Court: Kansas Supreme Court

Page 998

642 P.2d 998

231 Kan. 235

STATE of Kansas, Plaintiff/Appellant, Cross-Appellee, v. Eugene CARPENTER, Defendant/Appellee, Cross-Appellant.

No. 53689.

Supreme Court of Kansas.

April 3, 1982.

Syllabus by the Court

1. The test to determine whether a criminal statute is unconstitutional 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. 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. That portion of K.S.A. 8-1701 which makes it a misdemeanor for a person to drive a motor vehicle "which is in such unsafe condition as to endanger any person" is unconstitutionally vague. The balance of the statute is valid and enforceable after striking the unconstitutional language.

3. Disorderly conduct, as proscribed by K.S.A. 21-4101, is not a lesser included offense in a prosecution for obstructing legal process or official duty, as proscribed by K.S.A. 21-3808.

Bruce T. Smith, legal intern, argued the cause, Robert T. Stephan, Atty. Gen., and Gene M. Olander, Dist. Atty., were with him on the brief, for appellant, cross-appellee.

William K. Rork, Topeka, argued the cause and was on the brief for appellee, cross-appellant.

PRAGER, Justice:

This is a criminal action in which the defendant, Eugene Carpenter, was charged with two misdemeanors. Count 1 of the complaint charged the offense of obstructing legal process or official duty (K.S.A. 21-3808). Count 2 charged the offense of operating a vehicle with defective equipment (K.S.A. 8-1701). At the commencement of the trial, the trial court dismissed the second count, holding the statute, K.S.A. 8-1701, to be unconstitutionally vague. The case then proceeded to trial on count 1. The defendant was convicted of obstructing legal process or official duty. The State has appealed from the trial court's holding that K.S.A. 8-1701 is unconstitutionally vague. The defendant has cross-appealed his conviction on count 1, contending that the trial court erred in failing to give a requested instruction on the lesser offense of disorderly conduct (K.S.A. 21-4101).

The facts in this case are undisputed. The defendant, Eugene Carpenter, was stopped by a Shawnee County sheriff's officer because his car had a broken windshield. The defendant immediately became uncooperative and belligerent toward the officer. He became combative when the officer tried to arrest him. Another officer had to assist in restraining the defendant. The defendant was arrested and taken to the Shawnee County jail where he was charged with obstructing legal process or official duty under K.S.A. 21-3808 and operating a motor vehicle with defective equipment under K.S.A. 8-1701.

The State's appeal raises a single issue: That the trial court erred in holding K.S.A. 8-1701 unconstitutional on the grounds of vagueness. K.S.A. 8-1701(a ) provides as follows:

"(a ) It is a misdemeanor for any person to drive or move or for the owner to cause or knowingly permit to be driven or moved on any highway any vehicle or combination of vehicles, which is in such unsafe condition as to endanger any person ; or which does not contain those parts or is not at all times equipped with such lamps and other equipment in proper condition and adjustment as required in this article, or which is equipped in any manner in violation of this article, or for any person to do any act forbidden or fail to perform any act required under this article." (Emphasis supplied.)

The trial court held unconstitutional that portion of K.S.A. 8-1701(a ) that makes it a misdemeanor for any person to drive a motor vehicle "which is in such unsafe condition as to endanger any person." The remaining portions of K.S.A. 8-1701(a ) declare, in substance, that it is a misdemeanor for any person to drive a motor vehicle "which does not contain those parts or is not at all times equipped with such lamps and other equipment in proper adjustment as required in this article (art. 17) or which is equipped in any manner in violation of this article, or for any person to do any act forbidden or fail to perform any act required under this article."

In order to consider the issue in proper perspective, it is important to note the other sections of article 17, chapter 8 of K.S.A. K.S.A. 8-1701 through 8-1760 are a part of the Uniform Act Regulating Traffic on Highways which was adopted at the time of a major revision of the chapter by the legislature in 1974. Article 17 covers the equipment required on motor vehicles and sets forth with great specificity the requirements for lamps, lighting equipment, brakes, and other miscellaneous equipment such as horns, warning devices, mufflers, mirrors, windshields, windows, tire equipment, safety glazing materials, flares or warning devices, air-conditioning equipment, television receivers, and safety belts and shoulder harnesses. K.S.A. 8-1750 through 8-1760 provide for motor vehicle inspection. K.S.A. 8-1701 is the general section which makes it a misdemeanor to drive a motor vehicle which is not equipped as required by the various sections in article 17. It should be noted that the language in K.S.A. 8-1701 goes beyond the specific equipment requirements discussed above. It contains a general prohibition against driving a motor vehicle "which is in such unsafe condition as to endanger any person." It is this particular provision of K.S.A. 8-1701 which we have before us for consideration.

At the trial, the defendant contended and the trial court held that the portion of K.S.A. 8-1701 which makes it a misdemeanor to drive a motor vehicle "which is in such unsafe condition as to endanger any person" is unconstitutionally vague in that it fails to sufficiently identify the prohibited conduct as required by section 10 of the Kansas Bill of Rights and the Fifth and Fourteenth Amendments to the United States Constitution. We have concluded that the ruling of the trial court was correct.

When statutes are challenged as unconstitutional on the grounds of vagueness, certain principles have been adopted as a guide for this court's consideration. In State v. Meinert, 225 Kan. 816, 594 P.2d 232 (1979), it was held that long and well established rules of this court are that the constitutionality of a statute is presumed, that all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the constitution. The test to determine whether a criminal statute is unconstitutional 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. 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. These general principles have been recognized in other Kansas cases. See for example State v. Kirby, 222 Kan. 1, 563 P.2d 408 (1977); Kansas City Millwright Co., Inc. v. Kalb, 221 Kan. 658, 562 P.2d 65 (1977); State v. Hill, 189 Kan. 403, 369 P.2d 365 (1962).

In Kirby, it was held that the phrase "endangering of life" is vague and ambiguous, since there is no universally accepted definition of the term "endangering of life" which exists within the common knowledge of the population of this state. It was further held that K.S.A.1976 Supp. 21-3431 was not sufficiently definite in its description of the acts or conduct forbidden, when measured by common understanding and practice, as to satisfy the constitutional requirements of due process of law. More recently in State v. Meinert, 225 Kan. 816, 594 P.2d 232, the test discussed above was applied and it was held that K.S.A. 21-3608(1)(a ), which charged the offense of endangering a child, was unconstitutionally vague.

In the recent case of City of Altamont v. Finkle, 224 Kan. 221, 579 P.2d 712 (1978), a city traffic ordinance which charged the defendant with an "unlawful exhibition of speed or acceleration" was held unconstitutionally vague on the basis that the ordinance was so vague and indefinite that a person charged in such terms could not be expected to understand the nature and elements of the alleged violation. In the opinion, the court pointed out that nowhere in the ordinance was any attempt made to define the term "exhibition of speed or acceleration" or to delineate the proscribed conduct.

With the foregoing general principles in mind, we now turn to the issue of whether that portion of K.S.A. 8-1701 which makes it a misdemeanor for a person to drive a motor vehicle "which is in such unsafe condition as to endanger any person" is unconstitutionally vague. The trial court held that a person reading the statute could not reasonably be expected to know what "unsafe condition as to endanger any person" referred to. The court whimsically commented that, in regard to a windshield, a person could not know whether a little crack was sufficient or whether the windshield had to be hit by a herd of elephants. We cannot disagree with the trial court's conclusion. We note that K.S.A. 8-1741 covers the subject of windshields on motor vehicles. That section provides as follows:

"8-1741. Windshields and windows; obstruction or impairment prohibited; wipers. (a ) No person shall drive any motor vehicle with any sign, poster or other non-transparent material upon the front windshield, side wings or side or rear windows of such vehicle which materially obstructs, obscures or impairs the driver's clear view of the highway or any intersecting...