The opinion of the court was delivered by
This is аn appeal by the State from an order of the district court dismissing a criminal complaint against Wayne Meinert on the ground that K.S.A. 21-3608(l)(a) is unconstitutionally vague. Defendant was charged undеr the statute with the offense of endangering a child. While the facts are not necessary in determining the question before this court, they will be recited briefly.
Defendant and Charlene Meinert were baby-sitting with three-year-old Jeanette Lowery. Defendant admitted having spanked Jeanette for urinating on the floor and not in the proper receptacle. The parents had not given the Meinerts permission to spank Jeanette. Ron Lowery, Jeanette’s father, filed a complaint against Wayne Meinert alleging a violation of K.S.A. 21-3608(l)(a), stating in his аffidavit supporting the complaint that red marks were still visible on the child’s buttocks four hours after the spanking took place.
*817 K.S.A. 21-3608 provides in pertinent parts:
“Endangering a child. (1) Endangering a child is willfully:
(a) Causing or permitting a child under the age of eighteen (18) years to suffer unjustifiable physical pain or mental distress; or
(b) Unreasonably causing or permitting a child under the age of eighteen (18) years to be placed in a situation in which its life, body or health may be injured or endangered.”
Defendant contended that the words “unjustifiable physical pain” as used in the statute are unconstitutional and fail 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. The trial court so held and we agree with the trial court.
When statutes are chаllenged as unconstitutional, certain principles guide this court’s consideration.
“Long-standing and well established rules of this court are that the constitutionality of a statute is presumed, thаt 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. Moreover, it is the court’s duty to uрhold the statute under attack, if possible, rather than defeat it, and if there is any reasonable way to construe the statute as constitutionally valid, that should be done. (State, ex rel., v. Fadely,180 Kan. 652 , 658, 659,308 P.2d 537 ; Wall v. Harrison,201 Kan. 600 , 603,443 P.2d 266 ; Moore v. Shanahan,207 Kan. 645 , 651,486 P.2d 506 ; and 16 Am.Jur.2d, Constitutionаl Law, § 175, pp. 399-401.)” Leek v. Theis,217 Kan. 784 , 792-93,539 P.2d 304 (1975).
The vagueness test applicable to criminal statutes was iterated in
State v. Kirby,
“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 аnd differ as to its application is violative of due process. At its heart the test for vagueness is a commonsense determination of fundamental fairness.” p. 4.
See also
Kansas City Millwright Co., Inc. v. Kalb,
In State v. Hill, we stated:
“It is well recognized thаt in order to satisfy the constitutional requirements of due process, a state statute must be sufficiently explicit in its description of the *818 acts, conduct or conditions required or forbidden, to prescribe the elements of the oifense 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 speсificity 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 proscribеd conduct when measured by common understanding and practice. (United States v. Cardiff,344 U.S. 174 ,97 L.Ed. 200 ,73 S.Ct. 189 ; Cramp v. Board of Public Inst. of Orange County, Fla.,386 U.S. 278 ,7 L.Ed.2d 285 , 292,82 S.Ct. 275 ; Winters v. New York,333 U.S. 507 ,92 L.Ed. 840 ,68 S.Ct. 665 ; Champlin Rfg. Co. v. Commission,286 U.S. 210 ,76 L.Ed. 1062 ,52 S.Ct. 559 ,86 A.L.R. 403 .)” pp. 410-411.
With the foregoing in mind, we now turn to the issue of whether K.S.A. 21-3608(l)(a) is unconstitutionally vague on its face.
The State relies princiрally on two decisions from other states upholding statutes containing similar language to that in 21-3608. In the early case of
People v. Curtiss,
The second and more recent case relied upon by the appellant is
State v. Comeaux,
“Cruelty to juveniles is the intentional or criminally negligent mistreatment or neglect, ... of any child under the аge of seventeen whereby unjustifiable pain or suffering is caused to said child.” p. 898.
*819 In Comeaux the charges against the defendant were based upon mistreatment of her five-year-old daughter. In uрholding the validity of the statute the court specifically referred to other sections of the code which illuminated the questioned language. Two members of the Supreme Court of Louisiana dissented.
Nowhere in our criminal code is there any definition of “unjustifiable physical pain or mental suffering.” In
State v. Kirby,
“In our judgment the phrase ‘endangering of life’ is vague and ambiguous. 21-3431 doеs not define ‘endangering of life,’ nor is the term defined in the definition section, 21-3110, or anywhere else in the criminal code. . . . Counsel for the state points out that on the one hand, the language could be construed to proscribe any act which possibly could imperil human life, no matter how remote that possibility might be. On the other hand, it could be construed to prosсribe only those acts which are immediately and inherently life threatening. The difficulty with this argument is that, assuming the state is correct in its position, it would from a practical standpoint be impossible for a person of common intelligence in every factual situation to draw a clear line between acts which are and which are not immediately and inherently life thrеatening.” p. 9.
It is to be noted that the title of the statute before us is “endangering a child” and in
Kirby
this court found the language “endangering of life” to be too indefinite to pass constitutional mustеr. Where is the line to be drawn in determining if discipline or other treatment of a child is justified or unjustified? How does one decide whether or not a spanking is due a child and, if so, should it be administered with the hands, a fly swatter, or a belt? Is one slap, two slaps, or five slaps too many? Are two hard slaps a violation of the statute but five very light slaps not? Do red marks lasting only one hour relieve one from prosecution? Some persons do not believe in any form of corporal punishment and to them any such treatment would be unjustified. On the other hand others may believe any correction, however severe, which produces temporary pain only, and no lasting injury or disfigurement, is justified. The statute could conceivably cover anything from a minor spanking or slapping to severe beating depending upon the personal beliefs of the individual. In
State v. Conley,
*820
In
City of Altamont v. Finkle,
“Nowhere in the ordinance is there any attempt to define the words ‘exhibition of speed or acceleration’ or to delineate the proscribed conduct. Any interpretation of that portion of the ordinance, without additional allegations, is such that men of common intelligence must guess at its meaning and may differ as to its application and therefore the langu'age standing alone does not meet the minimum standards required. Every attempt by a driver to proceed from a stopped position or to increase speed from a moving position could be considered by some persons as an ‘exhibition of speed or acceleration.’ How is the driver to know when he is committing an offense, and when he is not, where the question of an ‘exhibition of speed or acceleration’ is a matter for subjective dеtermination lacking any objective standards?” p. 224.
Similarly, we are of the opinion that K.S.A. 21-3608(l)(a) is so vague and uncertain that it fails to establish the reasonably definite standards of guilt required by due process of law.
The judgment is affirmed.