State v. Carpenter
642 P.2d 998
Kan., 1982.

Defendant was convicted in the District Court, Shawnee County, Franklin R. Theis, J., of obstructing legal process or official duty. The State appealed from a dismissal of the charge of operating a vehicle with defective equipment, and defendant cross appealed contending that it was error to fail to give a requested instruction on the lesser offense of disorderly conduct. The Supreme Court, Prager, J., held that: (1) statutory prohibition against driving motor vehicle which is in such unsafe condition as to endanger any person was unconstitutionally vague since person reading statute could not reasonably be expected to know what unsafe condition referred to, and (2) disorderly conduct was not lesser offense of obstructing legal process or official duty where there were no common elements except that each offense must be done willfully and knowingly.
Affirmed.
McFarland, J., filed concurring and dissenting statement.

*235 **998 Syllabus by the Court

1. The test to determine whether a criminal statute is unconstitutional by reason **999 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.