Satepeahtaw v. State, s. F-77-695

• Decision Date: 23 May 1979
• Docket Number: F-77-704,Nos. F-77-695,s. F-77-695
• Citation: 595 P.2d 805
• Parties: Laverne SATEPEAHTAW, Appellant, and Vincent Bointy, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 805

595 P.2d 805

Laverne SATEPEAHTAW, Appellant and Vincent Bointy, Appellant, v. The STATE of Oklahoma, Appellee.

Nos. F-77-695, F-77-704.

Court of Criminal Appeals of Oklahoma.

May 23, 1979.

An appeal from the District Court, Caddo County; Sam M. Williams, judge.

Laverne Satepeahtaw and Vincent Bointy, appellants, were convicted of the offense of Embezzlement of State Funds; were sentenced to ten (10) years' imprisonment and assessed a fine of Five Hundred ($500.00) Dollars, and appeal. AFFIRMED.

Virgil L. Upchurch, Anadarko, for appellant Satepeahtaw.

George Miskovsky, Sr., and John Paul Johnson, Miskovsky, Sullivan & Miskovsky, Oklahoma City, for appellant Bointy.

Larry Derryberry, Atty. Gen., Bill J. Bruce, Asst. Atty. Gen., Clifford E. Briery, II, Legal Intern, for appellee.

OPINION

BUSSEY, Judge:

Appellant, Laverne Satepeahtaw, hereinafter referred to as defendant Satepeahtaw, and appellant Vincent Bointy, hereinafter referred to as defendant Bointy, were charged, jointly tried before a jury, and convicted in the District Court, Caddo County, Case No. CRF-75-172, for the offense of Embezzlement of State Funds, in violation of 21 O.S.1971, § 341. Punishment for each was set at ten (10) years' imprisonment and a fine of Five Hundred ($500.00) Dollars. Both defendants have perfected timely appeals to this Court, and for the sake of convenience, the two separate appeals are consolidated in this opinion.

The defendants' convictions arose from their activities with the Kiowa Housing Authority, a State agency created to provide Indian housing. From July, 1973, to February, 1975, several people connected with the Authority embezzled over $10,000.00 of State funds. Two trials followed, the present defendants having been granted a severance from two other defendants, one Carroll DeLaune, hereinafter referred to as Authority employee DeLaune, and one Dorothy DeLaune, hereinafter referred to as Executive Director DeLaune, who were also convicted. (For their appeal, see DeLaune v. State, Okl.Cr., 569 P.2d 463 (1977).)

During this period, defendant Bointy served on the Authority's Board of Directors. As chairman, his was one of two signatures, the other being that of Executive Director DeLaune, required on all disbursements of funds. The State introduced numerous checks bearing defendant Bointy's signature, and then proceeded to show their fraudulent nature. On some occasions, defendant Bointy paid himself money which was neither properly authorized by the Board nor due to him in any way. Other times, defendant Bointy paid third parties for work not performed or for more than the amount due. The State called Authority employee DeLaune who described some of these illicit transactions. On one typical occasion, the witness, as construction supervisor, was paid an "extra" one thousand dollars at the instigation of defendant Bointy. Half of this illegally obtained money he pocketed and half he "kicked back" to defendant Bointy.

Defendant Satepeahtaw, too, served as commissioner during the latter part of the period, but since the State was unable to prove wrongdoing during this time, his conviction depended upon his participation in the first year of the scheme when he was an independent contractor. In this capacity, defendant Satepeahtaw performed various jobs for the Authority, such as well drilling, fencing, and surveying. Sometimes he was paid legitimately; other times, he was not. Checks introduced by the State, coupled with the testimony of certain residents of the housing project, showed that he was paid for work not performed. In addition, defendant Satepeahtaw admitted on the stand, as well as earlier at a grand jury proceeding, excerpts of which were read at the trial, that he knowingly accepted false payment and then divided the money with Executive Director DeLaune.

Defendant Satepeahtaw raises two assignments of error. Defendant Bointy raises four, two of which are identical to defendant Satepeahtaw's. The two common assignments of error are considered first.

Both defendants insist that they should not have been charged with Embezzlement of State Funds, pursuant to 21 O.S.1971, § 341, but rather with the offense of Filing False Claims pursuant to 21 O.S.1971, § 358, which carries a maximum penalty of two (2) years and/or a $10,000.00 fine.

Section 341 provides, in relevant part, that a public officer who appropriates to his own use, or the use of any person not entitled thereto, without authority of law, any money or thing of value received by him on behalf of this State shall be guilty of a felony.

Section 358, on the other hand, provides:

"It shall be unlawful for any person, firm, corporation, association or agency to make, present, or cause to be presented to any employee or officer of the State of Oklahoma, or to any department or agency thereof, any false, fictitious or fraudulent claim for payment of public funds upon or against the State of Oklahoma, or any department or agency thereof, knowing such claim to be false, fictitious or fraudulent."

The defendants base their contention on the rule of construction that a more specific and recent statute supersedes a general one when both are applicable. In defendant Bointy's case, it cannot even be said that both statutes are appropriate or applicable. When his wrongful conduct as commissioner is juxtaposed with the two statutes in question, it is readily apparent that a charge of Filing False Claims would not have covered the acts committed by him. Accordingly, we hold that defendant Bointy was properly charged with Embezzlement of State Funds.

In defendant Satepeahtaw's case, however, the issue is more complicated. Both statutes are applicable to his conduct. He obviously violated the false claims statute, and because he aided and abetted Executive Director DeLaune, a public officer, he was a principal to the crime of Embezzlement of State Funds. The question now before us is whether Section 358, Filing False Claims, is a more "specific" statute, which supersedes the "general" Section 341, Embezzlement of State Funds.

Having examined many cases in which the rule of construction argued by defendant was applied, we hold that those cases are not analogous to the case before us. In the class of cases where the rule of construction controlled, a specific act, proscribed in a narrow statute, is necessarily included within the behavior proscribed by a broader statute. For example, one who commits the specific act of Injury to a Minor Child is necessarily guilty of Battery as well. In that case, the specific statute supersedes the general one because the narrow offense is included within the broad proscription. Holder v. State, Okl.Cr., 556 P.2d 1049 (1976). Similarly, one who commits Larceny From a Retailer necessarily violates the general Larceny statute, but should be prosecuted under the specific statute. Jones v. State, Okl.Cr., 507 P.2d 1267 (1973). The rule of construction was again applied where a defendant convicted of general Cruelty to Animals should have been charged with the specific offense of Instigating Fights Between Animals. Maloney v. State, Okl.Cr., 532 P.2d 78 (1975).

The two statutes involved in the present case do not exhibit this characteristic. One who commits the offense of Filing False Claims is not necessarily guilty of Embezzlement of State Funds which is aimed at public officers. If a person submitted a fraudulent claim to an innocent officer who paid it in good faith, there would be no violation of the embezzlement statute. In other words, filing false claims is not a "narrow" offense, once included within a broader proscription, but now made punishable separately as in the cases where the rule of construction controlled.

We observe, moreover, that this case is analogous to Crutchfield v. State, Okl.Cr., 553 P.2d 504 (1976), in which a prisoner who tore the sink from his cell was convicted of Injuring Public Buildings. This Court rejected his contention that he should have been charged with the less serious offense of Injuries to Pipes. There, as in the instant case, the rule of construction would have been inappropriate, because one who injures pipes is not necessarily guilty of injuring a public building. There, as here, elements of two offenses happen to coincide, giving the false appearance that one was more "specific" than the other, when in fact they merely overlapped.

In conclusion, because we have held the rule of construction argued by defendant Satepeahtaw inapplicable to the case at bar, it follows that the prosecutor was free to elect which of two appropriate charges to bring pursuant to 21 O.S.1971, § 11, which provides that where an act is made punishable in different ways by...