State v. Bishop, 47407
| Decision Date | 17 July 1974 |
| Docket Number | No. 47407,47407 |
| Citation | 524 P.2d 712,215 Kan. 481 |
| Parties | STATE of Kansas, Appellant, v. Delbert D. BISHOP, Appellee. |
| Court | Kansas Supreme Court |
1. If the facts alleged in an information do not constitute an offense within the terms and meaning of the statute upon which it is based, the information is fatally defective.
2. Ordinarily extrinsic evidence cannot be resorted to in determining the sufficiency of an information.
3. Rules for construction of penal statutes are stated.
4. In an appeal by the state from an order dismissing an information charging a custodial officer with unlawfully introducing dry yeast into the state penitentiary, it is held: The information did not state a criminal offense.
Patrick J. Reardon, County Atty. argued the cause, and Vern Miller, Atty. Gen. was with him on the brief for the appellant.
Tom Boone, Leavenworth, argued the cause and was on the brief for the appellee.
HARMAN, Commissioner.
This is an appeal by the state from an order dismissing an information which charged a custodial officer with unlawfully introducing dry yeast into the state penitentiary.
Omitting formal parts, the information stated:
'That at the said County of Leavenworth, in the State of Kansas, on or about the 7th day of June, A.D. 1973, one Delbert D. Bishop then and there being, did unlawfully feloniously and willfully introduce into an institution to-wit: Kansas State Penitentiary, Lansing, Kansas, under the supervision and control of the Director of Penal Institutions, to-wit: Robert N. Woodson, contraband to-wit: dry yeast, without the consent of the warden, to-wit: Raymond J. Gaffney or the Director of Penal Institutions, Robert N. Woodson, in violation of K.S.A. 21-3826.'
The pertinent statute, K.S.A.1973 Supp. 21-3826, provides:
'Traffic in contraband in a penal institution is introducing or attempting to introduce into or upon the grounds of any institution under the supervision and control of the director of penal institutions or any jail, or taking, sending, attempting to take or attempting to send therefrom or any unauthorized possession while in aforesaid institution or distributing within any aforesaid institution, any narcotic, synthetic narcotic, drug, stimulant, sleeping pill, barbiturate, nasal inhaler, alcoholic liquor, intoxicating beverage, firearm, ammunition, gun powder, weapon, hypodermic needle, hypodermic syringe, currency, coin, communication, or writing without the consent of the warden, superintendent or jailer.
'Traffic in contraband in a penal institution is a class E felony. ' (Emphasis supplied.)
Pursuant to K.S.A.1973 Supp. 22-3208(1), (3) the defendant Delbert D. Bishop filed a motion to dismiss the information on the ground it did not charge a crime. After a hearing at which the state produced evidence the trial court sustained the motion and this appeal ensued.
The state's evidence indicated that a major source of misbehavior within the penitentiary derives from prisoners' use of intoxicants manufactured by them from unauthorized materials; experience has revealed that yeast is the quickest fermenting agent for producing an intoxicating liquor known in prison parlance as 'hooch'; rice and other substances can be used as starters but their slower fermentation rate increases the risk of detection during production; internal prison rules prohibit the introduction into the prison of any alcoholic preparation except upon order of the prison physician; yeast is under rigid control within the prison; the rules require that it is to be used in the kitchen only under direction of a supervisory officer, all is to be accounted for and unused yeast is not to be left inside the institution; copies of these rules were furnished to all custodial officers including appellee Bishop.
The essence of appellant's contention here is that the statutory language prohibiting alcoholic liquor or intoxicating beverage can be properly stretched so as to include dry yeast, the most popular and quickest substance used by inmates within the institution to produce illegal intoxicants. It is argued this would be a commonsense interpretation of the statute and would...
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...is that they must always be strictly construed against the State and in favor of lenity toward the defendant. State v. Bishop , 215 Kan. 481, 483, 524 P.2d 712 (1974).Moreover, this court should not add to or take away from the clear legislative intent to proscribe certain conduct, unless t......
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...in favor of those against whom they are to be applied and that ordinary words are to be given their ordinary meaning. State v. Bishop, 215 Kan. 481, 524 P.2d 712 (1974); State ex rel. Ferguson v. American Savings Stamp Co., 194 Kan. 297, 398 P.2d 1011 (1965); Esters v. State, 1 Kan.App.2d 5......
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