State v. Bryan
Decision Date | 11 June 1987 |
Docket Number | No. 59503,59503 |
Citation | 12 Kan.App.2d 206,738 P.2d 463 |
Parties | STATE of Kansas, Appellee, v. Ruth BRYAN, Appellant. |
Court | Kansas Court of Appeals |
Syllabus by the Court
Under K.S.A. 39-720, a person who fraudulently obtains welfare assistance to which he or she is not entitled is guilty of the crime of theft, as that crime is defined by K.S.A.1986 Supp. 21-3701. An information charging a person with fraudulently obtaining such assistance must allege that the person obtained control of the property with the intent to permanently deprive the owner thereof. The failure to allege such intent is a jurisdictional defect, rendering a conviction thereunder void.
Brad L. Keil and Melissa Sheridan, Asst. Appellate Defenders, and Benjamin C. Wood, Chief Appellate Defender, for appellant.
Eric S. Rosen, Asst. Dist. Atty., Gene M. Olander, Dist. Atty., and Robert T. Stephan, Atty. Gen., for appellee.
Before MEYER, P.J., and BRAZIL and DAVIS, JJ.
This is a criminal case in which defendant Ruth Bryan appeals her convictions of four counts of felony theft pursuant to K.S.A. 39-720 and K.S.A.1986 Supp. 21-3701, commonly known as welfare fraud.
The sole issue on appeal is whether the district court lacked jurisdiction to convict the defendant because the information failed to allege a crime.
The information upon which the defendant was tried and convicted alleged four counts of "welfare fraud." It began as follows:
Except for the dates of the alleged offenses, counts 2, 3, and 4 were all in substantially the same language as count 1.
None of the four counts of the information alleged that the defendant obtained control over the State's property with the intent to deprive the owner permanently of the possession, use, or benefit of the property. For this reason, the defendant contends the district court erred in convicting her of felony theft pursuant to K.S.A. 39-720 and K.S.A.1986 Supp. 21-3701. We agree.
The indictment or the information is the jurisdictional instrument upon which the accused stands trial. State v. Slansky, 239 Kan. 450, 452, 720 P.2d 1054 (1986). An information which fails to include an essential element of the crimes it attempts to charge is jurisdictionally and fatally defective, and the convictions for those offenses must be reversed. State v. Jackson, 239 Kan. 463, Syl. p 5, 721 P.2d 232 (1986).
K.S.A. 39-720 is the statute under which the defendant was convicted. It provides as follows:
"Any person who obtains or attempts to obtain, or aids or abets any other person to obtain, by means of a willfully false statement or representation, or by impersonation, collusion, or other fraudulent device, assistance to which the applicant or client is not entitled, shall be guilty of the crime of theft, as defined by K.S.A. 21-3701; and he shall be required to remit to the secretary the amount of any assistance given him under such fraudulent act." (Emphasis added.)
K.S.A.1986 Supp. 21-3701 defines the crime of theft as follows:
"Theft is any of the following acts done with intent to deprive the owner permanently of the possession, use or benefit of the owner's property:
(a) Obtaining or exerting unauthorized control over property; or
(b) Obtaining by deception control over property." (Emphasis added.)
A conviction for welfare fraud under K.S.A. 39-720 is a conviction for theft. K.S.A. 39-720; State v. Ambler, 220 Kan. 560, 552 P.2d 896 (1976). An essential element of the crime of theft is that the accused obtain the property "with intent to deprive the owner permanently of the property." K.S.A.1986 Supp. 21-3701; State v. Burnett, 4 Kan.App.2d 412, Syl. p 1, 607 P.2d 88 (1980).
The State contends that a person who fraudulently obtains welfare assistance to which the person is not entitled, according to K.S.A. 39-720, "shall be guilty of theft." The problem with the State's argument is that K.S.A. 39-720 does not stop at the point where it states that "[a]ny person who obtains ... by means of ... fraudulent device, assistance to which the [person] is not entitled, shall be guilty of the crime of theft." (Emphasis added.) Presumably, the Legislature could have stopped at that point. See State v. Jones, 214 Kan. 568, 570, 521 P.2d 278 (1974) ( ) However, the statute continues, saying that such person "shall be guilty of the crime of theft, as defined by K.S.A. 21-3701." (Emphasis added.) K.S.A.1986 Supp. 21-3701 in fact defines "theft" as obtaining control over property "with intent to deprive the owner permanently of the possession ... of the owner's property." A person is not guilty of theft "as defined by K.S.A. 21-3701" unless that person obtains control of the property with the intent to permanently deprive the owner of his property. Thus, we hold that an information charging an accused of "welfare fraud" under K.S.A. 39-720 must allege that the accused obtained control of the property with the intent to permanently deprive the owner of his property.
The State contends that K.S.A. 39-720 is a penal statute and the specific elements listed in the statute constitute an independent crime. The State's argument finds support in In re Estate of Butler, 159 Kan. 144, 147, 152 P.2d 815 (1944), wherein it was held that the predecessor of K.S.A. 39-720 "creates a criminal liability for the fraudulent obtaining of assistance and provides a penalty for the commission of that offense." However, at the time Butler was decided, the predecessor of K.S.A. 39-720 read as follows:
"Any person who obtains or attempts to obtain, or aids or abets any other person to obtain, by means of a willfully false statement or representation, or by impersonation, collusion, or other fraudulent device, assistance to which the applicant or client is not entitled, is guilty of a misdemeanor, and upon conviction thereof shall be fined not more than five hundred dollars or be imprisoned for not more than six months or by both such fine and...
To continue reading
Request your trial-
State v. Classen
...than welfare assistance." The Court of Appeals held that the information was fatally defective for the reasons stated in State v. Bryan, 12 Kan.App.2d 206, 738 P.2d 463, rev. denied 241 Kan. ---- (July 16, 1987). In Bryan, the defendant appealed her conviction of four counts of felony theft......
-
State v. Jones
...with then existing law. At the time of defendant's convictions, welfare fraud was considered to be a form of theft. See State v. Bryan, 12 Kan.App.2d 206, 738 P.2d 463, rev. denied, 241 Kan. 839 (1987), overruled by State v. Micheaux, 242 Kan. 192, 747 P.2d 784 (1987). Micheaux, however, es......
-
Governmental Immunity: Recent Developments Concerning the 11th Amendment and the Kansas Tort Claims Act
...P.2d 322 (1990) (noting that no consideration was given to unpublished cases cited by the appellant and appellee); and State v. Bryan, 12 Kan. App. 2d 206, 210, 738 P.2d 463 (1987) (disregarding unpublished opinion where "expressly forbidden" by Supreme Court Rule 7.04). But see Mark D. Hin......