State v. Burney
| Decision Date | 23 January 1965 |
| Docket Number | No. 44078,44078 |
| Citation | 398 P.2d 335,194 Kan. 292 |
| Parties | The STATE of Kansas, Appellant, v. James BURNEY, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. It is a well-settled rule that repeals by implication are not favored in the law.
2. In the interpretation of statutes, the legislative intent is to be ascertained.
3. Statutes are to be read and construed together so that force and effect may be given to all of them.
4. The provisions of G.S.1961 Supp. 21-533 and G.S.1949, 21-534 are examined and found not to be basically inconsistent or repugnant.
5. Theft of an automobile of a value of fifty dollars ($50) or more constitutes grand larceny within the purview of G.S.1961 Supp. 21-533, and the legal sentence therefor is confinement at hard labor for not less than five nor more than fifteen years, as provided by G.S.1949, 21-534.
Richard H. Seaton, Asst. Atty. Gen., Topeka, argued the cause, and William M. Ferguson, Atty. Gen., Topeka, and A. L. Moffat, County Atty., Kinsley, were with hom on the brief for appellant.
Rae E. Batt, Kinsley, argued the cause, and was on the brief for appellee.
The State of Kansas brings this appeal, on a question reserved by it, from the sentence pronounced against the defendant, James Burney, in the district court of Pawnee county.
The facts are not in dispute and are summarized briefly, as follows: The defendant was charged with stealing an automobile of the value of $1400.00, in violation of G.S.1961 Supp. 21-533. Upon his arraignment in district court, at which his court-appointed counsel was present, the defendant Burney, after being fully advised of his rights, pleaded guilty to the charge made against him and was sentenced to confinement in the state penitentiary at Lansing, Kansas, for a period of not less than five nor more than fifteen years, pursuant to the provisions of G.S.1949, 21-534.
After this sentence was pronounced, the defendant's counsel orally moved that it be vacated. The trial court sustained this motion, set its previous sentence aside, and proceeded to re-sentence the defendant to be confined in the state penitentiary for not to exceed five years. The instant appeal is from the sentence thus imposed.
The sole question presented in this appeal is whether the sentence of 'not to exceed five years' is a valid sentence under the law. This requires consideration of the pertinent statutes.
The statute under which the defendant was charged, G.S.1961 Supp. 21-533, reads as follows:
'Every person who shall be convicted of feloniously stealing, taking or carrying away any money, goods, rights in action or other personal property or valuable thing whatsoever of the value of fifty dollars ($50) or more, shall be deemed guilty of grand larceny.'
The penalties for grand larceny are found in G.S.1949, 21-534, which provides:
'Persons convicted of grand larceny shall be punished in the following cases as follows: First, for stealing any automobile or motor vehicle, by confinement at hard labor for not less than five years and not more than fifteen years; second, for stealing a horse, mare, gelding, colt, filly, neat cattle, mule or ass, by confinement at hard labor not exceeding seven years; third, in all cases of grand larceny, except as provided in the two succeeding sections [*], by confinement at hard labor not exceeding five years.'
Construing these two statutes together, the conclusion would appear to be justified that the present statutory penalty for theft of an automobile or motor vehicle of a value of fifty dollars ($50) or more is confinement at hard labor for not less than five nor more than fifteen years, and, consequently, that the sentence originally imposed against Burney was a legal and valid sentence.
However, it is argued by the defendant, and this argument apparently appeared plausible to the trial court, that when, in 1959, the legislature passed the present statute defining grand larceny, which is now G.S.1961 Supp. 21-533, and is the statute under which the defendant was charged and convicted, it repealed, by implication, that part of G.S.1949, 21-534, which provides imprisonment for not less than five nor more than fifteen years for theft of an automobile or motor vehicle. This contention, as we understand defense counsel, is based on certain differences which exist between the 1959 enactment (the present 21-533) and two predecessor statutes. In General Statutes of Kansas, 1949, 21-533 appeared as follows:
'Every person who shall be convicted of feloniously stealing, taking or carrying away any money, goods, rights in action or other personal property or valuable thing whatsoever of the value of twenty dollars or more, or any automobile, or motor vehicle, or any horse, mare, gelding, colt, filly, ass, mule, neat cattle, sheep, goat, hog, or in the nighttime any domestic fowls, harness, or saddles, belonging to another, shall be deemed guilty of grand larceny.'
In 1957, the Kansas legislature, obviously giving heed to the ever declining value of the dollar, amended 21-533 in one particular, and one only, i.e., by inserting 'fifty dollars ($50)' in lieu of the more humble 'twenty dollars' so that Section 21-533 then read as follows:
'Every person who shall be convicted of feloniously stealing, taking or carrying away any money, goods, rights in action or other personal property or valuable thing whatsoever of the value of fifty dollars ($50) or more, or any automobile, or motor vehicle, or any horse, mare, gelding, colt, filly, ass, mule, neat cattle, sheep, goat, hog, or in the nighttime any domestic fowls, harness, or saddles, belonging to another, shall be deemed guilty of grand larceny.'
In 1959, as we have indicated, the legislature again amended the statute, this time enacting 21-533 in its present form. In the present statute all reference to specific types or kinds of property is omitted, and grant larceny is predicated solely on the value of the property stolen, regardless of its form.
Because value, rather than form, is now the distinguishing characteristic of property subject to grand larceny, the defendant would infer an intent on the part of the 1959 legislature to delete from 21-534, which defines the punishment for grand larceny, that provision which imposes a more severe penalty for theft of motor vehicles than for theft of other types of property. This reasoning, if sound, would apply as well to the specific provision in 21-534 which provides a somewhat greater...
To continue reading
Request your trial
-
City of Overland Park v. Nikias, 46562
...Statutes in pari materia should be read together and harmonized, if possible, to the end that all may be given force and effect. (State v. Burney, 194 Kan. 292, Syl. 3, 398 P.2d 335; 50 Am.Jur., Statutes, § 348, p. A primary rule for the construction of a statute is to find the legislative ......
-
Harrah v. Harrah
...statutes are to be read together and harmonized, if at all possible, to the end that both may be given force and effect. (State v. Burney, 194 Kan. 292, 398 P.2d 335; In re Estate of Park, 147 Kan. 142, 75 P.2d 842; Marshall v. Marshall, 159 Kan. 602, 156 P.2d 537) At common law the husband......
-
Ratley v. Crouse, 8675.
...interpretation of state statutes, and properly, for the determination by the state courts.1 The Supreme Court of Kansas in State v. Burney, 194 Kan. 292, 398 P.2d 335, decided this precise question and held that the two statutes in question are not inconsistent or repugnant, that section 53......
-
State v. Towner
...was amended to its present form. Appellee overlooks the effect of that amendment which was the subject of the appeal in State v. Burney, 194 Kan. 292, 398 P.2d 335. Our statute defining grand larceny (K.S.A. 21-533) now 'Every person who shall be convicted of feloniously stealing, taking or......