State v. Cole, 57790

• Decision Date: 06 December 1985
• Docket Number: No. 57790,57790
• Citation: 238 Kan. 370,710 P.2d 25
• Parties: STATE of Kansas, Appellant, v. Steven M. COLE, Appellee.
• Court: Kansas Supreme Court

Page 25

710 P.2d 25

238 Kan. 370

STATE of Kansas, Appellant, v. Steven M. COLE, Appellee.

No. 57790.

Supreme Court of Kansas.

Dec. 6, 1985.

Syllabus by the Court

1. In construing statutes, the legislative intention is to be determined from a general consideration of the entire act. Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious and sensible.

2. Penal statutes must be strictly construed in favor of persons sought to be subjected to their operations. The rule of strict construction simply means that ordinary words are to be given their ordinary meaning. Such a statute should not be read to add that which is not readily found therein or to read out what as a matter of ordinary English language is in it.

3. The prohibition in K.S.A. 21-3826 against "any unauthorized possession" of contraband while in "aforesaid institution" prohibits unauthorized possession of contraband both in state institutions under the control of the director of penal institutions and in jails.

Geary N. Gorup, Asst. Dist. Atty., argued the cause, and Robert T. Stephan, Atty. Gen., and Clark V. Owens, Dist. Atty., were with him on brief for appellant.

Ernest L. Tousley, of O'Hara, O'Hara & Tousley, Wichita, argued the cause and was on brief for appellee.

HERD, Justice:

The State appeals from the district court's grant of defendant's motion for dismissal and discharge prior to the presentation of evidence at the preliminary hearing.

Appellee Steven Cole, an inmate in the Sedgwick County Jail, was charged with possession of a weapon without authorization or consent of the jailer in violation of K.S.A. 21-3826. A preliminary hearing was scheduled for January 7, 1985. Prior to the presentation of evidence, Cole moved to dismiss on the ground his acts, as alleged by the State in its complaint/information, did not constitute a crime as defined by K.S.A. 21-3826.

Specifically, Cole argued the provision in K.S.A. 21-3826 which prohibits the unauthorized possession or distribution of contraband in a penal institution is not applicable to the possession of a weapon in a county jail.

The district court determined the statute was "poorly worded" and, if strictly construed, precluded imposition of charges against the defendant. The State appeals the district court's dismissal of the charges against the defendant.

The sole issue to be considered on appeal is whether the district court erred in finding K.S.A. 21-3826 does not prohibit the unauthorized possession of a weapon by a prisoner in a county jail.

Let us examine K.S.A. 21-3826, which 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 added.)

Appellee argues, and the trial court held, the act fails to include "jails" in that portion of the statute referring to unauthorized possession of contraband. He argues the act prohibits only unauthorized possession of contraband in the "aforesaid institution." Since the statute previously refers to "any institution under the supervision and control of the director of penal institutions or any jail," (emphasis added) Cole argues the term "aforesaid institution" refers only to institutions under the control of the director of penal institutions.

Before considering the arguments of the parties, let us review the rules of statutory construction.

The fundamental rule of statutory construction is that the purpose and intent of the legislature governs when the intent can be ascertained from the statute. In construing statutes, the legislative intention is to be determined from a general consideration of the entire act. Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible. State v. Dubish, 236 Kan. 848, 853, 696 P.2d 969 (1985); State v. Flummerfelt, 235 Kan. 609, 612, 684 P.2d 363 (1984).

Penal statutes must be strictly construed in favor of persons sought to be subjected to their operations. The rule of strict construction simply means that ordinary words are to be given their ordinary meaning. Such a statute should not be read to add that which is not readily found therein or to read out what as a matter of ordinary English language is in it. State v. Zimmerman & Schmidt, 233 Kan. 151, 155, 660 P.2d 960 (1983); National Cooperative Refinery Ass'n v. Board of McPherson County Commr's, 228 Kan. 595, 597, 618 P.2d 1176 (1980).

The State contends that we need not interpret K.S.A. 21-3826 because our holding in State v. Roseberry, 222 Kan. 715, 567 P.2d 883 (1977), is dispositive of the issue in this case.

In Roseberry, the defendant was charged under K.S.A. 21-3826 with feloniously introducing marijuana into a county jail without the consent of the jailer. The defendant successfully argued in the trial court that the use of the term "penal institutions" in the title of the act was not broad enough to cover the subject matter of the statute which includes both "penal institutions" and "jails." Defendant contended that the statute violated Article 2, Section 16 of the Kansas Constitution, which mandates...