State v. Donlay

• Decision Date: 28 May 1993
• Docket Number: No. 68293,68293
• Citation: 253 Kan. 132,853 P.2d 680
• Parties: , 26 A.L.R.5th 854 STATE of Kansas, Appellant, v. Robert C. DONLAY, Appellee.
• Court: Kansas Supreme Court

Page 680

853 P.2d 680

253 Kan. 132, 26 A.L.R.5th 854

STATE of Kansas, Appellant, v. Robert C. DONLAY, Appellee.

No. 68293.

Supreme Court of Kansas.

May 28, 1993.

Syllabus by the court

1. Interpretation of a statute is a question of law.

2. The judgment of a trial court, if correct, is to be upheld, even though the court may have relied upon a wrong ground or assigned an erroneous reason for its decision.

3. The general rule is that a criminal statute must be strictly construed in favor of the accused, which simply means that words are given their ordinary meaning. Any reasonable doubt about the meaning is decided in favor of anyone subjected to the criminal statute.

4. Prosecution as used in K.S.A. 21-3825(d) is a criminal action, a proceeding instituted and carried on by due course of law, before a competent tribunal, for the purpose of determining the guilt or innocence of a person charged with a crime.

5. A traffic citation must be filed with a court having jurisdiction before it is deemed to be a lawful complaint for the purpose of prosecution.

6. K.S.A. 21-3825(d) requires that prosecution formally be commenced by the filing of a complaint in a court having jurisdiction before "any other act in the course of a prosecution can occur."

Kevin C. Fletcher, Asst. County Atty., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief, for appellant.

Benjamin C. Wood, Special Asst. Appellate Defender, argued the cause, and Jessica R. Kunen, Chief Appellate Defender, was with him on the brief, for appellee.

ABBOTT, Justice.

This is a direct appeal by the State from an order dismissing the complaint (K.S.A. 22-3602[b].

Robert C. Donlay was charged with aggravated false impersonation under K.S.A. 21-3825 (class E felony). Donlay showed another individual's driver's license and signed that person's name to the tickets he received when a state trooper stopped Donlay for speeding and for a seat belt violation. The trial court dismissed the charge, reasoning that Donlay should have been charged with the more specific crime of unlawful use of a driver's license, K.S.A. 8-260(a)(3) (class B misdemeanor).

Based upon the driver's license produced and the signature on the tickets, the trooper believed he had issued tickets to Matthew J. Jacobs. The two tickets were filed in Reno County District Court. Jacobs did not appear on the appearance date, and the trial court entered a plea of not guilty on behalf of Jacobs. Trial was set for a specific time and a notice to appear was sent to Matthew J. Jacobs.

Jacobs contacted the prosecutor, obtained the ticketed car's license number, produced alibi evidence, and told the prosecutor the tickets actually belonged to Donlay. The State dismissed the charges against Jacobs.

The State then filed a complaint against the true driver, Donlay, for aggravated false impersonation, contrary to K.S.A. 21-3825. At the preliminary hearing, the trooper testified Donlay had not represented himself as Jacobs at any time after he handed Donlay the citation.

The trial court ruled it was inappropriate to charge Donlay under K.S.A. 21-3825 because a more specific statute, K.S.A. 8-260, is available that deals with the particular action. The trial court reasoned Donlay should have been charged under K.S.A. 8-260(a)(3), which states in pertinent part:

"(a) It shall be unlawful for any person, for any purpose, to:

....

"(3) Display or represent as the person's own, any driver's license not issued to the person."

Consequently, the trial court dismissed the aggravated false impersonation charge. Rather than file a misdemeanor charge under K.S.A. 8-260(a)(3), the State appealed.

Two issues are briefed: whether Donlay could be charged with a violation of either or both K.S.A. 21-3825(d) and K.S.A. 8-260(a)(3) and whether K.S.A. 21-3825(d) is applicable under the facts of this case.

The second issue was not considered or raised in the trial court. However, " '[i]nterpretation of statutes is a question of law.' " Todd v. Kelly, 251 Kan. 512, 515, 837 P.2d 381 (1992). "When determining a question of law, this court is not bound by the decision of the district court." Memorial Hospital Ass'n, Inc. v. Knutson, 239 Kan. 663, 668, 722 P.2d 1093 (1986). In addition, "[t]he judgment of a trial court, if correct, is to be upheld, even though the court may have relied upon a wrong ground or assigned an erroneous reason for its decision." State v. Wilburn, 249 Kan. 678, 686, 822 P.2d 609 (1991).

A majority of this court finds the language in K.S.A. 21-3825(d) dispositive of this appeal. That statute provides in pertinent part:

"Aggravated false impersonation is falsely representing or impersonating another and in such falsely assumed character:

....

"(d) Doing any other act in the course of a ... prosecution whereby the person who is represented or impersonated may be made liable to the payment of any ... costs ..., or his rights may be in any manner affected." (Emphasis added.)

The question then becomes when does "in the course of a prosecution" commence? Is it when a crime is committed and an investigation begins, or is it when charges are filed with a court of competent jurisdiction? In this case, an argument can be made that it is somewhere in between, i.e., when the ticket was issued based upon exhibiting someone else's driver's license and upon signing the ticket with the other person's name.

The general rule is that a criminal statute must be strictly construed in favor of the accused, which simply means that words are given their ordinary meaning. Any reasonable doubt about the meaning is decided in favor of anyone subjected to the criminal statute. State v. Flummerfelt, 235 Kan. 609, 612, 684 P.2d 363 (1984).

K.S.A. 21-3825(d) prohibits "[d]oing any other act in the course of a suit, proceeding or prosecution." (Emphasis added.)

A "suit" is a proceeding in a court for the enforcement of a right. It would not include the investigatory phase in preparing to file a suit. See United States v. Safeway Stores, 140 F.2d 834, 838 (10th Cir.1944); Dobbins et al. v. First Nat. Bank, 112 Ill. 553, 566 (1884); Drake v. Gilmore et al., 52 N.Y. 389, 394-95 (1873).

Additionally, Black's Law Dictionary 1434 (6th ed. 1990) defines "suit" as:

"A generic term, of comprehensive signification, referring to any proceeding by one person or persons against another or others in a court of law in which the plaintiff pursues, in such court, the remedy which the law affords him for the redress of an injury or the enforcement of a right, whether at law or in equity. [Citations omitted.] It is, however, seldom applied to a criminal prosecution."

Black's Law Dictionary 1204 (6th ed. 1990) also defines "proceeding":

"In a general sense, the form and manner of conducting juridical business before a court or judicial officer. Regular and orderly progress in form of law, including all possible steps in an action from its commencement to the execution of judgment. Term also refers to administrative proceedings before agencies, tribunals, bureaus, or the like.

"An act which is done by the authority or direction of the court, agency, or tribunal, express or implied; an act necessary to be done in order to obtain a given end; a prescribed mode of action for carrying into effect a legal right. All the steps or measures adopted in the prosecution or defense of an action. Statter v. United States, C.C.A. Alaska, 66 F.2d 819, 822 [9th Cir.1933]. The word may be used synonymously with 'action' or 'suit' to describe the entire course of an action at law or suit in equity from the issuance of the writ or filing of the complaint until the entry of a final judgment, or may be used to describe any act done by authority of a court of law and every step required to be taken in any cause by either party. The proceedings of a suit embrace all matters that occur in its progress judicially."

A "proceeding" is the attempted enforcement of a right or law in a prescribed manner and requires commencement of the action. Matter of Schorer, 154 Misc. 198, 200, 277 N.Y.S. 677 (1935). Mere preparation is not a "proceeding."

The legislature has made the crime of aggravated false impersonation apply to acts in the course of a suit or in the course of a proceeding, which requires that a civil action be filed or a proceeding be commenced. If that is a given, would the legislature intend something different for "in the course of a prosecution"?

Black's Law Dictionary 1221 (6th ed. 1990) defines "prosecution" as:

"A criminal action; a proceeding instituted and carried on by due course of law, before a competent tribunal, for the purpose of determining the guilt or innocence of a person charged with crime. U.S. v. Reisinger, 128 U.S. 398, 9 S.Ct. 99, 32 L.Ed. 480 [ (1888) ]. The continuous following up, through instrumentalities created by law, of a person accused of a public offense with a steady and fixed purpose of reaching a judicial determination of the guilt or innocence of the accused.

....

"The term is also used respecting civil litigation, and includes every step in action, from its commencement to its final determination. The Brazil, C.C.A. Ill., 134 F.2d 929, 930 [7th Cir.1943]."

In 1905, this court considered the term "prosecute" and, with approval, set forth:

"In the American and English Encyclopedia of Law (2d ed.), volume 23, page 268, there is a fair statement of what is included in the term 'prosecute.'

" 'To prosecute is to proceed against judicially. A prosecution is the act of conducting or waging a proceeding in court; the means adopted to bring a supposed offender to justice and punishment by due course of law. It is also defined as the institution or commencement and continuance of a criminal suit; the process of exhibiting formal charges against an offender before a legal tribunal, and pursuing them to final judgment on behalf of the state or government, as by indictment or...