State v. Howard, 48151
| Decision Date | 11 December 1976 |
| Docket Number | No. 48151,48151 |
| Citation | 221 Kan. 51,557 P.2d 1280 |
| Parties | STATE of Kansas, Appellee, v. Donald W. HOWARD, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. The unlawful use of a credit card prohibited by K.S.A. 21-3729(1)(a) includes the taking of a credit account number from a credit card without the consent of the person to whom it is issued, with the intent and for the purposes specified in the act.
2. Following a conviction of unlawful use of a credit card in violation of K.S.A. 21-3729(1)(a), the record is examined on appeal and it is held that the district court did not err (1) in denying a continuance during trial; (2) in declaring a mistrial; or (3) in instructing the jury.
Cortland Q. Clotfelter of Bradley & Clotfelter, Wichita, argued the cause, and was on the brief for appellant.
Stephen M. Joseph, Asst. Dist. Atty., argued the cause, Curt T. Schneider, Atty. Gen., and Keith Sanborn, Dist. Atty., were with him on the brief for appellee.
Donald W. Howard appeals from his conviction by a jury of unlawfully using a credit card to obtain property of the value of more than $50 in violation of K.S.A. 21-3729(1)(a), a class E felony, and from his sentence to imprisonment for not less than one nor more than five years.
The main thrust of defendant's argument on appeal is that the statute requires that a credit card be physically produced and displayed in the commission of the offense. Based upon this premise, Howard contends that the evidence failed to establish a prima facie violation of the statute, and that the court erred in its correlative instructions to the jury. Additionally, he claims that the court erred in refusing him a requested continuance, in declaring a mistrial, and in making reference in the instructions to matters not in evidence.
Mrs. Glen Taylor was employed at a Safeway store in Wichita, Kansas on March 27, 1974. At approximately 10:45 o'clock that morning she took a coffee break, and at the end of the break she placed her purse on a shelf inside of the courtesy booth. Next, the defendant was observed in the store. He walked past the manager at the number one checkstand, proceeded out the door, entered a brown car, and drove off. Shortly after 11 o'clock a.m. the manager found Mrs. Taylor's purse lying open on the floor, six to twelve feet away from the courtesy booth. Her billfold, containing her Sears credit card, social security card, and Missouri driver's license, was missing. The credit card was in the name of Glen Taylor. The card had not been cancelled or revoked, and the Taylors had not given anyone permission to use it.
On the same date defendant and Terence Walters appeared at the television department of a Sears store in Wichita. Defendant stated that his name was Glen Taylor. He selected a nine-inch portable color TV set priced at $279.95, plus tax. He purchased it on credit, giving the clerk the number of the Glen Taylor credit card account. Howard had the number written down on a piece of paper; he did not show a credit card to the salesman. When asked for further identification he said that he had to go downstairs, that his wallet had been stolen, but his wife had her identification with her. The defendant left and returned shortly, producing Mrs. Taylor's social security card and Missouri driver's license, and saying that these belonged to his wife. Defendant signed the sales slip 'Glen Taylor' and then left the store, taking the TV set with him.
That afternoon, the defendant and Walters entered King's Pawn Shop in Wichita and attempted to pawn the portable color TV set, which was still wrapped and in the original box. The proprietor refused to make the loan and Howard and Walters departed, leaving behind the wrapping paper and sales slip.
Later that day, at approximately 5 o'clock p.m., defendant and Walters entered Local Loan North, another Wichita pawn shop, and pawned the portable color TV set for $100. Defendant again represented himself to be Glen Taylor and had that name written on the pawn ticket. The set was identified by serial number.
The statute involved reads in applicable part as follows:
K.S.A. 21-3729. '(1) Unlawful use of a credit card is any of the following acts done with intent to defraud and for the purpose of obtaining on credit money, goods, property, . . . or . . . services . . .:
'(a) Using a credit card issued to another person or entity without the consent of the person or entity to whom it is issued; or
'(b) Knowingly using a credit card, or the number of description thereof, which has been revoked or canceled; or
'(c) Using a falsified, mutilated, altered or nonexistent credit card or a number or description thereof.
'(2) The term 'credit card' as used herein means an identification card or device issued by a business organization authorizing the person or entity to whom it is issued to purchase or obtain goods, property or services on credit.
'(4) Unlawful use of a credit card is a class E felony if the money, goods, property, services or communication services obtained within any seven (7) day period are of the value of fifty dollars ($50) or more . . .'
The information charged a violation of subsection (a) substantially in the words of the statute: that the defendant did
The trial court instructed on the elements of the offense (see PIK Criminal, 1975 Supp. § 59.34) in language substantially following the statute and the information, and in addition, and over defendant's objection, gave instruction No. 7, as follows:
'To find that the defendant 'used a credit card', you must find either:
Defendant points out that subsections (b) and (c) of K.S.A. 21-3729(1) make it unlawful, under certain circumstances not here present, to use the number or description of a credit card. Subsection (a) contains no such language. Thus defendant claims that the evidence is insufficient to make out a prima facie case because there is no evidence that he displayed the actual credit card or 'used' it in making the 'purchase.' He likewise contends that paragraph (2) of instruction No. 7 misstates the law. Ingenious as this line of argument is, it is erroneous. 'Use' is a verb of common usage. Ordinarily it means to employ; to avail oneself of; to utilize; to carry out a purpose or action by means of; to put into action or service, especially to attain an end. Webster's New Collegiate Dictionary, 1975.
The state's evidence, liberally construed as it must be, shows that the defendant pilfered three items-the credit card, the social security card, and the driver's license. He then utilized all three without the consent of the owner for the purpose of obtaining fraudulently, on credit, the TV set. He availed himself of the credit card and took from it the credit account number for a fraudulent purpose. Such use of the card, we believe, is clearly proscribed by the statute. Instruction No. 7(2) required the jury to find that the defendant 'acquired a number from a credit card and used that number . . .' The taking of a number from a credit card for the stated purpose is an unlawful use of the card under the statute.
We are not unaware or unmindful of the rule requiring strict construction of penal statutes in favor of the persons sought to be subjected to their operation. State ex rel. v. American Savings Stamp Co., 194 Kan. 297, 398 P.2d 1011; State v. Bishop, 215 Kan. 481, 483, 524 P.2d 712. The rule simply means that ordinary words are to be given their ordinary meaning. It does not permit or justify a disregard of manifest legislative intention appearing from plain and unambiguous language. State v. Walden, 208 Kan. 163, 166, 167, 490 P.2d 370. Upon a careful reading of the statute, could one be led to believe that defendant's actions were not forbidden? Clearly not. He used the card to gain the account number. He represented that he had the card and that it had been issued to him. He usurped the credit that the card represented. The clear import of the statute here under consideration is to bar fraudulent use of credit cards, and that includes the fraudulent use disclosed by this record. We hold that the evidence discloses a prima facie violation of the statute, and that instruction No. 7 was not erroneous.
Defendant gave notice of alibi and listed as his alibi witness, Willie Coleman. He issued two subpoenas for Coleman, giving first his residence and later his employment address. The sheriff was unable to find the witness. Defendant counsel's secretary attempted to reach Coleman by telephone and talked with his sister, who agreed to tell him when to appear. When the defense was ready to present its case on the third day of trial, the witness failed to appear. The court granted a half-day continuance until 1:30 o'clock that afternoon. Counsel for the defendant then sought a two-week continuance which the court denied. There was no showing of what the witness would say, nor was there any indication that the witness could be reasonably expected to appear if a continuance were granted. On motion for new trial defense counsel stated...
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