State v. Kliewer, 46825
| Citation | 504 P.2d 580,210 Kan. 820 |
| Decision Date | 09 December 1972 |
| Docket Number | No. 46825,46825 |
| Parties | STATE of Kansas, Appellee, v. Junior D. KLIEWER d/b/a K. & S. Motor Co., Appellant. |
| Court | United States State Supreme Court of Kansas |
Syllabus by the Court
1. Under K.S.A.1971 Supp. 21-3205 a person is criminally responsible for a crime committed by another if he intentionally aids, abets, advises, hires, counsels or procures the other to commit the crime. Under this section of the criminal code the person criminally responsible may be charged, tried and convicted as though he were a principal.
2. Under K.S.A. 60-460(o) a writing purporting to be a copy of an official record, or of an entry therein, is admissible to prove the content of the record as an exception to the hearsay rule, if it meets the requirements of authentication under K.S.A. 60-465. The rule is subject to K.S.A. 60-461.
3. Under K.S.A. 60-465 a writing purporting to be a copy of an official record, or an entry therein, meets the requirements of authentication if the judge finds that the writing purports to be published by authority of the nation, state or subdivision thereof, in which the record is kept; or evidence has been introduced sufficient to warrant a finding that the writing is a correct copy of the record or entry.
4. Under K.S.A. 60-404 a verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection.
5. In a criminal action the function of the Supreme Court on appeal is not to decide whether guilt was shown by the evidence beyond a reasonable doubt, but to ascertain whether there was, in the evidence, a basis for a reasonable inference of guilt.
6. A deceptive commercial practice is defined in K.S.A.1971 Supp. 21-4403(1) as the act, use or enjoyment by any person of any deception, fraud, false pretense, false promise, or knowing misrepresentation of a material fact, with the intent that others shall rely thereon in connection with the sale of any merchandise, whether or not any person has in fact been misled, deceived or damaged thereby.
7. It is made unlawful under K.S.A.1971 Supp. 8-611(b) for any person to disconnect, turn back, reset or replace the odometer, tachometer or any other device used for registering mileage or use of motor vehicles with the intent to reduce the number of miles or use thereof indicated on such gauge or device.
8. Both K.S.A.1971 Supp. 21-4403 and K.S.A.1971 Supp. 8-611(b) pertain to deception, fraud and misrepresentation of material fact. The one is general and the other is specific in dealing with deceptive practices. Where there is a conflict between a statute dealing generally with a subject and another statute dealing specifically with a certain phase of it, the specific statute will be favored over the general statute and controls.
9. Where a person is charged with unlawfully turning back the odometer on a motor vehicle as defined in K.S.A.1971 Supp. 8-611(b), he cannot also be charged with a deceptive commercial practice under K.S.A.1971 Supp. 21-4403 for the same wrongdoing.
Ray Hodge, of Beaty, Hodge & Wood, Wichita, argued the cause, and was on the brief for appellant.
David P. Calvert, Deputy County Atty., argued the cause, and Vern Miller, Atty. Gen., and Keith Sanborn, County Atty., were with him on the brief for appellee.
This is an appeal from a conviction on two misdemeanor counts: (1) Turning back the odometer used for registering the mileage on a motor vehicle contrary to K.S.A.1971 Supp. 8-611(b), and (2) Committing a deceptive commercial practice contrary to K.S.A.1971 sUpp. 21-4403. The appellant was sentenced to be confined in the Sedgwick County jail for a term not to exceed six months and to pay a fine of $1,000 on each count, the sentences to run concurrently.
On appeal the appellant challenges the sufficiency of the evidence, the admission of exhibits and the legal propriety of charging him with the foregoing two counts because the second is duplicitous of the first.
On the 7th day of August, 1971, Junior D. Kliewer (defendant-appellant) hired and paid Sheila Van Orman to reset and turn back the odometer on a green 1969 Ford automobile. Mrs. Van Orman gave a receipt to Kliewer for the money paid and kept a copy. Her copy of the receipt was admitted into evidence. It indicated the date of August 7, 1971, disclosing the work was performed on a 1969 'Ford Galaxie 500' for K. & S. Motors, and that $6 was paid for the service. Mrs. Van Orman performed the aforementioned services on the property of K. & S. Motor Company, a company owned by Kliewer. On the 17th day of August, 1971, Kliewer sold the automobile to Mr. Gilbert Schrag. On December 16, 1971, a three count complaint was filed against Kliewer charging him with violations of: (1) K.S.A.1971 Supp. 8-611(b); (2) K.S.A.1971 Supp. 8-611(a); and (3) K.S.A.1971 Supp. 21-4403.
The matter was tried to the court, upon waiver of a jury. At the trial Kliewer's motion requiring the state to elect between count two and count three was sustained, and the state dismissed count two.
The trial court heard testimony from four state's witnesses; Sheila Van Orman, the person who worked on the odometer of the 1969 Ford in question R. K. Scholle, the original owner of the car, Gilbert Schrag, who purchased the car from Kliewer, and John Dickey, an investigator for the Sedgwick County Attorney's office. Over the appellant's objection the trial court admitted two state's exhibits into evidence: Exhibit No. 2-the application for certificate of title by R. K. Scholle giving the identification number and the description of the vehicle here in question; and Exhibit No. 3-the application for certificate of title by Gilbert and/or Vida Schrag describing the vehicle in question by identification number and description. This application disclosed the vehicle was acquired by the Schrags from 'K. S. Motor Co.', 1620 North Broadway, Wichita, Kansas; and that it was accepted by the McPherson County Treasurer on the 19th day of August, 1971.
Assuming state's exhibits 2 and 6 were properly admitted by the trial court, the evidence identifies a 1969 Ford Galaxie 500 automobile, green in color, by identification number, and shows a complete chain of possession from the original purchaser, R. K. Scholle, through Kliewer to the Schrags. Scholle testified he purchased the vehicle new, was engaged in the business of a mail carrier, and when he sold the vehicle it registered over 99,000 miles on the odometer. Mrs. Van Orman testified she turned the odometer back on the vehicle in question for which she gave a receipt to Kliewer evidencing payment of $6 to her for the services. Gilbert Schrag testified concerning his knowledge of the vehicle, its purchase, and acknowledged his signature on state's exhibit No. 3, a copy of his application for title. John Dickey described the 1969 Ford in detail, having investigated it on the date of trial. He gave its identification number and testified the odometer reading was 56,9020.2 miles on the date of trial.
On the 25th day of February, 1972, the trial court found Kliewer guilty as charged on count one and on count three. Kliewer's motion for a new trial was subsequently overruled and he has duly perfected an appeal to this Court.
Count one of the information charges the appellant with unlawfully, willfully, disconnecting, turning back, and resetting the odometer on a 1969 Ford Galaxie 500 in violation of K.S.A.1971 Supp. 8-611(b). He was, therefore, charged as the principal in turning back the odometer. The evidence showed that he hired and procured Sheila Van Orman to actually perform the work. This is in accordance with K.S.A.1971 Supp. 21-3205 which states in part:
'(1) A person is criminally responsible for a crime committed by another if he intentionally aids, abets, advises, hires, counsels or procures the other to commit the crime.
'(3) A person liable under this section may be charged with and convicted of the crime although the person alleged to have directly committed the act constituting the crime lacked criminal capacity or has not been convicted. . . .'
The language of the statute clearly conveys the legislative intent enabling accessories, abettors, etc., to be charged and convicted of the crime as principals. In this case the appellant hired Mrs. Van Orman. The court's attention was first directed to 21-3205, supra, in State v. Edwards, 209 Kan. 681, 683, 498 P.2d 48, where it was discussed and applied. Under 21-3205, supra, it is unnecessary that the appellant be advised of its provisions before they are applied and given effect. The prior Kansas Statutory Law and the decisions construing it on the point asserted by the appellant-that he was charged as a principal, whereas the evidence at the trial only tended to incriminate him as an accessory-is consistent with the new code provision. The prior law was last reviewed by this Court in State v. Ogden, 210 Kan. 510, 502 P.2d 654, filed November 4, 1972.
Under 21-3205, supra, one who intentionally aids, abets, advises, hires, counsels or procures another to commit an offense may be charged, tried and convicted as though he were a principal.
The Judicial Council note to 21-3205, supra, states the rule was intended to supersede former K.S.A. 21-105, which related to principals in the second degree and accessories before the fact. This section does not use the term 'principal' but states the rule in terms of criminal liability. It makes no change in the substance of the prior law.
The appellant argues he came to trial to defend the charge that he turned back the odometer. He contends 'other' was not mentioned in the information as required by K.S.A.1971 Supp. 21-3110(2), so that he could be tried as an accessory. The statute cited by the appellant is a...
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