State v. V. F. W. Post No. 3722

• Decision Date: 02 November 1974
• Docket Number: No. 47544,47544
• Citation: 527 P.2d 1020,215 Kan. 693
• Parties: STATE of Kansas, Appellant, v. V. F. W. POST NO. 3722, Appellee.
• Court: Kansas Supreme Court

Page 1020

527 P.2d 1020

215 Kan. 693

STATE of Kansas, Appellant, v. V. F. W. POST NO. 3722, Appellee.

No. 47544.

Supreme Court of Kansas.

Nov. 2, 1974.

Syllabus by the Court

1. Rules of statutory construction are considered and applied to the provisions of K.S.A.1973 Supp. 21-3203(2) relating to a defense based on mistake of law and the appeal by the state in a criminal prosecution is sustained.

2. Under the provisions of K.S.A.1973 Supp. 21-3203(2) a person's belief that his conduct does not constitute a crime because of reliance on a court decision is a defense only when he has relied on a decision of the Supreme Court of Kansas or of a United States appellate court later overruled. Such belief is not a defense when reliance is based on a decision of a district, county or other inferior court of the state.

3. In the absence of any showing that a slot machine containing money was seized in violation of constitutional guarantees against unlawful search and seizure the state is entitled to an order carrying out the provisions of K.S.A.1973 Supp. 22-2512 which directs that the money taken from the slot machine be paid to the county treasurer.

Patrick L. Connolly, Asst. Atty. Gen., argued the cause, and Vern Miller, Atty. Gen., and William F. Grant, Asst. Atty. Gen., were with him on the brief for appellant.

Fred D. Swoyer, Swoyer & Simms, Belleville, argued the cuase, and Douglas G. Simms, Belleville, was with him on the brief, for appellee.

FROMME, Justice:

The state appeals pursuant to K.S.A.1973 supp. 22-3602 on two questions of law reserved in a criminal prosecution. The charge filed was for possession of illegal gambling devices. Defendant was acquitted and the guilt or innocence of the defendant is no longer an issue. The defendant, V. F. W. Post No. 3722 of Belleville, Kansas, admitted possession of three slot machines but defended under K.S.A.1973 Supp. 21-3203(2). The statute provides:

'(2) A person's reasonable belief that his conduct does not constitute a crime is a defense if:

'(a) The crime is defined by an administrative regulation or order which is not known to him and has not been published in the Kansas administrative regulations or an annual supplement thereto, as provided by law; and he could not have acquired such knowledge by the exercise of due diligence pursuant to facts known to him; or

'(b) He acts in reliance upon a statute which later is determined to be invalid; or

'(c) He acts in reliance upon an order or opinion of the supreme court of Kansas or a United States appellate court later overruled or reversed;

'(d) He acts in reliance upon an official interpretation of the statute, regulation or order defining the crime made by a public officer or agency legally authorized to interpret such statute.'

The case was tried to the court and at the close of all evidence the court ruled that a proper defense had been established under paragraph (2) sub-paragraph (d) of the statute. The court found the V. F. W. Post had a reasonable belief its conduct did not constitute a crime because the Post installed the slot machines on its premises after the District Court of Allen County, Kansas, had ruled that slot machines were included under the bingo exception of K.S.A.1973 Supp. 21-4302.

The bingo exception mentioned above provided that a bet or gambling purposes does not include a bingo game 'or a game of chance with comparable characteristics' when it is being operated by an organization, such as a V. F. W. post, when no part of the gross receipts inures to the benefit of any of the members or employees of the organization. The Allen county court held that slot machines were games of chance with comparable characteristics. That decision was pending on appeal when the present prosecution was initiated in Republic County. The Allen county decision was overturned by this court in State v. Nelson, 210 Kan. 439, 502 P.2d 841. In Nelson this court held that the bingo exception was unconstitutional and that possession of a gambling device, such as a slot machine, was a crime under K.S.A.1973 Supp. 21-4307 regardless of whether possession was by an organization or an individual.

Before proceeding further we should consider a motion to dismiss this appeal which appellee filed. It is based on the ground the state failed to properly reserve the questions for appeal to this court. The appellee contends no proper foundation was laid by the state during the trial because it failed to object to that theory of the defense and permitted evidence to be introduced without objection. It was not until the court held the defense had been established under the statute (K.S.A.1973 Supp. 21-3203(2)(d)) that the state announced its intention to reserve the questions for appeal.

In this state an appeal by the state in a criminal case is a matter of right under K.S.A.1973 Supp. 22-3602. No formal procedural steps are required by the statute to perfect the right. A question reserved, however, must be one which calls for an answer which will aid in the correct and uniform administration of the criminal law. (State v. Glaze,200 Kan. 324, 436 P.2d 377.) A question reserved by the state will not be entertained on appeal merely to demonstrate errors of a trial court in rulings adverse to the state. (State v. Chittenden, 212 Kan. 178, 510 P.2d 152; State v. Kopf, 211 Kan. 848, 508 P.2d 847.) The state is required to bring a sufficient record to this court to permit review. (State v. Mitchell, 143 Kan. 322, 54 P.2d 917.) This requires proper and timely objections be lodged, the trial court be advised of the basis for the objections and the appeal be properly perfected. (State v. Simpson, 169 Kan. 527, 531, 220 P.2d 175.)

In the present case the objections were made to the trial court's interpretation of statutes. Sufficient evidentiary background appears both in the evidence and in the findings of the trial court to properly review these questions. The bases for the state's objections were explained by the state in the trial court. The statutes have not previously been construed by this court. This court's interpretation of the statutes should aid in the correct and uniform administration of the criminal law in Kansas. The motion to dismiss the appeal is denied.

A primary rule for the construction of a statute is to find the legislative intent from the language, and where the language used is plain and unambiguous and also appropriate to an obvious purpose the court should follow the intent as expressed by the words used. (City of Overland Park v. Nikias, 209 Kan. 643, 498 P.2d 56.) The intention of the legislature is to be determined, not from any single paragraph of the act but from a general consideration of the act as a whole. All of the material parts of the same act and all of its provisions or paragraphs must be construed as bearing upon the purpose for which the act was passed. (Greenwood v. Estes, Savings & Loan Commissioner, 210 Kan. 655, 504 P.2d 206.)

The provisions of K.S.A.1973 Supp. 21-3203 were enacted in 1969 as part of the Kansas Criminal Code. The notes following this section indicate the statute may have been taken from the Illinois Criminal Code. We find no case law in Illinois which bears upon a construction of this particular statute.

We turn now to the statute under consideration. Paragraph (2) of 21-3203, supra provides that a person's reasonable belief that his conduct does not constitute a crime is a defense if such belief was a result of any one of four situations. The first (sub-paragraph (a)) is when the crime is proscribed in an unpublished administrative regulation of which defendant had no knowledge. The second (sub-paragraph (b)) is when the defendant had acted in reliance upon a statute which is later declared invalid. The third (sub-paragraph (c)) is when the defendant has acted in reliance upon a court decision. The fourth (sub-paragraph (d)) is when the defendant has acted in reliance upon an official interpretation of a statute made by a public officer or agency legally authorized to interpret the statute, regulation or order. This summary is meant only to give an overview of paragraph (2).

In our present case the district judge in applying sub-paragraph (d) reasoned as follows: A public officer is defined in the general definition section of the Kansas Criminal Code (21-3110) to include a judicial officer. A judicial officer by definition includes any judge, justice of peace or other magistrate, juror, master or any other person appointed by a judge or court to hear or determine a cause or controversy. Under the general definition section of the Kansas Code of Criminal Procedure (22-2202) a magistrate includes a judge of the district court. The judge of the district court of Allen county was called upon and was legally authorized to interpret the bingo exception statute while trying the case of State v. Nelson, supra. His interpretation of that statute placed slot machines within the bingo exception as being games of chance with comparable characteristics. Under such interpretation a V. F. W. post could legally install and possess slot machines. The defendant acted in reliance on that decision believing its conduct did not constitute a crime.

Such reasoning appears on the surface to be entirely logical. But the state points out that reliance upon the opinion or decision of a court is covered by sub-paragraph (c) of the act and is limited to opinions of the Supreme Court of Kansas and those of a United States appellate court. If sub-paragraph (d) is interpreted to include opinions and orders of all magistrates and judges, as interpreted by the district court of Republic County, the reasoning would extend this defense to reliance on decisions of magistrates and judges of every court in this state....