State v. Walls

• Decision Date: 07 December 1972
• Docket Number: No. 42305,42305
• Citation: 81 Wn.2d 618,503 P.2d 1068
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Petitioner, v. Kenneth Wayne WALLS, Respondent.

Page 618

81 Wn.2d 618

503 P.2d 1068

The STATE of Washington, Petitioner, v. Kenneth Wayne WALLS, Respondent.

No. 42305.

Supreme Court of Washington, En Banc.

Dec. 7, 1972.

Rehearing Denied Feb. 15, 1973.

Arthur Eggers, Pros. Atty.,

Jerry A. Votendahl, Walla Walla, for petitioner.

Sherwood, Tugman, Gose & Reser, Phelps R. Gose, Walla Walla, for respondent.

HUNTER, Associate Justice.

The defendant (respondent), Kenneth Wayne Walls, was charged in the Superior Court for Walla Walla County with the crime of grand larceny by false representations, the information being filed September 27, 1968, and alleging as follows:

That the said Kenneth Wayne Walls in the county of Walla Walla, State of Washington, on or about the 17th day of September 1968, being then and there did wilfully, unlawfully and feloniously with intent to deprive and defraud, fraudulently and feloniously by false and fraudulent representation did then and there obtain from the Royal Motor Inn goods and merchandise in the amount of $219.99, contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Washington.

The record shows that the defendant accumulated charges in the amount of $219.99 at a restaurant purportedly associated with the Royal Motor Inn in Walla Walla. He presented a BankAmericard belonging to one John J. Keenan to cover the charges and represented that he had authority to sign the draft on Keenan's behalf. The draft was subsequently returned to the National Bank of Commerce unpaid. In view of our disposition of the case, it would serve no good purpose to detail the lengthy series of events involving a spontaneous business venture which began for the defendant in Reno, Nevada, and which led to the activity for which he was charged.

The defendant was tried before a jury and convicted on one count of grant larceny. His motion for a new trial was denied. On appeal, the Court of Appeals, Division Three, reversed the conviction and dismissed the case, holding that the defendant cannot be convicted of a felony for obtaining goods and merchandise from a restaurant by false and fraudulent representation under the larceny statutes, specifically RCW 9.54.010(2), since the crime of defrauding an innkeeper is exclusively a misdemeanor or gross misdemeanor under RCW 9.45.040 and RCW 19.48.110, respectively. See State v. Walls, 6 Wash.App. 34, 492 P.2d 236 (1971). From that decision the state timely filed its petition for rehearing, which was denied. The state thereafter filed a petition for review in this court, which was granted.

The basic issue in this case is whether the defendant was improperly charged and convicted of a felony under the larceny statutes, RCW 9.54.010(2) and RCW 9.54.090 (grand larceny), for obtain goods and merchandise from the Royal Motor Inn by false and fraudulent representations, when such acts are prohibited by RCW 9.45.040 and RCW 19.48.110 as a misdemeanor or gross misdemeanor.

The relevant portions of the statutes with which we are concerned are as follows:

RCW 9.54.010 Every person who, with intent to deprive or defraud the owner thereof--

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(2) Shall obtain from the owner or another the possession of or title to any property, real or personal, by color or aid of any order for the payment or delivery of property or money or any check or draft, knowing that the maker or drawer of such order, check or draft was not authorized or entitled to make or draw the same, or by color or aid of any fraudulent or false representation, personation or pretense or by any false token or writing or by any trick, device, bunco game or fortune-telling; or

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Steals such property and shall be guilty of larceny.

RCW 9.54.090 Every person who steals or unlawfully obtains, appropriates, brings into this state, buys, sells, receives, conceals, or withholds in any manner specified in RCW 9.54.010--

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(6) Property of the value of more than seventy-five dollars, in any manner whatever; shall be guilty of grand larceny and be punished by imprisonment in the state penitentiary for not more than fifteen years.

RCW 9.45.040 Every person who shall obtain any food, lodging or accommodation at any hotel, restaurant, boarding house or lodging house without paying therefor, with intent to defraud the proprietor or manager thereof, or who shall obtain credit at a hotel, restaurant, boarding house or lodging house by color or aid of any false pretense, representation, token or writing, or who after obtaining board, lodging or accommodation at a hotel, restaurant, boarding house or lodging house, shall abscond or surreptitiously remove his baggage therefrom without paying for such food, lodging or accommodation, shall be guilty of a misdemeanor.

(The above three statutes were a part of the Laws of 1909, ch. 249.)

RCW 19.48.010 Any building held out to the public to be an inn, hotel or public lodging house or place where sleeping accommodations, whether with or without meals, or the facilities for preparing the same, are furnished for hire to transient guests, in which fifteen or more rooms are used for the accommodation of such guests, shall for the purposes of this chapter and chapter 60.64, or any amendment thereof, only, be defined to be a hotel, and whenever the word hotel shall occur in this chapter and chapter 60.64, or any amendment thereof, it shall be construed to mean a hotel as herein described.

RCW 19.48.110 Any person who shall wilfully obtain food, money, credit, lodging or accommodation at any hotel, inn, boarding house or lodging house, without paying therefor, with intent to defraud the proprietor, owner, operator or keeper thereof; or who obtains food, money, credit, lodging or accommodation at such hotel, inn, boarding house or lodging house, by the use of any false pretense; or who, after obtaining food, money, credit, lodging, or accommodation at such hotel, inn, boarding house, or lodging house, removes or causes to be removed from such hotel, inn, boarding house or lodging house, his or her baggage, without the permission or consent of the proprietor, manager or authorized employee thereof, before paying for such food, money, credit, lodging or accommodation, shall be guilty of a gross misdemeanor.

(The above two statutes were a part of the Laws of 1915, ch. 190.)

The defendant contends that procuring meals by fraud from a restaurant or hotel comes exclusively within the provisions of RCW 9.45.040 or RCW 19.48.110; that therefore the information was invalid on its face and the defendant could not be convicted thereunder. We agree.

It is the general rule that a statute is to be considered as a whole when ascertaining its intended effect, Markham Advertising Co. v. State, 73 Wash.2d 405, 439 P.2d 248 (1968); 2 J. Sutherland Statutory Construction § 4073 at 336 (3d ed. F. Horack 1943). We have previously held that where general and special laws are concurrent, the special law applies to the subject matter contemplated by it to the exclusion of the general law. Mercer Island v. Walker, 76 Wash.2d 607, 458 P.2d 274 (1969); City of Airway Heights v. Schroeder, 53 Wash.2d 625, 335 P.2d 578 (1959); State v. Davis, 48 Wash.2d 513, 294 P.2d 934 (1956); State v. Becker, 39 Wash.2d 94, 234 P.2d 897 (1951). And a related rule holds that where a general statute and a subsequent special law relate to the same subject, the provisions of the special statute must prevail. Mercer Island v. Walker, Supra; State v. Collins, 55 Wash.2d 469, 348 P.2d 214 (1960). Both RCW 9.54.010(2) and RCW 9.45.040, although having earlier origins, were a part of the same legislative enactments, Laws of 1909, ch. 249, § 349 and § 373, respectively, the first comprehensive criminal code passed by the legislature. As such, the two sections are to be construed so as to produce a harmonious whole. It is clear that in addition to the larceny statutes in RCW 9.54, the legislature established a special criminal category under RCW 9.45.040 for the procurement of food, lodging, accommodations, or credit by fraud from any hotel, restaurant, boarding house or lodging house. RCW 9.45.040, therefore, is a special law which is applicable to the subject matter contemplated by it to the exclusion of the general larceny statutes.

The legislature further, by Laws of 1915, ch. 190, enlarged upon Laws of 1890, a prior enactment, and established a complete act dealing with the liability and protection of hotel keepers, innkeepers and lodging house keepers. Specifically, section 7 of the Laws of 1915, ch. 190, which is now codified as RCW 19.48.110, makes the defrauding of a hotel, inn, boarding house or lodging house, a gross misdemeanor. While RCW 19.48.110 contains elements similar to those of RCW 9.45.040, the former is distinguishable in that it encompasses only that class of inn, hotel or lodging house comprised of 15 or more rooms used for the accommodation of transient guests, as defined under RCW 19.48.010 in the same 1915 enactment. RCW 19.48.110, therefore, supersedes RCW 9.45.040 insofar as it applies to inns, hotels, or lodging houses comprised of 15 or more rooms, and it is also a special law applicable to the subject matter contemplated by it to the exclusion of the general larceny statutes.

From an examination of the foregoing statutes, it is clear that the defendant was erroneously charged and convicted under inapplicable larceny statutes. There is no evidence in the record to indicate the number of rooms in the Royal Motor Inn and we do not know whether, in fact, the restaurant was a part of the operation of the Royal Motor Inn which would bring the alleged crime under the purvue of RCW 19.48.110 rather than RCW 9.45.040. It cannot be determined therefore, whether the defendant should have been charged under the one or the other innkeeper's statute, but in any event, he was improperly charged and convicted under the general larceny statutes.

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