State v. Wilcox

• Citation: 775 P.2d 177,245 Kan. 76
• Decision Date: 26 May 1989
• Docket Number: No. 62513,62513
• Parties: STATE of Kansas, Appellant, v. Kimberly A. WILCOX, a/k/a Kimberly Tillson, Appellee.
• Court: United States State Supreme Court of Kansas

Page 177

775 P.2d 177

245 Kan. 76

STATE of Kansas, Appellant, v. Kimberly A. WILCOX, a/k/a Kimberly Tillson, Appellee.

No. 62513.

Supreme Court of Kansas.

May 26, 1989.

Syllabus by the Court

1. When 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 controls unless it appears that the legislature intended to make the general act controlling.

2. K.S.A. 39-720 is the proper statute under which persons accused of welfare fraud should be prosecuted.

Gunnar A. Sundby, County Attorney, argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the brief for the appellant.

John R. Kurth, of J. David Farris Law Offices, of Atchison, argued the cause and was on the brief for the appellee.

MILLER, Chief Justice:

The defendant, Kimberly Wilcox, was charged in Atchison District Court with two counts of making a false writing. The trial judge dismissed the complaint, ruling that the charges were not brought under the proper statute. The State appeals pursuant to K.S.A. 22-3602(b)(1).

The facts are not in dispute. In September 1987, the State of Kansas, through the Department of Social and Rehabilitation Services (SRS), issued a warrant for the payment of $50 to Kimberly Wilcox to assist her in the care of her children. In October, she informed the Atchison SRS office that she had not received her September check. She then signed a lost warrant statement claiming she had never received the September check. In November, SRS discovered that the September check, with defendant's signature, had cleared the bank. At this time, defendant signed an affidavit that she had not received the September check. She also gave handwriting exemplars which were later compared to the signature on the check. Apparently the handwriting expert determined that defendant's signature was on the check. She was then charged with two counts of making a false writing.

Count I of the complaint charges in substance that on October 27, 1987, defendant made a written instrument, to-wit: STATEMENT-LOST WARRANT with knowledge that such writing falsely represents a material fact, with the intent to induce official action, in violation of K.S.A. 21-3711.

Count II of the complaint charges in substance that on November 27, 1987, defendant unlawfully made a written instrument, to-wit: AFFIDAVIT, with knowledge that such writing falsely states a material fact, with the intent to defraud, in violation of K.S.A. 21-3711.

K.S.A. 21-3711 provides:

"Making a false writing is making or drawing or causing to be made or drawn any written instrument or entry in a book of account with knowledge that such writing falsely states or represents some material matter or is not what it purports to be, and with intent to defraud or induce official action."

Making a false writing is a Class D felony.

A more specific statute is the statute on welfare fraud, K.S.A. 39-720. That statute reads:

"Any person who obtains or attempts to obtain, or aids or abets any other person to obtain, by means of a willfully false statement or representation, or by impersonation, collusion, or other fraudulent device, assistance to which the applicant or client is not entitled, shall be guilty of the crime of theft, as defined by K.S.A. 21-3701."

Welfare fraud, where less than $500 is involved, is a Class A misdemeanor.

Defendant waived preliminary hearing and at arraignment entered pleas of not guilty to the charges against her. A few days after arraignment, defendant filed a motion to dismiss. Defendant contended, inter alia:

"That the State's complaint ... which alleges two (2) counts of making a false writing in violation of K.S.A. 21-3711, is fatally defective. In support of this portion of Defendant's motion, Defendant states that it is the clear legislative intent as expressed by K.S.A. 39-720 and amendments thereto, that the Defendant be charged with the crime of theft as defined by K.S.A. 21-3701. Furthermore, that this is the most specific charge and is the one that should have been complained of."

The trial court sustained the motion and dismissed the action. The State appeals.

K.S.A. 39-720 is applicable to the case at bar and is intended to punish those who obtain or attempt to obtain public assistance by deception. See generally, State v. Allison, 173 Kan. 107, 244 P.2d 176 (1952). The statute which defendant was charged with violating, K.S.A. 21-3711, proscribing the making of a false writing, is not a specific statute concerning only cases of welfare fraud. Charges under that statute may range from false bank statements to false statements made under the campaign finance act. See State v. Kee, 238 Kan. 342, 711 P.2d 746 (1985), and State v. Doyen, 224 Kan. 482, 580 P.2d 1351 (1978). K.S.A. 21-3711 is a general statute, and includes a far greater range of activity than that which is included within the ambit of K.S.A. 39-720.

Kansas appellate courts have often said:

"When 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 controls unless it appears that the legislature intended to make the general act controlling. State v. Wilson, 11 Kan.App.2d 504, Syl. p 1, 728 P.2d 1332 (1986); see State v. Keeley, 236 Kan. 555, 560, 694 P.2d 422 (1985)." In re K.J., 12 Kan.App.2d 188, 189, 737 P.2d 874 (1987).

And see State v. Helms, 242 Kan. 511, 512, 748 P.2d 425 (1988); Thomas v. Board of Trustees of Salem Township, 224 Kan. 539, 545, 582 P.2d 271 (1978); and State v. Kliewer, 210 Kan. 820, Syl. p 8, 504 P.2d 580 (1972).

A recent case is State v. Micheaux, 242 Kan. 192, 747 P.2d 784 (1987). In that case, the issue was whether the trial court lacked jurisdiction because the information failed to allege a crime. The defendant contended that because the information failed to allege all of the elements of theft it was defective. We held that welfare fraud, defined by K.S.A. 39-720, is an independent crime. We said:

"In our judgment,...