State v. ColeState v. Cole
- Reporters:
- , ,
- Before:
- Pierd
The opinion of the court was delivered by
PIerd, J.:The State appeals from the district court’s grant of defendant’s motion for dismissal and discharge prior to the presentation of evidence at the preliminary hearing.
Appellee Steven Cole, an inmate in the Sedgwick County Jail, was charged with possession of a weapon without authorization or consent of the jailer in violation of
Specifically, Cole argued the provision in
The district court determined the statute was “poorly worded” and, if strictly construed, precluded imposition of charges against the defendant. The State appeals the district court’s dismissal of the charges against the defendant.
The sole issue to be considered on appeal is whether the district court erred in finding
Let us examine
“Traffic in contraband in a penal institution is introducing or attempting to introduce into or upon the grounds of any institution under the supervision and control of the director of penal institutions or any jail, or taking, sending, attempting to take or attempting to send therefrom or any unauthorized possession while in aforesaid institution or distributing within any aforesaid institution, any narcotic, synthetic narcotic, drug, stimulant, sleeping pill, barbiturate, nasal inhaler, alcoholic liquor, intoxicating beverage, firearm, ammunition, gun powder, weapon, hypodermic needle, hypodermic syringe, currency, coin, communication, or writing without the consent of the warden, superintendent or jailer.
“Traffic in contraband in a penal institution is a class E felony.” (Emphasis added.)
Appellee argues, and the trial court held, the act fails to include “jails” in that portion of the statute referring to unauthorized possession of contraband. He argues the act prohibits only unauthorized possession of contraband in the “aforesaid institution.” Since the statute previously refers to “any institution under the supervision and control of the director of penal institutions or any jail,” (emphasis added) Cole argues the term “aforesaid institution” refers only to institutions under the control of the director of penal institutions.
Before considering the arguments of the parties, let us review the rules of statutory construction.
The fundamental rule of statutory construction is that the purpose and intent of the legislature governs when the intent can be ascertained from the statute. In construing statutes, the legislative intention is to be determined from a general consideration of the entire act. Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible.
State v. Du
Penal statutes must be strictly construed in favor of persons sought to be subjected to their operations. The rule of strict construction simply means that ordinary words are to be given their ordinary meaning. Such a statute should not be read to add that which is not readily found therein or to read out what as a matter of ordinary English language is in it. State v. Zimmerman & Schmidt, 233 Kan. 151, 155, 660 P.2d 960 (1983); National Cooperative Refinery Ass’n v. Board of McPherson County Commr‘s, 228 Kan. 595, 597, 618 P.2d 1176 (1980).
The State contends that we need not interpret
In Roseberry, the defendant was charged under K.S.A.‘21-3826 with feloniously introducing marijuana into a county jail without the consent of the jailer. The defendant successfully argued in the trial court that the use of the term “penal institutions” in the title of the act was not broad enough to cover the subject matter of the statute which includes both “penal institutions” and “jails.” Defendant contended that the statute violated Article 2, Section 16 of the Kansas Constitution, which mandates that no bill shall contain more than one subject and the subject of the bill should be expressed in the title. We held that when the two words “penal institutions” are used without further qualification, they refer to penal institutions under the supervision of both state and local authorities. Accordingly, we held:
“The title or enacting clause of House Bill No. 1853, Laws of 1970, Chapter 127 (K.S.A. 21-3826 ) is sufficiently broad to cover both state penal institutions and local penal institutions (jails)* and is not violative of Article 2, Section 16, of the Constitution of the State of Kansas.” 222 Kan. at 717.
While it is true the court in
Roseberry
was concerned with the constitutionality of
“The general term ‘penal institution’ is not a term of art. It is general both in nature and meaning. ‘Penal’ is commonly understood as referring to that which inflicts punishment. ‘Institution is commonly used in referring to an establishment of a public nature and extends to buildings in use for the purpose of such institution. (Webster’s Third New International Dictionary Unabridged.) Statepenal institutions are generally under the control and supervision of the State Director of Penal Institutions. Local penal institutions, commonly referred to as jails, are generally under the control and supervision of a county or city officer referred to as a jailer. When the two words ‘pemd institutions’ are used without further qualification they refer to penal institutions under the supervision of both state and local authorities.” 222 Kan. at 717. (Emphasis added.)
The word “institution,” if given its ordinary meaning (as required by the rules of statutory construction), is broad enough to encompass county jails. Therefore, the prohibition in
Considering the plain language of
Finally, the last phrase of
Appellee argues that had the legislature intended to prohibit the possession of contraband in jails, it could have added the phrase “or any jail” as it did in the preceding clause. Cole suggests the legislature intended possession of contraband to be
The judgment of the trial court is reversed and this case remanded for further proceedings consistent with this decision.