State v. WilcoxState v. Wilcox
- Reporters:
- , ,
- Before:
- Miller
The opinion of the court was delivered by
Miller, C.J.:
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 wеre not brought under the proper statute. The State appeals pursuant to
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 thе 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.
Cоunt I of the complaint charges in substance that on October
Count II of the complaint charges in substance that on Nоvember 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
“Mаking 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,
“Any persоn who obtains or attempts to obtain, or aids or abets any other person to obtain, by means of a willfully false statement or reprеsentation, or by impersonation, collusion, or other fraudulent device, assistance to which the applicant or client is not еntitled, shall be guilty of the crime of theft, as defined byK.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 ofK.S.A. 21-3711, is fatally defectivе. In support of this portion of Defendant’s motion, Defendant states that it is the clear legislative intent as expressed byK.S.A. 39-720 and amendments thеreto, that the Defendant be charged with the crime of theft as defined byK.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.
Kansas appellate courts have often said:
“When there is a conflict betwеen a statute dealing generally with a subject and another statute dealing specifically with a certain phase of it, the speсific statute controls unless it appears that the legislature intended to make the general act controlling. State v. Wilson, 11 Kan. App. 2d 504, Syl. ¶ 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. ¶ 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 contendеd that because the information failed to allege all of the elements of theft it was defective. We held that welfare fraud, definеd by
“In our judgment, there is . . . language in the statute which demonstrates that the legislative intent was to make a charge underK.S.A. 39-720 an independent crime of welfare fraud, and that the purpose of referring to 21-3701 was simply to include welfare fraud in the general category of theft offense and to carry the same penalties as theft. It is clear from the history ofK.S.A. 39-720 that that statute was enacted to create an independent crime of wеlfare fraud to be utilized as a means of enforcing the Social Welfare Act which was enacted by the Kansas Legislature in 1937.” 242 Kan. at 200. (Emphasis supplied.)
Another somewhat similar case, which we find persuasive, is
State v. Wilson,
11 Kan. App. 2d 504, 728 P.2d 1332 (1986). Wilson, a state employee, was charged with presenting a false claim, in violation of K.S A. 21-3904, and with presenting a claim for expenses which werе not in fact incurred, in violation of
The State is contending that Wilcox was attempting, both by the lost warrant statement аnd by the affidavit, to secure payment of an additional $50 in public assistance to which she was not entitled. Such acts were clearly within the scope of
The general statute and the specific statute clearly conflict, and the specific statute must control unless it appеars that the legislature intended to make the general act controlling. We find nothing to indicate that the legislature had such intent. The prоper statute under which to charge this defendant was
The State complains that no leave to amend the complaint was granted by the trial court. The State did not ask leave to amеnd; instead, it filed this appeal. The trial court did not err in failing to grant leave to amend in the absence of a request therefor by the State.
The judgment is affirmed.