State v. Montgomery

796 P.2d 559, 14 Kan. App. 2d 577, 1990 Kan. App. LEXIS 561
CourtCourt of Appeals of Kansas
DecidedJuly 27, 1990
DocketNo. 63,875
StatusPublished
Cited by2 cases

This text of 796 P.2d 559 (State v. Montgomery) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Montgomery, 796 P.2d 559, 14 Kan. App. 2d 577, 1990 Kan. App. LEXIS 561 (kanctapp 1990).

Opinion

Larson, J.:

Robert L. Montgomery appeals from his convictions by a jury of three counts of making a false writing contrary to K.S.A. 21-3711.

On June 15, 1988, Montgomery went to Jay Wolfe Honda in Kansas City, Kansas, with the intention of purchasing a Honda [578]*578Accord, a Pontiac Trans Am, and a pickup. He planned to trade in two cars and a pickup.

During the course of the negotiations, checks were filled out for the Honda and for the Trans Am. A third check was signed but not filled in. The third check was signed on June 15 but dated June 18.

The checks Montgomery executed were starter checks drawn on the account of Martin Clark at the Jackson County State Bank of Kansas City, Missouri. The checks did not have the name of the account holder printed on them. Montgomery did not know Clark and did not have permission to use the checks. The two completed checks were signed by Montgomery with the notation “hold for 24 hours” below the signature line.

Edward McFadden, Jay Wolfe’s sales manager, testified that Montgomery left the two checks for the amount of the cars with instructions to “run the check” if he did not have the cash as promised.

Montgomery testified that he told McFadden he did not have cash for the cars but would need to arrange financing. He intended to trade in the pickup he was driving and to leave it at the lot so the new vehicles would be held for him, but as he was cleaning out the pickup, he discovered the starter checks. Montgomery said McFadden suggested he leave checks rather than the pickup. Montgomery said he told McFadden the checks were not his, but Montgomery admitted agreeing tp the plan.

There were numerous conversations, telephone calls, attempts to obtain title to trade-ins, and other dealings between the parties not material to the issue herein which resulted in Jay Wolfe Honda reporting the Honda and Trans Am as stolen. The vehicles were ultimately returned. Montgomery was charged with but acquitted of two counts of felony theft, in addition to the three counts of making a false writing, for which he was found guilty.

Montgomery appeals the denial of his motions for new trial and judgment notwithstanding the verdict, and his application for probation.

Montgomery raises several issues on appeal, but we will consider only the one we deem controlling.

Montgomery was charged with making a false writing under K.S.A. 21-3711. Montgomery contends this is a general statute [579]*579and that he should have been charged under the more specific statute of giving worthless checks in violation of K.S.A. 21-3707. We agree.

K.S.A. 21-3711 provides:

Making a false writing. 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 “written instrument” is defined by K.S.A. 21-3110(25) as:

“any paper, document or other instrument containing written or printed matter or the equivalent thereof, used for the purposes of reciting, embodying, conveying or recording information, and any money, token, stamp, seal, badge, trademark, or other evidence or symbol of value, right, privilege or identification, which is capable of being used to the advantage or disadvantage of some person.”

K.S.A. 21-3707 relating to the giving of a worthless check provides in material part:

“(1) Giving a worthless check is the making, drawing, issuing or delivering or causing or directing the making, drawing, issuing or delivering of any check, order or draft on any bank, credit union, savings and loan association or depository for the payment of money or its equivalent with intent to defraud and knowing, at the time of the making, drawing, issuing or delivering of such check, order or draft, that the maker or drawer has no deposit in or credits with the drawee or has not sufficient funds in, or credits with, the drawee for the payment of such check, order or draft in full upon its presentation.
“(3) It shall be a defense to a prosecution under this section that the check, draft or order upon which such prosecution is based:
“(a) Was postdated, or
“(b) was given to á payee who had knowledge or had been informed, when the payee accepted such check, draft or- order, that the maker did not have sufficient funds in the hands of the drawee to pay such check, draft or order upon presentation.
“(4) Giving a worthless check is a class E felony . . . .”

The rule in Kansas regarding specific statutes versus general statutes is well settled.

“Repeals by implication are never favored and a general and specific statute should be read together and harmonized wherever possible. But to the extent of repugnancy between a statute dealing generally with a subject [580]*580and another statute dealing specifically with a subject, the specific statute is favored and controls. [Citations omitted.]” State v. Makin, 223 Kan. 743, 745, 576 P.2d 666 (1978).

See State v. Keeley, 236 Kan. 555, 560, 694 P.2d 422 (1985).

“ ‘A statute which relates to persons or things as a class is a general law, while a statute which relates to particular persons or things of a class is special.’ ” Seltmann v. Board of County Commissioners, 212 Kan. 805, 810, 512 P.2d 334 (1973) (quoting 82 C.J.S., Statutes § 163, p. 277).

The Kansas Supreme Court in State v. Wilcox, 245 Kan. 76, 775 P.2d 177 (1989), construed K.S.A. 21-3711 by holding that welfare fraud must be prosecuted under the specific statute, K.S.A. 39-720, and reasoned that making a false writing is not a specific statute because charges under it may range from falsifying bank statements to making false statements under the campaign finance act. See State v. Kee, 238 Kan. 342, 711 P.2d 746 (1985); State v. Doyen, 224 Kan.

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Related

State v. Maxon
79 P.3d 202 (Court of Appeals of Kansas, 2003)
State v. Williamson
853 P.2d 56 (Supreme Court of Kansas, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
796 P.2d 559, 14 Kan. App. 2d 577, 1990 Kan. App. LEXIS 561, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-montgomery-kanctapp-1990.