State v. Kunis

PARKS, Presiding Judge,

dissenting:

I must respectfully dissent to the majority opinion. The majority correctly cites State v. Smith, 539 P.2d 754 (Okl.Cr.1975), and explains that two provisions which regulate the same subject matter should both be given effect if such effect does not defeat the legislative intent. This Court has also held that “two statutes in apparent conflict should be construed, if reasonably possible, to allow both to stand and be effective.” Brown v. State, 314 P.2d 362, 365 (Okl.Cr.1957).

The majority’s construction of the statutes in the instant case is erroneous, I believe Section 1541.1 prohibits anyone from obtaining or attempting to obtain property:

by means or by use of any trick or deception, or false or fraudulent representation or statement or pretense, or by any other means or instruments or device commonly called the “confidence game”, or by means or use of any false or bogus checks, or by any other written or printed or engraved instrument or spurious coin, ...

21 O.S.Supp.1982, § 1541.1 Conversely, section 1541.6 expressly concerns “refund fraud.” The conduct which is proscribed in this section is the giving of “a false or fictitious name or address as his own, or giv[ing] the name or address of any other person without the knowledge and consent of that person, ...” 21 O.S.Supp.1984, § 1541.6 The conduct described in these two sections is clearly distinguishable.

The majority justifies its reasoning by asserting that section 1541.6 is an attempt statute. The majority further asserts that the language of the section, viz., “for the purpose” of obtaining, indicates only the offense of attempt. In my opinion, this also is erroneous. Section 1541.6, in entirety, provides:

A. No person shall give a false or fictitious name or address as his own, or give the name or address of any other person without the knowledge and consent of that person, for the purpose of obtaining or attempting to obtain a refund for merchandise from a business establishment.

This Court has held that “the word ‘or’ in penal statutes is seldom used other than as a disjunctive.” Magness v. State, 476 P.2d 382, 383 (Okl.Cr.1970). Hence, this section describes both the attempted and completed conduct.

The statutes should, therefore, be given effect independent of one another. The order of the trial court, granting appellee’s application for post-conviction relief, should be affirmed. I therefore respectfully dissent.