concurring: I agree with the majority that State v. Finch, 223 Kan. 398, 573 P.2d 1048 (1978), requires us to reverse the conviction. I am, however, in agreement with the dissenting opinion in Finch, except for that part of the dissent expressing a view that the person who checked out the accused at the cash register had no knowledge of the “tag” switch and was therefore deceived. I do not believe a valid argument sufficient to establish deception can be made from the fact that an employee at the checkout stand is deceived when corporation management has knowledge of the underlying facts. A corporation does business through agents, and when the security officer and managerial employees have knowledge of facts indicating a theft is in progress then the corporation as owner would necessarily have knowledge; and the fact that the corporation chose not to enlighten a particular employee would not be sufficient to prove the corporate victim was actually deceived.
In adopting K.S.A. 1979 Supp. 21-3701, the legislature, in my opinion, intended to do away with many of the technicalities that distinguished larceny, theft by deception, embezzlement, false pretenses, extortion, receiving stolen property, and the like. When the court requires elements not included in the statute, it can, as it does here, lead to results that were never intended by the legislature.
*566If the county attorney had, as in retrospect he should have, charged the defendant with obtaining or exerting unauthorized control over property (K.S.A. 1979 Supp. 21-3701[a]) and the jury had convicted defendant of that offense, we would unhesitatingly affirm that conviction, for he was exerting unauthorized control and it matters not whether an accused takes an item out of a store in his own pocket or concealed in a box as long as the necessary criminal intent is present; and this would be so under subsection (a) even though every employee in the store had been aware that the defendant had the item in his possession from the moment it was removed from the shelf until the arrest occurred.
To me, it seems inconsistent to say that one can have theft under subsection (a) by exerting unauthorized control over property when the intended victim is not deceived because of having full knowledge of what the thief intends to do and then say one can be guilty only of a class E felony (attempted theft) under subsection (fe) when the victim is not deceived, when the only statutory distinction is whether an accused obtains or exerts unauthorized control over property as opposed to his obtaining control over the property by deception. Certainly the accused had the necessary criminal intent to deceive the victim. The statute does not specifically require the intended victim to be deceived, and to graft that requirement to the statute is, in my opinion, contrary to legislative intent in adopting the statute.