dissenting.
I dissent from the majority opinion. I would reverse the judgment of the District Court for the reason that there was insufficient evidence to support a conviction under § 45-6-301(3), MCA.
Under the above statute, the youth in this case was charged with theft for obtaining control over stolen property knowing the property to have been stolen by another. However, there was no evidence that the copper wire which the youth was accused of having illegally received was stolen by another. According to our prior case law, the absence of that proof was fatal to the State’s case.
In State v. Hernandez (1984), 213 Mont. 221, 224, 689 P.2d 1261, 1262, we held that to sustain a conviction under the statute with which this youth was charged “requires proof that the property must have been stolen by someone other than the receiver.”
Here there was no evidence of who stole the copper wire. In fact, during his closing argument the prosecutor argued that:
[I]f he [E.B.G.] stole the wire he is guilty of theft. And another does not mean that if he stole the wire he is not guilty of this offense, that there was anyone else involved in it[,] he is just as guilty of this offense.
However, that argument was incorrect as a matter of law. If the youth in this case actually participated in the theft of the wire, then he was, in effect, convicted of receiving the wire from himself. In Hernandez, we ruled out that scenario when we held that:
*103Here the charge essentially was that defendant received stolen property from himself. Defendant was charged with "... purposely or knowingly obtaining control over stolen property... knowing the property to have been stolen by Matt Hernandez ... [the defendant here].” In People v. Berg (1968), 91 Ill. App. 2d 166, 234 N.E.2d 400, the Illinois court set forth the elements to prove receipt of stolen property, one of them being a requirement that the property was stolen by a person other than the one charged with receiving the property. Applied here, the defendant could not be convicted of stealing the coins, and later be convicted of receiving those coins from himself.
Hernandez, 689 P.2d at 1262-63.
The State argues on appeal that this case is distinguishable from Hernandez since in that case there was actual proof that the defendant had stolen the coins, and in this case, the State offered no proof that E.B.G. participated in the actual theft of the copper wire. However, the fact that the State did not attempt to disprove its case did not relieve it of the obligation to offer proof on each element of the crime with which E.B.G. was charged. To sustain a conviction, the State has the burden of proving that every element of the crime occurred beyond a reasonable doubt. In this case, one such element is that the property was received by the youth from another.
The State also argues that based on the number of footprints found at the scene of the crime, and the weight and length of the wire that was stolen, there was evidence that more than one person participated in the theft of the wire. However, the mere fact that several people participated in the theft of the wire does nothing to suggest that E.B.G. was not among those several people. If he was, he was just as guilty of theft under § 45-6-301(1), MCA, as the others who participated, and according to Hernandez, could not be subject to criminal conviction for stealing the wire and later be convicted of receiving the wire from himself.
Finally, the State argues, and the majority seems to accept, that since E.B.G. stated in a tape recorded interview with the investigating officer that he had in fact received the wire from Justin Smith, that statement was sufficient to prove that he received the wire from another. However, both the State and the majority are selective about the weight they chose to give to E.B.G.’s statement about Smith.
When discussing the credibility of that statement for other purposes, the State referred to it as an “incredible explanation of how E.B.G. acquired the wire.” In its brief, the State pointed out that:
*104E.B.G. told Skillen that ENT had accumulated some of the wire and Justin Smith had brought in “quite a bit” of the wire. E.B.G. then explained that Smith stole the wire from Prince when Smith was cutting steel for ENT at Prince’s. Tony, after giving various accounts prior to trial of when Smith had brought the wire to ENT, testified that Smith brought the copper wire to ENT on November 20,1990. The time frame of the theft and Smith’s employment with ENT made it impossible for him to have stolen the insulated copper wire from Prince’s when cutting up steel there for ENT. Smith had worked for ENT for two months in the fall of 1990. In October 1990, while working for ENT, Smith cut up steel at Prince, Inc. The theft of the insulated copper wire occurred sometime between August 12 and August 16, 1991. Accordingly, it was impossible for Smith to steal the wire from Prince while he was salvaging steel there for ENT, because the theft had not yet occurred, and would not occur for approximately a year. Also, Smith could not have stolen the wire in August 1991 because he was working in Arizona at that time. Furthermore, Smith denied that he had brought in a large amount of wire to ENT. The jury, as trier of fact, clearly did not believe E.B.G.’s incredible and impossible explanation of how ENT acquired the copper wire.
Brief of Respondent, pp. 11-12.
Likewise, the majority opinion points out that the wire was stolen sometime between August 12,1991, and August 16,1991. The majority refers to E.B.G.’s statement that he received this wire from Smith in November 1990 as an example of why he had poor credibility before the jury, and then turns around later in the same opinion and uses that same statement as the only basis for supporting the jury’s finding that the wire was in fact received from another.
The fact is that the wire could not have been stolen by Smith because it was not taken during the time that Smith was working on Prince’s property, and Smith was out of state at the time that the wire was taken.
There was absolutely no evidence that the wire stolen from Prince, Inc., was stolen by anyone other than E.B.G. E.B.G. cannot be convicted under § 45-6-301(3), MCA, of receiving stolen property that he himself stole. Since there was not substantial evidence for each element of the crime with which the youth was charged, I would reverse his conviction and dismiss the complaint against him.
JUSTICE GRAY concurs in the foregoing dissent. JUSTICE HUNT concurs in the foregoing dissent.