No. 81-89
IN THE SUPREME COURT OF THE STATE OF MONTANA
1981
THE STATE OF MONTANA,
Plaintiff and Respondent,
VS .
DAN D W A L WEAVER,
Defendant and Appellant.
Appeal from: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone
Honorable Robert Wilson, Judge presiding.
Counsel of Record:
For Appellant:
Felt and Martin, Billings, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Harold F. Hanser, County Attorney, Billings, Montana
Submitted on briefs: October 15, 1981
Decided:
Mr. J u s t i c e J o h n Conway H a r r i s o n d e l i v e r e d t h e O p i n i o n o f
t h e Court.
T h i s i s a n a p p e a l from a c o n v i c t i o n o f f e l o n y t h e f t
in a case tried in the Thirteenth Judicial District, State
o f Montana, i n a n d f o r t h e County o f Y e l l o w s t o n e . The c a s e
was t r i e d t o a j u r y and a p p e l l a n t a p p e a l s h i s c o n v i c t i o n .
In this case the appellant was charged with four
counts: Count I, theft, a felony; Count 11, criminal
mischief, a felony; Count 111, a n a t t e m p t ; and C o u n t IV,
deceptive practices, a felony. A t a p r e t r i a l h e a r i n g Count
I1 was d i s m i s s e d f o r l a c k o f p r o b a b l e c a u s e and a t t h e same
t i m e a p p e l l a n t was g r a n t e d s e p a r a t e t r i a l s on e a c h o f the
counts. A p p e l l a n t was t r i e d on J u n e 1 4 , 1 9 8 0 , on C o u n t I11
and a f t e r n i n e h o u r s o f c o n s i d e r a t i o n t h e j u r y was u n a b l e t o
reach a verdict.
On J u l y 1 7 , 1 9 8 0 , a t t h e t i m e o f t h e S t a t e ' s m o t i o n
t o s e t a t r i a l d a t e f o r Count I , t h e t r i a l c o u r t g r a n t e d a
r e q u e s t f o r a continuance because of allegedly prejudicial
a r t i c l e s i n the B i l l i n g s Gazette. S e v e r a l c o n t i n u a n c e s were
granted, and t h e c a s e went t o t r i a l on O c t o b e r 7 , 1980, a t
which t i m e o t h e r c o u n t s a g a i n s t t h e a p p e l l a n t were e x c l u d e d
from t h e t r i a l . Following h i s c o n v i c t i o n of felony t h e f t
the District Court, on motion of the county attorney,
d i s m i s s e d C o u n t s I11 a n d I V o f t h e amended information i n
v i e w of t h e f a c t he had b e e n c o n v i c t e d o f Count I .
On S e p t e m b e r 2 1 , 1 9 7 9 , M i c h a e l W a t t s , a t r u c k d r i v e r ,
reported t o the B i l l i n g s police t h a t h i s flat-bed trailer,
loaded with 6,072 eight-foot, 2 x 4 studs, with the
Bur k l a n d Lumber Company of Livingston, Montana, m a r k s on
same, had been stolen from the Billings East Parkway
truckstop. Watts had loaded this lumber a t Livingston,
Montana, a n d had d r i v e n it t o B i l l i n g s on t h e e v e n i n g o f
September 1 9 . H e parked i t a t t h e E a s t Parkway T r u c k s t o p
t h a t e v e n i n g and went t o h i s home. The f o l l o w i n g d a y h e
c h e c k e d and f o u n d t h e t r u c k i n p l a c e and t h e d a y a f t e r , t h e
2 1 s t , when h e went o u t t o g e t h i s f l a t - b e d t r a i l e r , he found
it m i s s i n g .
The trailer, equipped with fold-down grain sides,
traps, t a i l b o a r d , headboard, and t a r p s , was owned by W a t t s
who had b e e n h i r e d t o h a u l t h e B u r k l a n d lumber t o Winona,
Minnesota. The lumber had b e e n l o a d e d a c c o r d i n g t o s t a n d a r d
B u r k l a n d Lumber p r o c e d u r e s i n steel-banded b u n d l e s and was
w o r t h a b o u t one d o l l a r a b o a r d w h o l e s a l e o r a t o t a l o f a b o u t
$6,135 a t m i l l p r i c e . Each b o a r d o f wood b o r e a d i s t i n c t i v e
B u r k l a n d m i l l s t a m p on b o t h e n d s , and e a c h was s t a m p e d w i t h
an e x c l u s i v e Burkland mill number, 161. Watts testified
t h a t a t t h e t i m e t h e t i m b e r was l o a d e d it was s e c u r e d w i t h
red t a r p s , which b e l o n g e d t o him and w e r e t i e d down w i t h
yellow nylon rope.
The W a t t s stolen trailer was recovered twenty-five
d a y s l a t e r , f i f t e e n o r t w e n t y m i l e s f r o m B i l l i n g s i n what i s
known as the Pryor Creek area. At the time it was
recovered, i t was m i s s i n g t h e lumber, a tailboard, tarps,
and o t h e r e q u i p m e n t .
S e v e r a l weeks later i n October 1979, while in the
c o u r s e o f i n v e s t i g a t i n g a f i r e on t h e p r e m i s e s of a p p e l l a n t ,
officers of the Yellowstone County Sheriff's Department
observed large quantities of new lumber stacked on the
p r o p e r t y of t h e a p p e l l a n t ' s Dry C r e e k m e a t packing p l a n t .
The lumber was a l l e i g h t - f o o t , 2 x 4 s t u d s , each bearing t h e
d i s t i n c t i v e B u r k l a n d Lumber m a r k i n g s and s t a m p e d w i t h the
Burkland mill stamp, 161. When asked by Deputy Sheriff
George Jensen on October 25, 1979, about the lumber that was
stacked on his property, appellant told Jensen that some of
the stacked lumber was his and some of it belonged to a
friend. He told the deputy that he was using the stacked
lumber for remodeling his sausage shop in Billings and his
meat packing plant in Lockwood.
Upon later investigation Mike Boyett, a detective
with the sheriff 's department who was aware of the theft of
the lumber, thought that the lumber on the Dry Creek
property might be the lumber which had been reported stolen.
The Burkland stamps, the mill number 161 on each stud,
identified Burkland as the place of manufacture and this had
been reported stolen approximately a month earlier. An
investigation by Detective Boyett revealed that according to
Ed Carroll, Burkland's superintendent, Burkland had not sold
any lumber in Montana to any Montana retail outlet during
the period of time involved herein and that the last lumber
sold by Burkland to a Montana retail outlet had been in
January 1977. Carroll told Boyett also that he was unaware
of any retail purchases in small quantities from the mill by
any Montana buyer during August or September 1979.
The appellant testified that he had no idea that the
Burkland lumber was stolen. His story was that on the
evening of September 20, 1979, he received an anonymous
phone call from someone asking to store lumber on his
property. He testified that he thought he recognized the
voice on the phone but on reflection realized he did not.
When asked about the lumber by Boyett he said that he agreed
to store the lumber for a fee. Later he testified at the
t r i a l t h a t h e a g r e e d t o s t o r e t h e lumber a s a f a v o r f o r t h e
mysterious caller, but that he did not discuss with the
mysterious c a l l e r t h e q u e s t i o n of t h e f e e f o r s t o r a g e .
Weaver t e s t i f i e d t h a t sometime on S e p t e m b e r 2 1 , 1 9 7 9 ,
a semi-trailer load of e i g h t - f o o t , 2 x 4 s t u d s appeared i n
h i s y a r d a t t h e m e a t p a c k i n g p l a n t j u s t s o u t h o f Lockwood.
An u n s e e n t r a c t o r brought it t h e r e and an unseen tractor
would h a u l t h e empty t r a i l e r away l a t e r t h a t d a y . Appellant
t e s t i f i e d t h a t when h e went t o work t h e m o r n i n g o f S e p t e m b e r
21, he was s u r p r i s e d t o s e e t h e amount o f lumber t h a t was
stored. H e s a i d when h e l o o k e d a t t h e l o a d , h e n o t i c e d f i v e
o r s i x b o a r d s were wedged o u t from t h e t r a i l e r i n t h e f r o n t
p a r t o f t h e l o a d and when h e a t t e m p t e d t o p u s h t h e o f f e n d i n g
b o a r d s i n t o a l i g n m e n t , t h e r e s t r a i n i n g s t r a p b r o k e and some
o f t h e lumber f e l l t o t h e g r o u n d . I t t h e n was n e c e s s a r y t o
unload the lumber remaining on the trailer and have it
stacked. By t h e e n d o f t h e day on t h e 2 1 s t , t h e r e were
about nine stacks of lumber on the property, carefully
cross-hatched, behind o r near t h e a p p e l l a n t ' s loading dock.
A p p e l l a n t t e s t i f i e d h e removed t h e m a j o r i t y o f t h e wood f r o m
t h e t r a i l e r by u s i n g a f r o n t - e n d l o a d e r and i n a d d i t i o n p a i d
six persons to help stack the wood. The individuals
employed t o d o t h i s w e r e t o l d t o work f a s t and t h e y would be
paid well. They were p a i d more t h a n t h e going rate for
t h e i r a f t e r n o o n ' s work.
Sometime d u r i n g t h a t d a y R o b e r t Young, an a s s o c i a t e
of appellant, came i n t o t h e yard and h e l p e d himself with
a p p e l l a n t ' s blessings t o a pickup load of 2 x 4 s t u d s f o r a
h o u s e a p p e l l a n t was b u i l d i n g f o r Young. No payment was made
by Young t o a p p e l l a n t f o r t h i s amount o f wood. Appellant
t e s t i f i e d t h a t sometime d u r i n g t h e d a y a f t e r u n l o a d i n g t h e
trailer and s t a c k i n g t h e l u m b e r , he r e c e i v e d a m y s t e r i o u s
phone call from t h e p e r s o n who had called him the night
before. He t e s t i f i e d t h a t no a r r a n g e m e n t s f o r r e m o v a l o f
t h e t r a i l e r were made n o r was t h e r e a n y t h i n g s a i d a b o u t t h e
s a f e k e e p i n g of t h e lumber. I n a d d i t i o n , no s e r v i c e f e e was
discussed. H e t e s t i f i e d t h a t he was t o l d t o s e l l t h e lumber
a t a p r i c e b e t w e e n s i x t y - f i v e and e i g h t y c e n t s p e r b o a r d t o
u n s p e c i f i e d p e r s o n s who would p i c k up t h e wood and t o a n y o n e
appellant knew who might be interested. Appellant's
t e s t i m o n y was t h a t a s a b u i l d e r h e was a w a r e t h a t t h e r e t a i l
p r i c e o f a 2 x 4 s t u d was i n e x c e s s o f o n e d o l l a r p e r b o a r d .
According t o appellant, h e was t o l d to keep a record of
s a l e s and a f t e r a t h r e e o r f o u r m i n u t e c o n v e r s a t i o n t h e c a l l
t e r m i n a t e d and he never h e a r d from t h e c a l l e r a g a i n .
D u r i n g t h e n e x t two months t h e a p p e l l a n t d i s p o s e d o f
t h e lumber by s e l l i n g i t ; by g i v i n g i t t o h i s e m p l o y e e s i n
l i e u of wages; and by t a k i n g i t t o k e e p f o r h i m s e l f . He
sold an undetermined q u a n t i t y of lumber t o persons whose
"names were c a l l e d t o him" and whom h e d i d n o t know. He
further testified that he collected no money from the
purchases because the alleged mysterious caller had not
i n s t r u c t e d him on t h i s d e t a i l .
A p p e l l a n t s o l d some o f t h e lumber t o R o b e r t Young a t
eighty-five cents per board, which was taken t o the Bull
Mountains and u s e d t o build Young's house. There is no
showing t h a t h e c o l l e c t e d a n y money f o r t h e s e p u r c h a s e s .
According to the appellant he allowed a Tracy
Standifer and J e f f Moll to t a k e some o f t h e lumber. In
Moll's case, a p p e l l a n t t e s t i f i e d t h a t n e i t h e r he n o r Young
wanted to pay Moll for his labor on Young's house, and to
resolve this dispute, appellant told Moll to take his wages
out in lumber from the stacks of 2 x 4 studs and sell it for
whatever he could get. Moll sold about 200 studs under this
arrangement .
According to his testimony, appellant thought that
1
perhaps the owner or someone else might pick up the lumber
at the meat packing plant without his knowledge and that as
a result he would have nothing to show for the time and
money he had expended in storing the lumber. He therefore
took 230 of the studs for himself, storing them in his
garage and sausage shop to protect his interest.
During the investigation, when it was determined by
the sheriff's department that perhaps this was the stolen
Burkland lumber, Deputy Sheriff Boyett removed a total of
3,144 of the studs from the meat packing yard. A total of
1,684 studs were taken from stacks on three locations in the
yard. During that period of time, a neighbor informed the
deputy there was more lumber in a shed where it could not be
seen on the property, and the deputy and an assistant
removed 1,460 studs on November 28 and 29.
In addition to the Burkland lumber recovered by the
sheriff's department at the Dry Creek plant, a detective,
Robert Hirschi of the Billings police department, recovered
some 500 of the studs from other locations in and around
Billings. This included 63 studs from the residence of Jeff
Moll, an employee of appellant; 137 studs from the garage of
appellant's Billings residence; 97 studs from inside the
appellant's sausage shop in Billings. After obtaining a
search warrant later in December, Detective Hirschi
r e c o v e r e d a s t a c k o f 230 s t u d s f r o m t h e r e s i d e n c e o f R o b e r t
Young, who lived i n t h e B u l l Mountains s o u t h of Roundup,
Montana. He o b s e r v e d a t t h e t i m e he g o t t h e s e s t u d s t h a t a
deck, a shed, and t h e f r a m i n g o f t h e upper p o r t i o n s of a
house b e i n g b u i l t a t t h e B u l l Mountain s i t e was entirely
c o n s t r u c t e d of t h e B u r k l a n d 2 x 4 s t u d s , and h e p h o t o g r a p h e d
a l l of t h i s . These photographs were submitted a t t h e time
of t r i a l .
During the investigation Hirschi discovered on
December 13, 1979, p o r t i o n s of t h e t a i l b o a r d and the red
tarps between a loading dock and a holding pen on the
appellant's Dry Creek property. This property was
i d e n t i f i e d by W a t t s , t h e t r u c k d r i v e r , a s h i s t a i l b o a r d a n d
t a r p s and a s t h e e q u i p m e n t u s e d by him on t h e t r a i l e r t h a t
was l o a d e d w i t h t h e B u r k l a n d s t u d s which had been stolen
from t h e B i l l i n g s t r u c k s t o p .
T r i a l commenced o n O c t o b e r 7 , 1 9 8 0 , and t h e f o l l o w i n g
day, t h e B i l l i n g s G a z e t t e , t h e l o c a l newspaper, p r i n t e d t h e
following article concerning the background of the
appellant:
"BUSINESSMAN RETURNS TO COURT
"Dan Weaver was n e v e r c h a r g e d w i t h a r s o n f o r
t h e f i r e t h a t d e s t r o y e d Dry C r e e k Meat Co.
l a s t O c t . 25. The law s a y s t h a t a man c a n n o t
be c h a r g e d w i t h a r s o n f o r s e t t i n g a f i r e h i s
own p r o p e r t y .
" I n s t e a d , h e was c h a r g e d w i t h c r i m i n a l m i s -
chief i n connection with the blaze t h a t
d e s t r o y e d h i s meat p a c k i n g b u s i n e s s . Those
c h a r g e s were d r o p p e d f o r l a c k o f s u f f i c i e n t
e v i d e n c e l i n k i n g him t o t h e c r i m e .
" L a s t summer h e was t r i e d f o r a t t e m p t e d
t h e f t , accused of t r y i n g t o defraud h i s
i n s u r a n c e company by c l a i m i n g f i r e - l o s s e s
r e s u l t i n g from t h e i n c i d e n t t h a t he d i d n ' t
deserve. A f t e r n i n e d a y s o f t e s t i m o n y and a
10-hour d e l i b e r a t i o n t h e j u r y d e c l a r e d i t s e l f
hung. Informed s o u r c e s s a y that case may
[be] t o o expensive t o r e - t r y .
"Weaver, h o w e v e r , f o u n d h i m s e l f b a c k i n c o u r t
t h i s week t h i s time charged with possessing
3,400 p i e c e s of s t o l e n lumber, i n i t i a l l y
f o u n d by i n v e s t i g a t o r s n e a r t h e b u r n e d m e a t
packing p l a n t .
"County P r o s e c u t o r David Gor t o n t o l d t h e j u r y
Tuesday t h a t he w o u l d n 't a t t e m p t t o p r o v e
t h a t 3 4 - y e a r - o l d Weaver s t o l e t h e two-by-four
b o a r d s , v a l u e d a t one d o l l a r a p i e c e , from a
f ully-loaded s e m i - t r a i l e r t r u c k parked a t a
H e i g h t s t r u c k s t o p S e p t . 21, 1979.
" B u t Weaver knew t h e lumber was s t o l e n G o r t o n
t o l d t h e j u r y i n h i s o p e n i n g r e m a r k s , and h e
a t t e m p t e d t o c o n c e a l t h e lumber a t a number
o f l o c a t i o n s i n c l u d i n g Dry C r e e k Meat, a
s a u s a g e s h o p h e had n o t y e t opened and h i s
E l d o r a d o D r i v e home.
" A t t o r n e y Ken F r a z i e r t o l d t h e j u r y t h a t h i s
c l i e n t , whom he d e s c r i b e d a s a n ' u n s o p h i s t i -
c a t e d b u s i n e s s m a n ' , r e c e i v e d a n anonymous
phone c a l l l a t e l a s t S e p t e m b e r f r o m a man
a s k i n g him t o s t o r e some lumber f o r him.
Weaver, he s a i d , was n o n c o m m i t t a l b u t t h e
f o l l o w i n g morning d i s c o v e r e d a f u l l y - l o a d e d
s e m i - t r a i l e r a t Dry C r e e k Meat, 2752 Highway
87.
"When t h e b u s i n e s s m a n n o t i c e d t h a t t h e lumber
was l o o s e l y s t a c k e d and a t t e m p t e d t o t i g h t e n
t h e b a n d s , h a l f o f t h e t r u c k l o a d f e l l on t h e
ground. H e l a t e r asked s e v e r a l of h i s
e m p l o y e e s t o h e l p him s t a c k t h e lumber n e a r
t h e b u i l d i n g and i n a s t o r a g e s h e d n e a r b y ,
h i s lawyer s a i d .
"The f o l l o w i n g n i g h t Weaver g o t a n o t h e r phone
c a l l a s k i n g him t o s e l l some o f t h e l u m b e r ,
which he d i d . P a r t o f t h e l o a d was h a u l e d t o
t h e home o f W i l l i a m R o b e r t Young s o u t h o f
Roundup, which Weaver was h e l p i n g t o b u i l d .
"Young i s e x p e c t e d t o t e s t i f y today when
Weaver's c a s e c o n t i n u e s . "
At t h e c o n c l u s i o n of t h e S t a t e ' s c a s e on O c t o b e r 8 ,
1979, appellant moved for a mistrial on the grounds of
possible prejudice created by t h e a r t i c l e and t h i s m o t i o n
was d e n i e d .
Two i s s u e s a r e p r e s e n t e d f o r r e v i e w :
1. Was a p p e l l a n t d e n i e d a f a i r t r i a l because of a
newspaper a r t i c l e p u b l i s h e d t h e s e c o n d d a y o f t h e t r i a l ?
2. Did t h e S t a t e f a i l t o p r o d u c e s u f f i c i e n t e v i d e n c e
to establish appellant's knowledge that the property was
stolen?
A p p e l l a n t a r g u e s h i s r i g h t t o a f a i r t r i a l , which i s
guaranteed by the Sixth Amendment of the United States
C o n s t i t u t i o n and by A r t i c l e 11, S e c t i o n 4 , of t h e Montana
Constitution, was violated in this criminal proceeding.
Estes v. Texas (1965), 3 8 1 U.S. 532, 85 S . C t . 1628, 14
L.Ed.2d 543; I r v i n v. Dowd ( 1 9 6 1 ) , 366 U.S. 717, 722, 81
In denying the appellant's counsel's motion for a
mistrial the court indicated that it f e l t i t was b e s t t o
admonish t h e j u r y and a c c o r d i n g l y , t h i s was done j u s t p r i o r
t o t h e e v e n i n g r e c e s s on O c t o b e r 8 , 1980:
"THE COURT: L a d i e s a n d G e n t l e m e n , you w i l l
r e c e s s a t t h i s time. L e t me caution very
s t r o n g l y t h a t you a r e t o r e f r a i n f r o m r e a d i n g
t h e B i l l i n g s G a z e t t e , now u n t i l you t a k e t h i s
matter for deliberation. I want you t o
r e f r a i n from l i s t e n i n g t o t h e t e l e v i s i o n
b r o a d c a s t s b e c a u s e I d o n ' t want you t o
i n a d v e r t e n t l y be e x p o s e d t o any a c c o u n t s t h a t
may be on t h e news c o n c e r n i n g t h i s c a s e . I
d o n ' t want you t o be i n f l u e n c e d i n any way by
a n y m a t t e r o t h e r t h a n what you s e e and h e a r
i n t h i s courtroom d u r i n g t h i s t r i a l . There
h a v e b e e n r e p o r t e r s p r e s e n t f r o m time t o t i m e
during t h i s case. They h a v e n o t been h e r e
c o n t i n u o u s l y l i k e you h a v e . You a r e t h e o n e s
t h a t know more a b o u t t h i s c a s e t h a n a n y o n e
e l s e a t t h i s time and I d o n ' t want you t o be
i n f l u e n c e d by news a c c o u n t s o r a n y t h i n g e l s e
until after you have this case for
d e l i b e r a t i o n and make y o u r own d e l i b e r a t i o n
on i t , s o p l e a s e r e f r a i n from exposing
y o u r s e l f i n a d v e r t e n t l y t o any a c c o u n t s t h a t
may o r may n o t o c c u r on t e l e v i s i o n o r i n t h e
n e w s p a p e r s u n t i l you a r e t h r o u g h w i t h y o u r
deliberations. W w i l l r e c e s s now u n t i l
e
10:OO tomorrow m o r n i n g and I a n t i c i p a t e t h a t
the case w i l l be given to you for
d e l i b e r a t i o n sometime a r o u n d noon tomorrow.
So you c a n p r e p a r e your p r i v a t e d o i n g s
accordingly. You w i l l be i n d e l i b e r a t i o n
tomorrow a f t e r n o o n . W e w i l l r e c e s s now u n t i l
10:OO tomorrow m o r n i n g . "
Appellant argues t h a t the t r i a l court erred in its
f a i l u r e t o g r a n t a m i s t r i a l ; and i n t h e v e r y l e a s t , t h a t t h e
court should have interrogated the members of the jury
concerning their exposure to the inflammatory and
prejudicial newspaper article published by the Billings
G a z e t t e on t h e s e c o n d d a y o f t r i a l .
T h i s Court h a s n o t gone a s f a r as the case relied
upon by appellant and urged for adoption in this case,
Margoles v. United States (7th Cir. 1969), 407 F.2d 727,
cert. denied, ( 1 9 6 9 ) , 396 U.S. 833, wherein t h e c o u r t s e t
down t h e r u l e f o r t h a t c i r c u i t i n h o l d i n g :
". . . t h e p r o c e d u r e r e q u i r e d by t h i s C i r c u i t
where p r e j u d i c i a l p u b l i c i t y i s b r o u g h t t o t h e
c o u r t ' s a t t e n t i o n d u r i n g a t r i a l is t h a t t h e
c o u r t must a s c e r t a i n i f a n y j u r o r s who had
been e x p o s e d t o s u c h p u b l i c i t y had r e a d o r
h e a r d t h e same. Such j u r o r s who r e s p o n d
a f f i r m a t i v e l y m u s t t h e n be e x a m i n e d , i n d i v i -
d u a l l y and o u t s i d e t h e p r e s e n c e o f t h e o t h e r
jurors, t o determine t h e e f f e c t of t h e
publicity." 407 F . 2 d a t 735.
S e e a l s o , U n i t e d S t a t e s v . H a n k i s h ( 4 t h C i r . 1 9 7 4 ) , 502 F.2d
71; United S t a t e s v. Jones (4th Cir. 1 9 7 6 ) , 542 F.2d 186,
cert. denied, (1976), 426 U.S. 922; S t a t e v. Keliiholokai
( 1 9 7 7 ) , 58 Haw. 3 5 6 , 569 P.2d 8 9 1 .
T h i s C o u r t r e c e n t l y i n S t a t e v. K i r k l a n d ( 1 9 7 9 ) ,
Mont. , 602 P.2d 586, 36 S t . R e p . 1963, sustained the
conviction against the defendant's assertion that the t r i a l
c o u r t had e r r e d i n n o t a l l o w i n g him t o i n t e r r o g a t e members
of the jury concerning their exposure to allegedly
i n f l a m a t o r y and p r e j u d i c i a l news releases. We refused to
a d o p t t h e r u l e p r e v i o u s l y m e n t i o n e d which r e q u i r e d t h e t r i a l
judge, i n e v e r y c a s e where p r e j u d i c i a l news r e l e a s e s w e r e
brought t o h i s attention during the t r i a l , t o examine t h e
jurors to determine whether any of them had read the
prejudicial news release, and if so, the effect of the
publicity. W held t h a t
e ". . . we prefer t o leave t h a t t o
the trial judge's judgment and d i s c r e t i o n , subject t o h i s
later r e v i e w a f t e r v e r d i c t on a p p r o p r i a t e m o t i o n , and o u r
r e v i e w on a p p e a l . " I n Kirkland w e noted t h a t t h e abuse of
d i s c r e t i o n s t a n d a r d had b e e n c l e a r l y s e t f o r t h i n numerous
c a s e s d e a l i n g w i t h a change of venue i s s u e . Such m a t t e r s
a r e a d d r e s s e d t o t h e sound d i s c r e t i o n of the t r i a l court,
and u n l e s s t h e r e h a s b e e n a c l e a r a b u s e o f d i s c r e t i o n , i t s
r u l i n g w i l l n o t be d i s t u r b e d . See a l s o S t a t e v. Williams
( 1979 I - Mont . , 604 P.2d 1224, 36 St.Rep. 2328;
S t a t e v . Hoffman ( 1 9 3 3 ) , 94 Mont. 5 7 3 , 23 P.2d 972; S t a t e v .
L e w i s ( 1 9 7 6 ) , 169 Mont. 2 9 0 , 546 P.2d 5 1 8 .
A p p e l l a n t a r g u e s t h a t e v e n u n d e r t h e r u l e s e t down i n
K i r k l a n d t h e r e was h e r e a c l e a r a b u s e o f d i s c r e t i o n i n t h a t
under t h e c i r c u m s t a n c e s , t h e c o u r t should have i n t e r r o g a t e d
the jurors. He argues t h a t in the instant case (1) t h e
trial c o u r t had p r o p e r l y c o n t i n u e d the t r i a l d a t e due to
previous prejudicial news reports and therefore was
c o g n i z a n t of the potentially prejudicial possibilities of
f u r t h e r news r e p o r t s ; ( 2 ) t h a t t h e r e s p o n s e f r o m some o f t h e
veniremen during voir dire indicated that the publicity
surrounding the appellant was known to some of the
p r o s p e c t i v e j u r o r s and o n e had b e e n e x c u s e d f o r c a u s e ; (3)
t h e d e f e n s e c o u n s e l had s p e c i f i c a l l y r e q u e s t e d p r i o r t o t h e
t r i a l t h a t no m e n t i o n be made o f the appellant's previous
criminal charges; (4) the court admonished the jury to
refrain from exposing themselves to the reports on only one
occasion which was late in the afternoon of the day the
article was published; and (5) contrary to Kirkland, the
record in this case indicates continuous and massive
publicity in the community.
On the record in this case the appellant was
convicted of a felony theft following a fair trial by an
impartial jury. There are no indications on the record that
the appellant's right of fair trial was in peril at any
stage by a massive publicity pervading the entire community
and there are no specific instances of failure of the
jurors' impartiality. The United States Supreme Court has
held that in order to reverse a conviction on the ground of
prejudicial publicity there must be an inherent lack of due
process in the proceedings. Estes, supra, 381 U.S. at 532;
Sheppard v. Maxwell (1966), 384 U.S. 333, 86 S.Ct. 1507, 16
L.Ed.2d 600. Or, there must be a showing by the defendant
of "the actual existence of such an opinion in the mind of
the juror as will raise the presumption of partiality."
Murphy v. Florida (1975), 421 U.S. 794, 800, 95 S.Ct. 2031,
2036, 44 L.Ed.2d 589, 595; Irvin v. D o w ~ ,supra, 366 U.S. at
723. In Marshall v. United States (1959), 360 U.S. 310, 79
S.Ct. 1171, 3 L.Ed.2d 1250, the Supreme Court of the United
States held:
"A bare fear respecting the true state of the
juror's mind has no place here. Error will
not be presumed; after verdict the defendant
has the laboring oar. "
This has long been the law in Montana. Kirkland, supra.
Here the appellant has failed to make the requisite showing
of a prejudice on record.
In addition we note that the sole existence of the
publicity--that i s , t h e a r t i c l e o f O c t o b e r 8 which r e f e r s t o
two p r e v i o u s c h a r g e s b r o u g h t against appellant--also notes
t h a t t h e d i s p o s i t i o n o f t h o s e c h a r g e s was i n h i s f a v o r . The
issues of the trial on t h e f t were then in process. The
article is a single, factual, noneditorialized account
a p p e a r i n g i n t h e m i d d l e of page B-1 of the paper; nothing
distinguishes it from reports of other court cases that
a p p e a r on t h a t p a g e . The a r t i c l e s t a t e d f a c t s f a v o r a b l e t o
the appellant, that is, one of the charges had been
d i s m i s s e d f o r l a c k o f p r o b a b l e c a u s e and t h e o t h e r was t r i e d
r e s u l t i n g i n a hung j u r y . T h i s Court observed long ago i n
S t a t e v . J a c k s o n ( 1 8 9 0 ) , 9 Mont. 508, 523, 24 P. 2 1 3 , 217:
"The d a y h a s p a s s e d when b l a n k i g n o r a n c e and
s t u p i d i t y i n a juryman were h i s b e s t q u a l i f i -
cations for service. T h e r e i s more i n t e l l i -
g e n c e on t h e modern j u r y ; and i n t e l l i g e n t
persons, t h e s t a t u t e contemplates, a r e able
t o r e a d contemporary h i s t o r y , and s t i l l
p r e s e r v e t h e i r mental balance. On t h e t r i a l
of a c a s e , h i g h l y i m p r o p e r and i n c o m p e t e n t
t e s t i m o n y may a c c i d e n t a l l y f a l l f r o m t h e l i p s
o f a sworn w i t n e s s on t h e s t a n d . This occurs
i n nearly every t r i a l . Such e v i d e n c e is
s t r i c k e n o u t by t h e c o u r t , and t h e j u r y
i n s t r u c t e d t o d i s r e g a r d i t . The c o u r t h e r e i n
had e q u a l o p p o r t u n i t y t o c o r r e c t a n y p o s s i b l e
e v i l i n f l u e n c e of t h e newspapers."
In a later case, S t a t e v. Board ( 1 9 5 9 ) , 1 3 5 Mont.
139, 143, 337 P.2d 924, 927, the Court considered the
c o n t e n t of a n a r t i c l e which d i d n o t r e v e a l a p r e j u d i c e s o
g r a v e a s t o d e n y t h e d e f e n d a n t a f a i r t r i a l by i t s e f f e c t s .
The article was not one capable of arousing community
f e e l i n g s o r e s t a b l i s h i n g a community o p i n i o n . Applying t h i s
r a t i o n a l e t o t h e e x t e n s i v e p u b l i c i t y on r e c o r d i n t h e c a s e
o f S t a t e v . Armstrong ( 1 9 8 0 ) , Mont. , 616 P.2d 3 4 1 ,
350, 37 St.Rep. 1563, 1572, t h i s Court noted: "We h a v e no
indication here that the published accounts were so
passionate as to excite undue prejudice against the
defendant. S t a t e v. Logan ( 1 9 7 0 ) , 1 5 6 Mont. 48, 473 P.2d
833."
We have previously found that newspaper publicity
which is n o t e d i t o r i a l i z e d , which a p p e a r s t o be f a c t u a l l y
d o n e , a n d which d o e s n o t c o n t a i n i n f l a m a t o r y s t a t e m e n t s w i l l
n o t c o n s t i t u t e a showing o f p r e j u d i c e upon which t o b a s e a n
abuse of the trial court's discretion. State v. Bashor
(1980)1 - Mont . , 614 P.2d 470, 475, 37 S t . R e p . 1098,
1 1 0 2 ; S t a t e v . B i s c h e r t ( 1 9 5 7 ) , 1 3 1 Mont. 1 5 2 , 1 5 6 , 308 P.2d
969, 971.
As previously noted, absent any indication on the
r e c o r d o f p r e j u d i c e t o a p p e l l a n t s o g r a v e a s t o d e n y him a
f a i r t r i a l , w e f i n d t h e c o u r t below p r o p e r l y e x e r c i s e d i t s
d i s c r e t i o n by d e n y i n g t h e m o t i o n f o r a m i s t r i a l . Here t h e
admonition to the jury was sufficient to correct any
damaging i n f l u e n c e o n e news a r t i c l e m i g h t h a v e had u n d e r t h e
circumstances.
The second issue is directed at the question of
whether t h e r e was s u f f i c i e n t e v i d e n c e upon w h i c h t h e j u r y
could reach a v e r d i c t convicting t h e appellant of t h e f t , a
f e l o n y , p u r s u a n t t o s e c t i o n 4 5 - 6 - 3 0 1 ( 3 ) ( c ) , MCA.
The amended information charges that the appellant
"purposely or knowingly obtained control over stolen
property, to-wit: 3 , 4 0 0 2 " x 4 " wood s t u d s , o f a v a l u e o f more
t h a n $150.00, owned by B u r k l a n d S t u d s , I n c . , and/or Lampert
Lumber Co., and/or Western Trucking Company, knowing the
p r o p e r t y t o have b e e n s t o l e n by a n o t h e r and u s e d , c o n c e a l e d
o r abandoned t h e p r o p e r t y knowing s u c h u s e , concealment o r
abandonment p r o b a b l y would d e p r i v e t h e owner o f t h e p r o p e r t y
A p p e l l a n t a r g u e s t h a t d u r i n g t h e t r i a l t h e S t a t e made
a c o n c e r t e d e f f o r t t o i n t r o d u c e a s much e v i d e n c e a s p o s s i b l e
tending to show t h a t the a p p e l l a n t had possession of the
a l l e g e d l y s t o l e n lumber and t h a t he u s e d o r concealed the
lumber. H e argues t h a t i n reviewing t h e record the State
failed to correctly i d e n t i f y t h e elements of t h e crime of
theft as charged by neglecting to produce any evidence,
direct or circumstantial, showing that appellant knew t h e
lumber had b e e n s t o l e n a t t h e t i m e h e t o o k p o s s e s s i o n .
Appellant a r g u e s t h a t he t e s t i f i e d how he came i n t o
possession of the allegedly stolen lumber and never knew
that it was stolen until after the police came out to
investigate the f i r e a t h i s plant. Appellant argues t h a t
the State had t h e burden of proving, beyond a reasonable
doubt, t h a t a p p e l l a n t knew t h e p r o p e r t y was s t o l e n a t t h e
t i m e h e r e c e i v e d it and t h a t i t f a i l e d t o c a r r y t h a t b u r d e n .
A p p e l l a n t r e l i e s on t h e f a c t t h a t mere p o s s e s s i o n o f s t o l e n
p r o p e r t y i s n o t i n and o f i t s e l f a c r i m i n a l o f f e n s e . State
v. Peters ( 1 9 6 5 ) , 146 Mont. 188, 405 P.2d 642; State v.
J i m i s o n ( 1 9 7 5 ) , 1 6 8 Mont. 1 8 , 540 P.2d 3 1 5 .
As to the knowledge element of the offense the
State's burden is s e t f o r t h i n s e c t i o n 45-2-101(27), MCA,
which s t a t e s :
"Knowingly -- a p e r s o n a c t s k n o w i n g l y w i t h
respect t o conduct or t o circumstance
d e s c r i b e d by a s t a t u t e d e f i n i n g a n o f f e n s e
when h e i s a w a r e o f h i s c o n d u c t o r t h a t t h e
c i r c u m s t a n c e e x i s t s . A p e r s o n a c t s knowingly
with r e s p e c t t o t h e r e s u l t of conduct
d e s c r i b e d by a s t a t u t e d e f i n i n g a n o f f e n s e
when h e i s a w a r e t h a t i t is h i g h l y p r o b a b l e
t h a t s u c h r e s u l t w i l l b e c a u s e d by h i s
conduct. When knowledge o f t h e e x i s t e n c e o f
a p a r t i c u l a r f a c t is an element of an
o f f e n s e , s u c h knowledge i s e s t a b l i s h e d i f a
person is aware of a high probability of its
existence. Equivalent terms such as
' knowing' or ' with knowledge' have the same
meaning. "
To reach the verdict, the trier of fact had to
conclude that appellant knowingly obtained control of the
stolen lumber, knowing it to be stolen by another, and that
he used, concealed or abandoned the lumber knowing that the
owner would thereby probably be deprived of the lumber.
Here there existed substantial credible evidence, consistent
with appellant's guilt and inconsistent with his innocence,
which persons of reasonable minds might accept as adequate
to support their conclusions. See State v. Armstrong
(19801, - Mont . , 616 P.2d 341, 346, 37 St.Rep. 1563.
In this case, the State first had to establish that
appellant "knowingly" obtained control of the lumber. Under
the statute above cited, this element was proved by
establishing that he "was aware of his conduct in doing the
act." Secondly, the State had to establish that he obtained
control "knowing" the property to have been stolen. Under
the statute this element was established by showing that
appellant was "aware of a high probability" that the wood
was stolen. Last, the State had to establish that appellant
used the lumber "knowing" his use would probably deprive the
owner of the property. This element was proved by showing
that it was "highly probable that the result caused by his
conduct" would deprive the owner of his property.
All of these elements were clearly proved in this
case. Intent may be inferred by the jury from what the
defendant says and does and from all the facts and
circumstances involved in the transaction. State v. Jackson
(19791, - Mont . -, 589 P.2d 1009, 36 St.Rep. 169, 176;
State v. Hardy (1980), - Mont . , 604 P.2d 792, 37
St.Rep. 1. The facts and circumstances here established by
the State are inconsistent with any conclusion other than
the appellant was fully aware that he was exerting control
over obviously stolen property and disposing of it in such a
manner as to deprive the rightful owner of its use. The
appellant erroneously contends his denial of knowledge and
his explanation were unrefuted, and that as a consequence,
the evidence supporting the requisite element of knowledge
amounts only to suspicious circumstances insufficient to
sustain the verdict are in error.
Here, appellant's explanations were not unrefuted.
The testimony of witnesses and the testimony of appellant
himself placed in evidence an abundance of facts and
circumstances which contradicted all explanations given by
him. Whether appellant's explanations were more credible
than the evidence to the contrary, or whether they were
merely incredible, was a question of fact for the jury to
determine. The credibility of witnesses and the weight of
their testimony are solely matters for the jury to
determine. State v. Hart (1981), - Mont . -, 625 P.2d
21, 27, 38 St.Rep. 133, 138.
With respect to the elements of knowledge, the
evidence here is circumstantial. Circumstantial evidence
need not be regarded as inferior evidence; if it is of such
a quality and quantity as to legally justify a jury in
determining guilt beyond a reasonable doubt, circumstantial
evidence is sufficient to sustain a conviction. State v.
Cor (1964), 144 Mont. 323, 326, 396 P.2d 86, 88; State v.
Proctor (1969), 153 Mont. 90, 94, 454 P.2d 616, 618. In
determining the sufficiency of circumstantial evidence to
make a case for the jury and to sustain a conviction all of
the facts and circumstances must be taken into consideration
collectively. State v. DeTonancour (1941), 112 Mont. 94,
98, 112 P.2d 1065, 1067.
We find under the circumstances here that there are
facts consistent with appellant's guilt and inconsistent
with his innocence. Accordingly, the evidence is sufficient
to sustain the appellant's conviction.
Affirmed.
We concur:
Chief Justice