State v. Woods

NO. 02-82

I N THE SUPREME COURT O THE STATE O F MONTANA
F

1993

STATE OF MONTANA,

P l a i n t i f f and Respondent,

-.(j s-

JACOB H. WOODS,

Defendant and Appellant.

Appeal frorn: D i s t r i c t C o u r t of t h e E i e v e n t h J u d i c i a l D i s t r i c t ,
I n a n d f o r t h e County o f F l a t h e a d , T h e H o n o r a b l e
J a c k D. Shanstrom, Judge ? r e s i d i n g .

C o u n s e l o f Record:

For Appeilant:

Moses Law F i r m ; C h a r l e s F . Moses, R i i l i n g s , Montana

For Respondent :

Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
T e 6 0 . Lympus, County A t t o r n e y , K a l i s p e l l , Montana

Submitted: January 10, 1983

Decided : A p r i l 1 4 , 1983

Filed:
.4PH 1 4 1983

--
Clerk
 ,

CORRECTION. In preparing this opinion
Hon. D a n i e l J. S h e a lication, we noted in our verification of tit1
J u s t i c e , Supreme C o u r t citations the matters listed below. Corrections
Room 414 ~ u s t i c e u i l d i n g
B been made on our copy of the opinion. T
215 N o r t h S a n d e r s
H e l e n a , Montana 59620

Date:
May 2 0 , 1983
Re:
S t a t e v. Woods, No. 82-82, ~ p r i 1 4 , 1983, d i s s e n t i n g
l

Page 1 5 , l i n e 9 - - 45-5-501(1)(c)
c i t e d o n p a g e 1 5 , l i n e 1 and
1
Page 1 5 , l i n e 1 0 - - 45-5-501(7)
on page 15, l i n e 1 5 a n d page 17, l i n e 5
P a g e 1 7 , l i n e 9 f r o m b o t t o m - - 4 1 - 5 0 2 ( 4 ) s h o u l d re d 4 1 - 5 - 5 0 2 ( 4 ) .
l
Page 1 8 , l i n e 7 - - - 45-5-206 s h o u l d r e a d - 41-5-206
4
WEST PUBLISHING COMPANY
Box 3 5 2 6
St. Paul, MN 55165
 I

CORRECTION, In preparing this opinion for pub-
Hon. J o h n C. S h e e h y lication, we noted in our verification of titles and
J u s t i c e , Supreme C o u r t citations the matters listed below. Corrections have
Room 414 J u s t i c e B u i l d i n g been made on our copy of the opinion.
215 North S a n d e r s
H e l e n a , Montana 59620

Date:
May 2 0 , 1 9 8 3
Re:
S t a t e v. Woods, N o . 82-82, A p r i l 1 4 , 1983

Page 2, l i n e 1 from bottom
1 - - Section 41-5-501(1)(c) should read
S e c t i o n 41-5-501(2)(c).
Page 3, l i n e 1 from
1 - - 4 5 5 U.S. 463 s h o u l d r e a d 445 U.S. 463.

Page 13, l i n e 8 - - M o r r i s s e t t e v. U n i t e d S t a t e s s h o u l d r e a d Morissette
v. U n i t e d S t a t e s .

WEST PUBLISHING COMPANY
Box 3 5 2 6
St. Paul, MN 5 5 1 6 5
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.

Jacob H. Woods was convicted of two counts of deliberate
homicide in District Court, Eleventh Judicia.1 District,
Flathead County, involving the deaths of Ronald Johnson and
Phillip Kessner. He appeals his conviction to this Court.
We affirm.
The most important issues raised by Woods are that the
Youth Court proceedings against him were constitutionally
defective, and that he was charged in District Court on an
information that was unsupported by affidavit or sworn
testimony.
That the Youth Court proceedings against Woods were
defective is eminently obvious. The petition initiating the
proceedings in Youth Court did not state the facts
constituting the offenses with which he was charged in
ordinary, concise language so as to enable a person of common
understanding to know what was intended. Section
2-
41-5-501 ( J )(c), MCA. The petition did not include a list of

the witnesses the State intended to use in proving the
commission of the offenses against him. Section 41-5-501(7),
MCA .
The petitioner was arrested in Woodward County,
Oklahoma. After he was brought to Montana, he was detained
without any sworn statement presented to the court that Woods
needed to be placed in detention. Section 41-5-502 (4), MCA.
However, by what process or authority Woods was arrested
in Woodward County, Oklahoma, is not shown in the record. As
far as the record discloses, he was not taken into custody
"by a law enforcement officer pursuant to a lawful order or
process of [the] court. " Section 41-5-302 (1)(a), MCA.
A warrant for the arrest of Woods was issued out of the
Youth Court on March 19, 1981. On that date he was already
in the custody of the sheriff of Woodward County, Oklahoma.
There is no provision in the Youth Court Act for the issuance
of a warrant of arrest. Presumably the warrant of arrest,
therefore, was issued under section 46-6-201, MCA. However,
a warrant of arrest is invalid unless it is based upon
probable cause, supported by oath or affirmation reduced to
writing. Art. 11, 11, 1972 Mont. Const.; State ex rel.
Wicks v. District Court (1972), 159 Mont. 434, 498 ~ . 2 d1202;
Petition of Gray (1970), 155 Mont. 510, 473 P.2d 532. Here
there was no showing of probable cause, supported by oath or
affirmation reduced to writing in the Youth Court
proceedings, upon which to base the issuance of the warrant
of arrest.
From the record, therefore, the initiation of the Youth
Court proceedings against Woods on March 18, 1981, his
earlier arrest in Oklahoma, and his subsequent detention in
Flathead County during the Youth Court proceedings were a11
patently unlawful. Yet, it avails Woods nothing. An illegal
arrest of a defendant does not preclude the State from
proceeding on a criminal charge against him. In United
4
States v. Crews (1980), 4p5 U.S. 463, 100 S.Ct. 1244, 63
L.Ed.2d 537, the Supreme Court stated:
"Insofar as respondent challenges his own presence
at trial, he camnot claim immunity from prosecution
simply because his appearance in court was
precipitated by an unlawful arrest. An illegal
arrest, without more, has never been viewed as a
bar to subsequent prosecution, nor as a defense to
a valid conviction (citing cases). The
exclusionary principal of Wong - [371 U.S. 471,
Sun
83 S.Ct. 407, 9 L.Ed.2d 441 (1963)l and
 Silverthorne Lumber Company [251 U.S. 385, 40 S.Ct.
182, 64 L.Ed.2d 319 (1920)l delimits what proof the
government may offer against the accused at trial,
closing the courtroom door to evidence secured by
official lawlessness. Respondent is not himself a
suppressible 'fruit,' and the illegality of his
detention cannot deprive the government of the
opportunity to prove his guilt through the
introduction of evidence wholly untainted by the
police misconduct." 100 S.Ct. at 1251.
,
See also, State v. Ritchson (19811, - Mont. - 630 P.2d
234, 239, 38 St.Rep. 1015.
We attach no weight, therefore, to Woods' contentions

that his arrest and detention were unlawful or that the Youth
Court proceedings were unlawful or not based upon probable
cause, or that the petition filed in the Youth Court was
deficient.
The crimes with which Woods was charged were alleged to
have been committed before he became 18 years of age. He was
under the age of 21 years at the time of his arrest.
Therefore, the Youth Court had exclusive jurisdiction of the
charges against him. Section 41-5-203, MCA. The Youth Court
is required to retain jurisdiction unless such jurisdiction
is terminated by a transfer of the proceedings to the adult
criminal court. Section 41-5-205(1), MCA. Woods complains

that the Youth Court proceedings against him should have been
dismissed because those proceedings were not decided or
determined within 15 days after service of the petition.
(Section 41-5-516 (1), MCA. ) That provision must give way in
this case, however, to the necessity for a transfer hearing
whether Woods should be tried in the adult criminal court.
Section 41-5-206, MCA, provides that after a petition in
Youth Court alleging delinquency has been filed, the county
attorney may move, before a hearing on the petition on its
merits, to transfer the matter of prosecution to the District
Court if the youth were 16 years of age or more at the time
of the unlawful conduct, for crimes such as criminal
homicide. Section 41-5-206, MCA. The 15-day time limitation
of section 41-5-516, MCA, has no application when the charges
are subject to transfer to the adult criminal court, and a
timely motion as here is made to transfer the proceedings.
Counsel for Woods objected to the transfer of the
proceedings from the Youth Court to the District Court, but
the Youth Court overruled his objections based upon the
deficiencies in the Youth Court proceedings. Under the rule
we have stated, even though his arrest and detention may have
been illegal, that was not a bar to a subsequent prosecution
nor could it be a bar to the transfer of the cause from the
Youth Court to the District Court.
But Woods also contends that the information filed in
the District Court against him was improper because it too
was filed without supporting affidavit or sworn testimony and
without leave of court. Woods claims that the information
was improperly filed under Art. 11, $ 20, 1972 Mont. Const.,
3

because probable cause was not established after examination
and commitment by a magistrate or after leave granted by the
court. This contention again has no weight. It overlooks or
ignores the transfer hearing held before the Youth Court.
There, witnesses were sworn and their testimony given which
established beyond cavil probable cause for the filing of the
information in the District Court against Woods. The Youth
Court made findings of fact which stated that the relevant
evidence indicated reasonable grounds to believe that Woods
had committed the acts alleged. The Youth Court further
found that there was no facility available at Miles City or
elsewhere in which Woods could be held or detained if the
cause was retained in the Youth Court and that the gravity of
the offense required the transfer of the prosecution to the
District Court. The Youth Court therefore ordered that an
information charging Woods be filed in the District Court.
Thus, Woods did in fact receive a hearing before an impartial
magistrate, the Youth Court, which ordered the county
attorney to file the information in the District Court. We
determine that such procedure satisfied the state
constitutional requirements that criminal actions in District
Court be initiated either by information after examination
and commitment by a magistrate or after leave granted by the
court.
We now examine now Woods' contention that there was no
corroboration of the testimony of accomplices sufficient to
sustain his conviction. In connection with this issue, we
must delineate the facts.
On September 13, 1978, at 11:25 p.m. on Highway 93,
Flathead County police officers investigated the injury of
two victims found on the shoulder of the highway. One was
dead and one was alive. The officers found a 10-speed
bicycle badly bent, a plastic grill and grill piece, green
paint chips and other evidence. The victims were taken by
ambulance to the hospital where one was pronounced dead on
arrival and the other survived for approximately 35 to 40
minutes. It appeared that the victims had been run down on
the highway while riding their bicycle. The police
investigation was futile until 2 1/2 years later when an
anonymous crimestoppers tip directed them to Bobby Aho, who
gave police a signed statement about the night of the
killing. His statement indicated that Woods had been
driving around Kalispell with Jerry Schneider and Bobby Aho
in Tim Fraleigh's car. They met the victims, Kessner and
Johnson, who Woods claimed owed him money for drugs. He was
angry that they had neither the drugs nor the money and
determined to "get them." He drove up behind them while the
two were riding on one bicycle down Highway 93, sped up and
swerved into them. Woods drove on after the collision.
Woods was arrested in Woodward, Oklahoma, on March 18,
1981. At the time, he was nearly 19 years old but was 16
years old at the time of the offense. The Montana Codes
required that he be proceeded against in the Youth Court. We
have already indicated the proceedings that followed his
arrest.
Woods contends that the passengers in his automobile,
Schneider and Aho, must be considered accomplices, and that
there is no corroboration for their testimony. The State
argues that they were not in fact accomplices and that in any
event, their testimony was corroborated.
This issue has little weight. The District Court
submitted to the trial jury as a question of fact whether
Schneider and Aho were in fact accomplices and instructed the
jury that their testimony must be corroborated if it found
that they were in fact accomplices. Whether the jury so
determined or not is of no moment now. There is more than
sufficient corroboration of the testimony of Schneider and
Aho in the evidence offered on the stand by Wanda Aha, who
testified to a conversation she had with Woods where Woods
told her that he had been driving the car and that he had
killed Kessner and Johnson. That evidence suffices to
corroborate and sustain the testimony of Schneider and Aho,
if we should grant that they were accomplices. State v.
Forsyth (1982), - Mont . -, 642 P.2d 1035, 39 St.Rep. 540;
State v. Manthie (1982), - Mont . ,
- 641 P.2d 454, 39
St.Rep. 350; State v. Mitchell (1981), Mont. , 625
P.2d 1155, 38 St.Rep. 487.
The next issue offered by Woods is that the doctrine of
cumulative trial error requires a reversal of his conviction.
The errors which Woods argues cumulated against him are:
1. The admission of exhibits 1, 2 and 3, photographs of
the scene of the offenses,
2. The color photograph of Ronald Johnson, one of the
victims,
3. A damaged bicycle, the testimony of Dale Gifford,
respecting inconsistent statements by Woods,
4. The examination of Schneider about his own prior
inconsistent statements to the police,
5. The examination of witness Fraleigh, and
6. The rebuttal testimony of the probation officer.
We find no error with respect to this testimony or
evidence.
The photographs of the scene were testified to by the
officers doing the investigation as depicting the scene as
they remembered it. They did not take the pictures
themselves nor were they taken under their direction. The
officers came to the scene a very short time after the
incident occurred. It is clear that the photographs would
aid the jury in its factfinding process. State v. Austad
(19821, Mont. , 641 P.2d 1373, 39 St.Rep. 356, 362.
The color photograph of the deceased Ronald Johnson was
objected to on the ground that its probative value was
outweighed by its inflammatory nature. We agree with the
State that the photograph lent credence to the testimony of
the witnesses for the State that the death of the victim was
caused from the injuries they received when they were struck
by the automobile. The photographs served a probative
purpose and were admissible. State v. Logan (1970), 156
Mont. 48, 473 P.2d 833.
The objection to the admission of the bicycle was on the
grounds of foundation, that there was no sufficient evidence
that the bicycle was in the same condition as at the time of
the incident and no chain of evidence establishing to whom it
belonged and its condition prior to and after the incident.
The testimony indicated that the investigating officer had
picked up the bicycle at the scene of the offenses, and that
it appeared to be in reasonably the same condition at trial
as it was when he first picked it up. There was no
indication at trial that the bicycle had otherwise been
tampered with or was in worse condition than when it was
found. We see no problem with the admission of the bicycle
into evidence.
The testimony of Dale Gifford was to the effect that he
had talked to Woods after his arrest while the Youth Court
proceedings were pending, and that Woods had given him an
alibi which was different from one given to Gifford earlier
in 1979 when he had questioned Woods. The objection to this
testimony, in Woods' briefs, seems to be that since Woods had
not testified and did not eventually testify, such evidence
of his statements was inadmissible. The testimony was
relevant, and indeed was not objected to at the time of
trial.
The medical testimony showed that no autopsies were
performed on the bodies of the victims and the medical
persons testified their conclusion that the collision with
the automobile had brought about the injuries which caused
the deaths was an "educated guess." However, the medical
testimony was that the type of injuries suffered by the
victims were consistent with the injuries one might expect to
receive if struck by an automobile. Again no objection was
raised on this ground to the doctor's testimony at trial.
The weight of the medical evidence was for the jury.
On direct examination, the State brought out from Jerry
Schneider that he had made inconsistent statements earlier
which were different from the statements he was making at the
trial with respect to the incident. The objection was that
the testimony of the earlier statements was hearsay and that
it was improper for the State to preclude impeachment of
Schneider by asking about the inconsistent statements first.
Rule 801(d)(l)(A), M.R.Evid. provides that prior inconsistent
statements of witnesses are not hearsay as long as the
witnesses testifying at the trial are subject to
cross-examination concerning the statement. Under that rule,
prior inconsistent statements are admissible as substantive
evidence, See Commission Comments, Rule 801, M.R.Evid.
The objection to Fraleigh's testimony comes about from a
question by the county attorney to Fraleiqh "did you
carefully examine the car for any little scratch everytime
Jake would return it to you?" The question could have been
better phrased. It is not prejudicial.
Glenn Hufstetler, the chief probation officer, on
rebuttal, testified that Woods' mother had told him that she
knew Woods had been trying out the automobile which was
involved in this incident for a three week period, including
the date of the incident. Objection was made that the
testimony was improper rebuttal evidence. The State contends
that the testimony tended to overcome the legal effect of the
mother's evidence, which taken as a whole permitted the jury
to infer that she kept careful watch over her sons and was
well aware of what they did and where they were. The State
contends that Hufstetlerls testimony shows her a.wareness of
the fact that Woods was driving Tim Fraleighls car at the
time the incident occurred. Again, the admission of
testimony or evidence is mainly a matter of discretion with
the lower court.
All in all, we find no cumulative error. Certainly any
such cumulative error must be enough that taken as a whole it
appears to the appellate court that the effect of the claimed
cumulative error was to deprive the defendant of a fair
trial. We cannot so conclude on the matters claimed here as
cumulative error.
We turn now to examine Woods' contentions that the
District Court erred in giving certain instructions objected
to by Woods.
The full content of such instructions are:

"You are instructed that under Montana law, a
person acts knowingly with respect to conduct or to
a circumstance described by a statute defining an
offense when he is aware of his conduct or that the
circumstance exists. A person acts knowingly with
respect to the result of conduct described by a
statute defining an offense when he is aware that
it is highly probable that such result will be
caused by his conduct.
"Instruction 14:
"You are instructed that if you find the defendant
committed a homicide and that no circumstances of
mitigation, excuse, or justification appear, you
may then infer that the homicide was committed
knowingly or purposely."
Woods' objections to court's instruction no. 9A are that it
does not require the State to prove each element of the case
beyond a reasonable doubt, it does not tell the jury what the
effect of presumptions supplying such proof is, and it shifts
the burden of proof in a criminal case. Woods' objection to
the court's instruction no. 14 is that it permitted the jury
to infer every criminal state of mind required for a
conviction, merely on the finding that a homicide had been
committed.
Court's instruction no. 9A is stated in the words of the
statute defining "knowingly," section 45-2-101(33), MCA.
The instructions given here, and the objections made by
Woods thereto, are nearly identical to the instructions and
objections that were raised in State v. Coleman (1979), -
Mont . , 605 P.2d 1000, 1052-1056, 36 St.Rep. 1134,
cert-den. 446 U.S. 970, reh.den. 448 U.S. 914 (1980). There,
as here, the defendant contended that the given instructions
offended the holding of the United States Supreme Court,
particularly in Sandstrom v. Montana (1979), 442 U.S. 510, 99
S.Ct. 2450, 61 L.Ed.2d 39; and United States v. United States
Gypsum Company (1978), 438 U.S. 422, 98 S.Ct. 2864, 57
L.Ed.2d 854. With respect to the instruction nearly
identical to court's instruction no. 14 here, we said:
"The holding in Sandstrom is not to be construed to
mean that whenever a trial court instructs a jury
that it may resort to inference to determine
subjective matters, such as knowledge or purpose,
that thereby the State has been relieved of its
burden of proof. The United States Supreme Court
did not intend such limitation, and we do not find
any such intention in the language of Sandstrom or
its related cases. The jury was not allowed to
rest solely upon the permitted inference in the
Coleman case, but under the instructions, had to
require such an inference to meet the standard as
beyond a reasonable doubt.
"The true test under Sandstrom, in determining the
effect of an instruction such as the one disputed
here is whether that instruction has the effect of
allocating to the defendant some part of the burden
of proof that properly rests on the State
throuqhout the trial. See Holloway v. McElroy (D.
 Ga. 1979), 474 F.Supp. 1363, 1368. We do not find
that to have occurred here.
"On that basis we distinguish the Coleman
instruction from those cases involving a
burden-shifting presumption as in Mullaney v.
Wilbur (1975), 421 U.S. 684, 95 S.Ct. 1881, 44
L.Ed.2d 508; and conclusive presumptions like those
involved in Sandstrom, supra, Mortissette v. United
States (1952), 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed.
288, and United States v. United States Gypsum
Company (1978), 438 U.S. 422, 98 S.Ct. 2864, 57
L.Ed.2d 854. Instead, the inference is purely
permissive, in the sense described in County Court
of Ulster County v. Allen (1979), 442 U.S. 140, 99
S.Ct. 2213, 60 L.Ed.2d 777." 605 P.2d at 1054.
With respect to the instruction similar to court's
instruction no. 9A here, we said:
"When the holdings in Sandstrom and United States
Gypsum Company are understood in that context, one
may examine the instruction 'knowingly,' complained
of here, and determine that the factfinding duty of
the jury is not invaded by the court. The District
Court is not usurping a jury function when it
instructs 'a person acts knowingly with respect to
the result of conduct [constituting a crime] when
he is aware that it is highly probable that such
result [would] be caused by his conduct.'
"The jury is not called upon to determine 'high
probability' in place of 'reasonable doubt;' rather
it is called on to determine the existence of
defendant's awareness, beyond a reasonable doubt,
that a high probability is that the result of his
conduct makes his conduct criminal. The District
Court here did not, by using this instruction, make
it mandatory upon the jury to find defendant's
awareness nor conclusively presume his awareness.
That finding was left exclusively to the jury. In
short, the instruction did not establish a
presumption which testimony could not overthrow.
On that basis, therefore, we find no merit in the
second ground of attack." 605 P.2d at 1055.
Since we have fully examined the contentions that Woods
makes here in connection with nearly the same instructions in
Coleman, we see no reason now to find prejudice or error with
respect to virtually the same instructions given here by the
court.
The final issue that appears in the briefs is whether
court-appointed counsel for purposes of appeal are entitled
to receive compensation for their services from the county
involved. Counsel agreed at oral argument that such an issue
has no part as a contention to be considered in connection
with a defendant's appeal. We therefore make no decision
here as to whether counsel is entitled to receive attorney
fees at county expense.
The judgment of conviction of the defendant is affirmed.

We Concur:

Chief Justice
I
Mr. Justice Daniel J. Shea, dissenting:

I dissent and I would reverse the convictions.
Unlike the majority, I cannot overlook the defects in
the Youth Court proceedings. The State did virtually nothing
right and yet the majority has given its blessings to the
conviction obtained by the initiation of patently defective
Youth Court proceedings. Nor can I overlook the failure of
the State to follow the law as a condition to filing the
charges against defendant in District Court.
When the State first filed the petition in Youth Court,
1
it failed to comply with sections 4,5-5-501(2) (c), MCA,
d
48-5-501 (7), MCA, and 41-5-502 (4) MCA. Section
&

46-5-501 (,Z') (c), MCA, requires that the petition state the
facts constituting the offenses in ordinary, concise language
so that a person of common understanding would know what wa.s
intended. The majority a.grees this section was violated.
j
Section 48-5-501(7), MCA, requires that when the petition is
filed that it include a list of the witnesses to be called in
proving the offense, a.nd the majority agrees this section was
violated. And finally, if a youth is to be placed in
custody, section 41-5-502 ( 4 ) , MCA, requires that a sworn
statement accompany the petition alleging that the ". . .
youth needs to be placed. in detention or shelter care .. .If

The majority also agrees that this section was violated.
Despite these defects, the State had defendant illegally
arrested in Oklahoma and transported in custody to Montana.
Once he arrived, the errors continued. Section 41-5-516 (1),
MCA, requires that a hearing must be begun "within - days
15
after all service - completed."
is No exceptions are provided
for if the youth is in custody, which is the situation here,
t h e s t a t u t e p r o v i d e s a mandatory remedy f o r f a i l u r e t o h o l d

such a hearing. Subsection (1) a l s o p r o v i d e s t h a t i f the

h e a r i n g i s n o t begun w i t h i n the 1 5 day p e r i o d ". . . the

petition shall be dismissed with prejudice . . ." The

h e a r i n g was n o t begun w i t h 1 5 d a y s and t h e p e t i t i o n s h o u l d

t h e r e f o r e have been d i s m i s s e d w i t h p r e j u d i c e . This being so,

t h e Youth C o u r t had no j u r i s d i c t i o n t o o r d e r d e f e n d a n t t o b e

proceeded a g a i n s t a s an a d u l t .

Following a r e t h e procedural facts. The p e t i t i o n was

f i l e d on March 1 9 , 1 9 8 1 , and sometime between t h i s d a t e and

March 24, 1981, d e f e n d a n t was a r r e s t e d i n Oklahoma and t a k e n

to Montana. On March 24, 1981-, defendant, in custody,

a p p e a r e d b e f o r e t h e Youth C o u r t w i t h o u t c o u n s e l . Also, on

March 24, 1 9 8 1 , t h e S t a t e f i l e d a motion t o t r a n s f e r t h e c a s e

t o D i s t r i c t Court. On March 25, d e f e n d a n t a g a i n a p p e a r e d , i n

custody, without counsel. The Youth C o u r t t h e n a p p o i n t e d t h e

public defender.

On March 26, 1981, the defendant appeared with the

public defender. The Youth C o u r t s e t a h e a r i n g d a t e f o r t h e

motion to transfer--the d a t e was set f o r April --
28, 1981.

From t h e t i m e d e f e n d a n t f i r s t a p p e a r e d i n c u s t o d y on March

24, 1981, u n t i l t h e d a t e o f t h e h e a r i n g , more t h a n a month

had gone by. The s t a t u t e r e q u i r e s a d i s m i s s a l i f t h e h e a r i n g

i s n o t begun w i t h i n 1 5 d a y s o f t h e d a t e on which d e f e n d a n t i s

taken i n t o custody.

On A p r i l 1 3 , 1981, t h e S t a t e f i l e d two documents w i t h

t h e Youth C o u r t . The f i r s t was a w a r r a n t d i r e c t e d t o t h e

Oklahoma a u t h o r i t i e s for t h e a r r e s t of defendant. I t was

dated March 19, 1981, and had o b v i o u s l y been served, for

d e f e n d a n t had been a r r e s t e d and r e t u r n e d t o Montana on March

24. The second document was a summons i s s u e d t o d e f e n d a n t ' s
mother, dated March 30, 1981, with a return of service dated
March 31-, 1981. Service, under section 41-5-516(1), MCA, was
therefore complete on March 31. Based on section
41-5-516(1), the Youth Court was required to set a hearing by
at least April 15, 1981, and a failure to begin the hearing
on that date required a dismissal of the charges. As of
April 1-5, 1981, there was nothing to transfer to District
Court because the hearing had not begun.
Nonetheless, on April 28, 1981, the Youth Court heard.
the State's motion to transfer the case to District Court
asking that defendant be treated as an adult for purposes of
prosecution. On that date, co-counsel appeared on behalf of
the defendant and the hearing was held. On May 26, 1981 the
Youth Court ordered transfer of the case to the District
Court. The Youth Court, however, had no authority to
transfer the case to District Court. By failing to hold a
hearing by April 15, 1981, the Youth Court had. lost
jurisdiction. Again, section 41-5-516 (1), MCA, provides in
part that the failure to begin the hearing after service is
complete requires a dismissal with prejudice.
Here the majority admits the State failed to provide a
sworn petition or statement which is necessary as a condition
-3--
to holding a person in custody (section 41-502 (4), MCA) , the
majority admits the State failed to state the charges as
i -2
required by section 4,6-5-501v) (c), and the majority admits
that the State failed to provide defendant with a list of
'r

witnesses as required by section 48-5-501(7). In addition, I
believe the State was required by section 41-5-516(l) to
begin the hearing by April 15, 1981 under pain of dismissal
with prejudice. No such hearing was held. Based on these
defects, I have no difficulty in determining that the Youth
Court proceedings were so defective that the Youth Court had
no jurisdiction to send the case to District Court--there was
nothing to send.
I cannot agree with the majority that the 15 day hearing
limitation does not apply if the State has made a motion to
transfer the case to District Court to have the defendant
/
prosecuted as an adult. Section 4$-5-206, MCA, does permit
the State to file a motion to transfer before a hearing, but
I would hold nonetheless that the hearing, including a
hearing on the State's transfer motion, must be heard within
the 15 day period if the defendant is in custody. The
majority holding defeats the purpose of the Youth Court
statute which requires the hearing within 15 days. Its
purpose is to provide a speedy hearing for anyone held in
custody, even if that person is subject to being transferred
to District Court to be prosecuted as an adult. The purpose
is defeated when the hearing is not held within 15 days on
the ground that the State pre-empted the speedy hearing
requirement by the simple expedient of filing a transfer
petition.
Nor can I agree with the majority that the Youth Court
proceedings on the transfer motion can substitute for the
requirements of Article 11, 5 20, which set forth the
requirements for filing a criminal case in District Court.
Article 11, 5 20, provides:
". . . All criminal actions in district court,
except those on appeal, shall be prosecuted either
by information, after examination and commitment by
a magistrate or after leave granted by the court,
or by indictment without such examination,
commitment or leave."
We start, of course, with the Constitution. It provides
that all criminal actions in District Court must proceed by
information or indictment. If by information, it must be
after an examination and commitment by a magistrate or after
the District Court has granted leave to file the information.
The Constitution says nothing about a Youth Court having the
powers of a magistrate. Nor does it say anything about a
Youth Court wea.ring two hats simultaneously, tha.t of Youth
Court, and that of a committing magistrate.
I don't believe the framers of our Constitution intended
that Article 11, § 20, be short-circuited in the manner done
here. Here, there was no complaint filed in justice court
followed by a preliminary hearing and an order binding over
to District Court. And there was no application for leave to
file an information followed by an order permitting the
information to be filed. Nor, of course, was there was a
charge based on a grand jury indictment. Rather, the Youth
Court found that defendant should be tried as an adult, and
ordered tha.t defendant be so tried. This order, under our
Art. 11, 5 20, did not constitute leave to file an
.
information. Nor did the Youth Court hearing double as a
preliminary hearing before the magistrate.
Next comes the statutes. The State had two options:
(1) to file charges in Justice Court followed by a
preliminary examination and order binding defendant over to
trial upon a finding of probable cause; or (2) to file in
District Court an application for leave to file an
information, the charges then not to be filed unt.il the
District Court granted leave. The State followed neither of
these alternatives.
The applicable statutes are sections 46-11-101,
46-1.1-102, and 46-11-201, MCA. In seeking to comply with
Article 11, 20, section 46-11-101 provides that an
information can he filed either followinq - preliminary
a
examination or after the District Court has granted leave of
court. Section 46-11-102 simply provides in part that all
offenses triable in District Court must be by indictment or
information. And section 46-11-201(1), sets forth the
requirements for filing an information when the State seeks
leave to file an information. Nowhere do these statutes, or
any other statutes, provide that a Youth Court judge also
wears the simultaneous double hat of a committing magistrate.
Based on the major defects in the Youth Court
proceedings, and the failure of the State to abide by the
Constitution (Art. 11, 20) in filing charges against
defendant, I would reverse the convictions.