No. 83-319
I N THE SUPREME COURT O F THE STATE OF MONTANA
1984
STATE OF MONTANA,
P l a i n t i f f and R e s p o n d e n t ,
-vs-
ROY XANKINS,
D e f e n d a n t and A p p e l l a n t .
APPEAL FROM: D i s t r i c t C o u r t of t h e F i r s t J u d i c i a l D i s t r i c t ,
I n a d F o r t h e C o u n t y of L e w i s & C l a r k ,
T h e H o n o r a b l e G o r d o n B e n n e t t , Judge p r e s i d i n g .
COUNSEL OF RECORD:
For Appellant:
A n n L. Smoyer, Helena, Montana
For R e s p o n d e n t :
Mike Greely, Attorney General, Helena, Montana
Mike M c G r a t h , C o u n t y A t t o r n e y , H e l e n a , Montana
S u b m i t t e d on B r i e f s : January 26, 1 9 8 4
Decided: A p r i l 30, 1984
Filed: 4Pi( ,i 1984
Clerk
Mr. J u s t i c e L . C. Gulbrandson d e l i v e r e d t h e Opinion of the
Court.
The d e f e n d a n t , Roy H a n k i n s , was c h a r g e d on J u n e 30,
1982, i n t h e D i s t r i c t C o u r t of t h e F i r s t J u d i c i a l D i s t r i c t ,
with the felony offense of trafficking in the unlawfully
o b t a i n e d body p a r t s o f a protected species. On A u g u s t 2 7 ,
1982, Hankins e n t e r e d a p l e a of not guilty. On March 9 ,
1983, a j u r y found Hankins g u i l t y of t h e o f f e n s e charged.
Hankins a p p e a l s from t h e j u r y v e r d i c t . We affirm.
A t the outset, we note certain f a c t s relevant t o t h i s
appeal :
(1) I n o r d e r to sell or transfer a bobcat p e l t the
pelt must bear a tag issued by a warden from the Fish,
W i l d l i f e and P a r k s D e p a r t m e n t . The t a g i s d e s i g n e d s o t h a t
i t c a n n o t b e removed w i t h o u t damaging t h e t a g .
( 2 ) During t h e t r a p p i n g s e a s o n involved i n t h i s c a s e ,
e a c h l i c e n s e e was a l l o w e d o n e b o b c a t .
( 3 ) The b o b c a t trapping season ran f r o m December 1,
1 9 8 1 t o F e b r u a r y 1 5 , 1982 and t h e r e were t e n d a y s from t h e
c l o s e of t h e s e a s o n t o t a g a p e l t .
On February 23, 1983, two days before the end of
tagging, H a n k i n s and h i s w i f e , Nancy, had game w a r d e n J i m
B i r d i n Townsend t a g a b o b c a t p e l t w i t h t a g number 707 f o r
Nancy H a n k i n s . B i r d l a t e r t e s t i f i e d t h a t t h e p e l t "was o l d
and d r i e d o u t , and t h e f u r was v e r y s h o r t . " T h a t same d a y
Roy Hankins appeared at the Fish, Wildlife and Parks
warehouse i n Helena w i t h a bobcat p e l t . The S t a t e l a t e r
contended a t t r i a l t h a t t h e p e l t Bankins p r e s e n t e d i n Helena
was the same pelt he had tagged earlier in Townsend.
H a n k i n s r e c e i v e d t a g number 1901 from t h e Helena warehouse
i s s u e d t o Hankins himself a s l i c e n s e e .
Subsequently, H a n k i n s s o l d a p e l t b e a r i n g t a g number
1 9 0 1 t o B i l l Summers f o r $130. Summers in turn sold the
pelt to Pacific Hide and Fur for $10 o r $15 b e c a u s e the
b u y e r a t P a c i f i c H i d e and F u r c o n s i d e r e d t h e p e l t t o b e o f
poor q u a l i t y .
Thereafter, Warden J i m B i r d o f Townsend e x a m i n e d t h e
p e l t w i t h t a g number 1 9 0 1 and l a t e r t e s t i f i e d a t t r i a l t h a t
i t was t h e same p e l t h e had tagged at Townsend with tag
number 707. B i r d a l s o l e a r n e d t h a t on a b o u t March 1 8 , 1 9 8 2
Hankins s o l d a h i g h q u a l i t y p e l t t o P a c i f i c Hide and Fur f o r
$200. This p e l t , which B i r d l a t e r t e s t i f i e d h e had n e v e r
s e e n b e f o r e , b o r e t a g number 707. Bird also testified a t
trial that t a g number 707 showed s i g n s of t o o l marks and
appeared t o have been p r i e d o f f .
As a r e s u l t of t h e f o r e g o i n g o c c u r r e n c e s H a n k i n s was
charged and convicted by a jury of violating Section
87-3-111, MCA, t r a f f i c k i n g i n t h e u n l a w f u l l y o b t a i n e d body
parts of a protected species, a felony. Hankins was
s e n t e n c e d t o s e r v e o n e y e a r i n t h e Montana S t a t e P r i s o n a l l
of which was s u s p e n d e d i f H a n k i n s s p e n t t e n week-ends in the
L e w i s and C l a r k jail, p a i d a f i n e of $1,000 and f o r f e i t e d
h i s l i c e n s e t o h u n t , f i s h o r t r a p f o r two y e a r s .
The f i r s t i s s u e H a n k i n s r a i s e s on a p p e a l is w h e t h e r
t h e D i s t r i c t Court e r r e d in its i n s t r u c t i o n s t o t h e jury.
Appellant contends t h a t because t h e information r e f e r r e d t o
"bobcats"-- p l u r a l , t h e D i s t i c t Court should have i n s t r u c t e d
t h e j u r y t h a t t h e y had t o f i n d t h a t more t h a n o n e b o b c a t was
i l l e g a l l y taken i n order t o convict t h e appellant.
Although the information did state that appellant
e n g a g e d i n a common scheme t o t r a f f i c i n t h e "body p a r t s " o f
unlawfully taken "bobcats," the jury i n s t r u c t i o n which
referred to those terms singularly does not constitute
reversible error. In S t a t e ex rel. McKenzie v . District
C o u r t ( 1 9 7 4 ) , 1 6 5 Mont. 54, 525 P.2d 1211, t h i s Court h e l d
that the purpose of an information is to inform the
d e f e n d a n t o f what h e is c h a r g e d . " I t is n o t t h e f u n c t i o n of
the information t o a n t i c i p a t e o r suggest i n s t r u c t i o n s t o t h e
jury . . . It i s a n o t i c e d e v i c e , not a discovery device."
S t a t e e x r e l . McKenzie, s u p r a , 1 6 5 Mont. a t 6 3 .
Appellant a l s o a s s e r t s t h a t t h e D i s t r i c t Court's jury
instructions failed t o d i s t i n g u i s h between the f e l o n y and
misdemeanor o f f e n s e s u n d e r S e c t i o n 8 7 - 3 - 1 1 1 ( 1 ) a n d ( 4 ) , MCA.
The misdemeanor p o r t i o n o f S e c t i o n 87-3-111, MCA, p r o v i d e s :
" I t i s h e r e b y made u n l a w f u l f o r a n y
person t o purchase, sell, o f f e r t o s e l l ,
p o s s e s s , s h i p o r t r a n s p o r t a n y game,
fish, game bird, game animal or
f urbear ing animal or part thereof
p r o t e c t e d by t h e l a w s o f t h i s s t a t e ,
whether belonging to the same or
d i f f e r e n t s p e c i e s from t h a t n a t i v e t o t h e
S t a t e o f Montana, e x c e p t a s s p e c i f i c a l l y
p e r m i t t e d by t h e l a w s o f t h i s S t a t e . "
The f e l o n y p o r t i o n o f S e c t i o n 8 7 - 3 - I l l , MCA, p r o v i d e s :
"Any p e r s o n e n g a g i n g i n t h e a c t i v i t i e s
prohibited in subsection (1) in
f u r t h e r a n c e o f a scheme t o t r a f f i c i n t h e
body p a r t s o f u n l a w f u l l y t a k e n s p e c i e s i s
g u i l t y o f a f e l o n y and s h a l l b e p u n i s h e d
by a f i n e o f $ 1 0 , 0 0 0 o r i m p r i s o n m e n t i n
t h e s t a t e p r i s o n f o r a term of 1 year o r
both. "
When read together, the jury i n s t r u c t i o n s c l e a r l y draw a
distinction between the felony offense charged and the
lesser i n c l u d e d misdemeanor offense. Court's instruction
number 1 provided, in pertinent part: "The D e f e n d a n t , Roy
Hankins, is, by information a.ccused of trafficking in
unlawfully obtained body arts of a protected species, a
felony . .. " Court's instruction number 10 provided, in
pertinent part:
"You are instructed that to prove the
offense charged in this case, the State
must prove the following propositions
beyond a reasonable doubt:
"First: That the bobcat pelt bearing tag
#1901, or the pelt bearing tag $707, was
unlawfully taken.
"Second: That Roy Hankins purposely or
knowingly purchased, sold, offered to
sell, possessed, shipped or transported
an unlawfully taken bobcat pelt, and that
unlawfully taken pelt was the pelt
bearing tag #1901, or the pelt bearing
tag #707.
"Third: That Roy Hankins committed or
performed the acts described in the
preceding paragraph in furtherance of a
common scheme to traffic in the body
parts of unlawfully taken species."
Court's instruction number 14 distinguished between the
felony charged and the misdemeanor offense by providing, in
part:
"You are instructed that to prove the
misdemeanor offense of unlawfully buying,
selling, possessing or transporting game,
the State must prove the following
propositions beyond a reasonable doubt:
"First: That the bobcat pelt bearing tag
#1901, or the pelt bearing tag #707, was
unlawfully taken; and
"Second: That Roy Hankins purchased,
sold, offered to sell, possessed, shipped
or transported an unlawfully taken bobcat
pelt, and that unlawfully taken pelt was
the pelt bearing tag #1901, or the pelt
bearing tag #707.
Court's instruction number 14 on the misdemeanor offense
properly omitted the "common scheme" language required for a
felony conviction. Moreover, "common scheme" was
accurately defined by court's instruction number 7 which
provided:
"'Common scheme' means a series of acts
or omissions motivated by a purpose to
accomplish a single criminal objective or
by a common purpose or plan which results
in the repeated commission of the same
offense or affects the same person or the
same persons or the property thereof."
Although appellant asserts the court's instruction on
"common scheme" was an inadequate statement of the law, the
instruction was taken directly from Section 45-2-101(7),
MCA. On several previous occasions this Court has rejected
challenges to jury instructions when those instructions
restated statutory language. State v. French (1975), 166
Mont. 196, 531 P.2d 373; State v. Dunn (1970), 155 Mont.
319, 472 P.2d 288. Likewise, the court's instruction on the
definition of "trafficking" was taken directly from Section
87-3-111, MCA, and did not constitute reversible error.
The District Court also did not err by refusing
defendant's proposed jury instruction number 17 which set
forth the duties of fish and game wardens. Where the
instruction has no relevance to the case it serves no
purpose but to confuse the jury. "An instruction should not
be given if it is not relevant nor material to the evidence
or issues in the case." State v. Brooks (1967), 150 Mont.
399, 436 P.2d 91. The fish and game wardens were not on
trial in this case and appellant's proposed jury instruction
was not relevant to the issues presented at trial.
A review of the jury instructions in their entirety
indicates the jury was fully and fairly instructed on the
applicable law and we cannot reverse the decision of the
District Court. State v. Higley (Mont. 1980), 621 P.2d
Next appellant asserts that the information was
legally insufficient and defective on its face.
Specifically, appellant argues the language of the
information insufficiently apprised the appellant of the
charges that were being brought against him.
The information stated the offenses essentially in
terms of the statute with additional allegations of time and
place. Montana follows the general rule that an information
is sufficient if it properly charges an offense in the
language of the statute describing the offense. State ex
rel. Glantz v. District Court (1969), 154 Mont. 132, 461
P.2d 193. "An information need only be sufficient to
apprise the accused of the crime charged. It need not be
perfect." State v. Coleman (1978), 177 Mont. 1, 22, 579
P.2d 732, 745. Thus, the information in the case was
legally sufficient and not defective on its face.
The appellant also maintains that the District Court
erred in failing to rule on appellant's motion to dismiss on
grounds that the information was unsupported by probable
cause. However, the record shows that the District Court
denied appellant's motion to dismiss on March 7, 1983
immediately preceding trial by jury.
Appellant also argues that the District Court erred in
denying appellant's motion for a continuance. Eight months
elapsed from the time of the filing of the information to
the day of trial and the appellant has failed to demonstrate
any prejudice that was caused by the District Court's denial
of a continuance. "Motions for continuance are addressed to
the discretion of the trial court and the granting of a
continuance has never been a matter of right. The District
Court cannot be overturned on appeal in absence of a showing
of prejudice to the mova.nt." State v. Van Natta (Mont.
Finally appellant argues the District Court erred in
its sentencing of the appellant. Specifically, appellant
inaintains the District Court erred by, (1) failing to order
a presentence investigation; (2) failing to mention that
appellant was to lose his trapping privileges; (3) charging
the appellant by information with a felony but including
misdemeanor sanctions in appellant's sentence; and (4) the
sentencing was erroneous because potential punishment was
not set forth in the information.
Section 46-18-111, MCA, provides in pertinent part:
"No defendant convicted of a crime which
may result in commitment for one (1) year
or more in the state prison, shall be
sentenced or otherwise disposed of before
a written report of investigation by a
probation officer is presented to and
considered by the court, unless the court
deems such report unnecessary." (Emphasis
added. )
The plain language of the statute indicates the necessity of
a presentence investigation is within the sound discretion
of the District Court and appellant's assertion that the
District Court erred by refusing to conduct an investigation
is without merit. Moreover, the District Court clearly
explained to appellant its reasons for the sentence it
imposed and appellant declined to object or respond to those
reasons with any mitigating circumstances he could find
State v. Bretz (Mont. 1979), 605 P.2d 974, 36 St.Rep. 1037.
The District Court did not err by failing to mention
appellant would lose his trapping privileges. The District
Court clearly stated at sentencing that it would "impose the
sanctions set forth in Section 87-1-102, MCA," which
includes the loss of trapping privileges.
Also, there is no merit to appellant's contention that
the District Court could not use sentencing options in the
felony which it could in the misdemeanor. Here, the felony
includes the misdemeanor. Under Section 87-3-111, MCA, the
State had to first prove the misdemeanor offense before it
could prove the felony offense. Thus, the loss of hunting,
fishing and trapping privileges was properly applied to the
appellant.
Lastly, the sentence was not improper because the
information failed to set forth appellant's potential
punishment. Section 46-11-401, MCA, which provides what the
charge shall contain, does not require the State to inform
the accused of the potential punishments for the offense.
The State sustained its burden of proof and we find no
reversible error.
P
The conviction is affirme
&,L
Justice
/
We concur:
3 Justice 4
Chief
~ d /
Justices
Mr. Justice Daniel J. Shea concurs and will file a
written concurrence at a later time.
SPECIALLY CONCURRING OPINION OF
MR.. JUSTICE DANIEL J. SHEA
STATE OF MONTANA
VS .
ROY HANKINS
C L E W OF SUPRMWE @8UR'I;
STATE OF NION1'LkNA
DATED: January 6, 1985
Kr. Justice Daniel J. Shea specially concurring:
1 agree with the majority's decision to affirm the
defendant's conviction. However, I cannot agree with the
mz jority ' s ruling that the jury instructions on "common
scheme" and "traffickins," which set forth statutory language
verbatin, are valid solely because they are drafted in
statutory language. When a statute upon which s jury
instruction is based is amgiguous or difficult to understand,
that jury instruction is also usually ambiguous or unclear.
Merely setting forth statutory Language does not always
fulfill the trial court's obligation to fully and accurately
instruct the jury. Additional.. or different instructions may
be needed in order to insure that the jury receives the
clearest picture possible of the pertinent legal issues.