No. 82-441
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
EVELYN FERREL,
Defendant and Appellant.
APPEAL FROM: District Court of the Sixteenth Judicial District,
In and for the County of Fallon,
The Honorable Alfred B. Coate, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Gene Huntley argued, Baker, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Judy Browning argued, Asst. Atty. General, Helena
Denzil R. Young, County Attorney, Baker, Montana
Marc Racicot, Count Prosecutor Services, Helena
Submitted: 11/29/83
Decided: 3/27/84
Filed: MAM ;,) i I
--
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Evelyn Ferrel appeals from her convictions in the
District Court, Sixteenth Judicial District, Fallon County,
of felony theft and felony intimidation. She was given a one
year suspended sentence on the crime of felony theft, ordered
to make restitution on the sum of $500, and assessed a $500
fine . She was additionally given a one year suspended
sentence for the conviction of intimidation.
We reverse the convictions of Evelyn Ferrel, with
instructions to the District Court to dismiss the cha.rges
against her.
Evelyn Ferrel and her husband Allie, ages 58 and 73
respectively in 1981, had been employed in western Fallon
County, Montana on a large ranch known as the MacKay Ranch,
or the MacKay Trust Ranch. For 12 years, Allie served as the
ranch manager and Evelyn as ranch bookkeeper. Donald MacKay,
the executive member of the MacKay family trust, supervised
the actj-vities of the Ferrels. It seems und.isputed that in
large part, the d.a.y-to-dayoperations of the ranch were taken
care of by the Ferrels, includimg decisions as to the sale of
cattle, haying operations, collecting monies, making deposits
in a bank in Miles City, and drawing checks upon such bank
account for ranch expenses.
On November 12, 1980, under Donald MacKay ' s direction,
the Ferrels disposed of cattle belonging to the ranch at. a
market in St. Onge, South Dakota. Because MacKay desired
that the cattle sale appear to have been made in 1981 rather
than in 1980 for tax purposes (in 1981 the cows and heifers
would have attained 2 years of age which according to Mr.
MacKay would entitle the ranch to capital gains treatment
rather than ordinary income treatment for income tax
purposes). This purpose was accomplished by having the
market owner invest the funds for the cattle in a bank time
certificate of deposit payable to the market owner maturing
in the spring of 1981. When the certificate matured, the
Ferrels went to South Dakota and cashed the time deposit
certificate and obtained the funds, $61,727, which
subsequently they deposited in the ranch banlc account in
Miles City. However, at the same time that they received the
cash deposit, the Ferrels were also presented with a check
payable to the MacKay ranch in the amount of $4,364.74, which
represented interest on the monies that had been deposited
under the bank certificate in South Dakota. This fact was
reported by the Ferrels to MacKay. He instructed the Ferrels
to deposit the $61,727, but not to cash the $4,364.74 check
until MacKay decided how it should be handled. The evidence
is not clear as to the period of time for which the Ferrels
were to hold the check. It was contended that they were to
do so for a few days. It is clear that MacKay did not want
the check to be hel-d too long because he felt there might be
some difficulty cashing it, if there was too much delay
before it was presented for payment.
MacKay was at the ranch premises in Fallon County on May
22, 1981, when all of these matters had occurred respecting
the checks. He did not on that date indicate any
dissatisfaction with the Ferrels' work. Eecause of this, the
Ferrels went ahead and put in their usual garden on the ranch
premises, as they had done i-n the years preceding during
their tenure as employees on the ranch. On June 9 or 10,
MacKay returned to the ranch and told the Ferrels that their
employment was terminated as of June 13, 1981. He said then
that they could harvest the garden that had been planted.
Within a few days, however, he extended the time of their
employment to June 30, 1981.
On or around June 11, 1981, Evelyn Ferrel cashed the
interest check and received the funds therefore at a bank not
the one usually used for the ranch finances.
MacKay testified that on 3 occasions, one on July 1,
1981, and two others in the month of June, he demanded of the
Ferrels the bookkeeping records and accounts of the MacKay
ranch, and the interest check. On the first occasion, he
testified, Evelyn made the excuse that the books were not
current and she wanted to have them brouqht up-to-date before
she transferred the documents to him. It is not clear from
his testimony what occurred on the other occasions.
The Ferrels testified that they had originally been told
by Mr. MacKay that they could maintain and harvest the garden
which they had planted, but later Mr. MacKay told them that
they could not harvest the garden. Evelyn Ferrel told Mr.
MacKay that she would not turn over the proceeds of the
interest check to him until he paid them $500 which she
contended was the value of the garden which he was
withholding from them.
On June 30, 1981, the Ferrels went to their attorney in
Baker, and asked him how they should turn the bookkeeping
records over to Mr. IlacKay. The attorney informed the
Ferrels, and they, the same day informed MacKay that he was
to come to the attorney's office at 2:30 p.m. for the purpose
of settling their differences. However, MacKay refused to go
to the attorney's office. Other arrangements were made and
the parties met without the attorney present at the ranch
premises on July 1, 1981, where the Ferrels transferred to
MacKay the bookkeeping records and documents, about which
there is no dispute in this case now. Evelyn Ferrel however,
advised MacKay that she would hold the proceeds of the
interest check until MacKay paid to the Ferrels the sum of
$500 for the value of the garden, now upon the advice of
counsel.. The Ferrels then went to the office of their
attorney in Baker, and there delivered to him the funds from
the interest check, which the attorney deposited in his trust
account.
MacKay refused the condition. He went instead to the
office of the county attorney in Fallon County. The county
attorney filed criminal charges of theft and intimidation
against Evelyn Ferrel and her husband.
At the close of the evidence in the trial against them,
the court dismissed on motion the case against Allie Ferrel.
The case against Evelyn Ferrel was submitted to the jury
which resulted in the convictions to which we have earlier
adverted.
There are in this case a number of contentions, issues
and sub-issues between the parties, but for the purposes of
this opinion we will discuss only the issues which we feel
are dj-spositive the case.
of
I.
We turn first our attention to the conviction of Evelyn
Ferrel on the charge of intimidation.
Count V of the amended information against Evelyn Ferrel.
charged that, "with the purpose to cause Donald MacKay to
perform an act, namely to make a payment of $500.00 to Evelyn
or Allie Ferrel or both, Evelyn Ferrel communicated to Donald
MacKay a threat to perform without lawful authority the
offense of theft, in violation of Section 45-5-203, M.C.A."
The sufficiency of the charge may be dubious (see
section 46-11-401, MCA), hut it was not challenged on that
ground. It was Evelyn Ferrel's contention throughout the
trial and on a.ppeal that the charge of intimidation could not
stand against her because in fa.ct her threat to withhold the
proceeds of the check until she was paid $500 did not
constitute a theft.
We must perforce consider her conviction of intimidation
in the light of the decision of the IJnited States Court of
Appeals for the 9th Circuit in Wurtz v. Risley (9th Cir.
1983), 719 F.2d 1438.
Wurtz was convicted in the District Court in Flathead
County, Montana of intimidation arising from his actions in
following a woman pedestrian in his automobile and shouting
to her through an open window that he was going to rape her.
Wurtz was charged. under section 45-5-203(1) (c), MCA, (1981),
which provides:
"Intimidation. (1) A person commits the offense of
intimidation when, with the purpose to cause
another to perform or to omit the performance of
any act, he communicates to another a threat to
perform without lawful authority a-ny of the
following acts:
" (c) commit any criminal offense. "
In State v. Wurtz (1981), 195 Mont. 226, 636 P.2d 246,
this Court upheld the constitutionality of the charge against
Wurtz under section 45-5-203(l) (c) as above quoted. After
his conviction was upheld here, Wurtz took his case on habeas
corpus proceedings to the Federal District Court in the
western district of Montana and eventually to the United
States Court of Appeals for the 9th Circuit. In
Wurtz v. Risley, supra, the Court of Appeals held that
section 45-5-203 (1)(c) was unconstitutional for overbreadth.
That court held that the thrust of the statute was toward
pure speech and away from the regulation of conduct, contra
to what we had held in State v. Wurtz, supra, and went on to
say:
"It is true that threats have traditionally been
punishable without violation of the first
amendment, but implicit in the nature of such
punishable threats is a reasonable tendency to
produce in the victim a fear that the threat will
be carried out (citing cases) . Section 203 (1)(c)
is not so limited. It is possible by judicial
construction to read an element of instilling fear
into the term "threat", id., but the Supreme Court
of Montana has imposed no such narrowing
construction upon section 203 (1)(c) ' [A] statute..
. which makes criminal a form of pure speech, must
be interpreted with the commands of the First
Amendment clearly in mind. What is a threat must
be distinguished from what is constitutionally
protected speech.' (citing a case). "
719 F.2d at 1441.
Moreover the Court of Appeals held that the constitutionality
of the statute could be attacked by Wurtz even though he may
have been guilty of conduct which could be constitutionally
punished and his a.rgumentagainst the validity of the statute
involved applications to the rights of third persons. 719
The Court of Appeals in Wurtz v. F-isley, supra, left
open to this Court the possibility that the validity of
section 45-5-203(1) ( c ) might be at least partially sa.ved by a
narrow construction of its application from this Court. This
case involving Evelyn Ferrel is not one that affords such an
opportunity. In this case Evelyn Ferrel's speech is the only
act to which the intimidation statute can be applied. It
cannot be said that her speech instilled. fear in Donald
MacKay or included threatening gestures or intimidating acts.
In Wurtz it appeared that the defendant could have been
charged with misdemeanor assault in the first instance, but
that is not the case here.
In the light of the holding in the Court of Appeals in
Wurtz v. Risley, supra, we reverse the conviction of Evelyn
Ferrel on the charge of intimidation, and direct a dismissal
of that charge against her.
We turn now to a consideration of the conviction of
Evelyn Ferrel on the charge of felony theft.
She was charged and convicted in the District Court on
Count I1 of the information:
"On or about and during the period of May 26, 1981
to July 1, 1981 at Fallon County and Carter County
Montana, Evelyn Ferrel, did purposely or knowingly
obtain or exert unauthorized control over a
Cashiers' Check of Tri-State National Bank of Belle
Fourche, South Dakota payable to MacKay Ranch being
Check # 5834 in the amount of $4,364.74 dated May
26, 1981 or the money derived or obtained by
cashing said check, namely $4,364.74, the property
of another, namely the MacKay Ranch, and purposely
or knowingly used the property in such a manner as
to deprive the owner, the MacKay Ranch, of the
property."
When on the appeal in this case we were considering the
instructions given by the District Court under this charge,
and the contention of Evelyn Ferrel that no crime had been
committed by her, a larger question began to emerge, did the
language of Count I1 state a crime as alleged?
In this connection a consideration of the applicable
statutes is necessary.
The crime of theft, is defined in pertinent part in
section 45-6-301, MCA, as follows:
"Theft. (1) A person commits the offense of theft
when he purposely or knowingly obtains or exerts
unauthorized control over property of the owner
and :
" (a) has the purpose of depriving the owner of the
property;"
The term "deprive" is defined in the general definitions
contained in the Criminal Code, in section 45-2-101(19) as
follows:
" 'Deprive' means to withhold property of another:
" (a) permanently;
" (b) for such a period as to appropriate a portion
of its value;
"(c) with the purpose to restore it only upon
payment of reward or other compensation; or
"(d) to dispose of the property and use or deal
with the property so as to make it unlikely that
the owner will recover it."
Note that the definition of "deprive" states four
a.lternates, and the definitions are stated in the
disjunctive, through the use of the word "or". Count I1 in
the information does not disclose which of these alternates
Evelyn Ferrel is charged with committing.
In State v. Johnson (Mont. 1982), 646 P.2d 507, 39
St.Rep. 1014, we recognized that the term "deprive" is
defined in four alternate ways and that proof of violation of
one definition is essential for finding the crime of theft.
In Johnson, the State proceeded on the theory that "deprive"
as defined by section 45-2-101(19)(d) was appl-icable. The
jury was instructed that the word "d-eprive" meant the
withholding of the property of another "to dispose of the
property and use or deal with the property so as to make it
unlikely that the owner would recover it. Only that
definition was given to the jury, and the defendant was found
guilty under that definition. On appeal the defend.ant
contended that another definition, that of subsection (a),
that "deprive" meant to withhold the property of another
permanently, should have been given to the jury. This Court
held however that the definitions in section 45-2-lOl(19) are
alternate definitions, and that if the evidence supported the
verdict of the jury on the definition presented to the jury,
the verdict would be upheld.
The procedural facts in this case are different. Here
.the defendant was charged in the broad terminology of section
45-6-301, and the trial court gave the jury all four
alternate definitions of "deprive." We are unable to
determine which definition of "deprive" the jury used in
arriving at the conviction. It is obvious that not all of
the definitions used could be supported under the facts in
this case. Since it cannot be determined upon which theory
the jury may have convicted the defendant of theft, this
alone would require, on appellate review, reversal of the
conviction. State v. Lundblade (Mont. 1981), 625 P.2d 545,
38 St.Rep. 441; United States v. Carlson (9th Cir. 1980), 61.6
F.2d 446.
Having demonstrated that reversal is inescapable under
this case, we are next brought to the determination of
whether, under the unique facts here, Evelyn Ferrel can be t
charged with the crime of theft. It is obvious that three of
the definitions of the term "deprive" cannot be used against
her. She did not assume to withhold the property
permanently, or for such a period as to appropriate a portion
of its value, or to dispose of the property and use or deal
with it as to make it unlikely that the owner would recover
it. Section 45-2-101 (19)(a), (b), (d) . The only possible
definition of "deprive" that might apply to the facts of this
case, is that contained in section 45-2-101 (19)(c), that, as
to the property, she had "the purpose to restore it only upon
payment of reward or other compensation."
In considering section 45-2-101(19)(c) we are once
again, shades of Wurtz, supra, brought face to face with
overbreadth.
It is immediately apparent that section 45-2-101 (19)(c)
would properly apply to one withholding personal property of
another for ransom, as for example "dog-napping"; or to most
cases of extortion not based on claim of right. But under a
literal interpretation of section 45-2-101(19) (c), would it
apply to a storekeeper who kept all of the proceeds of a
check presented to him by a customer for a previous
indebtedness owed by the customer? Or to a garage-keeper who
kept an automobile until a garage bill had been paid? Or to
a landlord who kept property of a tenant until the rental was
paid? Or to a tenant farmer who withheld machinery of his
landlord until the tenant was permitted to harvest crops
planted on the leased farm during the term of the lease? In
all these examples, the person withholding may have been
mistaken as to his right to withhold, but did he thereby
commit a crime of theft? The questio~s answer themselves,
but a literal application of section 45-2-101(19)(c) would
make the actors in these situations guilty of the crime of
theft.
We can find the answer here by examining the criminal
statutes themselves. As we have noted, section
45-6-301(1)(a), provides that a person commits the offense of
theft when he purposely or knowingl-y obtains or exerts
unauthorized control over property and "has the purpose" of
depriving the owner of the property.
"Purpose" is defined. in section 45-2-101 (58). There it
is stated in part tha.t "when a particular purpose is an
element of an offense, the element is established although
such purpose is conditional, unless the condition negatives
----
the harm or evil- sought - - prevented b~ - - defining
to he the law
the offense. '
I (Emphasis added) . At most, in this case, the
purpose of Evelyn Ferrel to retain the interest check was
conditional, the condition being that MacKay pay over the
value of the garden to which she claimed a right. That
condition "negatives the harm or evil sought to be prevented
by the law defining the offense." The evil the statute seeks
to prevent is the permanent deprivation of the owner of all
or a pa.rt of his property. Evelyn Ferrel may have committed
a civil trespass; she did not commit a crime as defined in
our statutes under the unique facts of this case.
There are other issues raised by the parties in this
case relating to purpose and knowledge, the application of
the concept of intent, the use of other-crimes evidence, and
related matters, but is not necessary to discuss them in view
of our application of the criminal statutes.
Accordingly, each judgment of conviction of Evelyn
Ferrel is reversed and the counts against her dismissed.
We Concur:
Chief Justice
Justices
Mr. Justice L. C. Gulbrandson is unavailable for signature.
Mr. Chief Justice Haswell., concurring in part and dissenting
in part.
I concur in reversing and dismissing defendant's con-
viction of felony intimidation. The U.S. Court of Appeals
for the Ninth Circuit has held Montana's intimidation statute
unconstitutional for overbreadth as indicated in the majority
opinion. Wurtz v. Risley (1983), 719 F.2nd 1438.
However, I would affirm defendant's conviction of
felony theft.
The majority hold that reversal is inescapable because
it cannot be determined upon which of the four alternative
definitions of "deprive" in Section 45-2-101(19), MCA, the
jury followed in convicting the defendant. In my view this
analysis and holding is incorrect in the context of this
case.
Here defendant was charged in the words of the theft
statute with purposely or knowingly obtaining or exerting
unauthorized control over the property of another with the
purpose of depriving the owner of the property. Section
45-6-301(1) (a), MCA. The defense at the trial was that the
defendant lacked the requisite intent to commit theft because
she did not intend to permanently deprive the owner of his
property, but simply openly withheld the proceeds of the
check to require the owner to keep his alleged agreement to
allow defendant to raise and harvest a garden.
The evidence at the trial supported only one of the
four alternative definitions of "deprive" in the statute,
viz, to withold property of another ''with the purpose to
restore it only upon payment of a reward or other compensa-
tion." Section 45-2-lOl(19) (c), MCA. No evidence was intro-
duced at the trial which would support any of the other three
alternative definitions.
The District Court should not have given the other
three alternative definitions of "deprive" as they were not
relevant nor material to the evidence or issues in the case.
State v. Lundblade (Mont. 1981), 625 P.2d 5 4 5 , 38 St-Rep-
441; State v. Brooks (1967), 150 Mont. 399, 436 P.2d 91. 1
would find this error harmless beyond a reasonable doubt in
the context of the trial as there wa.s no evidence on which
the jury could base a conviction except sub-section (c) of
Section 45-2-101(19), MCA. The majorj.ty opinion acknowledges
this in the following sta.tementcontained therein:
". . .She did not assume to withhold the
the property permanently, or for such a
period as to appropriate a portion of its
value, or to dispose of the property and
use or deal with it as to make it unlike-
ly that the owner would recover it.
Section 45-2-101 (19)(a), (b), (d) . The
only possible definition of 'deprive'
that might apply to the facts of this
case is that contained in Section
45-2-101 (19)(c), that, as to the property
she had 'the purpose to restore it only
upon payment of reward or other
compensation.'"
Montana statutes provide in pertinent part:
". . . No cause shall be reversed by
rea-son of any error committed by the
tri.al court against the appellant unless
the record shows tha-t the error was
prejudicial." Section 46-20-701, MCA.
"Types of errors noticed on appeal. Any
error, defect, irregularity, or variance
which does not affect substantial rights
shall be disregarded. . ." Section
46-20-702, MCA.
I would apply the foregoing rules and find that the
error did not affect the substantial rights of the appellant,
should be disregarded and that the error was harmless beyond
a reasonable doubt.
Additionally the majority go beyond granting the appel-
lant a new trial and instead dismiss the charge of theft
against her because "the evil the sta.tu.teseeks to prevent is
the permanent deprivation of the owner of all or part of his
property" as set forth in the majority opinion. The words of
the statute do not require permanent deprivation of the owner
of al.1 or part of his property. The theft statute as applied
to the facts of this case simply requires "a purpose to
restore it only upon payment of a reward or other compensa-
tion" Section 45-2-101 (1-9) (c), MCA. This statute fits the
facts of this case like a glove. The jury so held.
I would affirm defendant's conviction of felony theft.
" 4 4 8,~q@
Chief Justice
IN THE SUPREME COURT OF THE STATE OF MONTANA
No. 82-441
STATE OF MONTANA,
P l a i n t i f f and Respondent,
TT .
EVELYN FERREL,
APR If 2984
Defendant and Appellant. CLERK O F SUPREME COURT
STATE OF ~ O N Y A N A
SPECIAL CONCURRENCE AND DISSENT
OF MR. JUSTICE L. C. GULBRANDSON
Opinion Decided: March 27, 1984
Filed:
Clerk
I join w i t h Chief J u s t i c e Haswell i n concurring in
p a r t and d i s s e n t i n g i n p a r t .