No. 84-388
I N THE SUPREME COURT O F THE S T A T E O F MONTANA
1985
S T A T E O F MONTAf;lA,
P l a i n t i f f and R e s p o n d e n t ,
-vs-
MELVIN BERKLUND ,
D e f e n d a n t and A p p e l l a n t .
A P P E A L FROM: D i s t r i c t C o u r t of t h e T h i r t e e n t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e C o u n t y of S t i l l w a t e r ,
T h e H o n o r a b l e N a t A l l e n , Judge p r e s i d i n g .
COUNSEL O F RECORD:
For A p p e l l a n t :
M o s e s L a w F i r m ; M i c h a e l G. Moses, Billings, Montana
For R e s p o n d e n t :
Hon. M i k e 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 , M o n t a n a
C. E d L a w s , C o u n t y A t t o r n e y , C o l u m b u s , M o n t a n a
S u b m i t t e d on B r i e f s : May 9, 1985
Decided: A u g u s t 5, 1985
Filed:
. I985
Clerk
Mr. Chief Justice J. A. Turnage d-elivered the Opinion of the
Court.
The appellant, Melvin Berklund, was charged with the
offense of arson, 5 45-6-103, I4CA. Jury trial in District
Court resulted in a verdict of guilty. This appeal followed.
We affirm.
In 1964 the appellant and his family built a cabin in
Beehive, Montana, on the Stillwater River near Absarokee,
Montana. In 1977, as part of a marriage dissolution property
settlement, the cabin became solely owned by the appellant.
In 1982 the appellant deeded the cabin to one of his sons.
When the son was deeded the property in late 1982,
there were taxes owed on it and it was in need of repair.
The son borrowed money from his mother to pay the taxes. His
two brothers and his sister and their spouses helped pay for
repairing the cabin. In early 1983 the son conveyed the
property to himself, his spouse, his siblings and their
spouses.
Evidence shows that the appellant became upset and
angry about this transaction. He made threats of burning the
cabin. In Billings, Montana, in the early afternoon of March
28, 1983, the appellant threatened his son about "torching"
the cabin. Soon after that the appellant called another son
and threatened to burn the cabin. That afternoon a fire that
had been intentionally set damaged the cabin.
The appellant submitted evidence in the form of witness
testimony that he was in Billings at 3:00 the afternoon of
the fire. He was seen in, and admits that he was in,
Absarokee at about 4:30 the afternoon of the fire. Tires on
the vehicle operated by the appellant on the day of the fire
matched the tire tracks at the scene of the fire.
Four issues are presented for review:
1. Whether there was sufficient evidence supporting
the jury verdict.
2. Whether the State proved the necessary elements of
the crime of arson.
3. Whether the District Court erred in refusing to
grant the appellant's motion to dismiss.
4. Whether the District Court erred in instructing the
jury on "property of another."
The first issue is whether there was sufficient evi-
dence to support the jury verdict. The test applied by this
Court where sufficiency of the evidence is an issue on appeal
in a criminal case, whether the trial was by jury or not, is
the substantial evidence test. This test is met if a reason-
able mind would accept the evidence as supporting the conclu-
sion reached. In applying this test the evidence is viewed
in a light most favorable to the prevailing party. The
weight of the evidence and the credibility of the witnesses
is exclusively the province of the trier of fact. If the
evidence conflicts, it is within the province of the trier of
fact to determine which shall prevail. See, State v. Green
(Mont. 1984), 685 P.2d 370, 371-372, 41 St.Rep. 1562, 1564;
State v. Johnson (1982), 197 Mont. 122, 127, 641 P.2d 462,
465; State v. Martinez (1980), 188 Mont. 271, 281-282, 613
P.2d 974, 980. If the standard of legal sufficiency--that
is, the substantial evidence test--is not met, this Court
will set the verdict or judgment aside. State v. Merseal
(1975), 167 Mont. 410, 415, 538 P.2d 1366, 1368. In addi-
tion, the judgment will be disturbed when the evidence is so
inherently incredible that no reasonable mind ought to accept
it as true. State v. Radi (1978), 176 Mont. 451, 461, 578
P.2d 1169, 1176; State v. Crockett (1966), 148 Mont. 402,
407, 421 P.2d 722, 724-725.
We hold that there is sufficient evidence to support
the jury verdict. The appellant was angered by the convey-
ance. In heated discussions he threatened to burn the cabin.
A threat of "torching" the cabin was made in Billings on the
afternoon of the fire. Another threat of "burning the damn
thing down" was made by phone that same afternoon. The son
to whom this last threat was made determined that the appel-
lant was serious enough about it to warrant a call from
Billings to the Absarokee sheriff. The sheriff notified a
deputy of the situation and gave information about the appel-
lant and his vehicle. At about 4:30 that afternoon, a fire
was noticed by a resident of the cabin area. At about this
same time the deputy had left Absarokee traveling towards the
cabin and soon noticed a vehicle and driver matching the
proper description coming from the direction of the cabin.
The deputy turned around and followed, reaching a speed of 85
miles per hour, but lost sight of the vehicle as the deputy
approached Absarokee. The deputy proceeded through town
following clouds of dust at corners and soon was behind the
appellant's vehicle traveling toward Columbus, Montana. The
appellant was stopped and taken to Absarokee. He received
warning that he was a suspect. An arson investigation later
determined that the fire had been intentionally set at about
3:30 to 3 : 4 5 that afternoon. Tire tracks at the scene
matched the tires on the vehicle that the appellant was
driving.
The second issue is whether the State proved the neces-
sary elements of the crime of arson. The particular element
at issue here is the element "property of another."
As far as is relevant to this case, a person commits
the offense of arson when, by means of fire, he knowingly
damages an occupied structure which is property of another
without consent. Section 45-6-103, MCA. The appellant
argues that the cabin damaged by the fire was not "property
of another." We disagree. The property was "property of
another" within the meaning of the arson statute.
"Property of another," in Montana criminal law, is that
property in which a person other than the offender has an
interest which the offender has no authority to defeat or
impair even though the offender may have an interest in the
property. Section 4 5 - 2 - 1 0 1 ( 5 5 ) , MCA. The basis upon which
the State proved this element was evidence in the form of a
deed.
The deed was made in December of 1 9 8 2 . It represented
a transfer from the appellant to one of his sons. The deed
was titled "Quitclaim Deed." It contained a provision with
two " conditions":
"In the event of the death of party of
second part [son], above described
property shall revert to party of first
part [appellant, father]. Property
cannot be sold by second party during
lifetime of first party."
The only matter concerning the deed that is important
to this case is whether the son had an interest that the
appellant had no authority to defeat or impair so that the
property could properly have been "property of another"
within the criminal law meaning. Therefore, it is unneces-
sary for this Court to fully and finally decide the legal
nature of the interests created by the deed beyond that
necessary to resolve the issue on appeal.
The interest created by the deed and held by the son at
the time the deed became effective is not an issue. It
unquestionably was an interest that the appellant had no
authority to defeat or impair. The central question is the
effect that the son's subsequent conveyance had on the inter-
ests that the son and appellant had. To determine this we
look to the "conditions" contained in the deed.
The first condition is, "[iln the event of the death of
party of second part [son], above described property shall
revert to party of first part [appellant, father]." The
appellant openly argues that it was his intent that if he
predeceased the son, the son would get the entire interest.
The effect that this condition has on the interests created
by the deed is not important to the issue on appeal as both
parties to the deed are alive and the condition is not in
effect.
The second condition contained in
. the deed is,
" [p]roperty cannot be sold by second party [son] during
lifetime of first party [appellant, fatherl " . The appellant
argues that when the son conveyed the property to himself,
his siblings, and the spouses of each he violated this condi-
tion and the property was no longer "property of another."
We disagree.
The condition is ambiguous. On its face it restricts
alienation. It contains no defeasible estate language such
as, "so long as," "during," or "until" that would clearly
categorize it as establishing a determinable estate and it
contains no defeasible estate language such as, "but if,"
"provided that," or "upon condition that," which would clear-
ly categorize it as establishing an estate subject to condi-
tion subsequent. See, 26 C.J.S. Deeds 5 110 (1956).
We limit our analysis to the issue on appeal. We make
no determination as to whether the condition is one restrain-
ing alienation, repugnant to the interest created, and void
under S 70-1-405, MCA, and we do not determine whether the
"condition" is merely a covenant between grantor and grantee.
Either would support a determination that the property was
"property of another."
The remaining possibility is that the condition creates
a defeasible estate. Because the condition is ambiguous as
to whether it establishes an estate determinable or an estate
subject to condition subsequent, rules of construction must
be applied. A grant shall be interpreted in favor of the
grantee. Section 70-1-516, MCA. The law does not favor a
forfeiture in law or equity. Shuey v. Hamilton (1963), 142
Mont. 83, 90-91, 381 P.2d 482, 486. An estate determinable
requires forfeiture automatically; therefore, rules of con-
struction require that, of the two possible defeasible es-
tates, the estate would be determined to be an estate subject
to a condition subsequent. This estate requires a,n election
on the part of the grantor to re-enter. Re-entry requires
notice. Section 70-16-401, MCA. No notice was given here
and no proper election was made.
We hold that of the several possible constructions of
the condition in the deed, the most favorable construction
possible as to the appellant would not give the appellant
authority to defeat or impair the son's interest. The prop-
erty was properly "property of another" within the arson
statute meaning.
The third issue presented for review is whether the
District Court erred in denying the appellant's motion to
dismiss. The grounds upon which the motion was based are
identical to the first two issues presented on appeal.
Because of our disposition of those issues, it is clear that
the District Court did not err in denying the motion.
The fourth issue presented is whether the District
Court properly instructed the jury on "property of another."
Because of our disposition of the question of "property of
another" in the second issue discussed on this appeal, there
is 1.ittle to be decided on this issue. This was a question
of law for the District Court, and it was not a question of
fact for the jury. The District Court did not err.
We affirm.
We concur: