NO. 86-301
IN THE SUPREME COURT OF THF STATE OF MONTANA
1987
STATE OF MONTANA,
Plaintiff and Respondent,
-VS-
BENJAMTN EUGENE COLE, a/k/a GENO COLE,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Douglas G. Harkin, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
O'Brien & Conrad; Barbara J. Conrad, Missoula,
Montana
For Respondent :
Hon. Mike Greely, Attorney General, Helena, Montana
Joe R. Roberts, Asst. Atty. General, Helena
Robert L. Deschamps, 111, County Attorney, Missoula,
Montana
Submitted on Briefs: Jan. 15, 1987
Decided: A p r i l 16, 1 9 8 7
Filed: APRlGI987
Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.
Defendant, Benjamin Eugene Cole, a/k/a "Geno" Cole,
appeals from a conviction of receiving stolen property from
the Fourth Judicial District, Missoula County, Missoula,
Montana. From this conviction, Cole appeals.
We reverse and remand with instructions.
The only issue raised by defendant on appeal which needs
to be discussed is: Whether there is sufficient evidence to
conclude beyond a reasonable doubt that the defendant was
guilty of receiving stolen property as charged under 5
45-6-301(3), MCA, and if lacking such evidence, can defendant
be retried under the general theft statute, 5 45-6-301(1),
MCA?
In a jury trial, the defendant was found guilty of
felony theft as charged under S 45-6-301(3), MCA. He was
sentenced to ten years in the Montana State Prison with five
suspended. He was required to pay restitution and costs.
The jury found that defendant and three co-participants
stole five engines from a Missoula construction company's
warehouse in March of 1985. The four young men tried to sell
the engines to the proprietor of a secondhand store, were
unsuccessful, and abandoned the engines along a rural road.
The proprietor testified as to the attempt to sell the
engines to his business and his consequent suspicions as to
the legality of their possession of the engines.
An off-duty police officer happened to be in the
secondhand store at the time of the attempted sale. He
testified as to the defendant's identity and his observations
at the store. Two other police officers testified as to the
defendant's identity and their participation in the
investigations. The owner of the engines testified as to the
break in, theft, and value and use of the engines in
question.
The three co-participants in the theft testified against
defendant Cole, implicating him in the theft, attempted sale
and abandonment of the engines.
The defendant was charged, prosecuted and found guilty
under 5 45-6-301(3), MCA which states:
A person commits the offense of theft when he
purposely or knowingly obtains control over stolen
property knowing the property to have been stolen
another. (Emphasis added. )
The decisive case on this issue is State v. Hernandez
(Mont. 1984), 689 P.2d 1261, 41 St.Rep. 2063. In Hernandez,
the defendant previously plead guilty to burglary and theft
of coins under subsection (1) of S 45-6-301. After being
sentenced to probation he attempted to sell some of the coins
which he had previously stolen. The State charged him a
second time for theft of the coins under subsection three of
S 45-6-301. Defendant's conviction was reversed on the
grounds of double jeopardy and statutory grounds. We stated:
This statute, adopted from Il.linois, requires proof
that the property must have been stolen by someone
other than the receiver. Here the charge
essentially was that defendant received the stolen
property fo
;m himself.
689 P.2~3 at 1262-1263. Due to the fact that the Montana
Criminal Code is modeled after the Illinois Criminal Code,
this Court agreed with the Illinois court's requirement that
the property must be shown to he stolen by a person other
than the one charged with receiving the property.
The State successfully proved all the elements of theft
requjred in S 45-6-301(1), MCA. [Jnfortunately for the State,
Cole was not charged under this statute. For the reasons
cited above we hold that the State failed to prove, beyond a
reasonable doubt, al.1 the elements of the theft charged under
S 45-6-301(3). Defendant Cole is acquitted and the charges
are dismissed.
In its argument, the State concedes to prosecutorial
error on the charging document. On appeal the State requests
permission to retry defendant Cole, contending that there
will be no double jeopardy bar to the new trial if Cole is
charged with theft under S 45-6-301(1). To avoid wasted
energy and expense to the parties, we have considered the
double jeopardy issue and hold that double jeopardy would
attach upon any attempt by the State to retry defendant Cole
for the offense at issue.
The double jeopardy clause of the Fifth Amendment
provides that no person shall "be subject for the same
offence to be twice put in jeopardy of life or limb." This
clause is enforceable in Montana through the Fourteenth
Amendment. Benton v. Maryland (1969), 395 U.S. 784, 795, 89
S.Ct. 2056, 2063, 23 L.Ed.2d 707, 716. The Montana
Constitution, Art. 11, S 25 provides for a similar protection
against double jeopardy. The constitutional prohibition of
double jeopardy has been held to consist of separate
guarantees including protection against a second prosecution
for the same offense after acquittal. North Carolina v.
Pearce (1969), 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23
L.Ed.2d 656, 665. Jeopardy attached in Cole's theft trial at
the time of the empaneling and swearing of the jury. Crist
v. Bretz (1978), 437 U.S. 28, 38, 98 S.Ct. 2156, 2162, 57
L.Ed.2d 24, 33.
In the present case, double jeopardy is predicated on
whether the offense of theft defined under S 45-6-301(1),
MCA, is the "same offense" as the theft which defendant was
charged and convicted under; S 45-6-301(3), MCA.
Section 46-11-502, MCA, provides that
When the same transaction may establish the
commission of more than one offense, a person
charged with such conduct may be prosecuted for
each such offense. He may not, however, be
convicted of more than one offense if:
1) one offense is included in the other; .. .
4) the offenses differ only in that one is defined
to prohibit a designated kind of conduct generally
and the other to prohibit a specific instance of
such conduct ...
All of the elements of subsection (1) of S 45-6-301 are
included in subsection (3). Further, subsection (1) is
defined to prohibit the general conduct of theft and
subsection (3) is to prohibit a specific instance of
receiving stolen property.
In People v. Reauchemin (1979), 71 Ill.App.3d 102, 107,
389 N.E.2d 580, 584, the Illinois Supreme Court stated that
their comparable subsection (1) theft statute is a lesser
included offense of their comparable subsection (3) theft
statute but the reverse is not the case. If it is determined
that one offense is a lesser included offense of another,
then they are deemed to be the "same offense." Brown v. Ohio
(1977), 432 U.S. 161, 168-169, 97 S.Ct. 2221, 2227, 53
L.Ed.2d 187, 196. Cole cannot be retried for committing the
same offense as that which he is acquitted of.
The State cites State v. Lamere (1983), 202 Mont. 313,
658 P.2d 376 as determinative in this case. In Lamere, this
Court did state that subsections (3) and (1) of S 45-6-301
are "statutorily distinct crimes." 658 P.2d at 379.
However, in a more recent decision this Court clarified the
Lamere language and stated:
The issue in LaMere was whether one who had
received stolen property could give uncorroborated
testimony against one who was charged with stealing
that property. We held it permissible because
theft of goods by one defendant and receipt of
those stolen goods from another defendant are
separate crimes. For purposes of the double
jeopardy provision - u r own conytitution, the
oFo - -
offenses - charged -- clearly - - -
as here were for the same
offense. (Emphasis added.)
State v. Hernandez, 689 P.2d 1261, 1262, 41 St.Rep. 2063,
2065.
As we held in State v. Hall (Mont. 1986), 728 P.2d 1339,
1341, 43 St.Rep. 2120, 2124, "double jeopardy in a second
trial exists if the acts identified in the second information
were admissible as evidence in the first trial and would have
sustained a conviction under the first information."
If so charged, the defendant could have been convicted
of theft under subsection (1) of $ 45-6-301. However, due to
3
prosecutorial error the defendant was found guilty of
violating subsection (3). The evidence was insufficient to
support such a conviction. A retrial would violate the
double jeopardy clauses of the U. S. and Montana
Constitutions.
Reversed and remanded to the District Court to dismiss
the charges against the defendant.
/
We Concur:
- Chief Justice
Justices
Mr. Justice L. C. Gulbrandson, concurring and dissenting.
I concur that the conviction of the defendant for
possession of stolen property should be set aside, but I do
not agree that the defendant cannot be tried under the
general theft statute, § 45-6-301(1), MCA.
The majority opinion states that the decisive case on
this issue is State v. Hernandez (Mont. 1984), 689 P.2d 1261,
41 St.Rep. 2063. I disagree. There the defendant pleaded
guilty and was sentenced for theft , S 45-6-301. He was then
charged and convicted a second time for theft, § 45-6-301(3),
receiving stolen property, the same property he had already
pleaded guilty to stealing, and this Court reversed the
second conviction. Here, the conviction for theft, receiving
stolen property, is to be set aside and the only remaining
issue is whether he can be charged and tried for theft. It
appears in this case that the witnesses called by the State
proved to the satisfaction of the jury that the defendant not
only exercised control of known stolen property but in fact
carried the property from the premises of the owner. State
v. Lamere (1983), 202 Mont. 313, 658 P.2d 376, in my opinion,
is still authority for the proposition that subsections (1)
and (3) of S 45-6-301, MCA, define "statutorily distinct
crimes. "
In addition, the majority opinion has quoted from State
v. Hall (Mont. 1986), 728 P.2d 1339, 43 St.Rep. 2120, "double
jeopardy in a second trial exists if the acts identified in
the second information were admissible as evidence in the
first trial and would have sustained a conviction under the
first information." (Emphasis added.) The majority opinion
and this opinion both now hold that the acts proposed to be
charged against the defendant would - sustain a conviction
not
under the first information, that of receiving stolen
property.
I would not hold that a retrial would violate the
double jeopardy clauses of the United States and Montana
Constitutions. See Lowery v. Estelle (1983), 6 9 6 ~ . 2 d333;
Illinois v. Vitale (1980), 447 U.S. 410, 100 S.Ct. 2260, 6 5
L.Ed.2d 228; and Garrett v. United States (19851, U.S.
Mr. Chief Justice J. A. Turnage:
I concur with Mr. Justice Gulbrandson.