State v. Tritz

No. 12586

I N THE SUPREME COURT O THE STATE OF M N A A
F OTN

1974

STATE OF MONTANA,

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

-vs -
CY TRITZ,

Defendant and A p p e l l a n t .

Appeal from: D i s t r i c t Court 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 ,
Honorable C . B . Sande, J u d g e p r e s i d i n g .

Counsel o f Record :

For Appellant :

Towe, Neely and B a l l , B i l l i n g s , Montana
G e r a l d J . Neely a r g u e d , B i l l i n g s , Montana

F o r Respondent :

Hon. Robert L. Woodahl, A t t o r n e y G e n e r a l , Helena,
Montana
Thomas J . B e e r s , A s s i s t a n t A t t o r n e y G e n e r a l , a r g u e d ,
Helena, Montana
Harold F. Hanser, County A t t o r n e y , B i l l i n g s , Montana
C l i f f o r d E . S c h l e u s n e r , Deputy County A t t o r n e y , a r g u e d ,
B i l l i n g s , Montana

Submitted: March 22, 1974

Decided: Mfl 241974
Filed : Z 4 1974
Mr. J u s t i c e Wesley C a s t l e s d e l i v e r e d t h e Opinion of t h e C o u r t .

T h i s i s a n a p p e a l by t h e d e f e n d a n t , Cy T r i t z , from a

judgment of t h e d i s t r i c t c o u r t of Yellowstone County, t h e Hon-

o r a b l e C. B. Sande, p r e s i d i n g . The judgment was e n t e r e d upon

a j u r y v e r d i c t f i n d i n g T r i t z g u i l t y of t h e r e c e i p t o f s t o l e n
p r o p e r t y , namely a snowmobile. T r i t z appeals.

O t h e e v e n i n g of October 4 , 1971, t h e Yellowstone
n

County s h e r i f f ' s o f f i c e r e c e i v e d a r e p o r t from an i n f o r m a n t t h a t

T r i t z was i n p o s s e s s i o n of s t o l e n p r o p e r t y , i n c l u d i n g two snow-

m o b i l e s , and t h a t t h e p r o p e r t y was i n a g a r a g e r e n t e d by T r i t z .

T h i s i n f o r m a t i o n was p a s s e d on t o o t h e r o f f i c e r s a t a b r i e f i n g
t h e n e x t morning. About 10:OO a.m. t h e same morning, Deputy

F r a n k , a c t i n g on t h e i n f o r m a t i o n , went t o t h e b u s i n e s s p r e m i s e s

of Ted Andrus E x p l o s i v e s and t a l k e d t o one Anderson who was a

partner i n t h e business. A s a p a r t of another business operation

Andrus l e a s e d g a r a g e s p a c e t o i n d i v i d u a l s . The g a r a g e b u i l d i n g

f r o n t e d o n t o a c y c l o n e fenced s t o r a g e l o t , and t h e b u i l d i n g hous-

i n g Ted Andrus E x p l o s i v e s a l s o a d j o i n e d t h e l o t . Deputy Frank

a s k e d Anderson i f h e c o u l d l o o k a t t h e g a r a g e . Anderson c o n s e n t e d ,

g o t a k e y , and t h e two men i n s p e c t e d t h e g a r a g e f o r t e n t o f i f t e e n

minutes. Deputy Frank t h e n o b t a i n e d a s e a r c h w a r r a n t ; however

t h e two snowmobiles were n o t l i s t e d on t h e w a r r a n t . Shortly there-
a f t e r , T r i t z was a r r e s t e d .
The snowmobiles were n o t i n t h e g a r a g e b u t were parked

o u t s i d e on t h e l o t mounted on a tow t r a i l e r . The e x a c t l o c a t i o n
i s n o t c l e a r from t h e r e c o r d , b u t we t h i n k t h i s i s u n i m p o r t a n t
f o r reasons pointed out l a t e r i n t h i s opinion.
On October 2 0 , 1971, T r i t z was c h a r g e d w i t h one c o u n t of
r e c e i p t of s t o l e n p r o p e r t y . The p r o p e r t y i n q u e s t i o n w a s one of

t h e two snowmobiles. A motion t o s u p p r e s s e v i d e n c e was made,

a h e a r i n g had, and t h e motion was g r a n t e d a s t o a l l t h e s e i z e d
evidence except for the snowmobile, which was expressly held
admissible. Then, in early February, 1972, the prosecution
moved to dismiss the case and asked the district court for leave
to file a new information and affidavit in support, charging
Tritz with one count of grand larceny and one count of receipt
of stolen property. The property involved was the same snow-
mobile. The motion was contested, but leave to file was granted.
Thereafter trial was had, the jury being instructed that they
could find Tritz guilty on one count or the other, but not both.
The jury returned a verdict of innocent on the grand larceny
count and guilty on the receipt of stolen property count.
Tritz raises several issues for our review.
First, he complains that the granting of leave to file
a new information without a preliminary examination was error.
More precisely he says that there was no probable cause to support
the grand larceny count and that a preliminary hearing would
have so disclosed; hence failure to deny the motion for leave to
file the new information was error. He does not question the
receiving stolen property count.
We last considered a challenge to the sufficiency of an
application to file an information in State v. Dunn, 155 Mont.
319, 472 P.2d 288. It was there made clear that a defendant does
not have a vested right to a preliminary hearing. What is re-
quired is that the prosecution show, to some judicial officer,
probable cause that a felony has been committed by the defend-
ant. Thus, if the prosecution showed probable cause that this
defendant committed the theft of a snowmobile, the contention
must fail.
Examining the affidavit in support of the motion for leave
to file an information we find: that the sheriff of Yellowstone
County had a report of a stolen snowmobile; that a deputy had
observed a snowmobile matching that description in a fenced
yard behind the business establishment known as Ted Andrus
Explosives; that the snowmobile had all identification tags
removed from it except for a serial number found on the rubber
track of the machine; that the snowmobile was parked on a trailer
registered to Tritz; that the manager of Ted Andrus Explosives
had advised the deputies that Tritz was renting storage space
from Ted Andrus Explosives and that Tritz had stored the snow-
mobile in the yard.
Bearing in mind that the purpose of either a preliminary
hearing or an application for leave to file an information is
not to establish guilt or innocence, but to establish probable
cause, we think that the affidavit meets the test. We hold that
the district court did not err in granting leave to file a new
information.
Second, Tritz says that with respect to the grand larceny
count, the information was not filed within the time limit pre-
scribed by section 95-1302, R.C.M. 1947. This section requires
the county attorney to file an information within thirty days
after leave to file is granted, charging the defendant:
" * * * with the offense for which he is held to
answer, or any other offense disclosed by the
evidence."

The theory is that the original information and affidavit charg-
ing only one offense--receiving stolen property--is essentially
the same as the second information and affidavit charging both
offenses. Since the affidavits are the same in both cases, Tritz
reasons that the grand larceny count should be striken because
not filed within 30 days after leave to file the original infor-
mation was granted.
A similar attack on an information was made in Gransberry
v. State, 149 Mont. 158, 423 P.2d 853. In that case the original
information charged the taking of an automobile without the
consent of the owner. Later a new information was filed charg-
ing grand larceny. The defendant charged that the second infor-
mation was in fact an amendment of the first, in violation of
the then applicable statute, section 94-6207, R.C.M. 1947, now
section 95-1505, R.C.M. 1947, which prohibited amendment of the
charge in matters of substance after the defendant had pleaded.
We decided the case on other grounds, but indicated that defend-
ant's contention considered alone was meritorious. However, we
also noted that there was a procedure available to avoid the
problem. That method was to avail itself of section 94-9505,
R.C.M. 1947, now section 95-1703, R.C.M. 1947, by having the
first information dismissed and then filing a new one. Since
that is in fact what the State did in this case, we hold that the
contention is without merit.
Third, Tritz then maintains that leave to file the new
information should not have been granted because of misjoinder of
the offenses of grand larceny and receiving stolen property. He
says that the prosecution should have been required to elect be-
tween the offenses.
Section 95-1504(a), R.C.M. 1947, reads in part:
"An indictment, information, complaint or accu-
sation may charge two (2) or more different
offenses connected together in their commission,
or different statements of the same offense or
two (2) or more different offenses of the same
class of crimes or offenses, under separate
counts. (Emphasis added. )
Grand larceny and receipt of stolen property are in the
"same class of crimes". They are to be found in the same chapter
of the Revised Codes of Montana. They are both felonies. They
are both concerned with actions which separate the property owner
from his property. We hold that the State was well within the
terms of the statute in filing alternative charges.
 I t i s t r u e , a s T r i t z p o i n t s o u t , t h a t o n e c a n n o t be

c o n v i c t e d of grand l a r c e n y and r e c e i p t o f s t o l e n p r o p e r t y ,

s i n c e one i s by d e f i n i t i o n , i n c a p a b l e of r e c e i v i n g from h i m s e l f

what presumably h e i s i n p o s s e s s i o n o f . However, i t i s c l e a r

from t h e r e c o r d t h a t t h e S t a t e s o u g h t a c o n v i c t i o n o n l y upon one

o f t h e c o u n t s and n o t . o n b o t h . I n o p e n i n g argument t h e p r o s e -

cution stated:

" * * * It i s not our i n t e n t i o n t h a t t h e defend-
a n t , we a r e n o t t r y i n g t o c o n v i c t him of b o t h
of t h e s e ; it i s o u r c o n t e n t i o n t h a t he i s g u i l t y
of one o r t h e o t h e r * * *."

I n a d d i t i o n , t h e j u r y was i n s t r u c t e d t h a t t h e y c o u l d r e t u r n a
v e r d i c t of g u i l t y on o n l y one c o u n t o r t h e o t h e r b u t n o t on b o t h .

T h i s j u r y i n s t r u c t i o n was r e q u i r e d i n o r d e r t o p r e v e n t t h e p o s s i -
b i l i t y o f t h e j u r y r e t u r n i n g a v e r d i c t o f g u i l t y on b o t h c o u n t s .

Milanovich v . U.S., 365 U.S. 551, 8 1 S.Ct. 728, 5 L Ed 2d 773.

A p p e l l a n t a r g u e s t h a t S t a t e v . Webber, 1 1 2 Mont. 284,
116 P.2d 679, and S t a t e v . Watkins, 156 Mont. 456, 481 P.2d 689,

support h i s contentions. I n S t a t e v . Lane, 1 6 1 Mont. 369, 506 P.2d

446, t h i s Court a f f i r m e d a judgment o f c o n v i c t i o n of r e c e i v i n g

s t o l e n p r o p e r t y where t h e i n f o r m a t i o n had c h a r g e d a l t e r n a t i v e l y

b u r g l a r y and/or r e c e i v i n g s t o l e n p r o p e r t y . The s p e c i f i c i s s u e
r a i s e d h e r e was n o t r a i s e d i n t h e Lane case. However s e c t i o n

9 5 - 1 5 0 4 ( a ) , R.C.M. 1947, was r e f e r r e d t o .

I n Webber t h i s C o u r t h e l d t h a t i t i s o p t i o n a l t o p r o s e -

c u t e f o r e i t h e r l a r c e n y o r r e c e i v i n g s t o l e n p r o p e r t y where t h e

e v i d e n c e shows t h e d e f e n d a n t g u i l t y o f b o t h crimes. I n Watkins

t h i s principle w a s reaffirmed. I n n e i t h e r c a s e were t h e r e c o u n t s
o f b o t h l a r c e n y and r e c e i v i n g s t o l e n p r o p e r t y . Both Webber and
Watkins a r e c o n s i s t e n t w i t h o u r h o l d i n g h e r e .
F o u r t h , t u r n i n g from h i s a t t a c k on t h e i n f o r m a t i o n , T r i t z

a l l e g e s t h e u n c o n s t i t u t i o n a l i t y o f s e c t i o n 94-2721, R.C.M. 1947.

H i s theory i s t h a t t h e s t a t u t e gives t h e prosecution t h e authority

and d i s c r e t i o n t o c h a r g e a d e f e n d a n t w i t h e i t h e r a f e l o n y o r a
- 6 -
misdemeanor under the same set of facts, thereby denying equal
protection of the law.
The contention is without merit. We have ruled on this
issue in Petition of Gibson, 153 Mont. 454, 457 P.2d 767, denial
of habeas corpus aff'd 443 F.2d 75 (9th Cir., 1971). It was
there held that a defendant must be charged with a felony under
section 94-2721, R.C.M. 1947. Thus, Tritz's basic premise, that
of prosecutorial discretion, is not present and contention fails.
Fifth, Tritz alleges that the seizure of the two snow-
mobiles was made in a constitutionally objectionable manner, that
is they were seized without a warrant, and not incident to a valid
arrest.
A reiteration of some of the factual situation will be
helpful. Tritz's lease covered a storage area consisting of
"Approximately 600 sq. ft., more or less (the garage), and park-
ing area directly in front of these quarters * * *." The garage
building also housed other leased areas, and the whole building
fronted onto a cyclone fenced lot. Ted Andrus Explosives was
also adjacent to the lot, and was, with the exception of the park-
ing areas, in control of the lot. The exact location of the snow-
mobiles is uncertain from the record. At the suppression hearing
Anderson testified that the snowmobiles were parked thirty feet
in front of the garage on the lot. At the trial, Deputy Hansen
testified they were twenty to twenty-five feet away while Deputy
Dabner testified they were fifty to seventy-five feet away. Tritz's
testimony at trial on this point was:
"Q. Did you look at one or both of the snowmobiles
when they were parked near your garage at any time?
A. They weren't parked like you are trying to say,
near my garage, they were out, I would say, seventy-
five or eighty feet on the lot, and as to my looking
at them, I did not own them or have anything to do
with them, so I had no further concern with them,
and I don't ride them, I am busy with horses."
 Section 95-1806Cf), R.C.M. 1947, puts the burden of proof
on defendant to show that evidence was unlawfully seized from
him. We have examined the record and find no evidence that the
snowmobiles were in a constitutionally protected area owned or
leased by Tritz. It is true the lease covers the "parking area
directly in front", but there is no evidence as to the size of
the area, or whether the snowmobiles were in that undefined area.
Further, Tritzls own testimony tends to show that the snowmobiles
were not in that area. We think the lack of evidence on this
point to sustain the defendant's burden of proof, coupled with
Tritzls testimony, shows that the machines were not within a con-
stitutionally protected area owned or leased by Tritz. Immunity
from unreasonable searches and seizures is personal and one cannot
object to the searching of another's premises or property if the
latter consents to the search. U. S. v. Kilgen, 445 F.2d 287;
Woodbury v. Beto, 426 F.2d 923, cert. den. 400 U.S. 997, 91 S.Ct.
472, 27 L Ed 2d 446; Burge v. U.S., 342 F.2d 408, cert den., 382
U.S. 829, 86 S.Ct. 63, 15 L Ed 2d 72. See 31 ALR 2d 1078. It is
uncontroverted that Anderson, a partner in Ted Andrus ~xplosives,
had the authority to consent, and did consent, to a search of
property on the lot under his control. The contention of defend-
ant is without merit.
What has been said heretofore with respect to the first
three issues, disposes of the last contention, that the district
court should have directed a verdict of acquittal on the charge
of grand larceny.
Judgment affirmed.
We concur:

...............................
Chief Justice