No. 13314
I N THE SUPREME COURT O THE STATE O MONTANA
F F
1977
T E STATE O MONTANA,
H F
P l a i n t i f f and Respondent,
-vs-
F A K PREITE,
R N
Defendant and A p p e l l a n t .
Appeal from: D i s t r i c t Court o f t h e Twelfth J u d i c i a l D i s t r i c t ,
Honorable B. W. Thomas, Judge p r e s i d i n g .
Counsel o f Record:
For A p p e l l a n t :
Smith, Emmons, B a i l l i e and Walsh, Great F a l l s , Montana
R o b e r t J. Emmons a r g u e d , G r e a t F a l l s , Montana
F o r Respondent:
Hon. Mike G r e e l y A t t o r n e y G e n e r a l , a p p e a r e d , H e l e n a ,
Montana
R o b e r t F. Keller, S p e c i a l 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
Submitted: F e b r u a r y 9 , 1977
Decided - -- 1 ? 4'9-7
A b !
Filed - 3 1 72;-
Mr. Justice Frank I. Haswell delivered the Opinion of the Court.
Defendant Frank Preite was convicted of the crimes of
grand larceny and grand larceny by bailee in a Workmen's
Compensation prosecution in the district court of Hill County.
From the judgment of conviction entered on the jury verdict,
defendant appeals.
The tortuous path of this prosecution is necessary to
an understanding of this appeal.
On July 31, 1974 defendant was originally charged in
the district court of Deer Lodge County with four crimes arising
out of workmen's compensation settlements handled by John L.
McKeon. The information specifically charged these crimes:
(1) Aiding and abetting McKeon in the crime of grand
larceny involving the settlement proceeds of the Howard E. Smith
claim;
(2) Aiding and abetting John L. McKeon in the crime of
grand larceny by bailee in connection with the settlement proceeds
of the William Madden claim;
(3) Aiding and abetting John L. McKeon in the crime of
grand larceny by trick involving the settlement proceeds of the
Harold Phelps claim and;
(4) Forgery of a workmen's compensation settlement draft.
On September 9, 1974 defendant filed motions to dismiss
the information on the ground of insufficiency of the prosecutor's
affidavit to show probable cause for filing the information.
On October 4, 1974 the Deer Lodge County information was
dismissed on motion by the State. On the same day a second
information was filed in the district court of Hill County charg-
ing defendant with 20 crimes. These crimes included the four
crimes originally charged in the Deer Lodge County information.
Between October 4, 1974 and February 24, 1975 defense counsel
filed over 100 motions in connection with the Hill County charges
hich were extensively briefed and argued by both parties. The
Hill County district court granted 22 of the defendant's motions,
denied 75, and 4 were withdrawn. The net result was dismissal
of five counts in the Hill County information.
On February 28, 1975 a third information was filed.
This information charged 15 crimes. Defendant responded with
a battery of 82 motions and a supporting brief. The State did
not file an opposing brief, but instead filed a fourth informa-
tion charging defendant with 8 crimes, including the 4 originally
charged in the Deer Lodge County information with material changes
in one of the charges.
Defendant again filed a series of motions which included
a motion for change of venue and a motion for severance of the
counts charging the crimes. The district court of Hill County
entered an order changing the venue of 5 of the 8 counts to other
district courts outside Hill County. Eventually all 5 of the
transferred counts were dismissed by the other district courts.
The remaining 3 counts in the district court of Hill
County charged defendant with the following crimes:
(1) Aiding and abetting John L. McKeon in the crime of
grand larceny involving the settlement proceeds of the Howard
E. Smith claim;
(2) Aiding and abetting John L. McKeon in the crime of
grand larceny by bailee in connection with the settlement proceeds
of the William Madden claim; and
(3) Aiding and abetting John L. McKeon in the crime of
grand larceny by trick involving the settlement proceeds of the
Harold Phelps claim. All three crimes were originally charged
in the first information filed in the district court of Deer Lodge
County.
Trial was held on these three charges in the district
c o u r t of H i l l County commencing October 6 , 1975. The j u r y
found d e f e n d a n t g u i l t y of a l l 3 c h a r g e s . On motion of d e f e n -
d a n t , t h e g u i l t y v e r d i c t on t h e c h a r g e i n v o l v i n g t h e William
Madden c l a i m was s e t a s i d e on t h e ground o f i n s u f f i c i e n c y o f
e v i d e n c e t o s u p p o r t c o n v i c t i o n of t h a t c h a r g e . Judgment of
c o n v i c t i o n w a s e n t e r e d on t h e j u r y v e r d i c t c o v e r i n g t h e remain-
i n g two c h a r g e s , v i z (1) g r a n d l a r c e n y i n v o l v i n g t h e s e t t l e m e n t
p r o c e e d s of t h e Howard E. Smith c l a i m , and ( 2 ) grand l a r c e n y
by t r i c k i n v o l v i n g t h e s e t t l e m e n t p r o c e e d s o f t h e Harold P h e l p s
claim. Defendant a p p e a l s from t h e judgment of c o n v i c t i o n o f
t h e s e two c r i m e s .
Defendant's s p e c i f i c a t i o n s of e r r o r include 9 a s s e r t i o n s
o f e r r o r d i r e c t e d a t h i s c o n v i c t i o n of grand l a r c e n y i n v o l v i n g
t h e Smith c l a i m ; 1 5 a s s e r t e d e r r o r s d i r e c t e d a t h i s c o n v i c t i o n
of grand l a r c e n y by t r i c k i n v o l v i n g t h e P h e l p s c l a i m ; and 20
a s s e r t e d e r r o r s g o i n g t o t h e c a s e a s a whole. The p r i n c i p a l
s p e c i f i c a t i o n s of e r r o r a r e d i r e c t e d a t t h e d i s t r i c t c o u r t ' s
d e n i a l o f a change o f venue, a d m i s s i o n i n e v i d e n c e o f a n a l l e g e d
t a p e d " c o n f e s s i o n " , d e n i a l of s e v e r a n c e o f t h e c h a r g e s , d e n i a l
of a speedy t r i a l , s u f f i c i e n c y of t h e e v i d e n c e t o s u p p o r t t h e
c o n v i c t i o n s , and e r r o r s i n i n s t r u c t i n g t h e j u r y .
W e f i r s t d i r e c t o u r a t t e n t i o n t o t h e venue i s s u e . The
applicable constitutional provisions s t a t e :
" I n a l l c r i m i n a l prosecutions t h e accused s h a l l
e n j o y t h e r i g h t t o a speedy and p u b l i c t r i a l ,
by a n i m p a r t i a l j u r y o f t h e s t a t e and d i s t r i c t
wherein t h e c r i m e s h a l l have been committed * * *."
(Emphasis s u p p l i e d . ) S i x t h Amendment, United S t a t e s
Constitution.
" I n a l l c r i m i n a l prosecutions t h e accused s h a l l
have t h e r i g h t t o * * * a speedy p u b l i c t r i a l by
an i m p a r t i a l jury of t h e county o r d i s t r i c t i n
which t h e o f f e n s e i s a l l e g e d t o have been
committed * * *." (Emphasis s u p p l i e d . ) A r t . 11,
S e c t i o n 24, 1972 c o n s t i t u t i o n o f - Montana.
Montana s t a t u t e s implementing t h e s e c o n s t i t u t i o n a l venue
requirements provide:
"In all criminal prosecutions the trial shall be
in the county where the offense was committed
unless otherwise provided by law. * * * " Section
95-401, R.C.M. 1947.
"Where two (2) or more acts are requisite to the
commission of any offense, the trial may be had
in any county in which any of such acts occur."
Section 95-402, R.C.M. 1947.
Additional implementing statutes specifically directed
at the crimes here involved provide:
"Where a person in one county commits, aids, abets,
or procures the commission of an offense in another
county the offender may be tried in either county."
Section 95-404, R.C.M. 1947.
"Where a person obtains property by larceny, robbery,
false pretenses or embezzlement, he may be tried in
any county in which he exerted control over such
property." Section 95-408, R.C.M. 1947.
"An * * * information against any accessory to any
felony may be found in any county where the offense
of such accessory may have been committed * * *."
Section 94-6424, R.C.M. 1947.
In this case defendant was convicted of two crimes. One
crime was grand larceny in violation of section 94-2701(2),
R.C.M. 1947. Essentially it charges defendant with aiding and
abetting McKeon in stealing Smith's settlement warrant covering
his workmen's compensation claim. The second crime was grand
larceny by trick in violation of section 94-2701(1), R.C.M. 1947.
Essentially it charges defendant with aiding and abetting McKeon
in stealing the State's money by submitting false documents
whereby a settlement of Phelps' claim was secured without his
knowledge and consent.
The supporting affidavit of the special prosecutor to
show probable cause for the filing of the original information
in the district court of Deer Lodge County flatly states that
these crimes were committed in Deer Lodge County. Subsequently
the State attested that it had discovered additional information
authorizing the subsequent filing of the charges in Hill County,
yet the State's supporting affidavit filed in Hill County discloses
no such later facts. Thus the original information and original
affidavit constitute clear declarations against the State's
present claim that venue is properly laid in Hill County.
However, the substantial error is found in the State's
failure to prove venue at the trial. Venue, although not an
element of the crime, is a jurisdictional fact that must be
proved at the trial the same as any other material fact in a
criminal prosecution. State v. Campbell, 160 Mont. 111, 500
P.2d 801; State v. Williams, 122 Mont. 279, 202 P.2d 245.
In determining the place where the crime has been com-
mitted within constitutional venue requirements, the rule has
been stated in this language in 22 C.J.S. Criminal Law § 176, p.
434 :
"The constitution contemplates actual and not
constructive venue, it being essential that the
crime itself, or some element thereof, shall
actually have taken place in the county where
venue is laid. * * * "
Or stated another way, the general rule in 22 C.J.S. Criminal Law
B 174, p. 431 provides:
"The place where the crime is committed is
determined by the acts of accused that violate
the statute. * * * "
The Montana Criminal Law Commission, in its comments to
section 95-402, dealing with venue where the defendant is charged
with aiding and abetting the commission of a criminal offense,
had this to say:
"This provision allows the trial to take place in
the most convenient county where an element of the
offense occurred. It does not matter if the final
consummation of the offense occurred in another
county. The only elements of the crime which are
of interest are those acts constitutinq or requisite
to the consummation of the offense * * *. (Emphasis
supplied.)
Under statutes providing that where a crime is committed
partly in one county and partly in another, the accused may be
tried in either, the statute requires that some acts material
and essential to the crime and requisite to its consummation
occur in each county before the provisions of the statute be-
come applicable. State v. Smith, 57 Mont. 563, 190 P. 107.
Turning to the facts of the present case, we first examine
the proof involving the Smith claim. Defendant was charged with
grand larceny in aiding and abetting McKeon, as bailee, in
stealing Smith's settlement warrant. No essential act requisite
to consumation of the crime charged occurred in Hill County.
The warrant was in Anaconda where all acts as to its alleged con-
version took place. Larceny by bailee, which defendant is accused
of aiding and abetting, presupposes lawful possession of the
warrant by McKeon. Bernhardt v. United States, 169 F.2d 983, cert.
den., 335 U.S. 903, 69 S.Ct. 407, 93 L ed 437. No proof was adduced
at the trial of any unlawful act or criminal intent of the defen-
dant in Hill County prior to conversion of the settlement warrant
in Anaconda. Acts preparatory to the commission of an offense
but which are not essentials of the crime, provide no basis for
3%
venue. State v. Hudson, 13 Mont. 112, 115, 23 P. 413. In Hudson
we said:
"Such acts as mailing the letter or buying the
pistol, or a murderer traveling through Gallatin
county to Silver Bow county, would be, in those
particular cases, preliminary to the commission
of the offense, and acts without which, in the
particular case, the offense would not be committed,
but they were not acts requisite to the consum-
mation of the offense. If such acts were construed
to be those requisite to the consummation of the
offense, there are but few crimes the venue of
which could not be construed to be in counties
other than the actual county where the offense
was committed."
Here the State's own proof showed that all unlawful acts of
defendant constituting elements of the crime charged occurred
in Anaconda, Deer Lodge County.
The proof of venue involving the ~helps'claimis equally
lacking. Here defendant was charged with grand larceny by trick
in aiding and abetting McKeon in stealing the State's money by
submitting false documents whereby a settlement of Phelps' claim
was effected without his knowledge or consent. The proof at the
trial related to a 1968 injury suffered by Phelps. The State's
proof indicated that Phelps knew nothing about this claim being
pursued until after a radio editorial broke the story sometime
after the alleged larceny had taken place. The State failed to
prove that any element of the crime charged occurred in Hill
County. Under the authorities heretofore noted, this is fatal
to the State's case as venue in Hill County must be proved as a
jurisdictional fact.
As the venue issue mandates reversal of defendant's con-
viction, we need not reach other substantial claims of error
involving the admissibility of the alleged tape and denial of a
speedy trial.
The judgment of the district court is reversed and the
conviction of defendant is vacated..
Justice
H
We conc
,/~dn: Jack Shanstrom, District
'gudge, sitting in place of Mr.
J Justice John C.-Harrison.