No. 81-464
I N THE SUPREME COURT O THE STATE O MONTANA
F F
1982
THE STATE O F MONTANA,
P l a i n t i f f and Respondent,
J O H N M R H L KRAMP,
A S AL
I
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 F i f 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 County o f Beaverhead
Honorable Frank B l a i r , Judge p r e s i d i n g .
Counsel o f Record:
For A p p e l l a n t :
L e a p h a r t Law Firm, Helena, Montana
W. W i l l i a m L e a p h a r t a r g u e d , H e l e n a , 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 , H e l e n a , Montana
Mike McGrath a r g u e d , A s s i s t a n t A t t o r n e y G e n e r a l , H e l e n a ,
Montana
W. G. G i l b e r t , 111, County A t t o r n e y , D i l l o n , Montana
Submitted: May 1 4 , 1982
Decided: September 23, 1982
Filed: SEP 2 4 iscL
! r Justice John C. Sheehy delivered the Opinion of the
4.
Court.
John M. Kranlp appeals from a judgment of conviction of
felony theft in the District Court, Fifth Judicial District,
Beaverhead County. The conviction was based on a jury
verdict. Kramp was sentenced to five years in the Plontana
State Prison and designated a nondangerous offender for
purposes of parole eligibility.
In 1980, Red Pine Exploration and Development, Ltd.,
contracted with Coyote Nining Company, of which Kramp is
president to perform $15,000 worth of development work on
the Red Pine Mine near Sheridan, Montana.
Kramp and his employees arrived at the mine on December
23, 1980 and found the mine's air compressor was not functioning.
The agreement between the companies allowed Kramp to rent
equipment necessary for the performance of the development
work. Kramp acquired an air compressor valued at $23,000
for use at the mine. The disputed facts pertaining to that
acquisition are set forth here.
On January 8, 1981, the Beaverhead County Sheriff's
Department received a telephone call from a foreman of
General Construction Company reporting a stolen Ingersoll
Rand Compressor from a construction site. The sheriff later
went to the construction site and saw tire tracks indicating
that the compressor had been pulled onto the highway from
the General Construction Company site.
When a local miner heard the January 10 report of the
theft on the radio, he called the sheriff's office to report
that he had seen the Xed Pine Mine's truck pulling an air
compressor past his home at 6 : 4 5 a.m., January 7, 1981.
Another man also reported seeing the Red Pine Mine's truck
pulling an air compressor on the morning of January 7, 1981.
On the basis of these reports, the sheriff's officers
went to the mine and found the missing air compressor parked
on the side of the road leading to the mine.
Kramp testified that he and one of his employees went
to a rental agency in Butte, Montana, on January 5, 1981, to
rent an air compressor. Kramp spoke to a man in the parking
lot at the rental agency who informed Kramp that although he
did not have an air compressor for rent, a friend of his
did. The man then telephoned the friend, one "Ed," and
Kramp negotiated rental terms with Ed over the telephone.
Ed agreed to deliver the compressor at the bottom of a hill
near the mine on the following day. Kramp agreed to pay Ed
$1,000 in cash for one month's rental of the compressor.
At 5 : 3 0 p.m., January 6, 1981, Kramp and one of his
employees went to the bottom of the hill where they found
Ed, with the compressor, and Ed's dual wheel pickup truck
which he had used to tow the compressor. Kramp paid Ed
$1,000 in cash but received no receipt. Before leaving, Ed
agreed orally to return for the compressor in about a month.
Kramp hitched the compressor to a truck owned by the 3ed
Pine Mine and began towing the compressor up the hill to the
mine. The trailer hitch on the truck broke, however. One
of Kramp's employees welded the hitch and again they tried to
tow the compressor up the hill. The road was too slippery
to proceed, so they unhitched the compressor and returned to
the mine.
Kramp and his employees spent the next few days at the
mine site attempting to repair a caterpillar which they
would use to pull the compressor the rest of the distance of
the mine. The men were repairing the caterpillar on January
10, when sheriff's deputies arrived at the mine site and
placed them under arrest.
Kramp raises the following issues on appeal:
1. Did the State's suggestion on cross-examination
that Kramp had an FBI criminal record constitute prejudicial
error?
2. Did the District Court's instructions no. G and 13
create an unconstitutional presumption against Mramp?
3. Is the jury's verdict supported by the evidence?
The first issue is a charge of prosecutorial misconduct.
During the trial, the defense called a witness, Barbara
Thomas, to testify to the character of Kramp. Her direct
examination was in essence as follows:
"Q. You've known this young man for some time.
You know his reputation for truth, integrity and
veracity? A. Yes, sir.
"Q. What is it? A. I think he is honest.
"Q. You wouldn't be here if you didn't think
so? A. That's right."
On cross-examination, the county attorney asked:
"Q. Mrs. Thomas, have you ever heard that John Kramp
was arrested for driving while under the influence
of alcohol in Denver, Colorado? A. No sir.
"Q. Have you ever heard that he was arrested in
Sheridan, l.Toiitana? A. No I haven't.
"Q. Do you know that the FBI and the State of
Colorado both have criminal record files on him?
A. No I surely didn't. May I say why I didn't.
"Q. No, just answer yes or no. Obviously you
don't know as much about him as you thought you
might. A. Well we had a Pinkerton investigation
that his father conducted after this and they
turned up nothing.
"Q. They couldn't find the man who rented him
the compressor either, did they? A. I don't
guess they could, but they didn't mention the
FBI either."
Following the examination, there was a meeting in
chambers with the judge. It developed that on that particular
morning of the trial a teletype sheet had been received by
the county attorney which showed that Kramp had been arrested
for driving under the influence of liquor in Colorado, and
for a traffic offense in Sheridan, Montana. The teletype
printout also showed a Colorado state file number and an FBI
file number. Defense counsel was given a copy of the teletype
at the conclusion of the conference and he used the information
to question Sheriff Later about the significance of an FBI
file number. The State argues that any prejudice which may
have resulted from the county attorney's references was
removed by Later's subsequent testimony:
"Q. You're Sheriff Later who was previously
sworn and testified in this case? A. Yes,
sir.
"Q. And Sheriff Later, you heard the testimony
of the defendant's witnesses ... and the
cross-examination by the county attorney Mr.
Gilbert. You heard that a few minutes ago? A.
Yes, sir.
"Q. And you heard the county attorney refer
to an FBI number. What does that mean? A.
That means that anytime anybody is fingerprinted
--
"Q. Then they have an FBI number. A. Well,
their fingerprints are sent into the FBI head-
quarters in Washington, D.C. and from that, the
fingerprints, they are issued an FBI number,
basically.
"Q. Would you have an FBI number? A. No.
"Q. Would I? I've been in the service. A.
I believe so.
"Q. I f I applied for a job, Bruce Matters' job
as postmaster, would I have an FBI number. A.
I'm not sure--
"Q. In other words, having an FBI number doesn't
mean that you have some criminal record. A. Well,
I'm not sure counselor, how FBI numbers are issued.
I think they are issued for everything but I am
not positive as far as applicants and that type
of thing but it is very possible."
The sheriff also testified that "at this time" they did
not have a rap sheet on Kramp, but often times rap sheets
come in for as long as a year after the request.
Kramp c o n t e n d s t h e j u r y , a s a r e s u l t of t h e i n t e r r o g a t i o n ,
was l e f t w i t h t h e f o l l o w i n g i m p r e s s i o n s :
1. That t h e d e f e n d a n t Kramp d i d i n f a c t have a c r i m i n a l
f i l e r e c o r d w i t h t h e F B I , and,
2. That a l t h o u g h no e v i d e n c e of h i s c r i m i n a l a c t i v i t y
h a s shown up a s y e t , o t h e r r e c o r d s may s t i l l be coming i n .
A n o f f e r of e v i d e n c e by a d e f e n d a n t of a p e r t i n e n t
t r a i t o f h i s c h a r a c t e r i s a d m i s s i b l e , and an o f f e r of e v i d e n c e
by t h e p r o s e c u t i o n t o r e b u t t h e same i s a l s o a d m i s s i b l e .
Rule 4 0 4 ( a ) ( 1 ) , M.R.Evid. The key word t o t h i s e x c e p t i o n t o
t h e general r u l e t h a t c h a r a c t e r evidence i s n o t admissible
(Rule 4 0 4 ( a ) ) i s .the word " p e r t i n e n t . " I t was p e r t i n e n t
where t h e c h a r g e i s f e l o n y t h e f t f o r Barbara Thomas t o
t e s t i f y t o Kramp's g e n e r a l r e p u t a t i o n f o r t r u t h , i n t e g r i t y ,
h o n e s t y and v e r a c i t y . (She d i d n o t q u i t e t e s t i f y t o h i s
g e n e r a l r e p u t a t i o n , b u t gave h e r own o p i n i o n ; t h a t however,
i s now p e r m i s s i b l e under Rule 4 0 5 ( a ) , M.R.Evid.) I t was
i m p e r t i n e n t f o r t h e p r o s e c u t i o n t o a t t e m p t t o e s t a b l i s h an
a r r e s t r e c o r d based on a t r a f f i c o f f e n s e , o r a n i n t o x i c a t e d
d r i v i n g v i o l a t i o n , b e c a u s e (1) an a r r e s t r e c o r d h a s no
s u b s t a n c e of i t s e l f t o e s t a b l i s h c h a r a c t e r , and ( 2 ) t h e
t r a i t s of c h a r a c t e r involved i n t r a f f i c o r drinking offenses
do n o t i n h e r e n t l y r e l a t e t o h o n e s t y o r v e r a c i t y .
I n Michelson v. United S t a t e s ( 1 9 4 8 ) , 335 U.S. 463, 69
S.Ct. 213, 93 L.Ed. 168, t h e Supreme C o u r t upheld a n i n q u i r y
of a r e p u t a t i o n w i t n e s s a b o u t an a r r e s t , upon t h e ground
t h a t an a r r e s t may i m p a i r o r c l o u d o n e ' s r e p u t a t i o n . The
d i s s e n t i n t h a t c a s e argued a g a i n s t t u r n i n g t h e d e f e n d a n t ' s
t r i a l f o r a s p e c i f i c o f f e n s e i n t o one f o r a l l o f h i s p r e v i o u s
misconduct, c r i m i n a l o r o t h e r w i s e . R e c e n t l y , however, t h e
lilichelson
supreme c o u r t of P e n n s y l v a n i a c o n s i d e r e d t h e -
decision, and declined to follow, stating that an arrest is
equally consonant with guilt or innocence. Commonwealth v.
Scott (Pa. 1981), 436 A.2d 607.
The trait of character testified to by a reputation
witness limits perforce the type of cross-examination that
may be pursued. Under Rule 405(a), M.R.Evid., cross-examination
is allowed into "relevant, specific instances of conduct."
By this rule, unless the cross-examination is pointed to a
"relevant" trait of character testified to on direct examination
the cross-examination is not permissible. We find that to
be the case here.
The State also argues that the testimony of the sheriff
removed any taint from the cross-examination. We answer in
the words of State v. Shannon (1933), 95 Mont. 280, 288, 26
"It is urged by the State that the above error
was not substantial and that under . ..
our
codes this Court must regard technical errors
or defects which do not go to the substantial
rights of the parties. What, then, is a substantial
right? Manifestly a right declared by statute
must be considered substantial. Section 10668,
R.C.M. 1921 provides that a witness may not be
impeached by evidence of particular wrongful
acts, except that it may be shown by the examination
of the witness, or by the record of the judgment,
that he has been convicted of a felony . . .
[tlhis Court reversed convictions because of the
asking of questions similar to those propounded to
the defendant here ...the court said: 'The
attorney could have had no other object in view
than to impeach the defendant or degrade him in
the estimation of the jury, and for either purpose
the questions are forbidden by statute,' (citing
a case). The rule was announced by this court
many years ago. (Citing cases.) In State v.
Rogers, supra, the court specifically adhered to
the rule, and approved the leading California
case on the subject with the remark that it was
unnecessary to repeat the discussion (citing
a case. ) "
Here the prosecution's case against the defendant rests
upon circumstantial evidence. Imputing to him by indirection
a criminal record, and one related to traits of character
not involved in the specific offense for which the defendant
was charged here, was certainly substantial. State v.
Shannon, supra, 95 Mont. at 289, 26 P.2d at 364. his
means that the defendant did not receive a fair trial, and
upon that ground we must reverse. Commonwealth v. Scott,
supra.
We consider the second issue raised by the defendant
because a retrial of this cause appears necessary.
The second issue arises from the following instructions
presented to the jury:
"6. Possession of stolen property shall not
constitute proof of the commission of the
offense of theft; such facts shall place a
burden on the possessor to remove the effect
of such fact as a circumstance to be considered
with all other evidence pointing to his guilt.
"13. Possession of stolen property is merely
one item that you, as jurors, may consider in
determining whether the defendant committed
the crime of theft. The defendant is not
obligated to explain his possession of the
stolen property, but in this case the defendant
has chosen to do so."
Instruction no. 6 is couched in the exact language of
section 45-6-304, P4CA. Kramp attacks the instruction and
the statute as unconstitutional on its face, in that: (1)
it creates a rebuttable presumption, (2) it places a burden
of persuasion upon the defendant as to the effect of possession,
and (3) it undermines the "beyond a reasonable doubt" standard
of proof in that it contains no time constraints (e.q.,
recent possession) nor is it limited to "exclusive possession."
In support of his contentions, he cites Sandstrom v. Xontana
(1979), 442 U.S. 510; Ulster County, New York v. Allen
(1979), 442 U . S . 140; Wells v. People (Colo. 1979), 592 P.2d
1321, and People v. Chavez (Colo. 1981), 632 P.2d 574.
The S t a t e answers t h a t n e i t h e r t h e s t a t u t e n o r t h e
i n s t r u c t i o n c r e a t e a presumption, and t h a t i n any e v e n t t h e
i n s t r u c t i o n s do n o t r e l i e v e t h e s t a t e of i t s burden t o p r o v e
a l l e l e m e n t s of t h e crime charged. The S t a t e a l s o r e l i e s on
U l s t e r County v. A l l e n , supra, contending therefrom t h a t
e v i d e n t i a r y d e v i c e s such as presumptions and i n f e r e n c e s a r e
a s t a p l e of o u r a d v e r s a r y system o f f a c t f i n d i n g .
The S t a t e ' s argument t h a t n e i t h e r a presumption o r an
i n f e r e n c e i s c r e a t e d by i n s t r u c t i o n no. 6 and i t s u n d e r l y i n g
s t a t u t e i s b o l s t e r e d by i n s t r u c t i o n no. 1 3 , shown above,
which i n f o r m s t h e j u r y t h a t p o s s e s s i o n o f s t o l e n p r o p e r t y i s
merely one i t e m o f e v i d e n c e which t h e j u r y may c o n s i d e r i n
d e t e r m i n i n g whether d e f e n d a n t committed t h e crime o f t h e f t .
An e x a m i n a t i o n o f i n s t r u c t i o n s G and 1 3 w i l l d e m o n s t r a t e
t h a t they a r e , t o say t h e l e a s t , contradictory. No. 6 tells
t h e j u r y t h a t t h e f a c t o f p o s s e s s i o n s h a l l " p l a c e a burden"
on Kramp t o remove t h e e f f e c t of such p o s s e s s i o n . Instruction
no. 1 3 t e l l s t h e j u r y t h a t Kramp " i s n o t o b l i g a t e d t o e x p l a i n
h i s possession" of t h e s t o l e n property. I n s t r u c t i o n no. 6
p l a c e s a burden on Kramp t o e x p l a i n t h a t he p o s s e s s e d t h e
s t o l e n p r o p e r t y by l a w f u l means. I n s t r u c t i o n no. 1 3 t e l l s
t h e j u r y h e does n o t have t o e x p l a i n h i s p o s s e s s i o n o f t h e
s t o l e n property.
The D i s t r i c t C o u r t can h a r d l y be blamed f o r t h e c o n t r a -
dictory instructions. I t s e e m s e v i d e n t t h e D i s t r i c t Court
was merely t r y i n g t o accommodate t h e c o n f l i c t i n g s t a t e m e n t s
i n o u r e a r l i e r d e c i s i o n s on t h e s u b j e c t , and a c o m p e l l i n g
statute. It s h ~ u l dbe o b v i o u s t h a t t h e p o s s e s s i o n by a
d e f e n d a n t c h a r g e d w i t h t h e f t of r e c e n t l y s t o l e n p r o p e r t y i s
a f a c t which t h e j u r y i s e n t i t l e d t o c o n s i d e r i n d e t e r m i n i n g
tile g u i l t of t h e d e f e n d a n t . A g r a v e problem a r i s e s , however,
when t h e i n s t r u c t i o n s on t h e s u b j e c t d e p r i v e o r i n t e r f e r e
w i t h t h e presumption of innocence which always a t t a c h e s t o
t h e d e f e n d a n t u n t i l c o n v i c t e d , and h i s r i g h t t o remain
silent.
I n S t a t e v. Greeno (19591, 135 Mont. 580, 3 4 2 P.2d
1052, Greeno, c h a r g e d w i t h grand l a r c e n y , was c o n v i c t e d
a f t e r t h e j u r y had been i n s t r u c t e d i n p a r t :
"You a r e i n s t r u c t e d t h a t t h e mere p o s s e s s i o n
o f s t o l e n p r o p e r t y , howsoever soon a f t e r t h e
t a k i n g , u n e x p l a i n e d by t h e p e r s o n h a v i n g
possession i s not s u f f i c i e n t t o j u s t i f y
conviction. I t i s however, a c i r c u m s t a n c e
t o be considered i n connection with o t h e r
evidence i n determining t h e question of
innocence o r g u i l t . I f you s h o u l d f i n d from
t h e evidence t h a t t h e property involved i n
t h i s c a s e w a s s t o l e n , and t h a t t h e r e a f t e r t h e
d e f e n d a n t was found i n p o s s e s s i o n o r c l a i m e d
t o b e t h e owner of t h e s t o l e n p r o p e r t y , such
a f a c t would be a c i r c u m s t a n c e t e n d i n g i n some
d e g r e e t o show g u i l t a l t h o u g h n o t s u f f i c i e n t ,
s t a n d i n g a l o n e and unsupported by o t h e r e v i d e n c e ,
t o w a r r a n t f i n d i n g him g u i l t y . In addition t o
proof of p o s s e s s i o n o f such p r o p e r t y , t h e r e must
be proof of c o r r o b o r a t i n g c i r c u m s t a n c e s t e n d i n g ,
of t h e m s e l v e s , t o e s t a b l i s h g u i l t . Such c o r r o b o r a t i n g
c i r c u m s t a n c e s may c o n s i s t of t h e a c t s , c o n d u c t ,
f a l s e h o o d , i f any, o r o t h e r d e c l a r a t i o n s , i f any,
o f t h e d e f e n d a n t , o r any o t h e r proved c i r c u m s t a n c e ,
t e n d i n g t o show t h e g u i l t of t h e a c c u s e d .
"One who i s found i n t h e p o s s e s s i o n o f s t o l e n
F r o p e r t y i s bound t o e x p l a i n such p o s s e s s i o n i n
o r d e r t o remove t h e e f f e c t of t h a t f a c t as a
circumstance, t o be considered with a l l o t h e r
e v i d e n c e , p o i n t i n g t o h i s g u i l t , and i f he g i v e s
a f a l s e a c c o u n t of how he a c q u i r e d t h a t p o s s e s s i o n ,
o r , h a v i n g r e a s o n a b l e o p p o r t u n i t y t o show t h a t
h i s p o s s e s s i o n was h o n e s t l y a c q u i r e d , he r e f u s e s
o r f a i l s t o do s o , such c o n d u c t i s a c i r c u m s t a n c e
t h a t t e n d s t o show h i s g u i l t . "
The c o u r t i n Greeno, b a s e d on t h e l a s t p a r a g r a p h of t h e
f o r e g o i n g i n s t r ~ c t i o n ~ f o u nt d a t t h e d e f e n d a n t had been
h
d e n i e d a f a i r t r i a l and due p r o c e s s upon t h e s e grounds:
"The d e f e n d a n t , presumed t o be i n n o c e n t , i s
n o t charged w i t h any d u t y t o e x p l a i n h i s p o s s e s s i o n
of any p r o p e r t y , s t o l e n o r o t h e r w i s e . Re need n o t
t e s t i f y a t t h e t r i a l and t h i s f a c t may n o t be
commented upon i n any way p r e j u d i c i a l t o t h e d e f e n d a n t .
The burden o f e x p l a i n i n g s e t o u t i n t h e i n s t r u c t i o n
d e p r i v e s t h e d e f e n d a n t o f h i s c l o a k o f innocence and
f o r c e s him t o t e s t i f y , b o t h r e s u l t s b e i n g c o n t r a r y
t o e x p r e s s s t a t u t e s of t h e s t a t e o f Montana . . ."
135 blont. a t 591, 342 P.2d a t 1058.
Moreover, i n Greeno, t h i s Court e x p r e s s l y o v e r r u l e d two
e a r l i e r c a s e s , " t o t h e e x t e n t t h e y impose upon a d e f e n d a n t a
burden t o e x p l a i n o r t e s t i f y c o n c e r n i n g any c h a r g e of p o s s e s s i n g
s t o l e n goods." . ( I t s h o u l d be n o t e d t h a t t h i s p o r t i o n of t h e
Greeno o p i n i o n was n o t c o n c u r r e d i n by a m a j o r i t y of t h e
,
I n S t a t e v. Xose ( 1 9 8 0 ) , - Mont. - 608 P.2d 1074,
37 St.Rep. 6 4 2 , t h i s C o u r t , where Rose had been c o n v i c t e d o f
b u r g l a r y a s an accomplice, had b e f o r e i t t h i s i n s t r u c t i o n :
"You a r e i n s t r u c t e d t h a t one who i s found i n
t h e p o s s e s s i o n o f p r o p e r t y t h a t was s t o l e n
from b u r g l a r i z e d p r e m i s e s i s bound t o e x p l a i n
such p o s s e s s i o n i n o r d e r t o remove t h e e f f e c t
of t h a t f a c t a s a c i r c u m s t a n c e t o be c o n s i d e r e d
with a l l o t h e r evidence pointing t o h i s g u i l t . "
Although t h e i n s t r u c t i o n t o l d t h e j u r y t h a t t h e d e f e n d a n t
was "bound t o e x p l a i n such p o s s e s s i o n " i n Rose we n e v e r t h e l e s s
approved t h e i n s t r u c t i o n upon t h e ground t h a t i t merely t o l d
t h e j u r y t o c o n s i d e r t h e d e f e n d a n t ' s p o s s e s s i o n of t h e
s t o l e n goods a s one f a c t o r i n d i c a t i n g h i s g u i l t , and b e c a u s e
he had e l e c t e d t o t e s t i f y i n an a t t e m p t t o e x p l a i n away t h e
circumstance of possession.
I n Rose, w e w e r e f o l l o w i n g t h e l e a d o f S t a t e v. Gray
( 1 9 6 8 ) , 152 Mont. 145, 447 P.2d 475, i n which a g a i n on a
b u r g l a r y c h a r g e , Gray was c o n v i c t e d a f t e r t h e j u r y was
instructed:
"One who w a s found i n possession of property
t h a t may have been s t o l e n from b u r g l a r i z e d
p r e m i s e s , i s bound t o e x p l a i n such p o s s e s s i o n
i n o r d e r t o remove t h e e f f e c t of t h a t f a c t
as a circumstance, to be considered with other
evidence, pointing to his guilt . .
."
In Gray, although the defendant relied on Greeno, this Court
pointed out that the discussion of the instruction was by a
minority of the court in Greeno and then determined to
follow the lead of Arizona v. Pederson (1967), 102 ~ r i z .60,
424 P.2d 810, cert-den. 389 U.S. 867, 88 S.Ct. 138, 19
L.Ed.2d 142. The import of Arizona v. Pederson was that if
the defendant wished to remove the effect of possessicn of
stolen property from the facts to be considered by the jury,
the defendant should have offered some explanation of his
possession.
It is the rationale and holding in Arizona v. Pederson
followed by this Ccurt in Gray that apparently gave birth to
the adoption in our criminal code of section 45-6-304, XCA,
as it was originally enacted in 1973.
The defendant, however, brings us to a fresh consideration
of the problem in this case, arguing that the effect of the
statute and instruction no. 6 is tc create a presumption
which is constitutionally improper under the holding of
United States Supreme Court in Sandstrom v. Montana, supra,
and Ulster County v. Allen, supra.
In Ulster, the United States Supreme Court said that a
presumption "must not undermine the factfinder's responsibility
at trial, based on evidence adduced by the State to find the
ultimate fact beyond a reasonable doubt." Ulster, page 156.
The State on the other hand, contends that neither the
statute, section 45-6-304, MCA, nor the instruction raises a
presumption. It contends that the statute and the instruction
do not require an assumption of any fact (here the theft) to
be made from another fact (here the possessicn) so as to he
within the definition of presumption set forth in Rule 301,
M.R.Evid.
We agree with the State that a presumption is not
created by either the statute or the instruction. Neither
requires the jury to assume the fact of theft from the fact
of possession. The first clause of the statute belies that.
Nonetheless, section 45-6-304, MCA, and instruction no.
6 have facial and applicative constitutional defects: they
take away defendant's presumption of innocence and force him
to testify, by placing a burden on him either to disprove
unlawful possession or to prove lawful possession.
Certain principles adhere. Proof of possession of
stolen property standing alone may be as consistent with
innocence as with guilt. Yet the jury ought at least be
allowed to consider unexplained possession of stolen property,
and from that fact infer that he participated in the theft.
The burden of proving every essential element of the theft
must always be on the State. The defendant is never required
to take the witness stand and furnish an explanation of the
possession. If he does testify as to his possession, whether
his explanation is credible is a matter to be determined by
the jury. Instructions to the jury incorporating these
principles should properly inform the jury how to apply the
fact of possession in determining the guilt or innocence of
the defendant. See State v. Proctor (1969), 153 Mont. 90,
454 P.2d 616.
We declare here that section 45-6-304, TCA, is uncon-
stitutional and that any instruction using the language of
such statute is prejudicial to a defendant.
The possession of the stolen property by the defendant
in this case is an important facet of the evidence because
it is the only direct fact in the evidence which indicates
the defendant's guilt. The rest of the case against him is
circumstantial. Because of that situation, it is important
that the jury be properly instructed as to the effect it may
give, in considering a verdict, to the defendant's unauthorized
possession of the stolen property.
We would support on retrial, the following instruction
on the point:
"Unauthorized control or possession of property
belonging to another is ordinarily a circumstance
from which the jury may draw an inference and
find, in the light of all the evidence in the case,
that the person in possession committed the theft
of the property.
"You are permitted but not required to infer from
the defendant's possession of the property of
another that the defendant is guilty of theft
only if in your judgment such an inference is
warranted by the evidence as a whole. It is
your exclusive province to determine whether the
facts and circumstances shown by the evidence
warrant the inference to be drawn by you.
"'The possession of the property by the defendant
does not shift the burden of proof which is
always on the State to prove beyond a reasonable
doubt every essential element of the offense
with which defendant is charged.
"The defendant's possession of property
belonging to another may be satisfactorily
explained in the evidence independently of
any testimony of the defendant personally. If
defendant does take the witness stand to
explain his possession of the property, the weight
to be attached to his explanation is exclusively
for you to determine. Even if defendant's
possession of the property is unexplained, you
cannot find him guilty, if after consideration of
all the evidence in the case, you have a reasonable
doubt as to his guilt.
"If under the evidence, defendant's possession of
the property of another is consistent with his
innocence, then the jury should acquit the defendant
unless he has been proven guilty beyond a reasonable
doubt by other evidence in the case." (See appendix
to Wells v. People (Colo. 1979), 592 P.2d 1321, 1326.)
It is unnecessary for us to reach the third issue in
this case since the cause must be retried.
The judgment of conviction is reversed and the cause is
remanded for retrial of the defendant, consistent with this
opinion.
\
\ " L ;.
.
Justice
We Concur:
Chief Justice