No. 85-236
I N THE SUPREME COURT O THE STATE O M N A A
F F O T N
1985
STATE O MONTANA,
F
P l a i n t i f f and A p p e l l a n t ,
-vs-
DENNIS R. HAACK,
Defendant and Respondent.
APPEAL FRON: D i s t r i c t Court of t h e Twentieth 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 Lake,
The H o n o r a b l e C . B. M c N e i l , J u d g e p r e s i d i n g .
COUNSEL O RECORD:
F
For Appellant:
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
Mark J. Murphy a r g u e d , A s s t . A t t y . G e n e r a l , H e l e n a
J o h n R . F r e d e r i c k , County A t t o r n e y , P o l s o n , Montana
For Respondent:
B r i a n J . S m i t h a r g u e d ; Manley & S m i t h , P o l s o n ,
Montana
Submitted: December 1 8 , 1 9 8 5
Decided: F e b r u a r y 7 , 1986
Filed: FEB
Clerk
Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.
The respondent, Dennis Haack, was charged with ten
counts of theft for purposely or knowingly obtaining or
exerting unauthorized control over property of the owner
consisting of funds in a joint checking account. The
respondent filed a motion to dismiss on the grounds that he
was a joint owner in the joint checking account and
authorized to withdraw funds from the account. The District
Court found as a matter of law the respondent could not be
convicted of the crime of theft for withdrawing funds from a
joint tenancy bank account and granted the respondent's
motion to dismiss. The appellant, State of Montana, appeals
from the granting of that motion.
F e affirm.
l
The issue presented for review is whether, under the
facts presented in this case, the District Court erred in
ruling as a matter of law that there can be no conviction for
the crime of theft when an individual withdraws funds from a
joint tenancy checking account if that individual is a joint
tenant in that account.
Because this matter is presented on appeal from the
granting of a motion to dismiss, few facts have been
presented in District Court. The record consists of the
charging documents and the parties' briefs pertaining to the
motion to dismiss.
The record and the arguments on appeal show that the
respondent, Dennis Haack, contracted with homeowners, George
and Lois Carey, to construct a house for them. The Careys
deposited a total of $30,000 in a joint checking account in
which the respondent and George Carey were joint tenants
authorized to draw from the account. The account contained
the total funds for construction to completj.on and,
evidently, included the respondent's potential profit also.
Construction commenced and the respondent began drawing
from the account. The charging documents allege that checks
totaling in excess of $10,000 were drawn by the respondent
for personal unauthorized purposes. Although the reason why
is not clear, Careys requested that construction be halted.
The reason may be that they had notice of the respondent's
withdrawals. The Careys withdrew the remaining funds in the
account and determined that the balance was less than should
be in the account at that time.
The respondent was then charged by information with ten
counts of theft for writing checks on the joint account. The
respondent successfully moved to dismiss the charges. The
District Court found as a matter of law that the respondent
could not be convicted of the crime of theft because he was a
joint tenant in the account.
The appellant, Sta-te of Montana, argues that 5 45-6-303,
MCA, makes it perfectly clear that a joint tenant may be
convicted of theft of joint tenancy property. Section
45-6-303, MCA, provides that it is no defense to a charge of
theft of property that the offender has an interest therein
when the owner also has an interest to which the offender is
not entitled. The appellant arques that if this Court finds
any ambiguity in 5 45-6-303, MCA, it is immediately cleared
up when the legislative comment to that code section is
considered. The legislative comment contained in S 45-6-303,
MCA, (annot.) , states that the provision removes any doubt
regarding the commission of theft by a co-owner who exercises
unauthorized control with the purpose to permanently deprive
a co-owner of his interest in the property.
The respondent, Dennis Haack, argues that a joint
tenancy bank account gives to both joint tenants the
authority to exert control over the property placed in that
account without further consent by any other person and that,
therefore, a person cannot be convicted of theft as a result
of withdrawing funds from a joint tenancy bank account. The
respondent refers to several Montana cases for the
proposition that a special interest is created by a joint
bank account. He argues that such precludes a finding that
he could have "exerted unauthorized control over the property
of an owner" and, therefore, he could not be convicted of
theft. He argues that it is abundantly clear that either
joint tenant may withdraw all funds from a joint tenancy bank
account without the consent of any other person because both
joint tenants have the authority to exert absolute control
over all the funds placed in such an account. The respondent
recognizes S 45-6-303(l), MCA, relied on heavily by the
appellant, but argues that it is not applicable because the
owner had no "interest to which the offender is not
entitled."
We are solely concerned with whether, as a matter of
law, a joint tenant may not be convicted of the crime of
theft for drawing funds from a joint tenancy checking
account. A joint tenancy bank account is a special
relationship between co-owners. It is a relationship that
may create an equal unrestricted and absolute interest in
such co-owners with neither co-owner having an interest to
which the other is not entitled. A statutory example of the
law on joint bank accounts or similar joint ownership
arrangements is contained in S 32-1-442, MCA, which provides:
32-1-442. Joint deposits--survivorship. (1) When
a deposit has been made ...
in the names of two
or more persons, payable to either . . .
such
deposit, or any part thereof
. . ..
...
may be paid to
any of said persons
There are a number of cases in. Montana on the nature of joint
bank accounts. In Casgranda v. Dona.hue (1978), 178 Mont.
479, 585 P.2d 1286, this Court said:
A joint bank account has a special attribute which
-
allows either joint owner, by virtue of the
contract with the bank, to acquire dominion over
the entire account by diawing a -proper order on the
bank. . .[elither party can acquire the whole
account either by withdrawing it during the
lifetime of the co-owners or by survivorship.
Casagranda, 585 P.2d at 1288.
A review of the applicable criminal statutes
demonstrates that there can be no theft of joint
tenancy bank account property.
Theft is defined in 5 45-6-301, MCA, as:
45-6-301. Theft. (1) A person commits the
offense of theft when he purposely or knowingly
obtains or exerts unauthorized control over the
property of the owner a.nd:
(a) has the purpose of depriving the owner of the
property;
(b) purposely or knowingly uses, conceals, or
abandons the property in such manner as to deprive
the owner of the property; or
(C uses, conceals, or abandons the property
knowing such use, concealment, or abandonment
probably will deprive the owner of the property.
(2) ....
The Montana statutes have a provision concerning an
offender's interest in the property. Section 45-6-303, MCA,
provides :
45-6-303. Of fender's interest in the property.
(1) It is no defense to a charge of theft of
property that the offender has an interest therein
when the owner also ha.s an interest to which the
offender is not entitled.
(2) ... .
The Criminal Law Commission Comments state in regards to
subsection (1) of 5 45-6-303, MCA:
The provision removes any doubt regarding the
commission of theft by a co-owner, such as a
partner, joint tenant or tenant in common, or any
other type of co-owner who exercises unauthorized
control with the purpose to permanently deprive a
co-owner of his interest in the property. Section
45-6-303, MCA (annot.) .
The respondent presents the stronger argument. Statutes
and case law demonstrate that a joint tenancy bank account is
indeed a special relationship between co-owners. This
special relationship precludes application of the theft laws.
For example S 45-6-303, MCA, on the offender's interest in
property requires the owner to have "an interest to which the
offender is not entitled," and the comments to this section,
s 45-6-303, MCA, (annot.), require "unauthorized. control."
The special relationship between co-owners in a joint tenancy
hank account cannot ha.ve any "unauthorized control" or
"interest to which offender is not entitled" by a joint
tenant.
Affirmed.
We Concur:
Mr. Justice L. C. Gulbrandson dissenting:
I respectfully dissent.
In my view, the last sentence of the majority opinion
would be legally sound if a n additional written contract did
not exist between the two named joint tenants. The ma-jority
refer to the contract, but, in effect, rule that as a matter
of law the contents of that contract can have no legal crimi-
nal effect on the use of the funds in the joint tenants' bank
account.
I would allow the State to prove, if it is able, that
the defendant, by the terms of his contract, was not author-
ized to exercise control over the joint tenancy funds in the
manner which he did. This manner of proceeding would recog-
nize that the legislature had a legitimate reason for enact-
.
ing § 45-6-303, MCA.
Mr. Justice Fred J. Weber joins in the foregoing dissent
c-
of Mr. Justice L. C. Gulbrandson.
Justice