No. 87-309
I N THE SUPREME COURT O THE STATE OF M N A A
F O T N
1988
STATE O F MONTANA,
P l a i n t i f f and R e s p o n d e n t ,
-vs-
HUGH T U M N WHITE,
H R A
D e f e n d a n t 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 Fourth 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 M i s s o u l a ,
The H o n o r a b l e J o h n S. Henson, J u d g e p r e s i d i n g .
COUNSEL OF RECORD:
For Appellant:
W i l l i a m Boggs, M i s s o u l a , Montana
For 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
P a t r i c i a J. S c h a e f f e r , A s s t . Atty. General, Helena
R o b e r t Deschamps, 111, County A t t o r n e y ; B e t t y T . Wing,
Deputy, M i s s o u l a , Montana
S u b m i t t e d on B r i e f s : Oct. 22, 1987
Decided: F e b r u a r y 1 6 , 1988
Filed:
Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
Mr. White pled guilty in the District Court for the
Fourth Judicial District, Missoula County, to a charge of
felony theft. In this appeal, he challenges the jurisdiction
of the State of Montana. We affirm.
The issue is whether the District Court had jurisdic-
tion over the offense.
Mr. White worked for Mr. Rang, a Montana businessman,
as a long distance truck driver. The parties stipulated to
the following facts with respect to the issue of
jurisdiction:
That when Mr. White took possession of Mr. Rang's
truck and left the state of Montana, he did so with
authorization to do so--namely, he was employed by
Mr. Rang, and he was supposed to drive his truck;
that the way he left the state of Montana with the
truck, that he had at that time no criminal intent;
that subsequent to Mr. White's leaving Montana in
early 1984 with the truck, that he was never again
in Montana with the truck; that at some point in
the late spring of 1984, by long distance tele-
phone, Mr. Rang communicated to Mr. White his lack
of authority to continue driving the truck; and
that Mr. White thereafter used, concealed, or
abandoned the truck in such a manner as to deprive
the owner of the property; and that he did this at
least in the states of Kentucky and Texas and
possibly other states.
Mr. White was arrested on this charge in Kentucky in
April 1985. He originally pled innocent, and moved to dis-
miss on the basis that the Montana court had no jurisdiction.
His motion was denied. After one day of trial, Mr. white
changed his plea to guilty. After he was sentenced, he filed
a motion to reconsider the adverse ruling on jurisdiction.
That motion b a also denied.
rs
Did the District Court have jurisdiction over the
offense?
Section 46-2-101, MCA, sets forth the scope of Montana
courts' jurisdiction:
A person is subject to prosecution in this
state for an offense which he commits while either
within or outside the state by his own conduct or
that of another for which he is legally accountable
if:
(a) the offense is committed either wholly or
partly within the state;
(b) the conduct outside the state constitutes
an attempt to commit an offense within the state
and an act in furtherance of the offense occurs in
the state; or
(c) the conduct within the state constitutes
an attempt, solicitation, or conspiracy to commit
in another jurisdiction an offense under the laws
of this state and such other jurisdiction.
(2) An offense is committed partly within
this state if either the conduct which is an ele-
ment of the offense or the result which is an
element occurs within the state. In homicide, the
"result" is either the physical contact which
causes death or the death itself, and if the body
of a homicide victim is found within the state, the
death is presumed to have occurred within the
state.
( 3 ) An offense which is based on an omission
to perform a duty imposed by the law of this state
is committed within the state, regardless of the
location of the offender at the time of the
omission.
(4) This state includes the land and water
and the air space above such land and water with
respect to which the state has legislative
jurisdiction.
This statute extends Montana's jurisdiction to crimes which
would not in the past have been within the State's jurisdic-
tion. For example, $ 46-2-101(2), MCA, allows Montana to
prosecute a homicide if a body is found within Montana,
regardless of where the homicide occurred. We must keep this
broad assertion of jurisdiction in mind. as we analyze the
present case.
Section 45-6-301, MCA, defines the crime of theft.
Subsection (1) provides:
A person commits the offense of theft when he
purposely or knowingly obtains or exerts unautho-
rized control over property of the owner and:
(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.
The charge against Mr. White in the information was phrased
in the language of § 45-6-301(1) (b), MCA.
Mr. White argues that the State of Montana does not
have jurisdiction to charge him with theft because none of
the elements of the crime occurred in the state. He cites
Illinois cases in support of his position.
Although the source of Montana's theft statute is the
Illinois theft statute, 111.Rev.Stat. ch. 38 S 16-1, Mon-
tana's statute has been modified significantly from the
Illinois statute. The Illinois statute does not contain a
subsection like S 45-6-301(1)(b), MCA. In the absence of the
statutory provision under which Mr. White was charged, Illi-
nois' interpretation of its statute is not relevent.
Mr. White also points out that the Commission Comments
to S 45-6-301(1), MCA, state "only two elements must be
proved under this subsection, a knowing exertion of control
and a purpose to deprive . . ."
. We conclude that while
this statement may be true for parts (a) and (c) of subsec-
tion (I), the language of part (b) requires that the owner
must be deprived of his property before a charqe of theft
will stand. Mr. Rang's truck was delivered to Mr. White in
Montana with the understanding that it was to be returned to
Mr. Rang in Montana. We conclude that the failure to return
the truck resulted in Mr. Rang being deprived of his property
in Montana. Under § 4 6 - 2 - 1 0 1 ( 2 ) , MCA, Montana has jurisdic-
tion over an offense if the result which is an element of the
offense occurred in Montana. We hold that the Montana court
had jurisdiction over the charge of theft against Mr. White.
Affirmed.
We Concur:
Justices
Mr. Justice William E. Hunt, Sr., dissenting:
I find it difficult to follow the reasoning of the
majority opinion in holding that the language contained in
the Montana theft statute gives Montana jurisdiction over
White's actions. Section 45-6-301 (b), MCA, requires that a
person "purposely or knowingly obtains or exerts unauthorized
control over property" - ".
and .. uses, conceals, or abandons
the property in such a manner as to deprive the owner of the
property."
The stipulated facts, as quoted by the majority, state
that White had - intent to deprive Rang of his property at
no
any time while in the State of Montana. This agreement as to
the facts removes White from the long arm jurisdiction
statute upon which the State and the majority rely. Section
46-2-101 (1)(a), MCA, states:
A person is subject to prosecution in this state
for an offense which he commits while either within
or outside the state by his own conduct . .. if:
(a) the offense is committed either wholly or
partly within the state; ...
There is - evidence to contradict the finding of fact
no
that White never used, concealed nor abandoned the truck in
such a manner as to deprive Rang of his property while in
Montana.
The State asserts, and the majority agrees that the
result of Rang being deprived while in Montana is an element
of theft, S 45-6-301(1)(b), MCA, and therefore brings him
under S 46-2-101 (2), MCA:
A offense is committed partly within this state if
either the conduct or the result which is an
element occurs within the state.
The majority opinion states that "[tlhe Illinois statute
does not contain a subsection like S 45-6-301(1) (b), MCA.
Illinois' interpretation of her statute does not bind u-s'in
this case."
Section 45-6-301 (1)(b) states:
A person commits the offense of theft when he
purposely or knowingly obtains or exerts
unauthorized control over property of the owner
and;
(b) purposely or knowingly uses, conceals, or
abandons the property in such manner as to deprive
the owner of the property.
Section 16-1 of the Illinois criminal statute states:
Theft. A person commits theft when he knowingly:
(a) Obtains or exerts unauthorized control over
property of the owner; or
(b) Obtains by deception control over property of
the owner; or
(c) Obtains by threat control over property of the
owner; or
(d) Obtains control over stolen property knowing
the property to have been stolen or under such
circumstances as would reasonably induce him to
believe that the property was stolen, and
(1) Intends to deprive the owner permanently of
the use or benefit of the property; or
(2) Knowingly uses, conceals or abandons the
property in such manner as to deprive the owner
permanently of such use or benefit; or
(3) Uses, conceals, or abandons the property
knowing such use, concealment or abandonment
probably will deprive the owner permanently of such
use or benefit.
Section 16-1 does not have the same format as §
45-6-301, but as I read it, the critical language is
virtually identical.
Regardless of whether the theft statutes of Illinois and
Montana merit comparable interpretation, the long-arm
jurisdiction statutes from the two states - identical.
are
When considering the construction of a statute which is
adopted from another jurisdiction, this Court is not bound by
the construction or interpretation placed upon it by the
other jurisdiction. Edgar v. Hunt (Mont. 1985), 706 P.2d
120, 122; Lawrence v. Harvey (Mont. 1980), 607 P.2d 551, 556.
This Court will, however, carefully consider the construction
of that statute placed on it by the highest court in the
state from which it was adopted. State v. Murphey (1977),
174 Mont. 307, 311, 570 P.2d 1103, 1105.
The Illinois case most relevant to the case at bar with
respect to the issue of jurisdiction is People v. Holt (111.
1982), 440 N.E.2d 102. In Holt, the defendant kidnapped a
woman in Illinois, drove her to Wisconsin where she was raped
and murdered. Citing Section 1-5 of the Illinois criminal
code, which is identical to Montana's criminal jurisdiction
statute, the Illinois court stated that:
Not every element of an offense supports
jurisdiction. Some elements, while essential in
the sense of necessary, are not the essence of the
crime . . ..
Section 1-5 does not declare that any element of
the offense will support jurisdiction. The
language is "the conduct which is an element of the
offense, or the result which is such an element
... I1
The "element" phrases do not expand
jurisdiction but limit it. The proper meaning is
that "the conduct" is enough only if it is an
element of the offense; similarly, if the offense
is defined solely in terms of conduct without
regard to any result, there is no jurisdiction
based on where the conduct causes harm.
Montana does not have jurisdiction to prosecute White
unless we find that the result of deprivation is an element
of the crime of theft.
An Illinois case which discusses the Illinois theft
statute is People v. Nunn (Ill. App. 1965), 212 N.E.2d 342:
A person who "knowingly obtains or exerts
unauthorized control over property of the owner" is
the statutory description of a thief, provided only
- -his - is accompanied
that - act the requisite mental
state. (Emwhasis added.)
212 N.E.2d at 344.
Whether interpretating Illinois or Montana statutes, the
elements constituting theft are elements of conduct and a
dual mental state, not result. The defendant must purposely
or knowingly act in a way which he knows will, or probably
will, deprive another of their property. The result of
actual deprivation to a victim is not delineated by the
statute. Even if, arguendo, the result of deprivation - an
was
element of theft, the deprivation in this case occurred in
states other than Montana. The deprivation occurred in the
states in which White exerted unauthorized control of Rang's
truck while having the proper mental state of intent to
deprive.
The majority's last paragraph is very troublesome to me.
It says that because White picked up Rang's truck in Montana,
with the understanding that it would be returned to Montana,
the State of Montana therefor has jurisdiction over White's
charge of theft regardless of where the theft occurred.
Nowhere in the language of Montana's theft or long arm
jurisdiction statutes is there even an allusion to a delivery
of goods in one jurisdiction which are later stolen in
another jurisdiction. Although there was never any intent by
White to deprive Rang of his property while in Montana, the
majority apparently interprets the statutes as saying that
because he lawfully received the truck in Montana, but failed
to return it to Montana, he can be tried in Montana for a
theft which occurred totally outside of Montana's borders.
There is no case on point in Montana which deals with
this situation. A search of the various state laws which
dealt with similar problems reveals one case directly on
point from Colorado; People v. Tinkle (Colo. App. 1985) , 714
P. 2d 919. Tinkle was convicted of theft in Colorado. The
evidence showed that Tinkle entered into an agreement with a
man from Colorado which provided that Tinkle take the man's
merchandise to Texas to sell at rodeos. Tinkle was to share
in the profits. After several failed attempts to sell the
merchandise in Texas as planned, Tinkle resorted to selling
the total inventory in Arizona, but kept all proceeds from
the sale. The Colorado Court of Appeals reversed Tinkle's
conviction, stating:
The critical elements here are defendant's intent
to deprive and the location where his control over
(victims) merchandise was no longer authorized.
Even with the evidence considered in the light most
favorable to the prosecution, all inferences point
-
to defendant exercising authorized control in
Colorado, - not formulating any wrongful intent
and
until - - - - -
he was out of this State. (Cites omitted. f
Under these circumstances, jurisdiction for
prosecution of the theft charge was not
established, and defendant's motion for judgment of
acquittal should have been granted. (Emphasis
added. )
I agree with the reasoning of the Colorado Court. The
fact that a victim in Montana was deprived of his property is
not enough to qualify as the commission of an offense "partly
within" the State of Montana. Jurisdiction is proper in "the
location where (White's) control over (the truck) was no
longer authorized." Consequently, I would hold that the
State of Montana does not have jurisdiction t o prosecute
defendant White under the present law
/
We concur in the foregoing dissent:
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Justice