No. 81-432 INTHE SUPREME COURT OF THE STATE OF MONTANA 1982

THE STATE OF MONTANA, Plaintiff and Respondent,

-vsJOHN PATRICK HEMBD, Defendant and Appellant.

Appeal from: District Court of the ThirteenthJudicial District, In and for the County of Yellowstone, The Honorable Charles Luedke, Judge presiding.

Counsel of Record: For Appellant: John L. Adams, Billings, Montana

For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Harold F. Hanser, County Attorney, Billings, Montana

Submitted on Briefs: February 25, 1982 Decided:

### Mr. Justice John C. 

### Sheehy delivered the Opinion of the Court.

John Hembd was charged by information in the District Court of the Thirteenth Judicial District,Yellowstone County, with the crime of negligent arson under section 45- 6-102 (1)(a),MCA. A jury found him guilty of "attempted misdemeanor negligent arson" and he appeals. In the early evening of February 13, 1981,Hembd, who had been sitting in the lobby of the Billings SheratonHotel for two hours, was asked to leaveby the hotel's security guard. Hotel employees watched Hembd after he left. They

soon observed him in frontof a hotel fire exit,with his back to certain doors that lead into the building. As he started to walk away, the employees entered the area in which he had been standing and discovered a styrofoamdonut wrapper burning on top of a heater next to thewall. After extinguishing the flame the two emjjloyees seized Hembd who

was a shortdistance away. Hembd allegedly stated, "You didn't see anything. You can't prove anything. You guys are crazy." Hembd admitted at trial that he was drunk at the time of the incident but denied Hembd was chargedwith the crime to section 45-6-102(1)(a), MCA. 

### The jurywas instructed on four alternate formsof verdict: felony negligent arson, "attempted felony negligent arson,"misdemeanor negligent arson, and "attempted misdemeanor negligent arson." Hembd

was found guilty of "attempted misdemeanor negligent arson." This appeal raises two issues: (1) Is "attempted misdemeanor (or felony) negligent arson" a 

### crime?; and (2)If Hembd was convicted of a nonexistent crime,did the purported conviction impliedly acquithim of misdemeanor or felony negligent arson? -2-

### We find that attempted misdemeanor negligent arson and attempted felony negligent arson are nonexistent crimes. Furthermore,we find that the jury's verdict, notwithstanding the fact that it convicted Hembd of a nonexistent crime, constituted an implied acquittal of the crimes ofmisdemeanor negligent arson and felony negligent arson, and therefore Hembd may notbe retried for these offenses. Hembd contends that there is no such crime as "attempted misdemeanor negligent arson." The State concedes this point in the following passage quoted from its brief: "Attemptisdefined by section 45-4-103,MCA, as follows: 1) 

### A person commits the offense of attempt whenwith the purpose to commit a specific offense,he does any act toward the commission of such offense.' "Thecrime of misdemeanor negligent arson occurs when a person 'purposelyor knowingly starts a fire or causes an explosion

# . . .and thereby negligently' places property in danger of destruction, 5 

### 45-6-102, KA. 

### It is in combining thesedefinitions that the problem becomes clear. It ispossible to purposely attempt to start a fire. The crime of negligent arson, however, requirespurposely or knowingly starting a fire and negligentlyplacing property in danger. To purposely attempt to be negligent is a contradiction - 

### in terms. The trial court ruled that attempt modifies only the act of 'purposelyor knowingly starting a fire.' That ruling ignores the definitionof attempt. Attempt requires 'purposeto commit a specific offense' and, standingby itself,purposely starting a fire is not a punishable offense. The second requirement,negligently placing property indanger, is necessary to complete the crime of negligent arson. It is impossible to show onepurposely was negligent." Attempted negligent arson, be it misdemeanor or felony, is a nonexistent crime. The second issue involves the concept of double jeopardy. The constitutions ofMontana and the United States prohibit double jeopardy. 1972Mont. Const., Art. 11, 5 

### 25, states: "Noperson shallbe againput 

### in jeopardy for the same offensepreviously tried in any jurisdiction." Even morespecific is section 46-11-503(I),MCA. If "attempted misdemeanor negligent arson" were a legitimate lesser offense included within the crime of negligent arson, the statutewould clearly bar a retrial for negligent arson. A situation very similar to the present one recently confronted a California court. The defendants in People v. Van Broussard (1977), 76 Cal.App.3d 193, 142 Cal.Rptr. 664,

were chargedwith attempted murder. The jury was instructed that attempted involuntary manslaughterwas a lesser-included offensewhich should be explored in the event it found the defendants not guilty of attempted murder. The jury returned

a verdict finding the defendants guilty of attempted involuntary manslaughter. On appeal itwas determined that attempted involuntary manslaughter was a nonexistent crime and the judgmentwas reversed. Further, the appellate courtheld that by convicting the defendants of a crime which was erroneouslybelieved to be a lesser offense included within the crime of attempted murder, the jury impliedly found that the defendantswere not guilty of attempted murder. The jury's implied verdict of acquittalwas held to bar further prosecution on the attempted murder charge. An identical resultwas reached in the analogous case of Green v. United States (1957), 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199. Green was indicted on two counts: arson and firstdegreemurder. The jury was instructed that it could find Green guilty of arson under the first count and of either (1) first degreemurder or (2)second degree murder under the second count. The jury found Green guilty of arson and of second degree murder but did not find him guilty on the charge of murder in the first degree. On appeal, the conviction of second degreemurder was reversedbecause itwas not supported 

### by the evidence. On remand, Green was tried again for first degree murder under the original indictment. This time a new jury found him guilty of first degreemurder. Green appealed to the United States Supreme Court, raising the defense of double jeopardy.  he Courtheld that the second trial for first degreemurder placed Green in jeopardy twice for the same offense in violation of the FifthAmendment to the United States Constitution. The Court stated: "Green was in direct peril of being convicted and punished for firstdegree murder at his first trial. He was forced to run the gaunlet once on that charge and the jury refused to convict him. When given the choice between finding him guilty of either first or second degree murder it chose the latter. In this situation the great majority of cases in this country have regarded the jury'sverdict as an implicit acquittal on the charge of firstdegreemurder.

"Inbrief, we believe this case can be treated no differently, for purposes of former jeopardy, than if the jury had returned a verdict which expressly read: 'We find the defendant not guilty of murder in the firstdegree but guilty of murder in the second degree.'" 355 U.S. at 190-191, 78 S.Ct. at 225, 2 L.Ed.2d at 206. The Court noted that itwas immaterial to its decision whether second degreemurder was a lesser-included offense. 355 U.S. at 194, 78 S.Ct. at 227, 2 L.Ed.2d at 208. The judgment is reversed and remandedwith instructions to dismiss the action.We Concur: