No. 81-432 

IN THE 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 Thirteenth Judicial 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 Sheraton Hotel 

for two hours, was asked to leave by the hotel's security 

guard. Hotel employees watched Hembd after he left. They 

soon observed him in front of 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 styrofoam donut 

wrapper burning on top of a heater next to the wall. After 

extinguishing the flame the two emjjloyees seized Hembd who 

was a short distance 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 charged with the crime 

to section 45-6-102(1)(a), MCA. The jury was instructed on 

four alternate forms of 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 acquit him 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 of misdemeanor 

negligent arson and felony negligent arson, and therefore 

Hembd may not be 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: 

"Attempt is defined by section 45-4-103, MCA, 

as follows: 

1) A person commits the offense of attempt 

when with the purpose to commit a specific 

offense, he does any act toward the commission 

of such offense.' 

"The crime of misdemeanor negligent arson occurs 

when a person 'purposely or 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 

these definitions that the problem becomes clear. 

It is possible to purposely attempt to start a 

fire. The crime of negligent arson, however, 

requires purposely or knowingly starting a fire 

and negligently placing 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 'purposely or knowingly starting a 

fire.' That ruling ignores the definition of attempt. 

Attempt requires 'purpose to commit a specific 

offense' and, standing by itself, purposely 

starting a fire is not a punishable offense. The 

second requirement, negligently placing property 

in danger, is necessary to complete the crime 

of negligent arson. It is impossible to show 

one purposely 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 of Montana and the United States prohibit 

double jeopardy. 1972 Mont. Const., Art. 11, 5 25, states: 

"No person shall be again put in jeopardy for the same 

offense previously tried in any jurisdiction." Even more 
specific 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 

statute would 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 charged with attempted murder. The jury was instructed 

that attempted involuntary manslaughter was a lesser-included 

offense which 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 it was determined that attempted 

involuntary manslaughter was a nonexistent crime and the 

judgment was reversed. Further, the appellate court held 

that by convicting the defendants of a crime which was 

erroneously believed to be a lesser offense included within 

the crime of attempted murder, the jury impliedly found that 

the defendants were not guilty of attempted murder. The 

jury's implied verdict of acquittal was held to bar further 

prosecution on the attempted murder charge. 

An identical result was 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 first degree murder. The jury was instructed that it 

could find Green guilty of arson under the first count and 

of either (1) first degree murder 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 degree murder was reversed 
because it was 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 degree murder. Green appealed to the United States 

Supreme Court, raising the defense of double jeopardy.  he 

Court held that the second trial for first degree murder 

placed Green in jeopardy twice for the same offense in 

violation of the Fifth Amendment to the United States Constitution. The Court stated: 

"Green was in direct peril of being convicted 

and punished for first degree 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's verdict as an implicit acquittal on 

the charge of first degree murder. 

"In brief, 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 first degree 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 it was immaterial to its decision 

whether second degree murder 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 remanded with instructions 

to dismiss the action. 
We Concur: