No. 13314 INTHE SUPREME COURT OF THE STATE OF MONTANA 1977

THE STATE OF MONTANA, Plaintiff and Respondent,

-vsFRANK PREITE, Defendant and Appellant.

Appeal from: District Court of the Twelfth Judicial District, Honorable B. W. Thomas, Judge presiding. Counsel of Record: For Appellant: Smith, Emmons, Baillie and Walsh, Great Falls, Montana Robert J. Emmons argued, Great Falls, Montana For Respondent: Hon. Mike Greely Attorney General, appeared, Helena,

Montana Robert F. Keller, Special Assistant Attorney General,

argued, Helena, Montana

Submitted: February 9, 1977 Decided 

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## 172;-Mr. Justice Frank I. Haswell delivered the Opinion of the Court. Defendant Frank Preitewas convicted of the crimes of grand larceny and grand larcenyby bailee in a Workmen's Compensation prosecution in the district court of Hill County. From the judgment of conviction entered on the jury verdict, defendant appeals. The tortuous path of this prosecution is necessary to

an understanding of this appeal. On July 31, 1974 defendantwas originally charged in the district court of Deer Lodge County with four crimesarising out of workmen's compensation settlementshandled by John L. McKeon. The information specifically charged these crimes: (1)Aiding and abetting McKeon in the crime of grand larceny involving the settlement proceeds of the Howard E. Smith claim; (2)Aiding and abetting John L. McKeon in the crime of grand larcenyby bailee in connection with the settlement proceeds of the William Madden claim; (3)Aiding and abetting John L. McKeon in the crime of grand larcenyby trick involving the settlement proceeds of the Harold Phelps claim and; 

### (4) Forgery of a workmen's compensation settlementdraft. On September 9, 1974 defendant filed motions to dismiss the informationon the ground of insufficiency of the prosecutor's affidavit to showprobable cause for filing the information. On October 4, 1974 the Deer Lodge County informationwas dismissed onmotion by the State. On the same day a second informationwas filed in the district court of Hill County charging defendant with 20 crimes. These crimes included the four crimes originally charged in the Deer Lodge County information. Between October 4, 1974 and February 24, 1975 defense counsel filed over 100motions in connection with the Hill County chargeshich were extensivelybriefed and argued by both parties. The Hill County district courtgranted 22 of the defendant'smotions, denied 75, and 

### 4 were withdrawn. The net resultwas dismissal of five counts in the Hill County information. On February 28, 1975 a third informationwas filed. This information charged 15 crimes. Defendant responded with

a battery of 82motions and a supporting brief. The State did not file an opposing brief, but instead filed a fourth information charging defendant with 8 crimes, including the 4 originally charged in the Deer Lodge County information with material changes in one of the charges. Defendant again filed a series of motions which included

a motion for change of venue and a motion for severance of the counts charging the crimes. Thedistrict court of Hill County entered an order changing the venue of 5 of the 8 counts to other district courtsoutside Hill County. Eventually all 5 of the transferred counts were dismissed by the other district courts. The remaining 3 counts in the district court of Hill County charged defendant with the following crimes: (1)Aiding and abetting John L. McKeon in the crime of grand larceny involving the settlement proceeds of the Howard E. Smith claim; (2)Aiding and abetting John L. McKeon in the crime of grand larcenyby bailee in connection with the settlement proceeds of the William Madden claim;and (3)Aiding and abetting John L. McKeon in the crime of grand larcenyby trick involving the settlement proceeds of the Harold Phelps claim. All three crimes were originally charged in the first information filed in the district court of Deer Lodge County. Trial was held on these three charges in the districtcourt of HillCounty commencing October 6, 1975. The jury found defendant guiltyof all3 charges. On motion of defendant, the guiltyverdict on the charge involving theWilliam Madden claimwas set asideon the ground of insufficiency of evidence to support conviction of that charge. Judgment of conviction was entered on thejury verdict covering the remaining two charges, viz (1)grand larceny involving the settlement proceeds of theHoward E. Smith claim, and (2) grand larceny by trick involving the settlement proceeds of theHarold Phelps claim. Defendant appeals from thejudgment of conviction of these two crimes. Defendant's specifications of error include 9 assertions of error directed athisconviction of grand larceny involving the Smith claim; 15asserted errorsdirected athis conviction of grand larceny by trick involving the Phelps claim; and 20 asserted errorsgoing tothe case as a whole. The principal specifications of error are directed atthe districtcourt's denial of a change of venue, admission inevidence of an alleged taped "confession", denial of severance of thecharges, denial of a speedy trial, sufficiency of the evidence to support the convictions, and errors ininstructing thejury. We firstdirectour attentiontothe venue issue. The applicable constitutionalprovisions state: "In allcriminal prosecutions the accused shall enjoy the right toa speedy and public trial, by an impartial jury of the stateand district wherein thecrime shall have been committed 

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## *." (Emphasis supplied.) SixthAmendment, United States Constitution. "Inallcriminal prosecutions the accused shall have the right to

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## * a speedy public trialby an impartialjury of the county ordistrict in which the offense is alleged tohave been committed 

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## *." (Emphasis supplied.) Art. 11, Section 24, 1972 constitution of-Montana. Montana statutes implementing these constitutionalvenue requirements provide:"Inall criminal prosecutions the trial shall be in the countywhere the offensewas committed unless otherwiseprovided by law. 

## * * *" Section 95-401,R.C.M. 1947. "Wheretwo (2)ormore acts are requisite to the commission of any offense, the trial may be had in any county in which any of such acts occur." Section 95-402,R.C.M. 1947. Additional implementing statutes specifically directed at the crimes here involved provide: "Wherea person in one county commits, aids, abets, or procures the commissionof an offense in another county the offendermay be tried in either county." Section 95-404,R.C.M. 1947. "Where a person obtainsproperty by larceny, robbery, false pretenses or embezzlement, he may be tried in any county in which he exerted control over such property." Section 95-408,R.C.M. 1947. "An

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## * information against any accessory to any felonymay be found in any county where the offense of such accessory may have been committed

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## *." Section 94-6424,R.C.M. 1947. In this case defendant was convicted of two crimes. One crime was grand larceny in violation of section 94-2701(2), R.C.M. 1947. Essentially it charges defendant with aiding and abetting McKeon in stealing Smith's settlement warrant covering his workmen's compensation claim. The second crimewas grand larceny by trick in violation of section 94-2701(1), R.C.M. 1947. Essentially it charges defendant with aiding and abetting McKeon in stealing the State's money by submitting false documents whereby a settlement of Phelps' claim was secured without his knowledge and consent. The supporting affidavit of the special prosecutor to show probable cause for the filing of the original information in the district court of Deer Lodge County flatly states that these crimes were committed in Deer Lodge County. Subsequently the State attested that it had discovered additional information authorizing the subsequent filing of the charges in Hill County, yet the State's supporting affidavit filed in Hill County disclosesno such later facts. Thus the original information and original affidavit constitute clear declarations against the State's present claim that venue is properly laid in Hill County. However, the substantial error is found in the State's failure to prove venue at the trial. Venue, although not an element of the crime, is a jurisdictional fact that must be proved at the trial the same as any othermaterial fact in a criminalprosecution. Statev. Campbell, 160Mont. 111, 500 P.2d 801; Statev. Williams, 122Mont. 279, 202 P.2d 245. In determining the place where the crimehas been committed within constitutional venue requirements, the rule has been stated in this language in 22 C.J.S. Criminal Law § 176,p. 434: "Theconstitution contemplates actual and not constructive venue, it being essential that the crime itself, or some element thereof, shall actually have taken place in the countywhere venue is laid. 

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## * *" Or stated anotherway, the general rule in 22 C.J.S. Criminal Law B 174,p. 431provides: "Theplace where the crime is committed is determined by the acts of accused that violate the statute. 

## * * *" The Montana Criminal Law Commission, in its comments to section 95-402,dealing with venue where the defendant is charged with aiding and abetting the commissionof a criminal offense, had this to say: "This provision allows the trial to take place in themost convenientcounty where an element of the offense occurred. Itdoes notmatter if the final consummation of the offense occurred in another county. The only elements of the crimewhich are of interest are those acts constitutinq or requisite to the consummation of the offense

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## *. (Emphasis supplied.) Under statutes providing that where a crime is committed partly in one county and partly in another, the accused may be tried in either, the statute requires that some acts materialand essential to the crime and requisite to its consummation

occur in each county before the provisions of the statute become applicable. Statev. Smith, 57 Mont. 563, 190 P. 107. Turning to the facts of the present case, we first examine the proof involving the Smith claim. Defendant was charged with grand larceny in aiding and abetting McKeon, as bailee, in stealing Smith's settlementwarrant. No essential act requisite to consumation of the crime charged occurred in Hill County. The warrant was inAnaconda where all acts as to its alleged conversion took place. Larceny by bailee, which defendant is accused of aiding and abetting,presupposes lawful possession of the warrant by McKeon. Bernhardt v. United States, 169 F.2d 983,cert. den., 335 U.S. 903, 69 S.Ct. 407, 93 L ed 437. No proof was adduced at the trial of any unlawful act or criminal intent of the defendant in Hill County prior to conversionof the settlementwarrant in Anaconda. Acts preparatory to the commission of an offense but which are not essentials of the crime,provide no basis for 

### 3% venue. Statev. Hudson, 13 Mont. 112, 115, 23 P. 413. In Hudson

we said:"Suchacts asmailing the letter or buying the pistol, or a murderer traveling through Gallatin county to Silver Bow county,would be, in those particular cases,preliminary to the commission of the offense, and actswithout which, in the particular case, the offensewould not be committed, but they were not acts requisite to the consummation of the offense. If such acts were construed to be those requisite to the consummationof the offense, there are but few crimes the venue of which could not be construed to be in counties other than the actual countywhere the offense was committed." Here the State's own proof showed that all unlawful acts of defendant constituting elements of the crime charged occurred inAnaconda, Deer Lodge County. The proof of venue involving the ~helps'claimis equally lacking. Here defendant was charged with grand larceny by trick in aiding and abetting McKeon in stealing the State's money bysubmitting false documentswhereby a settlementof Phelps' claim

was effected without his knowledge or consent. The proof at the trial related to a 1968 injury suffered by Phelps. The State's proof indicated that Phelps knewnothing about this claim being pursued until after a radio editorial broke the story sometime after the alleged larceny had taken place. The State failed to prove that any element of the crime charged occurred 

### in Hill County. Under the authorities heretofore noted, this is fatal to the State's case as venue in Hill Countymust be proved as a jurisdictional fact. As the venue issue mandates reversal of defendant's conviction,we need not reach other substantial claims of error involving the admissibility of the alleged tape and denial of a speedy trial. The judgment of the district court is reversed and the conviction of defendant isvacated..

Justice We conc 

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,/~dn:Jack Shanstrom, District ' gudge, sitting in place of Mr. 

# JJustice John C.-Harrison.