No. 13314 

IN THE 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 1 ? 4'9-7 - -- Ab! 

Filed - 3 1 72;- 
Mr. Justice Frank I. Haswell delivered the Opinion of the Court. 

Defendant Frank Preite was convicted of the crimes of 

grand larceny and grand larceny by 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 defendant was originally charged in 

the district court of Deer Lodge County with four crimes arising 

out of workmen's compensation settlements handled 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 larceny by bailee in connection with the settlement proceeds 

of the William Madden claim; 

(3) Aiding and abetting John L. McKeon in the crime of 

grand larceny by trick involving the settlement proceeds of the 

Harold Phelps claim and; 

(4) Forgery of a workmen's compensation settlement draft. 

On September 9, 1974 defendant filed motions to dismiss 

the information on the ground of insufficiency of the prosecutor's 

affidavit to show probable cause for filing the information. 

On October 4, 1974 the Deer Lodge County information was 

dismissed on motion by the State. On the same day a second 

information was 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 100 motions in connection with the Hill County charges 
hich were extensively briefed and argued by both parties. The 

Hill County district court granted 22 of the defendant's motions, 

denied 75, and 4 were withdrawn. The net result was dismissal 

of five counts in the Hill County information. 

On February 28, 1975 a third information was filed. 

This information charged 15 crimes. Defendant responded with 

a battery of 82 motions 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. The district court of Hill County 

entered an order changing the venue of 5 of the 8 counts to other 

district courts outside 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 larceny by 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 larceny by 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 district 
court of Hill County commencing October 6, 1975. The jury 

found defendant guilty of all 3 charges. On motion of defendant, the guilty verdict on the charge involving the William 

Madden claim was set aside on the ground of insufficiency of 

evidence to support conviction of that charge. Judgment of 

conviction was entered on the jury verdict covering the remaining two charges, viz (1) grand larceny involving the settlement 

proceeds of the Howard E. Smith claim, and (2) grand larceny 

by trick involving the settlement proceeds of the Harold Phelps 

claim. Defendant appeals from the judgment of conviction of 

these two crimes. 

Defendant's specifications of error include 9 assertions 

of error directed at his conviction of grand larceny involving 

the Smith claim; 15 asserted errors directed at his conviction 

of grand larceny by trick involving the Phelps claim; and 20 

asserted errors going to the case as a whole. The principal 

specifications of error are directed at the district court's 

denial of a change of venue, admission in evidence of an alleged 

taped "confession", denial of severance of the charges, denial 

of a speedy trial, sufficiency of the evidence to support the 

convictions, and errors in instructing the jury. 

We first direct our attention to the venue issue. The 

applicable constitutional provisions state: 

"In all criminal prosecutions the accused shall 

enjoy the right to a speedy and public trial, 

by an impartial jury of the state and district 

wherein the crime shall have been committed * * *." 

(Emphasis supplied.) Sixth Amendment, United States 

Constitution. 

"In all criminal prosecutions the accused shall 

have the right to * * * a speedy public trial by 

an impartial jury of the county or district in 

which the offense is alleged to have been 

committed * * *." (Emphasis supplied.) Art. 11, 

Section 24, 1972 constitution of- Montana. 

Montana statutes implementing these constitutional venue 

requirements provide: 
"In all criminal prosecutions the trial shall be 

in the county where the offense was committed 

unless otherwise provided by law. * * *" Section 

95-401, R.C.M. 1947. 

"Where two (2) or more 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: 

"Where a person in one county commits, aids, abets, 

or procures the commission of an offense in another 

county the offender may be tried in either county." 

Section 95-404, R.C.M. 1947. 

"Where a person obtains property 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 * * * information against any accessory to any 

felony may be found in any county where the offense 

of such accessory may have been committed * * *." 

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 crime was 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 discloses 
no 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 other material fact in a 

criminal prosecution. State v. Campbell, 160 Mont. 111, 500 

P.2d 801; State v. Williams, 122 Mont. 279, 202 P.2d 245. 

In determining the place where the crime has been committed within constitutional venue requirements, the rule has 

been stated in this language in 22 C.J.S. Criminal Law § 176, p. 

434 : 

"The constitution contemplates actual and not 

constructive venue, it being essential that the 

crime itself, or some element thereof, shall 

actually have taken place in the county where 

venue is laid. * * *" 

Or stated another way, the general rule in 22 C.J.S. Criminal Law 

B 174, p. 431 provides: 

"The place 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 commission of a criminal offense, 

had this to say: 

"This provision allows the trial to take place in 

the most convenient county where an element of the 

offense occurred. It does not matter if the final 

consummation of the offense occurred in another 

county. The only elements of the crime which are 

of interest are those acts constitutinq or requisite 

to the consummation of the offense * * *. (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 material 
and essential to the crime and requisite to its consummation 

occur in each county before the provisions of the statute become applicable. State v. 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 settlement warrant. No essential act requisite 

to consumation of the crime charged occurred in Hill County. 

The warrant was in Anaconda 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 conversion of the settlement warrant 

in Anaconda. Acts preparatory to the commission of an offense 

but which are not essentials of the crime, provide no basis for 

3% 

venue. State v. Hudson, 13 Mont. 112, 115, 23 P. 413. In Hudson 

we said: 

"Such acts as mailing 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 acts without which, in the 

particular case, the offense would 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 consummation of the 

offense, there are but few crimes the venue of 

which could not be construed to be in counties 

other than the actual county where the offense 

was committed." 

Here the State's own proof showed that all unlawful acts of 

defendant constituting elements of the crime charged occurred 

in Anaconda, Deer Lodge County. 

The proof of venue involving the ~helps'claim is equally 

lacking. Here defendant was charged with grand larceny by trick 

in aiding and abetting McKeon in stealing the State's money by 
submitting false documents whereby a settlement of 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 knew nothing 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 County must 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 is vacated.. 

Justice 

We conc H 

,/~dn: Jack Shanstrom, District 

' gudge, sitting in place of Mr. 

J Justice John C.-Harrison.