No. 13877 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1978 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsFRANK DAVIS and DUANE CLOSE, 

Defendants and Appellants. 

Appeal from: District Court of the Third Judicial Dist?ict, 

Honorable Arnold Olsen, Judge presiding. 

Counsel of Record: 

For Appellants: 

Bryon W. Boggs argued, Anaconda, Montana 

For Respondent: 

Hon Mike Greely, Attorney General, Helena, Montana 

Denny Moreen, Assistant Attorney General, argued, 

Helena, Montana 

James J. Masar, County Attorney, Deer Lodge, Montana 

Submitted: March 9, 1978 

Decided: APR - 3 1978 

'A;:. - - Sq?$ Filed: I- . . 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

Defendants were charged by information filed January 

31, 1977 with the crimes of attempted escape and criminal 

mischief, both felonies. Following a jury trial in District 

Court, Powell County, defendants were convicted of both 

offenses. They were subsequently found to be persistent felony 

offenders and sentenced to ten years imprisonment at Montana 

State Prison for attempted escape and five years imprisonment 

for criminal mischief, the sentences to be served consecutively. 

Defendants appeal the judgment and sentence. 

The instant charges resulted from an attempted act of 

escape on the part of defendants, while incarcerated in the 

Powell County jail. Defendants were observed digging a hole 

in the wall of the jail facility. 

The arraignment of defendants was conducted before Hon. 

John B. McClernan. Counsel for defendants orally moved for an 

order requiring the State to elect between the two charges on 

the ground they were multiplicious, in that they were based 

upon the doing of one act. Judge McClernan thereupon ruled on 

the motion as follows: 

"The objection is overruled, but, the Court will 

reserve the right to these Defendant (sic) to 

compel the County Attorney to make an election 

before these men go to trial." 

Defendants entered pleas of "not guilty" to both charges. 

Hon. Arnold Olsen later assumed jurisdiction of the 

cause. The matter was tried before a jury on March 8, 1977. 

As of the time of trial, the State had not elected between the 

two charges. Prior to the commencement of trial, counsel for 

defendants again moved that the State be required to elect between the charges. The motion was denied, and the trial ensued, 

resulting in the conviction of both defendants on both felony 

charges. 

-2- 
The following issues are presented for review: 

(1) Did Judge Olsen overrule a prior order of Judge 

McClernan requiring the State to elect between the charges and, 

if so, was it error to so overrule the order? 

(2) Did the District Court err in permitting the trial 

and conviction of defendants on both charges in violation of 

the constitutional guaranty against double jeopardy? 

(3) Did the District Court err in denying defendants' 

motion to dismiss the felony criminal mischief charge on the 

ground the State failed to establish a prima facie case that 

the amount of damage exceeded $150? 

Defendants first argue that Judge McClernan initially 

granted the motion to force an election between the charges, 

this becoming the "law of the case". It is maintained that 

when Judge Olsen subsequently assumed jurisdiction and denied the 

renewed motion to force an election, he thereby overruled the 

"law of the case", and in so doing, abused his discretion as 

district judge. We find no foundation in the record for such a 

contention. 

Rather, it is manifest that Judge McClernan, in ruling 

on defendants' motion to force an election at the time of the 

arraignment, denied said motion with the reservation of the 

right to renew it prior to trial. By statute, a district judge 

is empowered with the discretion to force the State to elect 

between duplicitous charges. Section 95-1504(2), R.C.M. 1947. 

However, Judge McClernan did not order such an election in this 

case, but merely reserved the right to defendants to renew the 

r~~otion prior to trial. Ne find no abrogation of the doctrine 

of "law of the case" in the subsequent denial of the renewed 

motion by Judge Olsen. 

Defendants' second argument relates directly to the 
substance of the election issue. In this regard, defendants 

contend the State charged and obtained convictions for two 

separate offenses based upon proof of the same act. As such, 

the Convictions on both charges placed defendants in double 

jeopardy for the same offense in violation of the 1972 Montana 

Constitution, Art. 11, Section 25. We conclude the constitutional 

guaranty against double jeopardy is not relevant to the facts 

of this case. 

This Court has consistently quoted with approval the 

following holding from the Massachusetts case of Morey v. Cornmonwealth, (1871), 108 Mass. 433, 434: 

" * * * A single act may be an offense against 

two statutes; and if each statute requires proof 

of an additional fact which the other does not, 

an acquittal or conviction under either statute 

does not exempt the defendant from prosecution 

and punishment under the other." 

State v. Marchindo, (1923), 65 Mont. 431, 446, 211 P. 1093; State 

v. Lagerquist, (1968), 152 Mont. 21, 30, 445 P.2d 910; State v. 

McDonald, (1971), 158 Mont. 307, 310, 491 P.2d 711. See also 

Blockburger v. United States, (1932), 254 U.S. 299, 52 S.Ct. 

180, 76 L.Ed. 306; Gore v. United States, (19581, 357 U.S. 386, 

78 S. Ct. 1280, 2 L ed 2d 1405. 

It is plain that the statutes defining the offenses with 

which defendants were charged have, in the ordinary situation, 

no common elements. The statutes clearly set forth separate 

and distinct criminal offenses, and are designed for the protection of completely different interests. 

Criminal mischief is classified by the Montana Criminal 

Code of 1973, sections 94-1-101 et seq., R.C.M. 1947, as an 

offense against property. Section 94-6-102, R.C.M. 1947 provides 

in relevant part: 

"(1) A person commits the offense of criminal 

mischief if he knowingly or purposely: 

"(a) injures, damages or destroys any property of 
another or public property without consent * * *". 

Escape, in contrast, is an offense against public administration. 

Under section 94-7-306, R.C.M. 1947, the offense of escape is 

committed when: 

"(2) A person subject to official detention * * * 

knowingly or purposely removes himself from 

official detention * * *." 

Here, proof of the digging of the hole in the Powell County jail 

establishes the requisite act in each offense. However, the 

prosecution was obviously required to establish differing facts 

in proving two distinct mental states or intents, and two separate criminal results. 

We hold, therefore, the District Court did not err in 

permitting defendants to be charged and convicted of both offenses. 

Defendants also contend, however, the District Court 

erred in denying their motion to dismiss the felony criminal 

mischief charge following the State's casein-chief, on the ground 

the State failed to establish a prima facie case that the amount 

of property damage exceeded $150. We agree. 

The State's proof of the value of the damage to the wall 

of the Powell County jail consisted of the admission of two bills 

totaling $169. On cross-examination, a State's witness, Powell 

County Sheriff Callings, admitted the bills not only covered 

the cost of repairing the hole dug in the jail wall by defendants, but additional repairs to the wall around the door lock 

and a plate adjoining a window in the jail visitor's room as 

well. The witness testified that only a "very light" amount 

of the $169 was attributable to the repair of the other holes. 

No further proof was adduced tending to establish defendants 

had caused the other holes. 

The function of proof of the value of destroyed or injured 

property under the Montana Criminal Mischief Statute, section 
94-6-102, R.C.M. 1947, is essentially similar to that of the 

analogous Illinois statute defining the offense of criminal 

damage to property, 1 Ill.Rev,Stat.'65, Ch. 38, Section 21-1. 

In both statutes, proof of value is not an element of the 

offense. Rather, proof of value is to be considered by the 

trial judge in the exercise of his sentencing discretion. See 

(19751, 

People v. Tidwe11,/33 Ill.App.3d 232, 338 N.E.2d 113; People 

v. Vesley, (1967), 86 Ill.App.2d 283, 229 N.E.2d 886. Thus, 

whether a defendant is sentenced for the offense of criminal 

mischief as a felon or a misdemeanant, is directly contingent 

upon whether the value of the damage or destruction is shown to 

be greater or less than $150, respectively. 

In the instant case, however, defendants were charged 

with felony criminal mischief. It was thus incumbent upon the 

State to establish that the amount of damages caused by defendants exceeded $150. Section 94-6-102(2), R.C.M. 1947. This 

the State failed to do. The record reveals that the State 

proved the total damage to the jail was valued at $169. However, there was no direct proof that the cost of the repair of 

the hole caused by defendants exceeded $150. We conclude defendants' motion to dismiss the felony criminal mischief charge at 

the close of the State's case should have been granted, for failure of proof of an amount of damage consistent with the felony 

charge. 

The State had the opportunity to offer to the jury an 

instruction on the lesser included offense of misdemeanor criminal mischief. It nevertheless elected not to do so. Thus, we 

cannot permit defendants' conviction on the charge of felony 

criminal mischief to stand. 

The conviction and sentence for the offense of attempted 

escape are affirmed. The conviction of the offense of criminal 
mischief is reversed and the charge therefor dismissed. The 

sentence entered pursuant to the conviction for criminal mischief 

is hereby vacated. 

Affirmed in part, reversed in part. 

We concur: 

................................. 

chief /Justice 

- - 

Judge, suing in the vacant 

seat on the Court.