No 13068 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1976 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsJOHN AKTHUK YILL, 

Defendant and Appellant . 

Appeal from: District Court of the Fourth Judicial District, 

Honorable E Gardner Brownlee, Judge presiding. 

Counsel of Record: 

For Appellant: 

Smith, Connor & Van Valkenburg, Missoula, Montana 

Fred R Van Valkenburg argued, Missoula, Montana 

For Respondent: 

Edward McLean, Deputy County Attorney argued, 

Missoula, Montana 

Jock 0. Anderson, Assistant Attorney General argued, 

Helena, Montana 

Submitted: April 20, 1976 

Decided: MA! 2 4 1976 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

This is an appeal from the final judgment of conviction 

of one count a£ selling and one count of possession of marijuana and 

denial of a new trial by the district court, Missoula County. 

There is little or no fact dispute in this matter. 

The relevant facts are that on February 5, 1975, one Edward Smith, 

an informant, contacted the sheriff's office in Missoula and advised 

that a drug transaction would be taking place at his home. The 

sheriff established surveillance at Smith's home. 

Alvin Kennedy, who was a principal in the crime with 

defendant Hill, dealt with the informant who expressed a willingness 

to purchase $2,000 work of drugs. Kennedy drove to ill's home, 

obtained a one pound sample of marijuana and produced the same at 

smith's home. On direction of a surveillance officer, Smith agreed 

to purchase fourteen additional pounds of marijuana. Thereafter, 

Kennedy made arrangements with defendant Hill and reported back 

to the Smith residence that the balance of the drugs would be delivered in one-half hour and described the vehicle and a person 

named John. At this time Kennedy was placed under arrest. 

At the appointed time the described vehicle appeared 

and defendant got out in front of the residence next door to smith's. 

Smith called out "bring the stuff over here" and defendant grabbed 

a knapsack and set of scales wrapped in a brown bag from his vehicle, 

and entered smith's house. He went to a table and deposited the 

knapsack. No words were exchanged and defendant was placed under 

arrest. Subsequent to his arrest defendant was given the "~iranda" 

warning and signed a statement to that effect. 

After defendant's initial appearance before the court 

and prior to conference with the public defender, he was interrogated 

by members of the sheriff's department. Defendant made a statement 

that was used against him at trial. A motion to suppress was denied. 
Trial was had before a jury and a verdict of guilty on both counts 

was returned on May 5, 1975. Defendant appeals from the final judgment and denial of his motion for a new trial. 

Defendant presents five issues to this Court for review: 

1. Whether the statement of defendant made subsequent 

to arrest was improperly admitted into evidence over defendant's 

objections and motion to suppress. 

2. Whether defendant was improperly convicted of felony 

possession of marijuana in light of the state's evidence that less 

than sixty grams were tested. 

3. Whether the state had probable cause to arrest and 

search the defendant. 

4. Whether there was insufficient evidence presented at 

the trial on which to base a conviction of criminal sale of dangerous 

drugs. 

5. Whether the trial court erred in refusing to give 

defendant's proposed instructions on the definition of "offer". 

Issue 1. We are well aware of the federal and state 

cases cited by both parties which had to do with the voluntary nature 

of admissions or confessions of this kind. The problem here becomes 

one of fact. Was the admission prompted by hope that cooperation 

might achieve consideration by the prosecution or by a promise that 

cooperation would achieve the same consideration? The district court 

made the fact determination and denied the motion to suppress. This 

Court finds sufficient, credible evidence in the record to support that 

determination. 

Issue 2. We find no merit in the argument made in 

support of Issue 2. There is no expert testimony in the record to 

support the theory that a random sample from each of the fifteen 

one pound packages was insufficient to support the conclusion that 

there was in fact fifteen pounds of marijuana and therefore the required amount, in excess of 60 grams, to support a felony charge. 
Issues 3, 4, and 5, can be determined by an examination 

of Issue 5. 

Defendant maintains the trial court abused its discretion 

in refusing defendant's proposed Instructions 3,4,5, and 6 on the 

court's own motion. These instructions were definitions of the word 

"offer" and did not cover the elements required in the crime of 

offering to sell, already given by the court in its Instructions 9 

and 10. In any event, there were no objections to the giving of 

Instructions 9 or 10 by the defendant or to the refusal of defendant's 

proposed Instructions 3,4,5 and 6 placed in the record. Reading the 

instructions as a whole we find the jury was properly instructed and the 

case fairly tendered to the jury. State v. Watson, 144 Mont. 576, 398 

P.2d 949. 

Defendant argues no offer was made to sell the drugs and 

therefore no probable cause existed to arrest the defendant. Probable 

cause to arrest without a warrant exists where the facts and circumstances within the officer's knowledge and of which he had reasonably 

trustworthy information are sufficient in themselves to warrant a man 

of reasonable caution in the belief that an offense has been or is . being committed. State v. Armstrong, 149 Mont. 470, 428 P.2d 611. 

These facts were within the officer's knowledge at the time of the 

arrest : 

a) Alvin Kennedy had arranged with informant Edward 

Smith to supply an illegal drug. 

b) That Kennedy said he was dealing with another person 

in getting the drugs. 

c) That Kennedy had in fact already supplied Smith 

with one pound of marijuana and was arranging for the delivery of 

the other fourteen pounds. 

d) That Kennedy had driven to a residence at 2229 River 

Road while in the process of arranging delivery of the drugs. 
e) While at 2229 River Road, Kennedy made contact with 

a second person and together they drove to a phone booth where this 

second person was seen wearing a dark bulky coat and dark pants and 

appeared to have a beard. 

f) That Kennedy stated the drugs would be delivered in 

one-half hour and would be transported by an older model dark pickup 

with a homemade camper on the back. 

g) That the above described vehicle did in fact arrive 

at the appointed time. 

h) That the man departing that vehicle appeared to be 

the same person who was contacted by Kennedy previously and who made 

the phone call. 

i) That when the informant called to this man to come 

over and to "bring the stuff1' the man took a knapsack and a brown 

sack from the truck and entered the house. 

j) That when this man entered the house the arresting 

officer saw what appeared to be a scale protruding&bm the sack. 

There is no doubt these facts and circumstances clearly 

meet the requirements set out in Armstrong. 

In regard to the lack of an offer to sell raised by defendant, the law in regard to the necessary elements needed to sustain 

I I a conviction for offering to sell1' was correctly stated in court's 

Instruction 9. That instruction describes the law as stated in 

People v. Mann, 27 I11.2d 135, 188 N.E.2d 665, where the court held 

that the two elements necessary for conviction of this crime were (1) 

the specific intent to make an offer to sell a narcotic, and (2) a 

direct act done toward the making or expression of the offer to another. 

In further explanation, that court held there must be shown a specific 

intent to sell. 

In addition to the circumstancesalredy set forth in 

relation to probable cause, direct testimony by Kennedy establishes that 
defend an^ provided the one pound sample which Kennedy gave to Smith. 

His testimony also establishes that defendant agreed to provide 

another fourteen pounds and they made arrangements as to how and 

when defendant would be paid. In addition, defendant himself admitted 

it was his intention to sell the drugs pursuant to his arrangement with 

Kennedy. This admission was admitted into evidence. 

The record reveals sufficient credible evidence to support 

the verdict of the jury. 

The judgment of the district court is affirmed. 

,+&flf~:../-- Justice. 

We Concur: 

i ./M. James Sorte, District 

sitting for-Chief Justice 

James T. Harrison.