No 13068 INTHE SUPREME COURT OF THE STATE OF MONTANA 1976

THE STATE OF MONTANA, Plaintiff and Respondent,
-vsJOHN AKTHUK YILL, Defendant and Appellant

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Appeal from: District Court of the Fourth JudicialDistrict, 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: 

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## 41976Mr. Justice Gene B. Daly delivered the Opinion of the Court.
This 

### is an appeal from the finaljudgment of conviction of one count a£ selling and one count of possession of marijuana and denial of a new trialby the district court, Missoula County. There 

### is littleorno fact dispute in thismatter. The relevant facts are that on February 

### 5, 1975, one Edward Smith,
an informant, contacted the sheriff's office inMissoula and advised that a drug transaction would be taking place athis home. The sheriff established surveillance at Smith's home. Alvin Kennedy, who was a principal in the crimewith defendant Hill, dealt with the informant who expressed a willingness topurchase $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 Hilland reported back to the Smith residence that thebalance of the drugs would be delivered in one-half hour and described the vehicle and a person named John. Atthis time Kennedy was placed under arrest. Atthe 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 toa table and deposited the knapsack. No words were exchanged and defendant was placed under arrest. Subsequent tohis arrestdefendant was given the "~iranda" warning and signed a statement to that effect. After defendant's initialappearancebefore the court and prior to conference with the public defender, he was interrogated by members of the sheriff's department. Defendant made a statement thatwas used against him attrial. A motion to suppresswas denied.Trialwas had before a jury and a verdict of guilty on both counts
was returned on May 5, 1975. Defendant appeals from the finaljudgment and denial of his motion fora new trial. Defendant presents five issues to this Court forreview: 

### 1. Whether the statement of defendant made subsequent toarrestwas improperly admitted intoevidence 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 sixtygrams were tested. 

### 3. Whether the statehad probable cause toarrest and search the defendant. 

### 4. Whether therewas insufficient evidence presented at the trialon which tobase a conviction of criminal saleof dangerous drugs. 5. Whether the trialcourt erred inrefusing togive defendant's proposed instructions on the definition of "offer". Issue 1. We arewell aware of the federal and state
cases citedby both parties which had to do with the voluntary nature of admissions orconfessions of this kind. The problem here becomes
one of fact. Was the admission prompted by hope that cooperation might achieve consideration by the prosecution orby 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 intherecord to support that determination. Issue 2. We findno merit inthe argument made in support of Issue 2. There isno 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 trialcourt abused itsdiscretion inrefusing defendant's proposed Instructions 3,4,5, and 6 on the court's own motion. These instructionswere definitions of 

### theword "offer" and did not cover the elements required in the crime of offering to sell, already given by the court in

### itsInstructions 9 and 10. In any event, therewere no objections to the giving of Instructions 9 or 10by the defendant or tothe 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 fairlytendered tothejury. Statev. Watson, 144Mont. 576, 398 P.2d 949. Defendant argues no offerwas made to sellthe drugs and therefore no probable cause existed toarrest the defendant. Probable
cause to arrestwithout a warrant existswhere the facts and circumstances within the officer's knowledge and of which he had reasonably trustworthyinformation are sufficient inthemselves towarrant a man of reasonable caution in the belief that an offense has been or 

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# . being committed. Statev. Armstrong, 149 Mont. 470, 428 P.2d 611. These factswere within the officer's knowledge atthe time of the arrest: a) Alvin Kennedy had arranged with informant Edward Smith to supply an illegal drug. b) That Kennedy said he was dealingwith another person in gettingthe 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 toa residence at2229 River Road while in the process of arranging delivery of the drugs.e) While at2229 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 darkbulky coat and dark pants and appeared tohave 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 theback. 

### g) That the above described vehicle did in fact arrive atthe appointed time. h) That the man departing that vehicle appeared tobe the same person who was contacted by Kennedy previously and who made the phone call. i) That when the informant called to this man tocome
over and to "bring the stuff1'theman took a knapsack and a brown sack from the truck and entered thehouse. 

### j) That when thisman entered the house the arresting officer saw what appeared tobe a scaleprotruding&bm the sack. There isno doubt these facts and circumstances clearly meet the requirements setout inArmstrong. In regard tothe lack of an offer tosellraised by defendant, the law inregard tothenecessary elements needed to sustain

II a conviction for offering to sell1'was correctly stated incourt's Instruction 9. That instruction describes the law as stated in People v. Mann, 27 I11.2d 135, 188N.E.2d 665, where the court held that the two elements necessary forconviction of this crime were (1) the specific intent tomake an offer to sella narcotic, and (2) a direct act done toward the making or expression of the offer toanother. In further explanation, that court held there must be shown a specific intent to sell. In addition to the circumstancesalredy set forth in relation toprobable cause, direct testimony by Kennedy establishes thatdefend an^ provided the one pound sample which Kennedy gave to Smith. His testimony also establishes that defendant agreed toprovide another fourteen pounds and they made arrangements astohow and when defendant would be paid. In addition, defendant himself admitted it was his intention to sellthe drugs pursuant tohis 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. 

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Justice.

We Concur:

i ./M. James Sorte, District sittingfor-ChiefJustice James T. Harrison.