No. 87-254 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsKATHRYN DIANNE TAYLOR, a/k/a NAOMI 

D. SCHIMETZ, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Nineteenth Judicial District, 

In and for the County of Lincoln, 

The Honorable Robert Holter, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

David W. Harman, Libby, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

John Paulson, Asst. Atty. General, Helena 

Susan Loehn, County Attorney, Libby, Montana 

Scott E. Spencer, Deputy County Attorney, Lihhy 

Submitted on Briefs: Aug. 27, 1987 

Decided: November 5, 1987 

Filed: 

illnrls - 1987 

@ *&G I 

Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Kathryn Dianne Taylor, sometimes known as Naomi D. 

Schimetz, now in her mid-40's is a social failure. That 

would be a verdict of society, or of any doctor, banker, 

lawyer or judge reviewing her case. She has been in and out 

of jailhouses, more or less constantly since 1973. Her 

crimes are not violent, involving the issuance of bad checks 

or forgeries. Though arrested in 1975 for DUI, there is no 

record here of drug or alcohol abuse, but she is addicted to 

tobacco. She is probably a liar, or at least has fantasies 

about her past. Though she claims to have worked as a nurse 

in Missoula, and as a waitress or at unskilled jobs, she has 

little or no work record. 

She was released from the Women's Correctional Center at 

Warm Springs, Montana, on November 22, 1985. She turned up 

in Libby, Montana, on May 29, 1986, when she was convicted of 

issuing bad checks, a theft cha-rge, which resulted in three 

months in jail. On November 18, 1986, again in Libby, she 

was convicted of issuing bad checks and given six months on 

each count with all but 30 days suspended. On February 3, 

1987, again in Libby, she was convicted of issuing bad checks 

and given 30 days in jail. For reasons unclear, her 

post-conviction report says she was denied "work fare." 

This case involves her activities beginning on March 5, 

1987. Between then and March 15, she purchased meals and 

other merchandise from Libby merchants by passing off savings 

withdrawal slips as checks which the merchants cashed. She 

negotiated 9 such slips, for an overall total of $139.20. 

Three such withdrawal slips, typical of all the rest follow: 
4'- WI THDR AWAL I must'~e ptesented by the uvings customel in person or by mail. 

DEDUCT ABOVE SUM FROM MY SAVINGS ACCOUNT 

ON DEPOSIT WITH: R3 

-- 

must be presented by_ the savtngs customer ~n perron or by matt. 

Date a 192' I 

- 93 - 285 

92 1 

' -/ 

ON DEPOSIT WITH 

- R4 

8 First National Bank in Libby C 

.OD LIBBY. MONTANA 50023 

t:oq 2 Lo 2s 5 ~lr5l~~5~3dY'g 

-. - 

must 

- 

be presented bysthe savtngs customer ~n person or by mall 

Date ]fi;?MMf4 7 1981 

- 03 - 285 

. , 92 1 

Dollars $ /5* @d fiId 1 

I 

9 7- r00 r- 77 

I 1 0 fit;&! / First National Bank in Libby sumRt , -, 

? 

\ 2 LIBBY. MONTANA 59-3 

I 273-.723 3 .-IS, 1:092L028SL1: , 0 70 1"OOOO@B l@G$Btlt 
Kathryn Dianne Taylor was arrested on March 22, 1987, 

and charged in the District Court, Nineteenth Judicial 

District, Lincoln County, with issuing bad checks by common 

scheme, a felony, under S 45-6-316, MCA. Her case was tried 

without a jury and the District Court made findings of fact 

and conclusions of law to the effect that the withdrawal 

slips so negotiated to merchants were "an order for the 

payment of money" making her guilty under the statute. She 

was sentenced to the maximum provided for such a common 

scheme felony--ten years in the Women's Correctional Center 

at Warm Springs. Her court-appointed counsel has appealed 

the conviction to this Court, contending that the withdrawal 

slips negotiated by her were not in any case a "check or 

order" and thus she was improperly convicted. 

Our statutes define the crime of theft as follows: 

45-6-301. Theft.. . . (2) a person commits the 

offense of theft when he purposely or knowingly 

obtains by threat or deception control over the 

property of the owner and: 

(a) has the purpose of depriving the owner of the 

property;. . . 

On the other hand, the crime of issuing a bad check is 

defined: 

45-6-316. Issuing a bad check. (1) A person 

commits the offense <f issuing a bad check when he 

issues or delivers a check or other order upon a 

real or fictitious depository for the payment of 

money knowing that it will not be paid by the 

depository. 

(3) A person convicted of issuing a bad check 

shall be fined not to exceed $500 or be imprisoned 

in the county jail not to exceed 6 months, or both. 

If the offender is engaged in issuing bad checks 

which are part of a common scheme . . . he shall be 
fined, not to exceed $50,000 or be imprisoned in 

the state prison not to exceed 10 years, or both. 

Without doubt, the actions of Kathryn Dianne Taylor in 

negotiating withdrawal slips as checks was a deception which 

constituted theft under $ 45-6-301, MCA. However, if the 

withdrawal slips as presented could qualify "as a check or 

other order" and the misdemeanors which Kathryn Dianne Taylor 

had committed were part of a common scheme, she could be 

convicted of a felony, notwithstanding the total amount 

involved in the 9 withdrawal slips is less than $300. The 

State chose the felony charge for obvious, though unstated 

reasons: a felony conviction would remove Kathryn Dianne 

Taylor from the streets of Libby (and its county jail) for a 

protracted period; the county would be spared the expense of 

her continuing incarceration; and her felony conviction would 

remove her continuing danger to merchants who could not 

discern between a withdrawal slip and a check. 

It should be noted, however, that the Libby bank which 

issued the withdrawal slip forms would honor as checks such 

forms as negotiated by Kathryn Dianne Taylor, had she had 

sufficient funds in the Libby bank. Nonetheless, on each of 

the three rejection forms in evidence authored by the bank in 

returning these purported checks, the bank noted on each "not 

a check. " 

The question for us to decide in this case, therefore, 

is whether the withdrawal slips negotiated by Kathryn Dianne 

Taylor, as checks constitute in each case, "a check or other 

order" within the purview of our statute defining the crime 

of issuing a bad check. If so, her conviction must be 

upheld; if not, a reversal is in order. 

How is this Court to construe statutes which define 

criminal offenses? We are told in S 45-1-104, MCA, that no 

conduct constitutes an offense unless it is described "as an 
offense in this code or in another statute in this state." 

We are further told that the general purposes of the 

provisions governing the definition of offenses are "to 

safeguard conduct that is without fault from condemnation as 

criminal, to give fair warning of the nature of the conduct 

declared to constitute an offense, and to differentiate 

unreasonable grounds between serious and minor offenses." 

Section 45-1-102, MCA. One charged with crime has a right 

"to demand the nature and cause of the accusation." Art. 11, 

S 24, 1972 Mont. Const. This Court has stated that a statute 

which carries a penalty, making its violation a crime, should 

be expressed with a degree of certainty such that what must 

be observed or done may be understood without relying on 

inferences. State v. Salina (1944), 116 Mont. 478, 154 P.2d 

484. We have said that no interpretation should be given any 

word which would make an act a crime unless it is clear the 

legislature intended that interpretation should be given the 

word. State v. Duran (1953), 127 Mont. 233, 259 P.2d 1051. 

Yet there could be no doubt that if the statute defining the 

offense of issuing a bad check is applicable here, the State 

cannot be faulted for pursuing a felony conviction instead of 

misdemeanor conviction. See State v. Evans (1969), 153 Mont. 

303, 456 P.2d 842. 

The District Court concluded that the documents tendered 

by Kathryn Dianne Taylor for savings withdrawal slips were 

written to make them appear to be checks. The documents were 

offered as checks and accepted as checks by the various 

businesses. The court concluded that the documents 

constituted an order for the payment of money. It further 

concluded that the documents had all the elements required by 

the bank to be paid provided the maker had a valid account 

with the bank. 
Our criminal statutes do not define either a "check" or 

an "order" but one or the other is a necessary element to a 

crime under S 45-6-316, MCA. In that circumstance, we may 

turn to the provisions of the Uniform Commercial Code for 

guidance. See Faulkner v. State (Alaska 1968), 445 P.2d 815. 

Under the definitions of instruments in the Uniform 

Commercial Code, withdrawal slips in this case are neither a 

"check" nor an "order" for the payment of money. To be a 

"check," the instrument must contain an unconditional promise 

or order to pay a sum certain in money, and it must be 

payable to order or to bearer. Section 30-3-104, MCA. An 

instrument which complies with the requirements of S 30-3-104 

is a check, if it is a draft drawn on a bank and payable on 

demand. It is a "draft" if it is an order, S 

30-3-104 (2) (a) (b) . An "order" is a direction to pay and must 

be more than an authorization or request. It must identify 

- the person - to pay with reasonable certainty. Section 

30-3-102 (b) , MCA. 

When we examine the withdrawal slips in this case, we do 

not find therein any promise or order to pay any person. In 

other words, it is not "payable to order or bearer." The 

names of the purported payees under these checks appear under 

the account number, a space that is obviously intended for 

the name in which the account is held. The writing itself is 

not an order to pay but an instruction to the bank to "deduct 

the above sum from my savings account." This language does 

not meet the requirement that an "order" must be a direction 

to pay. See People v. Norwood (1972), 26 Cal.App.3d 148, 103 

Cal.Rptr 7 (a savings account draft is not a "check"). 

The laws defining criminal offenses are not rubberbands 

to be stretched to cover any social purpose, however worthy. 

It would be an affront to our honor as jurists to construe 

these instruments for criminal purposes as anything but 
withdrawal slips, and to designate them as checks or orders 

for the payment of money. The findings of the District Court 

reveal the deception in which the defendant engaged to pass 

off these instruments: that others had accepted them, that 

she was using these slips until she got her checks, that she 

was in the process of moving and had been unable to transfer 

funds from her savings account to her checking account. She 

was obtaining the property of others through deception, a 

theft, under S 45-6-301, MCA. The prosecution should have 

occurred under the statute defining the offense of theft. 

Because withdrawal slips negotiated through deception 

are not checks or orders for the payment of money, the 

conviction in this case of Kathryn 

Justice 

We Concur: I