### No. 80-25 IN THE SUPREME COURT OF THE STATE OF MONTANA 1980

THE STATE OF MONTANA, Plaintiff and Respondent,-vsMERRILL CAMPBELL, Defendant and Appellant.

Appeal from: District Court of the Eighteenth Judicial District, In and for the County of Gallatin,The Honorable Joesph Gary, Judge presiding.

Counsel of Record: For Appellant: Christopher G. Miller, Butte,Montana For Respondent: 

### Hon. Mike Greely,Attorney General, Helena, Montana Donald White, County Attorney, Bozeman,Montana

Submitted on Briefs: September 

### 17, 1980 Decided:

## JAN

# -7 1981

S 4CQ4 

## JA[q

# - f ~,,i, i 

### Filed:Mr. Justice Gene B. Daly delivered the Opinion of the Court. On July 26, 1979, an information was filed inthe ~ighteenth Judicial Districtof the State of Montana, County of Gallatin, charging defendant, Merrill Campbell, with theft, a felony, inviolation of sections 45-6-301 and 53-2- 107, MCA, and endangering the welfare of children, a 

### misdemeanor, inviolation of section 45-5-622, MCA. After several continuances, defendant filedmotions to dismiss the information for not stating a public offense and for lack of jurisdiction over the misdemeanor. Defendant alsorequested an electionbetween the two charges of felony. The motions were denied. Subsequently, on August 6, 1979, defendant entered pleas of not guilty toCounts I and I1 of the information. On September 7, 1979, after substitution of counsel, defendant made a motion toreconsider the previously presented consolidated motions. The DistrictCourt denied the motion on September 20, 1979. On October 11, 1979, thisCourt denied without prejudice defendant's request for

### writof supervisory control to dismiss the misdemeanor count for lack of jurisdiction in the DistrictCourt. Once again, defendant's motion for severance of the two counts was made and denied. This was followed by 

### a motion inlimine which, among other things, requested a ruling on the admissibility of prior applications of welfare assistance made by defendant inthe Stateof ~yoming and an order directing the State to refrain from calling Lilly Campbell, one of defendant's wives, asa witness attrial. On November 7, 1979, the DistrictCourt denied the motion in limine but ordered that the testimony of illyCampbell be limited to themisdemeanor charge, endangering thewelfare of children, and not include testimony on the felony charge of theft. Trialbegan on November 20, 1979, and concluded November 21, 1979. Defendant 

### was found guilty by the jury on Counts I and I1 of the information. On December 10, 1979, defendant was sentenced to ten years in the Montana StatePrison on Count I, the felony, and to sixmonths on Count 11, the misdemeanor. The sentences 

### were torun concurrently. Defendant filed 

### a notice of appeal on December 10, 1979. Inmid-May of 1979, defendant, along with his two wives, Lilly and Cheryl, and his fivechildren, arrived inthe Bozeman, Montana, area after a long period of itinerant traveling. Defendant and his family, traveling in their converted 1968 Cadillac camper, stopped atthe KOA campground atFour Corners, Gallatin County, Montana. Neither defendant nor hiswives 

### were employed. In an attempt to obtain food and money, defendant devised a plan. Defendant would go toButte to try to sell the Cadillac camper, and Lillywould go to the welfare office inBozeman, give falseinformation and obtainwelfare money. Defendant took hiswives and children to the Thrifty ScotMotel inBozeman. After paying for two nights of lodging and moving the family and belongings into a room, defendant went to Butte, leaving the family with approximately sixdollars, no housing provisions beyond the two nights' lodging, littleor no food, and no transportation. Two of the younger children were running high temperatures and had serious ear infections. Defendant knew of their illnessesbut did not consider them serious enough to

### warrantmedical attention. he next day Lilly Campbell went to the Bozeman 

### welfare office and made an application for emergency benefits under the name of Janet Brown. She 

### was given $227 worth of food stamps and was aided ingetting an apartment inBozeman, towhich she moved the family. On May 23, 1979, defendant returned to the family's apartment inBozeman. He spent only a few minutes there and returned toButte. One week 

### later, on May 30, 1979, defendant returned to the Bozeman apartment. Atthis 

### time, defendant's wife Cheryl had gone to the unemployment office to apply forwork. While there she was arrested and charged with forgery. Meanwhile, the Gallatin County authorities had determined thatLilly Campbell had given falseinformation to the welfare office and arrived atthe apartment to arresther. She was subsequently charged with welfare fraud and forgery. A search of the apartment revealed defendant hiding inthe closet, and he too 

### was arrested. The five children were placed infoster care. After lengthy investigation, defendant's part in the welfare fraud came tothe attentionof the Bozeman autho

### rities and charges were filed. Defendant was charged with theft, a felony (sections45-6-301 and 53-2-107, MCA), and endangering the welfare of children 

### a misdemeanor (section 45-5-622, MCA). After a trialby jury, defendant was found guilty 

### as charged and sentenced toconfinement inthe Montana StatePrison. The two charges inthe information indicate thaton May 23, 1979, defendant solicited LillyCampbell toknowingly obtain, by making false statements, welfare assistance in the amount of $227 from the Gallatin County Department of Social and Rehabilitation Services. Also, on May 23, 1979,defendant lefthis children and their mothers inBozeman, Montana, without proper food, shelter ormedical care. Defendant contends the DistrictCourt has no jurisdiction to tryhim for a misdemeanor, endangering the welfare of children. The State contends that the DistrictCourt has jurisdiction to try a felony and a misdemeanor together where the two areconnected together in their commission, pursuant to section 46-11-404(1), MCA, which provides: "An



# .. . information 

# .

# . . may charge two ormore different offenses connected together intheir commission 

# . . ." The firstof three issuesraised on appeal, therefore, 

### iswhether the DistrictCourt had jurisdiction to try defendant for the misdemeanor offense of endangering the welfare of children. Werecently held inStateex 

### rel. Rasmussen v. District Court (1980), Mont. 

## , 615 P.2d 231, 37 St-Rep. 1498, that section 46-11-404(1), MCA, 

### isnot a grant of jurisdiction but simply a permissive joinder statutefor offenseswithin the jurisdiction of a given court. Rasmussen stated that section 45-1-201 

### (1) 

## ,MCA, provides that a court1 s jurisdiction over criminal 

### matters depends upon the maximum sentence which may be imposed for committing the 

### crime. Under section 3-5-302(1), MCA, the District Court 

### is given original jurisdiction inallfelony criminal cases and "cases of misdemeanor not otherwise provided for." The Justice Court, on the other hand, isgiven criminal jurisdiction of allmisdemeanors punishable by a finenot exceeding $500 or imprisonment not exceeding sixmonths or both.The maximum sentencewhich may be imposed upon a person convicted of firstoffense endangering the welfare of chil-

### dren is a fine not exceeding $500 or imprisonmentnot exceeding six months, or both. Section 45-5-622(3), MCA. Jurisdiction in this matter, therefore, lies with the JUS

### tice Court. The second issue iswhether the jury was properly instructed on the issuespeculiar to the charge of soliciting or aiding and abetting in the commission of a crime. After reviewing the instructions given,we find that the jury was properly instructed and that appellant's contentions are withoutmerit. The final issue raised by appellant iswhether he was entitled to a jury instruction that no inference be drawn from the county attorney's reference to the husband/wife privilege. During the State's cross-examination of defendant, the county attorney asked him if he was aware of the husband/wife privilege inMontana. Defendant's attorney objected to the question, and the objection was sustained by the court. Cross-examination of defendant then continued. The record here contains no evidence that defendant requested the court to give an instruction that no inference be drawn from the county attorney's reference to the husband/wife privilege. In fact, this issue is raised for the first time on appeal. It is a well-settled rule that on appeal this Court will consider for review only those questions raised in the trial court. Spencer v. Robertson (1968),151Mont. 507, 445 P.2d 48; Clark v. Worrall (1965)r 146 Mont. 374, 406 P.2d 822; State Highway Cornm'n v. Milanovich (1963), 142 Mont. 410, 384 P.2d 752. Therefore,we decline to address defendant's final issue.

### Accordingly, the felony conviction is affirmed, and the misdemeanor conviction is reversed and dismissed.

Justice 

# L/d

We concur: 

# ~cR~&& Chief Justice

Mr. Justice Daniel J. Shea concurs and will file 

### a specially concurring opinion later.