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 in the 

~ighteenth Judicial District of the State of Montana, County 

of Gallatin, charging defendant, Merrill Campbell, with 

theft, a felony, in violation of sections 45-6-301 and 53-2- 

107, MCA, and endangering the welfare of children, a misdemeanor, in violation of section 45-5-622, MCA. 

After several continuances, defendant filed motions to 

dismiss the information for not stating a public offense and 

for lack of jurisdiction over the misdemeanor. Defendant 

also requested an election between the two charges of felony. 

The motions were denied. Subsequently, on August 6, 1979, 

defendant entered pleas of not guilty to Counts I and I1 of 

the information. 

On September 7, 1979, after substitution of counsel, 

defendant made a motion to reconsider the previously presented consolidated motions. The District Court denied the 

motion on September 20, 1979. 

On October 11, 1979, this Court denied without prejudice defendant's request for writ of supervisory control to 

dismiss the misdemeanor count for lack of jurisdiction in 

the District Court. 

Once again, defendant's motion for severance of the two 

counts was made and denied. This was followed by a motion 

in limine which, among other things, requested a ruling on 

the admissibility of prior applications of welfare assistance made by defendant in the State of ~yoming and an order 

directing the State to refrain from calling Lilly Campbell, 

one of defendant's wives, as a witness at trial. 

On November 7, 1979, the District Court denied the 

motion in limine but ordered that the testimony of illy 
Campbell be limited to the misdemeanor charge, endangering 

the welfare of children, and not include testimony on the 

felony charge of theft. Trial began 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 State Prison on Count I, the felony, 

and to six months on Count 11, the misdemeanor. The sentences were to run concurrently. Defendant filed a notice of 

appeal on December 10, 1979. 

In mid-May of 1979, defendant, along with his two wives, 

Lilly and Cheryl, and his five children, arrived in the 

Bozeman, Montana, area after a long period of itinerant 

traveling. Defendant and his family, traveling in their 

converted 1968 Cadillac camper, stopped at the KOA campground 

at Four Corners, Gallatin County, Montana. 

Neither defendant nor his wives were employed. In an 

attempt to obtain food and money, defendant devised a plan. 

Defendant would go to Butte to try to sell the Cadillac 

camper, and Lilly would go to the welfare office in Bozeman, 

give false information and obtain welfare money. 

Defendant took his wives and children to the Thrifty 

Scot Motel in Bozeman. 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 six dollars, no housing provisions beyond the two 

nights' lodging, little or no food, and no transportation. 

Two of the younger children were running high temperatures 

and had serious ear infections. Defendant knew of their 

illnesses but did not consider them serious enough to warrant medical 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 in getting an apartment in Bozeman, to which she moved the family. 

On May 23, 1979, defendant returned to the family's 

apartment in Bozeman. He spent only a few minutes there and 

returned to Butte. One week later, on May 30, 1979, defendant returned to the Bozeman apartment. At this time, 

defendant's wife Cheryl had gone to the unemployment office 

to apply for work. While there she was arrested and charged 

with forgery. Meanwhile, the Gallatin County authorities 

had determined that Lilly Campbell had given false information to the welfare office and arrived at the apartment to 

arrest her. She was subsequently charged with welfare fraud 

and forgery. A search of the apartment revealed defendant 

hiding in the closet, and he too was arrested. The five 

children were placed in foster care. 

After lengthy investigation, defendant's part in the 

welfare fraud came to the attention of the Bozeman authorities and charges were filed. Defendant was charged with 

theft, a felony (sections 45-6-301 and 53-2-107, MCA), and 

endangering the welfare of children a misdemeanor (section 

45-5-622, MCA). After a trial by jury, defendant was found 

guilty as charged and sentenced to confinement in the Montana State Prison. 

The two charges in the information indicate that on May 

23, 1979, defendant solicited Lilly Campbell to knowingly 

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 left his children and their mothers in Bozeman, 

Montana, without proper food, shelter or medical care. 

Defendant contends the District Court has no jurisdiction to try him for a misdemeanor, endangering the welfare 

of children. The State contends that the District Court has 

jurisdiction to try a felony and a misdemeanor together 

where the two are connected together in their commission, 

pursuant to section 46-11-404(1), MCA, which provides: "An 

. . . information . . . may charge two or more different 

offenses connected together in their commission . . ." 

The first of three issues raised on appeal, therefore, 

is whether the District Court had jurisdiction to try defendant for the misdemeanor offense of endangering the welfare 

of children. 

We recently held in State ex rel. Rasmussen v. District 

Court (1980), Mont. , 615 P.2d 231, 37 St-Rep. 

1498, that section 46-11-404(1), MCA, is not a grant of 

jurisdiction but simply a permissive joinder statute for 

offenses within 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 in all felony criminal cases and 

"cases of misdemeanor not otherwise provided for." The 

Justice Court, on the other hand, is given criminal jurisdiction of all misdemeanors punishable by a fine not exceeding $500 or imprisonment not exceeding six months or 

both. 

The maximum sentence which may be imposed upon a person 

convicted of first offense endangering the welfare of chil- 
dren is a fine not exceeding $500 or imprisonment not exceeding six months, or both. Section 45-5-622(3), MCA. 

Jurisdiction in this matter, therefore, lies with the JUStice Court. 

The second issue is whether the jury was properly 

instructed on the issues peculiar 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 without merit. 

The final issue raised by appellant is whether 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 in Montana. 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), 151 Mont. 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. 

L 

Justice 

/d 

We concur: 

~cR~&& 

Chief Justice 

Mr. Justice Daniel J. Shea concurs and will file a specially 

concurring opinion later.