No. 83-485 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsJAMES D. HOLMES , 

Defendant and Appellant. 

APPEAL FROM: District Court of the Seventeenth Judicial District, 

In and for the County of Valley, 

The Honorable Nat Allen, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Moses Law Firm; Charles F. Moses argued, Billings, 

Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

Judy Browning argued, Asst. Atty. General, Helena 

David L. Nielsen, County Attorney, Glasgow, Montana 

Submitted: April 13, 1984 

Decided: August 14, 1984 

Filed: 4~5 1 Lz - 384 

--- 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

This case involves the theft of almost $200,000 worth 

of jet fuel from the old Glasgow Air Force Rase, now the 

Valley Industrial Park. Appellant was convicted of the 

theft, sentenced to ten years with five suspended and 

ordered to pay $160,000 in restitution. This appeal 

follows. 

The Glasgow Air Force Base is located approximately 

seventeen miles north of Glasgow, Montana. In 1969, the 

U.S. Air Force closed the base and let bids for general 

maintenance work to be done on the base. AVCO Corporation 

was the sucessful bidder and contracted with the Air Force 

to be the caretaker of the base. Defendant came to Glasgow 

as a manager with AVCO. AVCO did the maintenance work until 

1972 when it lost its contract to Tumpane Corporation. 

Defendant then incorporated Montana Manufacturing, which 

operated on the base also, for several years. In 1976, 

Valley County purchased the base and incorporated Valley 

Industrial Park (VIP). Appellant helped negotiate this 

purchase and in November of 1976 was elected president and 

general manager of VIP. The County Commissioners of Valley 

County serve as the Board of Directors of VIP. 

Several large underground fuel tanks are located on 

the base. The tanks which this action concerns were located 

below building 669. The pumping station for those tanks was 

located inside building 669. When the Air Force vacated the 

base in 1969 an inventory of the fuel tanks was done and the 

six tanks under building 669 were labeled "pickled." 

Pickling is a process by which the fuel tanks are emptied, 
cleaned and filled with a mixture of caustic soda and water 

to prevent rusting. However in the spring of 1979, a VIP 

maintenance man discovered that four of the six tanks under 

building 669 had fuel in them. It is conceded that the fuel 

had been there since 1969, had been left there by the Air 

Force and existed to the ignorance of all concerned. 

Appellant ordered that samples of the fuel be 

extracted from the tanks. VIP maintenance employees 

extracted samples from the four tanks and gave the samples 

to appellant. Appellant and another VIP employee took the 

samples to Wolf Point to be tested, and it was found that 

the fuel was usable JP-4 jet fuel. Appellant then ordered 

the fuel to be transferred to the tanks under building 649. 

The tanks and pump station under building 649 had been 

depickled earlier in the year and were being used to store 

fuel for Boeing. Boeing was using the base as a refueling 

stop for their training flights. Since the pumps in 

building 669 had been stripped of most of their parts, 

appellant ordered a new portable pump for this purpose which 

was purchased at VIP's expense. In early 1980, the 

approximately 200,000 gallons of fuel were pumped from 

building 669 to building 649 by VIP maintenance employees. 

At approximately the same time, appellant informed the 

board of directors of VIP about the existence of the fuel. 

He told them Boeing was interested in purchasing the fuel 

but also said it would be very difficult to obtain insurance 

for the fuel. It is standard practice in the aircraft 

industry to obtain liability insurance in case bad fuel is 

sold and personal injuries or property damage result. The 

chairman of the board testified that he still told appellant 
to market the fuel for VIP. The board pursued the 

possibility of obtaining insurance to sell the fuel, but 

when appellant was told insurance could be purchased for VIP 

he told the board that Boeing was no longer interested in 

buying the fuel. Later in 1980 appellant informed the board 

that he had sold the fuel and credited VIP's accounts with 

approximately $100,000, but because of the liability 

problem, it would not appear in their books. 

Prior to this, while the pumping was being done, 

appellant tried to start his own fueling corporation. He 

first approached three maintenance employees of VIP and 

asked if they would be interested in forming a corporation 

to sell the discovered fuel. The employees testified that 

appellant told them the fuel belonged to VIP. They were 

also told to bank out of town and not make any purchases 

which would draw attention to themselves. The three men 

testified they declined the offer because they were uneasy 

about ownership of the fuel. Holmes then approached Leonard 

Lane, comptroller for VIP, who agreed to incorporate with 

Holmes to sell the fuel. The two incorporated Aero Fuels, 

Inc. 

Appellant informed Boeing that he and some Glasgow 

businessmen had bought 200,000 gallons of JP-4 fuel on 

speculation and were willing to sell it. The fuel was sold 

to Boeing. The crew supervisor from Boeing telephoned Lane 

when he received the bill from Aero Fuels and asked Lane who 

Aero Fuels was. Lane informed him it was a group of Glasgow 

businessmen who had purchased the fuel. In all Boeing paid 

Aero Fuels over $194,000 for the fuel. The money was 

deposited in Aero Fuels' accounts in Billings, Great Falls 
and Williston, North Dakota. 

Appellant was charged by information on November 5, 

1982 with the theft of the JP-4 fuel having a value of 

$194,098.88. The information stated that Valley County 

through VIP was the owner of the fuel, and the affidavit 

supporting the informat ion stated ownership had been gained 

by virtue of a deed from the General Services 

Administration. Appellant pled not guilty and a trial date 

was set. 

Prior to the trial, appellant moved to suppress 

evidence which was obtained by the prosecution prior to the 

information being filed. The prosecution had obtained 

appellant's bank records by means of investigative subpoenas 

and an order of seizure issued by Judge M. James Sorte. The 

motion to suppress was made on the basis that Judge Sorte 

did not have jurisdiction to issue the subpoenas because he 

presided over the District Court of the Fifteenth Judicial 

District and the crimes occurred in the Seventeenth Judicial 

District. The motion to suppress was denied. 

A jury trial was held from May 16 to May 20, 1983, and 

appellant was found guilty. The court sentenced him to ten 

years with five suspended, and ordered that he make 

restitution in the amount of $160,000. This appeal follows. 

Appellant raises the following six issues for our 

consideration: 

(1) Did the District Court lack jurisdiction to hear 

the case and issue final orders as the presiding judge was 

retired Judge Nat Allen? 

(2) Did the District Court err in denying appellant's 

motion to suppress? 
(3) Did the District Court err in denying appellant's 

motion to dismiss on the grounds that there was a fatal 

variance between the charges presented and the case proven 

at trial? 

(4) Did the evidence establish that the fuel was 

abandoned and that appellant, as finder, took possession? 

(5) Did the State prove the necessary intent to 

sustain a theft conviction? 

(6) Did the District Court err in its refusal to give 

certain of appellant's proposed instructions? 

The first issue has already been disposed of by our 

decision in State ex. rel. Wilcox and Bradley v. The 

District Court of the Thirteenth Judicial District. (Mont. 

1984), 678 P.2d 209, 41 St.Rep. 397. Judge Allen was called 

in under the constitutional power recognized in Wilcox, 

supra. Thus he properly assumed full jurisdiction over the 

case, including the power to issue final orders. 

Appellant next contends the District Court erred in 

denying his motion to suppress the fruits of the 

investigative subpoenas and order of seizure issued prior to 

the filing of the information in this case. The order and 

subpoenas were issued by Judge James Sorte, who was 

presiding over appellant's trial on a previous criminal 

charge in the District Court of the Seventeenth Judicial 

District. Judge Sorte, who is the elected District Judge of 

the Fifteenth Judicial District, was called in by Judge 

Leonard Langen who is the elected District Judge for the 

Seventeenth Judicial District. Appellant argues that Judge 

Sorte did not have jurisdiction to issue the subpoenas or 

order of seizure, since he sits in the Fifteenth Judicial 
District and the crime occurred in the Seventeenth Judicial 

District. 

Appellant's contention is not well taken. Section 

45-4-301, MCA, states: 

"Whenever the attorney general or county 

attorney has a duty to investigate 

alleged unlawful activity, any justice of 

the supreme court or district court judge 

of this state mav cause sub~oenas to be 

issued commandi& the perions to whom 

they are directed to appear before the 

attorney general or the county attorney 

and give testimony and produce such 

books, records, papers, documents, and 

other objects as may be necessary and 

proper to the investigation." (Emphasis 

supplied . ) 

The plain language of this statute vests every 

district court judge with the power to issue investigative 

subpoenas with no jurisdictional limitation. There simply 

is no requirement, explicit or implicit, that the subpoena be 

issued by the sitting judge of the district where the crime 

allegedly occurred. Appellant has read the venue statutes 

into section 46-4-301, MCA, which basically provide that a 

criminal trial shall be held in the county where the offense 

was committed. See section 46-3-101, MCA et. seq. He thus 

concludes that if the subpoena was issued by anyone other 

than the district court judge sitting in the county where 

the offense allegedly occurred, it was issued by a judge 

without jurisdiction. However there is a considerable 

difference between venue and jurisdiction. "The 

jurisdiction of the judges of the district courts of the 

State of Montana. . . [is] coextensive with the boundaries 

of the State of Montana. . ." Section 3-5-312, MCA, 

(Emphasis supplied). "Jurisdiction is the authority to hear 

.and determine a cause. Venue is the place of trial." 
Stanton Trust and Savings Bank v. Johnson (1937), 104 Mont. 

235 at 238, 65 P.2d 1188 at 1189. Jurisdictional authority 

is granted by law. State ex rel. Johnson v. District Court 

(1966), 147 Mont. 263, 410 P.2d 933. There is no venue 

problem here because the subpoenas were issued before the 

information was even filed. The jurisdictional power or 

authority to issue investigative subpoenas is granted by law 

through section 46-4-301, MCA. Since the jurisdiction of 

each district court is coextensive with the boundaries of 

the state, so is the power of each district court to issue 

investigative subpoenas coextensive with the boundaries of 

the state. 

Appellant next contends that there was a fatal 

variance between the information and the State's proof at 

trial, which requires the charges be dismissed. The basis 

of this contention is that while the affidavit in support of 

the information alleged that VIP owned the fuel by virtue of 

a deed from the U.S. Government, at trial they attempted to 

prove ownership by possession. 

Generally, the information charging a party with a 

csime must state, "[Tlhe facts constituting the offense in 

ordinary and concise language and in such a manner as to 

enable a person of common understanding to know what is 

intended." Section 46-1-4Ol(l)(c)(iii). The allegations 

contained therein and the proof must correspond for the 

defendant to be properly convicted. State v. Rindal (1965), 

146 Mont. 64, 404 P.2d 327. This rule was developed to 

protect the defendant from being misled at trial and twice 

prosecuted for the same crime. Rindal, supra. Unless the 

variance between the allegations and proof prejudice a 
substantial right of the defendant, the charge should not be 

dismissed. Section 46-11-403(3), MCA. 

Appellant claims he was prejudiced by the State's 

reliance on proof of ownership by possession rather than 

proof of ownership by title as alleged in the affidavit 

supporting the information. He argues this was a shift in 

theory which did not allow him to adequately defend the 

charge. This argument is not persuasive. Ownership by 

title is not required under the criminal statutes of 

Montana. The definition of owner which is applicable in 

this case is contained in section 45-2-101, MCA: 

"(46) 'owner' means a person other than 

the offender who has possession of or any 

other interest in the property involved, 

even though such interest or possession 

is unlawful, and without whose consent 

the offender has no authority to exert 

control over the property." 

Under this definition, the State was required only to 

prove that VIP had possession of the fuel. As discussed 

above, the fuel was found in VIP-owned tanks, and VIP 

exercised control over it through its employees, including 

the appellant. The proof is clearly sufficient to establish 

that VIP had possession of the fuel and without VIP's 

consent, the appellant had no authority to exert control 

over the fuel. That meets the definitional requirements of 

section 45-2-101 ( 46 ) , MCA. 

As noted above, the purpose of requiring the proof to 

correspond with the allegations is to protect the defendant 

from being misled at trial and from being prosecuted twice 

for the same offense. Rindal, supra. Any change made by 

the State here did not prejudice appellant's defense or 

mislead him. At trial, appellant contended the fuel was 
abandoned by the federal government, and rightfully found by 

him. This defense theory was based on the acts of appellant 

himself and depended in no way upon the method VIP obtained 

ownership of the fuel. The focus was on abandonment of the 

fuel or how it was disposed of, rather than on how VIP 

obtained it. Likewise, the possibility of a subsequent 

prosecution for theft of the same fuel is not present here. 

Ownership of the fuel has been sufficiently established in 

VIP to alleviate this danger. In sum, any variation between 

the proof and the information is minor and does not require 

dismissal of the charges. No substantial right of appellant 

has been prejudiced. 

Appellant next contends that the fuel was abandoned by 

the U.S. Government which appellant was entitled to find and 

sell for his own profit. In its best light, this 

interpretation of the facts is specious. In its worst light 

it could be termed blatantly misleading. Appellant contends 

that the U.S. Government abandoned the fuel because it had 

no intention of going back for it. However, abandonment 

nust be of a known right. Hilyard v. Engel (1949), 123 

Mont. 20, 209 P.2d 895. Appellant's own witnesses establish 

that the Air Force did not know the fuel existed, so it was 

not a known right they relinquished. Also, even if the fuel 

was abandoned, the VIP employees found the fuel in VIP owned 

tanks and exercised control over it, not appellant himself. 

The VIP maintenance men found the fuel. They withdrew 

samples, and appellant along with a co-worker took the fuel 

to be tested at a cost of almost $800 to VIP. The pump 

which was purchased to move the fuel was bought by VIP at a 

cost of over $600. VIP employees moved the fuel to 
different tanks. Appellant's assertion that VIP may have a 

civil action against him for the cost of these services 

misses the point. The point is that VIP through its 

employees, including appellant acting as a VIP employee, 

took control over the fuel. Appellant's abandonment theory 

is not borne out by the uncontradicted facts of the case. 

The next issue concerns appellant's intent; two errors 

are alleged here. First, appellant argues that the District 

Court erred by not instructing the jury that they must find 

a bad or evil intent on his part to convict him. Second, he 

asserts that the facts will not bear out such a finding. 

This Court has often held that giving instructions on 

intent using the statutory definitions of "knowledge" and 

"purpose" eliminates the need for further intent 

instructions. State v. Mlein (1976), 169 Mont. 350, 547 

P.2d 75, and State v. Jackson (1979), 180 Mont. 195, 589 

P.2d 1009. Here the District Court did exactly that, and 

correctly refused appellant's offered instructions on evil 

intent. Whether the evidence would have been sufficient to 

find an evil intent or not is inconsequential. The jury was 

properly instructed and resolved this question of fact 

against appellant. There is clearly sufficient evidence to 

support this finding. 

Finally, appellant points to twenty one proposed jury 

instructions he contends were improperly refused. We have 

reviewed the proposed instructions submitted by appellant 

and compared them with those given by the trial court. The 

instructions given as a whole, accurate1.y and fairly state 

the law, which is consistent with the requirements of this 

Court. State v. Anderson (1976), 171 Mont. 188, 557 P.2d 
795. Appellant has failed to show how not giving these 

instructions prejudiced him in any way. The District Court 

properly refused them as repetitious and as comments on the 

evidence. 

A£ f irmed. 

We concur: 

34d&ca/!&' 

Chief Justice 

Justices