### No. 83-485 IN THE SUPREMECOURTOF THE STATEOF MONTANA 1984

STATEOFMONTANA, Plaintiffand Respondent,

-vsJAMESD. HOLMES

## , Defendantand Appellant.

APPEAL FROM: DistrictCourt of the Seventeenth Judicial District, Inand for the County ofValley, TheHonorableNat Allen,Judgepresiding.

COUNSELOF RECORD:

ForAppellant: MosesLaw Firm;Charles F. 

### Moses argued, Billings, Montana For Respondent: 

### Hon. Mike Greely,Attorney General, Helena,Montana JudyBrowning argued,Asst. Atty. General, Helena David 

### L. Nielsen,CountyAttorney,Glasgow,Montana

Submitted: April 13,1984 Decided: August 14, 1984

Filed: 

### 4~5 1 Lz 

# -384

--- 

### ClerkMr. Justice John Conway Harrison delivered the Opinion of theCourt.

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 tobe the caretaker of the base. Defendant came toGlasgow

asa manager with AVCO. AVCO did themaintenance 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 inNovember of 1976 was elected president and general manager of VIP. The County Commissioners of Valley County serveastheBoard of Directors of VIP. Several large underground fuel tanks are located on thebase. The tankswhich thisactionconcernswere located below building 669. The pumping stationfor those tankswas located insidebuilding 669. When theAir Force vacated the base in 1969an inventoryof the fueltanks

### 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 amixture 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 669had 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 anewportable 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 649byVIPmaintenance 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 thathe 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 forVIP 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, itwould 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 fuelwas sold to Boeing. The crew supervisor fromBoeing telephoned Lane when he received the bill fromAero Fuels and asked Lanewho Aero Fuelswas. Lane informed him itwas a group ofGlasgow 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 information 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 recordsby 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 fromMay 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 JudgeNat Allen? (2)Did the District Court err in denying appellant's motion to suppress?(3)

### Did theDistrict Court err indenying appellant's motion to dismiss on the grounds that there was a 

### fatal variance between the charges presented and the case proven attrial? (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 sustaina 

### theft conviction? (6)

### Did theDistrict Court err in its 

### refusal togive certainof appellant's proposed instructions? The first issue has already been disposed of 

### by our decision in State ex. rel. Wilcox and Bradley v. The DistrictCourt of theThirteenthJudicial District. (Mont. 1984),678 P.2d 209, 41 St.Rep. 397. JudgeAllenwas called in under the constitutional power recognized in Wilcox, supra. Thus he properly assumed fulljurisdiction over the case, including thepower toissuefinalorders. Appellant next contends the District 

### Court erred in denying his motion to suppress the fruits of the investigative subpoenas and order of seizureissued prior to the filingof the information in thiscase. 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 

### isthe electedDistrictJudge of the Fifteenth Judicial District, 

### was called in by Judge Leonard Langen who 

### is the elected District Judge for the SeventeenthJudicial District. 

### Appellant argues thatJudge Sorte did not have jurisdiction to issue 

### the subpoenas or order of seizure, since he sits 

### in the Fifteenth JudicialDistrict 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, anyjustice of the supremecourtor districtcourtjudge of thisstate 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,explicitor implicit, thatthe subpoena be issued by the sittingjudge of the districtwhere the crime allegedly occurred. Appellant has read the venue statutes into section 46-4-301, MCA, which basically provide that a criminal trialshallbe held in thecountywhere theoffense

was committed. See section46-3-101, 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, (Emphasissupplied). "Jurisdiction is the authoritytohear .and determine a cause. Venue is the place of trial."StantonTrust and Savings Bank v. Johnson (1937), 104 Mont. 235 at238, 65 P.2d 1188 at1189. 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 authorityto issue investigative subpoenas isgranted 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 thiscontention 

### is thatwhile the affidavit insupportof the information alleged thatVIP owned the fuelby virtue of

a deed from the U.S. Government, attrial they attempted to prove ownershipby 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 tobe properlyconvicted. Statev. Rindal (1965), 146 Mont. 64, 404 P.2d 327. This rule was developed to protect the defendant from being misled attrial and twice prosecuted for the same crime. Rindal, supra. Unless the variance between the allegations and proof prejudice a

### substantial right of thedefendant, thecharge should not be dismissed. Section46-11-403(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 thiswas 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 thiscase is 

### contained insection45-2-101, MCA: 

### "(46) 'owner' means a person other than theoffenderwho haspossession 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 controlover theproperty." Under thisdefinition, the Statewas 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

### clearlysufficienttoestablish that VIP had possession of the fuel and without VIP's consent, the appellant had no authority to exert control

over the fuel. Thatmeets the definitional requirements of section45-2-101 (

### 46)

## ,MCA. As 

### noted above, thepurpose of requiring theproof to correspond with the allegations is 

### toprotect thedefendant from being misled attrial 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 wasabandoned by the federal government, and rightfully found by him. This defense theorywas based on the actsof appellant himself and depended inno way upon themethod 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 VIPtoalleviate thisdanger. In sum, any variation between the proof and the information 

### isminor and does not require dismissal of the charges. No substantial right of appellant has been prejudiced. Appellant next contends thatthe fuelwas abandoned by theU.S. Government which appellantwas entitledtofindand sell for his own profit. In its best light, this interpretationof thefactsis specious. In itsworst light it could be termed blatantlymisleading. 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, theVIP employees found the fuel inVIP 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 tomove the fuelwas bought by VIP ata cost of over $600. VIP employees moved the fuel todifferent tanks. Appellant's assertion thatVIP 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 outby the uncontradicted factsof thecase. The next issueconcerns appellant's intent; two errors

are alleged here. First, appellant argues thattheDistrict Court erred by not instructing thejury that they must find



### a bad or evilintenton hispart toconvicthim. Second, he asserts that the factswillnot bear out such a finding. This Court has often held thatgiving instructionson 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 theevidencewould 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 sufficientevidence to support thisfinding. 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 trialcourt. The instructionsgiven as a whole, accurate1.y and fairly state the law, which is consistent with the requirements of this Court. State v. Anderson (1976), 171Mont. 188, 557 P.2d795. Appellant has failed to show how not giving these instructionsprejudiced him in anyway. The DistrictCourt properly refused them asrepetitious and ascomments on the evidence. A£

### firmed.

We concur: 

# 34d&ca/!&' Chief Justice

Justices