### No. 13107 INTHE 

### SUPKEME COURT OF 

### THE STATE OF MONTANA 

### 1976

THE 

### STATE OF 

### MONTANA, Plaintiff and 

### Respondent,

-vs

## - EVELYN FARNES

## , Defendant and Appellant.

Appeal from: District Court of the Thirteenth Judicial District, Honorable C. B. 

### Sande, Judge presiding. Counsel of Record: For Appellant: John 

### Id. Adams, Billings, Montana For Respondent: Hon. Robert L. Woodahl, Attorney General, Helena,

Montana Harold 

### F. Hanser, :Billings, Montana Submitted without oral argument

Submitted: October 

### 22, 1976

. , Dee

### ided

### :

## G'IL2. ,!j i

## 6 Filed: I- , 

## y/j:Hon. L.C. Gulbrandson, District Judge, sitting inplace of Mr. Chief Justice James T, Harrison, delivered the Opinion of the Court. Defendant Evelyn Farnes appeals from 

### a judgment of conviction for the 

### crimeof theft, tried in the DistrictCourt of the Thirteenth Judicial District, in and for the County of Yellowstone. On February 8, 1975, one BillStumpf arrived atthe Public Auction Market inBillings, Montana, with

a number of other people, in a cream-colored Oldsmobile, towing a horse trailer. An unbranded sorrelmare 

### was unloaded from the trailer, and was delivered by Stumpf to an employee of theMarket atapproximately 12:30 a.m., telling the employee torun the horse through "loose" atthe sale that day. Horses which arerun through "loose"

are normally sold ascanning horses, whereas horses which

are ridden through the sales ring arenormally sold as pleasure or working horses. Stumpf did not claimany ownership of the animal, but consigned themare inthe

name of one Ray Tanner. After the sale, atabout 5:15 p.m., February 8, 1975, a purported bill of sale to the animal signed by

one Earl West to Ray Tanner was delivered tothe Auction Market by the defendant Evelyn Farnes. The employee receiving the bill of sale testified that the defendant introduced herself as Ray Tanner's wife, and when told that payment would be delayed until the following Monday waote the name of Karla Reichert on the back of the bill of sale and told the employee tomake payment to her friend Reichert. The employee receiving the billof sale from the defendant testified over objection that approximately 30 minutes earlier he had received a phone call from 

### a person inquiringwhat he needed 

### for thehorse, and the employee answered that a bill of sale would be required, and the caller responded that a bill of 

### sale would be delivered for the horse. The local brand inspector testified that he photographed themare on February 8, 1975, because he knew themare 

### was on her way toa dog food factory in South Dakota and that prior to the sale he put a stop

on the check for the sale of the horse, and that atthe salehe sawthe defendant, inthe company of BillStumpf, Buzz Feeley, and Karla Reichert, The local inspector/detective testified that on February 10, 1975, he commenced an investigation regarding the saleof the horse, learning that Karla Reichert 

### was the daughter of the defendant and the girl friend of BillStumpf. He further testified that he 

### was unable tolocate anyone by the name of Ray Tanner or EarlWest, thepersons named on the bill of sale delivered by the defendant. On approximately February 25, 1975, Dr. Thomas Morledge reported a sorrelmare asmissing from his winter pasture, and from photographs he had taken and the photograph taken on February 8 attheAuction Market, the horse 

### was identified as the one delivered by BillSturnpf. The defendant testified as follows: that on February 7, 1975, atapproximately 11:30 p.m. she and "Buzz" Feeley 

### were drinking in a Billings bar when a

man asked Feeley tohelp him haul a horse tothe Auction Market. Feeley agreed, and the defendant drove her vehicle, acc0mpanied.b~ Feeley and Billy Stumpf, tothe North Yard where they picked up Feeley's horse trailer. They then followed a dark pickup truck to

a pasture near Alkali Creek where both vehicles stopped and theman inthe pickup got out, crawled through a fence, and walked up to a horse, putting a halter on the horse, then leading it through a gate, and put it inthe horse trailer. She further testified that while "Buzz" and Billy Stumpf 

### were outside of her car, the stranger came by the driver's window of the car and handed her the bill of sale, saying, "You 

### willneed this to sell the horse." The defendant then drove her vehicle, pulling the loaded horse trailer, back to the auction yards where Billy Stumpf unloaded the horse and took it in tothe Market. She further testified that she never saw the stranger again, that she did not call the Auction Market or have a callplaced for her, but only delivered. the bill of sale on the afternoon of February 8 tothe Market because she assumed that they would need it, that she did not introduce herself as Ray Tanner's wife, that she wrote her daughter's name on theback of the bill of sale so she could hold the check until the stranger paid them $15.00 which she claimed he had promised inexchange for hauling the horse tomarket. Karla Reichert, the defendant's daughter, testified she knew nothing about the transaction or the bill of sale, and that her mother had never asked her topick up the check attheMarket.

### Billy Stumpflstestimony was corroborative of the defendant's except he stated that he 

### was not out of the car at

### Alkali Creek, while Mrs. 

### Farnes stated that he 

### was when the stranger handed her thebillof sale. The appeal presents the following issues: 1. Was 

### the evidence sufficient to support the conviction? 2. Did the districtcourt errinrefusing togive defendant's offered instructions number 7 

### and 8? Mrs. 

### Farnes 

### was charged and convicted of the offense of theft as defined in section 94-6-302(1) which reads as follows: "(1) A 

### person commits theoffense of theft when he purposely orknowingly obtains or exerts unauthorized control over property of the owner, and: (a)has thepurpose of depriving the owner of the property; or (b) purposely orknowingly uses, conceals, or abandons theproperty in suchmanner as todeprive the owner of the property; or (c)uses, conceals, or abandons the property knowing such use, concealment or abandonment probably 

### willdeprive the owner of the property.

## " The 

### term "knowingly" 

### isdefined in section

"A 

### person actsknowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is 

### aware of his conduct or that the circumstance exists. When knowledge of the existence of a particular fact is

### an

- - - . - - - 

### element of an offense, such knowledqe is 

### established if a 

### Derson is aware 

### of a L ~ ~ 

### high probability of its 

### existence. Equivalent terms 

### such as 'knowinq' or 'with knowledge

## ' have the same meaning.

## " (Emphasis supplied) "Purposely" is

### defined in section 94-2-101 (53) which reads inpertinent part:

### "A

### person acts purposely with respect to a result or to conductdescribed by a statute defining an offense if it is his conscious object to engage in the conduct or to cause that result. 

## * * 

## *" The testimony presented at trial constituted direct evidence of every element of the crime of theft except intent. As in Statev. Cooper, 158 Mont. 102, 489 P.2d 99 (1971) the element of intentmay be, and generally is, demonstrated by circumstantialevidence. Citing Statev. Madden, 128Mont. 408, 276 P,2d 974 (1954) the Court stated: "Theelement of felonious intent in every contested criminal casemust necessarily be determined from facts and circumstances of the particular case--this for the reason that criminal intent,being a state of mind, is rarely susceptible of direct or positive proof and thereforemust usually be inferred from the facts testified to by witnesses and the circumstances as developed by the evidence

## * 

## * * "Thequestion of intent is a question for the jury." The rules that govern theweight and sufficiency of circumstantial evidence are set out in the leading Montana case of Statev. Cor, 144Mont. 323, 396 P.2d 86 (1964)at page 326: "Circumstantial evidence is not always inferior in quality nor is it necessarily relegated to a 'secondclass status' in the consideration to be given to it. The very fact that it is circumstantial is not a sufficient allegation to justify a reversal of the judgment for such evidence may be, and frequently is,most convincing and satisfactory. In any criminal case. evidence that ismaterial, relevant and' competent will be admitted, 'nothingmore and nothing less'. The test is whether the facts and circumstances are of such a quality and quantity as to legally justify a 

### jury in determining guilt beyond a reasonable doubt. If such be the case, then the court should not, indeed cannot,

### set aside the solemn findings of the 

### trier of facts." (Emphasis supplied) It 

### is a well-established principle of law that in a criminal prosecution, the sufficiency of evidence toprove themain fact of guiltor any evidentiary fact looking thereto isa matter peculiarly within the province of thejury. More specifically, this court has stated that: "The jury being the solejudge of theweight tobe given tothe testimony, the court should not tell them what particular weight togive to any portion of the testimony." Statev. Gleim, 17 Mont. 17, 29, 41P. 998 (1895). The rule isthat if substantial evidence is found to support the verdict, then it 

### will stand. Statev. White, 146 Mont. 226, 229, 405 P.2d 761 (1965). The court inStatev. Stoddard, 147 Mont, 402, 408, 412 P.2d 827 (1966), stated: First

### we should note that this court isnot a 

### trier of fact

## * * 

## * Inview of the presumption of innocence atthe trial, the jury must have been instructed tothat effect, but on appeal after conviction the rulechanges. Then, if the record shows any substantial evidence to support the judgment, the presumption is in favor of suchjudgment." p. 408. In Statev. Medicine Bull, 

### Jr., 152 Mont. 34, 445 P.2d 916 (1968), the court held that thejury is free to consider allthe evidence presented and topick and choose which of the witnesses they wish tobelieve. That if sufficient testimony was introduced tojustify thejury's finding, then their conclusion would not be disturbed unless therewas a clear misunderstanding by the jury or a misrepresentation made to the jury. The appellant is guilty of the

### crime of theft

### .inthis case if she was 

### aware that the horse was stolen

or if she was 

### aware of a high probability that the horse 

### - was stolen. Under theweakest interpretationof the facts presented by the state, there is 

### substantial evidence from which thejury could find that the defendant 

### was 

### aware of a high probability that the horse was stolen. We 

### find that the evidence is 

### sufficient to support the conviction. Defendant's second allegationof errorwould be grounds for reversal of the conviction if the exclusion of defendant's proposed instructions 7 

### and 8



### was erroneous and defendant was prejudiced by such exclusion. Defendant's proposed instructionnumber 7 

### reads as 

### follows: "You 

### are instructed that a defendant may not be convicted on conjectures, however shrewd, on suspicions, however justified, on probabilities, however strong, but only upon evidence which establishes guilt beyond reasonable doubt; that 

### isupon proof such asto logically compel the conviction that the charge istrue." Defendant's proposed instruction number 8 

### reads as 

### follows: "You 

### are instructed thatproof of illegal asportation is

### necessary toprove the crime of theft. By illegalasportation 

### ismeant the illegal taking of the animal. Therefore if you find that there is no proof beyond a reasonable doubt, thatthedefendant knowingly participated inthe illegal asportationof the animal or proof beyond a 

### reasonable doubt that she knew the animal had been stolenwhen she presented thebill of saletothe stockyards, she is

### entitled toan acquittal." It is 

### an established principle of law inMontana that when examiningjury instructionson appeal to

### 'determineif prejudice has occurred by erroneous admission

or erroneous exclusion of a jury instruction,all instructionsmust be read as a whole. Statev. Bosch, 125 Mont. 566, 242 P.2d 477. Where jury instructions

as a whole correctly state the lawprejudice is not created because of a refusal of a proposed instruction. State v. Lukus, 149Mont. 45, 423 

### P.2d 49. Here the jury was instructed as to each of the elements of the crime of theft, as to circumstantial evidence, and as to the standard of proof necessary to convict.Defendant's proposed instruction number 

### 7 is often given but here the same subjectmatter was covered in given instructions. Objection to defendant's proposed instruction number 8 

### was made on the grounds that itwas an incomplete statement of law. Here proof of asportation

was not essential to conviction and the jury was instructed as to the element of "control"necessary to convict.Upon examining all instructions given we find that the jury was properly instructed and defendant

was not prejudiced through the court's failure to give defendant'sproposed instructions number 7 and number 8. 

### The appellant further interjected the issue of the admissibility of the telephone callmade to the Market approximately one-half hour before the defendant arrived with the bill of sale. The caller was told that a bill of sale would be required before the proceeds of the .salecould be paid. Evidence of the contents of the

### call did constitute hearsay, but was admissible as an exception to the rule, the call being made as an integral part of an overall criminal transaction. ~taee 

### v. McCracken, 93 Mont. 269, 18 P.2d 302 (1933). The judgment of conviction i



### - District

We concur:

Justices 

# J