No. 13107 

IN THE 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 id ed : G'IL 2. , !j i 6 

Filed : I- , y/j: 
Hon. L.C. Gulbrandson, District Judge, sitting in place of 

Mr. Chief Justice James T, Harrison, delivered the Opinion 

of the Court. 

Defendant Evelyn Farnes appeals from a judgment 

of conviction for the crime of theft, tried in the 

District Court of the Thirteenth Judicial District, in 

and for the County of Yellowstone. 

On February 8, 1975, one Bill Stumpf arrived 

at the Public Auction Market in Billings, Montana, with 

a number of other people, in a cream-colored Oldsmobile, 

towing a horse trailer. An unbranded sorrel mare was 

unloaded from the trailer, and was delivered by Stumpf 

to an employee of the Market at approximately 12:30 a.m., 

telling the employee to run the horse through "loose" 

at the sale that day. Horses which are run through "loose" 

are normally sold as canning horses, whereas horses which 

are ridden through the sales ring are normally sold as 

pleasure or working horses. Stumpf did not claim any 

ownership of the animal, but consigned the mare in the 

name of one Ray Tanner. 

After the sale, at about 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 to the 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 to make payment to her 

friend Reichert. The employee receiving the bill of 

sale from the defendant testified over objection that 

approximately 30 minutes earlier he had received a phone 

call from a person inquiring what he needed for the 
horse, 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 the mare on February 8, 1975, because he 

knew the mare was on her way to a 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 at the 

sale he saw the defendant, in the company of Bill Stumpf, 

Buzz Feeley, and Karla Reichert, 

The local inspector/detective testified that on 

February 10, 197 5, he commenced an investigation 

regarding the sale of the horse, learning that Karla 

Reichert was the daughter of the defendant and the girl 

friend of Bill Stumpf. He further testified that he was 

unable to locate anyone by the name of Ray Tanner or 

Earl West, the persons named on the bill of sale 

delivered by the defendant. 

On approximately February 25, 1975, Dr. Thomas 

Morledge reported a sorrel mare as missing from his 

winter pasture, and from photographs he had taken and 

the photograph taken on February 8 at the Auction 

Market, the horse was identified as the one delivered 

by Bill Sturnpf. 

The defendant testified as follows: that on 

February 7, 1975, at approximately 11:30 p.m. she and 

"Buzz" Feeley were drinking in a Billings bar when a 

man asked Feeley to help him haul a horse to the 

Auction Market. Feeley agreed, and the defendant drove 

her vehicle, acc0mpanied.b~ Feeley and Billy Stumpf, to 
the 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 the man in the 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 

in the 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 will need 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 

to the Market. 

She further testified that she never saw the 

stranger again, that she did not call the Auction 

Market or have a call placed for her, but only delivered. 

the bill of sale on the afternoon of February 8 to the 

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 the back of the 

bill of sale so she could hold the check until the 

stranger paid them $15.00 which she claimed he had 

promised in exchange for hauling the horse to market. 

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 to pick up the check at the Market. 
Billy Stumpfls testimony 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 the bill of sale. 

The appeal presents the following issues: 

1. Was the evidence sufficient to support 

the conviction? 

2. Did the district court err in refusing 

to give 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 the offense of theft 

when he purposely or knowingly obtains or 

exerts unauthorized control over property 

of the owner, and: 

(a) has the purpose of depriving the owner 

of the property; or 

(b) purposely or knowingly uses, conceals, 

or abandons the property in such manner as 

to deprive the owner of the property; or 

(c) uses, conceals, or abandons the property 

knowing such use, concealment or abandonment 

probably will deprive the owner of the 

property. " 

The term "knowingly" is defined in section 

"A person acts knowingly 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 in pertinent part: 
"A person acts purposely with respect to 

a result or to conduct described 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 State v. Cooper, 158 Mont. 102, 

489 P.2d 99 (1971) the element of intent may be, and 

generally is, demonstrated by circumstantial evidence. 

Citing State v. Madden, 128 Mont. 408, 276 P,2d 974 (1954) 

the Court stated: 

"The element of felonious intent in every 

contested criminal case must 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 therefore must usually 

be inferred from the facts testified to by 

witnesses and the circumstances as developed 

by the evidence * * * 

"The question of intent is a question for 

the jury." 

The rules that govern the weight and sufficiency 

of circumstantial evidence are set out in the leading 

Montana case of State v. Cor, 144 Mont. 323, 396 P.2d 

86 (1964) at page 326: 

"Circumstantial evidence is not always 

inferior in quality nor is it necessarily 

relegated to a 'second class 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 is material, relevant and' 

competent will be admitted, 'nothing more 

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 

to prove the main fact of guilt or any evidentiary fact 

looking thereto is a matter peculiarly within the 

province of the jury. More specifically, this court has 

stated that: 

"The jury being the sole judge of the weight 

to be given to the testimony, the court 

should not tell them what particular weight 

to give to any portion of the testimony." 

State v. Gleim, 17 Mont. 17, 29, 41 P. 998 

(1895). 

The rule is that if substantial evidence is 

found to support the verdict, then it will stand. 

State v. White, 146 Mont. 226, 229, 405 P.2d 761 (1965). 

The court in State v. Stoddard, 147 Mont, 402, 408, 

412 P.2d 827 (1966), stated: 

First we should note that this court is not 

a trier of fact * * * In view of the 

presumption of innocence at the trial, the 

jury must have been instructed to that 

effect, but on appeal after conviction the 

rule changes. Then, if the record shows 

any substantial evidence to support the 

judgment, the presumption is in favor of 

such judgment." p. 408. 

In State v. Medicine Bull, Jr., 152 Mont. 34, 

445 P.2d 916 (1968), the court held that the jury is 

free to consider all the evidence presented and to pick 

and choose which of the witnesses they wish to believe. 

That if sufficient testimony was introduced to justify 

the jury's finding, then their conclusion would not be 

disturbed unless there was a clear misunderstanding by 

the jury or a misrepresentation made to the jury. 

The appellant is guilty of the crime of theft 
.in this 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 the weakest interpretation of the 

facts presented by the state, there is substantial 

evidence from which the jury 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 allegation of error would 

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 instruction number 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 is upon 

proof such as to logically compel the 

conviction that the charge is true." 

Defendant's proposed instruction number 8 

reads as follows: 

"You are instructed that proof of illegal 

asportation is necessary to prove the 

crime of theft. By illegal asportation 

is meant the illegal taking of the animal. 

Therefore if you find that there is no proof 

beyond a reasonable doubt, that the defendant 

knowingly participated in the illegal 

asportation of the animal or proof beyond a 

reasonable doubt that she knew the animal 

had been stolen when she presented the bill 

of sale to the stockyards, she is entitled 

to an acquittal." 

It is an established principle of law in Montana 

that when examining jury instructions on appeal to 
'determine if prejudice has occurred by erroneous admission 

or erroneous exclusion of a jury instruction, all 

instructions must be read as a whole. State v. Bosch, 

125 Mont. 566, 242 P.2d 477. Where jury instructions 

as a whole correctly state the law prejudice is not 

created because of a refusal of a proposed instruction. 

State v. Lukus, 149 Mont. 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 subject matter was 

covered in given instructions. 

Objection to defendant's proposed instruction 

number 8 was made on the grounds that it was 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's proposed instructions number 7 and number 8. 

The appellant further interjected the issue of 

the admissibility of the telephone call made 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 

.sale could 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