### No. 12986 INTHE SUPREME COURT OF 

### THE STATE OF MONTANA 1975

STATE OF MONTANA, Plaintiff and Respondent,

-vs

# - CARL J

### IMISON

## , Defendant and Appellant.
Appeal from: District Court of the Seventh Judicial District, Honorable 

### L. C. 

### Gulbrandson, Judge presiding Counsel of Record: ForAppellant

### : Gene Huntley argued, Baker, Montana For Respondent: Hon. Robert L. 

### Woodahl, Attorney General, Helena,

Montana Thomas A. 

### Budewitz, AssistantAttorney General,

argued, Helena, Montana Richard A. 

### Simonton, County Attorney, argued,

Glendive, Montana

Submitted: June 12, 1975 Decided :

## $F/3



## . , 

### 1

8.. a r\F-

### L, Filed:Nr. Justice Gene B. Daly delivered the Opinion of the Court.
Defendant Carl Jimison appeals from a judgment of the district court, Dawson County, aftera jury verdict convicting him of two counts of theft and imposing a three year sentence of imprisonment in theMontana stateprison. The controlling factshere arenot disputed. Defendant
came intopossession of some items of pe~cnalproperty in 1973, which were stolenby someone in 1973. Defendant has never been accused of the actual theft, but of criminal possession. Therefore, ifthe possession was in fact criminal, defendant was chargeable in 1973under section 94-2721, 

### R.C.M. 1947, which in pertinent part provided:

11

Receiver of stolen property. Every person who for his own gain or toprevent the owner from again possessing his own property buys or receives any personal property, knowing the same tohave been stolen, ispunishable by imprisonment in the state prison not exceeding five 

### (5) years or ina county jail not exceeding six 

### (6) months A-

# *

# *." (Emphasis added). The Forty-third Montana Legislative Assembly enacted a
new criminal code "Criminal Code of 1973", effectiveJanuary 

### 1, 1974. The new criminal code transition section, section 94-1-103, R.C.M. 1947, provides: "A lication to offenses committed before and a

# Pe ter enactment. "(1) The provisions of this code shallapply toany offense defined in this code and committed afterthe effective date thereof. "(2) Unless otherwise expressly provided, or unless the context otherwise requires, the provisions of this code shallgovern the construction of and punishment for any offense defined outside of this code and committed after the effectivedate thereof, aswell as the construction and application of any defense toa prosecution for such an offense.

Ir(3) The provisions of this code do not apply toany offense defined outside of this code and committed before the effective date thereof. Such an offense must be construed and punished according to the provisions of law existingatthe time of the commission thereof in the same manner as ifthis code had not been enacted.IIHere, on or about June 

### 5 and 

### 6, 1974, the sheriff's officers searched defendant's farm premises and seized the personal property upon which the prosecution was based. Defendant was charged under thenew criminal code section 94-6-302, R.C.M. 1947, the "theft" statuteunder the new code, which in pertinent part reads: 

### h heft. (1) A person commits the offense of theft when he purposely orknowingly obtains or exertsunauthorized control over property of the owner, and: "(a) has the purpose of depriving the owner of the property; or
II(b) purposely or knowingly uses, conceals, or abandons the property in such manner as to deprive the owner of the property; or
11(c) uses, conceals, or abandons the property knowing such use, concealment or abandonment probably 

### willdeprive the owner of the property." The statecontends thenew statutealsoincludes the old offense of receiving stolen property and in 

### itsbrief contends:

II

While evidence of the taking isunnecessary to sustain a conviction for theft under this statute, some evidence of the taking 

### isrequired inorder todemonstrate that the defendant was not the lawful owner of the property. Therefore any evidence of the taking in the present casewas necessarily presented in order to establish the identityof the owner and the criminal intent of the

,\ defendant. 9:

# * -L "All that 

### isnecessary to support a conviction for theft under 94-6-302 issome exercise of control over the property of the
owner. That exercise of controlneed not be for any particular length of timebut rather, any length of time which is sufficient to show an intent todeprive the owner of theuse of the property issufficient. The defendant here exercised control over the property inquestion which was demonstrated tohave been owned by another person and without that person's authorization. The information charged him with having exercised that control 'on orabout the 5th and 6th days of June, 1974'. No allega.tionwas made that defendant actually took the property from the owner
nor that he exerted control over the property atany time other than on the 5th and 6th dayof June, 1974. No such allegations
were necessary. 9: 

# * *If (Emphasis added.) First, we consider the transition statute, section 94-1- 103(3). The language of the statute

### isclear, unambiguous and mandatory. It is obviously intended toprovide an orderly transition to the new code. It offers no exceptionsunless expressly provided, yet the statebases 

### its entire case on an alleged continuing offense tocome around the language "any offense defined outside of this code and committed before the effective date thereof." The Code Commision Comment on this section refers to Chapter 513, Section 33, Laws of 1973, which clearly states the intent of the legislature: "The Montana Criminal Code and allother provisions of this act are effective January 

### 1, 1974, and shall apply toalloffenses alleged tohave been committed on or after that date. The Montana Criminal Code and allother provisions of this act do not apply to offenses committed prior to its effectivedate and prosecutions for such offenses shallbe governed by the prior law, which iscontinued in effect for that

urpose, as if this actwere not in force. For the :urpose of this section, an offense was committed prior to the effective date of this act ifany of the elements 

## - of the offense occurred prior thereto." (Emphasis added.) Clearly, the alleged offense could only be prosecuted under section94-2721, R.C.M. 1947, of the old code. Second, for future guidance, the stateisin error in itsargument as it pertains to proof of criminal intent of the defendant through proof of taking and the exercise of control
as sufficient proof to support a conviction of theft under the
new code. This is a specific intent crime and the proof required is that for specific intent. In the instant case, suspicious circumstances inconnectionwith the control do not meet this burden of proof, after an unrefuted explanation of possession by the defendant. See: Section 94-6-314, R.C.M. 1947, and Commission Comment thereunder.

### Extensive arguments were presented on other aspects of this problem such as ex post facto application, statute of limitations,etc. We seeno need to burden this opinionwith a discussion of thesebecause,as the transition period comes to
an end, it is unlikely these problems will arise in the future. The judgment of the district court is reversed and the
cause ordered dismissed.

Justice

We Concur:

-I----------------------------- 

### Chief Justice



# uJustices.