No. 12986 

IN THE 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: 

For Appellant : 

Gene Huntley argued, Baker, Montana 

For Respondent: 

Hon. Robert L. Woodahl, Attorney General, Helena, 

Montana 

Thomas A. Budewitz, Assistant Attorney 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, after a jury verdict convicting 

him of two counts of theft and imposing a three year sentence of 

imprisonment in the Montana state prison. 

The controlling facts here are not disputed. Defendant 

came into possession of some items of pe~cnalproperty in 1973, 

which were stolen by someone in 1973. Defendant has never been 

accused of the actual theft, but of criminal possession. Therefore, if the possession was in fact criminal, defendant was 

chargeable in 1973 under 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 to prevent the owner from again 

possessing his own property buys or receives any 

personal property, knowing the same to have been 

stolen, is punishable by imprisonment in the state 

prison not exceeding five (5) years or in a 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", effective January 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 shall apply 

to any offense defined in this code and committed 

after the effective date thereof. 

"(2) Unless otherwise expressly provided, or 

unless the context otherwise requires, the provisions 

of this code shall govern the construction of and 

punishment for any offense defined outside of this 

code and committed after the effective date thereof, 

as well as the construction and application of any defense to a prosecution for such an offense. 

I r (3) The provisions of this code do not apply 

to any 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 existing at the time of the 

commission thereof in the same manner as if this code 

had not been enacted. I I 
Here, 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 the new criminal code section 94-6-302, R.C.M. 

1947, the "theft" statute under the new code, which in pertinent 

part reads: 

 h heft. (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 

I I (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 

will deprive the owner of the property." 

The state contends the new statute also includes the old 

offense of receiving stolen property and in its brief contends: 

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

is required in order to demonstrate that the defendant was not 

the lawful owner of the property. Therefore any evidence of the 

taking in the present case was necessarily presented in order to 

establish the identity of the owner and the criminal intent of the 

defendant. 9: * -L ,\ 

"All that is necessary to support a conviction for theft 

under 94-6-302 is some exercise of control over the property of the 

owner. That exercise of control need not be for any particular 

length of time but rather, any length of time which is sufficient 

to show an intent to deprive the owner of the use of the property 

is sufficient. The defendant here exercised control over the 

property in question which was demonstrated to have been owned 

by another person and without that person's authorization. The 

information charged him with having exercised that control 'on or 
about the 5th and 6th days of June, 1974'. No allega.tion was 

made that defendant actually took the property from the owner 

nor that he exerted control over the property at any time other 

than on the 5th and 6th day of 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 is clear, unambiguous and 

mandatory. It is obviously intended to provide an orderly transition to the new code. It offers no exceptions unless expressly 

provided, yet the state bases its entire case on an alleged continuing offense to come 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 all other provisions 

of this act are effective January 1, 1974, and shall 

apply to all offenses alleged to have been committed 

on or after that date. The Montana Criminal Code and 

all other provisions of this act do not apply to 

offenses committed prior to its effective date and 

prosecutions for such offenses shall be governed by 

the prior law, which is continued in effect for that 

urpose, as if this act were not in force. For the 

:urpose of this section, an offense was committed prior 

- to the effective date of this act if any 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 state is in error in 

its argument 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 in connection with 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 see no need to burden this opinion with a 

discussion of these because, 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 

u Justices.