No. 12586 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1974 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vs - 

CY TRITZ, 

Defendant and Appellant. 

Appeal from: District Court of the Thirteenth Judicial District, 

Honorable C. B. Sande, Judge presiding. 

Counsel of Record : 

For Appellant : 

Towe, Neely and Ball, Billings, Montana 

Gerald J. Neely argued, Billings, Montana 

For Respondent : 

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

Montana 

Thomas J. Beers, Assistant Attorney General, argued, 

Helena, Montana 

Harold F. Hanser, County Attorney, Billings, Montana 

Clifford E. Schleusner, Deputy County Attorney, argued, 

Billings, Montana 

Submitted: March 22, 1974 

Decided: Mfl 241974 

Filed : Z 4 1974 
Mr. Justice Wesley Castles delivered the Opinion of the Court. 

This is an appeal by the defendant, Cy Tritz, from a 

judgment of the district court of Yellowstone County, the Honorable C. B. Sande, presiding. The judgment was entered upon 

a jury verdict finding Tritz guilty of the receipt of stolen 

property, namely a snowmobile. Tritz appeals. 

On the evening of October 4, 1971, the Yellowstone 

County sheriff's office received a report from an informant that 

Tritz was in possession of stolen property, including two snowmobiles, and that the property was in a garage rented by Tritz. 

This information was passed on to other officers at a briefing 

the next morning. About 10:OO a.m. the same morning, Deputy 

Frank, acting on the information, went to the business premises 

of Ted Andrus Explosives and talked to one Anderson who was a 

partner in the business. As a part of another business operation 

Andrus leased garage space to individuals. The garage building 

fronted onto a cyclone fenced storage lot, and the building housing Ted Andrus Explosives also adjoined the lot. Deputy Frank 

asked Anderson if he could look at the garage. Anderson consented, 

got a key, and the two men inspected the garage for ten to fifteen 

minutes. Deputy Frank then obtained a search warrant; however 

the two snowmobiles were not listed on the warrant. Shortly thereafter, Tritz was arrested. 

The snowmobiles were not in the garage but were parked 

outside on the lot mounted on a tow trailer. The exact location 

is not clear from the record, but we think this is unimportant 

for reasons pointed out later in this opinion. 

On October 20, 1971, Tritz was charged with one count of 

receipt of stolen property. The property in question was one of 

the two snowmobiles. A motion to suppress evidence was made, 

a hearing had, and the motion was granted as to all the seized 
evidence except for the snowmobile, which was expressly held 

admissible. Then, in early February, 1972, the prosecution 

moved to dismiss the case and asked the district court for leave 

to file a new information and affidavit in support, charging 

Tritz with one count of grand larceny and one count of receipt 

of stolen property. The property involved was the same snowmobile. The motion was contested, but leave to file was granted. 

Thereafter trial was had, the jury being instructed that they 

could find Tritz guilty on one count or the other, but not both. 

The jury returned a verdict of innocent on the grand larceny 

count and guilty on the receipt of stolen property count. 

Tritz raises several issues for our review. 

First, he complains that the granting of leave to file 

a new information without a preliminary examination was error. 

More precisely he says that there was no probable cause to support 

the grand larceny count and that a preliminary hearing would 

have so disclosed; hence failure to deny the motion for leave to 

file the new information was error. He does not question the 

receiving stolen property count. 

We last considered a challenge to the sufficiency of an 

application to file an information in State v. Dunn, 155 Mont. 

319, 472 P.2d 288. It was there made clear that a defendant does 

not have a vested right to a preliminary hearing. What is required is that the prosecution show, to some judicial officer, 

probable cause that a felony has been committed by the defendant. Thus, if the prosecution showed probable cause that this 

defendant committed the theft of a snowmobile, the contention 

must fail. 

Examining the affidavit in support of the motion for leave 

to file an information we find: that the sheriff of Yellowstone 

County had a report of a stolen snowmobile; that a deputy had 
observed a snowmobile matching that description in a fenced 

yard behind the business establishment known as Ted Andrus 

Explosives; that the snowmobile had all identification tags 

removed from it except for a serial number found on the rubber 

track of the machine; that the snowmobile was parked on a trailer 

registered to Tritz; that the manager of Ted Andrus Explosives 

had advised the deputies that Tritz was renting storage space 

from Ted Andrus Explosives and that Tritz had stored the snowmobile in the yard. 

Bearing in mind that the purpose of either a preliminary 

hearing or an application for leave to file an information is 

not to establish guilt or innocence, but to establish probable 

cause, we think that the affidavit meets the test. We hold that 

the district court did not err in granting leave to file a new 

information. 

Second, Tritz says that with respect to the grand larceny 

count, the information was not filed within the time limit prescribed by section 95-1302, R.C.M. 1947. This section requires 

the county attorney to file an information within thirty days 

after leave to file is granted, charging the defendant: 

" * * * with the offense for which he is held to 

answer, or any other offense disclosed by the 

evidence." 

The theory is that the original information and affidavit charging only one offense--receiving stolen property--is essentially 

the same as the second information and affidavit charging both 

offenses. Since the affidavits are the same in both cases, Tritz 

reasons that the grand larceny count should be striken because 

not filed within 30 days after leave to file the original information was granted. 

A similar attack on an information was made in Gransberry 

v. State, 149 Mont. 158, 423 P.2d 853. In that case the original 
information charged the taking of an automobile without the 

consent of the owner. Later a new information was filed charging grand larceny. The defendant charged that the second information was in fact an amendment of the first, in violation of 

the then applicable statute, section 94-6207, R.C.M. 1947, now 

section 95-1505, R.C.M. 1947, which prohibited amendment of the 

charge in matters of substance after the defendant had pleaded. 

We decided the case on other grounds, but indicated that defendant's contention considered alone was meritorious. However, we 

also noted that there was a procedure available to avoid the 

problem. That method was to avail itself of section 94-9505, 

R.C.M. 1947, now section 95-1703, R.C.M. 1947, by having the 

first information dismissed and then filing a new one. Since 

that is in fact what the State did in this case, we hold that the 

contention is without merit. 

Third, Tritz then maintains that leave to file the new 

information should not have been granted because of misjoinder of 

the offenses of grand larceny and receiving stolen property. He 

says that the prosecution should have been required to elect between the offenses. 

Section 95-1504(a), R.C.M. 1947, reads in part: 

"An indictment, information, complaint or accusation may charge two (2) or more different 

offenses connected together in their commission, 

or different statements of the same offense or 

two (2) or more different offenses of the same 

class of crimes or offenses, under separate 

counts. (Emphasis added. ) 

Grand larceny and receipt of stolen property are in the 

"same class of crimes". They are to be found in the same chapter 

of the Revised Codes of Montana. They are both felonies. They 

are both concerned with actions which separate the property owner 

from his property. We hold that the State was well within the 

terms of the statute in filing alternative charges. 
It is true, as Tritz points out, that one cannot be 

convicted of grand larceny and receipt of stolen property, 

since one is by definition, incapable of receiving from himself 

what presumably he is in possession of. However, it is clear 

from the record that the State sought a conviction only upon one 

of the counts and not.on both. In opening argument the prosecution stated: 

" * * * It is not our intention that the defendant, we are not trying to convict him of both 

of these; it is our contention that he is guilty 

of one or the other * * *." 

In addition, the jury was instructed that they could return a 

verdict of guilty on only one count or the other but not on both. 

This jury instruction was required in order to prevent the possibility of the jury returning a verdict of guilty on both counts. 

Milanovich v. U.S., 365 U.S. 551, 81 S.Ct. 728, 5 L Ed 2d 773. 

Appellant argues that State v. Webber, 112 Mont. 284, 

116 P.2d 679, and State v. Watkins, 156 Mont. 456, 481 P.2d 689, 

support his contentions. In State v. Lane, 161 Mont. 369, 506 P.2d 

446, this Court affirmed a judgment of conviction of receiving 

stolen property where the information had charged alternatively 

burglary and/or receiving stolen property. The specific issue 

raised here was not raised in the Lane case. However section 

95-1504(a), R.C.M. 1947, was referred to. 

In Webber this Court held that it is optional to prosecute for either larceny or receiving stolen property where the 

evidence shows the defendant guilty of both crimes. In Watkins 

this principle was reaffirmed. In neither case were there counts 

of both larceny and receiving stolen property. Both Webber and 

Watkins are consistent with our holding here. 

Fourth, turning from his attack on the information, Tritz 

alleges the unconstitutionality of section 94-2721, R.C.M. 1947. 

His theory is that the statute gives the prosecution the authority 

and discretion to charge a defendant with either a felony or a 

-6- 
misdemeanor under the same set of facts, thereby denying equal 

protection of the law. 

The contention is without merit. We have ruled on this 

issue in Petition of Gibson, 153 Mont. 454, 457 P.2d 767, denial 

of habeas corpus aff'd 443 F.2d 75 (9th Cir., 1971). It was 

there held that a defendant must be charged with a felony under 

section 94-2721, R.C.M. 1947. Thus, Tritz's basic premise, that 

of prosecutorial discretion, is not present and contention fails. 

Fifth, Tritz alleges that the seizure of the two snowmobiles was made in a constitutionally objectionable manner, that 

is they were seized without a warrant, and not incident to a valid 

arrest. 

A reiteration of some of the factual situation will be 

helpful. Tritz's lease covered a storage area consisting of 

"Approximately 600 sq. ft., more or less (the garage), and parking area directly in front of these quarters * * *." The garage 

building also housed other leased areas, and the whole building 

fronted onto a cyclone fenced lot. Ted Andrus Explosives was 

also adjacent to the lot, and was, with the exception of the parking areas, in control of the lot. The exact location of the snowmobiles is uncertain from the record. At the suppression hearing 

Anderson testified that the snowmobiles were parked thirty feet 

in front of the garage on the lot. At the trial, Deputy Hansen 

testified they were twenty to twenty-five feet away while Deputy 

Dabner testified they were fifty to seventy-five feet away. Tritz's 

testimony at trial on this point was: 

"Q. Did you look at one or both of the snowmobiles 

when they were parked near your garage at any time? 

A. They weren't parked like you are trying to say, 

near my garage, they were out, I would say, seventyfive or eighty feet on the lot, and as to my looking 

at them, I did not own them or have anything to do 

with them, so I had no further concern with them, 

and I don't ride them, I am busy with horses." 
Section 95-1806Cf), R.C.M. 1947, puts the burden of proof 

on defendant to show that evidence was unlawfully seized from 

him. We have examined the record and find no evidence that the 

snowmobiles were in a constitutionally protected area owned or 

leased by Tritz. It is true the lease covers the "parking area 

directly in front", but there is no evidence as to the size of 

the area, or whether the snowmobiles were in that undefined area. 

Further, Tritzls own testimony tends to show that the snowmobiles 

were not in that area. We think the lack of evidence on this 

point to sustain the defendant's burden of proof, coupled with 

Tritzls testimony, shows that the machines were not within a constitutionally protected area owned or leased by Tritz. Immunity 

from unreasonable searches and seizures is personal and one cannot 

object to the searching of another's premises or property if the 

latter consents to the search. U. S. v. Kilgen, 445 F.2d 287; 

Woodbury v. Beto, 426 F.2d 923, cert. den. 400 U.S. 997, 91 S.Ct. 

472, 27 L Ed 2d 446; Burge v. U.S., 342 F.2d 408, cert den., 382 

U.S. 829, 86 S.Ct. 63, 15 L Ed 2d 72. See 31 ALR 2d 1078. It is 

uncontroverted that Anderson, a partner in Ted Andrus ~xplosives, 

had the authority to consent, and did consent, to a search of 

property on the lot under his control. The contention of defendant is without merit. 

What has been said heretofore with respect to the first 

three issues, disposes of the last contention, that the district 

court should have directed a verdict of acquittal on the charge 

of grand larceny. 

Judgment affirmed. 
We concur: 

............................... 

Chief Justice