No. 12586 INTHE 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: ForAppellant: 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, AssistantAttorney 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: 

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## 1974Mr. JusticeWesley Castles delivered the Opinion of the Court. This isan appeal by the defendant, Cy Tritz, from a judgment of the districtcourt of Yellowstone County, the Honorable C. B. Sande, presiding. The judgment was entered upon

a jury verdict findingTritz guilty of the receipt of stolen property, namely a snowmobile. Tritz appeals. On the evening of October 4, 1971, theYellowstone County sheriff's officereceived a report from an informant that Tritz was inpossession of stolen property, including two snowmobiles, and that the property was ina garage rented by Tritz. This information was passed on toother officers ata briefing the next morning. About 10:OO a.m. the same morning, Deputy Frank, acting on the information, went tothe business premises of Ted Andrus Explosives and talked toone Anderson who was a partner inthe business. Asa part of another business operation Andrus leased garage space toindividuals. The garage building fronted onto a cyclone fenced storage lot, and the building housing Ted Andrus Explosives alsoadjoined the lot. Deputy Frank asked Anderson ifhe could look atthe garage. Anderson consented, got a key, and the two men inspected the garage forten to fifteen minutes. Deputy Frank then obtained a searchwarrant; however thetwo snowmobiles were not listed on the warrant. Shortly thereafter, Tritz was arrested. The snowmobiles were not inthe garage but were parked outsideon the lotmounted on a tow trailer. The exact location isnot clear from the record, but we think thisisunimportant forreasons pointed out later inthisopinion. On October 20, 1971, Tritz was charged with one count of receipt of stolenproperty. The property inquestion was one of the two snowmobiles. A motion to suppress evidence was made,

a hearing had, and themotion was granted astoallthe seizedevidence 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 stolenproperty. 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 stolenproperty 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 themotion for leave to file the new information was error. He does not question the receiving stolenproperty 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. Itwas 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 informationwe find: that the sheriff of Yellowstone County had a report of a stolen snowmobile; that a deputy hadobserved 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 snowmobilewas parked on a trailer registered to Tritz; that themanager 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 affidavitmeets 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 informationwas 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: 

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## * * 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 stolenproperty--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 originalinformation 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. Thatmethod 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 factwhat the State did in this case,we hold that the contention iswithout 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 accusationmay charge two (2) or more different offenses connected together in their commission, or different statementsof the same offense or two (2)ormore different offenses of the same class of crimes or offenses, under separate counts. (Emphasisadded.) Grand larceny and receipt of stolenproperty 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 Statewas well within the terms of the statute in filing alternative charges.It is true, asTritz points out, that one cannot be convicted of grand larceny and receipt of stolenproperty, sinceone isby definition, incapable of receiving from himself what presumably he is inpossession of. However, it isclear from the record thatthe State sought a conviction only upon one of the counts and not.onboth. In opening argument theprosecution stated: 

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## * * It isnot our intention that thedefendant, we arenot trying to convict him of both of these; it isour contention that he is guilty of one or the other

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## *." In addition, thejury was instructed that they could return a verdict of guilty on only one count or the other but not on both. This jury instructionwas required inorder toprevent the possibilityof the jury returning a verdict of guiltyon both counts. Milanovich v. U.S., 365 U.S. 551, 81S.Ct. 728, 5 L Ed 2d 773. Appellant argues that Statev. Webber, 112Mont. 284, 116 P.2d 679, and Statev. Watkins, 156 Mont. 456, 481 P.2d 689, support hiscontentions. In Statev. Lane, 161Mont. 369, 506 P.2d 446, this Court affirmed a judgment of conviction of receiving stolenproperty where the information had charged alternatively burglary and/or receiving stolen property. The specific issue raised here was not raised inthe Lane case. However section 95-1504(a), R.C.M. 1947, was referred to. InWebber thisCourt held that it is optional toprosecute for either larceny or receiving stolenproperty where the evidence shows the defendant guiltyof both crimes. InWatkins thisprinciple was reaffirmed. In neither case were there counts of both larceny and receiving stolenproperty. Both Webber and Watkins areconsistent with ourholding here. Fourth, turning from his attack on the information, Tritz alleges theunconstitutionality of section 94-2721, R.C.M. 1947. Histheory isthat the statutegives the prosecution the authority and discretion tocharge a defendant with either a felony ora -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). Itwas 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, isnot 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 situationwill be helpful. Tritz's lease covered a storage area consisting of "Approximately 600 

### sq. ft., more or less (thegarage), and parking area directly in front of these quarters

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## * *." 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 snowmobileswere parked thirty feet in front of the garage on the lot. At the trial,Deputy Hansen testified theywere 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, Iwould say, seventyfive or eighty feet on the lot,and as to my looking at them, Idid not own them or have anything to do with them, so I

### had no further concernwith them, and Idon'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 constitutionallyprotected area owned or leased by Tritz. It is true the lease covers the "parkingarea directly in front",but there isno evidence as to the size of the area, or whether the snowmobileswere in that undefined area. Further,Tritzlsown 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 Tritzlstestimony, shows that themachines were not within a constitutionallyprotected area owned or leased by Tritz. Immunity from unreasonable searchesand 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. 400U.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 31ALR 2d 1078. It is uncontroverted thatAnderson, 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 iswithout 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