### No. 79-50 IN THE SUPREME COURT OF THE STATE OF MONTANA 1981

THE STATE OF MONTANA, Plaintiff and Respondent,

VS. 

### CARL ROGER LUNDBLADE, Defendant and Appellant.

Appeal from: District Court of the Fourth Judicial District, In and for the County of Lake. Honorable Jack L. Green, Judgepresiding. Counsel of Record: ForAppellant: K.M. Bridenstine argued, Polson,Montana For Respondent: 

### Hon. Mike Greely,Attorney General, Helena, Montana Allan Chronister argued,AssistantAttorney General,

Helena,Montana Richard P. Heinz argued, County Attorney, Polson,Montana

Submitted: January 13, 1981 Decided: 

## MAR

## 2419@' Filed: 

# MAR24

## 1987-Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court.

Defendant CarlRoger Lundblade appeals from a felony theft conviction, following a jury trial inDistrict Court, Lake County. We reverse the conviction and remand the cause to District Court for a new trial. The defendant operated a diesel repair shop inPolson, Montana, for a timeprior to his 

### arrest inDecember 1978. One of hisregular customers was the complaining witness inthis case, Warren G. Harding

## ,d/b/a Mission Valley Concrete Industries, Inc. InApril 1978, one of Hardingls trucks blew an engine. Defendant installed a new engine forHarding, using several parts from the blown engine. Harding apparently wanted 

### to get the engine repaired, but Lundblade determined that the blown engine could not be fixed and simplykept it athis shop. Shortlyaf

### ter this engine work 

### was done, defendant posted

a notice inhis shop that he 

### was increasing hishourly 

### rate to $16/hour in-shop and $17.50/hour out-of-shop. Mr. Harding

## ,who had been paying $lO/hour, advised Lundblade thathe could not pay the new rates. Conflicting testimony 

### was presented 

### at trial as tothe outcome of this discussion. Harding testified that Lundblade agreed 

### to continue to charge him at the $10 hourly 

### rate; Lundblade testified that it 

### was agreed thatHarding would get a "break" and $14 an hour straight across the board 

### was agreed upon. Despite this dispute over rates, Lundblade continued to do miscellaneous repair work forHarding inJune, July, and August 1978. By earlySeptember, Hardingls bill totalled $2,624. Harding paid $1,000 but refused to pay any more, indicating that he was "getting a runaround on [the] work." After several unsuccessful attempts to collect the bill, Lundblade contacted a Polson attorney to assist him inmaking the collection. After several 

### letters back and forthbetweenHarding's and Lundblade's attorneys, defendant contends thathe requested his attorney to file suit, but no action was taken. Lundblade testified that on advice of counsel, he held the engine toprotect his cause of action. He also testified thathe understood that if he sold the engine, the debt would be extinguished and he would no longer have grounds 

### to file suit. InNovember 1978, Lundblade contacted Wendell Jones in Missoula concerning a sale of his equipment and the engine because he was forced 

### to go out of business. A sale of the equipment and engine was consumated on November 27, 1978. Jones testified that $750 was allocated to the purchase price of the engine; Lundblade testified that $600 represented the price for the engine. Both testified that it would 

### cost more 

### to rebuild the engine than it would topurchase a used engine. Jones testified that the $750 price was "more than fair." Lundblade testified that it was standard practice in the repair business to 

### sell a customer's property if an account could not be collected. He admitted thathe 

### wrote off the entire balance owing, although he did not inform Mr. Harding of this until afterhe was arrested inDecember 1978 for felony theft of the disassembled engine. 

### We find that defendant's conviction must be reversed because improper jury instructions denied him a fairtrial. The remaining issues raised by the parties need not be addressed in thisopinion as they willnot 

### arise on retrial. The jury instructions constituted reversible 

### error for two

reasons: (1)the jury was not advised of the statutory elements of the crime, and (2)the jury was instructed on defendant's civil remedy of an agister's lien, permitting the inference that he was guilty of theft for failure 

### to pursue that remedy. The Statecontends thatwe should not consider the question of failure to give an "elements of the crime" instruction, citingwell-settled principles of appellate review.The State correctlypoints out that failure 

### to object at

### trial to the giving 

### or refusal 

### to give a jury instruction normally renders the issue nonappealable. Statev. Harvey (1979), Mont. I 603 P.2d 661, 665, 36 St.Rep. 2035, 2038, and the record here shows that appellant never offered an instruction setting out the elements of the 

### crime. But thisCourt has indicated that in

### some situations

### we willnonetheless review jury instructions "for the purpose of determining whether or not the jury 

### was properly instructed." Statev. Watson (1965), 144Mont. 576, 582, 398 P.2d 949, 952. In this 

### case, because 

### we determine that failure to instruct on the elements of the 

### crime constitutes "plain error" pursuant 

### to section 46-20-702, MCA, 

### we willtake cognizance of the jury instruction question. Statev. Poncelet (1980)I Mont

# . ,610 P.2d 698, 702, 37 St.Rep. 760, 763. Ata minimum, the District Court must explain

### or define the 

### crime for the jury. Statev. Campbell (1972), 160Mont. 111, 114, 500 P.2d 801, 803. In determining whether the instructions did this, 

### we are guided by certain settled principles. First, 

### we must view the instructions 

### as a whole, Statev. Caryl (1975), 168 Mont. 414, 430, 543 P.2d 389, 398, and 

### we willfind no error if the instructions 

### as a whole fullyand fairly instruct on the 

### law applicable to the case. State v. Higley (1980), Mont

# . , 621 P.2d 1043, 1054, 37 St.Rep. 1942, 1953; State v. Campbell, supra, 160 Mont. 

### at 116, 500 P.2d at 804. The Statecontends that the instructions as a whole adequately apprised the jury of the substantive 

### law applicable 

### to this

### case. We disagree. Even considering InstructionsNos. 5, 6, 8, and 11, as the Stateurges us to do, we are unable to determine that the jury knew that the Statehad to prove every element of the crime beyond a reasonable doubt. The pertinent portions of the instructions as given provide 

### as follows:

I'

# . .. in order to convict him of the 

### crime charged, everymaterial fact 

### or elementnecessary to constitute the 

### crime must be proved by the Stateof Montana by competent evidence beyond a reasonable doubt; and, if the jury entertains a reasonable doubt on any fact or element necessary to constitute the 

### crime charged, it is your duty to give the defendant the benefit of such doubt and acquit.I' (No. 5) "In every 

### crime 

### or public offense the Statemust establish each element described

## &the statute defining theoffense, and the State

# must further establish that the Defendant acted while having the mental state required by the statute defining the offense

# ." (Emphasis added.) (No. 6 "In this case the Defendant has been charged with committing the 

### crime of THEFT, committed as follows, 

### to-wit: That on or aboutNovember 27, 1978, 

### at the County of Lake, inthe Stateof Montana, the Defendant, CARL ROGER LUNDBLADE, purposely 

### or knowingly obtained 

### or exerted unauthorized control over property, to-wit: one GMC 6V 53diesel engine model number 6V 53N, of 

### a value of 

### more thanOne Hundred Fifty Dollars ($150.00) owned by Mission Valley Concrete Industries, Inc., with the purpose of depriving the owner of the property."

"The statutes under which thisInformation is filed, and the Defendant charged, 

### or as many as 

### are applicable in thisparticular case, 

### are given inthe following instructions." (No. 8) [We note that no further instructions 

### were given concerning the statutes under which the Information 

### was filed, 

### or under which the defendant

### was charged.] "Reasonable doubt is not a 

### mere possible doubt, because everything relating 

### to human affairs, and depending on evidence, 

### is open to some possible 

### or imaginary doubt. A reasonable doubt existswhen you jurors cannot say thatyou feel an abiding conviction to a 

### moral certaintyof the truth of the charge." (No. 11) In these instructions, the jury 

### was told thateach element of the 

### crime as defined by statutehad to be proved (No. 6), but the jury was never instructed as to the statutory elements of the crime. Although the jury 

### was instructed that the defendant was charged with theft as described in the Information (No. 8), nowhere 

### was the jury advised that the Information set out the material elements of the 

### crime, each of which the Statehad to prove beyond a reasonable doubt. Perhaps some 

### or allof thejurors inferred that the Information 

### set forth the statutory

### elements of the 

### crime, but 

### we have no way of determining this. Without 

### a correct statement of the elements of the 

### crime being presented to the jury 

### we cannot say that the defendant received a fairtrial. We find error also in the District Court's giving of InstructionNo. 9, towhich defendant did object attrial. This instruction 

### set out the procedure by which defendant could have filed an agister's lienagainstHarding inorder 

### to collect on hisbill. It instructed the jury on defendant's civil remedy, an instructionwhich defendant argues has no place in a criminal trial. Lundblade 

### was being tried for theft, and not for failure tofollowhis civilremedy. The State contends that the instruction 

### was necessary 

### to bring order to the evidence presented attrial. According tothe State, the defendant argued to the jury thathe had a right torelyon the agister's lien, and 

### a right to hold on 

### to Harding's property. While 

### we agreewith the Statethatdefendant may have introduced irrelevant evidence concerning the lien, we do not find this to be a justification forgiving thisjury instruction. The Statehad the opportunity to object to this testimony and tohave it stricken from the record. In failing to do this, the State cannot then attempt 

### to respond to thisevidence through improper jury instructions. We have previously stated our disapproval of giving to a jury abstract rules of 

### law that are inapplicable to the case. Statev. Reiner (1978), Mont

# . ,587 P.2d 950, 955, 35 St.Rep. 1861, 1866; State v. Trosper (1910), 41Mont. 442, 446, 109 P. 858, 859. If, however, we find that the jury could relate the concept presented in the instruction to the facts, and there is no prejudice to the defendant ingiving the instruction, we willnot find reversible 

### error. Reiner, supra. In this

### case the jury could have inferred thatby failing 

### to pursue the propercivilremedy, the defendant committed the 

### crime of theft. This 

### is clearlymisleading and not 

### a correct statement of the 

### law of theft. The districtjudge erred ingiving this instruction. Based on the forgoing, 

### we reverse the conviction and remand the cause for a new 

### trial. Wedecline 

### to reverse and dismiss, based on our finding that there 

### is evidence inthe record 

### to support the conviction. Statev. Johnson (1978), 177 Mont. 182, 188, 580 P.2d 1387, 1390; Statev. Langan (1968), 151 Mont. 558, 568, 445 P.2d 565, 570. Several other issues deserve comment before a retrial of thiscase. Although 

### we do not find reversible 

### error in InstructionNo. 10, 

### we note that it has no relevance to the 

### case and it should not have been given. Instruction No. 10set out a defensewhich defendant never raised. Although defendant may have believed thathis conduct did not constitute an offense, he did not attempt 

### to defend the charge by the means 

### set out in instruction 10, taken from section45-2-103 (4),

### MCA. That instruction involves reliance on unpublished rules 

### or regulations, statutes 

### later declared invalid, court decisions later overturned or interpretations of the 

### lawmade by a public person authorized to do so. Where, 

### as here, the instructionhas no relevance to the case, it serves no purpose but to confuse the jury. An instruction should not be given if it 

### is not relevant nor material to the evidence 

### or issues inthe 

### case. Statev. Brooks (1967), 150Mont. 399, 411, 436 P.2d 91, 97. Last, 

### we caution the District Court about giving an instruction such 

### as No. 6: 

### "

# . . .The lawalsopresumes that a person intends the ordinary consequences of any voluntaryact committed by him. This presumption, however, is termed a disputablepresumption and may be controverted by otherevidence.

### " In the recent case of Parker v. Crist (1980), Mont.



# ,621 P.2d 484, 37 St.Rep. 2048, 

### we approved the use of the



### same instruction, under the circumstances of thatcase. There

### wefound that the error, if any, ingiving the instruction

### was harmless beyond a reasonable doubt. Parker, Mont

# . , 621 P.2d 

### at 487, 37 St.Rep. 

### at2050. But 

### we cannot say that the circumstances making the instructionpermissible inParker occurred inthe instant case, nor do 

### we know for certain that theUnited States Supreme Court would find this instruction to be constitutional in this 

### case in lightof Sandstrom v. Montana (1979), 442 U.S. 510, 99 S.Ct. 2450, 61L.Ed.2d 39. Thus 

### we urge the DistrictCourt to avoid this instruction ina 

### retrial of this

case. The conviction 

### is reversed and this cause 

### is remanded to the District Court for a new trial.

Chief Justice We con 

# k ur: 

### P

Justices