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, Judge presiding. 

Counsel of Record: 

For Appellant: 

K.M. Bridenstine argued, Polson, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

Allan Chronister argued, Assistant Attorney General, 

Helena, Montana 

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

Submitted: January 13, 1981 

Decided : MAR 2 4 19@' 

Filed: MAR 24 1987- 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of the 

Court. 

Defendant Carl Roger Lundblade appeals from a felony theft 

conviction, following a jury trial in District 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 in Polson, 

Montana, for a time prior to his arrest in December 1978. One of 

his regular customers was the complaining witness in this case, 

Warren G. Harding , d/b/a Mission Valley Concrete Industries, Inc. 

In April 1978, one of Hardingls trucks blew an engine. Defendant 

installed a new engine for Harding, 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 simply kept it at his shop. 

Shortly af ter this engine work was done, defendant posted 

a notice in his shop that he was increasing his hourly rate to 

$16/hour in-shop and $17.50/hour out-of -shop. Mr. Harding , who 

had been paying $lO/hour, advised Lundblade that he could not pay 

the new rates. Conflicting testimony was presented at trial as 

to the 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 that Harding 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 for Harding in June, July, and August 

1978. By early September, 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 in making 

the collection. After several letters back and forth between 
Harding 's and Lundblade's attorneys, defendant contends that he 

requested his attorney to file suit, but no action was taken. 

Lundblade testified that on advice of counsel, he held the 

engine to protect his cause of action. He also testified that he 

understood that if he sold the engine, the debt would be 

extinguished and he would no longer have grounds to file suit. 

In November 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 to purchase 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 that he wrote off the entire 

balance owing, although he did not inform Mr. Harding of this 

until after he was arrested in December 1978 for felony theft of 

the disassembled engine. 

We find that defendant's conviction must be reversed 

because improper jury instructions denied him a fair trial. The 

remaining issues raised by the parties need not be addressed in 

this opinion as they will not 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 State contends that we should not consider the 

question of failure to give an "elements of the crime" 

instruction, citing well-settled principles of appellate review. 
The State correctly points out that failure to object at trial to 

the giving or refusal to give a jury instruction normally renders 

the issue nonappealable. State v. 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 this Court has indicated that in some 

situations we will nonetheless review jury instructions "for the 

purpose of determining whether or not the jury was properly 

instructed." State v. Watson (1965), 144 Mont. 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 will take cognizance of the jury instruction question. State v. Poncelet 

(1980 )I Mont . , 610 P.2d 698, 702, 37 St.Rep. 760, 763. 

At a minimum, the District Court must explain or define 

the crime for the jury. State v. Campbell (1972), 160 Mont. 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, State v. Caryl (1975), 168 

Mont. 414, 430, 543 P.2d 389, 398, and we will find no error if 

the instructions as a whole fully and 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 State contends that the instructions as a whole adequately apprised the jury of the substantive law applicable to 

this case. We disagree. Even considering Instructions Nos. 5, 

6, 8, and 11, as the State urges us to do, we are unable to 

determine that the jury knew that the State had 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, every material fact or element 
necessary to constitute the crime must be proved 

by the State of 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 State must 

establish each element described & the statute 

defining the offense, 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 about November 27, 

1978, at the County of Lake, in the State of 

Montana, the Defendant, CARL ROGER LUNDBLADE, 

purposely or knowingly obtained or exerted 

unauthorized control over property, to-wit: one 

GMC 6V 53 diesel engine model number 6V 53N, of 

a value of more than One 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 this Information is 

filed, and the Defendant charged, or as many as 

are applicable in this particular case, are 

given in the 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 

exists when you jurors cannot say that you feel 

an abiding conviction to a moral certainty of 

the truth of the charge." (No. 11) 

In these instructions, the jury was told that each element 

of the crime as defined by statute had 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 State had to 

prove beyond a reasonable doubt. Perhaps some or all of the 
jurors 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 

fair trial. 

We find error also in the District Court's giving of 

Instruction No. 9, to which defendant did object at trial. This 

instruction set out the procedure by which defendant could have 

filed an agister's lien against Harding in order to collect on 

his bill. It instructed the jury on defendant's civil remedy, an 

instruction which defendant argues has no place in a criminal 

trial. Lundblade was being tried for theft, and not for failure 

to follow his civil remedy. 

The State contends that the instruction was necessary 

to bring order to the evidence presented at trial. According 

to the State, the defendant argued to the jury that he had a 

right to rely on the agister's lien, and a right to hold on to 

Harding's property. While we agree with the State that defendant 

may have introduced irrelevant evidence concerning the lien, we do 

not find this to be a justification for giving this jury 

instruction. The State had the opportunity to object to this 

testimony and to have it stricken from the record. In failing to 

do this, the State cannot then attempt to respond to this evidence 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. 

State v. Reiner (1978), Mon t . , 587 P.2d 950, 955, 35 

St.Rep. 1861, 1866; State v. Trosper (1910), 41 Mont. 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 in giving the instruction, we 

will not find reversible error. Reiner, supra. In this case the 

jury could have inferred that by failing to pursue the proper 
civil remedy, the defendant committed the crime of theft. This 

is clearly misleading and not a correct statement of the law of 

theft. The district judge erred in giving this instruction. 

Based on the forgoing, we reverse the conviction and 

remand the cause for a new trial. We decline to reverse and 

dismiss, based on our finding that there is evidence in the 

record to support the conviction. State v. Johnson (1978), 177 

Mont. 182, 188, 580 P.2d 1387, 1390; State v. Langan (1968), 151 

Mont. 558, 568, 445 P.2d 565, 570. 

Several other issues deserve comment before a retrial of 

this case. Although we do not find reversible error in 

Instruction No. 10, we note that it has no relevance to the case 

and it should not have been given. Instruction No. 10 set out a 

defense which defendant never raised. Although defendant may 

have believed that his conduct did not constitute an offense, he 

did not attempt to defend the charge by the means set out in 

instruction 10, taken from section 45-2-103 (4), MCA. That 

instruction involves reliance on unpublished rules or 

regulations, statutes later declared invalid, court decisions 

later overturned or interpretations of the law made by a 

public person authorized to do so. Where, as here, the instruction has 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 in the case. 

State v. Brooks (1967), 150 Mont. 399, 411, 436 P.2d 91, 97. 

Last, we caution the District Court about giving an instruction such as No. 6: 

" . . . The law also presumes that a person 

intends the ordinary consequences of any voluntary act committed by him. This presumption, 

however, is termed a disputable presumption and 

may be controverted by other evidence. " 

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 that case. There we 
found that the error, if any, in giving the instruction was 

harmless beyond a reasonable doubt. Parker, Mon t . , 621 

P.2d at 487, 37 St.Rep. at 2050. But we cannot say that the circumstances making the instruction permissible in Parker occurred 

in the instant case, nor do we know for certain that the United 

States Supreme Court would find this instruction to be constitutional in this case in light of Sandstrom v. Montana (1979), 442 

U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39. Thus we urge the 

District Court to avoid this instruction in a 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