No. 13199 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1976 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

-vs - 

ROBERT DAVID FEELEY, 

Defendant and Appellant, 

Appeal from: District Court of the Thirteenth Judicial District, 

Honorable Charles Luedke, Judge presiding. P 

Counsel of Record: 

For Appellant : 

Keefer and Roybal, Billings, Montana 

J. Dwaine Roybal argued, Billings, Montana 

For Respondent: 

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

Montana 

Charles Erdmann argued, Assistant Attorney General, 

Helena, Montana 

Harold F. Hanser,argued, County Attorney Billings, 

Montana 

For Amicus Curiae: 

Charles M, Brown appeared, Helena, Montana 

Submitted: April 22, 1976 

Decided : m[ S :ga ?-I fyT.7 Filed : ;:li 3 '3.c 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

This is an appeal by defendant Robert David Feeley from 

a judgment entered in the district court, Yellowstone County, 

Hon. Charles Luedke presiding, following a jury verdict finding 

Feeley guilty of theft. 

Feeley was charged with three counts of horse theft 

pursuant to section 94-6-302(1), R.C.M. 1947. He was found 

guilty of one count, theft of a horse owned by Glen Larsen, and 

sentenced to ten years in the Montana State Prison. 

The jury heard this testimony concerning the theft: 

Glen Larsen testified he owned a black mare with the letters 

"CLR" tatooed inside its lower lip, a tatoo which he said would 

not be noticed in a casual inspection, and the horse was pastured 

at the Rob Stephens ranch on Blue Creek. A neighbor of Stephens, 

Goldie Patterson, testified this same horse wandered onto her 

pasture and in an attempt to identify the owner, she asked defendant Feeley to examine the horse. Defendant told her he had not 

seen the horse before. On January 8 or 9, 1975, shortly after 

defendant's visit to Goldie Patterson's ranch, the horse disappeared. 

On February 3, 1975, Maxine Gibson, a part time inspector 

for the state of Montana, testified she inspected a mare similar 

in color to the horse in question for defendant at Rockvale, 

Montana. Not finding a brand, she assumed the horse belonged to 

defendant and did not require a bill of sale but merely issued 

an annual permit listing defendant as owner of the horse. On 

February 5, 1975, defendant brought the horse in question to the 

Lewistown Public Auction where Jim Arthur, a brand inspector 

for the state of Montana, inspected the horse but found no brand. 

At this time, Arthur testified defendant told him he had owned 

the horse for some time. Defendant then sold the horse in 

Lewistown using the local inspection permit obtained in Rockvale 

as evidence of title. Subsequent investigation by the Department 

-2- 
of Livestock disclosed the horse inspected at Rockvale and 

sold at Lewistown was in fact, Glen Larsen's horse. 

Defendant's version regarding the manner he obtained 

the Larsen horse was: That while at the Standard Bar in Billings, 

an unidentified person offered to sell him a horse, They traveled 

that night to Pryor, Montana, where defendant bought the horse in 

question. He testified he received a bill of sale at that time, 

but it was subsequently destroyed by fire on March 2, 1975. 

Defendant presents two issues to this Court for review: 

(1) Was there sufficient evidence to sustain a conviction? 

(2) Does section 94-6-302 (4), R.C.M. 1947, which makes 

theft of a "commonly domesticated hoofed animal" a felony, deny 

defendant equal protection of law? 

Defendant contends the evidence was insufficient to sustain a conviction for horse theft in Yellowstone County on two 

grounds : 

First, in general terms, the evidence at best gave mere 

grounds for suspicion and as such was not sufficient to justify 

conviction of a crime. 

Second, and more specifically, the state failed to prove 

as an element of the crime, the location of the alleged act in 

that no evidence was ever offered to prove defendant stole a 

horse in Yellowstone County. 

We cannot agree with defendant's general contention of 

the lack of substantial evidence to convict. Defendant was 

charged and convicted of the offense of theft as defined in 

section 94-6-302(1), R.C.M. 1947: 

"(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 

"(b) purposely or knowingly uses, conceals, or 

abandons the property in such manner as to deprive 
the owner of the property; or 

"(c) uses, conceals, or abandons the property 

knowing such use, concealment or abandonment 

probably will deprive the owner! of the property." 

The testimony at trial clearly. demonstrated defendant 

was in possession of a black mare and had, in fact, sold that 

horse. Glen Larsen testified the horse in question carried his 

L * 

tatoo and was owned by him. Nowhere in the transcript is there 

any indication defendant was acting for-the benefit of Larsen 

during the time when he possessed and subsequently sold the horse. 

Therefore, substantial direct evidence exists to indicate defendant exerted unauthorized control over of the owner so 

deprive 

as to/the owner, the criminal act contemplated in section 94-6-302(1). 

As to evidence of criminal intent, " * * * knowingly * * * * . 

purposely * * *" , as contemplated by skction 94-6-302 (1) , an 

examination of the testimony leads to-these conclusions: Defendant in all his transactions with other individuals concerning 

this horse, represented himself to be the owner. He testified he 

had the bill of sale for the horse in. question until March 2, 

1975, yet he did not produce that bil'l.of sale at the Rockvale 

inspection of February 3, 1975, or the Lewistown sale of February 

5, 1975. Defendant told brand inspector Jim Arthur he had owned 

the horse for some time, while a month earlier he told Goldie 

Patterson he had never seen the horse before. To be sure such 

evidence of intent is, by nature, circumstantial, but this Court 

has repeatedly held the element of criminal intent may be proven 

by circumstantial evidence. State v. Cooper, 158 Mont. 102, 489 

P.2d 99; State v. Gallagher, 151 Mont. 501, 445 P.2d 45; State b 

v. Madden, 128 Mont. 408, 276 P.2d 974. The real question here 

is whether substantial circumstantial evidence existed to prove 

intent. In State v. Fitzpatrick, 163 Mont. 220, 226, 516 P.2d 

605, the Court said: 

"To find a person guilty beyond a reasonable doubt, 

each fact in a chain of circumstances that will 
establish guilt need not be proven beyond a 

reasonable doubt. What must . -- be ~rovek A. - - - - - - - is - that- - - - - - 

there is not a reasonable doubt arising from 

consideration of all the evidence in the case." 

(Emphasis supplied. ) 

Here, examination of the circumstantial evidence in its totality 

clearly demonstrates defendant knew he possessed a horse belonging to someone else and did so with criminal intent to deprive 

the owner of the horse. There was sufficient substantial evidence to support the jury's verdict of guilty. Where substantial evidence exists to support the jury's verdict, it must 

stand. State v. Miner, Mont. , 546 P.2d 252, 33 St.Rep. 

201; State v. Stoddard, 147 Mont. 402, 412 P.2d 827; State v. 

White, 146 Mont. 226, 405 P.2d 761. 

Defendant contends no evidence was offered to prove 

Yellowstone County was the location of the crime as charged in 

Count I of the Information; thus a necessary element of the crime 

of theft remained unproved. First,we note that location is not 

an element of the crime of theft as defined in section 94-6-302, 

R.C.M. 1947. Defendant apparently has confused elements of a 

crime with the doctrine of venue. Second, examination of the 

record reveals defendant failed to make any objection as to venue 

prior to trial. By neglecting to do so, defendant waived any 

objection he might have had as to the place of trial. Section 

95-401, R.C.M. 1947. 

Defendant next contends section 94-6-302(4), R.C.M. 1947, 

is unconstitutional as being a denial of equal protection of law 

as guaranteed by the Fourteenth Amendment, United States Constitution and Article 11, Section 4, 1972 Montana Constitution. We 

find no merit in this contention. 

For purposes of discussion, we set forth section 94-6-302(4): 

"(4) A person convicted of the offense of theft 

of property not exceeding one hundred fifty 

dollars ($150) in value shall be fined not to 

exceed five hundred dollars ($500) or be 
imprisoned in the county jail for any term not 

to exceed six (6) mopths, or both. A person 

convicted of the offense of theft of property 

exceeding one hundred fifty dollars ($150) in 

value or theft of any commonly domesticated 

hoofed animal shall be imprisoned in the state 

prison for any term not to exceed ten (10) 

years." (Emphasis added.) 

Defendant bases his contention on the fact section 94-6-302(4) 

contains two classifications of felony theft. One pertains to 

"commonly domesticated hoofed animals" for which no minimum 

monetary value is required for felony conviction. The second 

pertains to other animals and inanimate objects for which a 

minimum monetary value in excess of $150 is required for felony 

conviction. 

With regard to legislative classifications such as this, 

this Court recently said in State v. Jack, Mont . , 539 P.2d 

726, 729, 32 St.Rep. 858. 

" * * * Where the challenge extends only to the 

more general legislative classifications, the 

judicial inquiry must be limited to determining 

whether the distinction is justified by a rational 

basis. Stated another way, we can determine only 

whether the law has a sufficiently reasonable 

relation to a proper legislative purpose so as 

not to be deemed arbitrary. * * * In connection 

with this standard, a classification having some 

reasonable basis does not deny equal protection 

merely because it is not made with precise mathematical nicety or results in some inequality. 

One who attacks the legislation has the burden 

of proving the classification to be arbitrary." 

See also: Montana Land Title Ass'n v. First American Title, 

Mont . , 539 P.2d 711, 32 St.Rep. 874. Defendant failed to 

meet his burden of proving unreasonable and arbitrary the felony 

classification for theft of a "commonly domesticated hoofed 

animal". As the Amicus Curiae brief of the Department of Livestock points out, this classification is both reasonable and 

necessary. Raising livestock is an important industry in Montana. 

Theft of livestock is a problem of some magnitude because of the 

state's large geographical area and small population. In recognition of these facts the legislature, as a deterrent, enacted 
severe penalties for such theft. That the legislature felt 

such classification was still necessary is evidenced by the 

fact it was carried over to the Montana Criminal Code of 1973, 

with only minor changes. In addition, we note other western 

states recently presented with this very issue have ruled 

such a felony classification for theft of livestock not to be a 

denial of equal protection. The rationale for so holding was 

substantially the same as that advanced here. See: State v. 

Pacheco, 81 N.M. 97, 463 P.2d 521; State v. Webb, 96 Ida. 325, 

528 P.2d 669; People v. Thomas, 43 Cal.App.3d 862, 118 Cal.Rptr. 

226. 

The judgment of the district coyt is affirmed. , . 

---- Ad% ----- -------------- --- 

Justice 

We concur: 

un. R. D. McPhillips, district 

judge, sitting in place of Mr. 

Chief Justice James T. Harrison.