### 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 theThirteenth JudicialDistrict, Honorable Charles Luedke, Judgepresiding. 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, AssistantAttorney 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.cMr. Justice Gene B. Daly delivered the Opinion of the Court.

This 

### is an appeal by defendant Robert David Feeley from

a judgment entered inthe districtcourt, Yellowstone County, Hon. Charles Luedke presiding, following a jury verdict finding Feeley guiltyof theft. Feeley was charged with three counts of horse theft pursuant to section 94-6-302(1), R.C.M. 1947. Hewas found guilty of one count, theft of a horse owned by Glen Larsen, and sentenced toten years inthe Montana StatePrison. The jury heard thistestimony concerning the theft: Glen Larsen testified he owned a black mare with the 

### letters "CLR" tatooed inside 

### its lower lip, a tatoowhich he said would not be noticed in a casual inspection, and the horse 

### waspastured atthe Rob Stephens ranch on Blue Creek. A neighbor of Stephens, Goldie Patterson, testified this same horse wandered onto her pasture and inan attempt to identify the owner, she asked defendantFeeley 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 toGoldie Patterson's ranch, the horse disappeared. On February 3, 1975, Maxine Gibson, a part 

### time inspector for the stateof Montana, testified she inspected 

### a mare 

### similar in color to the horse inquestion for defendant atRockvale, Montana. Not finding 

### a brand, she assumed the horse belonged to defendant and did not require 

### a billof salebutmerely issued an annual permit listingdefendant 

### as owner of the horse. On February 5, 1975, defendant brought the horse 

### inquestion tothe Lewistown Public Auction where JimArthur, 

### a brand inspector for the stateof Montana, inspected the horse but found no brand. Atthis 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 inRockvale

asevidence of title. Subsequent investigation by the Department -2-of Livestock disclosed the horse inspected 

### at Rockvale and sold 

### atLewistown was in fact, Glen Larsen's horse. Defendant's version regarding the manner he obtained the Larsen horse was: That while atthe Standard Bar inBillings,

an unidentified person offered to sellhim a horse, They traveled that night toPryor, Montana, where defendant bought the horse in question. He testified he received a bill of sale atthat 

### time, but it 

### was subsequently destroyed by fireon March 2, 1975. Defendant presents two issues tothis Court forreview: (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 inYellowstone County on two grounds: First, in general 

### terms, the evidence atbest gave mere grounds for suspicion and as such was not sufficient tojustify conviction of a crime. Second, and more specifically, the statefailed toprove

as an element of the crime, the location of the alleged act in that no evidence was ever offered toprove defendant stole a horse inYellowstone County. We cannot agreewith defendant's general contention of the lack of substantial evidence toconvict. Defendant was charged and convicted of the offense of theft asdefined 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 exertsunauthorized control over property of the owner, and: "(a)has the purpose of depriving the owner of the property; or "(b)purposely orknowingly uses, conceals, or abandons the property in such manner astodeprivethe owner of the property; or "(c)uses, conceals, or abandons the property knowing such use, concealment or abandonment probably 

### willdeprive the owner! of the property." The testimony attrialclearly.demonstrated defendant

was inpossession of 

### a black mare and had, infact, sold that horse. Glen Larsen testified the horse inquestion carried his

L* tatoo and was owned by him. Nowhere inthe transcript is there any indication defendant was acting for-thebenefit of Larsen during the 

### timewhen he possessed and subsequently sold the horse. Therefore, substantial direct evidence exists toindicatedefendant exerted unauthorized control over of the owner so deprive asto/the owner, the criminal 

### act contemplated in section 94-6-302(1). As toevidence of criminal intent, 

### " 

## * * * knowingly 

## * * *
* 

### . purposely 

## * * *"

## , as contemplated by skction 94-6-302 (1)

## ,an examination of the testimony leads to-these conclusions: Defendant in allhis transactions with other individuals concerning thishorse, represented himself to be the owner. He testified he had the billof sale for the horse in.question until March 2, 1975, yet he did not produce that bil'l.of sale 

### atthe Rockvale inspection of February 3, 1975, or the Lewistown saleof February 5, 1975. Defendant told brand inspector 

### JimArthur 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 thisCourt has repeatedly held the element of criminal intentmay be proven by circumstantial evidence. Statev. Cooper, 158 Mont. 102, 489 P.2d 99; State

### v. Gallagher, 151Mont. 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 toprove intent. In Statev. Fitzpatrick, 163Mont. 220, 226, 516 P.2d 605, the Court said: "To find 

### a person guiltybeyond a reasonable doubt, each fact ina chain of circumstances that

### will

### establish guilt need not be proven beyond a reasonabledoubt. What must be ~rovek isthat-

.-- A. --- --- -- 

### --

### --- there is not a reasonable doubt arising from consideration of all the evidence in the case."

(Emphasissupplied.) 

### Here, examination of the circumstantial evidence in its totality clearly demonstrates defendant knew he possessed a horse belonging to someone else and did sowith 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,defendantwaived 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 StatesConstitution and Article 11, Section 4, 1972Montana 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." (Emphasisadded.) Defendant bases his contention on the fact section 94-6-302(4) contains two classificationsof felony theft. One pertains to "commonlydomesticated 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 Statev. Jack, Mont

# . , 539 P.2d 

### 726, 729, 32 St.Rep. 858. 

### " 

## * * 

## * Where the challenge extends only to the more general legislative classifications, the judicial inquirymust 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 classificationhaving some reasonablebasis 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. FirstAmerican 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 classificationwas still necessary is evidenced by the fact itwas 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, 81N.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.

,.



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# Ad% -----

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## --- Justice We concur:

un. R. D. 

### McPhillips, district judge, sitting in place of Mr. Chief Justice James T. Harrison.