### No. 12846 IN

### THE 

### SUPREME COURT OF THE 

### STATE OF MONTAW 1975

THE 

### STATE OF MONTANA, Plaintiff and Appellant,

-vs

# - CLANCY CUNNINGHAM, 

### Defendant and Respondent,

Appeal from: Dtstrict Court of the Thirteenth Judicial District, Honorable Robert 

### H. Wilson, Judge presiding. Counsel of Record: For Appellant: Hon. Robert 

### L. Woodahl, Attorney General, Helena,

Montana Richard Dzivi argued, SpecialAssistantAttorney

General, Great Falls, Montana Harold F. Hanser, County Attorney, Billings, Montana For Respondent: 

### Moses, Kampfe, Tolliver and Wright, Billings, Montana Ralph Wright argued, Billings, Montana

Submitted: April 14, 1975

Decided

### : 

## !\M'Y

## -2

## 197s

Clerk 

# +Mr. Justice Frank I, Haswell delivered the Opinion of the Court.
The question inthis case iswhether further prosecution 

### is barred by the double jeopardy provisions of the United States and Montana Constitutions. The district court held it was. We

reverse.On August 24, 1973, defendant Clancy Cunningham was charged with firstdegree assault arisingout of the alleged stabbing of one Larry Catlin. Defendant entered a plea of "not guilty". The case was set for trialon March 21, 1974, inthe districtcourt of Yellowstone County. On the trialdate, a jury was duly selected and sworn. The districtjudge then read a general omnibus jury instruction without objection. Court was then recessed over the noon hour. When court reconvened, the deputy county attorney moved todismiss the action on the ground that a new and different charge, specifically third degree assault, was being filed against the defendant injustice court. The substantial reason for the dismissal was that the victim of the alleged assault was not available totestify. The victim, a resident of Wyoming, had not been subpoenaed. The state's motion todismiss was granted without objection. Defendant entered a plea of "guilty" tothe third degree assault charge based on the same incident. He was sentenced in the justice court to sixmonths inthe county jail. Thereafter on May 17, 1974, defendant, represented by different counsel, withdrew hisprior plea of "guilty" and entered a plea of "not guilty" to the third degree assault charge in the justice court. Thereupon the state dismissed the third degree assault charge and filed a firstdegree assault charge based

on the same incident in the districtcourt.Defendant moved toquash the latter charge on the ground that 

### it placed defendant injeopardy a second 

### timeon the same charge in violation of the double jeopardy provisions of the federal and stateconstitutions. Affidavits were filed by the deputy county attorney, a paralegal officer of the county attorney's staff, and the victim. These affidavits are somewhat at variance concerning what prior arrangements had been made for the victim totestify and why he did not appear to testify on March 21on the former charge of firstdegree assault against defendant. After hearing, the district court granted defendant's motion to quash. The stateappeals. The Fifth Amendment's prohibition against placing a person twice injeopardy for the same offense applies to statecourt criminal proceedings through the "due process1'clause of the Fourteenth Amendment. Benton v. Maryland (1969) 395 U.S. 784, 89 S.Ct. 2056, 23 L ed 2d 707. This proscription is not only against being twice punished, but also against being twice put injeopardy. United States v. Ball (1896) 163 U.S. 662, 16 S.Ct. 1192, 41L.ed. 300; United States v. Jorn (1971) 400 U.S. 470, 91S.Ct. 547, 27 L ed 2d 543. It thus becomes necessary todetermine when jeopardy attaches ina Montana statecourt criminal prosecution. Montana statutes provide that jeopardy attaches in a criminal trial after the firstwitness is sworn. The 1969 Montana legislature so provided in Ch. 228, Session Laws of 1969, codified

as section 94-6808.3, R.C.M. 1947. This Montana statutewas derived from the Model Penal Code. 

### B 1.08, Model Penal Code, Proposed Official Draft, 1962. The American Law Institute, in formulating thisportion of the Model Penal Code, determined that jeopardy customarily attaches in nonjury cases upon swearing the first witness (seeAnno. 49 ALR3d 1039); and concluded that no validrationale exists forjeopardy attaching ata different time in

a jury trial. The Montana legislature in 1969 adopted this standard of when jeopardy attaches. The 1973Montana legislature, meeting after adoption of the 1972 Montana Constitution, again considered this state's criminal statutes on former prosecutions and double jeopardy. This legislature reenacted section 94-6808.3, R.C.M. 1947, providing thatjeopardy attaches ina criminal trialafter the first witness is sworn. Section 95-1711, R.C.M. 1947. The federal rule, unlike theMontana statute, provides that incriminal trials in the federal courts jeopardy attaches when the jury is selected and sworn. Downum 

### v. United States, (1963) 372 U.S. 734, 83 S.Ct. 1033, 10L ed 2d 100. Whether the

source of this rule lies inthe rule making power of the United States Supreme Court over federal court proceedings or constitutes

a pronouncement of double jeopardy standards of the United States Constitution 

### is unclear. Thus the constitutionality of the Montana statute providing thatjeopardy attaches when the firstwitness is sworn is squarely presented. Defendant contends theMontana statute isunconstitutional because it violates the double jeopardy standards of the United States Constitution 

### as enunciated ina series of United States Supreme Court decisions, principally Downum v. United States (1963), supra; Duncan 

### v. Louisiana (1968), 391 U.S. 145, 88 S.Ct. 1444, 20 L ed 2d 1412; Illinois

### v. Somerville (1973), 410 U.S. 458, 93 S.Ct. 1066, 35 L ed 2d 425, 433, 434, and Serfass v. United States (1975


# -U.S. 

## , 43 L ed 2d 265, 95 S.Ct. 

# - 

# . Although there is language inthese opinions that supports this conclusion, the facts and issues in these cases do not inour opinion set up a rigid, immutable constitutional rule tobe applied mechanically indeterminingwhether statelaws conform. Although constitutional opinions of the United States Supreme Court arenecessarily painted with a broad brush, the language cannot be interpreted ina factual vacuum. As the United States Supreme Court observed in Somerville incommenting on itsholding ina prior case: "While it 

### ispossible toexcise various portions of the plurality opinion to support the result reached below, divorcing the language from the factsof the case serves only todistort its holdings." Each of the cases noted inthe preceding paragraph on which the defendant relies is clearlydistinguishable from the instant case and does not present the issue with which we are here confronted. Downum involved a trialinfederal court where jeopardy had clearly attached under the federal rule. Duncan involved the right totrial by jury, not double jeopardy. Somerville involved a statecriminal trialwhere jeopardy had clearly attached under a statestatuteproviding that jeopardy attached when the former prosecution was "terminated improperly after the jury was impaneled and sworn", the federal rule. (For the text of the statute see People v. Somerville, 88 Ill.App.2d 212, 232 N.E.2d 115). Serfass involves a prosecution in federal court where the indictment was dismissed by pretrial order and defendant had not yet been put totrialbefore the trier of the facts. Our inquiry here focuses on whether the federal rule is of constitutional dimensions precluding state legislation on the subject. Or stated another way, is the federal rule so fundamentaltothe American system of justice that the "due process" clause of the Fourteenth Pmendment mandates its application to state court criminal proceedings? Weperceive no inherent 

### meritinthe federal rule over Montana's statelaw. It has been said the federal rule isdesigned toprevent prosecutorial manipulation. Illinois v. Somerville,supra. It has further been said that the federal rule guarantees the defendant his valued right tohave his trial completed before the tribunal and jury selected for his case. Wade v. Hunter, (1949) 336 U.S. 684, 93 L.Ed 975; United States v. Jorn, supra. We failto 

### see inwhat manner the federal rule protects against these abuses 

### tc a greater extent than Montana law. Prosecutorial manipulation can be effected asreadily under one rule

asunder the other. If bent on manipulation, a federal prosecutor can move todismiss after the jury is selected but before it is sworn, as readily asa stateprosecutor can move todis

### miss after the jury is sworn but before the firstwitness 

### is called. In eithercase, the real protection against prosecutorial manipulation is the discretion of the trialjudge ingranting or denying dismissal. Here, for example, the judge could have, but did not, dismiss with prejudice. Nor do we see any greater protection inthe federal rule

as far as securing todefendant the right to have his trialcompleted before the court and jury selected totryhis case. Montana adheres to this principle also. It alldepends on when the trial is considered tohave commenced--whether on selection and swearing of the jury as inthe federal courts, or on swearing the firstwitness as inMontana state courts. We find no substantial difference between the two rules. Montana policy asenunciated by its legislature is that the trial does not startuntil the firstwitness is sworn. Sound policy

reasons exist for this rule, principally that the jury as the trierof the facts has nothing toconsider until the first

### witness is called and sworn. This appears entirely consistent with the constitutional standard thatjeopardy does not attachuntil the defendant has been put totrialbefore the 

### trier of the facts.Serfass

### v. United States (1975), supra. And asthe united States Supreme Court observed in Somerville: "Federal courts should not be quick toconclude that simply because a stateprocedure does not conform tothe corresponding federal statute or rule, it does not servea legitimate statepolicy." For these reasons, 

### we conclude that theMontana statute does not violate United States constitutional standards of double jeopardy. Neither does the statute violate the double jeopardy provision of the 1972 Montana Constitution, Art. 11, Section 25. This provision does not definewhen jeopardy attaches leaving the legislature free tomake that determination. The legislature has done so by enactment of the statutes heretofore noted. In so doing it has nullified any suggestion found in the language of State

### v. Gaimos (1916) 53 Mont. 118, 162 P. 596, that jeopardy attaches upon impaneling and swearing thejury. This cause isremanded tothe district court of Yellowstone County for further proceedings.

Justice We concur: 

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## ---------"- -'L Chief Justice