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, Special Assistant Attorney 

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 in this case is whether 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 first degree assault arising out of the alleged 

stabbing of one Larry Catlin. Defendant entered a plea of "not 

guilty". The case was set for trial on March 21, 1974, in the 

district court of Yellowstone County. 

On the trial date, a jury was duly selected and sworn. 

The district judge 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 

to dismiss the action on the ground that a new and different charge, 

specifically third degree assault, was being filed against the 

defendant in justice court. The substantial reason for the dismissal was that the victim of the alleged assault was not available to testify. The victim, a resident of Wyoming, had not been 

subpoenaed. The state's motion to dismiss was granted without 

objection. 

Defendant entered a plea of "guilty" to the third degree 

assault charge based on the same incident. He was sentenced in 

the justice court to six months in the county jail. 

Thereafter on May 17, 1974, defendant, represented by 

different counsel, withdrew his prior 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 first degree assault charge based 

on the same incident in the district court. 
Defendant moved to quash the latter charge on the ground 

that it placed defendant in jeopardy a second time on the same 

charge in violation of the double jeopardy provisions of the 

federal and state constitutions. 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 to testify and why he did not appear to testify on March 

21 on the former charge of first degree assault against defendant. 

After hearing, the district court granted defendant's 

motion to quash. The state appeals. 

The Fifth Amendment's prohibition against placing a person twice in jeopardy for the same offense applies to state court 

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 in jeopardy. 

United States v. Ball (1896) 163 U.S. 662, 16 S.Ct. 1192, 41 L.ed. 

300; United States v. Jorn (1971) 400 U.S. 470, 91 S.Ct. 547, 27 

L ed 2d 543. It thus becomes necessary to determine when jeopardy 

attaches in a Montana state court criminal prosecution. 

Montana statutes provide that jeopardy attaches in a criminal trial after the first witness 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 statute was derived from the Model Penal Code. B 1.08, Model Penal Code, Proposed Official Draft, 1962. The American Law Institute, in formulating this portion of the Model Penal Code, determined that jeopardy customarily attaches in nonjury cases upon swearing the first 

witness (see Anno. 49 ALR3d 1039); and concluded that no valid 
rationale exists for jeopardy attaching at a different time in 

a jury trial. The Montana legislature in 1969 adopted this 

standard of when jeopardy attaches. 

The 1973 Montana 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 that jeopardy attaches in a criminal trial after the first 

witness is sworn. Section 95-1711, R.C.M. 1947. 

The federal rule, unlike the Montana statute, provides 

that in criminal 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, 10 L ed 2d 100. Whether the 

source of this rule lies in the 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 

that jeopardy attaches when the first witness is sworn is squarely 

presented. 

Defendant contends the Montana statute is unconstitutional 

because it violates the double jeopardy standards of the United 

States Constitution as enunciated in a 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 in these opinions that supports this conclusion, the facts 

and issues in these cases do not in our opinion set up a rigid, immutable constitutional rule to be applied mechanically in determining 
whether state laws conform. Although constitutional opinions 

of the United States Supreme Court are necessarily painted 

with a broad brush, the language cannot be interpreted in a 

factual vacuum. As the United States Supreme Court observed in 

Somerville in commenting on its holding in a prior case: 

"While it is possible to excise various portions 

of the plurality opinion to support the result 

reached below, divorcing the language from the 

facts of the case serves only to distort its 

holdings." 

Each of the cases noted in the preceding paragraph on 

which the defendant relies is clearly distinguishable from the 

instant case and does not present the issue with which we are 

here confronted. Downum involved a trial in federal court where 

jeopardy had clearly attached under the federal rule. Duncan 

involved the right to trial by jury, not double jeopardy. Somerville involved a state criminal trial where jeopardy had clearly 

attached under a state statute providing 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 to trial before 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 fundamental to the American system of justice that the "due process" 

clause of the Fourteenth Pmendment mandates its application to 

state court criminal proceedings? 

We perceive no inherent merit in the federal rule over 

Montana's state law. It has been said the federal rule is designed to prevent prosecutorial manipulation. Illinois v. Somerville, 
supra. It has further been said that the federal rule guarantees the defendant his valued right to have 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 fail to see in what manner the federal rule protects 

against these abuses tc a greater extent than Montana law. Prosecutorial manipulation can be effected as readily under one rule 

as under the other. If bent on manipulation, a federal prosecutor can move to dismiss after the jury is selected but before 

it is sworn, as readily as a state prosecutor can move to dismiss after the jury is sworn but before the first witness is called. 

In either case, the real protection against prosecutorial manipulation is the discretion of the trial judge in granting or denying dismissal. Here, for example, the judge could have, but did 

not, dismiss with prejudice. 

Nor do we see any greater protection in the federal rule 

as far as securing to defendant the right to have his trial completed before the court and jury selected to try his case. Montana adheres to this principle also. It all depends on when the 

trial is considered to have commenced--whether on selection and 

swearing of the jury as in the federal courts, or on swearing 

the first witness as in Montana state courts. 

We find no substantial difference between the two rules. 

Montana policy as enunciated by its legislature is that the trial 

does not start until the first witness is sworn. Sound policy 

reasons exist for this rule, principally that the jury as the 

trier of the facts has nothing to consider until the first witness is called and sworn. This appears entirely consistent with 

the constitutional standard that jeopardy does not attach until 

the defendant has been put to trial before the trier of the facts. 
Serfass v. United States (1975), supra. And as the united 

States Supreme Court observed in Somerville: 

"Federal courts should not be quick to conclude 

that simply because a state procedure does not 

conform to the corresponding federal statute or 

rule, it does not serve a legitimate state policy." 

For these reasons, we conclude that the Montana 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 define when jeopardy attaches leaving the 

legislature free to make 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 the jury. 

This cause is remanded to the district court of Yellowstone County for further proceedings. 

Justice 

We concur: 

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Chief Justice