No. 80-419 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

STATE OF MONTANA, 

Plaintiff and Appellant, 

VS . 

JAMES ALBERT HOUSER, 

Defendant and Respondent. 

Appeal from: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin. 

Honorable W. W. Lessley, Judge presiding. 

Counsel of Record: 

For Appellant: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Donald White, County Attorney, Bozeman, Montana 

For Respondent: 

McKinley T. Anderson, Bozeman, Montana 

Submitted on briefs: March 3, 1981 

Decided :APH 8 - j:-\~, 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

This is an appeal from a judgment of the District 

Court of the Eighteenth Judicial District, Gallatin County, 

granting defendant's motion to dismiss. 

On August 26, 1980, the deputy Gallatin County 

attorney filed an information charging defendant with the 

offense of criminal mischief in violation of section 

45-6-101(1)(a), MCA. The facts alleged were that on or 

about August 21, 1980, defendant purposely or knowingly 

injured and damaged a 1980 Mercury automobile belonging to 

John Unwin by using the vehicle he was driving, a 1979 

Chevrolet, to strike and force Unwin's car into a parked AMC 

Hornet, causing damage to the vehicles in excess of $150. 

Based upon the above facts, on August 22, 1980, three 

traffic citations were issued defendant charging him with 

failing to report an accident in violation of section 

61-7-108, MCA; failing to stop at an accident in violation 

of section 61-7-106, MCA; and reckless driving in violation 

of section 61-8-301, MCA. On August 26, 1980, defendant 

appeared in Bozeman City Court and pleaded guilty to the 

first two charges and not guilty to the charge of reckless 

driving. Defendant was fined $50 for each guilty plea 

entered and, subsequently, was tried and convicted of 

reckless driving. 

On September 5, 1980, defendant filed a motion to 

dismiss the criminal mischief charge on the grounds that (1) 

the information does not state a public offense; (2) the 

District Court does not have jurisdiction of the matter; and 

(3) that the State of Montana is barred from any further 

prosecution by reason of section 46-11-504, MCA. Without 
stating a reason, the District Court granted defendant's 

motion. The State appeals. 

The first two grounds upon which defendant based his 

motion are without merit. Therefore, the question on appeal 

is limited to whether the State of Montana is barred from 

prosecuting the criminal mischief charge by reason of 

section 46-11-504, MCA. 

The State contends section 46-11-504, MCA, deals with 

conduct constituting an offense within the jurisdiction of 

two or more courts. State ex rel. Rasmussen v. District 

Court (1980), - Mont . , 615 P.2d 231, 37 St.Rep. 1498, 

held that the District Court does not have jurisdiction over 

an ordinary misdemeanor connected together in its commission 

with a felony. 

In this case, the felony charge is within the 

exclusive jurisdiction of the District Court and the 

misdemeanors are within the exclusive jurisdiction of the 

Justice Court. Different conduct was alleged in both courts 

and, thus, there was no violation of section 46-11-504, MCA. 

If the dismissal of the District Court is allowed to stand, 

the State would be precluded from ever obtaining the 

conviction of a defendant for both felonies and 

misdemeanors connected in commission as part of the same 

transaction. 

Defendant argues that the State is barred from 

further prosecution of him by reason of section 46-11-504, 

MCA, which provides: 

"When conduct constitutes an offense within 

the concurrent jurisdiction of this state and 

of the United States or another state or of 

two courts of separate, overlapping, or 

concurrent jurisdiction in this state, a 

prosecution in any such other jurisdiction is 
a bar to a subsequent prosecution in this 

state under the following circumstances: 

"(1) The first prosecution resulted in an 

acquittal or in a conviction as defined in 

section 46-11-503 and the subsequent 

prosecution is based on an offense arising 

out of the same transaction . . ." 

Defendant entered guilty pleas in City Court to 

failing to report an accident and failing to stop at an 

accident. The subsequent prosecution of criminal mischief 

by the State of Montana arises out of the same transaction 

to which defendant has been found guilty in City Court. 

Therefore, defendant argues that convictions of these 

offenses bar the subsequent prosecution of criminal mischief 

by the State. 

Section 46-11-504(1), MCA, provides that the 

prosecution of a case is a bar to a subsequent prosecution 

if the first prosecution resulted in a conviction and the 

subsequent prosecution is based on an offense arising out of 

the same transaction. Section 46-11-501(a), MCA, provides 

that the term "same transaction" includes conduct consisting 

of a series of acts or omissions which are motivated by a 

purpose to accomplish a criminal objective and which are 

necessary or incidental to the accomplishment of that 

objective. 

In Yother v. State (1979), Mont. , 597 P.2d 

79, 82, 36 St.Rep. 1192, 1196, we stated: 

"The United States Supreme Court has decided 

a subsequent prosecution is barred by a prior 

conviction if the subsequent prosecution - is 

------- based upon ----- the same acts ---- as was the prior 

conviction, if the subsequent prosecution --- is 

for an offense of which the offense in the -- 

ELF2f-------------------------------- conviction is a lesser included 

offense, and if the subsequent prosecution is 

in a court which is part of the same .................... --------------- 

sovereign -- as the court involved in the prior 

conviction. . ." (Emphasis supplied.) 
See Waller v. Florida (1970), 397 U.S. 387, 390, 394-395, 90 

S.Ct. 1184, 25 L.Ed.2d 435; see also United States v. 

Mechanic (8th Cir. 1971), 454 F.2d 849, 855; Turley v. 

Wyrick (E.D. Mo. 1976), 415 F.Supp. 87, 88; State v. Rook 

(1973), 14 0r.App. 211, 511 P.2d 1245, 1246. 

According to the statutes, to establish the offense 

of criminal mischief it is necessary to prove that a 

defendant (1) purposely or knowingly (2) injured, damaged or 

destroyed (3) property of another (4) without consent. 

Section 45-6-101, MCA. 

There may be some question as to the first two 

offenses charged. The charge of failing to report an 

accident requires proof that the driver of a vehicle 

involved in an accident failed to immediately give notice of 

such accident to the local police department. Section 

61-7-108, MCA. This offense is not part of the original 

transgression which antecedes it, but a second willful act. 

To establish failing to stop at an accident, the 

State must prove the driver of a vehicle involved in an 

accident failed to immediately stop and locate or notify the 

owner or operator of such vehicle of the name and address of 

the driver and owner of the vehicle causing the accident. 

Section 61-7-106, MCA. This charge has the same problems as 

a charge of failing to report an accident. 

However, to establish the crime of reckless driving 

the State must prove defendant operated a vehicle in a 

willful or wanton disregard for the safety of persons or 

property. Section 61-8-301, MCA. In this charge the acts 

that are concerned with the reckless driving are also those 

necessary to establish the felony crime of criminal 
mischief. A close scrutiny of the evidence in each case 

will establish that the "same transaction test" has been 

met. The subsequent prosecution of the criminal mischief 

charge is barred by section 46-11-504(1), MCA. 

The judgment of the District Court is affirmed. 

We concur: 

%&.G&g&Ge 

Chief JugticE