No. 80-419 INTHE SUPREME COURT OF THE STATE OF MONTANA 1981

STATE OF MONTANA, Plaintiff and Appellant,

VS

# . JAMES ALBERT HOUSER,Defendant and Respondent.

Appeal from: DistrictCourt of theEighteenth Judicial District, In and for theCounty of Gallatin. HonorableW. 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

## :APH8

# -j:-\~,

### Mr. JusticeGene B. 

### Dalydelivered theOpinion of theCourt. This 

### is an appeal from ajudgment of theDistrict Court of the Eighteenth Judicial District, Gallatin County, granting defendant'smotion todismiss. 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

### strikeand forceUnwin's car intoaparked AMC 

### Hornet, causing damage tothevehicles inexcess 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 firsttwo 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 recklessdriving. On September 5, 1980, defendant filed a motion to dismiss the criminalmischief charge on thegrounds that (1) 

### the information does not state a public offense; (2) the DistrictCourt does not havejurisdiction of the matter; and (3) that the State of Montana 

### is barred from any further prosecution by reason of section 46-11-504, MCA. 

### Withoutstating a reason, the District Court granted defendant's motion. The Stateappeals. The firsttwo grounds upon which defendant based his motion arewithoutmerit. Therefore, thequestionon appeal 

### is limited to whether the State of Montana 

### is barred from prosecuting the criminal mischief charge by reason of section46-11-504, MCA. The Statecontends section46-11-504, MCA, dealswith 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 DistrictCourt does not have jurisdiction over

an ordinarymisdemeanor 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 JusticeCourt. Different conduct was alleged inboth courts and, thus, therewas no violation of section46-11-504, MCA. If the dismissal of the DistrictCourt 

### 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 concurrentjurisdiction of this stateand of the United States or another state or of two courts of separate, overlapping, or concurrent jurisdiction in this state, 

### a prosecution in any suchotherjurisdiction 

### isa bar to a subsequent prosecution in this stateunder 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 subsequentprosecution of criminalmischief 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 subsequentprosecution 

### is based on an offense arisingoutof 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. InYother v. State (1979), Mont. 

## , 597 P.2d 79, 82, 36 St.Rep. 1192, 1196, we stated: "The United States Supreme Court has decided a subsequentprosecution 

### is barred by aprior conviction if the subsequent prosecution 

### is 

### - based upon the same acts aswas the prior 

### ------- ----- 

### ---- conviction, if the subsequentprosecution 

### is 

### --- for an offense of which the offense inthe -- conviction 

### is a lesser included 

## ELF2f-------------------------------- offense, and if the subsequentprosecution 

### is in a court which 

### is part of the same



### .................... 

### --------------- sovereign --asthe court involved inthe prior conviction. 

# .

# ." (Emphasissupplied.)SeeWaller 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), 140r.App. 211, 511P.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. Section45-6-101, 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 inan accident failedtoimmediately give noticeof such accident to the local police department. Section 61-7-108, MCA. This offense 

### is not part of the original transgressionwhich 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 toimmediately stopand locateor notify the

owner or operator of such vehicle of thename and address of the driver and owner of the vehicle causing the accident. Section61-7-106, MCA. This charge has the same problems as

a charge of failingtoreport 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 

### isbarred by section46-11-504(1), MCA. 

### Thejudgment of theDistrictCourt 

### is affirmed.

We concur: 

# %&.G&g&Ge

Chief JugticE