No. 83-319 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsROY XANKINS, 

Defendant and Appellant. 

APPEAL FROM: District Court of the First Judicial District, 

Inad For the County of Lewis & Clark, 

The Honorable Gordon Bennett, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Ann L. Smoyer, Helena, Montana 

For Respondent: 

Mike Greely, Attorney General, Helena, Montana 

Mike McGrath, County Attorney, Helena, Montana 

Submitted on Briefs: January 26, 1984 

Decided: April 30, 1984 

Filed: 4Pi( ,i 1984 

Clerk 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court. 

The defendant, Roy Hankins, was charged on June 30, 

1982, in the District Court of the First Judicial District, 

with the felony offense of trafficking in the unlawfully 

obtained body parts of a protected species. On August 27, 

1982, Hankins entered a plea of not guilty. On March 9, 

1983, a jury found Hankins guilty of the offense charged. 

Hankins appeals from the jury verdict. We affirm. 

At the outset, we note certain facts relevant to this 

appeal : 

(1) In order to sell or transfer a bobcat pelt the 

pelt must bear a tag issued by a warden from the Fish, 

Wildlife and Parks Department. The tag is designed so that 

it cannot be removed without damaging the tag. 

(2) During the trapping season involved in this case, 

each licensee was allowed one bobcat. 

(3) The bobcat trapping season ran from December 1, 

1981 to February 15, 1982 and there were ten days from the 

close of the season to tag a pelt. 

On February 23, 1983, two days before the end of 

tagging, Hankins and his wife, Nancy, had game warden Jim 

Bird in Townsend tag a bobcat pelt with tag number 707 for 

Nancy Hankins. Bird later testified that the pelt "was old 

and dried out, and the fur was very short." That same day 

Roy Hankins appeared at the Fish, Wildlife and Parks 

warehouse in Helena with a bobcat pelt. The State later 

contended at trial that the pelt Bankins presented in Helena 

was the same pelt he had tagged earlier in Townsend. 

Hankins received tag number 1901 from the Helena warehouse 
issued to Hankins himself as licensee. 

Subsequently, Hankins sold a pelt bearing tag number 

1901 to Bill Summers for $130. Summers in turn sold the 

pelt to Pacific Hide and Fur for $10 or $15 because the 

buyer at Pacific Hide and Fur considered the pelt to be of 

poor quality. 

Thereafter, Warden Jim Bird of Townsend examined the 

pelt with tag number 1901 and later testified at trial that 

it was the same pelt he had tagged at Townsend with tag 

number 707. Bird also learned that on about March 18, 1982 

Hankins sold a high quality pelt to Pacific Hide and Fur for 

$200. This pelt, which Bird later testified he had never 

seen before, bore tag number 707. Bird also testified at 

trial that tag number 707 showed signs of tool marks and 

appeared to have been pried off. 

As a result of the foregoing occurrences Hankins was 

charged and convicted by a jury of violating Section 

87-3-111, MCA, trafficking in the unlawfully obtained body 

parts of a protected species, a felony. Hankins was 

sentenced to serve one year in the Montana State Prison all 

of which was suspended if Hankins spent ten week-ends in the 

Lewis and Clark jail, paid a fine of $1,000 and forfeited 

his license to hunt, fish or trap for two years. 

The first issue Hankins raises on appeal is whether 

the District Court erred in its instructions to the jury. 

Appellant contends that because the information referred to 

"bobcats"-- plural, the Distict Court should have instructed 

the jury that they had to find that more than one bobcat was 

illegally taken in order to convict the appellant. 

Although the information did state that appellant 
engaged in a common scheme to traffic in the "body parts" of 

unlawfully taken "bobcats," the jury instruction which 

referred to those terms singularly does not constitute 

reversible error. In State ex rel. McKenzie v. District 

Court (1974), 165 Mont. 54, 525 P.2d 1211, this Court held 

that the purpose of an information is to inform the 

defendant of what he is charged. "It is not the function of 

the information to anticipate or suggest instructions to the 

jury . . . It is a notice device, not a discovery device." 

State ex rel. McKenzie, supra, 165 Mont. at 63. 

Appellant also asserts that the District Court's jury 

instructions failed to distinguish between the felony and 

misdemeanor offenses under Section 87-3-111(1) and (4), MCA. 

The misdemeanor portion of Section 87-3-111, MCA, provides: 

"It is hereby made unlawful for any 

person to purchase, sell, offer to sell, 

possess, ship or transport any game, 

fish, game bird, game animal or 

f urbear ing animal or part thereof 

protected by the laws of this state, 

whether belonging to the same or 

different species from that native to the 

State of Montana, except as specifically 

permitted by the laws of this State." 

The felony portion of Section 87-3-Ill, MCA, provides: 

"Any person engaging in the activities 

prohibited in subsection (1) in 

furtherance of a scheme to traffic in the 

body parts of unlawfully taken species is 

guilty of a felony and shall be punished 

by a fine of $10,000 or imprisonment in 

the state prison for a term of 1 year or 

both. " 

When read together, the jury instructions clearly draw a 

distinction between the felony offense charged and the 

lesser included misdemeanor offense. Court's instruction 

number 1 provided, in pertinent part: "The Defendant, Roy 

Hankins, is, by information a.ccused of trafficking in 
unlawfully obtained body arts of a protected species, a 

felony . . . " Court's instruction number 10 provided, in 

pertinent part: 

"You are instructed that to prove the 

offense charged in this case, the State 

must prove the following propositions 

beyond a reasonable doubt: 

"First: That the bobcat pelt bearing tag 

#1901, or the pelt bearing tag $707, was 

unlawfully taken. 

"Second: That Roy Hankins purposely or 

knowingly purchased, sold, offered to 

sell, possessed, shipped or transported 

an unlawfully taken bobcat pelt, and that 

unlawfully taken pelt was the pelt 

bearing tag #1901, or the pelt bearing 

tag #707. 

"Third: That Roy Hankins committed or 

performed the acts described in the 

preceding paragraph in furtherance of a 

common scheme to traffic in the body 

parts of unlawfully taken species." 

Court's instruction number 14 distinguished between the 

felony charged and the misdemeanor offense by providing, in 

part: 

"You are instructed that to prove the 

misdemeanor offense of unlawfully buying, 

selling, possessing or transporting game, 

the State must prove the following 

propositions beyond a reasonable doubt: 

"First: That the bobcat pelt bearing tag 

#1901, or the pelt bearing tag #707, was 

unlawfully taken; and 

"Second: That Roy Hankins purchased, 

sold, offered to sell, possessed, shipped 

or transported an unlawfully taken bobcat 

pelt, and that unlawfully taken pelt was 

the pelt bearing tag #1901, or the pelt 

bearing tag #707. 

Court's instruction number 14 on the misdemeanor offense 

properly omitted the "common scheme" language required for a 

felony conviction. Moreover, "common scheme" was 

accurately defined by court's instruction number 7 which 
provided: 

"'Common scheme' means a series of acts 

or omissions motivated by a purpose to 

accomplish a single criminal objective or 

by a common purpose or plan which results 

in the repeated commission of the same 

offense or affects the same person or the 

same persons or the property thereof." 

Although appellant asserts the court's instruction on 

"common scheme" was an inadequate statement of the law, the 

instruction was taken directly from Section 45-2-101(7), 

MCA. On several previous occasions this Court has rejected 

challenges to jury instructions when those instructions 

restated statutory language. State v. French (1975), 166 

Mont. 196, 531 P.2d 373; State v. Dunn (1970), 155 Mont. 

319, 472 P.2d 288. Likewise, the court's instruction on the 

definition of "trafficking" was taken directly from Section 

87-3-111, MCA, and did not constitute reversible error. 

The District Court also did not err by refusing 

defendant's proposed jury instruction number 17 which set 

forth the duties of fish and game wardens. Where the 

instruction has no relevance to the case it serves no 

purpose but to confuse the jury. "An instruction should not 

be given if it is not relevant nor material to the evidence 

or issues in the case." State v. Brooks (1967), 150 Mont. 

399, 436 P.2d 91. The fish and game wardens were not on 

trial in this case and appellant's proposed jury instruction 

was not relevant to the issues presented at trial. 

A review of the jury instructions in their entirety 

indicates the jury was fully and fairly instructed on the 

applicable law and we cannot reverse the decision of the 

District Court. State v. Higley (Mont. 1980), 621 P.2d 
Next appellant asserts that the information was 

legally insufficient and defective on its face. 

Specifically, appellant argues the language of the 

information insufficiently apprised the appellant of the 

charges that were being brought against him. 

The information stated the offenses essentially in 

terms of the statute with additional allegations of time and 

place. Montana follows the general rule that an information 

is sufficient if it properly charges an offense in the 

language of the statute describing the offense. State ex 

rel. Glantz v. District Court (1969), 154 Mont. 132, 461 

P.2d 193. "An information need only be sufficient to 

apprise the accused of the crime charged. It need not be 

perfect." State v. Coleman (1978), 177 Mont. 1, 22, 579 

P.2d 732, 745. Thus, the information in the case was 

legally sufficient and not defective on its face. 

The appellant also maintains that the District Court 

erred in failing to rule on appellant's motion to dismiss on 

grounds that the information was unsupported by probable 

cause. However, the record shows that the District Court 

denied appellant's motion to dismiss on March 7, 1983 

immediately preceding trial by jury. 

Appellant also argues that the District Court erred in 

denying appellant's motion for a continuance. Eight months 

elapsed from the time of the filing of the information to 

the day of trial and the appellant has failed to demonstrate 

any prejudice that was caused by the District Court's denial 

of a continuance. "Motions for continuance are addressed to 

the discretion of the trial court and the granting of a 

continuance has never been a matter of right. The District 
Court cannot be overturned on appeal in absence of a showing 

of prejudice to the mova.nt." State v. Van Natta (Mont. 

Finally appellant argues the District Court erred in 

its sentencing of the appellant. Specifically, appellant 

inaintains the District Court erred by, (1) failing to order 

a presentence investigation; (2) failing to mention that 

appellant was to lose his trapping privileges; (3) charging 

the appellant by information with a felony but including 

misdemeanor sanctions in appellant's sentence; and (4) the 

sentencing was erroneous because potential punishment was 

not set forth in the information. 

Section 46-18-111, MCA, provides in pertinent part: 

"No defendant convicted of a crime which 

may result in commitment for one (1) year 

or more in the state prison, shall be 

sentenced or otherwise disposed of before 

a written report of investigation by a 

probation officer is presented to and 

considered by the court, unless the court 

deems such report unnecessary." (Emphasis 

added. ) 

The plain language of the statute indicates the necessity of 

a presentence investigation is within the sound discretion 

of the District Court and appellant's assertion that the 

District Court erred by refusing to conduct an investigation 

is without merit. Moreover, the District Court clearly 

explained to appellant its reasons for the sentence it 

imposed and appellant declined to object or respond to those 

reasons with any mitigating circumstances he could find 

State v. Bretz (Mont. 1979), 605 P.2d 974, 36 St.Rep. 1037. 

The District Court did not err by failing to mention 

appellant would lose his trapping privileges. The District 

Court clearly stated at sentencing that it would "impose the 
sanctions set forth in Section 87-1-102, MCA," which 

includes the loss of trapping privileges. 

Also, there is no merit to appellant's contention that 

the District Court could not use sentencing options in the 

felony which it could in the misdemeanor. Here, the felony 

includes the misdemeanor. Under Section 87-3-111, MCA, the 

State had to first prove the misdemeanor offense before it 

could prove the felony offense. Thus, the loss of hunting, 

fishing and trapping privileges was properly applied to the 

appellant. 

Lastly, the sentence was not improper because the 

information failed to set forth appellant's potential 

punishment. Section 46-11-401, MCA, which provides what the 

charge shall contain, does not require the State to inform 

the accused of the potential punishments for the offense. 

The State sustained its burden of proof and we find no 

reversible error. The conviction is affirme 

&,L

P 

Justice 

/ 

We concur: 

3~d4 / 

Chief Justice 

Justices 

Mr. Justice Daniel J. Shea concurs and will file a 

written concurrence at a later time. 
SPECIALLY CONCURRING OPINION OF 

MR.. JUSTICE DANIEL J. SHEA 

STATE OF MONTANA 

VS . 

ROY HANKINS 

CLEW OF SUPRMWE @8UR'I; 

STATE OF NION1'LkNA 

DATED: January 6, 1985 
Kr. Justice Daniel J. Shea specially concurring: 

1 agree with the majority's decision to affirm the 

defendant's conviction. However, I cannot agree with the 

mz jority ' s ruling that the jury instructions on "common 

scheme" and "traffickins," which set forth statutory language 

verbatin, are valid solely because they are drafted in 

statutory language. When a statute upon which s jury 

instruction is based is amgiguous or difficult to understand, 

that jury instruction is also usually ambiguous or unclear. 

Merely setting forth statutory Language does not always 

fulfill the trial court's obligation to fully and accurately 

instruct the jury. Additional.. or different instructions may 

be needed in order to insure that the jury receives the 

clearest picture possible of the pertinent legal issues.