No. 14397 

IN THE SUP- COW OF THE STATE OF mANA 

1979 

THE S'CATE OF rnANA, 

Plaintiff and Respondent, 

-VSYOLANIX EXAKELY, 

Defendant and Appellant. 

Appeal from: District Court of the Eighteenth Judicial District, , 

Honorable Jack D. Shanstram, Judge presiding. 

Counsel of Record: 

For Appellant: 

Bolinger, Higqins and Andes, Bozeman, Mmtana 

Roy Andes argued, Bozeman, Montana 

Fort Respondent : 

Hon. Mike Greely, Attorney General, Helena, Wntana 

Donald White, County Attorney, Bozm, Montana 

Mike Lilly argued, Deputy County Attorney, Bozeman, Wntana 

Sutmitted: March 13, 1979 

Decided: MAR 2 21771 

Filed : MAR 2 "979 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of 

the Court. 

This is an appeal by defendant from her conviction of 

criminal trespass to property following a jury trial in the 

District Court of Gallatin County. 

The incident forming the basis of the charge occurred 

on May 14, 1977, on land owned by the Montana Fish and Game 

Department near Three Forks, Montana. The complaint charged 

that defendant Yolanda Blakely "knowingly entered or remained 

unlawfully, and allowed cattle to enter and remain upon the 

premises . . ." in violation of section 94-6-203(1)(b), R.C.M. 

1947. This statute is now codified as section 45-6-203(1)(b) MCA. 

Defendant was tried and convicted of this misdemeanor in 

justice court. She appealed this conviction to the District 

Court of Gallatin County. She was tried de novo, convicted by 

jury, and sentenced to pay a fine of $400. She now appeals this 

latter conviction to this Court. 

Defendant lives with her husband and family on a tract 

of land near Three Forks, Montana where they raise cattle. Adjoining their property on the west is land owned by the Gillespies; 

adjoining the Gillespie land on the west is a tract of land owned 

by the Montana Fish and Game Department. All three tracts are 

bordered on the south by Carpenter's Lane, an unpaved rural road. 

The Fish and Game property was fenced with gates at both 

the southeast and southwest corners that border Carpenter's Lane. 

In April 1977 the southeast gate was locked and wired shut. Signs 

were posted at both gates containing Fish and Game Department 

rules and regulations. One of these rules stated "Livestock 

grazing allowed only with a lease." The sign on the southeast 

gate had been removed prior to the alleged offense, but the sign 

on the southwest gate had remained in place. Defendant had read 

at least one of the signs. 

During the early part of 1977 because of a feed shortage, 
defendant allowed her cattle to graze along Carpenter's Lane. 

The State's evidence indicated that both before and after the 

signs were posted but before May 14, 1977, defendant had been 

seen herding her cattle along Carpenter's Lane and then onto the 

Fish and Game land through the southeast gate; that her cattle 

had been seen on the property; and that she had been seen driving 

her cattle away from the property. Defendant denied having ever 

driven her cattle onto that tract of Fish and Game land. 

Defendant testified that on May 14, 1977 she had been 

grazing her cattle along Carpenter's Lane but about 5:30 p.m. 

had locked them in a 60 acre pasture. A Fish and Game warden 

patrolling the area noticed that the gate on the Fish and Game 

property was down and cattle were grazing on the property. He 

went to defendant's house and told defendant her cattle were on 

the Fish and Game property. 

Defendant contends she did not intentionally place her 

cattle on the Fish and Game property. She asserts that since 

her fence and the Fish and Game fence and gate were in such poor 

condition, the cattle must have wandered out of her property and 

onto the Fish and Game land. Because of a rainstorm and because 

she was tired, defendant did not remove her cattle until early 

the next morning. 

At trial there was no direct evidence that defendant had 

entered the Fish and Game property on May 14, 1977 or that she 

had driven her cattle onto the Fish and Game land on that date. 

The evidence was entirely circumstantial. 

Defendant has raised several specifications of error. 

We consider two issues controlling: (1) the sufficiency of the 

evidence to support the conviction, and (2) whether trespassing 

cattle violates the statute. 

The complaint charges defendant with violation of section 

94-6-203 (1) (b) , R.C.M. 1947, now section 45-6-203 (1) (b) MCA, by 
reason of two acts: (1) knowingly entering and remaining 

unlawfully on Fish and Game property, and (2) allowing cattle 

to enter and remain upon Fish and Game property. 

Section 94-6-203 (1) (b) , R.C.M. 1947 provides : 

"Criminal trespass to property. (1) A person 

commits the offense of criminal trespass to 

property if he knowingly: 

"(b) enters or remains unlawfully in or upon 

the premises of another." 

A companion statute defines the meaning of the phrase 

"enter or remain unlawfully": 

"94-6-201. Definition of 'enter or remain unlawfully'. 

A person enters or remains unlawfully in or upon . . . premises when he is not licensed, in;ited, or-otherwise privileged to do so. A person who enters or 

remains upon land does so with privilege unless 

notice is personally communicated to him by an authorized person or unless such notice is given by posting 

in a conspicuous manner." 

Defendant did not commit criminal trespass in violation 

of the statute by knowingly entering or remaining unlawfully on 

Fish and Game property in this case. It is undisputed that the 

property was open to the public. Warden Hagenston of the Fish 

and Game Department so testified. Defendant as a member of the 

public was entitled to enter and remain upon the property and 

could commit no crime or unlawful act in so doing. Furthermore 

there is no evidence that defendant was on the Fish and Game 

property on the date charged, May 14, 1977. There is a complete 

failure of proof of unlawful entry or unlawfully remaining on 

the property by the defendant. 

The second act charged against the defendant, viz. allowing cattle to enter and remain upon Fish and Game property, is 

not a crime under the statute. There is no mention of trespassing 

cattle in the statute nor liability of the owner thereof for 

violation of the statute. The former statute making herding of 

cattle onto another's land a criminal trespass was repealed in 
1973. Ch. 513, Sec. 32, 1973 Laws of Montana. The crossreference table relating the repealed statute to the present 

statute does not expand the scope or plain language of the 

present statute under which the defendant was charged. This 

table was not enacted by the legislature and has no force of 

law. The legislature simply repealed the old statute and 

enacted a new one that makes no mention of a crime by trespassing livestock. The new statute clearly applies only to a 

"person" by its express language and makes only personal entry 

or remaining on the premises by a person a crime. 

The landowner is not left without remedy for trespassing 

cattle under Montana law. A civil remedy for damages is provided. Section 46-1409, R.C.M. 1947, now section 81-4-215 MCA. 

A criminal remedy for malicious mischief is provided where a 

person herds cattle onto another's land and causes damage. 

Section 94-6-102, R.C.M. 1947, now section 45-6-101 MCA. Available remedies under Montana law do not include a criminal sanction 

under section 94-6-293(1)(b), R.C.M. 1947, now section 45-6-203(1)(b) 

MCA . 

The remaining specifications of error need not be discussed in this opinion as none would change the result in the case. 

Reversed and dismissed. 

................................ Chief Justice