No. 87-309 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsHUGH THURMAN WHITE, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable John S. Henson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

William Boggs, Missoula, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Patricia J. Schaeffer, Asst. Atty. General, Helena 

Robert Deschamps, 111, County Attorney; Betty T. Wing, 

Deputy, Missoula, Montana 

Submitted on Briefs: Oct. 22, 1987 

Decided: February 16, 1988 

Filed: 

Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

Mr. White pled guilty in the District Court for the 

Fourth Judicial District, Missoula County, to a charge of 

felony theft. In this appeal, he challenges the jurisdiction 

of the State of Montana. We affirm. 

The issue is whether the District Court had jurisdiction over the offense. 

Mr. White worked for Mr. Rang, a Montana businessman, 

as a long distance truck driver. The parties stipulated to 

the following facts with respect to the issue of 

jurisdiction: 

That when Mr. White took possession of Mr. Rang's 

truck and left the state of Montana, he did so with 

authorization to do so--namely, he was employed by 

Mr. Rang, and he was supposed to drive his truck; 

that the way he left the state of Montana with the 

truck, that he had at that time no criminal intent; 

that subsequent to Mr. White's leaving Montana in 

early 1984 with the truck, that he was never again 

in Montana with the truck; that at some point in 

the late spring of 1984, by long distance telephone, Mr. Rang communicated to Mr. White his lack 

of authority to continue driving the truck; and 

that Mr. White thereafter used, concealed, or 

abandoned the truck in such a manner as to deprive 

the owner of the property; and that he did this at 

least in the states of Kentucky and Texas and 

possibly other states. 

Mr. White was arrested on this charge in Kentucky in 

April 1985. He originally pled innocent, and moved to dismiss on the basis that the Montana court had no jurisdiction. 

His motion was denied. After one day of trial, Mr. white 

changed his plea to guilty. After he was sentenced, he filed 

a motion to reconsider the adverse ruling on jurisdiction. 

That motion bras also denied. 
Did the District Court have jurisdiction over the 

offense? 

Section 46-2-101, MCA, sets forth the scope of Montana 

courts' jurisdiction: 

A person is subject to prosecution in this 

state for an offense which he commits while either 

within or outside the state by his own conduct or 

that of another for which he is legally accountable 

if: 

(a) the offense is committed either wholly or 

partly within the state; 

(b) the conduct outside the state constitutes 

an attempt to commit an offense within the state 

and an act in furtherance of the offense occurs in 

the state; or 

(c) the conduct within the state constitutes 

an attempt, solicitation, or conspiracy to commit 

in another jurisdiction an offense under the laws 

of this state and such other jurisdiction. 

(2) An offense is committed partly within 

this state if either the conduct which is an element of the offense or the result which is an 

element occurs within the state. In homicide, the 

"result" is either the physical contact which 

causes death or the death itself, and if the body 

of a homicide victim is found within the state, the 

death is presumed to have occurred within the 

state. 

(3) An offense which is based on an omission 

to perform a duty imposed by the law of this state 

is committed within the state, regardless of the 

location of the offender at the time of the 

omission. 

(4) This state includes the land and water 

and the air space above such land and water with 

respect to which the state has legislative 

jurisdiction. 

This statute extends Montana's jurisdiction to crimes which 

would not in the past have been within the State's jurisdiction. For example, $ 46-2-101(2), MCA, allows Montana to 

prosecute a homicide if a body is found within Montana, 

regardless of where the homicide occurred. We must keep this 
broad assertion of jurisdiction in mind. as we analyze the 

present case. 

Section 45-6-301, MCA, defines the crime of theft. 

Subsection (1) provides: 

A person commits the offense of theft when he 

purposely or knowingly obtains or exerts unauthorized control over property of the owner and: 

(a) has the purpose of depriving the owner 

of the property; 

(b) purposely or knowingly uses, conceals, 

or abandons the property in such manner as to 

deprive the owner of the property; or 

(c) uses, conceals, or abandons the property 

knowing such use, concealment, or abandonment 

probably will deprive the owner of the 

property. 

The charge against Mr. White in the information was phrased 

in the language of § 45-6-301(1) (b), MCA. 

Mr. White argues that the State of Montana does not 

have jurisdiction to charge him with theft because none of 

the elements of the crime occurred in the state. He cites 

Illinois cases in support of his position. 

Although the source of Montana's theft statute is the 

Illinois theft statute, 111.Rev.Stat. ch. 38 S 16-1, Montana's statute has been modified significantly from the 

Illinois statute. The Illinois statute does not contain a 

subsection like S 45-6-301(1)(b), MCA. In the absence of the 

statutory provision under which Mr. White was charged, Illinois' interpretation of its statute is not relevent. 

Mr. White also points out that the Commission Comments 

to S 45-6-301(1), MCA, state "only two elements must be 

proved under this subsection, a knowing exertion of control 

and a purpose to deprive . . . ." We conclude that while 

this statement may be true for parts (a) and (c) of subsection (I), the language of part (b) requires that the owner 

must be deprived of his property before a charqe of theft 
will stand. Mr. Rang's truck was delivered to Mr. White in 

Montana with the understanding that it was to be returned to 

Mr. Rang in Montana. We conclude that the failure to return 

the truck resulted in Mr. Rang being deprived of his property 

in Montana. Under § 46-2-101 (2) , MCA, Montana has jurisdiction over an offense if the result which is an element of the 

offense occurred in Montana. We hold that the Montana court 

had jurisdiction over the charge of theft against Mr. White. 

Affirmed. 

We Concur: 

Justices 
Mr. Justice William E. Hunt, Sr., dissenting: 

I find it difficult to follow the reasoning of the 

majority opinion in holding that the language contained in 

the Montana theft statute gives Montana jurisdiction over 

White's actions. Section 45-6-301 (b) , MCA, requires that a 

person "purposely or knowingly obtains or exerts unauthorized 

control over property" - and ". . . uses, conceals, or abandons 

the property in such a manner as to deprive the owner of the 

property." 

The stipulated facts, as quoted by the majority, state 

that White had - no intent to deprive Rang of his property at 

any time while in the State of Montana. This agreement as to 

the facts removes White from the long arm jurisdiction 

statute upon which the State and the majority rely. Section 

46-2-101 (1) (a) , MCA, states: 

A person is subject to prosecution in this state 

for an offense which he commits while either within 

or outside the state by his own conduct . . . if: 

(a) the offense is committed either wholly or 

partly within the state; . . . 

There is - no evidence to contradict the finding of fact 

that White never used, concealed nor abandoned the truck in 

such a manner as to deprive Rang of his property while in 

Montana. 

The State asserts, and the majority agrees that the 

result of Rang being deprived while in Montana is an element 

of theft, S 45-6-301(1)(b), MCA, and therefore brings him 

under S 46-2-101 (2), MCA: 

A offense is committed partly within this state if 

either the conduct or the result which is an 

element occurs within the state. 
The majority opinion states that "[tlhe Illinois statute 

does not contain a subsection like S 45-6-301(1) (b), MCA. 

Illinois' interpretation of her statute does not bind u-s' in 

this case." 

Section 45-6-301 (1) (b) states: 

A person commits the offense of theft when he 

purposely or knowingly obtains or exerts 

unauthorized control over property of the owner 

and; 

(b) purposely or knowingly uses, conceals, or 

abandons the property in such manner as to deprive 

the owner of the property. 

Section 16-1 of the Illinois criminal statute states: 

Theft. A person commits theft when he knowingly: 

(a) Obtains or exerts unauthorized control over 

property of the owner; or 

(b) Obtains by deception control over property of 

the owner; or 

(c) Obtains by threat control over property of the 

owner; or 

(d) Obtains control over stolen property knowing 

the property to have been stolen or under such 

circumstances as would reasonably induce him to 

believe that the property was stolen, and 

(1) Intends to deprive the owner permanently of 

the use or benefit of the property; or 

(2) Knowingly uses, conceals or abandons the 

property in such manner as to deprive the owner 

permanently of such use or benefit; or 

(3) Uses, conceals, or abandons the property 

knowing such use, concealment or abandonment 

probably will deprive the owner permanently of such 

use or benefit. 
Section 16-1 does not have the same format as § 

45-6-301, but as I read it, the critical language is 

virtually identical. 

Regardless of whether the theft statutes of Illinois and 

Montana merit comparable interpretation, the long-arm 

jurisdiction statutes from the two states - are identical. 

When considering the construction of a statute which is 

adopted from another jurisdiction, this Court is not bound by 

the construction or interpretation placed upon it by the 

other jurisdiction. Edgar v. Hunt (Mont. 1985), 706 P.2d 

120, 122; Lawrence v. Harvey (Mont. 1980), 607 P.2d 551, 556. 

This Court will, however, carefully consider the construction 

of that statute placed on it by the highest court in the 

state from which it was adopted. State v. Murphey (1977), 

174 Mont. 307, 311, 570 P.2d 1103, 1105. 

The Illinois case most relevant to the case at bar with 

respect to the issue of jurisdiction is People v. Holt (111. 

1982), 440 N.E.2d 102. In Holt, the defendant kidnapped a 

woman in Illinois, drove her to Wisconsin where she was raped 

and murdered. Citing Section 1-5 of the Illinois criminal 

code, which is identical to Montana's criminal jurisdiction 

statute, the Illinois court stated that: 

Not every element of an offense supports 

jurisdiction. Some elements, while essential in 

the sense of necessary, are not the essence of the 

crime . . .. 

Section 1-5 does not declare that any element of 

the offense will support jurisdiction. The 

language is "the conduct which is an element of the 

offense, or the result which is such an element I1 ... The "element" phrases do not expand 

jurisdiction but limit it. The proper meaning is 

that "the conduct" is enough only if it is an 

element of the offense; similarly, if the offense 

is defined solely in terms of conduct without 

regard to any result, there is no jurisdiction 

based on where the conduct causes harm. 
Montana does not have jurisdiction to prosecute White 

unless we find that the result of deprivation is an element 

of the crime of theft. 

An Illinois case which discusses the Illinois theft 

statute is People v. Nunn (Ill. App. 1965), 212 N.E.2d 342: 

A person who "knowingly obtains or exerts 

unauthorized control over property of the owner" is 

the statutory description of a thief, provided only 

---- that his act is accompanied the requisite mental 

state. (Emwhasis added.) 

212 N.E.2d at 344. 

Whether interpretating Illinois or Montana statutes, the 

elements constituting theft are elements of conduct and a 

dual mental state, not result. The defendant must purposely 

or knowingly act in a way which he knows will, or probably 

will, deprive another of their property. The result of 

actual deprivation to a victim is not delineated by the 

statute. Even if, arguendo, the result of deprivation - was an 

element of theft, the deprivation in this case occurred in 

states other than Montana. The deprivation occurred in the 

states in which White exerted unauthorized control of Rang's 

truck while having the proper mental state of intent to 

deprive. 

The majority's last paragraph is very troublesome to me. 

It says that because White picked up Rang's truck in Montana, 

with the understanding that it would be returned to Montana, 

the State of Montana therefor has jurisdiction over White's 

charge of theft regardless of where the theft occurred. 

Nowhere in the language of Montana's theft or long arm 

jurisdiction statutes is there even an allusion to a delivery 

of goods in one jurisdiction which are later stolen in 

another jurisdiction. Although there was never any intent by 

White to deprive Rang of his property while in Montana, the 
majority apparently interprets the statutes as saying that 

because he lawfully received the truck in Montana, but failed 

to return it to Montana, he can be tried in Montana for a 

theft which occurred totally outside of Montana's borders. 

There is no case on point in Montana which deals with 

this situation. A search of the various state laws which 

dealt with similar problems reveals one case directly on 

point from Colorado; People v. Tinkle (Colo. App. 1985) , 714 

P. 2d 919. Tinkle was convicted of theft in Colorado. The 

evidence showed that Tinkle entered into an agreement with a 

man from Colorado which provided that Tinkle take the man's 

merchandise to Texas to sell at rodeos. Tinkle was to share 

in the profits. After several failed attempts to sell the 

merchandise in Texas as planned, Tinkle resorted to selling 

the total inventory in Arizona, but kept all proceeds from 

the sale. The Colorado Court of Appeals reversed Tinkle's 

conviction, stating: 

The critical elements here are defendant's intent 

to deprive and the location where his control over 

(victims) merchandise was no longer authorized. 

Even with the evidence considered in the light most 

favorable to the prosecution, all inferences point 

to defendant 

Colorado, - and 

until he -- was 

Under these 

- 

exercising authorized control in 

not formulating any wrongful intent 

--- out of this State. (Cites omitted. f 

circumstances, jurisdiction for 

prosecution of the theft charge was not 

established, and defendant's motion for judgment of 

acquittal should have been granted. (Emphasis 

added. ) 

I agree with the reasoning of the Colorado Court. The 

fact that a victim in Montana was deprived of his property is 

not enough to qualify as the commission of an offense "partly 

within" the State of Montana. Jurisdiction is proper in "the 

location where (White's) control over (the truck) was no 
longer authorized." Consequently, I would hold that the 

State of Montana does not have jurisdiction to prosecute 

defendant White under the present law 

/ 

We concur in the foregoing dissent: 

(\, \ & - &R? 

/ Justice r' 

/ 

Justice