NO. 02-82 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-.(j s - 

JACOB H. WOODS, 

Defendant and Appellant. 

Appeal frorn: District Court of the Eieventh Judicial District, 

In and for the County of Flathead, The Honorable 

Jack D. Shanstrom, Judge ?residing. 

Counsel of Record: 

For Appeilant: 

Moses Law Firm; Charles F. Moses, Riilings, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

Te6 0. Lympus, County Attorney, Kalispell, Montana 

Submitted: January 10, 1983 

Decided : April 14, 1983 

Filed: .4PH 14 1983 

--- Clerk 
Hon. Daniel J. Shea 

Justice, Supreme Court 

Room 414 ~ustice Building 

215 North Sanders 

Helena, Montana 59620 

, 

CORRECTION. In preparing this opinion 

lication, we noted in our verification of tit1 

citations the matters listed below. Corrections 

been made on our copy of the opinion. T 

Date: 

May 20, 1983 

Re: 

State v. Woods, No. 82-82, ~pril 14, 1983, dissenting 

Page 15, line 9 - - 45-5-501(1)(c) 

cited on page 15, line 11 and 

Page 15, line 10 - - 45-5-501(7) 

on page 15, line 15and page 17, line 5 

Page 18, line 7 - - - 45-5-206 should read - 41-5-206 

Page 17, line 9 from bottom - - 41-502(4) should re dl 41-5-502(4). 4 

WEST PUBLISHING COMPANY 

Box 3526 

St. Paul, MN 55165 
I 

Hon. John C. Sheehy 

Justice, Supreme Court 

Room 414 Justice Building 

215 North Sanders 

Helena, Montana 59620 

CORRECTION, In preparing this opinion for publication, we noted in our verification of titles and 

citations the matters listed below. Corrections have 

been made on our copy of the opinion. 

Date: 

May 20, 1983 

Re: 

State v. Woods, No. 82-82, April 14, 1983 

Page 2, line 11 from bottom - - Section 41-5-501(1)(c) should read 

Section 41-5-501(2)(c). 

Page 3, line 11 from - - 455 U.S. 463 should read 445 U.S. 463. 

Page 13, line 8 - - Morrissette v. United States should read Morissette 

v. United States. 

WEST PUBLISHING COMPANY 

Box 3526 

St. Paul, MN 55165 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Jacob H. Woods was convicted of two counts of deliberate 

homicide in District Court, Eleventh Judicia.1 District, 

Flathead County, involving the deaths of Ronald Johnson and 

Phillip Kessner. He appeals his conviction to this Court. 

We affirm. 

The most important issues raised by Woods are that the 

Youth Court proceedings against him were constitutionally 

defective, and that he was charged in District Court on an 

information that was unsupported by affidavit or sworn 

testimony. 

That the Youth Court proceedings against Woods were 

defective is eminently obvious. The petition initiating the 

proceedings in Youth Court did not state the facts 

constituting the offenses with which he was charged in 

ordinary, concise language so as to enable a person of common 

understanding to know what was intended. Section 

2- 

41-5-501 (J) (c) , MCA. The petition did not include a list of 

the witnesses the State intended to use in proving the 

commission of the offenses against him. Section 41-5-501(7), 

MCA . 

The petitioner was arrested in Woodward County, 

Oklahoma. After he was brought to Montana, he was detained 

without any sworn statement presented to the court that Woods 

needed to be placed in detention. Section 41-5-502 (4) , MCA. 

However, by what process or authority Woods was arrested 

in Woodward County, Oklahoma, is not shown in the record. As 

far as the record discloses, he was not taken into custody 
"by a law enforcement officer pursuant to a lawful order or 

process of [the] court. " Section 41-5-302 (1) (a), MCA. 

A warrant for the arrest of Woods was issued out of the 

Youth Court on March 19, 1981. On that date he was already 

in the custody of the sheriff of Woodward County, Oklahoma. 

There is no provision in the Youth Court Act for the issuance 

of a warrant of arrest. Presumably the warrant of arrest, 

therefore, was issued under section 46-6-201, MCA. However, 

a warrant of arrest is invalid unless it is based upon 

probable cause, supported by oath or affirmation reduced to 

writing. Art. 11, 11, 1972 Mont. Const.; State ex rel. 

Wicks v. District Court (1972), 159 Mont. 434, 498 ~.2d 1202; 

Petition of Gray (1970), 155 Mont. 510, 473 P.2d 532. Here 

there was no showing of probable cause, supported by oath or 

affirmation reduced to writing in the Youth Court 

proceedings, upon which to base the issuance of the warrant 

of arrest. 

From the record, therefore, the initiation of the Youth 

Court proceedings against Woods on March 18, 1981, his 

earlier arrest in Oklahoma, and his subsequent detention in 

Flathead County during the Youth Court proceedings were a11 

patently unlawful. Yet, it avails Woods nothing. An illegal 

arrest of a defendant does not preclude the State from 

proceeding on a criminal charge against him. In United 

4 

States v. Crews (1980), 4p5 U.S. 463, 100 S.Ct. 1244, 63 

L.Ed.2d 537, the Supreme Court stated: 

"Insofar as respondent challenges his own presence 

at trial, he camnot claim immunity from prosecution 

simply because his appearance in court was 

precipitated by an unlawful arrest. An illegal 

arrest, without more, has never been viewed as a 

bar to subsequent prosecution, nor as a defense to 

a valid conviction (citing cases). The 

exclusionary principal of Wong - Sun [371 U.S. 471, 

83 S.Ct. 407, 9 L.Ed.2d 441 (1963)l and 
Silverthorne Lumber Company [251 U.S. 385, 40 S.Ct. 

182, 64 L.Ed.2d 319 (1920)l delimits what proof the 

government may offer against the accused at trial, 

closing the courtroom door to evidence secured by 

official lawlessness. Respondent is not himself a 

suppressible 'fruit,' and the illegality of his 

detention cannot deprive the government of the 

opportunity to prove his guilt through the 

introduction of evidence wholly untainted by the 

police misconduct." 100 S.Ct. at 1251. 

See also, State v. Ritchson (19811, - Mont. - , 630 P.2d 

234, 239, 38 St.Rep. 1015. 

We attach no weight, therefore, to Woods' contentions 

that his arrest and detention were unlawful or that the Youth 

Court proceedings were unlawful or not based upon probable 

cause, or that the petition filed in the Youth Court was 

deficient. 

The crimes with which Woods was charged were alleged to 

have been committed before he became 18 years of age. He was 

under the age of 21 years at the time of his arrest. 

Therefore, the Youth Court had exclusive jurisdiction of the 

charges against him. Section 41-5-203, MCA. The Youth Court 

is required to retain jurisdiction unless such jurisdiction 

is terminated by a transfer of the proceedings to the adult 

criminal court. Section 41-5-205(1), MCA. Woods complains 

that the Youth Court proceedings against him should have been 

dismissed because those proceedings were not decided or 

determined within 15 days after service of the petition. 

(Section 41-5-516 (1) , MCA. ) That provision must give way in 

this case, however, to the necessity for a transfer hearing 

whether Woods should be tried in the adult criminal court. 

Section 41-5-206, MCA, provides that after a petition in 

Youth Court alleging delinquency has been filed, the county 

attorney may move, before a hearing on the petition on its 

merits, to transfer the matter of prosecution to the District 
Court if the youth were 16 years of age or more at the time 

of the unlawful conduct, for crimes such as criminal 

homicide. Section 41-5-206, MCA. The 15-day time limitation 

of section 41-5-516, MCA, has no application when the charges 

are subject to transfer to the adult criminal court, and a 

timely motion as here is made to transfer the proceedings. 

Counsel for Woods objected to the transfer of the 

proceedings from the Youth Court to the District Court, but 

the Youth Court overruled his objections based upon the 

deficiencies in the Youth Court proceedings. Under the rule 

we have stated, even though his arrest and detention may have 

been illegal, that was not a bar to a subsequent prosecution 

nor could it be a bar to the transfer of the cause from the 

Youth Court to the District Court. 

But Woods also contends that the information filed in 

the District Court against him was improper because it too 

was filed without supporting affidavit or sworn testimony and 

without leave of court. Woods claims that the information 

was improperly filed under Art. 11, $3 20, 1972 Mont. Const., 

because probable cause was not established after examination 

and commitment by a magistrate or after leave granted by the 

court. This contention again has no weight. It overlooks or 

ignores the transfer hearing held before the Youth Court. 

There, witnesses were sworn and their testimony given which 

established beyond cavil probable cause for the filing of the 

information in the District Court against Woods. The Youth 

Court made findings of fact which stated that the relevant 

evidence indicated reasonable grounds to believe that Woods 

had committed the acts alleged. The Youth Court further 

found that there was no facility available at Miles City or 

elsewhere in which Woods could be held or detained if the 
cause was retained in the Youth Court and that the gravity of 

the offense required the transfer of the prosecution to the 

District Court. The Youth Court therefore ordered that an 

information charging Woods be filed in the District Court. 

Thus, Woods did in fact receive a hearing before an impartial 

magistrate, the Youth Court, which ordered the county 

attorney to file the information in the District Court. We 

determine that such procedure satisfied the state 

constitutional requirements that criminal actions in District 

Court be initiated either by information after examination 

and commitment by a magistrate or after leave granted by the 

court. 

We now examine now Woods' contention that there was no 

corroboration of the testimony of accomplices sufficient to 

sustain his conviction. In connection with this issue, we 

must delineate the facts. 

On September 13, 1978, at 11:25 p.m. on Highway 93, 

Flathead County police officers investigated the injury of 

two victims found on the shoulder of the highway. One was 

dead and one was alive. The officers found a 10-speed 

bicycle badly bent, a plastic grill and grill piece, green 

paint chips and other evidence. The victims were taken by 

ambulance to the hospital where one was pronounced dead on 

arrival and the other survived for approximately 35 to 40 

minutes. It appeared that the victims had been run down on 

the highway while riding their bicycle. The police 

investigation was futile until 2 1/2 years later when an 

anonymous crimestoppers tip directed them to Bobby Aho, who 

gave police a signed statement about the night of the 

killing. His statement indicated that Woods had been 

driving around Kalispell with Jerry Schneider and Bobby Aho 
in Tim Fraleigh's car. They met the victims, Kessner and 

Johnson, who Woods claimed owed him money for drugs. He was 

angry that they had neither the drugs nor the money and 

determined to "get them." He drove up behind them while the 

two were riding on one bicycle down Highway 93, sped up and 

swerved into them. Woods drove on after the collision. 

Woods was arrested in Woodward, Oklahoma, on March 18, 

1981. At the time, he was nearly 19 years old but was 16 

years old at the time of the offense. The Montana Codes 

required that he be proceeded against in the Youth Court. We 

have already indicated the proceedings that followed his 

arrest. 

Woods contends that the passengers in his automobile, 

Schneider and Aho, must be considered accomplices, and that 

there is no corroboration for their testimony. The State 

argues that they were not in fact accomplices and that in any 

event, their testimony was corroborated. 

This issue has little weight. The District Court 

submitted to the trial jury as a question of fact whether 

Schneider and Aho were in fact accomplices and instructed the 

jury that their testimony must be corroborated if it found 

that they were in fact accomplices. Whether the jury so 

determined or not is of no moment now. There is more than 

sufficient corroboration of the testimony of Schneider and 

Aho in the evidence offered on the stand by Wanda Aha, who 

testified to a conversation she had with Woods where Woods 

told her that he had been driving the car and that he had 

killed Kessner and Johnson. That evidence suffices to 

corroborate and sustain the testimony of Schneider and Aho, 

if we should grant that they were accomplices. State v. 

Forsyth (1982), - Mont . - , 642 P.2d 1035, 39 St.Rep. 540; 
State v. Manthie (1982), - Mont . - , 641 P.2d 454, 39 

St.Rep. 350; State v. Mitchell (1981), Mont. , 625 

P.2d 1155, 38 St.Rep. 487. 

The next issue offered by Woods is that the doctrine of 

cumulative trial error requires a reversal of his conviction. 

The errors which Woods argues cumulated against him are: 

1. The admission of exhibits 1, 2 and 3, photographs of 

the scene of the offenses, 

2. The color photograph of Ronald Johnson, one of the 

victims, 

3. A damaged bicycle, the testimony of Dale Gifford, 

respecting inconsistent statements by Woods, 

4. The examination of Schneider about his own prior 

inconsistent statements to the police, 

5. The examination of witness Fraleigh, and 

6. The rebuttal testimony of the probation officer. 

We find no error with respect to this testimony or 

evidence. 

The photographs of the scene were testified to by the 

officers doing the investigation as depicting the scene as 

they remembered it. They did not take the pictures 

themselves nor were they taken under their direction. The 

officers came to the scene a very short time after the 

incident occurred. It is clear that the photographs would 

aid the jury in its factfinding process. State v. Austad 

(19821, Mont. , 641 P.2d 1373, 39 St.Rep. 356, 362. 

The color photograph of the deceased Ronald Johnson was 

objected to on the ground that its probative value was 

outweighed by its inflammatory nature. We agree with the 

State that the photograph lent credence to the testimony of 

the witnesses for the State that the death of the victim was 
caused from the injuries they received when they were struck 

by the automobile. The photographs served a probative 

purpose and were admissible. State v. Logan (1970), 156 

Mont. 48, 473 P.2d 833. 

The objection to the admission of the bicycle was on the 

grounds of foundation, that there was no sufficient evidence 

that the bicycle was in the same condition as at the time of 

the incident and no chain of evidence establishing to whom it 

belonged and its condition prior to and after the incident. 

The testimony indicated that the investigating officer had 

picked up the bicycle at the scene of the offenses, and that 

it appeared to be in reasonably the same condition at trial 

as it was when he first picked it up. There was no 

indication at trial that the bicycle had otherwise been 

tampered with or was in worse condition than when it was 

found. We see no problem with the admission of the bicycle 

into evidence. 

The testimony of Dale Gifford was to the effect that he 

had talked to Woods after his arrest while the Youth Court 

proceedings were pending, and that Woods had given him an 

alibi which was different from one given to Gifford earlier 

in 1979 when he had questioned Woods. The objection to this 

testimony, in Woods' briefs, seems to be that since Woods had 

not testified and did not eventually testify, such evidence 

of his statements was inadmissible. The testimony was 

relevant, and indeed was not objected to at the time of 

trial. 

The medical testimony showed that no autopsies were 

performed on the bodies of the victims and the medical 

persons testified their conclusion that the collision with 

the automobile had brought about the injuries which caused 
the deaths was an "educated guess." However, the medical 

testimony was that the type of injuries suffered by the 

victims were consistent with the injuries one might expect to 

receive if struck by an automobile. Again no objection was 

raised on this ground to the doctor's testimony at trial. 

The weight of the medical evidence was for the jury. 

On direct examination, the State brought out from Jerry 

Schneider that he had made inconsistent statements earlier 

which were different from the statements he was making at the 

trial with respect to the incident. The objection was that 

the testimony of the earlier statements was hearsay and that 

it was improper for the State to preclude impeachment of 

Schneider by asking about the inconsistent statements first. 

Rule 801(d)(l)(A), M.R.Evid. provides that prior inconsistent 

statements of witnesses are not hearsay as long as the 

witnesses testifying at the trial are subject to 

cross-examination concerning the statement. Under that rule, 

prior inconsistent statements are admissible as substantive 

evidence, See Commission Comments, Rule 801, M.R.Evid. 

The objection to Fraleigh's testimony comes about from a 

question by the county attorney to Fraleiqh "did you 

carefully examine the car for any little scratch everytime 

Jake would return it to you?" The question could have been 

better phrased. It is not prejudicial. 

Glenn Hufstetler, the chief probation officer, on 

rebuttal, testified that Woods' mother had told him that she 

knew Woods had been trying out the automobile which was 

involved in this incident for a three week period, including 

the date of the incident. Objection was made that the 

testimony was improper rebuttal evidence. The State contends 

that the testimony tended to overcome the legal effect of the 
mother's evidence, which taken as a whole permitted the jury 

to infer that she kept careful watch over her sons and was 

well aware of what they did and where they were. The State 

contends that Hufstetlerls testimony shows her a.wareness of 

the fact that Woods was driving Tim Fraleighls car at the 

time the incident occurred. Again, the admission of 

testimony or evidence is mainly a matter of discretion with 

the lower court. 

All in all, we find no cumulative error. Certainly any 

such cumulative error must be enough that taken as a whole it 

appears to the appellate court that the effect of the claimed 

cumulative error was to deprive the defendant of a fair 

trial. We cannot so conclude on the matters claimed here as 

cumulative error. 

We turn now to examine Woods' contentions that the 

District Court erred in giving certain instructions objected 

to by Woods. 

The full content of such instructions are: 

"You are instructed that under Montana law, a 

person acts knowingly with respect to conduct or to 

a circumstance described by a statute defining an 

offense when he is aware of his conduct or that the 

circumstance exists. A person acts knowingly with 

respect to the result of conduct described by a 

statute defining an offense when he is aware that 

it is highly probable that such result will be 

caused by his conduct. 

"Instruction 14: 

"You are instructed that if you find the defendant 

committed a homicide and that no circumstances of 

mitigation, excuse, or justification appear, you 

may then infer that the homicide was committed 

knowingly or purposely." 

Woods' objections to court's instruction no. 9A are that it 

does not require the State to prove each element of the case 

beyond a reasonable doubt, it does not tell the jury what the 
effect of presumptions supplying such proof is, and it shifts 

the burden of proof in a criminal case. Woods' objection to 

the court's instruction no. 14 is that it permitted the jury 

to infer every criminal state of mind required for a 

conviction, merely on the finding that a homicide had been 

committed. 

Court's instruction no. 9A is stated in the words of the 

statute defining "knowingly," section 45-2-101(33), MCA. 

The instructions given here, and the objections made by 

Woods thereto, are nearly identical to the instructions and 

objections that were raised in State v. Coleman (1979), - 

Mont . , 605 P.2d 1000, 1052-1056, 36 St.Rep. 1134, 

cert-den. 446 U.S. 970, reh.den. 448 U.S. 914 (1980). There, 

as here, the defendant contended that the given instructions 

offended the holding of the United States Supreme Court, 

particularly in Sandstrom v. Montana (1979), 442 U.S. 510, 99 

S.Ct. 2450, 61 L.Ed.2d 39; and United States v. United States 

Gypsum Company (1978), 438 U.S. 422, 98 S.Ct. 2864, 57 

L.Ed.2d 854. With respect to the instruction nearly 

identical to court's instruction no. 14 here, we said: 

"The holding in Sandstrom is not to be construed to 

mean that whenever a trial court instructs a jury 

that it may resort to inference to determine 

subjective matters, such as knowledge or purpose, 

that thereby the State has been relieved of its 

burden of proof. The United States Supreme Court 

did not intend such limitation, and we do not find 

any such intention in the language of Sandstrom or 

its related cases. The jury was not allowed to 

rest solely upon the permitted inference in the 

Coleman case, but under the instructions, had to 

require such an inference to meet the standard as 

beyond a reasonable doubt. 

"The true test under Sandstrom, in determining the 

effect of an instruction such as the one disputed 

here is whether that instruction has the effect of 

allocating to the defendant some part of the burden 

of proof that properly rests on the State 

throuqhout the trial. See Holloway v. McElroy (D. 
Ga. 1979), 474 F.Supp. 1363, 1368. We do not find 

that to have occurred here. 

"On that basis we distinguish the Coleman 

instruction from those cases involving a 

burden-shifting presumption as in Mullaney v. 

Wilbur (1975), 421 U.S. 684, 95 S.Ct. 1881, 44 

L.Ed.2d 508; and conclusive presumptions like those 

involved in Sandstrom, supra, Mortissette v. United 

States (1952), 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 

288, and United States v. United States Gypsum 

Company (1978), 438 U.S. 422, 98 S.Ct. 2864, 57 

L.Ed.2d 854. Instead, the inference is purely 

permissive, in the sense described in County Court 

of Ulster County v. Allen (1979), 442 U.S. 140, 99 

S.Ct. 2213, 60 L.Ed.2d 777." 605 P.2d at 1054. 

With respect to the instruction similar to court's 

instruction no. 9A here, we said: 

"When the holdings in Sandstrom and United States 

Gypsum Company are understood in that context, one 

may examine the instruction 'knowingly,' complained 

of here, and determine that the factfinding duty of 

the jury is not invaded by the court. The District 

Court is not usurping a jury function when it 

instructs 'a person acts knowingly with respect to 

the result of conduct [constituting a crime] when 

he is aware that it is highly probable that such 

result [would] be caused by his conduct.' 

"The jury is not called upon to determine 'high 

probability' in place of 'reasonable doubt;' rather 

it is called on to determine the existence of 

defendant's awareness, beyond a reasonable doubt, 

that a high probability is that the result of his 

conduct makes his conduct criminal. The District 

Court here did not, by using this instruction, make 

it mandatory upon the jury to find defendant's 

awareness nor conclusively presume his awareness. 

That finding was left exclusively to the jury. In 

short, the instruction did not establish a 

presumption which testimony could not overthrow. 

On that basis, therefore, we find no merit in the 

second ground of attack." 605 P.2d at 1055. 

Since we have fully examined the contentions that Woods 

makes here in connection with nearly the same instructions in 

Coleman, we see no reason now to find prejudice or error with 

respect to virtually the same instructions given here by the 

court. 

The final issue that appears in the briefs is whether 

court-appointed counsel for purposes of appeal are entitled 
to receive compensation for their services from the county 

involved. Counsel agreed at oral argument that such an issue 

has no part as a contention to be considered in connection 

with a defendant's appeal. We therefore make no decision 

here as to whether counsel is entitled to receive attorney 

fees at county expense. 

The judgment of conviction of the defendant is affirmed. 

We Concur: 

Chief Justice 

I 
Mr. Justice Daniel J. Shea, dissenting: 

I dissent and I would reverse the convictions. 

Unlike the majority, I cannot overlook the defects in 

the Youth Court proceedings. The State did virtually nothing 

right and yet the majority has given its blessings to the 

conviction obtained by the initiation of patently defective 

Youth Court proceedings. Nor can I overlook the failure of 

the State to follow the law as a condition to filing the 

charges against defendant in District Court. 

When the State first filed the petition in Youth Court, 

1 

it failed to comply with sections 4,5-5-501(2) (c), MCA, 

d 

48-5-501 (7) , MCA, and 41-5-502 (4) MCA. Section & 

46-5-501 (,Z') (c) , MCA, requires that the petition state the 

facts constituting the offenses in ordinary, concise language 

so that a person of common understanding would know what wa.s 

intended. The majority a.grees this section was violated. 

j 

Section 48-5-501(7), MCA, requires that when the petition is 

filed that it include a list of the witnesses to be called in 

proving the offense, a.nd the majority agrees this section was 

violated. And finally, if a youth is to be placed in 

custody, section 41-5-502 (4), MCA, requires that a sworn 

statement accompany the petition alleging that the ". . . 

youth needs to be placed. in detention or shelter care . . .If 

The majority also agrees that this section was violated. 

Despite these defects, the State had defendant illegally 

arrested in Oklahoma and transported in custody to Montana. 

Once he arrived, the errors continued. Section 41-5-516 (1) , 

MCA, requires that a hearing must be begun "within - 15 days 

after all service - is completed." No exceptions are provided 

for if the youth is in custody, which is the situation here, 
the statute provides a mandatory remedy for failure to hold 

such a hearing. Subsection (1) also provides that if the 

hearing is not begun within the 15 day period ". . . the 

petition shall be dismissed with prejudice . . . " The 

hearing was not begun with 15 days and the petition should 

therefore have been dismissed with prejudice. This being so, 

the Youth Court had no jurisdiction to order defendant to be 

proceeded against as an adult. 

Following are the procedural facts. The petition was 

filed on March 19, 1981, and sometime between this date and 

March 24, 1981, defendant was arrested in Oklahoma and taken 

to Montana. On March 24, 1981-, defendant, in custody, 

appeared before the Youth Court without counsel. Also, on 

March 24, 1981, the State filed a motion to transfer the case 

to District Court. On March 25, defendant again appeared, in 

custody, without counsel. The Youth Court then appointed the 

public defender. 

On March 26, 1981, the defendant appeared with the 

public defender. The Youth Court set a hearing date for the 

motion to transfer--the date was set for April -- 28, 1981. 

From the time defendant first appeared in custody on March 

24, 1981, until the date of the hearing, more than a month 

had gone by. The statute requires a dismissal if the hearing 

is not begun within 15 days of the date on which defendant is 

taken into custody. 

On April 13, 1981, the State filed two documents with 

the Youth Court. The first was a warrant directed to the 

Oklahoma authorities for the arrest of defendant. It was 

dated March 19, 1981, and had obviously been served, for 

defendant had been arrested and returned to Montana on March 

24. The second document was a summons issued to defendant's 
mother, dated March 30, 1981, with a return of service dated 

March 31-, 1981. Service, under section 41-5-516(1), MCA, was 

therefore complete on March 31. Based on section 

41-5-516(1), the Youth Court was required to set a hearing by 

at least April 15, 1981, and a failure to begin the hearing 

on that date required a dismissal of the charges. As of 

April 1-5, 1981, there was nothing to transfer to District 

Court because the hearing had not begun. 

Nonetheless, on April 28, 1981, the Youth Court heard. 

the State's motion to transfer the case to District Court 

asking that defendant be treated as an adult for purposes of 

prosecution. On that date, co-counsel appeared on behalf of 

the defendant and the hearing was held. On May 26, 1981 the 

Youth Court ordered transfer of the case to the District 

Court. The Youth Court, however, had no authority to 

transfer the case to District Court. By failing to hold a 

hearing by April 15, 1981, the Youth Court had. lost 

jurisdiction. Again, section 41-5-516 (1) , MCA, provides in 

part that the failure to begin the hearing after service is 

complete requires a dismissal with prejudice. 

Here the majority admits the State failed to provide a 

sworn petition or statement which is necessary as a condition 

-3-- 

to holding a person in custody (section 41-502 (4) , MCA) , the 

majority admits the State failed to state the charges as 

i -2 

required by section 4,6-5-501v) (c) , and the majority admits 

that the State failed to provide defendant with a list of r' 

witnesses as required by section 48-5-501(7). In addition, I 

believe the State was required by section 41-5-516(l) to 

begin the hearing by April 15, 1981 under pain of dismissal 

with prejudice. No such hearing was held. Based on these 

defects, I have no difficulty in determining that the Youth 
Court proceedings were so defective that the Youth Court had 

no jurisdiction to send the case to District Court--there was 

nothing to send. 

I cannot agree with the majority that the 15 day hearing 

limitation does not apply if the State has made a motion to 

transfer the case to District Court to have the defendant 

/ 

prosecuted as an adult. Section 4$-5-206, MCA, does permit 

the State to file a motion to transfer before a hearing, but 

I would hold nonetheless that the hearing, including a 

hearing on the State's transfer motion, must be heard within 

the 15 day period if the defendant is in custody. The 

majority holding defeats the purpose of the Youth Court 

statute which requires the hearing within 15 days. Its 

purpose is to provide a speedy hearing for anyone held in 

custody, even if that person is subject to being transferred 

to District Court to be prosecuted as an adult. The purpose 

is defeated when the hearing is not held within 15 days on 

the ground that the State pre-empted the speedy hearing 

requirement by the simple expedient of filing a transfer 

petition. 

Nor can I agree with the majority that the Youth Court 

proceedings on the transfer motion can substitute for the 

requirements of Article 11, 5 20, which set forth the 

requirements for filing a criminal case in District Court. 

Article 11, 5 20, provides: 

". . . All criminal actions in district court, 

except those on appeal, shall be prosecuted either 

by information, after examination and commitment by 

a magistrate or after leave granted by the court, 

or by indictment without such examination, 

commitment or leave." 

We start, of course, with the Constitution. It provides 

that all criminal actions in District Court must proceed by 
information or indictment. If by information, it must be 

after an examination and commitment by a magistrate or after 

the District Court has granted leave to file the information. 

The Constitution says nothing about a Youth Court having the 

powers of a magistrate. Nor does it say anything about a 

Youth Court wea.ring two hats simultaneously, tha.t of Youth 

Court, and that of a committing magistrate. 

I don't believe the framers of our Constitution intended 

that Article 11, § 20, be short-circuited in the manner done 

here. Here, there was no complaint filed in justice court 

followed by a preliminary hearing and an order binding over 

to District Court. And there was no application for leave to 

file an information followed by an order permitting the 

information to be filed. Nor, of course, was there was a 

charge based on a grand jury indictment. Rather, the Youth 

Court found that defendant should be tried as an adult, and 

ordered tha.t defendant be so tried. This order, under our 

Art. 11, 5 20, did not constitute leave to file a.n 

information. Nor did the Youth Court hearing double as a 

preliminary hearing before the magistrate. 

Next comes the statutes. The State had two options: 

(1) to file charges in Justice Court followed by a 

preliminary examination and order binding defendant over to 

trial upon a finding of probable cause; or (2) to file in 

District Court an application for leave to file an 

information, the charges then not to be filed unt.il the 

District Court granted leave. The State followed neither of 

these alternatives. 

The applicable statutes are sections 46-11-101, 

46-1.1-102, and 46-11-201, MCA. In seeking to comply with 

Article 11, 20, section 46-11-101 provides that an 
information can he filed either followinq - a preliminary 

examination or after the District Court has granted leave of 

court. Section 46-11-102 simply provides in part that all 

offenses triable in District Court must be by indictment or 

information. And section 46-11-201(1), sets forth the 

requirements for filing an information when the State seeks 

leave to file an information. Nowhere do these statutes, or 

any other statutes, provide that a Youth Court judge also 

wears the simultaneous double hat of a committing magistrate. 

Based on the major defects in the Youth Court 

proceedings, and the failure of the State to abide by the 

Constitution (Art. 11, 20) in filing charges against 

defendant, I would reverse the convictions.