No. 13262 INTHE SUPREME COURT OF THE STATE OF MONTANA 1976

JOHN S. FORSYTHE, Petitioner and Respondent,

ALICE WEhWOLZ

## ,Justice of the Peace inDepartment #1, Inand For the County of Rosebud, Respondent and Appellant.
Appeal from: District Court of the Sixteenth Judicial District, Honorable A. B. Martin, Judge presiding. Counsel of Record: For Appellant: William F. Meisburger argued, Forsyth, Montana For Respondent : John S. Forsythe argued, Forsyth, Montana

Submitted: September 

### 8, 1976

Decided: 

### OCT

## -51976 3% 1jGi; 

### -5 \Jr0 Filed:Mr. Justice John Conway Harrison delivered the Opinion of the Court.
This is an appeal by Alice Wenholz, Justice of the Peace inDepartment No. 1, inand for the County of Rosebud, from
an order of the district court requiring her toreinstate a judgment and penalty previously imposed in a criminal misdemeanor
case.The case arises from an actionbrought in thejustice court entitled "State of Montana v. StanleyBrian Johnson". Mr. Johnson was found guilty of driving while intoxicated by jury verdict in thejustice court, Department No. 1, County of Rosebud. After trial, Johnson filed a motion for a new trial, pursuant to section 95-2101, R.C.M. 1947. The justice of the peace, appellant here, took themotion under advisement, ruled in favor of Johnson and dismissed the charge against him. The dismissalwas granted under the authority of section 95-2101(c)(3), which states: "(c) Alternative Authority of the Court on Hearing Motion forNew Trial. On hearing the motion for a new trial, ifjustified by the law and theweight of the evidence, the court may:

"3. Modify or change the verdict or finding by finding the defendant guilty of a lesser degree of the crime charged, finding the defendant guilty of a lesser included crime or finding the defendant not guilty." Thereafter, Rosebud County Attorney John S. Forsythe, respondent here, filed a "Petition forWritof Mandate and Writ of Supervisory Control" in the district court, seeking, inter alia, reinstatement of thejustice court jury's guilty verdict inthe
case of Statev. StanleyBrian Johnson. Forsythe alleged thedefendant Johnson's exclusive remedy for alleged errors inthejustice court trialwas an appeal for a trialde novo inthe districtcourt pursuant to the terms of section 95-2009, R.C.M. 1947. The district court limited 

### its review to the question of whether section 95-2101 applies tojustice of the peace courts, and ruled that it does not. On January 5, 1976, the judgment and penalty of thejustice court in the case of State v. StanleyBrian Johnson were ordered reinstated. Wenholz appeals. The issue on appeal iswhether a justice of the peace court has thejurisdiction to dismiss an action under the
new trialprovisions of section 95-2101, R.C.M. 1947. Appellant advances two principal arguments to sustainher position: (1) that the word "court" in section 95-2101 includes justice of the peace courts; and (2), that if a section 95-2009, R.C.M. 1947, appeal 

### is the exclusive remedy for a new trialin justice of the peace courts, then a serious inequity tojustice court defendants arises. Section 95-2101 refers four times to the "court". Nothing
on the face of the statute indicateswhich courts arewithin its scope. In the Code of Criminal Procedure, Title 95, R.C.M. 1947, "court" 

### is defined as "a place where justice 

### isjudicially administered and includes ajudge thereof

# ." Section 95-205. A "judge" 

### is defined as "a person who 

### is invested by law with the power toperformjudicial functions and includes court, justice of the peace or police magistrate when a particular context so requires." Section 95-206. (Emphasis supplied.) With respect to appellant's firstargument, the task 

### is todeterminewhether the particular context of section 95-2101 requires that "court" be read to includejustices of the peace. Initially, we note this Court in Statev. Bush, 164Mont. 81, 518 P.2d 1406, stated: 

# "**

# * since the code [of criminal procedure] was adopted as one comprehensive piece of legislation it should be considered in 

### its entirety to determine the effect of any one section." The district court was correct in excludingjustices of the peace from the purview of section 95-2101 because the particular context of that section inMontana's Code of Criminal Procedure clearly requires a different meaning than that propounded by the appellant. Section 95-201, R.C.M. 1947. Chapter 20, Title.95, R.C.M. 1947 "Justice and Police Court Proceedings", was accompanied by a Criminal Law Commission Comment which states inpart: "This Chapter includes only those sections which are peculiar or apply exclusively tojustice and police courts. 

# ** *I1 InChapter 20, the only post-trial relief afforded 

### is an appeal tothe district court for a trial de novo. Section 95-2009, R.C.M. 1947. It would be anomalous to expressly provide for

### a trial
anew inthe district court under section 95-2009 and atthe
same time infer the right toa trialanew inthejustice court under section 95-2101. This inconsistency is demonstrated by the fact that under section 95-2009(b) the defendant 

### is given ten days to filenotice of appeal, while under section 95-2101 (b) (2) the defendant is given thirty days to filea motion for
a new trial. Surely a defendant injustice court could not allow his appeal time to lapse and stillbe afforded the remedy of a new trial in the same court.In City of Billingsv. Smith, 158Mont. 197, 212, 490 P. 2d 221, this Court stated: "Where statutes relate to the same general subject they should be so construed together, where there 

### is no inconsistency between them, so as togive effect toboth where possible. 

# **

# * Allacts relating to the same subject, orhaving the same general purpose as the statutebeing construed, should be read in connection with such statute. 

# **

# * Statutes passed atthe same time, and relating to the same general subject are to be construed together and both given effect if possible. 

# *

# * **'I Under these principles of statutory construction, we decline toconstrue section 95-2101 in the manner urged by appellant. The district court properly held that section 95-2009 

### is
a justice court defendant's exclusive remedy for a new 

### trial. Appellant's second attack 

### is that the exclusive remedy of appeal pursuant to section 95-2101 

### is inequitable tojustice court defendants. In particular, it 

### is alleged that therewas extensive prosecutorialmisconduct in thejustice court trial and defendant Johnson should not be compelled tobear the expense of 

### a trial de novo in district court to correct the
errors of the prosecution. It 

### is further alleged that denial of defendant's access to the new trialprocedure of section 95-2101 

### is a denial of equaljustice tojustice court defendants vis-a-vis district court defendants. No authority 

### is cited for these propositions, and we reject them. Any defendant convicted injustice court has the fullbenefit of a new 

### trial in district court. Compare: Bailey v. State, 163Mont. 380, 383, 517 P.2d 708, where the appeal procedure of section 95-2009, R.C.M. 1947, 

### was described as "a plain, speedy and adequate remedy 

### at law." Appellant's arguments regarding additional costs and personal involvement ina district court trialde novo arenot persuasive.The order of the district court of January 5, 

### 1976, is a£ firmed.

We concur: 

### /'

, 

# i 

# \

/ 

### ef Justice.