NO. 87-461 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsSALLY A. BARNES, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Twentieth Judicial District, 

In and for the County of Sanders, 

The Honorable C. B. McNeil, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Sally A. Barnes, pro se, Thompson Falls, Montana 

For Respondent: 

Mike Greely, Attorney General, Helena, Montana 

Peter Funk, Asst. Atty. General, Helena 

Claude I. Burlingame, County Attorney, Thompson Falls, 

Montana 

Submitted on Briefs: May 12, 1988 

Decided: June 21, 1988 

Filed : 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

Sally Barnes, hereafter referred to as "defendant, " 

appeals her conviction for selling beer and wine without a 

valid license from the Department of Revenue, a violation of 

§§ 16-6-301 and 16-6-302, MCA. We affirm. 

The record shows that the defendant's license to serve 

beer and wine on the premises of her restaurant was revoked 

on March 15, 1986 after the defendant had failed to renew the 

license. The record further reveals that two undercover 

investigators were served a total of six beers during three 

different trips to the restaurant in early October 1986 and 

then obtained a search warrant to confiscate the beer and 

wine and related evidence. The defendant was charged i.n 

Sanders County District Court with knowingly or purposely 

sell-ing or keeping for sale alcoholic beverages without a 

license. 

The defendant refused to plead to the charge at her 

arraignment so the District Court entered a not guilty plea 

for her. The case went to trial before a jury of Sanders 

County residents on May 11, 1987 and that jury, having heard 

the evidence presented, returned a verdict of guilty. The 

defendant raises the following issues on appeal: 

1. Do the licensing statutes forbid her from selling 

or serving beer and wine without a valid license? 

2. Did the Montana District Court have jurisdiction 

over the matter? 

3. Does such jurisdiction allow the court to enter a 

not guilty plea on her behalf; to deny her challenge to the 
entire pool of prospective jurors; to refuse her request to 

have a non-lawyer represent her; to rule that the State need 

not produce a "victim;" and to refuse her proposed 

instructions? 

The defendant has asserted throughout that as a natural 

born, white citizen she has a common-law right to sell beer 

and wine without a license from the State. The defendant's 

common law rights, whatever they may be, give way to a 

licensing system established by the Legislature to regulate 

the sale of alcoholic beverages. The United States 

Constitution contains two clauses protecting the privileges 

and immunities of citizens. Article IV, Sec. 2 protects 

citizens of one state from the actions of another, see Toomer 

v. Witsell (1948), 334 U.S. 385, 395, 68 S.Ct. 1156, 1162, 92 

L.Ed. 1460, 1471; while the Fourteenth Amendment protects a 

citizen's federal rights from abridgement by the states. The 

protections afforded by these clauses are not absolute and 

will yield to the reasonable exercise of state police powers. 

Toomer, 334 U.S at 396; Travis v. Yale & Towne Mfg. Co. 

(1920), 252 U.S. 60, 79, 40 S.Ct. 228, 231, 64 L.Ed. 460, 

469. Not all statutes imposing regulations abridge a 

citizen's privileges and immunities. Statutes regulating the 

sale of alcoholic beverages under the Twenty-first Amendment 

are a case in point. States have "broad power[sl under the 

Twenty-first Amendment to regulate the times, places, and 

circumstances under which liquor may be sold." New York 

State Liquor Authority v. Bellanca (1981), 452 U.S. 714, 715, 

101 S.Ct. 2599, 2600, 69 L.Ed.2d 357, 360. 
Section 16-1-101(3), MCA, declares the licensing system 

to be an exercise of the State's police power intended to 

protect the "welfare, health, peace, morals, and safety of 

the people . . . " This Court has held that the sale of 

alcoholic beverages is a matter that is "subject to the 

regulation and control of the police power of the state 

... " Feurherm & Neiss v. Schmaing (1979), 181 Mont. 136, 

142, 592 P.2d 924, 927; State v. Andre (1936), 101 Mont. 366, 

371, 54 P.2d 566, 568; see also Stephens v. City of Great 

Falls (1946), 119 Mont. 368, 372, 175 P.2d 408, 410. 

Sections 16-6-301 and 16-6-302, MCA, apply to the defendant 

just as they apply to every other resident of Montana. This 

latter section makes it a felony offense to sell or keep for 

sale alcoholic beverages without a license. This restriction 

is a valid application of the State's police power. 

The defendant failed to preserve any objection to the 

search warrant. However, we note also that the investigators 

complied with § 16-6-102, MCA, in securing the search 

warrant. The investigators were able to state of their own 

knowledge that defendant was serving beer and knew from two 

sources, one of them defendant's employee, that defendant did 

not have a valid license. They showed the warrant to 

defendant while executing the search and she was provided 

with a copy of the warrant and all supporting paperwork. The 

investigators knew an offense was being committed, they 

established reasonable cause, and were able to describe the 

place to be searched and the articles to be seized, all in 

accord with S 46-5-202, MCA, and Article TI, Sec. 11 of the 

Montana Constitution. 
District Courts are courts of general jurisdiction and 

have jurisdiction over felonies. See Article VII, Sec. 4 of 

the Montana Constitution, §$ 3-5-302(1)(a), 46-2-201, MCA. 

"Under section 3-5-302(1), MCA, the District Court is given 

original jurisdiction in all felony criminal cases and 'cases 

of misdemeanor not otherwise provided for.'" State v. 

Campbell (Mont. 1981), 622 P.2d 200, 202, 38 St.Rep. 19, 21. 

The defendant suggests that her status as a natural-born, 

white citizen deprives the District Court of jurisdiction, 

but has cited no binding authority for such a claim. 

When defendant refused at her second hearing for 

arraignment to enter a plea, the District Court entered a 

plea of not guilty for her, in accord with S 46-12-204(1), 

MCA . This did not prejudice defendant's rights. This 

complies with the law, which requires a plea on the 

defendant's part. See State v. Stevens (1946), 119 Mont. 

169, 172, 172 P.2d 299, 301; State v. Clancy (1898), 20 Mont. 

498, 502, 52 P. 267, 268. 

Next the defendant claims the trial jury was improperly 

constituted. Sections 3-15-301 and 3-15-303, MCA, define the 

qualifications of a juror. Defendant has failed to show that 

any of the jurors failed these qualifications and her effort 

to challenge the whole panel was without merit since she 

failed to discover any inherent interest or bias held by any 

of the prospective jurors, as required in S 46-16-304 (2) , 

MCA. We will not disturb the District Court's ruling where 

defendant has not proven an abuse of discretion. It is 

apparent that defendant meant not to disqualify these jurors 

but only to substitute others who might share defendant's 
views concerning licensing and other government regulation. 

The right of challenge is to reject individual panel members, 

not to select those who might be more sympathetic. State v. 

Huffman (1931), 89 Mont. 194, 198, 296 P. 789, 790. 

While defendant had the inalienable right to represent 

herself, she had no right to demand a non-lawyer be allowed 

to represent her. Section 37-61-211, MCA, provides that only 

licensed attorneys may practice law and the District Court 

was without authority to allow a non-lawyer to represent the 

defendant. Swift v. State (Mont. 1987), ?36 P.2d 117, 119, 

44 St.Rep. 786, 789; In re White (1918), 54 Mont. 476, 478, 

171 P. 759, 760. Similarly the court acted correctly when it 

ruled that the State did not have to produce a "victim" of 

the defendant's offense. Section 16-6-302, MCA, says that 

any person who sells or keeps for sale alcoholic beverages 

without a valid license is guilty of a felony. That law does 

not require the State to produce a "victim" if it can show, 

as the jury concluded it did here, that the defendant knew 

she was without a license and decided to continue selling 

beer and wine without paying her fair share for that 

privilege. In a sense the entire state, and every resident 

thereof other than the defendant, was the "victim" of the 

defendant's conduct. 

It is entirely within the discretion of the District 

Court to decide how to instruct the jury. We will not 

overturn except for an abuse of discretion. Although the 

instructions offered by the defendant were all rejected we 

note that they fail to note the law or cite Montana authority 

and that the few points they do make were included in the 
instructions given by the court. This does not represent 

abuse of discretion. See, FJebcor Electronics, Inc. v. Home 

Electronics, Inc. (Mont. 1988) , P.2d , 45 St.Rep. 

695, 697; In the Matter of the Estate of Hogan (Mont. 1985), 

708 P.2d 1018, 1019, 42 St.Rep. 1711, 1712. We also note 

that her instructions would have allowed the jury to assume 

the court's duty of determining questions of law. Section 

46-16-103 (2) , MCA, restates the doctrine that jurors decide 

facts and judges interpret the law. We will not deviate from 

that doctrine 

Affirmed. 

We concur: A' 

&P>P-( Justices