NO. 86-301


### IN THE SUPREME COURT OF THF STATEOF MONTANA
1987

STATEOF MONTANA, Plaintiffand Respondent,-VSBENJAMTN EUGENE COLE, a/k/aGENO COLE, Defendantand Appellant.

APPEAL FROM: District Court of the Fourth JudicialDistrict, Inand for theCounty ofMissoula, The Honorable DouglasG. Harkin, Judgepresiding.
COUNSEL OF RECORD:
ForAppellant: O'Brien & Conrad; Barbara J. Conrad, Missoula, Montana
For Respondent:
Hon. Mike Greely,Attorney General, Helena,Montana JoeR. Roberts,Asst. Atty. General, Helena Robert L. Deschamps, 111, County Attorney, Missoula, Montana

Submitted onBriefs: Jan. 15, 1987 Decided: April 

### 16, 1987 Filed: 

## APRlGI987

### Mr. Justice William E. 

### Hunt, Sr., delivered the Opinion of the Court.

Defendant, Benjamin Eugene Cole, a/k/a "Geno" Cole, appeals from a conviction of receiving stolen property from the Fourth Judicial District, Missoula County, Missoula, Montana. From this conviction, Cole appeals. We reverseand remandwith instructions. The only issueraised by defendanton appeal which needs to be discussed is: Whether there is sufficient evidence to conclude beyond a reasonable doubt that the defendant was guilty of receiving stolen property as charged under 5 45-6-301(3),MCA, and if lacking such evidence, candefendant be retried under the general theft statute, 

### 5 45-6-301(1), MCA? In a jury trial, the defendant was found guilty of felony theft as charged under S 

### 45-6-301(3), MCA. He was sentenced to tenyears in theMontana State Prisonwith five suspended. He was required to pay restitution and costs. The jury found that defendant and three co-participants stole five engines from a Missoula construction company's warehouse inMarch of 1985. The four young men tried to sell the engines to the proprietor of a secondhand store, were unsuccessful, and abandoned the engines along a rural road. The proprietor testified as to the attempt to sell the engines to his business and his consequent suspicions as to the legality of theirpossessionof the engines. An off-duty police officer happened to be in the secondhand store at the time of the attempted sale. He testified as to thedefendant's identityand his observations at the store. Two otherpolice officers testified as to thedefendant's identity and their participation in the investigations. The owner of the engines testified as to the break in, theft, and value and use of the engines in question. The three co-participants in the theft testified against defendant Cole, implicating him in the theft,attempted sale and abandonmentof the engines. The defendant was charged,prosecuted and found guilty under 5 45-6-301(3),MCAwhich states: A person commits the offense of theft when he purposely or knowingly obtains control over stolen property knowing the property to have been stolen another. (Emphasisadded.) The decisive case on this issue is State v. Hernandez (Mont. 1984), 689 P.2d 1261, 41 St.Rep. 2063. In Hernandez, the defendant previously plead guilty to burglary and theft of coins under subsection 

### (1) of S 45-6-301. After being sentenced toprobationhe attempted to sell some of the coins which he had previously stolen. The State charged him a second time for theft of the coins under subsection three of S 45-6-301. Defendant's conviction was reversed on the grounds of double jeopardy and statutory grounds. We stated: This statute,adopted from Il.linois,requiresproof that the property must have been stolenby someone other than the receiver. Here the charge essentially was that defendant received the stolen property f;om himself.
689 P.2~3at 1262-1263. Due to the fact that the Montana Criminal Code is modeled after the Illinois Criminal Code, this Court agreed with the Illinois court's requirement that the property must be shown to he stolen by a person other than the one chargedwith receiving theproperty. The State successfully proved all the elements of theft requjred in S 45-6-301(1),MCA. [Jnfortunately for the State,Cole was not charged under this statute. For the reasons cited above we hold that the State failed to prove, beyond a reasonabledoubt,al.1the elementsof the theft charged under S 45-6-301(3). Defendant Cole is acquitted and the charges
are dismissed. In its argument, the State concedes to prosecutorial
error on the chargingdocument. On appeal the State requests permission to retry defendant Cole, contending that there will be no double jeopardy bar to the new trial if Cole is charged with theft under S 45-6-301(1). To avoid wasted energy and expense to the parties, we have considered the double jeopardy issue and hold that double jeopardy would attach upon any attempt by the State to retry defendant Cole for the offense at issue. The double jeopardy clause of the Fifth Amendment provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." This clause is enforceable in Montana through the Fourteenth Amendment. Benton v. Maryland (1969), 395 U.S. 784, 795, 89 S.Ct. 2056, 2063, 23 L.Ed.2d 707, 716. The Montana Constitution,Art. 11,S 25 provides for a similar protection against double jeopardy. The constitutional prohibition of double jeopardy has been held to consist of separate guarantees including protection against a second prosecution for the same offense after acquittal. North Carolina v. Pearce (1969), 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656, 665. Jeopardy attached inCole's theft trial at the time of the empaneling and swearing of the jury. Crist

v. Bretz (1978), 437 U.S. 28, 38, 98 S.Ct. 2156, 2162, 57 L.Ed.2d 24, 33. In the present case, double jeopardy is predicated on whether the offense of theft defined under S 45-6-301(1),MCA, is the "same offense" as the theft which defendantwas charged and convicted under; S 45-6-301(3),MCA. Section 46-11-502,MCA,provides that When the same transaction may establish the commission of more than one offense, a person charged with such conduct may be prosecuted for each such offense. He may not, however, be convictedofmore than one offense if: 1) one offense is included in the other; 

# ... 4) the offenses differ only 

### in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit 

### a specific instance of such conduct

# . .. All of the elements of subsection (1) of S 45-6-301 are included in subsection (3). Further, subsection (1) is defined to prohibit the general conduct of theft and subsection (3) is to prohibit a specific instance of receiving stolen property. In People v. Reauchemin (1979),71 Ill.App.3d 102, 107, 389 N.E.2d 580, 584, the Illinois Supreme Court stated that their comparable subsection (1) theft statute is a lesser included offense of their comparable subsection (3) theft statute but the reverse isnot the case. If it is determined that one offense is a lesser included offense of another, then they aredeemed to be the "sameoffense." Brownv. Ohio

(1977), 432 U.S. 161, 168-169, 97 S.Ct. 2221, 2227, 53 L.Ed.2d 187, 196. Cole cannotbe retried for committing the same offense as that which he is acquitted of. The State cites State v. Lamere (1983), 202 Mont. 313, 658 P.2d 376 as determinative in this case. 

### In Lamere, this Court 

### did state that subsections (3) and (1)of S 45-6-301 are "statutorily distinct crimes." 658 P.2d at 379. However, in a more recent decision this Court clarified the Lamere languageand stated:

### The issue in LaMere was whether one who had received stolen property could give uncorroborated testimony againstone whowas chargedwith stealing that property. We held it permissible because theft of goods by one defendant and receipt of those stolen goods from another defendant are separate crimes. For purposes of the double jeopardy provision 

### --- oFour own conytitution

## , the offenses - 

### as charged here were clearly for the same 

### -- --- offense. (Emphasisadded.)
State v. Hernandez, 689 P.2d 1261, 1262, 41 St.Rep. 2063, 2065.As we held in Statev. Hall (Mont.1986), 728 P.2d 1339, 1341, 43 St.Rep. 2120, 2124, "double jeopardy in a second trialexists if the acts identified in the second information
were admissibleas evidence in the first trialandwould have sustaineda conviction under the first information." If so charged, the defendant could have been convicted of theftunder subsection (1)of $3 

### 45-6-301. However,due to prosecutorial error the defendant was found guilty of violating subsection (3). 

### The evidence was insufficient to support such a conviction. A retrial would violate the double jeopardy clauses of the U. 

### S. and Montana Constitutions. Reversed and remanded to the District Court to dismiss the charges against thedefendant. /



### We Concur:

ChiefJustice 

# -JusticesMr. Justice L. C. Gulbrandson, concurring and dissenting.



### I concur that the conviction of the defendant for possession of stolen property should be set aside, but 

### I do not agree that the defendant cannot be tried under the general theft statute, § 45-6-301(1),MCA. The majority opinion states that the decisive case on this issue is Statev. Hernandez (Mont. 1984), 689 P.2d 1261, 41 St.Rep. 2063. I disagree. There the defendant pleaded guilty andwas sentenced for theft 

## ,S 45-6-301. He was then charged and convicteda second time for theft, § 45-6-301(3), receiving stolen property, the same property he had already pleaded guilty to stealing, and this Court reversed the second conviction. Here, the conviction for theft,receiving stolen property, is to be set aside and the only remaining issue is whether he can be charged and tried for theft. It appears in this case that the witnesses called by the State proved to the satisfactionof the jury that thedefendant not only exercised control of known stolen property but in fact carried the property from thepremises of the owner. State

v. Lamere (1983),202Mont. 313, 658P.2d 376,inmy opinion, is still authority for the proposition that subsections (1) and (3) of S 45-6-301, MCA, define "statutorily distinct crimes.

### " In addition, themajority opinionhas quoted from State

v. Hall (Mont. 1986),728 P.2d 1339,43 St.Rep. 2120, "double jeopardy in a second trial exists if the acts identified in the second information were admissible as evidence in the first trial andwould have sustained a conviction under the first information." (Emphasisadded.) Themajority opinion and this opinion both now hold that the acts proposed to be charged against the defendantwould 

### - not sustain a conviction

### under the first information, that of receiving stolen property. I would not hold that a retrial would violate the double jeopardy clauses of the United States and Montana Constitutions. See 

### Lowery 

### v. Estelle (1983), 696 

### ~.2d 333; 

### Illinois v. Vitale (1980), 447 U.S. 410, 100 S.Ct. 2260, 65 

### L.Ed.2d 228; and Garrett 

### v. United States (19851, U.S.



### Mr. ChiefJusticeJ.

### A. Turnage:


### I concurwithMr. JusticeGulbrandson.