NO. 86-301 

IN THE SUPREME COURT OF THF STATE OF MONTANA 

1987 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-VSBENJAMTN EUGENE COLE, a/k/a GENO COLE, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Douglas G. Harkin, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

O'Brien & Conrad; Barbara J. Conrad, Missoula, 

Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

Joe R. Roberts, Asst. Atty. General, Helena 

Robert L. Deschamps, 111, County Attorney, Missoula, 

Montana 

Submitted on Briefs: 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 reverse and remand with instructions. 

The only issue raised by defendant on 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, can defendant 

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 ten years in the Montana State Prison with 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 in March 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 their possession of 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 the defendant's identity and his observations 

at the store. Two other police officers testified as to the 
defendant'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 abandonment of the engines. 

The defendant was charged, prosecuted and found guilty 

under 5 45-6-301(3), MCA which 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. (Emphasis added. ) 

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 to probation he 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, requires proof 

that the property must have been stolen by someone 

other than the receiver. Here the charge 

essentially was that defendant received the stolen 

property f;om himself. 

689 P.2~3 at 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 charged with receiving the property. 

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 

reasonable doubt, al.1 the elements of 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 charging document. 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 in Cole'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 defendant was 

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 

convicted of more 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 is not the case. If it is determined 

that one offense is a lesser included offense of another, 

then they are deemed to be the "same offense." Brown v. Ohio 

(1977), 432 U.S. 161, 168-169, 97 S.Ct. 2221, 2227, 53 

L.Ed.2d 187, 196. Cole cannot be 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 language and stated: 
The issue in LaMere was whether one who had 

received stolen property could give uncorroborated 

testimony against one who was charged with 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. (Emphasis added.) 

State v. Hernandez, 689 P.2d 1261, 1262, 41 St.Rep. 2063, 

2065. 

As we held in State v. Hall (Mont. 1986), 728 P.2d 1339, 

1341, 43 St.Rep. 2120, 2124, "double jeopardy in a second 

trial exists if the acts identified in the second information 

were admissible as evidence in the first trial and would have 

sustained a conviction under the first information." 

If so charged, the defendant could have been convicted 

of theft under 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 the defendant. / 

We Concur: 

Chief Justice 

- 
Justices 
Mr. 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 State v. Hernandez (Mont. 1984), 689 P.2d 1261, 

41 St.Rep. 2063. I disagree. There the defendant pleaded 

guilty and was sentenced for theft , S 45-6-301. He was then 

charged and convicted a 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 satisfaction of the jury that the defendant not 

only exercised control of known stolen property but in fact 

carried the property from the premises of the owner. State 

v. Lamere (1983), 202 Mont. 313, 658 P.2d 376, in my opinion, 

is still authority for the proposition that subsections (1) 

and (3) of S 45-6-301, MCA, define "statutorily distinct 

crimes. " 

In addition, the majority opinion has 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 and would have sustained a conviction under the 

first information." (Emphasis added.) The majority opinion 

and this opinion both now hold that the acts proposed to be 

charged against the defendant would - 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. Chief Justice J. A. Turnage: 

I concur with Mr. Justice Gulbrandson.