No. 85-236 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

STATE OF MONTANA, 

Plaintiff and Appellant, 

-vsDENNIS R. HAACK, 

Defendant and Respondent. 

APPEAL FRON: District Court of the Twentieth Judicial District, 

In and for the County of Lake, 

The Honorable C. B. McNeil, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Mark J. Murphy argued, Asst. Atty. General, Helena 

John R. Frederick, County Attorney, Polson, Montana 

For Respondent: 

Brian J. Smith argued; Manley & Smith, Polson, 

Montana 

Submitted: December 18, 1985 

Decided: February 7, 1986 

Filed: FEB 

Clerk 
Mr. Justice William E. Hunt, Sr., delivered the Opinion of 

the Court. 

The respondent, Dennis Haack, was charged with ten 

counts of theft for purposely or knowingly obtaining or 

exerting unauthorized control over property of the owner 

consisting of funds in a joint checking account. The 

respondent filed a motion to dismiss on the grounds that he 

was a joint owner in the joint checking account and 

authorized to withdraw funds from the account. The District 

Court found as a matter of law the respondent could not be 

convicted of the crime of theft for withdrawing funds from a 

joint tenancy bank account and granted the respondent's 

motion to dismiss. The appellant, State of Montana, appeals 

from the granting of that motion. 

Fle affirm. 

The issue presented for review is whether, under the 

facts presented in this case, the District Court erred in 

ruling as a matter of law that there can be no conviction for 

the crime of theft when an individual withdraws funds from a 

joint tenancy checking account if that individual is a joint 

tenant in that account. 

Because this matter is presented on appeal from the 

granting of a motion to dismiss, few facts have been 

presented in District Court. The record consists of the 

charging documents and the parties' briefs pertaining to the 

motion to dismiss. 

The record and the arguments on appeal show that the 

respondent, Dennis Haack, contracted with homeowners, George 

and Lois Carey, to construct a house for them. The Careys 

deposited a total of $30,000 in a joint checking account in 
which the respondent and George Carey were joint tenants 

authorized to draw from the account. The account contained 

the total funds for construction to completj.on and, 

evidently, included the respondent's potential profit also. 

Construction commenced and the respondent began drawing 

from the account. The charging documents allege that checks 

totaling in excess of $10,000 were drawn by the respondent 

for personal unauthorized purposes. Although the reason why 

is not clear, Careys requested that construction be halted. 

The reason may be that they had notice of the respondent's 

withdrawals. The Careys withdrew the remaining funds in the 

account and determined that the balance was less than should 

be in the account at that time. 

The respondent was then charged by information with ten 

counts of theft for writing checks on the joint account. The 

respondent successfully moved to dismiss the charges. The 

District Court found as a matter of law that the respondent 

could not be convicted of the crime of theft because he was a 

joint tenant in the account. 

The appellant, Sta-te of Montana, argues that 5 45-6-303, 

MCA, makes it perfectly clear that a joint tenant may be 

convicted of theft of joint tenancy property. Section 

45-6-303, MCA, provides that it is no defense to a charge of 

theft of property that the offender has an interest therein 

when the owner also has an interest to which the offender is 

not entitled. The appellant arques that if this Court finds 

any ambiguity in 5 45-6-303, MCA, it is immediately cleared 

up when the legislative comment to that code section is 

considered. The legislative comment contained in S 45-6-303, 

MCA, (annot. ) , states that the provision removes any doubt 

regarding the commission of theft by a co-owner who exercises 
unauthorized control with the purpose to permanently deprive 

a co-owner of his interest in the property. 

The respondent, Dennis Haack, argues that a joint 

tenancy bank account gives to both joint tenants the 

authority to exert control over the property placed in that 

account without further consent by any other person and that, 

therefore, a person cannot be convicted of theft as a result 

of withdrawing funds from a joint tenancy bank account. The 

respondent refers to several Montana cases for the 

proposition that a special interest is created by a joint 

bank account. He argues that such precludes a finding that 

he could have "exerted unauthorized control over the property 

of an owner" and, therefore, he could not be convicted of 

theft. He argues that it is abundantly clear that either 

joint tenant may withdraw all funds from a joint tenancy bank 

account without the consent of any other person because both 

joint tenants have the authority to exert absolute control 

over all the funds placed in such an account. The respondent 

recognizes S 45-6-303(l), MCA, relied on heavily by the 

appellant, but argues that it is not applicable because the 

owner had no "interest to which the offender is not 

entitled." 

We are solely concerned with whether, as a matter of 

law, a joint tenant may not be convicted of the crime of 

theft for drawing funds from a joint tenancy checking 

account. A joint tenancy bank account is a special 

relationship between co-owners. It is a relationship that 

may create an equal unrestricted and absolute interest in 

such co-owners with neither co-owner having an interest to 

which the other is not entitled. A statutory example of the 
law on joint bank accounts or similar joint ownership 

arrangements is contained in S 32-1-442, MCA, which provides: 

32-1-442. Joint deposits--survivorship. (1) When 

a deposit has been made . . . in the names of two 

or more persons, payable to either . . . such 

deposit, or any part thereof . . . may be paid to 

any of said persons . . .. 

There are a number of cases in. Montana on the nature of joint 

bank accounts. In Casgranda v. Dona.hue (1978), 178 Mont. 

479, 585 P.2d 1286, this Court said: 

A joint bank account has a special attribute which - 

allows either joint owner, by virtue of the 

contract with the bank, to acquire dominion over 

the entire account by diawing a -proper order on the 

bank. . . [elither party can acquire the whole 

account either by withdrawing it during the 

lifetime of the co-owners or by survivorship. 

Casagranda, 585 P.2d at 1288. 

A review of the applicable criminal statutes 

demonstrates that there can be no theft of joint 

tenancy bank account property. 

Theft is defined in 5 45-6-301, MCA, as: 

45-6-301. Theft. (1) A person commits the 

offense of theft when he purposely or knowingly 

obtains or exerts unauthorized control over the 

property of the owner a.nd: 

(a) has the purpose of depriving the owner of the 

property; 

(b) purposely or knowingly uses, conceals, or 

abandons the property in such manner as to deprive 

the owner of the property; or 

(C uses, conceals, or abandons the property 

knowing such use, concealment, or abandonment 

probably will deprive the owner of the property. 

(2) . . . . 

The Montana statutes have a provision concerning an 

offender's interest in the property. Section 45-6-303, MCA, 

provides : 

45-6-303. Of fender's interest in the property. 

(1) It is no defense to a charge of theft of 

property that the offender has an interest therein 

when the owner also ha.s an interest to which the 

offender is not entitled. 

(2) . . . . 

The Criminal Law Commission Comments state in regards to 

subsection (1) of 5 45-6-303, MCA: 
The provision removes any doubt regarding the 

commission of theft by a co-owner, such as a 

partner, joint tenant or tenant in common, or any 

other type of co-owner who exercises unauthorized 

control with the purpose to permanently deprive a 

co-owner of his interest in the property. Section 

45-6-303, MCA (annot. ) . 

The respondent presents the stronger argument. Statutes 

and case law demonstrate that a joint tenancy bank account is 

indeed a special relationship between co-owners. This 

special relationship precludes application of the theft laws. 

For example S 45-6-303, MCA, on the offender's interest in 

property requires the owner to have "an interest to which the 

offender is not entitled," and the comments to this section, 

s 45-6-303, MCA, (annot.), require "unauthorized. control." 

The special relationship between co-owners in a joint tenancy 

hank account cannot ha.ve any "unauthorized control" or 

"interest to which offender is not entitled" by a joint 

tenant. 

Affirmed. 

We Concur: 
Mr. Justice L. C. Gulbrandson dissenting: 

I respectfully dissent. 

In my view, the last sentence of the majority opinion 

would be legally sound if an additional written contract did 

not exist between the two named joint tenants. The ma-jority 

refer to the contract, but, in effect, rule that as a matter 

of law the contents of that contract can have no legal criminal effect on the use of the funds in the joint tenants' bank 

account. 

I would allow the State to prove, if it is able, that 

the defendant, by the terms of his contract, was not authorized to exercise control over the joint tenancy funds in the 

manner which he did. This manner of proceeding would recognize that the legislature had a. legitimate reason for enacting § 45-6-303, MCA. 

Mr. Justice Fred J. Weber joins in the foregoing dissent 

of Mr. Justice L. C. Gulbrandson. 

c- Justice