No. 85-236 INTHE 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 theTwentieth JudicialDistrict, In and for theCounty 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

ClerkMr. 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 forwithdrawing 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 thatmotion. Fle affirm. The issue presented for review is whether, under the facts presented in this case, the District Court erred in ruling as amatter of law that there canbe 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 inwhich 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 reasonwhy 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 respondentwas then charged by information with ten counts of theft forwriting checks on the jointaccount. 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 theftbecause hewas a joint tenant in the account. The appellant, Sta-teofMontana, 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 alsohas 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 commissionof theftby a co-owner who exercisesunauthorized control with the purpose to permanently deprive

a co-owner ofhis 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 consentby any other person and that, therefore, a person cannotbe 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 theproperty of an owner" and, therefore, he could not be convicted of theft. He argues that it is abundantly clear that either joint tenantmay withdraw all funds froma joint tenancybank 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 thelaw on joint bank accounts or similar joint ownership arrangements is contained in S 32-1-442,MCA,which provides: 32-1-442. Jointdeposits--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 accountby diawing a-properorder 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 tenancybank accountproperty. Theft isdefined 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 suchmanner 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. Offender'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.san interest to which the offender isnot entitled.

(2) 

# ..

# .. The Criminal LawCommission 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 theproperty. Section 45-6-303,MCA (annot. )

# . The respondent presents the strongerargument. Statutes and case lawdemonstrate that a joint tenancy bank account is indeed a 

### special relationship between co-owners. This special relationship precludes applicationof the theft laws. For example S 

### 45-6-303,MCA, on the offender's interest in property requires the owner tohave "an interesttowhich 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 ina 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. JusticeL. 

### C. 

### Gulbrandsondissenting: Irespectfullydissent. In my view, the last sentence of the majority opinion would be legally sound if anadditionalwritten contractdid not exist between the two named joint tenants. Thema-jority refer to the contract,but, in effect,rule that as amatter of law the contents of that contract can

### haveno legal criminal effecton 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 ofhis contract, was not authorized to exercise control over the joint tenancy funds in the

manner which he did. Thismanner ofproceeding would recognize that the legislaturehad a. 

### legitimate reason for enacting § 

### 45-6-303,MCA.



### Mr. JusticeFred J. Weber joins in the foregoingdissent ofMr. JusticeL. C. 

### Gulbrandson.

Justice 

# c-