No. 13786 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

THE STATE OF MONTANA, 

Plaintiff and Appellant, 

-vsFRANK COLE, JR., 

Defendant and Respondent. 

Appeal from: District Court of the Thirteenth Judicial 

District, 

Honorable Robert H. Wilson, Judqe presiding. 

Counsel of Record: 

For Appellant: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Arthur W. Ayers, Jr., argued, County Attorney, 

Red Lodge, Montana 

For Respondent : 

Kampfe and Perhacs, Red Lodge, Montana 

D. Frank Kampfe argued, Red Lodge, Montana 

Submitted: September 26, 1977 

Decided : 'JCi 26 1977 
Mr. Chief Justice Paul G. Hatfield delivered the Opinion of 

the Court. 

The Carbon County attorney charged defendant with 

four counts of official misconduct under section 94-7-401, 

R.C.M. 1947. Defendant moved to dismiss the four count 

Information. The district court granted the motion to dismiss 

Count I and denied the dismissal of Counts 11, 111, and IV. 

The Carbon County attorney appeals the dismissal. 

On January 20, 1977, the Carbon County attorney applied 

to the district court for leave to file an Information charging 

defendant with four counts of official misconduct while chairman 

of the Carbon County Board of County Commissioners. The county 

attorney supported his application with an affidavit wherein 

he set forth various facts tending to establish probable cause 

for believing defendant committed the offenses. The court granted 

leave to file the Information. 

Count I of the Information charged that defendant, in 

his official capacity, had knowingly performed an act which he 

knew was prohibited by law (section 16-1803, R.C.M. 1947) when 

he entered into a contract to purchase road machinery from Allied 

Equipment Company for a sum in excess of $10,000 without first 

publishing a notice calling for bids. 

On February 14, 1977, defendant filed two motions to 

dismiss. In the motion entitled ''MOTION TO DISMISS" defendant 

asserted that Count I failed to charge an offense because section 

16-1803 pertains only to the "county governing body" qnd not to 

an individual commissioner, such as defendant. In his motion 

entitled "MOTION TO DISMISS - #2", defendant alleged the affidavits he submitted in support of that motion showed he did not 

commit an offense. 

Defendant and the Allied Equipment Company salesman 

and president swore in the affidavits accompanying "MOTION TO 

DISMISS - #2" that no contract had been entered into by defendant 
with ~llied, as alleged in the Information's Count I. The 

affiants all asserted that, although defendant had signed 

an order form, the purpose of the form was to allow the salesman to order the equipment to county specifications of the 

equipment might be available when the county accepted equipment bids. The affiants stated the form in no way bound Carbon 

County to the purchase of the machinery. Defendant and the 

other two county commissioners stated in affidavits that the 

commissioners published a call for bids in the February 26, 

March 4 and March 11, 1976, Carbon County News and did not 

accept Allied Equipment Company's bid until the regular meeting 

of the commissioners on March 11, 1976. 

The Carbon County attorney submitted no counter-affidavits and offered no other proof to rebut the sworn statements 

in the affidavits submitted by defendant. On March 7, 1977, the 

district court ordered that Count I of the Information be dismissed, without setting forth the reasons for the dismissal. 

The issues on appeal are whether a trial judge may dismiss a criminal case prior to trial over the objection of the 

prosecuting attorney, and, if he may, whether the trial judge 

in this case followed the proper procedure in dismissing Count I. 

Appellant state of Montana notes that the district court 

did not specify the basis for its dismissal of Count I, and 

asserts that either ground for dismissal advanced by defendant 

was insufficient. The state argues the proscription in section 

16-1803(1), R.C.M. 1947, against a county governing body entering into certain contracts without first publishing a notice 

calling for bids, applied to each county commissioner individually, 

as well as to the commissioners as a body. Appellant maintains 

dismissal for the reason that section 16-1803(1) did not apply 

to defendant as an individual was therefore incorrect. Appellant 
asserts that neither could the judge dismiss Count I on the 

basis of the affidavits defendant submitted with his "MOTION 

TO DISMISS - #2". The affidavits went directly to the general 

issue to be determined at trial, that of whether defendant 

had actually entered into an unauthorized contract. The state 

contends that issue is a question to be decided by the jury 

at trial and not by the judge prior to trial. As the state 

notes, section 95-1701, R.C.M. 1947, which sets forth the defenses and objections which a defendant may raise before trial, 

allows motions only for "Any defense or objection which is capable of determination without the trial of the general issue * * *." 

Unlike the defense of entrapment raised by pretrial motion in 

State ex rel. Hamlin v. ~istrict Court, 163 Mont. 16, 515 P.2d 

74 (1973), defendant's defense in his "MOTION TO DISMISS - #2" 

went squarely to the general issue of existence or nonexistence 

of a contract, and was, therefore, not authorized by section 95- 

1701. 

The judge could, however, for the reason there were 

insufficient facts to bring defendant to trial, dismiss Count I 

of the Information under section 95-1703, R.C.M. 1947, which 

provides "The court may * * * on its own motion * * * and in 

furtherance of justice, order an * * * information * * * to be 

dismissed * * *." The defendant in State ex rel. Forsythe v. 

Coate, Mont . , 558 P.2d 647, 33 St.Rep.1350 (1976), was 

also charged with official misconduct, and sought to dismiss 

the charge. This Court held the district judge in Forsythe had 

the authority under section 95-1703 to dismiss the indictment 

where he was thoroughly familiar with the facts underlying the 

alleged offense. The motion to dismiss by the defendant in 

Forsythe was in effect a motion requesting the court to exercise 

its discretion to dismiss a charge "on its own motion" and "in 
furtherance of justice". See: People v. Benson, 64 Cal.App.3d 

Supp. 10, 134 Cal.Rptr. 766 (1976). 

The authority of the court to dismiss an Information 

under section 95-1703, however, is not unbridled. The court 

nay only dismiss the Information if dismissal is "in furtherance 

of justice". Section 95-1703 further requires "the reasons of 

the dismissal must be set forth in an order entered upon the 

minutes." If the reasons for dismissal are not set forth, this 

judge 

Court has no basis to review whether the trial/exercised his discretion to dismiss within the "in furtherance of justice" standard. 

The "in furtherance of justice" standard, though not 

defined in section 95-1703, is not merely verbiage; rather, it 

requires that the court exercise its discretion to dismiss a 

criminal charge " * * * in view of the constitutional rights of 

the defendant and the interests of society * * *". State ex rel. 

Anderson v. Gile, 119 Mont. 182, 187, 172 P.2d 583 (1946). The 

California courts, interpreting the California Penal Code, section 1385, a section virtually identical to section 95-1703, R.C.M. 

1947, have stated the factors which a trial court should consider 

before dismissing a case, either before trial or after a verdict, 

include weighing the evidence indicative of guilt or innocence, 

the nature of the crime involved, the length, if any, of the defendant's pretrial incarceration, and the possible harassment 

and burdens imposed upon the defendant by a trial. People v. 

Superior Court of Marin County, 69 Cal.2d 491, 72 Ca1.Rpt.r. 330, 

446 P.2d 138, 147 (1968); People v. Ritchie, 17 Cal.App.3d 

1098, 95 Cal.Rptr.462, 466 (1971). 

Because the trial judge in this case did not set forth 

the reasons for dismissing Count I, we can only guess as to the 

rationale for the dismissal. If he dismissed the Count because 

he felt that an individual commissioner cannot violate section 
16-1803, R.C.M. 1947, the rationale advance by defendant in 

his "MOTION TO DISMISS", the judge was incorrect. An individual commissioner may be criminally liable for official misconduct under section 94-7-401(1) (c), R.C.M. 1947, for entering 

into a contract for the purchase of road equipment in excess 

of $10,000 cost, without publishing notice calling for bids. 

Section 94-7-401 (1) (c) states: 

"(1) A public servant commits the offense 

of official misconduct when, in his official 

capacity * * * 

"(c) with the purpose to obtain advantage for 

himself or another, he performs an act in 

excess of his lawful authority * * *." 

Although it is true, as defendant maintains, that section 

16-1803 allows only the county governing body as a unit to enter 

into such construction contracts, this section merely defines the 

scope of the commissionerst lawful authority. Any contract made 

by an individual board member without board approval is "an act 

in excess of his lawful authority", and a crime under section 94- 

7-401 (1) (c) . 

Defendant maintains that the affidavits he submitted with 

his "MOTION TO DISMISS - #2" were uncontested by the state, clearly 

proved defendant had not entered into any contract, and warranted 

the judge in dismissing Count I "in the furtherance of justice". 

Defendant asserts the judge was fully cognizant of 

the attendant facts of this case because the affidavits which 

defendant submitted with his "MOTION TO DISMISS - #2" were identical to the affidavits he submitted in support of a motion for 

summary judgment which the judge previously granted in a civil 

case. Defendant maintains that the affidavits stood uncontroverted 

by any other evidence in the civil case, were part of the court 

record, and provided the judge with the basis on which to make an 

informed judgment to order dismissal of Count I of the criminal 

Information. 
If these were the judge's reasons for dismissing Count 

I, he did not state them in the record. In an order filed 

March 9, 1977, the judge merely stated that "IT IS ORDERED that 

said motion to dismiss Count I be, and hereby is, granted." The 

judge had no authority under section 95-1701 to grant a defendant's motion to dismiss based on a defense which went to the 

general issue to be determined at trial. If the judge wishes to 

dismiss Count I of the Information on his own motion and in the 

furtherance of justice, under section 95-1703, he must set forth 

the reasons for the dismissal in an order entered on the minutes. 

The order of dismissal is vacated and the case is remanded to the district court for further proceedings consistent 

with this opinion. -3 

Chief Justice A 

Justices G-*