No. 13655 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

THE STATE OF BIOFJTANA, 

Plaintiff and Appellant, 

-vsELONE ELAINE COOL, 

Defendant and Respondent. 

Appeal from: District Court of the First Judicial District, 

Honorable Gordon R. Bennett, Judge presiding. 

Counsel of Record: 

For Appellant: 

Mike Greely, Attorney General, Helena, Fontana 

Charles A. Graveley argued, County Attorney, 

Helena, Montana 

Michael McCabe argued, Deputy County Attorney, 

Helena, Montana 

For Respondent: 

David N. Hull argued, Helena, Montana 

Submitted: May 31, 1977 

Decided : 

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Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

A criminal complaint was filed May 17, 1976, in the district 

court, Lewis and Clark County, charging defendant Elone Elaine Cool 

with the crime of theft, a felony, in violation of section 94-6- 

302 (1) (a), R.C.M. 1947. 

Trial commenced November 8, 1976 and at the close of the 

state's case-in-chief, the defense moved for acquittal alleging the 

state failed to prove a prima facie case against defendant. That 

motion was denied. The defense went forward with its case and at 

the close of all evidence made a motion for a directed verdict of 

acquittal for the reason the evidence as presented by the state was 

insufficient as a matter of law to allow it to go to the jury. The 

judge granted that motion and dismissed the case. 

The state filed a notice of appeal on November 10, 1976. 

On April 20, 1977, defendant's counsel filed a motion to dismiss 

the appeal on the grounds it violated the double jeopardy clause, 

Fifth Amendment, United States Constitution, and on May 18, 1977, 

counsel filed an amended motion to dismiss the appeal adding the 

ground that this Court lacked jurisdiction to hear the state's 

appeal. 

The controlling question here is whether this Court has 

jurisdiction to hear the state's appeal of a district court's 

judgment of acquittal. 

Section 95-2403, R.C.M. 1947, controls the appeals the 

state may take in a criminal proceeding, it provides: 

"Scope of appeal. (a) Except as authorized by this 

code, the state may not appeal in a criminal case. 

" (b) The state may appeal from any court 

order or judgment the substantive effect of which 

results in: 

" (1) dismissing a case; 
"(2) modifying or changing the verdict as 

provided in section 95-2101 (c) (3) ; 

" (3) granting a new trial; 

"(4) quashing an arrest or search warrant; 

" (5) suppressing evidence ; 

"(6) suppressing a confession or admission; or 

"(7) granting or denying change of venue." 

Here the state contends the state of Montana has a statutory 

right to appeal under section 95-2403(b)(l). It argues the district 

court's ruling was in fact a dismissal. Defendant argues this was 

a motion for acquittal and such a motion does not constitute a dismissal of the case as contemplated in section 95-2403(b) (1). 

We find no merit in the state's argument in relation to 

section 95-2403 (b) (1) , because subsection (b) (1) simply does not 

apply to the instant fact situation, no matter how the state tortures 

the language used by the district court. The court very clearly and 

with precision informed the state in reference to the evidence: "I 

am just saying that it's insufficient." There can be no question 

from the record before this Court that the district court's dismissal 

was an acquittal in substance as well as form. 

The United States Supreme Court in United States v. Ball, 

163 U.S. 662, 16 S.Ct. 1192, 41 L ed 300 and Fong Foo v. United 

States, 369 U.S. 141, 82 S.Ct. 671, 7 L ed 2d 629, emphasized that 

what constitutes an acquittal is not to be controlled by the form 

of the judge's action. Rather, this Court must determine whether 

the ruling of the judge, whatever its label, actually represents a 

resolution, correct or not, of some or all of the factual elements 

of the offense charged. 

This Court in State v. Peck, 83 Mont. 327, 330, 271 P. 707, 

stated that statutes granting the right of appeal to the state in 

criminal actions must be strictly construed and the right limited to 
the instances mentioned; if the right is not clearly and unequivocably 

conferred, an action does not lie, nor can the right, if conferred, 

be enlarged by construction of the statute. 

In an early Montana case, Territory of Montana v. Philip 

Laun, 8 Mont. 322, 20 P. 652, the district court directed the jury 

to find a verdict of acquittal and the state appealed contending 

that the action was in effect a dismissal of the case and thus appealable under the precurser to section 95-2403. This Court disagreed 

stating that an acquittal is not appealable by the state. This rule 

is still the law in Montana. 

Perhaps the most fundamental rule in the history of criminal 

jurisprudence has been that a verdict of acquittal cannot be reviewed, 

on error or otherwise, without putting a defendant twice in jeopardy 

and therefore violating the Fifth Amendment, United States Constitution. United States v. Ball, supra. The due process clause of the 

Fifth Amendment has been applied to the states through the Fourteenth 

Amendment to the United States Constitution. In Benton v. Maryland, 

395 U.S. 784, 794, 89 S.Ct. 2056, 23 L ed 2d 707, the United States 

Supreme Court stated: 

" * * * the double jeopardy prohibition of the 

Fifth Amendment represents a fundamental ideal 

in our constitutional heritage, and that it 

should apply to the States through the Fourteenth 

Amendment. " 

See also: United States v. Martin Linen Supply Co., No. 76-120, 

21 Crim. L.R. 3001, 45 United States Law Week 4337, April 4, 1977. 

For the foregoing reasons defendant's amended motion to 

dismiss the state's appeal is granted. ,lLx

Justice 

i 
We Concur: 

qmbdb Chief Justice 

ii 

Justices 
State of Montana v. Elone Elaine Cool ---No. 13655 

Mr. Justice Daniel J. Shea separately concurring: 

I concur in the result of this case but I do not agree with 

the implications of this decision holding that a district court 

has the power to dismiss a criminal case before it goes to the 

jury on the grounds of insufficiency of the evidence. Whether 

the district judge was right or wrong in dismissing this case, 

it is clear double jeopardy would prevent defendant from again 

being tried for the same offense. Whether it was an acquittal or 

dismissal for insufficiency of the evidence it makes no difference. 

Double jeopardy attaches. 

I am not convinced however, that a district judge has the 

right to take a case away from a jury on the grounds of insufficiency of the evidence, whether the motion be one to acquit 

or one to dismiss. In relying on Territory of Montana v. Philip 

Laun, 8 Mont. 322, 327, 20 P. 652 (1889), the court states that 

this case has never been overruled and is still the law in 

Montana. While it has not been overruled, it is no longer the 

law in Montana. In Laun, the Court stated: 

"The practice of directing an acquittal whenever 

the evidence, in the discretion of the judge, 

fails to support the charge, is well recognized 

as a proper order in criminal procedure. * * * 

There is no law in our statutes, express or implied, 

which forbids the exercise of this power in the 

trial judge * * *." (Emphasis added.) 8 Mont. 327. 

By this language it is clear that in Laun the Court felt 

it was clearly within the power of the legislature to expressly 

or impliedly take this power away from the district courts. I 

believe that subsequent statutes have taken that power away 

from district courts, first expressly, and presently, by implication. 
Section 94-7227, R.C.M. 1947, was enacted after Laun 

was decided and remained in effect until 1967, when the present 

statutes were adopted. It provided in relevant part: 

'I* * * If, at any time after the evidence on 

either side is closed, the court deems it insufficient to warrant a conviction, it may 

advise the jury to acquit the defendant; but 

the jury is not bound by the advice. I I 

It is clear this statute prevented a district judge from 

taking a case away from the jury on the grounds of insufficient evidence, or directing it to find a verdict of not guilty 

because of insufficient evidence. He could only advise that, 

in his opinion, the jury should acquit because of insufficient 

evidence. Accordingly, when section 94-7227 went into effect, 

- Laun was no longer the law. 

Section 94-7227 remained in effect until 1967. It is true 

that even while it was in effect, it was held it did not apply 

to situations where there was - no evidence to support a conviction. 

State v. Labbitt, 117 Mont. 26, 35, 156 P.2d 163 (1945) ; State 

v. Widdicombe, 130 Mont. 325, 330, 301 P.2d 1116 (1956); State 

v. Perschon, 131 Mont. 330, 337, 310 P.2d 591 (1957). These 

cases distinguish between situations in which the trial court 

deems the evidence, although tending to prove every element 

necessary to constitute the crime charged, insufficient, and 

situations where there was a lack of any evidence on a material 

element of the crime charged. In the first instance the district 

court could not dismiss the case (section 94-7227,R.C.M. 1947), 

but in the second situation he could dismiss the case before it 

went to the jury. Such was the state of the law when section 94- 

7227 was repealed and section 95-2101, R.C.M. 1947, replaced it. 
Section 95-2101 details the powers of district judges 

after the trial of criminal actions and provides: 

"New Trial. (a) Definition and Effect. A new trial 

is a -xamination of the issue in the same court, 

before another jury, after a verdict or finding has 

been rendered and the granting of a new trial places 

the parties in the same position as if there had been 

no trial. 

" (b) Motion for a New Trial. 

"(1) Following a verdict or finding of guilty 

the court may grant the defendant a new trial if 

required in the interest of justice. 

'(2) The motion for a new trial shall be in 

writing and shall be filed by the defendant within thirty 

(30) days following a verdict or finding of guilty. 

Reasonable notice of the motion shall be served upon 

the state. 

"(3) The motion for a new trial shall specify 

the grounds therefor. 

" (c) Alternative Authority of the Court on Hearing 

Motion for New Trial. On hearing the motion for a new 

trial, if justified.by law, and the weight of the evidence, the court may: 

"1. Deny the motion, 

"2. Grant a new trial, or 

3 Modify or change the verdict or finding by 

finding the defendant guilty of a lesser degree of the 

crime charged, finding the defendant guilty of a 

lesser included crime or finding the defendant not 

guilty .I' (Emphasis added. ) 

The underlined portion of the above quoted statute, I 

believe, was designed to give the district courts all the power 

they needed to correct an injustice caused by an erroneous jury 

verdict of guilty. The trial judge can, among other things, 

either modify a jury verdict by changing it to a lesser included 

offense, or he can find the defendant not guilty. The salient 

point, however, is that if the district court does this, and 

since it is after the trial, the state has the right to appeal 
as expressly provided in section 95-2403, R.C.M. 1947. 

Section 95-2403(b) (2) provides: 

"(b) The state may appeal from any court order or 

judgment the substantive ef fect of which results in: 

'I* * * 

"(2) modifying or changing the verdict as provided 

in section 95-2101(c) (3)". 

It is clear then that if the court does nrodify or change the 

verdict, the state can appeal. 

Allowing the state to appeal under these circumstances 

does not subject the defendant to double jeopardy. If the 

state loses the appeal, the district court's order modifying 

the jury verdict or finding the defendant not guilty, stands 

and that is the end of the case. If the state wins its appeal, 

the effect is that the guilty verdict is reinstated and defendant still has been subjected to but one trial. The only 

thing left then is the sentencing. This statute protects 

both the rights of the state and those of defendant. The 

state's right to appeal is protected and the more important 

right of the defendant not to be twice put in jeopardy is 

protected. 

The majority decision did not deal at all with this 

problem and I can conceive its decision is going to cause 

problems in Montana. 

For the foregoing reasons, I would uphold the decision of 

the district court in dismissing --- solely for the reason that 

double jeopardy attached under the factual situation here. However, I would also hold that a district court has no right to 

enter an order of dismissal or an order of acquittal on the 

grounds of insufficiency of the evidence. The remedy of defendant 

is provided in section 95-2101. 

A