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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# -aa 9 CleMr. Justice Gene B. Daly delivered the Opinion of the Court.

A criminal complaintwas 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 statemay 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 tothe 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 FifthAmendment, 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: 

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## * * 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. 

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Justice 

### iWe Concur: 

# qmbdb Chief Justice


# ii JusticesState of Montana v. Elone Elaine Cool ---No. 13655

Mr. JusticeDaniel 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 todismiss a criminal case before it goes to the jury on the grounds of insufficiency of the evidence. Whether the districtjudge was right orwrong in dismissing this case, it 

### isclear doublejeopardy would prevent defendant from again being tried for the same offense. Whether itwas an acquittal or dismissal for insufficiency of the evidence itmakes no difference. Double jeopardy attaches. I am not convinced however, that a districtjudge 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 todismiss. In relying on Territory of Montana v. Philip Laun, 8Mont. 322, 327, 20 P. 652 (1889), the court states that this case has never been overruled and 

### is stillthe law in Montana. While it has not been overruled, it 

### isno longer the law inMontana. InLaun, the Court stated: "The practice of directingan acquittalwhenever the evidence, inthe discretion of thejudge, fails to support the charge, 

### iswell recognized as a proper order incriminalprocedure. 

# *

# ** There 

### isno law inour statutes, express or implied, which forbids the exercise of this power in the trialjudge

# ** *." (Emphasis added.) 8Mont. 327. By this language it isclear that inLaun the Court felt itwas clearlywithin the power of the legislature toexpressly

or impliedly take thispower away from the district courts. 

### I believe that subsequent statuteshave taken that power away from district courts, firstexpressly, and presently, by implication.Section 94-7227, R.C.M. 1947, was enacted afterLaun

was decided and remained in effectuntil 1967, when the present statuteswere adopted. It provided inrelevant part:

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# ** If, atany timeafter the evidence on either side 

### is closed, the court deems it insufficient towarrant a conviction, it may advise thejury toacquit the defendant; but the jury 

### isnot bound by the advice. II It 

### isclear this statuteprevented a districtjudge from taking a case away from thejury 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, inhis opinion, thejury should acquit because of insufficient evidence. Accordingly, when section 94-7227 went into effect, Laun was no longer the law.



# -Section 94-7227 remained ineffect until 1967. It 

### is true that even while itwas ineffect, itwas held it did not apply to situationswhere therewas 

# - no evidence to support a conviction. Statev. Labbitt, 117Mont. 26, 35, 156 P.2d 163 (1945); State

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



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

cases distinguishbetween situations inwhich the trialcourt deems the evidence, although tending toprove every element necessary toconstitute the crime charged, insufficient, and situations where therewas a lack of 

### any evidence on a material element of the crime charged. In the firstinstance the district court could not dismiss the case (section 94-7227,R.C.M. 1947), 

### but 

### in the second situationhe could dismiss the case before it went to thejury. Such was the stateof 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 districtjudges 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 anotherjury, after

### a verdict or findinghas been rendered and the granting of a new trialplaces the parties in the same position as if therehad 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 shallbe in writing and shallbe filedby the defendant within thirty (30) days following a verdict or finding of guilty. Reasonable notice of the motion shallbe served upon the state. "(3) The motion for a new trial shall specify the grounds therefor.

"(c) AlternativeAuthority of the Court on Hearing Motion forNew Trial. On hearing the motion for a new trial, ifjustified.by law, and theweight of the evidence, the court may: 

### "1. Deny the motion, 

### "2. Grant a new trial, or 3 Modify or change the verdict or findingby 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 togive the district courts allthe power they needed tocorrect an injustice caused by an erroneous jury verdict of guilty. The trialjudge can, among other things, eithermodify a jury verdict by changing it toa lesser included offense, orhe 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 statehas the right toappealas expressly provided in section 95-2403, R.C.M. 1947. Section 95-2403(b)(2) provides: "(b) The statemay appeal from any court order or judgment the substantive effect of which results in:

'I* 

# ** "(2) modifying orchanging the verdict as provided in section95-2101(c)(3)". It 

### is clear then that if the court does

### nrodify or change the verdict, the statecan appeal. Allowing the state to appeal under these circumstances does not subject the defendant todouble jeopardy. If the stateloses 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 statewins its appeal, the effect 

### is that the guilty verdict 

### isreinstated and defendant 

### stillhas been subjected tobut one trial. The only thing left then 

### is the sentencing. This statuteprotects both the rights of the stateand those of defendant. The state's right toappeal 

### isprotected and the more important right of the defendant not tobe twice put injeopardy 

### is protected. The majority decision didnot deal atallwith this problem and I can conceive 

### its decision 

### isgoing tocause problems inMontana. For the foregoing reasons, I would uphold the decision of the districtcourt indismissing

# --- solely for the reason that double jeopardy attached under the factual situation here. 

### However, I would alsohold that a district court has no right to enter an order of dismissal oran order of acquittal on the grounds of insufficiency of the evidence. The remedy of defendant 

### isprovided in section 95-2101. A