No. 13309 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

STATE OF MONTANA, 

Plaintiff and Respondent, 

LELAND (TOBY) PIICKELSON, 

Defendant and Appellant. 

Appeal from: District Court of the Third Judicial District, 

Honorable Robert J. Boyd, Judge presiding. 

Counsel of Record: 

For Appellant: 

William A. Brolin argued, Anaconda, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

Mayo Ashley argued, Assistant Attorney General, 

Helena, Montana 

Joseph Connors, County Attorney, Anaconda, Montana 

Submitted: March 22, 1977 

Decided: JUN - (3 197-f 

Filed: dJN - 3 1$&a 
Mr. Justice Gene B, Daly delivered the Opinion of the Court. 

This is an appeal from a judgment of guilty of felony theft 

in violation of section 94-6-302(1), R.C.M. 1947, by the district 

court, Deer Lodge County, sitting without a jury. 

The state agrees with the facts presented by defendant in 

his brief on appeal which include: 

"The Information alleged that: 

'I40n or about October 6, 1974, in Deer Lodge County, 

Montana, the defendant, Toby Mickelson, purposely or 

knowingly obtained or exerted unauthorized control over 

property, a 1972 Chevrolet pickup, gold with white trim, 

VIN Number CCE142Z135099, of a value of more than $150.00, 

owned by Thompson's Motor Company, and purposely or knowingly 

used, concealed or abandoned the property in such manner 

as to deprive the owner of the property which was in violation of the above statute and against the peace and dignity 

of the State of Montana."' 

Section 94-6-302(1), R.C.M. 1947, states: 

"(1) A person commits the offense of theft when he 

purposely or knowingly obtains or exerts unauthorized control over property of the owner, and: 

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

property; or 

"(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," 

On June 15, 1975, nine months after the alleged theft, Toby 

Michelson, the defendant, was arrested. On June 25, 1975, an 

Information was filed in the district court charging defendant with 

theft. The public defender of Deer Lodge County was appointed 

as counsel for defendant. The Information listed the names of 

witnesses, five in number: Bill Rhoades, Joe Thompson, Eugene 

Thompson, Gary Jacobs, and Anthony Bamonte. 
On September 8, 1975 defendant filed his notice of intent 

to rely on the defense of alibi, which notice contained the names 

of various witnesses upon whom defendant intended to rely to 

establish his defense. Included in that list was one Forest Walter 

of Polson, Montana. The county attorney thereupon filed an alternative motion to strike the defense of alibi as being untimely, 

or to continue the trial date of September 15, 19 

The court allowed the defense and continued the trial date 

until January 5, 1976. On December 31, 1975, the state requested 

another continuance based on the unavailability of witness William 

Rhoades, because of health. Rhoades was the witness the state alleged 

purchased the stolen pickup from defendant. ~hoades"testimony was 

continued, however the trial commenced as scheduled. The matter 

was submitted to the court on January 19, 1976. On January 23, 1976, 

the court entered judgment finding defendant guilty; motion for a 

new trial was denied and defendant thereafter filed this appeal. 

Owner Thompson testified his truck was missing from his lot 

October 7, 1974, and later was located in the state of Washington 

in the possession of Bill Rhoades in November. 

Dan Gochanour testified he met defendant in Polson, Montana 

around the first of October on a weekend or a Monday. Defendant was 

driving a 1972 Chevrolet truck, the same as the one in question here. 

He and defendant went to defendant's sister's home in Wallace, Idaho, 

where defendant told him how he stole the truck from Thompson Motors. 

Then he and defendant went to Winthrop, Washington and picked apples 

for one "Ed Bryan". Three or four weeks later they went to the home 

of Mr. & Mrs. Bill Rhoades at Metaline Falls, Washington. There 

defendant purchased mirrors for the truck and traded it to Bill 

Rhoades for a Dodge. 
Marlin Gochanour testified he knew defendant who stayed overnight at ''about the time of the pickup." Defendant drove a gold 

and white 1972 Chevrolet pickup into the witness' yard. Defendant 

had another pickup in the yard but Marlin could not affirm the plates 

were switched. He could not fix a date even as to the month when 

he saw defendant, except it was a weekend. The state received a 

week's continuance for witness Rhoades' testimony but rested the 

following week as witness Rhoades passed away. 

Defendant testified: 

1. That at no time did he ever have i n h i s possession a gold 

and white 1972 Chevrolet pickup. 

2. That he had owned a 1971 Chevrolet pickup blue and white in 

color, which was sold to craft's Conoco in Missoula. 

3. That when the blue and white pickup was sold to craft's 

Conoco the license plates were left on the truck, along with the 

registration. 

4. That he purchased from Craft at the same time he sold his 

pickup, a 1968 Chevrolet convertible which he kept about two weeks 

and then traded Craft again, this time for a white '67 Plymouth 

automobile. These transactions occurred approximately in June 

1974. 

5. That on October 6, 1974 he was in Polson, Montana with 

Forest Walter. 

6. That witness Daniel Gochanour was not at Forest Walter's 

residence in Polson on October 6, 1974. 

7. That witness Daniel Gochanour did not accompany him (defendant) to the state of Washington, stopping at his sister's home 

in Wallace, Idaho. 

8. That he left Polson a week and a half after October 6, 1974 

for the state of Washington in a white '67 Plymouth automobile in 

the company of one Howard White. 
9. That he returned to Montana from Washington the following 

spring (1975) with a white '67 Plymouth and sold the car to Dale 

Combs. 

10. That he saw a pickup, otherwise unidentified, in the 

garage owned by Bill Rhoades early in November 1974 but he did not 

sell a car nor pickup to Bill Rhoades, nor did he get one from him, 

11. That Bill Rhoades' wife is the mother of Daniel Gochanour 

and formerly was married to Merlin Gochanour. Mrs. Rhoades is a 

sister to his former wife (defendant's) and that bad feelings exist 

between defendant and the Gochanours. 

At this point of the trial defendant endeavored to introduce an 

affidavit from Forest Walter into evidence, and upon objection of 

the state being sustained, defendant moved for a continuance to 

allow a subpoena to issue and be served requiring the attendance of 

this witness. The motion was granted and the trial was again 

recessed until January 19, 1976. 

On January 14, 1976, the state filed a document entitled 

'!Notice of Additional Witnesses" in which defendant was apprised 

of the state's intent to call Mrs, William Rhoades of Hot Springs, 

Montana, as an additional witness for the prosecution. 

Upon trial reconvening on January 19, the court directed the 

county attorney to secure a bench warrant for the arrest of Forest 

Walter for contempt of court, as being unavailable to the defendant 

as directed by the subpoena issued and served. 

At the request of the defense attorney the court allowed the 

defendant to personally address the court. Defendant first raised 

the question of lack of speedy trial and then requested the court 

to appoint a new lawyer. The court denied both requests. The defendant then, through his attorney, moved for dismissal for failure 

to establish a prima facie case. The motion was denied. Thereafter 

defendant testified: 
12. That he was not at the home of Nerlin Gochanour or in 

Anaconda at any time on October 5, 6, or 7, 1974. 

13. He denied telling Daniel Gochanour that he, the defendant, 

broke a window from the pickup, crossed the wires and stole the 

truck. He denied buying any mirrors, denied staying at the ~hoades' 

residence except for a half hour, denied going to a bar with Bill 

Rhoades for a drink, and denied ever having seen the stolen pickup. 

Without being able to introduce any further testimony because 

of the failure of witness Forest Walter to appear, the defense rested. 

The state recalled Daniel Gochanour as a rebuttal witness, he 

testified: 

1. That he was in Polson on October 6, 1974, residing with 

Forest Walter, his wife and family. 

2. That he was involved with auto repair work for Forest 

Walter;, 

3. That defendant Michelson did not work for Forest Walter 

on the days of October 4, 5, 6, and 7, 1974. That defendant arrived 

in Polson on October 7, 1974. The witness Daniel Gochanour then 

generally gave the same testimony on going to Washington, that he 

previously gave. 

First, we start this discussion with the affidavit of Forest 

Walter, defendant's proposed Exhibit B, dated August 11, 1975, at 

Polson, Montana. Although not admitted, it sets forth that defendant and Howard White spent October 3,4,5,6, and 7, 1974, with 

Forest Walter fixing a 1940 Chevrolet pickup truck and defendant 

was driving a 1967 white Plymouth car. 

Second, we have in the record for the state the two Gochanours' 

testimony, which is far from unbiased, considering the relationship, 

to 

testified/by the defendant and unrebutteii by the;-state. Thompson 
was just a corpus delecti witness and thus this proved only the 

vehicle was stolen. 

Third, we have the two witnesses, William Rhoades and Forest 

Walter, who could have cleared up the matter, but the power of the 

state could not get them to court. 

Defendant denied each and every fact in the record against him 

and gave the names of raft'^ Conoco, Missoula; Bill Combs, Polson; 

Howard White; and of course Mrs. Rhoades and Mrs. Forest Walter, 

all of whom could have been called to determine the truth. This 

was never done. The search for truth was less than vigorous by 

counsel in this matter and this writer feels that, particularly 

on a bench trial, the judge has the inherent power, right and yes, 

duty, to sua sponte demand'that a search for the truth be exhausted 

before the matter be accepted for decision. Otherwise, the defendant, 

as here, has been denied a fair trial and due process under Art. 11, 

Section 24, 1972 Montana Constitution. 

The judgment of the trial court is reversed and the cause 

Chief Justice