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: 

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

This 

### isan appeal from a judgment of guilty of felony theft inviolation of section 94-6-302(1), R.C.M. 1947, by the district court, Deer Lodge County, sittingwithout a jury. The stateagrees with the facts presented by defendant in hisbrief on appeal which include: "The Information alleged that: 'I40nor about October 6, 1974, inDeer 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, VINNumber 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 inviolation 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 theftwhen 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 orknowingly 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 

### willdeprive 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 inthe district court charging defendant with theft. The public defender of Deer Lodge County was appointed

as counsel for defendant. The Information listedthe names of witnesses, five innumber: BillRhoades, Joe Thompson, Eugene Thompson, Gary Jacobs, and Anthony Bamonte.On September 

### 8, 1975 defendant filedhisnotice of intent to rely on the defense of alibi, which notice contained the names of various witnesses upon whom defendant intended to rely to establishhis defense. Included inthat 

### listwas one Forest Walter of Polson, Montana. The county attorney thereupon filed an alternative motion to strike the defense of alibiasbeing untimely,

or to continue the trialdate of September 15, 

### 19 The court allowed the defense and continued the trialdate untilJanuary 5, 1976. On December 31, 1975, the staterequested another continuance based on the unavailability of witness William Rhoades, because of health. Rhoades was the witness the statealleged purchased the stolenpickup from defendant. ~hoades"testimonywas continued, however the trialcommenced as scheduled. The matter

was submitted to the court on January 19, 1976. On January 23, 1976, the court enteredjudgment finding defendant guilty; motion for a
new trialwas denied and defendant thereafter filed this appeal. Owner Thompson testified his truckwas missing from his lot October 

### 7, 1974, and laterwas located inthe state of Washington inthe possession of BillRhoades inNovember. Dan Gochanour testified he met defendant inPolson, Montana around the firstof October on a weekend or a Monday. Defendant was driving a 1972 Chevrolet truck, the same as the one inquestionhere. He and defendant went to defendant's sister's home inWallace, Idaho, where defendant told him how he stole the truck from Thompson Motors. Then he and defendant went toWinthrop, Washington and picked apples for one "Ed Bryan". Three or four weeks later they went to the home of Mr. & Mrs. BillRhoades atMetaline Falls, Washington. There defendant purchased mirrors for the truck and traded it to

### Bill Rhoades for a Dodge.Marlin Gochanour testifiedhe 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 inthe yard but Marlin could not affirm the plates

were switched. He could not fixa date even as to themonth when he saw defendant, except itwas a weekend. The state received a week's continuance forwitness Rhoades' testimony but rested the following week aswitness Rhoades passed away. Defendant testified: 1. That atno time did he ever have i n h i spossession a gold and white 1972 Chevrolet pickup. 2. That he had owned a 1971Chevrolet pickup blue and white in color, which was sold tocraft's Conoco inMissoula. 3. That when theblue 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 atthe 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 inJune 1974.

### 5. That on October 6, 1974he was inPolson, Montana with Forest Walter. 6. That witness Daniel Gochanour was not atForest 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 athis sister's home inWallace, Idaho. 

### 8. That he left Polson a week and a half after October 

### 6, 1974 for the state of Washington ina white '67 Plymouth automobile in the company of one Howard White.

### 9. That he returned toMontana fromWashington the following spring (1975) with a white '67 Plymouth and sold the car to Dale Combs. 10. That he saw a pickup, otherwise unidentified, inthe garage owned by BillRhoades early inNovember 1974but he didnot sella car nor pickup to

### BillRhoades, nor did he get one from him, 

### 11. That BillRhoades' wife 

### is the mother of Daniel Gochanour and formerlywas married toMerlin Gochanour. 

### Mrs. Rhoades isa sistertohis former wife (defendant's) and thatbad feelings exist between defendant and the Gochanours. Atthispoint of the trialdefendant endeavored to introduce an affidavit from ForestWalter into evidence, and upon objection of the statebeing sustained, defendant moved for a continuance to allow a subpoena to issue and be served requiring the attendance of thiswitness. The motion was granted and the trialwas again recessed untilJanuary 

### 19, 1976. On January 14, 1976, the state filed a document entitled '!Notice of Additional Witnesses" inwhich defendant was apprised of the state's intent to callMrs, William Rhoades of Hot Springs, Montana, as an additionalwitness for the prosecution. Upon trialreconvening on January 19, the court directed the county attorney to secure a bench warrant for the arrest of Forest Walter for contempt of court, asbeing unavailable to the defendant

as directed by the subpoena issued and served. Atthe request of the defense attorney the court allowed the defendant topersonally address the court. Defendant firstraised the question of lack of speedy trialand 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 atthehome of Nerlin Gochanour or in Anaconda atany time on October 

### 5, 6, or 

### 7, 1974. 13. He denied telling Daniel Gochanour that he, the defendant, broke a window from thepickup, crossed thewires and stolethe truck. He denied buying any mirrors, denied staying atthe ~hoades' residence except for a half hour, denied going to a bar withBill 

### Rhoades for a drink, and denied ever having seenthe stolenpickup. Without being able to introduce any further testimony because of the failure of witness ForestWalter toappear, the defense rested. The staterecalled Daniel Gochanour as a rebuttalwitness, he testified: 

### 1. That he was inPolson on October 6, 1974, residing with Forest Walter, hiswife and family. 2. That he was involved with auto repairwork for Forest Walter;, 3. That defendant Michelson didnot work forForest Walter

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

### 7, 1974. The witness Daniel Gochanour then generally gave the same testimony on going toWashington, that he previously gave. First, we start this discussion with the affidavit of Forest Walter, defendant's proposed Exhibit B, 

### datedAugust 

### 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 ForestWalter fixing a 1940 Chevrolet pickup truck and defendant

was driving a 1967white Plymouth car. Second, we have inthe record for the statethe two Gochanours' testimony, which is far from unbiased, considering the relationship, to testified/by the defendant and unrebutteii by the;-state. Thompsonwas just a corpus delectiwitness 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 statecould not get them to court. Defendant denied each and every fact in the record against him and gave the names of 

### raft'^ Conoco, Missoula; BillCombs, Polson; Howard White; and of course 

### Mrs. Rhoades and 

### Mrs. Forest Walter, allof whom could have been called to determine the truth. This

was never done. The search for truthwas less than vigorous by counsel inthismatter and thiswriter feels that, particularly

on a bench trial, thejudge has the inherent power, right and yes, duty, to sua sponte demand'that a search for the truthbe exhausted before the matter be accepted for decision. Otherwise, the defendant,

ashere, has been denied a fairtrialand due process under 

### Art. 11, Section 

### 24, 1972Montana Constitution. The judgment of the trialcourt 

### is reversed and the cause

Chief Justice