*1
MONTANA,
Appellant,
THE
OF
STATE
Plaintiff
Respondent.
COOL,
ELONE
ELAINE
Defendant
May
Submitted
Aug.
Decided
Michael T. Charles A. Greely, Atty Helena, Helena, for (argued), plain- T. McCabe (argued), Michael tiff and appellant. Helena, defеndant and respondent.
David N. Hull for (argued), DALY, MR. delivered the court. opinion 17, 1976, in was filed the district May A criminal complaint court, and defendant Elone Elaine Lewis Clark County, charging theft, a in violation of section with the crime of felony, Cool 94-6-302(l)(a), R.C.M. 1947. 8, 1976 and at the close of the
The trial commenced November case-in-chief, the defense moved for acquittal alleging state’s facie casе defendant. That mo- prima against state failed to prove went forward with its case at tion was denied. The defense all made a for directed verdict acquit- close of evidence motion the state was insuffi- tal the reason the evidence as presented by for law it to to the go jury. as a matter of to allow cient the case. that motion and dismissed granted 10, 1976. On on November The stаte filed a notice of appeal 20, 1977, to dismiss the defendant’s filed a motion counsel April clause, Fifth violated the double jeopardy it appeal Constitution, Amendment, and May United States adding to dismiss the appeal counsel filed amended motion ap- to hear the state’s jurisdiction that this Court lacked ground peal. has is whether this Court here controlling question a district court’s judgment heаr the state’s appeal
jurisdiction acquittal. state may appeals R.C.M. controls in a criminal proceeding, provides: take (a) code, as authorized “Scope appeal, Except this the state in a criminal case. “(b) The state court order may appeal judgment substantive effect of which results in:
“(1) case; dismissing
“(2) modifying changing verdict as 95-2101(c)(3);
“(3) a new trial’ granting “(4) warrant; an arrest or search quashing “(5) evidencе; suppressing
“(6) admission; suppressing confession or of venue.” denying change Here the state contends the state of Montana has a statutory right 95-2403(b)(l). to appeal under section It argues district court’s ruling in fact dismissal. Defendant this was a motion argues such a motion does not constitute a dismissal of *3 95-2403(b)(l). the case as contemplated We find no merit in the state’s argument relation to section 95-2403(b)(l), (b)(1) bеcause subsection does not simply apply situation, the instant fact no matter how the state tortures the used the language by district court. The court and very clearly with precision informed the state in reference to the evidence: “I am just that it’s saying 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. Ball, United States Supreme Court in United States v. 163 662, 1192,
U.S.
This Court in State v. 83 Mont. 271 P. to the statе stated right that statutes and the limited to right actions be construed criminal must strictly mentioned; if and une- clearly is not the instances lie, conferred, if an not nor can right, action does quivocably confеrred, statute. be construction enlarged case, Laun, 8 v. an Montana early Territory In Montana 322, 652, directed the to find 20 P. the district court ac that the contending and the state acquittal appеaled verdict of under effect a dismissal of the case and thus appealable tion was in that This disagreed stating to section 95-2403. Court precursor state. rule is the law This still acquittal appealable by in Montana. most rule in history fundamental
'Perhaps cannot criminal has been that verdict of jurisprudence reviewed, otherwise, without a defendant be on error or putting Amendment, violating the Fifth twiсe in and therefore Ball, due supra. United States Constitution. United States v. applied clause of the Fifth Amendment has process Amendment to the United States through states the Fourteenth 89 S.Ct. In v. U.S. Maryland, Constitution. Bеnton stated; L.Ed.2d the United States Court Supreme “* * * the Fifth Amend- the double jeopardy prohibition in our heritage, fundamental ideal constitutional ment represents it should to the States Fourteenth apply thrоugh that Amendment.” _U.S. Co.,
See also: United States Martin Linen Supply _, (1977). 97 S.Ct. 51 L.Ed2d 642 reasons defendant’s amended motion
For the foregoing is granted. dismiss the state’s appeal HATFIELD, MR. CHIEF HASWELL JUSTICES *4 HARRISON, concur. SHEA, concurring: MR. separately im- with the I agree I case but do not concur in the result of this has the that a district of this decision plications holding on the power jury to dismiss criminal case before it to the goes of the evidence. grounds judge of Whether district insufficiency case, was it is clear double in this right wrong dismissing jeopar- would defendant from tried for the same dy prevent again being offense. it was an or dismissal for acquittal insufficiency Whether of the evidence it makes no difference. Double attaches. however,
I
am not convinced
that district
has the
judge
take a case
away from
on the
jury
grounds
insufficiency
evidence, whether the motion be
one
dismiss. In
acquit
one to
Laun,
20 P.
relying
Territory Montana
(1889),
the court states that this case has never been overruled
overruled,
and is still
law
in Montana. While it has
it
Laun,
is no
the law in
In
longer
Montana.
the Court stated:
evidence,
“The
practice
directing
whenever
discretion
fails to
judge,
support
is well
charge,
*
**
recognized as
order in criminal
proper
.”
procedure.
added.)
(Emphasis
By this it is language clear that it Laun Court felt was within the clearly power legislature expressly impliedly take this power away from district courts. believe that subse- courts, quent statutes havе taken that from district power away first expressly, presently, by implication. 94-7227, R.C.M.1947, was enacted after was Laun
decided and remained in until when the present statutes were It adopted. relevant part: * * If, closed, at time after the evidence on either side is conviction, the court deems it insufficient to warrant a ad- defendant; vise the to acquit the but the jury is not bound jury the advice.”
It is clear this statute a district prevented taking evidence, case from the away jury insufficient directing it to find a verdict of not because of insufficient that, evidence. He could advise in his only should opinion, acquit because of insufficient evidence. when section Accordingly, effect, 94-7227 went into Laun no the law. longer *5 104 true that until 1967. It is remained 94-7227
Section effect, to situations it was held it did not apply even while it was in a convictiоn. State v. Lab- evidence to where there was no support Widdicombe, (1945); bitt, v. 163 156 P.2d State 177 Mont. Perschon, 325, 330, (1956); 131 State 130 Mont. P.2d (1957). be- distinguish These cases 310 P.2d evidence, court deems the which the trial tween situations in to constitute element necessary although prove every tending crime, was a lack where there and situations insufficient, in- In the first of the crime on a material element charged. evidence (section the case court could not dismiss stance the district 94-7227, 1947), dismiss he could but in the second situation R.C.M. state of the law was the the case before it went to the Such jury. and section R.C.M. when section 94-7227 was repealed it. replaced after the judges of district powers 95-2101 details the trial criminal actions and provides: Trial, (a) Effect. A new trial re-
“New Definition and court, same before another jury, еxamination of the issue of a has been rendered finding after verdict or as if same there had new trial in the places parties position trial. no
“(b) a New Trial. Motion for
“(1) grant guilty verdict or Following finding required a new if in the interеst of justice. defendant trial “(2) be and shall be writing for new trial shall The motion (30) following a verdict or thirty days filed the defendant within be served Reasonable notice of the motion shall finding guilty. the state. upon therе- a new trial shall specify The motion
for.
“(c) Motion for Hearing of the Court Authority Alternative trial, a new if the motion for justified by New Trial. On hearing evidence, law, may: the court weight “1, motion, Deny trial, a new
“2. Grant Modify change finding by finding “3. the verdict or guilty degree charged, finding defendant lesser of the crime finding defendant of a included lesser crime or the defendant guilty.” (Emphasis added.) statute, believe, The underlined portion quoted above *6 to give the district all designed courts the needed to power they correct an caused injustice erroneous verdict of jury guilty. can, The trial among other either ver- things, modify jury оffense, dict ato lesser he by changing included can find the however, defendant not The salient is guilty. that if the point, this, trial, district does court and since it after is the the state has the to right appeal аs in section expressly provided R.C.M.1947. 95-2403(b)(2) provides:
“(b) The state may appeal order judgment substantive effect of which results in: modifying changing verdict as provided
95-2101(c)(3)".
It is clear then that if the court does ver- modify change dict, the state can appeal. the state
Allowing under these appeal circumstances does subject defendant to double If the state loses the jeopardy. aр- peal, district court’s order verdict or modifying finding the defendant not stands that is the end of the case. If guilty, the state wins its is that the verdict is appeal, reinstated and defendant still has to but one trial. subjectеd left then is the This both only thing sentencing. statute protects rights state and those of defendant. The state’s right is and the more the defendant protected right important not to be twice is put jeopardy рrotected. all decision did not deal at with this and I majority problem
can its is conceive decision to cause Montana. going problems reasons, the decision of the uphold I would
For foregoing reason that double dismissing solely court in district — However, here. under the factual situation attached enter an order a district court has no hold that would also insufficiency an order of acquittal dismissal or in section defendant remedy the evidence. The 95-2101.