*1 of the orders naught process dne determined to set mandate California, obey their courts of and does not intend custody minor Under such circum- respecting child. ’’ court. press appeal in this stances she is not entitled to her to hear this I would decline view of law Consistent with days after merits, unless appeal upon within returns entry warning mother of our order to that effect jurisdiction of San- the district court these children to the jur- County, subject and our leaves there its ders them may enter judgment which we isdiction such may cause be enforced.
MR. JUSTICE ANDERSON: dissenting opinion above Mr. Justice Davis. I concur in the MONTANA, OF R. J. STATE Respondent, Plaintiff Appellant.
HALE, Defendant No. 9307. March 1955. Decided November 1955.
Submitted *2 Bottomly Mr. Adair Chief Justice and Mr. Justice dissented. Missoula, Worden, Messrs. Worden Rankin and Messrs. Helena, Acher, appellant. for Atty. Olsen, Gen., Moody Brickett, H. H. Emmet T.
Arnold Walsh, Attys. Gen., respondent. Asst. for Acher, Rankin,
Mr. Arthur P. Mr. W. D. Mr. Donovan Wor- orally. den, argued Mr. Brickett and Mr. Walsh MR. JUSTICE DAVIS: court appellant in the district Hale was convicted 94-1805, County
Missoula section under R.C.M. by false commonly money property obtaining crime known as pretenses. impris- him to judgment sentencing From the final de- onment the order years for three hard and from labor nying him a trial appeals. new he case, in this opinion appeal written former Hale, be (2d) 495, Mont. will found Pac. only We add facts, repeated statement here. not to upon the a new trial the defend-
that remand for reversal and asked, granted, ant leave with- the trial court in- plea guilty” might “not draw his he demur facts ground formation. One of that demurrer offense. public stated in the information do constitute 94-6703, argument this 4. After See R.C.M. subd. again pleaded “not demurrer was overruled. The defendant *3 Error guilty”; again again he and convicted. is now tried specified ruling upon wrong. his demurrer was him that this Initially suggested as well as is that this contention interposed upon and overruled con demurrer argument is that because tention is made came late. The too arraigned to this information when the accused did not demur point raise the trial, may tardily not thus before the first he bad, although upon trial the information is the second trial or limi granted by this court a without restriction new suggestion. We merit in this tation. see no aside, is set as is the rule is that when a first conviction precluded upon for here, a remand the defendant is case and, information, or attacking trial the indictment a new “from right challenge same its suffi trial, on he has the a second 42 had the first trial.” ciency regularity and as he before 312, 1344; Informations, page section C.J.S., Indictments 1426, pages 1123, 1124; Law, section Peo C.J.S., 23 Criminal (2d) 482; 37, 47 N.E. A.L.R. Nitzberg, 289 N.Y. ple v. Butler, 98,Md. By A. 1105. R.C.M. 94-7602, the “granting of a places parties new trial position same as if trial no had been had.” Under a similar statute, N.Y. Code of Crim. Proc. section York the New Court Appeals precisely has held point here that where an erroneous judgment of conviction appeal reversed on -and there a remand for a new trial though the case stands as abortive judgment had entered, never been accordingly that then may challenge accused sufficiency both the regularity of charge against him, though even he had not done all so at when the case first People tried. v. Nitz berg, supra, 289 pages N.Y. at 47 N. E. 37. We agree with this statement of the law. question
The first then for decision in this this appeal court on
is whether public is charged offense in this in not; formation. We think and we reach this conclusion without finding it necessary to resolve the constitutional issue raised by the defendant’s counsel.
We summarize this information words, viz., in these (1) That defendant “feloniously, lmowlingly and de- signedly, and with intent to County” defraud Missoula obtained from it $600’with interest presenting County to the Missoula Airport Board “false and fraudulent claim” in the amount of $600, and in the name of Engineering Company Montana Waite, Sec’y” one “H. B. “designs, plans specifi- covering project cations” a described Airport. the Missoula (2) “pursuant approval by That County the Missoula Airport Board a upon County warrant was drawn Treasurer County,” “believing representations Missoula who true, paid County the said warrant a Missoula Warrant” Engineering Co., order, made favor of Montana in the $600, for “Designs, plans with interest speci- amount *4 fications” etc.
(3) deposited That the defendant this warrant in a Mis- bank, soula and “received therefor credit for the sum $600.79, of money”, lawful etc.
453 out in are set warrant copies Verbatim claim and context, contain the var- its information, and, as we construe it is by which said representations pretenses ious was defrauded. any specification par- is no
But there in this information by either upon which was made representation ticular relied any rep- any warrant, particular which the claim or nor of adjectives it that the false, unless resentation so made was employed to describe “fraudulent”, “false” are which this es- averment of claim, taken as a sufficient are to be charac- descriptive are used to such words sential fact. No pur- for our shall, nevertheless, assume terize "We the warrant. sufficiently charges that information poses appeal on if this this by the representation made claim falsity material good. it is however, not,
We therefore conclude does fatally is defective. More than this said in civil cases once heretofore court has malign import “false”, “fraud- that the use of such words ulent”, “fraud”, words, “accompanied unless etc. a waste of charges wrongdoing fact statement of 72, 413; McIntosh, Pac. 70, rest”. Brandt 47 Mont. 130 v. Mining Wall, (2d) 45 596, 601, Co. v. 99 Mont. Pac. Securities Court, 302; Highway v. State ex rel. State Commission District In 126, 131, (2d) 347. no case which 132, 107 Mont. 81 Pac. contrary. au found held to the The we have has court 392, 400 agree. Green, 380, Ill. thorities elsewhere Owens v. (2d) (2d) 149; Trigg, 46 N.M. 81 N.E. re 550, 562, (2d) 152; Kutner, Terry 550, 76 A. Barni v. Del. Bank, 322, 55 Pac. 801; Savings 185 Wash. Betz v. Tower (2d) (2d) City Ashbury Park, Cir., 91 F. 338; Giordano v. Giudicy, Louis, App., v. Mo. St. 238 S.W. 455, 457; Venegoni (2d) App. 19; Hurd, Div. 118 N.Y.S. Buck 305, 307. rigorous. It has no less prosecutions criminal rule designed directly to informations indictments applied
been *5 454 charge
to money the. crime of obtaining property by false -or pretenses as well as similar involving crimes fraud and false tokens.
True,
point.
Montana there is
But
directly
no case
jurisdiction
long
this
it has
elementary
been
that an essential
element of
falsity
representations
the crime here is the
Bratton,
made.
State
563,
v.
56
566,
327;
Mont.
v. Brantingham,
1,
State
16,
499;
66
212
Mont.
Pac.
v.
State
155,
Woolsey, 80
141,
Mont.
To this are effect the California decisions under sections of Code, the California at substantially Penal which the time were People identical with present Montana statutes. See v. Car penter, 231, 809, directly 6 App. citing Cal. 91 Pac. point charge where presentation involved the of a false against county, People Mahony, claim 104, v. 145 106, Cal. 78 Pac. 354. State,
Elsewhere the decided accord. v. 125 eases Harris 257, State, St. N.E. Brul 260, 104; Ohio 181 Du v. 80 Ohio St. 52, 837; N.E. Gunten, 177, 182, 87 State v. Van 84 Ohio St. Knox, 183, 605, 95 N.E. 59 662; 596, Burke v. 206 Utah 711; State, App. 400, 316; 24 Pac. Wills v. Tex. 6 S.W. Sasse State, 513, (2d) 22 941; v. 113 Palmer, Tex. Crim. S.W. State v. 323, 29; 32 318, 322, Sanders, 50 Kan. Pac. Commonwealth v. 129; Wilson, Ky. Ky. 12, 813, 98 32 Commonwealth v. 190 S.W. 815, 60; Burnley Commonwealth, 18, 274 814, Ky. 229 S.W. v. 1008; (2d) Bradley, 657; 144 La. 80 So. 117 S.W. 120 Tex. Cr. R. 583 48 Wimer v. State. S.W. State, 728; 81 R. 197 296; People Moore v. Tex. Cr. S.W. 54; Ruwwe, Winner, Mo., Hun 30 State 242 N.Y.S. v. Pretenses, 936; 42c(l), page 690; False section C.J.S., S.W. Pretenses, 60, pages 626, 627, C.J., False in this court both light of these citations Read in the bar challenged jurisdictions from other Missoula to the for allowance only presented charges Hale approved, claim, which the described County Airport Board county, and against the drawn upon which a warrant treasurer upon which that thereafter warrant enough, This is not $600.79. sum paid Hale in the relied was set out for failure have been sustained The demurrer should falsity rests. charge the facts *6 argues that attorney general opposing In this conclusion controlling stat language of the is in the the information rule to general' recognize the ute, good. is therefore We is as exception an there is stated. But to that rule viz., the statute itself, that where recognized as rule well in offense the defining in general generic words uses speci must statute upon that formation or bottomed indictment 42 C.J. offense. fy particular facts which constitute 1042, 139g, pages S., Informations, section Indictments 264, pages Informations, section 1043; C.J., 31 Indictments and 712, 713. court. See State exception recognized has this
This been exception 'has been 493, 556. This Wolf, 56 Mont. 185 Pac. v. charge is of recognized in as the rule where California People v. like ours. under statutes pretenses fraud or false 354; Peo seq., 78 Pac. Mahony, page 106, 145 et supra, Cal. 918; People 362, 169 361, Pac. Butler, App. 357, ple v. Cal. 452; etc. (2d) (2d) 81 Pac. Walther, App. v. 27 Cal. in recognition in such cases exception This has met universal indi above and authorities cited the decisions other courts as cate. here that our conclusion
Moreover, persuaded further we are like practice heretofore uniform when we note the is correct We have examined review. this court for brought cases (2d) 399, 153 Pac. Hanks, 116 Mont. v. in State informations 1113; v. 33, State 100 Mont. 220; Foot, supra; v. Brantingham, and State Woolsey, supra; State Bratton, supra. In each expressly alleged the information facts which pretense made the stated false. none these cases did the rely upon state the averment alone that the defend- ant made a “false” or “fraudulent” representation.
In the federal practice courts the Compare same. Mc- Coy States, v. United Cir., (2d) 776, 778, 169 F.
It is a crime under Code, Title U.S. for one present a against claim “knowing United States such claim to be false, fraudulent,” fictitious, or etc. The Federal U.S.C.A., Buies of (Rev. Criminal 1955), Procedure Ed. where found the simplified ultimate in practice, criminal prescribe this form for an charging indictment violation statute: ‘‘On or about the................day of............, , the............, 19.— District of............, presented Department John Doe War to the of the United payment States for against claim the Govern- ment of the having United States for delivered to the Govern- 100,000 ment lineal pine lumber, feet No. 1 white and he then knew the claim to be fraudulent had not that he delivered the lumber to (Emphasis supplied). the Government.” Fed. Rules Crim. Proc., Appendix Forms, Form 18 U.S.C.A. It seems then that nothing an less states offense under sec- 94-1805, tion supra, Codes; our and in the circumstances of *7 this case authority we have found no sustains an informa- alleges tion or indictment which less. Phillips, 299, 300,
In this court State v. 36 Mont. Pae. authority point argument; is the nearest with the state’s although this neither nor noticed decision is cited in the briefs oral argument bar, given or the at we have consideration. pretense charged the that There “the defendant the was Phillips”; falsity pretense brother Charles that “ by Phillips averred the recital: ‘Whereas said David [de- pretenses ”. then knew said false’ This were traverse fendant] sufficient, good. the information But there is no was held such us. in the information now before traverse And, were, help this would not if citation state there facts appeal; distinguished on for it on its plainly is be to by allege representa- thing authorities. It is one rep- deny by saying tion A brother; made that is B’s is resentation A is brother is false. Here denial that B’s clear, anyone factual, by certain is who so understood may pleading. reads the accusation. This be a sufficient thing however, allege It is another altogether, presented defendant claim” Hale a “false and fraudulent specification facts, without a that at least which show representation some material not true. by made that claim is specification Without such a there no traverse all of is representation wholly is which the claim makes. The denial way conclusion, by anyone so understood who reads charge. fatally This is a of the' of- defective statement fense. The authorities make this distinction. State, supra, representations alleged
In Wimer v. the false eight promissory agreement were rooted in notes and trust assigned which these notes were to create a fund for the payment and retirement of certain described investment certifi- greater cates. much detail indeed than the information charge before attempted us the the Wimer Case to traverse representations the truth of the made these documents. Court, however, said, R., 584,
The Texas 120 Tex. Cr. 48 S.W. (2d) 299: general
“It is the rule that an averment that pretenses negation pretenses, were false is sufficient of the truth of the pretense negation unless such nature that requires allegations showing affirmatively truth thereof in what consisted in order that may ap- the falsehood the accused be prised Corpus Juris, 627;, the evidence he must meet. page J J # ^ ^ held consistent with the cited,
It was there authorities 48 S.W. 301: Tex. Cr. R. constituting the offense must be set
“The facts forth so that may law at from the conclusions of arrived the facts so stated.. *8 458
Accordingly the indictment quashed. We think the same rule is clearly to applied be to the against information here defendant Hale. think
We position the state’s is unsound that in this case prosecution may upon stand language statute, of the which as reflected in charge this nothing contains but con- clusions any without supporting facts falsity to show the specific pretenses relied for a conviction. argues state also objection that the real taken Hale
to the sufficiency of this information falls under subdi vision of 94-6703, supra, section point to the charge that the is uncertain, compare People v. McPheeley, App. (2d) 92 Cal. 592, 207 (2d) 651; People Pac. Burness, 53 Cal. App. (2d) 214, 217, 218, (2d) 623; People v. Mc Kim, 84 App. Cal. 663, 665, 258 Pac. does not there properly fore come under subdivision the facts stated do not public objection constitute a offense. This advanced at time, this if such case, necessarily were the must be considered 94-6711, waived under R.C.M. section because it is not specified ground as a of the demurrer before us. this argument
But has point- also no merit. The demurrer edly challenges the information for want of facts in lan- guage statute; subdivision and we have so consid- question Conversely ered and ruled the raised. there is no charge question artlessly drawn; here of a sufficient and we any question, have neither considered nor answered such presented only properly could under subdivision 2. suggestion argument There some in the defendant’s designed information is charge counsel 94-3908, denounced R.C.M. section offense well as obtaining money by pretenses false under the crime of 94-1805, supra. so, equally If have said above is per what we it is information as framed does not state an tinent. The of given; statute for the reasons we have under either fense good upon charge. construction of the demurrer implication further agree do with the of counsel’s But we *9 of- sufficiently states an argument that an information which necessarily duplicitous, 94-1805, supra, under section fense false presenting a charge the crime of it must as well because adequately county. An information which against claim the the other charge the offense does avers the elements of one whether not decide this we do separate Upon as record crime. idle It be former. would in the may the latter be included We us. not before an accusation sweep the speculate with may drawn consistent only an information hold that 94-1805, it objection that to the not vulnerable duplicity. is bad for that point made wholly apart from the reason
For another must public offense there state a information does not refusing in trial court erred this case. The be a reversal 26. Instruction No. entirety in its the defendant’s offered give you if be “You are instructed that originally read: This offer performed all that the defendant lieve from evidence planning, preparing supervising for the services run rebuilding airport specifications for the plans and compensation for such way claimed was $600.00 good actually that the defendant acted rendered and services claim, presenting said such services and performing faith in necessary prove the criminal intent state has failed then the you charged, should find the de the offense to establish you the words “and guilty.” The court deleted fendant not guilty.” defendant not should find the given. the instruction was then But as
As thus modified given incomplete. jury instruction were modified they case, they should find the must do with not told what In put instruction them. short the deletion made facts as the this effectively drew the teeth of instruction and made the court charge upon sufficiency wholly of the de- pointless it fense, if sustained. given point,
Moreover, other instruction covered the no jury. The accused en- before fairly put the defense jury that if the facts found were in told ac- to have the titled with cordance this acquitted. Compare instruction he must be Quinlan, 84 Mont. 364, 372, 750; State Mc Cracken, 93 Mont. 275, 276, 18 (2d) 302; Pac. Little v. United States, 10 Cir., (2d) 861, F.
Since the case must then trial, be remanded for another other questions presented by the must record also be reviewed. opinion Hale, in State v. 126 Mont. Pac.
495, written appeal again on the first in the dissent ing opinion of the Chief Justice on this appeal is said that R.C.M. section 25-201, prohibits county surveyor from obtaining anything compensation ren official services salary. dered other than his We think has this statute no such effect. We think something reads into construction *10 legislature section 25-201 that the never intended. That statute prohibit does not the by collection of fees county officers. All. that provide section does is disposal for the of fees which have by been collected them for official services This rendered. much clearly appears from its reading: “Disposal title of col fees by county lected body officers.” Likewise this what the of section deals provides: the with. It county “No officer shall use, any for his fees, penalties receive own or emoluments of any salary kind, except provided the by law, any for official by him, penalties service rendered but all fees, and emoluments every by kind must be him collected for the sole use of the county and must be paid county accounted for and to the provided by treasurer section 25-203 code and shall general county.” be credited to fund of the There is noth in ing this statute which makes merely Hale’s claim here false presented because he it the work he did. in Hale,
Further Mont. Pac. it appeal, erroneously on the first again also determined construction and planning, that maintenance of Missoula County Airport county county pur- were functions done for 1-822, poses. sup- R-.C.M. section which was relied on as view, in these porting “county fact states that activities are governmental.” public and purposes functions and as well as (Emphasis supplied.) not County Airport of the Missoula
That business by the is evidenced strictly exclusively county function by county commis- not fact that affairs are conducted its Airport Board. separate called the sioners, but board funds, county paid out of question $600 here was not warrant This Commission Fund”. “Airport but was drawn on the taxation, 1-816, or li.C.M. section may fund raised 1-818. may aid, from federal state li.C.M. result opinion of the being We are not be understood as to $600, justified retaining paid him defendant was moneys presented, merely these were the claim here because say do strictly speaking county funds. What we is that not right proper be tried under instructions defendant had the law which fit his applicable his case consistent with rules of any makes not aware of statute that Specifically case. we are duty county surveyor airport to do the work it salary. compensation his Nor do over and above board without filing statute forbade the the claim know of we in record shows that would have by Hale. Here the here $2,500 do obtain someone else to expenditure volved an charged $600. Had defendant defendant the work for which $600, our has own name for attention been put a claim in his its As prohibit payment. which would to no statute directed up surveyor he to render these services called his office. because appeal precluded on this f think are
Nor do we we rom *11 applicable law view, do, of the to Hale’s changing as we our appeal. first The announced on the doctrine previously as case the law the became case does not there declared the law we are er trial of this case when convinced of the third reach examining record now be opinion. previous our ror in legal principles promulgated, there are bound us we fore put judge should not be the trial error reason for the supporting declared. Cases this the law there he followed because 462 466,
view are cited in
Gunn,
453,
89 Mont.
But the rule that the law of
is applicable
the case
to future
proceedings
in the
prevent
had
same case does not
the court
of last resort from correcting a manifest
in its former
error
opinion
promotes
where to
justice
do so
without substantial
injury
anyone.
put
As
it,
some writers
of adher-
evils
ence to the
greater
rule are
departure
sometimes
than
those of
from it. The cases are collected in the
at 1
annotations
A.L.R.
1270, 8
1033,
A.L.R.
and
When,
here,
we remand the case for a third trial we are not
and should not
precluded
from asserting
principles
lawof
applicable which are
applied
to be
prospectively upon the third
trial,
though
even
to do so
overruling
part
necessitates
opinion
promulgated;
first
for we are convinced now that that
opinion
wrong
pointed
as we have
out above. Barton v.
Thompson,
571, 572,
899,
Rep. 119;
Iowa
N.W.
41 Am.
Pennington
Gillaspie,
650,
v.
with the defendant’s demurrer to the in- proceed formation, and thereafter under R.C.M. sec- 94-6707, and, if an filed, tion amended information be to a new may be consistent herewith. trial ANDERSON: MR. JUSTICE
I concur. *12 concurring). (specially MR. JUSTICE ANGSTMAN: majority the disagreed I with appeal On of this case the first (2d) 495. At 326, 249 Pac. opinion. Hale, 126 Mont. sufficiency to the question considered as time no was trial, new de- for the case remanded information. When was of the court to granted leave fendant's counsel asked and was question- a demurrer plea guilty and to file withdraw the ing sufficiency of the informaiton. by opinion the Chief appeal I cited
On the second wrote justices dissented dissenting opinion. his Two of the Justice in agreed only Justice with the from I wrote and Chief what my opinion. result reached in Rehearing filed Worden & Worden as
On Petition for defendant, opinion legal was effect with- counsel for rehearing granted in an petition for was drawn because the signed by signed all I that order members of the court. order doubts I had the correctness of the because of which about opinion. rehearing after the was had
Upon study further case opinion Mr. Davis is persuaded that Justice correct I am logic adjudicated cases therein cited. supported by well (dissenting). MR. ADAIR: CHIEF JUSTICE duly acting county elected, qualified and R. Hale J. County, Montana, year 1946 to surveyor from the of Missoula year during time including whole of the County secretary of the Missoula also a member he was legislative authority, which, pursuant had Airport Board, county duly by resolution of the board com- established been County. Missoula missioners salary county officer, county surveyor Hale was a
As —his prescribed law. These in- and his duties were fixed law grades, surveys, pre- all “make all establish duty cluded county. for his R. specifications and estimates” plans, pare 16-3302. C.M.
The planning, construction and maintenance of tbe Missoula County Airport county were and are functions purposes and county surveyor’s tbe work and mak- services in ing surveys, establishing grades preparing plans, specifi- *13 cations and estimates for tbe county county air- including tbe port, all prescribed came within Hale’s county duties as sur- veyor. R.C.M. section 16-3302. compensation
As full county surveyor for bis said services as Hale regularly paid regularly and be from Mis- received County salary prescribed soula tbe full by pro- law and be was by hibited receiving statute R.C.M. 25-201, section from any for bis own fees compensation use for bis ser- work and County’s vices on Missoula airport runways and other than Hale, prescribed salary county surveyor. Ms as page 327, Mont. pro-
Section 25-201 of tbe Codes Revised of Montana of 1947 county vides: “No use, any officer shall receive for bis own fees, penalties any kind, salary or emoluments of tbe as except provided by law, any for by Mm, official service rendered but all fees, penalties every and emoluments of kind must be col- by county lected Mm for tbe sole use tbe and must ac- paid county by counted for and to tbe provided treasurer as 25-203 general section of this code and shall be credited to tbe county.” Emphasis tbe supplied. fund of prohibition Notwithstanding Hale, tbe above while so serv- county surveyor tbe ing County receiving of Missoula and tbe therefor, salary 16, 1950, law prepared, fixed on November to, against presented swore and filed with and the- Missoula Airport Commission, County a written claim and demand designs, plans specifications $600 and for tbe amount runway County’s Airport payment for Missoula sealcote received, deposited which claim Hale cashed and in- bis County and use a Missoula warrant dividual credit in tbe sum salary his over, provided and in addition to $600.79 above by law, 25-201. Hale, in tbe name of R. J.
Had tbe claim been made instead Engineering Missoula, Montana, “Montana Cr.” Company, would not have the approval received member of the County Airport Missoula nor Board would a warrant been have issued therefor nor such warrant been would have paid by honored the county and treasurer.
For making, subscribing swearing these reasons in such claim Hale using refrained from his own name. Instead he knowingly designedly concealed his true and ident- name ity by falsely pretending representing that he “H. B. Waite” and that he secretary nonexisting was the of a “com- pany” by using signing the fictitious name “Montana Engineering Company H. B. Sec’y” Waite on and to said false falsely claim he then had county employee, notarized hired working Hale and direction, his office and under his just as though person actually ap- named Waite” “H. B. had peared notary before such and there sworn to the correctness of only the claim. However appeared the defendant before the *14 notary, only the defendant to swore the claim and was the — signed defendant who wrote and “H. the name of B. Waite” thereto.
Section 94-3908 of the Revised Codes of Montana of 1947 provides: “Every person who, with intent to defraud, pre- * * * * * * payment sents for allowance or for any county, officer, board or pay genu- authorized allow or the same if any ine, claim, or bill, account, false fraudulent voucher, or writing, guilty felony.”
Section 94-1805 of the Revised Codes of Montana of 1947 provides: “Every person knowingly who designedly, by representation pretenses, false or fraudulent or defrauds money person property, or including other evidence in- * * * thereby fraudulently gets possession debtedness into money punishable property, same manner and to larceny money extent as for or property same so ’ ’ obtained. 1951, 23, leave of On March on the district court first had Wesley Castles, county attorney obtained, then of Missoula county an district court of County, Montana, filed crime of R. Hale of the accusing J. the defendant County by false Missoula from obtaining $600.79 the sum of pretenses. sen- tried, convicted and twice Hale was such information
On him against entered judgments of conviction and from the tenced Hale, See State v. to this court. separate appeals he took two 495, May 27, 1952 and 326, (2d) decided 126 Mont. 249 Pac. February Read State v. 1954. Hale first decided State v. Bourdeau, pages at 126 Mont. 1039, 1040. pages at February on appeal, court defendant’s second
On this decision, judg- affirmed both the a three to two 25, 1954, in the trial the defendant and against entered ment of conviction Hale, trial, where- denying him new order court’s granted rehearing for and was petitioned defendant represent stage additional counsel him he retained before this court. Freebourn, rehearing was had Associate Justice
Before appeal on majority opinion the first who had written the argument who had the first oral on defendant’s sat and heard Following appointment of a successor appeal, second died. vacancy occasioned, specifications all to fill the on the court so hearing points originally first of error and of law raised on the again fully argued appeal, presented, were second presently constituting this to all five members court submitted majority opinion and now the herein rules and holds: information fails to state sufficient facts to That Montana; *15 any public under the of constitute offense laws instructing jury, judge 2. the trial committed That in eight by deleting striking the last error words reversible 26; offered instruction No. from defendant’s Mr. opinion, by Justice Freebourn 3. That this court’s de- wrong, Hale, No. appeal, first termining defendant’s
467 9101, 326, 126 (2d) 495, Mont. at 249 pages 326-328, Pac.
pages 495-496;
4. That majority opinion erroneously appeal first on the 1-822, interpreted provisions and construed the of section R. ‘‘ 1947, C.M. holding: planning, The main- construction and of county airport ‘county tenance the Missoula are functions’ county ‘purposes.’ for 1947, 126 R.C.M. section 1-822”. Mont, 327, at page 249 (2d) 495; Pac. majority That opinion erroneously first appeal on the
interpreted and provisions construed the 25-201 section wherein it airport runways stated: “Defendant’s work on the was work surveyor. which came within duties county his He legally $600 entitled to the claimed for such work for reason ‘No use, officer shall for receive own his any penalties fees, any kind, except emoluments sal ary as provided by law, official service rendered * * him *.’ 1947, R.C.M. 25-201. See State ex rel. ’Hern, Matson v. O 104 126, (2d) Mont. 65 619; Pac. Peterson City Butte, v. 44 401, 483; Mont. State ex rel. Rowe v. Court, District 44 Mont. 1103; Pac. Grady City Livingston, 115 Mont. (2d) Pac. 346.” 126 Mont. at page (2d) 495; Pac.
6. That law, doctrine that the in majority declared opinion on the first appeal, 126 Mont. Pac.
became the law the case does not the third trial of reach this ease;
7. That the law the trial case for the third is as announced now on this the appeal present second majority so far as the opinion conflicts with what majority opinion was said in the appeal. which determined first majority opinion day
From pronounced and from conclusions, each and all foregoing rulings holdings therein I dissent. The information is follows: Information. *16 the of
“In District Fourth Judicial District the Court of the Missoula. Montana, County of State of and the Montana, “The of State No. 2682
Plaintiff, Information vs. 23', Mar. Hale, Filed: “R. J. Defendant. District of Fourth Judicial
“In District Court of Missoula, this on County in and for of Montana, the State of and day in the name on behalf March, 1951, 23rd of and Montana, Hale is accused Wes- authority of R. J. of State County Mis- ley Castles, County Attorney for the of in and n Money Obtaining soula, by Information, crime follows, to-wit: Pretenses, felony by False a committed Montana, on or County Missoula, “That at the State fil- November, A. D. and before day the 16th about Information, there be- defendant then and ing said of this designedly, knowingly feloniously, and then there ing, did sub- County, political Missoula intent to defraud and with Mis- Montana, did from said State of obtain division Dollars County amount of Six Hundred soula 79/100 County to the Missoula by presenting for allowance ($600.79) in the words fraudulent claim Airport Board false and following: figures Airport County
“Missoula Commission “Montana Company, Engineering To Montana “1950 Cr. Missoula, Montana. specifications Designs plans “Aug. 1 No. 9-24-040-002 600.00 “Runway project seal-cote Bill “Amount Disapproved “Amount Approved “Amount “ State of Montana i ss. “County of Missoula j
‘ ‘ The undersigned, being duly sworn, says men- that the items tioned in the foregoing account were furnished therein stated and that the amount correct, just, therein claimed due wholly unpaid. *17 Engineering Company
“Montana “Sign Sec’y Here H. B. Waite /s/ “Subscribed and sworn to 16 day before me this of Nov. 1950. Harvey Hill
“/s/ “Notary Montana, Public for State “Residing Missoula, Montana.
(Seal) “My expires commission 2nd, March “ (on the back of appears) said claim
“Airport Board Claim “Warrant No. ‘‘ Eng. Claimant Mont. Co. “For Design plans “Filed 16, 1950 Nov. O. J. Mueller
“/s/ “Airport Commission Fund $600.00 “Approved 19........ N. B. Matthews
“/s/ Airport “Vice Chairman Commission Edward Dussault T. “/s/ “Board Member “Distribution Runway “220 $600.00 Construction pursuant approval County Air- “and Missoula port Board, County warrant was drawn Treasurer County, County believing of Missoula said Treasurer representations upon true, paid the said warrant County figures following: Warrant Missoula words No. 389 Montana “County “Missoula Warrant 16, “November County Airport Board “Secretary Missoula $600.00 Tbe Treasurer “(Joe D. Brown County Treasurer .79 County Int. Missoula, Missoula
Missoula, PAID Montana $600.79 Total 1950)
Dec. Co. Engineering Pay Montana “Will order “Missoula, Montana Dollars “Exactly & 00 Cts. $600 runway project. seal-cote plans specification Designs, “For Airport tbe Treasury belonging to any Money in tbe “Out Fund. 6, 1950. registered December
“Presented and N. Matthews B. “/s/ Airport Commission “Vice Chairman B. Hale J. “/s/ ‘‘Secretary *18 of Funds “Not for Want Paid D. Brown Treasurer
“Joe Deputy
“By “ Zeits J. /s/ appears) (on on said Warrant the back thereof H. B. Waite “Endorsement
B. J. Hale Engineer ‘‘Payment guaranteed by Montana Engr. J. Hale B. Missoula, Montana Bank Montana National
“Western by the defendant and Warrant was received said “That Montana National at the Western defendant deposited defendant, he, received Missonla, said Montana of Bank Dollars sum of Six Hundred and credit therefor 79/100 States, all money of which is United lawful ($600.79) the statute in such effect of form, force and contrary case made and provided, against dignity the peace and the State of Montana.
“Wesley Castles Attorney “County in and for County Missoula, “the Montana “ (Duly County Attorney.) Verified part on “Witnesses of state:
“Harvey Hill Walker B. Carroll “Joe Harry D. Brown Butler “Wesley Castles N. B. Matthews “Norman Zimmerman O. J. Mueller “0. H. Mann H. O. Bell “Edward T. Dussault A. M. Johnson”
Sufficiency The above is the of Information. information first pleading part on the of the state in this criminal action. R.C.M. section 94-6402.
Its office is to the district court of the accusation and inform give jurisdiction and also to the accused of what of- inform charged fense he is so as to him prepare enable his defense. See C.J.S., Informations, Indictments & 11, page section 851. adequately
The information performs herein and serves each of such offices.
In determining sufficiency of the information the strict rigid rule of the ancient application common law has no whatever. R.C.M. section 94-101. sufficiency
The rules the information is to those, only those, prescribed determined are by the Penal Code and set forth Volume Title of the Revised Codes Montana 1947. R.C.M. section 94-6401. Legislature provided approved has an model form of jurisdiction for use which form set forth 94-6404 of the Revised Codes of Montana, *19 things matters and must The which in contained the in- specified formation are those in sections 94-6403 and 94-6405 Montana, of the of 1947. Revised Codes only
The tests informa- determining whether or not the particularly expressly pre- tion is are those and sufficient in 94-6412 Legislature scribed section Revised Montana, Codes of 1947. by the sufficiency every
“The to be tested information is Stickney, prescribed by rules the Penal State Code.” v. page Mont. 523 at 203. 1-568, Code, 1947, pages
The Vol. Title 94, Penal R.C.M. complete is a Code governing procedure crimes and criminal step specifically designated Legislature has each wherein jurisdiction. procedure practice in the and criminal 586-588, 242 Bosch, pages Pac. State Mont. 477, at pages 487, 488. few many rather than too
The information herein states too facts. too little.
It too much rather than informs only requirements Montana’s fully all the It meets beyond goes requirements such Penal Code but it far inform design, plot in of which the accused of the scheme detail documents particular means, devices and he is accused and knowingly designedly he used ob- charged it county’s money not en- which he was taining $600.79 titled. approved, is in the model recom- the form of 94-6404, Legislature prescribed by section
mended and supra. things specified all the matters and
It contains 94-6403. charged, regards (1) party certain as
It direct and (3) particular cir- charged and the details (2) the offense in section 94- charged provided of the offense cumstances provided by Leg- satisfies each test fully It meets sufficiency determining 94-6412 for in section islature informations. indictments literally information follows almost part charging its
473 the words by used Legislature the in section 94-1805 of the Codes to describe Obtaining and define the Money offense of By False Pretenses which punishable “is offense in the same [*] * * so manner and obtained.” R.C.M. to the same extent 1947, section 94-1805. for larceny money by
When tested prescribed rules above so Montana’s Code, Penal the facts stated in the information herein are found to be more than sufficient constitute the of to offense Obtaining Money By described, defined, False Pretenses so de- punishable nounced and provisions made under the of section 94-1805, supra.
The clear Legislature intent of the Montana enacting sec- tions 94-101 94-6401, supra, away was and is to do with the highly ancient technical pleadings common law as well as the ancient tests for the determination sufficiency of their and to substitute simpler therefor the much tests laid down in the Penal Code.
These provisions Code were intended to relax the technical prevailed rules which at ancient simplify common law and to procedure to regard substance, the end that rather than form, interpretation. should be the rule Brown, of State v. 312, 38 Mont. page 99 Pae. 954.
In
Shannon,
Mont.
Under Code to the is no longer required in an indictment or information. Gondeiro, 530, 535, 536, State Mont.
507, every knows, this court said: “As student of law one greatly accused of crime was restricted in his defense early England. this, laws Because solicitude for the ac brought system cused into existence common-law of crim pleading necessary under which it deemed inal to state This charged greatest particularity.
the offense with the given absurdity. reason point done sometimes to the in- might fully requirement was that the defendant prepare for formed as him to enable him to against to the case provided his Availing defense. himself of the'technicalities altogether unwhipped of law, frequently criminal too went pro- justice. provided for his advantage took of the rules He little better tection, law and made the administration ‘aided crim- system public than a For centuries the scandal. crime, reproach penalty great escaping inals in *21 in adminis- affording any the law, without assistance the * * * justice.’ tration of “ ** * California,, sixty years Supreme ago the Court Over 95], Am. said: supra Dec. People King, in Cal. [27 strictness in crim- disposition ‘A relax much of this ancient to practice, and itself in modern proceedings inal has manifested sub- Legislature this state has harmony in the therewith system practice and stituted, old, a new place in the far the former so pleading, all the elements of which retains necessary by regard for the substantial they are a due made serve- defendant, all such elements as a but discards rights of and defeat the only tend to embarrass good purpose, no and system provides plain justice. That few administration of sufficiency of by determine simple rules which and Sec- rules shall be the test. declares that such pleadings, and as, opinion, in was re-enacted 235.’ Section cited tion it We Penal Code California. borrowed 948 of the section as- in 1921 Revised Codes appears our California, and from 1947, section R.C.M. 94-6401].”. section [now 94-1805 of drafting legislation that is now section In defining and the acts conduct describing and the Codes Assembly used the words denounced, Legislative therein “defraud”, “false”, “designedly”, “knowingly”, phrases * * * “false or fraudulent representation”, fraudulent or “false pretenses”. describing and in herein drafting information alleged
characterizing the acts conduct defendant be 94-1805, county attorney employed violative of section phrases the same words, Legislature language, had used in enacting Code such section. designated employed by Leg- phrases words and so enacting
islature in section 94-1805 of the Penal Code and adopted by attorney thereafter and used in draft- ing the information in this all de- phrases case are words and by they law and must given legal meaning their when fined used in an forming prose- information the basis for a criminal cution. ‘‘ Section provides: 94-6410 The words used in an indictment n orinformation are acceptance construed their usual com- language, except mon phrases such words and as are defined .law, according which are construed legal meaning.” to their Emphasis supplied.
Words Law. phrases Below are the words and Defined used in the together are law defined with legal their meaning, 94-6410, viz. -. practice fraud; To trick; deprive to cheat or
“Defraud. person or property any interest, estate, by fraud, right or (cid:127)deceit, (3rd Dictionary or artifice.” Ed.), page Black’s Law .544.
“Design. Plan, scheme, or intention carried effect.” into Law Dictionary, page Black’s 566.
“Designedly. equivalent ‘wilfully,’ Sometimes to words ” ‘knowingly,’ ‘unlawfully,’ ‘feloniously.’ and Black’s Law C.J.S., Dictionary, page 566. 26 pages 1237, 1238, See 69-76, page 1241.
477 ” purchase price of defend- disallowing said horse.’ In ant’s challenge sufficiency to the of the above may the Hanks case, this court said that while the information not be a pleading respects, nevertheless, model in some “There can be no doubt that were not so defective as allegations to acquaint not charge against defendant a to sub- with him or ject offense, him to possible another prosecution for the same prevent or to stating the information from offense.” public a “Feloniously.” In 20 52 Rechnitz, 488, State v. Mont. Pac. 264, 265, this ‘feloniously’ court said: descrip- “The word is tive of charged. the act It means that act done with a mind doing bent on wrong, or, is ‘as has been ” sometimes said, with guilty mind.’ Souhrada, State v. 122 Mont. 204 page at Pac. (2d) 792, page previously this court “This said: court has “feloniously’ indicated that implies an act which done with a doing wrong. Rechnitz, mind bent on 20 State v. Mont. 488, 52 necessary Pac. 264. However, it to use the word ‘feloniously’ in information, as the could have been offense language described in People Davenport, the statute. App. 632, Cal. 57; 318; Jur., 43, page Pac. 14 Cal. sec. 42 C.J.S., Informations, Indictments and page 1028; Rechnitz, supra Emphasis sup- above].” [cited plied.' fraud, proceeding
“Fraudulent. Based on from or character- done, by fraud; fraud; made, ized tainted or effected with purpose design carry out a fraud.” Black’s Dic- Law tionary, page 814. * * *
“Knowingly. The use of this in an word indictment equivalent to averment an defendant knew he what do, and, knowledge, was about to with proceeded such to do charged.” Dictionary, page the act Black’s Law 1059. Also C.J.S., page
tarily purposely and mistake or inadvertence not because of or other innocent reason. symbol
A
token
pretense may
any act, word,
in
or
false
consist
ex
may
calculated
It
made either
and intended to deceive.
be
pressly
in
by implication.
or
form of the words which
The
Mace,
pretense
71
People
is
v.
Cal.
couched is immaterial.
841,
at
App. 10,
page 21,
page
234 Pac.
at
fully
as
may speak
In
pretenses,
connection
false
actions
with
State,
L.R.A.,
22
words,
Wyo. 319,
709,
as
98 Pac.
Martins v.
17
made
N.S., 645,
pretense
be
necessary
is
that a false
words
representation,
or
without
verbal
since acts
conduct
274;
77
may
State,
594,
74 Fla.
So.
be sufficient. Smith v.
N.S.,
L.R.A.,
199,
24
State,
850,
v.
173 Ind.
89 N.E.
Hammer
Drew, 19 Pick.
795,
248;
Rep.
140 Am.
Commonwealth v.
St.
406;
179;
328, 9
179,
Hargrave,
103
S.E.
Mass.
N.C.
Rep.
Wallace,
405,
685, 60 Am.
v.
114 Pa.
6 A.
Commonwealth
example
may
guilty
obtaining property
353. For
one
be
placer
gold
a test hole in
pretenses by “salting”
false
with
ore
deceiving
purchaser
prop
a
of the
mining ground
thereby
29,
erty.
State, 20 Ariz.
sequent Hence, that conviction. we are taken.” exception ruling not well fendant’s this 326, the Crim Baxley, 361, In State v. Okl. Cr. inal held that an Appeals Court Oklahoma not insuffic obtaining money bogus for a false and check was way allege in the cheek was ient because of failure to what bogus. false and 14, state. Title section
Alabama like Montana is a Code who, by “Any Code, 1940, person, provides: of the Alabama injure defraud, pretense token, intent to or false with the any money property, personal or other obtains from another ’’it. if he had stolen punished, on conviction, shall by Title sufficiently charge the offense so denounced To a model form supra, provides Code section the Alabama falsely pre- merely charges that, “A. B. did indictment which ten bales he defraud, had D., tend to C. with intent and, by ready delivery, means of packed of cotton one hundred C. D. pretense, false obtained from the said such be).” may Title (or cloth, as the pieces dollars case ten short, Compare of Alabama. 259, subd. Code lengthy, de- clearly sufficient statement with simple but on tailed, forth the information statement set particularized tried and convicted. which the defendant Hale was Legislature in de- language employed by the Ordinarily the purpose, best suited to fining’ to be a crime deemed in informations predicated upon its use and error cannot be Anderson, App. 58 Cal. People v. instructions. *26 and page at 326. 271, 324, 208 Pac. page ' the language of follow the the information only Not does forth beyond sets far 94-1805, goes it but statute, section evidence, being the important state’s most verla the haec payment thereof county issued in warrant claim and the false the charged it de- is two documents by which means of county by the treasurer from the $600.79 obtained fendant and, by made the pretenses therein representations false true. treasurer, to be believed cre It offense charging that in a criminal well settled law language may charged the statute, ated the be offense Evidentiary facts this is sufficient. statute and that the (2d) App. Supp. Steel, 35 Cal. alleged. People need be v. v. Also State 815, at 817. see page 751, (2d) page at Pac. Brown, supra; State v. Shannon, supra; Stickney, v. State 627 and 43 Pac. supra; Lake, 128, 136, 99 Mont. (2d) 761. Sun, Wong State 114 Mont. v. language of “An informtaion sufficient if it follows Legis- statute, alleges facts which the all the acts and offense, lature shall and is direct has said constitute the charged particular certain offense party to and the be charged.” Poeple App. 234, 223 Pac. Green, 65 Cal. page
As 94-101 the rule of con- provides before shown section how penal provides 94-6410 struction for statutes while section in an information be construed. words used are to Statutory Sufficiency provides the Tests. Section 94-6412 may only sufficiency information is or tests which the of this said pertinent be So is here section of determined. far as Penal reads: Code information, (11852) Indictment or when “94-6412. suffic- * * * it can under-
ient. is sufficient if ' stood therefrom— authority re- having it is “1. That entitled in court * **
ceive it * *# pre information, that was subscribed and “2. If an county in county attorney sented to the court held; the court was * * * is named “3. That the defendant place committed at some within the offense was “4. That ** * jurisdiction of the court prior some time committed at That the offense was “5. ** * information: filing time of is clear- charged offense That the act omission “6. ordinary language, distinctly and concise ly forth set *27 482 repetition, person
without and in manner as enable a of such to understanding intended; common to know what is is charged “7. offense That act or omission as the certainty stated with degree such a of as to enable the court pronounce judgment according conviction, a right of the case.” 1
Subsection Test. and fully The information meets test requirement of 1 subsection of section 94-6412.
It Ju- entitled: “In The District Court Of The Fourth Montana, dicial Of For The District The State Of and County authority re- being having Of Missoula” court it. ceive fully
Subsection 2 meets the tests Tests. The information requirements (1) 2 and of subsection of 94-6412. It County Attorney “Wesley was subscribed: Castles in and for Missoula, County (2) 23, 1951, of Montana” on March and Mis- presented him and filed in the district court of County being the held. soula wherein court was n fully Subsection 3 meets test and Test. The information requirement of subsection 3 of section 94-6412. It entitled: and Montana, Hale, “State Defendant.” Of Plaintiff vs. R. J. Castles, County that, by Wesley it states “R. J. Hale is accused Attorney County Missoula, Informa- in and for the By tion, Obtaining Money Pretenses, False of the crime ’’ felony. fully 4 information meets the test and Subsection Test. The It 4 94-6412. states that requirement of subsection of section money by pretenses false commit- obtaining the offense County Missoula, Hale “at ted the defendant R. J. of Montana.” State fully 5 Test. information meets the test and
Subsection It states that subsection section 94-6412. requirement of 16th or about charged so was committed “on the offense In- November, filing before the of this day A.D. March formation,” filing occurred on fully meets the test and Test. The Siobsection charged The acts 94-6412. requirement of subsection of section lan- ordinary concise clearly distinctly forth in are set as to enable manner guage, in such repetition, without understanding of common person Hale defendant other *28 hav- being of accused intended, is defendant to know what the Pre- Money By False Obtaining ing committed “crime of the felony, follows, to-wit: tenses, a committed as Montana, or on Missoula, of County State “That at the of * * * said de- the day November, A.D. 1950 about the 16th of feloniously, there then and being, fendant and there did then Missoula to knowingly designedly, intent and and with defraud * * * the amount County Missoula obtain from the said ** Missoula the by for allowance to ($600.79) presenting of claim, fraudulent claim County Airport Board and [said false and incorporated point this entirety, being pleaded in its and at approval to pursuant set in and that forth the information] drawn County Airport Board, a warrant was Missoula the said County, and the upon County the Treasurer of Missoula upon the war- believing representations County the Treasurer County Warrant words true, paid a Missoula rant to be entirety, being pleaded warrant, in its figures following: [said in the incorporated and set forth point information]. and at the defendant said Warrant was received “That National Montana Western by the defendant at the deposited re- he, said defendant Montana and Missoula, Bank of * * * ($600.79) lawful sum of therefor credit ceived * * * contrary all to statute States, money of the United * * *” Emphasis supplied. provided such case made and law, nor presumptions of provides: “Neither 94-6414 Section by stated in an taken, need judicial notice matters of which information.” indictment defendant Hale committed that the statement
Thus the form, force and effect of “contrary of to complained acts equivalent provided” made in such case the statute and conduct were con- said acts defendant’s stating 25-201, 94- provisions of sections trary violative 3908 and 94-1805 of the Revised Codes of Montana of judicial 93-501-1, whereof sections subd. notice is taken. See 2, 93-2501-2, 94-7209 and 94-6414. fully Finally
Subdivision Test. meets the the information final test 94-6412. requirement 7 of section of subsection money charged obtaining acts and conduct as the offense pretenses degree false stated such a were and are with certainty County as to Missoula enable the district court of pronounce judgment according conviction, each right pronounced of the case and the trial court has twice so judgment following by jury in this case convictions verdicts. in the trial judgment pronounced
The last so and entered court, omitting cause, is therefrom the title of the court and as follows:
“Judgment regularly “The above entitled came on before cause day March, 1951, upon application Court on the 23rd Wesley Castles, County Attorney County, for Missoula State *29 Hale, accusing R. Montana, for an information J. leave file money by named, obtaining of crime of defendant above the pretenses, felony, a false
“Whereupon, having grant- been leave to file the legal rights, all being informed of his ed, and the defendant duly arraigned, name and acknowl- he answered to his true receipt copy the information. edged of a true being “Thereafter, 26, 1951, pres- the defendant on March plea his that he is ‘not his counsel entered ent court with having information. The case been guilty’ charged in the as by jury having had, trial, and a trial been regularly set for ‘guilty’ charged as in the information was found the defendant Court, left fixed and Court punishment to be and his fully prem- testimony being advised in the and having heard years to three at hard labor said defendant ises, sentenced the Penitentiary Lodge, at Deer Montana. Montana State in the Supreme appealed to the Court said case was “Thereafter granted the defendant a new Montana, and of the State trial. “On March 1953 defendant’s demurrer to the information Court, by overruled, submitted to the the Court de- and the fendant his plea guilty’ charged entered that is ‘not he in the information, regularly and the case was set for trial.
“Said regularly 23, 1953, cause came on for trial on March jury and a having try case, been on drawn sworn to March ‘guilty’ charged found the defendant left punishment his to be fixed Court. On March 1953, the Court sentenced defendant as follows: be,
“It Judgment Is The Of The Court that R. Hale J. is hereby he years sentenced to a term of three hard labor Penitentiary Montana State Lodge, at Deer Montana. day
“Dated this 1st April Besancon, Judge”
“Albert Both section 94-1805 and section 94-3908 denounce and provide punishment perpetration for the frauds, of certain section 94-1805 part of the Penal being Chapter Code entitled “False Personation and Cheats” and section 94-3908 being the Penal part Chapter Code entitled “Pub- By.” lic Officers—Offenses perpetrated
Fraud is by innumerable methods and means. Judges lawyers boast that there is no definition of fraud. They think this is in aid of the law’s effectiveness and does not weaken it. very vagueness Its is said to abe source of strength, it renders the adaptable unpredictable law more conditions.
It quite obvious that Legislature contemplated pub- that prosecutors, lic in drafting indictments informations, ordi- narily would resort employ to and the words so used Legislature in the statutes various such as sections 94-1805 and 94-3908, describing defining the various crimes. Likewise quite apparent Legislature contemplated also *30 public prosecutors times the probably would employ other conveying words the meaning same or similar for which con- tingencies Legislature expressly provided. provides: 94-6411
Section “Words used a statute to de- fine a public pursued offense need not strictly in the indict- ment or information, conveying but other words the same mean- ing may be used.” Prejudice.
No That prejudice defendant suffered actual no on his second trial being sufficiently reason of not informed as to what was intended or as to the offense with which he was charged prepare so to enable him to his defense is shown defendant’s own testimony at his most trial. recent
On direct counsel, examination his own Hale was interro- gated and made answer follows:
“Q. you How much paid preparing were for work for plans? A. supervision work, $600. That includes the also.
“Q. Referring you now to State’s Exhibit will tell me what that is? A. That’s the claim.
“Q. Was that claim you paid $600 were plans specifications? for the Yes, A. sir.
“Q. you I signed notice that Engineering ‘Montana Com- pany Waite, Secretary.’ H. B. signed You that? A. I did.
“Q. Will you tell jury you happend how to sign ‘Mon- Engineering Company Secretary’ tana H. B. Waite, on that claim? A. I have used name Engineering Montana Com- pany years. I for never it heard called fictitious until I came always here. I you gain have prestige believed more from * * * having company than as an individual. “Q. you I refer now to Exhibit 7. What it? State’s A. A $600, warrant for claim.
“Q. paid you? Was that the warrant A. Yes, sir. “Q. Upon receipt you deposited your its bank account? Yes, A. sir. ‘‘Q. you ask guarantee Did the bank to come down and bank, payment? deposited days A. I init and two or three they my guarantee payment. later asked to come over and “Q. you And did? A. Yes.
“Q. you Yes, got And credit for it? A. sir.” 1951 defendant had a conversation March with the *31 attorney at which, the latter’s concerning office in Missonla his most trial, recent questioned the defendant was and made answer as follows:
“Q. subject What was the of the conversation at that time? A. Mostly about this talking here, claim that we are about that he wanted to know Engineering who the Montana Com- pany was, and he I signed claim, asked me if had I told I . him hadn’t.
“Q. you You told him Yes, hadn’t? A. I him told the Mon- tana Engineering Company me, signed I but that had not the claim. questioned He more, a little I me bit admitted I that had.
“Q. Why you did tell him in place you the first had signed it? A. I know, don’t other than I the fact that had been sign warned not to these claims.”
Also in answer to questions further him put to attorney at his second trial the defendant made answer as fol- lows:
“Q. You testified that inquired when Castles first about this you claim him, you told signing denied the name H. B. Waite at first? right. A. That’s * * *
“Q. Why yon did do that? A. That I don’t know. “Q. H. Who is B. boy Waite? B. A. H. Waite is a worked for me at Livingston in 1927.
“Q. person? He an actual A. person. He was an actual “Q. you As far as know, is he still an person? actual A. As * * * far as I know.
“Q. Mr. Harvey Hill, who claim, notarized that was an em- ployee yours? A. employ He county.
“Q. you As matter of fact, him ? A. hired Yes. No, “Q. bought seal, Yon even his you? notarial didn’t A. I you doubt that. What do mean?
“Q. Yon know what I mean a notarial seal? A. I don’t remember that.
“Q. you You don’t bought remember whether it or not? A. No, sir.
“Q. paid notary? And I Ms bond as a A. No. don’t remem- ber that.” n Section provides: 94-6413 Penal Code “No indictment trial, or is insufficient, judgment, nor can the or other proceedings thereon be affected reason of defect imperfection in matter of form which does not tend to the prejudice of a right substantial its mer- of the defendant its.” provides: departure
Section 94-6434 “Neither a from the *32 prescribed form or respect any plead- mode this code in to ing proceeding, or therein, nor an error or it mistake renders invalid, it actually prejudiced defendant, unless has the or tend- respect ed to prejudice, right.” his in to a substantial provides: hearing appeal, Section 94-8207 “After the give judgment regard court must without to technical errors or defects, or to exceptions, which do not affect the substantial rights parties.” of the
In the instant approval case the claim involved bears the of County Airport certain members of the Board Missoula but such approval would not have been obtained had the facts been known. Matthews,
At the trial the witness a member of the Missoula County Airport Board, “Q. you testified: If had known that Secretary’ signature Waite, signed ‘H. B. had in fact been Hale, you approved No, R. J. his claim? would have A. sir.” Mueller, approval also a board member whose witness claim, appears on the back of the testified to the same effect. member, also Dussault, The witness a board testified that he approved the if it would not have claim were assumed that forgery of the of H. B. Waite there had been a name and had it. he known provides: “Whenever, by 94-105 Penal of the Code
Section code, provisions an intent defraud is re- any of the of offense, any sufficient if an quired in order constitute is any association, person, body poli- or appears intent to defraud corporate, whatever.” tic or People, Johnson v. 110 Colo.
page made representations “If are court said: false * * * is thereby and created such appearance regularity an of true, if the disbursement appearing matters were county’s proper; regular in manner funds would and if performed necessary proper the officials for a the acts county money, disbursement or them they whether in performed requisite were fact deceived or acts the official appearance full knowledge such disbursement that the with of regularity created, county, was falsely fraudulently governmental a agency government, branch of the deceived; law money regular when was disbursed proof this was county course false reliance of the on the representations and fraudulent appear- created the false * * * regularity. ance briefly, To state if the matter an of- charged ficial performing with an act in the claim of acts neces- sary regular to a county disbursement of is moneys deceived and upon falsely relies an apparent, fradulently created, but fact, situation of itself, governmental entity, is deceived and relies fact; such situation in if but even all such are parties officials to the fraudulent creating scheme appearance regularity money false through obtained disbursement, regular channels county, law, *33 less none the deceived falsely and none the less relies on the Talley, created situation.” Also see 99, State v. 77 S.C. 57 S.E. 122 618, L.R.A., N.S., 11 938, Rep. Am. St. 559. my opinion give,
In the refusal of the trial court in its en- tirety, defendant’s offered instruction No. 26 did actually not prejudice the nor prejudice defendant tend to his in respect to right, 94-6434, a substantial section nor Ido find defect imperfection in the information that prejudice tends the right the merits, of a substantial defendant the sec- tion 94-6413. given judgment appeal should on this
Since without re- imperfections to technical errors or which do gard not affect rights defendant, the 94-8207, section substantial the the 490
order and judgment the from appeal which the taken shonld be affirmed.
MR. JUSTICE BOTTOMLY: I dissent. opinion
In my the presented by- information herein and filed Wesley Castles, county attorney of is County, Missoula was and sufficient.
It appears to me that
majority opinion
the
the com-
reverts to
mon law to
sufficiency
determine the
information filed
herein by
county attorney
completely ignores
said
statutory
prescribed by
legislature
law
alone
which
the court
adjudge
sufficiency
shall
of an information and
only
which
applicable
1947,
is
law
thereto.
sec-
See R.C.M.
Brown,
94-6412,
tions
94-6403,
Compare
94-6404.
State v.
38
309,
954,
Brantly,
Mont.
99
956,
Pac.
Chief Justice
wherein
speaking of the above statutes
“In
court,
and for this
said:
jurisdictions
statutes,
general
where
similar
rule
there are
’’
charge
is that a
following the words of the statute is sufficient.
Compare,
Hayes,
434;
State
99
219,
v.
38 Mont.
Pac.
State v.
Nielson,
451,
38 Mont.
court unanimous said: provisions tion was under the of subdivision section drawn Rev. Codes R.C.M. [now 94-2701]. agents, bailees, charge larceny servants, is that of generally is in the words the statute. The information statute, good. think An and we follows agent charges larceny or bailee in the offense statute is sufficient and language of the vulnerable to Brown, 954; 38 Mont. general demurrer. State v. Pac. 448; Riccardi, App. 427, Connelly 50 Cal. Pac. People v. State, R. 248 S.W. The information 93 Tex. Cr. overruling correct in sufficient, and court was demur- ’’ Emphasis supplied. rer. agree majority I with the opin- reason that cannot Another *34 de- Pac. Hale, 126 Mont. ion law of 27, 1952, establishel May cided this court law thereof. Such retrial case for the district court its court on the lower only binding established is ease so district Neither the appeal. but on this second on this court placed should be judge this tribunal nor the members of appeal. first in Hale’s following error the law so established affirmed. should be judgment of the district court BARGLER, of WILLIAM P. In the Matter Estate MONTANA, The STATE OF Appellant, Deceased. CUMMINGS, L.
PATRICK Executor Estate P. as WILLIAM BARGLER, WILLIAM P. known also Respondent. BERGELER, Deceased, No. May 3, 1955. Decided October 1955.
Submitted Rehearing Denied November (2d) 680. notes McLamb, (2d) 537, 540, In v. 69 State N.C. S.E. “designedly” it by is said that means design word done purposely. It opposed or to accident or inadvertence. * * * law, usually something “False. this word means untrue; something designedly means more than it untrue and deceitful, treachery implies perpetrate and an intention to some Dictionary, page or fraud.” Black’s Law 748. man claimed Claim, law, “False where a the forest was the same. dne, punished more than his and for and amerced * * * making felony present to As in a statute a used city state, county, or a false or fraudulent board officer merely claim, something ‘false claim’ more than a excessive a Dictionary, page claim.” Black’s Law instant case the ‘‘false As used in the information in the surveyor, Hale, know- county claim” was B. J. made when the made, for ingly, designedly presented and signed, and swore to approval warrant, claim demand wherein the written and pre- represented ‘‘H. B. Waite” and pretended he secretary represented tended and that he was then the by purely Engineering Company” fictitious ‘‘Montana he pretenses, representations means and claim ob- of such false county he county tained from the warrant on which received deposited the sum to his own use and credit $600.79 which was account, county treas- personal in his bank warrant money county County in the treas- paid urer of Missoula out of County ury Airport belonging to the Missoula then and there 25-201 and Fund, provisions in violation of the of sections all 94-1805. Hanks, Falsely representing”. feloniously In State Hanks (2d) 220, the defendant Mont. obtaining property of the crime of tried and convicted pretenses in of section Bevised Codes violation false 94-1805). (now being B.C.M. Montana ap- question ‘‘The raised said: other There the court charge public the information to sufficiency peal is the attorney recites that The information offense. ** * * * * B. F. Hanks did B. charges the said ‘that defraud * * * * * falsely buckskin stallion A. of a Shumate felon- acting agent that he was iously representing’ to Shumate * * * and that purchase of said horse ‘in the Neavitt by Hanks Shu- delivered’ then and there which was check of Neavitt and for said horse’ was check payment mate ‘as ‘to to’ Shumate ‘as by Hanks be delivered been received had
Notes
notes see 30-36. Schneiderman, Cal., In United States v. 102 F. Supp. D.C. 87, 93, “knowingly” it is said that to act means to act volun-