*1 MONTANA, Respondent, STATE OF v. and Plaintiff Appellant. WHITE, Defendant HUGH THURMAN No. 87-309. 22. Submitted on Briefs Oct. 1987. 16, 1988. Decided Feb. Missoula, appellant. for defendant and Boggs, William Gen., Gen., Schaeffer, Atty. Atty. Asst. Greely, J. Mike Patricia Deputy, Helena, III, Atty., Betty Wing, T. Deschamps, Co. Robert Missoula, respondent. рlaintiff for Opinion of the Court.
MR. JUSTICE WEBER delivered Judicial the Fourth pled guilty in the Court for District appeal, District, In this felony theft. County, to a Missoula affirm. We challenges of Montana. of the State The issue is whether the District Court had over the offense. businessman, Rang, White worked for Mr. a Montana as a parties stipulated following
distance truck driver. The to the facts jurisdiction: to the issue of possession “That when White took of Mr. truck and *2 — left the state of he to so did so with authorization do namely, employed by he Rang, suрposed was and he was to truck; way drive his he left the state of the Montana with truck, intent; subsequent that he had at that time criminal that truck, leaving early to Mr. White’s 1984 with the that truck; again point he was never in Montana with the that at some 1984, by spring telephone, the late of distance com- authority driving municated to Mr. White his lack of to continue the truck; used, concealed, and that Mr. White thereafter or abandoned the truck in property; such a manner as the owner of the and that he Kentucky did this at leаst in the states of and Texas possibly other states.”
Mr. White charge Kentucky April was arrested on this originally pled innocent, He and moved to dismiss on the basis that jurisdiction. Montana court had no His motion was denied. Af- trial, day ter one changed plea оf guilty. his After he sentenced, he filed a ruling motion to reconsider the adverse on jurisdiction. That motion was also denied.
Did the District Court have over the offense? 46-2-101, MCA, scope Section sets forth the of Montana courts’ jurisdiction: person subject
“A is for an offense state which he commits while either within or outside the state his own conduct or of legally another for which is if: accountable
“(a) the wholly partly offense is committed either within the state;
“(b) the attempt conduct outside the com- statе constitutes an mit an offense within the state and an act in furtherance of the of- state; fense occurs
“(c) attempt, conduct within the state constitutes an solicita- tion, conspiracy to commit in another an offense under the laws of this state and such other
“(2) An offense is if either the committed within this state conduct which is is an element of the offense or the result which an homicide, element occurs within the In ‘result’ is either state. itself, physical which causes death or the death contact state, is body within the the death of a homicide victim is found presumed to have occurred within the state.
“(3) perform duty omission to An offense based on an state, re- imposed by is committed within the law of this state time of gardless at the the omission. of of the оffender the location “(4) space and the air above This includes the land and water state legislative to which the state has such land and water jurisdiction.” jurisdiction to which would Montana’s crimes
This statute extends jurisdiction. For exam- past not in the have been within the State’s 46-2-101(2), MCA, prosecute a ple, Montana to homi- Section allows regardless of where the body cide if a is found within keep this broad assertion homicide occurred. We present analyze case. tion in as we mind (1) 45-6-301, MCA, crime of theft. Subsection defines the provides: when he commits offense over unauthorized control obtains or exerts
the owner and: purpose depriving has the *3 conceals,
“(b) uses, the or abandons knowingly or erty or deprive in such the manner as use,
“(c) uses, conceals, property knowing such or abandons cоncealment, deprive the owner will abandonment property.” phrased in the information was charge against The Mr. White 45-6-301(l)(b), MCA. language of Section juris- have argues not Mr. the State of Montana does White elements none of the charge dictiоn to him with theft because of his support He Illinois cases crime occurred the state. cites position. Illinois theft is the
Although of Montana’s theft statute the source has 16-1, statute, Montana’s statute paragraph ch. Ill.Rev.Stat. The Illinois statute. significantly frоm the Illinois been modified 45-6-301(l)(b), subsection like statute does contain a statutory which provision under MCA. In absence of the is not interpretation of its statute charged, Illinois’ relevant. to Sec- points Commission Comments out that White also proved be 45-6-301(1), MCA, “only two elements
tion state subsection, purpose knowing of control and a under this exertion may this statement be deprive . . . .” We conclude that while (b) (a) (c) (1), language part parts true for of subsection property requires deprived of his before a that the owner must be to Mr. charge will stand. truck was delivered of theft understanding it to be returned White in Montana with the that was Rang in the failure to return the to Mr. Montana. We conclude that Rang being deprived property of his Mon- truck resulted Mr. 46-2-101(2), MCA, jurisdiction has tanа. Under Section Montana the offense oc- over an offense the result which is an element of curred Montana. We hold that the Montana court had against tion over the Mr. White.
Affirmed. MR. HARRI-
MR. CHIEF JUSTICE TURNAGE and JUSTICES SON and GULBRANDSON concur. HUNT, dissenting:
MR. JUSTICE reasoning majority opinion find it difficult to follоw the holding contained in the Montana theft statute gives Section 45-6- over White’s actions. 301(b), MCA, requires person “purposely ob- that a uses, property” tains or exerts . . unauthorized control over conceals, abandons the such a manner as property.” the owner of the facts, stipulated quoted by majority, that White state while
had intent to at time agreement the State of facts removes White Montana. This as to the upon from the arm the State and statute 46-2-101(1)(a), MCA, majority rely. Section states: subject for an offense this state by his own which he commits while either or outside the state within ... if: conduct wholly the offense is within committed either
state; . . .” *4 finding fact that White
There is evidence to contradict the used, as never in such a manner concealed nor abandoned the truck deprive Rang property in Montana. while asserts, result of majority agrees The State and the theft, 45- being deprived Section while Montana is an element 6-301(l)(b), MCA, him 46-2- brings under Section and therefore 101(2), MCA: the con-
“An within this state either offense is committed the state.” duct the result which is an element occurs within or majority opinion Illinois statute does states that “[t]he 45-6-301(l)(b), Illinois’ in- MCA. contain a subsection like Section terpretation not bind us this case.” of her statute does 45-6-301(1) (b) states: purposely or person of thеft when he commits offense property of knowingly or exerts unauthorized control over obtains and; owner “(b) uses, conceals, or abandons or property.” erty deprive in such manner as to the owner statute states: Section 16-1 of the Illinois сriminal knowingly: A “Theft. commits theft when property of the or exerts unauthorized control over Obtains owner; or
“(b) owner; or by deception property of the Obtains control over owner; “(c) property or by Obtains threat control over “(d) knowing prоperty the property Obtains control over stolen reasonably as would have stolen or under such circumstances been stolen, property induce him to believe that “(1) or bene- deprive permanently of the use Intends to the owner fit of the
“(2) uses, such Knowingly conceals abandons benefit; permanently such use or the owner manner use, “(3) Uses, knowing such conceals, or abandons per- concealment or abandonment will manently of such use or benefit. 45-6-301, as Section have the same
Section 16-1 does not format it, virtually identical. the critical but as read of Illinois and Regardless of whether the theft statutes statutes comparable interpretation, long-arm merit are considering the construction When from identical. the two states Court is adopted jurisdiction, of a statute which is from another by upon it placed interpretation not bound the construction 30,] 1985), (Mont. Mont. Edgar v. Hunt [218 other 314, 1980), (Mont. Harvey 186 Mont. Lawrence v. 120, 122; however, carefully will, consider P.2d This Court *5 361 placed by highest construction of that statute on it court (1977), adopted. Murphey State v. 174 state from which it was 307, 311, 1103, Mont.
The Illinois case most
at bar
relevant to
case
480,
(1982),
jurisdiction People
v. Holt
64 Ill.
issue of
is
91 Ill.2d
550,
Holt,
kidnaped
Dec.
In
“Not element of an offense Some ele- ments, necessary, while еssential in the sense of are not the essence of the .... crime any
“Section 1-5 does not declare that
element of the offense will
support jurisdiction.
‘the
The
is
conduct which is an ele-
offense,
ment of the
or the result which is such an element . . . .’
phrases
The ‘element’
expand jurisdiction
do not
but limit it. The
proper meaning is
enough only
that ‘the conduct’ is
if it
ele-
is an
offense;
ment
similarly,
solely
of the
if the offense is
defined
result,
regard
any
terms of conduct
jurisdic-
without
there is no
tion based on where the conduct causes harm.”
553,
find that deprivation the result of is an element of the crime of theft.
An
People
Illinois case which discusses the Illinois theft statute is
(1965)
v. Nunn
Ill.App.2d
Whether Illinois or Montana the elements constituting state, theft are elements of сonduct and a dual mental way not result. The defendant act will, will, which he knows another of their erty. The deprivation by result of actual to a victim is not delineated if, arguendo, deprivation statute. Even was an ele- the result of theft, deprivation ment of in states other this case occurred than deprivation Montana. The occurred the states having truck while White exerted unauthorized control deprive. proper state of intent to mental says very me. majority’s paragraph last is troublеsome to It Montana, picked up Rang’s truck in with the that because White understanding it the State of that would be returned to re- over White’s Montana therefor has gardless of where the theft occurred. language of Montana’s theft or arm
Nowhere delivery goods to a one tion statutes there even an allusion Although which are later stolen another never there was intent White to interprets majority apparently while in the statutes *6 saying lawfully but received the truck because be Montana fоr a failed to return it to he can tried totally theft of Montana’s borders. which occurred outside point is no on which deals with this situa- There case A laws dealt with similar tion. search of the various state Colorado; problems directly People v. point from reveals one case on (Colo. 1985), of App. 919. Tinkle was convicted Tinkle Tinkle entered into an theft The evidence showed that Colorado. provided that Tinkle agreement with from Colorado which a man Tinkle to man’s to sell rodeos. was take the to Texas at merchandise attempts profits. sell the mer- share After several failed planned, selling Tinkle the total chandise Texas as resorted Arizona, inventory kept proceeds from the sale. The Colo- but all conviction, stating: Appeals rado of Tinkle’s Court reversed deprive and “The intent to critical elements here are defendant’s (victims) no merchandise was the location his control over where light longer in the authorized. Even considered evidence point prosecution, to defendant most favorable all inferences Colorado, formulating not exercising authorized control omitted.) (Cites wrongful was State. intent until he out circumstances, of the theft for Under these established, judgment motion fоr was not and defendant’s added.) acquittal granted.” (Emphasis should have been at 921. P.2d The fact that agree reasoning I Court. with the of the Colorado enough to deprived his victim Montana was “partly the State qualify within” as the of an offense commission (White’s) in “the location where proper Montana. Jurisdiction is Consequently, (the truck) longer authorized.” control over would hold that the State of Montana does not have prosecute present defendant White under the law.
MR. JUSTICES SHEEHY and McDONOUGH concur the fore- going dissent.