STATE v COOL
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No. 13655 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 THE STATE OF BIOFJTANA, Plaintiff and Appellant, -vsELONE ELAINE COOL, Defendant and Appeal from: Respondent. District Court of the First Judicial District, Honorable Gordon R. Bennett, Judge presiding. Counsel of Record: For Appellant: Mike Greely, Attorney General, Helena, Fontana Charles A. Graveley argued, County Attorney, Helena, Montana Michael McCabe argued, Deputy County Attorney, Helena, Montana For Respondent: David N. Hull argued, Helena, Montana Submitted: Decided : May 31, 1977 QCG L -aa 9 Cle , ; 1- ;z ; Mr. Justice Gene B. Daly delivered the Opinion of the Court. A criminal complaint was filed May 17, 1976, in the district court, Lewis and Clark County, charging defendant Elone Elaine Cool with the crime of theft, a felony, in violation of section 94-6302 (1)(a), R.C.M. 1947. Trial commenced November 8, 1976 and at the close of the state's case-in-chief, the defense moved for acquittal alleging the state failed to prove a prima facie case against defendant. motion was denied. That The defense went forward with its case and at the close of all evidence made a motion for a directed verdict of acquittal for the reason the evidence as presented by the state was insufficient as a matter of law to allow it to go to the jury. The judge granted that motion and dismissed the case. The state filed a notice of appeal on November 10, 1976. On April 20, 1977, defendant's counsel filed a motion to dismiss the appeal on the grounds it violated the double jeopardy clause, Fifth Amendment, United States Constitution, and on May 18, 1977, counsel filed an amended motion to dismiss the appeal adding the ground that this Court lacked jurisdiction to hear the state's appeal. The controlling question here is whether this Court has jurisdiction to hear the state's appeal of a district court's judgment of acquittal. Section 95-2403, R.C.M. 1947, controls the appeals the state may take in a criminal proceeding, it provides: "Scope of appeal. (a) Except as authorized by this code, the state may not appeal in a criminal case. " (b) The state may appeal from any court order or judgment the substantive effect of which results in: " (1) dismissing a case; "(2) modifying or changing the verdict as provided in section 95-2101 (c)(3); " (3) granting a new trial; "(4) quashing an arrest or search warrant; " (5) suppressing evidence ; "(6) suppressing a confession or admission; or "(7) granting or denying change of venue." Here the state contends the state of Montana has a statutory right to appeal under section 95-2403(b)(l). court's ruling was in fact a dismissal. It argues the district Defendant argues this was a motion for acquittal and such a motion does not constitute a dismissal of the case as contemplated in section 95-2403(b) (1). We find no merit in the state's argument in relation to section 95-2403 (b)(1), because subsection (b)(1) simply does not apply to the instant fact situation, no matter how the state tortures the language used by the district court. The court very clearly and with precision informed the state in reference to the evidence: am just saying that it's insufficient." "I 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. The United States Supreme Court in United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L ed 300 and Fong Foo v. United States, 369 U.S. 141, 82 S.Ct. 671, 7 L ed 2d 629, emphasized that what constitutes an acquittal is not to be controlled by the form of the judge's action. Rather, this Court must determine whether the ruling of the judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged. This Court in State v. Peck, 83 Mont. 327, 330, 271 P. 707, stated that statutes granting the right of appeal to the state in criminal actions must be strictly construed and the right limited to the instances mentioned; if the right is not clearly and unequivocably conferred, an action does not lie, nor can the right, if conferred, be enlarged by construction of the statute. In an early Montana case, Territory of Montana v. Philip Laun, 8 Mont. 322, 20 P. 652, the district court directed the jury to find a verdict of acquittal and the state appealed contending that the action was in effect a dismissal of the case and thus appealable under the precurser to section 95-2403. This Court disagreed stating that an acquittal is not appealable by the state. This rule is still the law in Montana. Perhaps the most fundamental rule in the history of criminal jurisprudence has been that a verdict of acquittal cannot be reviewed, on error or otherwise, without putting a defendant twice in jeopardy and therefore violating the Fifth Amendment, United States Constitution. United States v. Ball, supra. The due process clause of the Fifth Amendment has been applied to the states through the Fourteenth Amendment to the United States Constitution. In Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L ed 2d 707, the United States Supreme Court stated: " * * * the double jeopardy prohibition of the Fifth Amendment represents a fundamental ideal in our constitutional heritage, and that it should apply to the States through the Fourteenth Amendment. " See also: United States v. Martin Linen Supply Co., No. 76-120, 21 Crim. L.R. 3001, 45 United States Law Week 4337, April 4, 1977. For the foregoing reasons defendant's amended motion to dismiss the state's appeal is granted. ,lLx Justice i We Concur: qmbdb Chief Justice i i Justices S t a t e of Montana v. Elone Elaine Cool ---No. 13655 M r . J u s t i c e Daniel J. Shea s e p a r a t e l y concurring: I concur i n t h e r e s u l t of t h i s case b u t I do n o t agree with t h e implications of t h i s decision holding t h a t a d i s t r i c t c o u r t has t h e power t o dismiss a criminal case before i t goes t o t h e j u r y on t h e grounds of i n s u f f i c i e n c y of t h e evidence. Whether t h e d i s t r i c t judge was r i g h t o r wrong i n dismissing t h i s c a s e , i t i s c l e a r double jeopardy would prevent defendant from again being t r i e d f o r t h e same offense. Whether i t was an a c q u i t t a l o r d i s m i s s a l f o r i n s u f f i c i e n c y of the evidence i t makes no d i f f e r e n c e . Double jeopardy a t t a c h e s . I am n o t convinced however, t h a t a d i s t r i c t judge has t h e r i g h t t o take a case away from a jury on t h e grounds of i n s u f f i ciency of t h e evidence, whether t h e motion be one t o a c q u i t o r one t o dismiss. I n r e l y i n g on T e r r i t o r y of Montana v. P h i l i p Laun, 8 Mont. 322, 327, 20 P. 652 (1889), t h e c o u r t s t a t e s t h a t t h i s case has never been overruled and i s s t i l l t h e law i n Montana. While i t has not been overruled, i t i s no longer t h e law i n Montana. I n Laun, t h e Court s t a t e d : "The p r a c t i c e of d i r e c t i n g an a c q u i t t a l whenever t h e evidence, i n t h e d i s c r e t i o n of t h e judge, f a i l s t o support t h e charge, i s w e l l recognized a s a proper order i n c r i m i n a l procedure. There i s no law i n our s t a t u t e s , express o r implied, which f o r b i d s t h e e x e r c i s e of t h i s power i n t h e *." (Emphasis added.) 8 Mont. 327. t r i a l judge *** ** By t h i s language i t i s c l e a r t h a t i n Laun t h e Court f e l t i t was c l e a r l y within t h e power of t h e l e g i s l a t u r e t o expressly o r impliedly take t h i s power away from t h e d i s t r i c t c o u r t s . I b e l i e v e t h a t subsequent s t a t u t e s have taken t h a t power away from d i s t r i c t c o u r t s , f i r s t e x p r e s s l y , and p r e s e n t l y , by implication. Section 94-7227, R.C.M. 1947, was enacted a f t e r Laun was decided and remained i n e f f e c t u n t i l 1967, when t h e p r e s e n t s t a t u t e s were adopted. I t provided i n r e l e v a n t p a r t : ** I f , a t any t i m e a f t e r t h e evidence on e i t h e r s i d e i s c l o s e d , t h e c o u r t deems i t i n s u f f i c i e n t t o warrant a conviction, i t may advise t h e jury t o a c q u i t t h e defendant; b u t t h e j u r y i s n o t bound by t h e advice. II 'I* It i s c l e a r t h i s s t a t u t e prevented a d i s t r i c t judge from taking a case away from t h e j u r y on t h e grounds of insuffi- c i e n t evidence, o r d i r e c t i n g i t t o f i n d a v e r d i c t of n o t g u i l t y because of i n s u f f i c i e n t evidence. He could only advise t h a t , i n h i s opinion, t h e j u r y should a c q u i t because of i n s u f f i c i e n t evidence. Laun -was Accordingly, when s e c t i o n 94-7227 went i n t o e f f e c t , no longer t h e law. Section 94-7227 remained i n e f f e c t u n t i l 1967. It i s t r u e t h a t even while i t was i n e f f e c t , i t was held i t d i d n o t apply - t o s i t u a t i o n s where t h e r e was no evidence t o support a conviction. S t a t e v. L a b b i t t , 117 Mont. 26, 35, 156 P.2d 163 (1945) ; S t a t e v. Widdicombe, 130 Mont. 325, 330, 301 P.2d 1116 (1956); S t a t e v. Perschon, 131 Mont. 330, 337, 310 P.2d 591 (1957). These c a s e s d i s t i n g u i s h between s i t u a t i o n s i n which t h e t r i a l c o u r t deems t h e evidence, although tending t o prove every element necessary t o c o n s t i t u t e t h e crime charged, i n s u f f i c i e n t , and s i t u a t i o n s where t h e r e was a l a c k of any evidence on a m a t e r i a l element of t h e crime charged. I n the f i r s t instance the d i s t r i c t c o u r t could n o t dismiss t h e c a s e ( s e c t i o n 94-7227,R.C.M. 1947), but in t h e second s i t u a t i o n he could dismiss t h e case before i t went t o t h e j u r y . Such was t h e s t a t e of the law when s e c t i o n 94- 7227 was repealed and s e c t i o n 95-2101, R.C.M. 1947, replaced i t . Section 95-2101 d e t a i l s the powers of d i s t r i c t judges a f t e r the t r i a l of criminal a c t i o n s and provides: "New T r i a l . (a) Definition and Effect. A new t r i a l i s a -xamination of the issue i n the same c o u r t , before another jury, a f t e r a v e r d i c t o r finding has been rendered and the granting of a new t r i a l places t h e p a r t i e s i n the same position a s i f t h e r e had been no t r i a l . " (b) Motion f o r a N w T r i a l . e "(1) Following a v e r d i c t or finding of g u i l t y the court may grant t h e defendant a new t r i a l i f required i n the i n t e r e s t of j u s t i c e . '(2) The motion f o r a new t r i a l s h a l l be i n w r i t i n g and s h a l l be f i l e d by the defendant within t h i r t y (30) days following a v e r d i c t o r finding of g u i l t y . Reasonable n o t i c e of the motion s h a l l be served upon the s t a t e . "(3) The motion f o r a new t r i a l s h a l l specify the grounds t h e r e f o r . " (c) Alternative Authority of the Court on Hearing n Motion f o r Nw T r i a l . O hearing the motion f o r a new e t r i a l , i f j u s t i f i e d . b y law, and the weight of the evidence, the court may: "1. Deny the motion, "2. Grant a new t r i a l , o r 3 Modify o r change the v e r d i c t o r finding by finding the defendant g u i l t y of a l e s s e r degree of the crime charged, finding the defendant g u i l t y of a l e s s e r included crime o r finding the defendant not g u i l t y .I' (Emphasis added. ) The underlined portion of the above quoted s t a t u t e , I believe, was designed t o give the d i s t r i c t courts a l l the power they needed t o c o r r e c t an i n j u s t i c e caused by an erroneous jury v e r d i c t of g u i l t y . The t r i a l judge can, among other things, e i t h e r modify a jury v e r d i c t by changing i t t o a l e s s e r included offense, o r he can find the defendant n o t g u i l t y . The s a l i e n t p o i n t , however, i s t h a t i f the d i s t r i c t court does t h i s , and since it i s a f t e r the t r i a l , the s t a t e has the r i g h t t o appeal a s expressly provided i n s e c t i o n 95-2403, R.C.M. 1947. Section 95-2403(b) (2) provides: "(b) The s t a t e may appeal from any c o u r t order o r judgment the s u b s t a n t i v e e f f e c t of which r e s u l t s i n : 'I* ** "(2) modifying o r changing t h e v e r d i c t a s provided i n s e c t i o n 95-2101(c) (3)". It i s c l e a r then t h a t i f t h e c o u r t does nrodify o r change t h e v e r d i c t , t h e s t a t e can appeal. Allowing t h e s t a t e t o appeal under these circumstances does n o t s u b j e c t t h e defendant t o double jeopardy. I f the s t a t e l o s e s t h e appeal, t h e d i s t r i c t c o u r t ' s order modifying t h e j u r y v e r d i c t o r f i n d i n g t h e defendant n o t g u i l t y , stands and t h a t i s t h e end of t h e case. I f t h e s t a t e wins i t s appeal, t h e e f f e c t i s t h a t t h e g u i l t y v e r d i c t i s r e i n s t a t e d and defendant s t i l l has been subjected t o b u t one t r i a l . thing l e f t then i s t h e sentencing. The only This s t a t u t e p r o t e c t s both t h e r i g h t s of t h e s t a t e and those of defendant. The s t a t e ' s r i g h t t o appeal i s protected and t h e more important r i g h t of t h e defendant not t o be twice put i n jeopardy i s protected. The majority d e c i s i o n d i d not d e a l a t a l l with t h i s problem and I can conceive i t s decision i s going t o cause problems i n Montana. For t h e foregoing reasons, I would uphold t h e d e c i s i o n of t h e d i s t r i c t c o u r t i n dismissing --- s o l e l y f o r t h e reason t h a t double jeopardy a t t a c h e d under t h e f a c t u a l s i t u a t i o n here. How- e v e r , I would a l s o hold t h a t a d i s t r i c t c o u r t has no r i g h t t o e n t e r an order of d i s m i s s a l o r an o r d e r of a c q u i t t a l on t h e grounds of i n s u f f i c i e n c y of t h e evidence. i s provided i n s e c t i o n 95-2101. A The remedy of defendant
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