STATE v HARRIS
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NO. 8 3 - 4 6 0 IN THE SUPREKE COURT OF THE STATE OF MONTANA 1984 STATE OF MONTANA, Plaintiff and Respondent, -vsWILLIAM GEORGE HARRIS, SR., Defendant and Appellant. APPEAL FKOM: District Court of the Fourth Judicial District, In and for the County of Missoula, Gary, Judge presiding. The Honorable Joseph COUNSEL OF RECORD: For Appellant: Bernard J. Go,ldman argued, Plissoula, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Patricia Schaeffer argued, Asst. Atty. General, Helena Xobert L. Deschanps, 111, County Attorney, blissoula, Montana Submitted: Decided: Filed: April 18, 1 9 8 4 June 8, 1984 3UI\i ,j IYUq # - Clerk - . - Mr. Justice John C. Court. Sheehy delivered the Opinion of the William George Harris, Sr., appeals from an order of the District Court, Fourth Judicial District, Missoula County, denying his motion for a new trial. We affirm the order of the District Court. In 1981, Carl F. Anderson, Doug E. Shuland, and Thomas Michael Rriggs, with the legal advice of the defendant, William George Harris, Sr., formed Go Devil Hotshot Service Company, Inc., to provide needed parts to oil fields. expedited delivery service of Between June 1981 and the middle of August 1981, Harris received around $21,000 from various contributors business. to be used on Harris deposjted behalf of the newly-formed $6,000 of this money into a company bank account and used approximately another $9,000 of this money to cover the business' expenses. the money, around The remainder of $6,000, could not be accounted for by Harris. On June 1, 1982, Harris was charged by information with three counts of felony theft. appropriating money owned by Count 1 charged Harris with Carl Anderson, and Douglas E. Shuland. F. Anderson, Joyce A. On June 30, 1981, the Andersons, on behalf of Shuland, gave Harris a $3,000 check to be deposited with the company. Harris took the check, deposited $1,500 $1,000 to his account, to his wife's account, $350 to his son's account, and cashed the remainder. According to Harris, this action was iustified as the Andersons owed him over $8,000 and Shuland owed him $1,000. Both amounts were legal fees for representation on earlier unrelated matters. The Andersons testified, however, that the matter in which Harris had represented them was decided in favor of the other party, and Harris had told them to forget the legal fees. Count I1 charged Harris with appropriating money given him by Thomas Michael Rriggs. Briggs became involved with the Go Devil Hotshot Service Company after its formation and gave Harris a check for $5,000 to cover his contribution to the companv. Harris cashed the check at his bank and to deposited $1-,500 his wife's account. Count 111 charged Harris with appropriating money loaned the company by Elsie Oliva, Joyce Anderson's mother. On August 14, 1981-, Oliva obtained $13,000 from her bank in Hamilton. She turned the proceeds over to Harris in the form of a cashier's check and received a promissory note from the company for the $13,000. Harris then returned to the bank and. requested that he be given a cashier's check for $6,000 and $7,000 in cash in exchange for the $13,000 cashier's check. The bank refused to redeem the cashier's check for cash, but did issue two cashier's checks to Harris for $6,000 and $7,000. Harris deposited the $6,000 cashier's check into a company bank account and cashed the other check for $7,000. A jury trial was held and Harris was found guilty of felony theft on counts I1 and 111. Harris moved for a new trial, but the motion was denied hy the District Court. A sentencing hearing was held on June 7, 1983, and Harris was given two 5-year suspended sentences and placed on probation. He was further ordered to pay $5,000 jn restitution to Oliva and a $5,000 fine. Upon motion of counsel, execution of judgment was stayed pending appeal. The testimony sole of issue one of presented the by State's Harris is whether witnesses the constitutes perjury, so as to "taint" Harris' conviction and requjre a new trial. According to Harris, a new trial must be granted "where it appears there has been a trace of perjured testimony presented to the jury resulting in a conviction." State v. Greeno (1959), 135 Mont. 580, 592, 342 P.2d 1052, 1058. He contends that here, "there exists FAR MORE THAN A TRACE OF PERJURY . . . resulting in a conviction which obtains only from the use of 'tainted' testimony by the prosecutor." This contention is not supported by the evidence. We cannot find in the testimony represented as perjury even a "trace of perjury" and we cannot agree that Harris' conviction resulted only from the use of such testimony. At trial, Harris' counsel questioned Doug Shuland as to his activities on August 15, 1981. Shuland testified that on that date he and a friend went to Hamilton to visit his grandmother. When asked if he remembered attending the first board meeting of the Go Devil Hotshot Service Company on that same date, Shuland replied that he remembered the meeting but not whether the meeting occurred on August 15. testimony which Harris It is this contends is blatantly perfurious. However all we have is Harris' contention. We can discern no perjury from the face of the testimony and Harris has offered no other evidence to support his claim that Shuland committed periury . Furthermore, Harris was found not guilty by the jury on count I charging him with appropriating money belonging to Shuland. He was convicted on counts I1 and I11 charging him with appropriating money belonging to Thomas Michael Briggs and Elsie Oliva. Whether Shuland was or was not at the company's first board meeting is entirely immaterial to his conviction on these counts. Based upon the foregoing, we affirm the order of the District Court denying Harris' motion for a new trial. f" C - x Justice We Concur: , , 3-4- J, q M Chief Justice 1 d L \
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