State v. Cole, 13786

• Decision Date: 26 October 1977
• Docket Number: No. 13786,13786
• Citation: 571 P.2d 87,174 Mont. 380
• Parties: The STATE of Montana, Plaintiff and Appellant, v. Frank COLE, Jr., Defendant and Respondent.
• Court: Montana Supreme Court

Page 87

571 P.2d 87

174 Mont. 380

The STATE of Montana, Plaintiff and Appellant, v. Frank COLE, Jr., Defendant and Respondent.

No. 13786.

Supreme Court of Montana.

Submitted Sept. 26, 1977.

Decided Oct. 26, 1977.

Michael T. Greely, Atty. Gen., Helena, Arthur W. Ayers, Jr., County Atty., argued, Red Lodge, for plaintiff and appellant.

Kampfe & Perhacs, Red Lodge, D. Frank Kampfe, argued, Red Lodge, for defendant and respondent.

HATFIELD, Chief Justice.

The Carbon County attorney charged defendant with four counts of official misconduct under section 94-7-401, R.C.M.1947. Defendant moved to dismiss the four count Information. The district court granted the motion to dismiss Count I and denied the dismissal of Counts II, III, and IV. The Carbon County attorney appeals the dismissal.

On January 20, 1977, the Carbon County attorney applied to the district court for leave to file an Information charging defendant with four counts of official misconduct while chairman of the Carbon County Board of County Commissioners. The county attorney supported his application with an affidavit wherein he set forth various facts tending to establish probable cause for believing defendant committed the offenses. The court granted leave to file the Information.

Count I of the Information charged that defendant, in his official capacity, had knowingly performed an act which he knew was prohibited by law (section 16-1803, R.C.M.1947) when he entered into a contract to purchase road machinery from Allied Equipment Company for a sum in excess of $10,000 without first publishing a notice calling for bids.

On February 14, 1977, defendant filed two motions to dismiss. In the motion entitled "MOTION TO DISMISS" defendant asserted that Count I failed to charge an offense because section 16-1803 pertains only to the "county governing body" and not to an individual commissioner, such as defendant. In his motion entitled "MOTION TO DISMISS # 2", defendant alleged the affidavits he submitted in support of that motion showed he did not commit an offense.

Defendant and the Allied Equipment Company salesman and president swore in the affidavits accompanying "MOTION TO DISMISS # 2" that no contract had been entered into by defendant with Allied, as alleged in the Information's Count I. The affiants all asserted that, although defendant had signed an order form, the purpose of the form was to allow the salesman to order the equipment to county specifications so the equipment might be available when the county accepted equipment bids. The affiants stated the form in no way bound Carbon County to the purchase of the machinery. Defendant and the other two county commissioners stated in affidavits that the commissioners published a call for bids in the February 26, March 4 and March 11, 1976, Carbon County News and did not accept Allied Equipment Company's bid until the regular meeting of the commissioners on March 11, 1976.

The Carbon County attorney submitted no counter-affidavits and offered no other proof to rebut the sworn statements in the affidavits submitted by defendant. On March 7, 1977, the district court ordered that Count I of the Information be dismissed, without setting forth the reasons for the dismissal.

The issues on appeal are whether a trial judge may dismiss a criminal case prior to trial over the objection of the prosecuting attorney, and, if he may, whether the trial judge in this case followed the proper procedure in dismissing Count I.

Appellant state of Montana notes that the district court did not specify the basis for its dismissal of Count I, and asserts that either ground for dismissal advanced by defendant was insufficient. The state argues the proscription in section 16-1803(1), R.C.M.1947, against a county governing body entering into certain contracts without first publishing a notice calling for bids, applied to each county commissioner individually, as well as to the commissioners as a body. Appellant maintains dismissal for the reason that section 16-1803(1) did not apply to defendant as an individual was therefore incorrect. Appellant asserts that neither could the judge dismiss Count I on the basis of the affidavits defendant submitted with his "MOTION TO DISMISS # 2". The affidavits went directly to the general issue to be determined at trial, that of whether defendant had actually entered into an unauthorized contract. The state contends that issue is a question to be decided by the jury at trial and not by the judge prior to trial. As the state notes, section 95-1701, R.C.M.1947, which sets forth the defenses and objections which a defendant may raise before trial, allows motions only for "Any defense or objection which is capable of determination without the trial of the general issue * * *." Unlike the defense of entrapment raised by pretrial motion in State ex rel. Hamlin v. District Court, 163 Mont. 16, 515 P.2d 74 (1973), defendant's defense in his "MOTION TO DISMISS # 2" went squarely to the general issue of existence or nonexistence of a contract, and was, therefore, not authorized by section 95-1701.

The judge could, however, for the reason there were insufficient facts to bring defendant to trial, dismiss Count I of the Information under section 95-1703, R.C.M.1947, which provides "The court may * * * on its own motion * * * and in furtherance of justice, order an * * * information * * * to be dismissed * * *." The defendant in State ex rel. Forsythe v. Coate, Mont., 558 P.2d 647, 649, 33 St.Rep. 1350 (1976), was also charged with official misconduct, and sought to dismiss the charge. This Court held the district judge in Forsythe had the authority under section 95-1703 to dismiss the indictment where he was thoroughly familiar with the facts underlying the alleged offense. The motion to dismiss by the defendant in Forsythe was in effect a motion requesting the court to exercise its discretion to dismiss a charge "on its own motion" and "in furtherance of justice". See: People v. Benson, 64 Cal.App.3d...