State v. Hankins
| Decision Date | 30 April 1984 |
| Docket Number | No. 83-319,83-319 |
| Citation | 680 P.2d 958,41 St.Rep. 762,209 Mont. 365 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Roy HANKINS, Defendant and Appellant. |
| Court | Montana Supreme Court |
Ann L. Smoyer, Helena, for defendant and appellant.
Mike Greely, Atty. Gen., Mike McGrath, County Atty., Helena, for plaintiff and respondent.
The defendant, Roy Hankins, was charged on June 30, 1982, in the District Court of the First Judicial District, with the felony offense of trafficking in the unlawfully obtained body parts of a protected species. On August 27, 1982, Hankins entered a plea of not guilty. On March 9, 1983, a jury found Hankins guilty of the offense charged. Hankins appeals from the jury verdict. We affirm.
At the outset, we note certain facts relevant to this appeal:
(1) In order to sell or transfer a bobcat pelt the pelt must bear a tag issued by a warden from the Fish, Wildlife and Parks Department. The tag is designed so that it cannot be removed without damaging the tag.
(2) During the trapping season involved in this case, each licensee was allowed one bobcat.
(3) The bobcat trapping season ran from December 1, 1981 to February 15, 1982 and there were ten days from the close of the season to tag a pelt.
On February 23, 1983, two days before the end of tagging, Hankins and his wife, Nancy, had game warden Jim Bird in Townsend tag a bobcat pelt with tag number 707 for Nancy Hankins. Bird later testified that the pelt "was old and dried out, and the fur was very short." That same day Roy Hankins appeared at the Fish, Wildlife and Parks warehouse in Helena with a bobcat pelt. The State later contended at trial that the pelt Hankins presented in Helena was the same pelt he had tagged earlier in Townsend. Hankins received tag number 1901 from the Helena warehouse issued to Hankins himself as licensee.
Subsequently, Hankins sold a pelt bearing tag number 1901 to Bill Summers for $130. Summers in turn sold the pelt to Pacific Hide and Fur for $10 or $15 because the buyer at Pacific Hide and Fur considered the pelt to be of poor quality.
Thereafter, Warden Jim Bird of Townsend examined the pelt with tag number 1901 and later testified at trial that it was the same pelt he had tagged at Townsend with tag number 707. Bird also learned that on about March 18, 1982 Hankins sold a high quality pelt to Pacific Hide and Fur for $200. This pelt, which Bird later testified he had never seen before, bore tag number 707. Bird also testified at trial that tag number 707 showed signs of tool marks and appeared to have been pried off.
As a result of the foregoing occurrences Hankins was charged and convicted by a jury of violating Section 87-3-111, MCA, trafficking in the unlawfully obtained body parts of a protected species, a felony. Hankins was sentenced to serve one year in the Montana State Prison all of which was suspended if Hankins spent ten week-ends in the Lewis and Clark jail, paid a fine of $1,000 and forfeited his license to hunt, fish or trap for two years.
The first issue Hankins raises on appeal is whether the District Court erred in its instructions to the jury. Appellant contends that because the information referred to "bobcats"--plural, the District Court should have instructed the jury that they had to find that more than one bobcat was illegally taken in order to convict the appellant.
Although the information did state that appellant engaged in a common scheme to traffic in the "body parts" of unlawfully taken "bobcats," the jury instruction which referred to those terms singularly does not constitute reversible error. In State ex rel. McKenzie v. District Court (1974), 165 Mont. 54, 525 P.2d 1211, this Court held that the purpose of an information is to inform the defendant of what he is charged. "It is not the function of the information to anticipate or suggest instructions to the jury ... It is a notice device, not a discovery device." State ex rel. McKenzie, supra, 165 Mont. at 63.
Appellant also asserts that the District Court's jury instructions failed to distinguish between the felony and misdemeanor offenses under Section 87-3-111(1) and (4), MCA. The misdemeanor portion of Section 87-3-111, MCA, provides:
"It is hereby made unlawful for any person to purchase, sell, offer to sell, possess ship or transport any game, fish, game bird, game animal or furbearing animal or part thereof protected by the laws of this state, whether belonging to the same or different species from that native to the State of Montana, except as specifically permitted by the laws of this State."
The felony portion of Section 87-3-111, MCA, provides:
"Any person engaging in the activities prohibited in subsection (1) in furtherance of a scheme to traffic in the body parts of unlawfully taken species is guilty of a felony and shall be punished by a fine of $10,000 or imprisonment in the state prison for a term of 1 year or both."
When read together, the jury instructions clearly draw a distinction between the felony offense charged and the lesser included misdemeanor offense. Court's instruction number 1 provided, in pertinent part: "The Defendant, Roy Hankins, is, by information accused of trafficking in unlawfully obtained body parts of a protected species, a felony ..." Court's instruction number 10 provided, in pertinent part:
Court's instruction number 14 distinguished between the felony charged and the misdemeanor offense by providing, in part:
Court's instruction number 14 on the misdemeanor offense properly omitted the "common scheme" language required for a felony conviction. Moreover, "common scheme" was accurately defined by court's instruction number 7 which provided:
" 'Common scheme' means a series of acts or omissions motivated by a purpose to accomplish a single criminal objective or by a common purpose or plan which results in the repeated commission of the same offense or affects the same person or the same persons or the property thereof."
Although appellant asserts the court's instruction on "common scheme" was an inadequate statement of the law, the instruction was taken directly from Section 45-2-101(7), MCA. On several previous occasions this Court has rejected challenges to jury instructions when those instructions restated statutory language. State v. French (1975), 166 Mont. 196, 531 P.2d 373; State v. Dunn (1970), 155 Mont. 319, 472 P.2d 288. Likewise, the court's instruction on the definition of "trafficking" was taken directly from Section 87-3-111, MCA, and did not constitute reversible error.
The District Court also did not err by refusing defendant's proposed jury instruction number 17...
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...on appeal unless an abuse of discretion, which prejudices the movant, is demonstrated. Harris, 682 P.2d at 161; State v. Hankins (1984), 209 Mont. 365, 680 P.2d 958. In accordance with State v. Van Natta (1982), 200 Mont. 312, 651 P.2d 57, the trial court shall consider the diligence shown ......
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