State v. Johnson, 11157

• Decision Date: 06 March 1967
• Docket Number: No. 11157,11157
• Citation: 424 P.2d 728,149 Mont. 173
• Parties: The STATE of Montana, Plaintiff and Respondent, v. Bruce A. JOHNSON, Defendant and Appellant.
• Court: Montana Supreme Court

Page 728

424 P.2d 728

149 Mont. 173

The STATE of Montana, Plaintiff and Respondent, v. Bruce A. JOHNSON, Defendant and Appellant.

No. 11157.

Supreme Court of Montana.

March 6, 1967.

John M. McCarvel, Great Falls, for appellant.

Charles F. Moses, Billings, Oscar Hendrickson (argued), Chinook, John Cavan (argued), Billings, for respondent.

CASTLES, Justice.

This is an appeal from a judgment of conviction of five counts of grand larceny. The judgment sentenced the defendant to five years imprisonment on each count, and on the last two counts, the sentence of five years was to run concurrently with the sentence on the previous counts.

The wild west is not dead. The saga of cattle rustling, running irons, brands, dewlaps, wattles, ear marks, cowboys and even Indians giving rise to these facts might well have been written by Zane Grey, the western story author. A brief narrative of the facts testified to will be made before setting forth significant procedural and other matters specified as error.

In the spring of 1964 one Robert Long, a neighbor rancher of the defendant, Bruce Johnson, saw the defendant bring in about 100 head of cattle belonging to Wellington D. Rankin.

Long was able to identify the animals by their general appearance and by dewlaps on their brisket. Dewlaps were explained as a strip of hide cut to hang free so that it produces a distinctive mark or identifying object. On May 6, he saw cows with a worked-over or altered brand described as a written E bar Y to a reversed B bar K. He noticed more cattle showing up around the 8th or 10th of May with re-worked brands. He testified that he used field glasses, 20 50 power.

In May or June, the ditch rider who passed through defendant's property regularly and was familiar with the Rankin brand, saw worked-over brands on the defendant's ranch. He estimated that he saw about twenty-five head of worked-over branded cattle. He saw one particular whiteface cow whose right hind foot had been frozen in a previous year. The same cow was seen again by the ditch rider in the Havre yards and is one of the cattle with which the defendant is charged as a separate count.

On August 4, 1964, Tom Little, a rancher, was in an area in what is designated as the Pauly place. He saw nine cows with the same worked-over brand. He contacted Ted McCrea, a State Livestock Inspector. McCrea, on the following day, 'tracked' the cattle to the Pauly lease. An investigation disclosed that the Pauly lease was land being rented by defendant from Pauly. It consisted of both deeded land and Federal lands. Although defendant alone signed the agreement for rental with Pauly, Pauly understood that defendant's brother also was in the agreement. The Federal Agency involved had not approved the subleasing of its lands and were not aware of the cattle being on the premises. However, defendant testified that he had some kind of oral permission from the Coal Creek Grazing District, the state agency responsible for issuing grazing licenses for private lands.

In 1963 there was a dispersal sale of all of the defendant's cattle. The explanation given by the defendant for the presence of 162 cows on his property was that they were a herd developed from 10 head which the defendant had set aside in 1955. His alleged purpose was to create a herd to provide funds for his children's college education. None of these cattle appeared on tax assessment rolls, the defendant claiming that this was 'unintentional' on his part. There is no doubt that the defendant lawfully acquired the reverse B bar K brand. In 1964 he applied to the Montana Livestock Commission, Department of Marks and Brands for the 8 bar K brand, but was told that it was in conflict with the reverse B bar K owned by Arthur Bollinger of Jordan, Montana. Thereafter the defendant purchased the reverse B bar K brand from Mr. Bollinger, legitimizing the mark, if not the animals to which it was applied.

The Bureau of Land Management and Department of the Interior, operating through the Range Conservation Department, are responsible for issuing grazing permits on public lands. This agency also has the duty to check the forage on such property and investigate trespasses. Glen Stickley is the Administrator of Public Lands and is employed by the Range Conservation Department. Stickley was informed that there were cattle upon the Pauly lease. Feeling that there was no authority for these cattle to be on the Pauly lease, Stickley, accompanied by Lawrence Johnston, an inspector for the State Livestock Commission, drove to the Pauly lease on September 2, 1964. The cattle were examined and photographed. Upon further inquiry, the defendant told Stickley that the cattle branded with the reverse B bar K belonged to him.

Johnston, having years of experience as an inspector of livestock brands, concluded that the cattle on the Pauly lease had altered brands. On September 4, 1964, Johnston obtained a search warrant from Judge Lewis in Chinook directed to Sheriff John Garland. On September 5, 1964, the sheriff and others served the warrant on the defendant and took into custody 157 head from the Pauly place. Five more cows with worked-over brands were found at the defendant's home. Defendant was duly arrested and charged with five counts of grand larceny.

In his first specification of error, defendant alleges that the language of the information was not specific enough to inform him of the charge. A cursory examination of the information fails to support this allegation. We find it difficult to believe that the defendant was not adequately apprised of the charges upon which he was arrested.

The information was filed directly on leave of court as provided by section 94-4903, R.C.M.1947. Defendant contends that there is no record of a showing of probable cause before the magistrate who granted leave to file directly. In State v. Vuckovich, 61 Mont. 480, 491, 203 P. 491, 493, this court said:

'The right of the court to grant leave to file an information without previous examination by a committing magistrate is settled law in this state. It is authorized by the Constitition (section 8, art. 3), by the Constitution (section 8, art. 3), granted by the statute (sections 9105, of this court * * *'.

While leave to file an information directly, without a preliminary hearing, cannot be a perfunctory affair, the information in the hands of the prosecuting attorney in this case was overwhelming, as the subsequent trial revealed. The motion to file directly was supported by an affidavit and we can find no error or abuse of the stautory privilege to by-pass the preliminary hearing, particularly when such a hearing would clearly serve no purpose nor secure any advantage to the defendant.

The second general specification of error involves the search and seizure of the cattle. Article III, § 7, of the Constitution of Montana provides:

'The people shall be secure in their persons, papers, homes, and effects, from unreasonable searches and seizures, and no warrant to search any place or seize any person or thing shall issue without describing the place to be searched, or the person or thing to be seized, nor without probable cause, supported by oath or affirmation, reduced to writing'.

Defendant would have us believe that the manner in which the search and arrest was made violated his rights under the laws and Constitution of Montana and of the United States. We find this charge to be without support. Lawrence Johnston, the livestock inspector, testified that he could discern the worked-over brands before he actually entered...