State v. Lagerquist

• Decision Date: 17 October 1968
• Docket Number: No. 11487,11487
• Citation: 445 P.2d 910,152 Mont. 21
• Parties: The STATE of Montana, Plaintiff and Respondent, v. Glenn LAGERQUIST, Defendant and Appellant.
• Court: Montana Supreme Court

Page 910

445 P.2d 910

152 Mont. 21

The STATE of Montana, Plaintiff and Respondent, v. Glenn LAGERQUIST, Defendant and Appellant.

No. 11487.

Supreme Court of Montana.

Submitted Sept. 12, 1968.

Decided Oct. 17, 1968.

Thomas E. Towe (argued), Billings, for appellant.

John L. Adams, Jr., County Atty. (argued), Billings, Forrest H. Anderson, Atty. Gen., Stacy W. Swor, Asst. Atty. Gen., Helena, for respondent.

JOHN CONWAY HARRISON, Justice.

This appeal is from a judgment of conviction after a jury trial on seven counts of obtaining money by false pretenses. The appeal is from the conviction and sentence of three years on each count, with the sentences running concurrently.

In September 1966, a Mr. Neal Johnson of Chinook, Montana received a call from the appellant who inquired about the purchase of Johnson's hay. The original agreement involved a stack of hay in excess of 100 tons at an agreed price of $24 per ton to be weighed at the Harlem Seed Company's scales. Neal Johnson was to be paid for each load after the hay had been weighed and a weight slip had been issued by the Harlem Seed Company. All but one of the seven loads were weighted according to the scale book at the Harlem Seed Company there being no duplicate slip for the fifth load. Johnson received two 'insufficient fund' checks for his 110 tons of hay and was unable to protect himself due to the fact that by the time the checks bounced the appellant had disposed of all the hay.

The scale of the Harlem Seed Company was located several miles from the Neal Johnson ranch on the road the appellant traveled to where he ultimately sold the hay. Appellant arranged with the Seed Company to do the weighing but the testimony revealed that appellant did some of the weighing himself after closing hours of the Seed Company's office. Arrangements were made for truckers who used the scale after hours to get a key from a nearby service station and make out weight tickets. There was evidence that Mr. Ude of the Seed Company weighed three loads for appellant and four other tickets were made out by someone else-presumably by either appellant or his driver.

During the trial one of appellant's employees who accompanied him either on three or five trips testified concerning the hay's weight: 'Oh, he just told me that the hay was going to be quite a bit heavier by the time we got to Worden, than when we left Harlem * * *.'

Mr. Dan Vogel of Worden, the purchaser of the hay, testified that he purchased eight loads of hay from the appellant; that at the time of delivery he was given the load weight slips by the appellant; that on the basis of the slip weight he paid the appellant by check for each load, noting on the check the weight; that he paid $30 per ton relying on appellant's representation that the weight slips were true and accurate; that at the time of the delivery of the eighth load he, Vogel, learned from the sheriff's office that appellant had given a bad check to a farmer in the Billings area for a load of hay delivered to the Vogel ranch. Vogel further testified that about that time he became suspicious of the weights of the loads he had received; that he confronted appellant in the presence of Mrs. Vogel, a deputy sheriff and a Mr. Jensen about the false weights and appellant admitted that all of Vogel's weights were fictitious; the concerning the Jensen hay appellant had delivered to Vogel, the true weight was 9.45 tons and the weight charged Vogel was 13.73 tons; that this Jensen hay was on a Harlem weight ticket though Harlem is over 200 miles north of that area. Last, but not least, Vogel testified that after admitting the shortages appellant told Vogel he would make it all up to him but he never did.

The appellant set forth ten issues alleging error.

1. Did the lower court err in denying defendant's motion to dismiss for failure to bring the case to trial within six months?

2. Did the lower court err in overruling defendant's demurrer to the information?

3. Did the lower court err in denying the defendant's motion to strike State's reply brief?

4. Did the lower court err in denying defendant's motion to dismiss for lack of jurisdiction?

5. Did the lower court err in admitting into evidence State's exhibits one through five and that portion of exhibit six which purports to show weight tickets representing Neal Johnson's hay?

6. Is the evidence insufficient to sustain the conviction?

7. Did the lower court err by instructing the jury that the property obtained did not have to be delivered to the defendant to be guilty of the offense as charged?

8. Did the lower court err in failing to instruct on the following lesser included offenses: (1) using false weights or measures; (2) giving full weight in sales of hay; (3) obtaining money by false pretenses for less than $50 as a misdemeanor; and (4) selling less than the quantity represented of any commodity?

9. Did the lower court err in refusing defendant's offered instruction no. 3?

10. Did the lower court err in denying the defendant's motion to exclude any reference to the prior conviction?

Issue one concerns the appellant's right to a speedy trial. Section 94-9501, R.C.M.1947, provides:

'The court, unless good cause to the contrary is shown, must order the prosecution to be dismissed in the following cases: * * *

'2. If a defendant, whose trial has not been postponed upon his application, is not brought to trial within six months after the finding of the indictment, or filing of the information.'

In this case some 18 months separated the original information and the trial, however, the original information of October 4, 1966, was dismissed and the new information was filed April 7, 1967. This new information is the one appellant went to trial on, January 15, 1968, some 283 days after the filing of the information. During this period the trial court was called upon to rule on some fifteen motions, including an 88 day period attributable to the appellant. In addition, the case was set for trial in October 1967, appellant sought supervisory control on an original procedure filed in this Court causing the case to be removed from the trial calendar.

It is the appellant's position that State ex rel. Sullivan v. District Court, 150 Mont. 203, 433 P.2d 146, is controlling and that the trial court erred in failing to dismiss the action for failure to bring the appellant to trial within six months. After carefully reviewing the record we must disagree with appellant's contention that this is a case for the application of the rule set forth in State ex rel. Sullivan v. District Court, supra; rather it comes under our holding in State ex rel. Thomas v. District Court of Thirteenth Jud. Dist., Mont., 438 P.2d 554.

In that case this Court ruled, in speaking of our constitutional and statutory provisions for speedy trial, 'Although compliance with such statutory provision does not per se constitute compliance with constitutional requirements (State v. McGowan, supra), statutory compliance may properly be considered as a circumstance in determining whether the constitutional right of a speedy trial has been violated. In doing so, we note that six months has not elapsed in the case of either defendant, exclusive of the delays caused or contributed to by their own actions.' Such are the facts in this case where appellant's application to this Court in October 1967 removed the case from trial within the six months period.

Speaking further from our opinion in State ex rel. Thomas v. District Court of Thirteenth Jud.Dist., supra, we said:

'Neither Federal nor State Constitutional guarantees of a speedy trial are violated where either good cause has been shown for the delay in trial or where the defendant waives or consents to the delay, either expressly or impliedly. * * *

'Federal criteria applied to determine whether a defendant in a criminal proceeding has been denied a speedy trial within the ambit of United States Constitutional guarantees are these: (1) length of delay, (2) reason for delay, (3) waiver of right to a speedy trial by defendant, and (4) prejudice to the defendant from the delay.'

Applying these criteria to this case we find no denial of a speedy trial. The question of whether there is undue delay is for the trial court to decide and it decided this question within the principles enunciated by this Court in State v. McGowan, 113 Mont. 591, 131 P.2d 262, where we said: 'Whether a trial is a speedy trial within the Constitution is a judicial question.'

Appellant argues that it was the court's duty to set the trial during the month of December 1967, after this Court had denied his petition for supervisory control and returned the matter to the trial court. With this argument we find no merit. By bringing the special proceeding to this Court appellant disrupted the normal trial procedure. When returned to the trial court the matter must of necessity await the trial judge's reasonably prompt calendar considerations in getting it to trial, for a 'speedy trial' required by our Constitution does not mean trial immediately after the return of the case from an appellate decision disregarding the other business pending before the court.

The appellant's second issue alleges the court erred in not granting his demurrer to the information on the basis that it failed to state a public offense. The elements of the offense of obtaining money by false pretenses were established by this Court in State v. Bratton et al., 56 Mont. 563, 186 P. 327, and they are:

1. The making by the accused to the person injured one or more representations of past events or existing facts.

2. The second element of the crime is reliance.

3. The third element of the crime is that the representations are false.

4. The final element of the crime is the intention by the appellant to knowingly defraud another person.

The record is silent on the court's reasoning in overruling the demurrer. Our statute concern...