State v. Moore, 13788

• Decision Date: 19 October 1977
• Docket Number: No. 13788,13788
• Parties: The STATE of Montana, Plaintiff and Appellant, v. Marvin MOORE, Defendant and Respondent.
• Court: Montana Supreme Court

Page 580

570 P.2d 580

174 Mont. 292

The STATE of Montana, Plaintiff and Appellant, v. Marvin MOORE, Defendant and Respondent.

No. 13788.

Supreme Court of Montana.

Submitted Sept. 12, 1977.

Decided Oct. 19, 1977.

Michael T. Greely, Atty. Gen., Helena, James Tillotson, Asst. Atty. Gen. (argued), Helena, J. Fred Bourdeau, County Atty., Great Falls, Carroll Blend, Asst. County Atty. (argued), Great Falls, for plaintiff and appellant.

Howard F. Strause (argued), Great Falls, for defendant and respondent.

HASWELL, Justice.

The question in this case is whether a defendant accused of deception in causing Cascade County to execute warrants in excess of $150 for welfare assistance can be prosecuted for the felony of deceptive practices of whether prosecution is limited to the misdemeanor charge of welfare fraud. The district court dismissed the felony charge. We reverse.

The substance of the accusation underlying the felony charge is that the defendant orally stated and subsequently signed a welfare form declaring he was receiving no Veteran's Administration benefits when in fact he was; that as a result of defendant's statements Cascade County issued welfare warrants for defendant's rent in the amount of $682 and for groceries in the amount of $125; and by reason thereof defendant is guilty of the crime of deceptive practices, a felony.

The direct information filed in the district court charged defendant with the crime of deceptive practices, a felony, committed in Cascade County on July 2, 1975 in that defendant did "purposely and knowingly cause the County of Cascade, by deception to execute documents by which pecuniary obligations were incurred, namely warrants for rent and groceries. The value of the obligations incurred was in excess of $150.00, in violation of Section 94-6-307(1)(a), R.C.M. 1947 as amended."

Defendant moved to dismiss the information on the grounds that he was charged under the wrong statute. Following hearing, the district court dismissed the case. The state appeals.

The focus of this appeal is whether defendant is subject to prosecution for the felony of deceptive practices under Montana's Criminal Code or whether prosecution is limited to the misdemeanor charge of welfare fraud under our Welfare Code.

The two statutes involved provide in pertinent part:

"94-6-307. Deceptive practices. (1) A person commits the offense of deceptive practices when he purposely or knowingly:

"(a) causes another, by deception * * *, to execute a document * * * by which a pecuniary obligation is incurred * * *

" * * *ses

"(2) A person convicted of the offense of deceptive practices shall be fined not to exceed five hundred dollars ($500) or be imprisoned in the county jail for any term not to exceed six (6) months or both. If the deceptive practices are part of a common scheme or the value of any property * * * obtained * * * exceeds one hundred fifty dollars ($150) then the offender shall be imprisoned in the state prison for any term not to exceed ten (10) years."

This statute is a part of the Montana Criminal Code (Title 94); is classified as a felony where the amount of property obtained or attempted to be obtained exceeds $150; and is punishable by a maximum sentence of 10 years in prison.

"71-226. Fraudulent acts. Whoever knowingly obtains * * * by means of willfully false statements or representation * * * public assistance to which he is not entitled, (or) assistance greater than that to which he is justly entitled; * * * with the intent to defeat the purposes of this act, shall be guilty of a misdemeanor. In assessing the penalty the court shall take into consideration, among other factors, the amount of money fraudulently received."

This statute is a part of the Welfare Code (Title 71); is classified as a misdemeanor; and is punishable by a fine of from $25 to $1,000 to which may be added a county jail sentence not exceeding 60 days. Section 71-231.3, R.C.M. 1947.

The gist of the State's contention is that the existence of a specific statute in the Welfare Code encompassing the alleged crime does not preclude prosecution for the alleged crime under the general Criminal Code provided the facts support a charge under either statute.

The core of defendant's argument, on the other hand, is that where the legislature enacts a comprehensive body of law dealing with a particular subject (welfare), such law controls to the exclusion of a more general statute in the Criminal Code (deceptive practices) particularly where, as here, the classification of the offense and the penalties on conviction are inconsistent, incompatible and repugnant.

In our view, resolution of these opposing contentions turns on legislative intent. Specifically, did the legislature intend to make the welfare fraud statute (section 71- 226) the exclusive remedy for cases falling within its provisions or did the legislature intend to provide an alternative remedy under the Criminal Code (section 94-6-307(1)(a))?

It is conceded that there is no language in either legislative act specifically expressing legislative intent on this subject. We must therefore attempt to determine legislative intent by resort to rules of statutory construction.

Defendant urges application of the rule that the specific statute controls to the exclusion of the general, citing a number of cases so holding in criminal prosecutions in other jurisdictions, principally State v. Becker,39 Wash.2d 94, 234 P.2d 897 (old age assistance fraud); People v. Silk,138 Cal.App.2d Supp. 899, 291 P.2d 1013 (welfare fraud); People v. Gilbert,1 Cal.3d 475, 82 Cal.Rptr. 724, 462 P.2d 580 (ADC fraud). Cases to the contrary can be cited with equal effect: State v. Dumont, 3 Or.App. 189, 471 P.2d 847 (unlawful use of a credit card); People v. Licausi, 23 Misc.2d 75, 200 N.Y.S.2d 582 (unemployment insurance fraud); State v. Drake, 79 N.J.Super. 458, 191 A.2d 802 (unemployment compensation fraud); People v. Gulisano, 57 Misc.2d 243, 292 N.Y.S.2d 545 (labor benefits fraud). None of these cases are particularly persuasive concerning whether the rule should be applied in Montana under the circumstances of the instant case due to differences in the statutes involved, legislative history of the enactments, related statutes, and comprehensiveness of the subject matter.

As additional support for the rule that the specific statute controls to the exclusion of a more general statute, defendant cites Montana civil cases so holding, principally McAlear v. Unemployment Compensation Commission, 145 Mont. 458, 405 P.2d 219; Martel Construction v. Gleason Equipment, Inc., 166 Mont. 479, 534 P.2d 883; Fickes v. Missoula County, 155 Mont. 258, 470 P.2d 287; and Monarch Lbr. Co. v. Haggard, 139 Mont. 105, 360 P.2d 794. As there is a specific statute in the Civil Code that when a general and a particular provision of a statute are inconsistent, the latter is controlling (section 93-401-16, R.C.M. 1947) the decision in these civil cases is understandable. However, these civil cases are not controlling for reasons hereafter noted.

This Court has previously declined to apply this rule of statutory construction to criminal prosecutions where defendant's conduct violated both misdemeanor and felony statutes. State v. Lagerquist, 152 Mont. 21, 30, 31, 445 P.2d 910; State v. Evans, 153 Mont. 303, 306, 456 P.2d 842. Lagerquist and Evans impliedly, although not expressly, overruled the earlier case of State v. Holt, 121 Mont. 459, 194 P.2d 651, holding that where the penalty provisions of a later misdemeanor statute were inconsistent and irreconcilable with an earlier felony statute, the prior felony statute was repealed by implication. For clarification, we now expressly overrule this holding in Holt on the authority of Lagerquist and Evans.

Defendant points out and we recognize that Lagerquist and Evans are not identical to the instant case in that they do not involve a comprehensive body of law on a particular subject vis-a-vis a more general criminal statute. Nonetheless we find them similar and persuasive as this distinction does not compel a different result for reasons discussed later in this opinion.

In Lagerquist the criminal conduct was falsifying weight slips on hay sold to defendant. Three statutes were applicable: (1) a misdemeanor statute prohibiting misrepresentation in the quantity or weight of a commodity sold (section 90-620, R.C.M. 1947); (2) a misdemeanor statute requiring the seller to give the purchaser full weight on all sales of hay and other commodities usually sold by the ton (section 94-1904, R.C.M. 1947); and (3) a felony statute covering obtaining money or property by false pretenses (section 94-1805, R.C.M. 1947). As in any case involving felony and misdemeanor statutes, the penalty under the misdemeanor statutes was inconsistent and irreconcilable with the more severe penalty under the felony statute. In affirming...