State v. Preite, No. 13314

Docket NºNo. 13314
Citation34 St.Rep. 364, 564 P.2d 598, 172 Mont. 318
Case DateMay 11, 1977
CourtUnited States State Supreme Court of Montana

Page 598

564 P.2d 598
172 Mont. 318
The STATE of Montana, Plaintiff and Respondent,
v.
Frank PREITE, Defendant and Appellant.
No. 13314.
Supreme Court of Montana.
Submitted Feb. 9, 1977.
Decided May 11, 1977.

[172 Mont. 319] Smith, Emmons, Baillie & Walsh, Great Falls, Robert J. Emmons argued, Great Falls, for appellant.

Mike T. Greely, appeared, Atty. Gen., Helena, Robert Keller augued, Kalispell, for respondent.

Page 599

HASWELL, Justice.

Defendant Frank Preite was convicted of the crimes of grand larceny and grand larceny by bailee in a Workmen's Compensation prosecution in the district court of Hill County. From the judgment of conviction entered on the jury verdict, defendant appeals.

The tortuous path of this prosecution is necessary to an understanding of this appeal.

On July 31, 1974 defendant was originally charged in the district court of Deer Lodge County with four crimes arising out of workmen's compensation settlements handled by John L. McKeon. The information specifically charged these crimes:

(1) Aiding and abetting McKeon in the crime of grand larceny involving the settlement proceeds of the Howard E. Smith claim;

(2) Aiding and abetting John L. McKeon in the crime of grand larceny by bailee in connection with the settlement proceeds of the William Madden claim;

[172 Mont. 320] (3) Aiding and abetting John L. McKeon in the crime of grand larceny by trick involving the settlement proceeds of the Harold Phelps claim and;

(4) Forgery of a workmen's compensation settlement draft.

On September 9, 1974 defendant filed motions to dismiss the information on the ground of insufficiency of the prosecutor's affidavit to show probable cause for filing the information.

On October 4, 1974 the Deer Lodge County information was dismissed on motion by the State. On the same day a second information was filed in the district court of Hill County charging defendant with 20 crimes. These crimes included the four crimes originally charged in the Deer Lodge County information. Between October 4, 1974 and February 24, 1975 defense counsel filed over 100 motions in connection with the Hill County charges which were extensively briefed and argued by both parties. The Hill County district court granted 22 of the defendant's motions, denied 75, and 4 were withdrawn. The net result was dismissal of five counts in the Hill County information.

On February 28, 1975 a third information was filed. This information charged 15 crimes. Defendant responded with a battery of 82 motions and a supporting brief. The State did not file an opposing brief, but instead filed a fourth information charging defendant with 8 crimes, including the 4 originally charged in the Deer Lodge County information with material changes in one of the charges.

Defendant again filed a series of motions which included a motion for change of venue and a motion for severance of the counts charging the crimes. The district court of Hill County entered an order changing the venue of 5 of the 8 counts to other district courts outside Hill County. Eventually all 5 of the transferred counts were dismissed by the other district courts.

The remaining 3 counts in the district court of Hill County charged defendant with the following crimes:

[172 Mont. 321] (1) Aiding and abetting John L. McKeon in the crime of grand larceny involving the settlement proceeds of the Howard E. Smith claim;

(2) Aiding and abetting John L. McKeon in the crime of grand larceny by bailee in connection with the settlement proceeds of the William Madden claim; and

(3) Aiding and abetting John L. McKeon in the crime of grand larceny by trick involving the settlement proceeds of the Harold Phelps claim. All three crimes were originally charged in the first information filed in the district court of Deer Lodge County.

Trial was held on these three charges in the district court of Hill County commencing October 6, 1975. The jury found defendant guilty of all 3 charges. On Motion of defendant, the guilty verdict on the charge involving the William Madden claim was set aside on the ground of insufficiency of evidence to support conviction of that charge. Judgment of conviction was entered on the jury verdict covering the remaining

Page 600

two charges, viz. (1) grand larceny involving the settlement proceeds of the Howard E. Smith claim, and (2) grand larceny by trick involving the settlement proceeds of the Harold Phelps claim. Defendant appeals from the judgment of conviction of these two crimes.

Defendant's specifications of error include 9 assertions of error directed at his conviction of grand larceny involving the Smith claim; 15 asserted errors directed at his conviction of grant larceny by trick involving the Phelps claim; and 20 asserted errors going to the case as a whole. The principal specifications of error are directed at the district court's denial of a change of venue, admission in evidence...

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9 practice notes
  • Trindle v. State, No. 127
    • United States
    • Court of Appeals of Maryland
    • September 1, 1990
    ...421 N.W.2d 315, 318-320 (Minn.1988); Mississippi Publishers Corp. v. Coleman, 515 So.2d 1163, 1165, 1166 (Miss.1987); State v. Preite, 172 Mont. 318, [602 A.2d 1239] 321-325, 564 P.2d 598, 600-602 (1977); State v. Darroch, 305 N.C. 196, 201-210, 287 S.E.2d 856, 860-865, cert. denied, 457 U.......
  • Guzman v. Second Judicial Dist. Court of Nev., 81842
    • United States
    • Nevada Supreme Court of Nevada
    • September 30, 2021
    ...preparatory to the commission of an offense but which are not essentials of the crime, provided no basis for venue." State v. Preite, 172 Mont. 318, 564 P.2d 598, 601 (1977), overruled on other grounds by City of Helena v. Frankforter , 392 Mont. 277, 423 P.3d 581 (2018). The Montana court ......
  • City of Helena v. Frankforter, DA 15-0801
    • United States
    • Montana United States State Supreme Court of Montana
    • August 7, 2018
    ...v. Bretz , 185 Mont. 253, 285, 605 P.2d 974, 993 (1979) (citing Williams , 122 Mont. at 280, 202 P.2d at 245-46 ); State v. Preite , 172 Mont. 318, 323, 564 P.2d 598, 600-01 (1977) (citing Williams , 122 Mont. at 280, 202 P.2d at 245-46 ); State v. Campbell , 160 Mont. 111, 117, 500 P.2d 80......
  • Guzman v. Second Judicial Dist. Court of State, 81842
    • United States
    • Nevada Supreme Court of Nevada
    • September 30, 2021
    ...preparatory to the commission of an offense but which are not essentials of the crime, provided no basis for venue." State v. Preite, 564 P.2d 598, 601 (Mont. 1977), overruled on other grounds by City of Helena v. Frankforter, 423 P.3d 581 (Mont. 2018). The Montana court held that venue cou......
  • Request a trial to view additional results
9 cases
  • Trindle v. State, No. 127
    • United States
    • Court of Appeals of Maryland
    • September 1, 1990
    ...421 N.W.2d 315, 318-320 (Minn.1988); Mississippi Publishers Corp. v. Coleman, 515 So.2d 1163, 1165, 1166 (Miss.1987); State v. Preite, 172 Mont. 318, [602 A.2d 1239] 321-325, 564 P.2d 598, 600-602 (1977); State v. Darroch, 305 N.C. 196, 201-210, 287 S.E.2d 856, 860-865, cert. denied, 457 U.......
  • Guzman v. Second Judicial Dist. Court of Nev., 81842
    • United States
    • Nevada Supreme Court of Nevada
    • September 30, 2021
    ...preparatory to the commission of an offense but which are not essentials of the crime, provided no basis for venue." State v. Preite, 172 Mont. 318, 564 P.2d 598, 601 (1977), overruled on other grounds by City of Helena v. Frankforter , 392 Mont. 277, 423 P.3d 581 (2018). The Montana court ......
  • City of Helena v. Frankforter, DA 15-0801
    • United States
    • Montana United States State Supreme Court of Montana
    • August 7, 2018
    ...v. Bretz , 185 Mont. 253, 285, 605 P.2d 974, 993 (1979) (citing Williams , 122 Mont. at 280, 202 P.2d at 245-46 ); State v. Preite , 172 Mont. 318, 323, 564 P.2d 598, 600-01 (1977) (citing Williams , 122 Mont. at 280, 202 P.2d at 245-46 ); State v. Campbell , 160 Mont. 111, 117, 500 P.2d 80......
  • Guzman v. Second Judicial Dist. Court of State, 81842
    • United States
    • Nevada Supreme Court of Nevada
    • September 30, 2021
    ...preparatory to the commission of an offense but which are not essentials of the crime, provided no basis for venue." State v. Preite, 564 P.2d 598, 601 (Mont. 1977), overruled on other grounds by City of Helena v. Frankforter, 423 P.3d 581 (Mont. 2018). The Montana court held that venue cou......
  • Request a trial to view additional results

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