State v. Tritz, 12586

• Decision Date: 24 May 1974
• Docket Number: No. 12586,12586
• Citation: 522 P.2d 603,164 Mont. 344
• Parties: STATE of Montana, Plaintiff and Respondent. v. Cy TRITZ, Defendant and Appellant.
• Court: Montana Supreme Court

Page 603

522 P.2d 603

164 Mont. 344

STATE of Montana, Plaintiff and Respondent. v. Cy TRITZ, Defendant and Appellant.

No. 12586.

Supreme Court of Montana.

Submitted March 27, 1974.

Decided May 24, 1974.

Towe, Neely & Ball, Billings, Gerald J. Neely (argued), Billings, for defendnat and appellant.

Thomas J. Beers, Asst. Atty. Gen. (argued), Helena, Robert Woodahl, Atty. Gen., Helena, Harold F. Hanser, County Atty., Billings, Clifford E. Schleusner, Deputy County Atty. (argued), Billings, for plaintiff and respondent.

CASTLES, Justice.

This is an appeal by the defendant, Cy Tritz, from a judgment of the district court of Yellowstone County, the Honorable C. B. Sande, presiding. The judgment was entered upon a jury verdict finding Tritz guilty of the receipt of stolen property, namely a snowmobile. Tritz appeals.

On the evening of October 4, 1971, the Yellowstone County sheriff's office received a report from an informant that Tritz was in possession of stolen property, including two snowmobiles, and that the property was in a garage rented by Tritz. This information was passed on to other officers at a briefing the next morning. About 10:00 a. m. the same morning, Deputy Frank, acting on the information, went to the business premises of Ted Andrus Explosives and talked to one Anderson who was a partner in the business. As a part of another business operation Andrus leased garage space to individuals. The garage building fronted onto a cyclone fenced storage lot, and the building housing Ted Andrus Explosives also adjoined the lot. Deputy Frank asked Anderson if he could look at the garage. Anderson consented, got a key, and the two men inspected the garage for ten to fifteen minutes. Deputy Frank then obtained a search warrant; however the two snowmobiles were not listed on the warrant. Shortly thereafter, Tritz was arrested.

The snowmobiles were not in the garage but were parked outside on the lot mounted on a tow trailer. The exact location is not clear from the record, but we think this is unimportant for reasons pointed out later in this opinion.

On October 20, 1971, Tritz was charged with one count of receipt of stolen property. The property in question was one of the two snowmobiles. A motion to suppress evidence was made, a hearing had, and the motion was granted as to all the seized evidence except for the snowmobile, which was expressly held admissible. Then, in early February, 1972, the prosecution moved to dismiss the case and asked the district court for leave to file a new information and affidavit in support, charging Tritz with one count of grand larceny and one count of receipt of stolen property. The property involved was the same snowmobile. The motion was contested, but leave to file was granted. Thereafter trial was had, the jury being instructed that they could find Tritz guilty on one count or the other, but not both. The jury returned a verdict of innocent on the grand larceny count and guilty on the receipt of stolen property count.

Tritz raises several issues for our review.

First, he complains that the granting of leave to file a new information without a preliminary examination was error. More precisely he says that there was no probable cause to support the grand larceny count and that a preliminary hearing would have so disclosed; hence failure to deny the motion for leave to file the new information was error. He does not question the receiving stolen property count.

We last considered a challenge to the sufficiency of an application to file an information in State v. Dunn, 155 Mont. 319, 472 P.2d 288. It was there made clear that a defendant does not have a vested right to a preliminary hearing. What is required is that the prosecution show, to some judicial officer, probable cause that a felony has been committed by the defendant. Thus, if the prosecution showed probable cause that this defendant committed the theft of a snowmobile, the contention must fail.

Examining the affidavit in support of the motion for leave to file an information we find: that the sheriff of Yellowstone County had a report of a stolen snowmobile; that a deputy had observed a snowmobile matching that description in a fenced yard behind the business establishment known as Ted Andrus Explosives; that the snowmobile had all identification tags removed from it except for a serial number found on the rubber track of the machine; that the snowmobile was parked on a trailer registered to Tritz; that the manager of Ted Andrus Explosives had advised the deputies that Tritz was renting storage space from Ted Andrus Explosives and that Tritz had stored the snowmobile in the yard.

Bearing in mind that the purpose of either a preliminary hearing or an application for leave to file an information is not to establish guilt or innocence, but to establish probable cause, we think that the affidavit meets the test. We hold that the district court did not err in granting leave to file a new information.

Second, Tritz says that with respect to the grand larceny count, the information was not filed within the time limit prescribed by section 92-1302, R.C.M.1947. This section requires the county attorney to file an information within thirty days after leave to file is granted, charging the defendant:

'* * * with the offense for which he is held to answer, or any other offense disclosed by the evidence.'

The theory is that the original information and affidavit charging only one offense-receiving stolen property-is essentially the same as the second information and affidavit charging both offenses. Since the affidavits are the same in both cases, Tritz reasons that the grand larceny count should be striken because not filed within 30 days after leave to file the original information was granted.

A similar attack on an information was made in Gransberry v. State, 149 Mont. 158, 423 P.2d 853. In that case the original information charged the taking of an automobile without the consent of the owner. Later a new information was filed charging grand larceny. The defendant charged that the second information was in fact an amendment of the first, in violation of the then applicable statute, section 94-6207, R.C.M.1947, now section 95-1505, R.C.M.1947, which prohibited amendment of the charge in matters of substance after the defendant had pleaded. We decided the case on other grounds, but indicated that defendant's contention considered alone was meritorious. However, we also noted that there was a procedure available to avoid the problem. That method was to avail itself of section 94-9505, R.C.M.1947, now section 95-1703, R.C.M.1947, by having the first information dismissed and then filing a new one. Since that is in fact what the State did in this case, we hold that the contention is without merit.

Third, Tritz then maintains that leave to file the new information should not have been granted because of misjoinder of the offenses of grand larceny and receiving stolen property. He says that the prosecution should have been required to elect between the offenses.

Section 95-1504(a), R.C.M.1947, reads in part:

'An indictment, information, complaint or accusation may charge two (2) or more different offenses connected together in their commission, or different statements of the same offense or two (2) or more different offenses of the same class of crimes or offenses, under separate counts.' (Emphasis added.)

Grand larceny and receipt of stolen property are in the ...