text:
    STATE OF MONTANA, Plaintiff and Respondent, v. BONNY LYNN SPALDING, a/k/a BONNY L. PEAK, Defendant and Appellant.
    No. 90-521.
    Submitted on briefs Jan. 25, 1991.
    Decided Feb. 21, 1991.
    247 Mont. 317.
    806 P.2d 1029.
    Diana P. Leibinger, Missoula, for defendant and appellant.
    Marc Racicot, Atty. Gen., Helena, Barbara Harris, Deputy Missoula County Atty., Missoula, for plaintiff and respondent.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Bonny Lynn Spalding appeals her convictions of accountability for robbery and criminal endangerment following a jury trial in the Fourth Judicial District, Missoula County. We affirm.

Ms. Spalding raises the following issue:

Did the District Court err when it refused to instruct the jury that the defense of compulsion may be found when the defendant acts to protect a third person from harm?

In 1990, Bonny Lynn Spalding lived in Seattle, Washington, with her two-and-a-half-year-old son, Vincent. In February, 1990, Bonny met Dan Orozco. The two began dating and established a relationship. Although Bonny was aware that Dan had a history of violence and had recently been released from prison, Dan never exhibited any violence toward Bonny or Vincent.

A few weeks later, Bonny and Dan decided to leave Seattle together; the couple, along with Vincent, left Seattle by car in March, 1990, and stopped at random locations. Bonny and Dan rode in the front seat of the car while Vincent was strapped in a child car seat in the back seat. Bonny and Dan had little money, and Bonny would often panhandle, go to food banks, or get money from churches to finance their continuing trip.

On the evening of April 5,1990, the threesome arrived in Missoula, Montana, where they stopped at a Kentucky Fried Chicken restaurant, and parked in its parking lot. Bonny and Dan testified that they stopped at the restaurant so Vincent could use the bathroom. Bonny further testified that at the time the restaurant was getting ready to close, Vincent and she entered the restaurant, Vincent waved and said “hi” to the employees, they used the bathroom, and then left. However, Rhonda Kolar, an employee of the restaurant, testified that a woman and small child never entered the restaurant to use the bathroom during that time period that evening. Instead, Rhonda testified that toward the end of her shift that evening, a car, driven by a man with a woman passenger and a cluttered back seat, came to the drive-up window, ordered food, and left.

Outside of the restaurant was Donna Kolar, who was parked in the restaurant’s parking lot waiting for her daughter, Rhonda, to get off of work. Donna testified that she observed a car as it pulled through the restaurant’s parking lot and then returned to the parking lot to use the drive-up window. Donna testified that this car then left, returned to the parking lot again, and backed up in a parking space.

When the car stopped, Donna testified that the driver of the car, later determined to be Dan, got out of the car. After Dan urinated behind the car, Donna testified that Dan returned to the car and retrieved a coat, gloves, and what appeared to be a gun; Dan placed the apparent gun on the roof of the car. Donna watched as Dan put on the coat and gloves and placed the apparent gun in the front of his pants. As he did this, Donna testified that it appeared that he was talking to the other adult in the car, later determined to be Bonny. Donna testified that Bonny then slid into the driver’s seat of the car. Donna then lost sight of Dan as he walked behind the restaurant.

After a short time, Donna saw Dan run back to the car with a sack or envelope in his hand. Donna testified that he got into the front seat of the car and disappeared from view. As the car pulled away, Donna memorized the car’s Washington license plate. Donna then went into the Kentucky Fried Chicken restaurant and telephoned for police assistance.

Richard Berry, an employee of Store 24 gas station and convenience store located near the Kentucky Fried Chicken restaurant, testified that a man, later determined to be Dan, entered this store at approximately 9:00 p.m. that evening. Richard testified that Dan asked him for some Camel cigarettes and then told him to “put the money in the bag.” Richard responded, ‘What?” Richard then testified that Dan opened his jacket to reveal the light-colored handle of a gun. Richard testified that he put the money, including a $50.00 bill into a sack. Dan then picked up the sack and the cigarettes and told Richard to go and remain in a back room of the store for three minutes or else he would “be history.” Richard complied, but after waiting three minutes in the back room, he telephoned for police assistance from the store.

Meanwhile, the fleeing car, driven by Bonny, stopped for gasoline at a gas station; Bonny entered the gas station to pay before she pumped gas into the car. Bonny testified that, although she was aware that Dan had either robbed or attempted to rob somebody, she complied with Dan’s order to drive the car from the restaurant’s parking lot because she did not have enough time at the parking lot to get Vincent out of the back seat and flee from the car. When Bonny went into the gas station to pay for the gas, she testified that she did not attempt to telephone police officers in the gas station because she feared for Vincent’s safety, who was then alone in the car with Dan. Dan testified that although he never physically threatened or directly issued a verbal threat to either Bonny or Vincent dining their flight, from his actions, Bonny could assume a threat.

When Bonny returned from the gas station, she pumped gas into the car and noticed a police car in the vicinity while she was putting on the gas cap. She then reentered the car and drove to Interstate 90. Police cars, including the one at the gas station, began to pursue the car as it approached and gained access to the interstate. According to a pursuing police officer, while on the interstate, Bonny drove the car close to the shoulder line and maintained a speed of fifty-five to sixty miles an hour as she proceeded east on the interstate as police cars pursued the car with their emergency lights on. The car eventually stopped when a pursuing police car deliberately hit the car on the passenger’s side after police officers perceived that the car was going to attempt to outrun the police cars when it accelerated. Bonny and Dan testified that at one point, Bonny had attempted to stop the car on the interstate, but she aborted her attempt after Dan insisted that she continue to evade the police.

The following day, police officers entered the car and found $120.00 in cash under the seat and on the floorboards of the passenger side of the car. The police officers also found a toy pistol with a light-colored grip, a pair of black gloves, and three packs of Camel cigarettes in the car. A $50.00 bill was also found during an inventory search following Dan’s arrest.

Dan pled guilty to robbery and is currently imprisoned for this offense. On April 20, 1990, Bonny was charged by information with accountability for robbery and criminal endangerment. Following a jury trial, on June 5, 1990, Bonny was found guilty of both charges. On July 11,1990, the District Court sentenced Bonny to fifteen years imprisonment for accountability for robbery, and ten years imprisonment for criminal endangerment, these sentences to run consecutively. Bonny was also designated a dangerous offender for parole purposes. From these convictions, Bonny appeals.

Did the District Court err when it refused to instruct the jury that the defense of compulsion may be found when the defendant acts to protect a third person from harm?

Section 45-2-212, MCA, provides:

“Compulsion. A person is not guilty of an offense, other than an offense punishable with death, by reason of conduct which he [or she] performs under the compulsion of threat or menace of the imminent infliction of death or serious bodily harm if he [or she] reasonably believes that death or serious bodily harm will be inflicted upon him [or her] if he [or she] does not perform such conduct.”

Here, the District Court used the following language to instruct the jury on the compulsion defense:

“It is a defense to the charge made against the defendant that she acted under the compulsion of threat or menace of the imminent infliction of death or serious bodily harm, if she reasonably believed death or serious bodily harm would be inflicted upon her if she did not perform the conduct with which she is charged.
“The defense of compulsion is an affirmative defense and the defendant has the burden of proving each element of the defense by a preponderance of the evidence.”

The District Court refused to instruct the jury on the compulsion defense using the following language:

“It is a defense to the charge made against the [defendant that she acted under the compulsion of threat or menace of the imminent infliction of death or serious bodily harm, if she reasonably believed death or serious bodily harm would be inflicted upon her or her child if she did not perform the conduct with which she is charged.
“The defense of compulsion is an affirmative defense and the [d]efendant has the burden of proving each element of the defense by a preponderance of the evidence. The State has the burden of proving beyond a reasonable doubt there was no compulsion.” (Emphasis added.)

Bonny argues that the District Court erred when it refused to include the language “or her child” in the jury instruction regarding the defense of compulsion. Bonny argues that she was compelled to drive the get-away car after Dan committed the robbery because she believed Dan would inflict imminent serious bodily harm upon her son, Vincent, if she did not comply. Bonny’s argument lacks merit.

The language of the applicable statute, in this instance, § 45-2-212, MCA, is a proper guide for instructing the jury. See State v. Coleman (1978), 177 Mont. 1, 31, 579 P.2d 732, 750; State v. Bingman (1987), 229 Mont. 101, 112, 745 P.2d 342, 348-49. Here, § 45-2-212, MCA, does not provide that the compulsion defense includes imminent threats of harm to a third person. A court’s function is not to add to a statute; rather, a court is “to ascertain and declare what is in terms or in substance contained [in the statute], and not to insert what has been omitted. ...” Section 1-2-101, MCA. Therefore, the District Court properly instructed the jury on the compulsion defense by following, and not adding to, the statutory language of § 45-2-212, MCA.

Affirmed.

JUSTICES HARRISON, TRIEWEILER, HUNT and WEBER concur.


source: Caselaw Access Project

author: JUSTICE HARRISON

license: Public Domain

text:
    IN RE THE MARRIAGE OF CAROLYN L. (CRITTENDON) HOOPER, Petitioner and Respondent, and GARY D. CRITTENDON, Respondent and Appellant.
    No. 90-567.
    Submitted on briefs Jan. 24, 1991.
    Decided Feb. 26, 1991.
    247 Mont. 322.
    806 P.2d 541.

      C. Kathleen McBride, Johnson, Skakles & Kebe, Butte, for respondent and appellant.
    Brad Belke, Butte, for petitioner and respondent.
   JUSTICE HARRISON

delivered the Opinion of the Court.

Gary Crittendon appeals a September 24, 1990, decision of the District Court of the Second Judicial District, Silver Bow County, awarding Carolyn Crittendon Hooper $23,250 in child support arrearages. We affirm in part and remand in part.

Crittendon presents two issues:

1. Did the District Court err in failing to exercise its equitable powers to estop the collection of past due child support?

2. Did the District Court err in calculating past due child support payments by failing to limit the judgment to a period of ten years?

After nearly seven years of marriage, Gary Crittendon and Carolyn Crittendon Hooper were divorced on February 7,1973. Custody of the two minor children, ages six and one, was awarded to Hooper, and Crittendon was required to pay $150 per month in child support. The children are now 24 and 19 years of age.

Since the date of the dissolution, Crittendon had paid a total of approximately $1,800 in child support. District Court records show that Hooper made attempts in 1973 and 1975 to collect past due child support payments. In addition, Hooper testified that she contacted the Department of Social and Rehabilitation Services in August 1977 and the Child Support Enforcement Division in 1987 concerning collection of back child support. Hooper stated that because of lack of funds she was unable to further pursue collection of child support arrearages.

Crittendon testified that in a contempt proceeding in 1973, the District Court reduced the monthly support payments to $80 per month. A record of the court’s order reducing payments could not be found.

After the divorce, Crittendon lost contact with the children. In the late 1970’s the children’s surname was changed to “Hooper.” Crittendon claimed that he abided by Hooper’s wishes in staying away from the children, impliedly in exchange for non-payment of child support.

I.

Did the District Court err in failing to exercise its equitable powers to estop the collection of past due child support?

Crittendon contends that an equitable exception to the rule concerning modification of child support payments applies in his case.

Ordinarily, the amount of child support payments may only be modified prospectively. Section 40-4-208(1), MCA. However, when the parties mutually agree to modify child support payments and the agreement is observed over a period of years, in an action for support arrearages the trial court may, in exceptional circumstances, refuse to award the original amount mandated in the dissolution decree or child support order. In re Marriage of Guckeen (1989), 240 Mont. 136, 782 P.2d 1284; State ex rel. Blakeslee v. Horton (1986), 222 Mont. 351, 722 P.2d 1148. The theory underlying this exception is that the party bringing the action is equitably estopped from denying the mutual agreement upon which the other party relied. See In re Marriage of Jensen (1986), 223 Mont. 434, 439, 727 P.2d 512, 515.

The requirements for applying this equitable exception to the rule that child support payments may not be modified retroactively are (1) substantial and continuing change in circumstances rendering enforcement of the original decree of child support inequitable; (2) mutual agreement between the parties made in good faith; and (3) conduct over a period of years consistent with the agreement. Jensen, 223 Mont. at 438-40, 727 P.2d at 515-16. These elements must be shown by clear and convincing evidence and only apply to payments due subsequent to the mutual agreement. Jensen, 223 Mont. at 439, 727 P.2d at 515-16. Furthermore, child support modification by the parents must not impair the rights of any assignee of support payments. Jensen, 223 Mont. at 440, 727 P.2d at 516.

The record does not support Crittendon’s contention that the parties impliedly agreed to modification of the support provisions of the dissolution decree. Crittendon testified as follows:

“CRITTENDON’S COUNSEL: So, do I understand that since approximately sometime in 1974 that you and your wife or ex-wife have had some sort of an understanding that you wouldn’t try to visit the children and that she would not seek child support?
“CRITTENDON: I don’t know her feelings on this, I know that mine were based on that implied impression, that if I stayed away everything would be okay.”

Crittendon’s testimony does not reveal a mutual agreement and was contradicted by Hooper’s testimony that Crittendon could have requested visitation at any time. We hold that the District Court did not err in refusing to apply the equitable estoppel exception to retroactive modification of child support payments.

II.

The second issue is whether the District Court erred in failing to apply the ten-year statute of limitations applicable to judgments.

Crittendon maintains that either the six-year statute of limitations applicable to execution of judgments or the ten-year limitations period for actions on a judgment or decree should limit the amount of his past due support obligation. See §§ 25-13-101 and 27-2-201(1), MCA. Hooper responds that any limitations period should not commence until the youngest child becomes emancipated.

This is a case of first impression in Montana, although this Court has ruled that the doctrine of laches cannot serve as a defense to collection of child support arrearages. Fitzgerald v. Fitzgerald (1980), 190 Mont. 66, 618 P.2d 867. The rationale in Fitzgerald was that the parent owed a duty to the child, as well as to the state, to support the child and that the parent’s support obligation could be enforced at any time during the child’s minority. Fitzgerald, 190 Mont. at 69-71, 618 P.2d at 868-869.

In some jurisdictions the limitations period does not begin to run until the arrearages have been reduced to a lump sum payment or until the youngest child is emancipated. See Harvey v. McGuire (Ky. App. 1982), 635 S.W.2d 8 (fifteen-year limitations period not triggered until delinquency reduced to final judgment or until emancipation of child); Wilson v. Wilson (Miss. 1985), 464 So.2d 496; Wall v. Wall (1987), 140 Wis.2d 341, 410 N.W.2d 593.

In Wilson the court held that Mississippi’s seven-year statute of limitations does not start to accrue until the youngest child reaches majority because the cause of action belongs to the child, not the parent. The court cited parents’ legal and moral obligation to support their children. Wilson, 464 So.2d at 498-99.

The Wisconsin rule that the statute of limitations does not begin to rim until the child reaches majority is “based on the potential for a child support order to be revised upon a showing of changed circumstances anytime before the child attains majority.” Wall, 410 N.W.2d at 595.

In a small minority of jurisdictions, no limitations period applies to child support decrees. See, e.g., Finnern v. Bruner (Neb. 1958), 92 N.W.2d 785.

In a majority of jurisdictions the statute of limitations applicable to judgments will bar enforcement of delinquent child support obligations which fall outside the statutory limit. 2 H. Clark, Jr., The Law of Domestic Relations, 394-95 (1987); see Young v. Williams (Alaska 1978), 583 R2d 201 (ten-year statute); Corbett v. Corbett (Ariz.App. 1977), 116 Ariz. 350, 569 P.2d 292 (five-year statute); In re Marriage of Utigard (1981), 126 Cal.App.3d 133, 178 Cal. Rptr. 546 (ten-year statute); In re Marriage of Aragon (Colo.App. 1989), 773 P.2d 1110 (twenty-year statute); Mayo v. Mayo (D.C.App. 1986), 508 A.2d 114 (twelve-year statute); Lindsey v. Lindsey (Hawaii App. 1986), 716 P.2d 496 (ten-year statute); Dunn v. Dupre (1966), 91 Idaho 246, 420 P.2d 8; Riney v. Riney (Kan. 1970), 205 Kan. 671, 473 P.2d 77 (five-year statute); Evertsen v. Jenssen (La.App. 5 Cir. 1989), 552 So.2d 1277, rev. denied 556 So. 2d 1283 (1990) (five-year statute specifically applying to child support obligations); Miller v. Miller (Md.App. 1987), 519 A.2d 1298 (twelve-year statute); Rybinski v. Rybinski (1952), 333 Mich. 592, 53 N.W.2d 386 (ten-year statute); Bednarek v. Bednarek (Minn.App. 1988), 430 N.W.2d 9 (ten-year statute specifying child support payments); Wimmer v. Wimmer (Mo.App. 1985), 690 S.W.2d 475 (ten-year statute revised to specifically apply to child support payments); Britton v. Britton (1983), 100 N.M. 424, 671 P.2d 1135 (fourteen-year statute); Ames v. Ames (1982), 60 Or.App. 50, 652 P.2d 1280 (ten-year statute); Smith v. Smith (Tex.App. 1982), 643 S.W.2d 523 (ten-year statute); Seeley v. Park (Utah 1975), 532 P.2d 684 (eight-year statute); Matter of Marriage of Ulm (Wash.App. 1 Dist. 1984), 693 P.2d 181 (ten-year statute).

These courts reason that since each child support payment becomes a separate, final judgment as of its date of accrual, the statute of limitations pertaining to final judgments applies. See, e.g., Aragon, 773 P.2d at 1111-12; Lindsey, 716 P.2d at 499. The Montana Supreme Court has stated that each child support payment “becomes a judgment debt similar to any other judgment for money.” In re Marriage of Sabo (1986), 224 Mont. 252, 254, 730 P.2d 1112, 1113. Thus, the ten-year statute of limitations for actions upon court judgments or decrees, § 27-2-201(1), MCA, applies to actions by one parent against the other for child support arrearages. The District Court, under the facts of this case, should have limited awarded arrearages to payments due within the ten-year period prior to initiation of the suit.

The award of child support arrearages is remanded to the District Court for entry of judgment consistent with this opinion. The judgment of the District Court refusing to estop collection of past due support is affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES TRIEWEILER, McDONOUGH and WEBER concur.


author: CHIEF JUSTICE TURNAGE

text:
    In the Matter of the ESTATE OF HOWARD L. SANDER, Deceased.
    No. 90-424.
    Submitted on briefs Jan. 24, 1991.
    Decided Feb. 26, 1991.
    247 Mont. 328.
    806 P.2d 545.

      Richard R. Buley, Tipp, Frizzell & Buley, Missoula, for appellant.
    Charles H. Recht, Recht & Greef, P.C., Hamilton, Thomas W. Trigg, Missoula, for respondent.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

This is a dispute over property which was included in the estate of Howard L. Sander. The District Court of the Fourth Judicial District, Missoula County, ruled that four contested items of property were not part of the estate and were the sole property of the surviving joint tenant, Mary Sander. The estate of Jean Sander appeals. We vacate the judgment in part and affirm in part.

The issues are:

1. Did the District Court err in holding that the contested property was held by the deceased in joint tenancy with his ex-wife rather than in tenancy in common?

2. Did the court improperly admit into evidence certain hearsay testimony concerning the decedent’s statements of intent regarding ownership of the contested property?

Howard and Mary Sander were married from 1946 through 1977. Their three surviving children are now adults. During their marriage, Howard and Mary owned, as joint tenants, ranch land and mineral rights in North Dakota. When the family moved to Montana in 1971, Howard and Mary disposed of the North Dakota real estate but retained mineral rights therein. They invested the proceeds of the sale of the North Dakota property in land which they purchased as joint tenants in Montana.

In 1977, the marriage of Howard and Mary was dissolved. The dissolution decree provided in part:

“the real and personal property accumulated by the parties during their marriage [shall] be equitably distributed and if the parties are not able to come to an amicable agreement as to the division of their property, the Court wall hold the necessary hearings to make such division in an equitable manner.”

Howard and Mary never sought further assistance of the court in dividing their marital property.

Both during and after their marriage, Howard and Mary contracted to sell portions of their Montana property. Three of the properties in dispute here, which shall be referred to as the Van Wagoner property, the DiFrancesco property, and the Buffalo Bill Ranch, were sold on contracts. Howard and Mary also leased their North Dakota mineral rights. They usually split the payments received on the contracts and leases.

Howard died in July 1987. At that time, he was married to Jean Sander, who became the personal representative of his estate. When she completed the inventory and appraisement for the estate, Jean included in the list of property the North Dakota mineral rights, the Van Wagoner property, the DiFrancesco property, and the Buffalo Bill Ranch. Mary filed an objection that these items should not be included in the estate. After a hearing, the court ruled that Mary held sole title to the disputed property as the sole surviving joint tenant.

I.

Did the District Court err in holding that the contested property was held by the deceased in joint tenancy with his ex-wife rather than in tenancy in common?

In Montana, a joint interest in property is created when the transfer of the property expressly declares the interest to be a joint tenancy. Section 70-1-307, MCA. If not specifically declared in its creation to be a joint tenancy, an interest in favor of several people is an interest in common. Section 70-1-314, MCA. It is not disputed that the transfers of the four properties to Howard and Mary declared their interests to be joint tenancies.

The argument pressed by Jean’s estate is that the contracts for the three properties sold under contract for deed were held by Howard and Mary as tenants in common because Howard and Mary treated the proceeds of these contracts as owed one-half separately to each of them. As to the mineral rights, Jean’s estate points out that Howard and Mary, acting individually, entered separate leases of those mineral rights.

The North Dakota mineral interest is an interest in real property. The Montana District Court did not have jurisdiction over an interest in real property located in North Dakota. We therefore vacate the portion of the District Court’s judgment relating to the North Dakota mineral interests.

Howard and Mary sold the DiFrancesco property on a contract for deed which referred to them as “husband and wife, as Joint Tenants with the Right of Survivorship.” That contract was later modified by an assignment of the original buyer’s interest to DiFrancesco. The contract modification agreement did not state that Howard and Mary held the property as joint tenants, but it did state that “[w]ith the exception of this modification of the payment schedule, the remainder of the [original agreement] shall remain in full force and effect.”

The Van Wagoner property was sold under a lease-option agreement. That document merely listed Howard and Mary by name as “sellers.” Similarly, Howard and Mary sold the Buffalo Bill Ranch on a land purchase agreement which referred to them by name and did not identify them as joint tenants.

Jean’s estate argues that Howard’s and Mary’s interests changed, under the doctrine of equitable conversion, when they sold their property and acquired an interest in personal property (the proceeds of the sales) instead of an interest in real property. But “mere change of form through equitable conversion does not automatically change the nature of the interest.” In Re Estate of Rickner (1974), 164 Mont. 51, 56, 518 P.2d 1160, 1162. There was no provision in any of the contracts for deed showing an intent of the joint tenants, Howard and Mary, to sever their joint tenancies. Though Howard and Mary directed the escrow agents to pay them separately, they could, and did, change those payment instructions from time to time. We conclude that the payment directions given to the escrow agents did not change the nature of Howard’s and Mary’s interests in the property.

Jean’s estate argues that when Howard and Mary split the proceeds of the sales of their property under the contracts for deed, the ■unity of interest, or the right of each to enjoy the whole, was destroyed, violating the “four unities” of their title as joint tenants. The rigid requirements of the common law doctrine of the four unities are not part of Montana’s statutory law on property. We hold that the splitting of the proceeds of the sales did not terminate the joint tenancies due to violation of the four unities.

Neither did the dissolution of the parties’ marriage destroy their joint tenancies in these properties. Ajoint tenancy is not extinguished as a result of the dissolution of the marriage of the joint tenants. Clark v. Clark (1963), 143 Mont. 183, 387 P.2d 907.

We hold that the District Court was correct in ruling that the Van Wagoner property, the DiFrancesco property, and the Buffalo Bill Ranch remained the joint property of Howard and Mary Sander until Howard’s death. We further hold that because Mary now holds title as the surviving joint tenant, those properties are not part of Howard’s estate.

II.

Did the court improperly admit into evidence certain hearsay testimony concerning the decedent’s statements of intent regarding ownership of the contested property?

The District Court allowed into evidence testimony about statements Howard Sander made indicating that he wanted his property to remain in joint tenancy with Mary Sander so that when he passed away the properly would go to her and eventually to their children. The court ruled that these statements 1) were made by a predecessor in title to Jean Sander and were adverse or against the interests of Jean Sander, 2) were against Howard Sander’s own interest as a tenant in common, 3) were statements of Howard Sander’s then-existing state of mind or intent, and 4) were the best source of evidence. Jean’s estate argues that these statements do not qualify under any exception to the rule against hearsay evidence.

We need not discuss whether Howard’s statements were admissible under any hearsay exception, because we conclude that the statements were not relevant. “Evidence which is not relevant is not admissible.” Rule 402, M.R.Evid. The issue of the form of ownership of the contested property was determined by the deeds under which Howard and Mary acquired title to the property and the contracts by which they conveyed their interests in those properties. Howard’s statements of his intent to remain ajoint tenant with Mary were not needed to determine who held title to the properties. They did not have any tendency to make the existence of any fact of consequence more probable or less probable than it would be without the evidence. We therefore hold that it was error to allow into evidence the testimony about Howard’s statements of intent to remain in joint tenancy with Mary.

Nevertheless, because of our holding under Issue I, the judgment of the District Court is affirmed as to the Van Wagoner property, the DiFrancesco property, and the Buffalo Bill Ranch. As discussed above under Issue I, the portion of the judgment relating to the North Dakota mineral interests is vacated.

JUSTICES HARRISON, HUNT, McDONOUGH and WEBER concur.


author: JUSTICE HUNT

text:
    DARLENE SCHNEIDER, Plaintiff and Respondent, v. MINNESOTA MUTUAL LIFE INSURANCE COMPANY, a Minnesota corporation, Defendant and Appellant.
    No. 89-574.
    Submitted on briefs Aug. 9, 1990.
    Decided Feb. 28, 1991.
    247 Mont. 334.
    806 P.2d 1032.

      Thomas M. Monaghan, Lucas & Monaghan, P.C., Miles City, for defendant and appellant.
    Gary A. Ryder, Forsyth, for plaintiff and respondent.
   JUSTICE HUNT

delivered the Opinion of the Court.

Following a bench trial, the District Court of the Sixteenth Judicial District, Carter County, found defendant and appellant, Minnesota Mutual Life Insurance Company, liable on a life insurance policy sold to plaintiff and respondent, Darlene Schneider, and her husband, Jock Schneider. Minnesota Mutual appeals. We affirm.

The following issues are raised on appeal:

1. Did the District Court err in failing to enter judgment in favor of Minnesota Mutual?

2. Did the District Court err in allowing expert testimony?

On March 7, 1983, Jock Schneider renewed his existing loans at the First National Bank of Ekalaka and borrowed an additional $1,500, increasing the total amount of his debt to the Bank to $28,600. At the same time, he applied for insurance coverage in the amount of $20,000 under Minnesota Mutual’s Protection Plus program, a group life plan sold through financial institutions to protect the debt of the borrower. At the time of the application, Jock had existing life insurance coverage with Minnesota Mutual in the amount of $30,000.

Dean Parks, vice president of the Bank and a partner in the Ekalaka Insurance Agency, assisted the Schneiders in completing the application by asking Jock questions and typing his responses on the form. Parks had known Jock all of his life and had done business with the Schneiders over the years.

The insurance application contained two questions relating to health:

“1. During the last three years, have you been hospitalized or have you consulted a physician or physicians for any reason?
“2. Have you ever been treated for or advised that you had any of the following: heart, lung, nervous or kidney disorder, high blood pressure, cancer or tumor, diabetes?”

The application requested additional information if the applicant answered “yes” to either question. Jock answered “no” to both questions. His wife, Darlene, answered “yes” to the first question and provided information regarding the removal of a cyst in 1983.

On March 23, 1983, Jock died of a gunshot wound to the head. A coroner’s jury determined that the death was accidental. The District Court in the present civil case found that the death was not related to alcohol.

Minnesota Mutual promptly paid the claims on the life insurance policies procured by Jock prior to the 1983 policy at issue in this case. It did not, however, automatically pay on the 1983 Protection Plus Policy. Instead, because the effective date of coverage on the 1983 policy was within two years of the date of death, the insurance company invoked the contestability clause in the policy and conducted a routine investigation of Jock’s medical history.

During the investigation, Minnesota Mutual obtained the medical records of Dr. Stephen Shaub of Ekalaka. The records showed that Dr. Shaub had seen Jock several times between December 2, 1981 and June 21, 1982. On December 2, 1981, Dr. Shaub diagnosed Jock as suffering from alcoholism and depression. He prescribed medication for the ailments. Follow-up visits occurred on January 4, January 18, and February 16,1982 to check medication. On April 26,1982, the doctor once again assessed Jock’s condition as alcoholism and depression. Medication was refilled on June 21, 1982.

On June 20, 1983, Minnesota Mutual sent Darlene a letter rejecting her claim for benefits under the $20,000 policy because Jock had failed to disclose the visits to Dr. Shaub in the insurance application. Minnesota Mutual wrote:

“After careful consideration, we have determined that if this additional information [the visits to Dr. Shaub] had been available to our underwriters at the time they were considering your husband’s application for this insurance, they would have declined to insure him.”

Darlene instituted this action against Minnesota Mutual, alleging breach of contract for failing to pay the claim. She additionally sought punitive damages on several theories. The District Court bifurcated the action and a bench trial proceeded on the contract issue only. Following trial, the court entered findings of fact, conclusions of law and judgment in favor of Darlene. The court then certified the judgment as final pursuant to Rule 54(b), M.R.Civ.P. This appeal followed.

I.

Did the District Court err in failing to enter judgment in favor of Minnesota Mutual?

Minnesota Mutual argues that § 33-15-403, MCA, allows it to deny Darlene’s claim because Jock incorrectly completed the insurance application by failing to reveal the visits to Dr. Shaub. Section 33-15-403, MCA, provides:

“(1) All statements and descriptions in any application for an insurance policy or annuity contract or in negotiations therefor by or in behalf of the insured or annuitant shall be deemed to be representations and not warranties. *
“(2) Misrepresentations, omissions, concealment of facts, and incorrect statements shall not prevent a recovery under the policy or contract unless either:
“(a) fraudulent;
“(b) material either to the acceptance of the risk or to the hazard assumed by the insurer; or
“(c) the insurer in good faith would either not have issued the policy or contract or would not have issued a policy or contract in as large an amount or at the same premium or rate or would not have provided coverage with respect to the hazard resulting in the loss if the true facts had been made known to the insurer as required either by the application for the policy or contract or otherwise.”

Minnesota Mutual contends, and Darlene concedes, that this statute should be read in the disjunctive. Thus, a misrepresentation, omission, concealment of fact or incorrect statement will prevent recovery under an insurance policy if one of the three factors listed in subsection (2) is present.

Both parties agree that Jock’s failure to notify Minnesota Mutual of his visits to Dr. Shaub constituted a misrepresentation, omission, concealment of facts or incorrect statement as specified in the statute. Darlene maintains, however, that Jock’s false answer on the insurance application does not prevent recovery because it was neither fraudulent nor material nor would Minnesota Mutual in good faith have denied the policy had Jock revealed the consultations with the doctor. Minnesota Mutual, on the other hand, argues first that its denial of the claim was justified under § 33-15-403(2)(a), MCA, because Jock’s concealment of the facts constituted fraud.

The District Court found that Minnesota Mutual did not carry its burden of proving that Jock fraudulently completed the application. We hold that this finding is not clearly erroneous.

Minnesota Mutual next argues that the information Jock omitted on the application was material.

The requirement that a misrepresentation on an insurance application be “material either to the acceptance of the risk or to the hazard assumed by the insurer” in § 33-15-403(2)(b), MCA, overlaps a great deal with the condition in § 33-15-403(2)(c), MCA, that allows an insurer to deny coverage for a misrepresentation if the insurer in good faith would not have 1) issued the policy; 2) issued the policy in as large an amount; 3) issued the policy at the same premium; or 4) provided coverage with respect to the hazard resulting in the loss.

An omission or misrepresentation may be material if, had the truth been known, the reasonable and prudent insurer would not have issued the policy or would have issued it at a higher premium. Cummings v. Prudential Ins. Co. of America, 542 F. Supp. 838, 840 (S.D.Ga.1982); Prudential Ins. Co. of America v. Anaya, 78 N.M. 101, 428 P.2d 640, 644 (1967). This definition of materiality incorporates the idea of subsection (2)(c), that is, that the policy would not, among other things, have been issued had the insured revealed the true state of affairs. The primary difference between the two subsections is that (2)(b) deals with an objective standard of materiality, reasonableness, while (2)(c) refers to a subjective standard, good faith.

Minnesota Mutual contends that it justifiably denied coverage under subsection (2)(b) because the diagnosis of alcoholism was material to the risk assumed. The materiality of an insured’s misrepresentation is determined by the extent the false answer “initially influenced the insurer to assume the risk of coverage. ... [T]he misrepresentation in the insurance application may be material if it diminishes the insurer’s opportunity to determine or estimate its risk.” Berger v. Minnesota Mut. Life Ins. Co. of St. Paul, Minn., 723 P.2d 388, 391 (Utah 1986). Thus, the materiality of a misrepresentation generally is measured at the time the insurer issues the policy rather than at the time of the insured’s death. Berger, 723 P.2d at 391.

The question of materiality is a question of fact. Berger, 723 P.2d at 392. In this case, the District Court found that Jock’s incorrect statement on the insurance application was not material. This finding is not clearly erroneous.

As the District Court pointed out, the Protection Plus group life insurance application failed to ask any specific questions about either alcoholism or alcohol use. The court surmised that the prudent insurer would have specifically requested information about all critical underwriting factors. Thus, if alcoholism was indeed material to Minnesota Mutual’s acceptance of the risk, it would have expressly asked questions about alcohol use, just as it specifically requested information about heart, lung, nervous or kidney disorders, high blood pressure, cancer and diabetes. Other courts have reached a similar conclusion. Botway v. American Int’l Assurance Co. of New York, 151 A.D.2d 288, 543 N.Y.S.2d 651, 652 (1989); Kampfe v. Minnesota Mut. Life Ins. Co., C.V. 82-21-BLG, slip op. at 11-12 (E.D. Mont. 1983).

Minnesota Mutual’s employees testified that alcohol use was material to the decision to accept the risk because the company automatically denied coverage to any applicant who had been diagnosed as an alcoholic and had been drinking within the five years preceding the application. This practice, however, was not reduced to writing in the underwriters’ manual, although other procedures regarding alcohol habits were included in the manual.

Substantial credible evidence supported the District Court’s finding that alcohol use was not material to the risk assumed by Minnesota Mutual in this case. The District Court did not err in concluding that Minnesota Mutual’s denial of coverage was not warranted under § 33-15-403(2)(b), MCA.

Minnesota Mutual also argues that it legitimately denied coverage under subsection (2)(c) because it would not in good faith have insured Jock if it had known that he had been diagnosed as an alcoholic.

Like the question of materiality, the question of good faith is a question of fact. The District Court concluded that Minnesota Mutual did not exercise good faith in reviewing the claim because it conducted only a limited investigation of the facts regarding Jock’s alcohol use and that this investigation was conducted for the sole purpose of denying the claim. It also found that Minnesota Mutual failed to follow its own underwriting criteria for applicants who use alcohol. These findings are not clearly erroneous.

Minnesota Mutual’s underwriting manual provided:

“A history of current acute alcoholism, delirium tremens and/or alcoholic psychoses is usually RNA [risk not acceptable].” (Emphasis added.)

Despite this provision in the manual, a Minnesota Mutual underwriter testified that the company automatically rejected the application of anyone who had been diagnosed as an alcoholic.

In addition, the underwriting manual required underwriters to “[l]ook for the effects on business reputation and acumen, financial standing, home environment, social behavior and alcohol dependence” when investigating an applicant’s drinking habits to determine insurability. Minnesota Mutual neglected to conduct such an inquiry. Instead, it relied solely on Dr. Shaub’s medical records to deny coverage. Dr. Shaub, however, in his deposition introduced at trial admitted that he was not an expert on alcoholism and that Jock did not exhibit any of the physical symptoms of the disease. A chemical dependency counselor testified that there was not enough information in the medical records to determine whether Jock was an alcoholic. From this evidence, the District Court could have properly concluded that had Minnesota Mutual followed its own manual it would have discovered the extent of Jock’s problem and may have issued the policy in spite of his alcohol use.

The District Court did not abuse its discretion in concluding that Minnesota Mutual could not deny coverage under the good faith provision of § 33.-15-403(2)(c), MCA. Substantial credible evidence supported the finding that Minnesota Mutual conducted only a limited investigation before rejecting Darlene’s claim, an investigation that did not comply with the insurer’s own written procedures.

II.

Did the District Court err in allowing expert testimony?

At trial, Darlene offered the expert testimony of Russell Mann, a chartered life underwriter with 23 years experience in the life insurance industry and past president of the Montana State Association of Life Underwriters. Minnesota Mutual objected several times to the testimony, arguing that Maim was not qualified to comment on home-office underwriting practices in general or the practices of Minnesota Mutual in particular. The District Court overruled the objections.

The trial court retains broad discretion to determine whether a witness qualifies as an expert in a particular field. The degree of those qualifications “affects the weight rather than the admissibility of [the expert’s] testimony.” Little v. Grizzly Mfg., 195 Mont. 419, 427, 636 P.2d 839, 843.(1981).

In this case, the District Court did not abuse its discretion in allowing Mann’s testimony. Mann’s qualifications and testimony demonstrated that he had worked with many types of products sold by the life insurance industry and that he was familiar with the factors considered by an underwriter when determining the insurability of an applicant for life insurance. Under these circumstances, the fact that he had never been a home-office underwriter went to the weight rather than to the admissibility of the evidence.

An expert need not have been employed by the defendant insurance company before he can comment on the practices of that company. As long as the testimony indicates that the expert has knowledge of the standards and practices of the insurance industry in general, his testimony is admissible to explain the custom of the industry. John Hancock Mut. Life Ins. Co. v. Conway, 240 S.W.2d 644, 646 (Ky. 1951).

III.

Darlene requests an award of attorney fees incurred on this appeal under either Rule 32, M.R.App.R, or Rule 33, M.R.App.R We decline to grant such an award.

Rule 32, M.R.App.R, allows damages for appeals taken without merit. Damages are not warranted, however, whenever a reasonable ground for appeal exists. Tope v. Taylor, 235 Mont. 124,132, 768 P.2d 845, 850 (1988). In this case, Minnesota Mutual had reasonable grounds for appeal. The questions presented on the appeal were not clear cut but delved into an area in which there is very little Montana decisional law.

Rule 33, M.R.App.P., provides for costs on appeal to the prevailing party. The costs allowed under this rule, however, do not include an award of attorney fees unless the fees are based on a contract, Poulsen’s, Inc. v. Wood, 232 Mont. 411, 417, 756 P.2d 1162, 1166 (1988), or a specific statute. In this case, no contract or statute granting attorney fees exists.

The judgment of the District Court is affirmed and Darlene’s request for attorney fees on appeal is denied.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, McDONOUGH, WEBER, BARZ and SHEEHY concur.


author: JUSTICE BARZ

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. SCOTT SOR-LOKKEN, Defendant and Appellant.
    No. 89-410.
    Submitted on briefs Nov. 8, 1990.
    Decided Feb. 6, 1991.
    247 Mont. 343.
    805 P.2d 1367.

      Roger M. Kehew, Kalispell, Mont., for defendant and appellant.
    Marc Racicot, Atty. Gen., John Paulson, Asst. Atty. Gen., Helena, Robert Slomski, Sanders County Atty., Thompson Falls, for plaintiff and respondent.
   JUSTICE BARZ

delivered the Opinion of the Court.

In the District Court of the Twentieth Judicial District, Sanders County, defendant Scott Sor-Lokken was convicted of felony sexual assault and incest. Defendant was sentenced to twenty years with five years suspended on the sexual assault conviction and to ten years on the incest conviction with the sentences to be served concurrently. Defendant was designated a dangerous offender for purposes of parole ehgibility. Defendant appeals. We affirm.

Defendant raises the following issues:

1. Did the District Court err in denying defendant’s motion to dismiss for lack of justice court jurisdiction to issue an arrest warrant on a complaint charging a felony?

2. Was there a proper determination of probable cause?

3. Did the District Court err in denying defendant’s motion to dismiss for failure to arraign defendant on the amended information?

4. Did the District Court err in denying defendant’s motion to dismiss based upon prosecutorial interference with defense counsel’s efforts to interview the victim?

5. Was defendant wrongfully denied a writ of habeas corpus?

6. Do defendant’s convictions of sexual assault and incest violate double jeopardy?

7. Was defendant deprived of a fair trial by reason of juror misconduct?

8. Was defendant denied his right to reasonable bail on appeal?

9. Did the District Court improperly rely upon constitutionally infirm prior convictions in sentencing defendant?

On March 22,1988, the justice cotut in Sanders County issued an arrest warrant for defendant based upon a sworn complaint filed by the Sanders County Attorney. The complaint charged defendant with two felony offenses: sexual assault, in violation of § 45-5-502, MCA, and incest, in violation of § 45-5-507, MCA. The victim was alleged to be defendant’s 15-year-old stepdaughter, K. H. Sanders County deputies arrested defendant the next day.

On March 28, 1988, while still in custody pursuant to the justice court warrant, defendant filed an application for writ of habeas corpus in the Twentieth Judicial District Court. Two days later, on March 30, 1988, the justice court released defendant on a $5,000 property bond.

The State filed a motion in the District Court on March 31, 1988, requesting leave to file an information. The District Court granted the request on April 12, 1988, and the State filed its information the same day, charging defendant with sexual assault and incest. Defendant was arraigned on April 26,1988, and entered a plea of not guilty to both counts.

On April 19, 1988, defendant moved to exclude the testimony of K. H. because of alleged prosecutorial misconduct concerning K. H. and defense counsel’s attempts to interview K. H. without restriction. The District Court heard oral argument on the motion on May 24, 1988, and denied the motion on May 27, 1988.

An omnibus hearing was conducted on December 13, 1988. The State notified the defense that it might call Dr. Cindy Miller, K. H.’s therapist, as an expert witness. Defendant indicated that he would file motions to depose K. H. and to obtain a more particular statement of the alleged offenses.

In response to defendant’s motions for a bill of particulars and to dismiss the information, the State filed a motion for leave to amend the information on January 20, 1989. Defendant opposed the proposed amended information in part on the grounds that it added the names of several new witnesses. The court denied the motion to dismiss and granted leave to file the amended information on February 27, 1989.

The trial began on May 30, 1989. K. H. testified that defendant had sexual contact with her on several occasions during the preceding five years, excluding the one and one-half years she lived with her natural father in Washington. She testified that defendant would touch her breasts and the area between her legs and have her touch his penis. She further testified that defendant told her that these actions showed that they loved each other and that she should not tell anyone because others would not understand or believe her and she would get in trouble.

The jury found defendant guilty of both offenses, felony sexual assault and incest, on June 2, 1989. On the same day, the District Court sentenced defendant to twenty years on the felony sexual assault with five years suspended, and ten years on the incest with the sentences to be served concurrently. Defendant was designated a dangerous offender and bail was set on appeal at $300,000. Defendant appeals.

I.

Did the District Court err in denying defendant’s motion to dismiss for lack of justice court jurisdiction to issue an arrest warrant on a complaint charging a felony?

Defendant contends that a justice court cannot commence a felony by complaint. He contends that the procedure violates Art. VII, Section 5, of the Montana Constitution which states:

“(2) Justice courts shall have such original jurisdiction as may be provided by law. They shall not have trial jurisdiction in any criminal case designated a felony except as examining courts.”

Defendant raised this identical argument in appealing his convictions of two counts of felony assault in State v. Sor-Lokken (Mont. 1990), [246 Mont. 70, 803 P.2d 638,] 47 St.Rep. 2264. In that case, citing State v. Snider (1975), 168 Mont. 220, 541 P.2d 1204, we held that initiating a felony prosecution by complaint in the justice court is an established practice in this State and not prohibited by statute. Sor-Lokken, 47 St. Rep. at 2265. We reaffirm that holding and conclude the District Court did not err in denying defendant’s motion to dismiss for lack of justice court jurisdiction to issue an arrest warrant on a complaint charging a felony.

II.

Was there a proper determination of probable cause?

Defendant contends his arrest was unlawful because the complaining witness was not examined under oath as to probable cause and the probable cause for arrest was not reduced to writing. Defendant further contends he had a right to be present and have counsel present when the State made the application for leave to file an information.

Section 46-6-201, MCA, provides that an arrest warrant may be issued when a written complaint is presented to a court charging a person with the commission of an offense and the court examines the complainant under oath to determine if there is probable cause for the arrest. Art. II, Section 11 of the 1972 Montana Constitution requires probable cause supported by oath or affirmation reduced to writing. A sufficient complaint and examination of the complainant under oath by the magistrate generally fulfill this requirement. State ex rel. Wicks v. District Court (1972), 159 Mont. 434, 498 P.2d 1202. That procedure occurred in the present case. Additionally, the District Court made an independent determination of probable cause and granted the State leave to file an information. However, even if defendant’s arrest had been unlawful, an illegal arrest of a defendant neither precludes the State from proceeding on a criminal charge against him nor presents the defendant with a defense to a valid conviction. State v. Woods (1983), 203 Mont. 401, 662 P.2d 579.

Defendant did not have a right to be present when the State applied for leave to file an information. This Court has previously held that a defendant’s right to counsel was not violated because counsel was not appointed until after the information was filed. State v. Farnsworth (1989), 240 Mont. 328, 333, 783 P.2d 1365, 1368.

We hold there was a proper determination of probable cause and no rights of defendant were violated.

III.

Did the District Court err in denying defendant’s motion to dismiss for failure to arraign defendant on the amended information?

The State filed the original information on April 12, 1988. An arraignment followed on April 26, 1988. On February 27, 1989, the State was granted leave to file an amended information.

Defendant, citing § 46-15-322, MCA, asserts that in order for the State to add witnesses after arraignment it must demonstrate good cause. Defendant argues that the District Court erred in allowing the State to add the witnesses almost a year after arraignment without inquiring into good cause and that this put an undue burden and surprise on the defense. Defendant further argues the District Court erred by failing to arraign defendant on the amended information, contending the amendment to the information was one of substance and not form.

Section 46-11-403(2), MCA, provides that the district court may permit an information to be amended as to form at any time before the verdict or finding if no additional or different offense is charged and if the substantial rights of the defendant are not prejudiced. The statute does not require arraignment for an amendment as to form. This Court has stated that an amendment is one of form and not substance when the same crimes are charged, the elements of the crimes remain the same, the required proof remains the same, and the defendant is informed of the charges against him. State v. Matson (1987), 227 Mont. 36, 43, 736 P.2d 971, 975; State v. Brown (1976), 172 Mont. 41, 44, 560 P.2d 533, 535.

The record shows that the State amended the original information in response to defendant’s request for a bill of particulars. The amended information was filed three months before trial and was identical to the original information in all but two respects. The original information alleged defendant committed the offenses against K. H. in a continuous course of conduct over the preceding five years. In the amended information the State corrected the allegation to exclude the period of time K H. spent with her natural father in Washington. The State also listed additional witnesses.

The amendment to the information was one of form and not substance. The State continued to charge the same crimes, sexual assault and incest. Expanding the witness list did not change the crimes charged against defendant, the elements of the crimes, or the proof required. The information apprised defendant of the charges against him so he could prepare a defense.

In addition, expanding the witness list did not prejudice the substantial rights of defendant. The information was amended three months before trial. The District Court found this to be sufficient time for discovery concerning the additional witnesses. Moreover, the record shows the State did not amend the information for the sole purpose of adding witnesses, but rather, amended the information to accommodate defendant’s request to specify with more particularity the time during which the offenses occurred.

We hold the District Court did not abuse its discretion in permitting the State to add witnesses in the amended information and correctly denied defendant’s motion to dismiss for failure to arraign defendant on the amended information.

IV.

Did the District Court err in denying defendant’s motion to dismiss based upon prosecutorial interference with defense counsel's efforts to interview the victim?

Defendant asserts that the county attorney refused to give defendant’s counsel the address of where the witness, K. H., was staying, restricted defense counsel's access to interview K. H., and refused to allow defendant to be present when interviewing K. H., even though K. H. had never personally requested an interview free from defendant’s presence. Defendant argues the county attorney’s conduct constitutes blatant prosecutorial interference substantially impairing defendant’s preparation of a defense. Defendant further argues that the appropriate remedy is the exclusion of K. H.’s testimony, requiring reversal.

In State v. Smith (1988), 235 Mont. 99, 765 P.2d 742, this Court recognized that child victims need protection against the potential emotional and psychological injuries that a normal interview could inflict, especially a face-to-face confrontation with the accused. This Court stated that the district court may establish conditions, fashioning an interview which allows the defendant to remain outside the immediate presence of the victim while at the same time assist his attorney. Smith, 235 Mont. at 102, 765 P.2d at 744. This Court further stated that the victim and guardian are entitled to have a voice in the conditions of interviews and depositions requested by the defendant. Smith, 235 Mont. at 103, 765 P.2d at 744.

On February 14, 1989, after a request from the county attorney, the District Court ordered the parties to follow Smith-type procedures when interviewing K. H.:

“THE COURT: If the county attorney resists his presence, you follow the guidelines on the Supreme Court cases ...
“MR. SLOMSKI: It’s my position he can not be personally present.
“THE COURT: Then follow the procedures there and make the interview available and set up some kind of physical arrangements, either tape the statement or some arrangements, so that defense counsel has the opportunity for counseling with his client and go back in and continue the examination of the alleged victim.”

The District Court further indicated to defendant’s counsel that it would assist defendant if the Smith-type interview was deemed unsatisfactory.

The record shows that the prosecution did not interfere with the defense. The State arranged an interview with K. H. on February 22, 1989, at defendant’s request. At this meeting K. H.’s guardian stated to defendant’s counsel that the Smith-type procedures were necessary for a defense interview. Defendant’s counsel declined to ask further questions, concluding the interview was untenable. Thereafter, defendant’s counsel did not seek to depose the witness or ask the court for assistance until the day of trial.

Furthermore, defendant’s counsel conceded the State did not exclude him from an interview with K. H. The State provided defense counsel with opportunities to interview the witness. The State first offered an interview immediately following the filing of the information to which defendant failed to respond.

We hold that the District Court properly denied defendant’s motion to dismiss based upon prosecutorial interference.

V.

Was defendant wrongfully denied a writ of habeas corpus?

Defendant filed an application for writ of habeas corpus in the District Court on March 28, 1988. Two days later the justice court released defendant on a $5,000 property bond and the District Court did not act on the petition. The District Court noted that defendant had filed the application but did not notice it for hearing or bring it to the court’s attention until April 11,1989.

The petition for writ of habeas corpus became moot when the justice court released defendant. Section 46-22-101, MCA, provides that a person imprisoned or otherwise restrained of his liberty may prosecute a writ of habeas corpus to ascertain if the imprisonment or restraint is unlawful. If the custody is unlawful, the petitioner must be released. Because defendant was not in custody, he was not deprived of his liberty and the petition became moot. The court cannot grant habeas corpus relief when the petitioner is not in custody. See, Degesualdo v. Crist (1973), 162 Mont. 540, 511 P.2d 1323. Moreover, the District Court considered the merits of the alleged grounds for the writ — improper justice court proceedings and prosecutorial interference with defense efforts to interview the victim — in subsequent defense motions.

We hold that defendant was not wrongfully denied a writ of habeas corpus.

VI.

Do defendant’s convictions of sexual assault and incest violate double jeopardy?

Defendant, citing Store v. Hall (1986), 224 Mont. 187, 728 P.2d 1339, rev’d on other grounds, per curiam, 481 U.S. 400, 107 S.Ct. 1825, 95 L.Ed. 2d 354, contends that the offenses of sexual assault and incest constitute the same offense in law and in fact and therefore his convictions of both sexual assault and incest violate the Fifth Amendment double jeopardy clause which prohibits multiple punishments for the same offense.

Section 46-11-502, MCA, is Montana’s double jeopardy statute. It Provides that when the same transaction establishes the commission of more than one offense, a person charged with such conduct may be prosecuted for each such offense. However, § 46-11-502 (4), MCA, provides that the person charged cannot be convicted of more than one offense if the offenses differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct.

In Hall, supra, this Court applied § 46-11-502(4), MCA, to the offenses of sexual assault and incest and found a double jeopardy violation. In that case the victim was the defendant’s twelve-year-old stepdaughter. In concluding under the facts presented that sexual assault and incest constituted the same offense, this Court stated that “without consent” required no separate proof as an element of sexual assault because of the victim’s age. Hall, 224 Mont. at 191, 728 P.2d at 1341.

We determine the facts of the present case to be distinguishable from Hall and conclude the convictions and sentencing of defendant did not violate double jeopardy protections. The sexual assault statute, § 45-5-502, MCA, requires proof of the victim’s lack of consent if the victim is over the age of fourteen and the offender is three or more years older than the victim. Under § 45-5-507, MCA, however, incest does not require proof of lack of consent if the victim is under the age of eighteen. The victim, K. H., was fifteen years old. Because of her age the State needed to prove lack of consent for the sexual assault while lack of consent was not an element which required proof for the incest charge. In accordance with the jury instructions, the jury could have found defendant guilty of incest and, at the same time, not guilty of sexual assault. Defendant received concurrent sentences because the offenses arose from the same transaction.

We hold the defendant’s convictions of both sexual assault and incest do not violate double jeopardy protections.

VII.

Was defendant deprived of a fair trial by reason of juror misconduct?

Defendant claims that one of the jurors, Jolene Hamann, did not tell the truth during voir dire about the extent of her knowledge of this case or the defendant and that he was denied a fair trial as a consequence. Defendant points to a petition to have defendant incarcerated which was signed by various members of the community, including Ms. Hamann, and asserts that the petition was not disclosed to the defense until after trial.

Alleged jury misconduct must affect a material matter in dispute and must prejudice the complaining party. State v. Maxwell (1982), 198 Mont. 498, 505, 647 P.2d 348, 352. Our review of the transcript of voir dire does not reveal any misconduct by Ms. Hamann concerning the petition. During voir dire Ms. Hamann stated that she knew defendant but believed she could be impartial. She also stated she signed a petition concerning defendant. A reading of the transcript evidences possible confusion regarding the petition but does not show Ms. Hamann sought to perjure herself. Ms. Hamann also stated that she knew Mr. Wheat, who allegedly wrote and circulated the petition.

Defendant has failed to show that he was deprived of a fair trial and a new trial is not warranted.

VIII.

Was defendant denied his right to reasonable bail on appeal?

Defendant argues that the $300,000 appeal bond set by the District Court was excessive and violated defendant’s State and Federal constitutional rights against excessive bail. On October 12,1989, this Court denied defendant’s application for a writ of habeas corpus which raised an identical challenge against the appeal bond. Defendant’s claim on appeal is therefore barred under the doctrine of res judicata.

IX.

Did the District Court improperly rely upon constitutionally infirm prior convictions in sentencing defendant?

Defendant maintains that because of the appeal of his felony assault convictions in Sanders County (Supreme Court Cause No. 89-475) on constitutional grounds, the District Court improperly relied upon the convictions in sentencing him in the present case. The felony assault convictions were affirmed by this Court in State v. Sor-Lokken (Mont. 1990), [246 Mont. 70,] 803 P.2d 638, 47 St.Rep. 2264, and defendant’s claim is therefore moot. However, we feel it necessary to comment further.

A sentencing court cannot rely upon a previous criminal record if that record contains constitutionally infirm convictions. Ryan v. Crist (1977), 172 Mont. 411, 413, 563 P.2d 1145, 1146; State v. Baldwin (1981), 192 Mont. 521, 524, 629 P.2d 222, 224. Defendant was sentenced for the felony assault convictions and for the sexual assault and incest convictions at the same sentencing hearing. The District Court cited several reasons for the sentencing determination and the designation of defendant as a dangerous offender. Defendant’s felony assault convictions were but one factor. The District Court was not required to wait until those convictions were affirmed on appeal before considering them for the purpose of sentencing defendant for the sexual assault and incest convictions.

We hold that the District Court properly considered defendant’s felony assault convictions in sentencing defendant in the present case.

Affirmed.

JUSTICES SHEEHY, HUNT, McDONOUGH and WEBER concur.


author: JUSTICE McDONOUGH JUSTICE HARRISON,

text:
    THE TOWN OF ENNIS, Plaintiff and Appellant, v. EDGAR STEWART and MARTHA STEWART, Defendants and Respondents. and THE TOWN OF ENNIS, Plaintiff and Appellant, v. PEARL DOYLE, Defendant and Respondent.
    No. 90-303.
    Submitted on briefs Jan. 3, 1991.
    Decided Mar. 4, 1991.
    247 Mont. 355.
    807 P.2d 179.

      Larry Jent, Bozeman, for plaintiff and appellant.
    Chester L. Jones, Jones & Hoffman, Virginia City, for defendants and respondents.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

The plaintiff Town of Ennis appeals the order of the Fifth Judicial District Court, Madison County reversing convictions in Ennis Town Court and dismissing charges against the defendants Edgar and Martha Stewart and Pearl Doyle. The defendants were convicted in Ennis Town Court for refusing to hook up to the Ennis Water System in violation of town ordinances. We reverse the order of the District Court and uphold the convictions of the defendants.

The Town raises the following issues on appeal:

(1) Did the District Court err in determining that the defendants had a privacy right in their well granted by Article II Section 10 of the Montana Constitution?

(2) Did the District Court err in ruling that it is not a valid exercise of the police power of local governments to mandate connection to an existing city water supply?

The Stewarts, both in their 80’s, have resided at their present residence since 1936. They have always supplied their water needs from a private well and electric pump located on their property. The Stewarts used the water for indoor consumption, washing and bathing as well as outdoor irrigation. The water is never used commercially or available to the public.

Pearl Doyle is an 83-year-old widow and the sister of Martha Stewart. She has resided at her present residence since June of 1949. Since 1949 her residence has been served by the same well and distribution system, for the same domestic purposes as the Stewarts. Neither Mrs. Doyle nor the Stewarts have ever experienced any health problems traceable to the water system. Both premises are connected to the municipal sewer system.

The Town was incorporated in 1956. Thereafter, pursuant to the adoption of a series of ordinances, the Town made it mandatory for residences within the Town’s city limits to hookup to the Town’s water system, and forbade the interconnection of municipal water lines and private wells and the use of private well water for commercial and public use and use inside private residences. The ordinances allow residents to continue to use well water for watering lawns, gardens, irrigating, etc.

In the early 1960’s, when the municipal water system was being installed, Mrs. Doyle’s late husband requested that a stub be put on the main watet line passing the Doyle residence so that the water system could be tied into the residence at some later date. Mr. Doyle also tendered the required fee for such purposes. The Town mayor refused to provide a stub or accept the fee because the Doyles were not going to immediately hook up to the water system.

Since the building of the original municipal water system in the 1960’s, the Stewarts were never advised by any city official of the requirement to tie onto the system until 1987. The Town has made numerous attempts to persuade the defendants to tie their residences into the Town system, but the defendants have consistently refused to comply. The cost of tying into the water mains would be approximately $500.00 for each residence. In October of 1987, pursuant to Section 4.10.180 of the Ennis Municipal Code, a notice of non-compliance was delivered to each of the defendants.

The Town filed complaints against the Stewarts and Mrs. Doyle for violating the ordinances on May 31, 1989 and June 28, 1989, respectively. All three defendants were convicted of the charges in Ennis Town Court on August 1, 1989.

The defendants appealed to District Court, and the case was submitted upon stipulated facts. On May 8,1990, the District Court reversed the judgment of the Town Court and dismissed the charges against the defendants. The Town now appeals.

In its order, the District Court essentially concluded that the defendants have a privacy right to use a private well in their home for domestic purposes guaranteed by the Constitution, and that the Town’s exercise of the police power was not valid in this case due to lack of a compelling state interest.

We disagree in both respects. The ordinance in question in this case provides in pertinent part:

“4.10.010 Town Water Lines Separate from Private Wells and Pumps. There shall not be any cross-connections between the individual wells and pumps and the town water system. The line from the town water supply must be separate from that of the private well and pump.
“4.10.020 Wells and Pumps for Outside Water Only. Present wells and pumps may be retained for outside water only, lawns, gardens, etc. All water inside residences, business places, public institutions, or for any commercial use must be town water.
“A. Anytime real property is sold which is presently using a well for inside water use, the property must be connected onto the town’s water system prior to sale.”

The privacy right referred to by the District Court is found at Article II, Section 10 of the Montana Constitution, which provides:

“Right of Privacy. The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.”

In determining whether a particular alleged privacy interest warrants constitutional protection, this Court has adopted a two part test. Montana Human Rights Division v. City of Billings (1982), 199 Mont. 434, 442, 649 P.2d 1283, 1287; accord Katz v. United States (1967), 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576. First, the test focuses on whether the person claiming the right has a subjective or actual expectation of privacy. Second, the test asks whether society is willing to recognize that subjective or actual expectation as reasonable. Flesh v. Board of Trustees of Joint School District No. 2 (1990), 241 Mont. 158, 165, 786 P.2d 4,8; Engrav v. Cragun (1989), 236 Mont. 260, 263, 769 P.2d 1224, 1226.

In this case, we conclude that the type of interest being infringed is not of the kind sufficient for defendants to invoke the special protections of their privacy right. Under the Federal Constitution the privacy right has been extended to those rights which are fundamental or implicit in the concept of ordered liberty, such as rights involving activities relating to marriage, procreation, contraception, family relationships, child-rearing, and education. Roe v. Wade (1973), 410 U.S. 113, 152-3, 93 S.Ct. 705, 726, 35 L.Ed.2d 147, 176-7. We have held that privacy rights of individuals in Montana are more substantial than the rights guaranteed in the United States Constitution. See, e.g., Montana Human Rights Division, 649 P.2d at 1286.

Admittedly, the defendants’ right to privacy in this case protects their decision to drink whatever type of potable water they choose within their own home. However, a careful review of the ordinances in question here reveals that they do not proscribe such a decision. The ordinances simply require that the defendants, as residents of the Town of Ennis, be connected to the municipal water system and that water from this source be the only type available from the faucets inside their residence. The ordinances do not prevent the defendants from making the personal choice to drink commercially bottled water, for example, or from drinking their own well water from an outside spigot in a fashion similar to bottled water, as another example.

We conclude that the interest asserted by the defendants in this case — the right to pipe in and have available the type of water they choose — does not involve the kind of individual autonomy or freedom “from unwarranted governmental intrusion into matters so fundamentally affecting a person ....” necessary to invoke constitutional protection. See Eisenstadt v. Baird (1972), 405 U.S. 438, 453, 92 S.Ct. 1029, 1038, 31 L.Ed. 2d 349, 362. Furthermore, where it may adversely effect the significant interest of the Town regarding the public health and welfare, the expectation of privacy the defendants may have in this regard is unreasonable. Flesh, 786 P.2d at 8, Engrav, 769 P.2d at 1226. Accordingly, because the right being asserted is not of constitutional magnitude the Town need not show a compelling interest to satisfy its ends; rather it need only demonstrate that the ordinance bears a rational relationship to the achievement of a legitimate state interest. Art. II, Sec. 10, Mont. Const.; see, e.g., People v. Privitera (1979), 23 Cal.2d 697, 153 Cal.Rptr. 431, 433-34, 591 P.2d 919, 921.

The defendants cite the case of City of Midway v. Midway Nursing & Convalescent Center, Inc. (1973), 230 Ga. 77, 195 S.E.2d 452, for the proposition that a municipality has no authority to enact and enforce ordinances which are designed to compel everyone within the city to use its water system. Considerations of public policy lead us to disagree with the holding of Midway. Generally, a governmental entity may exercise its police powers in matters affecting public health and welfare. There is more recent authority in opposition to Midway holding that the enactment and enforcement of ordinances that compel citizens to connect to a municipal water system is within the scope of the police power:

“It is the commonest exercise of the police power of a State or city to provide for a system of sewers and to compel property owners to connect therewith. And this duty may be enforced by criminal penalties ... [Citations omitted.] It may be that an arbitrary exercise of the power could be restrained, but it would have to be palpably so to justify a court in interfering with so salutary a power and one so necessary to the public health.”

227 U.S. at 308, 33 S.Ct. at 292.

“This court can find no meaningful distinction between mandatory sewer connections and mandatory water connections ...”

Shrader v. Horton (W.D. Va. 1979), 471 F.Supp. 1236, 1243 affirmed in 626 F.2d 1163, 1165; quoting Hutchinson v. City of Valdosta (1913), 227 U.S. 303, 308, 33 S.Ct. 290, 292, 57 L.Ed. 520, 523. The Shrader court relied in part on Weber City Sanitation Commission v. Craft (1955), 196 Va. 1140, 87 S.E.2d 153, where the court held that a sanitation commission’s resolution requiring that abutting property owner’s connect with the district’s waterworks and abandon private subsurface water for personal use and consumption was a valid exercise of the police power. The court stated:

“So far as we know, the power of the State, under its police power, to provide for the health of its people, has never been questioned, but on the contrary, has been stressed as one of the powers which may be given the broadest application; and it is common knowledge that this power has been increasingly exercised, in keeping -with advances made in the sciences of medicine and sanitation, in recent years. In these circumstances, courts are reluctant to place limits on what may be done in the interest of the health of a community, so long as unreasonable methods are not employed, nor the natural and constitutional rights of citizens invaded.
“ Tt is, of course, settled that the protection of the public health is a valid object for the exercise of the police power. Apure water supply is so intimately connected with the health of the community that the provisions with regard to it are properly a part of the police power of the State * *

56Am.Jur., Waterworks, § 76, page 981.”

Weber, 87 S.E.2d at 157, 159. See also, e.g., McMahon v. City of Virginia Beach (1980), 221 Va. 102, 267 S.Ed.2d 130.

In Montana, a local government with self-governing powers may exercise any power or provide any service except those specifically prohibited by the constitution, laws, or its charter. Art. XI, Sec. 6, Mont.Const.; §§ 7-1-101 and 7-1-102, MCA. An incorporated city or town without self-government powers has among its general powers “the powers of a municipal corporation and legislative, administrative, and other powers provided or implied by law.” Art. XI, Sec. 4(l)(a), Mont.Const. Such powers shall be liberally construed. Art. XI, Sec. 4(2), Mont.Const. The legislature has given municipalities broad general powers to construct and improve facilities necessary for operating viable water systems. See generally Title 7, Chapter 13, Parts 43 and 44, MCA. Cities and towns may establish sewage and water systems under the authority of § 7-13-4301, MCA. Section 7-3-402 provides that “the city or town council has power to adopt, enter into, and carry out means for securing a supply of water for the use of a city or town or its inhabitants.” Thus, regardless of whether it has a self-government charter, the enactment and enforcement of the ordinances in this case is clearly within the scope of the Town’s general police power.

Regarding the exercise of this power, we adopt the reasoning of Shrader and Weber, quoted above. While the Town does not allege that there are immediate health threats arising from the use of private well water in Ennis, the potential for such problems always exists. A municipal water system is better suited to meet these health concerns and prevent potential health problems that could arise absent such a system. Furthermore, in small communities a water system may not be affordable unless a sufficient number of citizens connect to the system and pay the corresponding fee. Allowing some citizens to forgo connection to such a system indefinitely or until a health threat is imminent may make such a system unaffordable to the community and thereby defeat the purpose of preventing potential health problems before they arise. Sound public policy considerations indicate that the ordinance in question here is rationally related to the legitimate purpose of providing a healthy and safe water supply.

The order of the District Court is REVERSED.

CHIEF JUSTICE TURNAGE and JUSTICES HUNT and WEBER concur.

JUSTICE HARRISON,

dissenting:

I dissent. I would choose to follow the Findings of Fact and Conclusions of Law of the District Judge who sat on this matter, and adopt the reasoning in his Memorandum of this case.

Judge Frank M. Davis in his Findings of Fact Nos. 2,3, and 4 noted:

“2. The Defendants, STEWARTS and DOYLE, are residents and property owners of the TOWN, and have been since as early as 1936. Both are in their ’80s. Both have always utilized private water wells for domestic water in their homes. Both have refused the offered municipal water service. No formal demand by the TOWN was ever made upon them until 1987. This indicates to the Court that a succession of previous administrations may have conceded the principles set forth in this decision. In any case, the demand was refused and this action resulted.
“3. There is an absence of any evidence that Defendants’ private water well service is a violation of any established public health and sanitary standards. Indeed, the Court can find no compelling reason in the public interest for Defendants to abandon their private water source which has been in existence and used for over fifty years. The property serviced has been owned by Defendants or their immediate families during all this time.
“4. From the stipulated facts, the Court can find only one reason for the TOWN requiring Defendants to utilize its water system and that is for the money, which as the Court will discuss in its Memorandum, is not a compelling state interest. There is no concern which could justify under any known principle of law the use of the TOWN’S police power.”

Judge Davis stated in Conclusions of Law No. II:

“The Court concludes that under the findings herein made and as applied only to Defendants STEWARTS and DOYLE, that there is no compelling state interest mandating that these Defendants utilize the TOWN OF ENNIS municipal water system. To do so would be an invasion of Defendants’rights as guaranteed by Article II, Section 10 of the 1972 Montana Constitution”

With these conclusions I most certainly agree.

Finally, Judge Davis’ Memorandum notes:

“It is clear to the Court that the TOWN OF ENNIS in the operation of its municipal water system is acting in a proprietary capacity and not in the exercise of its police power. Indeed, under the ordinances which it seeks to invoke, its power is limited to simply terminating the service, and here the Defendants have no service to terminate.
“The courts of this country, including the Supreme Court of the United States, have held generally that when the government enters the marketplace it divests itself of many of its sovereign powers. It becomes as the U.S. Supreme Court said in Ohio v. Helvering, [1934] 292 U.S. 360, 54 S.Ct. 725, 75 L.Ed. 1307, a‘trader’. The trader cannot abridge fundamental constitutional rights except on a showing of some compelling public need. Indeed, the public need must be shown even when the government is acting in its sovereign capacity. No public need, much less a compelling need, has been shown in this case.
“The TOWN’S water ordinances appear to be vague and contradictory. One seems to contemplate ‘grandfathering’ a water user’s right to use his well until the property is sold. It does not contemplate a transfer by gift or inheritance. Still another ordinance simply provides for notice of noncompliance. These ordinances may be unconstitutionally vague, but in any case these particular Defendants are protected by not only the grandfather concept, but the general principles of constitutional law.
“The Court would add that the TOWN’S goal of including all of its residents under the umbrella of its utility is a worthy administrative goal. In doing so, however, it cannot infringe and abridge fundamental constitutional rights, especially when it can show no compelling state interest. The TOWN’S dispute with STEWARTS and DOYLE will be solved in time, provided the contradictory and vague enforcement ordinances are clarified. In the interim, these Defendants should be allowed in their autumn years to use their private water source, as they have for half a century.” (Emphasis in original.)

I would add that I am sure the Town of Ennis will not go broke by not collecting the water revenues from these two long time citizens. I would affirm the decision of the District Court.


text:
    STATE OF MONTANA, Plaintiff and Appellant, v. MARY GAYNELL HOLLIMAN, Defendant and Respondent.
    No. 90-382.
    Submitted on briefs Dec. 13, 1990.
    Decided Jan. 22, 1991.
    247 Mont. 365.
    805 P.2d 52.
    Mike Salvagni, County Atty., Marty Lambert, Deputy County Atty., Bozeman, Marc Racicot, Atty. Gen., Kathy Seeley, Asst. Atty. Gen., Helena, for plaintiff and appellant.
    Marcelle Quist, Bolinger & Quist, Bozeman, for defendant and respondent.
   JUSTICE HUNT

delivered the Opinion of the Court.

The State of Montana appeals from an order of the Eighteenth Judicial District Court, Gallatin County, quashing and vacating a governor’s warrant issued on defendant Mary Gaynell Holliman. We reverse.

The issue presented by the State is whether the District Court improperly quashed and vacated the governor’s warrant issued in proceedings to extradite Holliman.

On January 30, 1990, the State filed a fugitive complaint against Holliman. The complaint stated that she was charged in the State of Mississippi with the crime of “uttering a forgery.” On January 31, 1990, Holliman appeared in District Court on the fugitive complaint. The court set bail at $2,000 and appointed an attorney to represent Holliman.

At the same time, extradition of Holliman was being sought, she faced a felony deceptive practices charge in Gallatin County. On February 22,1990, Holliman pleaded guilty to the deceptive practices charge. Later, the District Court sentenced Holliman to five years’ imprisonment. The court suspended Holliman’s sentence, on the condition that she serve 120 days in the Gallatin County jail with credit for the 60 days she had previously served.

On February 26, 1990, a hearing was held on the fugitive complaint. Holliman refused to waive extradition. The District Court granted a 30 day extension for the extradition “to be finalized by the State of Mississippi.” On March 26,1990, the court held another hearing to review Holliman’s extradition. At the conclusion of the hearing, the court noted that Holliman was serving time in the county jail on the felony deceptive practice conviction and granted the State until April 30, 1990, to serve the governor’s warrant. On April 30, 1990, Holliman requested that she be released from the fugitive warrant because the governor’s warrant had not been received. In response to Holliman’s request, the District Court released Holliman on the fugitive Mississippi warrant and explained that “[i]f while the Defendant is serving the remainder of her jail sentence from another matter the Governor’s warrant does arrive then the court will again review this matter.”

Finally, on May 15, 1990, Governor Stephens issued a governor’s warrant commanding that the authorities apprehend Holliman. The District Court received the warrant on May 18, 1990. Later, in District Court, the State informed the court that Holliman was being held on the governor’s warrant. Holliman’s incarceration on the deceptive practices conviction expired on May 19,1990. The District Court set bail on the governor’s warrant at $2,000. The court also continued the matter until May 29, 1990, to give Holliman and her attorney an opportunity to review the extradition documents.

The District Court held a hearing on Holhman’s extradition May 29, 1990, during which the State requested that the court continue to hold Holliman for seven days to allow Mississippi authorities to arrive to transport Holliman back to Mississippi. In response, Holliman objected to the time it had taken to obtain the governor’s warrant and argued that, because it had not been obtained within 90 days, the warrant was “not correct” and she should be released. The State contended that the 90 days referred to by Holliman applied only to incarceration of Holliman prior to her arrest under the governor’s warrant. Holliman then requested a bail hearing. The District Court suggested that Holliman file a motion for reduction of bail and a petition for writ of habeas corpus.

The District Court held a hearing on the motion to reduce bail on June 4, 1990. At the time of hearing, Holliman had not yet been extradited to Mississippi. The court, obviously angered at the delays in extraditing Holliman to Mississippi, released Holliman on her own recognizance. Later, the court issued a written order releasing Holliman, and quashing and vacating the governor’s warrant. The State now appeals from the District Court’s order quashing and vacating the governor’s warrant.

Whether the District Court improperly quashed and vacated the governor’s warrant issued in proceedings to extradite Holliman.

In 1973, Montana adopted the Uniform Criminal Extradition Act, ch. 513, § 14, Laws of (Montana) 1973, 1405. Under Montana’s Extradition Act, the State charged Holliman by fugitive complaint on January 30, 1990, pursuant to § 46-30-301, MCA. She appeared before the court on the fugitive warrant on January 31, 1990. Holliman’s claim before the District Court on June 4, 1990, and now on appeal, was that she was not extradited within the time period prescribed in §§ 46-30-302 and - 304, MCA, and therefore should be released. Section 46-30-302, MCA, states:

“If from the examination before the judge or magistrate it appears that the person held is the person charged with having committed the crime alleged and, except in cases arising under 46-30-204, that he has fled from justice, the judge or magistrate must by a warrant reciting the accusation commit him to the county jail for such a time not exceeding 30 days and specified in the warrant as will enable the arrest of the accused to be made under a warrant of the governor on a requisition of the executive authority of the state having jurisdiction of the offense, unless the accused give bail as provided in 46-30-303 or until he shall be legally discharged.”

Section 46-30-304, MCA, reads:

“If the accused is not arrested under the warrant of the governor by the expiration of the time specified in the warrant, bond, or undertaking, a judge or magistrate may discharge him or may recommit him for a further period of 60 days or a supreme court justice or district court judge may again take bail for his appearance and surrender, as provided in 46-30-303, for a period not to exceed 60 days after the date of the new bond or undertaking.”

These sections allow a 90 day time period that a fugitive awaiting a governor’s warrant may be held in custody or on bond prior to discharge and a release from bail. The 90 day limit set by §§ 46-30-302 and -304, MCA, expired on or about April 30, 1990.

Holliman argues that the 90 day time limit set forth in §§ 46-30-302 and -304, MCA, requires that a governor’s warrant issue within 90 days of the filing of the fugitive complaint or the governor’s warrant is invalid. The State does not dispute, and the record reveals, that Holliman was not arrested on the governor’s warrant within the time limit set by §§ 46-30-302 and -304, MCA, for custody on a fugitive warrant. In fact, on April 30, 1990, the District Court released Holliman on the fugitive warrant because the governor’s warrant had not been received. The release of Holliman on the fugitive warrant did not result in the actual release of Holliman because she was still serving her 120 day jail sentence on the deceptive practices conviction.

The State, relying on In Re Petition of Blackburn (1985), 215 Mont. 440, 701 P.2d 715, argues that Holliman’s custody under the governor’s warrant is valid and the District Court had no authority to quash the warrant. In Blackburn, Montana’s governor issued a warrant at the request of the State of Colorado, approximately four months after the petitioner Blackburn was arrested, arraigned and released regarding the Colorado charges. In holding that the arrest of Blackburn under the governor’s warrant was proper, this Court recognized that the time limits set forth in §§ 46-30-302 and - 304, MCA, do not apply to the issuance and execution of a governor’s warrant. In Blackburn, we stated:

“We hold that time limits in section 46-30-302 and -304 refer only to the length of detention permitted before an accused person must be released from custody in the asylum state. These sections do not require dismissal of extradition proceedings for any supposed time limits on issuance of the governor’s warrant.”

Blackburn, 215 Mont. at 446, 701 P.2d at 719; State v. Campbell (1988), 233 Mont. 502, 506, 761 P.2d 393, 396.

Blackburn is consistent with the holdings in other states applying the Uniform Criminal Extradition Act. “The ninety-day period in the act merely limits the time an accused may he incarcerated while awaiting a governor’s warrant; it does not require that a governor’s warrant issue within the ninety-day period.” Commonwealth of Pennsylvania v. Storms (1986), 350 Pa.Super. 228, 504 A.2d 329, 330; See also Orton v. State (Fla. 1983), 431 So.2d 236, 237; Stynchcombe v. Whitley (1978), 240 Ga 776, 242 S.E.2d 720, 721-22; Application of Simpson (1978), 2 Kan.App.2d 713, 586 P.2d 1389, 1390.

Here, the District Court had no authority to quash the governor’s warrant issued May 15, 1990. Holliman was discharged from the fugitive warrant on April 30, 1990, after the expiration of the 90 day imprisonment on the fugitive complaint, as was proper under extradition statutes. She remained in custody under the deceptive practices conviction, however, and was arrested under the governor’s warrant. This procedure did not violate the extradition statutes.

Accordingly, the District Court’s order is reversed, and the governor’s warrant is in full force and effect.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, BARZ and McDONOUGH concur.