State v. Hembd

                                          No.   81-432

                  I N THE SUPREME COURT O THE STATE OF M N A A
                                         F              OTN

                                                1982




THE STATE OF MONTANA,

                   P l a i n t i f f and Respondent,

        -vs-

J O H N PATRICK HEMBD,

                   Defendant and A p p e l l a n t .




Appeal from:       District Court o f t h e T h i r t e e n t h J u d i c i a l District,
                   I n a n d f o r t h e County o f Y e l l o w s t o n e , The H o n o r a b l e
                   C h a r l e s Luedke, J u d g e p r e s i d i n g .


C o u n s e l o f Record:

       For Appellant:

                   J o h n L. Adams, B i l l i n g s , Montana


       F o r Respondent :

                   Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
                   H a r o l d F. H a n s e r , County A t t o r n e y , B i l l i n g s , Montana




                                         S u b m i t t e d on B r i e f s :   F e b r u a r y 25,   1982

                                                             Decided :
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.

     John Hembd was charged by information in the District
Court of the Thirteenth Judicial District, Yellowstone
County, with the crime of negligent arson under section 45-
6-102 (1)(a), MCA.   A jury found him guilty of "attempted
misdemeanor negligent arson" and he appeals.
     In the early evening of February 13, 1981, Hembd, who
had been sitting in the lobby of the Billings Sheraton Hotel
for two hours, was asked to leave by the hotel's security
guard.    Hotel employees watched Hembd after he left.   They
soon observed him in front of a hotel fire exit, with his
back to certain doors that lead into the building.    As he
started to walk away, the employees entered the area in
which he had been standing and discovered a styrofoam donut
wrapper burning on top of a heater next to the wall.      After
extinguishing the flame the two emjjloyees seized Hembd who
was a short distance away.   Hembd allegedly stated, "You
didn't see anything.   You can't prove anything. You guys are
crazy."   Hembd admitted at trial that he was drunk at the
time of the incident but denied
     Hembd was charged with the crime
to section 45-6-102(1)(a), MCA.    The jury was instructed on
four alternate forms of verdict:    felony negligent arson,
"attempted felony negligent arson," misdemeanor negligent
arson, and "attempted misdemeanor negligent arson."      Hembd
was found guilty of "attempted misdemeanor negligent arson."
     This appeal raises two issues:      (1) Is "attempted
misdemeanor (or felony) negligent arson" a crime?; and (2) If
Hembd was convicted of a nonexistent crime, did the purported
conviction impliedly acquit him of misdemeanor or felony
negligent arson?
                                   -2-
     We find that attempted misdemeanor negligent arson and
attempted felony negligent arson are nonexistent crimes.
Furthermore, we find that the jury's verdict, notwithstanding
the fact that it convicted Hembd of a nonexistent crime,
constituted an implied acquittal of the crimes of misdemeanor
negligent arson and felony negligent arson, and therefore
Hembd may not be retried for these offenses.
     Hembd contends that there is no such crime as "attempted
misdemeanor negligent arson."   The State concedes this point
in the following passage quoted from its brief:
     "Attempt is defined by section 45-4-103, MCA,
     as follows:
    1 ) A person commits the offense of attempt
    when with the purpose to commit a specific
    offense, he does any act toward the commission
    of such offense.'
    "The crime of misdemeanor negligent arson occurs
    when a person 'purposely or knowingly starts a
    fire or causes an explosion   .. . and thereby
    negligently' places property in danger of
    destruction, 5 45-6-102, K A . It is in combining
    these definitions that the problem becomes clear.
    It is possible to purposely attempt to start a
    fire. The crime of negligent arson, however,
    requires purposely or knowingly starting a fire
    - negligently placing property in danger. To
    and
    purposely attempt to be negligent is a contradiction
    in terms. The trial court ruled that attempt modifies
    only the act of 'purposely or knowingly starting a
    fire.' That ruling ignores the definition of attempt.
    Attempt requires 'purpose to commit a specific
    offense' and, standing by itself, purposely
    starting a fire is not a punishable offense. The
    second requirement, negligently placing property
    in danger, is necessary to complete the crime
    of negligent arson. It is impossible to show
    one purposely was negligent."
    Attempted negligent arson, be it misdemeanor or felony,
is a nonexistent crime.
     The second issue involves the concept of double jeopardy.
The constitutions of Montana and the United States prohibit
double jeopardy.   1972 Mont. Const., Art. 11, 5 25, states:
"No person shall be again put in jeopardy for the same
offense previously tried in any jurisdiction."    Even more
specific is section 46-11-503 (I), MCA.    If "attempted
misdemeanor negligent arson" were a legitimate lesser

offense included within the crime of negligent arson, the
statute would clearly bar a retrial for negligent arson.
     A situation very similar to the present one recently
confronted a California court.     The defendants in People v.
Van Broussard (1977), 76 Cal.App.3d 193, 142 Cal.Rptr. 664,
were charged with attempted murder.    The jury was instructed
that attempted involuntary manslaughter was a lesser-included
offense which should be explored in the event it found the
defendants not guilty of attempted murder.    The jury returned
a verdict finding the defendants guilty of attempted involuntary
manslaughter.   On appeal it was determined that attempted
involuntary manslaughter was a nonexistent crime and the

judgment was reversed.     Further, the appellate court held
that by convicting the defendants of a crime which was
erroneously believed to be a lesser offense included within
the crime of attempted murder, the jury impliedly found that
the defendants were not guilty of attempted murder.     The
jury's implied verdict of acquittal was held to bar further
prosecution on the attempted murder charge.
     An identical result was reached in the analogous case
of Green v. United States (1957), 355 U.S. 184, 78 S.Ct.
221, 2 L.Ed.2d 199.   Green was indicted on two counts:      arson
and first degree murder.     The jury was instructed that it
could find Green guilty of arson under the first count and
of either (1) first degree murder or (2) second degree
murder under the second count.     The jury found Green guilty
of arson and of second degree murder but did not find him
guilty on the charge of murder in the first degree.     On

appeal, the conviction of second degree murder was reversed
because it was not supported by the evidence.    On remand,

Green was tried again for first degree murder under the
original indictment.     This time a new jury found him guilty
of first degree murder.    Green appealed to the United States
Supreme Court, raising the defense of double jeopardy.     he

Court held that the second trial for first degree murder
placed Green in jeopardy twice for the same offense in
violation of the Fifth Amendment to the United States Con-
stitution.   The Court stated:

     "Green was in direct peril of being convicted
     and punished for first degree murder at his
     first trial. He was forced to run the gaunlet
     once on that charge and the jury refused to convict
     him. When given the choice between finding him
     guilty of either first or second degree murder it
     chose the latter. In this situation the great
     majority of cases in this country have regarded
     the jury's verdict as an implicit acquittal on
     the charge of first degree murder.


     "In brief, we believe this case can be treated
     no differently, for purposes of former jeopardy,
     than if the jury had returned a verdict which
     expressly read: 'We find the defendant not guilty
     of murder in the first degree but guilty of murder
     in the second degree.'" 355 U.S. at 190-191, 78
     S.Ct. at 225, 2 L.Ed.2d at 206.

     The Court noted that it was immaterial to its decision
whether second degree murder was a lesser-included offense.
355 U.S. at 194, 78 S.Ct. at 227, 2 L.Ed.2d at 208.

     The judgment is reversed and remanded with instructions
to dismiss the action.
We Concur: