                            No.    90-109

          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1990



STATE OF MONTANA,
     Plaintiff and Respondent,
-vs-
LEE and REBECCA GIBBS,
husband and wife,                                                     Y

     Defendants and Appellants.                            z         C1>
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APPEAL FROM:   District Court of the Tenth ~udicialb~stri?t,               5
               In and for the County of Fergus,     -
                                                    - 2 L: P               0
               The Honorable John C. Warner, Judge pe%tdiq.


COUNSEL OF RECORD:
          For Appellant:
               Torger S. Oaas, Lewistown, Montana
          For Respondent:
               Marc Racicot, Attorney General; Elizabeth S. Baker,
               Assistant Attorney General, Helena, Montana; Craig
               R. Buehler, Fergus County Attorney; Jon A.
               Oldenburg, Deputy County Attorney, Lewistown,
               Montana


                                              Submitted:   June 28, 1 9 9 0
                                                Decided: August 30, 1990
                                         Iv
Filed:
Justice John C. Sheehy delivered the Opinion of the Court.


     Lee and Rebecca Gibbs each appeal from judgments of conviction
against them for violations of the game laws of Montana.             The
convictions were obtained in the District Court, Tenth Judicial
~istrict,Fergus County.       As to Lee Gibbs, we affirm the judgment
of conviction as to two of the counts and remand one of the same
for resentencing.     We affirm the conviction of Rebecca ~ i b b sbut
remand for resentencing.
     In the month of February, 1988, Warden Sergeant Gary E. Burke,
of the Montana Department of Fish, Wildlife and Parks, posing as
a buyer of animal horns, in an undercover investigation, viewed
antlers at the ~ i b b sresidence.    On a subsequent date, when Burke
returned   to   the   Gibbs   residence,   Lee   Gibbs   inquired   about
purchasing a set of sheep horns the agent had in his truck.
Eventually Gibbs agreed to trade his tanning services for two
illegal bobcat hides that Burke brought over in exchange for a
small set of sheep horns from Burke.        Burke picked up the bobcat
hides after they were tanned.        Rebecca Gibbs told Burke that she
had done most of the work on the hides.
     On Burke's first visit to the Gibbs residence, Lee Gibbs had
shown him a mountain lion hide which Gibbs said he had caught in
a trap line he had set out. Gibbs had shot the mountain lion twice
in the side with a pistol.     On a later visit by Burke to the Gibbs
home, the price of lion hide was discussed and eventually Burke
paid Gibbs $300 for the lion hide.
        The foregoing are the important facts in regard to this case.
Lee Gibbs was charged in the District Court with violations of the
game laws in five counts:        Count I possession of parts of an
unlawfully taken fur-bearing animal ( 5 87-3-112, MCA), for the
possession of two illegal bobcat pelts; Count I1 possession of
parts of an unlawfully taken game animal ( 5 87-3-112, MCA), illegal
possession of the head and cape of a bighorn sheep; Count I11 sale
of parts of unlawfully taken game animals ( 5 87-3-111, MCA),
selling the hide of an unlawfully taken mountain lion for $300;
Count IV possession of parts of an unlawfully taken game animal (5
87-3-112, MCA), having possession of parts of an unlawfully taken
mountain lion; and, Count V, a felony, trafficking in body parts
of unlawfully taken species ( 5 87-3-111(4), MCA), relating to the
purchase, sale, possession and transportation of unlawfully taken
game animals.
     Rebecca Gibbs was charged with the felony count of trafficking
in body parts of game animals through accountability, under 5 5 87-
3-111(4) and 45-2-302, MCA, relating to aiding and encouraging Lee
Gibbs     in   selling,   purchasing,   possessing   and   transporting
unlawfully taken game animals or parts thereof.
     The cases against the two defendants were consolidated for
trial.     The jury found Rebecca Gibbs guilty as to the charge
against her.     As to Lee Gibbs, the jury was unable to reach a
verdict (a hung jury) on Counts I (possession of illegal bobcat
pelts) and I1 (possession of the head and cape of an illegal
bighorn sheep).     Lee Gibbs was found guilty by the jury of Count
I11   (selling the mountain lion for $300), Count IV        (illegal
possession of the hide of the mountain lion); and, Count V
(trafficking in body parts of unlawfully taken species, a felony).
      The defendants were sentenced on January 15, 1990.    Rebecca
Gibbs was sentenced to a fine of $10,000 and a one year term of
imprisonment, all of which was suspended on the condition that she
have no firearms in her possession during the suspension and that
she spend five days in the Fergus County Jail.       Lee Gibbs was
sentenced on Counts IV and V only, the District Court having
declared that Count I11 constituted a lesser-included offense of
Count V.   As to Count IV, Lee Gibbs was fined $300 and ordered to
serve 30 days in the Fergus County Jail concurrent with time
imposed under Count V, and was further ordered to pay restitution
in the sum of $500 pursuant to 5 87-1-111(l) (b), MCA.   As to Count
V, the court imposed a fine of $10,000, which was suspended on the
condition that the defendant Lee Gibbs obey all the fish and game
laws of the state of Montana for the period of his incarceration
and he was sentenced to a one year term of imprisonment at the
Montana State Prison.    All of each of the defendants' hunting,
fishing and trapping privileges were suspended under 5 87-1-111,
MCA, from December 5, 1989 through and including December 31, 1999.
The case has come to this Court on appeal from the foregoing
judgments and sentences.
      There is no doubt that there was sufficient evidence to
sustain the convictions on counts found by the jury.            The
difficulty for us in the case arises, as it did for the District
Court, from consideration of the sentences imposed, in the light
of the language of the statutes under which the defendants were
charged.    In passing sentence, the District Court expressed its
dismay, saying:

     The statutes concerning the fish and game laws and
     regulations of Montana are mismatched, inconsistent, and
     provide inconsistent penalties. They render the hunting,
     fishing and trapping regulations of this state difficult
     if not impossible for game wardens to enforce, and make
     the job of other law enforcement officials difficult.
     I feel that the laws as they are written render it
     difficult for citizens of this state to know what those
     laws and regulations are. It is the feeling of this
     Court that they need to be redrafted so that they can be
     understood.
     This case does present some possible grounds for an
     appeal.   The Supreme Court in this case, should the
     Defendant desire to appeal, may interpret the laws, but
     they will have difficulty in rendering an opinion which
     may have general application. I would request and invite
     them to do so, should they have the opportunity.
     Montana law makes it a misdemeanor to sell, offer to sell,
possess, ship or transport a fur-bearing game animal or any part
thereof except as permitted by law.    Section 87-3-111(1)(3), MCA.
The law also provides that any person engaging in the activities
prohibited by the misdemeanor statute in furtherance of a "scheme
to traffic in the body partsw of unlawfully taken species is a
felony.    Section 87-3-111(4), MCA.   The District Court properly
concluded that the misdemeanor portion of the statute was a lesser-
included offense of the felony portion, guided by State v. Hankins
(1984), 209 Mont. 365, 680 P.2d 958. The District Court also held
that under Hankins, the felony crime did not require a scheme to
traffic by involving more than one animal. The District Court was
uncomfortable with this holding because there is no statutory
definition for                  game animals.
     Because Lee Gibbs was convicted of a felony scheme to traffic
in body parts, the District Court concluded that Count I11 was a
lesser-included offense of that felony conviction and so imposed
no sentence as to the sale of the mountain lion, charged as a
misdemeanor.
     With respect to the felony conviction of Count V, however, a
problem arises as to the sentence imposed under the statute.
Section 87-3-111(4), MCA, provides:

     Any person engaging in the activities prohibited        in
     subsection (1) in furtherance of a scheme to traffic    in
     the body parts of unlawfully taken species is guilty    of
     a felony and shall be punished by a fine of $10,000     or
     imprisonment in the state prison for a term of 1 year   or
     both.
     The sentence for imprisonment in the foregoing statute does
not meet the statutory definition of a I1felonyl1found in 5 45-2-
101(21), MCA, which states:

     I1Felonyl1means an offense in which the sentence imposed
     upon conviction is death or imprisonment in the state
     prison for any term exceedinq 1 year. (Emphasis ours.)
     On the other hand, a llmisdemeanorll defined as follows ( 5
                                       is
45-2-101 (36) , MCA) :

     I1Misdemeanorl1means an offense in which the sentence
     imposed upon conviction is imprisonment in the county
     jail for any term or a fine, or both, or the sentence
     imposed is imprisonment in the state prison for any term
     of one year or less. (Emphasis supplied.)
       Counsel   for   Lee   Gibbs   contends that     because   the     jail
punishment for the purported felony described in 5 87-3-111(4),
MCA, does not meet the definition of felony contained in g 45-2-
101(21), MCA, the conviction of Lee Gibbs for a felony is improper.
The   state contends with       respect to this argument that the
legislature has the right to define crimes, and that moreover the
general definitions of felony and misdemeanor under 5 45-2-101 are
intended to apply only to crimes described in Title 45, from
language which appears in the first portion of           §   45-2-101.    We

cannot accept the state's argument on this point however because
of the language in g 45-1-201 which provides:

      classification of offenses. (1) For the determination
      of the court's jurisdiction at the commencement of the
      action and for the determination of the commencement
      through the period of limitations, the offense shall be
      designated a felony or misdemeanor based upon the maximum
      potential sentence which could be imposed by statute.
       (2) An offense defined by any statute of this state
       other than this code shall be classified as provided in
       this section, and the sentence that may be imposed on
       conviction thereof shall be governed by this title and
       Title 46. (~mphasis  added.)
      Regardless therefore of the statement in     §   87-3-111, MCA, that
trafficking in game animals is a felony, because the jail sentence
for a violation of that statute does not exceed one year, it may
not, under the classification rules provided by the legislature,
be considered a felony. Although the legislature has the undoubted
right to classify crimes, in so doing the legislature is required
to    follow the rules which         it has   itself provided    for such
classification.        We therefore determine that because of the
imprisonment provision of 5        87-3-111(4), MCA, which fixes the
imprisonment for a term of one year, and does not provide for a
term    exceeding   one   year,   the   conviction of   Lee   Gibbs   for
trafficking in game animals is in fact a misdemeanor.             It is
necessary therefore that the sentence imposed for the infraction
of 5 87-3-111(4), MCA, must be remanded to the District Court where
a sentence shall be imposed by the District Court, as though the
conviction were for a misdemeanor.
       The District Court construed the violation of Count V to be
a felony, and the violation of Count I11 a misdemeanor.                It
therefore held that Lee Gibbs was convicted in Count I11 of a
lesser-included offense of Count V.        We have now determined that
a violation of Count V is a misdemeanor also.           One misdemeanor
cannot be a lesser-included offense of another misdemeanor.           The
District Court is not in error, however. The gravamen of his crime
is that he sold a lion hide to Burke for $300. Selling an illegal
game animal pelt is a misdemeanor under either 5 5 87-3-111(1) or
87-3-111(4), MCA, since we decided in Hankins that trafficking can
involve a single animal.      Lee Gibbs cannot be convicted of more
than one offense because one is included in the other. Section 46-
11-502 (1), MCA.    We uphold the District Court in Gibbt conviction
                                                         s
for a violation of 5 87-3-111(4), MCA, and its decision not to
convict for the same violation under 5 87-3-111(1), MCA.
       We turn now to the conviction of Lee Gibbs under Count IV.
This Count related to the misdemeanor possession of an unlawfully
taken fur-bearing animal, the bobcat pelt. Lee Gibbs contends that
he was lawfully in possession of the pelt of the bobcat, because
it was taken by him in defense of the person of his son whom the
bobcat was attacking.      Section 87-3-130, MCA, provides that there
is no criminal liability for the taking of wildlife otherwise
protected by the game laws if the wildlife is molesting or
threatening to kill any person. The same statute requires that any
person who takes such wildlife in the protection of others notify
the Department within 72 hours.      Because no notification was given
by Lee Gibbs to the Department, the District Court refused to allow
the issue of Gibbsl defense of another person to be submitted to
the jury.     Gibbs having possessed the bobcat pelt for more than 72
hours, and with no excuse shown, not having reported acquiring the
same to the Department, his possession of the pelt after that
period became illegal.      Thus the issue attempted to be raised by
Lee Gibbs, that he shot the bobcat in defense of another person,
would have no effect on the eventual outcome, since his possession
after   the    72   hour   period   was   illegal,   regardless   of   the
circumstances under which he obtained the bobcat pelt.                 The
~istrictCourt was not in error in refusing to submit to the jury
the issue of Gibbs' defense of another person.         is conviction for
illegal possession of the pelt of a game animal is affirmed.
     We next consider the appeal of Rebecca Gibbs.                She was
convicted of felony trafficking in parts of illegally-taken game
animals on the basis of criminal accountability.          She argues on
appeal that the jury was hung on the counts charged against her
husband, Lee Gibbs, relating to the bobcat pelts that Burke had
brought for tanning. She had admitted to Burke that it was she who
did the tanning.     There is no other evidence in the record which
shows her participation in the acts charged against her husband,
for which he was convicted. She relies on State v. Cornish (1925),
73 Mont. 205, 209, 235 P. 702, 703 and State ex rel. Murphy v.
McKinnon (1976), 171 Mont. 120, 125, 556 P.2d 906, 909 that she
cannot be criminally responsible as an accomplice because of her
mere presence at the acts for which her husband was convicted.
     Again the conviction of Rebecca was for wtrafficking,g' an
                                                           as
accomplice.    It is not necessary that criminal accountability must
be founded on the convictions for the same crime by the principal
offender.     A person may be convicted for accountability on proof
that the offense was committed, even though the other person
claimed to have committed the offense has not been convicted, or
is convicted of a different crime.    section 45-2-303, MCA.
     There is stronger proof in Rebecca's case that she aided or
abetted I1traf icking,
             f           since for a consideration to her husband,
she tanned two hides for Burke.
     The same problem for Rebecca's felony conviction arises as for
Lee Gibb's, relating to the classification of trafficking as a
felony. What we said foregoing applies also here.    Accordingly we
sustain the conviction of Rebecca as a misdemeanor, and remand her
sentence to the District Court for resentencing as a misdemeanor
violation.
    We strongly urge the Department of Fish, Wildlife and Parks
to engage the legislature in a clean-up of the statutes defining
crimes against protected game animals.      The present statutes,
particularly the whole of 5 87-3-111, MCA, are vague and redundant.
Especially it should be made clear whether fltraffickingfl
                                                        means a
course of trade or the sale of a single animal.          There are
constitutional considerations to be recognized in the rights of
people to know in clear language when their acts transgress the
rules of society.
      Convictions affirmed. Remanded for resentencing in accordance
herewith.

                                                  *
                                                  Justice
We Concur:       1


       Chief Justice
  A




Justice William E. Hunt, Sr., concurs in this Opinion.
