                                 NO. 8 3 - 4 6 0
                IN THE SUPREKE COURT OF THE STATE OF MONTANA
                                         1984




STATE OF MONTANA,
                Plaintiff and Respondent,
    -vs-
WILLIAM GEORGE HARRIS, SR.,
                Defendant and Appellant.




APPEAL FKOM:      District Court of the Fourth Judicial District,
                  In and for the County of Missoula,
                  The Honorable Joseph    Gary, Judge presiding.


COUNSEL OF RECORD:

         For Appellant:
                 Bernard J. Go,ldman argued, Plissoula, Montana

         For Respondent:
                Hon. Mike Greely, Attorney General, Helena, Montana
                Patricia Schaeffer argued, Asst. Atty. General, Helena
                Xobert L. Deschanps, 111, County Attorney, blissoula,
                Montana



                                 Submitted:        April 18, 1 9 8 4
                                    Decided:       June 8, 1984


Filed:    3UI\i ,j IYUq


                                     #

     --                                             --   .-
                                 Clerk
Mr. Justice John C.             Sheehy delivered the Opinion of the
Court.

    William George Harris, Sr., appeals from an order of the
District Court, Fourth Judicial District, Missoula County,
denying his motion for a new trial.                  We affirm the order of
the District Court.
     In 1981, Carl F. Anderson, Doug E. Shuland, and Thomas
Michael Rriggs, with            the   legal advice of          the    defendant,
William George Harris, Sr., formed Go Devil Hotshot Service
Company,    Inc.,    to    provide     expedited        delivery     service of
needed parts to oil fields.           Between June 1981 and the middle
of August 1981, Harris received around $21,000 from various
contributors    to    be       used   on    behalf      of   the    newly-formed
business.      Harris deposjted            $6,000 of this money            into a
company bank account and used approximately another $9,000 of
this money to cover the business' expenses.                   The remainder of
the money, around          $6,000, could not be accounted                  for by
Harris.
     On June 1, 1982, Harris was charged by information with
three counts of felony theft.                Count 1 charged Harris with
appropriating money            owned by     Carl   F.    Anderson, Joyce A.
Anderson, and Douglas E. Shuland.                  On June 30, 1981, the
Andersons, on behalf of Shuland, gave Harris a $3,000 check
to be deposited with the company.                  Harris took the check,
deposited    $1,000       to    his   account,       $1,500    to    his   wife's
account, $350 to his son's account, and cashed the remainder.
     According to Harris, this action was iustified as the
Andersons owed him over $8,000 and Shuland owed him $1,000.
Both amounts were legal fees for representation on earlier
unrelated matters.             The Andersons testified, however, that
the matter in which Harris had represented them was decided
in favor of the other party, and Harris had told them to
forget the legal fees.
      Count I1 charged Harris with appropriating money given
him by Thomas Michael Rriggs.              Briggs became involved with
the Go Devil Hotshot Service Company after its formation and
gave Harris a check for $5,000 to cover his contribution to
the   companv.      Harris      cashed     the   check    at his bank   and
deposited $1-,500 his wife's account.
                 to
      Count 111 charged Harris with appropriating money loaned
the company by Elsie Oliva, Joyce Anderson's mother.                    On
August 14, 1981-, Oliva obtained $13,000 from her bank in
Hamilton.     She turned the proceeds over to Harris in the form
of a cashier's check and received a promissory note from the
company for the $13,000.           Harris then returned to the bank
and. requested that he be given a cashier's check for $6,000
and $7,000 in cash in exchange for the $13,000 cashier's
check.      The bank refused to redeem the cashier's check for
cash, but did issue two cashier's checks to Harris for $6,000
and $7,000.      Harris deposited the $6,000 cashier's check into
a company bank account and cashed the other check for $7,000.

      A jury trial was held and Harris was found guilty of
felony theft on counts I1 and 111.                Harris moved for a new
trial, but the motion was denied hy the District Court.                  A
sentencing hearing was held on June 7, 1983, and Harris was
given two 5-year suspended sentences and placed on probation.
He was further ordered to pay $5,000 jn restitution to Oliva
and a $5,000 fine.          Upon motion of counsel, execution of
judgment was stayed pending appeal.
      The    sole   issue      presented    by   Harris    is whether   the
testimony     of    one   of    the   State's     witnesses    constitutes
perjury, so as to "taint" Harris' conviction and requjre a
new trial.
     According to Harris, a new trial must be granted "where
it appears there has been a trace of perjured                      testimony
presented to the jury resulting in a conviction."                  State v.
Greeno (1959), 135 Mont. 580, 592, 342 P.2d               1052, 1058.    He
contends that here, "there exists FAR MORE THAN A TRACE OF
PERJURY       . . .   resulting in a conviction which obtains only
from the use of 'tainted' testimony by the prosecutor."
     This contention is not supported by the evidence.                   We
cannot find in the testimony represented as perjury even a
"trace        of   perjury"   and   we   cannot   agree     that    Harris'
conviction resulted only from the use of such testimony.
    At trial, Harris' counsel questioned Doug Shuland as to
his activities on August 15, 1981.          Shuland testified that on
that date he and a friend went to Hamilton to visit his
grandmother.        When asked if he remembered attending the first
board meeting of the Go Devil Hotshot Service Company on that
same date, Shuland replied that he remembered the meeting but
not whether the meeting occurred on August 15.                It is this
testimony which         Harris   contends is blatantly perfurious.
However all we have is Harris' contention.           We can discern no
perjury from the face of the testimony and Harris has offered
no other evidence to support his claim that Shuland committed
periury   .
    Furthermore, Harris was found not guilty by the jury on
count I charging him with appropriating money belonging to
Shuland.       He was convicted on counts I1 and I11 charging him
with appropriating money belonging to Thomas Michael Briggs
and Elsie Oliva.          Whether Shuland was or was not at the
company's    first board meeting is entirely immaterial to his
conviction on these counts.
     Based upon the foregoing, we affirm the order of the
District Court denying Harris' motion for a new trial.

                                               -
                                f"         C   x
                                         Justice
                                                   1 d L \




                     ,
                     ,
We Concur:


  3-4- J, q     M
    Chief Justice
