                                                No.    87-254

                    I N THE SUPREME COURT O F T H E S T A T E O F MONTANA

                                                      1987




T H E S T A T E O F MONTANA,

                      P l a i n t i f f and R e s p o n d e n t ,
          -vs-

KATHRYN D I A N N E TAYLOR,           a / k / a NAOMI
D. SCHIMETZ,

                      D e f e n d a n t and A p p e l l a n t .




A P P E A L FROM:     D i s t r i c t C o u r t of t h e N i n e t e e n t h J u d i c i a l D i s t r i c t ,
                      I n and f o r t h e C o u n t y of L i n c o l n ,
                      T h e H o n o r a b l e R o b e r t H o l t e r , Judge presiding.

COUNSEL O F RECORD:

          For A p p e l l a n t :

                      D a v i d W.    Harman,      Libby,         Montana

          For R e s p o n d e n t :

                      Hon.    Mike Greely,            Attorney General,              Helena, Montana
                      John P a u l s o n , A s s t . A t t y . G e n e r a l , H e l e n a
                      Susan L o e h n , C o u n t y A t t o r n e y , L i b b y , M o n t a n a
                      S c o t t E. Spencer, D e p u t y C o u n t y A t t o r n e y , L i h h y




                                                      S u b m i t t e d on B r i e f s :   Aug.     27,    1987

                                                         Decided:        November 5, 1987

Filed:
           illnrls - 1987
                                         @ *&G
                                                                             I


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


      Kathryn Dianne Taylor, sometimes known as Naomi D.
Schimetz, now in her mid-40's is a social failure.        That
would be a verdict of society, or of any doctor, banker,
lawyer or judge reviewing her case. She has been in and out
of jailhouses, more or less constantly since 1973.         Her
crimes are not violent, involving the issuance of bad checks
or forgeries. Though arrested in 1975 for DUI, there is no
record here of drug or alcohol abuse, but she is addicted to
tobacco.    She is probably a liar, or at least has fantasies
about her past. Though she claims to have worked as a nurse
in Missoula, and as a waitress or at unskilled jobs, she has
little or no work record.
      She was released from the Women's Correctional Center at
Warm Springs, Montana, on November 22, 1985. She turned up
in Libby, Montana, on May 29, 1986, when she was convicted of
issuing bad checks, a theft cha-rge, which resulted in three
months in jail. On November 18, 1986, again in Libby, she
was convicted of issuing bad checks and given six months on
each count with all but 30 days suspended. On February 3,
1987, again in Libby, she was convicted of issuing bad checks
and given 30 days in jail.         For reasons unclear, her
post-conviction report says she was denied "work fare."
     This case involves her activities beginning on March 5,
1987.    Between then and March 15, she purchased meals and
other merchandise from Libby merchants by passing off savings
withdrawal slips as checks which the merchants cashed. She
negotiated 9 such slips, for an overall total of $139.20.
Three such withdrawal slips, typical of all the rest follow:
    - ' 4                     W I THDR AWAL          I          ptesented b y the uvings customel in person or by mail.
                                                          must'~e




              DEDUCT ABOVE SUM FROM MY SAVINGS ACCOUNT
                           ON DEPOSIT WITH:                                                                                  R3




     --


                                                         must be presented by_ the savtngs customer ~n perron or b y matt.



                                                                                       Date
                                                                                                                     a    1 9 2 '           I

                                                                                                                   -
                                                                                                                   -93 285
                                                                                                                      92 1

                                                                        '   -/


                          ON DEPOSIT WITH
                                                                              -                                              R4
      C
     .OD
            8 First National Bank in Libby
                         LIBBY. MONTANA      50023



           t:oq 2   Lo 2s 5 ~ l r 5 l ~ ~ 5 ~ 3 d Y ' g
                                                              -. -




                                                          -
                                                     must be presented bysthe savtngs customer ~n person or by mall



                                                                                     Date ]fi;?MMf4            7         1 9 8 1

                .    ,
                                                                                                             --    0 3 285
                                                                                                                    92 1

                                                                                           Dollars     $   /5* fiId
                                                                                                             @d                     1

                                                                                                                                        I
                                                                                                                                        I
                                 97- r 0 0                 r-
            0                                                               7fit;&!
                                                                             7
                                                                                                                                    1
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                                                                                           /
\
     2          First National Bank in Libby
                         LIBBY. MONTANA     59-3
                                                               sumRt        , -,



                                  273-.7233
I


           1:092L028SL1:           ,                            .-IS,
                                                                                   0 70        1"OOOO@B            l@G$Btlt
     Kathryn Dianne Taylor was arrested on March 22, 1987,
and charged in the District Court, Nineteenth Judicial
District, Lincoln County, with issuing bad checks by common
scheme, a felony, under S 45-6-316, MCA. Her case was tried
without a jury and the District Court made findings of fact
and conclusions of law to the effect that the withdrawal
slips so negotiated to merchants were "an order for the
payment of money" making her guilty under the statute. She
was sentenced to the maximum provided for such a common
scheme felony--ten years in the Women's Correctional Center
at Warm Springs.    Her court-appointed counsel has appealed
the conviction to this Court, contending that the withdrawal
slips negotiated by her were not in any case a "check or
order" and thus she was improperly convicted.
     Our statutes define the crime of theft as follows:
     45-6-301.   Theft....    (2) a person commits the
     offense of theft when he purposely or knowingly
     obtains by threat or deception control over the
     property of the owner and:
    (a) has the purpose of depriving the owner of the
    property;. ..
     On the other hand, the crime of issuing a bad check is
defined:
     45-6-316.   Issuing a bad check.    (1) A person
     commits the offense < issuing a bad check when he
                         f
     issues or delivers a check or other order upon a
     real or fictitious depository for the payment of
     money knowing that it will not be paid by the
     depository.


     (3) A person convicted of issuing a bad check
    shall be fined not to exceed $500 or be imprisoned
    in the county jail not to exceed 6 months, or both.
    If the offender is engaged in issuing bad checks
    which are part of a common scheme ...   he shall be
     fined, not to exceed $50,000 or be imprisoned in
     the state prison not to exceed 10 years, or both.
     Without doubt, the actions of Kathryn Dianne Taylor in
negotiating withdrawal slips as checks was a deception which
constituted theft under $ 45-6-301, MCA.     However, if the
withdrawal slips as presented could qualify "as a check or
other order" and the misdemeanors which Kathryn Dianne Taylor
had committed were part of a common scheme, she could be
convicted of a felony, notwithstanding the total amount
involved in the 9 withdrawal slips is less than $300. The
State chose the felony charge for obvious, though unstated
reasons:   a felony conviction would remove Kathryn Dianne
Taylor from the streets of Libby (and its county jail) for a
protracted period; the county would be spared the expense of
her continuing incarceration; and her felony conviction would
remove her continuing danger to merchants who could not
discern between a withdrawal slip and a check.
     It should be noted, however, that the Libby bank which
issued the withdrawal slip forms would honor as checks such
forms as negotiated by Kathryn Dianne Taylor, had she had
sufficient funds in the Libby bank. Nonetheless, on each of
the three rejection forms in evidence authored by the bank in
returning these purported checks, the bank noted on each "not
a check. "
     The question for us to decide in this case, therefore,
is whether the withdrawal slips negotiated by Kathryn Dianne
Taylor, as checks constitute in each case, "a check or other
order" within the purview of our statute defining the crime
of issuing a bad check.      If so, her conviction must be
upheld; if not, a reversal is in order.
     How is this Court to construe statutes which define
criminal offenses? We are told in S 45-1-104, MCA, that no
conduct constitutes an offense unless it is described "as an
offense in this code or in another statute in this state."
We are further told that the general purposes of the
provisions governing the definition of offenses are "to
safeguard conduct that is without fault from condemnation as
criminal, to give fair warning of the nature of the conduct
declared to constitute an offense, and to differentiate
unreasonable grounds between serious and minor offenses."
Section 45-1-102, MCA.    One charged with crime has a right
"to demand the nature and cause of the accusation." Art. 11,
S 24, 1972 Mont. Const. This Court has stated that a statute
which carries a penalty, making its violation a crime, should
be expressed with a degree of certainty such that what must
be observed or done may be understood without relying on
inferences. State v. Salina (1944), 116 Mont. 478, 154 P.2d
484. We have said that no interpretation should be given any
word which would make an act a crime unless it is clear the
legislature intended that interpretation should be given the
word.    State v. Duran (1953), 127 Mont. 233, 259 P.2d 1051.
Yet there could be no doubt that if the statute defining the
offense of issuing a bad check is applicable here, the State
cannot be faulted for pursuing a felony conviction instead of
misdemeanor conviction. See State v. Evans (1969), 153 Mont.
303, 456 P.2d 842.
      The District Court concluded that the documents tendered
by Kathryn Dianne Taylor for savings withdrawal slips were
written to make them appear to be checks. The documents were
offered as checks and accepted as checks by the various
businesses.      The court concluded that the documents
constituted an order for the payment of money.      It further
concluded that the documents had all the elements required by
the bank to be paid provided the maker had a valid account
with the bank.
     Our criminal statutes do not define either a "check" or
an "order" but one or the other is a necessary element to a
crime under S 45-6-316, MCA.    In that circumstance, we may
turn to the provisions of the Uniform Commercial Code for
guidance. See Faulkner v. State (Alaska 1968), 445 P.2d 815.
     Under the definitions of instruments in the Uniform
Commercial Code, withdrawal slips in this case are neither a
"check" nor an "order" for the payment of money.     To be a
"check," the instrument must contain an unconditional promise
or order to pay a sum certain in money, and it must be
payable to order or to bearer.    Section 30-3-104, MCA. An
instrument which complies with the requirements of S 30-3-104
is a check, if it is a draft drawn on a bank and payable on
demand.      It is a "draft" if it is an order, S
                 .
30-3-104 (2)(a)(b) An "order" is a direction to pay and must
be more than an authorization or request. It must identify
- person - pay with reasonable certainty.
the           to                                       Section
30-3-102 (b), MCA.
     When we examine the withdrawal slips in this case, we do
not find therein any promise or order to pay any person. In
other words, it is not "payable to order or bearer."       The
names of the purported payees under these checks appear under
the account number, a space that is obviously intended for
the name in which the account is held. The writing itself is
not an order to pay but an instruction to the bank to "deduct
the above sum from my savings account." This language does
not meet the requirement that an "order" must be a direction
to pay. See People v. Norwood (1972), 26 Cal.App.3d 148, 103
Cal.Rptr 7 (a savings account draft is not a "check").
     The laws defining criminal offenses are not rubberbands
to be stretched to cover any social purpose, however worthy.
It would be an affront to our honor as jurists to construe
these instruments for criminal purposes as anything but
withdrawal slips, and to designate them as checks or orders
for the payment of money. The findings of the District Court
reveal the deception in which the defendant engaged to pass
off these instruments: that others had accepted them, that
she was using these slips until she got her checks, that she
was in the process of moving and had been unable to transfer
funds from her savings account to her checking account. She
was obtaining the property of others through deception, a
theft, under S 45-6-301, MCA.    The prosecution should have
occurred under the statute defining the offense of theft.
     Because withdrawal slips negotiated through deception
are not checks or orders for the payment of money, the
conviction in this case of Kathryn

                                          Justice
We Concur:   I
