                                 No.    13879

         I N T E SUPREME COURT O F THE STATE OFWNTANA
              H

                                       1977



STATE O MONTANA,
       F

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

         -vs-

RALPH EUGENE McBENGE,

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



Appeal from:      D i s t r i c t Court of t h e S i x t e e n t h J u d i c i a l D i s t r i c t ,
                  Honorable A. B.                   Judge p r e s i d i n g .

Counsel o f Record:

     For Appellant:

         Claude I. Burlingame a r q u e d , F o r s y t h , Montana

     For Respondent :

         Eon. 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 , P4ontana
         Mike McGrath a r g u e d , A s s i s t a n t A t t o r n e y G e n e r a l ,
          Helena, Montana
         John S. F o r s y t h e , County A t t o r n e y , F o r s y t h , Montana



                                                  Submitted:          December 8 , 1977

                                                      Decided:       -;AN 1 8 19%
Filed:      -L   8 \gT2
Mr. Justice John C. Harrison delivered the Opinion of the
Court.




explosives resulting in a prison sentence of ten years.
     No trial transcript has been submitted on appeal, and
there is not a clear statement of facts by either party.
The attack centers around the statute, the Information, and
the affidavit in support of the state's motion for leave to
file the Information.
    Here, the affidavit and Information are the center of
contention.   The affidavit stated:
    "Comes now John S. Forsythe, duly elected and qualified
    Rosebud County Attorney, after being first duly sworn
    upon his oath, deposes and informs the Court, as follows:
    "That according to the statement of Charles E. Tallbull
    of Ashland, Montana, on February 12, 1977 at approximately
    3 : 4 5 P.M. the defendant Ralph Eugene McBenge told the
    said Charles Tallbull that Tallbull must call the
    defendant's wife Delores McBenge or McBenge would blow
    them up. Charles Tallbull further states that he made
    several phone calls at the defendant's order and told
    a tribal policeman Frank Long Jaw to leave the area where
    Tallbull and a Beatrice Atkinson were held hostage in and
    around a trailer belonging to Ralph Carlott. According
    to Tallbull, the defendant further told Tallbull that if
    the defendant's wife was not back home by eight o'clock
    that day, February 12, 1977, the defendant was going to
    blow everyone up. According to Tallbull, Beatrice
    Atkinson and Ralph Carlott, who came to the trailer during
    the afternoon, were allowed to leave on the condition
    that Tallbull stayed. Charles Tallbull further states
    that while the defendant drove back and forth in his car
    in the driveway, Tallbull made an escape to the back of
    the trailer and up a hill.
    "According to Deputy Sheriff Thomas Skinner, Skinner was
    called to the scene and observed McBenge leaving in his
    vehicle following the escape of Tallbull. Skinner states
    that the McBenge vehicle was driven first to the front of
    the Club Buffet Bar in Ashland, Montana and then to the
    front of the Ashland Bar in Ashland. Skinner relates
    that the several deputy sheriffs on the scene cleared the
    two bars of patrons and blocked traffic under Skinner's
    direction. According to Deputy Skinner, Skinner blocked
    the escape of the defendant's vehicle by parking his
    vehicle at the rear of the defendant's vehicle, thus
    blocking a rear movement, while the bar blocked a forward
    movement of the defendant's vehicle. According to
    Skinner, the defendant made a threat concerning the power
    of a bomb which he had and further demanded that his
    wife be returned to him. Deputy Skinner states that
    after a period of surveyance lasting approximately
     two hours, the defendant went to sleep or lost
     consciousness from the previous consumption of
     alcohol and was arrested in his car in front of the
     Ashland Bar with components of an explosive Kinepak
     commercially manufactured explosive device connected
     with a blasting cap and two wires, one attached to a
     dry cell battery. The directions for use on the
     Kinepak containers and a visual observation of the
     firing mechanism and connected vessel indicated that
     the various bomb components had been prepared to be
     fired and activated by a touching of the second wire
     to the battery.
          "This Information respectfully prepared for the
     Court this 15th day of February, 1977."
     The Information charged the following (omitting the
list of witnesses):
     "John S. Forsythe, County Attorney of Rosebud County,
     deposes and says that on or about the 12th day of
     February, 1977, at Ashland, Rosebud County, Montana,
     the above named Defendant committed the offense of
     Sale or Manufacture of Maxim Silencers and Various
     Explosives for Wrongful Use, A Felony as specified in
     section 94-8-223 R.C.M. 1947, as amended.
     "The facts constituting the offense are:
    "Count I: That the defendant Ralph Eugene McBenge
    had in his possession a bomb or explosive compound
    with the intent that the said bomb or explosive
    compound shall be used for the injury or destruction
    of a trailer home which is the property of Ralph
    Carlat;
     "Count 11: That the defendant Ralph Eugene McBenge had
     in his possession a bomb or explosive compound with the
     intent that the said bomb or explosive compound shall
     be used for the injury or destruction of the Ashland
     Bar, the property of Vivian Vivian;
    "Count 111: That the defendant Ralph Eugene McBenge
    had in his possession a bomb or explosive compound with
    the intent that the said bomb or explosive compound
    shall be used for the destruction of Charles E.
    Tallbull;
    "Count IV: That the defendant Ralph Eugene McBenge
    had in his possession a bomb or explosive compound
    with the intent that the said bomb or explosive com-
    pound shall be used for the injury or destruction of
    Deputy Sheriff Thomas Skinner;
    "Count V: That the defendant Ralph Eugene McBenge
    had in his possession a bomb or explosive compound with
    the intent that the said bomb or explosive compound
    shall be used for the injury or destruction of Ralph
    Eugene McBenge."
    Defendant presents six issues for review which can be
consolidated into five:
     1.   The sufficiency of the affidavit;
     2.   The sufficiency of the information;
        3.   The constitutionality of section 94-8-223, R.C.M.
1947;
        4.   Whether section 94-8-223 had been impliedly repealed;
and
        5.   The constitutionality of section 94-8-225, R.C.M.
1947.
      The first issue concerns the sufficiency of the affidavit.
The Information generally charges defendant with the possession
of a bomb or explosive compound with the intent to injure two
buildings (the trailer home of Ralph Carlat and the Ashland
Bar) and three persons (Charles Tallbull, Deputy Sheriff
Skinner, and defendant himself).
      Defendant argues, without citing any authority, that the
affidavit lacks probable cause to support these charges because
of two basic deficiencies:
        (1) As to all 5 counts, lack of reference to the
possession by defendant of explosives in the vicinity of three
persons and two occupied structures; and
        (2) As to the buildings, lack of reference to lack of
consent to destruction of the property by the owners.
      The state argues that the affidavit describes in detail
the continuing course of defendant's conduct, including
various threats that he would blow everything up if his wife
was not brought to him, continuous police surveilance for
over two hours, and his final arrest in the possession of a
commercially manufactured explosive set to be fired by the
touching of one wire to a dry cell battery.      The state also
argues that objection by the owner to destruction of his
property has never been an element of the offense.
      Section 95-1301, R.C.M. 1947, provides:
      "Leave to file information. (a) The county attorney
      may apply directly to the district court for permission
      to file an information against a named defendant. The
      application must be by affidavit supported by such
      evidence as the judge may require. If it appears that
      there is probable cause to believe that an offense has
      been committed by the defendant the judge shall grant
      leave to file the information, otherwise the application
        shall be denied."
        Here the district judge, on reading the affidavit, had
probable cause to believe the offenses charged were committed
by defendant.
        The second issue concerns the sufficiency of the Informa-
tion.     Defendant alleges that the Information should have
been quashed by the District Court because:
        (1) It fails to state a public offense; and
        (2) It is not framed in such language that a person of
common understanding would know what is intended.
     While each count of the Information alleges that
defendant had the intent to destroy either a person or property,
defendant complains that the Information fails to specify that
the intent was "unlawful, willful, purposeful, or knowing."
Defendant argues, again without reference to any authority,
that bare intent to destroy property, without further
specification, would not constitute a crime, and thus, to
merely allege intent to destroy persons or property does not
sufficiently show what conduct is prohibited.    For example,
defendant maintains that the destruction of a building with
the consent of the owner would not be criminal conduct.
     When the state charges that on a certain day at a certain
time, defendant had possession of explosives with intent that
the same be used for the destruction of named persons and
property, clearly the facts constituting the offense are
stated so that a person of common understanding would know
what is intended.    Section 95-1503(3), R.C.M. 1947.
     The third issue is directed at the constitutionality
of section 94-8-223, R.C.M.   1947.   Section 94-8-223, at the
time of this action, provided:
     "Sale or manufacture of Maxim silencers and various
     explosives tor wrongful use a felony. Any person who
     shall make, manufacture, compound, buy, sell, give away,
     offer for sale or to give away, transport, or have in
     possession any Maxim silencer, bomb, nitroglycerin,
     giant, oriental, or thunderbolt powder, dynamite,
     ballistite, fulgarite, detonite, or any other explosive
       compound, or any inflammable material, or any
       instrument or agency, with intent that the same shall
       be used in this state or anywhere else for the injury
       or destruction of public or private property, or the
       assassination, murder, injury, or destruction of any
       person or persons, either within this state or elsewhere,
       or knowing that such explosive compounds or such
       materials, instruments, or agencies are intended to be
       used by any other person or persons for any such purpose,
       shall be guilty of a felony, and upon conviction thereof
       shall be punished by imprisonment in the state prison
       for not less than five years nor more than thirty years,
       or by a fine of not less than one thousand dollars nor
       more than twenty thousand dollars, or by both such fine
       and imprisonment."
       Defendant argues this statute is unconstitutionally
vague and ambiguous.    He relies upon this language from Clack
v. Public Service Commission (1933), 94 Mont. 488, 503, 22
P.2d 1056, quoting Connally v. General Construction Co., 269
U.S. 385:
       " * * * a statute which either forbids   or requires the
       doing of an act in terms so vague that   men of common
       intelligence must necessarily guess at   its meaning and
       differ as to its application, violates   the first
       essential of due process of law. * * *   "
       Again, the vagueness complained of is that the statute
does not specify that the destruction of person or property
be without the consent of the victims.
       The state argues the purpose of criminal law is to
protect individuals and public interests, section 94-1-102(1),
R.C.M. 1947, and that "a private person may not excuse a
criminal act."   Gilbert v. United States, 359 F.2d 285 (9th
Cir. 1966).
       Issue four concerns the implied repeal of section 94-8-
223.    Defendant cites no authority, but argues that recent
legislation dealing with criminal conduct by use of
explosives impliedly repealed section 94-8-223.     Section 94-6-
105 and 69-1932, R.C.M.   1947, are set forth as follows:
       "94-6-105. Possession of explosives. (1) A person
       commits the offense of possession of explosives if he
       possesses, manufactures or transports any explosive
       compound or timing or detonating device for use with any
       explosive compound or incendiary device, and:
       "(a) has the purpose to use such explosive or device to
       commit any offense; or
    " (b) knows that another has the purpose to use such
    explosive or device to commit any offense.
    "(2) A person convicted of the offense of possession of
    explosives shall be imprisoned in the state prison for
    any term not to exceed twenty (20) years."
    "69-1932. Possession of destructive device or explosive
    with felonious intent--penalty. (1) Every person who,
    with intent to commit a felony, has in his possession
    any destructive device or any-explosive on      a
                                                 public
    street or highway, in or near any theater, hall, school,
    college, church, hotel, other public building, or
    private habitation, in, on, or near any aircraft, railway
    passenger train, car, vessel engaged in carrying
    passengers for hire, or other public place ordinarily
    passed by human beings is guilty of a felony, and shall
    be punishable by imprisonment in the state prison for a
    period of not more than ten (10) years."
    We note that all of these sections, including some
language from section 94-8-223, have been correlated by the
1976 legislature into the present sections 94-8-209.1, 209.2,
209.3, 209.4, and 209.5, R.C.M. 1947.   The former section
94-8-223 was expressly repealed by the 1976 legislature, but
the repeal was not effective at the time of the conduct
charged.
    Defendant argues that since the sections overlap, it is
only logical to conclude that the more recent statutes show a
legislative intent to repeal the older statute.
    The state argues that generally statutes will not be held
to be repealed by implication, Wymont Tractor   &   Equipment Co.
v. Unemployment Compensation Commission (1954), 128 Mont. 501,
278 P.2d 208, unless they are "wholly inconsistent and
incompatible". Teamsters Local 45 v. Montana Liquor Control
Board (1970), 155 Mont. 300, 471 P.2d 541.   And where, as
here, one statute is more specific than the other, they are
to be read together and harmonized if possible.         Stadler v.
City of Helena (1912), 46 Mont. 128, 127 P. 454.        While there
is certainly overlap among the statutes relating to criminal
conduct by the use of explosives, section 94-8-223 is the
most specific in describing the offense, the type of
explosive prohibited, and the location of the explosive.         We
find no merit to this argument.
     The last issue concerns the constitutionality of section
94-8-225, R.C.M. 1947.        Finally, defendant challenges the
constitutionality of section 94-8-225, which was used as a
jury instruction at the trial.        This section provided:
     "Sale and manufacture of Maxim silencers and various
     explosives for wrongful use a felony--possession
     presumptive evidence of what. The possession of any
     Maxim silencer or bomb of any kind, or chemical
     compounds intended only for the destruction of life
     or property, shall be presumptive evidence that the
     same are intended to be used in the destruction of or
     injury to property or life, within the meaning of this
     act.   I'



     Defendant contends that this presumption shifts the
burden of proof of lack of intent to the defendant, in
contravention of the due process clause of the Fourteenth
Amendment.       The recent case of Patterson v. New York (1977),
     U.S.          ,   97 S.Ct. 2319, 53 L Ed 2d 281, discussed a
line of cases regarding the shifting of the burden of proof
in a criminal case, such as In re Winship (1970), 397 U.S.
358, 90 S.Ct. 1068, 25 L Ed 2d 368, and Mullaney v. Wilbur
(1975), 421 u.S. 684, 95 S.Ct. 1881, 44 L Ed 2d 508.        The
Supreme Court in Patterson concluded:
    "Mullaney surely held that a state must prove every
    ingredient of an offense beyond a reasonable doubt,
    and that it may not shift the burden of proof to the
    defendant by presuming that ingredient upon proof of
    the other elements of the offense. * * * Such shifting
    of the burden of persuasion with respect to a fact
    which the State deems so important that it must be
    either proved or presumed is impermissible under the
    Due Process Clause." 53 L Ed 2d 295.
Defendant argues that this language is controlling because
the effect of the statute is to shift the burden of showing
lack of intent to defendant upon the mere showing of
possession of the explosive device.
     Patterson and other cases have permitted facts to be
proven by presumptions if:
     (1) There is a "rational connection" between the fact
proved and the ultimate fact presumed, Tot v. United States
(1943), 319 U.S. 463, 467, 63 S.Ct. 1241, 1245, 87 L Ed 1519;
     (2) It can be said that the presumed fact "is more
likely than not" to flow from the proven fact.
    The most recent statement by the Supreme Court on this
issue came in Barnes v. United States (1973), 412 U.S. 837,
93 S.Ct. 2357, 37 L Ed 2d 380.    The Court in Barnes upheld a
presumption used as a jury instruction, that possession of
recently stolen property, unexplained, was known by the person
in possession to have been stolen.     The Court held:
     " * * * What has been established by the cases,
     however, is at least this: that if a statutory
     inference submitted to the jury a2s sufficient to
     support conviction satisfies the reasonable-doubt
     standard (that is, the evidence necessary to invoke the
     inference is sufficient for a rational juror to find
     the inferred fact beyond a reasonable doubt) as well as
     the more-likely-than-not standard, then it clearly
     accords with due process." 37 L Ed 2d 386.
In this case the proven fact is:     "The possession of any
Maxim silencer or bomb of any kind, or chemical compounds
intended only for the destruction of life or property".
     The inferred fact is:   " * * *    that the same are
intended to be used in the destruction of or injury to
property or life, within the meaning of this act."
     Ultimately, the issue here is the relationship between
proven fact and the inferred fact.     At the strictest due
process standard, if the existence of the proven fact would
convince a rational juror of the existence of the inferred
fact beyond a reasonable doubt, the statute comports with
due process.
     In considering the above issue we find that although
much of appellant's argument was directed at the alleged
failure on the part of the state to prove intent, counsel
failed to present to the Court a transcript of the trial
below.   Without that transcript it is impossible for this
Court to consider his argument that the jury did not follow
the court's instruction No. 11.    To now argue that the jury
might have decided the case on some other theory is untenable.
This Court will not reverse the findings of the jury and
    judgment of the trial court without a more adequate record
    than was presented in this case.

          Judgment affirmed.




    We Concur:
.    ---7                    /




                  I      I

     Hon. R. D. ~ c P h i l l i p s , District
     Judge, sitting in place of Mr.
     Justice Frank I. Haswell,
