## Facts

- John Patrick Hembd was charged with negligent arson under § 45-6-102(1)(a), MCA, based on events at the Billings Sheraton Hotel.
- On February 13, 1981, Hembd remained in the hotel lobby for about two hours and was asked by a security guard to leave.
- Employees observed Hembd outside near a fire exit, standing with his back to doors leading into the building.
- Shortly after Hembd walked away, employees discovered a styrofoam donut wrapper burning on top of a heater near the wall.
- Employees extinguished the fire and caught up with Hembd nearby; the State presented evidence that he stated, “You didn’t see anything. You can’t prove anything. You guys are crazy.”
- At trial, Hembd admitted he was drunk but denied setting the fire.
- The jury received instructions allowing four verdict options: felony negligent arson, attempted felony negligent arson, misdemeanor negligent arson, and attempted misdemeanor negligent arson.
- The jury found Hembd guilty of “attempted misdemeanor negligent arson,” and he appealed.

## Issues

1. Whether “attempted misdemeanor negligent arson” (and “attempted felony negligent arson”) is a cognizable offense under Montana law given the mental-state requirements for attempt and negligence.
2. Whether a conviction for a nonexistent attempt offense operates as an implied acquittal of the charged negligent arson offenses, barring retrial under double jeopardy principles.

## Decision

- The Montana Supreme Court reversed the conviction.
- The court held that “attempted misdemeanor negligent arson” and “attempted felony negligent arson” are nonexistent crimes under Montana law.
- The court held that the jury’s verdict on the nonexistent attempt offense constituted an implied acquittal of both felony negligent arson and misdemeanor negligent arson.
- Because of the implied acquittal, retrial on felony or misdemeanor negligent arson was barred.

## Legal Principles

- Under Montana’s attempt statute, attempt requires that the defendant act “purposely” and take a substantial step toward committing the target offense.
- An attempt offense is incompatible with a crime whose culpability element is negligence, because it would require purposeful conduct directed at being negligent.
- When a jury is instructed on valid offenses and a purported lesser “attempt” that is not a crime, and the jury convicts on the nonexistent option instead of the valid offenses, the verdict functions as an implied acquittal of the valid offenses.
- After an implied acquittal, double jeopardy principles bar retrial on the offenses the jury necessarily rejected.

## Conclusion

The court set aside the conviction because Montana law does not recognize attempted negligent arson, and it held that the jury’s selection of that invalid verdict necessarily acquitted the defendant of felony and misdemeanor negligent arson, precluding any retrial on those charges.


State v. Hembd, 197 Mont. 438, 643 P.2d 1171 (Mont. 1982)