## Facts

- Charles McCartney and James T. Johnson had a 1970 cattle-sharing agreement involving calves branded with Johnson’s 3‑Lazy T brand; the arrangement ended in 1974.
- In 1975, a cow bearing Johnson’s brand was found on land adjacent to McCartney’s former leased property.
- John Stahl, president of the Ayers Hutterite colony, contacted McCartney about buying the cow; McCartney agreed to the sale.
- McCartney prepared a bill of sale dated November 26, 1976, signed Johnson’s name as “seller,” signed his own name as “witness,” and drew a brand on the bill of sale similar to Johnson’s brand.
- The colony agreed to provide McCartney some beef as consideration for the sale.
- After noticing the cow’s brand did not match the brand drawn on the bill of sale, Stahl contacted the brand office and then called McCartney; McCartney told him to “put on the other brand.”
- The colony sold the cow at a livestock market for $241; Johnson later reported he had not sold the cow, leading to investigation and McCartney’s arrest.
- After a bench trial, McCartney was convicted of felony theft and felony forgery and sentenced to five years’ imprisonment with four years suspended.

## Issues

1. Whether felony theft required proof that McCartney physically took or carried away the cow, or whether executing an unauthorized bill of sale transferring an interest sufficed under the theft statute.
2. Whether sufficient evidence supported felony forgery, including intent to defraud, where McCartney signed the owner’s name to the bill of sale and used a similar brand marking.
3. Whether McCartney validly waived his constitutional right to a jury trial despite claimed irregularities in the waiver process.

## Decision

- The court affirmed the convictions for felony theft and felony forgery and affirmed the sentence.
- The court held that the theft statute covered unauthorized transfers of title or interest and did not require common-law “taking and carrying away.”
- The court held that fraudulent intent for forgery could be inferred from circumstantial evidence, including McCartney’s conduct and statements.
- The court held that McCartney effectively waived a jury trial based on the record and his participation in a bench trial with counsel, despite procedural defects.

## Legal Principles

- Modern theft statutes may define theft to include obtaining or exerting unauthorized control by “sale, conveyance, [or] transfer of title to, interest in, or possession of property,” not merely physical asportation.
- A defendant can “obtain” property by bringing about a transfer of an interest or possession to another, even without personal physical possession or delivery.
- Intent to defraud for forgery may be proved by circumstantial evidence, including knowledge of ownership indicia, the act of signing another’s name, use of misleading identifiers, and post-transaction statements.
- A jury-trial waiver may be found effective from the total record, including representation by counsel and proceeding to a bench trial without timely objection, even if formal waiver procedures were imperfect.

## Conclusion

The court upheld McCartney’s theft and forgery convictions because the theft statute reached unauthorized transfers of title or interest accomplished through a false bill of sale, intent to defraud was supported by circumstantial evidence, and the record showed a knowing and voluntary choice to proceed without a jury.


State v. McCartney, 585 P.2d 1321 (Mont. 1978)