No. 12382
I N THE SUPREME C U T O THE STATE O M N A A
OR F F OTN
1973
STATE O MONTANA,
F
P l a i n t i f f and Respondent,
-VS -
DAVID LEE STEWART,
Defendant and Appellant.
Appeal from: District Court of t h e Fourteenth J u d i c i a l D i s t r i c t ,
Honorable Nat A l l e n , Judge p r e s i d i n g .
Counsel o f Record :
For Appellant :
James Reno argued, B i l l i n g s , Montana
Joseph E. Mudd argued, B i l l i n g s , Montana
For Respondent :
Hon. Robert L. Woodahl, Attorney General, Helena,
Montana
J. C. Weingartner, A s s i s t a n t Attorney General, argued,
Helena, Montana
Roy C. Rodeghiero argued, Roundup, Montana
-
Submitted: February 28, 1973
Decided: MAR 1 6 1n
9
Filed : MAR 16 1973
M. Chief Justice James T. Harrison delivered the Opinion of the Court.
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This i s an appeal from the d i s t r i c t court of the fourteenth judicial
d i s t r i c t in Musselshell County with the Honorable Nat Allen presiding. The
defendant i s appealing from a jury verdict finding him guilty of the crime
of burglary in the second degree and a denial of the defendant's motion f o r
a new t r i a l .
From the record i t appears that John W. Owen resided on a ranch in
Musselshell County, and arrived home from work about 6:30 p.m. on July 6 ,
1972 and remained there unxil 7:OC p.m. A t t h i s time his home was in order,
n o t h i n g was missing. Owen then went t o his uncle's house and returned t o
his home a t approximately 9:45 p.m. Owen t e s t i f i e d t h a t he was going t o l i e
down and watch television before going t o bed, and a t t h i s point he realized
that his television was missing.
Owen changed clothes and was preparing t o go t o Roundup t o report the
t h e f t when he heard a knock a t his back door. Owen answered the knock; how-
ever, no one was there. Another knock was heard a t the front door which, when
answered, produced the defendant David Lee Stewart. Stewart, according t o
Owen's testimony, was "standing there with long straggly hair and a s h i r t with
red and white s t r i p e s on i t and he had a knife in his hands, or i t was mostly
concealed by the palms of his hands, over the sheath of the knife which the
blade was in, and the other palm of his hand had the handle of i t and i t
seemed t o be predominantly leveled t o me."
Stewart told Owen that Stewart's friend had stolen Owen's television
and stereo and had l o s t the keys t o his car. Stewart promised Owen t h a t i f
he could help locate the keys that he would return the stolen a r t i c l e s .
Stewart, with the aid of Owen's f l a s h l i g h t , began looking f o r the keys i n the
house--directing his investigation t o those areas where the television and
stereo were formerly located,
Owen went t o his uncle's house t o obtain another f l a s h l i g h t , however,
he also borrowed his uncle's shotgun. Owen then returned t o Stewart, who
was waiting by his automobile several hundred yards from Owen's house.
Stewart had s t i l l not located the keys t o his automobile. Holding the
shotgun in his hand, Owen stated that he did not believe Stewart's story,
and Owen wanted t o know who Stewart's friend was t h a t took his stereo and
television. Stewart refused t o identify his friend. Owen, t o demonstrate his
sincerity in getting t o the basis of the robbery, fired one barrel of his
shotgun, the volley of pellets being directed a t the defendant's side.
Stewart s t i l l was unwilling t o volunteer any information in regard to the
d e t a i l s of the robbery. Owen f i r e d another shotgun b l a s t , b u t the pel l e t s
were directed a t the other side of Stewart. Stewart s t i l l refused t o give
any information in regard t o the robbery. Owen procured the local law en-
forcement personnel who, with the help of Owen and his friend, apprehended
the defendant and recovered the television and stereo from the v i c i n i t y of
Stewart ' s automobi 1e.
Four issues a r e presented t o t h i s Court f o r review. First, did the
d i s t r i c t court e r r in granting the s t a t e ' s motion t o amend the charge in
the information from burglary in the f i r s t degree t o burglary? Second, did
the d i s t r i c t court e r r in proceeding with the t r i a l ? Third, did the d i s t r i c t
court e r r i n denying defendant's motion f o r a directed verdict? Fourth, did
the d i s t r i c t court e r r in refusing t o give defendant's offered instructions
Nos. 6 , 7 , 8, 9, 10, and l l ?
First, the d i s t r i c t court did not e r r in granting the prosecution's
motion t o amend the charges in the information from burglary in the f i r s t
degree t o burglary. As the record indicates, the defendant was charged with
burglary in the f i r s t degree. On the day s e t f o r t r i a l the prosecution
amended the charge t o burglary. The defendant objected t o t h i s , claiming
t h a t the substance of the charge was substantially changed. This objection
was overruled. Defendant now contends t h a t the court erred in permitting the
information t o be amended.
This Court has just recently held t h a t an information may charge a
defendant w i t h the crime of burglary. State ex r e l . Wilson v. District
Court, 159 Mont. 439, 498 P.2d 1217, 29 St.Rep. 523. In the instant case
the prosecution did just t h a t , leaving the question of the degree of bur-
glary to the jury. The question t o be decided by t h i s Court i s whether
the amended information charged a crime different i n nature from that
previously charged, and i f such amendment s u f f i c i e n t l y apprised the defend-
ant of the charges against him.
The crime charged i s the same, i , e . , burglary. The elements of the
crime are the same. The proof t o the crime would remain the same. The
only difference between the two charges would be the degree of the crime,
which must be determined by the jury. The amendment of the information did
not surprise the defendant and did not prohibit him from preparing his de-
fense against the crime.
Defendant claims he was prejudiced by the d i s t r i c t c o u r t ' s holding,
b u t he has failed t o show how t h i s alleged error affected any of his substan-
t i a l rights. The prosecution and defense both thoroughly investigated the
incident. As the transcript shows, a1 1 the evidence presented firmly shows
how and when the burglary transpired. All the evidence and testimony support
the prosecution Is case.
The original information charged the defendant with burglary i n the
f i r s t degree: t h a t i s , during the nighttime. I f t h i s charge had been allowed
t o stand the prosecution would have had t o prove beyond a reasonable doubt
t h a t the defendant comitted the burglary during the nighttime. If the prose-
cution could not do t h i s , or the jury believed t h a t the defendant did commit
the burglary b u t that he did the a c t during the daytime, then the defendant
would have to be acquitted of the charge against him. On a specific charge
of f i r s t degree burglary there may not be a conviction f o r second degree
burglary. State ex r e l . Wilson v. District Court, supra. Second degree burglary
is not a lesser included offense of f i r s t degree burglary.
Section 95-1 505(b), R.C .M. 1947, permits the charge against the accused
t o be amended a t any time provided " * * * no additional or different
offense i s charged and i f the substantial rights of the defendant a r e not
prejudiced." N additional or different offense was charged by allowing
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the amendment; the crime was the same, the offense was the same, and only
the degree of the crime was altered. The defendant has not shown how any
of his substantial rights were prejudiced, nor has he shown any surprise or
inabil i t y t o prepare a defense because of the d i s t r i c t c o u r t ' s holding.
A point was brought out in oral argument before t h i s Court t h a t i s
worthy of note. On the Friday before the t r i a l , the county attorney of
Musselshell County informed the defense counsel that the charge would be
amended from f i r s t degree burglary t o burglary.
The second issue raised on the appeal i s , did the t r i a l court e r r
i n proceeding with the t r i a l ? The defendant maintains that the d i s t r i c t
court erred in a1 lowing the information t o be amended and further erred
when the d i s t r i c t court proceeded with the t r i a l without giving the defend-
a n t the chance t o enter a plea t o the amended information.
Defendant did not enter a plea t o the charge of burglary, although
he had entered a plea of not guilty t o the charge of f i r s t degree burglary.
The defendant did n o t request the court t o allow him t o enter a plea t o the
amended charge. If the defendant believed t h a t he could have properly en-
tered a plea t o the charge of burglary, and i f he further believed t h a t the
f a i l u r e of the court t o have him enter a plea violated his substantial r i g h t s ,
Stewart should have brought this matter t o the attention of the d i s t r i c t court.
An elementary principle of law e x i s t s that s t a t e s i f a plea i s not entered
by the defendant the court will enter a plea of not g u i l t y f o r him. Section
95-1606(e), R.C.M. 1947. The defendant, i f he desired t o plead guilty, could
have pled guilty a t any time. Section 95-1902, R.C.M. 1947. N error was
o
committed in not allowing the defendant t o enter a plea t o the amended i n -
formation.
The third issue presented t o t h i s Court i s whether or not the t r i a l
court erred in denying defendant's motion for a directed verdict.
The rule with regard to the granting of motions for directed ver-
dicts was stated by this Court in State v. Yoss, 146 Mont. 508, 514, 409
"A directed verdict in a criminal case in this juris-
diction is given only where the State fails to prove
its case and there is no evidence upon which a jury
could base its verdict."
In considering whether the district court erred in refusing to grant
the defendant's motion for a directed verdict the evidence must be viewed in
a light most favorable to the prosecution. State v. Peschon, 131 Mont. 330,
310 P.2d 591.
Here witnesses testified as to the incidents that followed the dis-
covery of the missing articles. The district court was correct in submitting
the case to the jury. This Court also notes that when substantial evidence
in the district court record supports the verdict we will not disturb the
district court's findings on appeal. State v. Walker, 148 Mont. 216, 419
P.2d 300,
The fourth issue raised by the defendant is that the district court
erred in refusing to give defendant's offered instructions Nos. 6, 7, 8, 9,
10 and 11.
Proposed instruction No. 6 would have instructed the jury that de-
fendant was charged with burglary in the first degree. This is not true.
Defendant was charged with burglary and the degree of the crime was left for
the jury to determine,
Proposed instruction No. 7 would have instructed the jury that, as
a matter of law, they cannot find the defendant guilty of first degree burglary
but that they could find him guilty of second degree burglary. This is not
true. Defendant was charged with burglary--the jury had the duty to assess
the degree of the crime.
Proposed instruction No. 8 was an instruction regarding intent t o
commi t a felony. This instruction was previously covered by instructions
numbered 7 , 8, 9 and 10.
Proposed instruction No. 9 was given. Defendant cannot claim error
when one of his offered instructions is given,
Proposed instruction No. 10 would have instructed the jury t h a t even
i f they did find that defendant committed the burglary, they must return a
verdict of not guilty i f they believed the burglary was committed in the day-
time. This i s not true. Defendant was charged with burglary. The degree
of burglary had t o be decided by the jury.
Proposed instruction No. 11 would have instructed the jury t h a t de-
fendant was charged with f i r s t degree burglary and in order t o find him guilty
they must find t h a t the burglary was committed during the nighttime. This
was not true and i t was proper t o return a verdict of second degree burglary.
The Court finds t h a t the d i s t r i c t court did not e r r i n refusing t o
give these instructions.
The judgment is affirmed.
M concur:
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Asso i a t e Justices
Mr. Justice Frank I. Haswell and Mr. Justice Gene B. Daly dissenting:
W respectfully dissent t o the view of the majority.
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While the majority seem t o t a c i t l y recognize t h a t Montana s t a t u t e s
prohibit an amendment of the charge i n a matter of substance a f t e r defend-
ant enters his plea, they reason t h a t the difference between a charge of
f i r s t degree burglary and second degree burglary i s simply a matter of
form. The d i f f i c u l t y with t h i s approach i s that i t does n o t square w i t h
Montana s t a t u t e s which t r e a t the two as separate, independent and d i s t i n c t
crimes. The essential elements of the two crimes a r e d i f f e r e n t , f i r s t
degree burglary requiring commission in the nighttime, while second degree
burglary requires comi ssion in the daytime. Section 94-902, R.C.M. 1947.
A person cannot be convicted of second degree burglary under a charge of
f i r s t degree burglary, the former not being a lesser included offense in
the l a t t e r . State v . Copenhaver, 35 Mont. 342, 89 P. 61, cited with approval
in State v. Board, 135 Mont. 139, 337 P.2d 924; State ex r e l . Wilson v .
Dist. C t . , 159 Mont. 439, 498 P.2d 1217. The punishment f o r the two crimes
is d i f f e r e n t , one to f i f t e e n years imprisonment in the s t a t e prison f o r f i r s t
degree burglary as compared with not more than f i v e years imprisonment f o r
second degree burglary. Section 94-903, R.C.M. 1947. Are these differences
simply matters of form without substance?
Additionally, the majori t y hold t h a t the defendant was not prejudiced
by what was done here because no substantial r i g h t of his was violated. In
our view, this rationale ignores the who1 e constitutional and statutory frame-
work of f a i r t r i a l guarantees on which our system of criminal justice i s
bottomed. To p u t the matter in perspective, the issue f o r review in t h i s case
is not the ultimate g u i l t or innocence of the defendant, b u t whether he had a
fair trial. Here on the day of t r i a l the defendant was stripped of a clear
and absolute defense t o the original charge by reason of the amendment, and
denied a continuance t o prepare a defense t o the amended charge. In our view,
f a i r t r i a l guarantees were sacrificed on the a l t a r of t r i a l convenience and
expediency in this case.
For these reasons, w would grant the defendant a new t r i a l .
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