No. 14871
I N THE SUPREME COURT OF THE STATE OF M N A A
OTN
1979
THE STATE OF MONTANA,
P l a i n t i f f and R e s p o n d e n t ,
vs .
DIONISIO WILLIAMS,
Defendant and A p p e l l a n t .
Appeal from: D i s t r i c t Court o f t h e ~ h i r t e e n t h u d i c i a l D i s t r i c t ,
J
H o n o r a b l e C. B. S a n d e , J u d g e p r e s i d i n g .
C o u n s e l o f Record:
For Appellant:
M i c h a e l J. Whalen a r g u e d , B i l l i n g s , Montana
F o r Respondent:
Hon. 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 , Montana
J o h n Maynard 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 , H e l e n a ,
Montana
H a r o l d F. H a n s e r , County A t t o r n e y , B i l l i n g s , Montana
R o b e r t Waller a r g u e d , Deputy County A t t o r n e y , B i l l i n g s ,
Montana
Submitted: December 1 0 , 1979
Decided : - - - - .,p A,-
Filed: - :m
Clerk
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
Defendant Dionisio (Danny) Williams was found guilty
of two counts of conspiracy by a jury in Yellowstone County
District Court. The Honorable C. B Sande entered judgment of
.
conviction and sentenced Williams to five years on Count I
and 10 years on Count 11, the sentences to be served consecu-
tively. Williams appeals.
Defendant and the State present drastically different
versions of the facts. The State's theory is that Williams
masterminded a burglary and a theft in Billings, Montana.
The burglary occurred first. The State asserts that on
November 10, 1978, Williams drove Mark Alberta and Jack Suiter
to a Billings residence and directed them to break in and steal
drugs. Alberta and Suiter entered the house but found no drugs.
They went back to the car and Williams directed them along with
another juvenile, to return to the house and steal a stereo.
They returned with the stereo, a pistol and some clothes. Police
recovered the stereo from defendant's stepmother's house. The
gun was recovered from Denise Barker, with whom Williams had left
it.
The robbery of the gas station occurred on November 15,
1978. Alberta and Suiter, together with Mark Best and Williams,
were at ~illiams'apartment where the State contends they planned
the robbery. About 2:00 a.m. Best and Williams left the apart-
ment and drove to the gas station. Best told one of the atten-
dants the station would be robbed shortly and warned him not to
resist. He also said if the attendants cooperated they would be
rewarded with a small amount of marijuana. Best informed the
other attendant of this by phone.
Upon returning to the apartment, Williams gave Alberta
and Suiter stockings to use as masks, a gun, rope from under the
sink and his car keys. Alberta and Suiter committed the crime
and returned to defendant's apartment and distributed the money.
The rope they used to tie the attendants up was found by the
police and the gun was found in a compartment a few feet from
Williams' apartment.
When Alberta was first questioned by the police, he did
not implicate Williams in either crime. He later changed his
story and the facts to which he testified are substantially
those summarized above.
Williams denies any agreement to or participation in
the crimes. He asserts he was "holding" the stereo equipment
found at his stepmother's house while he raised money to buy it
from Alberta and Suiter. He also contends that his car was
used by Alberta and Suiter but that he had no knowledge they
were going to commit a robbery. He testified he went to the gas
station with Best but that he did not know about the robbery
nor did he have any conversation about it. Best appeared as a
rebuttal witness and testified that he and Williams planned the
gas station robbery together.
The issues on appeal, as framed by the State, are:
1. Did the District Court's denial of the defendant's
motion for change of venue or a continuance deprive him of due
process?
2. Did the District Court err in denying defendant's
challenge for cause of juror Leona Whetham?
3. Was the testimony of defendant's accomplices adequate-
ly corroborated?
4. Did the District Court err in allowing the rebuttal
testimony of Mark Best?
5. Did the District Court err in denying defendant's
motion for a mistrial?
6. Did the District Court properly instruct the jury?
Defendant first argues that certain articles appearing
in the Billings Gazette were "inflammatory" and "invidious"
parts of a campaign staged against him by local law enforcement
personnel and the media.
On the basis of this publicity, defendant filed a motion
for a change of venue under section 46-13-203, MCA. The premise
of such motion was that prejudice against defendant in the county
in which he was charged was such that he could not receive a
fair trial in that county. Such matters are "addressed to the
sound discretion of the trial court, and unless there has been
shown a clear abuse of discretion, its ruling will not be dis-
turbed." See also State v. Hoffman (1933), 94 Mont. 573, 580,
23 P.2d 972; State v. Lewis (1976), 169 Mont. 290, 295, 546 P-2d
518.
In conjunction with the motion for a change of place of
trial, defendant alternatively sought a continuance. The thrust
of his argument in this regard is that during the continuance the
alleged fervor created by the publicity would have died down.
This Court has stated:
"Motions for continuance are addressed to the dis-
cretion of the trial court and the granting of a
continuance has never been a matter of right. (Cita-
tion omitted.) The district court cannot be over-
turned on appeal in absence of a showing of prejudice
to the movant. (Citation omitted.)
"Defendant's argument therefore must stand or fall
on the issue of prejudice, for the district court
can be said to have abused its discretion only if
its ruling was prejudicial. We have not found a
single case . .
. in which the denial of a motion
for continuance was reversed without a showing of
resulting prejudice to the movant." State v. Paulson
(1975), 167 Mont. 310, 315, 538 P.2d 339.
The motions for a change in venue and a continuance were
denied. Defendant argues he was thereby denied his right to a
fair trial "by a panel of impartial 'indifferent' jurors." Irvin
v. Dowd (1961), 366 U.S. 717, 722, 81 S.Ct. 1639, 1642,
6 L Ed 2d 751, 755. We disagree.
"Indicia of this denial of fair trial, resulting
from prejudicial publicity, as gleaned from our
law, seems to be: Arousing feelings of the com-
unity, threat to personal safety of defendant,
established opinion of members of the community as
to the guilt of the accused, news articles beyond
the objectivity of news printing and dissemination,
State v. Dryman, 127 Mont. 579, 269 P.2d 796, and
difficulty or failure in securing a fair, impartial
jury from the community in which the news articles
appeared, State v. Davis, supra, 60 Mont. 426, 199
P. 421; State v. Bess, 60 Mont. 558, 199 P. 426.
"Our court looks for a chain reaction, It starts
with the basic premise that the accused is entitled
to a fair trial. Next it checks the publicity
complained of, as to its contents and more impor-
tant, as to its total effect upon the 'fair trial
right.' Further, it looks at effects in the form
of the discriminating marks we have discussed.
Finally, it objectively considers the end result--
was a fair trial denied as a result of the publicity
and its effects? If its findings are negative it
refuses to find abuse of discretion on the part of
the trial judge." State v. Board (1959), 135 Mont.
139, 143-144, 337 P.2d 924.
Defendant's assertion that prejudice flowed from the
article is unsupported by affidavit or otherwise. An affidavit
must accompany a motion for a change of venue, section 46-13-
203, MCA, and for this reason alone, that motion could have been
properly denied. However, our decision rests on the fact that,
even if the community was aroused by the publicity or if there
was an opinion regarding defendant's guilt within the community,
the facts do not indicate he was denied a fair trial. Of the
twelve jurors and one alternate selected, nine could not recall
having heard or read anything about the case and three remembered
only defendant's unusual name or that the gas station had been
robbed. One juror was not asked any questions at all. There
was no abuse of discretion in denying the motions.
In connection with this matter, we feel compelled to
issue a warning to prosecuting attorneys and law enforcement of-
ficers concerning statements to the news media prior to trial. A
criminal defendant is guaranteed the right to a trial by an
impartial jury in a court of law. U.S. Const., Amend. VI; 1972
Mont.Const., Art. Extrajudicial statements by prosecutors
and law enforcement personnel prejudicial to defendant and which
are disseminated in the news media prior to trial may under some
circumstances destroy the impartiality of prospective jurors.
Certain extrajudicial statements that were made in this case
following defendant's release on his own recognizance prior to
trial appeared in the Billings Gazette on March 9, 1979:
"Several Billings police officers, who said they
did not know Williams was out of jail until the
beating incident, expressed dismay that 13th
District Judge C. B. Sande approved his release.
"One Billings detective who has helped track
Williams down twice in the last three months,
said, 'Why are we doing this again? He'll
probably only be let out again.'
"A deputy county attorney said of Williams'
release, 'I think it's a mistake, a big mistake.'"
The making of statements like the ones in this case indi-
cates a disregard for principles embodied in our system of law.
In the long run, such statements are harmful to law enforcement
and potentially damaging to the right of an accused to a trial
before an impartial jury. In this case, the publication of the
comment did not contaminate the jurors because they remembered
so little about the pretrial publicity in the case. However,
under other circumstances and in a different context, these or
similar comments might deny an accused his right to a fair trial
before an impartial jury or require the place of trial to be
changed at considerable expense and delay.
Defendant next argues that the presence of Leona Whetham
on the jury deprived him of his right to trial by a fair and im-
partial jury. Her prejudice, according to defendant, was revealed
on voir dire:
"Q. [By defense counsel Whalen.] Mrs. Whetham,
do you and your husband subscribe to the Billings
Gazette?
"MRS. WHETHAM: Yes.
"Q. Do you read it on a regular basis?
"MRS. WHETHAM: Yes.
"Q. Has anyone talked to you about the case at
all before today?
"MRS. WHETHAM: No.
"Q. Have you mentioned it or discussed it with
anyone else, your husband or any outsider?
"MRS. WHETHAM: Not that I remember of, no.
"Q. Do you recall having read about it in the
paper?
"MRS. WHETHAM: I remember that gas station was
robbed, and that is all I remember.
"Q. But you don't recall any specific articles
in connection with this defendant, is that correct?
"MRS. WHETHAM: That is right.
"Q. Do you know of any reason why you could not
be fair and impartial if you were selected as a trial
juror in this case?
"MRS. WHETHAM: No.
-
"Q. If, during the course of this case, you should
develop a feeling that this defendant may have done
things which you would not approve of, but still at
the same time if you have a doubt as to whether or
not he is guilty of a particular offense with which
he is charged, what would you do during the course of
your deliberations?
"MRS. WHETHAM: Pardon me, would you . ..
"Q. I say, if at the conclusion of this case that
there are some things that came to your attention about
this defendant's conduct which you dislike, and let's
say you disliked it intensely, but yet at the same
time you had a reasonable doubt in your mind during
your deliberations as to whether or not he is guilty
of a particular offense with which he is charged here,
what would you do?
"MRS. WHETHAM: Well, seeing as how it is not his
personal actions and stuff, that you are charging him
for, well, what would you do is the evidence that he
is on trial for. if there is a doubt that he had done
it, I would acquit him.
"Q. - -
If you hated him, but you had a . reasonable
. -
doubt as to whether or not he was guilty ot the
offense with which he is charaed, would vou acauit
him?
"MRS. WHETHAM: I believe so, yes.
"Q. Do you have any doubt about it?
"MRS. WHETHAM: Well, I suppose if it came down
to really personal feelings about him, you might
have that waive how you vote, I imagine, if it was
real strong.
"Q. I don't want to talk unreasonably with you,
but I think that the substance of the instructions
upon the law would be that you have to find he is
guilty of the particular offense with which he is
charged, beyond a reasonable doubt, and I don't want
to be unfair, but on the other hand, I don't want the
defendant convicted if he [sic] should have a doubt
about his guilt of the particular offense, but just
did not like him, I don't know if you are following
my distinction or not.
"MRS. WHETHAM: Yes.
"Q. With that in mind, do you feel you could be fair
and im~artial.if vou were selected as a trial iuror in
this cause?
"MRS. WHETHAM: Well, no I don't think so then.
"Q. You don't think you could?
"MRS. WHETHAM, -
No.
"MR. WHALEN: Your Honor, I respectfully challenge
the juror for cause for implied bias.
"COURT: Mr. Waller?
"Q. [by Deputy County Attorney Waller] Mrs. Whetham,
I really don't understand why you feel you would not
be able to be fair and impartial.
"MRS. WHETHAM: Well, if I suppose that would, if
he had done something you try to be fair, you know,
but whether you get into the personal like he was
saying, some things that did not really believe that
he should have done, it would probably put you (inaud-
ible), I imaqine.
"Q. Well, you would decide whether he was guilty or
innocent, based upon the evidence, wouldn't you?
"MRS. WHETHAM: Try to anyway.
"Q. Correct, and you would try to not let your
personal feelings intrude in that, wouldn't you?
"MRS. WHETHAM: (inaudible.)
"Q. -
If you hated him, but you had a . reasonable
- -
doubt as to whether or not he was gullty ot the
o f f e n s e with which he is charaed. would you a c ~ u i t
him?
"MRS. WHETHAM: I believe so, yes.
"Q. Do you have any doubt about it?
"MRS. WHETHAM: Well, I suppose if it came down
to really personal feelings about him, you might
have that waive how you vote, I imagine, if it was
real strong.
"Q. I don't want to talk unreasonably with you,
but I think that the substance of the instructions
upon the law would be that you have to find he is
guilty of the particular offense with which he is
charged, beyond a reasonable doubt, and I don't want
to be unfair, but on the other hand, I don't want the
defendant convicted if he [sic] should have a doubt
about his guilt of the particular offense, but just
did not like him, I don't know if you are followins
&
.
my distinction or not.
"MRS. WHETHAM: Yes.
"Q. With that in mind, do you feel you could be fair
and impartial, if you were selected as a trial juror in
this cause?
"MRS. WHETHAM: Well, no I don't think so then.
"Q. You don't think you could?
-
"MRS. WHETHAM, No.
"MR. WHALEN: Your Honor, I respectfully challenge
the juror for cause for implied bias.
"COURT: Mr. Waller?
"Q. [by Deputy County Attorney Waller] Mrs. Whetham,
I 'really don't understand why you feel you would not
be able to be fair and impartial.
"MRS. WHETHAM: Well, if I suppose that would, if
he had done something you try to be fair, you know,
but whether vou aet into the ~ersonallike he was
- ~ - - - - -
saying, someAthings that did not really believe that
he - should have done, it would probably put you (inaud-
.- .
ible) , I imagine.
"Q. Well, you would decide whether he was guilty or
innocent, based upon the evidence, wouldn't you?
"MRS. WHETHAM: Try to anvwav.
"Q. Correct, and you would try to not let your
personal feelings intrude in that, wouldn't you?
"MRS. WHETHAM: (inaudible.)
"Q. Do you feel you are going to have any problems
doing that?
"MRS. WHETHAM: I would try not to, but I couldn't ...
"Q. You don't have any reason to hate or dislike
the defendant at this time, do you?
"MRS. WHETHAM: Not at all, no.
"Q. You are aware of the fact that when the time
comes, you could make your decision and would have
to make it based upon the evidence?
"MRS. WHETHAM: Yes.
"Q. Are you prepared to do that?
"MRS. WHETHAM: I would try to, yes.
"MR. WALLER, I resist the challenge, Your Honor.
"COURT: Deny the challenge, proceed."
Our standard of review has been succinctly stated:
"The examination of a juror on his voir dire is no
more nor less than the taking of testimony on the
issues raised as to his qualifications to serve in
the case before the Court, (Citations omitted.) The
determination must be left largely to the sound
discretion of the trial court (Citations omitted.)
and, in determining the question, the trial court,
as in passing upon any other question of fact estab-
lished by oral testimony, has the advantage of ob-
serving the witness on the stand, his demeanor and
candor, or lack of candor, and a review of the court's
rulings and findings should be governed by the same
rules as in reviewing any other findings and judg-
ment based thereon. They should not be set aside
unless error is manifest, or there is shown a clear
abuse of discretion . . ." State v. Russell (1925),
73 Mont. 240, 235 P. 712.
There was no abuse of discretion in this case. The existence of
some confusion in the record is all the more reason to rely on the
trial court's decision.
"True, there are cases holding that when a witness
has once admitted bias his subsequent statements
that he can consider the evidence impartially should
be viewed with caution. But granting the need for
careful scrutiny of the testimony of a witness who
has first said 'no' and then said 'yes', it still
remains the province of the trial court to decide
where the truth lies and with that determination the
appellate court will not interfere unless a clear
abuse of discretion is shown." State v. Allison
(1948), 122 Mont. 120, 130, 199 P.2d 279, 286.
Defendant's next contention is that the evidence does
not support his conviction because the testimony of his accom-
plices was insufficiently corroborated. The most recent explan-
ation of the law on this point is found in State v. Kemp (1979),
Mont . , 597 P.2d 96, 98-99, 36 St.Rep. 1215, 1217-1218:
" . . . section 46-16-213, MCA, provides:
"'Testimony of person legally accountable. A
conviction cannot be had on the testimony of one
responsible or legally accountable for the same
offense, as defined in [45-2-301, MCA], unless the
testimony is corroborated by other evidence which
in itself and without the aid of the testimony of
the one responsible or legally accountable for the
same offense tends to connect the defendant with
the commission of the offense. The corroboration
is not sufficient if it merely shows the commission
of the offense or the circumstances thereof.'
"The sufficiency of evidence necessary to corrobo-
rate accomplice testimony is a question of law.
State v. Standley (1978), Mont .
, 586 P.2d
1075, 1078, 35 St.Rep. 1631, 1635; State v. Perry
(1973), 161 Mont. 155, 161, 505 P.2d 113, 117. In
defining the quantum and character of proof required
to corroborate accomplice testimony, a substantial
body of caselaw has evolved.
"To be sufficient, corroborating evidence must show
more than that a crime was in fact committed or the
circumstances of its commission. State v. Keckonen
(1938), 107 Mont. 253, 263, 84 P.2d 341, 345. It
must raise more than a suspicion of the defendant's
involvement in, or opportunity5 commit, the crime
charged.
305 P.2d , 2
at
-%% .
Gangner (19 ) , 130 Mont. 533, 535,
.
37'
But corroborative evidence need
not be sufficient, by itself, to support a defendant's
conviction or even to make out a prima facie case
against him. State v. Ritz (1922), 65 Mont. 180, 186,
211 P. 298, 300; State v. Stevenson (1902), 26 Mont.
332, 334, 67 P. 1001, 1002. Corroborating evidence
may be circumstantial (State v Harmon (1959), 135
.
Mont. 227, 233, 340 P.2d 128, 131) and can come
from the defendant or his witnesses. State v. Phillips
(1953), 127 Mont. 381, 387, 264 P.2d 1009, 1012.
"With these principles in mind, each case must be
examined on its particular facts to determine if the
evidence tends, in and of itself, to prove defendant's
connection with the crime charged.
"One accomplice cannot supply the independent evidence
necessary to corroborate another accomplice. State
v. Bolton (i322), 65 biont. 74, 88, 212 P. 504, 509;
30 Am Jur 2d Evidence, Sec. 1156 . . ."
The key words in the statute are that the corroborating
evidence must "tend to connect" defendant with the offense.
... [Tlhere should be some fact deposed to, independently
of the evidence of the accomplice, which taken by itself leads
to the inference, not only that a crime has been committed,
but that the prisoner is implicated in it." State v. Keckonen,
107 Mont. at 260, citing State v. Lawson (1912), 44 Mont. 488,
120 P. 808.
There is no doubt the crimes were committed. The corrobo-
rating evidence clearly tends to connect defendant with the com-
mission of the crimes. As to the burglary: Defendant, although
he was storing it at his stepmother's, had constructive possession
of the property stolen. The pistol taken in the burglary was
identified by its owner as the gun given by Williams to Denise
Barker. Defendant admitted leaving the gun with ~eniseBarker. In
addition, defendant knew the burglary victim and had been to his
house and had seen the stereo.
As to the theft: Williams admitted being with Best,
Alberta and Suiter immediately before the robbery and for much
of the preceding evening. He admitted going to the gas station
with Best before the robbery and having loaned his car to Alberta
and Suiter during the time they committed the crime. The police
found rope similar to that used in the robbery under Williams'
kitchen sink. An FBI expert testified that this "robbery rope"
and the "sink rope" were very similar. The ropes were compared
on the basis of color, twist, and ply. Additionally, both ropes
came from an exercise device. Both had "disks" which appeared to
have been chewed on by a dog and when the ropes were viewed togeth-
er they made a complete exercise device. The expert testified it
was "extremely remote" that the "robbery rope" and the "sink rope"
came from different pieces of rope.
The foregoing independent evidence tends to implicate
Williams in the crimes and when coupled with the accomplice testimony,
supports his convictions. See State v. Dess (1969), 154 Mont. 231,
- 11 -
Defendant next argues that coconspirator Mark Best's
testimony should not have been allowed. He contends that Best,
appearing as a rebuttal witness testified to the elements of
the crime. According to defendant, this was not properly re-
buttal evidence but should have been introduced during the
State's case-in-chief and Best should have been included in the
list of potential witnesses in the information.
Section 46-15-301(1), MCA, provides:
"For the purpose of notice only and to prevent
surprise, the prosecution shall furnish to the
defendant and file with the clerk of the court
at the time of arraignment a list of the wit-
nesses the prosecution intends to call. The
prosecution may, any time after arraignment, add
to the list the names of any additional witnesses
upon a showing of good cause. The list shall
include the names and addresses of the witnesses.
This subsection does not apply to rebuttal witnesses."
(Emphasis supplied.)
Rebuttal testimony is that which tends to disprove or
contradict evidence presented by the adverse party. State v.
Cates (1934), 97 Mont. 173, 200, 33 P.2d 578. The question
here comes down to whether Best was rebutting or giving new
evidence.
Defendant was his own sole witness. He testified he
knew nothing of the planned robbery of the Conoco station and
did not ask Best to contact his friends who worked there. On
rebuttal, Best testified that Williams was aware of the robbery
and had asked him to telephone the station. Best's testimony
tended to disprove defendant's testimony and was proper rebuttal.
Defendant next asserts a mistrial should have been de-
clared upon his testimony on cross-examination that he lived with
and was supported by a female who was a prostitute. He contends
this is inadmissible evidence of another crime. Section 45-5-
602(1)(h), MCA, makes it illegal to live off the wages of a
prostitute. He concludes the evidence is inadmissible under
Rule 404(b), M.R.Evid., which provides:
"Evidence of other crimes, wrongs, or acts
is not admissible to prove the character of a
person in order to show that he acted in conform-
ity therewith. It may, however, be admissible
for other purposes, such as proof of motive, oppor-
tunity, intent, preparation, plan, knowledge, iden-
tity, or absence of mistake or accident."
The evidence was not introduced to show that defendant
acted in conformity with his character in committing the crimes
charged. It was elicited from his own mouth in the course of
cross-examination to show the implausibility of his contention
that he hoped to buy the stolen stereo for $1,000. The fact
that defendant had no independent income and was living off the
wages of a prostitute was relevant to his financial status.
We recognize the rule that even though relevant and other-
wise admissible, evidence may be excluded if its prejudicial
effect substantially outweighs its probative value. Rule 403,
M.R.Evid.; State v. Rollins (1967), 149 Mont. 481, 484, 428 P.2d
462. The trial judge made this determination and admitted the
testimony. We find no abuse of discretion. There is nothing in
the record to indicate that the jury was informed that living off
the wages of a prostitute is a crime and it is difficult to imagine
how such evidence could lead to conviction of conspiracy to commit
burglary and theft.
Defendant's final specification of error is that several
jury instructions were improper. The first instruction to which
he objects reads, in pertinent part:
"A voluntary act includes an omission to perform a
duty which the law imposes on the offender and which
he is capable of performing.
"The word 'act' means a thing done or that which is
done. It includes any bodily movement, any form
of communication, and where relevant, a failure or
omission to take action." Instruction No. 3.
Defendant argues that in order to commit the crime of conspiracy,
an overt act is necessary. Conversely, he argues that the elements
of the crime cannot be met by proof of an omission.
The jury was instructed in the words of the statute:
"A person commits the offense of conspiracy when,
with the purpose that an offense be committed, he
agrees with another to the commission of that
offense. No person may be convicted of conspiracy
to commit an offense unless an - in furtherance
act
of such agreement has been committed by him or by
a coconspirator." Section 45-4-102(1), MCA. (Em-
phasis added.)
Also by statutory definition:
"'Act' has its usual and ordinary meaning and
includes any bodily movement, any form of communi-
cation, and where relevant, a failure or omission
to take action." Section 45-2-283_ (I), MCA. (Em-
phasis added.) /
We reject the argument that conspiracy may never be proved by
demonstrating an omission to act in furtherance of the conspiracy.
See e.g. Gerson v. United States (8th Cir. 1928), 25 F.2d 49, con-
spiracy to fail to list assets in bankruptcy.
The theory upon which this case was tried by the State
was that defendant or another coconspirator had done overt acts
in furtherance of the crime. As the jury was instructed that the
definition of "act" included omission only "where relevant" we are
unable to find any error in the instruction.
Instruction No. 3 continues:
"Purpose or knowledge are manifested by the cir-
cumstances connected with the offense and need
not be proved by the direct evidence but may be
inferred from acts, conduct and circumstances
appearing in evidence." (Emphasis added.)
Defendant's objection is that this portion of the instruction
unconstitutionally shifts the burden of proof from the state to
defendant on the element of intent and thus violate the principles
set forth in Sandstrom v. State of Montana (1979), U.S. I
S.Ct. , 61 L Ed 2d 39. We disagree. The basis of the
United States Supreme Court in its Sandstrom decision was that the
jurors "were not told that they had a choice or that they might
infer that conclusion; they were told only that the law presumed
it." U.S. at-1 -S.Ct. at , 61 L Ed 2d at 45.
(Emphasis added.) Regarding the inference, as distinguished
from the presumption of intent, the United States Supreme Court
has said:
"Since intent must be inferred from conduct of
some sort, we think it is permissible to draw
usual reasonable inferences as to intent from
overt acts." Cramer v. United States (1945),
325 U.S. 1, 31, 65 S.Ct. 918, 933, 89 L.Ed. 1441,
1459.
The Court's instruction No. 5 is as follows:
"You are instructed that the doubt which a juror is
allowed to retain in his mind and under the influence
of which he should form a verdict of not guilty,
must always be a reasonable one.
"A reasonable doubt is not such a doubt as a man
may start by questioning for the sake of a doubt,
nor a doubt suggested or surmised without founda-
tion in the facts or testimony. It is such a
doubt as in a fair, reasonable effort to reach a
conclusion upon the evidence, using the mind in
the same manner as in other matters of the highest
and gravest importance, prevents the jury from corn-
ing to a conclusion in which their minds rest satis-
fied.
"If, in so using the mind and considering all the
evidence produced, it leads to a conclusion which
satisfies the judgment and leaves upon the mind a
settled conviction of the truth of the fact, it is
the duty of the jury to declare the fact by their
verdict.
"It is possible always to question any conclusion
derived from testimony, but such questioning is not
what is a reasonable doubt. A reasonable doubt
exists in that state of the case which, after the
entire comparison and consideration of all the
evidence leaves the minds of the jurors in that
condition that they cannot say that they feel an
abiding conviction to a moral certainty of the truth
of the charge.
"A doubt produced by undue sensibility in the mind
of any juror, in view of the consequences of his
verdict, is not a reasonable one, and a juror is not
allowed to create sources or materials of doubt by
resorting to trivial and fanciful suppositions and
remote conjectures as to a possible state of facts
differing from that established by the evidence."
Instruction No. 6 provides:
"The law does not require demonstration--that is, such
a degree of proof as, excluding possibility of error,
produces absolute certainty, because such proof is
rarely possible.
"Moral certainty only is required, or that degree
of proof which produces conviction beyond a reason-
able doubt in an unprejudiced mind."
Defendant contends that Instruction No. 6 is repetition
of Instruction No. 5 and unduly emphasizes the cautionary aspects
of reasonable doubt. We disagree. Instruction No. 5 defines
and explains reasonable doubt while Instruction No. 6 defines
the degree of proof necessary to convict. Both are proper in-
structions.
Defendant also assigns error to Instruction No. 9:
"A person commits the offense of conspiracy who,
with the purpose that the offense of theft be com-
mitted, agrees with others to the commission of the
offense of theft, and an act in furtherance of the
agreement is performed by any party to the agreement.
"Each party to a conspiracy is responsible for all
acts performed by his co-conspirators in furtherance
of the conspiracy.
"To constitute the offense of conspiracy it is not
necessary that the conspirators succeed in committing
the offense of theft."
We reject defendant's argument that the instruction is in
the abstract and does not apply to the facts and law of the case.
The instruction is proper in this case.
This statement of the law is entirely correct. The final
objection is to Instructions No. 10 and 11, which read:
"A person commits the offense of Burglary if he
knowingly and unlawfully enters or remains in an
occupied structure with the purpose to commit an
offense therein." No. 10.
"A person commits the offense of Theft when he pur-
posely or knowingly obtains or exerts unauthorized
control over property of the owner and has the pur-
pose of depriving the owner of the property. The
offense of Theft is a felony where the value of the
property taken exceeds $150.00." No. 11.
The crime of conspiracy contemplates an agreement to
commit an act punishable by law, here burglary and theft. It is
not error to instruct the jury as to the crimes underlying the
charges of conspiracy.
Affirmed.
Chief Justice
We concur: