No. 87-138
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
CITY OF BILLINGS,
Plaintiff and Respondent,
-vs-
DONALD E. BRINER,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable G. Todd Baugh, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Randy S. Laedeke, Billings, Montana
For Respondent:
David Rusoff, City Attorney, Billings, Montana
Submitted on Briefs: Aug. 2 0 , 1987
Decided: October 22, 1987
Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.
Defendant appeals from the judgment of the District
Court, Thirteenth Judicial District, Yellowstone County,
finding the defendant duly convicted of the offense of
speeding. We affirm.
On February 26, 1986, the defendant Briner was cited for
driving 50 miles per hour in a 25 mile per hour zone on
Daniels Street between Industrial Avenue and Monad Road in
Billings, Montana. He was convicted by jury in Billings City
Court and appealed. In a trial de novo in the District Court
a jury of six found the defendant guilty of going in excess
of the speed limit.
The issues on appeal are as follows:
1. Did the court err in failing to instruct that the
prosecution must prove each and every element of the offense
and in refusing to give defendant's proposed instruction?
2. Did the court err in refusing to use defendant's
purposed jury verdict forms?
Initially, defendant argues error in failing to give, in
pertinent part, the following proposed instruction:
4. The City of Billings has the burden of proving
the guilt of the defendant beyond a reasonable
doubt. The prosecution must establish each and
every element of the offense of speeding by
testimony:
a. Of an experienced and trained officer, and
b. That officer made a visual observation, and
accurately determined the speed of the defendant's
vehicle, and
c. That the alleged speed was in excess of the
legal speed limit, and
d. That the speed limit was legally posted at the
location of the alleged violation.
At a minimum, the trial court must define the crime of
which the defendant stands accused. State v. Lundblade
(Mont. 1981), 625 P.2d 545, 548, 38 St.Rep. 441, 443. when
evaluating jury instructions, they must be looked at as a
whole. Lundblade, 625 P.2d at 548. The court gave the
following instructions, in part:
Instruction No. 2
3. The City of Billings has the burden of proving
the guilt of the Defendant beyond a reasonable
doubt.
4. Proof beyond a reasonable doubt is proof of
such a convincing character that a reasonable
person would rely and act upon it in the most
important of his own affairs. Proof beyond a
reasonable doubt does not mean proof beyond any
doubt or proof beyond a shadow of a doubt.
Instruction No. 6
You are instructed that it is unlawful for any
person to drive a motor vehicle in the business
district or any residence district at a speed
greater than 25 miles per hour or at a speed
greater than the speed limit indicated on
appropriate signs.
The State has the burden to prove guilt beyond a
reasonable doubt. The wording of the court's instruction no.
2 was specifically approved by this Court in State v. Lucero
(Mont. 1984), 693 P.2d 511, 516, 41 St.Rep. 2509, 2515. The
elements of the crime of speeding are adequately set out in
court's instruction no. 6. Taken together with instruction
no. 2, this instruction properly apprises the jury of the
prosecutor's burden and the elements of the offense of
speeding.
The defendant also argues that court's instruction nos.
2 and 5 misstated the law and misled the jury as to the
allegations in the complaint. Instruction no. 2 generally
charges the defendant with speeding. Instruction no. 5
specifically spells out the law that applies to the charge.
We fail to see how this is in any way misleading or
inaccurate.
Defendant also argues it was error not to give these
additional portions of his proposed instruction no. 1:
2. By his plea of not guilty, the defendant denies
every material allegation of the charges against
him. The prosecution is bound by the particular
allegations therein and it cannot obtain a
conviction by proof of a violation of the same
statute in a manner not alleged.
3. The defendant, Donald E. Briner, is charged
with speeding. In every charge of a violation of
any speed regulation, the complaint shall specify
the speed at which the defendant is alleged to have
driven, and specify also the speed applicable
within the district or within the location.
Defendant cites to case law for the proposition that the
prosecution is held to the allegations in the complaint and
may not obtain a conviction in a manner not alleged. The
offense alleged in the present case is speeding, or more
specifically, operating a motor vehicle in excess of the 25
mile per hour limit. The jury instructions clearly inform
the jury of this charge.
Defendant, secondly, raises the issue that the jury
verdict form submitted prejudiced the defendant. By not
requiring that the defendant be found guilty or not guilty as
charge6 "and in the manner alleaed" in the complaint, the
jury was allowed to find Briner guilty o f speeding even
though they did not find him guilty of driving 50 miles per
hour in a 25 mile per hour zone, as alleged in the complaint.
Not surprisingly, there is little law on this subject. In
State v. Dantonia (N.J. 1955), 115 A. 2d 35, the New Jersey
Supreme Court reasoned that the prosecution need not prove
the exact speed of the defendant in a speeding case. The
material charge against Briner consisted of speeding in
excess of 25 miles per hour. This was covered adequately by
the jury instructions and verdict forms. The defendant was
not prejudiced. We will not disturb the jury verdict or the
court's judgment.
/
Affirmed.
We Concur: