dissenting:
I dissent.
The writer of this dissent has no compunction or reluctance in acquiescing to a judgment of conviction where the defendant has received a fair trial, with all of his inherent constitutional rights protected, the evidence of the crime clear and convincing that the defendant is guilty beyond a reasonable doubt and to a moral certainty, with a jury of his layman peers returning a verdict of “guilty.” However, I feel a moral responsibility to dissent where the record discloses speculative, conjectural testimony on seven counts leading to convictions on evidence not given by the complainant but by a third person, whose sworn *151duty was to prevent the alleged offenses rather than render assistance to the perpetration of them.
The law is well-established that it is the duty of every good citizen to help the criminally minded to remain law-abiding. On the other hand, when a private citizen or an officer is cognizant of intended violation of the law, it is Ms duty to use all legitimate means to prevent commission of the offense and to apprehend the offender.
The record is also clear that the defendant made entrance into this home, not owned by the complaining witness through a basement window. It should be apparent to anyone of average intelligence that the defendant was not entering this basement window at 11 -.00 p.m. for the purpose of playing pinochle, or parcheesi.
One of the reasons for this dissent is predicated upon a prior holding by this court being the case of State v. Nelson, 139 Mont. 180, 362 P.2d 224, which opinion was authored by Mr. Justice John C. Harrison, the author of the majority opinion here.
In the Nelson case, supra, reference is made to section 94-6003, B.C.M.1947, which provides: “A peace officer may make an arrest in obedience to a warrant delivered to him, or may, without a warrant, arrest a person- — -
“1. For a public offense committed or attempted in his presence;
“2. When a person arrested has committed a felony, although not in his presence;
“3. When a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it;
“4. On a charge made, upon reasonable cause, of the commission of a felony by the party arrested;
“5. At night, when there is reasonable cause to believe that he has committed a felony.” Emphasis supplied.
*152The record discloses that the Deputy Sheriff, Paul Williams, testified as follows:
“Q. On December 18, 1961, what did your investigation show? A. Pretty much the same December 18, ear there at 11:30 p.m. and I seen him this time leave the vehicle; I sat back in the driveway of Mrs. Peterson’s after I noticed the vehicle immediately parked over there and was seen going in there at 11:30.”
Contemplating this simple question and pregnant answer it was the express duty of Deputy Sheriff, Paul Williams, to forthwith arrest the defendant for the crime of burglary as defined in section 94-901, R.C.M.1947, as follows:
“Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse, or other building, tent, vessel, railroad car, with intent to commit grand or petit larceny or any felony, is guilty of burglary.”
Supporting this premise is the case of State v. Board, 135 Mont. 139, 337 P.2d 924, wherein this court said that in a prosecution for burglary in the first degree, an instruction which did not tell the jury that no specific intent need be proved, but at most merely told the jury that an express intention need not be proved was not erroneous on the ground that burglary requires specific intent to commit larceny or any felony and that the first part of the instruction was based on the presumption of intent and the last part indicated the express intention need not be proved.
To even the most casual legal neophyte, the witness Williams saw a first degree burglary committed in his presence at nighttime, and it was his duty then and there to arrest the defendant. This he failed to do, but on the contrary, permitted, as he testified, this defendant to commit nineteen alleged further acts of statutory rape under his observation which subsequently resulted in the defendant being convicted of seven counts of statutory rape subsequent to December 18, 1961.
*153The second reason for dissent is the shifting, contradictory, uncertain testimony of the complaining witness. She was asked these questions and made these answers on cross-examination.
“Q. You were brought down to Fort Benton to the county attorney’s office the 5th of March, 1962, were you not? A. Yes.
“Q. Did you make a statement at that time? A. Yes.
“Q. You were upset, of course? A. Yes.
“Q. Did you at that time give all these dates to the county attorney? A. They already had them.
“Q. They already had them? A. Yes.
“Q. Did they tell you where you got them? A. From Paul Williams.
“Q. From Paul Williams? A. I guess so. * * *
“Q. That’s the information filed in this court, the county attorney informs the court that’s the day you and Mr. Boe had sexual intercourse, do you know whether or not that is the date? A. Not for sure.
“Q. What about the 18th of December, 1961? A. I am not sure of any of those dates.
“Q. You do not know for sure if you had intercourse the 22nd of December, do you? A. No.
“Q. Nor do you have a real knowledge of the 23rd of December? A. I don’t look at calendars that often.
“Q. Then you were not sure about the 30th day of December are you? A. No.
“Q. As a matter of fact you do not know what the dates are? A. No, except for November the 20th and March the 3rd.
“Q. Except for November the 20th and March the 3rd? A. Yes.” Emphasis supplied.
If the authorities of Chouteau County had continued this “cat and mouse” procedure until the complaining witness was one day short of 18 years of age, striking an average from the transcript of the defendant’s biological urge to engage in unlawful sexual relations with the complaining witness, he could *154have received 36,531 years in prison if the trial judge elected to impose the maximum penalty on each count with a conviction on each count.
The jury was apparently dubious of the authenticity of the twenty-two alleged counts of statutory rape, in that they elected to believe nine of the charges, resulting in a sentence of forty-five years or five years for each count and a percentage of 40.9 of the twenty-two counts submitted to the jury.
Conceded that the foregoing hypothetical statement of fact soars into orbit of the thin rarefied air of speculation and improbability, becoming a star of legal lesser magnitude, the instant cause and residtant convictions will become a companion astral body of this premise, forever visible in the sky of Montana jurisprudence.
The able and competent defense counsel herein was confronted with a situation that rendered his best efforts impossible. A lawyer cannot adequately defend, where as here, the twenty-two dates of the alleged crimes were furnished by a deputy sheriff, rather than by the aggrieved complainant. In the final review of this weird contradictory record in its entirety, substantial justice could be done on behalf of society, the people of Montana, and the defendant, by reducing the penal term of the defendant from forty-five years to ten years. Such a sentence is compatible with the two acts that the complaining witness was positive had occurred.