No. 14871 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1979 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

vs . 

DIONISIO WILLIAMS, 

Defendant and Appellant. 

Appeal from: District Court of the ~hirteenth Judicial District, 

Honorable C. B. Sande, Judge presiding. 

Counsel of Record: 

For Appellant: 

Michael J. Whalen argued, Billings, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

John Maynard argued, Assistant Attorney General, Helena, 

Montana 

Harold F. Hanser, County Attorney, Billings, Montana 

Robert Waller argued, Deputy County Attorney, Billings, 

Montana 

Submitted: December 10, 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 consecutively. 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 apartment and drove to the gas station. Best told one of the attendants 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 adequately 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 disturbed." 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 discretion of the trial court and the granting of a 

continuance has never been a matter of right. (Citation omitted.) The district court cannot be overturned 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 comunity, 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 important, 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 officers 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 indicates 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 impartial 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 (inaudible), 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 

offense with which he is charaed. would you ac~uit 

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 ~ersonal - ~ 

like - -- 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 established by oral testimony, has the advantage of observing 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 judgment 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 accomplices was insufficiently corroborated. The most recent explanation 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 corroborate 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 

37' 

commit, the crime 

charged. at . Gangner (19 ) , 130 Mont. 533, 535, 

305 P.2d , 2 -%% . 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 corroborating evidence clearly tends to connect defendant with the commission 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 ~enise Barker. 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 together 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 rebuttal 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 witnesses 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 declared 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 conformity therewith. It may, however, be admissible 

for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, 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 otherwise 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 - act in furtherance 

of such agreement has been committed by him or by 

a coconspirator." Section 45-4-102(1), MCA. (Emphasis added.) 

Also by statutory definition: 

"'Act' has its usual and ordinary meaning and 

includes any bodily movement, any form of communication, and where relevant, a failure or omission 

to take action." Section 45-2-283_ (I), MCA. (Emphasis 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, conspiracy 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 circumstances 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 foundation 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 corning to a conclusion in which their minds rest satisfied. 

"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 reasonable 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 instructions. 

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 committed, 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 purposely or knowingly obtains or exerts unauthorized 

control over property of the owner and has the purpose 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: