No. 13379 INTHE SUPFtEME COURT OF THE STATE OF MONTANA 1977

STATE OF MONTANA, Plaintiff and Respondent,

VS. BEN PASCGO, Defendant and Appellant.

Appeal from: District Court of Second Judicial District Honorable James Freebourn, judge presiding Counsel of Record: For Appellant: Stimatz and Engel, Butte, Montana Joseph C. Engel, 111, argued, Butte, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana J. Gary Winston, County Attorney, Butte, Montana Nadine Scott argued, Deputy County Attorney, Butte, Montana

Submitted: June 3, 1977 Decided :

### JUL

## 20

## 1977

FILED : 

### JJJLi!

## 01977Mr. Justice John Conway Harrison delivered the Opinion of the Court.

Defendant appeals from a jury conviction of burglary entered in the district court, SilverBow County. He received

a sixyear sentence in the Montana State Prison with two years suspended. Defendant is free on bond pending this appeal. In earlymorning of March 10, 

### 1975, police officers responded toa burglar alarm triggered atOssellolsFurniture Store inButte, Montana. Arriving at Ossellolswithin two or three minutes, the officers noticed one setof footprints inthe

snow leading toa garage door on the north-east end of the store. It appeared tothe officers a second person had walked directly inthe footprints of the first, and there were no footprints leaving the building. Two panels were knocked out of the garage door. One of the broken panels was about three feet off the ground, but the officerwas unable tocrawl through 

### it, due toa thin metal locking bar that cut horizontally across the opening. A television setblocked the opening in the lower panel atthe bottom of the door, but the officers were able toenter the building through this opening by pushing the television setaside. The officers turned on the lights in the store and saw defendant crawlingbehind a rugrack. They found another man, Harold IaPier, lying ina pile of rugs on the floor. Both men were taken into custody and charged with burglary under section 94-6- 204(1), R.C.M. 1947. LaPier subsequently plead guilty in a separate proceeding. Defendant admitted at trialhe entered the building unlawfully but denied he intended tocommit any felony therein. Defendant Is version of the incident is: Defendant, his girl friend, and LaPier had been drinking at various Butte establishments. While atthe Dry Gulch Bar, near Ossellols, defendantnoticed LaPier was missing and was informed he had left the bar with a stranger; presumably theyhad gone todefendant's car where an extrabottle was stashed. When LaPier failed toreturn tothe bar afterabout fifteen minutes, defendant became concerned and went out tothe car looking forhim. Defendant knew LaPier was on probation for a previous burglary and tended to get intotrouble when he was drinking. &Pier was not in the car, but tracks could be seen leading toOssellols. Defendant followed the tracks, found the broken panels in the garage door, and entered Ossello's with the purpose of getting LaPier out of the building. He found LaPier asleep in a pile of rugs, but at that time the police arrived. Defendant panicked and tried to hide, but was apprehended by the officers. LaPier testifiedhe entered the buildingwith an unknown

man toburglarize the store; thathe pushed the television set against the lower panel of the garage door; and he losttrack of his accomplice and fellasleep. LaPier maintained defendant had nothing todo with the planning or commission of the burglary. Defendant contends the following specifications of error require a reversal of his conviction: I. The trial court's denial of defendant's motion for

a continuance was prejudicial error; 11. The evidence was insufficient tosupport a conviction of the crime of burglary. Specification of error I. Defense counsel made an oral motion, just before the jury was selected, tocontinue the trial until a laterdate. Defendant intended tocallDale Miller, the person responsible for the installation and maintenance of the alarm system at Qssello's, but Miller leftthe state just before the trialwas tocommence. Miller's testimony was desired to show the alarm system was activated onlyby motion in the store,thus leaving open the possibility LaPier and hisalleged accomplice could have remained in the store for

### a period of time before defendant arrived and before the alarm was tripped. Defendant contends Miller leftthe state toavoid testifyingbecause the

owner of Ossello~s threatened toobtain a new alarm system if Miller revealed the intricacies of the old system in court. The

owner testified that while he had statedhe might change the system, he had not threatened totake hisbusiness away from Miller. Section 93-4910, R.C.M. 1947 states in pertinent part: "A motion topostpone a trial on grounds of the absence of evidence shall only be made upon affidavit showing the materiality of the evidence expected tobe obtained, and that due diligence has been used toprocure it.*

## * *'I Here, no affidavitwas filed to show either the materiality of the proposed evidence or that due diligence was exercised. Counsel had represented defendant from March 10, 

### 1975, through an entire previous trial on the same matter, which resulted ina hung jury. The trialinvolved here began February 10, 

### 1976, and while a subpoena was issued, 

### it was not served on the prospective witness. The granting of a continuance is within the sound discretion of the trial court. State v. Paulson, 

### 167 Mont. 310, 

### 538 P.2d 

### 339; State v. Kuilman, 111Mont. 459, 110 P.2d 

### 969. In view of defendant's failure tocomply with section 93-4910, 

### it cannot be said the trialcourt abused its discretion in denying the continuance. State v. Moorman, 

### 133 Mont. 148, 321 P.2d 236. Specification of error 11. Defendant contends the evidence

was insufficient tosustain a conviction of burglary in that there was no showing defendant intended tocommit an offense within the building. The standard of this Court tomeasure jury determination is stated in State 

### v. Merseal, 

### 167 Mont. 409, 415,"This Court remains evermindful of one fundamental rule--that queBtions of factmust be determined solelyby the,3ury, and that given a certain legalminimum of evidence, this Court on review willnot substitute its judgment for that of the jury.

## * * *

"On appealwe examine the evidence todetermine whether the verdict is supported by substantial evidence. In sodoing, we view the evidence in the lightmost favorable tothe State." See also: State v. Farnes, Mont

# . ,558 P.2d 

### 4'7% 33 St.Rep. 1270; State v. Stoddard, 147Mont. 402, 412 P.2d 827. Therefore, this Court is limited toan examination of the evidence in the lightmost favorable tothe stateand a determination of whether there was substantialevidence tosupport defendant's conviction. While defendant's story, if believed, would lead toa conclusion he was not guilty of the crime of burglary, the jury

was not required tobelieve the testimony of defendant or the testimony of LaPier. Several factors tend tosupport the jury's conclusion: 1. Defendant was found in OssellolsFurniture Store at 1:42 a.m. hiding from the police. Cases from other jurisdictions have recognized the obvious inference that a person found unlawfully on the premises of another inthe nighttime is there for the purpose of committing a theft. State v. Hopkins, 11Utah 2d 363, 359 P.2d 486; Ex parte Seyfried, 

### 74 Idaho 467, 264 P.2d 685; People v. Henderson, 

### 138 C.A. 2d 505, 292 P.2d 267. 2. A television sethad been pushed up against the opening in the lower panel of the garage door, 

### 3. Defendant's version of the incident was corrobrated onlyby his friend LaPier. No tracks were seen leaving the building, no other person was found in the building, and defendanthimself stated to the police thathe and LaPier were the only

I people inthe building. 

### 4. There was conflicting testimony regarding the possibility of anyone gaining entrance through thebroken upper panel. If defendant could not have entered the building through the upper panel, 

### it eould be inferredhe was inside the building when the television setwas placed toblock the opening in the lower pane1. While defendant argues there was no directproof of intent tocommit a theft from Ossello's, the rulehas long been established inMontana that use of circumstantialevidence is an acceptable and often convincingmethod of proving criminal intent. Aswe restated in State v. Farnes, Mont

# . ,558 P.2d 

### 472, 

### 475, 33 St.Rep. 1270, citing State v. Cooper, 

### 158Mont. 102, 110,

'II~he element of felonious intent in every contested criminal case must necessarily be determined from the facts and circumstances of the particular case, 

## -- this for the reason that criminal intent, being a state of mind, is rarely susceptible of direct orpositive proof and therefore must usually be inferred from the facts testified toby witnesses and the circumstances asdeveloped by the evidence." 

## * 

## * "'The question of intent is a question for the jury 1 11 The jury considered the evidence along with defendant's version of the incident and concluded defendant had the intent tocommit an offense within the building. There was substantial evidence tosupport that conclusion. The judgment of conviction is affirmed.We Concur: