No. 13379 

IN THE 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 2 0 1977 

FILED : JJJL i! 0 1977 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

Defendant appeals from a jury conviction of burglary 

entered in the district court, Silver Bow County. He received 

a six year sentence in the Montana State Prison with two years 

suspended. Defendant is free on bond pending this appeal. 

In early morning of March 10, 1975, police officers 

responded to a burglar alarm triggered at Ossellols Furniture 

Store in Butte, Montana. Arriving at Ossellols within two or 

three minutes, the officers noticed one set of footprints in the 

snow leading to a garage door on the north-east end of the store. 

It appeared to the officers a second person had walked directly 

in the 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 officer was unable to crawl through it, due to a 

thin metal locking bar that cut horizontally across the opening. 

A television set blocked the opening in the lower panel at the 

bottom of the door, but the officers were able to enter the 

building through this opening by pushing the television set aside. 

The officers turned on the lights in the store and saw defendant 

crawling behind a rug rack. They found another man, Harold 

IaPier, lying in a 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 trial he entered the building 

unlawfully but denied he intended to commit any felony therein. 

Defendant Is version of the incident is: Defendant, his girl 

friend, and LaPier had been drinking at various Butte establishments. While at the Dry Gulch Bar, near Ossellols, defendant 
noticed LaPier was missing and was informed he had left the bar 

with a stranger; presumably they had gone to defendant's car 

where an extra bottle was stashed. When LaPier failed to return 

to the bar after about fifteen minutes, defendant became concerned and went out to the car looking for him. Defendant knew 

LaPier was on probation for a previous burglary and tended to 

get into trouble when he was drinking. &Pier was not in the 

car, but tracks could be seen leading to Ossellols. 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 testified he entered the building with an unknown 

man to burglarize the store; that he pushed the television set 

against the lower panel of the garage door; and he lost track 

of his accomplice and fell asleep. LaPier maintained defendant 

had nothing to do 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 to support a conviction of the crime of burglary. 

Specification of error I. Defense counsel made an oral 

motion, just before the jury was selected, to continue the trial 

until a later date. Defendant intended to call Dale Miller, the 

person responsible for the installation and maintenance of the 

alarm system at Qssello's, but Miller left the state just before 

the trial was to commence. Miller's testimony was desired to 

show the alarm system was activated only by motion in the store, 
thus leaving open the possibility LaPier and his alleged accomplice could have remained in the store for a period of time before 

defendant arrived and before the alarm was tripped. Defendant 

contends Miller left the state to avoid testifying because the 

owner of Ossello~s threatened to obtain a new alarm system if 

Miller revealed the intricacies of the old system in court. The 

owner testified that while he had stated he might change the 

system, he had not threatened to take his business away from 

Miller. 

Section 93-4910, R.C.M. 1947 states in pertinent part: 

"A motion to postpone a trial on grounds of the 

absence of evidence shall only be made upon 

affidavit showing the materiality of the evidence 

expected to be obtained, and that due diligence 

has been used to procure it.* * *'I 

Here, no affidavit was 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 in a hung jury. The trial involved 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, 111 Mont. 459, 

110 P.2d 969. In view of defendant's failure to comply with 

section 93-4910, it cannot be said the trial court 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 to sustain a conviction of burglary in that 

there was no showing defendant intended to commit an offense 

within the building. The standard of this Court to measure jury 

determination is stated in State v. Merseal, 167 Mont. 409, 415, 
"This Court remains evermindful of one fundamental rule--that queBtions of fact must be 

determined solely by the ,3ury, and that given 

a certain legal minimum of evidence, this Court 

on review will not substitute its judgment for 

that of the jury. * * * 

"On appeal we examine the evidence to determine 

whether the verdict is supported by substantial 

evidence. In so doing, we view the evidence 

in the light most favorable to the State." 

See also: State v. Farnes, Mon t . , 558 P.2d 4'7% 33 

St.Rep. 1270; State v. Stoddard, 147 Mont. 402, 412 P.2d 827. 

Therefore, this Court is limited to an examination of the evidence 

in the light most favorable to the state and a determination of 

whether there was substantial evidence to support defendant's 

conviction. 

While defendant's story, if believed, would lead to a 

conclusion he was not guilty of the crime of burglary, the jury 

was not required to believe the testimony of defendant or the 

testimony of LaPier. Several factors tend to support the jury's 

conclusion: 

1. Defendant was found in Ossellols Furniture 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 in the nighttime is 

there for the purpose of committing a theft. State v. Hopkins, 

11 Utah 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 set had been pushed up against the 

opening in the lower panel of the garage door, 

3. Defendant's version of the incident was corrobrated 

only by his friend LaPier. No tracks were seen leaving the 

building, no other person was found in the building, and defendant 
himself stated to the police that he and LaPier were the only 

I people in the building. 

4. There was conflicting testimony regarding the 

possibility of anyone gaining entrance through the broken upper 

panel. If defendant could not have entered the building through 

the upper panel, it eould be inferred he was inside the building 

when the television set was placed to block the opening in the 

lower pane 1. 

While defendant argues there was no direct proof of 

intent to commit a theft from Ossello's, the rule has long been 

established in Montana that use of circumstantial evidence is an 

acceptable and often convincing method of proving criminal intent. 

As we restated in State v. Farnes, Mont . , 558 P.2d 472, 

475, 33 St .Rep. 1270, citing State v. Cooper, 158 Mont. 102, 110, 

'I I~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 

or positive proof and therefore must usually be 

inferred from the facts testified to by witnesses 

and the circumstances as developed 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 

to commit an offense within the building. There was substantial 

evidence to support that conclusion. 

The judgment of conviction is affirmed. 
We Concur: