No. 87-138 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

CITY OF BILLINGS, 

Plaintiff and Respondent, 

-vsDONALD 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. 20, 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 of 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: