No. 87-138
INTHE SUPREME COURT OF THE STATE OF MONTANA 1987

CITY OF BILLINGS, Plaintiff and Respondent,-vsDONALD E. BRINER, DefendantandAppellant.

APPEAL FROM: District Court of the Thirteenth JudicialDistrict, Inand for theCounty ofYellowstone, TheHonorable G. Todd Baugh,Judgepresiding. COUNSEL OF RECORD: ForAppellant: 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 defendantBrinerwas 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 convictedby jury inBillings City Courtand appealed. In a trialde novo in the DistrictCourt a jury of six found the defendant guilty of going in excess of the speed limit. The issueson appeal areas follows: 1. Did the court err in failing to instruct that the prosecutionmust 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 juryverdict forms? Initially, defendant argues error in failing to give, in pertinentpart, the following proposed instruction:

4. 

### The City of Billings has theburden 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,andc. That the alleged speed was in excess of the legal speed limit,and d. That the speed limitwas legallyposted at the locationof the alleged violation. At a minimum, the trial courtmust 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,inpart: InstructionNo. 2

3. The City of Billings has theburden ofproving 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 orproofbeyond a shadowofa doubt. InstructionNo. 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 reasonabledoubt. The wording of the court's instructionno. 2was 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 theprosecutor's burden and the elements of the offense of speeding. The defendant also argues that court's instructionnos. 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 hisproposed instruction no. 1:

2. By his plea ofnot guilty, thedefendant 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 amanner 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 thedefendant is alleged tohave driven, and specify also the speed applicable within thedistrictorwithin 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 defendantbe found guilty or not guilty as charge6 "and in the manner alleaed" in the complaint, thejury was allowed to find Briner guilty of speeding even though they did not find him guilty of driving 50 miles per hour in a 25mile 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 25miles per hour. Thiswas covered adequatelyby the jury instructions and verdict forms. The defendant was not prejudiced. We will not disturb the juryverdict or the court's judgment. / Affirmed.

We Concur: