No. 12923 

IN THE SUPREME COIJRT OF THE STATE OF MONTANA 

1975 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

-vs - 

JERRY A. AMOR, 

Defendant and Appellant. 

Appeal from: District Court of the Eighth Judicial District, 

Honorable Paul G. Hatfield, Judge presiding. 

Counsel of Record : 

For Appellant : 

Morrison, Ettien and Barron, Havre, Montana 

Robert D. Morrison argued, Havre, Montana 

For Respondent: 

Hon. Robert L. Woodahl, Attorney General, Helena, 

Montana 

Jock 0. Anderson, Assistant Attorney General, argued, 

Helena, Montana 

A. Evon Anderson, County Attorney, argued, Fort Benton, 

Montana 

Submitted: September 23, 1975 

Decided: ,ji";r r: 

' : <J d*,# ,J 

I + 

Filed : 

Clerk 
Mr. Chief Justice James T. Harrison delivered the Opinion of 

the Court. 

This is an appeal from a jury verdict, entered in the 

district court, Chouteau County, finding defendant guilty of 

burglary in the first degree. 

The defendant was charged with burglarizing a drug 

store in Big Sandy, Montana on October 12, 1973. Briefly, the 

facts leading up to defendant's arrest and conviction are as 

follows: At about 11:OO p.m. a Choteau County deputy sheriff 

noticed a black pickup parked beside the highway in Big Sandy. 

Approximately a half-hour later the deputy sheriff noticed the 

same black pickup a short distance up the road with defendant's 

green pickup parked next to the black pickup. The deputy sheriff 

saw defendant carry a box from his pickup and put it in the black 

pickup. The owner of the black pickup, Kronebusch, was observed 

placing a paper sack into defendant's pickup. The deputy sheriff 

investigated the reason for the pickups being at that location 

and noticed, by looking into them, two paper bags, a red box, 

and a syringe, all in Kronebusch's pickup. Defendant was allowed 

to go on his way and Kronebusch was detained for possible illegal 

possession of drugs. While the above transpired, the owner of 

the drug store discovered his store had been burglarized and certain items of merchandise removed. While at the police station, 

the drug store owner looked into Kronebusch's pickup and observed 

a clock radio which appeared to him to be one that he had on sale 

at the store. The deputy sheriff called the Havre police to arrest 

defendant and seize his boots, for comparison with boot prints 

found in the store. At the time of his arrest, no property stolen 

from the store was found in defendant's possession. Defendant 

was found guilty of burglary in the first degree and sentenced 

for a term of twelve years. From this verdict defendant appeals. 
The issue presented to this Court is whether sufficient 

evidence was presented at trial to support a jury verdict of 

guilty of burglary in the first degree. 

The pertinent portions of the Montana criminal statutes 

in effect at the time of the burglary are: 

Section 94-901, R.C.M. 1947 

"Burglary defined. Every person who enters any 

house, room, apartment, tenement, shop, warehouse, 

store, mill, barn, stable, outhouse, or other 

building, tent, motor vehicle and aircraft, 

vessel, or railroad car, with intent to commit 

grand or petit larceny or any felony, is guilty 

of burglary." 

Section 94-902, R.C.M. 1947 

"Degrees of burglary. Every burglary committed in 

the nighttime is burglary in the first degree, 

and every burglary committed in the daytime is 

burglary in the second degree." 

Section 94-905, R.C.M. 1947 

"Nighttime defined. The phrase 'nighttime1, as used 

in this chapter, means the period between sunset 

and sunrise." 

Entry in the nighttime with felonious intent is an 

essential element of burglary in the first degree. State v. 

Copenhaver, 35 Mont. 342, 89 P. 61. This Court in State v. Solis, 

163 Mont. 293, 295, 516 P.2d 1157, has recently stated: 

"Commission of a burglary is predicated upon the 

'entry' with the requisite felonious intent. Hence, 

the burglary occurs at the time of the entry upon 

the premises." 

In order to establish entry in the nighttime, substantial 

evidence must be presented by the State establishing the time 

when such entry occurred. State v. Fitzpatrick, 125 Mont. 448, 

The only witness presented by the State who might have 

testified as to the time of entry was the owner of the drug 

store. He testified that he had not been in his store the afternoon of the burglary, and was in fact in Havre that afternoon, 
returning to Big Sandy around 11:OO p.m. that night. There was 

no testimony presented as to what time the store closed on 

October 12, 1973, nor as to what time any employees locked up 

the store on that day, nor as to when the stolen merchandise 

was last seen in the store. No witness for the State testified 

as to the time of sunset on October 12, 1973, so as to set a 

time after which the requisite nighttime entry might happen. 

The State admits the evidence of nighttime entry introduced at trial was circumstantial and required the jury to infer 

that the requisite nighttime entry had occurred. The jury was 

left to rely on those facts which exist in the minds of all jurors 

by virtue of their common knowledge and experience to infer the 

time of entry. All without the introduction of substantial evidence as to time of entry. 

As this Court said in Fitzpatrick, at page 452: 

"Not only was there no substantial evidence to 

prove when the burglary occurred, but there was 

a total failure on the part of the state to prove 

such burglary was committed in the nighttime. This 

being so, the state failed to prove one of the 

essential elements of the crime, as charged in the 

information, and the judgment of conviction cannot 

stand. " 

The judgment is reversed and the cause is remanded to 

the district court with directions to dismiss the information. 

Chief Justice 

We concur: 

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