No. 12382 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1973 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-VS - 

DAVID LEE STEWART, 

Defendant and Appellant. 

Appeal from: District Court of the Fourteenth Judicial District, 

Honorable Nat Allen, Judge presiding. 

Counsel of Record : 

For Appellant : 

James Reno argued, Billings, Montana 

Joseph E. Mudd argued, Billings, Montana 

For Respondent : 

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

Montana 

J. C. Weingartner, Assistant Attorney General, argued, 

Helena, Montana 

Roy C. Rodeghiero argued, Roundup, Montana 

- 

Submitted: February 28, 1973 

Decided: MAR 16 19n 

Filed : MAR 1 6 1973 
Mr. Chief Justice James T. Harrison delivered the Opinion of the Court. 

This is an appeal from the district court of the fourteenth judicial 

district in Musselshell County with the Honorable Nat Allen presiding. The 

defendant is appealing from a jury verdict finding him guilty of the crime 

of burglary in the second degree and a denial of the defendant's motion for 

a new trial. 

From the record it appears that John W. Owen resided on a ranch in 

Musselshell County, and arrived home from work about 6:30 p.m. on July 6, 

1972 and remained there unxil 7:OC p.m. At this time his home was in order, 

nothing was missing. Owen then went to his uncle's house and returned to 

his home at approximately 9:45 p.m. Owen testified that he was going to lie 

down and watch television before going to bed, and at this point he realized 

that his television was missing. 

Owen changed clothes and was preparing to go to Roundup to report the 

theft when he heard a knock at his back door. Owen answered the knock; however, no one was there. Another knock was heard at the front door which, when 

answered, produced the defendant David Lee Stewart. Stewart, according to 

Owen's testimony, was "standing there with long straggly hair and a shirt with 

red and white stripes on it and he had a knife in his hands, or it was mostly 

concealed by the palms of his hands, over the sheath of the knife which the 

blade was in, and the other palm of his hand had the handle of it and it 

seemed to be predominantly leveled to me." 

Stewart told Owen that Stewart's friend had stolen Owen's television 

and stereo and had lost the keys to his car. Stewart promised Owen that if 

he could help locate the keys that he would return the stolen articles. 

Stewart, with the aid of Owen's flashlight, began looking for the keys in the 

house--directing his investigation to those areas where the television and 

stereo were formerly located, 

Owen went to his uncle's house to obtain another flashlight, however, 

he also borrowed his uncle's shotgun. Owen then returned to Stewart, who 
was waiting by his automobile several hundred yards from Owen's house. 

Stewart had still not located the keys to his automobile. Holding the 

shotgun in his hand, Owen stated that he did not believe Stewart's story, 

and Owen wanted to know who Stewart's friend was that took his stereo and 

television. Stewart refused to identify his friend. Owen, to demonstrate his 

sincerity in getting to the basis of the robbery, fired one barrel of his 

shotgun, the volley of pellets being directed at the defendant's side. 

Stewart still was unwilling to volunteer any information in regard to the 

details of the robbery. Owen fired another shotgun blast, but the pel lets 

were directed at the other side of Stewart. Stewart still refused to give 

any information in regard to the robbery. Owen procured the local law enforcement personnel who, with the help of Owen and his friend, apprehended 

the defendant and recovered the television and stereo from the vicinity of 

Stewart 's automobi 1 e. 

Four issues are presented to this Court for review. First, did the 

district court err in granting the state's motion to amend the charge in 

the information from burglary in the first degree to burglary? Second, did 

the district court err in proceeding with the trial? Third, did the district 

court err in denying defendant's motion for a directed verdict? Fourth, did 

the district court err in refusing to give defendant's offered instructions 

Nos. 6, 7, 8, 9, 10, and ll? 

First, the district court did not err in granting the prosecution's 

motion to amend the charges in the information from burglary in the first 

degree to burglary. As the record indicates, the defendant was charged with 

burglary in the first degree. On the day set for trial the prosecution 

amended the charge to burglary. The defendant objected to this, claiming 

that the substance of the charge was substantially changed. This objection 

was overruled. Defendant now contends that the court erred in permitting the 

information to be amended. 

This Court has just recently held that an information may charge a 
defendant with the crime of burglary. State ex rel. Wilson v. District 

Court, 159 Mont. 439, 498 P.2d 1217, 29 St.Rep. 523. In the instant case 

the prosecution did just that, leaving the question of the degree of burglary to the jury. The question to be decided by this Court is whether 

the amended information charged a crime different in nature from that 

previously charged, and if such amendment sufficiently apprised the defendant of the charges against him. 

The crime charged is the same, i,e., burglary. The elements of the 

crime are the same. The proof to the crime would remain the same. The 

only difference between the two charges would be the degree of the crime, 

which must be determined by the jury. The amendment of the information did 

not surprise the defendant and did not prohibit him from preparing his defense against the crime. 

Defendant claims he was prejudiced by the district court's holding, 

but he has failed to show how this alleged error affected any of his substantial rights. The prosecution and defense both thoroughly investigated the 

incident. As the transcript shows, a1 1 the evidence presented firmly shows 

how and when the burglary transpired. All the evidence and testimony support 

the prosecution Is case. 

The original information charged the defendant with burglary in the 

first degree: that is, during the nighttime. If this charge had been allowed 

to stand the prosecution would have had to prove beyond a reasonable doubt 

that the defendant comitted the burglary during the nighttime. If the prosecution could not do this, or the jury believed that the defendant did commit 

the burglary but that he did the act during the daytime, then the defendant 

would have to be acquitted of the charge against him. On a specific charge 

of first degree burglary there may not be a conviction for second degree 

burglary. State ex rel. Wilson v. District Court, supra. Second degree burglary 

is not a lesser included offense of first degree burglary. 

Section 95-1 505(b), R.C .M. 1947, permits the charge against the accused 
to be amended at any time provided " * * * no additional or different 

offense is charged and if the substantial rights of the defendant are not 

prejudiced." No additional or different offense was charged by allowing 

the amendment; the crime was the same, the offense was the same, and only 

the degree of the crime was altered. The defendant has not shown how any 

of his substantial rights were prejudiced, nor has he shown any surprise or 

inabil i ty to prepare a defense because of the district court's holding. 

A point was brought out in oral argument before this Court that is 

worthy of note. On the Friday before the trial, the county attorney of 

Musselshell County informed the defense counsel that the charge would be 

amended from first degree burglary to burglary. 

The second issue raised on the appeal is, did the trial court err 

in proceeding with the trial? The defendant maintains that the district 

court erred in a1 lowing the information to be amended and further erred 

when the district court proceeded with the trial without giving the defendant the chance to enter a plea to the amended information. 

Defendant did not enter a plea to the charge of burglary, although 

he had entered a plea of not guilty to the charge of first degree burglary. 

The defendant did not request the court to allow him to enter a plea to the 

amended charge. If the defendant believed that he could have properly entered a plea to the charge of burglary, and if he further believed that the 

failure of the court to have him enter a plea violated his substantial rights, 

Stewart should have brought this matter to the attention of the district court. 

An elementary principle of law exists that states if a plea is not entered 

by the defendant the court will enter a plea of not guilty for him. Section 

95-1606(e), R.C.M. 1947. The defendant, if he desired to plead guilty, could 

have pled guilty at any time. Section 95-1902, R.C.M. 1947. No error was 

committed in not allowing the defendant to enter a plea to the amended information. 

The third issue presented to this Court is whether or not the trial 

court erred in denying defendant's motion for a directed verdict. 
The rule with regard to the granting of motions for directed verdicts was stated by this Court in State v. Yoss, 146 Mont. 508, 514, 409 

"A directed verdict in a criminal case in this jurisdiction is given only where the State fails to prove 

its case and there is no evidence upon which a jury 

could base its verdict." 

In considering whether the district court erred in refusing to grant 

the defendant's motion for a directed verdict the evidence must be viewed in 

a light most favorable to the prosecution. State v. Peschon, 131 Mont. 330, 

310 P.2d 591. 

Here witnesses testified as to the incidents that followed the discovery of the missing articles. The district court was correct in submitting 

the case to the jury. This Court also notes that when substantial evidence 

in the district court record supports the verdict we will not disturb the 

district court's findings on appeal. State v. Walker, 148 Mont. 216, 419 

P.2d 300, 

The fourth issue raised by the defendant is that the district court 

erred in refusing to give defendant's offered instructions Nos. 6, 7, 8, 9, 

10 and 11. 

Proposed instruction No. 6 would have instructed the jury that defendant was charged with burglary in the first degree. This is not true. 

Defendant was charged with burglary and the degree of the crime was left for 

the jury to determine, 

Proposed instruction No. 7 would have instructed the jury that, as 

a matter of law, they cannot find the defendant guilty of first degree burglary 

but that they could find him guilty of second degree burglary. This is not 

true. Defendant was charged with burglary--the jury had the duty to assess 

the degree of the crime. 
Proposed instruction No. 8 was an instruction regarding intent to 

commi t a felony. This instruction was previously covered by instructions 

numbered 7, 8, 9 and 10. 

Proposed instruction No. 9 was given. Defendant cannot claim error 

when one of his offered instructions is given, 

Proposed instruction No. 10 would have instructed the jury that even 

if they did find that defendant committed the burglary, they must return a 

verdict of not guilty if they believed the burglary was committed in the daytime. This is not true. Defendant was charged with burglary. The degree 

of burglary had to be decided by the jury. 

Proposed instruction No. 11 would have instructed the jury that defendant was charged with first degree burglary and in order to find him guilty 

they must find that the burglary was committed during the nighttime. This 

was not true and it was proper to return a verdict of second degree burglary. 

The Court finds that the district court did not err in refusing to 

give these instructions. 

The judgment is affirmed. 

Me concur: 

Asso iate Justices \ 
Mr. Justice Frank I. Haswell and Mr. Justice Gene B. Daly dissenting: 

We respectfully dissent to the view of the majority. 

While the majority seem to tacitly recognize that Montana statutes 

prohibit an amendment of the charge in a matter of substance after defendant enters his plea, they reason that the difference between a charge of 

first degree burglary and second degree burglary is simply a matter of 

form. The difficulty with this approach is that it does not square with 

Montana statutes which treat the two as separate, independent and distinct 

crimes. The essential elements of the two crimes are different, first 

degree burglary requiring commission in the nighttime, while second degree 

burglary requires comi ssion in the daytime. Section 94-902, R.C.M. 1947. 

A person cannot be convicted of second degree burglary under a charge of 

first degree burglary, the former not being a lesser included offense in 

the latter. State v. Copenhaver, 35 Mont. 342, 89 P. 61, cited with approval 

in State v. Board, 135 Mont. 139, 337 P.2d 924; State ex rel. Wilson v. 

Dist. Ct., 159 Mont. 439, 498 P.2d 1217. The punishment for the two crimes 

is different, one to fifteen years imprisonment in the state prison for first 

degree burglary as compared with not more than five years imprisonment for 

second degree burglary. Section 94-903, R.C.M. 1947. Are these differences 

simply matters of form without substance? 

Additionally, the majori ty hold that the defendant was not prejudiced 

by what was done here because no substantial right of his was violated. In 

our view, this rationale ignores the who1 e constitutional and statutory framework of fair trial guarantees on which our system of criminal justice is 

bottomed. To put the matter in perspective, the issue for review in this case 

is not the ultimate guilt or innocence of the defendant, but whether he had a 

fair trial. Here on the day of trial the defendant was stripped of a clear 

and absolute defense to the original charge by reason of the amendment, and 

denied a continuance to prepare a defense to the amended charge. In our view, 

fair trial guarantees were sacrificed on the altar of trial convenience and 

expediency in this case. 

For these reasons, we would grant the defendant a new trial.