No. 12382 INTHE 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 JudicialDistrict, 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 isan appeal from the districtcourt of the fourteenthjudicial district in Musselshell County with the Honorable Nat Allen presiding. The defendant isappealing from ajury 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 itappears 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. Atthis time his home was in order, nothingwas missing. Owen then went to his uncle's house and returned to his home atapproximately 

### 9:45 p.m. Owen testified that he was going to lie down and watch television before going tobed, and atthis point he realized that his television was missing. Owen changed clothes and was preparing togo toRoundup to report the theftwhen he heard a knock athis back door. Owen answered the knock; however, no one was there. Another knock was heard 

### atthe 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 shirtwith red and white stripes on itand he had 

### a knife in his hands, or itwas 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 itand it seemed tobe predominantly leveled tome." Stewart told Owen that Stewart's friend had stolen Owen's television and stereo and had lost the keys 

### tohis 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 forthe keys inthe house--directing his investigation to those areas where the television and stereowere formerly located, Owen went 

### tohis uncle's house toobtain another flashlight, however, he also borrowed his uncle's shotgun. Owen then returned 

### toStewart, whowas waiting by his automobile several hundred yards from Owen's house. Stewart had still not located the keys tohis automobile. Holding the shotgun in his hand, Owen stated that he did not believe Stewart's story, and Owen wanted 

### toknow who Stewart's friend was that took his stereo and television. Stewart refused to identify his friend. Owen, todemonstrate his sincerity in getting to the basis of the robbery, fired one barrel of his shotgun, the volley of pellets being directed atthe 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 pellets

were directed atthe other side of Stewart. Stewart still refused to give any information in regard 

### tothe 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

### 'sautomobi1e. Four issues arepresented to this Court forreview. 

### First, did the districtcourt err in granting the state'smotion to amend the charge in the information from burglary in the firstdegree toburglary? Second, did the districtcourt err in proceeding with the trial? Third, did the district court err indenying defendant's motion for a directed verdict? Fourth, did the districtcourt err in refusing togive defendant's offered instructions Nos. 6, 7, 8, 9, 10, and ll? 

### First, the districtcourt did not err in granting the prosecution's motion toamend 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 firstdegree. On the day setfor trial the prosecution amended the charge toburglary. The defendant objected 

### tothis, 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 tobe amended. This 

### Court has 

### just recently held 

### thatan information may charge adefendant withthe crime of burglary. Stateex rel. Wilson 

### v. District Court, 159Mont. 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 thejury. The question tobe decided by thisCourt iswhether the amended information charged a crime different innature from that previously charged, and if such amendment sufficientlyapprised the defendant of the charges against him. The crime charged isthe same, i,e., burglary. The elements of the crime are the same. The proof tothe crime would remain the same. The only difference between the two charges would be the degree of the crime, which 

### must be determined by thejury. 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 districtcourt'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, a11the 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 inthe firstdegree: that is, during the nighttime. Ifthis 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 actduring the daytime, then the defendant would have to be acquitted of the charge against him. On a specific charge of firstdegree burglary theremay not be a conviction for second degree burglary. Stateex rel. Wilson 

### v. District Court, supra. Second degree burglary is not a lesser included offense of firstdegree burglary. Section 95-1505(b), R.C.M. 1947, permits the charge against the accusedto be amended atany time provided 

### " 

## *

## * * no additional or different offense ischarged and if the substantial rights of the defendant arenot 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 inability 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 firstdegree burglary to burglary. The second issue raised on the appeal is, did the trial court err inproceeding with the trial? The defendant maintains that the district court erred in a1lowing the information to be amended and further erred when the districtcourt proceeded with the trial without giving the defend

### antthe chance

### toenter a plea 

### tothe amended information. Defendant did not enter a plea tothe charge of burglary, although he had entered a plea of not guilty tothe charge of firstdegree burglary. The defendant did 

### notrequest 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 tothe charge of burglary, and if he further believed that the failureof the court 

### to have him enter 

### a plea violated his substantial rights, Stewart should have brought this matter 

### tothe attention of the districtcourt. An elementary principle of law exists that states if a plea isnot 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 toplead guilty, could have pled guilty atany time. Section 95-1902, R.C.M. 1947. No errorwas committed in not allowing the defendant to enter a plea tothe amended information. The third issue presented to this Court iswhether 

### or not the trial court erred in denying defendant's motion for a directed verdict.

### The rulewith regard to the granting ofmotions for directed verdicts was stated by this Court 

### in State

### v. Yoss, 146 Mont. 508, 514, 409



### "Adirected verdict in a criminal case in this jurisdiction is given only where the State fails to prove its case and there is no evidenceupon which a jury could base its verdict." In considering whether the district court erred in

### refusing to grant the defendant'smotion for adirected verdict the evidencemust be viewed in

a lightmost favorable to the prosecution. State

### v. Peschon, 131 Mont. 330, 310P.2d 591. Herewitnesses testified as to the incidents that followed the discovery of the missing articles. The district courtwas correct in submitting the case to the jury. This Court also notes that when substantial evidence in the district court record supports the verdictwe 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 instructionsNos. 6, 7,8,

### 9, 10

### and 

### 11. Proposed instructionNo. 6

### would have instructed the jury thatdefendantwas charged with burglary 

### in the first degree. This is not true. Defendantwas chargedwith burglary and thedegree of the crimewas left for the jury to determine, Proposed instructionNo. 7would have instructed the jury that,as
amatter of law,they cannot find the defendant guilty of firstdegree burglary but that they could find him guilty of second degree burglary. This is not true. Defendantwas charged with burglary--the jury had the duty to assess thedegree 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 

### isgiven, Proposed instruction No. 10would 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 isnot true. Defendant was charged with burglary. The degree of burglary had tobe decided by thejury.

Proposed instruction No. 11 would have instructed thejury that defendant was charged with firstdegree burglary and in order tofind him guilty they 

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

was not true and itwas proper toreturn a verdict of second degree burglary. The Court finds 

### thatthe district court did not err inrefusing to give these instructions. The judgment 

### is affirmed.

Me concur:

Asso iateJustices 

# \Mr. Justice Frank I. Haswell and Mr. Justice Gene B. Daly dissenting: We respectfully dissent to the view of themajority. While the majority seem to tacitlyrecognize thatMontana statutes prohibit 

### an amendment of the charge ina matter of substance after defendant enters his plea, they reason that the difference between a charge of firstdegree burglary and second degree burglary issimply a matter of form. The difficulty with this approach is that itdoes 

### not square with Montana statuteswhich 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 comission in the daytime. Section 94-902, R.C.M. 1947. A person cannot be convicted of second degree burglary under a charge of firstdegree 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, 135Mont. 139, 337 P.2d 924; Stateex rel. Wilson 

### v. Dist. Ct., 159Mont. 439, 498 P.2d 1217. The punishment forthe

### two crimes 

### isdifferent, one to fifteenyears imprisonment in the stateprison for first degree burglary as compared with not more than fiveyears imprisonment for second degree burglary. Section 94-903, R.C.M. 1947. Are these differences simply matters of form without substance? Additionally, the majority 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 who1e constitutional and statutoryframework of fairtrial guarantees on which our system of criminal justice is bottomed. 

### To putthe matter in perspective, the issue forreview in thiscase 

### is not the ultimate guilt

### or innocence of the defendant, butwhether he had a fair trial. Here on the day of trial the defendant was stripped of a clear and absolute defense 

### tothe original charge by reason of the amendment, and denied a continuance 

### toprepare 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.