No. 12781 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1975 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vs - 

CLAYTON KLEIN , 

Defendant and Appellant, 

Appeal from: District Court of the Thirteenth Judicial District, 

Honorable C. B. Sande, Judge presiding. 

Counsel of Record : 

For Appellant : 

William Fitzgera ld argued, Billings, Montana 

For Respondent: 

Hon. Robert L. Woodahl, Attorney Genera 1, Helena, 

Montana 

Thomas A, Budewitz, Assistant Attorney General, 

argued, Helena, Montana 

Harold F. Hanser, County Attorney, argued, Billings, 

Montana 

Submitted: November 7, 1975 

i Decided : , kJ 

Filed : 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

Defendant, Clayton Henry Klein, appeals from a judgment 

of conviction of robbery entered on a jury verdict in the district 

court, Yellowstone County. 

By Information, filed January 7, 1974, Klein was charged 

with one count each of robbery, in violation of section 94-5-401(1) (b), 

R.C.M. 1947; burglary, in violation of section 94-6-204, R.C.M. 

1947; and criminal possession of dangerous drugs, in violation of 

section 54-133, R.C.M. 1947. The Information listed ten witnesses 

for the state, six were Billings police officers. The affidavit 

in support of the Information, stated: 

"At about 10:OO p.m. on January 1, 1974, the defendant 

entered the Montana Bar Cafe located at 2624 Minnesota 

Avenue, Billings, Montana, and ordered a bowl of stew 

which he ate and paid for. As the waitress was clearing 

away the dishes and cleaning the counter, the defendant 

pulled out a pistol, pointed it at the waitress and said 

I 'I'm going to-rob you; give me your money, She gave 

him approximately $85.00 from the cash register and he 

ran out the west- door and west up the alley. 

"After the restaurant was closed, and about 3:10 A.M. 

on January 2, 1974, two waitresses and the operator of 

the cafe were leaving the area by car when they saw the 

defendant break into the office of the Yellow Cab garage 

located at 2611 Minnesota Avenue, Billing, Montana, enter 

and then leave by the broken door. Taken was about $12.00 

in cash. The witnesses have positively identified the 

defendant as the person involved in both the robbery and 

burglary. 

"After defendant's arrest at the pool hall across the 

street from the Yellow cab garage within a few minutes 

after defendant came out of the garage, and when searched, 

defendant had one (1) yellow capsule in his pocket which 

tested positive for barbiturate, which defendant admitted 

he bought for pleasure purposes. It 

At his arraignment, def enda,n t pled not guilty to all 

three counts and trial was scheduled for February 25, 1974. Before 

trial, defendant withdrew his plea of not guilty on the criminal 

possession of dangerous drugs count, and went to trial only on the 

robbery and burglary counts. 

On February 20, 1974, the prosecution moved to endorse 

six additional witnesses not named on the Information. The court 

on February 22, granted the motion to add the six witnesses. Only 
four of the six additional witnesses were called to testify at the 

trial. Defendant objected to the testimony of two of the witnesses 

but only after direct and cross-examination was had and then his 

objection was to strike the testimony on grounds that the state 

knew of these witnesses when the Information was filed on January 

At the close of the second day of trial, the prosecution 

moved to endorse the names of four witnesses not previously disclosed. 

Two of these witnesses were Billings police officers who had 

investigated the burglary, one was the owner-manager of the Yellow 

Cab Co., and the fourth was an employee of the cab company. 

The state claimed it did not know that the testimony would 

be required until during the presentation of the state's case 

regarding some evidentiary matters in connection with the burglary 

count. Defendant objected to the additional witnesses. The objection was based on the grounds that they were known to the prosecution 

at the time the Information was filed; they should have been included 

on the lnformationls list of witnesses; and to allow them to be 

endorsed at this stage of the trial would be prejudicial. The 

court asked, "DO you want a continuance?" Defense counsel responded, 

I I I am not asking for a continuance." The court then stated "Well, 

the court would grant you one possibly, if you asked for one. I I 

The district court allowed the motion by the state to endorse the 

witnesses and two of the four testified. 

The jury returned a verdict of not guilty on the burglary 

charge and guilty on the charge of robbery. Based on a motion to 

increase punishment pursuant to section 95-1506, R.C.M. 1947, 

which had been previously filed, defendant was sentenced to 30 years 

at Montana state prison. Defendant pled guilty to the criminal 

possession of dangerous drugs charge and was sentenced to one 

year at the state prison, to run concurrently with the 30 year 

robbery sentence. 
Defendant appeals from the final judgment and presents 

three issues for review. 

1) Whether the court erred in allowing the State to 

endorse additional witnesses? 

2) Whether the use of the word innocent in a jury instruction was error? 

3) Whether the district court properly instructed the jury 

as to the intent required for a conviction of the crime of robbery? 

Section 95-1503, R.C.M. 1947,provides: 

"A charge shall: * * * 

"(d) If the charge is by information or indictment, 

it shall include endorsed thereon, the names of the 

witnesses for the state, if known." 

Section 95-1803, R.C.M. 1947, provides: 

"(a) List of Witnesses: (1) For the purpose of notice 

only and to prevent surprise, the prosecution shall 

furnish to the defendant and file with the clerk of 

the court at the time of arraignment, a list of the 

witnesses intended to be called by the prosecution. 

The prosecution may, any time after arraignment, add 

to the list the names of any additional witnesses, upon 

a showing of good cause. * * *. " 

With section 95-1803, R.C.M. 1947, appears this Revised 

Commission Comment: 

"Further, this provision allows the addition of names 

not only prior to trial, but after the trial has 

commenced. As the trial progresses, the showing which 

is necessary to establish 'good cause' should be more 

stringent. At any time, the judge may allow a continuance (section 95-1708) if it should appear necessary 

in the interest of justice. 11 

In State v. Rozzell, 157 Mont. 443, 450, 486 P.2d 877, 

this Court reviewed section 95-1803(a) (1) and stated: 

11 I Good cause' has been defined as a 'substantial 

reason', one that affords a legal excuse. I I 

The court should first determine whether the need for the additional 

witnesses and the reason for their not being disclosed earlier is a 

"substantial reason", It should then determine whether there is 
prejudice based on surprise and whether this surprise can be 

overcome by the granting of a continuance. If the surprise element 

can be overcome by a continuance, then the witnesses should be 

endorsed and the continuance granted. The spirit and intent of the 

law is that names and addresses of potential witnesses should be 

disclosed as soon as they are known. 

Here, defendant did not make a proper or timely objection 

to the witnesses endorsed prior to trial and further claimed no 

surprise nor did defendant request a continuance. As to the 

witnesses endorsed during trial, the defendant did not claim surprise and declined a continuance offered by the court. Additionally, 

defendant was acquitted on that count. Therefore, we find no 

prejudice or error. 

Defendant objects to court's Instruction No. I. Instruction No. 1 is taken from Montana Jury Instructions Guide 

Criminal, which in turn is taken from CALJIC (3d ed) No. 1.00. 

It is entitled "Cautionary Ins truc tion-Omnibus ~~~e''. The language 

objected to reads: 

I I You must not suffer yourselves to be biased against 

a defendant because of the fact that he has been 

arrested for this offense, or because an information 

has been filed against him, or because he has been 

brought before the Court to stand trial. None of these 

facts is evidence of his guilt, and you are not permitted 

to infer or to speculate from any or all of them that 

he is more likely to be guilty than innocent." (Emphasis 

added. ) 

Defendant presents an argument, without authority, based 

only on semantics to the effect that "innocent" would confuse a 

I I jury where the term not guilty" would not. We are not moved by 

this discussion. Instruction No. 1, as stated above, is a cautionary 

instruction to establish the presumption of innocence and read 

with! the instructions that followed, properly placed the burden of 

proof on the state to establish guilt beyond a reasonable doubt. 

Defendant next argues that the instructions concerning 

specific intent, were not sufficient; that the jury must consider 
1 I intent1' in addition to considerations of "knowingly" or "purposely". Defendant cites as error the court's refusal of eight 

defense instructions illustrative of this proposition. First, 

four of the instructions are not before the Court as they pertain 

to the burglary count of which defendant was acquitted. We do 

not agree the refusal of the remaining four was error. 

Defendant was convicted of the crime of robbery as 

defined in section 94-5-401, R.C.M. 1947, which reads: 

"(I) a person commits the offense of robbery if, 

in the course of committing a theft, he: 

"(a) inflicts bodily injury upon another; or 

"(b) threatens to inflict bodily injury upon 

any person or purposely or knowingly puts any person 

in fear of immediate bodily injury; or 

"(c) commits or threatens immediately to commit 

any felony, . other than theft. 11 

The proscribed conduct under section 94-5-401 (1) (b) , 

I 1 is threatens to inflict bodily injury upon any person or * * * 

1 I puts any person in fear of immediate bodily injury. However, 

such conduct is criminal only if done "purposely or knowingly". 

Therefore, the specific intent required before a conviction for 

the crime of robbery may be had is that the accused must have 

I I acted either purposely or knowingly". 

court's Instructions No. 5 and No. 6, defined purposely 

and knowingly, respectively, as per section 94-2-101(28),(53). 

Helpful in determining the meaning of the code provision is the 

following annotator's note appearing in the "Montana Criminal Code, 

1973, Annotated", by Prof. William F. Crowley as produced by the 

Montana Criminal Law Commission, under section 94-2-101(53) at 

page 73. There it was said: 

"A major problem of prior Montana criminal law was 

the use in the code of numerous terms affecting 

culpability that were largely undefined. Under the 

new Code, the mental states required for various 

degrees of culpability are defined carefully in a 

hierarchy. 'Purposely' is the most culpable mental 

state anh implies a design. This term replaces a term 

frequently used in the old code, 'intentionally.' 
It should be noted that a person need not act 

toward a particular result; he need act only 

with the object to engage in certain conduct. 

Although a person's intentions may be conditional,, 

his mental state is still culpable under this 

definition, unless the condition negates the specific 

intent required by statute, Completing the hierarchy 1 of mental states in the new Code are the terms knowinglyt 

and 'negligently,' each defined in this section." 

(Emphasis supplied.) 

It is clear that the legislature intended the words 

'1 purposely" and "knowingly" would substitute for the word 

"felonious" (i.e., intentionally) as used in the old code. 

See: Section 94-4301, R.C.M. 1947, repealed.) 

The judgment of the district co 

, 

We Concur: