No. 12781 INTHE 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 Fitzgerald argued, Billings, Montana For Respondent: Hon. Robert L. Woodahl, Attorney Genera1, 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 tenwitnesses for the state, sixwere 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 at2624 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 atthewaitress and said I 'I'm going to-robyou; give me your money, She gave him approximately $85.00 from the cash register and he ran out thewest- door and west up the alley. "After therestaurant was closed, and about 3:10 A.M. on January 2, 1974, two waitresses and the operator of the cafewere leaving the areaby carwhen they saw the defendant break into the office of the Yellow Cab garage located at 2611 Minnesota Avenue, Billing, Montana, enter and then leaveby thebroken door. Taken was about $12.00 incash. The witnesses have positively identified the defendant as the person involved inboth the robbery and burglary. "After defendant's arrest atthe 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 inhispocket which tested positive forbarbiturate, which defendant admitted he bought forpleasure purposes. It Athis arraignment, defenda,n t pled not guilty to all three counts and trialwas scheduled for February 25, 1974. Before trial, defendant withdrew his plea of not guilty on the criminal possession of dangerous drugs count, and went totrial only on the robbery and burglary counts. On February 20, 1974, the prosecution moved to endorse sixadditionalwitnesses not named on the Information. The court
on February 22, granted the motion to add the sixwitnesses. Onlyfour of the six additional witnesses were called to testify at the trial. Defendant objected to the testimony of two of thewitnesses but only after direct and cross-examination was had and then his objectionwas to strikethe testimony on grounds that the state knew of thesewitnesses when the Information was filed on January

Atthe 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 officerswho had investigated theburglary, one was the owner-manager of the Yellow Cab Co., and the fourthwas an employee of the cab company. The stateclaimed 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 theburglary count. Defendant objected to the additionalwitnesses. 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 tobe endorsed at this stage of the trialwould be prejudicial. The court asked, "DO you want a continuance?" Defense counsel responded,

III am not asking for a continuance." The court then stated "Well, the court would grant you one possibly, ifyou asked for one. II The district court allowed the motion by the state toendorse the witnesses and two of the four testified. The jury returned a verdict of not guilty on theburglary 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 atMontana stateprison. Defendant pled guilty to the criminal possession of dangerous drugs charge and was sentenced to one year at the stateprison, torun concurrentlywith the 

### 30 year robbery sentence.Defendant appeals from the finaljudgment and presents three issues forreview. 1)Whether the court erred in allowing the State to endorse additional witnesses? 2) Whether the use of theword innocent in a jury instruction was error? 

### 3) Whether the district court properly instructed thejury
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 isby information or indictment, it shall include endorsed thereon, the names of the witnesses for the state, ifknown." 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 filewith the clerk of the court atthe time of arraignment, a listof the witnesses intended tobe 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 totrial, but after the trialhas commenced. Asthe trialprogresses, the showing which isnecessary to establish 'good cause' should be more stringent. Atany time, thejudge 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:

11IGood cause' has been defined as a 'substantial reason', one that affords a legal excuse. II The court should firstdetermine 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 isprejudice 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 thewitnesses 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 areknown. Here, defendant did not make a proper or timely objection to the witnesses endorsed prior totrialand further claimed no surprisenor 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 findno prejudice or error. Defendant objects to court's Instruction No. 

### I. InstructionNo. 

### 1is taken from Montana Jury Instructions Guide Criminal, which inturn 

### istaken from CALJIC (3d ed) No. 1.00. It isentitled "Cautionary Ins truction-Omnibus ~~~e''. The language objected toreads:

I IYou must not suffer yourselves tobe biased against

a defendant because of the fact that he has been arrested for this offense, orbecause an information has been filed against him, orbecause he has been brought before the Court to stand trial. None of these facts 

### is evidence of his guilt, and you arenot permitted

to infer or to speculate from any or allof them that he ismore likely tobe guilty than innocent." (Emphasis added.) Defendant presents an argument, without authority, based only on semantics tothe effect that "innocent" would confuse a
II jury where the term not guilty" would not. We arenot 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 theburden of proof on the state toestablish guiltbeyond a reasonable doubt. Defendant 

### next argues that the instructions concerning specific intent, were not sufficient; that thejury must consider1Iintent1'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 arenot before the Court as they pertain to theburglary count of which defendant was acquitted. We do not agree the refusal of the remaining fourwas 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) inflictsbodily injuryupon another; or "(b) threatens to inflictbodily injuryupon any person orpurposely orknowingly puts any person in fear of immediate bodily injury; or "(c) commits or threatens immediately tocommit any felony,


### . other than theft. 11 The proscribed conduct under section 94-5-401 (1)(b)

## , I1 

### is threatens to inflictbodily injury upon any person or

# **

# *

1I puts any person in fear of immediate bodily injury. However, such conduct iscriminal only if done "purposely orknowingly". Therefore, the specific intent required before a conviction for the crime of robbery may be had 

### is that the accused must have

II acted either purposely orknowingly". court's Instructions No. 5 and No. 

### 6, defined purposely and knowingly, respectively, asper section 94-2-101(28),(53). Helpful indetermining 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 asproduced by the Montana Criminal Law Commission, under section 94-2-101(53) at page 73. There itwas said: "A major problem of prior Montana criminal law was theuse in the code of numerous terms affecting culpability thatwere largely undefined. Under the new Code, the mental statesrequired for various degrees of culpability are defined carefully ina hierarchy. 'Purposely' 

### is the most culpable mental stateanh implies a design. This term replaces a term frequentlyused 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 incertain conduct. Although a person's intentions may be conditional,, his mental state

### is stillculpable under this definition, unless the condition negates the specific intent required by statute, Completing thehierarchy 1 of mental states in thenew Code are the terms knowinglyt and 'negligently,' each defined in this section." (Emphasis supplied.) It 

### isclear that the legislature intended thewords

'1

purposely" and "knowingly" would substitute for theword "felonious" (i.e., intentionally) asused in the old code. See: Section 94-4301, R.C.M. 1947, repealed.) The judgment of the district co

,

We Concur: