No. 12228 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1972 

STATE OF MONTANA, 

Plaint iff and Respondent, 

-vs - 

PHLZLIP HARRIS, 

Defendant and Appellant. 

Appeal from: District Court of the Sixteenth Judicial District, 

Honorable Alfred B. Coate, Judge presiding. 

Counsel of Record: 

For Appellant: 

Evalyn B. Carson argued, Billings, Montana. 

For Respondent: 

William J. Krutzfeldt argued, Miles City, Montana. 

Robert Woodahl, Attorney General, Helena, Montana. 

J. C. Weingartner, Assistant Attorney General, 

argued, Helena, Montana. 

Submitted: May 18, 1972 

Decided : JuL 't - 1972 

File 
Xr, Justice John Conway Harrison delivered the Opinion of 

the Court. 

Defendant, Phillip Harris, was convicted of burglary in 

the first degree in the district court of the sixteenth judicial district, county of Custer, and sentenced to fourteen 

years, with four years suspended, in the Montana state prison. 

From this judgment, defendant appeals. 

During the fall months of 1970, a codefendant of Harris, 

one Leon Meidinger, began frequenting Kelly's Gaslite, a bar 

in Miles City. Working at the bar was Lila Williamson, an 

acquaintance of Meidinger. Meidinger expressed an interest 

in where the owner of the bar, Earl Kelly, kept his money. 

At the trial Meidinger testified that he had played in a poker 

game in the basement of Kelly's Gaslite and was aware that considerable cash was involved in the game. In November 1970, 

Meidinger pursuaded Lila Williamson to obtain a duplicate of 

her key to the bar and his brother picked up the key for Meidinger . 

On December 11, 1970, Lila Williamson contacted a local 

policeman, Larry Kuchynka, and told him that during the night 

of December 11 Kelly's Gaslite bar would be burglarized. 

Kuchynka notified Kelly, the owner, and then proceeded with 

local police and sheriff's deputies to stake out the bar. 

Kelly, before closing the bar after 2 a.m., December 12, 

thoroughly checked the premises upstairs and down, and found 

no one in the premises. Knowing that he might be burglarized 

that night, he left the safe unlocked no doubt hoping to prevent wear and tear on the safe. 

The information given policeman Kuchynka by Lila Williamson proved to be correct when about fifteen minutes after Kelly 

closed the Gaslite officers staked out across the street saw 
defendant use a key to enter the bar. At trial Kuchynka gave 

the following description of what took place: 

"A. We laid there for quite awhile, about 2:45 

A.M. a male subject with brown colored coat was 

observed by himself and the - by myself, and the 

other two officers, walking west down Main Street. 

He got to the door of the Gaslight and he very 

abruptly turned into the door. It appeared he 

stuck a key or something in the door and pulled 

it open and stepped inside. 

"Q. What did you next observe? 

"A, About 3:00 A.M. we were laying there awaiting 

for him to come out. We saw the curtain in the 

door rustle back and forth and a head appeared 

looking out the door. At that time I called the 

other officers in to assist, He looked out the 

door. The door come flying open and you might 

say he jumped out in the middle of the street and 

turned east and just started walking as casually as 

anyone else. I I 

Defendant's early morning walk was interrupted by seven 

law enforcement officers. When they frisked defendant they 

found a walkie-talkie and a bag full of checks and currency, 

tied with a cord around defendant's neck. At the time 

defendant was ordered to put up his hands the arresting 

officers heard what turned out to be the duplicate key to 

Kelly's Gaslite bar fall to the pavement. 

Following the arrest and search of defendant, the officers 

went into the Gaslite bar, using defendant's key, and there 

they were not surprised to find the safe open and empty. They 

found the dial of the safe had been knocked off and alongside 

the safe was a hammer, so in spite of owner Kelly's precaution 

the safe was damaged. 

Later, Kelly identified checks and currency which had been 

in the safe and which were removed from the bag found hanging 

around defendant's neck when he was apprehended. 

As the officers came out of the bar following completion 

of their investigation there, one of them noted a camper pickup 

parked across the street cater-corner from the Gaslite bar. 
The officers recognized the truck; it belonged to Leon Meidinger, 

a known personality to law enforcement officers in the area. When 

one officer flashed his flashlight into the truck, he discovered 

Meidinger crouched down in the truck. He was ordered to get out 

of the truck and to the officer's surprise a walkie-talkie similar in design and cover to that found on defendant, was in his 

possession. 

The officer who recognized the camper pickup testified he 

had seen the pickup parked across the street from ~elly's Gaslite ' 

bar at approximately midnight, though both defendant and Meidinger 

alleged they did not arrive in Miles City until 2:30 a.m. The 

pickup had stolen license plates and both defendant and Meidinger 

admitted stealing the plates at Rosebud, Montana, en route to 

Miles City. 

Both defendant and Meidinger were arrested and charged with 

burglary, Each posted bail of $3,750. While awaiting release 

on bail, they were in the sheriff's office talking to relatives. 

Both Sheriff Damrn and Officer Adrian at that time heard Meidinger 

say to his brother "I should have known better to pull something 

like this in my home town. It 

Defendant's defense as to why he had entered the Gaslite 

bar after closing hours was that he wanted to see if there was 

a poker game in the basement of the bar, even though he had never 

played in the game. He failed to explain the walkie-talkie or 

the bag of checks and currency found tied around his neck. 

On appeal defendant presents six issues for review: 

1. Was there entrapment in this case as a matter of law? 

2. Was there a "breaking1' and entering and therefore a 

burglarious entry? 

3. Was the defendant compelled to be a witness against 

himself in violation of his constitutional rights under the 

Fifth Amendment to the United States Constitution? 

4. Was the defendant's right to privacy invaded in violation of the Fourth Amendment to the United States Constitution 
which prohibits unreasonable search and seizure? 

5. Was the punishment of fourteen years, with four years 

suspended, at hard labor, cruel and unusual punishment under 

the facts of this case? 

6. Was the introduction of the parole officer's report 

at the presentence hearing a violation of the defendant's 

rights under the Sixth Amendment of the United States Constitution and Article 111, Section 16, of the Montana Constitution? 

We find no merit to defendant's first issue as to entrapment. Entrapment was not argued at the trial nor were instructions requested. State v. Parr, 129 Mont. 175, 283 P.2d 1086; 

State v. ~'Donnell, 138 Mont. 123, 354 P.2d 1105. In this case 

there was no decoy, no solicitation, nor any inducement to 

defendant to commit the burglary. 

This Court in a recent consideration of the plea of entrapment, State v. Karathanos, Mont . , 493 P.2d 326, 331, 

29 St.Rep. 81, had this to say: 

I1 Entrapment occurs only when the criminal intent 

or design originates in the mind of the police 

officer or informer and not with the accused, and 

the accused is lured or induced into committing a 

crime he had no intention of committing, Only when 

the criminal design originates, not with the accused, 

but in the mind of government officers and the 

accused is by persuasion, deceitful representations, 

or inducement, lured into the commission of a criminal 

act, can a case of entrapment be made out. In short, 

there is a controlling distinction between inducing 

a person to do an unlawful act and setting a trap to 

catch him in the execution of a criminal design of 

his own conception." 

Here, defendant relied on alibi as a defense and the 

defense of entrapment cannot be heard for the first time on 

appeal. Sylvia v. United States, 312 F.2d 145. 

~efendant's second issue questions whether or not his 

entrance into the bar constituted a "burglarious entry". 

Section 94-901, R.C.M. 1947, reads: 
I1 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. I I 

All that is required as elements of the crime of burglary 

11 is an entry1' with the "intent" to commit a felony. State v. 

Richter, 152 Mont. 449, 451 P.2d 833. Here, defendant admitted 

entering Kelly's Gaslite bar after the hour of 2:30 a.m. and he 

was seen by the stake out officers so entering, therefore there 

is no question as to his entry. 

There is ample evidence to show defendant's entry was 

illegal. He had never been in the bar before and he used a key 

obtained by his partner. He left behind a safe with the dial 

removed, a hammer and a punch. He was found with a walkietalkie, identical to the one found on his partner. Finally, he 

had the currency sack hung around his neck. One cannot help 

but wonder what more proof could have been presented of a 

felonious intent, We find no merit in defendant's second issue. 

In his third issue defendant questions the admission into 

evidence of the fruits of the crime found as the result of a 

valid search, in violation of his Fifth Amendment rights, His 

argument that admission into evidence of the contents of the bag, 

checks and currency, compelled defendant to be a witness against 

himself, is without merit. 

In State v. Benson, 91 Mont. 21, 26, 5 P.2d 223, this Court 

commenting on the admission into evidence of shoes, a gun and 

shells found lying near defendant when he was arrested, said: 

 h he constitutional rights of those accused of 

crime are sufficiently safeguarded under our 

practice without stretching the search and seizure 

provision of our Constitution beyond recognition 

of its framers. The articles were not obtained by 

unlawful search and seizure (Const., Art. 111, sec. 7), 

and their use on the trial of defendant did not compel 

him to become a witness against himself (Const., Art. 
111, sec. 18). (Browne v. United States, (C.C.A.) 290 

Fed. 870; Baron v. United States, (C.C.A.) 286 Fed. 

822.)" 

Also see: State v. Houchin, 149 Mont. 503, 428 P.2d 971; 

State v. Armstrong, 149 Mont. 470, 428 P.2d 611; State v. 

Callaghan, 144 Mont. 401, 396 P.2d 821. This has long been 

the rule recongized by the United States Supreme Court. Weeks 

v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L ed 652; 

Harris v. United States, 331 U.S. 145, 67 Sect. 1098, 91 L ed 

1399. 

Defendant's fourth issue relates to whether the search 

and seizure was a lawful incident of arrest. He seems to argue 

that once the officers had determined defendant had no weapon 

frisking should have been terminated. Had this occurred the 

searching officers would not have found the money bag, even 

though it was visible under his coat. Also, he seems to argue 

that pointing a machine gun at him made the search both unreasonable and illegal. 

The rule on search incident to a lawful arrest has been 

stated many times---a search of the person incidental to a 

lawful arrest is valid. In Chime1 v. California, 395 U.S. 752, 

89 S.Ct. 2034, 23 L ed 2d 685, 694, the United States Supreme 

Court said: 

"When an arrest is made, it is reasonable for the 

arresting officer to search the person arrested in 

order to remove any weapons that the latter might 

seek to use in order to resist arrest or effect 

his escape. I I 

Concerning defendant's objection to the officers cutting 

the cord from his neck and taking the currency bag, all that 

need be said is that it was part of the "fruits of the crime" 

and the seizure was legal. Preston v. United States, 376 U.S. 

364, 84 S.Ct.881, 11 L ed 2d 777. We find no merit in defendant's 

fourth issue. 
~efendant's fifth issue alleges the length of the sentence 

given to be cruel and unusual punishment in violation of his 

rights under the Eighth Amendment to the United States Constitution. We considered such an argument in Karathanos and held: 

"It is the general rule that a sentence within the 

maximum authorized by statute is not cruel and unusual punishment. The Ninth Circuit Court of Appeals 

in Black v. United States, 269 F.2d 38, 43, affirmed 

a thirty year sentence on a narcotic charge. There 

appellant, then 51 years of age, argued that this 

amounted to life imprisonment. The maximum punishment in Montana for the crime which defendant was 

charged with, is life imprisonment. Black was denied 

certiorari by the United States Supreme Court. 361 

U.S. 938, 80 S.Ct. 379, 4 L.Ed.2d 357. 

"1n Black is language applicable to this case: 

 he he Eighth Amendment was adopted to prevent 

inhuman, barbarous or torturous punishment. It 

is possible for the length of a sentence to be so 

disproportionate to the offense as to fall within 

the inhibition. Hemans v. United States, 6 Cir., 

163 F.2d 228, 237. Ordinarily, however, where the 

sentence imposed is within the limits prescribed by 

the statute for the offense committed, it will not 

be regarded as cruel and unusual. Edwards v. United 

States, 10 Cir., 206 F.2d 855. In our view the 

aggregate sentence imposed on Black is not so disproportionate to the offense committed as to offend 

the Eighth Amendment ban, 111 

In Montana the penalty for first degree burglary is imprisonment for not less than one nor more than fifteen years. 

Section 94-903, R.C.M, 1947. Defendant was sentenced to 

fourteen years with four years suspended and thus the sentence 

comes within the maximum authorized. We reject defendant's 

fifth issue. 

~efendant's final issue concerns alleged denial of his 

rights due to certain evidence being submitted at the presentence 

hearing. Section 95-2204, R.C.M. 1947, sets out the scope of 

inquiry regarding the presentencing report: 

11 Whenever an investigation is required, the probation officer shall promptly inquire into the 

characteristics, circumstances, needs, and potentialities of the defendant; his criminal record and 

social history; the circumstances of the offense; 
the time the defendant has been in detention; 

and the harm to the victim, his immediate family, 

and the community. All local and state mental 

and correctional institutions, courts, and police 

agencies shall furnish the probation officer on 

request the defendant's criminal record and other 

relevant information. The investigation shall include a physical and mental examination of the 

defendant when it is desirable in the opinion of 

the court. I I 

Both defendant and his counsel were present at the presentence hearing held October 28, 1971, and counsel exercised 

extensive cross-examination of the witnesses. ~efendant's 

activities submitted as a part of the report disclosed no prior 

convictions, but did show prior charges of statutory rape, armed 

robbery and second degree murder. All this was properly presented 

for the court's consideration under the above cited statute. 

We find no merit in defendant's final issue. 

Tlle judgment of the district court is affirmed. 

sociate Justice 

/ Chief ~ustice