No. 88-264 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

STATE OF MONTANA, 

plaintiff and Respondent, 

-VSCHARLES MATTHEW FELDT, 

Defendant and Appellant. 

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APPEAL FROM: District Court of the ~ighth Judicial ~istrict, 

In and for the County of Cascade, 

The Honorable Joel Roth, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Nichael R. ~ramelli, Great Falls, Montana 

For Respondent: 

Hon. Marc ~acicot, Attorney General, Helena, Montana 

James ello ow tail, Asst. Atty. General, Helena 

patrick Paul, County Attorney; Stephen ~uddpeth, Deputy, 

Great Falls, Montana 

Filed: 

submitted on ~riefs: July 20, 1989 

Decided: October 19, 1989 

Clerk _. .IC 
~ustice John C. Sheehy delivered the opinion of the Court. 

Defendant, Charles Matthew Feldt, appeals his January 

12, 1988, bench conviction in the Eighth Judicial ~istrict 

Court, Cascade County, for burglary and theft. The Honorable 

Joel G. Roth sentenced Feldt to serve five years for burglary 

and five years for theft, with the sentences to run 

concurrently. The imposition of both sentences was 

suspended. Feldt appeals the conviction of burglary. We 

reverse. 

The issue on appeal is stated as follows: (1) Whether 

the trial court erred in finding that the defendant entered 

his employer's premises "unlawfully," thereby committing 

burglary under § 45-6-204(1), MCA. 

On the morning of April 27, 1987, the manager of T. C. 

Foods, a convenient store in Great Falls, Montana, was called 

to the store by the morning clerk. Upon arrival, the manager 

found a set of keys in the door, subsequently determined to 

have been issued to defendant, Feldt, an employee at T. C. 

Foods. The manager discovered $1,459 was missing from the 

safe. In addition, the manager found a note posted on the 

cash register which stated, "I know you trusted me, but I 

couldn't handle it at home. I am sorry. If you want, you 

can try and get the money out of my car or bike. Chuck." 

On April 28, 1987, the defendant turned himself in to 

the Great Falls police department. He gave the police a bag 

containing $1,219 at the time of his surrender. He confessed 

to entering the store after hours by means of his keys, 

taking the money and leaving the note on the cash register. 

At trial, the manager testified that all employees were 

given keys to the store and access to the store safe. The 

defendant testified that he was required to open and close 
the store and he was permitted access to the store's safe. 

According to both the manager and the defendant, the manager 

allowed employees to enter the store after business hours for 

any proper purposes. The evidence fails to disclose, from 

the State or from the defendant, that when the store key was 

delivered to Feldt, any limitation, written or oral, was 

placed upon his use of it, or upon his access to the safe. 

I. 

Whether the trial court erred in finding that the 

defendant entered his employer's premises "unlawfully" 

thereby committing the act of burglary under S 45-6-204 (1) , 

MCA? 

Section 45-6-204(1), MCA, defines burglary as follows: 

A person commits the offense of burglary if he 

knowingly enters or remains unlawfully in an 

occupied structure with the purpose to commit an 

offense therein . . . 

"Enters or remains unlawfully" is defined in S 45-6-201, MCA, 

which reads in pertinent part: 

A person enters or remains unlawfully . . . when he 

is not licensed, invited, or otherwise privileged 

to do so. 

This Court in State v. Starkweather (1931), 89 Mont. 

381, 297 P. 497 held that an entry made by one who is 

licensed or privileged to be on the premises is not unlawful 

under the burglary statute. The Court in Starkweather 

stated: "There is no breaking in or entering a house or room 

and therefore, no burglary, if the person who enters has a 

right to do so." Starkweather, 297 P. at 498. To constitute 

a burglary the nature of the entry must itself be a trespass. 

Starkweather, 297 P. at 498. 

 his Court in Starkweather, focused on whether there was 

a limitation upon the defendant's right to enter a pool hall. 

In Starkweather, the Court found no limitation on the 
defendant's right to enter the pool hall. This case turns on 

the same issue, that is whether there is any limitation on 

Feldt's right to enter T. C. Foods. The defendant Feldt was 

given permission to enter T. C. Foods where he was employed. 

As an employee of T. C. Foods, the manager gave Feldt a set 

of keys to enter the store and provided Feldt with access to 

the safe. In issuing the keys, the manager provided Feldt 

with authority to enter the premises at any time. The record 

reveals no limitations to the defendant's right to enter the 

store. However, the manager did testify at trial that Feldt 

could only enter the store after it was closed for proper 

purposes. Despite the manager's testimony, Feldt could enter 

T. C. Foods at any time day or night. 

Under this Court's holding in Starkweather, and §§ 

45-6-204 and 45-6-201, MCA, the defendant can not be 

convicted of burglary. He lawfully entered the building 

after closing hours with keys provided by the manager of T. 

C. Foods. Feldt did not trespass when he entered T. C. 

Foods. His keys granted him authority to enter T. C. Foods 

after hours. 

The State argues that Feldt abused his privilege to 

enter T. C. Foods after hours, when he entered for the 

improper purpose to steal the money from the safe. The State 

further contends that Feldt's improper entry into T. C. Foods 

after hours transforms his original permissible entry into a 

trespass that can form the basis of a burglary charge. State 

v. Courville (Mont. 1989), 769 P.2d 44, 48. while Feldt 

acted improperly in taking the money from the safe, his entry 

into T. C. Foods was authorized by management. Feldt was 

properly charged and convicted for theft, but the State 

failed to meet the "unlawful entry" element of the burglary 

statute and this Court's previous holding under Starkweather. 
Finally, the State argues that the requirement of a 

trespassory entry under Starkweather is no longer accurate 

under the new burglary statute. We find little merit in the 

State's argument, since the Criminal Code Commission 

specifically endorsed the Court's holding in Starkweather in 

rewriting the burglary statute. The Criminal Law Commission 

specifically codified the Starkweather decision when it wrote 

§ 45-6-204, MCA: 

. . . or as defined in S 94-6-201 entering or 

remaining unlawful. 

This definition is meant to exclude from burglary 

the servant who enters an employer's house meaning 

to steal silver; the shoplifter who enters the 

store during business to steal from the counter; 

the fireman who forms the intent as he breaks down 

the door of the burning house to steal some of the 

householder's belongings; and similar acts in which 

the defendant is lawfully on the premises. 

Where breaking is not required, there has been a 

tendency to hold that guilt may be established by 

proof that the prescribed intent was secretly 

entertained in the mind of the entrant although 

apart from the secret intent, the entrance at that 

time and place would have been authorized. For 

example, in People v. Brittain, 142 Cal. 8, 75 P. 

314, it was held that one could be convicted of 

burglary for entering a store with larcenists 

intent. The Commission rejects this view and 

approves the decision on State v. Starkweather, 89 

Mont. 381, 297 P. 181 (1931) as a more practical 

result. 

Criminal Law Comm. Comments at 236-237. 

The defendant had access to T. C. Foods and did not 

"enter or remain unlawfully" as defined in 5 45-6-201, MCA. 

Since there was no unlawful entry, the defendant's actions do 

not constitute a burglary as defined in § 45-6-204, MCA. We 

reverse the burglary conviction. The theft conviction was 

not appealed. The sentence imposed upon Feldt for the 
~istrict Court is modified to strike therefrom the penalty 

assessed for burglary, and as modified, the sentence is 

affirmed. 

We Concur: 

Justices 
Justice L. C. Gulbrandson, dissenting. 

I respectfully dissent. The trial judge, in Finding of 

Fact Number 6 found: 

T.C. Foods store was closed for business 

when the defendant entered said store and 

took the money. Defendant did not have 

permission to enter the store at that 

time and he did not have permission to 

take the money. 

In my view, there is sufficient evidence in the record 

to affirm the conviction for burglary. The manager of T.C. 

Foods store had personally hired the defendant and knew the 

defendant's work schedule. At trial, the manager testified 

as follows: 

Q. Now, the Defendant, Charles Matthew 

Feldt, even though he is an employee of 

your store, did he have your permission 

to enter the store after hours? 

A. No. 

Q. And, if the Defendant was not working 

a shift on Sunday night before you arrive 

at the store Monday morning, then 

technically, isn't it correct, if at all, 

that an employee in his position would 

not have permission to go back and turn 

the coffee off or anything like that? 

A. Right. 

Q. Because he wouldn't have been working 

that shift, isn't that my understanding? 

A. Yes. 

Q. So, he really can't have any 

permission at all to go into the T.C. 

Foods between the times you closed on 
Sunday and you opened on Monday, isn't 

that my understanding of it? 

A. Yes. 

Q. He didn't have permission to go into 

the store for any purpose such as turning 

the alarm on, or turning the coffee off, 

maybe to lock a door, things like that. 

Isn't that my understanding of the 

situation? 

A. Yes. 

Testimony at trial established that the defendant had 

not worked on the Sunday preceding the incident, and he was 

not scheduled to work Monday, the day of the incident. 

The defendant testified personally as follows: 

Q. Now, you had nobody's permission to 

go into the store at that time; isn't 

that correct? 

A. Not at that time. 

The foregoing testimony, in my view, supports the trial 

judge's finding that defendant did not have permission to 

enter the store at that time. The record as a whole supports 

the trial judge's verdict that the defendant was guilty of 

burglary. 

The majority opinion, in my view, has disregarded State 

v. Courville (Mont. 1989), 769 P.2d 44, 46 St.Rep. 338, 

wherein this Court stated: 

A verdict of acquittal may be 

directed in favor of the defendant only 

if no evidence exists upon which to base 

a guilty verdict. See State v. Matson 

(Mont. 1987), 736 P.2d 971, 44 St.Rep. 

874; State v. Whitewater (Mont. 1981), 

634 P.2d 636, 38 St.Rep. 1664; and 

§ 46-16-403, MCA. The foregoing 

testimony of T. B. regarding Courville's 

entry was sufficient for the case to go 

to the jury. . . 
Even had the jury found that T. B. may 

have invited Courville to sleep 

downstairs on her couch, that invitation 

certainly did not include going up to her 

bedroom in order to choke and sexually 

assault her. Such conduct exceeds any 

reasonable privilege and the trial court 

properly let the burglary charge go to 

the jury for determination. See also 

State v. Manthie (1982), 197 Mont. 56, 

641 P.2d 491; State v. Watkins (1974), 

163 Mont. 491, 518 P.2d 259 ("when a 

person exceeds the limits of his 

privilege . . . he thereby transforms his 

original invited presence into a trespass 

that can form the basis of a burglary 

charge. ") 

Courville, 769 P.2d at 47-48. See also State v. 

Christofferson (Mont. 1989), 775 P.2d 690, 46 St.Rep. 1049. 

I would affirm. 

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Justice R. C. McDonough: 

I concur in the foregoing dissent. 

Justice 

Chief Justice J. A. Turnage: 

I concur in the dissent of Justice Gulbrandson. It is 

unfortunate that prosecuting attorneys persist in filing burglary charges when, as in this case, there are facts that clearly 

establish a separate felony and no useful purpose is served in 

the administration of justice in filing an additional charge of 

burglary. 

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