No. 12463 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1973 

STATE OF MONTANA, 

Pla intif f and Respondent, 

-VS - 

CHARLES R. CJATKINS , 

Defendant and Appellant. 

Appeal from: District Court of the Thirteenth Judicial District, 

Honorable Robert H. Wilson, Judge presiding. 

Counsel of Record : 

For Appellant : 

John L. Adams argued, Billings, Montana 

For Respondent: 

Hon. Robert L. Woodahl, Attorney General, Helena, 

Montana 

Thomas Beers, Assistant Attorney General, argued, 

Helena, Montana 

Harold F. Hanser, County Attorney, Billings, Montana 

Diane G. Barz, Deputy County Attorney, appeared, Billings, 

Montana 

Submitted: October 1, 1973 
Honorable Paul G. Hatfield, District Judge, sitting for Justice 

John Conway Harrison, delivered the Opinion of the Court. 

On October 31, 1972, defendant Charles R. Watkins was 

tried, and on November 1, 1972, convicted of burglary in the 

second degree in the district court, Yellowstone County. He was 

sentenced to a term of five years in the state prison. From this 

conviction and judgment he appeals. 

Either late on May 5, 1972, or early in the morning May 6, 

1972, the rear door of the Gorham Park Drug, located at Broadwater 

Avenue and 19th Street West in Billings, Montana, was found open 

by a merchant policeman. The owner-manager testified he had brred 

the rear door from the inside of the store and left the store 

through the front door, which he locked, at approximately 8:15 p.m. 

on May 5, 1972. 

The testimony was uncontradicted that defendant frequented 

the store quite often; that defendant was in the drugstore on the 

evening of May 5 with a companion; that he stayed quite awhile; 

that he bought either Winston or Camel cigarettes, as the clerk 

recalled; and, that no employee of the store saw defendant leave 

the premises. 

Testimony of the investigating officers revealed that, 

in their opinion, no forced entry of the premises was made. However, they did conclude that escape was made through the rear door. 

There was further testimony that someone had been hiding in the 

back storeroom. In fact, several Camel cigarette butts were found 

in a storage area between boxes. This was an area of the premises 

used for storage and not open to the public. Investigation also 

uncovered a pair of gloves which were dirty and greasy. The safe 

was peeled. Found at the safe were a screwdriver and a chisel, 

which did not belong to the store. Also found was the dial from 

the safe and the shaft housing from the inside of the safe, which 

the police marked. 

Inventory of missing items given by the store manager to 

the police at the time of the investigation included a pistol with 
its make, model and serial number; watches; cigarette lighters; 

and quite a bit of medicine from the pharmacy. There was also money 

and some narcotics missing from the safe. 

On the morning of May 7, 1972, authorities, armed with a 

search warrant, searched the premises of Room 6, in the Uptown Motel, 

Billings, Montana. In the room was defendant Charles Watkins. 

The authorities found a pistol which matched in make, model and serial 

number the pistol reported stolen from the Gorham Park Drug; and a 

narcotics label with the Gorham Park owner's initials, which labels 

were kept on the narcotics in the safe at the drugstore, in the room. 

They also found in the room an attache case containing numerous drugs, 

along with some watches and cigarette lighters. These items were 

all similar to the items reported missing from the Gorham Park Drug, 

but they had no identifying marks and, therefore, were not positively 

identified. Also found was a wallet in a shaving kit in a box next 

to or on the bed in the room. In the wallet were two ID'S belonging 

to defendant. Next to the box was found a paper sack containing 

brass, whiich together with pieces of the safe found at the scene 

of the crime were sent to the F.B.I. The F.B.I. reported this brass 

could have been from the same safe as the brass found at the scene 

of the crime. 

Placed in evidence were two registration cards for Room 6 

of the Uptown Motel. One of these cards listed the address of the 

signer as 317 South 27th Street. This address is the address of 

one-half of a duplex. There was testimony that the other half of 

this duplex was rented to a Charles Watkins and a Betty Jones about 

a year prior to the date of the crime. Also on this registration 

card was listed a license number of a car owned by a person known 

to associate with defendant. Finally, there was found in Room 6 

of the Uptown Motel a laundry tag with Watkins's name on it and the 

address 2612 South First. Testimony indicated this address is 

located between 26th Street South and 27th Street South in Billings. 

Too, there was evidence of the statement made by defendant at the 

sheriff's office, which will be discussed with more particularity 

later. 
Defendant contends that no burglary was committed because 

of the lack of forced entry. The attorney on appeal is not the 

same attorney who represented defendant at trial, and this argument was not presented at trial. As a matter of fact, in the 

closing argument to the jury the defense counsel said: 

"* * * Now we do not deny that a burglary must 

have taken place. The police say it took place, 

it must have taken place. But, Ladies and Gentlemen, this defendant didn't do it. I' 

Further, the case law cited by defendant requiring a trespass, State v. Mish, 36 Mont. 168, 170, 92 P. 459, affirmed State 

v. Rodgers, 40 Mont. 248, 251, 106 P. 3, and carried out in State 

v. Starkweather, 89 Mont. 381, 386, 297 P. 497, is: 

"* * *'in order to constitute a burglarious 

entry the nature of the entry must be itself 

a trespass.' A trespass is the invasion of 

the possession of another. (Coburn Cattle Co. 

v. Hensen, 52 Mont. 252, 157 Pac. 177; 

Thrasher v. Hodge, 86 Mont. 218, 283 Pac. 219.)" 

The two cases cited in the above quotation are civil cases. In 

this case, someone exceeded the invitation given as a business 

invitee and stayed in the store after business was closed, becoming 

a trespasser. 

The principal contentions of defendant are (1) that the 

evidence viewed in its entirety was insufficient in law to justify 

conviction of the crime of burglary in the second degree; (2) that 

the pistol introduced in evidence was introduced without proper 

foundation laid for its admission; (3) that evidence of other crimes 

including the fact defendant was under surveillance for another 

crime was prejudicial and improperly introduced; (4) that the statement taken from defendant by the sheriff was coerced and should have 

been suppressed; and (5) that the closing argument of the prosecutor 

was prejudicial to the rights of defendant to a fair and impartial 

trial. 

Concerning defendant's first contention, this Court in State 

v. Joseph Lee Allen, Mont . , 509 P.2d 849, 850, 30 St.Rep. 

532, 533, 534, examined a similar conviction. In Allen the Court 

said: 
"The record shows that during the early morning 

hours of December 8, 1969, the Eagles Club Bar 

in Bozeman, Montana was burglarized. There was no 

forced entry and the crime was accomplished by the 

burglar hiding himself in the building until the 

club closea at 1:00 a.m. He then wheeled the safe 

from the office where it was kept into the bar area. 

This was done so he was not visible from the outside of the building. The safe was turned on its 

back, the door pried off, and over $5,000 in small 

bills, fives, tens and twenties, stolen. II 

The same contention, lack of evidence, was made in Allen and 

the Court said: 

 h his Court has been faced with this issue in 

several previous cases. Just what weight and 

use should be given to circumstantial evidence 

in a criminal trial? We answered that question 

and established a test in State v. Cor, 144 Mont. 

323, 326, 396 P.2d 86 (1964). In that case we 

held: 

11 1 Circumstantial evidence is not always 

inferior in quality nor is it necessarily relegated to a "second class status" in the consideration to be given it. The very fact it is circumstantial is not a sufficient allegation to 

justify a reversal of the judgment for such evidence may be and frequently is, most convincing 

and satisfactory. In any criminal case, evidence 

that is material, relevant and competent, will be 

admitted, "nothing more and nothing less." The 

test is whether the facts and circumstances are of 

such a quality and quantity as to legally justify 

a jury in determining guilt beyond a reasonable 

doubt. If such be the case, then the court should 

not, indeed cannot, set aside the solemn findings 

of the trier of the facts.' 

1 I This test was used recently in a first degree 

murder case where the evidence of guilt was based 

on circumstantial evidence. State v. Gallagher, 

Mont . P.2d , 30 State Rep. 

rc~ay, m:" 

Again, in State v. Fitzpatrick, Mont *-Y 

P. 2d , 30 St. Rep. 1052, 1060, this Court reiterated the rule 

on circumstantial evidence. In the instant case there was sufficient evidence to justify the conviction. 

As to defendant's second contention--the introduction of 

the gun-- the objection is that the state failed to introduce in 

evidence the box in which the gun was kept and which was left at 

the scene of the crime, or at least that the serial number introduced at trial had not been compared with the box the gun had 

originally come in. However, the officers did testify they were 
given the serial number and that the gun recovered in motel Room 6 

bore the same serial number as the one given them after the burglary 

in the inventory of missing articles. State v. Wilroy, 150 Mont. 

255, 258, 259, 434 P.2d 138, sets out the rule: 

11 Failure to either properly identify the article, 

or to prove that no substantial change has taken 

place in the article, while in custody, constitutes 

ground for an objection that the proper foundation 

has not been shown. I1 

Xn this case a sufficient foundation was shown and as stated in 

Wilroy and in Fitzpatrick: 

"* * * we find the identification to have been 

sufficient. The lack of specific or positive 

identification marks is not of great import for 

the items were not so uncommon that a reasonable 

identification cannot be made. The lack of 

ositive identification goes to the weight of 

!he evidence rather than its admissibility. * * 

It is sufficient if they are shown to be connect 

with the crime, and identified as such." 

As to defendant's third contention--that evidence of other 

crimes including the fact defendant was under surveillance for another crime was prejudicial and improperly introduced in the case-- 

we have made a careful inspection of the record and find no merit 

in this contention. 

As to the fifth contention--that the closing argument of 

the prosecutor was prejudicial to the rights of defendant to a fair 

and impartial trial when he related evidence not introduced. Again, 

we have examined the final argument of counsel set out in the 

transcript, and the case law in State v. Watkins, 156 Mont. 456, 

481 P.2d 689; State v. Quigg, 155 Mont. 119. 467 P.2d 692; State 

v. Lucero, 151 Mont. 531, 445 P.2d 731; and State v. Jensen, 153 

Mont. 233, 455 P.2d 63). We find the remarks made by the prosecutor 

were not sufficiently prejudicial to require a mistrial. 

The remaining matter is defendant's fourth contention-- 

that the statement taken from defendant by the sheriff was coerced 

and should have been suppressed. During the time after the execution of the search warrant on May 7, 1972, and the time defendant 

was charged with the crime by direct Information on July 21, 1972, 
defendant on his own volition went to the sheriff's office and 

inquired as to obtaining his identification, which the sheriff 

had from the execution of the search warrant. Defendant contends 

that the statement taken at that time by the sheriff from him was 

coerced and should have been suppressed. Basically, the statement 

the sheriff took was merely a receipt for the identification which 

defendant wanted. The statement was required as a receipt for 

letting out of custody of the sheriff evidence that the search 

warrant had obtained, and it merely stated that the identification 

was his, the defendant Watkins. 

The first question is whether or not the statement was 

voluntary. The trial court properly held the hearing outside the 

presence of the jury and found the statement to be voluntary before 

allowing its admission into evidence. State v. White, 146 Mont. 226, 

236, 405 P.2d 761; State v. Iacero, 151 Mont. 531, 445 P.2d 731. 

At the time defendant signed the receipt he was represented 

by counsel. He was read the Miranda warning before he signed the 

statement. He was told in part that he had a right to remain silent; 

that anything he said could and probably would be used against him; 

that he had a right to consult an attorney before making any statement; but that he could waive these rights and make a statement 

without consulting an attorney if he desired. The statement itself 

says it is voluntary. Watkins testified he understood the warning. 

There were no threats nor promises made nor other coercion to get 

him to give the statement. Again, it should be stated that he went 

to the sheriff's office on his own initiative and the only admission 

was that the identifcation was his, which is merely a receipt 

which the sheriff would require anyone to sign in order to obtain 

any property the sheriff might have. 

Further, it should be remembered that Watkins himself was 

in the room at the time of the execution of the search warrant. The 

admission of the statement was not error. 

For the above reasons, the verdict was justified by the 
evidence. The pistol was properly admitted into evidence, and 

the trial court did not err in allowing statements made by the 

prosecution in closing argument, especially where no objection was 

made at the time. 

The conviction of burglary in the second degree is 

a£ firmed. 

...................................... 

Hon. Paul G. Hatfied, sitting for 

Justice John Conway Harrison. 

/i /chief Justice 

Justices.