No. 13647 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsKEVIN MURPHY, 

Defendant and Appellant. 

Appeal from: District Court of the Second Judicial District, 

Honorable Arnold Olsen, Judge presiding. 

Counsel of Record: 

For Appellant: 

Stimatz and Engel, Butte, Montana 

Joseph Engel argued, Butte, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

Dennis Moreen argued, Assistant Attorney General, 

Helena, Montana 

John G. Winston, County Attorney, Butte, Montana 

Submitted: September 27, 1977 

Decided: 8CT 25 1977 

Filed: 9CT 2 5 rsr 

Clerk 
Mr. Chief Justice Paul G. Hatf ield delivered the Opinion of 

the Court: 

Defendant Kevin Murphy was charged and convicted of 

burglary in the district court, Silver Bow County. From the 

jury verdict and subsequent sentence, defendant appeals. 

On May 3, 1976, at approximately 2:15 a.m., two witnesses 

heard a noise which aroused their attention. They looked out 

from their second floor apartment, located across the street 

from Len's Food Store in Butte, Montana, and saw an individual 

kicking the door window at Len's. The door window was subsequently kicked out and various items, including Olympia and 

Lucky Lager beer, were taken from the store. 

During the break in one individual on the street answered 

back to the witnesses' shouts from the second floor apartment. 

Defendant was recognized by one of the witnesses as being near 

Len's at the time the store was broken into. Also, an individual 

was seen running from the store and dropped a can or bottle 

out of his hand. 

By the time one witness was able to dress and move to the 

street, the police had arrived. They pursued two individuals 

running down the street and while in pursuit the police observed 

the two throw items into a yard. One suspect was identified 

as defendant. men arrested defendant had five cans of Olympia 

beer in his possession. 

Officer Albert Johnson, who apprehended defendant testified 

at trial that he believed others were involved in the break in 

but were not apprehended. 

Defendant did not take the stand. Mike McMeekin, arrested 

who 

with defendant andplead guilty to the burglary, testified an 
Indian named Randy kicked in the door glass, ran into the 

store, grabbed some beer and ran out. McMeekin further 

testified that while Randy was kicking the door, "these 

guys came out from across the street and started yelling 

at usff and he, McMeekin, swore at them. 

At trial the prosecution was not able to establish that 

defendant actually entered the building. 

On appeal defendant presents but one issue for this 

Court's review: 

Did the trial court err in giving its Instructions Nos. 

17 and 18 regarding defendant's liability as an aider and 

abettDr without charging him as an aider and abettor in the 

Information? 

The instructions in question read: 

"Instruction No. 17 

"A person is legally accountable for the conduct 

of another, when, either before or during the 

commission of an offense, and with the purpose 

to promote or facilitate such commission, he 

solicits, aids, abets, agrees or attempts to aid, 

such other person in the planning or commission of 

the offense .I1 

"Instruction No. 18 

"You are instructed that all persons concerned 

in the commission of a crime, whether it be a 

felony or a misdemeanor, or whether they directly 

commit the act constituting the offense or aid 

and abet in its commission, are principals in any 

crime as committed. And in this case, if you 

believe from the evidence that the Defendant did 

not directly commit the crime charged in the 

Information, yet if you do believe from the evidence, 

beyond a reasonable doubt, that he was present, 

knowing, aiding and abetting in its commission, you 

should find him guilty." 

Defendant contends it is clear the crime charged in the 

Information is only burglary in violation of section 94-6-204(1), 

R.C.M. 1947. It is not clear that defendant was charged with 
accountability for burglary of others under the provisions 

of section 94-2-106 or section 94-2-107, R.C.M. 1947. That 

the failure of the state to list the additional charges upon 

which the jury was instructed in Instructions Nos. 17 and 18 

constitutes a failure to fully apprise defendant of the 

charges against him and resulted in surprise to him when the 

prosecution sought these instructions. Further, this failure 

precluded defendant from being apprised of the specific 

charge against him and the chance to be heard on the issues 

caused by the charge. Defendant's contentions fail. 

First, the trial court did not err in giving Instructions 

Nos. 17 and 18, which instructed the jury as to "aiding and 

abetting". The instructions are not challenged as an incorrect 

statement of the law, but rather the challege is based upon 

the failure of the state to specifically charge the defendant 

with accountability in the Information. 

Prior to Montana's new criminal code, section 94-6423, 

R.C.M. 1947, and interpreting case State v. Zadick, 148 Mont. 

296, 419 P.2d 749 (1966), correctly stated the law. On January 

1, 1974, sections 94-2-106 through 94-2-108, R.C.M. 1947, 

replaced section 94-6423. The Criminal Law Study Commission 

stated in its comments that section 94-2-107 accepts the 

approach of section 94-6423 and endeavors to develop it in full. 

Section 94-2-107 is substantially the same as the source, 

section 5-2, Chapter 38 of the Illinois Criminal Code. Under 

Illinois case law interpreting section 5-2, an indictment need 

not distinguish an act performed by the accused himself and 

the act of another for which he is legally accountable. People 

_ .Jv. Nicholls, 43 I11.2d 91, 245 M.E.2d 771,777 (1969), cert.den. 
396 U.S. 1016, 90 S.Ct. 578, 24 L ed 2d 507 (1970). Montana 

follows. the rule of statutory construction where in adopting 

a statute from a sister state, the court adopts the construction 

placed upon it by the highest court of the state from which 

it is adopted. State ex rel. Phil Mankin v. Wilson 9- Mont . 

-9 P.2d , 34 St.Rep. 1075 (1977). 

Defendant further argues he was surprised and precluded 

from knowing specifically the charges against him by the 

state's failure to list the additional charges in Instruction 

Nos. 17 and 18. The court record contains defendant's proposed 

instruction Nos. 17, 18, 19 and 20. The trial transcript 

reveals the trial judge refused these proposed instructions. 

This Court wonders how counsel for defendant can so boldly 

claim surprise. The trial transcript and court record reflect 

the fact defendant was not surprised. All four of defendant's 

proposed instructions pertain to "aiding and abetting". Additionally, the state claims from the outset of the trial, on 

voir dire and in the opening statement, section 94-2-107(3) 

was argued. Under section 94-2-107(3) a person is legally 

accountable for the conduct of another when: 

"(3) either before or during the commission of an 

offense and with the purpose to promote or facilitate 

such commission, he solicits, aids, abets, agrees 

to attempt to aid, such other person in the planning 

or commission of the offense. * * *" 

While the record is clear that no surprise existed, 

this Court does not condone the method used by the state in 

charging the defendant. If the state planned to charge the 

defendant with aiding and abetting, in proper practice it 

should have-done so from the onset. 
Second, the giving of Instructions Nos. 17 and 18 are 

not reviewable by this Court. Section 95-1910(d), R.C.M. 

1947, states the respective parties shall specify and state 

the particular ground on which an instruction is objected to. 

A general objection is not sufficient. Defense counsel 

failed to object to the giving of Instruction No. 17. Failure 

to object precludes the defendant from assigning error to 

such instruction on appeal. State v. Holt, 121 Mont. 459, 463, 

194 P.2d 651.(1948); State v. Best, 161 Mont. 20, 24, 503 

P.2d 997 (1972). 

Defense counsel did object to Instruction No. 18, but 

only on the basis that it was repetitive of No. 17. In defendant's brief on appeal he alleges a different reason for the 

instruction being improper. Only valid objections made at 

the time of the settlement of instructions may be considered 

by this Court on appeal. State v. Best, supra. 

The judgment is af firmed. 

We Concur: 

I