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

### 251977 Filed: 

## 9CT2

## 5

# rsr

ClerkMr. Chief Justice Paul G. Hatfield delivered the Opinion of the Court: Defendant Kevin Murphy was charged and convicted of burglary in the districtcourt, SilverBow County. From the jury verdict and subsequent sentence, defendant appeals. On May 

### 3, 1976, atapproximately 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 inButte, Montana, and saw an individual kicking the door window atLen'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 inone individual on the streetanswered back tothewitnesses' shouts from the second floor apartment. Defendant was recognized by one of the witnesses asbeing near Len's atthe time the storewas broken into. Also, an individual

was seen running from the store and dropped a can orbottle out of hishand. 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 inpursuit the police observed the two throw items into a yard. One suspectwas identified

asdefendant. menarrested defendant had fivecans of Olympia beer inhispossession. Officer Albert Johnson, who apprehended defendant testified attrialthat he believed otherswere involved in the break in butwere not apprehended. Defendant didnot take the stand. Mike McMeekin, arrested who with defendant andplead guilty to the burglary, testified anIndian named Randy kicked in the door glass, ran into the store, grabbed some beer and ran out. McMeekin further testified thatwhile Randy was kicking the door, "these guys came out from across the street and started yelling atusffand he, McMeekin, swore atthem. Attrial the prosecution was not able to establish that defendant actuallyentered the building. On appeal defendant presents but one issue for this Court's review: Did the trialcourt err ingiving 

### its Instructions Nos. 

### 17and 18 regarding defendant's liability as an aider and abettDr without charging him as an aider and abettor in the Information? The instructions inquestion read: "Instruction No. 

### 17 "A person is legally accountable for the conduct of another, when, eitherbefore or during the commission of an offense, and with the purpose topromote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person inthe planning or commission of the offense.I1 "Instruction No. 18 "You are instructed that allpersons 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 inviolation of section 94-6-204(1), R.C.M. 1947. It 

### isnot clear that defendant was charged withaccountability forburglary 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 thejury was instructed in Instructions Nos. 17 and 

### 18 constitutes a failureto fully apprise defendant of the charges against him and resulted in surprise tohim when the prosecution sought these instructions. Further, this failure precluded defendant frombeing apprised of the specific charge against him and the chance tobe heard on the issues caused by the charge. Defendant's contentions fail. First, the trialcourt did not err in giving Instructions Nos. 17 and 18, which instructed thejury as to "aiding and abetting". The instructions arenot challenged as an incorrect statement of the law, but rather the challege isbased upon the failure of the state to specificallycharge the defendant with accountability in the Information. Prior toMontana's new criminal code, section 94-6423, R.C.M. 1947, and interpreting case Statev. Zadick, 148Mont. 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 todevelop it infull. Section 94-2-107 is substantially the same as the source, section 5-2, Chapter 38 of the Illinois Criminal Code. Under Illinoiscase law interpreting section 5-2, an indictment need not distinguish an actperformed by the accused himself and the act of another forwhich 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 statutoryconstructionwhere inadopting

a statute from a sister state, the court adopts the construction placed upon itby the highest court of the state from which it 

### is adopted. Stateex rel. PhilMankin v. Wilson Mont

# . 9-

-9 P.2d 

## ,34 St.Rep. 1075 (1977). Defendant further argueshe was surprised and precluded from knowing specifically the charges against him by the state's failure to 

### list the additional charges inInstruction Nos. 17 and 18. The court record contains defendant's proposed instruction Nos. 

### 17, 18, 19 and 20. The trialtranscript reveals the trialjudge refused these proposed instructions. This Court wonders how counsel for defendant can soboldly claim surprise. The trial transcript and court record reflect the fact defendant was not surprised. Allfour of defendant's proposed instructions pertain to "aiding and abetting". Additionally, the stateclaims 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) eitherbefore or during the commission of an offense and with the purpose topromote or facilitate such commission, he solicits, aids, abets, agrees toattempt toaid, 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 stateplanned to charge the defendant with aiding and abetting, inproper practice it 

### should have-done so from 

### the onset.Second, the giving of InstructionsNos. 

### 17and 18are 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 

### isnot sufficient. Defense counsel failed to object tothe giving of Instruction No. 17. Failure to object precludes the defendant from assigning error to such instruction on appeal. Statev. Holt, 121Mont. 459, 463, 194 P.2d 651.(1948); Statev. Best, 161Mont. 20, 24, 503 P.2d 997 (1972). Defense counsel did object toInstruction No. 18, but only on the basis that itwas repetitive of No. 

### 17. In defendant's brief on appealhe alleges a different reason for the instruction being improper. Only valid objections made at the 

### timeof the settlement of instructions

### may be considered by this Court on appeal. Statev. Best, supra. The judgment isaffirmed.

We Concur:



### I