No. 14353 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1979 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsPAUL BAD HORSE, JR., 

Defendant and Appellant. 

Appeal from: District Court of the Thirteenth Judicial District, 

Honorable Charles Luedke, Judge presiding. 

Counsel of Record: 

For Appellant: 

Stacey and Nye, Billings, Montana 

Calvin Stacey argued, Billings, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Mike McCarter argued, Assistant Attorney General, 

Helena, Montana 

James Seykora argued, County Attorney, Hardin, Montana 

- 

Submitted: October 30, 1979 

Decided : 
~ustice John C. Sheehy delivered the Opinion of the Court. 

Paul Bad Horse, Jr. appeals from a conviction and judgment 

entered in the District Court, Thirteenth Judicial District, 

Big Horn County, against him for the crime of robbery. 

The charge against the defendant arose out of the April 5, 

1975 abduction, robbery and murder of Monte Dyckman, a Safeway 

store employee in Hardin, Montana. 

The circumstances surrounding the death of Monte Dyckman 

have been before this Court on several occasions. Companion 

cases include State v. Holliday (1979), Mont . , 598 

P.2d 1132, 36 St-Rep. 1535; State v. Radi (1978), Mon t . 

, 578 P.2d 1169, 35 St.Rep. 489; and State v. Fitzpatrick 

(19771, Mont . , 569 P.2d 383, 34 St.Rep. 736. 

About April 5, 1975, Bad Horse met in a Billings bar with 

Travis Holliday, Edwin Bushman, Gary Radi and Bernard Fitzpatrick, 

where the group planned to rob the Safeway store in Hardin, Montana. 

Bad Horse told the others that bank deposits for the Safeway store 

were made daily at approximately 10:OO p.m. A rough map of Hardin 

was drawn on a napkin, and Bad Horse pointed out on the map the 

depository bank for the Safeway store. 

Later all five men met again at Radi's house. Fitzpatrick 

and Radi left for Hardin in Radi's car, while Bad Horse, Holliday, 

Bushman and two young girls went in another car. When the group 

met again in Hardin, they toured that city to survey the area. 

Bad Horse and Bushman pointed out the bank and the Safeway store 

to the others. Bushman produced some rope for use in the robbery, 

and Bad Horse went into a Hardin bar and borrowed a knife to cut 

the rope in pieces. 

At approximately 10:OO p.m., the closing time of the 

Safeway store, the five men parked near the store. Radi and 
Fitzpatrick were in one car, while Bad Horse, Holliday and 

Bushman were in another. Shortly after 10:OO p.m., a man came 

out of the Safeway store, got into his vehicle and drove 

away. Fitzpatrick and Radi followed him, telling their 

companions that if it developed that they were following the 

wrong employee, they would circle back to the drive-in bank 

to intercept the deposit there. Later Dyckman came out of 

the Safeway store. Dyckman's vehicle was followed by the 

vehicle in which Bad Horse, Holliday and Bushman were riding. 

When Dyckman turned into the drive-in bank, Bad Horse, 

Holliday and Bushman abandoned the pursuit knowing 

that Fitzpatrick and Radi would be there waiting for Dyckman. 

Later Bad Horse, Holliday and Bushman picked up the two young 

gir1.s and returned to Billings, arriving at Radi's house at 

approximately 2:00 a.m., April 6, 1975. Radi showed up shortly 

thereafter. He told them that he and Fitzpatrick had followed 

the first vehicle without success but had returned to the drivein bank in time to intercept Dyckman with the Safeway deposit. 

Bad Horse then claimed to Radi that he was entitled to at least 

half of the proceeds of the robbery since he had set up the job. 

Bad Horse left angrily after being told the robbery produced 

little or no money. 

On April 6, 1975, Dyckman was discovered dead in his own 

car near the Toluca interchange in Big Horn County. His hands were 

tied behind his back, and he had been shot twice in the head. The 

Toluca interchange is immediately off Interstate 90 between Hardin 

and Billings, some 12 miles west of Hardin. 

This is the second time the Bad Horse case has been before 

this Court. He was originally tried jointly with Fitzpatrick, 

Radi and Hoilit3ay on charges of deliberate homicide, aggravated, 

kidnapping, and robbery. Bushman was granted immunity from 

prosecution in exchange for his testimony at the trials of the 

other four defendants. 

-3- 
In the first trial, held in October 1975, Bad Horse was 

found not guilty of deliberate homicide and not guilty of 

aggravated kidnapping, but guilty of robbery. On appeal, this 

Court reversed and remanded his conviction for robbery because 

of errors in the instructions. State v. Fitzpatrick 

- Mont. , 569 P.2d 383, 34 St.Rep. 736. Upon remand, Bad 

Horse was retried only on the robbery charge and was again convicted. 

Bad Horse raises the following issues on appeal: 

(1) Retrial on the charge of robbery is prohibited 

because of the double jeopardy clause and the doctrine of 

collateral estoppel. 

(2) The District Court h.ad no jurisdiction because the 

crime occurred within "Indian Country". 

(3) The District Court erred in determining that 

witness Raleigh Kra.ft, Jr., was not an acco~nplice. 

i4) The testimony of Edwin Bushman, an accomplice, was 

not sufficiently corroborated by independent evidence. 

(5) Gary Radi, a former codefendant who had been 

in 

acquittedla separate trial, should not have been allowed to testify 

at Bad Horse's trial. 

(6) Bad Horse's second robbery conviction is not 

supported by substantial evidence. 

(7) The instructions to the jury are in error under 

Sandstrom v. Montana (1979), U. S. , 99 S.Ct. 2450, 

61 L.Ed.2d 39. 

Issue No. -- 1. Double Jeopardy -- and Collateral Estoppel. 

Bad Horse's contentions under this issue are that his 

conviction of guilty of the crime of robbery in the first trial, 

with an acquittal of the charge of deliberate homicide, where the 

second charge necessarily incorporates the first charge, !-s legally 

inconsistent and unsupportable; that -the law of the case on this 

point was established in the first appeal of his conviction; and 

that the State is collaterally estopped from retrying the robbery 

conviction. 

-4- 
A portion, but not all, of this issue was answered in 

State v. Fitzpatrick, supra, 569 P.2d at 395. Bad Horse claims 

that in Fitzpatrick, this Court held that "[tlhese verdicts are not 

merely inconsistent, they are legally unsupportable", and thereby 

the law of the case was established as to inconsistency. On the 

other hand, the State claims that because this Court did not order 

dismissal of the robbery charge in Fitzpatrick, but instead remanded 

the robbery charge for retrial against Bad Horse that the law of the 

case is on the side of the State. We therefore must examine 

Fitzpatrick to clarify precisely what this Court did hold in that 

case. 

The problem addressed by this Court in Fitzpatrick, as it 

relates to Bad Horse, was the incongruity of instruction no. 28 

used by the trial court when connected with instruction no. 36. 

Instruction no. 28 told the jury in effect that if a conspiracy 

to commit a crime existed and a death happened in the furtherance 

of the conspiracy, all the conspirators were alike guilty of the 

homicide. In conflict with that instruction, no. 36 told the 

jury that it might find any - one of four verdicts, including one 

of guilty of robbery. 

The jury in the first trial was obviously confused, because 

it sent out to the court a question asking ". . . If we find one 

defendant guilty of robbery does Inst. No. 28 require [a] guilty 

verdict on the two remaining counts." Instead of clarifying for 

the jury, the court responded that instruction no. 36, which 

permitted any one of four verdicts, answered the question. 

Thus it appears that in the first trial, Bad Horse having 

been found guilty of the crime of robbery where his participation 

was that of a conspirator,should also have been found guilty 

of the crime of deliberate homicide, because the death of Monte 

Dyckman arose in furtherance of the conspiracy to commit robbery. 
Fortunately for the defendant, the jury acquitted him on the 

charge of deliberate homicide. The State is now powerless 

to try him again on that charge because of the double jeopardy 

rule. That result may be laid, as it were, to the fortunes of 

war. That fortuitous result however, cannot be bootstrapped to 

deliver Bad Horse from his conviction of the crime of robbery 

for which he has been convicted now by two juries. The remand of 

Bad Horse's robbery conviction for retrial under Fitzpatrick, is 

a further by-product of the strategic error made by the State in 

the first Fitzpatrick trial, in joining at one trial four defendants 

wirh diverse roles in the incidents leading up to Monte 

Dyckman's death. 

In clarification, therefore, this Court did not establish 

as the law of the case in Fitzpatrick that the verdicts 

relating to Bad Horse were so inconsistent that he could never 

again be tried for the crime of robbery. In point of fact, this 

Court did remand for retrial on that charge, His conviction of 

robbery could have been sustained by this Court after the first 

trial, except that his conviction was blemished by the errors that 

occurred to him and others joined as defendants in the 

trial. This Court did not find or believe that because he was 

not guilty under the jury verdict of deliberate homicide that he 

was likewise guiltless of the underlying charge of robbery. Rather, 

our remand was founded on the right of Bad Horse to receive 

a trial with a properly instructed jury. - See, Section 46-16-401(5), 

MCA; State v. Jackson (1930), 88 Mont. 420, 435, 293 P. 309. 

With that clarification, we find Bad Horse to be in the same 

situation with respect to his retrial as any other criminal defendant 

whose conviction is reversed and remanded for retrial. A defendant 

is not subjected to double jeopardy by virtue of his retrial after 

reversal of his judgment of conviction. State v. Ellsworth 

(1962), 141 Mont. 78, 81, 375 P.2d 316, 318. See also State v. 

Sanders (1973), 163 Mont. 209, 216, 516 P.2d 372, 376. 

-6- 
Appellate courts are not inclined to reverse convictions 

in criminal cases ordinarily merely upon the ground of 

inconsistency of verdicts reached by a jury as to a defendant 

who has been charged in several counts. Dunn v. United 

States (1932), 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed.2d 356; 

State v. Gone (1978), - Mon t . , 587 P.2d 1291, 1296, 35 St.Rep. 

1540, 1546. At the core of such reaction is the reverence 

that courts feel for the part that juries play in the factfinding process in criminal trials, even though allowing 

inconsistent verdicts in criminal trials run$ the risk that an 

occasional conviction may have been the result of compromise. 

United States v. Carbone (1967), 378 F.2d 420, 423. 

We determine therefore that the defendant has not been 

subjected to double jeopardy. In like manner, his contention 

that collateral estoppel is applicable to void his conviction 

is also rejected by us. 

"Collateral estoppel", as explained in Ashe v. Swenson 

(1970), 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469, 

475, on which Bad Horse relies, ". . . means simply that 

when an issue of ultimate fact has once been determined by a 

valid and final judgment, that issue cannot again be litigated 

between the same parties in any future lawsuit." 

It was determined in Benton v. Maryland (1969), 395 U.S. 

784, 89 S.Ct. 2056, 23 L.Td.2d 707, that collateral estoppel 

is a part of the Fifth Amendment's guarantee against double jeopardy. 

We are cautioned by the United States Supreme Court that the 

inquiry as to whether collateral estoppel applies "must be set 

in a practical frame and viewed with an eye to all the circumstances 

of the proceedings." Sealfon v. United States (1948), 332 U.S. 

575, 579, 68 S.Ct. 237, 240, 92 L.Ed.2d 180; Ashe v. Swenson, 

supra, 397 U.S. at 444, 90 S.Ct. at 1194, 25 L.Ed.2d at 476. 

-7- 
It is again Bad Horse's position under his claim of 

collateral estoppel that the ultimate fact to be determined 

against him is whether he was guilty of the crime of robbery; 

that his acquittal of deliberate homicide also constituted 

an acquittal of the underlying felony, robbery; that therefore 

the underlying ultimate fact has been decided in his favor 

and he cannot again be retried. 

Were we to accede to Bad Horse's collateral estoppel 

claim, we had then pulled the teeth from our holding foregoing 

that verdicts can be inconsistent and yet binding upon 

defendants. His claim however fails on two grounds: (1) his 

issue of ultimate fact had not been determined by a valid 

and final judgment in the first trial; and, (2) our inquiry, 

"set in a practical frame and viewed with an eye to all 

circumstances of the proceedings", does not disclose that 

collateral estoppel is applicable here. Since verdicts may 

be inconsistent and yet legally supportable, his conviction of 

robbery in the first trial was not a final judgment, since 

defendant secured a reversal and remand from this Court; in 

fact his conviction for robbery will not be final until this 

Court's decision in this appeal. When we examine the record 

of the prior proceedings, and take into account the pleadings, 

evidence, charge and other relevant matters in the prior 

proceedings, we have no trouble in concluding that the first 

jury, acting rationally, could have grounded its verdict of 

guilty of robbery on issues other than those required for 

deliberate homicide. As we said, the retrial was ordered by us 

in Fitzpatrick, because the first trial court erroneously instructed 

its jury that Bad Horse could be acquitted of deliberate homicide 

even though he was guilty of the underlying felony, robbery. In 

that set of circumstances, collateral estoppel does not apply. 

We note that the United States Supreme Court said in Ashe 

v. Swenson, supra, that the defendant accused of participating 

- 8- 
in a robbery with others was acquitted for lack of identification 

in his first trial. The State sought to retry him as to 

another victim of the same crime. It was to this fact 

situation that the United States Supreme Court found it 

proper to apply the doctrine of collateral estoppel as a 

species of the Fifth Amendment guarantee against double 

jeopardy. The holding in Ashe v. Swenson, supra, is simply inapplicable to this case. 

Issue -- No. 2. District Court Jurisdiction. 

Bad Horse's claim under this issue takes two tacks: 

(1) jurisdiction in this case fails because the crime occurred 

in "Indian Country" and, (2) the State failed to prove the venue 

of the crime. This jurisdictional objection is raised for the 

first time on appeal, but that is acceptable. State v. 

Akers (193d), 106 Mont. 43, 74 P.2d 1138. 

Proper venue was proved at the trial. There is no 

evidence whatever that the Dyckman killing occurred upon Indian 

lands. The undisputed evidence was that the Dyckman robbery 

occurred in Hardin, continued onto Interstate 90, a federal 

highway, and thence to the Toluca interchange off that 

highway. The District Court could take judicial notice that 

the City of Hardin and the federal highway are all outside 

the exterior boundaries of the Crow Indian Reservation, but 

well within both Big Horn County and the State of Montana. 

State v. Campbell (1972), 160 Mont. 111, 118, 500 P.2d 801, 805. 

Moreover, Hardin is not "Indian Country" within the definition 

of 18 U.S.C. 1151. We said so in the Matter of Little Light 

573, 1269, 

(19791, - Mont . , 598 P.2d 572, /36 St.RepJ 1271. In 

Little Light, we pointed to the decision of the United States 

District Court for Montana in Hawkins v. Crist (January 27, 1978), 

CV-76-99-BLG. That decision held that the agreement between the 

- 9- 
Crow Tribe and the United States ratified by Act of Congress 

of April 27, 1904, 33 Stat. 352, wherein the tribe agreed to 

"cede, grant and relinquish" the tract of land comprising 

Hardin, disestablished this tract as "Indian Country" and 

thereby rendered it subject to state criminal jurisdiction. 

Bad Horse contends that the landholdinqs between 

Indians and non-Indians in and around the City of Hardin 

make a "checkerboard" pattern identical to that in Seymour 

v. Superintendent (1962), 368 U.S. 351, 82 S.Ct. 424, 7 L.Ed.2d 

346. In Seymour, it was held that such checkerboarded 

areas are nevertheless "Indian Country". However, the federal 

District Court, in Hawkins v. Crist, supra, distinguished 

Seymour, and found the controlling case to be Rosebud Sioux 

Tribe v. Kneip (1977), 430 U.S. 584, 97 S.Ct. 1361, 51 L.Ed.2d 660. 

In Rosebud Sioux, the United States Supreme Court distinguished 

Seymour, holding that the Rosebud Sioux statutes evidence a 

Congressional intent to "disestablish" the land in question 

as Indian Country and permit the exercise of State jurisdiction. 

We agree with the author of Hawkins v. Crist, supra, that 

this was the Congressional intent when Hardin and its environs were 

disestablished. 

Issue No. -- 3. Uncorroborated Testimony -- of - an ~ccomplice. 

Here Bad Horse claims that witness Raleigh Kraft, Jr., 

was an accomplice, and as such his testimony could not 

convict Bad Horse or support his conviction unless corroborated 

by independent evidence. Section 46-16-213, MCA. 

The evidence indicates that Kraft had previously told 

Edwin Bushman that he was going to rob the Safeway store 

himself or get someone else to help him. Also, witness 

Marla Fitzler testified that she had heard Kraft discuss 

robbing the Safeway store with Bushman on several occasions. 

-10- 
Based on this evidence, Bad Horse contends that Kraft 

was an accomplice with all the disabilities attaching to his 

testimony flowing from that relationship. 

The statements however, were made eight months to one year 

prior to the robbery. No connection was ever established in 

the evidence between those statements and the robbery, other than 

that they may have planted an idea in someone else's mind. 

An accomplice is one who knowingly, voluntarily and with 

common intent with a principal offender unites in the commission 

of a crime. State v. Kerrigan (1930), 87 Mont. 396, 401, 287 P. 

942. In this case, Kraft is not an accomplice as defined in 

section 45-2-302, MCA. He did not solicit, advise or encourage 

anyone in the planning or commission of the Dyckman robbery. 

He did not ever agree to aid or attempt to aid anyone in such 

planning or commission. His statements were made at a remote time 

and there is no concrete connection between those statements and the 

Dyckman robbery. Since Kraft was not an accomplice, his 

testimony stands on the same basis as any other witness. He 

need not be corroborated, and his credibility is for the jury to 

decide. 

Issue No. -- 4. Sufficiency -- of the Testimony of -- Edwin 

Bushman. 

Here Bad Horse claims that the testimony of Edwin Bushman, 

an accomplice, was not sufficiently corroborated by independent 

evidence. 

Bad Horse's contentions on this point are that Bushman 

was an accomplice as a matter of law; that his testimony was 

not sufficiently corroborated; that the testimony of the other 

witnesses besides Bushman merely established that Bad Horse 

went to Hardin, drove around drinking beer with his companions, 

and returned to Billings that same night; that the evidence does 
not tend to connect Bad Horse with the commission of the 

Dyckman robbery but only mere opportunity to commit that 

robbery. He also contends that the additional testimony 

points equally well toward innocent conduct as well as guilty 

conduct and thus does not qualify as corroboration. See State 

v. Keckonen (1938), 107 Mont. 253, 261, 84 P.2d 341, 346. 

This contention of Bad Horse borders on the frivolous. 

Bushman's testimony is sufficiently corroborated by that of 

Ira Lee Finch, Cindy Morgan, Carol Branch, Ronald Potts, Lyle 

Doane, and Bad Horse himself. The most damaging corroborative 

testimony is that of Raleigh Kraft, Jr. who testified that 

Bad Horse told him that his friends were planning to rob the 

Safeway store, and on April 20, 1975, admitted to Kraft his 

participation in the robbery. The corroborative testimony 

is well within the tests laid down in State v. Cobb (19261, 

76 Mont. 89, 245 P. 265. 

Issue -- No. 5. Radi's Testimony. 

Bad Horse here claims that it was reversible error to 

allow the prosecution to call Gary Radi as a witness over Bad 

Horse's objections. He contends that Radi's testimony was 

irrelevant and its only effect was to prejudice Bad Horse by 

casting suspicion on him. 

Radi had been acquitted of all charges against him prior 

to his testimony at the Bad Horse trial. However, his testimony 

was relevant because he allegedly was one of the two principals 

in the Dyckman robbery. The State's case rested upon proving 

that Bad Horse conspired with, aided and abetted both Radi and 

Fitzpatrick in their carrying out of the robbery. The State 

expected Radi to deny any participation in the robbery, but 

that denial provided the foundation for the admission of 

Radi's prior and inconsistent statements where Radi had admitted 

his participation in the crime. 
As a matter of fact, Radi's testimony may be construed 

to help Bad Horse as much as it did the State. In testifying, 

Radi denied any participation in the crime and testified he 

first met Bad Horse at his house on the evening of April 5, 

1975. This conflicts with the evidence of others tending to establish 

that Bad Horse, Radi and the others had planned the robbery. 

The testimony of Radi was therefore relevant and clearly admissible. 

See, State v. Bentley (1970), 155 Mont. 383, 472 ~.2d 864, 875; 

State v. Hay (1948), 120 Mont. 573, 194 P.2d 232, 237. 

Issue -- No. 6. Sufficiency -- of - the Evidence. 

This issue is meritless in light of the considerable testimony 

against Bad Horse in this case. The evidence is viewed in a 

light most favorable to the State. State v. Pascgo (1977), 

Mont . , 566 P.2d 802, 805, 34 St.Rep. 657. If 

there is sufficient credible evidence, the verdict will 

stand. State v. Swazio (19771, Mont . , 568 P.2d 

124, 126, 34 St.Rep. 676. 

As indicated in the discussion of issue no. 4 above, 

Bushman's testimony was sufficiently corroborated by independent 

evidence. His testimony and that of the other witnesses 

sufficiently established that Bad Horse acted "with a purpose 

to promote or facilitate" the commission of the crime. Section 

45-2-302, MCA. 

Issue No. -- 7. Effect -- of the Sandstrom Decision. 

This issue arose after the briefs in this case had been 

filed, but before the matter was set down for oral argument. 

When this Court received the decision from the United States 

Supreme Court in Sandstrom v. Montana (1979), U.S. I 

99 S.Ct. 2450, 61 L.Ed.2d 39, we requested argument in this case 

as to whether there was the possibility of error in light of the 

Sandstrom decision. 

-13- 
In Sandstrom, the United States Supreme Court found the 

trial court's instruction "[tlhe law presumes that a person 

intends the ordinary consequences of his voluntary acts" unconstitutional. U.S. at , 99 S.Ct. at 2453, 61 L.Ed.2d 

The instruction given in the second Bad - Horse trial, which 

he claims has a Sandstrom effect, is as follows: 

"You are instructed that 'knowingly', or 

'purposely' may be proved by circumstantial 

evidence. It rarely can be established by 

any other means. While witnesses may see 

and hear and thus be able to give direct 

evidence of what a defendant does or fails 

to do, there can be no eye witness account 

of the state of mind with which the acts were 

done or omitted. But what a defendant does 

or fails to do may indicate that he 'knowingly' 

or 'purposely' committed the offense or offenses 

charged. 

"It is reasonable to infer that a person 

ordinarily intends the natural and probable 

consequences of acts knowingly done, knowingly 

omitted, purposely done, or purposely omitted. 

So unless the contrary appears from the evidence, 

the jury may draw the inference that the defendant 

intended all of the consequences which one 

standing in like circumstances and possessing like 

knowledge should reasonably have expected to result 

from any act knowingly done, knowingly omitted, 

purposely done, or purposely omitted. 

"In determining the issue as to 'Knowingly' or 

'purposely' the jury is entitled to consider 

any statements made and acts done or omitted by 

the defendant, and all facts and circumstances 

in evidence which may aid in the determination 

of the state of mind of the defendant." 

It is obvious that the foregoing instruction is not 

mandatory as to intent, as was the case in Sandstrom, and that 

the instruction does not contravene the holding of In Re Winship 

(1970), 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368. In other 

words, we do not determine from the foregoing instruction that the 

District Court has allocated a part of the burden of proof on the 

elements of the crime to the defendant by requiring him to come 

forward with evidence. We discussed this matter to some extent 
in State v. Coleman (Decided December 19, 1979), Mont . 

-I - P.2d , 36 St.Rep. 2237. In the Bad Horse 

instruction, the jury was not given a mandatory presumption, 

as occurred in the Sandstrom case; rather it was told that 

it could reasonably infer intent on the part of Bad Horse 

for all the consequences which one acting in a like position 

would reasonably have expected. Nothing in the instruction 

lessens the duty of the State to prove every element of the 

crime charged beyond a reasonable doubt, nor does it affect 

the defendant's presumption of innocence which attended him 

throughout the trial. As the instruction stated, and as we 

discussed in State v. Coleman, supra, since intent is a 

matter for circumstantial evidence usually, inference may be 

the only method by which a jury can find intent. We also said in 

State v. Coleman, supra: 

"The holding in Sandstrom is not to be construed 

to mean that whenever a trial court instructs 

the jury that it may resort to inference to 

determine subjective matters such as knowledge 

or purpose, that thereby the State has been 

relieved of its burden of proof. The United 

States Supreme Court did not intend such limitation, 

and we do not find any such intention in the 

language of Sandstrom, or its related cases. 

The jury was not allowed to rest solely upon the 

permitted inference in the Coleman case, but 

under the instruction had to require such an 

inference to meet the standard as beyond a 

reasonable doubt." 36 St.Rep. at 2241. 

We therefore determine that the instruction given in 

Bad Horse passes muster under the Sandstrom test. 

CONCLUSION 

The judgment of conviction against the defendant Paul 

Bad Horse, Jr. for the crime of robbery is affirmed. 
We Concur: 

1 

Chief Justice