No. 14704 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

STATE OF MONTANA, 

Plaintiff and Respondent, 

VS . 

WILLIAM NEWTON ROSE, 

Defendant and Appellant. 

Appeal from: District Court of the Fourth Judicial District, 

Honorable Jack L. Green, Judge presiding. 

Missoula County. 

Counsel of Record: 

For Appellant: 

Hirst, Dostal and Withrow, Missoula, Montana 

John Dostal argued, lTissoula, Montana 

Michael J. Sherwood, Missoula, Montana 

For Respondent : 

Honorable Mike Greely, Attorney General, Helena, 

Montana 

Chris Tweeten argued, Assistant Attorney General, 

Helena, Montana 

Robert L. Deschamps 111, County Attorney, Missoula, 

Montana 

Karen Townsend, Deputy County Attorney argued and 

Tom Beers, Deputy County Attorney argued, Missoula, 

Montana 

Submitted: March 2 , 1980 

Decided: 

Filed: 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of 

the Court. 

Defendant appeals from a denial of his motion for a new 

trial following his conviction of burglary by a jury in the 

District Court of Missoula County. 

Dr. John Opalka was on vacation in March 1978. A neighbor, Rae Dabbert, had been asked to watch the Opalka home, to 

water plants and pick up mail. On March 2, 1978, she was in the 

home and all was in order. On Sunday, March 5, Mrs. Dabbert 

noticed that a door into the garage was open and that a number of 

rooms were in disarray. She called the Missoula County sheriff's 

office and Deputy Willis Hintz arrived shortly thereafter. 

Mrs. Dabbert and Officer Hintz searched the house and 

discovered that a television set was missing and that there were 

some tools on a couch. They also saw tracks in the snow behind 

the house. They could not tell whether the tracks had been made 

by one or by two people. Officer Hintz found pry marks on a door 

leading into the living room and on the garage door. 

Dr. Opalka and his wife returned to Missoula on Monday, 

March 6, 1978. Later that day Dr. Opalka spoke with Deputy Phil 

Nobis who was investigating the crime. A list of the missing 

property was prepared at that time. Dr. Opalka indicated that 

six guns were taken, two containers of coins with approximately 

$400 in each, a portable typewriter, a portable television and 

other miscellaneous items. 

On February 27 or 28, the defendant had been at Dr. Opalka's 

clinic demanding a cash refund for some returned pills. The 

receptionist informed the defendant at that time that she could 

not refund the money until the doctor returned and that the doctor 

would not be back for a week. The defendant had left the clinic 

extremely upset. 

In the early morning hours of March 5, 1978, a University 
of Montana security officer ticketed an illegally parked vehicle 

belonging to Richard Cory. The officer observed in the back seat 

of the car a portable typewriter and a 5 gallon green jar with 

coins in it. On Friday, March 10, Missoula police learned that 

these items had been seen in Cory's car. It was also &ned that 

Cory and the defendant were associates and that the defendant 

had recently had some guns in his possession. The police found 

Cory and a voluntary statement was taken. In this statement Cory 

told the police that the defendant had been angry at Dr. Opalka 

because he could not get a refund on some pills and defendant 

had decided to "rip off" the doctor. Cory stated that the defendant had committed the burglary on his own and had taken some guns 

to the residence of Jane Gardiner. Cory denied any participation 

in the Opalka burglary. 

After taking this statement police officers went to the 

Gardiner residence. Stan Gardiner was present and he voluntarily 

turned over four guns to the officers. A short time later his 

ex-wife Jane Gardiner returned to the residence. Two additional 

guns were recovered from her car. A receipt was prepared for the 

guns and they were returned to Dr. Opalka the next morning. 

Early in the morning on March 11, 1978, the defendant was 

arrested in Darby, Montana, in a car belonging to Madeline Freeburg. 

The defendant was charged with burglary, or in the alternative, 

theft of the six guns. He pleaded not guilty and interposed a 

defense of alibi. Madeline Freeburg was listed as his alibi witness. 

By the time of the trial Cory had changed his original 

version of the burglary. He testified that he and the defendant 

had committed the burglary together. In this testimony he outlined the details of the burglary. He stated that after the crime 

was committed the defendant had gone to Butte to try to sell the 

guns. Cory also testified that he and the defendant went to Polson 
the next Tuesday in an attempt to sell two guns. hey had no 

success in their attempts at selling the guns. The prosecution 

introduced the testimony of several witnesses which tended to 

link Cory and the defendant together on the night the crime was 

committed. 

The defendant testified on his own behalf at the trial. 

He testified that he had nothing to do with the burglary. He 

stated that he did tell Cory about the visit to the Opalka Clinic, 

but that the idea of burglarizing the Opalka residence was Cory's. 

The defendant stated that he had not seen Cory on the night of 

the burglary, but that he did drive to Polson with Cory in an 

attempt to sell the guns. He testified that he did not know at 

that time that the guns had been stolen. A few days later, 

according to the defendant, he loaned his landlady's car to Cory 

for two or three hours in the morning. In the afternoon, after he 

had gotten the car back, the defendant received a phone call from 

Cory. Cory told the defendant that he (Cory) had left something 

in the car trunk and for the defendant to "Get that out of there." 

As a result, the defendant drove to Lolo, Montana, and stashed 

the guns in a pasture. The defendant and Cory later recovered the 

guns. 

Madeline Freeburg, who was the defendant's landlady, testified that defendant had been home studying all night on March 

4, 1978, the night of the burglary. Shirley Marshall, an acquaintance of defendant's, stated that the defendant had been at her 

home on the evening of March 4, and that he had left at about 

11:OO p.m. The defendant testified that he had been with Shirley 

Marshall that evening and that he had gone home at about midnight. 

He denied being with Cory that night and he denied being at any 

bars that night. 

Craig Howard testified as a rebuttal witness for the State. 

Howard testified that the defendant had been in a Missoula bar 
at 10:30 or 11:OO p.m. on March 4, 1978. 

The case was submitted to the jury on the alternative 

charges of theft and burglary. The jury was instructed that 

they could only find the defendant guilty of one of the two 

charges. The jury returned a verdict of guilty to the burglary 

count. The defendant filed a motion for a new trial which was 

denied. The defendant was sentenced to the State Prison for a 

period of 25 years. The District Court ordered that the defendant be declared ineligible for parole or furlough during the 

term of the sentence. 

The following issues are raised on appeal: 

1. Was there sufficient corroboration of the accomplice's 

testimony? 

2. Was the motion for a new trial properly denied? 

3. Was Instruction No. 20 properly given to the jury? 

4. Did the defendant have effective assistance of counsel? 

Under Montana law a defendant cannot be convicted of a 

crime solely upon the testimony of an accomplice. Section 46-16- 

213, MCA, provides: 

"A conviction cannot be had on the testimony of 

one responsible or legally accountable for the 

same offense, as defined in 45-2-301, unless the 

testimony is corroborated by other evidence which 

in itself and without the aid of the testimony of 

the one responsible or legally accountable for the 

same offense tends to connect the defendant with 

the commission of the offense. The corroboration 

is not sufficient if it merely shows the commission of the offense or the circumstances thereof." 

In the instant case the prosecution was largely based upon 

the testimony of Richard Cory, an admitted accomplice to the 

burglary. The defendant claims that, absent the testimony of Cory, 

there is not sufficient, independent evidence which "tends to 

connect" him with the burglary. 

The reason for the rule on corroboration is firmly grounded 

in common-experience. "The testimony of an accomplice is apt to 

be highly colored and biased. Moreover, it is to be expected that 
an accomplice may, or has good reason to, place his own welfare 

and freedom above that of the defendant." 2 Wharton's Criminal 

Evidence 5445 (12th ed. 1955). 

This Court has recently outlined the law of corroboration 

of 'accomplices as follows : 

"The sufficiency of evidence necessary to 

corroborate accomplice testimony is a question 

of law. State v. Standley (1978)r Mont . , 586 

P.2d 1075, 1078, 35 St.Rep. 1631, 1635; State v. 

Perry (1973), 161 Mont. 155, 161, 505 P.2d 113, 117. 

In defining the quantum and character of proof 

required to corroborate accomplice testimony, a substantial body of case law has evolved. 

"To be sufficient, corroborating evidence must show 

more than that a crime was in fact committed or the 

circumstances of its commission. State v. Keckonen 

(1938), 107 Mont. 253, 263, 84 P.2d 341, 345. It 

must raise more than a suspicion of the defendant's 

involvement in, or opportunity to commit, the crime 

charged. State v. Gangner (1957), 130 Mont. 533, 535, 

305 P.2d 338, 339. But corroborative evidence need 

not be sufficient, by itself, to support a defendant's 

conviction or even to make out a prima facie case 

against him. State v. Ritz (1922), 65 Mont. 180, 186, 

211 P. 298, 300; State v. Stevenson (1902), 26 Mont. 

332, 334, 67 P. 1001, 1002. Corroborating evidence 

may be circumstantial (State v. Harmon (1959) , 135 

Mont. 227, 233, 340 P.2d 128, 131) and can come from 

the defendant or his witnesses. State v. Phillips 

(1953), 127 Mont. 381, 387, 264 P.2d 1009, 1012. 

"With these principles in mind, each case must be 

examined on its particular facts to determine if the 

evidence tends, in and of itself, to prove defendant's connection with the crime charged. 

"One accomplice cannot supply the independent evidence necessary to corroborate another accomplice. 

State v. Bolton (1922) , 65 Mont. 74, 88, 212 P. 504, 

509; 30 Am.Jur.2d Evidence, Sec. 1156 . . ." State 

v. Kemp (1979), Mont . , 597 P.2d 96, 99, 36 

St.Rep. 1215, 1217-1218. 

In the present case the only independent evidence which 

tends to connect the defendant with the burglary is his possession of the stolen guns. The defendant was in possession of the 

guns on at least two occasions by his own admission. He and Cory 

had the guns when they drove to Polson and the defendant had sole 

possession when he stashed the guns in the pasture near Lolo. The 

defendant contends that this tends to connect him with theft (of 
which he was acquitted) but not burglary, because burglary requires an unlawful entering of an occupied structure. Section 

45-6-204 (I), MCA. We disagree. 

"It may be shown, by way of corroboration , . . that 

the defendant was in possession of the stolen property involved 

in the crime charged . . ." 3 Wharton's Criminal Evidence S649 

(13th ed. 1972). This rule extends to the crime of burglary. 

"In prosecutions for larceny, robbery, and. burglary, an accomplice may be corroborated by proof of the possession of the 

stolen property by the defendant charged with the crime." 2 

Wharton's Criminal Evidence S467 (12th ed, 1955). In the recent 

case of State v. Williams (1979), Mont . , 604 P.2d 1224, 

1230, 36 St.Rep. 2328, 2336, we held that constructive possession 

of a stolen pistol sufficiently corroborated the testimony of an 

accomplice where the defendant was convicted of conspiracy to 

commit a burglary. 

In the present case the defendant attempted to explain 

away his possession of the stolen guns. In the similar case of 

People v. Hughey (1926), 7:' Cal.App. 541, 250 P. 406, the defendant had been convicted of conspiracy to commit robbery. On appeal 

he alleged that there was not sufficient corroborating evidence 

to support the testimony of two accomplices. The Court noted 

that the defendant's unexplained possession.of items taken in the 

burglary was a circumstance tending to show guilt. As to the 

defendant's explanation of his possession of these items, the Court 

said: 

"In the instant case appellant attempted to explain his possession of the stolen pin. This 

testimony, however, the jury was not bound to 

believe, and if disbelieved, the fact of such 

possession tended strongly and was sufficient 

to corroborate the testimony of t!le acccmplices 

mentioned." 250 P. at 407. 

We agree with this reasoning. Defendant's possession of 

the stolen guns was sufficient as a matter of law to corroborate 
Cory's testimony. Whether the defendant's explanation was sufficient to explain away the possession was a factual question for 

the jury. 

In State v. Broell (1930), 87 Mont. 284, 286 P. 1108, 

the defendant contended that his possession of stolen property 

did not sufficiently corroborate an accomplice' s testimony in a 

larceny case. The defendant attempted to explain away the possession. This Court held that the possession tended to con 

defendant with the larceny. We said, "Whether the expla 

were sufficiently satisfactory to raise a reasonable dou 

minds of the jurors as to defendant's connection with th 

charged was a question for the jury's determination . . 

at 292. 

For cases from other jurisdictions which have h 

possession of stolen property sufficiently corroborates 

plice's testimony see: State v. Brown (1973), 13 0r.App 

P.2d 234; Turci v. State (0kla.Crim. 1971), 482 P.2d 611 

State v. Oliver (1969), 9 Ariz.App. 364, 452 P.2d 529. 

that there was sufficient corroborative evidence to supp 

testimony of Cory. 

The defendant next alleges that his motion for 

trial was improperly denied. At a hearing on the matter 

District Court the defense presented the testimony of Ro 

and Maynard Owns Medicine. Conn testified that he had s 

in Cory's room at 10:30 a.m. on Sunday, March 5. Conn h 

there to collect some money that Cory owed him. Cory said that 

he did not have the money, but that he had a TV set, several guns 

and some coins. Cory finally paid Conn $50 with quarters and 

fifty-cent pieces. Maynard Owns Medicine testified that he was 

with Cory in a Missoula bar on March 4. Cory asked him if he knew 

where he could get rid of some guns. Later that same day, Owns 

Medicine saw several rifles and shotguns in the trunk of Cory's car. 
The testimony of these two men was impeached to a large 

degree. Conn had written a letter to his parole officer stating 

that he had not been in Montana from January until March 31. Also, 

during this hearing Officer Weaver testified that he had questioned 

Maynard Owns Medicine concerning the Opalka's burglary. At the 

time of the questioning Maynard said nothing to Weaver about the 

guns in the trunk of Cory's car. At the end of the hearing the 

judge said: 

"No, I think as you say, the Court has been lied 

to today. No further memorandums are required. 

The Motion for a new trial is denied." 

Sections 46-16-702(1), MCA, provides that a court may 

grant the defendant a new trial if required in the interest of 

justice. The language clearly indicates that the granting of a 

new trial is within the sound discretion of the District Court 

judge. Montana case law is to the same effect. State v. Collett 

(1946), 118 Mont. 473, 481, 167 P.2d 584, 588; State v. Greeno 

(1959), 135 Mont. 580, 585, 342 P.2d 1052, 1055. This Court noted 

in State v. Briner (1977), 173 Mont. 185, 193, 567 P.2d 35, 39, 

that the trial judge is " . . . in the best position to weigh the 

merits . . ." of the evidence which is presented to support an 

application for a new trial. In the present case the trial judge 

felt that he had been lied to at the hearing on the matter. This 

Court should not try to second-guess the trial judge in this regard. 

Because it does not appear that the trial judge abused his discretion, there was no error committed in denying the application for 

a new trial. 

The defendant next contends that the giving of instruction 

No. 20 was error. This instruction provides: 

"You are instructed that one who is found in the 

possession of property that was stolen from burglarized premises is bound to explain such possession 

in order to remove the effect of that fact as a circumstance to be considered with all other evidence 

pointing to his guilt." 
Section 45-6-304, MCA, provides: 

"Possession of stolen property shall not constitute 

proof of the commission of the offense of theft. 

Such fact shall place a burden on the possessor to 

remove the effect of such fact as a circumstance to 

be considered with all other evidence pointing to 

his guilt." 

The defendant argues that without the cautionary preface 

the instruction would allow the jury to convict him of burglary 

upon proof that he possessed the stolen property. A similar 

instruction was given in State v. Greeno (1959), 135 Mont. 580, 590, 

342 P.2d 1052, 1057. The instruction in Greeno was declared by 

this Court to be error because it deprived the defendant of his 

assumption of innocence. The instruction stated, in part, that: 

" . . . if he [the defendant] gives a false 

account of how he acquired that possession or, 

having reasonable opportunity to show that his 

possession was honestly acquired he refuses or 

fails to do so, such conduct is a circumstance 

that tends to show his guilt." 

The instruction from Greeno was clearly different than the 

one in the present case. The Greeno instruction told the jury 

that a failure of the dzfmdant to testify would tend to show 

his guilt. Instruction No. 20, in the present case, merely allows 

the jury to consider the defendant's possession of the stolen 

goods as one factor indicating the defendant's guilt. In State v. 

Gray (1968), 152 Mont. 145, 447 P.2d 475, this Court again considered 

a similar instruction and made the following observations: 

" . . . we think the better reasoned cases hold 

that such instructions are not erroneous or 

prejudicial. In a very recent case, Arizona v. 

Pederson, 102 Ariz. 60, 424 P.2d 810 (1967) 

cert-denied 389 U.S. 867, 88 S.Ct. 138, 19 L.Ed.2d 

142, the lower court instructed the jury: 

"'The burden is on who is found in the possession 

of property that was stolen from burglarized premises 

to explain such possession in order to remove the 

effect of that fact as a circumstance to be considered 

with all other evidence pointing to his guilt.' 

"The Arizona Supreme Court found no error in the 

instruction and went on to say at page 818 of 424 

P.2d: 
"'As we read the subject instruction, it appears 

to state the law correctly for in effect the instruction says that if defendants had wished to 

remove the effect of possession of stolen goods 

from the facts and circumstances to be considered 

by the jury, defendants should have offered some 

explanation of their possession of such goods.' 

"We agree. In effect all the instruction in question here says is that if defendant wanted to prevent 

the jury from considering possession as a circumstance 

indicating guilt, then he should, by testifying 

himself, by having another testify, or by introducing 

real evidence, explain his possession. The rule 

equally applies to all evidence which a defendant 

would remove as a circumstance pointing to his guilt; 

that is, he must by some means explain away such 

evidence." 152 Mont. at 152, 447 P.2d at 478-79. 

The same reasoning applies in the instant case. The 

instruction told the jury that possession of the stolen property 

was merely one item that they could consider in determining whether 

the defendant committed the crime. This is true of any evidence 

presented during the trial. The defendant is not obligated to 

explain away this circumstance, but if he wishes to do so, the 

opportunity is there. This was an opportunity which the defendant 

elected to accept in this case. As such, the instruction was not 

error. 

Finally, the defendant alleges that he was denied effective 

assistance of counsel. 

The right to counsel is guaranteed by the Sixth Amendment 

of the United States Constitution and by Article 11, section 24 

of the Montana Constitution. This Court has said that these constitutional provisions guarantee effective assistance of counsel. 

State v. Bubnash (1961), 139 Mont. 517, 366 P.2d 155. 

In State v. McElveen (1975), 168 Mont. 500, 544 P.2d 820, 

this Court set aside a conviction because the defendant had been 

denied effective assistance of counsel. The defendant's trial 

attorney had done little or no investigation or preparation prior 

to trial. During the trial only two objections were made by the 

defense and one of these had been made by the defendant himself. 
In the McElveen case the Court used the "farce and sham 

test" to determine whether the defendant had been denied effective 

assistance of counsel. See State v. Lopez (1980), Mont . I 

605 P.2d 178, 37 St.Rep. 36. In the instant case the parties 

have urged us to adopt a different test. The new test is known 

as the "reasonably effective assistance" test, and may be stated 

as follows: 

"Persons accused of crime are entitled to the 

effective assistance of counsel acting within 

the range of competence demanded of attorneys 

in criminal cases." 

We hereby adopt this standard. The reasons for its 

adoption are many. As was stated in Cooper v. Fitzharris (Ninth 

Cir. 1978), 586 F.2d 1325: 

"A line of Supreme Court decisions, culminating 

in McMann v. Richardson, 397 U.S. 759 . . . (1970), 

undercut the notion that the command of the Sixth 

Amendment was satisfied merely by appointment of a 

reputable member of the bar and that counsel's 

performance after appointment need only meet due 

process standards. It was established that persons 

accused of crime are entitled not merely to counsel's 

presence but to effective assistance of counsel, 

and that effective assistance means assistance 

'within the range of competence demanded of attorneys in criminal cases.'" 586 F.2d 1329. 

The new standard, besides providing increased protection 

of the defendant's constitutional right, also provides the courts 

with a more objective standard. The old "farce and sham test" 

required a subjective judgment whereas the new test may be applied 

by reference to a more objective standard, viz. the range of competence demanded of attorneys in criminal cases. 

Finally, we are compelled to adopt this standard because 

there may be instances where the trial has not been a farce or 

a sham and yet the defendant has not been represented within the 

range of competence demanded of attorneys in criminal cases. In 

such a case the defendant would have been denied effective assistance of counsel, and the "farce and sham" standard would not have 

protected constitutional rights. 
In the present case the defendant has presented five 

specific failures committed by his trial attorney. In order for 

us to find that the failures require reversal we must be able to 

say that they are "errors a reasonable competent attorney acting 

as a diligent conscientious advocate would not have made, for 

that is the constitutional standard." Cooper, supra, 586 F.2d 

The first failure alleged by defendant is counsel's failure to object to hearsay evidence to the effect that the defendant had delivered to Stan Gardiner guns stolen from the Opalka 

residence. We agree that this was hearsay and should not have 

been put before the jury. We note, however, that prior to trial, 

defense counsel made a motion in limine to have this evidence excluded. The judge did not rule on the motion at that time, and 

subsequently, during trial, the evidence came in without objection. 

From this it is apparent that counsel had prepared for the case 

and had made the correct motion. He should have objected to the 

hearsay evidence during trial, but this in itself does not fall 

outside of the range of competent counsel. 

Defendant next contends that it was error for counsel to 

fail to object to the inquiry into a defense witness'prior criminal 

record. Rule 609, Mont.R.Evid.,provides that for the purpose of 

attacking the credibility of a witness, evidence that he has been 

convicted of a crime is not admissible. Once again, defense counsel should have objected to this testimony, however, in the context of this case, this failure does not appear as if it prejudiced 

the defendant. 

"When the claim of ineffective assistance of 

counsel rests upon specific acts and omissions 

of counsel at trial, as it does in this case, 

relief will be granted only if it appears that 

the defendant was prejudiced by counsel's 

conduct. We have found no holding to the contrary." Cooper v. Fitzharris, supra, 586 F.2d 

at 1331. 
Also, in a case which involved at least a dozen witnesses and 

several days of testimony, this failure to object, by itself, 

does not fall outside of the range of competent counsel. 

The defendant next contends that defense counsel committed 

error when he failed to object to t.he testimony of a rebuttal 

witness, Craig Howard. Defense counsel did not receive notice of 

Howard's testimony. Secticn 46-15-301(1), MCA, provides th2t the 

State need not provide the defendant with the names of rebuttal 

witnesses. In Wardius v. Oregon (1973), 412 U.S. 470, 93 S.Ct. 

2208, 37 L Ed 2d 82, the United States Supreme Court held that 

Oregon's statute requiring a defendant wishing to interpose a defense of alibi to furnish notice and a list of witnesses violated 

due process, because it did not provide reciprocal discovery for 

the defendant of the State's rebuttal witnesses. The defendant 

argues that counsel was ineffective in not moving to exclude 

Howard's testimony in reliance on Wardius. 

In State v. Maldonado (1978), Mont. , 578 P.2d 296, 

304, 35 St-Rep. 420, 430, this Court said that the decision 3f 

counsel to challenge the constitutionality of a statute is a 

matter of legal judgment. Counsel's failure to raise the Wardius 

issue may seem like error in retrospect. This error, however, 

certainly does not fall outside of the range of competent counsel. 

Next, the defendant contends that defense counsel erred 

in not challenging a certain juror. 

On the last day of trial this juror informed the Court 

that he had been mistaken in denying acquaintance with Richard 

Cory during voir dire. Apparently the juror and Cory's brother 

had been acquaintances 15 years prior to the trial. The juror 

stated that this would not influence him. This failure to challenge was not error. 

The defendant finally contends that defense counsel erred 

in not moving to "quash" the information for lack of probable 
cause. The affidavit in support of the motion for leave to file 

relied to a large extent upon the hearsay allegations of Richard 

Cory. The defendant contends that counsel should have moved to 

"quash" because Cory's statements were not supported by facts 

tending to show their reliability under the rules announced in 

Aguilar v. Texas (1964), 378 U.S. 108, 84 S.Ct. 1509, 12 L Ed 2d 

723. 

The Aguilar case is easily distinguishable from the case 

at hand. In Asuilar the defective affidavit concerned a search 

warrant rather than an affidavit in support of a leave to file an 

information. Also, in Aguilar, the application for the search 

warrant merely stated that "Affiants have received reliable information from a credible person and do believe that" narcotics 

were on the defendant's premises. The problem with this application, according to the Supreme Court, was that the informant 

was unnamed; that there were no underlying circumstances presented 

from which the informant concluded that the narcotics were where 

he claimed they were; and that there were no underlying circumstances which would support the unnamed informant's credibility. 

In the present case the informant is named as being Richard Cory 

and it is clear that Cory is speaking from his own personal 

knowledge as to the defendant's involvement in the burglary. We 

are not, therefore,faced with an application that lacks the 

underlying circumstances which are required by Aguilar. Aguilar 

simply does not apply. It was not error for the defense counsel 

not to move to quash for lack of probable cause. 

We have read the record in this case. The defense counsel 

was obviously prepared and competent. He did not do a perfect 

job, but that is not the standard. 

In State v. Forsness (1972), 159 Mont. 105, 110, 495 

P.2d 176, 178-79, this Court said: 
"Claimed inadequacy of counsel must not be tested 

by a greater sophistication of appellate counsel, 

nor by that counsel's unrivaled opportunity to 

study the record at leisure and cite different 

tactics of perhaps doubtful efficacy. Success is 

not the test of efficient counsel, frequently 

neither vigor, zeal, nor skill can overcome the 

truth. " 

and in State v. Noller (1963), 142 Mont. 35, 38, 381 P.2d 293, 294: 

" . . . Hindsight cannot now be used to say what 

perhaps could have been done to achieve a possible 

but highly speculative result . . ." 

Despite the errors made by defense counsel, the defendant received effective assistance of cf:~ur.sel and this assistance 

was well within the range of competence demanded of attorneys 

in criminal cases. 

Affirmed. 

Chief Justice 

Mr. Justice Daniel J. Shea deeming himself disqualified, did 

not participate in this case.