NO. 12448 INTHE SUPREME COURT OF THE STATE OF MONTANA 1973

STATE OF MONTANA, Plaintiff and Respondent,



### -vs

## - GEORGE SOLIS, Defendant and Appellant.

Appeal from: District Court of the Sixteenth Judicial District, Hon. A. B. Martin, Judge presiding. Counsel of Record: For Appellant: Reno and Dolve, Billings, Montana James A. Reno argued, Billings, Montana For Respondent: Hon. Robert L. Woodahl

## ,Attorney General, Helena,

Montana J. C. Weingartner, Assistant Attorney General, argued,

Helena, Montana William 

### J. Krutzfeldt, County Attorney, appeared, Miles

City, Montana Keith Haker argued, Miles City, Montana

Submitted: September 26, 1973Mr. Justice Gene B. Daly delivered the Opinion of the Court.
Defendant George Solis appeals fromhis conviction of firstdegree burglary entered in the district court of Custer County. On September 22, 1972, two young women came to the home of Frank Morrelle inMiles City, Montana, to inquire about an apartment he had offered forrent. One of thewomen, Irma Jean Hoops, was later identified as the girl friend of defendant Solis. Morrelle loaned thewomen some money for food which he obtained from his basement safe in their presence. Some keys and a ringbelonging toMorrelle disappeared about the time of the girls' visit. He reported the missing items to the police and changed the door locks corresponding to the missing keys. The missing ringwas found indefendant's possession when he was apprehended inconnectionwith the burglary. On September 24, 1972, Frank Morrelle, returning tohis home atabout 9:20 p.m., noticed 

### a light inhisbasement. Morrelle became suspicious, went to the home of David Whitney, his next door neighbor, and asked Whitney tophone the police. After doing so, Whitney went outside and observed defendant on foot leaving ~orrelle's property. h?hitney firstcalled todefendant, then pursued him. Whitney testified that defendant stopped and "pulled

a pistol or something out of his pocket and pointed it towards me." Defendant was arrested about an hour laterby the Custer County deputy sheriff at the Flaming Arrow Motel inMiles City. The deputy sheriff and other law enforcement officers present testified that when arrested defendant appeared sweat-soaked and exhausted as though he had been running. David Whitney postively identified defendant as the man he had pursued from the Morrelle residence earlier in the evening. Witnesses testified ~orrelle's safehad been overturned and tampered with but theburglar had failed to open the safewhen he left the scene, leaving his tools behind.On appeal defendant presents two issues forreview: (1) Did the evidence support thejury verdict of first degree burglary, specificallywith regard tothe "nighttime requirement"? (2) Did the trial court err inrefusing to give defendant's offered instructions numbered 

### 1, 4, 

### 6 and 7? Issue (1). Section 94-901, R.C.M. 1947, provides:

11

Every person who enters any house

# *** with intent to commit grand or petite larceny or any felony, 

### is guilty of burglary." The fact that the safe opening had not been completed and nothing had been taken from theMorrelle home does not preclude conviction of burglary. Morigeau v. State, 149 Mont. 85, 423 P.2d 60. Section 94-902, R.C.M. 1947, provides:

IIEvery burglary committed in the nighttime is burglary in the first degree and every burglary committed in the daytime 

### isburglary in the second degree. I I This Court in Statev. Copenhaver, 35 Mont. 342, 89 P. 61, and in Statev. Fitzpatrick, 125 Mont. 448, 239 P.2d 529, established that first and second degree burglary are separate offenses differentiated by the nighttime requirement which exists as an essentialelement of firstdegree burglary only. Commission of a burglary 

### ispredicated upon the "entry" with the requisite felonious intent. Hence, the burglary occurs atthe time of the entryupon the premises. Statev. Harris, Mont

# . , 498 P.2d 1222, 29 St.Rep. 498; State

### v. Board, 135 Mont. 139, 337 P.2d 924; State v. Moran, 142Mont. 423, 384 P.2d 777. The "nighttime entry" issue in the instant case 

### is analogous to Statev. Board, supra. In Board, the defendant was discovered pilfering a motel room atabout 4:00 a.m. No direct evidence was 

## - ever introduced to establish the time of entry. In the cases cited, the rule inFitzpatrick 

### -- is followed. In Fitzpatrick, therewas no evidence of the commission of the 

## - - burglary in the nighttime, much less the entry. In the caseswhich followed Fitzpatrick, and inparticular Board, theburglary was 

## -established as occurring during thenighttime and entrywas of necessity submitted to the jury on circumstantial evidence. In the instant case, defendant was flushed in the nighttime atabout 9:20 p.m., September 24, some hours after darkness atthat time of year. Only preliminary work toward opening the safehad been completed and among the tools leftbehind was a flashlight. It seems reasonable thejury could conclude that a burglar would proceed with diligence tothe task athand and would not require a flashlight in the daylight hours. Examination of the trialrecord discloses the jury was instructed incourt's instructions number 2 and 8 that commission in the nighttime 

### is an element of firstdegree burglary. Instruction number 2 stated the requirement that every fact or element necessary toconstitute the crime charged must be proved beyond a reasonable doubt. Court's instructionnumber 11 stated the defendant could not be convicted on conjecture, suspicion or probability, but only upon proof such as to logically compel the conviction that the charge was true. Instructionnumber 12 defined circumstantial evidence as evidence which proves a fact fromwhich the inference of

another fact may be drawn. The jury was properly instructed as to allthe elements of the crime charged and as tothe burden of proof. There was, considering allof the facts and circumstances, sufficient direct and circumstantial evidence to support thejury's verdict. Issue 12). Did the trialcourt err inrefusing defendant's offered instructions numbered 

### 1, 

### 4, 6 and 7? Proposed instruction 

### 1was a directed verdict instruction. This instruction was properly refused, aswas defendant's motion for dismissal. Under Montana law ina criminal case, a directed verdict is given only where the state fails toprove itscase and there isno evidence upon which a jury could base a verdict of guilty. State v. Metcalf, 153Mont. 369, 457 P,2d 453; Statev. Yoss, 146 Mont, 508, 409 P.2d 452.

### Defendant's proposed instructions numbered 

### 4,6and 

### 7were repetitive of other instructions given by the trial court relating to the elements of first degreeburglary andwere properly refused. The judgment of the district court is affirmed.

/ 

### &. -; 2 

## ''d 

### Justice 

# / I



### Chief Justice

Justices

Hon. 

## ~@b~ L. c~innoh, District Judge, sitting for Justice John Conway Harrison.