NO. 12448 

IN THE 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, 1973 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

Defendant George Solis appeals from his conviction of 

first degree burglary entered in the district court of Custer 

County. 

On September 22, 1972, two young women came to the home 

of Frank Morrelle in Miles City, Montana, to inquire about an 

apartment he had offered for rent. One of the women, Irma Jean 

Hoops, was later identified as the girl friend of defendant 

Solis. Morrelle loaned the women some money for food which he 

obtained from his basement safe in their presence. Some keys 

and a ring belonging to Morrelle 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 ring was found in defendant's possession when he was 

apprehended in connection with the burglary. 

On September 24, 1972, Frank Morrelle, returning to his 

home at about 9:20 p.m., noticed a light in his basement. Morrelle 

became suspicious, went to the home of David Whitney, his next 

door neighbor, and asked Whitney to phone the police. After doing 

so, Whitney went outside and observed defendant on foot leaving 

~orrelle's property. h?hitney first called to defendant, 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 later by the Custer County 

deputy sheriff at the Flaming Arrow Motel in Miles 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 safe had been overturned and tampered 

with but the burglar had failed to open the safe when he left the 

scene, leaving his tools behind. 
On appeal defendant presents two issues for review: 

(1) Did the evidence support the jury verdict of first 

degree burglary, specifically with regard to the "nighttime requirement "? 

(2) Did the trial court err in refusing 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 the Morrelle 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: 

I I Every burglary committed in the nighttime is 

burglary in the first degree and every burglary 

committed in the daytime is burglary in the 

second degree. I I 

This Court in State v. Copenhaver, 35 Mont. 342, 89 P. 61, 

and in State v. 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 essential element of first degree burglary only. 

Commission of a burglary is predicated upon the "entry" 

with the requisite felonious intent. Hence, the burglary occurs 

at the time of the entry upon the premises. State v. Harris, 

Mont . , 498 P.2d 1222, 29 St.Rep. 498; State v. Board, 135 Mont. 

139, 337 P.2d 924; State v. Moran, 142 Mont. 423, 384 P.2d 777. 

The "nighttime entry" issue in the instant case is analogous 

to State v. Board, supra. In Board, the defendant was discovered 

pilfering a motel room at about 4:00 a.m. No direct evidence was - 

ever introduced to establish the time of entry. 

In the cases cited, the rule in Fitzpatrick -- is followed. 

In - Fitzpatrick, there was - no evidence of the commission of the 

burglary in the nighttime, much less the entry. In the cases which 

followed Fitzpatrick, and in particular Board, the burglary was - 
established as occurring during the nighttime and entry was of 

necessity submitted to the jury on circumstantial evidence. 

In the instant case, defendant was flushed in the nighttime at about 9:20 p.m., September 24, some hours after darkness 

at that time of year. Only preliminary work toward opening the 

safe had been completed and among the tools left behind was a 

flashlight. It seems reasonable the jury could conclude that a 

burglar would proceed with diligence to the task at hand and would 

not require a flashlight in the daylight hours. 

Examination of the trial record discloses the jury was 

instructed in court's instructions number 2 and 8 that commission 

in the nighttime is an element of first degree burglary. Instruction number 2 stated the requirement that every fact or element 

necessary to constitute the crime charged must be proved beyond a 

reasonable doubt. Court's instruction number 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. Instruction number 12 defined circumstantial 

evidence as evidence which proves a fact from which the inference of 

another fact may be drawn. 

The jury was properly instructed as to all the elements of 

the crime charged and as to the burden of proof. There was, considering all of the facts and circumstances, sufficient direct and 

circumstantial evidence to support the jury's verdict. 

Issue 12). Did the trial court err in refusing defendant's 

offered instructions numbered 1, 4, 6 and 7? Proposed instruction 

1 was a directed verdict instruction. This instruction was properly 

refused, as was defendant's motion for dismissal. Under Montana 

law in a criminal case, a directed verdict is given only where the 

state fails to prove its case and there is no evidence upon which 

a jury could base a verdict of guilty. State v. Metcalf, 153 Mont. 

369, 457 P,2d 453; State v. Yoss, 146 Mont, 508, 409 P.2d 452. 
Defendant's proposed instructions numbered 4, 6 and 7 were 

repetitive of other instructions given by the trial court relating 

to the elements of first degree burglary and were 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.