No, 12267 

IN THE 'SUPREME COURT OF THE STATE OF MONTANA 

1973 

STATE OF MONTANA, 

Plaintiff and Respondent, 

TERRY A. LANE a /k/a 

TERRY VAN DIVER, 

Defendant and Appellant. 

Appeal from: District Court of the Fourth Judicial District, 

Honorable Jack L. Green, Judge presbding. 

Counsel of Record: 

For Appellant : 

D. R. Matthews argued, Missoula, Montana 

For Respondent: 

Hon. Robert L. Woodahl, Attorney General, Helena, 

Montana 

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

Helena, Montana 

Robert L, Deschamps, 111 County Attorney, Missoula, 

Montana 

Gene McLatchy, Deputy County Attorney, argued, Missoula, 

Montana 

Submitted: January 26, 1973 

Decided : F'E'E in w.3 

Filed: 1 fi 7973 
Yr, Justice Wesley Castles delivered the Opinion of the Court. 

This is an appeal from a judgment of conviction of the 

crime of receiving stolen property entered on a jury verdict 

in the district court of the fourth judicial district, county of 

Missoula. Defendant had a prior felony and was sentenced to a 

term of five years, He had been charged with burglary in the 

first degree or alternatively, receiving stolen property. 

The home of Mr, & Mrs. Charles Hurt, in Missoula, was 

burglarized on October 22, 1971. Access had been gained through 

a window in a bedroom during the Hurts' absence. Stolen were a 

Gibson Super 400 guitar, an amplifier, a Pioneer reverberator unit, 

a stereo unit and one suede jacket. 

It shortly became apparent that two men, Peter Probst 

and defendant Terry Lane, later identified as Terry Lane Van 

Diver, were involved because the two went to Bakke Motors in 

Missoula and traded a 1959 Cadillac, $50 of defendant's money, 

and the stolen guitar for a 1965 Pontiac purchased in defendant's 

name. The stolen amplifier was sold to a local secondhand store 

for $50 by Probst while defendant waited in his car. Both men 

sold the stereo and speakers to an employee at St, patrick's 

Hospital for $40. 

The two men, Probst and Van Diver, disappeared. Subsequently,after traveling together to New Orleans and Canada, the 

two were arrested in Canada for having an illegal weapon, among 

other charges. While in jail in Regina, Saskatchewan, they informed the Canadian authorities that there was a warrant for their 

arrest in Missoula, Montana. They were subsequently deported to 

the United States from Canada and were arrested on December 3, 1971, 

in Plentywood, Montana, and returned to Missoula. The suede jacket 

taken in the burglary was found in defendant Van ~iver's car in 

Plentywood, 
While the charges were pending, Probst dismissed his 

attorney, made a statement, and plead guilty to first degree 

burglary. He was sentenced to two years; which sentence was 

deferred, 

Defendant Van Diver plead not guilty and the case went 

to trial. During the trial, the owner of the property testified 

as to the burglary and identified the stolen items. The items 

were all connected to the possession and sale by both Probst and 

defendant Van Diver. Probst testified that both he and Van Diver 

burglarized the Hurt home; testified as to their purchase of 

Van ~iver's automobile, their sale of the items, their trip to 

Canada, their arrest, and his subsequent decision to plead guilty. 

As stated before, the charge was in the alternative, 

burglary or receiving stolen property. The jury was instructed on 

both charges and given alternative verdicts. The jury returned a 

verdict of guilty of receiving stolen property. 

Defendant on appeal raises three issues for review: 

(1) That the trial court erred in giving Instruction No. 13; 

(2) that an alleged prosecution comment on defendant's failure 

to explain his possession of the goods was reversible error; and 

(3) whether the court erred in not granting defendant a new trial 

on the receiving stolen property charge by itself. 

Issue 1 concerns the giving, over the objection of defendant, 

of Instruction No. 13 which reads: 

1 l You are instructed that the mere possession of 

stolen property, however soon after the taking, 

unexplained by the person having possession, is 

not sufficient to justify conviction. It is, 

however, a circumstance to be considered in connection with other evidence in determining the 

question of innocence or guilt. If you should 

find from the evidence that a burglary was committed on the premises involved in this case and 

that thereafter the defendant was found in possession, or claimed to be the owner, of property 

stolen from the burglarized premises, such a fact 

would be a circumstance tending in some degree to 

show guilt, although not sufficient, standing alone 

and unsupported by other evidence, to warrant your 

finding him guilty. In addition to proof of possession of such property there must be proof of corroborating ciwcumstances tending of themselves to establish 
guilt, Such corroborating circumstances may 

consist of the acts, conduct, falsehoods, if any, 

or other declarations, if any, of the defendant, 

and any other proved circumstances tending to 

show the guilt of the accused, 

"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. I I 

In addition to Instruction No. 13, other instructions 

on receiving stolen property were given. Instruction No. 18 

specifically required proof beyond a reasonable doubt, 

Defendant argues Instruction No. 13 violated his constitutional rights. Namely, that the instruction allows the judge, 

by way of an instruction, to comment on the fact defendant did 

not take the stand during the trial, Such comments, on the 

defendant not taking the stand during a criminal trial, have been 

held to violate defendants' rights against self-incrimination 

as guaranteed by the Fifth Amendment to the United States Constitution. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 

This Court recently considered the question of the constitutionality of such an instruction, In State v. Branch, 155 

Mont. 22, 23, 26, 465 P,2d 821, this instruction was given: 

It One who is found in possession of stolen property 

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, and if he 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. I I 

In Branch, appellant contended that: 

"* * +c since defendant did not testify on his own 

behalf that the instruction is a comment on the 

defendant's failure to testify, forbidden by Art, 

111, 5 8, of our Constitution and section 94-8803, 

R.C.M. 1947," 

As to the questioned instruction in Branch, this Court 

stated: 
"'we can find no error with the instruction in 

question. The instruction clearly stated that 

mere possession alone is not sufficient to 

justify a conviction; such has been the long 

standing rule in Montana. I 11 

The Court then went on to deal directly with the identical issue 

raised here: 

"'The defendant contends that the instruction 

was a comment on his failure to testify, This 

contention is without merit. [Citing cases ] 

We therefore hold that the challenged instruction 

is constitutional. 1 I! 

We find nothing new in the argument presented by defendant 

in this appeal. This argument has been heard before by this 

Court, and we considered the matter after the United States Supreme Court case cited by defendant as controlling was handed 

down. This instruction is not in violation of the protection 

of the right against self-incrimination, It does not comment on 

failure of the defendant to testify, It does permit the defendant 

to explain how he came into possession of the stolen goods. A 

defendant can do this by taking the stand himself, by having 

another testify on his behalf, or by introducing other types of 

evidence to show how he came into possession of the stolen goods, 

If the defendant does not explain, by any of the enumerated methods 

of explaining his possession, then this fact can be considered 

by the jury in making its determination. 

Defendant urges that in spite of our holding in Branch 

and State v. Gray, 152 Mont. 145, 447 P.2d 475, it is error 

for the prosecution to comment even by way of instruction on failure 

of a defendant to explain his possession of recently stolen goods, 

Defendant puts it a little differently in that he states it in 

11 these terms: failure to explain away his guilt by association", 

Be that as it may, defendant urges that the rule in Griffin requires a reversal. In 24 ALR3d 1093, an annotation appears £01- 

lowing the case of Chapman v. California, 386 U.S. 18, 87 S.Ct. 

824, 17 L ed 2d 705, 24 ALR3d 1065. That discussion is of harmless 

error, cured error, prejudicial error, and automatic reversal. 
However, in this case, no comment as such was made on 

defendant's failure to testify, Counsel makes it out by referring 

to Instruction No. 13. That instruction plainly, in our view, 

is not meant to be a comment on the failure to testify. Rather, 

it is an evidentiary rule, The unexplained possession of recently 

stolen goods--not necessarily an explanation in court---is a circumstance to be considered by the jury. hat 's all, Other instructions go on to require other evidence beyond a reasonable 

doubt. The rule of Griffin, Chapman, and the other cases referred 

to, simply are not applicable.here. 

~efendant's issue 2 on appeal refers to alleged comments 

made by the prosecution to the jury concerning defendant's failure 

to take the stand. In support of this contention counsel for 

defendant produced an affidavit, signed by himself, in which is 

set out allegedly verbatim the language the prosecutor used. That 

is the entire record counsel for defendant has used to support his 

position. There is nothing else, no transcript; only his affidavit 

of what he alleges was said, 

The state in its argument cites an affidavit signed by the 

deputy county attorney who tried the case. In this affidavit he 

refutes what was alleged by defendant. There is no way of knowing 

what was actually said, because there is no written record. This 

Court must have a written record before it which shows exactly 

what was said. We cannot allow cases to be reversed only on what 

one of the attorneys thought was said at the time. Prejudice in 

a criminal trial must be shown from the record, it will not be 

presumed, State v. Gallagher, 151 Mont, 501, 445 P.2d 45, 

Additionally, on motion for new trial the trial judge, 

who was present when the alleged statements were supposedly made, 

denied a new trial. Even at that time, counsel made no effort 

to supplement the record. 

The final issue raised is apparently that if this conviction were to be reversed, defendant could not then be charged 

with the crime of burglary. We need not discuss this issue, since 
the conviction of defendant of receiving stolen property is not 

reversed. 

The judgment of the district court is affirmed. 

Ass ciate Justices. !