### 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: 

## 1fi

## 7973Yr, JusticeWesley Castles delivered the Opinion of the Court.

This isan appeal from a judgment of conviction of the crime of receiving stolen property entered on a jury verdict inthe district court of the fourthjudicial district, county of Missoula. Defendant had a prior felony and was sentenced to a term of fiveyears, He had been charged with burglary inthe firstdegree or alternatively, receiving stolen property. The home of Mr, & Mrs. Charles Hurt, inMissoula, was burglarized on October 22, 1971. Access had been gained through

a window ina bedroom during the Hurts' absence. Stolenwere a Gibson Super 400 guitar, an amplifier, a Pioneer reverberator unit,

a stereounit and one suede jacket. It shortlybecame 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 indefendant's name. The stolen amplifierwas sold to a local secondhand store for $50 by Probst while defendant waited inhis car. Both men sold the stereoand 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 inCanada forhaving an illegalweapon, among other charges. While injail in Regina, Saskatchewan, they informed the Canadian authorities that therewas a warrant for their arrest inMissoula, Montana. They were subsequently deported to the United States from Canada and were arrested on December 

### 3, 1971, in Plentywood, Montana, and returned toMissoula. The suedejacket taken in the burglary was found indefendant Van ~iver's car in Plentywood,While the charges were pending, Probst dismissed his attorney, made a statement, and plead guilty to firstdegree burglary. He was sentenced totwo years; which sentence was deferred, Defendant Van Diver plead not guilty and the casewent to trial. During the trial, the owner of the property testified

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

were allconnected to the possession and saleby 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 toplead guilty. As statedbefore, 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 trialcourt erred in giving Instruction No. 13; (2) that an alleged prosecution comment on defendant's failure to explain hispossession of the goods was reversible error; and 

### (3)whether the court erred innot granting defendant 

### a new trial

on the receiving stolen property charge by itself. Issue 1concerns the giving, over the objection of defendant, of Instruction No. 13which reads:

1l

You are instructed that the mere possession of stolen property, however soon after the taking, unexplained by the person having possession, is not sufficient tojustify conviction. It is, however, a circumstance tobe considered inconnection with other evidence indetermining the question of innocence or guilt. Ifyou should find from the evidence that a burglary was committed on the premises involved in this case and that thereafter the defendant was found inpossession, or claimed tobe the owner, of property stolen from theburglarized 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, towarrant 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 ofproperty that was stolen from burglarized premises isbound 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.II 

### In addition to InstructionNo. 13, other instructions on receiving stolen property were given. InstructionNo. 18 specifically required proof beyond a reasonable doubt, Defendant argues InstructionNo. 13violated 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. Griffinv. California, 380 U.S. 609, 85 S.Ct. 1229, 

### 14

This Court recently considered the question of the constitutionalityof such an instruction, In Statev. Branch, 155 Mont. 22, 23, 26, 465 P,2d 821, this instructionwas given:

It



### One who is found in possession of stolen property isbound 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 ifhe 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 showhis guilt.II 

### InBranch, 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, forbiddenby 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 errorwith the instruction in question. The instruction clearly stated that 

### mere possession alone 

### isnot sufficient to justify a conviction; such has been the long standing rule inMontana. I 11 The Court then went on to deal directlywith the identical issue raised here: "'The defendant contends that the instruction was a comment on his failure to testify, This contention 

### iswithout merit. [Citingcases] We thereforehold that the challenged instruction 

### is constitutional. 1I! We find nothing new inthe 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 controllingwas handed down. This instruction 

### isnot inviolation 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 explainhow he came intopossession of the stolen goods. A defendant can do thisby taking the standhimself, by having another testify on hisbehalf, orby introducing other types of evidence to show how he came intopossession 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 inmaking 

### its determination. Defendant urges that in spite of our holding in Branch and Statev. 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 toexplainhis possession of recently stolen goods, Defendant puts it a littledifferently in that he states it in

11 these terms: failure toexplain away his guiltby 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, inthis case, no comment as such was made on defendant's failure totestify, Counsel makes it out by referring to Instruction No. 13. That instruction plainly, inour view, 

### isnot meant tobe a comment on the failure totestify. Rather, it is an evidentiary rule, The unexplained possession of recently stolen goods--not necessarily an explanation incourt---is a circumstance tobe considered by thejury. hat

### 's all, Other instructions go on torequire other evidence beyond a reasonable doubt. The rule of Griffin, Chapman, and the other cases referred to, simply arenot applicable.here. ~efendant's issue 

### 2 on appeal refers toalleged comments made by the prosecution to thejury concerning defendant's failure totake the stand. In support of this contention counsel for defendant produced an affidavit, signed by himself, inwhich is set out allegedlyverbatim the language the prosecutor used. That 

### is the entirerecord counsel for defendant has used to support his position. There 

### isnothing else, no transcript; only his affidavit of what he allegeswas said, The statein its argument cites

### an affidavit signedby the deputy county attorneywho tried the case. In this affidavit he refutes what was allegedby defendant. There isno way of knowing what was actually said, because there isno written record. This Court must have a written record before itwhich shows exactly what was said. We cannot allow cases tobe reversed only on what

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

a criminal trialmust be shown from the record, it

### willnot be presumed, State

### v. Gallagher, 151Mont, 501, 

### 445 P.2d 

### 45, Additionally, on motion fornew trial the trialjudge, who was present when the alleged statements were supposedly made, denied a new trial. Even atthat time, counsel made no effort to supplement the record. The final issueraised isapparently that if this conviction were tobe reversed, defendant could not then be charged with the crime of burglary. We need not discuss this issue, sincethe conviction of defendant of receiving stolen property 

### isnot reversed. The judgment of the district court 

### is affirmed.

Ass ciateJustices. 

# !