No. 14824 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

STATE OF MONTANA, 

Plaintiff and Respondent, 

VS. 

DALE A SHERIFF, 

Defendant and Appellant. 

Appeal from: District Court of the Thirteenth Judicial District, 

Honorable Charles Luedke, Judge presiding. 

Counsel of Record: 

For Appellant: 

Stacey and Nye, Billings, Montana 

Calvin J. Stacey argued, Billings, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

John Maynard argued, Assistant Attorney General, 

Helena, Montana 

Harold Hanser, County Attorney, Billings, Montana 

Submitted: February 20, 1980 

Decided: APR 2 ; 1280 

fi .- '- Filed: -- .- ,I_/ 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

c his is an appeal arising out of defendant's conviction 

of the crimes of attempted deliberate homicide and aggravated burglary in the District Court of the Thirteenth 

Judicial District, in and for the County of Yellowstone, the 

Honorable Charles Luedke presiding. 

The facts as presented by the parties upon appeal are 

the following: On the night of June 26, 1978, Ms. Joyce Ann 

Lamb awoke in the bedroom of her Billings, Montana, residence to find a man standing beside her in the dark. She 

immediately screamed at the sight of the man, and the man, 

in response also screamed. The man then proceeded to her bed 

and positioned himself so that he was straddled over her. 

In an effort to seek the help of her neighbors, Ms. Lamb 

began hitting her hand against the wall. The man then 

struck her and continued striking her for approximately one 

minute, at which time he raised up, backed against a closet, 

stood and looked at her, and finally turned and ran out of 

the room. The man apparently had difficulty in leaving the 

residence, because Ms. Lamb heard him hit something as he 

went through the back door. At this point, Ms. Lamb realized that she was bleeding. She left her house, sought 

help from her neighbors, and was taken to the hospital, 

where it was determined that she suffered 11 stab wounds in 

total. 

Sometime later, an officer of the Billings Police 

Department stopped the defendant after a tip had been obtained from one of Ms. Lamb's neighbors that a man had just 

been seen peeking into her windows. The defendant was asked 

for his identification, and, after some brief questioning, 
was released. At the time of the stop, defendant had a 

knife attached to his belt. Defendant's residence was later 

searched by the police pursuant to defendant's consent. 

Upon the basis of the search, defendant was taken into 

custody and advised of his constitutional rights. At the 

police station, defendant gave a statement to the police 

which reflected that he had been at Ms. Lamb's residence 

that night, but that he could not remember hitting her or 

stabbing her, or, for that matter, having any involvement in 

the crime. Defendant also stated that he did have a knife, 

that he always carried it with him, and that he washed it 

off and placed it in a drawer underneath the television 

after returning home that night. 

Defendant was charged by information on July 5, 1978 

with the crimes of attempt (deliberate homicide) and aggravated burglary. Defendant entered a plea of not guilty to 

both charges, and trial was held on February 26, 1979. The 

jury returned a verdict of guilty with respect to both 

charges, and defendant was sentenced to a 50 year sentence 

for the crime of attempt and a 20 year sentence for the 

crime of aggravated burglary, said terms to be served concurrently. From these judgments, defendant appeals. 

Defendant originally raised two issues for our consideration upon this appeal. However, during oral argument, 

counsel for defendant admitted that one of these issues had 

been resolved by this Court in a prior decision. Thus, we 

find it only necessary to consider the remaining issue-- 

whether the trial court erred in giving the following instruction to the jury: 

"If you find that the defendant, Dale A. Sheriff, 

attempted to commit a homicide and no circumstances of mitigation, excuse or justification 
appear, then you may infer that the attempted 

homicide was committed knowingly or purposely." 

At the outset, we note two observations with respect to 

the above instruction. The first is that the instruction 

goes only to the crime of attempted deliberate homicide and 

not to the crime of aggravated burglary. Defendant's conviction of the latter charge must, therefore, stand. The 

second is that we have previously decided in another case 

that an instruction identical to the one challenged here was 

not error in the context of other instructions given. See, 

State v. Coleman (1979) Mont. -1 - P.2d 36 

St.Rep. 2237. Although Coleman may therefore have persuasive 

application to this case, there still remains the need for 

this Court to independently determine the effect of the 

challenged instruction in the context of the instructions 

given here. 

Defendant's sole contention upon this appeal is that 

the instruction, on the basis of Sandstrom v. Montana 

(1979) 1 U.S. 99 S.Ct. 2450, 61 L.Ed.2d 39, has 

the effect of relieving the State of its burden to prove 

each and every element of the offense beyond a reasonable 

doubt or shifting the burden of proof to the defendant. 

The threshold inquiry in ascertaining whether the State 

has been relieved of its burden of proof, according to the 

United States Supreme Court in Sandstrom, requires "careful 

attention to the words actually spoken to the jury . . . for 

whether a defendant has been accorded his constitutional 

rights depends upon the way in which a reasonable jury could 

have interpreted the instruction." Sandstrom, 99 S0Ct. at 

3453, 61 L.Ed.2d at 45. In Sandstrom, the jury was instructed 

that "the law presumes that a person intends the ordinary 

consequences of his voluntary acts." This instruction 
related to a presumption of law and was mandatory by its 

very terms. There was no discretion allowed on the part of 

the jurors. In contrast, the jurors were told here that 

they "may infer" a material element of the crime, namely 

that the attempted homicide was committed knowingly or 

purposely. This instruction referred to an inference of 

fact and was, by its express terms, permissive. Ulster 

County Court v. Allen (1979), U.S. , 99 S.Ct. 2213, 

60 L.Ed.2d 777. The jurors were given discretion with respect to the finding of intent and were free to follow or 

not to follow the instruction. The language of the instruction, did not involve either a conclusive or burdenshifting presumption, as was involved in Mullaney v. Wilbur 

(1975)r 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508; Sandstrom, 

supra; or Morrissette v. United States (1952), 342 U.S. 246, 

72 S.Ct. 240, 96 L.Ed. 288. Nor did the instruction have 

the effect of allocating to the defendant some part of the 

burden of proof that properly rested on the State throughout 

the trial. 

That the burden remained on the State in proving the 

elements of the offense is made clear by the other instructions given by the trial court in this case. On appeal, we 

consider the instructions as a whole. State v. Farnes 

(1976)t 171 Mont. 368, 558 P.2d 472. 

"The whole of the law on a subject cannot be 

given in one instruction. In determining 

the effect of given instructions, all instructions must be considered as a whole and if 

they fairly tender the case to the jury, the 

fact that one or more instructions, standing 

alone, is not as full or accurate as it might 

have been is not reversible error. [Citations omitted.]" State v. Caryl (1975), 168 

Mont. 414, 430, 543 P.2d 389, 398. 
Here, Instruction No. 21 stated that, in order to 

sustain the charge of attempted deliberate homicide, the 

State had to prove intent as one of the elements of the 

offense. Instruction No. 2 provided that the defendant was 

afforded a presumption of innocence and that the burden of 

proof was upon the prosecution to establish every material 

allegation of the information beyond a reasonable doubt. 

Instruction No. 5 reiterated the defendant's presumption of 

innocence. Instruction No. 10 stated that the defendant 

could not be convicted on conjecture, probability or suspicion, but rather only on evidence which established his 

guilt beyond a reasonable doubt. Instruction No. 12 stated 

in pertinent part: 

"In order to prove the charge of COUNT I: ATTEMPT 

(FELONY) and COUNT 11: AGGRAVATED BURGLARY as 

alleged in the Information, the State must prove 

beyond g reasonable doubt -- that each element of 

the offense, - -- - all necessarily included offenses, 

was committed or perpetrated knowingly by the 

defendant as a?oluntary act. 

"Purpose or knowledge are manifested & -- the circumstance~connected with -- the offense -- and need 

-- not be proved -- by the direct evidence but mx be 

inferred -- from acts, conduct, and circumstances 

appearing - in evidence. 

"There are two classes of evidence recognized and 

admitted in courts in the State of Montana. One 

is 'direct evidence,' the other is 'circumstantial 

evidence.' In 'direct evidence' the witnesses testify 

directly of their own knowledge of the main fact 

or facts to be proved, while 'circumstantial evidence' 

is the proof of certain facts and circumstances in a 

given case from which the jury may infer other 

connecting facts which usually and reasonably follow 

according -- to the common experiences of - mankind. . ." 

(Emphasis added.) 

Instruction No. 7 also provided: 

"Where the case of the State rests substantially 

or entirely on circumstantial evidence, you are 

not permitted to find the defendant guilty of 

any crime charged against him unless the proved 
circumstances are not only consistent with the theory 

that the defendant is guilty of the crime, but cannot 

be reconciled with any other rational conclusion and 

each fact which is essential to a complete set of 

circumstances necessary to establish the defendant's 

guilt has been proved beyond a reasonable doubt. 

"Also, if the evidence, as to any particular count, is 

susceptible of two reasonable interpretations, one of 

which points to the defendant's guilt and the other 

to his innocence, it is your duty to adopt that 

interpretation which points to the defendant's innocence, 

and reject the other which points to his guilt. If, 

on the other hand, one interpretation of the evidence 

appears to you to be reasonable and the other interpretation unreasonable, it would be your duty to 

accept the reasonable interpretation and to reject 

the unreasonable." 

Defendant submits, however, that these instructions 

were nevertheless inadequate. He argues that, while the 

jury was instructed that they could infer intent from the 

acts, conduct, or circumstances appearing in evidence, the 

jury should have also been instructed that they -- need not 

make such inference. Apparently, defendant's argument is 

that this qualification should have been included as an 

addendum to the challenged instruction or submitted as an 

entirely separate instruction. In support defendant relies 

on State v. Bryant (Tenn. 1979), 585 S.W.2d 586; and State 

v. Roberts (Wash. 1977), 562 P.2d 1259. 

We disagree. 

In Roberts an instruction was given to the jury creating a presumption of second-degree murder where no excuse 

or justification appeared. The court held in that case 

that, where an instruction was silent as to how the presumption might be overcome, the jury should be further instructed 

regarding the clear operation of the presumption. Roberts, 

562 P.2d at 1261-62. In Bryant an instruction was given to 

the effect that, if a person entered the premises of another 

disguised or in mask, the jury could consider that act as 
prima facie evidence of the person's intent to commit a 

felony. The court held that the inclusion of that instruction was error where no express instructions were given as 

to the effect of the inference. Bryant, 585 S.W.2d at 590. 

We find here that there was no duty on the part of the 

trial court to submit any qualifications or additions to the 

instructions which were given, because the terms of the 

instructions made clear the effect and operation of the 

inference. As such, this case is distinguishable. Bryant 

and Roberts do not control. The jury was told in very 

explicit terms by Instruction Nos. 7 and 12 what kind of 

evidence could be considered in making the inference and 

what kind of logical steps were permissible to take. Instruction No. 12 allowed the jury to infer purpose or knowledge 

from circumstantial evidence submitted by the State. Instruction No. 7 further directed the jurors that, where 

circumstantial evidence is susceptible of two reasonable 

interpretations, and one of the interpretations points to 

defendant's innocence, they should find the defendant innocent. 

These instructions, taken together with other instructions 

regarding defendant's presumption of innocence and the 

State's burden of proof, made clear the operation and effect 

of the inference. 

We find, therefore, that the trial court properly 

instructed the jury and that there was no error. The language of the challenged instruction was permissive. The 

words "may infer" connoted in plain terms and in plain 

understanding to the jurors that they had discretion to 

follow or not to follow the instruction. Further, the 

operation and effect of the inference was clearly explained 

to the jury. The instruction did not have the effect of 
allocating to the defendant some part of the burden of proof 

that properly rested on the State throughout the trial. 

Accordingly, the judgment of the District Court is affirmed. 

We concur: 

W&A~ 

Chief ~usfice 

-4. 

Justices 

u 

Mr. Justice Daniel J; Shea dissents and will file a written 

dissenr later.