No. 14591 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

STATE OF MONTANA, 

Plaintiff and Respondent, 

VS . 

ANDREW C. SUNDAY, 

Defendant and Appellant. 

Appeal from: District Court of the First Judicial District, 

Honorable W. W. Lessley, Judge presiding. 

Counsel of Record: 

For Appellant: 

A. Michael Salvagni argued, Bozeman, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Richard Larson argued, Assistant Attorney General, 

Helena, Montana 

Charles Graveley argued, County Attorney, Helena, Montana 

Submitted: January 14, 1980 

Decided: MAR 2 7 1980 
Mr. Justice John C. Sheehy delivered the Opinion of the Court. 

Andrew C. Sunday appeals from convictions entered in 

the District Court, First Judicial District, Lewis and Clark 

County, on charges of deliberate homicide, burglary and theft, 

in violation of sections 45-5-102, 45-6-204 and 45-6-301, 

MCA, respectively. 

Sunday came to Montana in early September 1977 with 

James Wilson, Donna Mitchell and Mitchell's three year old 

daughter. On September 4, 1977, they stopped their car at 

a rest area on Highway 200, east of the continental divide 

near Lincoln, Monbana. Desiring to "get away from all the 

hassles" and "live off the land", they packed up supplies 

and walked into the wilderness along the continental divide. 

It soon became apparent they could not go far on foot. 

So, in the early morning hours of September 5, 1977, Sunday 

and Wilson took three horses from the Evergreen resort owned 

and operated by Kenneth and Marion McLean. Additionally, they 

broke into a tack shed which was used for storing horse tack 

used in the McLeans' horse-renting business. They took three 

saddles and three bridles. The tack shed was eight feet by 

twenty feet and was made out of rough lumber. It contained 

no living facilities. 

Sunday, Wilson and the Mitchells spent the next two days 

riding the horses along the continental divide. On the 

afternoon of September 6, 1977, they saw a pickup truck 

rapidly approaching. They tried to escape into the trees 

but were cut off by the pickup. The pickup was driven by 

Kenneth McLean. His wife was also in the pickup. Kenneth McLean 

stopped the pickup about sixty-five feet from Sunday, ~ilson 

and the Mitchells. 
Kenneth McLean got out of the pickup carrying a .308 

caliber bolt action revolver. His wife got out carrying a 

.38 caliber revolver. Sunday dismounted from his horse 

holding a 30.30 caliber rifle. Wilson testified Sunday asked 

Wilson if he wanted the privilege of shooting the McLeans. 

Wilson had a 22.250 caliber bolt action rifle, and Mitchell 

had a -410 gauge single shot shotgun. 

As Kenneth McLean approached, he saidImWhat the God damn 

hell is going on? What kind of prank is this? Give us our 

horses, or we will shoot you." Mrs. McLean added, "Your God 

damn right we will." Immediately after his threat, McLean 

operated the bolt mechanism to his gun and inserted a cartridge. 

According to Sunday, Kenneth McLean pointed the gun directly 

at Sunday. Wilson and Mitchell testified the gun was pointed 

at the ground. 

A shooting spree followed. Sunday shot Kenneth McLean 

in the leg. Then, Marion McLean began shooting at Sunday. 

Sunday returned the fire hitting Marion McLean in her abdomen 

and thoracic area. Sunday next approached Marion McLean. 

Noticing Kenneth McLean rise from the ground, Sunday turned 

and fired two fatal shots at Kenneth McLean. Meanwhile, 

Wilson who was approaching Kenneth McLean noticed Marion McLean 

rise. Wilson shot Marion McLean in the head killing her 

instantly. 

Sunday then took $25 from Kenneth McLean's wallet. 

Wilson took approximately $100 from Marion McLean. Sunday, ~ilson 

and Mitchell picked up the McLeans' weapons and left the area 

in the McLeans' pickup. They were eventually arrested in 

Oregon. 

On September 26, 1977, Sunday was charged in an amended 

information with two counts of deliberate homicide, two counts 

of felony theft and one count of burglary. 

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In October 1977, Sunday gave notice of his intent 

to rely on self-defense. On January 9, 1978, Sunday moved 

for a change of venue. The motion was denied on April 12, 

1975, on the ground any possible prejudice was "speculation 

at this point." 

On July 6, 1972, Sunday xcved :or permission to conduct 

individual voir dire of the prospective jurors. The motion 

was denied, but the District Court said the motion might be 

renewed during voir dire if necessary. Sunday renewed the 

motion during voir dire with respect to one prospective juror, 

Mrs. Garrett. The District Court again denied the motion 

saying it would guide Mrs. Garrett. Sunday passed the panel 

without challenging Mrs. Garrett for cause. Later, both 

the State and Sunday exercised all eight of their preemptory 

challenges. 

In July 1978, a jury verdict was rendered finding Sunday 

guilty of all the charges. Sunday was sentenced to a total 

of 240 years in the state penitentiary. 

Sunday presents eleven issues for review. These issues 

may be grouped as follows: 

1. Whether it was error to deny Sunday's motions for 

change of venue and individual voir dire of jurors. 

2. Whether the State failed to prove the crimes charged 

against Sunday; 

3. Whether the District Court failed to properly instruct 

the jury; and 

4. Whether the sentences imposed on Sunday were 

erroneous. 

ISSUE NO. -- 1: Change of Venue and Individual Voir Dire. 

Sunday contends it was error to deny his motions for 

change of venue and individual voir dire. The contention 

is without merit. 

-4- 
A denial of a motion for change of venue or a motion 

for individual voir dire will be reversed only upon a 

showing of an abuse of discretion. State v. Olson (1971), 156 

Mont. 339, 480 P.2d 822. Sunday has not made such a showing. 

A change of venue must be based on more than an affiant's 

unsupported opinions and the mere fact of pretrial publicity. 

The published accounts must be so passionate as to excite undue 

prejudice, to the extent of rendering it impossible for the 

accused to have a jury free from prejudice. State v. Corliss 

(1967), 150 Mont. 40, 49, 430 P.2d 632, 637. 

Sunday's motion for change of venue was not adequately 

supported. The motion was supported by the single affidavit 

of defense counsel. The affidavit stated defense counsel 

believed Sunday could not receive a fair trial due to inflammatory 

county-wide publicity. The affidavit was unsupported by any 

evidence of the number or inflammatory nature of the publications. 

Also, Sunday never renewed his motion for a change of venue 

at any time during or after jury selection. 

Sunday also did not adequately support his motion for 

individual voir dire. Sunday never demonstrated the extent 

of the pretrial publicity, its inflammatory nature or whether 

it had any prejudicial effect on the prospective jurors. 

Moreover, Sunday passed the jury panel, including Mrs. Garrett, 

the main object of Sunday's concern, without challenging any 

potential juror for cause due to bias or prejudice. See, 

section 46-16-304 (2) (j) , MCA. 

ISSUE NO. -- 2: Failure to Prove the Crimes Charged. 

Sunday maintains the State failed to prove Sunday 

committed burglary since the tack shed is not an "occupied 

structure" as required by section 45-6-204, MCA. 

A fundamental rule of statutory construction is the 

intent of the legislature controls. Dodd v. City of East 

-5- 
Helena (1979), - Mont. - 

, 591 P.2d 241, 243, 36 St.Rep. 

414, 417. In construing legislative intent, this Court 

construes criminal statutes according to the fair import 

of their terms with a view to effect their object and to 

promote justice. State v. Shannon (19761, 171 Mont. 25, 28, 

554 P.2d 743, 744. 

The intent of the burglary statute was to prohibit 

wrongful intrusions into those places where the threat 

to people was most alarming. State v. Shannon, supra. Thus, 

in defining "occupied structure", the legislature included 

those places where the chance of human confrontation was most 

likely, in those places suitable "for human occupancy or 

night lodging" and "for carrying on business." Section 45- 

2-101 (34), MCA. 

The McLeans' tack shed was a structure suitable for 

carrying on business and was so used by the McLeans. The 

McLeans operated a horse rental business. Horse tack was 

an integral part of that business, and the horse tack was 

stored in the tack shed. Moreover, both the guests and 

employees of the Evergreen Resort would enter the shed 

frequently and ai: irregular hours. 

Count V of the amended information charged Sunday with 

the felony theft of (1) a 1966 International pickup truck, 

(2) a .308 caliber rifle, (3) a .38 caliber Smith and Wesson 

pistol, (4) a gunbelt and holster, and, (5) $150 in cash. 

Sunday contends the State failed to prove the value of the 

personalty listed in count V exceeded $150 as is required by 

section 45-6-301, MCA, the theft statute. We agree. 

Under our felony theft statute, the State must prove 

beyond a reasonable doubt that the value of the personalty 

allegedly taken exceeds $150. At trial, the only value 

testimony was given by Sunday and Mitchell and related to 

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the amount of cash taken from the McLeans. Sunday testified 

he took $20 to $25 from Kenneth McLean's wallet. Mitchell 

testified Wilson took about $100 from Marion McLean's purse. 

The State asserts Sunday waived any objection to the 

State's failure to prove value by not raising the issue prior 

to the entry of the judgment of conviction. The State's 

assertion is without merit, Under the facts here, value is 

an essential element of the crime charged, and such an error 

may be raised at any time. 

The State next asks this Court to take judicial notice 

of the fact that the aggregate value of the personalty involved 

here is greater than $150. We will not do this. 

Rule 201(b)! M.R.Evid., sets forth the kinds of facts 

which may be judicially noticed. That provision reads as 

follows: 

". . . A fact to be judicially noticed must be 

one not subject to reasonable dispute in that 

it is either (1) generally known within the 

territorial jurisdiction of the trial court or 

(2) capable of accurate and ready determination 

by resort to sources whose accuracy cannot be 

reasonably questioned." 

We will not go beyond the scope of this provision and take 

judicial notice of a basic element of the crime charged not 

otherwise proved. 

It is also noteworthy that the jury was not properly 

instructed as to value. None of the instructions concerning 

felony theft mentioned that a value greater than $150 is 

necessary for a felony theft conviction. Thus, the jury 

reached its decision on the felony theft charge without even 

considering a fundamental element of the crime charged. We 

will not presume the jury knew about this element of 

felony theft. 

Sunday next contends the convictions for the deliberate 

homicides of Kenneth and Marion McLean are not supported by 

-7- 
the evidence. More specifically, Sunday maintains the 

evidence establishes the homicides were justified, or at 

most, Sunday could be convicted of mitigated deliberate 

homicide. 

Whether Sunday was justified in killing the McLeans 

and whether Sunday acted under extreme emotional distress 

were questions of fact for the jury. State v. Larson (1978), 

Mon t . , 574 P.2d 266, 269, 35 St.Rep. 69, 73. Upon 

appeal, this Court will not substitute its judgment for that 

of the jury if the verdict is supported by substantial evidence. 

The evidence must be viewed in a light most favorable to the I . ,, I 

State. State v. McGuinn (1978), Mont. , 581 P.2d 

417, 419, 35 St-Rep. 871, 872. 

The verdicts of deliberate homicide are supported by 

substantial evidence which if believed by the jury would result 

in convictions for deliberate homicide. Both Wilson and 

Mitchell testified Kenneth McLean did not point his rifle 

at Sunday. In addition, Wilson testified Sunday asked Wilson 

if he wanted the privilege of shooting the McLeans. Sunday's 

own testimony corroborates the sequence of events as described 

by Wilson and Mitchell. 

Sunday also contends the evidence clearly shows Wilson's 

actions were the sole intervening cause of Marion McLean's 

death. Therefore, according to Sunday, it was error to submit 

count I1 of the amended information, the deliberate homicide 

of Marion McLean, to the jury. We do not agree. 

Sunday shot Marion McLean in her abdomen and thoracic 

area. Shortly thereafter, Wilson shot Marion McLean in the 

head killing her instantly. A pathologist testified the 

wound inflicted by Sunday would have caused Marion McLean's 

death within minutes had she not been shot by Wilson. 

-8- 
The principal end of the law of homicide is to 

protect human life by preventing behavior which can cause 

death. The evidence adduced at trial clearly shows Sunday 

engaged in conduct which was likely to cause the death of 

a human being. Moreover, Sunday's situation would be no 

different if Marion McLean had been struck by a bolt of 

lightning rather than shot in the head by Wilson. 

ISSUE NO. 3: Instructional Error. -- 

Court's instruction no. 16 reads as follows: 

"You are instructed that a criminal homicide 

is deliberate homicide if: 

" (1) It is committed purposely or knowingly; or 

" (2) It is committed while the offender is 

engaged in flight after committing or attempting 

to commit burglary or any other felony which 

involves the use or threat of physical force or 

violence against any individual." 

Sunday contends it was error to give the second part 

of the instruction concerning the felony-murder rule. 

According to Sunday, he was not charged under the felonymurder rule, there are no facts supporting the application 

of the rule, and even assuming proof of a felonious act, 

there was no showing of a connection between it and the 

McLeans' death. 

Sunday's contention is without merit. The evidence 

establishes that Sunday caused the McLeans' death while in 

flight after committing a burglary. Court's instruction 

no. 16 paraphrases section 45-5-102, MCA, the statute 

defining deliberate homicide. That statute specifically 

covers criminal homicides committed while in flight after 

committing a burglary. The connection between Sunday's 

felonious act and the McLeans' death was decided by the jury. 

Ashas stated in Commonwealth v. Almeida (Pa. 1949), 68 A.2d 
". . . There can be no doubt about the 'justice' 

of holding that felon guilty of murder in the 

first degree who engages in a robbery or burglary 

and thereby inevitably calls into action defense 

forces against him, the activity of which forces 

result in the death of a human being." 

Additionally, at trial, Sunday did not require the State 

to specify which theory of deliberate homicide the State 

was following. Nor did Sunday object to the court's instruction 

no. 16 on the grounds now asserted upon appeal. This Court 

will not reverse the District Court's rulings on the instructions 

on grounds not raised at the time the instruction was proposed. 

State v. Campbell (1965), 146 Mont. 251, 263, 405 P.2d 978, 

Sunday next contends the jury was incorrectly and incompletely instructed on the affirmative defense of self-defense. 

In this regard, Sunday asserts the court's instructions (1) 

failed to explain self-defense as a concept of fear to be 

judged in light of appearances and (2) failed to explain Sunday 

had no duty to retreat. 

In considering this issue, we will first set out the 

relevant law applicable to the concept of self-defense. A 

person is justified in the use of force likely to cause death 

or serious bodily harm only if he reasonably believes that such 

force is necessary to prevent imminent death or serious bodily 

harm to himself or another or to prevent the commission of a 

forcible felony. Section 45-3-102, MCA. Self-defense is to be 

judged in terms of the apparent danger which the defendant 

perceived, as a reasonable person, rather than in terms of 

the danger actually confronting him. The belief in the 

necessity of using force must be reasonable, but even a mistaken 

belief may be reasonable. State v. Reiner (1978), Mon t . 

, 587 P.2d 950, 956, 35 St.Rep. ISGl, 1867, 1869. A 

defendant may stand his ground even if he reasonably believes 

he is in imminent danger of great bodily harm. See State v. 

Porter (1964), 143 Mont. 528, 391 P.2d 704. 

-10- 
Sunday cannot complain if these concepts were conveyed 

to the jury by the District Court in the body of its instructions. 

If so, Sunday was given ample opportunity to present his theory 

of defense to the jury. State v. Collins (1978) , - Mont. 

, 582 P.2d 1179, 35 St.Rep. 993. We find such is the case 

here. 

The jury was instructed that self-defense was a concept 

of fear to be judged in light of appearances even if those 

appearances were false. Court's instruction no. 27 and 31 

directed the jury to consider whether Sunday "reasonably believed" 

that force by him was necessary. These instructions do not 

say that reasonable belief must be founded upon subjective 

appearances or the danger actually confronting Sunday. State 

v. Reiner, supra. Similarly, instructions, like court's 

instructions no. 27 and 31, which state the general law of 

self-defense adequately cover, Montana's "no retreat" rule. 

State v. Porter, supra. 

District Court's instruction no. 28 instructed the jury 

that Sunday had the burden of producing sufficient evidence 

to raise a reasonable doubt of his guilt in order to avail 

himself of the affirmative defense of self-defense. Sunday 

maintains it was error to give this instruction. We do not 

agree. 

Sunday contends the instruction is misleading and 

confusing when compared with court's instruction no. 17 

which instructed the jury that the State had the burden of 

proving lack of justification. Sunday is barred from asserting 

this upon appeal as a ground for reversible error. This was 

not a ground of his objection at trial. State v. Campbell, 

supra. 

Sunday next asserts that court's instruction no. 28 is an 

incorrect statement of the law. The assertion is without merit. 

In Montana, the defendant must present some evidence of 

self-defense in order to raise it as an issue unless the State's 

-11- 
evidence puts self-defense in issue. State v. Cooper (1979), 

Mont. 589 P.2d 133, 36 St.Rep. 30. 

At trial, Wilson and Mitchell, both witnesses for the 

State, testified Kenneth McLean did not point his gun at 

Sunday. Wilson also testified that Sunday asked Wilson if he 

wanted the privilege of shooting the McLeans. The State did 

not raise the issue of self-defense by showing the totality of 

the circumstances surrounding the homicides including evidence 

which negates the application of self-defense. 

Finally, Sunday contends court's instruction no. 28 

unconstitutionally shifted the burden of proving self-defense 

to Sunday. It did not. The absence of justification is not 

an element of deliberate homicide, and proving lack of justification does not serve to negate any of the facts which the 

State must prove beyond a reasonable doubt in order to 

support a conviction of deliberate homicide. Patterson v. 

New York (1977), 432 U.S. 197, 97 S.Ct. 2319, 53 ~.Ed.2d 

281; State v. Cooper, supra. 

Court's instruction no. 22 reads: 

"You are instructed that purpose or knowledge 

are manifested by circumstances connected with 

the offense. Purpose or knowledge need not 

be proved by direct evidence, but may be inferred 

from acts, conduct and circumstances appearing in 

evidence." 

Sunday maintains this instruction and court's instruction 

no. 23, "You are instructed that the law presumes that a person 

intends the ordinary consequences of his voluntary acts", are 

reversible error under Sandstrom v. Montana (1979), - U.S. I 

99 S.Ct. 2450, 61 L.Ed.2d 39. We do not agree. 

Court's instruction no. 22 is a permissive inference. It 

allows, but does not require, the jury to infer ultimate facts 

from basic ,facts adduced by the State. No burden of proof is 

placed on Sunday. County Court of Ulster Cty. v. Allen 

(19791, - U.S. , 99 S.Ct. 2213, 2224, 60 L.Ed.2d 777, 792; 

ilState v. Coleman (1979), Mont./ - P.2d , 36 St.Rep. 2237. 

-12- 
Since a permissive inference is involved, Sunday must 

show the invalidity of the inference as applied to him. 

Sunday must show there is no rational way under the facts of 

this cause for the jury to make the connection permitted by 

the inference. Only then is there a risk the presumptively 

rational jury will use the inference to make an erroneous 

factual determination. County Court of Ulster Cty. v. Allen, 

supra. Sunday has not carried his burden upon appeal. 

Similarly, it was not prejudicial error to give court's 

instruction no. 23. The homicide charges against Sunday were 

submitted to the jury in the disjunctive, as a deliberate homicide 

or as a felony-murder case. Under either theory, Sandstrom v. 

Montana, supra, is not controlling. 

A person is guilty of deliberate homicide if it is committed 

"purposely" or "knowingly." Section 45-5-102, MCA. A person 

acts "purposely" with regard to any offense if it is his conscious object (1) to engage in that conduct defined as the 

offense or (2) to cause a result which is the offense. Section 

45-2-101(52), MCA. Applying this definition of purpose to 

this cause, if the jury found that Sunday consciously sought 

to kill or consciously conducted himself to cause a death as 

a result of his cQnd~ct, the elements of intent and act are 

merged in his conduct once purpose is shown. Thus, under the 

criminal code, proof that the defendant acted "purposely" is 

sufficient proof that he acted "knowingly". Section 45-2-102, 

MCA . 

A person is shown to have acted "knowingly" with respect 

to dsliberate homicide upon proof of either of two mental 

elements: (1) when he is aware of his conduct which constitutes 

an offense; or, (2) when he is aware that it is highly probable 

that a death of a human being will be the result of his conduct. 

Section 45-2-101(27), MCA. As we noted in State v. Coleman, 

36 St-Rep. at 2242, it is his awareness either of his conduct 
or the highly probable result of his conduct that must be 

proved beyond a reasonable doubt to establish his "knowledge" 

as a mental element of the crime. But we repeat, if purpose 

is shown beyond a reasonable doubt, knowledge is thereby 

established under the code. 

Therefore, in simplest terms, the burden of the State 

here under the charge of deliberate homicide was to prove 

Sunday by a voluntary act caused the death of a human being 

while having the mental state described as "purposely" or 

"knowingly". Those are the material elements of a deliberate 

homicide under the Montana Criminal Code of 1973. 

Here, the State proved beyond a reasonable doubt that 

Sunday purposely shot the McLeans. Sunday testified he 

fired the first shot at Kenneth McLean. In fact, it was not 

shown that Kenneth McLean even fired a shot. True, Sunday 

contends he acted purposely but that he was justified in 

defending himself. However, by Sunday's own admission, it 

was Sunday's conscious object to shoot the McLeans or to 

cause that result. Section 45-2-101(52), MCA. Therefore, 

the jury was never called upon to decide as an issue of fact 

whether Sunday acted purposely or knowingly to cause the 

death of a human being. Sunday's own testimony admitted 

that. Rather, the issue became whether Sunday's purposeful 

act was a justified use of force, self-defense. Section 45- 

3-102, MCA. 

Court's instruction no. 23 was therefore superfluous. 

Sunday intended by his conduct to do the McLeans grave bodily 

harm. That was the ordinary consequence of his voluntary acts. 

The objected to instruction did not relate to a material issue 

in the cause hnds0 at most, was harmless error. Such error is not 

cause for reversal. Section 46-20-701, MCA. 

We are aware of the apparently conflicting opinion of 

the Court where self-defense is an issue, and the ~andstrom 

-14- 
instruction is involved, in Holloway v. McElroy (D.Ga. 1979), 

474 F.Supp. 1363, 1368. The rationale of that Court is not 

explained. We find in this case that self-defense admits 

a purposeful act, but claims the purposeful act was justified. 

Likewise, court's instruction no. 23 was not prejudicial 

error under the felony-murder theory submitted to the jury. 

The felony-murder rule is embodied in the definition of 

deliberate homicide in the Montana Criminal Code of 1973. 

Section 45-5-102, MCA. Intent as such is not an element under 

the felony-murder rule. 

The felony-murder statute requires proof of the following 

combination of elements: 

1. The intent to commit a felony, burglary here; 

2. An unintentional death caused by the attempt, perpetration or attempted escape of a felon; and 

3. The death must be an outgrowth of the felony itself 

and related to the burglary by an unbroken chain of causation. 

Bassiouni, Substantive Criminal - Law (1978), at 250, 251. 

Earlier in this opinion, we affirmed the charge of 

burglary against Sunday. His intent to commit the burglary 

was proven by direct evidence and by Sunday's own admissions. 

Therefore, "purpose" as an element of that crime was established. 

Intent was no longer an issue under the felony-murder statute 

once it was shown by the evidence that Sunday committed a 

burglary and Sunday killed the McLeans while in flight after 

the commission of the burglary. It was the commission of 

the burglary which gave rise to the dangerous circumstances 

which invited the McLeans' deaths. The intent to commit the 

burglary was a sufficiently supplied intent for all the 

consequences including the homicides arising therefrom. 

Bassiouni, supra, at 247. 

If the jury applied the felony-murder theory here, the 

court's instruction no. 23 was superfluous because the jury 

-15- 
had no issue of intent to decide. Intent was not an element 

of the deliberate homicides, and intent was not an issue before 

the jury. The instruction played no part in the jury's 

deliberations as to the deliberate homicides. 

ISSUE NO. 4: Sentences. -- 

Upon his convictions, Sunday was sentenced to serve 

100 years for each count of deliberate homicide, 10 years 

for each theft count and 20 years for burglary. The terms 

are to be served consecutively, 240 years total, and Sunday 

is ineligible for parole or participation in the work furlough 

program. 

Wilsonpleded guilty to two counts of deliberate homicide 

and to two counts of theft. He received a sentence of 100 

years for each deliberate homicide count and 10 years on each 

theft count. The sentences are to be served concurrently, 

and while the county attorney will not recommend parole, he 

will not fight Wilson's parole. 

Sunday contends the District Court did not have the 

authority to impose a 20 year sentence for burglary. As for 

the other sentences, Sunday asserts they are unconscionable and 

unjustified when compared to the sentences received by Wilson 

who was equally guilty. 

We agree the District Court did not have the authority 

to sentence Sunday to 20 years for burglary. By statute, the 

maximum possible sentence for burglary is 10 years in the 

state penitentiary. Section 45-6-204, MCA. Accordingly, 

under section 46-20-703, MCA, we reduce Sunday's sentence 

for burglary to 10 years in the state penitentiary with the 

other provisions of the sentence to remain unchanged. 

Likewise, also under section 46-20-703, MCA, we reverse 

the 10 year sentence Sunday received upon his conviction for 

felony theft as charged in count V of the amended information. 

The State failed to prove an essential element of felony theft 

in count V that the property taken exceeded $150 in value. 

-16- 
With regard to the terms of the other sentences imposed 

upon Sunday, we find the District Court did not abuse its 

discretion. All the other sentences are within the maximum 

allowed by law for each offense. Similarly, the other 

provisions of the sentence, no parole and no work furlough, 

are also proper under the applicable statute. Section 46- 

18-202, MCA. The District Court determined that the restrictions 

were necessary for the protection of society because of Sunday's 

extensive criminal record, his uncaring attitude and the 

malevolent way in which he killed the McLeans. 

This Court will not second guess the trial judge, who 

after observing the demeanor and attitude of the defendant, 

uses his discretion in fixing punishment. Matter of Jones 

(1978) , Mont. , 578 P.2d 1150, 1155, 35 St.Rep. 

Accordingly, Sunday's conviction for felony theft as 

charged in count V of the amended information and the sentence 

imposed thereon are reversed. The count V felony theft 

charge is dismissed. The twenty year sentence for burglary 

is reduced to ten years in the state penitentiary to be 

served under the other conditions laid down by the District 

Court. The burglary conviction is otherwise affirmed. 

Sunday's other convictions and the sentences imposed thereon 

are affirmed. 

We Concur: 

Chief Justice 

u Justices 

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

dissent later. 

- 17 - 
No. 14591 

STATE OF MONTANA, 

Plaintiff and respondent, 

VS . 

ANDREW C. SUNDAY, 

Defendant and appellant. 

DISSENT OF MR. JUSTICE DANIEL J. SHEA: 

PPrTCp.~\ 

- ,- j' - , I.' , I ., ,L, .. Dated: May 5, 1980 p-6 

4: j 7 

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3 

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Mr. Justice Daniel J. Shea dissenting: 

For a number of reasons, the felony-murder instruction 

given in this case was improper. Hence, I would reverse 

the homicide convictions and order a new trial. I would, 

moreover, reverse and dismiss the burglary conviction because 

the tack shed was not an "occupied structure" ~~ithin the 

meaning of the statute. With relation to count I11 of the 

theft charges, I would reach the same result there as was 

reached by the majority in relation to count V of the theft 

charges, thereby reversing and dismissing each theft charge 

for failure to prove and instruct upon an essential element. 

THE FELONY-THEFT CHARGES AND -- THE MAJORITY DISPOSITION 

Defendant was charged with two counts of felong theft-- 

counts I11 and V. Count I11 charged theft of personal property 

taken from the McLean ranch. This charge included theft of 

three rifles, two shotguns, and three horses. Count V charged 

theft of personal property after the commission of the homicides. This charge included theft of a pickup truck, a pistol, 

a rifle, a woman's purse, and $150 in cash. As the majority 

has stated, there was no direct evidence presented on the value 

of the items and the trial court totally failed to instruct 

the jury that value is an element of the offense. 

In this appeal, defendant attacked only count V, contending 

that value was not proved. In relation to this contention, 

the majority held that value is an essential element of the 

offense of theft and that this Court will not take judicial 

notice of value because it is an essential element to be 

proved. With this I agree. Accordingly, the majority reversed 

ea 

the conviction on Count V and order7the charge dismissed. With 

this I also agree. I fail to understand, however, why, on 

the same basis, the majority did not also order reversal and 

-18- 
dismissal of the theft conviction on count 111. The same 

law applies to each count, and the State failed to prove 

value and the jury was not instructed the value was an 

essential element to be proved with relation to each count 

of theft. How, under these circumstances, can a reversal 

and dismissal be ordered on count V and an affirmance be 

derdwith relation to count III? Although the defendant did 

not raise any issue with relation to count 111, this Court, 

under the plain error doctrine, can reach the same result 

with relation to count I11 as it has reached with relation 

to count V. 

Based on the majority rationale that value is an essential 

element of the crime which must be proved beyond a reasonable 

doubt, and that we will not take judicial notice of the value 

of the items involved in order to uphold a conviction, I 

would also reverse and dismiss the theft conviction under 

count 111. 

BURGLARY--THE ----- TACK SHED WAS NOT AN OCCUPIED STRUCTURE WITHIN 

THE - MEANING OF -- THE BURGLARY STATUTE 

There are several reasons why the felony-murder rule 

has no application to the facts of this case. As a starter, 

the tack shed was not an occupied structure within the meaning 

of the burglary statute. Obviously, however, since the 

majority declares that the underlying felony for application 

of the felony-murder rule is burglary, it is necessary that 

it declare the tack shed to be an occupied structure. Absent 

this holding, the felony-murder rule as applied here, would 

come tumbling down like a house of cards. Thus the majority 

has killed two birds with one stone here. By declaring the 

tack shed to be an occupied structure, it has affirmed the 

underlying burglary conviction, and also set the stage for 

-19- 
application of the felony-murder rule. This is a clear 

demonstration of what happens when an appellate court is 

result oriented--the law is created or expanded to fit the 

facts. 

The burglary statute, section 45-6-204(1), MCA, provides 

that: "[A] person commits the offense of burglary if he 

knowingly enters or remains unlawfully in an occupied structure 

with the purpose to commit an offense therein." (Emphasis 

added.) The trial court instructed the jury that one of the 

essential elements for the crime of burglary which must be 

proved beyond a reasonable doubt is that the structure involved 

must have been an "occupied structure." (Instructions 12 and 

13.) By instruction 13, the tr2al court told the jury that 

the first of two elements which must be proved beyond a reasonable doubt is "that the defendant knowingly and unlawfully 

entered or remained unlawfully within an occupied structure." 

"Occupied structure" was also defined for the jury (instruction 

14, the statutory definition contained in section 45-2-lOl(34)): 

"You are instructed that "occupied structure" 

means any building, vehicle, or other place 

suited for human occupancy or night lodging 

or persons or for carrying on business whether 

or not a person is actuallypresent. Each unit 

of a building consisting of two or more units 

separately secured or occupied is a separate 

occupied structure." (Emphasis added.) 

The majority has seized upon the emphasized language of 

this instruction and declared that the tack shed is "suited 

. . . for carrying on business." The tack shed here is eight 

feet by twenty feet and is made out of rough lumber. Inside 

the shed there are nails and pegs for hanging horse tack, 

but there are no living facilities. The tack shed was used 

exclusively for storing horse tack. Entry to the tack shed 

was made in the very early morning hours of Sunday, September 

5, 1977. There were no human beings then inside the tack shed. 
The declaration that the tack shed was suitable for 

carrying on business goes beyond the intent of the criminal 

law commission, which, of course, drafted the statutes involved before they were presented to the legislature. The 

Revised Criminal Law Commission Comment states: 

"The core of common law concept of burglary 

was breaking and entering a dwelling house at 

night with intent to commit a felony therein. 

The scope of the offense has enlarged until 

under prevailing law, the offense may be com 

mitted by entry alone, in day time as well as 

by night, in any building, structure, or 'vehicle.'" 

"In this code, the 'occupied structure' is 

narrowly defined to include buildings where people 

can live or work and where intrusions are most 

alarming and dangerous. For example, the definition 

-- does not include barns, or abandoned buildings 

unsuited - for human occupancy. In the case of a 

mine or ship, for example, fitness for occupancy 

would have to be proved. 'Entering or remaining 

unlawfully' is a concept which takes a middle 

ground between prevailing law which requires a 

breaking and its complete elimination in some 

modern legislation." (Emphasis added.) 

There is nothing in the legislative record to indicate 

any construction beyond that given to it by the Criminal Law 

Commission. By its decision here, however, this Court has 

declared that any barn into which a human may venture, 

regardless of whether or not it is then occupied, is, within 

the meaning of the burglary statute, an occupied structure. 

This is an unwarranted statutory extension. 

Before the trial of this case, defense counsel moved to 

dismiss the burglary charge because the tack shed was not an 

occupied structure within the meaning of the burglary statute. 
The prosecutor 

/vigorously resisted dismissal of the burglary charge and 

the defense motion was denied. Thus the case went to trial 

with defendant facing a burglary charge. Neither he nor 

defense counsel had the wildest dream, however, that as a 

result of this burglary charge, the prosecution would inject 

another theory of homicide into the case by-offering a felonymurder instruction at the end of the case. 

Because the tack shed was not an occupied structure 

within the meaning of the burglary statute, the burglary 

conviction must be reversed and dismissed. 

- IN PERMITTING THE FELONY-MURDER INSTRUCTION - TO STAND UNDER 

THE FACTS-OF -- THIS CASE, THE MAJORITY HAS IGNORED SOME 

FUNDAMENTAL RULES OF - CRIMINAL PROCEDURE 

Vital to a charge of felony-murder is the fundamental 

requirement that it be charged if the prosecution expects a 

conviction on that theory. Defendant was not charged with 

felony-murder--it is that simple. He was charged in count I 

with "purposely or knowingly" killing Kenneth L. McLean, and 

he was charged in count I1 with "purposely or knowingly" 

killing Marion McLean. 

The deliberate homicide statute (section 45-5-102, MCA) 

reads as follows: 

" (1) Except as provided in 45-5-103 (1) , criminal homicide constitutes deliberate 

homicide if: 

"(a) it is committed purposely or knowingly; 

- or 

"(b) it is committed while the offender is 

engaged in or is an accomplice in the commission 

of, an attempt to commit, or flight after committing or attempting to commit robbery, sexual 

intercourse without consent, arson, burglary, 

kidnapping, felonious esccape, or any other felony 

which involves the use or threat or physical force 

or violence against any individual." (Emphasis 

added. ) 
By the clear wording of the statute, deliberate 

homicide can be committed in eit3x.r of two ways. Under 

subsection (l)(a), by "purposely or knowingly" killing the 

victim. Under subsection (l)(b), by commiting an underlying 

felony which triggers application of the felony murder rule. 

The State, however, did not charge the defendant under both 

theories. 

Count I related to the killing of Kenneth L. McLean, 

and the charging part of the information alleged that the 

defendant: 

". . . committed the offense of DELIBERATE 

HOMICIDE, a felony in that [he] purposely 

or knowingly caused the death of Lemul Kenneth 

E~ean by shooting him with a firearm . . ." 

(Emphasis added. ) 

And count I1 related to the death of Marion McLean. The 

charging part of the information alleged that the defendant: 

". . . committed the offense of DELIBERATE 

HOMICIDE, a felony, in that [he] purposely or 

knowingly caused the death of MARION McLEAN 

by shooting her with a firearm. . ." (Emphasis 

added. ) 

Needless to say these charges do not allege facts which 

would permit invocation of the felony-murder rule. Nor is 

there any indication by the charges that the prosecutor would 

rely on the felony-murder rule as an alternative theory of 

his case. Defendant pleaded not guilty to counts I and 11, 

he went to trial defending on those charges as specified, 

and the trial itself was conducted on the basis of those 

charges. It is fundamentally unfair to add an additional 

theory at the end of the trial by offering an instruction 

containing the felony-murder rule. That is precisely what 

the prosecutor did in this case. 

PROCEDURAL ERROR - IN PERMITTING THE - FELONY-MURDER INSTRUCTION 

TO -- STAND 

Assuming an evidentiary basis for application of the 

felony-murder rule, there is no doubt that the State had the 
right to charge the defendant alternatively and to go to 

the jury on alternative charges or theories. Section 46- 

11-404 (1) , MCA, provides in part: 

"An . . . information . . . may charge . . . different statements of the same offense 

. . . under separate counts.. . . The prosecution 

is not required to elect between the different 

offenses or counts set forth in the . . . information It . . . 

It is clear, therefore, that although there would be 

but one offense in relation to the death of each person, 

a jury could have returned a verdict finding defendant guilty 

under the "purposely or knowingly" theory or under the felonymurder theory, or under both theories. 

But the crucial issue here is that the State had no right 

to present both theories to the jury in the absence of 

charges initially informing the defendant that he was charged 

under both theories. If the State desired to amend the 

information before trial and include an alternative count of 

felony-murder, it had the right to do so. In fact, section 

46-11-403, MCA, entitled Amending the Charge, sets forth 

the procedure for amending an information. But no effort 

was ever made to amend the charges before the trial, or 

for that matter, at any time. 

With the statutory background of section 46-11-404(1) 

and 46-11-403, MCA, in mind, I fail to see how a possible 

felony-murder conviction can be based upon a theory not 

charged in the information. 

There is no indication in the record of why defense 

counsel at trial failed to catch the new theory sprung on 

the defendant by instruction 16, setting forth the felonymurder rule in addition to the charge that defendant "purposely 

or knowingly" killed the McLeans. Trial counsel did not 

represent defendant on the appeal of this case (the reason 
being that sometime after the conviction in this case, 

he went to work for the county presecutor who tried this 

case). It appears, nonetheless, that his failure to object 

to the felony-murder portion of the instruction, was inadvertent. 

His objection to the instruction was that it was repetitious 

of other instructions already defining deliberate homicide and 

the elements to be proved. It was indeed repetitious; but 

it went one step beyond this and injected the felony-murder 

theory into this case for the first time. It is fundamentally 

unfair that the prosecutor can be rewarded for his deliberate 

injection of a new issue and theory into the trial upon the 

settlement of instructions, in total violation of the procedural rules governing the charging of an offense. Why 

should a defendant be punished because the prosecutor has 

violated the basic procedural statutes governing his conduct 

as a prosecutor? 

The majority's rationale for permitting the felony-murder 

instruction and possible conviction for felony-murder to 

stand, is more than tissue-paper thin. Waiver by failing to 

object to the instruction, and failure to move the court to 

require the prosecution to elect its theory to present to 

the jury, are the announced grounds. 

As to waiver, the majority's reliance on State v. Campbell 

(1965), 146 Mont. 251, 405 P.2d 978, and cited by the State in 

its brief on this point, is misplaced. In Campbell, the 

raising of an objection to an instruction on one ground at 

trial, and on an entirely different ground on appeal, was 

held to constitute a waiver. But the instruction involved 

in Campbell did not inject into the trial an entirely new 

theory of the case. Here the State is rewarded for proceeding 

in blatant violation of the underlying statutory guidelines 

for charging and amending criminal charges. A waiver theory 

must have as its underlying foundation, a belief that the 

-25- 
error was not so fundamental as to require a reversal. Here 

the error is so fundamental, and so palpable, that a reversal 

is required. 

As its second procedural reason for turning down 

defendant's argument with relation to the felony-murder 

instruction, the Court states: "Additionally, at trial, 

Sunday did not require the State to specify which theory 

of deliberate homicide the State was following." In the 

context of this case, this rationale has no application 

at all. 

Where only one theory has been charged it is rather 

difficult and meaningless to require a defendant to move 

to require the prosecutor to specify which theory he will 

rely on in asking the jury to reach a decision. The charges 

contained no basis upon which a defendant could make such a 

motion. Furthermore, assuming that defendant was charged 

alternatively with felony-murder, there was no basis in the 

law upon which a defendant could successfully move that the 

State elect its theory. Section 46-11-404(1), supra, 

specifically allows alternative charges and states, moreover, 

that ". . . The prosecution is not required to elect . . ." 

Here the error is plain and the prejudice manifest. This 

Court has a duty to recognize such manifest errors and take 

the necessary corrective measures. Indeed, under the plain 

error doctrine this Court can take the necessary corrective 

action where the error has affected the substantial rights 

of the parties. The only remedy here is to grant defendant 

a new trial. 

For reasons that I am unable to fathom, there is an 

ever present tendency of this Court to relieve the trial courts 

of their affirmative duties to properly instruct the jury on 

the applicable law of the case. As far as I am concerned 

-26- 
such duty inhere in the office of a district judge and 

cannot be delegated to trial counsel for either party. 

Although the duty is equally clear in civil and criminal 

cases, life and liberty is at stake in criminal cases and 

thus there are more compelling reasons to require the District 

Court to properly instruct the jury. In this respect, the 

trial judge cannot be an idle participant, leaving it to 

counsel to provide the appropriate instructions for the jury. 

There is, of course, a strong duty of counsel to aid the 

trial court in preparing the appropriate instructions, but 

the ultimate duty cannot be delegated to counsel. 

Here it was the plain duty of the proezcutor to refrain 

from offering an instruction which injected a theory of 

criminal homicide which had not been specifically charged. 

It was further the duty not to offer an instruction on a 

theory which has no evidentiary basis. It was equally the 

duty of the trial court not to permit the prosecutor to 

receive the benefit of an additional theory of criminal 

responsibility where such theory has not been charged and 

where the trial has not been conducted on that basis. Furthermore, it is the duty of a trial court to reject an 

instruction which offers a theory upon which there is no 

evidentiary basis. 

THE FELONY-MURDER INSTRUCTION GIVEN WAS INACCURATE AND -- AN 

IMPROPER STATEMENT OF --- THE LAW 

Assuming a procedural and evidentiary foundation to 

give a felony-murder instruction, the instruction as given 

is a clear deviation from what would be a proper instruction. 

The majority has based the appropriateness of the instruction 

on its conclusion that defendant cornrr.itted the underlying 

felony of burglary. But the instruction was not worded in 

such terms that the jury could only find burglary as the 
underlying felony. Rather, the instruction was an open 

invitation to the jury to find any underlying felony, even 

though not charged. Furthermore, the jury could well have 

determined that theft was the underlying felony which triggered 

the operation of the felony-murder rule. 

As previously quoted, section 45-5-102(1) (b), MCA, 

creates a felony-murder situation if: 

"it is committed while the offender is engaged 

in or is an accomplice in the commission of, or 

an attempt to commit, or flight after comrniting 

or attempting to commit robbery, sexual intercourse without consent, arson, burglary, kidnapping, 

felonious escape, -- or any other felony which involves 

--- the use or threat of - physical - force or violence 

aaainst anv individual." (Emphasis added.) 

If it was the State's contention that the underlying 

felony was burglary, the instruction should only have stated 

that burglary was the underlying felony upon which the State 

based its felony-murder theory. But the instruction included 

also the above-emphasized language from the statute, thus 

giving an open invitation to the jury to find another underlying felony. The actual instruction (instruction 16, not 

quoted in the majority opinion), provides as follows: 

"You are instructed that a criminal homicide is 

deliberate homicide if: 

"(1) It is committed purposely or knowingly; or - 

" (2) It is committed while the offender is 

enqaqed in flight after committing or attempting 

to-commit burglary or -- any other felony which -- 

involves --- the use or threat of physical force 

violence against any individual." (Emphasis 

or - 

added 

It is obvious from this instruction that the jury was not 

confined to determining only that flight after a burglary 

triggered the application of the felony-murder rule. Rather, 

the felony-murder rule, by this instruction, is triggered 

also by flight after "any other felony which involves the 

use or threat of physical force or violence against any 

individual." The State had absolutely no right to give this 

-28- 
open-ended instruction and the trial court had a positive 

duty to reject this open-ended instruction. 

-- USE OR IMPACT OF -- THE FELONY-MURDER INSTRUCTION GIVEN - IN 

THIS -- CASE 

After the enactment of the new criminal code in this 

State creating and defining substantive crimes, a book of 

jury instructions was circulated to many of the lawyers 

in this State, and in particular, to the prosecutors. It 

is entitled, - Criminal Instructions--Montana. The book 

provides no information as to who published it, or who 

prepared the instructions and the comments in rela-kion to 

the proper use of the instructions. In any event, instruction 

59 purports to be the correct method of instructing the 

jury on the substantive crime of deliberate homicide. The 

instruction pertaining to felony-murder provides: 

"A criminal homicide is deliberate homicide if: 

"It is committed while the offender is [engaged] 

[an accomplice] in [the commission of] [an 

attempt to commit] [flight after committing or 

attempting to commit] [robbery] [sexual intercourse without consent] [arson] [burglary] 

[kidnapping] [felonious escape] or [any other 

felony which involv2s --- the use or threat of 

physical forcelence against - any individual.]" 

(Emphasis added.) 

The language, "or any other felony which involves the 

use or threat of physical force or violence against any 

individual," is bracketed. This language is not intended 

to be part of the instruction. Rather, if there is a felony 

involved which is not one of the enumerated felonies, but 

which nonetheless "involves the use or threat of physical 

force or violence against any individual", it must be so 

designated. Obviously, the drafter of this instruction 

realized that a felony-murder instruction could not be openended. But the prosecutor ignored the law in this case and 

submitted an open-ended instruction. 

-29- 
If the jury arrived at its verdict through application 

of the felony-murder rule, there is no assurance that it 

determined the underlying felony to be burglary. The jury 

could have based its decision on a conclusion that theft was 

the underlying felony. The jury convicted the defendant of 

two counts of felony theft. There was no instruction which 

told the jury that theft could not be used as a basis upon 

which to predicate the application of the felony-murder rule. 

Nor is there any assurance that the jury may have found some 

other felony not charged as the basis to apply the felonymurder rule. The instruction invited the jury to do so. 

It did not confine the jury to a consideration of those 

felonies charged as being the sole basis upon which it could 

apply the felony-murder rule. 

Assuming that the jury did find theft as the underlying 

felony to apply the felony-murder rule, a conviction based 

on this theory cannot stand. First, felony theft is not 

one of the designated felonies contained in the felony-murder 

portion of section 45-5-102(1)(b); nor does it fall within 

the meaning of "any other felony which involves the use or 

threat of physical force or violence against any individual." 

Second, assuming that felony-theft can trigger the application 

of the felony-murder rule, since the underlying felony-theft 

convictions cannot stand in this case, neither can a felonytheft conviction based upon a theory that felony-theft 

triggered application of the felony-murder rule. 

For purposes of distinguishing the crimes of theft 

and burglary in relation to the felony-murder rule, it is 

necessary to discuss the concept of burglary under the new 

criminal code. Burglary is singled out under the new code 

as being a crime the gravamen of which is the threat to 

human beings. In explaining the burglary statute, Montana 

Criminal Code, - - 1973, Annotated, at 236, the annotator speaks 

to this point: 
"Perhaps the most significant of the changes 

introducted by the new code is the retreat 

from the prior view [the prior statutory view] 

that any building or vehicle could be the object 

of burglary to the view that to constitute burglary the acts must be directed against an 

occupied structure. The change reflects a 

return -- to the common ----~ viewhthersvamen 

of - burglary was -- the threat to persons resulting 

-- from the wrongful intrusion. While the new code 

is not as technically restrictive it does require 

that the structure intruded into being either 

actually occupied or 'suited for human occupancy 

or night lodging of persons or for carrying on 

business. (See S94-2-lOl(35) [now S45-2-101(34) , MCA]. In effect this limits burglary to those 

situations in which - the intrusion -- is most 

alarming -- andthe threat to human -- life the 

meatest." (Emphasis added.) 2 - - 

Because a burglary, under certain circumstances, can 

be threatening to human beings, it is specifically designated 

in the felony-murder statute as being a felony which can 

trigger application of the felony-murder rule. Theft, of 

course, is not. The gravamen of theft is, an offense against 

property. See section 45-6-301, MCA, et seq. Nowhere in 

the annotator's note with reference to thef (Montana Criminal 

Code, 1973, Annotated, at 243-245) ,is there any indication 

that theft, by its nature, involves a threat of physical 

force or violence against an individual. Indeed, that is 

the reason burglary is distinguished from theft. 

It is true that section 45-5-102(1) (b) specifically 

permits reliance on an underlying felony other than those 

which are specified within the statute itself. The requirement is that the felony relied on be "any other felony which 

involves the use or threat of physical force or violence 

against any individual." There can be no doubt however, that 

the prosecutor and the jury are not permitted to speculate 

as to choices of an underlying felony which may trigger the 

felony-murder rule by falling within the statutory definition. 

Felony theft is not a crime in which "the use of . . . 

physical force or violence against any individual" inheres 

in the crime itself. 
The annotator's note to the theft statute, sets forth 

the general scope of the theft section of the criminal 

code : 

"This section on theft encompasses the traditional crimes of larceny, larceny by trick, 

false pretenses, embezzlement, receiving stolen 

property as well as numerous associated offenses. 

The Montana Criminal Law Commission intended that 

this section cover every conceivable form of 

theft and in so doing, eliminate the common law 

distinctions which encumbered virtually every one 

of the theft related offenses." (Annotated code, 

supra, at 243.) 

It is abundantly clear that felony theft is not a crime 

which, under the felony-murder statute, "involves the use 

or threat of physical force or violence against any individual." 

The majority has based its opinion on an assumption that the 

jury found the underlying felony to be burglary. But there 

is no basis in the record from which we can make that determination. The jury was not instructed that burglary is a 

crime which involves "the use or threat of physical force or 

violence against any individual." From the jury's standpoint therefore, there was no reason to.distinguish theft 

from burglary in determining which underlying felony to 

invoke as triggering application of the felony-murder rule. 

As far as the jury is concerned, the instruction permitted 

it to find theft as the underlying felony. Furthermore, 

the fact that defendant was convicted on both counts of 

felony theft is an indication that the jury may well have 

used felony theft as the underlying felony by which application 

of the felony-murder rule was triggered. 

One cannot tell which underlying felony the jury 

invoked if it chose to apply the felony-murder rule in 

reaching its verdict. Obviously, if the jury did use felony 

theft as the underlying felony, the homicide conviction 

cannot stand. Just as clearly, since no one can tell whether 

the jury did or did not use felony theft as the underlying 
felony, this Court should not permit the homicide convictions to stand. 

THE FELONY-MURDER --- RULE HAS NO EVIDENTIARY FOUNDATION - IN 

THIS -- CASE 

I next proceed to the majority's conclusion that there 

was an evidentiary basis for the jury to base its verdict 

on the felony-murder rule. In essence, the majority 

concludes that the defendant was fleeing from a burglary, 

that there was a causal connection between the burglary 

and the deaths of Kenneth and Marion McLean, and therefore 

that the felony-murder applied. I have previously discussed 

my position that a burglary was not committed because the 

tack shed was not an "occupied structure" within the meaning 

of the statute. I have discussed my position that the openended felony-murder instruction given in this case could 

well have provided a basis for the jury to find an underlying felony other than the crime of burglary. This openended instruction, is, of course, error. But assuming the 

commission of a burglary to be within the statutory meaning, 

and assuming a proper felony-murder instruction, the facts 

of this case do not give rise to the application of the 

felony-murder rule. The McLeans were not within their 

rights to take the law into their own hands by arming themselves and later setting the scene for the armed confrontation 

and shootout. 

Defendant and his accomplices came upon the McLean 

property at approximately 4:00 a.m. Sunday morning, September 

5, 1977. They intended to take three horses and "get away 

from all the hassles" and "live off the land." These horses 

belonged to Kenneth Hoeffner but they were in the lawful 

possession of the McLeans. Defendant Sunday and his accomplice 

Wilson then entered the tack shed and took three bridles, 

-33- 
three saddles, and three pairs of chaps. As to the 

use of the tack shed, an employee testified that other 

employees or guests went into the tack shed from time to 

time to obtain or replace the riding equipment. There 

is no testimony that employees or guests went into the 

tack shed between nightfall and sunrise, the time when 

the entry was made here. 

As a result of his entry into the tack shed, defendant 

was charged with burglary. The prosecutor alleged that 

the tack shed was an "occupied structure." In addition 

to the burglary charge, count I11 alleged theft in that 

defendant and his accomplices stole three saddles, three 

bridles and three pairs of chaps from the tack shed. This 

same count also alleged that defendant and his accomplices 

stole three horses. 

After saddling and bridling the horses, defendant and 

his accomplices packed up what supplies and equipment they 

had, and rode away. Each of the defendants had a firearm, 

all apparently stolen by them while they were in the State 

of Nebraska. Defendant Sunday had a 30-30 rifle; accomplice 

Wilson had a 22.250 rifle; and accomplice Mitchell had a 

single shot .410 shotgun. 

The trial record does not disclose when the McLeans 

discovered the horses and riding equipment missing. Nor, 

of course, is there any evidence that they knew the defendant 

and his accomplices to be armed. The McLeans did not, 

however, report the thefts to local law enforcement officials. 

Rather, they armed themselves and struck out after the horse 

thieves. 

We do not know when the McLeans began their search 

for the stolen horses. The armed confrontation did not take 

-34- 
place until at least a day and a half later, in the late 

afternoon of September 6, 1977. By this time, defendant 

and his accomplices had traveled only a few miles from the 

McLean property. It was then, in the words of the majority 

opinion, that defendant and his accomplices "saw a pickup 

truck rapidly approaching. They tried to escape into the 

trees but were cut off by the pickup. The pickup was driven 

by Kenneth McLean. His wife was also in the pickup. Kenneth 

McLean stopped the pickup about sixty-five feet from Sunday, 

Wilson and the Mitchells." Thus the stage was set for the 

armed confrontation and shootout. 

McLean leaped out of the pickup truck carrying a .308 

caliber bolt action rifle, and Mrs. McLean came out armed 

with a .38 caliber pistol. Defendant Sunday immediately dismounted from his horse. He was armed with a .30-30 rifle. 

Accomplice Wilson was armed with a .22-250 caliber bolt 

action rifle, and accomplice Mitchell was armed with a .410 

gauge single shot shotgun. Only a few words were exchanged 

before the gunbattle started. 

As Kenneth McLean approached the defendant and his 

accomplices, he yelled, "What the God Damn hell is going 

on? What kind of prank is this? Give us our horses, or 

we will shoot you." Marion McLean added, "Your God Damn 

right we will." Almost instantaneously with his words, 

Kenneth McLean operated the bolt mechanism of his rifle 

and injected a cartridge. This evidence is not disputed. 

But a dispute in the testimony arises between what 

defendant contends Kenneth McLean did and what the accomplices 

say happened. Defendant Sunday testified that Kenneth McLean 

pointed his rifle directly at him and that he was "scared 

as hell." Accomplices Mitchell and Wilson, on the other hand, 

testified that McLean's rifle was pointed at the ground. In 

any event, the shooting immediately erupted. 

-35- 
Defendant fired first and hit Kenneth McLean in 

the leg. The shooting as described in the majority opinion, 

continued until both Kenneth McLean and Marion McLean lay 

dead. Defendant and his accomplices then stole some personal 

belongings from the McLeans and fled to Oregon in the McLean 

pickup truck where they were arrested. 

It is clear that the State had the requisite probable 

cause to charge defendant with deliberate homicide ("purposely or knowingly" causing the deaths of Kenneth and 

Marion McLean). It is equally as clear, however, that the 

State had no basis to charge defendant with deliberate homicide by application of the felony-murder rule. Indeed, 

there is not the slightest indication in the record that 

the defendant was ever put on notice that he must dofend 

against a felony-murder theory. 

Defendant gave notice to the State that he would rely 

on a claim of self-defense as a justification for his actions. 

The State at no time opposed this claimed defense or contended that defendant had no right to claim self-defense. 

The record is barren of any indication that the State intended 

to rely on the felony-murder rule as the theory or one of 

its theories of prosecution. If the State did intend to use 

the felony-murder rule, it was a well-guarded secret until 

the end of the trial when it so cleverly supplied the felonymurder theory to the jury in the form of an instruction. 

The majority makes no attempt to analyze the factual 

context giving rise to the declaration that the felonymurder was properly applied. Rather, the clear implication 

is that any conduct of the defendant and his accomplices 

after the commission of the burglary, can be traced back 

and become causally related to the commission of the burglary. 

It is not sufficient to glibly declare that defendant committed 

-36- 
burglary and that the McLeans deaths are causally related 

to the commission of the burglary. The unusual~circumstances 

existing in this case require that the relative rights of 

the parties be considered, for these rights are inextricably 

connected to a determination of whether the felony-murder 

rule was properly applied here. 

To apply the felony-murder rule to this case is to 

implicitly hold that defendant Sunday, as a matter of law, 

was precluded from asserting that he was acting in selfdefense. If a perpetrator of a proscribed felony contained 

within the felony-murder statute is to be held criminally 

responsible for conduct resulting in the deaths of human 

beings which is causally connected to the commission of the 

underlying felony, it makes little sense to permit him to 

rely on a claim of self-defense as a justification of his 

actions leading to the deaths involved. Within the context 

of the facts of this case, the McLeans' conduct was sufficient 

to break the causal link between the commission of the 

burglary and their tragic deaths. There is no doubt here 

that defendant Sunday had a right to present a claim of 

self-defense to the jury. This being so, I fail to see 

how the State could be entitled to rely on the felony-murder 

rule. 

The McLeans failed to report the horse thefts to a 

law enforcement agency. Rather, they appointed themselves 

as a two member vigilante posse. Armed for a confrontation 

with the horse thieves, they went after them in their pickup 

truck. The record is barren of any evidence that the McLeans 

had the intention to bring the horse thieves to justice by 

using any kind of citizen arrest powers. Rather, they were 

concerned only with the return of the horses and were 

willing to use armed force to accomplish that result. With 

both sides being armed, it appears that a classic western- 

-37- 
style gunbattle was inevitable. It was occasioned, 

however, by the precipitious and unwarranted acts of 

the McLeans in taking the law into their own hands and 

using force in that process. 

What is the extent to which the McLeans could go in 

using self-help efforts to secure the return of the horses? 

And assuming that the McLeans used or threatened to use 

armed force to secure the return of their horses, what is 

the extent to which Sunday could resist their armed threats 

or overt acts which may have led him to believe that his 

life was in imminent danger? Did the McLeans have the right 

to arm themselves and by the use of armed force demand the 

return of their horses? Did the McLeans have the right to 

take such action as would or could lead the defendant or 

his accomplices to believe their lives to be in imminent 

danger? 

By the same token, the question arises as to the extent 

to which defendant and his accomplices could defend themselves against the use of force or threats of use of force 

by the McLeans. Assuming an overt threatening act by Kenneth 

was Sunday, 

McLean with his rifle directed at defendant Sundaydbecause 

he had stolen the McLeans' horses and riding accessories, 

required to submit himself to being the victim of a possible 

homicide? If Sunday believed his l i f e t o be in imminent 

danger by Kenneth McLean's threat to shoot accompanied by 

an overt act, did he have a right to defend himself by 

first shooting McLean? Assuming an overt act by McLean with 

his rifle directed at defendant Sunday, did Sunday have the 

right to defend himself by the use of countervailing armed 

force? Only if it can be held as a matter of law that 

Sunday had no right to defend himself from McLean's threats 

or overt acts with his rifle, can an application of the 

felony-murder rule be justified. Otherwise, defendant Sunday 

was entitled to present to the jury his claim of self defense. 

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The effort of the McLeans to recapture their horses 

by force of arms was to trigger an armed and deadly 

response from the defendant and his accomplices. There is 

no doubt that the McLeans threatened to kill the defendant 

and his accomplices. Defendant, moreover, testified that 

he fired only because he believed his own life to be in 

immediate danger when McLean pointed the loaded rifle at 

him. While defendant's accomplices, who had turned state's 

evidence, testified that McLean had pointed his rifle at 

the ground rather than at the defendant, there is no question 

that there was a factual picture depicted sufficient to 

raise a claim of self-defense. If it be conceded that defendant 

had a right to present his self-defense claim to the jury, 

it follows that the State was not entitled to encumber and 

muddy this claim of self-defense by proceeding on a felonymurder theory, The underlying purpose of the felony-murder 

rule is defeated where a defendant is permitted to rely on 

a claim of self-defense as justification for his actions. 

Once a causal connection is established between the 

commission or attempt to commit the underlying felony, 

criminal liability attaches without regard to the defendant's 

intent to kill. The theory is that certain felonies are so 

inherently dangerous to human life that a defendant ought 

not to be able to escape criminal responsibility by proving 

that in the commission of, attempt to commit, or flight from 

the commission or attempt to commit the underlying felony, 

he did not intend to kill. The additional triggering factor 

of flight has been added by the legislature of this State, 

and is not within the traditional definition or concept of 

consistent 

the felony-murder rule. If the felony-murder rule is to be / 
and to fulfill its underlying purpose, it would also be 

no defense for the perpetrator to contend that he killed 

in self-defense. To permit such a defense would destroy 

the underlying purpose of the felony-murder rule. 

Furthermore, a claim of self-defense is patently 

inconsistent with a felony-murder prosecution. The felonymurder rule does not permit one to escape criminal responsibility by a contention that he did not intend to kill. 

Although a claim of self-defense does not necessarily result 

in an admission that the perpetrator actually intended to 

kill, it does mean that the perpetrator admits the use of 

deadly force but contends that he was justified on grounds 

of self-defense. If a causal connection is established 

between the commission of the underlying felony and the 

death of a human being, it hardly makes sense to permit 

the perpetrator to assert that the act of killing was in 

self-defense. 

There are no statutes in this State, and there are no 

cases decided by this Court which permit of the self-help 

activities engaged in by the McLeans in seeking the return 

of their horses. They had no right to use armed force to 

accomplish this result. 

The only statute even remotely applicable is section 

46-6-502, MCA, which sets forther the circumstances under 

which a private citizen can make an arrest. The statute 

provides in substance that a private citizen can arrest if 

an offense is committed or attempted in his presence, or if 

a felony has in fact been committed and he has reasonable 

grounds to believe that the person arrested committed the 

offense. The Montana Criminal Law Commission Comment to 

this statute, sets forth a clear intent to restrict the 

involvement of private citizens in making unilateral decisions 

to arrest: 

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"The concensus of the commission was that 

modern law enforcement requires that most 

arrests be made by police officers and 

the right of private persons to arrest 

should be strictly limited." 

Even assuming the right of the McLeans to arrest 

under the authority of this statute, the record is barren 

of any evidence that they were attempting to effectuate 

an arrest. Rather, they were interested only in forcing 

the return of their property at gunpoint. They obviously 

were willing to engage in a gunfight to accomplish that end. 

When the McLeans discovered the thefts, it was clearly 

their duty to call in law enforcement and let them handle 

the situation. Their precipitious and foolish action in 

taking the law into their own hands by force of arms 

provoked the armed confrontation and shootout which resulted 

in their tragic deaths. The McLeans actions in arming 

themselves, tracking down the thieves, and subsequent threats 

to kill accompanied by the obvious apparent ability to carry 

out their threats, operated to break any chain of causation 

between the commission of an underlying felony and the 

deaths of the McLeans. This was an efficient intervening 

cause if ever there was one. There being no causal relationship, the felony-murder rule has no application. 

Under the facts as testified to by the accomplices 

who turned State's evidence, and the testimony of the defendant

defendant clearly had a right to present his claim of selfdefense to the jury. Although he was a thief, he had no 
duty to become a homicide victim by letting the McLeans 

shoot him first. Whether he was in imminent danger and 

acted reasonably under the circumstances in shooting first, 

is a jury question. But if the defendant reasonably 

believed his life to be in imminent danger because of the 

threatening use of firearms by the McLeans, he had a right 

to claim that he was acting in self-defense. The conduct 

of the McLeans in precipitating the armed confrontation 

intervened to cut off the application of the felony-murder 

rule. To hold otherwise is to hold in effect that defendant 

had no right to present his claim of self-defense to the 

the 

jury and,/ majority did not hold that defendant had no right 

to present a claim of self-defense to the jury. 

The felony-murder instruction and possible jury verdict 

based on that instruction and theory, muddied the waters in 

relation to defendant's claim of self-defense. He was 

entitled to present his claim of self-defense free of any 

contention of the State that he was guilty of deliberate 

homicide by virtue of the felony-murder rule. For thirj 

reason, he is entitled to a new trial on the homicide charges. 

I would hold in relation to count I11 of the theft 

charges in the same manner as the majority held in count V 

of the theft charges. I would reverse the burglary conviction 

for the reason that the tack shed was not an "occupied structure" 

within the meaning of the statute. For all the reasons stated 

in relation to the felony-murder instruction, I would grant 

a new trial to the defendant on the homicide charges with 

instructions that the felo~y-murder rule cannot be applied 

to this case.