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, HonorableW. 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: 

# MAR27

# 1980Mr. Justice John C. Sheehy delivered the Opinion of the Court.

Andrew C. Sunday appeals from convictions entered in the DistrictCourt, FirstJudicial District, Lewis and Clark County, on charges of deliberatehomicide, burglary and theft, inviolation of sections 45-5-102, 45-6-204 and 45-6-301, MCA, respectively. Sunday came toMontana inearly 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 "liveoff the land", they packed up supplies and walked into thewilderness along the continental divide. It soon became apparent they could not go faron foot. So, inthe earlymorning hours of September 5, 1977, Sunday and Wilson took threehorses from the Evergreen resort owned and operated by Kenneth and Marion McLean. Additionally, they broke into a tack shed which was used for storinghorse tack used inthe McLeans' horse-renting business. They took three saddles and three bridles. The tack shed was eight feetby twenty feet and wasmade outof rough lumber. It contained

no living facilities. Sunday, Wilson and theMitchells 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 toescape into the trees but were cutoff by thepickup. The pickup was driven by Kenneth McLean. Hiswife was also inthe pickup. Kenneth McLean stopped thepickup about sixty-five feet from Sunday, ~ilson and theMitchells.Kenneth McLean got out of the pickup carrying a .308 caliberbolt action revolver. Hiswife got out carrying a .38 caliber revolver. Sunday dismounted from hishorse holding a 30.30 caliber rifle. Wilson testified Sunday asked Wilson ifhe wanted theprivilege of shooting theMcLeans. Wilson had a 22.250 caliberbolt action rifle, and Mitchell had a -410 gauge single shot shotgun. As Kenneth McLean approached, he saidImWhat the God damn hell isgoing on? What kind of prank is this? Give us our horses, orwe willshoot you." Mrs. McLean added, "Your God damn rightwe will." Immediately afterhis threat, McLean operated theboltmechanism tohis gun and inserted a cartridge. According toSunday, Kenneth McLean pointed the gun directly atSunday. Wilson and Mitchell testified the gun was pointed atthe ground. A shooting spree followed. Sunday shot Kenneth McLean inthe leg. Then, Marion McLean began shooting atSunday. Sunday returned the firehittingMarion McLean inher abdomen and thoracic area. Sunday next approached Marion McLean. Noticing Kenneth McLean rise from the ground, Sunday turned and fired two fatal shots atKenneth McLean. Meanwhile, Wilson who was approaching Kenneth McLean noticed Marion McLean rise. Wilson shotMarion McLean inthe head killingher instantly. Sunday then took $25 from Kenneth McLean's wallet. Wilson took approximately $100 from Marion McLean. Sunday, ~ilson and Mitchell picked up theMcLeans' weapons and leftthe area intheMcLeans' pickup. They were eventually arrested in Oregon. On September 26, 1977, Sunday was charged inan amended information with two counts of deliberatehomicide, two counts of felony theft and one count of burglary. -3-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. Themotion 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 individualvoir 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 itwould guide Mrs. Garrett. Sunday passed the panel without challengingMrs. 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 itwas 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 itwas error to deny his motions for change of venue and individualvoir dire. The contention iswithout 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. Statev. 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 accountsmust 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), 150Mont. 40, 49, 430 P.2d 632, 637. Sunday's motion for change of venue was not adequately supported. Themotion 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 affidavitwas unsupported by any evidence of the number or inflammatorynature 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 orwhether 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. ISSUENO. --2: Failure to Prove the Crimes Charged. Sundaymaintains 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 (19761,171Mont. 25, 28, 554 P.2d 743, 744. The intent of the burglary statutewas 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 placeswhere the chance of human confrontationwas most likely, in those places suitable "forhuman 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 onbusiness and was so used by the McLeans. The McLeans operated a horse rental business. Horse tack was

an integralpart 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. CountV of the amended information charged Sunday with the felony theft of (1)a 1966 Internationalpickup 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 countV 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 -6-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 Sundaywaived any objection to the State's failure to prove value by not raising the issue prior to the entry of the judgmentof conviction. The State's assertion iswithout merit, Under the factshere, 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 knownwithin 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 otherwiseproved. It is also noteworthy that the jury was not properly instructed as to value. None of the instructions concerning felony theftmentioned 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), Mont

# . , 574 P.2d 266, 269, 35 St.Rep. 69, 73. Upon appeal, this Courtwill 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 showsWilson's actions were the sole intervening cause of Marion McLean's death. Therefore, according to Sunday, itwas error to submit count I1 of the amended information, the deliberate homicide of Marion McLean, to the jury. We do not agree. Sunday shotMarion McLean in her abdomen and thoracic

area. Shortly thereafter,Wilson shotMarion McLean in the head killing her instantly. A pathologist testified the wound inflicted by Sundaywould 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 situationwould be no different if Marion McLean had been struck by a bolt of lightning rather than shot in the head by Wilson. ISSUENO. 3: InstructionalError. -- Court's instructionno. 16 reads as follows: "Youare 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 felonywhich involves the use or threat of physical force or violence against any individual." Sunday contends itwas 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 feloniousact, therewas no showing of a connectionbetween 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 connectionbetween Sunday's felonious act and the McLeans' death was decided by the jury. Ashas stated in Commonwealthv. Almeida (Pa. 1949), 68A.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 specifywhich theory of deliberate homicide the State

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

no. 16 on the groundsnow asserted upon appeal. This Court will not reverse the District Court's rulings on the instructions

on grounds not raised at the time the instructionwas proposed. State v. Campbell (1965),146 Mont. 251, 263, 405 P.2d 978,

Sunday next contends the jurywas 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 seriousbodily harm only if he reasonably believes that such force is necessary to prevent imminentdeath or seriousbodily 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 defendantmay stand his ground even if he reasonably believes he is in imminentdanger of greatbodily harm. See State v. Porter (1964), 143 Mont. 528, 391 P.2d 704. -10-Sunday cannot complain if these conceptswere conveyed to the jury by the District Court in the body of its instructions. If so, Sundaywas 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 jurywas instructed that self-defensewas 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 considerwhether 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 instructionsno. 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 itwas error to give this instruction. We do not agree. Sunday contends the instruction ismisleading 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 isbarred 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 statementof the law. The assertion is without merit. InMontana, 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, 36St.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-defenseby showing the totality of the circumstances surrounding the homicides including evidence which negates the application of self-defense. Finally, Sunday contends court's instructionno. 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 factswhich 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 instructionno. 22 reads: "Youare 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." Sundaymaintains this instruction and court's instruction

no. 23, "You are instructed that the lawpresumes that a person intends the ordinary consequencesof 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 instructionno. 22 is a permissive inference. It allows, but does not require, the jury to infer ultimate facts frombasic ,factsadduced 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 rationalway 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 factualdetermination. County Court of Ulster Cty. v. Allen, supra. Sunday has not carried his burden upon appeal. Similarly, itwas notprejudicial error to give court's instructionno. 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 sufficientproof 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 conductor 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 shownbeyond 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, itwas 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 issuebecame whether Sunday's purposeful actwas a justified use of force, self-defense. Section 45- 3-102, MCA. Court's instructionno. 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 instructiondid not relate to a material issue in the cause hnds0 atmost,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 Courtwhere 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 instructionno. 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-murderrule. The felony-murder statute requiresproof 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, SubstantiveCriminal - 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 crimewas established. Intentwas no longer an issue under the felony-murder statute

once itwas shownby the evidence that Sunday committed a burglary and Sunday killed the McLeans while in flight after the commission of the burglary. Itwas the commissionof 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 instructionno. 23 was superfluousbecause the jury -15-had no issue of intent to decide. Intentwas not an element of the deliberate homicides, and intentwas not an issuebefore thejury. The instructionplayed no part inthe jury's deliberations astothe deliberate homicides. ISSUE NO. 4: Sentences. -- Upon his convictions, Sunday was sentenced to serve 100years for each count of deliberate homicide, 10years for each theft count and 20 years for burglary. The terms

are tobe served consecutively, 240 years total, and Sunday is ineligible forparole orparticipation inthe work furlough program. Wilsonpleded guilty totwo counts of deliberatehomicide and totwo counts of theft. He received a sentence of 100 years for each deliberate homicide count and 10 years on each theft count. The sentences aretobe served concurrently, and while the county attorneywillnot recommend parole, he willnot fightWilson's parole. Sunday contends the DistrictCourt did not have the authority toimpose a 20 year sentence forburglary. As for the other sentences, Sunday assertsthey areunconscionable and unjustifiedwhen compared tothe sentences received by Wilson who was equally guilty. We agree the District Court did not have the authority to sentence Sunday to 20 years forburglary. By statute, the maximum possible sentence for burglary is 10years inthe statepenitentiary. Section 45-6-204, MCA. Accordingly, under section 46-20-703, MCA, we reduce Sunday's sentence forburglary to 10 years inthe state penitentiary with the other provisions of the sentence toremain unchanged. Likewise, alsounder section 46-20-703, MCA, we reverse the 10year sentence Sunday received upon his conviction for felony theft as charged incount V of the amended information. The State failed toprove an essential element of felony theft incount V that the property taken exceeded $150 invalue. -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 DistrictCourt determined that the restrictions

were necessary for the protection of society because of Sunday's extensive criminal record,his uncaring attitude and the malevolentway inwhich he killed the McLeans. This Courtwill not second guess the trial judge,who after observing the demeanor and attitude of the defendant,

uses his discretion in fixingpunishment. Matter of Jones

(1978) , Mont. 

## , 578 P.2d 1150, 1155, 35 St.Rep.

Accordingly, Sunday's conviction for felony theft as charged in countV of the amended information and the sentence imposed thereon are reversed. The countV 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 OFMONTANA, Plaintiff and respondent,

VS

# . ANDREW C. SUNDAY, Defendant and appellant.

DISSENT OFMR. JUSTICE DANIEL J. SHEA: PPrTCp.~\



# - ,- j' 

### -
, I.'

, I., ,L,

### .. Dated: May 5, 1980 p-6 4: j 7 ci- . I . _. 3 &&:I-., --,. , '.. *,.

'EL',, - -.- , *r, ." - .. -* .-

. ?;Mr. Justice Daniel J. Shea dissenting:

For a number of reasons, the felony-murder instruction given inthis casewas 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 inrelation tocount V of the theft charges, thereby reversing and dismissing each theft charge for failure toprove 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 theMcLean ranch. This charge included theft of three rifles, two shotguns, and threehorses. Count V charged theftof 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 incash. As themajority has stated, therewas no direct evidence presented on the value of the itemsand the trialcourt totally failedtoinstruct the jury thatvalue is an element of the offense. In this appeal, defendant attacked only count V, contending that value was not proved. In relation tothis contention, the majority held thatvalue is an essential element of the offense of theft and that this Court willnot take judicial notice of value because it is an essential element tobe 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 failtounderstand, however, why, on the samebasis, themajority did not alsoorder reversal and -18-dismissal of the theft conviction on count 111. The same law applies toeach count, and the State failed toprove value and thejury wasnot instructed the value was an essentialelement tobe proved with relation toeach count of theft. How, under these circumstances, can a reversal and dismissal be ordered on count V and an affirmance be derdwith relation tocount III? Although the defendant did not raise any issuewith relation tocount 111, thisCourt, under the plain error doctrine, can reach the same result with relation tocount I11 as it has reached with relation tocount V. Based on themajority rationale that value is an essential element of the crime which must be proved beyond a reasonable doubt, and thatwewillnot take judicial notice of the value of the itemsinvolved inorder touphold a conviction, I would alsoreverse 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 tothe facts of this case. As a starter, the tack shedwas not an occupied structurewithin themeaning of theburglary 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 tobe an occupied structure. Absent thisholding, 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 stonehere. By declaring the tack shed tobe 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 iscreated or expanded tofitthe 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 thepurpose tocommit 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 isthat the structure involved must have been an "occupied structure." (Instructions 12and 13.) By instruction 13, the tr2al court told the jury that the firstof two elements which must be proved beyond a reasonable doubt is "that the defendant knowingly and unlawfully entered orremained unlawfully within an occupied structure." "Occupied structure"was alsodefined for the jury (instruction 14, the statutory definition contained in section 45-2-lOl(34)): "You areinstructed that "occupied structure" means any building, vehicle, orother place suited for human occupancy ornight lodging orpersons or for carrying on business whether ornot a person is actuallypresent. Each unit of a building consisting of two ormore units separately secured oroccupied 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 feetby twenty feet and ismade out of rough lumber. Inside the shed there are nails and pegs forhanging horse tack, but there areno living facilities. The tack shed was used exclusively for storinghorse tack. Entry tothe tack shed

was made inthe very earlymorning 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 offensemay 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 buildingswhere people can live orwork 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." (Emphasisadded.) 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 intowhich a human may venture, regardless of whether or not it is then occupied, is,within themeaning 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 structurewithin the meaning of the burglary statute.The prosecutor /vigorously resisted dismissal of the burglary charge and

the defense motion was denied. Thus the casewent to trial with defendant facing a burglary charge. Neither he nor defense counsel had thewildest dream,however, that as a result of this burglary charge, the prosecutionwould inject another theory of homicide into the case by-offeringa felonymurder instruction at the end of the case. Because the tack shedwas 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-OFTHIS 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. Defendantwas 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 I1with "purposelyor knowingly" killingMarion McLean. The deliberate homicide statute (section45-5-102,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 orphysical force or violence against any individual." (Emphasis added.)By the clear wording of the statute,deliberate homicide can be committed in eit3x.rof two ways. Under subsection (l)(a),by "purposelyor knowingly" killing the victim. Under subsection (l)(b),by commiting an underlying felonywhich triggers applicationof the felonymurder rule. The State,however, did not charge the defendant under both theories. Count I related to the killing of Kenneth 

### L. McLean, and the chargingpart 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

# . . ." (Emphasisadded.) 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 factswhich would permit invocation of the felony-murder rule. Nor is there any indicationby the charges that the prosecutor would rely on the felony-murderrule as an alternative theory of his case. Defendantpleaded 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 isprecisely 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 theright tocharge thedefendant alternatively and togo to thejury on alternative charges ortheories. Section 46- 11-404 (1) 

### ,MCA, provides inpart: "An

# . . . information 

# . . . may charge 

# . .

# . different statements of the same offense



# .. . under separate counts.. 

# . . The prosecution is not required toelectbetween the different offenses or counts set forth inthe 

# . . . information It 

# . .

# . It is clear, therefore, that although therewould be but one offense inrelation tothe death of each person,

a jury could have returned a verdict finding defendant guilty under the "purposely orknowingly" theory orunder the felonymurder theory, or under both theories. But the crucial issuehere is that the Statehad no right topresent both theories tothejury inthe absence of charges initially informing the defendant that he was charged under both theories. If the Statedesired toamend the information before trialand include an alternativecount of felony-murder, it had the right todo so. In fact, section 46-11-403, MCA, entitledAmending the Charge, sets forth the procedure for amending an information. But no effort

was ever made toamend the charges before the trial, or forthatmatter, at any time. With the statutory background of section 46-11-404(1) and 46-11-403, MCA, inmind, I fail to see how a possible felony-murder conviction can be based upon a theory not charged inthe information. There is no indication inthe record of why defense counsel attrialfailed tocatch the new theory sprung on the defendant by instruction 16, setting forth the felonymurder rule inaddition tothe charge that defendant "purposely

or knowingly" killed theMcLeans. Trialcounsel did not represent defendant on the appeal of this case (thereasonbeing that sometimeafter the conviction in this case, he went towork for the county presecutorwho 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 instructionwas that itwas repetitious of other instructions already defining deliberate homicide and the elements to be proved. It was indeed repetitious; but itwent one stepbeyond 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 injectionof a new issue and theory into the trial upon the settlementof instructions, in total violation of the procedural rules governing the charging of an offense. Why should a defendantbe punished because the prosecutor has violated the basic procedural statutes governing his conduct

as a prosecutor? Themajority's rationale forpermitting 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 theprosecution to elect its theory to present to the jury, are the announced grounds. As to waiver, themajority's reliance on Statev. 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 forproceeding 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 specifywhich 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 specifywhich 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 defendantwas charged alternativelywith felony-murder, there was no basis in the law upon which a defendant could successfullymove 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 suchmanifest errors and take the necessary correctivemeasures. 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 inthe office of a districtjudge and cannot be delegated totrial counsel for eitherparty. Although the duty is equally clear in civiland criminal cases, lifeand liberty isat stake incriminal cases and thus there aremore compelling reasons torequire the District Court toproperly instruct thejury. Inthisrespect, the trialjudge cannot be an idleparticipant, leaving it to counsel toprovide the appropriate instructions for the jury. There is, of course, a strong duty of counsel toaid the trial court inpreparing the appropriate instructions, but the ultimate duty cannot be delegated to counsel. Here it was the plain duty of the proezcutor torefrain from offering an instruction which injected a theory of criminal homicide which had not been specifically charged. It was further the duty not tooffer an instructionon a theory which has no evidentiarybasis. Itwas equally the duty of the trialcourt not topermit the prosecutor to receive thebenefit of an additional theory of criminal responsibilitywhere such theory has not been charged and where the trialhas not been conducted on that basis. Furthermore, it is the duty of a trial court toreject an instruction which offers a theory upon which there is no evidentiarybasis. 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 asgiven 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.ittedthe underlying felony of burglary. But the instructionwas not worded in such terms that thejury could only find burglary as theunderlying felony. Rather, the instructionwas an open invitation to the jury to find any underlying felony, even though not charged. Furthermore, the jury could well have determined that theftwas the underlying felonywhich 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 committedwhile the offender is engaged in or is an accomplice in the commissionof, 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." (Emphasisadded.) If it was the State's contention that the underlying felonywas 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 (instruction16,not quoted in the majority opinion), provides as follows: "Youare instructed that a criminal homicide is deliberate homicide if: "(1) It is committed purposely or knowingly;or - 

### " (2) It is committedwhile the offender is enqaqed in flight after committing or attempting to-commitburglary or -- any other felonywhich -- involves the use or threat of physical force --- violence against any individual." (Emphasisor - 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 felonywhich involves the

use or threat of physical force or violence against any individual." The Statehad absolutely no right to give this -28-open-ended instruction and the trial courthad a positive duty toreject this open-ended instruction. USE OR IMPACT OF THE FELONY-MURDER INSTRUCTION GIVEN IN 

### -- -- 

### - THIS CASE



### -- After the enactment of the new criminal code inthis Statecreating and defining substantive crimes, a book of jury instructionswas circulated tomany of the lawyers inthis State, and inparticular, tothe prosecutors. It is entitled, Criminal - Instructions--Montana. The book provides no information astowho published it, orwho prepared the instructions and the comments inrela-kion to theproper use of the instructions. In any event, instruction 59 purports tobe the correctmethod of instructingthe jury on the substantive crimeof deliberatehomicide. The instructionpertaining tofelony-murder provides: "A criminal homicide is deliberatehomicide if: "Itis committed while the offender is [engaged] [an accomplice] in [thecommission of] [an attempt to commit] [flightaftercommitting or attempting tocommit] [robbery] [sexual intercoursewithout consent] [arson] [burglary] [kidnapping] [felonious escape] or 

### [anyother felony which involv2s 

### --- the use orthreatof physical forcelenceagainst 

### - any individual.]" (Emphasis added.) The language, "or any other felonywhich involves the

use orthreat of physical force orviolence against any individual," isbracketed. This language is not intended tobe part of the instruction. Rather, if there is a felony involved which is not one of the enumerated felonies, but which nonetheless "involves theuse or threat of physical force orviolence against any individual", it must be so designated. Obviously, the drafterof this instruction realized that a felony-murder instruction could not be openended. But theprosecutor ignored the law inthiscase 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 instructionwhich 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. Itdid 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 fallwithin the meaning of "any other felonywhich 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 themost significant of the changes introducted by the new code is the retreat from theprior view [theprior statutoryview] that any building orvehicle could be the object of burglary tothe view that toconstituteburglary the actsmust be directed against an occupied structure. The change reflects a return 

### -- tothe common viewhthersvamen 

### ----~ of 

### -burglary was -- the threat topersons resulting from thewrongful intrusion. While the new code 

### -- is not as technically restrictive it does require that the structureintruded intobeing 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 limitsburglary tothose situations inwhich 

### - the intrusion -- is

# most alarming 

### -- andthethreat tohuman 

### -- lifethe meatest." (Emphasis added.)

2 - 

## - Because a burglary, under certain circumstances, can be threatening tohuman beings, it is specifically designated inthe felony-murder statute asbeing 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, etseq. Nowhere in the annotator's note with reference tothef (Montana Criminal Code, 1973, Annotated, at 243-245) ,isthere any indication that theft, by its nature, involves a threat of physical force orviolence 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 arespecified within the statuteitself. The requirement is that the felony relied on be "any other felony which involves the use or threat of physical force orviolence against any individual." There can be no doubt however, that theprosecutor and the jury arenot permitted to speculate

as tochoices of an underlying felony which may trigger the felony-murder ruleby fallingwithin the statutory definition. Felony theft is not a crime inwhich "the use of 

# .

# . . physical force orviolence against any individual" inheres inthe 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, falsepretenses, embezzlement, receiving stolen property as well asnumerous associated offenses. The Montana Criminal Law Commission intended that this section cover every conceivable form of theft and in sodoing, eliminate the common law distinctionswhich encumbered virtually every one of the theft related offenses." (Annotated code, supra, at243.) 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 orviolence against any individual." The majority has based its opinion on an assumption that the jury found the underlying felony tobe burglary. But there isno basis inthe record from which we can make that determination. The jury was not instructed thatburglary is a crimewhich involves "theuse or threat of physical force or violence against any individual." From the jury's standpoint therefore, therewas no reason to.distinguishtheft from burglary indetermining which underlying felony to invoke as triggering application of the felony-murder rule. As far as thejury isconcerned, the instructionpermitted it tofind 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 rulewas triggered. One cannot tellwhich underlying felony the jury invoked if it chose toapply the felony-murder rule in reaching its verdict. Obviously, if thejury did use felony theft astheunderlying felony, the homicide conviction cannot stand. Just as clearly, sinceno one can tellwhether thejury did or didnot use felony theft as the underlyingfelony, thisCourt should not permit the homicide convictions to stand. THE FELONY-MURDER RULE HAS NO EVIDENTIARY FOUNDATION IN --- - THIS CASE

-- I next proceed tothe majority's conclusion that there

was an evidentiary basis for thejury tobase itsverdict

on the felony-murder rule. Inessence, the majority concludes that thedefendant 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 themeaning of the statute. I have discussed my position that the openended felony-murder instruction given inthis case could wellhave provided a basis for thejury to find an underlying felony other than the crimeof burglary. This openended instruction, is, of course, error. But assuming the commission of a burglary tobe within the statutorymeaning, and assuming a proper felony-murder instruction, the facts of this case do not give rise tothe application of the felony-murder rule. The McLeans werenotwithin their rights totake the law into their own hands by arming themselves and later settingthe scene for the armed confrontation and shootout. Defendant and his accomplices came upon theMcLean property atapproximately 4:00 a.m. Sunday morning, September 5, 1977. They intended totake three horses and "get away from allthe hassles" and "liveoff the land." These horses belonged toKenneth Hoeffner but they were inthe lawful possession of theMcLeans. Defendant Sunday and his accomplice Wilson then entered thetack shed and took three bridles, -33-three saddles, and threepairs of chaps. As tothe

use of the tack shed, an employee testified that other employees orguestswent intothe tack shed from timeto timetoobtain orreplace the riding equipment. There is no testimony that employees or guestswent into the tack shed between nightfall and sunrise, the timewhen the entrywas made here. As a result of his entry intothe tack shed, defendant

was charged with burglary. The prosecutor alleged that the tack shed was an "occupied structure." In addition tothe burglary charge, count I11 alleged theft inthat defendant and his accomplices stolethree saddles, three bridles and three pairs of chaps from the tack shed. This

same count also alleged that defendant and his accomplices stolethreehorses. After saddling and bridling thehorses, defendant and his accomplices packed up what supplies and equipment they had, and rode away. Each of thedefendants had a firearm, all apparently stolenby them while theywere inthe 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 trialrecord does not disclosewhen the McLeans discovered the horses and riding equipment missing. Nor, of course, is there any evidence that they knew the defendant and his accomplices tobe armed. The McLeans did not, however, report the thefts tolocal lawenforcement officials. Rather, they armed themselves and struck out after the horse thieves. Wedo not know when theMcLeans began their search for the stolen horses. The armed confrontation did not take -34-place until atleast a day and a half later, inthe late afternoon of September 6, 1977. By this time, defendant and his accomplices had traveled only a few miles from the McLean property. Itwas then, inthe words of the majority opinion, that defendant and his accomplices "saw a pickup truck rapidly approaching. They tried toescape intothe trees but werecutoff by thepickup. The pickup was driven by Kenneth McLean. Hiswife was alsointhe pickup. Kenneth McLean stopped the pickup about sixty-five feet from Sunday, Wilson and the Mitchells." Thus the stagewas set for the armed confrontation and shootout. McLean leaped out of thepickup truck carrying a .308 caliberbolt action rifle, and Mrs. McLean came out armed with a .38 caliberpistol. Defendant Sunday immediately dismounted from hishorse. Hewas armed with a .30-30 rifle. Accomplice Wilson was armed with a .22-250 caliberbolt action rifle, and accomplice Mitchellwas 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
wewillshoot you." Marion McLean added, "Your God Damn rightwewill." Almost instantaneously with hiswords, Kenneth McLean operated the bolt mechanism of his rifle and injected a cartridge. This evidence is not disputed. But a dispute inthe testimony arises between what defendant contends Kenneth McLean did and what the accomplices say happened. Defendant Sunday testifiedthat Kenneth McLean pointed his rifledirectly athim and thathe was "scared

ashell." Accomplices Mitchell and Wilson, on the otherhand, testified thatMcLean's riflewas pointed atthe ground. In any event, the shooting immediately erupted. -35-Defendant fired firstand hit Kenneth McLean in the leg. The shooting as described inthemajority opinion, continued until both Kenneth McLean and Marion McLean lay dead. Defendant and his accomplices then stole some personal belongings from theMcLeans and fled toOregon intheMcLean pickup truck where they were arrested. It is clear that the Statehad the requisite probable

cause tocharge defendant with deliberatehomicide ("purposely orknowingly" causing the deaths of Kenneth and Marion McLean). It is equally as clear, however, that the Statehad no basis tocharge defendantwith deliberatehomicideby application of the felony-murder rule. Indeed, there isnot the slightest indication inthe record that the defendant was ever put on notice that he must dofend against a felony-murder theory. Defendant gave notice tothe State that he would rely

on a claim of self-defense as a justification for his actions. The State atno timeopposed this claimed defense or contended that defendant had no right toclaim self-defense. The record is barren of any indication that the Stateintended torely on the felony-murder rule as the theory orone of its theories of prosecution. If the Statedid intend touse the felony-murder rule, it was a well-guarded secret until the end of the trialwhen it socleverly supplied the felonymurder theory tothejury inthe form of an instruction. The majority makes no attempt to analyze the factual context giving rise tothe declaration that the felonymurder was properly applied. Rather, theclear implication is that any conduct of the defendant and his accomplices after the commission of theburglary, can be traced back and become causally related tothe commission of theburglary. It isnot sufficienttoglibly 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 ofwhether the felony-murder rulewas 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, itmakes 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' conductwas 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 twomember 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 sidesbeing armed, it appears that a classic western- -37-stylegunbattle was inevitable. Itwas occasioned, however, by the precipitious and unwarranted acts of theMcLeans intaking the law into their own hands and using force inthatprocess. What is the extent towhich the McLeans could go in using self-help efforts to secure the return of the horses? And assuming that theMcLeans used orthreatened touse armed force to secure the return of theirhorses, what is the extent towhich Sunday could resist their armed threats

orovert actswhich may have ledhim tobelieve that his lifewas inimminent danger? Did the McLeans have the right toarmthemselves and by the use of armed force demand the return of theirhorses? Did the McLeans have the right to take such action as would or could lead the defendant or his accomplices tobelieve their lives tobe inimminent danger? By the same token, the question arises as tothe extent towhich defendant and his accomplices could defend themselves against the use of force orthreats of use of force by theMcLeans. Assuming an overt threatening act by Kenneth was Sunday, McLean with his rifledirected atdefendant Sundaydbecause he had stolen the McLeans' horses and riding accessories, required tosubmit himself tobeing the victim of a possible homicide? If Sunday believed his l i f e t obe in imminent danger by Kenneth McLean's threat to shoot accompanied by

an overt act, didhe have a right todefend himself by firstshootingMcLean? Assuming an overt actby McLean with his rifledirected atdefendant Sunday, did Sunday have the right todefend himself by theuse of countervailing armed force? Only if it can be held as a matter of law that Sunday had no right todefend himself from McLean's threats

orovert actswith his rifle, can an application of the felony-murder rulebe justified. Otherwise, defendant Sunday

was entitled topresent tothe jury his claim of self defense. -38-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 itbe conceded that defendant had a right to present his self-defense claim to the jury, it follows that the Statewas 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 defeatedwhere a defendant ispermitted to rely on
a claim of self-defenseas 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 responsibilityby 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, itwould also be

no defense for the perpetrator to contend that he killed in self-defense. To permit such a defensewould destroy the underlying purpose of the felony-murder rule. Furthermore,a claim of self-defense is patently inconsistentwith a felony-murder prosecution. The felonymurder rule does not permit one to escape criminal responsibilityby a contention that he did not intend to kill. Although a claim of self-defensedoes 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 commissionof 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: -43-"The concensus of the commissionwas 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 shootoutwhich 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 therewas one. Therebeing 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 noduty to become a homicide victim by letting the McLeans shoothim 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 imminentdanger because of the threatening use of firearmsby 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. Iwould hold in relation to count I11 of the theft charges in the same manner as the majority held in countV of the theft charges. Iwould 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, Iwould 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.