State v. Best
| Decision Date | 04 December 1972 |
| Docket Number | No. 12044,12044 |
| Citation | 503 P.2d 997,29 St.Rep. 1045,161 Mont. 20 |
| Court | Montana Supreme Court |
| Parties | The STATE of Montana, Plaintiff and Respondent, v. Ralph R. BEST, Defendant and Appellant. |
Dale L. Keil argued, Conard, for defendant and appellant.
Robert L. Woodahl, Atty. Gen., Jonathan B. Smith, Asst. Atty. Gen., argued, Helena, David H. Nelson, County Atty., appeared, Conrad, for plaintiff and respondent.
This is an appeal by defendant from a judgment of conviction of two counts of first degree burglary, entered upon a jury verdict in the district court of Pondera County, the Honorable R. D. McPhillips, District Judge. Subsequent to defendant's conviction Judge McPhillips sentenced him to eleven years imprisonment in the state prison on each count to be served consecutively, or a total of 22 years imprisonment.
Late in the evening of June 14, 1970, John and Dawn Carver, of Conrad, Montana, heard the sound of breaking glass outside their apartment. Mrs. Carver looked out the window and saw what appeared to be a burglary being committed by two men inside Baumann's South Texaco service station. Thereupon, her husband left to find help.
A few minutes later Dennis Driscoll, of the Montana Highway Patrol, and John VanDeKop, undersheriff of Pondera County, arrived at the service station on foot. Driscoll went around the back and heard Mrs. Carver shout that the burglars were leaving in a pickup truck. He chased the truck on foot, and took down its license number; then he and VanDeKop got into their respective patrol cars and started to hunt for the pickup truck.
Soon thereafter VanDeKop caught up with the pickup on the Highway leading north of town and radioed for help. Before help arrived, however, the pickup turned into a biochemical plant north of town and eventually stalled. Fred Carmichael was arrested while still sitting in the cab of the truck; defendant Best fled on foot and was captured in a nearby field.
Both Carmichael and Best were subsequently charged with burglary in the district court of Pondera County. Defendant Best was charged with two counts of burglary, the one allegedly committed at Baumann's Texaco station in Conrad and the other at Conrad Motor and Tire Company on the same night. He entered pleas of not guilty to each count, and was tried separately from Carmichael.
Defendant's trial commenced on November 16, 1970. His defense was that Carmichael coerced him into committing the crimes. The jury found defendant guilty of both burglaries, the judge sentenced him, and he now appeals from the judgment of conviction.
Appellant cites three issues for review upon appeal:
(1) Was the giving of court's instruction 13-B reversible error?
(2) Was the admission in evidence of certain tools reversible error?
(3) Should a new trial have been granted on the grounds of newly discovered evidence?
Directing our attention to the first issue, court's Instruction 13-B reads as follows:
'Under the laws of the State of Montana, as applied to this case, a person guilty of Burglary in the First Degree is punishable by imprisonment in the state prison for not less than one year or more than fifteen years on each count, which sentences may be ordered by the Court to be served either concurrently or consecutively.
'Further, the Court has the discretion of releasing the defendant on probation, deferring the imposition of sentence for a period not to exceed three years, suspending the execution of the sentence up to the maximum sentence allowed for the particular offense or imposing any combination thereof.
'In the event you return a verdict of guilty of the crime of Burglary in the First Degree on either count, the Judge must assess and declare the punishment.
'In the event you return a verdict of not guilty, the defendant must be released and discharged.'
Upon settlement of jury instructions, defendant's objection to this instruction was as follows:
Defendant contends that the giving of this instruction over his objection constitutes reversible error. He argues that this instruction 'intimates to the jury that the impact of a jury verdict of guilty could be lessened by the Court's imposition of a light sentence.' and that this situation prejudices a possible verdict of acquittal because jurors who might otherwise find the defendant innocent may be more easily persuaded to change their position knowing that a suspended or deferred sentence may be imposed. Defendant cites State v. Zuidema, 157 Mont. 367, 485 P.2d 952, in support.
Defendant's position cannot be sustained. In the first place, no valid objection to the instruction was made in the trial court. Section 95-1910(d), R.C.M.1947, requires the objecting party, on settlement of jury instructions, to 'specify and state the particular ground on which an instruction is objected to' and expressly provides that 'it shall not be sufficient to object generally that the instruction does not state the law, or is against the law, but the objection must specify particularly wherein the instruction is insufficient, or does not state the law, or what particular clause therein is objected to.' In the instant case defendant simply objected without assigning any grounds, either general or particular, therefor. Under such circumstances the alleged objection is equivalent to no objection at all, and the instruction is not reviewable on appeal.
More importantly, court's Instruction 13-B correctly stated the law as it existed at the time of defendant's trial. In State v. Metcalf, 153 Mont. 369, 457 P.2d 453, we held that a similar instruction on sentencing correctly stated the law and was not prejudicial to the defendant. However, some seven months after defendant's trial in the instant case we held that an identical instruction to that used here (except for the crime and term of imprisonment) constituted prejudicial and reversible error. State v. Zuidema, 157 Mont. 367, 373, 374, 485 P.2d 952, 956. In Zuidema we explained our change of position in this language:
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State v. Morse
...1, 101 P.3d 288; Gollehon, 274 Mont. at 117, 906 P.2d at 698 (construing previous version of § 46–16–702, MCA ); State v. Best, 161 Mont. 20, 26, 503 P.2d 997, 1001 (1972), overruled in part by Gollehon, 274 Mont. at 122, 906 P.2d at 701. Because it is undisputed that Morse's motion was fil......
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State v. Gallagher, 12341
...impeaching evidence may demonstrate perjury in the witnesses upon whose evidence the verdict is founded.' See also: State v. Best, Mont., 503 P.2d 997, 29 St.Rep. 1045. Defendant relies heavily on several issues which he classifies as newly discovered evidence in his petition for a new (1) ......
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State v. Campbell
...evidence may be introduced and received into evidence after proof is made connecting it with the accused or the crime. State v. Best (1972), 161 Mont. 20, 25, 503 P.2d 997. Krista Flanigan testified that she and her sister were beaten by defendant and that the plunger handle was the weapon ......
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State v. Redcrow
...nature of the offense. We point out that these factors did not require the District Court to entertain this motion. State v. Best (1972), 161 Mont. 20, 26, 503 P.2d 997, 1000. However, in view of the extensive consideration of the motion by the District Court, we consider it appropriate to ......