State v. Board

• Decision Date: 27 April 1959
• Docket Number: No. 9904,9904
• Citation: 135 Mont. 139,337 P.2d 924
• Parties: STATE of Montana, Plaintiff and Respondent, v. Raymond BOARD, Defendant and Appellant.
• Court: Montana Supreme Court

Page 924

337 P.2d 924

135 Mont. 139

STATE of Montana, Plaintiff and Respondent, v. Raymond BOARD, Defendant and Appellant.

No. 9904.

Supreme Court of Montana.

Submitted Jan. 8, 1959.

Decided March 17, 1959.

Rehearing Denied April 27, 1959.

John F. Bayuk, Conrad, John W. Bonner, Helena, John W. Bonner, argued orally, for appellant.

Forrest H. Anderson, Atty. Gen., James A. Robischon, Asst. Atty. Gen., Helena, Richard V. Bottomly, Great Falls, James A. Robischon, Asst. Atty. Gen., argued orally, for respondent.

W. W. LESSLEY, District Judge.

The appellant, Raymond Board, was convicted in the district court for Cascade County of the crime of burglary in the first degree. He appeals from the judgment of conviction and from the order denying him a new trial.

The Arrowhead Motel is located in the 500 Block of Tenth Avenue South in Great Falls, Montana. On August 6, 1957, James R. Reynolds occupied Unit 4 of that motel. He had returned about 12:30, locked the door of his unit, emptied the contents of his pockets on the desk near his bed (described as generally three credit cards, social security card, and approximately Fifty Dollars in cash of one $10 bill and the rest $5 bills). He went to sleep; he awakened to see, scarcely an arm's length away, a man standing by the desk. He saw the profile of the intruder, his dress--loose sport jacket, and big cowboy hat. The burglar was standing with his hand on the desk. By the light, from the well-lighted outside court, which came through the window of his unit, he was able to see clearly the appellant. Reynolds lay still, watching the burglar; as soon as he had left, Reynolds arose from bed, ran over to the door of his unit, and looked outside. There he saw two men; one was the night intruder with the white, large straw cowboy hat, a two-tone checkered sport jacket; his companion was a shorter man, heavy-set, with gray hat and blue shirt. He heard them talking, and in the courtyard he saw a third man sitting behind the steering wheel of a black and white 1957 Plymouth car with the motor running. The car drove out; Reynolds looked at the desk and saw his wallet was gone. All of this occurred, as it was starting to get light, and not later than 4:00 o'clock in the early hours of August 7, 1957.

Two hours later at the police station, in Great Falls, Reynolds saw and identified the appellant Board and the shorter man, Bean. He also saw in the parking lot, the Plymouth car, and voluntarily told the police officer it was the same car he saw that night at the motel; the record shows it to have been the car the appellant Board and Bean and Gall were in at the time they were arrested by the Great Falls police.

Money, in the form of $5 bills, was found in the sock of appellant, as he was searched at the station.

All assignments of error worthly of discussion may be disposed of in five general propositions, namely: (1) Is the amended information so ambiguous and unintelligible as to be demurrable? (2) Should appellant's motion for change of place of trial have been granted? (3) Was sufficient proof of burglary in the first degree? (4) Did the court commit reversible errors during the course of the trial? And finally, (5) did the court misdirect the jury in matters of law?

As to the first proposition, we apply the accepted test of a sufficient information; those tests are found in section 94-6403, R.C.M.1947. The pertinent portion of the amended information is as follows:

'That at the County of Cascade, State of Montana, on or about the seventh day of August, A.D., 1957, and before the filing of this Information, said defendants then and there being, did then and there commit the crime of Burglary In The First Degree, in that the said defendants, then and there being, then and there did, wilfully, wrongfully, unlawfully, feloniously intentionally and burglariously, with the intent in them, the said defendants then and there and therein, to commit larceny in the night time, enter into that certain building, unit number 4, Arrowhead Motel, located at 510 Tenth Avenue South, Great Falls, Montana, then and there the property of Mr. Lorne E. Harris and Ben F. Stephens (property in unit number 4, consisting of a wallet containing about fifty dollars ($50), owned by James R. Reynolds, 900 South Pearson, Glendive, Montana'.

Our test is declaratory of the common law, and finds succinct expression in State v. McGowan, 36 Mont. 422, 93 P. 552. That case speaks of our statute, as embodying two provisions as tests; this is true, but application results in the venerable, 'common understanding rule'. In other words we test the language used by this rule, 'would a person of common understanding know what is intended to be charged?'

We can in many cases, and surely in this instance, admit the ineptness, and lack of preciseness of the language used, but when that has been said we return to the aim set in our statute and expressed in our cases--would a person of common understanding know what was intended? Here it is clear, under the language used, that an ordinary person would know that the crime charged was burglary in the first degree.

The statement in parenthesis is inelegant and it wounds the careful craftsman but it does not charge nor seek to charge larceny. At its best it is descriptive of the property allegedly taken from the motel and concerned with intent to commit larceny. At its worst it is surplusage. It is elementary law that superfluity in an Information does not vitiate. State v. McGowan, supra, 36 Mont. 422, 93 P. 552; State v. Phillips, 36 Mont. 112, 92 P. 299.

The court acted properly when it overruled appellant's demurrer to the Amended Information.

Considering the second proposition, we deduce from the applicable cases, this general rule. Application for change of place of trial is addressed to the sound discretion of the trial court, and, unless an abuse of this power is shown, its ruling will not be disturbed. State v. Davis, 60 Mont. 426, 199 P. 421.

Indicia of this denial of fair trial, resulting from prejudicial publicity, as gleaned from our law, seems to be: Arousing feelings of the community, threat to personal safety of defendant, established opinion of members of the community as to the guilt of the accused, news articles beyond the objectivity of news printing and dissemination, State v. Dryman, 127 Mont. 579, 269 P.2d 796, and difficulty or failure in securing a fair, impartial jury from the community in which the news articles appeared, State v. Davis, supra, 60 Mont. 426, 199 P. 421; State v. Bess, 60 Mont. 558, 199 P. 426.

Our court looks for a chain reaction. It starts with the basic premise that the accused is entitled to a fair trial. Next it checks the publicity complained of, as to its contents and more important, as to its total effect upon the 'fair trial right'. Further, it looks af effects in the form of the discriminating marks we have discussed. Finally, it objectively considers the end result--was a fair trial denied as a result of the publicity and its effects? If its findings are negative it refuses to find abuse of discretion on the part of the trial court.

Following that procedure here, we find no abuse, and therefore no reversible error in the trial court's denial of a change of place of trial to the appellant.

When we consider the third proposition, we start with two accepted statements of law in this state. The phrase 'nighttime', as used in this chapter, means the period between sunset and sunrise. Section 94-905, R.C.M.1947. 'But when the pleader, as in this case, makes the specific charge of a burglary in the nighttime * * * he must be held to proof of the charge as made.' State v. Copenhaver, 35 Mont. 342, 89 P. 61, 62. The time here was given a definite terminus by Reynolds under cross-examination:

'Q. What time would that be in the morning, would you say? A. That was--that was right around four o'clock.

'Q. About four o'clock in the morning? A. Uh-huh.

'Q. Could it have been later? A. No.'

Further the question of time is definitely anchored in the sequence of events of the instant case by the testimony of the following police officers:

Officer Calderhead: 'Q. Do you recall what time it was? A. Approximately four A.M.'

Officer Loser: 'Q. Do you remember approximately what time it was? A. It was approximately four o'clock.'

Officer McPherson: 'A. Yes. I was making a lunch relief for the dispatcher around 3:30, and I was answering the telephone calls that come in, and I received a call from Mr. Reynolds.'

The evidence here clearly comes within the requirement set out in State v. Fitzpatrick, 125 Mont. 448, 239 P.2d 529 531. There, in the words of Justice Freebourn, the record showed no 'substantial evidence to prove when the burglary occurred, and there was a total failure on the part of the state to prove such burglary was committed in the nighttime.' The exact contrary exists here.

We consider, briefly, the alleged reversible errors of the lower court during the progress of the trial. Considered under the fourth proposition they are three in number.

Was the admission on direct, of evidence of bribery error? We think not. It was so allowed, after defendant on cross-examination, placed in record an affidavit and letter, that pointedly contradicted the testimony of Reynolds, as he gave it on direct. Its purpose was to contradict; it was new material; therefore the state, as permitted under section 93-1901-10, R.C.M.1947, could properly explain the affidavit and letter, even though it might lead into the question of bribery. To impeach is drastic surgery; explanation must not be denied on the ground it may go...