State v. Lane, 12267

• Decision Date: 16 February 1973
• Docket Number: No. 12267,12267
• Parties: STATE of Montana, Plaintiff and Respondent, v. Terry A. LANE a/k/a Terry Van Diver, Defendant and Appellant.
• Court: Montana Supreme Court

Page 446

506 P.2d 446

161 Mont. 369

STATE of Montana, Plaintiff and Respondent, v. Terry A. LANE a/k/a Terry Van Diver, Defendant and Appellant.

No. 12267.

Supreme Court of Montana.

Submitted Jan. 26, 1973.

Decided Feb. 16, 1973.

D. R. Matthews, argued, Missoula, for defendant-appellant.

Robert L. Woodahl, Atty. Gen., Helena, J. C. Weingartner, Asst. Atty. Gen., argued, Helena, Robert L. Deschamps, III, County Atty., Missoula, Gene McLatchy, Deputy County Atty., argued, Missoula, for plaintiff-respondent.

CASTLES, Justice.

This is an appeal from a judgment of conviction of the crime of receiving stolen property entered on a jury verdict in the district court of the fourth judicial district, county of Missoula. Defendant had a prior felony and was sentenced to a term of five years. He had been charged with burglary in the first degree or alternatively, receiving stolen property.

The home of Mr. & Mrs. Charles Hurt, in Missoula, was burglarized on October 22, 1971. Access had been gained through a window in a bedroom during the Hurts' absence. Stolen were a Gibson Super 400 guitar, an amplifier, a Pioneer reverberator unit, a stereo unit and one suede jacket.

It shortly became apparent that two men, Peter Probst and defendant Terry Lane, later identified as Terry Lane Van Diver, were involved because the two went to Bakke Motors in Missoula and traded a 1959 Cadillac, $50 of defendant's money, and the stolen guitar for a 1965 Pontiac purchased in defendant's name. The stolen amplifier was sold to a local secondhand store for $50 by Probst while defendant waited in his car. Both men sold the stereo and speakers to an employee at St. Patrick's Hospital for $40.

The two men, Probst and Van Diver, disappeared. Subsequently, after traveling together to New Orleans and Canada, the two were arrested in Canada for having an illegal weapon, among other charges. While in jail in Regina, Saskatchewan, they informed the Canadian authorities that there was a warrant for their arrest in Missoula, Montana. They were subsequently deported to the United States from Canada and were arrested on December 3, 1971, in Plentywood, Montana, and returned to Missoula. The suede jacket taken in the burglary was found in defendant Van Diver's car in Plentywood.

While the charges were pending, Probst dismissed his attorney, made a statement, and plead guilty to first degree burglary. He was sentenced to two years; which sentence was deferred.

Defendant Van Diver plead not guilty and the case went to trial. During the trial, the owner of the property testified as to the burglary and identified the stolen items. The items were all connected to the possession and sale by both Probst and defendant Van Diver. Probst testified that both he and Van Diver burglarized the Hurt home; testified as to their purchase of Van Diver's automobile, their sale of the items, their trip to Canada, their arrest, and his subsequent decision to plead guilty.

As stated before, the charge was in the alternative, burglary or receiving stolen property. The jury was instructed on both charges and given alternative verdicts. The jury returned a verdict of guilty of receiving stolen property.

Defendant on appeal raises three issues for review: (1) That the trial court erred in giving Instruction No. 13; (2) that an alleged prosecution comment on defendant's failure to explain his possession of the goods was reversible error; and (3) whether the court erred in not granting defendant a new trial on the receiving stolen property charge by itself.

Issue I concerns the giving, over the objection of defendant, of Instruction No. 13 which reads:

'You are instructed that the mere possession of stolen property, however soon after the taking, unexplained by the person having possession, is not sufficient to justify conviction. It is, however, a circumstance to be considered in connection with other evidence in determining the question of innocence or guilt. If you should find from the evidence that a burglary was committed on the premises involved in this case and that thereafter the defendant was found in possession, or claimed to be the owner, of property stolen from the burglarized premises, such a fact would be a circumstance tending in some degree to show guilt, although not sufficient, standing alone and unsupported by other evidence, to warrant your finding him guilty. In addition to proof of possession of such property there must be proof of corroborating circumstances tending of themselves to establish guilt. Such corroborating circumstances may consist of the acts, conduct, falsehoods, if any or other declarations, if any, of the defendant, and any other proved circumstances tending to show the guilt of the accused.

'One who is found in the possession of property that was stolen from burglarized premises is bound to explain such possession in order to remove the effect of that fact as a circumstance, to be considered with all other evidence, pointing to his guilt.'

In addition to Instruction No. 13, other instructions on receiving stolen property were given. Instruction No. 18 specifically required proof beyond a reasonable doubt.

Defendant argues Instruction No. 13 violated his constitutional rights. Namely, that the instruction allows the judge, by way of an instruction, to comment on the fact defendant did not take the stand during the trial. Such comments, on the defendant not taking the stand during a criminal trial, have been held to violate defendants' rights against self-incrimination as guaranteed by the Fifth Amendment to the United States Constitution. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106.

This Court recently considered the question of the constitutionality of such an instruction. In State v. Branch, 155 Mont. 22, 23, 26, 465 P.2d 821, 822, this instruction was given:

'One who is found in possession of stolen property is bound to explain such possession in order to remove the effect of that fact as a circumstance, to be considered with all other evidence, pointing to his guilt, and if he gives a false account of how he acquired that possession or, having reasonable opportunity to show that...