State v. Murphy, 13647

• Decision Date: 25 October 1977
• Docket Number: No. 13647,13647
• Citation: 174 Mont. 307,570 P.2d 1103,34 St.Rep. 1174
• Parties: The STATE of Montana, Plaintiff and Respondent, v. Kevin MURPHY, Defendant and Appellant.
• Court: Montana Supreme Court

Page 1103

570 P.2d 1103

174 Mont. 307

The STATE of Montana, Plaintiff and Respondent, v. Kevin MURPHY, Defendant and Appellant.

No. 13647.

Supreme Court of Montana.

Submitted Sept. 27, 1977.

Decided Oct. 25, 1977.

Stimatz & Engel, Butte, Joseph C. Engel, III, argued, Butte, for defendant and appellant.

Michael T. Greely, Atty. Gen., Helena, J. Dennis Moreen, Asst. Atty. Gen., argued, Helena, John G. Winston, County Atty., Butte, for plaintiff and respondent.

HATFIELD, Chief Justice:

Defendant Kevin Murphy was charged and convicted of burglary in the district court, Silver Bow County. From the jury verdict and subsequent sentence, defendant appeals.

On May 3, 1976, at approximately 2:15 a. m., two witnesses heard a noise which aroused their attention. They looked out from their second floor apartment, located across the street from Len's Food Store in Butte, Montana, and saw an individual kicking the door window at Len's. The door window was subsequently kicked out and various items, including Olympia and Lucky Lager beer, were taken from the store.

During the break-in one individual on the street answered back to the witnesses' shouts from the second floor apartment. Defendant was recognized by one of the witnesses as being near Len's at the time the store was broken into. Also, an individual was seen running from the store and dropped a can or bottle out of his hand.

By the time one witness was able to dress and move to the street, the police had arrived. They pursued two individuals running down the street and while in pursuit the police observed the two throw items into a yard. One suspect was identified as defendant. When arrested defendant had five cans of Olympia beer in his possession.

Officer Albert Johnson, who apprehended defendant testified at trial that he believed others were involved in the break-in but were not apprehended.

Defendant did not take the stand. Mike McMeekin, arrested with defendant and who plead guilty to the burglary, testified an Indian named Randy kicked in the door glass, ran into the store, grabbed some beer and ran out. McMeekin further testified that while Randy was kicking the door, "these guys came out from across the street and started yelling at us" and he, McMeekin, swore at them.

At trial the prosecution was not able to establish that defendant actually entered the building.

On appeal defendant presents but one issue for this Court's review:

Did the trial court err in giving its Instructions Nos. 17 and 18 regarding defendant's liability as an aider and abettor without charging him as an aider and abettor in the Information?

The instructions in question read:

"Instruction No. 17

"A person is legally accountable for the conduct of another, when, either before or during the commission of an offense, and with the purpose to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense."

"Instruction No. 18

"You are instructed that all persons concerned in the commission of a crime, whether it be a felony or a misdemeanor, or whether they directly commit the act constituting the offense or aid and abet in its commission, are principals in any crime as committed. And in this case, if you believe from the evidence that the Defendant did not directly commit the crime charged in the Information, yet if you do believe from the evidence, beyond a reasonable doubt, that he was present, knowing, aiding and abetting in its commission, you should find him guilty."

Defendant contends it is clear the crime charged in the Information is only burglary in violation of section 94-6-204(1), R.C.M.1947. It is not clear that defendant was charged with accountability for burglary of others under the provisions of section 94-2-106 or section 94-2-107, R.C.M.1947. That the failure of the state to list the additional charges upon which the jury was instructed in Instructions Nos. 17 and 18 constitutes a failure to fully apprise defendant of the charges against him and resulted in surprise to him when the prosecution sought these instructions. Further, this failure precluded defendant from being apprised of the specific charge against him and the chance to be heard on the issues caused by the charge. Defendant's contentions fail.

First, the trial court did not err in giving Instructions Nos. 17 and 18, which instructed the jury as to "aiding and abetting". The instructions are not challenged as an incorrect statement of the law, but rather the challenge is based upon the failure of the state to specifically charge the defendant with accountability in the Information.

Prior to Montana's new criminal code, section 94-6423, R.C.M.1947, and interpreting case State v. Zadick, 148 Mont. 296, 419 P.2d 749 (1966), correctly stated the law. On January 1, 1974, sections 94-2-106 through 94-2-108, R.C.M.1947, replaced section 94-6423. The Criminal Law Study Commission stated in its comments that section 94-2-107 accepts the approach of section 94-6423 and endeavors to develop it in full.

Section 94-2-107 is substantially the same as the source, section 5-2, Chapter 38 of the Illinois Criminal Code. Under Illinois case law interpreting section 5-2, an indictment need not distinguish an act performed by the accused himself and the act of another for which he is legally accountable. People v. Nicholls, 42 Ill.2d 91, 245 N.E.2d 771, 777 (1969), cert. den. 396 U.S. 1016, 90 S.Ct. 578, 24 L.Ed.2d 507 (1970). Montana follows the rule of...