State v. Olsen

• Decision Date: 01 November 1968
• Docket Number: No. 11474,11474
• Citation: 152 Mont. 1,445 P.2d 926
• Parties: STATE of Montana, Plaintiff and Respondent, v. Stanley Charles OLSEN, Defendant and Appellant.
• Court: Montana Supreme Court

Page 926

445 P.2d 926

152 Mont. 1

STATE of Montana, Plaintiff and Respondent, v. Stanley Charles OLSEN, Defendant and Appellant.

No. 11474.

Supreme Court of Montana.

Submitted Sept. 23, 1968.

Decided Oct. 9, 1968.

Rehearing Denied Nov. 1, 1968.

Berger, Anderson & Sinclair, Billings, James J. Sinclair, (argued), Billings, for appellant.

Forrest H. Anderson, Helena, James R. Beck, (argued), Helena, V. G. Koch, (argued,) Sidney, for respondent.

THOMAS DIGNAN, District Judge. ^*

This is an appeal from a judgment of conviction of burglary in the first degree. Appellant was charged with burglary with a prior conviction. Appellant pled true to the charge of prior conviction and after a trial the jury found him guilty of burglary in the first degree.

Appellant and his wife checked into the Lalonde Hotel in Sidney, Montana, between two and three o'clock p. m. on March 18, 1966, registered as Mr. and Mrs. R. L Ward and were assigned room number 223. Appellant was readily distinguishable in that he wore a red jacket with black plaid, a little black hat, black trousers and a black beard that was well trimmed. Appellant's wife, a slender brunette five feet eight inches in height, at times wore a blond wig.Appellant and his wife were seen leaving the hotel between 9:30 and 10:00 p. m. on March 18th, and were observed returning to the hotel the next morning at approximately 5:45 a. m. About fifteen minutes later appellant and his wife checked out of the hotel and departed from Sidney.

Mr. Nesbit, the owner of the jewelry store that was burglarized, checked the store about 8:00 p. m. on March 18, 1966, and found the premises in order. He returned the next morning at 7:35 a. m. to discover that the store had been entered, watches, jewelry and other items removed from the show case, the safe peeled and contents taken.

Sheriff Grinolds was summoned to investigate the burglary, noted that the entrance into the building had been made through a door that had been boarded up with sheet rock. During the course of his investigation he picked up samples of the sheet rock and insulation from the safe. These samples were later sent to the Federal Bureau of Investigation for analysis.

After concluding his on the scene investigation, the sheriff started checking hotels and motels to ascertain if there had been any strangers in Sidney. The clerk at the Lalonde Hotel gave the officers a description of the appellant and his wife. The sheriff and the other officers then went to room 223, which had been unoccupied since appellant's departure, and there found particles of material which looked like the insulation in the jewelry store safe.

On March 21, 1966, at 1:30 in the morning, in response to a call from the Baker law enforcement officers, Sheriff Grinolds and Sgt. Schmidt of the Sidney police force, drove to Baker. Upon arriving they ascertained that a couple answering the description of the appellant and his wife were occupying room number 2 in the Baker Hotel.

The sheriff awakened the appellant and advised him that he was taking him into custody. At the time the appellant opened the door he was wearing a beard. He remained in the room for ten minutes and the sheriff could hear running water, and when he opened the door and was taken into custody, the appellant was smoothly shaven on both sides and had just a goatee and a moustache left. Appellant and his wife were taken into custody. However, at the time the appellant's wife was taken into custody, she packed their bags and they were placed in appellant's automobile.

The sheriff asked appellant for permission to search the room and the car but was refused permission. A search warrant was obtained and the car was taken to a local garage and searched. The search revealed a diamond ring in appellant's suitcase, bracelets, a watch and a set of earrings in Mrs. Olsen's bag. The diamond ring was not listed in the property lost by Nesbit, so the sheriff took the diamond ring to a local jeweler who found the serial number on the ring; the sheriff phoned Mr. Nesbit and ascertained that this diamond ring had been a part of the jewelry taken in the burglary. The sheriff retained custody of this diamond ring until the trial.

The sheriff, in the search of appellant's car in Baker, found in the trunk of appellant's car, two chisels, a pry bar, a bolt cutter, two walkie-talkies, a saw, one fourpound sledge hammer and one eight-pound sledge hammer, a vise, a locksmith kit, flashlights, screwdrivers, rope, pinchers and other tools commonly used by burglars. These tools, appellant's bag and Mrs. Olsen's bag, were placed in the trunk of appellant's car and locked.

A caravan of the sheriff and appellant's wife left Baker behind appellant in his car driven by Sgt. Schmidt. The caravan stopped in Glendive at the sheriff's office where all of the occupants of the two cars went into the sheriff's office and appellant's car was unattended for a period of thirty minutes. The caravan then proceeded to Sidney and arrived at about 8:00 o'clock that night.

The appellant and his wife were placed in jail and appellant's car with the tools and bags were placed in the undersheriff's garage and the car locked by the sheriff.

The next morning, with the car in the same condition, the sheriff, in front of witnesses, marked all of the burglar tools. Mr. Nesbit identified as his property lost in the burglary, two bracelets, the earrings and a watch.

At a later date the burglar tools and the insulation found in room 223 were shipped, after being marked, to the Federal Bureau of Investigation for examination and returned to the custody of the sheriff.

An agent of the Federal Bureau of Investigation testified that the materials found in room 223, the insulation, was the same material as the insulation in the Nesbit safe that was peeled. That the bit of the appellant had fine deposits of lime gypsum plaster that matched the wall board that was drilled and broken into at the Nesbit jewelry store.

In the appeal, appellant for the first time alleges error in that the state did not furnish counsel at the preliminary hearing. Appellant was charged and bail set on March 22, 1966, before the justice of the peace. A preliminary hearing was held before the justice of the peace on March 28, 1966, on the charge of burglary in the first degree. Appellant, on cross examination here, testified as follows:

'Q. Mr. Olsen, you have previously stated that you did not have a preliminary hearing. A. I didn't have one while I was in custody no. Afterwards I did, after I had raised bond.

'Q. Were you advised at the hearing that you could have the matter continued until counsel was present? A. Someone may have said that, but I don't recall that. I didn't have an attorney at the time, and I didn't see any point to a continuation, as I would not have been able to get an attorney then, or later on for that matter. I didn't have the money.

'Q. Now at this preliminary hearing, were you asked any questions? A. No, not that I can recall. I didn't testify.

'Q. You didn't testify at all, did you? A. No.

'Q. The purpose of the preliminary hearing was to have other witnesses testify on behalf of the State, was it not? A. Yes.'

Appellant and his wife were bound over to the district court on charges of burglary in the first degree on the 28th day of March 1966.

Thereafter the county attorney, upon written affidavit, moved the court to file an information direct. The district court, on the 6th day of April 1966, granted leave to file an information. At that time appellant was represented in court by James A. Sinclair, Esq., of Billings, Montana, who resisted the motion of the county attorney and moved to quash the information. The motion to quash was overruled and the motion of the county attorney to file the information was granted by the court. Subsequent to that time, additional motions were made by the appellant and his attorney who represented the appellant throughout the hearings, the trial on the merits and the appeal to this Supreme Court.

Appellant cites for his authority Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967) which sets out in detail most of the cases decided in the United States Supreme Court wherein indigent defendants are entitled to an attorney and have an absolute right to the appointment of counsel in felony cases and giving the history of all the previous cases, including Gideon v. Wainright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799.

In spite of the above, section 94-6602, R.C.M.1947, which has been replaced (See sections 95-1702 and 95-1704, R.C.M.1947), states:

'The motion to set aside the indictment or information must be in writing, * * * and must specify clearly the ground of objection to the indictment or information, and such motion must be made before the defendant demurs or pleads, or the grounds of the objection are waived.'

Under the above section, the appellant cannot claim error in view of the fact that a motion to quash the information was not made by the appellant.

Assuming arguendo that the appellant has not waived his right to object and there was failure to appoint counsel at the preliminary hearing, such failure is not reversible error since in Montana a preliminary examination is not a 'critical stage in a criminal proceeding.'

The purpose of a preliminary hearing in Montana is to determine whether there is probable cause to believe the defendant guilty of the charge. In re Jones, 46 Mont. 122, 126 P. 929. Since this is the purpose, the appellant cannot preserve or lose any rights at this stage of the criminal proceeding.

Similarly, the case of Ronzzo v. Sigler, 8 Cir., 346 F.2d 565, considering the Nebraska statute similar to ours, the circuit court said:

"* * * a procedural safeguard whereby it is assured to all accused of crime that they will not be detained in custody without probable cause existing that the crime charged was committed by them.' In...