*1 Appellant, GALAUSKA, Mack Walter Appellee. Alaska,
STATE No. 2027. Supreme Alaska. Court of 25, 1974.
Oct.
Stephen Cowper, C. Cowper & Mad- son, Fairbanks, appellant. Gorsuch, Atty. Gen., Norman C. Daniel Hickey, Atty., W. Dist. Juneau, Robert B. Downes, Atty., Fairbanks, Asst. Dist. appellee. RABINOWITZ, ERWIN,
Before J.,C. FITZGERALD, BOOCHEVER and JJ., MOODY, Judge.
OPINION
FITZGERALD, Justice. 29, Shortly midnight after on January Charlie, Arthur Walter Galauska Roger Peter left Fairbanks in Galaus- pickup driving Pligh- ka’s truck the Steese way passing Mile- toward Chatanika. After post stopped on the vehicle was roadway got all three men Imme- out. diately thereafter Arthur Charlie was on the rifle and struck head with a ground. dragged knocked He highway a small ravine close pushed edge, rolling over the bot- tom. Balas, lived at Mile who John 27½ Steese, early morn- was awakened dogs. barking of his He went investigate. Hearing
outside what he groaning, believed was someone drove a telephone to the location of and called Troopers troopers the state at Fairbanks. dispatched. were Balas Schouten Port bars, they thus troopers drinking as went.1 While meet the was instructed two Olsen, they they met Robert Tom rendezvousing, engaged, After Mile 13¾. Flaherty had heard and Arthur Charlie. point where Balas drove There found groans. hoped to he had According to Galauska the ra- the bottom of lying face down at Mrs. because see the three men immediately Trooper examined vine. Port *3 on the testify against court was them signs life and was able Charlie vital burgla- with a following day connection pulse. was carried find a weak Charlie Olsen, together Flaherty ry. Charlie, and transported patrol car and charged jointly been with had Galauska pro- he was hospital at Fairbanks. There suc- had been with the crime but Galauska shortly arrival. nounced dead after Later against him dis- having the case cessful autopsy injuries disclosed that Charlie’s been concerned had missed. Mrs. Galauska a fractured skull. included defendants, so testifying against the about preliminary their inves- explain In the course of the cir- agreed to had Galauska troopers interviewed tigations, hoping state this would to them cumstances Olsen, on these and Based both Galauska Peter. Flaher- feelings. hard When avoid presented interviews and evidence his con- ty told of wife’s Charlie were and case, grand jury, Roger and testifying burglary Peter Walter Ga- in the cern about appear for the murder jointly lauska were indicted did they that recalls Galauska pled guilty Peter prospect of Arthur Charlie. of Mrs. at Ga- to be worried shortly they explained an information testimony. before trial Rather lauska’s charged manslaughter. him which with their attor- they been advised that had worry to have occurred when This crime was said about since ney little to there was helpless wounded and was not Peter rolled the that he had stated Arthur Charlie and highway and anybody, Charlie into a ravine near anything going say about at then abandoned him. Later Galauska’s amend- on the fifth going was to stand Peter and charge, both trial on the murder ment. each accused Galauska testified and trial testified Galauska’s Roger Peter beating the rifle. with other Charlie recalled it about conversation. He. sharply con- Since Peter, differently. According to Ga- quite killing, we on the details of the flicted Flaherty Charlie Olsen, told lauska carefully
have examined circumstances cen- in the that he had been detoxification leading up to event. to think “straight mind” had a ter and now acquaint- had been well Walter Galauska further stated about case. Galauska least six or ed Arthur for at with Charlie gonna take that “the state Charlie Roger Pe- years the assault. seven before them, him regardless of all three of convict acquainted with ter well was likewise not, give all three charged or being Charlie, that and it said Charlie building.” years larceny on in the them 10 ac- Peter became his cousin. Galauska understanding questioned about When during when quainted December them”, testified “all three of Peter at the Fairbanks detoxi- patients both were Flaherty Olsen, referring to Galauska fication center. Peter, This and Galauska. possible motive believed, to do with a has p. January on Shortly after 8 m. implies that Peter, It part of on the Galauska. 1973, Galauska, company with prosecution on to fear so continued Fairbanks Galauska his wife to downtown drove to tes- charge if Charlie were burglary left might play bingo. that she Galauska tify. also testified Peter and Peter parking and he his truck in a lot silencing of action for suggested a course tour of the Fairbanks began an extended discharged same 6:00 P.M. center about from a detoxification had been day. thing help the best “is that Charlie: do Ar- him into the truck and back to town. Instead, disappearing thur Charlie make a according Galauska, scene days.” said, agreed Peter crazy Roger Galauska’s away “Get Peter point in account that at this the conversa- from me. I’ll hitchhike a ride to town.” “gonna tion Charlie said he was on At this responded, swear “If that’s the way you it,” the fifth amendment and that he wasn’t want and started to climb into gonna testify at all.” the truck. But Peter now seized the rifle again Finally struck Charlie. conversation, Following this several ordered get pickup. Galauska to into the drinks, attempt more and an unsuccessful Then Peter laid the rifle on the floor- by Galauska and Peter to locate Galauska’s boards and directed Galauska to drive off. wife, the two returned to a bar where According Galauska, Charlie was left again met Arthur Charlie. Galauska of- lay where alongside the road. He was buy gallon fered to a half sug- of wine and *4 not rolled into the ravine. gested the three take a pickup ride the testimony Peter’s the events differs suggestion to drink it. His met with fa- substantially. He vor; pickup testified that the bought together the wine was and stopped by was permit to Galauska the men they pickup. returned to the Peter started to got urinate. When Charlie out he acci- drive, to but after a few blocks Galauska dentally slipped hitting previously Peter’s demanded to take the wheel. Galauska’s injured Peter, eye. believing himself at- testimony was that he drove to the Steese by Charlie, immediately tacked retaliated. Highway intending proceed directly to- to However, explained his Charlie initial blow ward Chatanika. Peter testified that he accidentally had been Peter struck so thought they going were to Galauska’s away turned to the end of the truck and house, suddenly but instead an- Galauska engaged, urinated. thus he contin- While nounced, “No, taking I’m out Charlie to Charlie, ued to talk to who remained be- days,” hide for 120 and then drove toward away. hind Peter some six or seven feet Chatanika. Peter heard a thud and as he turned saw point From this the of Pe- Galauska a rifle his hands. He ter and Galauska becomes even more diver- struggling saw Charlie Galauska gent. At trial gave following Galauska the weapon. grabbed the Peter himself at the explanation killing. way to On rifle but was knocked off After balance. argument Chatanika an broke out between get up, he he was able to tried to remove Peter and Charlie which resulted in blows clip still held from the rifle which was compelled stop between them. He to by pull Peter was able Galauska. When the truck while the' two con- combatants clip magazine, began out he fight. tinued their stepped Galauska down by managed unload had then it. Galauska on the driver’s side of the vehicle to take a beating and was to knock Charlie down drink from the wine bottle. He heard dis- on the head with the rifle. Peter him swearing scuffling, Roger then saw armed and threw rifle truck, Peter pull reach into the the seat Galauska, got get truck. He told “We point forward and remove rifle. At refused, say- him back to town.” Galauska Galauska testified he ran around the front “No, my going he’s back ing, truck. of the truck with the intention of disarm- hours; couple right He’ll be all standing saw Peter Peter. He over help me him down the hill.” roll Charlie, hitting him with the rifle. Ga- helped Charlie Galauska roll testified lauska testify went on to that he was able into the ravine. He noted pull away the rifle Peter and to from trip breathing. was still On return kneel down beside He told Char- Charlie. He was told Peter drove. Fairbanks lie, get up,” intending keep “Come on his shut and mouth but, right; I. things going were to be all rid of the rifle. Peter get would have THE INDICTMENT highway into drive where drove off his indictment urges that from the truck. the rifle was thrown presentation of fatally flawed investigation troopers’ revealed that hearsay grand to the inadmissible the ravine where Charlie bottom of moved, unsuccessfully, to jury. Galauska approximately fifty had been located was trial; so the prior to quash the indictment roadway. Along from the the road- feet this court2 error, properly before any, spots, spot, way they found blood urine tes- of error on claim Galauska bases rifle, plate can and a the butt a beer by a presented grand jury to the timony days cartridge. rifle A later number to a statement police who testified officer rifle in the snow near was discovered was similar statement Peter. This driveway it had thrown. where been later import which Peter belonging It was identified as to Galauska e., Galauska, that Ga- i. gave at the trial of cartridge and the recovered from the scene awith beaten Arthur Charlie lauska had troopers by the state of the crime rifle, protests, that Ga- over Peter’s shown same caliber as Galauska’s Peter rolled Charlie off lauska and rifle. a ravine. roadside into trial, the con- At the resolved by the presented This statement tradictory their ver- evidence and returned hearsay At police evidence. officer was *5 dict, manslaugh- of finding guilty jury proceedings, grand the time of appeal attacks the ter. In seeking indictment joint State the evi- indictment as invalid. He claims Thus against Peter and Galauska. convict; at trial insufficient dence police officer before by the statement evidentiary ruling of the objects he to an hearsay evi admissible grand jury was finally Peter, to the instructions as trial court and but inadmissible against dence against Galauska.3 jury. given the party 238, contrast- Taggard as a A’s claims n. 20 discredit ing 2. In v. party B has 1972) challenges other (Alaska with what some them that we noted discrediting claimed; appearing is no there not elsewhere based on defects indictment contrast, process it is because in such a must raised the face of the indictment (lalauslta’s objection person’s are that prior statements the same not to trial. Since ordinary Moreover, fairness sufficiency sup- contrasted. involved the evidence license; objection indictment, for it would porting would forbid such litigant permit practice thereby preserving timely discredit raised before any merely by joining opponent’s appeal. an person claim opponent’s the issue on coparty and then as the limiting underlying scope for The reasons person’s employing as ad- statements that respect to codefendants of admissions with plain, therefore, both on It is missions. principle by Wigmore: clearly have been articulated policy, the statements and in probative process consists contrast- “The against (while coparty of course usable of a person ing made the statements the same himself) admissions as are not usable formerly litigant and made else- now coparty. against a where, it and it is that view that becomes per- identity necessary to define the of the particularly principle illustrated is It statements of one son. follows regard of a to the admissions the rule confessedly person B do is a distinct who case; here it has in a criminal codefendant against as admissions become receivable always the admission conceded been merely party. is also a In A B because only.” against himself one is receivable coplain- words, one admissions other Wigmore, 155-57 Evidence are not J. or receivable codefendant tiff (footnotes 1972) (J. merely by against another, rev. ed. Chadbourn virtue of Leary, g., People omitted). coparty litigation. See, position e. in the (“Accusatory (Cal.1946) necessarily state- in the notion P.2d 37-38 This is involved admissible, may admission; impossible ments, re- be when are for is of an it Alaska 6(r) R.Crim.P. indictment, involves this court adopted a two presentment of evidence grand step before analysis: juries: question, “The threshold which must be determined in all cases involving a chal- “Evidence legally which would be ad- lenge to sufficiency of the evidence missible at trial be shall admissible be- supporting grand indictment, grand jury. fore the appropriate In cas- whether presented the evidence a suffi- es, however, may presented witnesses be ciently detailed account of criminal ac- to summarize admissible evidence if the tivity and the participation defendant’s admissible evidence will be available at in this activity so that ‘if unexplained or Hearsay trial. evidence shall uncontradicted would warrant a con- presented grand to the jury absent com- person viction charged with an pelling justification its introduction. offense the judge jpry trying or hearsay presented If evidence is to the offense.’ hearsay Where evidence has grand jury, the reason for its use shall introduced, been we must also determine
be stated on the record.”
(emphasis
credibility
whether the
of the informant
added)
has been sufficiently established so that
grand jury
The first
may
sentence of the rule deals
know how much
presentment
with the
weight
to give
hearsay
admissible
to the
evi
dence
encompasses hearsay
mony.”
which would be
pursuant
admissible
to one
Following our
Taggard,
decision in
Alas-
of the recognized exceptions
hearsay
ka R.Crim.P. 6(r) was amended and the
rule.4 In those instances there is
need
no
required
state was
to show compelling rea-
for a compelling justification and the rea
sons
resorting
before
to inadmissible
son
its use need not be stated on the
hearsay testimony
grand
at the
jury.
However,
record.
in circumstances involv
Skan,
State v.
In
hearsay
concerned.”).
McCormick,
hearsay
any declarations,
also
See
C.
Law
hear
a traditional
(1954).
problem
presented.
of Evidence
at
&
n. 20
was
commentary
providing
5. Eor
an incisive
a
person
4.Had
the
who witnessed the criminal
analyzing
heuristic
for
device
the testimonial
incident,
act
related his observations
the
underlying
infirmities
the
for
basis
the hear-
hearsay problem. Similarly,
there would be no
say rule,
Tribe,
Triangulating
see
Comment —
Galauska,
if
declarant made an in-
Hearsay,
(1974).
87 Harv.L.Rev.
criminating admission,
the witness
heard
who
present
(footnote
the
omitted).
declaration
be
would
allowed to
6.
Such rule would be unworkable in homi- cide cases the where limitations of medical II. may permit certainty. science such SUFFICIENCY OF THE EVIDENCE For this reason we held that Armstrong THE DEATH
AS TO
CAUSE OF
jury’s
the
function is to decide
the
on
death,
necessary,
cause of
by
aided where
appeal
argument
Galauska’s next
on
con-
experts:
medical
cerns the State’s failure to
suffi-
introduce
beyond
cient evidence to
establish
rea-
expert
“In
testimony
served
case
beating
sonable doubt
that
caused
relationships
to reveal
physiological
Accordingly,
Charlie’s death.
death;
relevant to
once
[the victim’s]
by
claims
in denying
error
the trial court
jury
these were explained, the
com-
acquittal
his motions for
close of the
petent
an independent
to make
determi-
State’s case and at the end
trial.
nation of
on
cause
death
the basis of
is
argument
based on a restricted
all the relevant
it.”
evidence before
reading
Armstrong
In
case,
the present
jury
(Alaska 1972).
we
Armstrong
dis-
competent
independent
to make an
determi
cussed the standards to be utilized in deter-
nation based on all the evidence as to the
mining
expert testimony
whether
was nec-
cause of
proper
death
putting into
essary
support a
conviction:
perspective
testimony
presented
“Expert
testimony is not necessarily
experts.
medical
The details of the assault
support
essential to
conviction
hom-
coupled
abandonment
with
Thus,
apparent
icide.
where it is
testimony
the medical
demonstrates suffi
laymen
ordinary
perceive,
could
from cient evidence to sustain the conviction.
such factors as
nature
of the wound
accepting
Even
Galauska’s contention
surrounding
or the circumstances
an at-
concerning
required certainity
in ex-
tack,
defendant’s acts caused the
pert testimony
establishing
the cause of
death,
medical
as to cause of
case,12
death in this
we
ample
find
evi-
contrary
death
A
is
essential.
result
dence
from
which
could have de-
reached, however,
where from the na-
termined,
required
certainty,
agency alleged
ture of
to have Charlie’s death
beating.
resulted from the
death,
caused the
the causal connection
Roger Harding performed
autopsy
Dr.
average layman’s per-
is not within the
body
discovered,
addition
circumstances,
ception.
expert
In such
injuries apparent
eye,
epidur-
support
is essential
con-
al hematoma beneath Charlie’s skull at the
viction.
point
According
of fracture.
Hard-
Dr.
such
the absence of
tes-
[I]n
ing,
usually
such a hematoma
causes death
timony, any
deliberation
fairly rapidly unless treatment is received.
of death
have been
cause
would
base-
Harding
point
Dr.
plausi-
could
to no other
conjecture.”10
less
ble reason as
cause of death.
It was
*8
quoted passage
From this
ex-
Galauska
guess
his
autopsy
best
at the
of the
time
trapolates
experts
requiring
rule
medical
a
that the fracture and hematoma had caused
(footnotes omitted)
together
injuries,
10.
at
445-446.
with
to decide whether these
in-
of
a
after
the fact
death
few hours
their
11.
467 Moreover, motive, crimes did not is admissible to show a or defense counsel a death. larger plan conspiracy,15 Harding to or Dr. the cause in a limit cross-examine situations, diffi- ed number of is On facts have no of death. these we admissible on independent grounds, other g., could have culty holding in that the e. evidence beyond of convictions involving a reasonable doubt that the for crimes found dishon esty his .is caused admissible to show that a beating inflicted on Charlie witness’ testimony untrustworthy.16 is death. accepted “exception” One al III. lowing prior evidence of crimes involves RULING
THE EVIDENTIARY previous instances where is crime so nearly in identical method the trial court with the asserts error crime question in per indicates allow defense counsel the same refusing son committed both present particular assaults crimes.17 evidence of past. urges previous assaults made committed which Peter had “signature-crime” Peter fall under this to introduce evidence of attempted defense ex ception. probability agree all We must prior that in the trial assaults to show court, Galauska, however, Peter, had assaulted was nothing rather than there particularly unique either about Peter’s al Charlie. prior leged assaults or assault on Ar rule, of general As a evidence thur Charlie.18 case, predisposition (in character tending is admissible not violence) argues, alternatively, person an act con a committed show that that character evidence was admissible risk character.13 The of sistent with that probative here because its value not a criminal prejudice to a defendant countervailing vitiated of un factor or, distracting confusing or general, prejudice. In this assertion he is cor fair pro usually jury, outweighs debatable prejudice a cited as reason for rect—the such value of evidence.14 bative prej prior excluding evidence of crimes is say evi criminal defendant’s chances of This not to that such udice a is trial, any general interest always a fair dence should be excluded. Charac from a besmirched of witnesses protecting for number ter evidence is allowed reputation.19 Evidence of other reasons. different 351, State, 351, State, P.2d 357 451 P.2d 357 17. Nicholi v. 13. v. 451 See See Nicholi (Alaska 1969). ; 1969) P.2d Watson (Alaska 1963). 289, 293 alleged prior involved beat- assaults 18. Peter’s friend, family, slight probative ings and a of members of is of
14. evidence “Character very may prejudicial. com- to have been of were shown be It tends none which value and weapon his fists. than main other trier of fact from the mitted with to distract actually happened question on the of what of a is that 19. character offered “Where the permits subtly particular It occasion. cause, party person, third good man and trier of fact to reward policy exclusion ... reasons punish of their re- the bad man because inconsiderable; disappear or become seem to despite spective evi- what characters relevancy any hence, in the fact if is there actually happened.” case shows dence e., character, involved i. act some Miller, Wright [Proposed] A. Rules C. & upon probability trait which moral Magis- Evidence for Courts United States may light, well the character can throw 404, Advisory trates, at Committee’s Rule received.” (1973), quoting Tentative Recommenda- Note (3rd Wigmore, Evidence § J. Study Relating to the Uniform tion and Miller, Contra, Wright 1940). A.& ed. O Evidence, Law Revision Rules Cal. [proposed] Evidence for United Rules (1964). Comm’n, Rep., & Studies 404, 405, Magistrates, Rules States Courts McCormick, Law of Evidence C. provision appear (1973), make no which (1954). admitting under these character *9 26(f). Id., 331; circumstances. 16. at Alaska R.Crim.P. 468 ly. did, trial judge however, al low evidence of Peter’s violent character. THE ACCOMPLICE INSTRUCTION Defense permitted counsel was to ask the assigns error reversible police chief of (Peter’s of Ft. Yukon home refusal, trial upon court’s request, to in- town) reputation about Peter’s for vio jury struct an accomplice’s lence. Counsel also asked the chief for his mony is to be viewed with Alas- distrust. personal opinion of Peter’s character for ka 30(b) R.Crim.P. makes this instruction violence, upon based personal the chief’s mandatory “on proper all occasions.” The observations. questions To both the chief responds state that the instruction was im- police answered that Peter was known proper because there was be- no evidence tendency violence, have a toward partic fore the court it be in- from which could
ularly when drinking. anyone legal- ferred that Peter or else was accomplice. ly an agree. We
The trial court did not allow de legal fense According counsel to to well-established par introduce evidence of who, accomplice ticular authority, one assaults. We is conclude that 20 intent, aids, abets, court did knowingly not as abuse its discretion criminal lim participates sists or the crime for which iting character reputation evidence to charged.23 is the defendant opinion. Under compelling more facts we contention that Galauska’s might believe it have been advisable to al accomplice prongs. was an has His two particular low limited as to first line of attack is that Peter was ac In general only assaults.21 courts allow law, complice, thereby a matter of re reputation evidence in jury order to avoid quiring trial instruct court to case, confusion and distraction.22 this untrustworthy of an accom on the nature the trial court did not ruling err plice’s testimony.24 ar bases this allowing the attempt prove defendant to guilty plea Peter’s to an infor gument on specific assaults have would consumed trial charging manslaugh with the mation him time and confused the real issues with evi plea guilty ter This of Arthur Charlie. arguable probative dence weight. We course, was, of an admis and conviction find no error in the rulings trial court’s sion of that Peter had committed record subject. this charged.25 crime with which he was concerning 20. of a The decision trial court ly the rule confines the use of evidence admissibility of evidence are reviewable is, to cases which character kind only State, sense, abuse of discretion. Lewis v. de- in the strict issue and hence 689, (Alaska 1970). 469 P.2d 695 serving inquiry. searching of a When circumstantially character is used and hence Wigmore, 198, 21. 1 J. Evidence 676- Of. case, proof occupies a status (3rd lesser 1940) 77 ed. : only by reputation opinion.” .may be When the turbulent character of the de- Wright Miller, [Proposed] ceased, O. & Rules A. pi-osecution homicide, in a is Magis- Evidence for United States Courts relevant . . . is there no substantial (1973). trates, against evidencing Rule comment 37 reason the character particular quarrel- State, instances violent or 23. See Beavers v. may very Taylor conduct. 1971) ; State, some Such instances P.2d v. significant; (Alaska 1904). their number can be controlled discretion; the trial Court’s and the requesting 24. Galauska was prohibitory applicable considerations to an accomplice- court forward to accused’s . character . . have here lit- as-a-matter-of-law instruction. This instruc (footnote omitted) tle or no force.” specifically Anthony disapproved in tion was (Alaska 1974). P.2d proving “Of the three methods of character provided by rule, specific evidence of 25. We do not now decide such a whether convincing. instances of plea conduct is the most is conclusive evidence of commission possesses greatest proceeding At the same time the crime in a to which Peter capacity prejudice, confuse, party. to arouse surprise, Consequent- and to consume time.
469
was
charged with mur-
sufficient
him accomplice.
to make
an
Although
was
Galauska
der,
It is
supported the lesser-in-
true that Peter
in his
evidence
admitted
Thus, mony
manslaughter.
present
that he
of
was
at the scene of
cluded offense
out,
were
the crime
gave
both men
and
aid
points
to Galauska after
Galauska
However,
the beating
in the death
“charged”
manslaughter
Charlie.
in this
with
jurisdiction
is
necessarily
one
of Arthur
an ac-
Charlie.
complice merely
physically
because he is
contrast,
argues
that Peter
In
state
present at the scene of the crime and aided
separate
committed
crimes.
Galauska
in its
State,
Fajeriak
concealment.
v.
charg-
pled
guilty
Peter
information
(Alaska
P.2d 783
1968).
accomplice
The
assisting one
“aiding
him with
issue has been before this
court
number
Arthur
the said
Walter Galauska roll
of times.
have
We
held that under some
ravine and
a snow-covered
Charlie into
judge
circumstances the
required
trial
is
immediately
.
aft-
abandoning him
.
.
instruct on the issue as a matter of law.
Galauska severe-
witnessing
er
said Walter
State,
In
ly
strike the said Arthur
Mahle
(Alaska
beat and
Charlie
v.
P.2d 21
1962)
.
.
.’’In
undisputed
with a rifle .
about
read
revealed
indictment,
Clyde
was
that
participated
Ahern
breaking
in
by beating
open a safe
murdering
with
Charlie
which the
charged
defendant and oth-
ers
premises
a rifle. There-
had removed from the
him about the head with
contends,
fore,
Anchorage.
store
the state
Galaus- Sears Roebuck
We
held
as matter
charged with the same crimi-
of law Ahern
ka were not
was
acts,
accomplices. accomplice
larceny
not be
nal
and could
crime
analysis.
jury.
The
was error not to so
It
agree
instruct the
We
with
State,
guilty of was
was
held Daniels v.
Charlie. The sub- ject to such an inference at the time that jury, case was submitted which temporal
is the frame within which the re- quested instruction must be considered. instructed, should have been suggested the same manner that we in An- thony, found Peter to be an accomplice, should be dis- trusted. I would hold that was reversi-
ble give requested error not to instruc- required by
tion as rule. our *13 DONLUN, Appellant,
Robert Alaska, Appellee. STATE of No. 2188. Supreme Court of Alaska. 21,
Oct. Soil,
Herbert Defender, D. Public Lawr- Kulik, Defender, ence Asst. Public An- J. chorage, appellant. Gorsuch, Atty. Gen., Norman C. Juneau, Joseph Balfe, Atty., Stephen D. Dist. G. Dunning, Atty., Asst. Dist. Anchorage, for appellee. RABINOWITZ,
Before Justice, Chief CONNOR, ERWIN, BOOCHEVER FITZGERALD, Justices.
OPINION
ERWIN, Justice.
On October appellant, Robert Donlun, was indicted1 for the offense of burglary a dwelling in violation of AS charged 1256, entering 1.The Apartments, breaking indictment : S & S day August, being That on or about the 5th with the intent to steal there- Anchorage, at or near in the Third Ju- in. District, Alaska, contrary dicial State of Robert Dun- All of which is to and in vio- unlawfully feloniously lum against did peace break lation of AS 11.20.080and dwelling house, dignity and enter a to-wit: the resi- State of Alaska. Bldg. Apt. dence of Ina Arnold located at