541 P.2d 68 | Mont. | 1975
delivered the Opinion of the Court.
This is an appeal from a jury verdict, entered in the district court, Choteau County, finding defendant guilty of burglary in the first degree.
The defendant was charged with burglarizing a drug store in Big Sandy, Montana on October 12, 1973. Briefly, the facts.
The issue presented to this Court is whether sufficient evidence was presented at trial to support a jury verdict of guilty of burglary in the first degree.
The pertinent portions of the Montana criminal statutes in effect at the time of the burglary are:
Section 94-901, B.C.M.1947
“Burglary defined. Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill barn, stable, outhouse, or other building, tent, motor vehicle and aircraft,
Section 94-902, B.C.M.1947
“Degrees of burglary. Every burglary committed in the nighttime is burglary in the first degree, and every burglary committed in the daytime is burglary in the second degree.”
Section 94-905, B.C.M.1947
“Nighttime defined. The phrase ‘nighttime,’ as used in this chapter, means the period between sunset and sunrise.”
Entry in the nighttime with felonious intent is an essential element of burglary in the first degree. State v. Copenhaver, 35 Mont. 342, 89 P. 61. This Court in State v. Solis, 163 Mont. 293, 295, 516 P.2d 1157, 1158, has recently stated:
“Commission of a burglary is predicated upon the ‘entry’’ with the requisite felonious intent. Hence, the burglary occurs at the time of the entry upon the premises.”
In order to establish entry in the nighttime, substantial evidence must be presented by the State establishing the time when such entry occurred. State v. Fitzpatrick, 125 Mont. 448, 239 P.2d 529.
The only witness presented by the State who might have testified as to the time of entry was the owner of the drug store. He testified that he had not been in his store the afternoon of the burglary, and was in fact in Havre that afternoon, returning to Big Sandy around 11:00 p.m. that night. There was no testimony presented as to what time the store closed on October 12, 1973, nor as to what time any employees locked up the store on that day, nor as to when the stolen merchandise was last seen in the store. No witness for the State testified as to the time of sunset on October 12, 1973, so as to set a time after which the requisite nighttime entry might happen.
The State admits the evidence of nighttime entry introduced at trial was circumstantial and required the jury to infer that the requisite nighttime entry had occurred. The jury was left to rely on those facts which exist in the minds of all jurors
As this Court said in Fitzpatrick, at page 452, 239 P.2d at page 531:
“Not only was there no substantial evidence to prove when the burglary occurred, but there was a total failure on the part of the state to prove such burglary was committed in the nighttime. This being so, the state failed to prove one of the essential elements of the crime, as charged in the information, and the judgment of conviction cannot stand.”
The judgment is reversed and the cause is remanded to the district court with directions to dismiss the information.