*1 MONTANA, Respondent, STATE OF Plaintiff v. Appellant. SUNDAY, ANDREW C. Defendant No. 14591. 14, 1980. Submitted Jan. 27, Decided March 1980.
Dissenting Opinion May
1980.
A. Michael pellant. Larson, Gen., Helena, argued, Richard A.
Mike Greely, Atty. Gen., Helena, argued, County Graveley, Charles A. Asst. Atty. Helena, and respondent. for plaintiff Atty., *4 of the the Court. delivered opinion MR. SHEEHY JUSTICE entered in from convictions Sunday appeals Andrew C. District, Court, County, Lewis Clark First District Judicial homicide, theft, deliberate charges violation of 45-5-102, 45-6-301, sections MCA, 45-6-204 and respectively. came to Montana Sunday in early 1977 with September James Wilson, Donna Mitchell and Mitchell’s three old year daughter. On 4, 1977, September their car at a they stopped rest area on High- 200, east Lincoln, way continental divide near Montana. Desiring from “get land”, all the hassles” and away “live off the they packed and walked into up supplies the wilderness along continental divide.
It soon became So, could not apparent far on foot. they go in the 5, 1977, hours of early morning September and Wilson Sunday took three horses from the resort Evergreen owned and operated by Kenneth and Marion McLean. broke into a Additionally, tack they shed which was used for horse tack used in storing the McLeans’ business. horse-renting took three They saddles and three bridles. The tack shed was feet eight feet and was by twenty made out of lumber. rough It contained no facilities. living Wilson and Sunday, the Mitchells the next two spent days riding the horses along continental divide. On the afternoon of 6, 1977, September saw a they truck pickup rapidly approaching. tried to They into the escape trees but were cut off pickup. was driven pickup Kenneth McLean. His wife was also in Kenneth pickup. McLean about stopped pickup sixty-five feet from Wilson and Sunday, the Mitchells.
Kenneth McLean out of got a .308 caliber pickup carrying bolt action revolver. His wife out got a .38 carrying caliber revolver. Sunday dismounted from his horse a 30.30 holding caliber rifle. Wilson testified asked Wilson if he wanted privilege the McLeans. Wilson shooting had a 22.250 caliber rifle, bolt action and Mitchell had a .410 shot gauge shot- single gun. said,
As Kenneth McLean he approached, “What the damn God horses, hell is on? going What kind of is this? Give us our prank added, we will shoot Mrs. McLean you.” “Your God damn right threat, we will.” after his Immediately McLean the bolt operated *5 According Sun- cartridge. to his and inserted mechanism gun at Wilson directly Sunday. pointed gun Kenneth McLean day, was at the ground. the gun pointed and testified Mitchell in the shot Kenneth McLean followed. Sunday A shooting spree Then, shooting Sunday. Sunday McLean began Marion leg. and her abdomen McLean in the fire Marion hitting returned Noticing Marion McLean. area. next Sunday approached thoracic turned and fired rise from the ground, Sunday McLean Kenneth Meanwhile, Wilson who was two fatal shots at Kenneth McLean. McLean rise. noticed Marion Kenneth McLean approaching in the head her killing instantly. shot McLean Wilson Marion $25 then took from Kenneth wallet. Wilson McLean’s Sunday $100 took from Wilson Marion McLean. approximately Sunday, and and left the Mitchell the McLeans’ area in picked up weapons the McLeans’ arrested in were pickup. They eventually Oregon. in- 1977, an amended 26, was charged Sunday
On September homicide, two counts counts of deliberate formation with two and one count of burglary. theft 1977, on of his intent to self- rely October notice gave In Sunday 9, 1978, for a of venue. change defense. On moved Sunday January 12, 1978, on the ground any pos- The motion was denied April at this sible prejudice “speculation point.” 6, 1978, On moved for conduct indi- July Sunday permission denied, vidual voir dire The motion was prospective jurors. but the District said Court the motion be renewed might during voir dire if renewed the motion voir dire necessary. during Sunday with to one Mrs. Garrett. The District respect prospective juror, Court denied the motion it would again guide Mrs. Garrett. saying without Mrs. Garrett Sunday passed panel challenging Later, cause. both the exercised all of their eight State preemptory challenges. guilty was rendered finding Sunday verdict
In July total of 240 years to a sentenced of all the charges. Sunday the state penitentiary. eleven issues for review. These issues
Sunday presents may as follows: grouped
1. Whether it was error to motions for deny Sunday’s change venue and individual voir dire of jurors;
2. Whether the State failed to the crimes prove charged against Sunday;
3. Whether the District Court failed instruct the properly jury;
4. Whether the sentences on were imposed erroneous. Sunday Voir Dire. of Venue and Individual ISSUE NO. L Change motions for of change was error to his deny contends it Sunday merit. dire. contention is without venue and individual voir The of or a motion for in of a motion for venue A denial change a of an abuse showing voir dire will be reversed upon dividual only 339, (1971), 480 156 Mont. P.2d 822. of discretion. State v. Olson has not made such showing. Sunday affiant’s on more than an must be based A of venue change The of pretrial publicity. and the mere fact opinions unsupported undue preju as to excite must be so passionate accounts published to have dice, it for the accused of rendering impossible to the extent 40, (1967), Mont. 150 State v. Corliss free from prejudice. jury 632, 49, 637. 430 P.2d of venue was not adequately motion for change
Sunday’s of affidavit single motion was supported by The supported. believed stated defense counsel Sun defense counsel. The affidavit not a fair trial due inflammatory county-wide could receive day of the evidence by any The affidavit unsupported publicity. Also, Sunday nature of publications. number inflammatory time during of venue his motion for change never renewed or after selection. his motion for in support also did adequately
Sunday of the the extent never demonstrated dividual voir dire. Sunday it had any nature or whether its inflammatory publicity, pretrial Moreover, Sunday jurors. on the prospective effect prejudicial
299 Garrett, Mrs. the main panel, including object passed concern, potential juror without Sunday’s challenging any See, cause due bias or section prejudice. 46-16-304(2)(j), MCA. NO. Failure to ISSUE 2: Prove Crimes Charged. maintains failed to committed State prove Sunday since the tack is not an structure” as re-
burglary shed “occupied 45-6-204, section MCA. quired by is the intent construction of statutory
A fundamental rule (1979), Helena 180 v. East controls. Dodd City the legislature intent, this 518, 241, legislative In construing P.2d 243. Mont. import to the fair according statutes construes criminal Court and to justice. their object promote a view to effect their terms with 25, 28, (1976), 554 P.2d 744. Mont. Shannon State v. was to prohibit statute wrongful intent threat to was most into those where the places people intrusions Thus, Shannon, in defining “occupied State v. alarming. supra. structure”, the chance included those where places the legislature suitable was most in those likely, places of human confrontation “for carrying “for human occupancy night lodging” 45-2-101(34), MCA. business.” Section *7 for carry shed a structure suitable McLeans’ tack The McLeans and was so used the McLeans. by business
ing part tack was an integral a rental business. Horse horse operated business, shed. tack was stored in tack More and horse over, Evergreen and Resort would both the guests employees and at hours. the shed frequently irregular enter V Count of the amended charged information Sunday truck, (2) (1) with the theft of a a 1966 International felony pickup rifle, (3) (4) a .308 caliber caliber and .38 Smith Wesson pistol, holster, and, (5) $150 gunbelt and in cash. contends Sunday failed V value of listed in count ex personalty State prove 45-6-301, MCA, $150 ceeded as is the theft required section statute. We agree. statute,
Under our theft felony the State must prove beyond reasonable doubt that the value of the personalty taken allegedly trial, exceeds $150. At the only value testimony Sun- given by day Mitchell and related to the amount of cash taken from the McLeans. $20 testified he Sunday $25 took from Kenneth Mc- Lean’s wallet. Mitchell testified Wilson $100 took about from Marion McLean’s purse.
The State asserts Sunday waived any objection to the State’s failure to prove value by not raising the issueprior to the en try the judgment of conviction. The State’s assertion is without here, merit. Under the facts value is an essential element of the crime charged, and such an error be raised at may any time.
The State next asks this Court to take judicial notice of the fact that the aggregate value of the involved here personalty than greater $150. We will not do this. 201(b), M.R.Evid.,
Rule sets forth the kinds of facts which may noticed. That judicially provision reads as follows: “. . . A fact to be noticed judicially must be one not subject to (1) reasonable dispute that it is either known generally within the territorial jurisdiction (2) of the trial court or of ac- capable curate and ready determination resort to sources whose ac- curacy cannot be reasonably questioned.”
We will not go beyond scope provision take judi- cial notice a basic element of the crime charged otherwise proved.
It is also that the noteworthy was not jury instructed as properly to value. None of the instructions concerning theft men- felony tioned that a $ value than greater 150 is for a necessary theft felony Thus, conviction. reached its decision on the theft felony charge without even considering fundamental element of the crime We will not charged. presume knew about this ele- ment of theft. next the deliberate homi- contends the convictions for the evi-
cides of Kenneth and McLean are not supported by Marion the evidence estab- dence. More maintains specifically, Sunday *8 most, lishes the homicides were could be justified, Sunday convicted of deliberate homicide. mitigated
Whether Sunday justified killing McLeans and whether acted under Sunday extreme emotional distress were (1978), of fact for questions the jury. State v. Larson 175 Mont. 395, 266, 574 P.2d 269. will Upon appeal, Court not substitute its for that of judgment if the verdict supported by substantial evidence. The evidence must be viewed in most light (1978), favorable to 215, the State. McGuinn v. State 177 Mont. 581 P.2d 419.
The verdicts of deliberate homicide are supported by substantial evidence which if believed would result in by convictions for deliberate homicide. Both Wilson and Mitchell testified did Kenneth McLean his rifle at In addi point Sunday. tion, Wilson testified asked Wilson if he Sunday wanted the privi lege the McLeans. own cor shooting Sunday’s testimony roborates the sequence events as described Wilson and Mit by chell. also contends
Sunday the evidence shows clearly Wilson’s actions were the sole cause of Marion intervening McLean’s death. Therefore, it was according Sunday, error to submit count II of information, the amended the deliberate homicide of Marion McLean, to the We do jury. not agree. thoracic area. in her abdomen and shot McLean Marion
Sunday thereafter, in the head kill- Wilson shot McLean Marion Shorthly the wound inflicted by testified her A ing instantly. pathologist minutes death within would have caused Marion McLean’s Sunday shot Wilson. had she not been human life law of homicide is protect end
The principal ad- death. The evidence which can cause behavior by preventing conduct which engaged at trial shows duced clearly Moreover, Sunday’s death of a human being. to cause the likely struck had been if Marion McLean would be different situation Wilson. shot in the head by rather than a bolt of lightning ISSUE NO. 3: Instructional Error.
Court’s instruction no. 16 reads as follows: “You are instructed that a criminal homicide is deliberate homi- cide if:
“(1) It is committed or or purposely knowingly; “(2) isIt committed while the offender is engaged after flight or to committing commit or attempting other burglary any which involves the or use threat of force or physical violence against individual.” contends it was to
Sunday error the second of give the in- part struction concerning rule. to According Sunday, he was not rule, under the charged there are facts rule, supporting the application and even assuming proof act, a felonious there was no of a connection showing between it and the McLeans’ death. evidence is without merit. The contention
Sunday’s death while in flight that caused McLeans’ Sunday establishes instruction no. 16 para a Court’s burglary. after committing 45-5-102, MCA, deliberate the statute defining section phrases homicides com covers criminal homicide. That statute specifically The connection committing while in after flight burglary. mitted death was de act and the McLean’s felonious between Sunday’s v. Almeida As was stated in Commonwealth cided jury. 595, 596, (1949), 68 A.2d 611-612: 362 Pa. holding doubt about the ‘justice’ . . There can be no
“. who in a engages robbery in the first degree felon of murder guilty action defense forces calls into inevitably thereby him, in the death of a of which forces result the activity against human being.” trial, the State did require Sunday
Additionally,
was follow
of deliberate homicide
State
which theory
specify
on the
no. 16
to the court’s instruction
did Sunday object
Nor
ing.
not reverse the
will
now asserted
This Court
upon appeal.
grounds
not raised at
on grounds
on the instructions
rulings
District Court’s
(1965),
State v. Campbell
instruction
proposed.
the time the
987.
P.2d
Sunday this regard, of self-defense.In on the instructed affirmative defense (1) self- failed explain instructions asserts court’s of appearances in light of fear concept judged defense as to retreat. (2) had no duty failed explain Sunday issue, out the rele will first set we considering In person A of self-defense. law to the concept vant applicable bodily to cause death serious likely use of force in the justified necessary force is believes such reasonably if he harm only to himself or harm bodily death or serious imminent prevent felony. of a forcible Section the commission another or prevent 45-3-102, ap is to be terms judged MCA. Self-defense per as reasonable perceived, which the defendant parent danger *10 son, him. confronting in the danger actually rather than terms of reasonable, be but in of force must necessity using The belief (1978), State v. Reiner even a mistaken belief reasonable. may 950, 239, defendant stand his may 587 P.2d 956. A 179 Mont. of danger he believes he is in imminent even if ground reasonably 528, (1964), 391 harm. State v. Porter 143 Mont. great bodily See P.2d 704. to the conveyed cannot if these were concepts
Sunday complain so, If Sun- the District of its instructions. jury by body Court of his defense theory day given ample opportunity present 36, (1978), 582 v. Collins 178 Mont. P.2d 1179. We State jury. is such the case here. find
The was a of fear to concept instructed self-defense jury of even if those were light appearances be judged appearances and false. instructions no. 27 31 directed con- jury Court’s him was sider whether believed” force Sunday “reasonably do not that reasonable belief must These instructions necessary. say the danger actually be founded subjective appearances upon Reiner, instructions, Similarly, State v. confronting Sunday. supra. 31, state the law general instructions no. 27 which like court’s rule. State cover Montana’s “no retreat” adequately of self-defense Porter, supra. v.
District Court’s instruction no. 28 instructed the that Sun- had day the burden of producing sufficient evidence to raise a reasonable doubt of his guilt in order to avail of himself the affirm- ative of defense self-defense.Sunday maintains it was error to give this instruction. We do not agree. contends
Sunday the instruction is misleading confus when with ing compared court’s instruction no. 17 in which structed the that the State had the burden of of lack proving justification. is barred from Sunday as a asserting upon appeal ground reversible error. This was his ground objection at trial. State v. Campbell, supra. next asserts that
Sunday court’s instruction is an no. 28 incorrect statement of the law. The assertion is without merit. Montana,
In the defendant must some evidence of present self-defensein order to raise as an it issue unless the State’s evidence (1979), self-defensein issue. State puts v. 180 Mont. Cooper P.2d 133. trial, Mitchell, State,
At Wilson and both witnesses for the testi- fied Kenneth McLean did not his point gun Sunday. Wilson also testified that asked Wilson if he wanted the Sunday privilege the McLeans. shooting did not raise the State issue of self- defense by showing circumstances totality surrounding the homicides including evidence which negates application self-defense.
Finally, contends court’s instruction no. 28 un shifted the constitutionally burden self-defense to proving Sun It not. The justification did absence of *11 day. element of homicide, deliberate lack of proving justification does not to serve facts which the negate any prove State must beyond a reasonable doubt in order to a support conviction deliberate (1977), 197, homicide. Patterson v. New York 432 97 S.Ct. U.S. 2319, 281; 53 L.Ed.2d State v. Cooper, supra.
Court’s instruction no. 22 reads:
“You are instructed that or are manifested purpose knowledge circumstances connected with offense. or know- Purpose
305 evidence, need not be direct but be inferred ledge proved by may acts, from conduct and circumstances in evidence.” appearing 23, instruction no. this instruction and court’s maintains Sunday that a intends the person that the law presumes “You are instructed acts”, are reversible error of his consequences voluntary ordinary 510, 2450, (1979), v. Montana 442 U.S. S.Ct. under Sandstrom 39. We do not agree. 61 L.Ed.2d It inference. no. 22 is permissive instruction
Court’s from ultimate facts allows, infer jury does not require, but v. Cty. Court Ulster County the State. facts adduced basic 2224, 156, 2213, 140, (1979), 60 L.Ed.2d 99 S.Ct. 442 U.S. Allen 68, (1979), 1000. 792; Mont. 605 P.2d v. Coleman State involved, is must Sunday inference Since permissive to him. must of the inference as applied Sunday show the invalidity the facts of this cause for the no rational under way show there is then the inference. permitted by Only to make the connection jury will use the inference rational jury is there risk the presumptively Court County an erroneous factual determination. make Allen, not carried his burden upon has supra. Sunday Ulster v. Cty. appeal. court’s instruction it was not error prejudicial give
Similarly, were submitted to no. 23. The homicide charges against Sunday or as a as a deliberate homicide felony- disjunctive, Montana, v. is supra, murder case. either Sandstrom theory, Under not controlling. is committed homicide if it of deliberate
A person guilty 45-5-102, A person MCA. Section “knowingly.” “purposely” ob is his conscious offense if it acts with regard “purposely” (2) as the offense (1) that conduct defined engage ject 45-2-101(52), MCA. Ap is the offense. cause a result which Section cause, if the found to this this definition of purpose plying himself conducted to kill or consciously consciously sought conduct, of intent the elements a death as a result of his to cause Thus, is shown. once purpose are in his conduct and act merged *12 306 code, the
under the criminal that defendant acted proof “purpose- 45-2-102, is that he sufficient acted Section ly” proof “knowingly”. MCA. to is shown with
A have acted person “knowingly” respect to deliberate homicide of two upon proof either mental elements: (1) offense; when he is aware of his conduct which constitutes or, (2) when he is aware that is that a death of a it highly probable human will be his being the result of conduct. Section 45-2-101(27), Coleman, we MCA. As noted in State v. 605 P.2d 2242, 36 at it his is his awareness either of conduct St.Rep. the or result of his conduct must be probable proved highly doubt his as a reasonable establish men beyond “knowledge” tal element of the crime. But we if is shown repeat, purpose beyond doubt, a reasonable established under the knowledge thereby code.
Therefore, terms, the burden of the State here simplest under the of deliberate homicide was charge prove Sunday by act caused the death of a human while voluntary being having mental state described as or Those are “purposely” “knowingly”. of a material elements deliberate homicide under Montana Criminal Code 1973.
Here, that Sunday a reasonable doubt beyond the State proved he the first shot testified fired shot McLeans. Sunday purposely fact, was not shown Kenneth at McLean. In it Kenneth True, contends he acted pur- fired a shot. McLean even However, himself. that he was in defending but justified posely admission, conscious shoot object it was Sunday’s own Sunday’s 45-2-101(52), that result. Section MCA. cause McLeans Therefore, as an issue of never called decide upon cause knowingly acted fact whether Sunday purposely that. own admitted testimony being. Sunday’s death a human Rather, act was purposeful whether Sunday’s the issue became 45-3-102, force, MCA. self-defense. Section use justified was therefore Sun superfluous. instruction no. Court’s harm. grave bodily his conduct to do McLeans intended day ob- of his acts. The voluntary was the ordinary consequence That the cause to a material issue in not relate to instruction did jected most, not cause for rever- and, error is was harmless error. Such 46-20-701, MCA. sal. Section *13 of the Court conflicting opinion are aware of the apparently
We issue, instruction is in- an and the Sandstrom self-defenseis where 1363, (D.Ga.1979), volved, 474 F.Supp. v. McElroy in Holloway We find in this is not explained. rationale of Court 1368. The act, but claims the pur- admits purposeful case self-defense act was poseful justified. error
Likewise, was not prejudicial instruction no. 23 court’s to the submitted jury. theory the felony-murder under in the definition rule is embodied The felony-murder of 1973. Sec Criminal Code homicide in the Montana deliberate 45-5-102, not an element under as such is Intent tion MCA. rule. of the com- following proof statute requires The felony-murder of elements: bination here; burglary intent commit felony,
1. The the attempt, perpetration death caused by 2. An unintentional felon; of a or attempted escape itself and of the felony death must be outgrowth
3. The chain of causation. an unbroken related to the burglary by (1978), Bassiouni, 251. Criminal Law Substantive the charge we affirmed in this opinion, Earlier was proven to' commit the burglary His intent Sunday. against Therefore, “pur admissions. own Sunday’s evidence and by direct was no Intent was established. of that crime as an element pose” it was shown statute once the under an issue longer and Sunday a burglary committed that Sunday the evidence commission after the while in flight McLeans killed the rise to which gave the burglary commission of was the It burglary. deaths. invited the McLeans which circumstances dangerous in- supplied a sufficiently the burglary to commit The intent 308
tent for all the consequences the homicides there- including arising Bassiouni, from. at 247. supra, here,
If the the court’s in- jury applied felony-murder theory struction no. 23 because the had no issue of superfluous intent to decide. Intent was not an element of the deliberate homi- cides, and intent was not an issue before the The instruction jury. played as to the part deliberations deliberate homi- jury’s cides. 4:
ISSUE NO. Sentences. convictions, his was sentenced to serve 100 Upon Sunday years homicide, for each count of deliberate for theft each count years and 20 for are to The terms be served consecu- years burglary. total, tively, years ineligible parole parti- in the cipation work furlough program.
Wilson to two pleaded counts deliberate homicide and guilty to two counts of theft. He received sentence of 100 for each years deliberate homicide count and 10 on each theft count. The years *14 sentences are be served and while the at- concurrently, county will not torney recommend he will not parole, fight Wilson’s parole. not have the contends the District Court did authority
Sunday sentences, As for the-other a 20 sentence for year burglary. impose when com- asserts are unconscionable and unjustified Sunday they Wilson who was equally guilty. to the sentences received by pared n not have the authority did We the District Court agree statute, the maximum for burglary. By to 20 years sentence Sunday state in the penitentiary. for 10 burglary years sentence possible 46-20-703, 45-6-204, under section Accordingly, MCA. Section in the MCA, 10 years sentence for burglary reduce Sunday’s we to re of the sentence the other provisions with state penitentiary unchanged. main 46-20-703, MCA,
Likewise, we reverse also under section theft conviction for felony received his upon sentence year failed V the amended information. The State as in count of charged V theft in count that the an essential element felony prove $ in value. taken exceeded 150 property to the terms of the other sentences imposed
With regard did not abuse its discre we find the District Court upon Sunday, sentences are within the maximum allowed by tion. All the other sentence, the other law for each offense. Similarly, provisions work also under the and no are parole furlough, proper appli 46-18-202, The District deter cable statute. Section MCA. Court mined that the restrictions were necessary protection record, his because extensive criminal society Sunday’s uncaring attitude and the malevolent in which he killed the McLeans. way
This will not second the trial who after ob- guess Court judge, defendant, the demeanor and attitude of the uses his discre- serving (1978), 412, 176 Mont. in Matter punishment. tion fixing of Jones 578 P.2d 1155. conviction for theft as charged
Accordingly, Sunday’s felony V count of the amended information and the sentence imposed count V theft is dismissed. charge thereon are reversed. The in the sentence for is reduced ten burglary years The twenty year conditions laid down state to be served under the other penitentiary is otherwise af- conviction District Court. The other convictions and the sentences imposed firmed. Sunday’s thereon are affirmed.
MR. HASWELL DALY CHIEF JUSTICES JUSTICE HARRISON concur.
MR. SHEA dissents and will file written later. dissent JUSTICE dissenting: MR. SHEA JUSTICE reasons,
a For number of instruction given Hence, case was would the homicide con- I reverse improper. *15 moreover, victions and order a new trial. I would reverse and was not an dismiss the conviction because the tack shed structure” within the of the statute. With rela- meaning “occupied to reach the same result tion count III of the theft I would charges, as
there was reached the to V of the relation count by majority theft charges, and each theft thereby dismissing charge reversing for failure to and instruct an essential element. prove upon AND CHARGES THE
THE FELONY-THEFT MAJORITY
DISPOSITION
Defendant was with two counts theft—counts charged and V. III III theft of taken from charged property Count personal rifles, the two McLean ranch. This included theft of three charge and horses. V shotguns, three Count theft of charged personal prop- after the commission the homicides. included erty charge This truck, rifle, $ theft of a and woman’s pickup pistol, purse, stated, As has in cash. the there was no direct evidence majority on the value of items and the trial failed presented totally court to instruct that an element of offense. value is V, this count
In defendant attacked only contending appeal, contention, value not In relation this the majority proved. held value is an essential element of the offense of theft not it is an that this Court will take notice value because judicial essential this element be With I proved. agree. Accordingly, V the conviction on count and ordered majority reversed understand, With this dismissed. I also I fail charge agree. however, basis, same not also order did majority why, reversal conviction on count III. The and dismissal the theft count, value same law to each and the State failed prove applies and the was not value was an element instructed the essential How, these to be with relation each count of theft. under proved circumstances, V be on count can a reversal and dismissal ordered Although affirmance be ordered with relation count III? III, relation to count defendant did raise issue with Court, doctrine, error can the same result under the reach plain V. as it with to count with relation to count III has reached relation is an element rationale that value essential Based on the majority doubt, and a reasonable of the which must proved beyond crime in- of the items that we not take notice value judicial will *16 311 conviction, reverse and would also I in order uphold volved count III. theft conviction under dismiss the AN OCCUPIED WAS NOT TACK SHED BURGLARY—THE OF THE BURGLARY MEANING WITHIN THE STRUCTURE STATUTE rule has ap- reasons why felony-murder are several
There starter, shed was the tack of this case. As to the facts plication statute. of the burglary the meaning an structure within occupied however, that the under- declares since the majority Obviously, is it burglary, rule of the felony-murder for application lying felony an struc- shed be occupied that it declare tack is necessary here, rule as applied ture. this holding, Absent house of cards. major- down like a Thus would come tumbling tack stone here. declaring two birds with one By has killed ity structure, has affirmed the underlying an it shed occupied conviction, for application and also set stage burglary of what happens is a clear demonstration rule. This or ex- law is created is result oriented—the when an court appellate facts. fit the panded MCA, statute, 45-6-204(1), that: provides section
The burglary if he enters knowingly the offense of burglary commits person “[A] structure with purpose or remains unlawfully occupied added.) court in- The trial therein.” (Emphasis commit an offense elements for the crime one of the essential structed the that jury doubt is that a reasonable must be proved beyond which structure.” have been an “occupied the structure involved must 13, court told the (Instructions 13.) the trial instruction By must be two elements which the first know- “that the defendant doubt is a reasonable proved beyond an oc- within or remained unlawfully entered unlawfully ingly for the was also defined structure” structure.” “Occupied cupied in section contained (instruction definition the statutory 45-2-101(34): build- means structure” are “occupied
“You instructed or vehicle, night occupancy human or other suited place ing, for lodging persons on business carrying whether or not a per- son is actually Each unit of a present. building of two or consisting more units secured or separately is a occupied separate occupied added.) structure.” (Emphasis has seized majority upon emphasis of this in- language
struction and declared that the tack shed is “suited ... for carrying on business.” The tack shed here is feet feet and eighty twenty made out of lumber. rough Inside the shed there are nails and pegs *17 tack, for horse but hanging there are no facilities. living The tack shed was used for horse exclusively storing tack. to the tack Entry shed was made in the very early hours of morning Sunday, Septem- ber 1977. There were human then inside beings the tack shed. that The declaration the tack shed was suitable for on carrying commission, business of the intent the criminal law goes beyond which, course, drafted the statutes involved before were they to the The Revised presented legislature. Criminal Law Commis- sion Comment states:
“The core of common law concept burglary breaking a house at with intent to commit a entering dwelling night therein. the offense has until under scope enlarged prevail- law, alone, the offense be committed time ing may by entry day ” structure, as well as or ‘vehicle.’ by night, any building, code, “In this to in- structure’ ‘occupied narrowly defined clude can or and where where live work intru- buildings people sions are most For alarming dangerous. example, defini- barns, or tion does not include abandoned unsuited buildings for human the case of a for In mine ship, example, occupancy. would fitness have re- occupancy proved. ‘Entering is a which takes a middle be- maining ground unlawfully’ concept tween law which a and its prevailing requires breaking complete added.) elimination in some modern legislation.” (Emphasis There is in the record indicate con- nothing legislative any struction it the Criminal Law Commission. given beyond however, here, has its decision this Court declared By venture, of whether or barn into which human may regardless is, within the of the meaning burglary it is then occupied, statute, an structure. is an unwarranted ex- statutory This occupied tension. case, trial of this defense counsel moved dismiss the
Before the shed was not an struc- because the tack burglary charge occupied ture within the of the statute. The meaning burglary prosecutor resisted dismissal of the and the defense charge vigorously burglary fac- motion denied. Thus the case went trial with defendant Neither he nor defense counsel had the ing charge. burglary dream, however, wildest that as a result of this burglary charge, would another of homicide into the prosecution inject theory case instruction the end the case. by offering felony-murder was not an
Because the tack shed structure within the occupied statute, conviction must be meaning burglary reversed and dismissed. INSTRUCTION FELONY-MURDER
IN PERMITTING THE CASE, THE OF THIS UNDER THE FACTS TO STAND MAJOR- OF RULES SOME FUNDAMENTAL ITY HAS IGNORED PROCEDURE CRIMINAL require- is the fundamental to a of
Vital change a conviction if the prosecution expects ment that it be charged *18 is with felony-murder was not charged that Defendant theory. —it or know- with “purposely in count I charged that He simple. McLean, in count II and he was charged L. Kenneth killing ingly” McLean. or Marion knowingly” killing with “purposely 45-5-102, MCA) (section reads deliberate homicide statute as follows: 45-5-103(1), homicide consti- criminal
“(1) as Except provided if: deliberate homicide tutes or
“(a) knowingly; or it is committed purposely “(b) is it committed while the is in or is an ac- offender engaged of, commit, an or after the commission complice attempt flight or to commit sexual intercourse committing robbery, attempting consent, arson, or without felonious kidnapping, escape, burglary, other which any felony involves the use or threat or physical force or added.) violence against any individual.” (Emphasis theBy statute, clear of the wording deliberate homicide can be committed in either of (l)(a), two Under ways. subsection by “pur- or posely knowingly” killing (l)(b), victim. Under subsection an committing underlying which felony triggers of the application State, however, murder felony rule. The did not charge defend- ant under both theories. McLean,
Count I related to the killing Kenneth L. and the of the charging information part the defendant: alleged HOMICIDE, “. . . committed the offense of DELIBERATE in that caused the death purposely knowingly [he] Lemul (Em- Kenneth McLean him with a firearm . . by shooting .” added.) phasis
And count II related to the death of Marion McLean. The charg- ing the information part the defendant: alleged HOMICIDE, “. . . committed the offense of DELIBERATE in that caused the death of felony, purposely knowingly [he] MARION McLEAN her with a firearm ...” by shooting (Emphasis added.)
Needless these do not facts which would say charges allege invocation rule. Nor is there indi- permit cation that the would on the charges prosecuter rely felony- murder rule as an alternative of his case. Defendant theory pleaded II, counts I and he went trial on those guilty defending as and the trial itself was conducted the basis charges specified, of those is unfair to add an additional charges. It fundamentally at the end of the trial an instruction theory by offering containing rule. That is what the did in precisely prosecutor this case.
PROCEDURAL ERROR IN PERMITTING THE FELONY- MURDER INSTRUCTION TO STAND basis for
Assuming evidentiary application felony- rule, murder there no doubt that the State had the right charge *19 on alternative to the go jury the defendant alternatively 46-11-404(1), in part: MCA or provides theories. Section charges statements of . . . different . . . . . . may charge “An information . . . The . . counts prosecution the same offense . under separate or counts set the offenses not to elect between different required ...” forth in the . . . information therefore, clear, but one of- that there would be although
It is could have fense in the death each person, relation under the “purposely returned a verdict defendant finding guilty or under theory, or under theory knowingly” both theories. had no present issue here is the State right
But crucial to the inform- charges initially both theories in absence both If the that he was under theories. charged defendant ing to amend the before trial and include State desired information to do had the so. In right alternative count it felony-murder, fact, 46-11-403, MCA, sets section entitled Amending Charge, no effort forth the an information. But amending procedure trial, or for that was ever to amend the before charges made matter, at time. 46-11-404(1) and
With the of sections statutory background MCA, mind, 46-11-403, fail to how a I see possible felony- murder can be based not in the upon theory charged conviction information. counsel at no indication in the record of defense why
There is defendant in- trial to catch the new theory failed sprung rule addition to the struction forth the setting killed that defendant charge knowingly” “purposely on the defendant represent appeal McLeans. Trial counsel did (the after the conviction in of this case reason sometime being case, who tried this went work for the prosecutor he county nonetheless, case). to the that his failure object felony- It appears, instruction, objection was inadvertent. His murder portion of other instructions to the that it instruction repetitious and the elements deliberate homicide defining already *20 It was proved. indeed but repetitious; it went one step this beyond and the injected felony-murder into theory this case for the first time. It is fundamentally unfair that the can prosecutor be re- warded for his deliberate of a new injection issue and into theory the instructions, trial the upon settlement of in total violation of the procedural rules the governing of an charging offense. should Why a defendant be punished because the has prosecutor violated the basic procedural statutes his conduct as governing a prosecutor?
The majority’s rationale for the permitting in- felony-murder struction and possible stand, conviction for to is more than thin. tissue-paper Waiver to to by failing the object in- struction, and failure to move the to court the require prosecution to elect its to to theory present the are the jury, announced grounds. waiver,
As to reliance on majority’s State v. Campbell (1965), 251, 146 Mont. 405 P.2d and cited State in its on brief this is point, In misplaced. Campbell, of an ob- raising trial, to an jection instruction on one at ground and on an entirely different on ground was held to appeal, constitute a waiver. But the instruction involved in did not Campbell into the trial an inject en- new tirely of the theory case. Here the State is rewarded for pro- in blatant ceeding violation of the underlying statutory guidelines and charging criminal amending A waiver charges. theory foundation, must have as its a underlying belief that the error was not so fundamental as to require reversal. Here the error is so fun- damental, so that a reversal palpable, is required.
itsAs second reason for procedural down defendant’s turning instruction, argument with relation Court trial, states: at did not “Additionally, the State to require which specify theory deliberate homicide the was follow- State case, In the context of ing.” this rationale has no application all.
Where one has been only theory it is rather difficult and charged a defendant to meaningless require move to require prose- cutor to which he specify will theory rely asking reach a decision. The contained no basis charges which a upon Furthermore, defendant could make such a motion. assuming defendant was with there charged alternatively felony-murder, was no basis in the law which defendant could upon successfully 46-11-404(1), move that the elect its State Section theory. supra, states, moreover, allows alternative specifically charges “. . . The is elect ...” prosecution required
Here the error is and the has manifest. This Court plain prejudice such manifest errors and take the cor- duty recognize necessary Indeed, rective measures. under error doctrine this Court plain can take the corrective action where the error has af- necessary fected the substantial rights here parties. only remedy defendant a new grant trial. fathom, reasons that I am unable to there is an ever
For present *21 to of this Court relieve the trial courts of their affirmative tendency to duties instruct the on the law of the properly applicable a case. As far as am concerned such inheres in the office of I duty district and cannot be to trial counsel either judge delegated the is clear in civil criminal party. Although duty equally cases, life and is at stake in criminal cases and thus there are liberty more to to reasons the District Court compelling require properly instruct the In this the trial cannot be an idle jury. respect, judge it to counsel to the in- leaving participant, provide appropriate is, course, structions for a of the There counsel jury. strong duty instructions, to aid the trial court in the but preparing appropriate cannot to the ultimate counsel. duty delegated was Here it the plain duty refrain from prosecutor offer- an instruction which a ing injected theory criminal homicide not which had been It was specifically charged. further the duty not offer an instruction a which has no theory evidentiary basis. It was of the trial court not to equally duty permit to receive the benefit of an prosecutor additional of criminal theory where such has not responsibility been and where theory charged Furthermore, the trial has not been conducted on that basis. it is of a trial court to an duty instruction which a reject offers which there is no theory upon basis. evidentiary WASINAC- GIVEN INSTRUCTION THE FELONY-MURDER LAW OF THE AN IMPROPER STATEMENT CURATE AND to give foundation Assuming procedural evidentiary instruction, devia- as is a clear given the instruction felony-murder has The majority from what would be instruction. proper tion on its conclusion of the instruction based the appropriateness the in- But burglary. the underlying felony defendant committed could only terms that the jury was not worded in such struction Rather, was the instruction as felony. find burglary underlying even to find any underlying felony, an invitation the jury open Furthermore, have deter- could well though charged. which triggered was felony that theft the underlying mined rule. of the felony-murder operation 45-5-102( MCA, l)(b), As section creates a previously quoted, situation if: “it is committed while the in or is an accom- offender engaged of, commit, in the commission an or after plice attempt flight commit sexual intercourse committing attempting robbery, consent, arson, without felonious escape, burglary, kidnapping, other which involves the use or threat physical force added.) or violence individual.” against any (Emphasis If it was the contention that the State’s underlying felony the instruction should have stated that burglary, only which the based its State underlying felony upon the instruction included also the But theory. above-emphasized statute, from the thus invitation language giving open *22 (in- to find another The actual instruction jury underlying felony. struction in the as quoted opinion), provides majority follows: deliberate homi- that a criminal homicide is are instructed
“You cide if:
“(1) It is committed or or knowingly; purposely after in flight is “(2) engaged the offender is committed while It other felony or any to commit burglary or attempting committing or violence the use or threat physical involves which force of added.) (Emphasis individual.” any against was not confined that the from this instruction jury is obvious It the ap- triggered after flight to determining only rule, Rather, the rule. of the felony-murder plication after other felony also flight “any instruction is triggered this force or violence of threat or involves the use physical which no to give right had absolutely individual.” The State against any duty court had a positive instruction and the trial this open-ended instruction. to reject open-ended INSTRUC- OF THE FELONY-MURDER
USE OR IMPACT IN THIS CASE TION GIVEN criminal code in this State the enactment of the new
After crimes, instruc- substantive a book defining creating State, in this and in tions was circulated of the lawyers many entitled, Criminal Instructions— to the It is prosecutors. particular, as who published book information provides Montana. The it, in relation who and the comments or instructions prepared event, instruction 59 of the instructions. any use In proper on the to be the correct method of instructing purports crime of deliberate homicide. The instruction pertain- substantive ing provides: homicide if: homicide is deliberate
“A criminal accomplice] offender is [engaged] while the [an is committed “It commit- [flight attempt commit] commission of] [an [the after without intercourse [robbery] [sexual attempting commit] or ting or escape] [any [kidnapping] [burglary] [felonious consent] [arson] or threat the use or physical involves which felony other force added.) (Emphasis any against violence individual.]” or the use “or other which involves felony The language, individual,” is force or violence against any threat of physical the instruc- to be not intended part language bracketed. This not one of the Rather, which is involved if there is tion. felonies, the use “involves but which nonetheless enumerated individual”, must it against any force violence threat physical *23 so drafter of this instruction realized be the designated. Obviously, that a instruction could not be the But felony-murder open-ended. the law in this case submitted ignored open- prosecutor ended instruction. of the
If the arrived at its verdict jury through application felony- rule, murder there is no assurance that it determined the underly- have based its decision on The could ing felony burglary. jury con- a conclusion that the theft was the underlying jury felony. two was no in- victed the defendant of counts of theft. There felony that theft could not be used as a basis struction which told the jury of the rule. which upon predicate application felony-murder found some is there assurance that the have jury may Nor as other not the basis charged apply felony-murder felony invited the to do so. It did confine the rule. The instruction to a of those felonies as the sole charged being consideration could rule. basis which it upon apply felony-murder felony as the underlying did find theft that the jury Assuming rule, on this theory conviction based the felony-murder apply First, of the felonies designated theft is not one stand. felony cannot 45-5-102(l)(b); of section portion contained in the felony-murder which in- of other “any the meaning nor does it fall within in- or violence against any force volves the use or threat physical Second, can the appli- trigger assuming felony-theft dividual.” rule, underlying felony-theft since the of the cation case, can a felony-theft neither stand in this convictions cannot that felony-theft triggered applica- a theory conviction based upon rule. tion the felony-murder of theft and burglary the crimes distinguishing
For purposes rule, the con- to discuss it is necessary to the relation is singled code. Burglary the new criminal under of burglary cept of which is the gravamen a crime code as being out under the new statute, the burglary In beings. explaining to human the threat Annotated, annotator Code, 1973, Criminal Montana to-this point: speaks introduced significant changes most
“Perhaps from the view prior statutory new code is retreat prior [the or vehicle could be the object burglary that any building view] acts must be directed to the view that to constitute *24 a return to the an structure. The occupied change against reflects the threat to law view that the burglary common gravamen of the new code the intrusion. While resulting wrongful persons from in- not as restrictive it does that the structure require is technically into ‘suited for human oc- truded either or being actually occupied or on or of business.’ night lodging persons carrying cupancy (See 94-2-101(35) 45-2-101(34), In limits § § [now MCA]. effect is to those situations in which the intrusion most burglary alarming added.) the threat human greatest.” (Emphasis life circumstances, Because a be under certain can threat- burglary, to human it is ening beings, specifically designated felony- as murder statute can of being which felony trigger application Theft, course, rule. is not. of The gravamen is, 45-6-301, MCA, theft an offense section et against See property. (Mon- Nowhere in the annotator’s with reference to theft seq. note Code, 1973, Annotated, 243-245) tana Criminal at there in- is any nature, theft, dication that its involves threat of force physical Indeed, or an that is violence individual. the reason bur- against is from theft. glary distinguished 45-5-102(l)(b) reliance permits specifically
It is true section which are specified other than those felony on an underlying on is that the relied felony requirement statute itself. The within the or the use threat physical which involves other “any felony no can be doubt There or individual.” any violence against force however, are not and the permitted jury that the prosecutor which may trigger felony of an underlying as choices speculate definition. the statutory within falling rule by the felony-murder . . of . . . “the use . physical a crime in which is not theft Felony crime itself. inheres in the individual” any violence against force statute, sets forth general note to the theft annotator’s The code: theft section of criminal scope “This section on theft encompasses traditional crimes of trick, embezzlement, false larceny, larceny pretenses, receiving stolen as well as numerous property associated offenses. The Mon- tana Criminal Law Commission intended that this section cover every conceivable form of theft and in so eliminate the com- doing, law mon distinctions which encumbered every one of the virtually (Annotated, code, 243.) theft related offenses.” supra, which, is It clear that is abundantly theft not a crime statute, under the felony-murder “involves the use or threat of force or violence physical against individual.” majority has based its found the opinion assumption jury to be underlying felony But there no basis in the record burglary. from which canwe make that determination. The not in- structed that ais crime which involves use or burglary “the threat force violence physical against any individual.” From the therefore, there was reason jury’s theft standpoint distinguish from which determining invoke as underlying felony triggering felony-murder rule. As far as the application *25 concerned, the as instruction it to find theft the permitted under- Furthermore, the fact lying felony. that defendant was convicted on of both counts theft is an that the felony indication jury may have well used theft as the which felony underlying felony ap- of plication the rule was felony-murder triggered. cannot
One tell which the underlying felony invoked if it jury chose to the rule in apply felony-murder its verdict. reaching Ob- if the did viously, use theft as the jury felony the underlying felony, homicide conviction cannot stand. as since one can clearly, Just tell whether the did or did not jury use theft as the felony under- this Court should not lying felony, the homicide convic- permit tions stand.
THE FELONY-MURDER RULE HAS NO EVIDENTIARY IN FOUNDATION THIS CASE was the conclusion that there an evi- I next proceed majority’s basis for the to base its verdict the dentiary felony-murder essence, the concludes that the defendant was rule. In flee- majority between there was a casual connection a that from ing burglary, McLean, and of and and the deaths Kenneth Marion the burglary dis- I have previously that the felony-murder applied. therefore the committed because cussed that my burglary position the meaning an within shed was not structure” “occupied tack the that open-ended have discussed my position the statute. I case well have pro- this could instruction given than other for the find an underlying vided basis course, instruction, is, of the crime of This burglary. open-ended to be the of a within error. But the commission assuming instruc- and meaning, assuming proper felony-murder statutory the tion, do not rise the application the facts of case give not within their rights rule. The McLeans were later own hands themselves and take the law into their by arming armed confrontation and shootout. scene setting Defendant and his came accomplices McLean upon property m. 4:00 a. 1977. approximately Sunday morning, September intended three and take horses from all They “get away hassles” off and “live the land.” horses to Kenneth belonged These Hoeffner but were in lawful they possession the McLeans. and his then Defendant Wilson entered accomplice bridles, saddles, tack shed and took three three three pairs shed, As to the use of the that chaps. tack testified employee other went into the tack shed from to time guests time employees to obtain or is no riding There replace equipment. testimony went into the tack shed guests between employees nightfall sunrise, the time when the here. made entry shed, was charged the tack defendant of his into entry a result
As was an tack shed alleged The prosecutor with burglary. count III charge, addition to the burglary In structure.” “occupied sad- three stole his accomplices that defendant and theft in alleged *26 This the tack shed. from dles, chaps three pairs three and bridles stole his accomplices and that defendant count also alleged same three horses. horses,
After and saddling bridling defendant and his accom- had, what plices packed up and and supplies equipment they rode firearm, Each of the defendants had a away. all stolen apparently them while by were in the they State of Defendant Nebraska. Sun- rifle; rifle; had a 30-30 day a accomplice Wilson had 22.250 and Mitchell had a shot accomplice single .410 shotgun.
The trial record does not disclose when the McLeans discovered and Nor, course, horses riding equipment missing. there evidence that knew the defendant his they and accomplices not, however, The armed. McLeans did the thefts to report local Rather, law enforcement officials. armed themselves they struck out after the horse thieves.
We do not know when the McLeans their search began for the stolen horses. The armed confrontation did not take place until at later, least a and a half day the late afternoon of September time, 1977. defendant and his By had traveled accomplices then, a few miles from only the McLean was It property. words of majority opinion, defendant and his accomplices “saw a truck pickup tried to rapidly approaching. into They escape the trees but were cut off pickup. driven pickup Kenneth McLean. His was also wife in the Kenneth pickup. McLean stopped about from feet pickup sixty-five Sunday, Wilson and the Mitchells.” Thus the was set for stage the armed confrontation and shootout. truck .308 caliber out of the leaped pickup carrying
McLean rifle, armed with a bolt action and Mrs. came out .38 McLean from Defendant dismounted his Sunday immediately caliber pistol. .30-30 rifle. Wilson was Accomplice horse. armed with a He rifle, bolt action Mit- accomplice armed with .22-250 caliber shot few single shotgun. Only chell was armed with a .410 gauge words before battle started. gun were exchanged As Kenneth McLean and his defendant accom- approached he “What Damn plices, the God hell is on? What kind yelled, going horses, is this? us Give our we will shoot Marion prank you.” added, McLean “Your God we right Damn will.” Almost instan- *27 words, with his Kenneth the bolt taneously operated McLean mechanism of his and is not injected rifle This evidence cartridge. disputed. what defendant arises between the testimony
But a in dispute hap- and what the accomplices say did contends Kenneth McLean pointed that McLean testified Kenneth Defendant Sunday pened. as he was “scared hell.” Accom- at him and that his rifle directly hand, Wilson, that testified on the other Mitchell and plices event, the at the In pointed ground. any McLean’s rifle erupted. shooting immediately The leg.
Defendant fired first and hit Kenneth McLean as continued until both described in the shooting opinion, majority and his McLean dead. Defendant lay Kenneth McLean Marion from the belongings then stole some accomplices personal to in the McLean truck where Oregon pickup McLeans and fled were arrested. they cause to requisite had the probable
It is clear that the State or know- with homicide (“purposely defendant deliberate charge McLean). It deaths of Marion Kenneth ingly” causing however, de- clear, no basis to that the State had charge equally felony- homicide by application fendant with deliberate Indeed, not the indication in the there is slightest murder rule. de- notice that he must was ever put record that the defendant fend against felony-murder theory. that on a claim
Defendant notice the State he would gave rely as at no time self-defense a his actions. The State justification that no claimed defense or contended defendant had opposed this The record is barren of indication claim self-defense. right any on the rule as the the State intended rely felony-murder of its did intend one theories If State prosecution. theory rule, until the use the it was a secret well-guarded felony-murder so end of the trial when it cleverly supplied to in the form of an instruction. theory context the factual attempt The makes majority analyze rise to the that the properly declaration giving Rather, applied. the clear implication is conduct of defendant and his accomplices after the commission of the can burglary, be traced back and become related to causally commission of the It is not sufficient burglary. declare glibly that defendant committed and that the McLeans deaths are related to causally the commission of the burglary. unusual circumstances existing this case that the require rela- tive rights considered, the parties be for these are rights inextri- to a cably connected determination of whether the felony-murder *28 rule was properly applied here. rule to case to
To the hold apply felony-murder implicitly law, that defendant as a matter of was from Sunday, precluded that was of a asserting he self-defense. If acting perpetrator contained within the statute is to proscribed held the deaths of conduct criminally responsible resulting to of human which is connected the commission the beings causally it to to on a makes little sense him underlying felony, permit rely as to claim self-defense of his actions the leading justification case, deaths involved. Within the context of the facts of this the to the causal between McLeans’ conduct sufficient break link the commission of the and their deaths. There is tragic to a claim there that defendant had a Sunday right present doubt so, to how the self-defense to the This I fail see State jury. being to rule. could be entitled on the rely The McLeans failed to the thefts to horse a law enforce- report Rather, ment agency. themselves as a two they member appointed thieves, Armed for a vigilante posse. confrontation with the horse went them they after in their truck. record is barren of pickup evidence that the had to McLeans the intention the bring horse Rather, to thieves kind justice by of citizen arrest using any powers. were they concerned with the return of the and horses were only to use armed force to willing result. With both accomplish armed, sides it that a being classic battle appears gun western-style occasioned, however, was inevitable. was It the by precipitous into own the law their taking unwarranted acts the McLeans in hands and force in that process. using self- could ingo using
What is the extent to which McLeans assuming of the horses? And efforts to secure the return help to use armed force secure the the McLeans used threatened horses, what is the extent to which could Sunday of their return threats overt which have led him to may resist their armed acts danger? that his life was in imminent Did the McLeans believe de- to arm themselves and the use of armed force have right by have of their horses?Did the McLeans right mand return his ac- take such as would or could lead the defendant or action to believe their lives to be in imminent complices danger? token, as to which the same arises extent question
By defendant and his could defend themselves accomplices against an use of force or threats of use of force McLeans. by Assuming at overt act Kenneth McLean with his rifle directed threatening by he had stolen the defendant because Sunday, Sunday, accessories, himself required McLeans’ horses submit riding the victim a homicide? believed his being If possible life to be in threat to shoot by imminent Kenneth McLean’s danger act, an did have to defend himself accompanied overt he by right first McLean? overt act McLean with Assuming shooting have the his rifle directed defendant did *29 Sunday, Sunday right if the of force? it countervailing Only defend himself use armed by defend right can be held of law had no to Sunday as matter that rifle, or acts with his can an himself from McLean’s threats overt Otherwise, of the rule be felony-murder justified. application of was entitled to the his claim defendant to present self defense. force of of the to their horses by
The effort McLeans recapture from the defend- an armed and trigger deadly response arms to McLeans There is no doubt the accomplices. ant his Defendant, his accomplices. to kill defendant and threatened moreover, his own because he believed testified that he fired only the loaded when McLean pointed to be in immediate danger life rifle at him. While defendant’s accomplices, who had turned evidence, State’s testified that McLean had pointed his rifle at the ground defendant, rather than at the there is no question there was a factual picture depicted sufficient to raise a claim of self- defense. If it be conceded that defendant had a right present his self-defense claim to the it follows that jury, State not en- titled to encumber and this claim of muddy self-defense by pro- on a ceeding felony-murder The theory. underlying purpose felony-murder rule is defeated where a defendant is permitted on a claim rely of self-defense as justification for his actions. aOnce causal connection is established between the commission to commit the attempt criminal at- underlying felony, liability taches without to the defendant’s regard intent kill. The theory that certain felonies are so to human life that inherently dangerous a defendant not to be able to ought criminal escape responsibility of, commit, that in the commission proving attempt flight from the commission or to commit the attempt underlying felony, he did intend to kill. The additional factor of triggering flight State, has been added of this and is not legislature within the traditional definition or rule. If the concept felony-murder rule is to be felony-murder consistent and fulfill its underlying it would also nobe defense for the purpose, contend perpetrator that he killed in self-defense. To such a defense would permit destroy rule. underlying purpose Furthermore, a claim of self-defenseis inconsistent patently with a felony-murder prosecution. rule does not per- mit one to criminal escape responsibility by contention that he did not intend to kill. Although claim of self-defense does not result in an necessarily admission that the perpetrator in- actually kill, tended to it does mean that admits perpetrator the use of force but deadly contends that he was justified grounds self- defense. If a causal connection of the underlying and the death of a human it being, makes sense to hardly permit to assert that perpetrator the act was in killing self-defense. *30 State, no decided and there are cases in this are statutes There in by activities engaged which of the self-help this Court permit by had no of their horses. They in return seeking the McLeans to this result. to accomplish use armed force right 46-6-502, is section statute remotely applicable even The only MCA, under which a private the circumstances sets forth which that a in substance The statute can make an arrest. provides citizen in attempted if an offenseis committed can arrest citizen private and he has fact been committed or if a has in felony his presence, arrested committed to believe that the grounds person reasonable Comment Montana Criminal Law Commission the offense. The statute, restrict the involvement of forth a clear intent to sets to arrest: in decisions making citizens unilateral private modern law en- was that concensus of commission “The officers and by that most arrests be made police forcement requires limited.” strictly to arrest should right private persons to arrest under the of the McLeans right Even assuming statute, is barren of evidence any of this record authority Rather, in- were were effectuate arrest. they they attempting of their gunpoint. in return forcing property terested only to accomplish in a willing engage gunfight were They obviously end. thefts, was When the McLeans discovered the it their clearly to call in law let them handle situation. duty enforcement foolish action the law into their taking Their in precipitous own hands force of arms the armed confrontation and provoked ac- tragic shootout which resulted their deaths. McLeans’ themselves, thieves, and sub- down the tracking tions arming the obvious apparent ability threats kill sequent accompanied threats, of causation their break chain operated out carry of an and the deaths of underlying between the commission if there was an efficient cause ever intervening the McLeans. This no causal relationship, was one. There being rule has no application.
Under the facts as to testified who by turned accomplices evidence, defendant, State’s and the of the defendant testimony had to his clearly right claim of to present self-defense the jury. thief, he awas he Although had no to become a vic- duty homicide tim by letting McLeans shoot him first. Whether he was in im- minent and acted danger under reasonably the circumstances in first, ais if shooting question. But the defendant jury reasonably believed his to life be in imminent because of the danger threaten- McLeans, use of firearms he ing had to claim that he right in acting self-defense. The conduct McLeans precipitating the armed confrontation intervened cut off the ap- plication rule. To hold otherwise is to felony-murder hold effect that defendant has no his right present claim of self- and, defense to the did not hold that defendant majority had right claim of to the present self-defense jury. instruction and felony-murder possible verdict based that instruction and theory, muddied the waters in relation to defendant’s claim of self-defense. He was entitled his present claim of self-defensefree of contention that was State he guilty deliberate homicide virtue of the rule. reason, For this he is entitled to a new trial on the homicide charges.
I would hold in relation to count of the III theft in the charges same manner as the held V in count of the theft majority I charges. would reverse the burglary conviction for the reason that the tack shed was not an structure” “occupied within the meaning statute. all the For reasons stated in relation the felony-murder instruction, I would a new grant trial to the defendant on the homicide with charges instructions that the rule cannot be applied this case.