                             No. 14591
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                               1980


STATE OF MONTANA,
                    Plaintiff and Respondent,
      VS   .
ANDREW C. SUNDAY,
                    Defendant and Appellant.


Appeal from:   District Court of the First Judicial District,
               Honorable W. W. Lessley, Judge presiding.
Counsel of Record:
    For Appellant:
       A. Michael Salvagni argued, Bozeman, Montana
    For Respondent:
        Hon. Mike Greely, Attorney General, Helena, Montana
        Richard Larson argued, Assistant Attorney General,
         Helena, Montana
        Charles Graveley argued, County Attorney, Helena, Montana


                                Submitted:     January 14, 1980
                                  Decided:     MAR 2 7 1980
Mr.    J u s t i c e John C. Sheehy d e l i v e r e d t h e Opinion o f t h e C o u r t .


        Andrew C. Sunday a p p e a l s from c o n v i c t i o n s e n t e r e d i n

t h e D i s t r i c t C o u r t , F i r s t J u d i c i a l D i s t r i c t , Lewis and C l a r k

County, on c h a r g e s of d e l i b e r a t e homicide, b u r g l a r y and t h e f t ,

i n v i o l a t i o n of s e c t i o n s 45-5-102,       45-6-204      and 45-6-301,

MCA, r e s p e c t i v e l y .

        Sunday came t o Montana i n e a r l y September 1977 w i t h

James Wilson, Donna M i t c h e l l and M i t c h e l l ' s t h r e e y e a r o l d

daughter.          O September 4 , 1977, t h e y s t o p p e d t h e i r c a r a t
                    n

a rest a r e a on Highway 200, e a s t of t h e c o n t i n e n t a l d i v i d e

n e a r L i n c o l n , Monbana.         D e s i r i n g t o " g e t away from a l l t h e

h a s s l e s " and " l i v e o f f t h e l a n d " , t h e y packed up s u p p l i e s

and walked i n t o t h e w i l d e r n e s s a l o n g t h e c o n t i n e n t a l d i v i d e .

        I t soon became a p p a r e n t t h e y c o u l d n o t go f a r on f o o t .

So, i n t h e e a r l y morning h o u r s o f September 5 , 1977, Sunday

and Wilson t o o k t h r e e h o r s e s from t h e Evergreen r e s o r t owned

and o p e r a t e d by Kenneth and Marion McLean.                     Additionally, they

b r o k e i n t o a t a c k s h e d which was used f o r s t o r i n g h o r s e t a c k

used i n t h e McLeans' h o r s e - r e n t i n g b u s i n e s s .       They took t h r e e

s a d d l e s and t h r e e b r i d l e s .    The t a c k s h e d was e i g h t f e e t by

twenty f e e t and w a s made o u t of rough lumber.                       I t contained

no l i v i n g f a c i l i t i e s .

        Sunday, Wilson and t h e M i t c h e l l s s p e n t t h e n e x t two d a y s

r i d i n g t h e horses along t h e continental divide.                       On t h e

a f t e r n o o n o f September 6, 1977, t h e y saw a p i c k u p t r u c k

r a p i d l y approaching.             They t r i e d t o e s c a p e i n t o t h e trees

b u t w e r e c u t o f f by t h e pickup.            The p i c k u p was d r i v e n by

Kenneth McLean.              H i s w i f e was a l s o i n t h e pickup.          Kenneth McLean

s t o p p e d t h e p i c k u p a b o u t s i x t y - f i v e f e e t from Sunday, ~ i l s o n

and t h e M i t c h e l l s .
        Kenneth McLean g o t o u t of t h e p i c k u p c a r r y i n g a .308

c a l i b e r b o l t action revolver.            H i s wife got out carrying a

. 3 8 c a l i b e r revolver.        Sunday dismounted from h i s h o r s e

h o l d i n g a 30.30 c a l i b e r r i f l e .    Wilson t e s t i f i e d Sunday a s k e d

Wilson i f h e wanted t h e p r i v i l e g e o f s h o o t i n g t h e McLeans.

Wilson had a 22.250 c a l i b e r b o l t a c t i o n r i f l e , and M i t c h e l l

had a -410 gauge s i n g l e s h o t shotgun.

        A s Kenneth McLean approached, h e s a i d I m W h a tt h e God damn

h e l l i s g o i n g on?       What k i n d of prank i s t h i s ?         Give u s o u r

h o r s e s , o r we w i l l s h o o t you."      M r s . McLean added,          "Your God

damn r i g h t we w i l l . "       Immediately a f t e r h i s t h r e a t , McLean

o p e r a t e d t h e b o l t mechanism t o h i s gun and i n s e r t e d a c a r t r i d g e .

According t o Sunday, Kenneth McLean p o i n t e d t h e gun d i r e c t l y

a t Sunday.        Wilson and M i t c h e l l t e s t i f i e d t h e gun was p o i n t e d

a t t h e ground.

        A shooting s p r e e followed.              Sunday s h o t Kenneth McLean

i n the leg.         Then, Marion McLean began s h o o t i n g a t Sunday.

Sunday r e t u r n e d t h e f i r e h i t t i n g Marion McLean i n h e r abdomen

and t h o r a c i c a r e a .    Sunday n e x t approached Marion McLean.

N o t i c i n g Kenneth McLean r i s e from t h e ground, Sunday t u r n e d

and f i r e d two f a t a l s h o t s a t Kenneth McLean.                Meanwhile,

Wilson who was a p p r o a c h i n g Kenneth McLean n o t i c e d Marion McLean

rise.      Wilson s h o t Marion McLean i n t h e head k i l l i n g h e r

instantly.

        Sunday t h e n t o o k $ 2 5 from Kenneth McLean's w a l l e t .

Wilson t o o k a p p r o x i m a t e l y $100 from Marion McLean.                  Sunday, ~ i l s o n

and M i t c h e l l p i c k e d up t h e McLeans' weapons and l e f t t h e a r e a

i n t h e McLeans' p i c k u p .       They w e r e e v e n t u a l l y a r r e s t e d i n

Oregon.

        On September 2 6 , 1977, Sunday was c h a r g e d i n an amended

i n f o r m a t i o n w i t h two c o u n t s of d e l i b e r a t e homicide, two c o u n t s

o f f e l o n y t h e f t and one c o u n t of b u r g l a r y .

                                        -3-
     In October 1977, Sunday gave notice of his intent
to rely on self-defense.     On January 9, 1978, Sunday moved
for a change of venue.     The motion was denied on April 12,
1975, on the ground any possible prejudice was "speculation
at this point."
     On July 6, 1972, Sunday xcved :r
                                    o     permission to conduct
individual voir dire of the prospective jurors.     The motion
was denied, but the District Court said the motion might be
renewed during voir dire if necessary.     Sunday renewed the
motion during voir dire with respect to one prospective juror,
Mrs. Garrett.     The District Court again denied the motion
saying it would guide Mrs. Garrett.     Sunday passed the panel
without challenging Mrs. Garrett for cause.    Later, both
the State and Sunday exercised all eight of their preemptory
challenges.
     In July 1978, a jury verdict was rendered finding Sunday
guilty of all the charges.     Sunday was sentenced to a total
of 240 years in the state penitentiary.
     Sunday presents eleven issues for review.    These issues
may be grouped as follows:
     1.   Whether it was error to deny Sunday's motions for
change of venue and individual voir dire of jurors.
     2.   Whether the State failed to prove the crimes charged
against Sunday;
     3.   Whether the District Court failed to properly instruct
the jury; and
     4.   Whether the sentences imposed on Sunday were
erroneous.
      --
ISSUE NO. 1: Change of Venue and Individual Voir Dire.
     Sunday contends it was error to deny his motions for
change of venue and individual voir dire.     The contention

is without merit.
                                 -4-
     A denial of a motion for change of venue or a motion
for individual voir dire will be reversed only upon a
showing of an abuse of discretion.        State v. Olson (1971), 156
Mont. 339, 480 P.2d 822.     Sunday has not made such a showing.
     A change of venue must be based on more than an affiant's

unsupported opinions and the mere fact of pretrial publicity.
The published accounts must be so passionate as to excite undue
prejudice, to the extent of rendering it impossible for the
accused to have a jury free from prejudice.       State v. Corliss
(1967), 150 Mont. 40, 49, 430 P.2d 632, 637.
     Sunday's motion for change of venue was not adequately
supported.     The motion was supported by the single affidavit
of defense counsel.     The affidavit stated defense counsel
believed Sunday could not receive a fair trial due to inflammatory
county-wide publicity.     The affidavit was unsupported by any
evidence of the number or inflammatory nature of the publications.
Also, Sunday never renewed his motion for a change of venue
at any time during or after jury selection.
     Sunday also did not adequately support his motion for
individual voir dire.     Sunday never demonstrated the extent
of the pretrial publicity, its inflammatory nature or whether
it had any prejudicial effect on the prospective jurors.
Moreover, Sunday passed the jury panel, including Mrs. Garrett,
the main object of Sunday's concern, without challenging any
potential juror for cause due to bias or prejudice.       See,

section 46-16-304 ( 2 ) (j), MCA.
      --
ISSUE NO. 2:    Failure to Prove the Crimes Charged.
     Sunday maintains the State failed to prove Sunday
committed burglary since the tack shed is not an "occupied
structure" as required by section 45-6-204, MCA.
     A fundamental rule of statutory construction is the
intent of the legislature controls.       Dodd v. City of East
                                    -5-
Helena (1979), - Mont. - 591 P.2d 241, 243, 36 St.Rep.
                        ,
414, 417.   In construing legislative intent, this Court
construes criminal statutes according to the fair import
of their terms with a view to effect their object and to
promote justice.     State v. Shannon (19761, 171 Mont. 25, 28,
554 P.2d 743, 744.
     The intent of the burglary statute was to prohibit
wrongful intrusions into those places where the threat
to people was most alarming.    State v. Shannon, supra.    Thus,
in defining "occupied structure", the legislature included
those places where the chance of human confrontation was most
likely, in those places suitable "for human occupancy or
night lodging" and "for carrying on business."    Section 45-
2-101 (34), MCA.
     The McLeans' tack shed was a structure suitable for
carrying on business and was so used by the McLeans.     The
McLeans operated a horse rental business.    Horse tack was
an integral part of that business, and the horse tack was
stored in the tack shed.    Moreover, both the guests and
employees of the Evergreen Resort would enter the shed
frequently and a: irregular hours.
                i
     Count V of the amended information charged Sunday with
the felony theft of (1) a 1966 International pickup truck,
(2) a .308 caliber rifle, (3) a .38 caliber Smith and Wesson
pistol, (4) a gunbelt and holster, and, (5) $150 in cash.
Sunday contends the State failed to prove the value of the
personalty listed in count V exceeded $150 as is required by
section 45-6-301, MCA, the theft statute.    We agree.
     Under our felony theft statute, the State must prove
beyond a reasonable doubt that the value of the personalty
allegedly taken exceeds $150.    At trial, the only value
testimony was given by Sunday and Mitchell and related to
                                 -6-
the amount of cash taken from the McLeans.      Sunday testified
he took $20 to $25 from Kenneth McLean's wallet.     Mitchell
testified Wilson took about $100 from Marion McLean's purse.
     The State asserts Sunday waived any objection to the
State's failure to prove value by not raising the issue prior
to the entry of the judgment of conviction.      The State's
assertion is without merit,    Under the facts here, value is
an essential element of the crime charged, and such an error
may be raised at any time.
     The State next asks this Court to take judicial notice
of the fact that the aggregate value of the personalty involved
here is greater than $150.    We will not do this.
     Rule 201(b)! M.R.Evid., sets forth the kinds of facts
which may be judicially noticed.      That provision reads as
follows:
           .
     ". . A fact to be judicially noticed must be
     one not subject to reasonable dispute in that
     it is either (1) generally known within the
     territorial jurisdiction of the trial court or
     (2) capable of accurate and ready determination
     by resort to sources whose accuracy cannot be
     reasonably questioned."
We will not go beyond the scope of this provision and take
judicial notice of a basic element of the crime charged not
otherwise proved.
     It is also noteworthy that the jury was not properly
instructed as to value.   None of the instructions concerning
felony theft mentioned that a value greater than $150 is
necessary for a felony theft conviction.     Thus, the jury
reached its decision on the felony theft charge without even
considering a fundamental element of the crime charged.        We

will not presume the jury knew about this element of
felony theft.
     Sunday next contends the convictions for the deliberate
homicides of Kenneth and Marion McLean are not supported by
                                -7-
the evidence.         More specifically, Sunday maintains the
evidence establishes the homicides were justified, or at
most, Sunday could be convicted of mitigated deliberate
homicide.
        Whether Sunday was justified in killing the McLeans
and whether Sunday acted under extreme emotional distress
were questions of fact for the jury.            State v. Larson (1978),
        Mon t .       ,   574 P.2d 266, 269, 35 St.Rep. 69, 73.      Upon
appeal, this Court will not substitute its judgment for that
of the jury if the verdict is supported by substantial evidence.
The evidence must be viewed in a light most favorable to the
           I
               I       . ,,
State. State v. McGuinn (1978),       Mont.      , 581 P.2d
417, 419, 35 St-Rep. 871, 872.
     The verdicts of deliberate homicide are supported by
substantial evidence which if believed by the jury would result
in convictions for deliberate homicide.            Both Wilson and
Mitchell testified Kenneth McLean did not point his rifle
at Sunday.         In addition, Wilson testified Sunday asked Wilson
if he wanted the privilege of shooting the McLeans.           Sunday's
own testimony corroborates the sequence of events as described
by Wilson and Mitchell.
        Sunday also contends the evidence clearly shows Wilson's
actions were the sole intervening cause of Marion McLean's
death.      Therefore, according to Sunday, it was error to submit
count I1 of the amended information, the deliberate homicide
of Marion McLean, to the jury.            We do not agree.
        Sunday shot Marion McLean in her abdomen and thoracic
area.     Shortly thereafter, Wilson shot Marion McLean in the
head killing her instantly. A pathologist testified the
wound inflicted by Sunday would have caused Marion McLean's
death within minutes had she not been shot by Wilson.
                                    -8-
     The principal end of the law of homicide is to
protect human life by preventing behavior which can cause
death.   The evidence adduced at trial clearly shows Sunday
engaged in conduct which was likely to cause the death of
a human being.    Moreover, Sunday's situation would be no
different if Marion McLean had been struck by a bolt of
lightning rather than shot in the head by Wilson.
ISSUE NO. 3:
      - -        Instructional Error.
     Court's instruction no. 16 reads as follows:
     "You are instructed that a criminal homicide
     is deliberate homicide if:
     " (1) It is committed purposely or knowingly; or
     " (2) It is committed while the offender is
     engaged in flight after committing or attempting
     to commit burglary or any other felony which
     involves the use or threat of physical force or
     violence against any individual."
     Sunday contends it was error to give the second part
of the instruction concerning the felony-murder rule.
According to Sunday, he was not charged under the felony-
murder rule, there are no facts supporting the application
of the rule, and even assuming proof of a felonious act,
there was no showing of a connection between it and the
McLeans' death.
     Sunday's contention is without merit.     The evidence
establishes that Sunday caused the McLeans' death while in
flight after committing a burglary.     Court's instruction
no. 16 paraphrases section 45-5-102, MCA, the statute
defining deliberate homicide.    That statute specifically
covers criminal homicides committed while in flight after
committing a burglary.     The connection between Sunday's
felonious act and the McLeans' death was decided by the jury.
Ashas stated in Commonwealth v. Almeida (Pa. 1949), 68 A.2d
          .
     ". . There can be no doubt about the 'justice'
     of holding that felon guilty of murder in the
     first degree who engages in a robbery or burglary
     and thereby inevitably calls into action defense
     forces against him, the activity of which forces
     result in the death of a human being."
     Additionally, at trial, Sunday did not require the State
to specify which theory of deliberate homicide the State
was following.     Nor did Sunday object to the court's instruction
no. 16 on the grounds now asserted upon appeal.     This Court
will not reverse the District Court's rulings on the instructions
on grounds not raised at the time the instruction was proposed.
State v. Campbell (1965), 146 Mont. 251, 263, 405 P.2d 978,


     Sunday next contends the jury was incorrectly and in-
completely instructed on the affirmative defense of self-defense.
In this regard, Sunday asserts the court's instructions (1)
failed to explain self-defense as a concept of fear to be
judged in light of appearances and     (2) failed to explain Sunday
had no duty to retreat.
     In considering this issue, we will first set out the
relevant law applicable to the concept of self-defense.      A
person is justified in the use of force likely to cause death
or serious bodily harm only if he reasonably believes that such
force is necessary to prevent imminent death or serious bodily
harm to himself or another or to prevent the commission of a
forcible felony.    Section 45-3-102, MCA.   Self-defense is to be
judged in terms of the apparent danger which the defendant
perceived, as a reasonable person, rather than in terms of
the danger actually confronting him.    The belief in the
necessity of using force must be reasonable, but even a mistaken
belief may be reasonable.    State v. Reiner (1978),        Mont .
     , 587 P.2d 950, 956, 35 St.Rep. ISGl, 1867, 1869. A
defendant may stand his ground even if he reasonably believes
he is in imminent danger of great bodily harm.     See State v.
Porter (1964), 143 Mont. 528, 391 P.2d 704.
                                -10-
        Sunday cannot complain if these concepts were conveyed
to the jury by the District Court in the body of its instructions.
If so, Sunday was given ample opportunity to present his theory
of defense to the jury.     State v. Collins (1978), - Mont.
    , 582 P.2d 1179, 35 St.Rep. 993. We find such is the case
here.
        The jury was instructed that self-defense was a concept
of fear to be judged in light of appearances even if those
appearances were false.    Court's instruction no. 27 and 31
directed the jury to consider whether Sunday "reasonably believed"
that force by him was necessary.    These instructions do not
say that reasonable belief must be founded upon subjective
appearances or the danger actually confronting Sunday.      State
v. Reiner, supra.     Similarly, instructions, like court's
instructions no. 27 and 31, which state the general law of
self-defense adequately cover, Montana's "no retreat" rule.
State v. Porter, supra.
     District Court's instruction no. 28 instructed the jury
that Sunday had the burden of producing sufficient evidence
to raise a reasonable doubt of his guilt in order to avail
himself of the affirmative defense of self-defense.    Sunday
maintains it was error to give this instruction.    We do not
agree.
        Sunday contends the instruction is misleading and
confusing when compared with court's instruction no. 17
which instructed the jury that the State had the burden of
proving lack of justification.     Sunday is barred from asserting
this upon appeal as a ground for reversible error.    This was
not a ground of his objection at trial.     State v. Campbell,
supra.
        Sunday next asserts that court's instruction no. 28 is an

incorrect statement of the law.    The assertion is without merit.
        In Montana, the defendant must present some evidence of
self-defense in order to raise it as an issue unless the State's
                                 -11-
evidence puts self-defense in issue.      State v. Cooper (1979),
     Mont.          589 P.2d 133, 3 6 St.Rep. 30.
     At trial, Wilson and Mitchell, both witnesses for the
State, testified Kenneth McLean did not point his gun at
Sunday.   Wilson also testified that Sunday asked Wilson if he
wanted the privilege of shooting the McLeans.        The State did
not raise the issue of self-defense by showing the totality of
the circumstances surrounding the homicides including evidence
which negates the application of self-defense.
     Finally, Sunday contends court's instruction no. 28
unconstitutionally shifted the burden of proving self-defense
to Sunday.   It did not.    The absence of justification is not
an element of deliberate homicide, and proving lack of justifi-
cation does not serve to negate any of the facts which the
State must prove beyond a reasonable doubt in order to
support a conviction of deliberate homicide.        Patterson v.
New York (1977), 432 U.S. 197, 97 S.Ct. 2319, 53 ~.Ed.2d
281; State v. Cooper, supra.
     Court's instruction no. 22 reads:
     "You are instructed that purpose or knowledge
     are manifested by circumstances connected with
     the offense. Purpose or knowledge need not
     be proved by direct evidence, but may be inferred
     from acts, conduct and circumstances appearing in
     evidence."
     Sunday maintains this instruction and court's instruction
no. 23, "You are instructed that the law presumes that a person
intends the ordinary consequences of his voluntary acts", are
reversible error under Sandstrom v. Montana (1979), - U.S.                  I


99 S.Ct. 2450, 61 L.Ed.2d 39.     We do not agree.
     Court's instruction no. 22 is a permissive inference.          It
allows, but does not require, the jury to infer ultimate facts
from basic ,factsadduced by the State.     No burden of proof is
placed on Sunday.    County Court of Ulster Cty. v. Allen
(19791, - U.S.          , 99 S.Ct. 2213, 2224, 60 L.Ed.2d 777, 792;
State v. Coleman (1979),
                                     -i
                                      l

                                Mont./ -P.2d         ,   36 St.Rep. 2237.
                                 -12-
          Since a permissive inference is involved, Sunday must
show the invalidity of the inference as applied to him.
Sunday must show there is no rational way under the facts of
this cause for the jury to make the connection permitted by
the inference.       Only then is there a risk the presumptively
rational jury will use the inference to make an erroneous
factual determination.       County Court of Ulster Cty. v. Allen,
supra.       Sunday has not carried his burden upon appeal.
          Similarly, it was not prejudicial error to give court's
instruction no. 23.       The homicide charges against Sunday were
submitted to the jury in the disjunctive, as a deliberate homicide
or as a felony-murder case.      Under either theory, Sandstrom v.
Montana, supra, is not controlling.
          A person is guilty of deliberate homicide if it is committed
"purposely" or "knowingly." Section 45-5-102, MCA.       A person
acts "purposely" with regard to any offense if it is his con-
scious object (1) to engage in that conduct defined as the
offense or (2) to cause a result which is the offense.        Section
45-2-101(52), MCA.      Applying this definition of purpose to
this cause, if the jury found that Sunday consciously sought
to kill or consciously conducted himself to cause a death as
a result of his cQnd~ct,the elements of intent and act are
merged in his conduct once purpose is shown.       Thus, under the

criminal code, proof that the defendant acted "purposely" is
sufficient proof that he acted "knowingly".        Section 45-2-102,
MCA   .
          A person is shown to have acted "knowingly" with respect
to dsliberate homicide upon proof of either of two mental
elements:       (1) when he is aware of his conduct which constitutes
an offense; or, (2) when he is aware that it is highly probable
that a death of a human being will be the result of his conduct.

Section 45-2-101(27), MCA.      As we noted in State v. Coleman,
36 St-Rep. at 2242, it is his awareness either of his conduct
or the highly probable result of his conduct that must be
proved beyond a reasonable doubt to establish his "knowledge"
as a mental element of the crime.     But we repeat, if purpose
is shown beyond a reasonable doubt, knowledge is thereby
established under the code.
        Therefore, in simplest terms, the burden of the State
here under the charge of deliberate homicide was to prove
Sunday by a voluntary act caused the death of a human being
while having the mental state described as "purposely" or
"knowingly". Those are the material elements of a deliberate
homicide under the Montana Criminal Code of 1973.
        Here, the State proved beyond a reasonable doubt that
Sunday purposely shot the McLeans.     Sunday testified he
fired the first shot at Kenneth McLean.     In fact, it was not
shown that Kenneth McLean even fired a shot.        True, Sunday
contends he acted purposely but that he was justified in
defending himself. However, by Sunday's own admission, it
was Sunday's conscious object to shoot the McLeans or to
cause that result.     Section 45-2-101(52), MCA.    Therefore,
the jury was never called upon to decide as an issue of fact
whether Sunday acted purposely or knowingly to cause the
death of a human being.     Sunday's own testimony admitted
that.    Rather, the issue became whether Sunday's purposeful
act was a justified use of force, self-defense.        Section 45-
3-102, MCA.
     Court's instruction no. 23 was therefore superfluous.
Sunday intended by his conduct to do the McLeans grave bodily
harm.     That was the ordinary consequence of his voluntary acts.
The objected to instruction did not relate to a material issue
in the cause hnds0at most, was harmless error.        Such error is not

cause for reversal.     Section 46-20-701, MCA.
     We are aware of the apparently conflicting opinion of
the Court where self-defense is an issue, and the ~andstrom
                              -14-
instruction is involved, in Holloway v. McElroy (D.Ga. 1979),
474 F.Supp. 1363, 1368.     The rationale of that Court is not
explained.   We find in this case that self-defense admits
a purposeful act, but claims the purposeful act was justified.
     Likewise, court's instruction no. 23 was not prejudicial
error under the felony-murder theory submitted to the jury.
     The felony-murder rule is embodied in the definition of
deliberate homicide in the Montana Criminal Code of 1973.
Section 45-5-102, MCA.     Intent as such is not an element under
the felony-murder rule.
     The felony-murder statute requires proof of the following
combination of elements:
     1.   The intent to commit a felony, burglary here;
     2.   An unintentional death caused by the attempt, per-
petration or attempted escape of a felon; and
     3.   The death must be an outgrowth of the felony itself
and related to the burglary by an unbroken chain of causation.
                       -
Bassiouni, Substantive Criminal Law (1978), at 250, 251.
     Earlier in this opinion, we affirmed the charge of
burglary against Sunday.    His intent to commit the burglary
was proven by direct evidence and by Sunday's own admissions.
Therefore, "purpose" as an element of that crime was established.
Intent was no longer an issue under the felony-murder statute
once it was shown by the evidence that Sunday committed a
burglary and Sunday killed the McLeans while in flight after
the commission of the burglary.    It was the commission of
the burglary which gave rise to the dangerous circumstances
which invited the McLeans' deaths.     The intent to commit the
burglary was a sufficiently supplied intent for all the
consequences including the homicides arising therefrom.
Bassiouni, supra, at 247.
     If the jury applied the felony-murder theory here, the

court's instruction no. 23 was superfluous because the jury
                                -15-
had no i s s u e of i n t e n t t o d e c i d e .         I n t e n t was n o t an e l e m e n t

o f t h e d e l i b e r a t e h o m i c i d e s , and i n t e n t was n o t an i s s u e b e f o r e

t h e jury.       The i n s t r u c t i o n p l a y e d no p a r t i n t h e j u r y ' s

d e l i b e r a t i o n s a s t o t h e d e l i b e r a t e homicides.

ISSUE NO. 4 :
      --               Sentences.

        Upon h i s c o n v i c t i o n s , Sunday was s e n t e n c e d t o s e r v e

1 0 0 y e a r s f o r e a c h c o u n t o f d e l i b e r a t e homicide, 1 0 y e a r s

f o r e a c h t h e f t c o u n t and 20 y e a r s f o r b u r g l a r y .       The t e r m s

are t o b e s e r v e d c o n s e c u t i v e l y , 240 y e a r s t o t a l , and Sunday

i s i n e l i g i b l e f o r p a r o l e o r p a r t i c i p a t i o n i n t h e work f u r l o u g h

program.

        Wilsonpleded g u i l t y t o two c o u n t s o f d e l i b e r a t e homicide

and t o two c o u n t s o f t h e f t .         He r e c e i v e d a s e n t e n c e of 100

y e a r s f o r e a c h d e l i b e r a t e homicide c o u n t and 10 y e a r s on e a c h

t h e f t count.       The s e n t e n c e s a r e t o b e s e r v e d c o n c u r r e n t l y ,

and w h i l e t h e c o u n t y a t t o r n e y w i l l n o t recommend p a r o l e , h e

w i l l n o t f i g h t Wilson's parole.
        Sunday c o n t e n d s t h e D i s t r i c t C o u r t d i d n o t have t h e

a u t h o r i t y t o impose a 20 y e a r s e n t e n c e f o r b u r g l a r y .        As for

t h e o t h e r s e n t e n c e s , Sunday a s s e r t s t h e y a r e u n c o n s c i o n a b l e and

u n j u s t i f i e d when compared t o t h e s e n t e n c e s r e c e i v e d by Wilson

who w a s e q u a l l y g u i l t y .

        W e a g r e e t h e D i s t r i c t C o u r t d i d n o t have t h e a u t h o r i t y

t o s e n t e n c e Sunday t o 20 y e a r s f o r b u r g l a r y .         By s t a t u t e ,     the

maximum p o s s i b l e s e n t e n c e f o r b u r g l a r y i s 1 0 y e a r s i n t h e

s t a t e penitentiary.           S e c t i o n 45-6-204,       MCA.      Accordingly,

under s e c t i o n 46-20-703,           MCA, w e r e d u c e Sunday's s e n t e n c e

f o r b u r g l a r y t o 10 y e a r s i n t h e s t a t e p e n i t e n t i a r y w i t h t h e

o t h e r p r o v i s i o n s o f t h e s e n t e n c e t o remain unchanged.

        Likewise, a l s o under s e c t i o n 46-20-703,                  MCA, w e r e v e r s e

t h e 10 y e a r s e n t e n c e Sunday r e c e i v e d upon h i s c o n v i c t i o n f o r

f e l o n y t h e f t a s c h a r g e d i n c o u n t V o f t h e amended i n f o r m a t i o n .

The S t a t e f a i l e d t o p r o v e an e s s e n t i a l e l e m e n t o f f e l o n y t h e f t

i n c o u n t V t h a t t h e p r o p e r t y t a k e n exceeded $150 i n v a l u e .

                                                 -16-
      With regard to the terms of the other sentences imposed
 upon Sunday, we find the District Court did not abuse its
 discretion.    All the other sentences are within the maximum
 allowed by law for each offense.        Similarly, the other
 provisions of the sentence, no parole and no work furlough,
 are also proper under the applicable statute.        Section 46-
 18-202, MCA.    The District Court determined that the restrictions
were necessary for the protection of society because of Sunday's
 extensive criminal record, his uncaring attitude and the
malevolent way in which he killed the McLeans.
      This Court will not second guess the trial judge, who
after observing the demeanor and attitude of the defendant,
uses his discretion in fixing punishment.         Matter of Jones
 (1978),        Mont.       ,   578 P.2d 1150, 1155, 35 St.Rep.


     Accordingly, Sunday's conviction for felony theft as
charged in count V of the amended information and the sentence
imposed thereon are reversed.        The count V felony theft
charge is dismissed.       The twenty year sentence for burglary
is reduced to ten years in the state penitentiary to be
 served under the other conditions laid down by the District
Court.     The burglary conviction is otherwise affirmed.
Sunday's other convictions and the sentences imposed thereon
are affirmed.


We Concur:


           Chief Justice




u             Justices

Mr. Justice Daniel J. Shea dissents and will file a written
dissent later.
                             - 17 -
No.   14591



S T A T E O F MONTANA,

                P l a i n t i f f and r e s p o n d e n t ,

       VS   .
ANDREW C .      SUNDAY,

                Defendant and a p p e l l a n t .



D I S S E N T O F MR.   J U S T I C E D A N I E L J . SHEA:
                                                                                                                   PPrTCp.~\



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Dated:      May      5, 1980                                  p   -
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Mr.    J u s t i c e D a n i e l J. Shea d i s s e n t i n g :


        F o r a number of r e a s o n s , t h e felony-murder i n s t r u c t i o n

g i v e n i n t h i s c a s e was improper.               Hence, I would r e v e r s e

t h e homicide c o n v i c t i o n s and o r d e r a new t r i a l .                I would,

moreover, r e v e r s e and d i s m i s s t h e b u r g l a r y c o n v i c t i o n b e c a u s e

t h e t a c k shed was n o t a n "occupied s t r u c t u r e " ~ ~ i t h t h e
                                                                         i n

meaning of t h e s t a t u t e .          With r e l a t i o n t o c o u n t I11 o f t h e

t h e f t c h a r g e s , I would r e a c h t h e s a m e r e s u l t t h e r e as w a s

r e a c h e d by t h e m a j o r i t y i n r e l a t i o n t o c o u n t V o f t h e t h e f t

c h a r g e s , t h e r e b y r e v e r s i n g and d i s m i s s i n g e a c h t h e f t c h a r g e

f o r f a i l u r e t o p r o v e and i n s t r u c t upon a n e s s e n t i a l e l e m e n t .

                         --
THE FELONY-THEFT CHARGES AND THE MAJORITY DISPOSITION

        Defendant was c h a r g e d w i t h two c o u n t s of f e l o n g t h e f t - -

c o u n t s I11 and V.          Count I11 c h a r g e d t h e f t of p e r s o n a l p r o p e r t y

t a k e n from t h e McLean r a n c h .            T h i s c h a r g e i n c l u d e d t h e f t of

t h r e e r i f l e s , two s h o t g u n s , and t h r e e h o r s e s .       Count V c h a r g e d

t h e f t o f p e r s o n a l p r o p e r t y a f t e r t h e commission o f t h e homi-

cides.       This charge included t h e f t of a pickup t r u c k , a p i s t o l ,

a r i f l e , a woman's p u r s e , and $150 i n c a s h .                  As the majority

h a s s t a t e d , t h e r e was no d i r e c t e v i d e n c e p r e s e n t e d on t h e v a l u e

o f t h e i t e m s and t h e t r i a l c o u r t t o t a l l y f a i l e d t o i n s t r u c t

t h e jury t h a t value i s an element of t h e offense.

        I n t h i s appeal, defendant a t t a c k e d only count V, contending

t h a t v a l u e was n o t proved.             In r e l a t i o n t o t h i s contention,

t h e m a j o r i t y held t h a t value i s an e s s e n t i a l element of t h e

o f f e n s e o f t h e f t and t h a t t h i s C o u r t w i l l n o t t a k e j u d i c i a l

n o t i c e of v a l u e b e c a u s e i t i s an e s s e n t i a l e l e m e n t t o b e

proved.        With t h i s I a g r e e .        Accordingly, t h e m a j o r i t y reversed
                                                            ea
t h e c o n v i c t i o n on Count V and o r d e r 7 t h e c h a r g e d i s m i s s e d .            With

t h i s I a l s o agree.          I f a i l t o understand,            however, why, on

t h e s a m e b a s i s , t h e m a j o r i t y d i d n o t a l s o o r d e r r e v e r s a l and

                                          -18-
d i s m i s s a l of t h e t h e f t c o n v i c t i o n o n c o u n t 111.       The same

law a p p l i e s t o e a c h c o u n t , and t h e S t a t e f a i l e d t o p r o v e

v a l u e and t h e j u r y w a s n o t i n s t r u c t e d t h e v a l u e w a s an

e s s e n t i a l e l e m e n t t o be proved w i t h r e l a t i o n t o e a c h c o u n t

of t h e f t .     How, under t h e s e c i r c u m s t a n c e s , can a r e v e r s a l

and d i s m i s s a l be o r d e r e d on c o u n t V and a n a f f i r m a n c e be

d e r d w i t h r e l a t i o n t o count I I I ?         Although t h e d e f e n d a n t d i d

n o t r a i s e any i s s u e w i t h r e l a t i o n t o c o u n t 111, t h i s C o u r t ,

under t h e p l a i n e r r o r d o c t r i n e , c a n r e a c h t h e same r e s u l t

w i t h r e l a t i o n t o c o u n t I11 a s i t h a s r e a c h e d w i t h r e l a t i o n

t o c o u n t V.

        Based on t h e m a j o r i t y r a t i o n a l e t h a t v a l u e i s an e s s e n t i a l

e l e m e n t o f t h e c r i m e which must be proved beyond a r e a s o n a b l e

d o u b t , and t h a t w e w i l l n o t t a k e j u d i c i a l n o t i c e of t h e v a l u e

o f t h e i t e m s i n v o l v e d i n o r d e r t o uphold a c o n v i c t i o n , I

would a l s o r e v e r s e and d i s m i s s t h e t h e f t c o n v i c t i o n under

c o u n t 111.

BURGLARY--THE          - - -A NOT AN OCCUPIED STRUCTURE W I T H I N
                       T C SHED W - -
                        AK        S

THE MEANING O - BURGLARY STATUTE
-            F
            - THE
        There are s e v e r a l r e a s o n s why t h e felony-murder r u l e

h a s no a p p l i c a t i o n t o t h e f a c t s of t h i s c a s e .       As a starter,

t h e t a c k s h e d w a s n o t a n o c c u p i e d s t r u c t u r e w i t h i n t h e meaning

of t h e burglary s t a t u t e .          Obviously, however, s i n c e t h e

majority declares t h a t t h e underlying felony f o r application

of t h e felony-murder r u l e i s b u r g l a r y , it i s n e c e s s a r y t h a t

i t d e c l a r e t h e t a c k s h e d t o b e an o c c u p i e d s t r u c t u r e .      Absent

t h i s h o l d i n g , t h e felony-murder r u l e as a p p l i e d h e r e , would

come t u m b l i n g down l i k e a house of c a r d s .                Thus t h e m a j o r i t y

h a s k i l l e d two b i r d s w i t h one s t o n e h e r e .         By d e c l a r i n g t h e

t a c k s h e d t o be a n o c c u p i e d s t r u c t u r e , i t h a s a f f i r m e d t h e

u n d e r l y i n g b u r g l a r y c o n v i c t i o n , and a l s o s e t t h e s t a g e f o r

                                             -19-
a p p l i c a t i o n o f t h e felony-murder r u l e .           This is a c l e a r

d e m o n s t r a t i o n o f what happens when an a p p e l l a t e c o u r t i s

r e s u l t oriented--the           law i s c r e a t e d o r expanded t o f i t t h e

facts.
        The b u r g l a r y s t a t u t e , s e c t i o n 45-6-204(1),         MCA, p r o v i d e s

that:       "[A]    p e r s o n commits t h e o f f e n s e o f b u r g l a r y i f h e

knowingly e n t e r s o r remains u n l a w f u l l y i n an o c c u p i e d s t r u c t u r e

w i t h t h e p u r p o s e t o commit an o f f e n s e t h e r e i n . "        (Emphasis

added.)        The t r i a l c o u r t i n s t r u c t e d t h e j u r y t h a t one of t h e

e s s e n t i a l e l e m e n t s f o r t h e c r i m e of b u r g l a r y which must be

proved beyond a r e a s o n a b l e d o u b t i s t h a t t h e s t r u c t u r e i n v o l v e d

must have been a n " o c c u p i e d s t r u c t u r e . "          ( I n s t r u c t i o n s 1 2 and

13.)      By i n s t r u c t i o n 1 3 , t h e t r 2 a l c o u r t t o l d t h e j u r y t h a t

t h e f i r s t of two e l e m e n t s which must be proved beyond a r e a s o n -

a b l e d o u b t i s " t h a t the d e f e n d a n t knowingly and u n l a w f u l l y

e n t e r e d o r remained u n l a w f u l l y w i t h i n a n o c c u p i e d s t r u c t u r e . "

"Occupied s t r u c t u r e " was a l s o d e f i n e d f o r t h e j u r y         (instruction

1 4 , t h e s t a t u t o r y d e f i n i t i o n contained i n s e c t i o n 45-2-lOl(34)):

        "You a r e i n s t r u c t e d t h a t " o c c u p i e d s t r u c t u r e "
        means any b u i l d i n g , v e h i c l e , o r o t h e r p l a c e
        s u i t e d f o r human occupancy o r n i g h t l o d g i n g
        o r p e r s o n s o r f o r c a r r y i n g on b u s i n e s s whether
        o r not a person i s a c t u a l l y p r e s e n t .           Each u n i t
        of a b u i l d i n g c o n s i s t i n g of two o r more u n i t s
        s e p a r a t e l y secured o r occupied is a s e p a r a t e
        occupied s t r u c t u r e . "        (Emphasis added.)

        The m a j o r i t y h a s s e i z e d upon t h e emphasized language of

t h i s i n s t r u c t i o n and d e c l a r e d t h a t t h e t a c k shed i s " s u i t e d

. . .     f o r c a r r y i n g on b u s i n e s s . "   The t a c k s h e d h e r e i s e i g h t

f e e t by twenty f e e t and i s made o u t of rough lumber.                            Inside

t h e s h e d t h e r e are n a i l s and pegs f o r hanging h o r s e t a c k ,

b u t t h e r e a r e no l i v i n g f a c i l i t i e s .   The t a c k s h e d was used

exclusively f o r s t o r i n g horse tack.                  Entry t o t h e t a c k shed

was made i n t h e v e r y e a r l y morning h o u r s o f Sunday, September

5 , 1977.       There w e r e no human b e i n g s t h e n i n s i d e t h e t a c k shed.
     The declaration that the tack shed was suitable for
carrying on business goes beyond the intent of the criminal
law commission, which, of course, drafted the statutes in-
volved before they were presented to the legislature.    The
Revised Criminal Law Commission Comment states:
    "The core of common law concept of burglary
    was breaking and entering a dwelling house at
    night with intent to commit a felony therein.
    The scope of the offense has enlarged until
    under prevailing law, the offense may be com
    mitted by entry alone, in day time as well as
    by night, in any building, structure, or 'vehicle.'"
    "In this code, the 'occupied structure' is
    narrowly defined to include buildings where people
    can live or work and where intrusions are most
    alarming and dangerous. For example, the definition
    -- include barns, or abandoned buildings
    does not
    unsuited - human occupancy. In the case of a
             for
    mine or ship, for example, fitness for occupancy
    would have to be proved. 'Entering or remaining
    unlawfully' is a concept which takes a middle
    ground between prevailing law which requires a
    breaking and its complete elimination in some
    modern legislation." (Emphasis added.)
    There is nothing in the legislative record to indicate
any construction beyond that given to it by the Criminal Law
Commission.   By its decision here, however, this Court has
declared that any barn into which a human may venture,
regardless of whether or not it is then occupied, is, within
the meaning of the burglary statute, an occupied structure.
This is an unwarranted statutory extension.
     Before the trial of this case, defense counsel moved to
dismiss the burglary charge because the tack shed was not an
occupied structure within the meaning of the burglary statute.
 The prosecutor
/vigorously resisted dismissal of the burglary charge and
the defense motion was denied.   Thus the case went to trial
with defendant facing a burglary charge.     Neither he nor
defense counsel had the wildest dream, however, that as a
result of this burglary charge, the prosecution would inject
another theory of homicide into the case by-offering a felony-
murder instruction at the end of the case.
     Because the tack shed was not an occupied structure
within the meaning of the burglary statute, the burglary
conviction must be reversed and dismissed.

- PERMITTING THE FELONY-MURDER INSTRUCTION - STAND UNDER
IN                                         TO
THE FACTS-OF-
         - THIS CASE, THE MAJORITY HAS IGNORED SOME
                  -
FUNDAMENTAL RULES OF CRIMINAL PROCEDURE
     Vital to a charge of felony-murder is the fundamental
requirement that it be charged if the prosecution expects a
conviction on that theory.   Defendant was not charged with
felony-murder--it is that simple.   He was charged in count I
with "purposely or knowingly" killing Kenneth L. McLean, and
he was charged in count I1 with "purposely or knowingly"
killing Marion McLean.
     The deliberate homicide statute (section 45-5-102, MCA)
reads as follows:
     " (1) Except as provided in 45-5-103 (1),
     criminal homicide constitutes deliberate
     homicide if:
     "(a) it is committed purposely or knowingly;
     or
     -
     "(b) it is committed while the offender is
     engaged in or is an accomplice in the commission
     of, an attempt to commit, or flight after com-
     mitting or attempting to commit robbery, sexual
     intercourse without consent, arson, burglary,
     kidnapping, felonious esccape, or any other felony
     which involves the use or threat or physical force
     or violence against any individual." (Emphasis
     added. )
     By the clear wording of the statute, deliberate
homicide can be committed in eit3x.r of two ways.    Under
subsection (l)(a), by "purposely or knowingly" killing the
victim.     Under subsection (l)(b), by commiting an underlying
felony which triggers application of the felony murder rule.
The State, however, did not charge the defendant under both
theories.
     Count I related to the killing of Kenneth L. McLean,
and the charging part of the information alleged that the
defendant:
     ".    ..committed the offense of DELIBERATE
     HOMICIDE, a felony in that [he] purposely
     or knowingly caused the death of Lemul Kenneth
     E ~ e a n shooting him with a firearm . . ."
             by
     (Emphasis added. )
And count I1 related to the death of Marion McLean.    The
charging part of the information alleged that the defendant:
     ". . . committed the offense of DELIBERATE
     HOMICIDE, a felony, in that [he] purposely or
     knowingly caused the death of MARION McLEAN
     by shooting her with a firearm. .    ."
                                           (Emphasis
     added. )
     Needless to say these charges do not allege facts which
would permit invocation of the felony-murder rule.    Nor is

there any indication by the charges that the prosecutor would
rely on the felony-murder rule as an alternative theory of
his case.    Defendant pleaded not guilty to counts I and 11,
he went to trial defending on those charges as specified,
and the trial itself was conducted on the basis of those
charges.    It is fundamentally unfair to add an additional
theory at the end of the trial by offering an instruction
containing the felony-murder rule.    That is precisely what
the prosecutor did in this case.
                              -
PROCEDURAL ERROR - PERMITTING THE FELONY-MURDER INSTRUCTION
                 IN
TO -
- STAND
    Assuming an evidentiary basis for application of the
felony-murder rule, there is no doubt that the State had the
r i g h t t o c h a r g e t h e d e f e n d a n t a l t e r n a t i v e l y and t o go t o

t h e j u r y on a l t e r n a t i v e c h a r g e s o r t h e o r i e s .    S e c t i o n 46-

1 1 - 4 0 4 (1), MCA, p r o v i d e s i n p a r t :

        "An    ...        information         . . .      may c h a r g e     . . .
        d i f f e r e n t s t a t e m e n t s of t h e s a m e o f f e n s e
         ...        under s e p a r a t e c o u n t s . .   . .    The p r o s e c u t i o n
        i s n o t r e q u i r e d t o e l e c t between t h e d i f f e r e n t
        offenses o r counts set f o r t h i n t h e                   .. .   information
        .. .     It




        It is clear, therefore,                  t h a t a l t h o u g h t h e r e would be

b u t one o f f e n s e i n r e l a t i o n t o t h e d e a t h of e a c h p e r s o n ,

a j u r y c o u l d have r e t u r n e d a v e r d i c t f i n d i n g d e f e n d a n t g u i l t y

under t h e " p u r p o s e l y o r knowingly" t h e o r y o r under t h e f e l o n y -

murder t h e o r y , o r under b o t h t h e o r i e s .

        But t h e c r u c i a l i s s u e h e r e i s t h a t t h e S t a t e had no r i g h t

t o p r e s e n t b o t h t h e o r i e s t o t h e j u r y i n t h e a b s e n c e of

c h a r g e s i n i t i a l l y i n f o r m i n g t h e d e f e n d a n t t h a t h e was charged

under b o t h t h e o r i e s .      I f t h e S t a t e d e s i r e d t o amend t h e

i n f o r m a t i o n b e f o r e t r i a l and i n c l u d e an a l t e r n a t i v e c o u n t of

felony-murder,             it had t h e r i g h t t o d o s o .          In fact, section

46-11-403,            MCA, e n t i t l e d Amending t h e Charge, sets f o r t h

t h e p r o c e d u r e f o r amending an i n f o r m a t i o n .            But no e f f o r t

was e v e r made t o amend t h e c h a r g e s b e f o r e t h e t r i a l , o r

f o r t h a t m a t t e r , a t any t i m e .

        With t h e s t a t u t o r y background of s e c t i o n 46-11-404(1)

and 46-11-403,             MCA,   i n mind, I f a i l t o see how a p o s s i b l e

felony-murder c o n v i c t i o n can be based upon a t h e o r y n o t

charged i n t h e information.

        There i s no i n d i c a t i o n i n t h e r e c o r d of why d e f e n s e

c o u n s e l a t t r i a l f a i l e d t o c a t c h t h e new t h e o r y s p r u n g on

t h e d e f e n d a n t by i n s t r u c t i o n 1 6 , s e t t i n g f o r t h t h e f e l o n y -

murder r u l e i n a d d i t i o n t o t h e c h a r g e t h a t d e f e n d a n t " p u r p o s e l y

o r knowingly" k i l l e d t h e McLeans.                  T r i a l counsel d i d not

r e p r e s e n t d e f e n d a n t on t h e a p p e a l o f t h i s c a s e ( t h e r e a s o n
being that sometime after the conviction in this case,
he went to work for the county presecutor who tried this
case).   It appears, nonetheless, that his failure to object
to the felony-murder portion of the instruction, was inadvertent.
His objection to the instruction was that it was repetitious
of other instructions already defining deliberate homicide and
the elements to be proved.     It was indeed repetitious; but
it went one step beyond this and injected the felony-murder
theory into this case for the first time.     It is fundamentally
unfair that the prosecutor can be rewarded for his deliberate
injection of a new issue and theory into the trial upon the
settlement of instructions, in total violation of the pro-
cedural rules governing the charging of an offense.    Why
should a defendant be punished because the prosecutor has
violated the basic procedural statutes governing his conduct
as a prosecutor?
     The majority's rationale for permitting the felony-murder
instruction and possible conviction for felony-murder to
stand, is more than tissue-paper thin.    Waiver by failing to
object to the instruction, and failure to move the court to
require the prosecution to elect its theory to present to
the jury, are the announced grounds.
     As to waiver, the majority's reliance on State v. Campbell
(1965), 146 Mont. 251, 405 P.2d 978, and cited by the State in
its brief on this point, is misplaced.    In Campbell, the
raising of an objection to an instruction on one ground at
trial, and on an entirely different ground on appeal, was
held to constitute a waiver.    But the instruction involved
in Campbell did not inject into the trial an entirely new
theory of the case.   Here the State is rewarded for proceeding
in blatant violation of the underlying statutory guidelines
for charging and amending criminal charges.    A waiver theory
must have as its underlying foundation, a belief that the
                                -25-
error was not so fundamental as to require a reversal.       Here
the error is so fundamental, and so palpable, that a reversal
is required.
       As its second procedural reason for turning down
defendant's argument with relation to the felony-murder
instruction, the Court states:    "Additionally, at trial,
Sunday did not require the State to specify which theory
of deliberate homicide the State was following."     In the
context of this case, this rationale has no application
at all.
       Where only one theory has been charged it is rather
difficult and meaningless to require a defendant to move
to require the prosecutor to specify which theory he will
rely on in asking the jury to reach a decision.     The charges
contained no basis upon which a defendant could make such a
motion.    Furthermore, assuming that defendant was charged
alternatively with felony-murder, there was no basis in the
law upon which a defendant could successfully move that the
State elect its theory.    Section 46-11-404(1), supra,
specifically allows alternative charges and states, moreover,
that   ". . . The prosecution is not   required to elect   . . ."
       Here the error is plain and the prejudice manifest.     This
Court has a duty to recognize such manifest errors and take
the necessary corrective measures.      Indeed, under the plain
error doctrine this Court can take the necessary corrective
action where the error has affected the substantial rights
of the parties.    The only remedy here is to grant defendant
a new trial.
       For reasons that I am unable to fathom, there is an
ever present tendency of this Court to relieve the trial courts
of their affirmative duties to properly instruct the jury on
the applicable law of the case.   As far as I am concerned
                           -26-
s u c h d u t y i n h e r e i n t h e o f f i c e o f a d i s t r i c t judge and

c a n n o t be d e l e g a t e d t o t r i a l c o u n s e l f o r e i t h e r p a r t y .

Although t h e d u t y i s e q u a l l y clear i n c i v i l and c r i m i n a l

c a s e s , l i f e and l i b e r t y i s a t s t a k e i n c r i m i n a l c a s e s and

t h u s t h e r e a r e more c o m p e l l i n g r e a s o n s t o r e q u i r e t h e D i s t r i c t

Court t o p r o p e r l y i n s t r u c t t h e jury.           I n t h i s respect, the

t r i a l judge c a n n o t be a n i d l e p a r t i c i p a n t , l e a v i n g i t t o

counsel t o provide t h e appropriate i n s t r u c t i o n s f o r t h e jury.

There i s , of c o u r s e , a s t r o n g d u t y of c o u n s e l t o a i d t h e

t r i a l court i n preparing the appropriate instructions, but

t h e u l t i m a t e d u t y c a n n o t be d e l e g a t e d t o c o u n s e l .

        Here it was t h e p l a i n d u t y o f t h e p r o e z c u t o r t o r e f r a i n

from o f f e r i n g a n i n s t r u c t i o n which i n j e c t e d a t h e o r y of

c r i m i n a l homicide which had n o t been s p e c i f i c a l l y c h a r g e d .

I t was f u r t h e r t h e d u t y n o t t o o f f e r an i n s t r u c t i o n on a

t h e o r y which h a s no e v i d e n t i a r y b a s i s .       It w a s equally the

duty of t h e t r i a l c o u r t not t o permit t h e prosecutor t o

r e c e i v e t h e b e n e f i t of a n a d d i t i o n a l t h e o r y of c r i m i n a l

r e s p o n s i b i l i t y where s u c h t h e o r y h a s n o t been c h a r g e d and

where t h e t r i a l h a s n o t been conducted on t h a t b a s i s .                       Fur-

t h e r m o r e , i t i s t h e d u t y of a t r i a l c o u r t t o r e j e c t an

i n s t r u c t i o n which o f f e r s a t h e o r y upon which t h e r e i s no

evidentiary basis.

THE FELONY-MURDER INSTRUCTION GIVEN W S INACCURATE AND-
                                     A             - AN
IMPROPER STATEMENT OF - -
                   - THE LAW
        Assuming a p r o c e d u r a l and e v i d e n t i a r y f o u n d a t i o n t o

g i v e a felony-murder i n s t r u c t i o n , t h e i n s t r u c t i o n a s g i v e n

i s a c l e a r d e v i a t i o n from what would b e a p r o p e r i n s t r u c t i o n .

The m a j o r i t y h a s b a s e d t h e a p p r o p r i a t e n e s s o f t h e i n s t r u c t i o n

on i t s c o n c l u s i o n t h a t d e f e n d a n t cornrr.itted t h e u n d e r l y i n g

felony of burglary.                But t h e i n s t r u c t i o n was n o t worded i n

s u c h t e r m s t h a t t h e j u r y c o u l d o n l y f i n d b u r g l a r y as t h e
underlying felony.    Rather, the instruction was an open
invitation to the jury to find any underlying felony, even
though not charged.    Furthermore, the jury could well have
determined that theft was the underlying felony which triggered
the operation of the felony-murder rule.
     As previously quoted, section 45-5-102(1) (b), MCA,
creates a felony-murder situation if:
     "it is committed while the offender is engaged
     in or is an accomplice in the commission of, or
     an attempt to commit, or flight after comrniting
     or attempting to commit robbery, sexual inter-
     course without consent, arson, burglary, kidnapping,
     felonious escape, - - other felony which involves
                       or any
     the- -or threat of physical force or violence
     -   use           --
     aaainst anv individual." (Emphasis added.)
     If it was the State's contention that the underlying
felony was burglary, the instruction should only have stated
that burglary was the underlying felony upon which the State
based its felony-murder theory.       But the instruction included
also the above-emphasized language from the statute, thus
giving an open invitation to the jury to find another under-
lying felony.   The actual instruction (instruction 16, not
quoted in the majority opinion), provides as follows:
     "You are instructed that a criminal homicide is
     deliberate homicide if:
     "(1)                                           -
            It is committed purposely or knowingly; or
     " (2) It is committed while the offender is
     enqaqed in flight after committing or attempting
     to-commit burglary or - other felony which
                        - any               --
     involves - - -or threat of physical force or
              the use                             -
     violence against any individual." (Emphasis added
     It is obvious from this instruction that the jury was not
confined to determining only that flight after a burglary
triggered the application of the felony-murder rule.      Rather,
the felony-murder rule, by this instruction, is triggered
also by flight after "any other felony which involves the
use or threat of physical force or violence against any
individual."    The State had absolutely no right to give this
                               -28-
open-ended i n s t r u c t i o n and t h e t r i a l c o u r t had a p o s i t i v e

d u t y t o r e j e c t t h i s open-ended i n s t r u c t i o n .
USE OR
--         IMPACT OF - FELONY-MURDER INSTRUCTION G I V E N -
                  - THE                                    IN

THIS CASE
--
        A f t e r t h e enactment of t h e new c r i m i n a l code i n t h i s
S t a t e c r e a t i n g and d e f i n i n g s u b s t a n t i v e c r i m e s , a book of
j u r y i n s t r u c t i o n s was c i r c u l a t e d t o many of t h e l a w y e r s
i n t h i s S t a t e , and i n p a r t i c u l a r , t o t h e p r o s e c u t o r s .    It

i s e n t i t l e d , - riminal Instructions--Montana.
                      C                                                     The book

p r o v i d e s no i n f o r m a t i o n a s t o who p u b l i s h e d i t , o r who
p r e p a r e d t h e i n s t r u c t i o n s and t h e comments i n rela-kion t o

t h e p r o p e r u s e of t h e i n s t r u c t i o n s .   I n any e v e n t , i n s t r u c t i o n
59 p u r p o r t s t o be t h e c o r r e c t method of i n s t r u c t i n g t h e

j u r y on t h e s u b s t a n t i v e c r i m e of d e l i b e r a t e homicide.          The

i n s t r u c t i o n p e r t a i n i n g t o felony-murder p r o v i d e s :
        "A c r i m i n a l homicide i s d e l i b e r a t e homicide i f :

        " I t i s committed w h i l e t h e o f f e n d e r i s [engaged]
        [an a c c o m p l i c e ] i n [ t h e commission o f ] [ a n
        a t t e m p t t o commit] [ f l i g h t a f t e r committing o r
        a t t e m p t i n g t o commit] [ r o b b e r y ] [ s e x u a l i n t e r -
        course without consent] [arson] [burglary]
        [ k i d n a p p i n g ] [ f e l o n i o u s e s c a p e ] o r [any o t h e r
        f e l o n y which i n v o l v 2 s - - - h r e a t o f
                                                 t h e use o r t
        physical f o r c e l e n c e against - individual.]"          any
        (Emphasis added.)
        The l a n g u a g e , " o r any o t h e r f e l o n y which i n v o l v e s t h e

u s e o r t h r e a t of p h y s i c a l f o r c e o r v i o l e n c e a g a i n s t any
i n d i v i d u a l , " i s bracketed.         T h i s language i s n o t i n t e n d e d
t o be p a r t of t h e i n s t r u c t i o n .      Rather, i f t h e r e i s a felony

i n v o l v e d which i s n o t one o f t h e enumerated f e l o n i e s , b u t

which n o n e t h e l e s s " i n v o l v e s t h e u s e o r t h r e a t of p h y s i c a l
f o r c e o r v i o l e n c e a g a i n s t any i n d i v i d u a l " , it must be s o

designated.          Obviously, t h e d r a f t e r of t h i s i n s t r u c t i o n

r e a l i z e d t h a t a felony-murder i n s t r u c t i o n c o u l d n o t be open-
ended.       But t h e p r o s e c u t o r i g n o r e d t h e law i n t h i s c a s e and

s u b m i t t e d an open-ended i n s t r u c t i o n .
                                                  -29-
     If the jury arrived at its verdict through application
of the felony-murder rule, there is no assurance that it
determined the underlying felony to be burglary.     The jury
could have based its decision on a conclusion that theft was
the underlying felony.     The jury convicted the defendant of
two counts of felony theft.     There was no instruction which
told the jury that theft could not be used as a basis upon
which to predicate the application of the felony-murder rule.
Nor is there any assurance that the jury may have found some
other felony not charged as the basis to apply the felony-
murder rule.     The instruction invited the jury to do so.
It did not confine the jury to a consideration of those
felonies charged as being the sole basis upon which it could
apply the felony-murder rule.
    Assuming that the jury did find theft as the underlying
felony to apply the felony-murder rule, a conviction based
on this theory cannot stand.    First, felony theft is not
one of the designated felonies contained in the felony-murder
portion of section 45-5-102(1)(b); nor does it fall within
the meaning of "any other felony which involves the use or
threat of physical force or violence against any individual."
Second, assuming that felony-theft can trigger the application
of the felony-murder rule, since the underlying felony-theft
convictions cannot stand in this case, neither can a felony-
theft conviction based upon a theory that felony-theft
triggered application of the felony-murder rule.
     For purposes of distinguishing the crimes of theft
and burglary in relation to the felony-murder rule, it is
necessary to discuss the concept of burglary under the new
criminal code.     Burglary is singled out under the new code
as being a crime the gravamen of which is the threat to
human beings.     In explaining the burglary statute, Montana
Criminal - - Annotated, at 236, the annotator speaks
         Code, 1973,
to this point:
        "Perhaps t h e most s i g n i f i c a n t of t h e changes
        i n t r o d u c t e d by t h e new code is t h e r e t r e a t
        from t h e p r i o r view [ t h e p r i o r s t a t u t o r y view]
        t h a t any b u i l d i n g o r v e h i c l e c o u l d b e t h e o b j e c t
        o f b u r g l a r y t o t h e view t h a t t o c o n s t i t u t e bur-
        g l a r y t h e a c t s must be d i r e c t e d a g a i n s t an
        occupied s t r u c t u r e .         The change r e f l e c t s a
        r e t u r n - -e common - v i e w h t - ~ e n
                      t o th                         -- hersvam
        -
        o f b u r g l a r y was - t h r e a t t o p e r s o n s r e s u l t i n g
                              -the
        -- w r o n g f u l intrusion.
        from t h e                                          While t h e new code
        i s n o t a s t e c h n i c a l l y r e s t r i c t i v e i t does r e q u i r e
        t h a t t h e s t r u c t u r e intruded i n t o being e i t h e r
        a c t u a l l y o c c u p i e d o r ' s u i t e d f o r human occupancy
        o r n i g h t l o d g i n g of p e r s o n s o r f o r c a r r y i n g on
        business.             (See S94-2-lOl(35) [now S45-2-101(34) ,
        MCA].         I n e f f e c t t h i s l i m i t s burglary t o those
        s i t u a t i o n s i n which - i n t r u s i o n - -
                                            the                    is  most
        a l a r m i n g - t h e t h r e a t t o human --
                          and-                                   l i f e the
        meatest."
        2                           -
                              (Emphasis a d d e d . )
                               -


        Because a b u r g l a r y , under c e r t a i n c i r c u m s t a n c e s , c a n

b e t h r e a t e n i n g t o human b e i n g s , it i s s p e c i f i c a l l y d e s i g n a t e d

i n t h e felony-murder s t a t u t e a s b e i n g a f e l o n y which c a n

t r i g g e r a p p l i c a t i o n of t h e felony-murder r u l e .               T h e f t , of

course, i s not.             The gravamen of t h e f t i s , an o f f e n s e a g a i n s t

property.          See s e c t i o n 45-6-301,          MCA,     e t seq.       Nowhere i n

t h e annotator's note with reference t o thef                             (Montana C r i m i n a l

Code, 1973, A n n o t a t e d , a t 243-245) ,is t h e r e any i n d i c a t i o n

t h a t t h e f t , by i t s n a t u r e , i n v o l v e s a t h r e a t of p h y s i c a l

f o r c e o r v i o l e n c e a g a i n s t an i n d i v i d u a l .   Indeed, t h a t i s

t h e r e a s o n b u r g l a r y i s d i s t i n g u i s h e d from t h e f t .

        I t i s t r u e t h a t s e c t i o n 45-5-102(1) ( b ) s p e c i f i c a l l y

p e r m i t s r e l i a n c e on a n u n d e r l y i n g f e l o n y o t h e r t h a n t h o s e

which a r e s p e c i f i e d w i t h i n t h e s t a t u t e i t s e l f .        The r e q u i r e -

ment i s t h a t t h e f e l o n y r e l i e d on be "any o t h e r f e l o n y which

i n v o l v e s t h e u s e o r t h r e a t of p h y s i c a l f o r c e o r v i o l e n c e

a g a i n s t any i n d i v i d u a l . "   There can b e no doubt however, t h a t

t h e p r o s e c u t o r and t h e j u r y a r e n o t p e r m i t t e d t o s p e c u l a t e

a s t o c h o i c e s of an u n d e r l y i n g f e l o n y which may t r i g g e r t h e

felony-murder r u l e by f a l l i n g w i t h i n t h e s t a t u t o r y d e f i n i t i o n .

Felony t h e f t i s n o t a crime i n which " t h e u s e o f                       . . .
p h y s i c a l f o r c e o r v i o l e n c e a g a i n s t any i n d i v i d u a l " i n h e r e s

i n t h e crime i t s e l f .
        The a n n o t a t o r ' s n o t e t o t h e t h e f t s t a t u t e , sets f o r t h

t h e general scope of t h e t h e f t s e c t i o n of t h e c r i m i n a l

code :

        "This s e c t i o n on t h e f t encompasses t h e t r a d i -
        t i o n a l c r i m e s of l a r c e n y , l a r c e n y by t r i c k ,
        f a l s e p r e t e n s e s , embezzlement, r e c e i v i n g s t o l e n
        p r o p e r t y as w e l l a s numerous a s s o c i a t e d o f f e n s e s .
        The Montana C r i m i n a l Law Commission i n t e n d e d t h a t
        t h i s s e c t i o n c o v e r e v e r y c o n c e i v a b l e form of
        t h e f t and i n s o d o i n g , e l i m i n a t e t h e common l a w
        d i s t i n c t i o n s which encumbered v i r t u a l l y e v e r y one
        of t h e t h e f t r e l a t e d offenses."               (Annotated code,
        supra, a t 2 4 3 . )

        I t i s abundantly c l e a r t h a t felony t h e f t is not a c r i m e

which, under t h e felony-murder s t a t u t e ,                    "involves t h e use

o r t h r e a t o f p h y s i c a l f o r c e o r v i o l e n c e a g a i n s t any i n d i v i d u a l . "

The m a j o r i t y h a s based i t s o p i n i o n on a n assumption t h a t t h e

j u r y found t h e u n d e r l y i n g f e l o n y t o be b u r g l a r y .        But t h e r e

i s no b a s i s i n t h e r e c o r d from which we can make t h a t d e t e r -

mination.          The j u r y w a s n o t i n s t r u c t e d t h a t b u r g l a r y i s a

c r i m e which i n v o l v e s " t h e u s e o r t h r e a t of p h y s i c a l f o r c e o r

v i o l e n c e a g a i n s t any i n d i v i d u a l . "   From t h e j u r y ' s s t a n d -

p o i n t t h e r e f o r e , t h e r e was no r e a s o n t o . d i s t i n g u i s h t h e f t

from b u r g l a r y i n d e t e r m i n i n g which u n d e r l y i n g f e l o n y t o

i n v o k e a s t r i g g e r i n g a p p l i c a t i o n of t h e felony-murder r u l e .

A s f a r a s t h e jury i s concerned, t h e i n s t r u c t i o n permitted

it t o f i n d t h e f t a s t h e underlying felony.                     Furthermore,

t h e f a c t t h a t d e f e n d a n t was c o n v i c t e d on b o t h c o u n t s of

f e l o n y t h e f t i s a n i n d i c a t i o n t h a t t h e j u r y may w e l l have

used f e l o n y t h e f t a s t h e u n d e r l y i n g f e l o n y by which a p p l i c a t i o n

o f t h e felony-murder r u l e w a s t r i g g e r e d .

        One c a n n o t t e l l which u n d e r l y i n g f e l o n y t h e j u r y

invoked i f it c h o s e t o a p p l y t h e felony-murder r u l e i n

reaching i t s verdict.                 Obviously, i f t h e j u r y d i d u s e f e l o n y

t h e f t a s t h e u n d e r l y i n g f e l o n y , t h e homicide c o n v i c t i o n

cannot stand.             J u s t as c l e a r l y , s i n c e no one c a n t e l l whether

t h e jury d i d o r d i d not use felony t h e f t a s t h e underlying
f e l o n y , t h i s C o u r t s h o u l d n o t p e r m i t t h e homicide con-

victions t o stand.

THE FELONY-MURDER - -H S NO EVIDENTIARY FOUNDATION -
                  RULE -
                       A                           IN

THIS CASE
--
        I next proceed t o t h e m a j o r i t y ' s conclusion t h a t t h e r e

was a n e v i d e n t i a r y b a s i s f o r t h e j u r y t o b a s e i t s v e r d i c t
on t h e felony-murder r u l e .                I n essence, the majority

c o n c l u d e s t h a t t h e d e f e n d a n t was f l e e i n g from a b u r g l a r y ,

t h a t t h e r e was a c a u s a l c o n n e c t i o n between t h e b u r g l a r y

and t h e d e a t h s o f Kenneth and Marion McLean, and t h e r e f o r e

t h a t t h e felony-murder a p p l i e d .            I have p r e v i o u s l y d i s c u s s e d

m p o s i t i o n t h a t a b u r g l a r y w a s n o t committed b e c a u s e t h e
 y

t a c k shed was n o t a n "occupied s t r u c t u r e " w i t h i n t h e meaning

of t h e s t a t u t e .     I have d i s c u s s e d m p o s i t i o n t h a t t h e open-
                                                       y

ended felony-murder i n s t r u c t i o n g i v e n i n t h i s c a s e c o u l d

w e l l have p r o v i d e d a b a s i s f o r t h e j u r y t o f i n d an under-
l y i n g f e l o n y o t h e r t h a n t h e c r i m e of b u r g l a r y .   T h i s open-

ended i n s t r u c t i o n , i s , of c o u r s e , e r r o r .      But assuming t h e

commission of a b u r g l a r y t o be w i t h i n t h e s t a t u t o r y meaning,

and assuming a p r o p e r felony-murder i n s t r u c t i o n , t h e f a c t s

of t h i s c a s e do n o t g i v e r i s e t o t h e a p p l i c a t i o n of t h e

felony-murder r u l e .            The McLeans w e r e n o t w i t h i n t h e i r

r i g h t s t o t a k e t h e law i n t o t h e i r own hands by arming them-

s e l v e s and l a t e r s e t t i n g t h e s c e n e f o r t h e armed c o n f r o n t a t i o n

and s h o o t o u t .

        Defendant and h i s a c c o m p l i c e s came upon t h e McLean

p r o p e r t y a t a p p r o x i m a t e l y 4:00   a.m.   Sunday morning, September

5 , 1977.        They i n t e n d e d t o t a k e t h r e e h o r s e s and " g e t away

from a l l t h e h a s s l e s " and " l i v e o f f t h e l a n d . "         These h o r s e s

belonged t o Kenneth H o e f f n e r b u t t h e y were i n t h e l a w f u l

p o s s e s s i o n o f t h e McLeans.         Defendant Sunday and h i s accomplice

Wilson t h e n e n t e r e d t h e t a c k shed and took t h r e e b r i d l e s ,

                                             -33-
t h r e e s a d d l e s , and t h r e e p a i r s of c h a p s .       As t o the

u s e o f t h e t a c k s h e d , an employee t e s t i f i e d t h a t o t h e r

employees o r g u e s t s went i n t o t h e t a c k shed from t i m e t o

t i m e t o o b t a i n o r r e p l a c e t h e r i d i n g equipment.             There

i s no t e s t i m o n y t h a t employees o r g u e s t s went i n t o t h e

t a c k shed between n i g h t f a l l and s u n r i s e , t h e t i m e when

t h e e n t r y was made h e r e .

        A s a r e s u l t of h i s e n t r y i n t o t h e tack shed, defendant

was c h a r g e d w i t h b u r g l a r y .    The p r o s e c u t o r a l l e g e d t h a t

t h e t a c k shed was an "occupied s t r u c t u r e . "                 In addition

t o t h e b u r g l a r y c h a r g e , c o u n t I11 a l l e g e d t h e f t i n t h a t

d e f e n d a n t and h i s a c c o m p l i c e s s t o l e t h r e e s a d d l e s , t h r e e

b r i d l e s and t h r e e p a i r s of c h a p s from t h e t a c k s h e d .            This

same c o u n t a l s o a l l e g e d t h a t d e f e n d a n t and h i s a c c o m p l i c e s

s t o l e t h r e e horses.

        A f t e r s a d d l i n g and b r i d l i n g t h e h o r s e s , d e f e n d a n t and

h i s a c c o m p l i c e s packed up what s u p p l i e s and equipment t h e y

h a d , and r o d e away.          Each of t h e d e f e n d a n t s had a f i r e a r m ,

a l l a p p a r e n t l y s t o l e n by them w h i l e t h e y w e r e i n t h e S t a t e

of Nebraska.           Defendant Sunday had a 30-30 r i f l e ; accomplice

Wilson had a 22.250 r i f l e ; and accomplice M i t c h e l l had a

s i n g l e s h o t . 4 1 0 shotgun.

        The t r i a l r e c o r d d o e s n o t d i s c l o s e when t h e McLeans

d i s c o v e r e d t h e h o r s e s and r i d i n g equipment m i s s i n g .           Nor,

o f c o u r s e , i s t h e r e any e v i d e n c e t h a t t h e y knew t h e d e f e n d a n t

and h i s a c c o m p l i c e s t o be armed.            The McLeans d i d n o t ,

however, r e p o r t t h e t h e f t s t o l o c a l l a w enforcement o f f i c i a l s .

R a t h e r , t h e y armed t h e m s e l v e s and s t r u c k o u t a f t e r t h e h o r s e

thieves.

        W e do n o t know when t h e McLeans began t h e i r s e a r c h

f o r t h e stolen horses.              The armed c o n f r o n t a t i o n d i d n o t t a k e

                                                 -34-
p l a c e u n t i l a t l e a s t a day and a h a l f l a t e r , i n t h e l a t e

a f t e r n o o n o f September 6, 1977.                By t h i s t i m e , d e f e n d a n t

and h i s a c c o m p l i c e s had t r a v e l e d o n l y a few m i l e s from t h e

McLean p r o p e r t y .      I t w a s t h e n , i n t h e words o f t h e m a j o r i t y

o p i n i o n , t h a t d e f e n d a n t and h i s a c c o m p l i c e s "saw a p i c k u p

t r u c k r a p i d l y approaching.           They t r i e d t o e s c a p e i n t o t h e

trees b u t w e r e c u t o f f by t h e p i c k u p .           The p i c k u p w a s d r i v e n

by Kenneth McLean.               H i s wife w a s a l s o i n t h e pickup.               Kenneth

McLean s t o p p e d t h e p i c k u p a b o u t s i x t y - f i v e f e e t from Sunday,

Wilson and t h e M i t c h e l l s . "         Thus t h e s t a g e w a s set f o r t h e

armed c o n f r o n t a t i o n and s h o o t o u t .

        McLean l e a p e d o u t o f t h e p i c k u p t r u c k c a r r y i n g a .308

c a l i b e r b o l t a c t i o n r i f l e , and M r s . McLean came o u t armed

w i t h a .38 c a l i b e r p i s t o l .      Defendant Sunday immediately d i s -

mounted from h i s h o r s e .              H e was armed w i t h a .30-30             rifle.

Accomplice Wilson w a s armed w i t h a .22-250 c a l i b e r b o l t

a c t i o n r i f l e , and accomplice M i t c h e l l w a s armed w i t h a . 4 1 0

gauge s i n g l e s h o t s h o t g u n .      Only a few words w e r e exchanged

before the gunbattle started.

        A s Kenneth McLean approached t h e d e f e n d a n t and h i s

accomplices, he y e l l e d ,           "What t h e God Damn h e l l i s g o i n g

on?     What k i n d o f p r a n k i s t h i s ?         Give u s o u r h o r s e s , o r

w e w i l l s h o o t you."       Marion McLean added, "Your God Damn

right we will."             Almost i n s t a n t a n e o u s l y w i t h h i s words,

Kenneth McLean o p e r a t e d t h e b o l t mechanism o f h i s r i f l e

and i n j e c t e d a c a r t r i d g e .     This evidence i s n o t disputed.

        But a d i s p u t e i n t h e t e s t i m o n y arises between what

d e f e n d a n t c o n t e n d s Kenneth McLean d i d and what t h e a c c o m p l i c e s

s a y happened.          Defendant Sunday t e s t i f i e d t h a t Kenneth McLean

p o i n t e d h i s r i f l e d i r e c t l y a t him and t h a t h e w a s " s c a r e d

as hell."         Accomplices M i t c h e l l and Wilson, on t h e o t h e r hand,

t e s t i f i e d t h a t McLean's r i f l e w a s p o i n t e d a t t h e ground.               In

any e v e n t , t h e s h o o t i n g immediately e r u p t e d .

                                               -35-
        Defendant f i r e d f i r s t and h i t Kenneth McLean i n

the leg.         The s h o o t i n g a s d e s c r i b e d i n t h e m a j o r i t y o p i n i o n ,

c o n t i n u e d u n t i l b o t h Kenneth McLean and Marion McLean l a y

dead.       Defendant and h i s a c c o m p l i c e s t h e n s t o l e some p e r s o n a l

b e l o n g i n g s from t h e McLeans and f l e d t o Oregon i n t h e McLean

p i c k u p t r u c k where t h e y were a r r e s t e d .

        I t i s c l e a r t h a t t h e S t a t e had t h e r e q u i s i t e p r o b a b l e

c a u s e t o c h a r g e d e f e n d a n t w i t h d e l i b e r a t e homicide ( " p u r -

p o s e l y o r knowingly" c a u s i n g t h e d e a t h s of Kenneth and

Marion McLean).              I t i s e q u a l l y a s c l e a r , however, t h a t t h e

S t a t e had no b a s i s t o c h a r g e d e f e n d a n t w i t h d e l i b e r a t e homi-

c i d e by a p p l i c a t i o n of t h e felony-murder r u l e .               Indeed,

t h e r e i s not t h e s l i g h t e s t i n d i c a t i o n i n the record t h a t

t h e d e f e n d a n t was e v e r p u t on n o t i c e t h a t he must dofend

a g a i n s t a felony-murder t h e o r y .

        Defendant gave n o t i c e t o t h e S t a t e t h a t he would r e l y

on a c l a i m o f s e l f - d e f e n s e a s a j u s t i f i c a t i o n f o r h i s a c t i o n s .

The S t a t e a t no t i m e opposed t h i s c l a i m e d d e f e n s e o r con-

t e n d e d t h a t d e f e n d a n t had no r i g h t t o c l a i m s e l f - d e f e n s e .

The r e c o r d i s b a r r e n of any i n d i c a t i o n t h a t t h e S t a t e i n t e n d e d

t o r e l y on t h e felony-murder r u l e a s t h e t h e o r y o r one of

i t s t h e o r i e s of p r o s e c u t i o n .   I f t h e S t a t e d i d intend t o use

t h e felony-murder r u l e , it was a well-guarded                          secret until

t h e end of t h e t r i a l when it s o c l e v e r l y s u p p l i e d t h e f e l o n y -

murder t h e o r y t o t h e j u r y i n t h e form o f an i n s t r u c t i o n .

        The m a j o r i t y makes no a t t e m p t t o a n a l y z e t h e f a c t u a l

context giving rise t o t h e d e c l a r a t i o n t h a t t h e felony-

murder was p r o p e r l y a p p l i e d .         Rather, t h e c l e a r implication

i s t h a t any c o n d u c t of t h e d e f e n d a n t and h i s a c c o m p l i c e s

a f t e r t h e commission of t h e b u r g l a r y , can be t r a c e d back

and become c a u s a l l y r e l a t e d t o t h e commission of t h e b u r g l a r y .

I t i s n o t s u f f i c i e n t t o g l i b l y d e c l a r e t h a t d e f e n d a n t committed

                                                   -36-
burglary and that the McLeans deaths are causally related
to the commission of the burglary.     The unusual~circumstances
existing in this case require that the relative rights of
the parties be considered, for these rights are inextricably
connected to a determination of whether the felony-murder
rule was properly applied here.
        To apply the felony-murder rule to this case is to
implicitly hold that defendant Sunday, as a matter of law,
was precluded from asserting that he was acting in self-
defense.     If a perpetrator of a proscribed felony contained
within the felony-murder statute is to be held criminally
responsible for conduct resulting in the deaths of human
beings which is causally connected to the commission of the
underlying felony, it makes little sense to permit him to
rely on a claim of self-defense as a justification of his
actions leading to the deaths involved.    Within the context
of the facts of this case, the McLeans' conduct was sufficient
to break the causal link between the commission of the
burglary and their tragic deaths.     There is no doubt here
that defendant Sunday had a right to present a claim of
self-defense to the jury.    This being so, I fail to see
how the State could be entitled to rely on the felony-murder
rule.
        The McLeans failed to report the horse thefts to a
law enforcement agency.     Rather, they appointed themselves
as a two member vigilante posse.     Armed for a confrontation
with the horse thieves, they went after them in their pickup
truck.     The record is barren of any evidence that the McLeans
had the intention to bring the horse thieves to justice by
using any kind of citizen arrest powers.     Rather, they were
concerned only with the return of the horses and were
willing to use armed force to accomplish that result.    With
both sides being armed, it appears that a classic western-
                              -37-
s t y l e g u n b a t t l e was i n e v i t a b l e .   I t was o c c a s i o n e d ,

however, by t h e p r e c i p i t i o u s and unwarranted a c t s of

t h e McLeans i n t a k i n g t h e law i n t o t h e i r own hands and

using force i n t h a t process.

        What i s t h e e x t e n t t o which t h e McLeans c o u l d go i n

u s i n g s e l f - h e l p e f f o r t s t o s e c u r e t h e r e t u r n of t h e h o r s e s ?

And assuming t h a t t h e McLeans u s e d o r t h r e a t e n e d t o u s e

armed f o r c e t o s e c u r e t h e r e t u r n of t h e i r h o r s e s , what i s

t h e e x t e n t t o which Sunday c o u l d resist t h e i r armed t h r e a t s

o r o v e r t a c t s which may have l e d him t o b e l i e v e t h a t h i s

l i f e was i n imminent d a n g e r ?              Did t h e McLeans have t h e r i g h t

t o a r m t h e m s e l v e s and by t h e u s e o f armed f o r c e demand t h e

r e t u r n of t h e i r h o r s e s ?     Did t h e McLeans have t h e r i g h t t o

t a k e such a c t i o n as would o r c o u l d l e a d t h e d e f e n d a n t o r

h i s a c c o m p l i c e s t o b e l i e v e t h e i r l i v e s t o b e i n imminent

danger?

        By t h e same t o k e n , t h e q u e s t i o n a r i s e s a s t o t h e e x t e n t

t o which d e f e n d a n t and h i s a c c o m p l i c e s c o u l d d e f e n d them-

s e l v e s a g a i n s t t h e u s e of f o r c e o r t h r e a t s o f u s e o f f o r c e

by t h e McLeans.      Assuming a n o v e r t t h r e a t e n i n g a c t by Kenneth
                                                                                 was Sunday,
McLean w i t h h i s r i f l e d i r e c t e d a t d e f e n d a n t S u n d a y d b e c a u s e

he had s t o l e n t h e McLeans' h o r s e s and r i d i n g a c c e s s o r i e s ,

r e q u i r e d t o s u b m i t h i m s e l f t o b e i n g t h e v i c t i m of a p o s s i b l e

homicide?         I f Sunday b e l i e v e d h i s l i f e t o be i n imminent

d a n g e r by Kenneth McLean's t h r e a t t o s h o o t accompanied by

a n o v e r t a c t , d i d h e have a r i g h t t o d e f e n d h i m s e l f by

f i r s t s h o o t i n g McLean?        Assuming an o v e r t a c t by McLean w i t h

h i s r i f l e d i r e c t e d a t d e f e n d a n t Sunday, d i d Sunday have t h e

r i g h t t o d e f e n d h i m s e l f by t h e u s e of c o u n t e r v a i l i n g armed

force?       Only i f it can be h e l d a s a m a t t e r o f law t h a t

Sunday had no r i g h t t o d e f e n d h i m s e l f from McLean's t h r e a t s

o r o v e r t a c t s w i t h h i s r i f l e , can a n a p p l i c a t i o n of t h e

felony-murder r u l e be j u s t i f i e d .             O t h e r w i s e , d e f e n d a n t Sunday

w a s e n t i t l e d t o p r e s e n t t o t h e jury h i s claim of s e l f defense.

                                              -38-
       The effort of the McLeans to recapture their horses
by force of arms was to trigger an armed and deadly
response from the defendant and his accomplices.   There is
no doubt that the McLeans threatened to kill the defendant
and his accomplices.   Defendant, moreover, testified that
he fired only because he believed his own life to be in
immediate danger when McLean pointed the loaded rifle at
him.   While defendant's accomplices, who had turned state's
evidence, testified that McLean had pointed his rifle at
the ground rather than at the defendant, there is no question
that there was a factual picture depicted sufficient to
raise a claim of self-defense.    If it be conceded that defendant
had a right to present his self-defense claim to the jury,
it follows that the State was not entitled to encumber and
muddy this claim of self-defense by proceeding on a felony-
murder theory,    The underlying purpose of the felony-murder
rule is defeated where a defendant is permitted to rely on
a claim of self-defense as justification for his actions.
       Once a causal connection is established between the
commission or attempt to commit the underlying felony,
criminal liability attaches without regard to the defendant's
intent to kill.    The theory is that certain felonies are so
inherently dangerous to human life that a defendant ought
not to be able to escape criminal responsibility by proving
that in the commission of, attempt to commit, or flight from
the commission or attempt to commit the underlying felony,
he did not intend to kill.   The additional triggering factor
of flight has been added by the legislature of this State,
and is not within the traditional definition or concept of
                                                   consistent
the felony-murder rule. If the felony-murder rule is to be /
and to fulfill its underlying purpose, it would also be
no defense for the perpetrator to contend that he killed
in self-defense.   To permit such a defense would destroy
the underlying purpose of the felony-murder rule.
     Furthermore, a claim of self-defense is patently
inconsistent with a felony-murder prosecution.   The felony-
murder rule does not permit one to escape criminal respon-
sibility by a contention that he did not intend to kill.
Although a claim of self-defense does not necessarily result
in an admission that the perpetrator actually intended to
kill, it does mean that the perpetrator admits the use of
deadly force but contends that he was justified on grounds
of self-defense.   If a causal connection is established
between the commission of the underlying felony and the
death of a human being, it hardly makes sense to permit
the perpetrator to assert that the act of killing was in
self-defense.
     There are no statutes in this State, and there are no
cases decided by this Court which permit of the self-help
activities engaged in by the McLeans in seeking the return
of their horses.   They had no right to use armed force to
accomplish this result.
     The only statute even remotely applicable is section
46-6-502, MCA, which sets forther the circumstances under
which a private citizen can make an arrest.   The statute
provides in substance that a private citizen can arrest if
an offense is committed or attempted in his presence, or if
a felony has in fact been committed and he has reasonable
grounds to believe that the person arrested committed the
offense.   The Montana Criminal Law Commission Comment to
this statute, sets forth a clear intent to restrict the
involvement of private citizens in making unilateral decisions
to arrest:
                            -43-
     "The concensus of the commission was that
     modern law enforcement requires that most
     arrests be made by police officers and
     the right of private persons to arrest
     should be strictly limited."
     Even assuming the right of the McLeans to arrest
under the authority of this statute, the record is barren
of any evidence that they were attempting to effectuate
an arrest.   Rather, they were interested only in forcing
the return of their property at gunpoint.   They obviously
were willing to engage in a gunfight to accomplish that end.
     When the McLeans discovered the thefts, it was clearly
their duty to call in law enforcement and let them handle
the situation.   Their precipitious and foolish action in
taking the law into their own hands by force of arms
provoked the armed confrontation and shootout which resulted
in their tragic deaths.    The McLeans actions in arming
themselves, tracking down the thieves, and subsequent threats
to kill accompanied by the obvious apparent ability to carry
out their threats, operated to break any chain of causation
between the commission of an underlying felony and the
deaths of the McLeans.    This was an efficient intervening
cause if ever there was one.   There being no causal relation-
ship, the felony-murder rule has no application.
     Under the facts as testified to by the accomplices
who turned State's evidence, and the testimony of the defendant,
defendant clearly had a right to present his claim of self-
defense to the jury.   Although he was a thief, he had no
duty to become a homicide victim by letting the McLeans
shoot him first.     Whether he was in imminent danger and
acted reasonably under the circumstances in shooting first,
is a jury question.     But if the defendant reasonably
believed his life to be in imminent danger because of the
threatening use of firearms by the McLeans, he had a right
to claim that he was acting in self-defense.    The conduct
of the McLeans in precipitating the armed confrontation
intervened to cut off the application of the felony-murder
rule.    To hold otherwise is to hold in effect that defendant
had no right to present his claim of self-defense to the
          the
jury and,/ majority did not hold that defendant had no right
to present a claim of self-defense to the jury.
     The felony-murder instruction and possible jury verdict
based on that instruction and theory, muddied the waters in
relation to defendant's claim of self-defense.     He was
entitled to present his claim of self-defense free of any
contention of the State that he was guilty of deliberate
homicide by virtue of the felony-murder rule.     For thirj
reason, he is entitled to a new trial on the homicide charges.
        I would hold in relation to count I11 of the theft

charges in the same manner as the majority held in count V
of the theft charges.     I would reverse the burglary conviction
for the reason that the tack shed was not an "occupied structure"
within the meaning of the statute.    For all the reasons stated
in relation to the felony-murder instruction, I would grant
a new trial to the defendant on the homicide charges with
instructions that the felo~y-murderrule cannot be applied
to this case.
