                                    No. 12179

       I N T E SUPREME COURT O THE STATE O MONTANA
            H                 F           F

                                        1972



THE STATE O MONTANA,
           F

                   P l a i n t i f f and Respondent,
      -vs    -
NICHOLAS DiGIALLONARDO,

                            Defendant and Appellant.
...............................................
THE STATE O MONTANA,
           F

                            P l a i n t i f f and Respondent,
      -vs    -
JOSEPH E. DeGESUALDO,

                            Defendant and Appellant.



Appeal from:        D i s t r i c t Court of t h e T h i r t e e n t h J u d i c i a l D i s t r i c t ,
                    Honorable Charles Luedke, Judge p r e s i d i n g .

Counsel of Record :

    For Appellants :

            S a n d a l l , Moses and Cavan, B i l l i n g s , Montana.
            Charles F. Moses argued, B i l l i n g s , Montana,
            Kenneth D. T o l l i v e r argued, B i l l i n g s , Montana.

    For Respondents:

            Hon. Robert L. Woodahl, Attorney General, Helena,
             Montana,
            Jonathan Smith, A s s i s t a n t Attorney General, argued,
             Helena, Montana.
            Harold F. Hanser, County Attorney, B i l l i n g s , Montana.
            G. Todd Baugh and Diane G . Barz argued, Deputy County
             A t t o r n e y s , B i l l i n g s , Montana.



                                                      Submitted:          September 26, 1972


Filed :   YfiV ].   i072
                    ..,I
Mr. Chief Justice ~arrisondelivered the Opinion of the Court.

     This is an appeal from a conviction in the district court
of the thirteenth judicial district, Yellowstone County of the
crime of first degree burglary.   Codefendants Nicholas Digiallon-
ardo and Joseph E. DeGesualdo were tried by a jury, in a trial
commencing on May 25, 1971. Defendants will hereinafter be
referred to as appellants.
     Three issues are presented to this Court on appeal.    One,
whether it was an abuse of discretion by the trial court to deny
appellants' motion for a continuance. Two, whether the trial
court erred in admitting certain exhibits, which are alleged
to be the products of an unlawful arrest.   Three, whether there
was sufficient corroborative testimony presented by the state
to allow the use of the testimony of an accomplice.
     On January 19, 1971, appellants and William Osborn, a
former employee of the Sears store in Billings, Montana, traveled
to Billings from Denver, Colorado, Osborn testified the purpose
of this trip was to burglarize the Sears store in Billings, Upon
arriving in Billings, appellants, Osborn and two other individuals
met in the home of Osborn's parents.   The purpose of this meeting,
again according to Osborn, was to plan the crime.     On the following
day, the day of the crime, all five of the participants "cased
the store".
     At approximately 10:30 p.m., January 20, 1971, an alarm
sounded in the office of the Billings police department indicating
someone had set off the burglar alarm in the Sears store.    Officers
were immediately dispatched to the scene, Officer Wickhorst was
the first to reach the area.   As he approached the building, he saw
two men standing near the north edge of the building.    As it
turned out, the two men were appellants.    As Wickhorst approached
the men in his police car with the lights turned off, the men
began to run. Officer Wickhorst pursued them across the parking
lot of the shopping center, where the Sears store is located,
and finally stopped them in the area of the Sears warehouse.
He immediately placed them under arrest.     Other members of the
Billings police force arrived and an investigation was begun.
At this time Osborn was found inside the Sears store and placed
under arrest, Investigation revealed there had been an attempt
to break into the office safe and when the wooden cabinet
surrounding the safe had been tampered with, the burglar alarm
had been tripped.
     On   the day trial was to begin, counsel for appellants
moved the court for a continuance. His reason for this motion
was that on the night before he and Digiallonardo had finally
been able to come up with the name of another person involved
in the crime.     The continuance was to allow appellants time
to find this person, and another person who may have been in-
volved in the crime.    These two missing participants, or witnesses,
were later identified as Jerry Meader and Tom Case.    The trial
court held a hearing and a record of the proceeding was made.
The motion was denied and trial began the next day.
     The first issue goes to the matter of the denial of the
continuance, As stated above, the substance of the motion for a
continuance was that these two individuals had some connection
with the crime charged to the appellants and their presence was
necessary.   Such a motion in a criminal trial is governed by
the statutory requirements and conditions contained in section
95-1708, R.C.M.   1947, which provides:
     II
      Motion for continuance. (a) The defendant or the
     state may move tor a continuance. If the motion is
     made more than thirty (30) days after arraignment or
     at any time after trial has begun the court may require
     that it be supported by affidavit.
           ( ) The court may upon the motion of either
          "b
     party or upon the court's own motion order a contin-
     uance if the interests of justice so require.
           ( ) All motions for continuance are addressed to
          "c
     the discretion of the trial court and shall be con-
     sidered in the light of the diligence shown on the part
     of the movant ,
          "d
           ()   This section shall be construed to the
     end that criminal cases are tried with due diligence
     consonant with the rights of the defendant and the
     state to a speedy trial."
Since subsection (c) requires that such motions be directed to
the discretion of the trial court, we consider on appeal whether
its action was an abuse of discretion. State v, Olsen, 152 Mont.
1, 11, 445 P.2d 926. The statute also allows the trial court
to require the filing of an affidavit in support of the motion.
No such affidavit was required in this case nor was one filed.
     Upon a close examination of the record, it is our conclu-
sion that the trial court did not abuse its discretion in denying
the motion.   Section 95-1708, R.C.M. 1947, is patterned after a
section of the Illinois Code of Criminal Procedure.          Ill. Rev.
Stat. 1971, Ch. 38, Sec. 114-4. The two code sections are identical
in that section of the statute dealing with the discretion of
the court and the required showing of diligence.          111. Rev.
Stat. 1971, Ch. 38, sec. 114-4(e);Section   95-1708(c),    R.C.M. 1947.
In construing their code section, the Illinois courts have
established guidelines which are helpful in our determination here.
     The transcript of the hearing at which the motion was argued
reveals that neither counsel for appellants nor appellants them-
ekes had any knowledge of the whereabouts of the missing witnesses.
It was stated that Meader may have been in the Missoula area.
As for Case, his last name was not learned until some time after
the hearing so there was no indication at all of his whereabouts.
There was no showing made by counsel or any of the witnesses
presented, that these missing witnesses could be located within a
reasonable time.   In People v. Hudson, 97 Ill.App.2d 362, 240 N.E.
2d 156, 159, the Illinois Court of Appeals held that it was not
an abuse of discretion for a court to deny a motion for a con-
tinuance where :
     "* * * counsel for defendant made no showing that
     there was any reasonable expectation or prospect of
     obtaining the presence of the absent witnesses. 11
       Further, t h e r e was no showing made t h a t testimony of t h e
two witnesses would h e l p t h e defense.                  There was a s p e c u l a t i o n
t h a t a palm p r i n t found a t t h e scene of t h e crime and s e n t t o
t h e FBI f o r i d e n t i f i c a t i o n may have been t h e palm p r i n t of e i t h e r
Meader o r Case.        The a d d i t i o n a l f a c t o r t h a t t h e s e two i n d i v i d u a l s
may have a v a i l e d themselves of t h e p r o t e c t i o n a g a i n s t self-incrim-
i n a t i o n and refused t o t e s t i f y , must be considered.                  Again
i n Hudson,      t h e I l l i n o i s c o u r t held:
       "Nor was t h e r e any showing t h a t t h e i r [ r e f e r r i n g
       t o t h e missing w i t n e s s e s ] testimony would be of
       any b e n e f i t t o defendant. I t
I n S t a t e v. Reyes, 99 Ariz, 257, 408 P.2d 400, 406, t h e Arizona
c o u r t reached t h e same conclusion holding:
      "He [defendant] d i d n o t make any showing t h a t he would
      be a b l e t o f i n d t h e witness, o r t h a t she would t e s t i f y
      i n h i s behalf . I 1
On t h i s b a s i s t h a t c o u r t upheld t h e a c t i o n of a lower c o u r t i n

denying a motion f o r a continuance (as n o t being an abuse of
discretion).
      Another i s s u e i s r a i s e d h e r e concerning t h e r i g h t t o a f a i r
trial.     Appellants claim t h a t d e n i a l of t h i s motion denied them
t h e i r c o n s t i t u t i o n a l r i g h t t o compulsory attendance of witnesses
i n t h e i r behalf.     W e s e e no merit i n t h i s contention.                  It has
a l r e a d y been pointed out t h e r e was nothing i n t h e record t o
i n d i c a t e t h a t t h e s e missing witnesses could be found i n any reason-
a b l e length of t i m e , o r t h a t i f found they would even t e s t i f y .
I n Babb v. United S t a t e s , 210 F.2d 473, 475, (5th Cir,1954),
where t h e i s s u e of a f a i r t r i a l was r a i s e d because of t h e d e n i a l of
a motion f o r a continuance, t h e Federal c o u r t h e l d :
      "The motion f o r continuance i n t h i s c a s e was m a t e r i a l l y
      lacking i n many e s s e n t i a l f e a t u r e s ; i t d i d not a l l e g e
      s p e c i f i c a l l y o r s u b s t a n t i a l l y what Tom E. Grubb would
      t e s t i f y t o i f p r e s e n t , and consequently i t d i d n o t ap-
      pear t h a t i f p r e s e n t h i s testimony would be m a t e r i a l ,
      Moreover, t h e r e was no assurance t h a t he would t e s t i f y
      a t a l l i f p r e s e n t a s , being a defendant, he could n o t
      l e g a l l y be compelled t o t e s t i f y . "
     The second issue presented is whether the trial court was
in error for refusing to suppress certain exhibits. Appellants
contend these exhibits were the product of an unlawful arrest.
The exhibits complained of are: a report of the FBI; a 114"
                               a wood sample found in the coat;
drill bit; a pen light; a floor plan of the Sears store; a coat;/
debris found in the pocket of the coat; and a pair of gloves.
     The unlawfulness of the arrest is based upon the argument
that Officer Wickhorst did not have probable cause to arrest
appellants. As stated heretofore, Officer Wickhorst arrived
on the scene knowing the burglar alarm had been set off. As he
approached the building, he saw two persons standing near the
building where the burglar alarm had been set off and when he
approached these people they began to run.             These facts must be
applied to the test we have established for probable cause,
            -1

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In State v. Anderson[             149 Mont. 470, 478, 428 P.2d 611, we
stated:
     II
      The lawfulness of arrest, without warrant, in turn,
     must be based on probable cause, which exists "'where
     'the facts and circumstances within their [the officers']
     knowledge and of which they had reasonably trustworthy
     information [are] sufficient in themselves to warrant
     a man of reasonable caution in the belief1' that' an
     offense has been or is being committed.I t l
This principle was again stated in State ex rel. Glantz v.
Dist. Court, 154 Mont, 132, 138, 461 P,2d 193:
     "* * * probable cause exists where the facts and
     circumstances within the officer's knowledge and of
     which he had reasonably trustworthy information
     are sufficient to warrant a man in the belief that
     an offense has been or is being committed."
     The facts here satisfy the requirements we have laid down;
they are facts and circumstances which would lead a reasonable
man to conclude that a crime had been committed or was in the
process of being committed.             Upon the decision that the arrest
was lawful rests the conclusion that it was permissible for the
officers to search appellants, under the principles allowing a
search without a warrant incident to lawful arrest, Chime1 v,
California, 395 U.S. 752, 23 L ed 2d 685, 89 S.Ct, 2034; Preston
v. United States, 376 U.S, 364, 11 L ed 2d 777, 84 S.Ct, 881.
     The third issue raised is the use of accomplice Osborn's
testimony to convict appellants.   They allege there was not
sufficient corroborating testimony and the court should not
have allowed Osborn's statements, The rule in this situation
is best expressed in 3 Jones on Evidence, 5th Ed., 5 814, p.


     "The corroborating circumstances should tend not
     merely to prove that an offense has been committed,
     but they should have a tendency to identify the
     defendant as the criminal or to show his connection
     with the offense. II
     In State v. Barick, 143 Mont. 273, 283, 389 P.2d 170,
we held that evidence which tends to connect the defendant
with the crime is:
     'I** * that evidence which taken by itself leads
     to the inference, not only that a crime has been I I
     committed, but the prinsoner is implicated in it.
     In this case, a drill bit of the type sold by Sears store,
and a wood chip, identified by the FBI as being of the same
type of wood as the cabinet surrounding the safe, were introduced
into evidence.   This evidence was taken from appellants shortly
after their arrest and creates the inference stated in Barick
as connecting appellants with the crime and not merely showing
a crime has been committed.   In addition, appellants' actions
in running away from the scene of the crime must be considered.
We hold as a matter of law that there was sufficient corroborating
evidence to tend to connect appellants with the crime, therefore
the use of Osborn's testimony was permissible.      /I
     For the foregoing
affirmed,
W Concur:
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