                                      140.   12044

       I N TI-IE SUPR.EME COURT OF THE STATE OF M0N'J;ANA

                                       1972



THE STATE OF MONTAl\JA,

                              P l a i n t i f f and Respondent,

       -VS   -
RALPH I?. REST,

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



Appeal from:         D i s t r i c t Court o f t h e N i n t h J u d i c i a l D i s t r i c t ,
                     Honorable R. D. M c P h i l l i p s , Judge p r e s i d i n g .

Counsel o f Record:

    For A p p e l l a n t :

             Dale L. K e i l a r g u e d , Conrad, Montana.

    For ~ e s p o n d e n t :

             Hon. R o b e r t Id. Woodahl, A t t o r n e y G e n e r a l , H e l e n a ,
               Montana.
             J o n a t h a n B. Smith, A s s i s t a n t A t t o r n e y G e n e r a l , a r g u e d ,
               Helie n a , Montana.
             David H. Nelson a p p e a r e d , County A t t o r n e y , Conrad,
               Montana.



                                                        submitted:          O c t o b e r 1 9 , 1972

                                                           Decided:        D E C 4 1972
Mr. Justice Frank I. Haswell delivered the Opinion of the Court.
        This is an appeal by defendant from a judgment of con-
viction of two counts of first degree burglary, entered upon
a jury verdict in the district court of Pondera County, the
Honorable R. D. McPhillips, District Judge.   Subsequent to de-
fendant's conviction Judge McPhillips sentenced him to eleven
years imprisonment in the state prison on each count to be served
consecutively, or a total of 22 years imprisonment.
        Late in the evening of June 14, 1970, John and Dawn
Carver, of Conrad, Montana, heard the sound of breaking glass
outside their apartment.   Mrs. Carver looked out the window
and saw what appeared to be a burglary being committed by two
men inside Baumann's South Texaco service station.    Thereupon,
her husband left to find help.
       A few minutes later Dennis Driscoll, of the Montana High-
way Patrol, and John VanDeKop, undersheriff of Pondera County,
arrived at the service station on foot.   Driscoll went around the
back and heard Mrs. Carver shout that the burglars were leaving
in a pickup truck.   He chased the truck on foot, and took down
its license number; then he and VanDeKop got into their respec-
tive patrol cars and started to hunt for the pickup truck.
        Soon thereafter VanDeKop caught up with the pickup on
the highway leading north of town and radioed for help.. Before
help arrived, however, the pickup turned into a biochemical plant
north of town and eventually stalled.   Fred Carmichael was
arrested while still sitting in the cab of the truck; defendant
Best fled on foot and was captured in a nearby field.
        Both Carmichael and Best were subsequently charged with
burglary in the district court of Pondera County.    Defendant Best
was charged with two counts of burglary, the one allegedly committed
at Baumann's Texaco station in Conrad and the other at Conrad
Motor and Tire Company on the same night.    He entered pleas of
not guilty to each count, and was tried separately from Car-
michael.
          Defendant's trial commenced on November 16, 1970.     His
defense was that Carmichael coerced him into committing the
crimes.    The jury found defendant guilty of both burglaries, the
judge sentenced him, and he now appeals from the judgment of
conviction.
          Appellant cites three issues for review upon appeal:
           (1) Was the giving of court's instruction 13-B revers-
ible error?
           (2) Was the admission in evidence of certain tools
reversible error?
           (3) Should a new trial have been granted on the grounds
of newly discovered evidence?
          Directing our attention to the first issue, court's
Instruction 13-B reads as follows:
          "Under the laws of the State of Montana, as
          applied to this case, a person guilty of Burglary
          in the First Degree is punishable by imprisonment
          in the state prison for not less than one year or
          more than fifteen years on each count, which
          sentences may be ordered by the Court to be
          served either concurrently or consecutively.
          "Further, the Court has the discretion of re-
          leasing the defendant on probation, deferring the
          imposition of sentence for a period not to ex-
          ceed three years, suspending the execution of
          the sentence up to the maximum sentence allowed
          for the particular offense or imposing any com-
          bination thereof.
          "In the event you return a verdict of guilty
          of the crime of Burglary in the First Degree
          on either count, the Judge must assess and de-
          clare the punishment.
          "In the event you return a verdict of not guilty,
          the defendant must be released and discharged."
          Upon settlement of jury instructions, defendant's objection
to this instruction was as follows:
        "MR. KEIL: (Defendant's attorney) I will object to
        the giving of Plaintiff's Proposed Instruction
        No. 1.
        "THE COURT: It will be given, and it is given as
        Court's Instruction No. 13-B."
        Defendant contends that the giving of this instruction
over his objection constitutes reversible error.    He argues
that this instruction "intimates to the jury that the impact of
a jury verdict of guilty could be lessened by the Court's im-
position of a light sentence." and that this situation prejudices
a possible verdict of acquittal because jurors who might other-
wise find the defendant innocent may be more easily persuaded
to change their position knowing that a suspended or deferred
sentence may be imposed.   Defendant cites State v. Zuidema, 157
Mont. 367, 485 P.2d 952, in support.
        Defendant's position cannot be sustained.    In the first
place, no valid objection to the instruction was made in the
trial court.   Section 95-1910(d), R.C.M. 1947, requires the ob-
jecting party, on settlement of jury instructions, to "specify
and state the particular ground on which an instruction is object-
ed to" and expressly provides that "it shall not be sufficient to
object generally that the instruction does not state the law, or
is against the law, but the objection must specify particularly
wherein the instruction is insufficient, or does not state the
law, or what particular clause therein is objected to."    In the
instant case defendant simply objected without assigning any
grounds, either general or particular, therefor.    Under such
circumstances the alleged objection is equivalent to no objection
at all, and the instruction is not reviewable on appeal.
       More importantly, court's Instruction 13-B correctly
stated the law as it existed at the time of defendant's trial.
In State v. Metcalf, 153 Mont. 369, 457 P.2d 453, we held that
a similar instruction on sentencing correctly stated the law and
 was not prejudicial to the defendant.    However, some seven
 months after defendant's trial in the instant case we held that
 an identical instruction to that used here (except for the crime
 and term of imprisonment) constituted prejudicial and reversible
 error.   State v. Zuidema, 157 Mont. 367, 373, 374, 485 P.2d 952.
 In Zuidema we explained our change of position in this language:
          "The serious factor causing us to change our
          position from that of Metcalf is that an in-
          struction of this type allows irrelevant
          matters to be considered by the jury which
          may influence its decision aside from the
          standard of proof by the evidence beyond a
          reasonable doubt. We have held previously
          that in the giving of erroneous instructions
          it is not a ground for reversal where the
          instruction could not in any manner have
          prejudiced the accused. (Citing cases) Here,
          instruction No. 19 is clearly prejudicial in
          that it placed an undue emphasis on one factor
          which the jury, whether or not it should do so,
          was bound to take into account. All other
          factors come to the jury as evidence, or of
          its own experience and knowledge. By instruct-
          ing the jury on various possibilities of sentence,
          the court suggests that it should give weight
          to that possibility in reaching a verdict."
          But should our decision in Zuidema be given a retroactive
effect?   Not at all.   Our opinion in Zuidema clearly indicates
our intention to deny it retroactive effect.   In Zuidema we said:
          "While in the Metcalf case, we found the
          giving of this instruction not to be preju-
          dicial, we find it is prejudicial here.
          It should not have been given and should not
          be given in any future cases."
 Thus we applied our ruling to defendant Zuidema and future cases,
but did not give it retroactive effect.
          Proceeding to the second issue, defendant argues that
the admission of certain tools into evidence was reversible error.
The tools in question consisted of a pick-axe, a metal bar, a
pair of pliars, a pair of wire cutters, a wrench, a tire wrench,
a pair of tinsnips, and a screwdriver.    These tools were removed
from the cab of the pickup following the arrest of Carmichael and
the defendant.   Defendant objected to their admission in evidence
on the grounds that insufficient foundation had been laid.
        The general rule concerning the admissibility of such
tools was stated in State v. Filacchione, 136 Mont. 238, 240,


        "The general rule is that burglary tools may be
        introduced and received into evidence only after
        proof is made connecting the tools with the
        accused or the crime."
        Applying the foregoing rule we find the tools were
clearly admissible in evidence.   The tools were actually connect-
ed both to the crime and to the defendant.   Evidence at the
trial indicated that in commission of the burglaries a vending
machine was pried apart, and further, that Mrs. Carver, when
the burglars were leaving the Texaco station, saw one of them
drop something which made the sound of metal falling on the ground.
Additionally, the tools were found in the pickup truck driven by
defendant; the fact that the truck was owned by defendant's
brother-in-law goes to the weight and not the admissibility of
such evidence.   See also State v. White, 151 Mont. 151, 440 P.2d
269.
       Finally, defendant argues that he is entitled to a new
trial on the basis of newly discovered evidence.   The basis of
the motion is that subsequent to defendant's trial and convic-
tion Fred Carmichael was adjudged not guilty of the burglaries
on the ground that at the time thereof he suffered from mental
disease or defect excluding responsibility and had such evidence
been available at the time of defendant Best's trial, Best's
defense of coercion by Carmichael would have been more believable.
       We find defendant's contention to be without merit.     In
the first place his motion for a new trial is untimely and filed
in the wrong court.   The jury verdict convicting the defendant
of both crimes was filed on November 19, 1970.   The order exclud-
ing Fred Carmichael from criminal responsibility was signed and
filed on April 2, 1971.      No motion for new trial was filed with
the trial court at all, but a motion for new trial was filed
with this Court on June 19, 1972.      Section 95-2101, R.C.M. 1947,
designates the district court as the proper forum for filing a
motion for a new trial and requires that such motion for a new
trial shall be in writing and shall be filed by the defendant
I
'   * * *   within thirty (30) days following a verdict or finding
of guilty.     * * *"   If the grounds for seeking a new trial do
not arise until after expiration of the 30 day period or until
after the appeal is filed, the proper procedure is to stay the
appeal, remand the case to the district court, file the motion,
secure the district court's decision thereon, and continue with
the appeal.      State v. Nicks, 131 Mont. 567, 312 P.2d 519.   In
the instant case no reason is advanced nor basis apparent for
failure to follow this procedure, and accordingly, this Court
has no jurisdiction to entertain a motion for new trial in the
first instance.
            Additionally, there is no substantive basis for grant-
ing new trial in this instance. The alleged new evidence is
merely cumulative in character to that introduced at the trial.
There Fred Carmichael testified he had been in several mental
institutions; the jury was able to observe his behavior on the
witness stand; there was testimony that he had threatened other
people.       Thus, the fact that Fred Carmichael was subsequently
absolved of criminal responsibility on the grounds of mental
disease or defect excluding responsibility "speaks to the facts
in relation to which there was evidence at the trial" and is
therefore cumulative.      The rules on granting new trials are set
forth in State v. Greeno, 135 Mont. 580, 342 P.2d 1052, and under
these rules defendant Best is not entitled to a new trial in any
event.
           The judgment of the district court is affirmed.




                                      Associate Justice




k   khief Justice
