                                        No. 12923

          IN THE SUPREME COIJRT OF THE STATE OF MONTANA

                                           1975



THE STATE OF MONTANA,

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

          -vs   -
JERRY A. AMOR,

                                 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 E i g h t h J u d i c i a l D i s t r i c t ,
                      Honorable P a u l G. H a t f i e l d , Judge p r e s i d i n g .

Counsel o f Record :

     For Appellant :

                M o r r i s o n , E t t i e n and Barron, Havre, Montana
                R o b e r t D. Morrison a r g u e d , Havre, Montana

     F o r Respondent:

                Hon. R o b e r t L. Woodahl, A t t o r n e y G e n e r a l , Helena,
                  Montana
                J o c k 0. Anderson, 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 ,
                  Helena, Montana
                A. Evon Anderson, County A t t o r n e y , a r g u e d , F o r t Benton,
                  Montana



                                                      Submitted:          September 23, 1975

                                                           Decided: ,ji";r        r:
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Filed :



                                                        Clerk
Mr. Chief Justice James T. Harrison delivered the Opinion of
the Court.

           This is an appeal from a jury verdict, entered in the
district court, Chouteau County, finding defendant guilty of
burglary in the first degree.
          The defendant was charged with burglarizing a drug
store in Big Sandy, Montana on October 12, 1973.    Briefly, the
facts leading up to defendant's arrest and conviction are as
follows:    At about 11:OO p.m. a Choteau County deputy sheriff
noticed a black pickup parked beside the highway in Big Sandy.
Approximately a half-hour later the deputy sheriff noticed the
same black pickup a short distance up the road with defendant's
green pickup parked next to the black pickup.    The deputy sheriff
saw defendant carry a box from his pickup and put it in the black
pickup.    The owner of the black pickup, Kronebusch, was observed
placing a paper sack into defendant's pickup.    The deputy sheriff
investigated the reason for the pickups being at that location
and noticed, by looking into them, two paper bags, a red box,
and a syringe, all in Kronebusch's pickup.    Defendant was allowed
to go on his way and Kronebusch was detained for possible illegal
possession of drugs.    While the above transpired, the owner of
the drug store discovered his store had been burglarized and cer-
tain items of merchandise removed.    While at the police station,
the drug store owner looked into Kronebusch's pickup and observed
a clock radio which appeared to him to be one that he had on sale
at the store.    The deputy sheriff called the Havre police to arrest
defendant and seize his boots, for comparison with boot prints
found in the store.    At the time of his arrest, no property stolen
from the store was found in defendant's possession.    Defendant
was found guilty of burglary in the first degree and sentenced
for a term of twelve years.    From this verdict defendant appeals.
          The issue presented to this Court is whether sufficient

evidence was presented at trial to support a jury verdict of
guilty of burglary in the first degree.
          The pertinent portions of the Montana criminal statutes
in effect at the time of the burglary are:
          Section 94-901, R.C.M.   1947
          "Burglary defined. Every person who enters any
          house, room, apartment, tenement, shop, warehouse,
          store, mill, barn, stable, outhouse, or other
          building, tent, motor vehicle and aircraft,
          vessel, or railroad car, with intent to commit
          grand or petit larceny or any felony, is guilty
          of burglary."
          Section 94-902, R.C.M. 1947
          "Degrees of burglary. Every burglary committed in
          the nighttime is burglary in the first degree,
          and every burglary committed in the daytime is
          burglary in the second degree."
          Section 94-905, R.C.M. 1947
          "Nighttime defined. The phrase 'nighttime1,as used
          in this chapter, means the period between sunset
          and sunrise."
         Entry in the nighttime with felonious intent is an
essential element of burglary in the first degree.      State v.
Copenhaver, 35 Mont. 342, 89 P. 61.       This Court in State v. Solis,
163 Mont. 293, 295, 516 P.2d 1157, has recently stated:
          "Commission of a burglary is predicated upon the
         'entry' with the requisite felonious intent. Hence,
         the burglary occurs at the time of the entry upon
         the premises."
          In order to establish entry in the nighttime, substantial
evidence must be presented by the State establishing the time
when such entry occurred.    State v. Fitzpatrick, 125 Mont. 448,


         The only witness presented by the State who might have
testified as to the time of entry was the owner of the drug
store.   He testified that he had not been in his store the after-
noon of the burglary, and was in fact in Havre that afternoon,
returning to Big Sandy around 11:OO p.m. that night.           There was

no testimony presented as to what time the store closed on
October 12, 1973, nor as to what time any employees locked up
the store on that day, nor as to when the stolen merchandise
was last seen in the store.        No witness for the State testified
as to the time of sunset on October 12, 1973, so as to set a
time after which the requisite nighttime entry might happen.
         The State admits the evidence of nighttime entry intro-
duced at trial was circumstantial and required the jury to infer
that the requisite nighttime entry had occurred.          The jury was

left to rely on those facts which exist in the minds of all jurors
by virtue of their common knowledge and experience to infer the
time of entry.    All without the introduction of substantial evi-

dence as to time of entry.
         As this Court said in Fitzpatrick, at page 452:
         "Not only was there no substantial evidence to
         prove when the burglary occurred, but there was
         a total failure on the part of the state to prove
         such burglary was committed in the nighttime. This
         being so, the state failed to prove one of the
         essential elements of the crime, as charged in the
         information, and the judgment of conviction cannot
         stand. "
         The judgment is reversed and the cause is remanded to
the district court with directions to dismiss the information.




                                               Chief Justice
We concur:




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d s tices
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