                                  No. 12726

         I N THE SUPREME C U T O THE STATE O M N A A
                          OR    F           F OTN

                                       1974



I N THE M T E O PATRICK J O H N McMASTER,
              ATR F
A J u v e n i l e Delinquent.




Appeal from:      D i s t r i c t Court of t h e Twelfth J u d i c i a l D i s t r i c t ,
                  Honorable B. W. Thomas, Judge p r e s i d i n g .

Counsel of Record :

     For Appellant :

           Oscar Hendrickson argued, Chinook, Montana

     For Respondent:

           Hon. Robert L. Woodahl, A t t o r n e y General, Helena,
            Montana
           Thomas J . Beers, A s s i s t a n t A t t o r n e y General, a r g u e d ,
            Helena, Montana
           William Solem, County A t t o r n e y , argued, Chinook,
            Montana



                                             Submitted:        September 1 0 , 1974



Filed:    DEC 2
          -       6 1974
M r . J u s t i c e Gene B. Daly d e l i v e r e d t h e Opinion of t h e Court.

     This i s an appeal from a f i n a l judgment a f t e r a j u r y t r i a l i n
t h e d i s t r i c t c o u r t , Blaine County, f i n d i n g a p p e l l a n t P a t r i c k John
McMaster, g u i l t y of f i r s t degree burglary and adjudicated him a
delinquent.
     The f a c t s a r e :    Appellant and t h r e e of h i s acquaintances,
Rod Olson, Mike Turbovitz and Johnny Johnson, w e r e stopped by a
Chinook c i t y p o l i c e o f f i c e r , Robert Flynn, a t 3:00 a.m.,               September
30, 1973.        When asked what they were doing parked where they were,
they r e p l i e d they were j u s t s i t t i n g there.          The o f f i c e r then
followed t h e young men and observed them park t h e c a r a t Rod
Olsonls grandmother's house and walk back t o town t o Rod Olson's
apartment.        Around 4:00 a.m.,          Robert Stanley, a mechanic, observed
a p p e l l a n t and Mike Turbovitz walking down an a l l e y , which runs
behind Martens Drug S t o r e , t h e b u r g l a r i z e d s t o r e .      Stanley l a t e r
saw a p p e l l a n t and Turbovitz climbing down from ~ o b ' s
                                                               Drapery
shop's r o o f , a b u i l d i n g l o c a t e d a few s t o r e s down from Martens
Drug Store.        A t t h a t time Stanley attempted t o c a l l t h e p o l i c e , b u t
was unable t o reach them.               Stanley t e s t i f i e d he l a t e r saw a p p e l l a n t
and Turbovitz walk o u t of t h e a l l e y , c r o s s t h e s t r e e t , and go up
t o a patch of weeds where Turbovitz deposited something i n t h e
weeds.      Stanley then t e s t i f i e d a p p e l l a n t and Turbovitz went t o a
parked c a r .     Turbovitz got i n t o t h e c a r ; a p p e l l a n t l i f t e d t h e hood
of t h e c a r and began looking under i t when O f f i c e r Flynn approached
them.
     O f f i c e r Flynn t e s t i f i e d t h a t when he approached a p p e l l a n t and
Turbovitz a t t h e parked c a r , Turbovitz a t f i r s t claimed he owned
t h e c a r , but l a t e r admitted t h a t n e i t h e r he nor a p p e l l a n t had any
business being i n t h e c a r .          H e then t e s t i f i e d t h a t Stanley waved
f o r him t o come over t o t h e garage where Stanley was working.
Flynn t o l d a p p e l l a n t and Turbovitz t o s t a y where they were, b u t
when O f f i c e r Flynn drove o f f t o t a l k t o Stanley, they l e f t .
    Stanley then related to Flynn the actions of appellant and
Turbovitz.   Flynn proceeded to investigate the buildings down the
alley where Stanley had observed appellant and Turbovitz walking
and climbing on the roof. When Officer Flynn approached Martens
Drug Store, Johnny Johnson stuck his head out the back door, saw
Flynn, and fled out the front door.   Flynn pursued Johnson, but was
unable to apprehend him.   Flynn then notified the county sheriff,
a fellow police officer, and the owner of the drug store.     The
investigating officers found several sacks of drugs from the drug
store in the approximate vicinity of the weeds where Stanley saw
Turbovitz stash something. They also found a wastepaper basket
half full of drugs, and a stack of records from the display rack at
the front of the store were found at the back of the store.     The
window in the front door had been broken.   The back door had no
signs of being broken into, but was unlocked from the inside.
    Because of his previous companionship with Johnny Johnson;
because of his close proximity to the drug store when he was ob-
served by the mechanic. Stanley and Officer Flynn; and, because he
was with Turbovitz when Stanley saw Rrr.bovitz stash something in
the weeds, appellant was arrested and charged with first degree
burglary.
    Although appellant makes four assignments of error the issues
for consideration could more succinctly be stated as:
    ( ) Were
     1          the exhibits and the testimony by the state's
witnesses relevant and material and therefore admissible?
    (2)   Was there sufficient circumstantial evidence to support
the jury's guilty verdict?
    Considering the first issue---were the exhibits and testimony
by the state's witnesses relevant and material? Appellant objected
to the introduction of certain photographs of the scene of the
burglary, paper sacks which were found containing drugs stolen during
the burglary, and certain containers filled with drugs, into evidence
on the grounds that there was no proper foundation laid, and that
the material was irrelevant and immaterial and not connected in any
way t o a p p e l l a n t .     Appellant a l s o objected t o t h e testimony of
one Larry Martens, owner of t h e b u r g l a r i z e d drug s t o r e , on t h e
grounds t h e r e was no connection of t h e burglary of t h e premises t i e d
t o appellant.           A l l of t h e s e o b j e c t i o n s were overruled by t h e
d i s t r i c t c o u r t and a l l t h e evidence and testimony was admitted.
The d i s t r i c t c o u r t a c t e d c o r r e c t l y .
      A s s t a t e d i n S t a t e v. Sanders, 158 Mont. 113, 117, 118, 489


      "A fundamental p r i n c i p l e a p p l i c a b l e t o a l l criminal
      proceedings i s t h a t 'evidence must be r e l e v a n t t o t h e
      f a c t s i n i s s u e i n t h e c a s e on t r i a l and tend t o prove
      o r disprove such f a c t s , evidence of c o l l a t e r a l o r o t h e r
      f a c t s which a r e incapable of a f f o r d i n g any reasonable
      presumption o r i n f e r e n c e a s t o a p r i n c i p a l f a c t o r
      matter i n d i s Ute, o r e v i d e n ~ e       which i s too remote, i s
      irrekevant an$ inadmissible.                   29 Am.Jur.2dY Evidence
      5 298, p. 342. Evidence i s r e l e v a n t only i f i t
      ' n a t u r a l l y and l o g i c a l l y tends t o e s t a b l i s h a f a c t i n
      issue.'           Brion v. Brown, 135 Mont. 356, 363, 340 P.2d
      539, 543, quoting from 1 Jones on Evidence, 5 t h Ed.,
      5 151, p. 270."
      The f a c t of whether o r n o t a burglary had taken place was i n
issue.       The evidence and testimony objected t o by a p p e l l a n t e s -
t a b l i s h e d t h e f a c t t h a t a burglary had taken place and t h e evidence
w a s t h e r e f o r e r e l e v a n t and admissible.
      A p p e l l a n t ' s second i s s u e i s whether t h e r e was s u f f i c i e n t
c i r c u m s t a n t i a l evidence t o support t h e g u i l t y v e r d i c t ?   As
t h i s Court s t a t e d i n S t a t e v. Cor, 144 Mont. 323, 326, 396 P.2d


      " c i r c u m s t a n t i a l evidence i s n o t always i n f e r i o r i n
      q u a l i t y nor i s i t n e c e s s a r i l y r e l e g a t e d t o a 'second
      c l a s s s t a t u s ' i n t h e c o n s i d e r a t i o n t o be given i t .
      The very f a c t i t i s c i r c u m s t a n t i a l i s n o t a s u f f i c i e n t
      a l l e g a t i o n t o j u s t i f y a r e v e r s a l of t h e judgment f o r
      such evidence may be and f r e q u e n t l y i s , most convincing
      and s a t i s f a c t o r y . I n any c r i m i n a l c a s e , evidence t h a t
      i s m a t e r i a l , r e l e v a n t and corn e t e n t w i l l be admitted,
      'nothing more and nothing                    h                 t e s t i s whether
      t h e f a c t s and circumstances a r e of such a q u a l i t y and
      q u a n t i t y as t o l e g a l l y j u s t i f y a j u r y i n determining
      g u i l t beyond a reasonable doubt. I f such be t h e c a s e ,
      then t h e c o u r t should n o t , indeed cannot, set a s i d e t h e
      solemn f i n d i n g s of t h e trier of t h e f a c t s . "
Application of t h i s p r i n c i p l e t o t h e i n s t a n t case l e a d s d i r e c t l y
and convincingly t o t h e conclusion t h a t a p p e l l a n t ' s g u i l t has
been proven beyond reasonable doubt.
      This conclusion r e s u l t s from an examination of t h e e n t i r e
record and from a c o n s i d e r a t i o n of a l l of t h e evidence:
      1. Appellant was i d e n t i f i e d by O f f i c e r Flynn a s being with
Johnny Johnson and two o t h e r men on t h e n i g h t t h e burglary took
place.       Johnny Johnson was caught i n s i d e Martens Drug S t o r e by
O f f i c e r Flynn.
      2.     M r . Stanley t e s t i f i e d t o seeing a p p e l l a n t and Mike
Turbovitz walking down t h e a l l e y behind Martens Drug Store.                            He
a l s o t e s t i f i e d he saw t h e two men on t h e roof of ~ o b ' sDrapery,
a s t o r e located a few s t o r e s down from Martens Drug Store.                         Mr.

Stanley l a t e r saw a p p e l l a n t and Mike Turbovitz come o u t of t h e a l l e y ,
walk a c r o s s t h e s t r e e t t o a patch of weeds where Turbovitz stashed
something i n t h e weeds.
      3.     When a p p e l l a n t and Turbovitz saw O f f i c e r Flynn, they quickly
went t o a parked c a r .            Turbovitz a t f i r s t claimed ownership of t h e
c a r and then acknowledged t h a t n e i t h e r he nor a p p e l l a n t owned t h e
c a r nor had any business being i n t h e c a r .                 They could o f f e r no
explanation t o O f f i c e r Flynn f o r being i n t h e c a r o t h e r than t o
check t h e o i l .

      4.     Appellant and Turbovitz were t o l d t o s t a y a t t h e c a r whenthe
o f f i c e r went t o t a l k t o M r . Stanley; i n s t e a d they both f l e d .
      5.     Several sacks of drugs s t o l e n from Martens Drug S t o r e were
found hidden i n t h e same v i c i n i t y t h a t Stanley s t a t e d Turbovitz
stashed something.
      A l l of t h e above evidence i s n o t s u f f i c i e n t t o place a p p e l l a n t
on t h e a c t u a l premises of Martens Drug S t o r e , which i s an e s s e n t i a l
element of t h e crime of burglary.                  However, i t i s s u f f i c i e n t t o
prove t h a t a p p e l l a n t aided and a b e t t e d i n t h e commission of t h e crime,
thereby making a p p e l l a n t a p r i n c i p a l and g u i l t y of t h a t crime
i t s e l f . 5 5 94-203, 94-204, R.C.M.            1947.
      The c o u r t i n i t s Z n s t r u c t i o n ~ b e r12 i n s t r u c t e d t h e j u r y a s t o
a i d i n g and a b e t t i n g .   Although objected t o by a p p e l l a n t on t h e
grounds t h e r e was no evidence t h a t a p p e l l a n t aided o r a b e t t e d anyone
i n t h e commission of t h e b u r g l a r y , we f e e l t h e o b j e c t i o n was
properly overruled.              A s w e have s t a t e d , t h e r e was ample evidence
of a i d i n g and a b e t t i n g .
      Appellant a l s o objected t o t h e c o u r t ' s i n s t r u c t i o n on i n t e n t .
W e f i n d t h e r e was s u f f i c i e n t evidence presented t o e s t a b l i s h i n t e n t ,
which would allow t h e c o u r t t o give I n s t r u c t i o n number 10 over
a p p e l l a n t ' s o b j e c t i o n t h a t t h e r e was no such evidence.
      The judgment of t h e d i s t r i c t c o u r t i s affirmed.




                                               ,        Justice                           /


W Concur:
 e


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 Chief J u s t i c e
