                           No. 12228

    IN THE SUPREME COURT OF THE STATE OF MONTANA
                             1972



STATE OF MONTANA,

                        Plaintiff and Respondent,

       -vs   -
PHLZLIP HARRIS,

                        Defendant and Appellant.



Appeal from:       District Court of the Sixteenth Judicial District,
                   Honorable Alfred B. Coate, Judge presiding.
Counsel of Record:

       For Appellant:

                 Evalyn B. Carson argued, Billings, Montana.
       For Respondent:

                 William J. Krutzfeldt argued, Miles City, Montana.
                 Robert Woodahl, Attorney General, Helena, Montana.
                 J. C. Weingartner, Assistant Attorney General,
                   argued, Helena, Montana.


                                         Submitted:   May 18, 1972
                                           Decided : JuL 't   - 1972
File
X r , J u s t i c e John Conway Harrison d e l i v e r e d t h e Opinion of
t h e Court.

        Defendant, P h i l l i p H a r r i s , was convicted of b u r g l a r y i n
t h e f i r s t degree i n t h e d i s t r i c t c o u r t of t h e s i x t e e n t h j u d i -
c i a l d i s t r i c t , county of C u s t e r , and sentenced t o f o u r t e e n
y e a r s , w i t h f o u r y e a r s suspended, i n t h e Montana s t a t e p r i s o n .
From t h i s judgment, defendant appeals.
        During t h e f a l l months of 1970, a codefendant of H a r r i s ,
one Leon Meidinger, began f r e q u e n t i n g K e l l y ' s G a s l i t e , a b a r
i n Miles C i t y .       Working a t t h e b a r was L i l a Williamson, an
acquaintance of Meidinger.                    Meidinger expressed an i n t e r e s t
i n where t h e owner of t h e b a r , E a r l Kelly, kept h i s money.
A t t h e t r i a l Meidinger t e s t i f i e d t h a t he had played i n a poker
game i n t h e basement of K e l l y ' s G a s l i t e and was aware t h a t con-
s i d e r a b l e cash was involved i n t h e game.                  I n November 1970,
Meidinger pursuaded L i l a Williamson t o o b t a i n a d u p l i c a t e of
h e r key t o t h e b a r and h i s b r o t h e r picked up t h e key f o r Meid-
inger   .
        On December 11, 1970, L i l a Williamson c o n t a c t e d a l o c a l
policeman, Larry Kuchynka, and t o l d him t h a t during t h e n i g h t
of December 1 K e l l y ' s G a s l i t e b a r would be b u r g l a r i z e d .
             1
Kuchynka n o t i f i e d Kelly, t h e owner, and t h e n proceeded w i t h
l o c a l p o l i c e and s h e r i f f ' s d e p u t i e s t o s t a k e o u t t h e b a r .
        Kelly, b e f o r e c l o s i n g t h e b a r a f t e r 2 a.m.,          December 12,
thoroughly checked t h e premises u p s t a i r s and down, and found
no one i n t h e premises.               Knowing t h a t he might be b u r g l a r i z e d
t h a t n i g h t , he l e f t t h e s a f e unlocked no doubt hoping t o p r e -
v e n t wear and t e a r on t h e s a f e .
       The information given policeman Kuchynka by L i l a William-
son proved t o be c o r r e c t when about f i f t e e n minutes a f t e r Kelly
c l o s e d t h e G a s l i t e o f f i c e r s staked o u t a c r o s s t h e s t r e e t saw
defendant use a key to enter the bar.   At trial Kuchynka gave
the following description of what took place:
     "A. We laid there for quite awhile, about 2 : 4 5
     A.M. a male subject with brown colored coat was
     observed by himself and the - by myself, and the
     other two officers, walking west down Main Street.
     He got to the door of the Gaslight and he very
     abruptly turned into the door. It appeared he
     stuck a key or something in the door and pulled
     it open and stepped inside.
     "Q.   What did you next observe?
     "A, About 3:00 A.M. we were laying there awaiting
     for him to come out. We saw the curtain in the
     door rustle back and forth and a head appeared
     looking out the door. At that time I called the
     other officers in to assist, He looked out the
     door. The door come flying open and you might
     say he jumped out in the middle of the street and
     turned east and just started walking as casually as
     anyone else. I I
     Defendant's early morning walk was interrupted by seven
law enforcement officers. When they frisked defendant they
found a walkie-talkie and a bag full of checks and currency,
tied with a cord around defendant's neck.   At the time
defendant was ordered to put up his hands   the arresting
officers heard what turned out to be the duplicate key to
Kelly's Gaslite bar fall to the pavement.
     Following the arrest and search of defendant, the officers
went into the Gaslite bar, using defendant's key, and there
they were not surprised to find the safe open and empty.    They
found the dial of the safe had been knocked off and alongside
the safe was a hammer, so in spite of owner Kelly's precaution
the safe was damaged.
     Later, Kelly identified checks and currency which had been
in the safe and which were removed from the bag found hanging
around defendant's neck when he was apprehended.
     As the officers came out of the bar following completion
of their investigation there, one of them noted a camper pickup
parked across the street cater-corner from the Gaslite bar.
The officers recognized the truck; it belonged to Leon Meidinger,
a known personality to law enforcement officers in the area. When
one officer flashed his flashlight into the truck, he discovered
Meidinger crouched down in the truck.       He was ordered to get out
of the truck and to the officer's surprise a walkie-talkie simi-
lar in design and cover to that found on defendant, was in his
possession.
     The officer who recognized the camper pickup testified he
had seen the pickup parked across the street from ~elly's Gaslite       '
bar at approximately midnight, though both defendant and Meidinger
alleged they did not arrive in Miles City until 2:30 a.m.      The
pickup had stolen license plates and both defendant and Meidinger
admitted stealing the plates at Rosebud, Montana, en route to
Miles City.
     Both defendant and Meidinger were arrested and charged with
burglary,     Each posted bail of $3,750.   While awaiting release
on bail, they were in the sheriff's office talking to relatives.
Both Sheriff Damrn and Officer Adrian at that time heard Meidinger
say to his brother "I should have known better to pull something
like this in my home town. It
     Defendant's defense as to why he had entered the Gaslite
bar after closing hours was that he wanted to see if there was
a poker game in the basement of the bar, even though he had never
played in the game.    He failed to explain the walkie-talkie or
the bag of checks and currency found tied around his neck.
     On   appeal defendant presents six issues for review:
     1. Was there entrapment in this case as a matter of law?
     2.   Was there a "breaking1'and entering and therefore a
burglarious entry?
     3.   Was the defendant compelled to be a witness against
himself in violation of his constitutional rights under the
Fifth Amendment to the United States Constitution?
     4.   Was the defendant's right to privacy invaded in viola-
tion of the Fourth Amendment to the United States Constitution
which prohibits unreasonable search and seizure?
        5.    Was the punishment of fourteen years, with four years
suspended, at hard labor, cruel and unusual punishment under
the facts of this case?
        6. Was the introduction of the parole officer's report
at the presentence hearing a violation of the defendant's
rights under the Sixth Amendment of the United States Constitu-
tion and Article 111, Section 16, of the Montana Constitution?
        We find no merit to defendant's first issue as to entrap-
ment.        Entrapment was not argued at the trial nor were instruc-
tions requested.        State v. Parr, 129 Mont. 175, 283 P.2d 1086;
State v. ~'Donnell,138 Mont. 123, 354 P.2d 1105.          In this case
there was no decoy, no solicitation, nor any inducement to
defendant to commit the burglary.
        This Court in a recent consideration of the plea of entrap-
ment, State v. Karathanos,           Mont   .    , 493   P.2d 326, 331,
29 St.Rep. 81, had this to say:
        I1
         Entrapment occurs only when the criminal intent
        or design originates in the mind of the police
        officer or informer and not with the accused, and
        the accused is lured or induced into committing a
        crime he had no intention of committing, Only when
        the criminal design originates, not with the accused,
        but in the mind of government officers and the
        accused is by persuasion, deceitful representations,
        or inducement, lured into the commission of a criminal
        act, can a case of entrapment be made out. In short,
        there is a controlling distinction between inducing
        a person to do an unlawful act and setting a trap to
        catch him in the execution of a criminal design of
        his own conception."
        Here, defendant relied on alibi as a defense and the
defense of entrapment cannot be heard for the first time on
appeal.        Sylvia v. United States, 312 F.2d 145.
        ~efendant's second issue questions whether or not his
entrance into the bar constituted a "burglarious entry".
        Section 94-901, R.C.M. 1947, reads:
         I1
         Every person who e n t e r s any house, room, a p a r t -
       ment, tenement, shop, warehouse, s t o r e , m i l l , barn,
       s t a b l e , outhouse, o r other b u i l d i n g , t e n t , motor
       v e h i c l e and a i r c r a f t , v e s s e l , or r a i l r o a d c a r , with
       i n t e n t t o commit grand o r p e t i t larceny o r any
       felony, i s g u i l t y of burglary. I I
       A l l t h a t i s required a s elements of t h e crime of burglary
              11
i s an         entry1' with t h e " i n t e n t " t o commit a felony.             S t a t e v.
R i c h t e r , 152 Mont. 449, 451 P.2d 833.                Here, defendant admitted
e n t e r i n g K e l l y ' s G a s l i t e b a r a f t e r t h e hour of 2:30 a.m.        and he
was seen by t h e s t a k e out o f f i c e r s so e n t e r i n g , t h e r e f o r e t h e r e
i s no question a s t o h i s e n t r y .
       There i s ample evidence t o show defendant's e n t r y was
illegal.           He had never been i n t h e b a r before and he used a key
obtained by h i s p a r t n e r .       H l e f t behind a s a f e with t h e d i a l
                                         e
removed, a hammer and a punch.                   He was found with a walkie-
t a l k i e , i d e n t i c a l t o t h e one found on h i s partner.            F i n a l l y , he
had t h e currency sack hung around h i s neck.                       One cannot h e l p
but wonder what more proof could have been presented of a
felonious i n t e n t ,      W f i n d no merit i n defendant's second i s s u e .
                              e
       I n h i s t h i r d i s s u e defendant questions t h e admission i n t o
evidence of t h e f r u i t s of t h e crime found a s t h e r e s u l t of a
v a l i d search, i n v i o l a t i o n of h i s F i f t h Amendment r i g h t s ,          His
argument t h a t admission i n t o evidence of t h e contents of t h e bag,
checks and currency, compelled defendant t o be a witness a g a i n s t
himself, i s without merit.
       I n S t a t e v. Benson, 91 Mont. 2 1 , 26, 5 P.2d 223, t h i s Court
commenting on t h e admission i n t o evidence of shoes, a gun and
s h e l l s found l y i n g near defendant when he was a r r e s t e d , s a i d :
        h he c o n s t i t u t i o n a l r i g h t s of those accused of
       crime a r e s u f f i c i e n t l y safeguarded under our
       p r a c t i c e without s t r e t c h i n g t h e search and s e i z u r e
       provision of our C o n s t i t u t i o n beyond recognition
       of i t s framers. The a r t i c l e s were not obtained by
       unlawful search and s e i z u r e (Const., A r t . 111, sec. 7 ) ,
       and t h e i r use on t h e t r i a l of defendant d i d not compel
       him t o become a witness a g a i n s t himself (Const., A r t .
        111, sec. 18). (Browne v. United States, (C.C.A.) 290
        Fed. 870; Baron v. United States, (C.C.A.) 286 Fed.
        822.)"
Also see:     State v. Houchin, 149 Mont. 503, 428 P.2d 971;
State v. Armstrong, 149 Mont. 470, 428 P.2d 611; State v.
Callaghan, 144 Mont. 401, 396 P.2d 821.     This has long been
the rule recongized by the United States Supreme Court.     Weeks
v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L ed 652;
Harris v. United States, 331 U.S. 145, 67 Sect. 1098, 91 L ed
1399.
        Defendant's fourth issue relates to whether the search
and seizure was a lawful incident of arrest.    He seems to argue
that once the officers had determined defendant had no weapon
frisking should have been terminated.     Had this occurred the
searching officers would not have found the money bag, even
though it was visible under his coat.     Also, he seems to argue
that pointing a machine gun at him made the search both un-
reasonable and illegal.
       The rule on search incident to a lawful arrest has been
stated many times---a search of the person incidental to a
lawful arrest is valid.    In Chime1 v. California, 395 U.S. 752,
89 S.Ct. 2034, 23 L ed 2d 685, 694, the United States Supreme
Court said:
       "When an arrest is made, it is reasonable for the
       arresting officer to search the person arrested in
       order to remove any weapons that the latter might
       seek to use in order to resist arrest or effect
       his escape. I I
        Concerning defendant's objection to the officers cutting
the cord from his neck and taking the currency bag, all that
need    be said is that it was part of the "fruits of the crime"
and the seizure was legal.    Preston v. United States, 376 U.S.
364, 84 S.Ct.881, 11 L ed 2d 777.    We find no merit in defendant's
fourth issue.
     ~efendant's fifth issue alleges the length of the sentence
given to be cruel and unusual punishment in violation of his
rights under the Eighth Amendment to the United States Constitu-
tion. We considered such an argument in Karathanos and held:
     "It is the general rule that a sentence within the
     maximum authorized by statute is not cruel and un-
     usual punishment. The Ninth Circuit Court of Appeals
     in Black v. United States, 269 F.2d 38, 43, affirmed
     a thirty year sentence on a narcotic charge. There
     appellant, then 51 years of age, argued that this
     amounted to life imprisonment. The maximum punish-
     ment in Montana for the crime which defendant was
     charged with, is life imprisonment. Black was denied
     certiorari by the United States Supreme Court. 361
     U.S. 938, 80 S.Ct. 379, 4 L.Ed.2d 357.
     "1n Black is language applicable to this case:
          he he Eighth Amendment was adopted to prevent
     inhuman, barbarous or torturous punishment. It
     is possible for the length of a sentence to be so
     disproportionate to the offense as to fall within
     the inhibition. Hemans v. United States, 6 Cir.,
     163 F.2d 228, 237. Ordinarily, however, where the
     sentence imposed is within the limits prescribed by
     the statute for the offense committed, it will not
     be regarded as cruel and unusual. Edwards v. United
     States, 10 Cir., 206 F.2d 855. In our view the
     aggregate sentence imposed on Black is not so dis-
     proportionate to the offense committed as to offend
     the Eighth Amendment ban, 1 1 1
     In Montana the penalty for first degree burglary is im-
prisonment for not less than one nor more than fifteen years.
Section 94-903, R.C.M, 1947.   Defendant was sentenced to
fourteen years with four years suspended and thus the sentence
comes within the maximum authorized. We reject defendant's
fifth issue.
     ~efendant's final issue concerns alleged denial of his
rights due to certain evidence being submitted at the presentence
hearing.   Section 95-2204, R.C.M. 1947, sets out the scope of
inquiry regarding the presentencing report:
     11
      Whenever an investigation is required, the pro-
     bation officer shall promptly inquire into the
     characteristics, circumstances, needs, and poten-
     tialities of the defendant; his criminal record and
     social history; the circumstances of the offense;
       the time the defendant has been in detention;
       and the harm to the victim, his immediate family,
       and the community. All local and state mental
       and correctional institutions, courts, and police
       agencies shall furnish the probation officer on
       request the defendant's criminal record and other
       relevant information. The investigation shall in-
       clude a physical and mental examination of the
       defendant when it is desirable in the opinion of
       the court.I I
       Both defendant and his counsel were present at the pre-
sentence hearing held October 28, 1971, and counsel exercised
extensive cross-examination of the witnesses.    ~efendant's
activities submitted as a part of the report disclosed no prior
convictions, but did show prior charges of statutory rape, armed
robbery and second degree murder.   All this was properly presented
for the court's consideration under the above cited statute.
We   find no merit in defendant's final issue.
      Tlle judgment of the district court is affirmed.




                                       sociate Justice




/    Chief ~ustice
