# State v. Burkhart

> Montana Supreme Court · December 23, 2004 · 325 Mont. 27

URL: https://www.frixlaw.com/law-library/cases/9511173

## Case

- **Full name:** STATE OF MONTANA, Plaintiff and Respondent, v. RICHARD EARL BURKHART, Defendant and Appellant
- **Court:** Montana Supreme Court
- **Decided:** December 23, 2004
- **Citations:** 325 Mont. 27; 103 P.3d 1037; 2004 MT 372; 2004 Mont. LEXIS 654
- **Precedential status:** Published
- **Opinion:** Concurrence by Cotter
- **Judges:** Jim Regnier
- **Cited by:** 19 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9511173

## How later opinions describe it (automated extraction)

- holding the felony- murder rule does not violate due process since intent to kill is not an element of the crime under the felony-murder rule
- holding the felony-murder rule does not violate due process since intent to kill is not an element of the crime under the felony-murder rule
- discussing § 45-5-102(1)(b), MCA

## Opinion text

JUSTICE COTTER
concurs.
¶64 I concur in much that is said in Justice Leaphart’s Dissent. I too am uneasy with the fact that application of the felony-murder doctrine can impermissibly raise a conclusive presumption of intent to murder from an act which, standing alone, could not supply such a motive. However, as the Court points out, we are faced in this case with an “as applied” challenge of the doctrine, so we must examine whether application of the doctrine has constitutional implications for Burkhart given the particulars of his crime. Because I conclude it does not, I am voting to affirm.
¶65 The ferocity ofBurkhart’s assaults on Ledeau that led to his death did, in my judgment, supply the intent for murder. This being so, we are not confronted with the situation where a presumption of guilt is imposed upon a set of facts which do not otherwise raise or establish a murderous intent. When and if such a case presents itself to this Court, an “as applied” challenge will likely resonate well with me. However, this is not such a case. I would therefore affirm.
JUSTICE NELSON joins in the concurrence of JUSTICE COTTER.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9511173. Public record. Not legal advice.