No. 12797 INTHE SUPREME COURT OF THE STATE OF MONTANA 1974

THE STATE OF MONTANA, ex rel. DUNCAN PEDER McKENZIE

## ,JR

# . Petitioner,

THE DISTRICT COURT OF THE NINTH JUDICIAL DISTRICT Of the Stateof Montana, inand for the County of Pondera and the HON. R. D. McPHILLIPS, Judge thereof, Respondent

# .

OR.IGINALPROCEEDING: For Petitioner: Barney Reagan argued, Cut Bank, Montana Charles L. Jacobson argued, Conrad, Montana For Respondent: Hon. Robert L. Woodahl, Attorney General, Helena,

Montana Thomas J. Beers argued, AssistantAttorney General,

Helena, Montana David H. Nelson argued, CountyAttorney, Conrad, Montana Doughs L. Anderson, Jr. argued, Special Prosecutor,

Conrad, Montana

-.F fib,.

. I Submitted: ~uly 

### 8, 1974 Decided:

### Abc

# -6

## 1974lionorable Gordon Bennett, DistrictJudge, sittinginplace of Mr. Justice Gene B. Daly, delivered the Opinion of the Court. This isan originalproceeding for a writof supervisory control inwhich the relator seeks an order directingthe district court to setaside its leave tofilea second amended information; to strikea plea of not guilty entered by the court on behalf of the relator; torequire the districtcourt tolimitany information tobe filed to such charge or charges astowhich probable cause has been shown, or torelease the relator if no probable cause is shown, and torequire the district court topermit the filingof only such an information aswillmeet the requirements of due processby alleging a crime orcrimes in a manner which willpermit the relator tointelligently enter a plea. Counsel for the relator

was heard exparte, whereupon we ordered and held an adversary hearing atwhich relator, respondent and the attorney general were heard. Relator isdefendant inthe case of Stateof Montana v. Duncan McKenzie, filed inthe ninth judicial districtcourt in and forPondera County. In a second amended information he is charged under the Montana Criminal Code of 1973with seven counts of deliberatehomicide, ten counts of aggravated kidnapping, three counts of aggravated assault and two counts of sexual intercourse without consent. Allsuch acts are alleged tohave been committed against one Lana Harding on or about January 21, 1974. An original information charging deliberatehomicide only

was filedupon leave of court on January 24, 1974. On February 15, 1974, relator moved for dismissal of the information on grounds, inter alia, that it purported toplead inthe alternativeand thereby deprived the defendant of knowledge astothe elements of the offense charged. The county attorney on February 19, 1974, moved for leave to filean amended information charging two countsof deliberatehomicide, aggravated kidnapping, sexual intercourse without consentand aggravated assault. On March 15, 1974, relator filed a number ofmotions directed at the amended complaint, among them being a motion for an order requiring the state 

### " 

## * 

## * * to separately state and number each and every charge of the Amended Information including each and every chargewhich is intended to be covered as a possible offense

## * 

## * *." Before any plea was taken on the original information and before any actionwas taken by the court on the proposed amended information or any of the objections to the original information

or to the filing of the second information,the county attorney,

onMay 20, 1974,moved for leave of the court to file a second amended information. Relator filed his objections to the filing of this information; argument and briefing was had thereon and on May 28, 1974 the court granted leave to file the second amended information,which is the information under review here, and the informationwas filed that day. On May 30, 1974,the relator refusing to enter a plea, the court entered a plea on his behalf of "not guilty" to all 22 counts. The first question to be considered is as to the form of the motion for leave to file the second amended information. Relator questions whether it complies with this sentence of section 95-1301,R.C.M. 1947: "theapplication must be by affidavit supported by such evidence as the judgemay require." While no affidavit, labeled as such,was filed, the motion itself declares that it ismade on the oath of the county attorney, it is signed by him and both the subscription and the oath are certified to by the clerk of the court. There is no evidence contradicting or raising any question as to the oath or the signature of either the county attorney or the clerk of court. We find that themotion is sufficient as an affidavit within themeaning of the cited section,while ac the same time conceding that the better practicewould have been to filethemotion supported by a separate affidavit. Relator alsoargues, asto form, that themotion is a

mere declaration or conclusion of the county attorney that he findsprobable cause that the several crimes alleged have been committed and is therefore insufficient under our ruling in State

ex rel. Bellv. Dist. Court, 157 Mont. 35, 38, 482 P.2d 557. In pertinent part, themotion states: "Thismotion ismade for the reason that the said County Attorney has investigated the facts and circumstances concerning the commission of the alleged offenses and isof the belief that the said Defendant, DUNCAN McKENZIE, committed the said crimes atthe timeand place aforesaid. That the said County Attorney has personally interviewed and/or taken statements from the following named persons as shown by Exhibit "A" attached hereto and hereby made a part of this Motion: And from said interviews and statements the said County Attorney has reason tobelieve that: " Following this statement is a recitation four and one-half pages long setting forthpurported factsdiscoveredby the county attornew inan apparently lengthy investigation involving 58 listed witnesses and an exhaustive autopsy report, a copy of which is attached. While the conclusions stated arethose of the county attorney, it ispatent from thewhole tenor of themotion that thecounty attorneywas not seeking leave to filethe information

on the basis of his conclusions, but on the basis of the facts he presented. This distinguishes this case from Bellwhere this Court found nothing inthe record to shotz7 that the statehad sufficient factstoestablishprobable cause. Here, thecounty attorney presented a large array of purported facts inacceptable affidavit form. Nothing further isrequired, as toform, by section 95-1301. There isno requirement, asrelator urged inargument, that therebe a supportingaffidavitof a witness having directknowledge of the alleged crime. Statev. Dunn, 155Mont.319, 472 P.2d 288. As to substance, relator argues that the factspresented in the motion were insufficient,even if believed by the judge, to establish probable cause to believe the crimes alleged in the informationwere committed or committed by him. The motion included the following purported facts. The victim was an unmarried 23 year old female schoolteacher who lived and taught at a country school in Pondera County and she enjoyed the respect of the community. Shewas last seen alive in the late afternoon hours of January 21, 1974, in Conrad. Her partially clad body was discovered January 23, 1974,approximately five miles northwest of her school. 

### An autopsy performed by a licensed physician concluded that the victim died of traumatic injury to the head and that head injuries included scalp lacerations, skull fracture,brain contusion and laceration, exsanguination from external hemorrhage,and abrasive contusions of the face. He also reportedmultiple abrasions and contusions to trunk and extremities, recent asphyxia1 strangulation from rope about the neck and evidence of recent sexual assault consisting of vaginal laceration of the hymenal

area and human spermatazoapresent in vagina and pubic hair. He also indicated a time period ofmore than one hour elapsed between the first injuries to the victim and the time she died. On the evening of January 21, 1974,relator left the place of his employment at about 6:30 or 7:00 p.m. and his black Dodge pickup was observed at about 7:00 p.m. in the vicinity of the teacherage where the victim resided. A resident of the area assisted him in startinghis stalled pickup at about 8:00 to 8:30 p.m., at a location approximately 150 feet from the teacherage. 

### t el at or's home is south of the teacherage. After having been assisted in starting his vehicle relator turned east and his pickup was observedgoing north at about 8:30 p.m. in the direction of the site where the body was found. The bed, springs and manifold of relator's pickup were stainedwith blood. The blood on the manifold was determined to be of the same type as the victim's. Hair found in and about the pickup was determined to have the same characteristics as the victim's. At a point near the place where the relator was assisted in starting his pickup was found a pool of blood of the victim's type and the victim's wrist watch. Relator had made statements to his co-workers in regard to his sexualprowess with school teachers and he had made specific reference to the victim. The teacherage was on the road between where the relator worked and where he lived and he was in exclusive possession of the pickup. Seminal secretions found in the pubic hair of the victim

were connected to the blood type of the relator. Examination of the teacherage and the yard surrounding it indicated the victim had been dragged across the floor and the yard, through a fence and to the point where the blood pool and watch had been found in the near vicinity of where relator's pickup had been stalled. From these purported facts,and others, the judge found probable cause to believe the relator had committed the crimes alleged in the proposed information and granted leave to file it.

, "? In 1903, this Court in Statev. Martin~fMont. 273, 275, laid down some ground rules for consideration of the validity of challenged informations: "Obtaining leave to file an information without a previous examination of the accused before a committing magistrate is not a mere perfunctory matter which should be granted as of course,but rests in the sound discretion of the district judge,upon the showingmade to him at the time 

## * * *,"An abuse of discretion materially prejudicing a substantial right of the accused would be ground for reversal

## * * 

## * the appellate court cannot presume that the trial court exceeded its authority or abused its discretion." In State ex rel. Juhl v. District Court, 107 Mont. 309, 316, 84 P.2d 979,we held: 

## "** * theremust be sufficient facts and informationpresented to the court to move the discretion of the court

## * * 

## *." The Criminal Law Commission appended this comment to section 95-1301,R.C.M. 1947: 

### " 

## * * * The application must be complete in itself, and contain such salient facts as will allow the district judge to make an independent determination that an offense has been committed.

## * * *" Section 95-1301(a), R.C.M. 1947,requires the judge to find "probable cause" to believe that an offense has been committed

as a condition for granting leave to file an information. The term "probable cause"was discussed in State ex rel. Pinsoneaultv. Dist. Ct., 145Mont. 233, 239-240, 400 P.2d 269,where the Court adopted several definitions, including: 

## " * * * knowledge of facts, actual or apparent, strong enough to justify a reasonableman in the belief that he has lawful grounds for prosecuting the defendant 

## * * *" and 

## " * 

## * * the concurrenceof the belief of guilt with the existence of facts and circumstances reasonably warranting the belief." Following these principles,we find the purported facts presented in the county attorney's motion weremore than sufficient to properly and adequatelymove the court's discretion in finding probable cause to believe that the crimes of deliberate homicide

(94-5-102),aggravated assault (94-5-202), sexual intercourse without consent (94-5-503) and aggravated kidnapping (94-5-303), all of the Criminal Code of 1973,had been committed by the relator and that it thereforewas authorized to grant leave to file aninformation charging any or all of these crimes. The next question is whether all of these crimes could

or should have been included in a single information. The joinder provisions of section 95-1504,R.C.M. 1947,are highly flexible. Part (a) thereof permits an information to charge two ormore different offenses connected together in their commission, different statements of the same offense, or two ormore different offenses of the same class of crime under separate counts. This 1967 statute is reinforced by the 1973 statute, section 95-1711(2), R.C.M. 1947,which provides: 

### " 

## * * 

## * When the same transaction may establish the commission ofmore than one offense, a person charged with such conductmay be prosecuted for each such offense. 

## * * *" The prosecution is not required to elect between different offenses or counts and theremay be a conviction of any number of offenses charged, section 95-1504(a), R.C.M. 1947. But where the offenses arise from the "same transaction" the number of convictions that can be had on them is limited by section 95-1711(2), R.C.M. 1947. On the other hand, if a number of crimes arise from the "same transaction",as defined 

### in that statute, the prosecution isbound to prosecute them all at one time, insofar as he can, at the risk of running into a maze of double jeopardy problems set forth in part (3) of the above statute. In view of the above provisions,we see no bar to the charging of all four categories of crime set forth in the information. Inasmuch as the alleged crimes all arise from the same transaction, the prosecution iswell advised to charge all of them as itmay be its only opportunity to do so. Upon the trial of the case, the courtmay be required to limit by instruction the number and kind of verdicts the jurymay return on the basis of the evidence presented and on the limitations of section 95-1711(2), R.C.M. 1947,but that is of no concern here.We turn then to themanner in which these crimes should be charged. The purpose of an information is to inform the defendant of what he is charged,nothing more, nothing less. Section 95- 1503,R.C.M. 1947,requires a statement of the name of the offense,the statuteviolated, the time and place, the name of the accused and 

### " 

## * * 

## * the facts constituting the offense in ordinary and concise language and in suchmanner as to enable a person of

common understanding to knowwhat is intended." No bill of particulars is called for or permitted,nor is a statement of all possible legal theories the prosecutor intends to pursue. It is not the function of the information to anticipate or suggest instructions to the jury, to argue the case or to influence either public opinion or the jury. It is a notice device,not a discovery device. The information in this case includes seven counts of deliberatehomicide. The first count chargespurposely and knowingly causing the death of the victim. The second count charges purposely and knowingly causing the death of thevictim by means of torture. The third count charges purposely and knowingly causing the death of the victim by lying in wait. The fourth count chargespurposely and knowingly causing the death of thevictim while committing the crime of sexual intercourse without consent. The fifth count chargespurposely and knowingly causing the death of the victim while committing the crime of aggravated assault causing seriousbodily injury. The sixth count chargespurposely and knowingly causing the death of the victim while committing the crime of aggravated assault causing bodily injury by use of a weapon, namely a rope. The seventhcount chargespurposely and knowingly causing the death of the victim while committing the crime of aggravated assault causing bodily injury by use of a weapon, namely a heavy object. -9-

### We believe these seven counts of deliberate homicide should be reduced to two, in accordancewith the alleged facts and the statutorydefinitionof the crime. The statute tells us there are two kinds of unmitigated delherate homicide (94-5-102(1) )

# . The first kind is committed when the offense is committed "purposely or knowingly". The second kind is committed when the offense is committed 

### " 

## * * 

## * while the offender is engaged in or is an accomplice in the commission of, or an attempt to commit,

or flightafter committing or attempting to commit robbery, sexual intercourse without consent, arson, burglary, kidnapping, felonious escape or any-otherfelony which involves the use or threat of physical force or violence against any individual". The first count should be similar to the first count in the present information; i.e. it should simply allege that the crime was committed

"purposelyand knowingly". The second count should allege alternatively that the crimewas committed while the relatorwas engaged in other felonies. These could include aggravated assault, sexual intercourse without consent and aggravated kidnapping. It is neither appropriate nor necessary to base separate counts on torture or lying in wait, counts 2 and 3. Section 94-5- 105, Criminal Code of 1973,deals with sentencing and does not define a specific crime. If torture or lying in wait, or both, are alleged as part of the second count, the defendant is sufficiently notified of what theprosecution intends to prove. If justified by the evidence, the courtmay instruct on these two features and ask for a special verdict on them to assist in fixing the penalty. So, too,with the special aggravated assault weapon counts, No.'s 6 

### and 7. Use of a weapon orweaponsmay be an appropriate specification under aggravated assault in the second deliberate homicide count,but it should not be elevated to the dignity of special count in this case. Again, itmight become the subject

### of an appropriate instruction, if justified by the evidence. Aggravated kidnapping is set forth in ten counts in the information,counts 8 through 17, inclusive. Six of them, counts 8, 9, 10, 13, 14 and 15,allege the purpose was to facilitate the commission of the crime of aggravated assault. The first three 

### of these,counts 8, 9 and 10, allege secreting or holding, and the second three, counts 13, 14 and 15,allege the use of physical force. Counts 8 

### and 13 specify no particular implements,but 9 

### and 14 specify the use of a rope, and 10 and 15 specify the use of a heavy object. Counts 11 and 16 allege the purpose was to facilitate commissionof the crime of sexual intercourse without consent. Count 11 specifies secreting or holding and count 16 specifies the

use of physical force. Count 12 

### alleges the victimwas secreted

or held with the purpose of inflictingbodily injury or terrorizing her, and count 17 alleges physical forcewas used for the same purpose or purposes. We can find no rationale for this plethora of counts. Section 94-5-303(1) defines aggravated kidnapping: "(1) A person commits the offense of aggravated kidnapping if he knowingly or purposely and without lawful authority restrains another person by either secreting or holding him in a place of isolation,or by using or threatening to use physical force,with any of the following purposes: "(a) to hold for ransom or reward,or as a shield or hostage; or "(b) to facilitate commission or any felony or flight thereafter; or "(c) to inflictbodily injury on or to terrorize the victim or another; or "(d) to interferewith the performance of any governmental or political function;or "(e) to hold another in a condition of involuntary servitude." The facts alleged in the prosecution's motion for leave to file

### the informationwould seem to justify counts based on parts (b) and (c) of the statute. The count under part (b) could specify the felonies of aggravated assault and sexual intercoursewithout consent, in the alternative if appropriate,and describe the means, such as a rope, and methods, such as secreting, where necessary and appropriate. The second count,under part (c), could be set forth almost in the words of the statutewithout detailed specification. Once again, it seems that this would fulfill the notice requirement of an information. The defendant has available extensive discovery procedure to determine the details of the prosecution's case. All three counts of aggravated assault,counts 18, 19 and 20, allege, in the words of the statute,purposely and knowingly causing seriousbodily injury,and counts 19 and 20 specify

use of a weapon,namely a rope and a 

### heavy object,respectively. The-statute,section 94-5-202(1), specifies four types of aggravated assault: 1 A person commits the offense of aggravated assault if he purposely or knowingly causes: "(a) seriousbodily injury to another;or "(b) bodily injury to another with a 

### weapon; or "(c) reasonable apprehension of serious bodily injury in another by use of a weapon; or (d) bodily injury to a peace officer." Itwould seem sufficient to limit the counts of aggravated assault to two,based onparts (a) and (b) 

### of the section, specifying alternatively the rope and the heavy object as the weapon in the countbased on part (b)

# . Counts 21 and 22 allege sexual intercourse without consent. They are essentially the same except count 22 specifies bodily injury. The statute, section 94-5-503, defines a single crime. Subsection (1) provides:

### "Amale person who knowingly has sexual intercoursewithout consentwith a femalenot his spouse commits the offense of sexual intercoursewithout consent." Subsection three increases thepenalty in cases where the victim is less than 16 years old and the offender is three years older,

or the victim is injured. 

### A single count,based on the definition of the crime,would be adequate notice to the defendant in this

case. The defendant is certainly on notice from all the other counts and the motion for leave to file the information that the prosecution intends to prove injury. If the court deems it necessary as an aid to sentencing, itmay ask for a special verdict

on whether injury was inflicted in the course of committing the sexual offense, if any such offense be proven. In summation, it is our opinion that the crimes for which probable cause has been shown could be charged in a total of seven counts instead of twenty-two without loss of necessary notice to the relator and with considerable gain in comprehensibility to the trial jury. Next, the relator complains the information cites several penalty provisions of the code,which he says are unnecessary, redundant and inflamatory. He is correct. We refer to citation of the following sections and subsections in the counts noted: 94-5-102(2)

## , count 1; 94-5-105(1)(d)

## , count 2; 94-5-105(1)(e)

## , count 3; 94-5-303(2) and 94-5-304, counts 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17; 94-5-202(2)

## , counts 18, 19 and 20; 94-5-503(2), count 21, and 94-5-503(3), count 22. Finally, the relator asks that the "notguilty"plea entered by the court on his behalf be stricken. It is sufficient to note that the courtwas required to do so under the provisions of section 95-1606(c), R.C.M. 1947, the relator having refused to enter 

### a plea. The relator

### may change the plea at any time priortoconviction if he sodssires. The cause isremanded tothe districtcourt for further proceedings consistentwith this opinion.

Hon. Gordon Bennett, District Judge, sitting inplace of Mr. Justice Gene B. Daly.

Chief Justice 

# -

stribt Judge sittingforMr. justice Wesley Castles.