No. 14677 

IN THE SUPFEME COW OF THE STATE OF ENTANA 

1979 

STATE OF MX?TANA, 

Plaintiff and Respondent, 

EDWIN GRANT HAMJLTON, 

Defendant and Appllant. 

Appeal fm: District Court of the Thirteenth Judicial District, 

Honorable Robert H. Wilson, Judge presiding. 

Counsel of Record: 

J For Appellant: 

D. Frank Karpfe argued, Red Idge, Pbntana 

Sally Johnson argued, Red Lodge, Mntana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Pbntana 

Sheri Sprigg argued, Assistant Attorney General, Helena, 

Pbntana 

Pablo Perhacs, County Attorney, Red Lodge, Mntana 

Arthw Ayers argued, Red Lodge, Montana 

S*tted: June 5, 1979 

mid&: &I 1 ; ljLp 

i Filed : 

- , t -- 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of 

the Court. 

Edwin Grant Hamilton appeals from his conviction by a 

jury in Carbon County of the crime of mitigated deliberate homicide. This Court heard oral argument upon the matter on June 5, 

1979. On June 18, 1979, the United States Supreme Court decided 

the case of Sandstrom v. Montana (1979), 442 U.S. , 99 S.Ct. 

2450, 61 L Ed 2d 39. The Sandstrom case was decided before this 

Court had decided the present case. Upon our review of the record in the present case we determined that further argument was 

necessary in light of the Sandstrom case, because neither party 

addressed this issue in the original hearing. Additional briefs 

were filed by the parties and oral argument was again presented 

to this Court on October 29, 1979. This second hearing was 

limited solely to the Sandstrom issue. The following decision 

disposes of the issues raised in both the October and June hearings. 

At 6:26 p.m. on the evening of February 12, 1978, the 

weekend dispatcher for the Carbon County sheriff and Red Lodge 

police departments answered a telephone call. Her greeting "This 

is the Red Lodge Police Department" received no response. Rather, 

she overheard what sounded to her "like a couple of drunks arguofficer 

ing." She stated to a police/standing nearby that "this sounds 

like we have got a fight." She then heard a male voice say "You 

tried to call the goddamn cops on me." The dispatcher then turned 

the phone over to the officer. 

For approximately the next half hour, the police officer 

listened through the phone to the events occurring at the source 

of the call. He heard what sounded like a struggle between a 

male and female. There was scuffling and a female voice calling 

for help. After hearing what sounded like the female gasping for 

air and choking, the officer began to write down the intelligible 
words and sentences he could make out. He recorded the following phrases spoken at intervals by the male voice: 

"Goddamnit, die. I am going to hell. Mamma, 

I am sorry. You all right, Mamma, huh? NO, 

no, no, Mamma. I love you. Mamma, Mamma, 

Mamma. Like hell I am. I have never done this 

in my life. Now I have got to find my glasses. 

Mamma, Mamma. Die, you bitch. Goddarnnit, die. 

Are you going to die or not? Die, damnit. I 

am going to hell, Mamma." 

As the officer continued listening, he heard what he 

thought was someone dialing the telephone on the other end of 

the line. The male voice then spoke into the receiver: "Hang 

the goddamn phone up, I have to call my cousin. My mother is 

dead. She had a heart attack." The officer inquired as to the 

party's name and address. The individual identified himself as 

Grant Hamilton of 207-1/2 North Platt, a location only a block 

away from the police station. 

When a sheriff's deputy who had been advised of the location arrived there minutes later, he found defendant, 54 year 

old Edwin Grant Hamilton, with bruises and scratches on his face 

and a trickle of blood from a wound on the top of his head. Lying face down on the floor near the doorway between the living 

room and a bedroom was the body of Mabel Johnson, defendant's 

75 year old mother with whom he shared the premises. She had 

been manually strangled to death. 

Shortly thereafter, the police officer who had been 

listening on the phone arrived at the scene, and a few minutes 

later the Carbon County sheriff also arrived. The sheriff placed 

defendant under arrest and took him into custody. The police 

officer and deputy sheriff then proceeded to take photographs 

of the interior of the house and gather physical evidence. The 

officers had no search warrant and had not asked defendant's 

permission to search the premises. 
On February 16, 1978, an application for leave to file 

information was filed by the county attorney of Carbon County, 

alleging that defendant had committed the crime of deliberate 

homicide. Counsel for defendant objected that the affidavit 

accompanying the application failed to set forth probable cause, 

but the objection was overruled. On September 11, 1978, defendant was brought to trial. After the presentation of evidence 

instructions were given; one of the instructions given to the 

jury read as follows: "The law presumes that a person intends 

the ordinary consequences of his voluntary acts." This instruction was objected to by defense counsel. The jury returned a 

verdict of guilty of mitigated deliberate homicide. Defendant 

was sentenced to 35 years in Montana State Prison. 

The defendant specifies six errors: 

(1) Whether defendant was the victim of an illegal 

arrest? 

(2) Whether the affidavit in support of the application 

for leave to file information was sufficient to establish probable cause? 

(3) Whether the District Court erred in denying defendant's motion in limine to exclude evidence regarding the telephone call to the Carbon County sheriff's office? 

(4) Whether the District Court committed reversible error 

in refusing to give defendant's offered instructions on negligent 

homicide as a lesser included offense? 

(5) Whether the District Court committed reversible 

error in refusing to give defendant's proposed self-defense 

instruction? 

(6) Whether the District Court committed reversible 

error in giving the instruction, "The law presumes that a person 

intends the ordinary consequences of his voluntary acts." 

We hold that the arrest was lawful and, consequently, the 
items of evidence garnered within the limits of the search 

incident to arrest were properly admitted. 

Section 46-6-401(4), MCA, provides that a peace officer 

may arrest a person without an arrest warrant when "he believes 

on reasonable grounds that the person is committing an offense 

or that the person has committed an offense and the existing circumstances require his immediate arrest." 

"Reasonable grounds" as used in this statute is synonymous with "probable cause". State v. Fetters Q974), 165 Mont. 

117, 122, 526 P.2d 122. "Probable cause to arrest without a 

warrant exists where the facts and circumstances within the officer's knowledge and of which he had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being 

committed." State v. Hill (1976), 170 Mont. 71, 74, 550 P.2d 

390, 392. 

"Evidence required to establish guilt is not necessary to 

prove probable cause." Fetters, 165 Mont. at 122. However, the 

mere fact that a defendant is present at the scene of a crime does 

not justify his arrest. State ex rel. Glantz v. District Court 

(1969), 154 Mont. 132, 139, 461 P.2d 193, 197. "There must be a 

showing of some connection with illegal or criminal activity by a 

defendant on the premises before there is probable cause to arrest Z-,L / , ,,y 

him. " State v. Lenon (1977) , Mont . , 570 P.2d IT\ 34 

St.Rep. 1153, 1156, citing State v. Hull (1971), 158 Mont. 6, 487 

P.2d 1314. 

"Where an officer reasonably believes that a person had 

in the past committed an offense, he may arrest the suspect without a warrant only where the existing circumstances require his 

immediate arrest. Where, however the peace officer reasonably 

believes that an individual is presently committing an offense, 

he may arrest that person at that time, whether or not the existing 
circumstances require his immediate arrest." Lenon, supra. 34 

%.Rep. at 1153. 

The foregoing authorities are the controlling case law 

in Montana on this issue. The defendant argues that his mere 

presence at the scene of the crime is not sufficient probable 

cause to justify the arrest. This is a correct statement of the 

7: 

law. State ex rel. Glanx, supra. The facts of this case, however, present more than "mere presence" at the scene of the crime. 

The police officers knew of the events overheard on the phone. 

The defendant was present with the corpse at the source of the 

call. The police arrived at the scene of the crime within minutes 

after the events were heard on the phone. The scratches on the 

defendant's face indicated that he had recently been involved in 

a fight. These events sufficiently constitute probable cause to 

arrest the defendant. 

The language cited above from Lenon indicate that a 

warrantless arrest must be made only when the crime was committed 

in the officer's presence or that there are existing circumstances 

which require his immediate arrest. (Section 46-6-401, MCA, outlines other circumstances where a warrantless arrest may be made, 

but those circumstances are not presented in this case.) As a 

result, we are presented wit:: a problem concerning the time element 

in the present case. 

Defendant argues that the commission of the offense was 

in the past by the time the arrest was made and that the existing circumstances did not require defendant's immediate arrest 

because he "was not going anywhere and there was ample time in 

which to secure a warrant without losing any evidence or risking 

any personal danger to law enforcement officers." However, 

"knowledge of the commission of an offense in an officer's presence may be gained by him through a mechanical apparatus" and an 
offense is "deemed committed in the presence of the officer" so 

as to justify arrest without a warrant "when he hears the disturbance and proceeds at once to the scene." 6A C.J.S. Arrest 

818. Even in the case of a misdemeanor, under statutes allowing 

warrantless arrest for offenses committed in the officer's presence, such an arrest after the offense is completed is proper if 

made within a reasonable time or upon fresh and immediate pursuit. 5 Am Jur 2d, Arrest S33. It has been held that the right 

to make warrantless arrests is broader in felony cases than in 

misdemeanor cases. Chaney v. State (1975), 133 Ga.App. 913, 213 

Defendant's attempt to invalidate his arrest on the basis 

of this time argument must fail. What the officer overheard on 

the telephone led him to reasonably believe that the defendant 

was presently committing an offense. The warrantless arrest pursuant to that belief minutes later was proper regardless of whether 

or not the existing circumstances required immediate arrest. The 

arrest being lawful, the items of evidence acquired pursuant to 

that arrest were properly admitted at trial. 

The defendant contends that the affidavit in support of 

application for leave to file information was insufficient. Section 46-11-201(1), MCA, provides: 

"The county attorney may apply directly to the 

district court for permission to file an information against a named defendant. The application must be by affidavit supported by such evidence as the judge may require. If it appears 

that there is probable cause to believe that an 

offense has been committed by the defendant the 

judge shall grant leave to file the information, 

otherwise the application shall be denied." 

The Revised Commission Comment states, in pertinent part: 

"Obtaining leave to file an information is not a 

mere perfunctory matter, but rests in the sound 

discretion of the district judge. 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. It is impossible to delineate here 
what facts would be necessary for all cases; 

however, a recitation of the fact the defendant 

had been arrested, that he was accused of a 

crime, and that there is good evidence (e.g. 

eyewitnesses) implicating him with the crime 

would seem sufficient." 

The foregoing statute and commission comment supply the 

test by which we measure whether an affidavit is sufficient to 

make possible an independent determination of probable cause by 

the District Court. State ex rel. Murphy v. ~cKinnon (1976), 

171 Mont. 120, 556 P.2d 906. "Examination of the record reveals 

no supporting evidence other than the amended affidavit [was 

required by the judge under 946-11-201(1), MCA]. ~hus, in determining whether probable cause existed this Court is confined to 

the contents of the amended affidavit." Murphy, 171 Mont. at 124. 

The defendant points to the fact that certain statements 

used in the affidavit were later suppressed on defendant's motion. 

It is contended by the defendant that without those statements 

the affidavit is insufficient. We do not agree. 

The affidavit with the offending portions excised, reads: 

"ARTHUR W. AYERS , JR. , being first duly sworn, 

upon oath, deposes and says: 

"That he is the duly elected, qualified and acting 

County Attorney of Carbon County, Montana; that on 

February 12, 1978, at approximately 6:26 P.M. a 

telephone call was received by the dispatcher at 

the Carbon County Sheriff's office; that the dispatcher heard a disturbance on the other end of the 

telephone line and handed the telephone to Red Lodge 

City Police Officer Craig Christie; that Officer 

Christie heard a male voice at the other end of the 

telephone line state: 'Mamma, Mamma, die you bitch, 

God damnit die, are you going to die or not, die 

damnit, I'm going to hell'; that a male person at 

the other end of the telephone line then attempted 

to use the telephone and Officer Christie inquired 

as to the person's name and the address and was advised 'Grant Hamilton' and '207-1/2 North Platt'; 

that Carbon County Deputy Sheriff Bert J. Obert 

and Officer Christie then proceeded to 207-1/2 North 

Platt in the city of Red Lodge and discovered the 

defendant Edwin Grant Hamilton at such residence 

together with Mabel Johnson who appeared to said 

officers to be deceased; that at 7:35 P.M. Mabel 

Johnson was pronounced dead by a physician at her 

said residence 207-1/2 North Platt, Red Lodge, 
Montana, which residence was shared by her son, the 

defendant Edwin Grant Hamilton and no others; that 

the cause of death of Mabel Johnson has been pathologically determined to be manual strangulation; . . . and that there is therefore probable cause to believe 

that on or about February 12, 1978, in the City of 

Red Lodge, County of Carbon, State of Montana, Edwin 

Grant Hamilton then and there purposely or knowingly 

caused the death of Mabel Johnson by strangling." 

A prima facie showing that defendant committed an offense 

is not necessary in an affidavit in support of leave to file; a 

mere probability is sufficient for probable cause. State v. 

Miner (1976), 169 Mont. 260, 546 P.2d 252. "[Jludges reviewing such affidavits should use their common sense in determining 

whether probable cause exists." Miner, 169 Mont. at 264, 546 

Defendant here argues that the affidavit is deficient 

because "there is no contention that other persons did not have 

access to the house wherein the deceased was found dead" and because the affidavit gives no reason "to believe that the appellant 

did not leave the premises during the day or that any other persons 

did not visit the residence" on the day of the crime. Defendant 

can cite no authority that the absence of these allegations is 

fatal. As with the illegal arrest issue, defendant's contentions 

here ignore the fact that evidence to establish probable cause 

need not be as complete as evidence to establish guilt. A common 

sense reading of the affidavit, even with the matters deleted to 

which defendant objected, indicates that the statutory and decisional guidelines were more than adequately met by the affidavit. 

The defendant contends that evidence of the telephone 

call received by the Red Lodge Police Department on the night in 

question was inadmissible because there was no proper authentication or identification as a condition precedent to admissibility. The defendant argues that there is no inherent reliability 

to the evidence that the speaker who identified himself over the 

phone to the police officer as Grant Hamilton was in fact the 
defendant. Rule 901, Mont.R.Evid., provides in pertinent part: 

"(a) General provision. The requirement of 

authentication or identification as a condition 

precedent to admissibility is satisfied by evidence sufficient to support a finding that the 

matter in question is what its proponent claims. 

"(b) Illustrations. By way of illustration only, 

and not by way of limitation, the following are 

examples of authentication or identification conforming with the requirements of this rule: 

"(6) Telephone conversations. Telephone conversations, by evidence that a call was made to the 

number assigned at the time by the telephone company to a particular person or business, if (A) in 

the case of a person, circumstances, including 

self-identification, show the person answering to 

be the one called, or (B) in the case of a business, 

the call was made to a place of business and the 

conversation related to business reasonably transacted over the telephone." 

As a general rule, "[aluthenticity for admissibility can 

be demonstrated by direct or circumstantial evidence and the sufficiency of evidence for a foundation is within the discretion 

of the trial judge." State v. Cooper (1972), 161 Mont. 85, 92, 

504 P.2d 978. Specifically regarding telephone calls, "many 

criminal cases have held or recognized that a mere statement of 

his identity by the caller on the telephone is not sufficient 

proof of such identity," but on the other hand a huge number of 

cases take the position that "the identity of a participant in 

a telephone conversation may be established by circumstantial 

evidence." Annot. 79 ALR3d 79, §§19, 20. 

A similar issue was presented in Churchill v. State 

(Tex.Crim.App. 1958), 317 S.W.2d 541. In Churchill, the testimony of a deputy sheriff that he had a telephone conversation 

with a person who gave his name as defendant, who reported a 

shooting and instructed officers to meet him at a certain place, 

the scene of the shooting, was admissible in evidence when further testimony showed that deputies were immediately dispatched 

to the scene and found defendant there. The fact that the deputy 
was not familiar with the defendant's voice went to the weight 

rather than to the admissibility of the testimony. 

Where the recipient of a call is not familiar with the 

caller's voice, "[clorroboration of a statement of identity by 

the caller sufficient to render the conversation admissible 

against him may be supplied by the evidence (1) that the subject 

matter of the call revealed that only the named party would 

likely have knowledge of those conversational facts; or (2) of 

other confirming circumstances which make it probable that the 

named person was, in fact, the speaker." [Citations omitted.] 

State v. Marlar (1972), 94 Idaho 803, 498 ~.2d 1276, IW. 

Circumstances preceding or following a telephone conversation may serve to sufficiently identify the caller so as to 

render telephone communication admissible. State v. Williamson 

(1972), 210 Kan. 501, 502 P.2d 777. "The completeness of the 

identification goes to the weight of the evidence rather than 

to its admissibility, and the responsibility lies in the first 

instance with the ~istrict Court to determine within its sound 

discretion whether the threshold of admissibility has been met." 

Williamson, 502 P.2d at 780. 

Defendant's contention here that evidence of the phone 

conversation should have been excluded because it did not fall 

within Rule 901(b)(6), Mont.R.Evid., is erroneous because the 

conditions stated therein are examples only. In this case there 

are several confirming circumstances making it probable that defendant was in fact the speaker. There was no error in the 

denial of defendant's motion in limine. 

The defendant alleges as error the District Court's failure to instruct on negligent homicide as a lesser included offense. 

Section 46-11-501(2) (a), MCA, defines "included offense" 

as an offense which occurs when "it is established by proof of 

the same or less than all the facts required to establish the 
commission of the offense charged . . ." While this definition 

is applicable to double jeopardy or former prosecution as a bar 

to a new prosecution, it also applies where we must determine 

whether an instruction on a supposed lesser included offense is 

required. In the instant case the defendant was charged with 

deliberate homicide. Section 45-5-102, MCA. The refused requested instruction dealt with negligent homicide. Section 

45-5-104, MCA. The difference between the two crimes consists 

of the mental state necessary to convict a defendant of the respective crimes. For purposes of the following discussion we will 

assume that negligent homicide is a lesser included offense of 

deliberate homicide. 

The question of the necessity of an instruction on a 

lesser included offense has been addressed in a number of recent 

cases by this Court. We have consistently held that such an instruction is required where there is some evidence to support the 

lesser offense. "[A] defendant is entitled to instructions on 

lesser included offenses if - any evidence exists in the record 

which would permit the jury to rationally find him guilty of a 

lesser offense and acquit him of a greater." State v. Ostwald 

(1979) , Mont . , 591 P.2d 646, 651, 36 St.Rep. 442, 448, 

This test has been consistently applied by this Court. 

See State v. Baugh (1977), 174 Mont. 456, 571 P.2d 779, 34 St.Rep. 

1315; State v. Bouslaugh (1978), Mont . , 576 P.2d 261, 35 

St.Rep. 319; State v. Radi (1978), Mon t . , 578 P.2d 1169, 

35 St.Rep. 489; State v. Reiner (1978), Mont . , 587 P.2d 

950, 35 St.Rep. 1861. 

In the Reiner case, the defendant pointed a firearm at 

several people and was subsequently convicted of aggravated 

assault. The defendant had asked for an instruction on the lesser 

included offense of assault and had been refused. Under this set 

of facts the apprehension of serious bodily injury by the victims 
was determinative. See section 45-5-202(c). his Court refused 

to overturn the conviction, saying: 

"There may - be cases in which pointing a firearm 

or threatening another with a firearm could 

constitute assault rather than aggravated assault 

but we are not called upon here to say what those 

circumstances might be. In this case it is clear 

that the defendant put his victim in reasonable 

apprehension of serious bodily injury by his menacing use of a ,357 magnum revolver." Mont . I 

587 P.2d at 958. 

We are faced with a similar case. There is testimony in 

the record that death by manual strangulation requires two to 

three minutes, and longer if the victim struggles. In refusing 

the instruction, the District Court judge stated, "Well since 

the defense of negligent homicide is beyond my wildest imagination 

. . . I am going to refuse Defendant's . . ." instruction. Likewise, this Court cannot conceive how this death occurred as a 

result of negligence. We find no evidence in the record upon 

which an instruction of negligent homicide could be based. It 

was not error to refuse such an instruction. 

Defendant contends the trial court erred in refusing defendant's offered instruction No. 34, which said: 

"You are instructed that if a person is assaulted 

in such a way as to induce in him a reasonable 

belief of danger of losing his life or suffering 

bodily harm, or that his family or a member thereof 

may suffer bodily harm, or another may suffer 

bodily harm, or his home is threatened, he will be 

justified in defending himself or another, though 

the danger be not real, only apparent." 

The instruction that was given instead stated: 

"A person is justified in the use of force when and 

to the extent that he reasonably believes that such 

conduct is necessary to defend himself against the 

imminent use of unlawful force. 

"However, a person is justified in the use of force 

which is intended or likely to cause death or 

serious bodily harm only if he reasonably believes 

that such force is necessary to prevent imminent 

death or serious bodily harm to himself." 

This is language taken from section 45-3-102, MCA. 

Defendant argues that because of the expert testimony 
regarding the intimidating effects on defendant caused by his 

bizarre relationship with his mother, it was essential that the 

jury be specifically instructed that his claim of self-defense be 

judged in terms of the apparent danger which he perceived and 

not the actual dangers which faced him. However, where counsel 

is "not limited under [the] instructions [given] from fairly presenting his defense to the jury, the defendant will not be heard 

to complain that the court failed to give the many different 

nuances on a theory of defense that might have been devised." . I* 

State v. Collins (1978), Mont . , ?X? P.2d 1179, 35 St.Rep. 

The same issue was discussed in the Reiner case, supra. 

In that case we said: 

"In this instance the Court's instruction to the 

jury was drawn directly from the self-defense 

statute applicable. That statute states the jury 

must base its determination of the self-defense 

claim upon the defendant's reasonable belief of 

the need to use force to protect himself. While 

this instruction does not make the concept of 

apparent danger absolutely clear, neither does it 

misstate the law of self-defense. Under these 

circumstances the better practice may be to clearly 

instruct that the defendant's claim must be judged 

in terms of the apparent danger which he perceived, 

and not the actual danger which faced him. Yet 

the instruction given in this case cannot be considered so misleading as to require a new trial. 

We must assume that the jury did consider defendant's belief in the need to use force and whether 

that belief was reasgnable. This is all the statute 

requires. " 587 P. 26% P , 35 St.Rep. at 1869. 

The Reiner case controis. It was not reversible error 

to refuse the defendant's offered instruction No. 34. 

Finally, the defendant contends that the giving of the 

following instruction to his jury constitutes reversible error. 

"The law presumes that a person intends the 

ordinary consequences of his voluntary acts." 

Defense counsel made an objection to this instruction: 

" . . . Nowhere in the Montana Criminal Code is a 

statement that says that you can presume what that 

offered instruction says; that is in violation of 
the requirement that the State must prove by 

competent evidence each and every material allegation and here there is a presumption that would 

not require the standard test beyond a reasonable 

doubt. " 

In a recent United States Supreme Court case it was held 

that an instruction which was given to the jury and which was 

identical to the above instruction, constituted reversible error. 

Sandstrom v. Montana (1979), 442 U.S. , 99 S.Ct. 2450, 61 

The Supreme Court came to this conclusion by analysing 

the instruction "the way in which a reasonable juror could have 

interpreted the instruction." They went on to say: 

"Given the common definition of 'presume' as 'to 

suppose to be true without proof,' Webster's New 

Collegiate Dictionary 911 (1974), and given the 

lack of qualifying instructions as to the legal 

effect of the presumption, we cannot discount the 

possibility that the jury may have interpreted 

the instruction in either of two more stringent 

ways. " 

The first way the instruction may have been interpreted 

by the jury was as an irrebutable direction rather than a presumption. The second way was explained as follows: 

" . . . the jury may have interpreted the instruction as a direction to find intent upon proof of 

the defendant's voluntary actions (and their 'ordinary' 

consequences), unless the defendant proved the contraGy 

by some quantum of proof which may well have been 

considerably greater than 'some' evidence--thus effectively shifting the burden of persuasion on the element 

of intent. Numerous federal and state courts have 

warned that instructions of the type given here can be 

interpreted in just these ways. (Citations omitted.) And 

although the Montana Supreme Court held to the contrary 

in this case, Montana's own Rules of Evidence expressly 

state that the presumption at issue here may be overcome only 'by a preponderance of evidence contrary to 

the presumption.' Montana Rules of Evidence 301(b) (2). 

Such a requirement shifts not only the burden of production, but also the ultimate burden of persuasion on the 

issue of intent. 

"We do not reject the possibility that some jurors 

may have interpreted the challenged instruction as 

permissive, or, if mandatory, as requiring only that 

the defendant come forward with 'some' evidence in 

rebuttal. However, the fact that a reasonable juror 

could have given the presumption conclusive or 
persuasion-shifting effect means that we cannot 

discount the possibility that Sandstrom's jurors 

actually did proceed upon one or the other of these 

latter interpretations. And that means that unless 

these kinds of presumptions are constitutional, the 

instruction cannot be adjudged valid." 442 U.S. at , 99 S.Ct. at , 61 L Ed 2d at 47-48. 

A state must prove beyond a reasonable doubt every element 

of the crime charged. In re Winship (1970), 397 U.S. 358, 90 S.Ct. 

1068, 25 L Ed 2d 368. In Sandstrom the State had to prove that 

the crime was committed purposely or knowingly. Section 45-5-102, 

MCA. The United States Supreme Court concluded that under either 

interpretation the instruction relieved the state of proving intent beyond a reasonable doubt, therefore, it violated defendant's 

guarantee of due process. If the instruction was interpreted as 

a conclusive presumption it would excuse the state from proving 

a vital element and would be unconstitutional under Winship, supra. 

If Sandstrom's jury had interpreted the presumption as merely 

shifting the burden of persuasion, "it could have concluded that 

upon proof by the State of the slaying, and of additional facts 

not themselves establishing the element of intent, the burden was 

shifted to defendant to prove he lacked the requisite mental state. 

Such a presumption was found constitutionally deficient in Mullaney 

v. Wilbur, 421 U.S. 684 (1975)." The Supreme Court concluded 

that "the judgment of the Supreme Court of Montana is reversed 

and remanded for further proceedings not inconsistent with this 

opinion." 442 U.S. at , 99 S.Ct. at , 61 L Ed 2d at 53. 

This Court subsequently remanded the case to the District 

Court for a retrial. State v. Sandstrom (1979), Mont . I 

The State contends that the instruction was harmless error 

under the facts of this case. We agree. 

The present case began with a phone call to the Carbon 

County sheriff's office. An officer heard what sounded like a 

struggle between a male and female. There was scuffling and a 
female voice calling for help. After hearing what sounded like 

the female gasping for air and choking, the officer began to 

write down the intelligible words and sentences he could make 

out. He recorded the following phrases spoken at intervals by 

the male voice: 

"Goddamnit, die. I am going to hell. Mamma, 

I am sorry. You all right, Mamma, huh? NO, 

no, no, Mamma. I love you. Mamma, Mamma, Mamma, 

Like hell I am. I have never done this in my 

life. Now I have got to find my glasses. Mamma, 

Mamma. Die, you bitch. Goddamnit, die. Are you 

going to die or not? Die, damnit. I am going to 

hell, Mamma." 

Minutes later, law enforcement officers arrived at the 

defendant's home and found him with bruises and scratches on 

his face. His 75 year old mother was lying face down on the 

floor. She had been manually strangled to death. 

These facts were testified to at trial. 

In order for a federal constitutional error to be held 

harmless, the court must be able to declare a belief that it 

was harmless beyond a reasonable doubt. Chapman v. California 

(1967), 386 U.S. 18, 87 S.Ct. 824, 17 L Ed 2d 705. The Chapman 

decision was based upon the earlier decision of Fahy v. Connecticut 

(1963), 375 U.S. 85, 84 S.Ct. 229, 11 L Ed 2d 171. The court had 

said in Fahy: "The question is whether there is a reasonable 

possibility that the evidence complained of might have contributed 

to the conviction." 375 U.S. at 86-87. 

In Harrington v. California (1969), 395 U.S. 250, 89 S.Ct. 

1726, 23 L Ed 2d 284, the Supreme Court again considered the concept of harmless error. The prosecution, during defendant's 

trial, had introduced the confessions of three codefendants. Two 

of the codefendants did not take the stand. This practice had 

been held to be a denial of Sixth Amendment rights in Bruton v. 

United states (1968), 391 U.S. 123, 88 S.Ct. 1620, 20 L Ed 2d 476. 

In Harrington, however, the Court held that the practice could, 
under the facts of the case, be held as harmless error. The 

Court said : 

"But apart from them [the confessions] the case 

against Harrington was so overwhelming that we 

conclude that this violation of Bruton was harmless beyond a reasonable doubt, unless we adopt the 

minority view in Chapman (386 U.S. at 42-45) that 

a departure from constitutional procedures should 

result in an automatic reversal, regardless of the 

weight of the evidence. 

"It is argued that we must reverse if we can imagine 

a single juror whose mind might have been made up 

because of Cooper's and Bosby's confessions and 

who otherwise would have remained in doubt and 

unconvinced. We of course do not know the jurors - 

who sat. Our judgment must be based on our own 

readinq of the record and on what seems to us to 

have been the probable impact of the two confessions on the minds of an average jury. We admonished in Chapman, 386 U.S., at 23, against giving too 

much emphasis to 'overhelming evidence' of quilt, 

stating that constitutional errors affecting thesubstantial rights of the aggrieved party could not 

be considered to be harmless. By that test we 

cannot impute reversible weight to the two conf essions. 

"We do not depart from Chapman; nor do we dilute 

it by inference. We reaffirm it. We do not sussest 

that, if evidence bearing on all the ingredients40f 

the crime is tendered, the use of cumulative evidence, 

though tainted, is harmless error. Our decision is 

based on the evidence in this record. The case 

against Harrington was not woven from circumstantial 

evidence. It is so overwhelming that unless we say 

that no violation of Bruton can constitute harmless 

error, we must leave mtate conviction undisturbed." 

395 U.S. at 254. (Emphasis added.) 

In Milton v. Wainwright (1972), 407 U.S. 371, 92 S.Ct. 

2174, 33 L Ed 2d 1, the Supreme Court again considered the harmless error doctrine. The Court said that there was overwhelming 

evidence of guilt and that there was "no reasonable doubt that 

the jury . . . would have reached the same verdict without hearing [the tainted1 testimony." 407 U.S. at 377. Consequently, 

defendant's conviction was affirmed. 

The tests used in Harrington and Milton seemingly are 

different. The Harrington test focuses on the impact upon the 

jury. The Milton test focuses upon the amount of evidence 
presented at the trial or the "overwhelming evidence" test. See 

BOY, Harmless Error: The Need For a Uniform Standard, 53 St. 

John's L.R. 541 (1979). 

Recently, this Court has made the following observation: 

"To constitute harmless error, we must be able to assent as a 

Court that the offensive instruction could not reasonably have 

contributed to the jury verdict." State v. Sandstrom (1979), 

Mont. I at , 603 P.2d 244, at 245, 36 St.Rep. 2099, 2100. 

This statement indicates that the law in Montana as to harmless 

error is closer to the Harrington test. That is, the appellate 

court determines the impact of the error upon a reasonable jury. 

If the impact of the instruction could not have reasonably contributed to the verdict, then the error is harmless. That such 

an approach is correct is emphasized by the United States Supreme 

Court. They said that the proper analysis of an instruction 

begins with "the way in which a reasonable juror could have interpreted the instruction." 442 U.S. at , 99 S.Ct. at , 

61 L Ed 2d at 45. . 

Under Montana law, causing the death of another becomes 

deliberate homicide only when it is committed purposely or knowingly. Section 45-5-102, MCA. Therefore, these elements are 

necessary to the proof of this particular crime, and must be proved 

beyond a reasonable doubt by the prosecution. 

For obvious reasons, intent is a difficult element to 

prove. The evidence must normally be in the nature of outward 

manifestations of the defendant's state of mind. In the present 

case, however, we have a unique situation. We know what the defendant was thinking. A police officer heard him say, among other 

things: 

"Goddamnit, die . . . Die you bitch. Goddamnit, 

die. Are you going to die or not? Die, damnit . . . I@ 

It is difficult to conceive of a better indication as to 
defendant's intent. Also, the officer heard the fight at the 

time these words were spoken and another officer found the 

defendant and the victim's body minutes later. 

For purposes of this issue, the only contested element 

is intent. The evidence as to intent is overwhelming. We have 

carefully read the record and our holding is based upon the 

probable impact of the instruction upon the minds of the average 

jury. In the light of the evidence, the impact of the instruction upon the jury could not have reasonably contributed to the 

verdict. The error was harmless. 

Affirmed. 

We con fi 

Chief Justice