No. 12698 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1974 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

-vs - 

MAURICE LYMAN THOMPSON, 

Defendant and Appellant. 

Appeal from: District Court of the Sixth Judicial District, 

Honorable Jack D. Shanstrom, Judge presiding. 

Counsel of Record: 

For Appellant : 

Lee Overfelt argued, Billings, Montana 

For Respondent : 

Hon. Robert L. Woodahl, Attorney General, Helena, 

Montana 

Thomas J. Beers, Assistant Attorney General, appeared, 

Helena, Montana 

Richard W. Josephson, r,,.'--'--, Big Timber, 

Montana -. -- p. ; -4 -! L ;.I , Conrad B. Fredricks argued, Big Timber, Montana 

Submitted: May 22, 1974 

Decided : JUL 1 5 1974 

Filed : JUL 1 5 1974 

Clerk 
Mr. Justice Frank I. Haswell delivered the Opinion of the Court. 

Defendant Maurice Lyman Thompson was convicted of second 

degree murder in a jury trial in the district court of Sweet Grass 

County. He appeals from the judgment of conviction and denial of 

his motion for a new trial. 

Defendant shot and killed James VanderVoort with a revolver 

in broad daylight. The shooting occurred on the main street of 

Big Timber, Montana on September 4, 1971, at about 6:00 p.m. 

VanderVoort was killed alongside defendant's camper pickup which 

was parked diagonally near the entrance to Erv's Bar. 

Defendant and VanderVoort had been drinking beer in the 

bar when they got into an argument. According to one witness 

defendant remarked, "1'11 kill the [s.o.~.]. He will be dead in 

three minutes." The proprietor of the bar told defendant and 

VanderVoort if they were going to fight "to get the hell out" of 

the bar. They left with defendant in the lead and Vandervoort 

following. 

The evidence is conflicting on events thereafter. In any 

event, at some point defendant got his .357 magnum revolver from 

the cab of his pickup camper and shot VanderVoort. VanderVoort 

fell to the ground alongside the left rear wheel of defendant's 

pickup camper and died on the spot. 

Defendant was charged with first degree murder. The state 

contended throughout the trial that defendant committed an intentional and premeditated killing with malice. 

Defendant claimed he accidentally shot VanderVoort while 

defending himself. He contended he drew his revolver in an 

attempt to scare off a physically superior aggressor; that VanderVoort tried to get the gun away from him and a struggle ensued; 

and that during the course of the struggle, his revolver accidently 

discharged killing VanderVoort. 

The principal conflict in the evidence was whether a struggle 

over the revolver actually occurred. 
Eyewitness testimony was conflicting. The state produced 

an FBI firearms expert who testified that the muzzle of the 

gun was probably about 18 inches from VanderVoort when the revolver 

was fired. He testified that no powder or smoke residues were found 

on the sleeves of VanderVoort's shirt. On cross-examination, he 

admitted that no such residues would be deposited there if Vander- 

~oort's hands were covering the cylinder of the revolver when it 

was fired. On redirect, he testified that he would expect to find 

powder and smoke residues from the muzzle on vanderVoortls shirt 

sleeve if the sleeve were within three to four inches of the muzzle. 

Defendant testified that VanderVoort had both hands on the 

revolver at the time it was discharged during their struggle. 

The state contended throughout that there was no struggle. 

It urged that if VanderVoort had grabbed the revolver by the barrel, 

smoke and powder residues would be present on his sleeve. If 

VanderVoort had grabbed the revolver by the cylinder, it would have 

prevented rotation and firing. 

During final argument to the jury, the following transpired: 

"[By the county attorney] Now Mr. Thompson testified 

that the gun was fired accidentally while they were 

wrestling over it while Mr. VanderVoort had ahold of 

it, substantially like this. Yet the pathologist did 

not testify as to any powder burns on the hand which was 

wrapped around the cylinder. He described small cuts in 

the evidence, small abrasions on the elbow, but no mention 

in the pathologist's testimony at all about powder bums on 

the hand. Now apparently from the pathologist's testimony, 

if you believed his testimony and it's uncontradicted, and 

its a scientific fact, if you follow the path of the bullet 

we must assume at the time the gun went off it must have 

been held--I can't do it that way--but it must have been 

held something like that in relation to Mr. VanderVoort if 

he was gripping the gun in the manner Mr. Thompson testified. 

"NOW, the FBI agent testified that if the gun was held 

like that there is muzzle blast from here, smoke residues 

left here as the bullet leaves the gun. Yet there were no 

smoke residues found on the shirt by the FBI laboratory. 

Third, the FBI agent testified it was eighteen inches from 

the muzzle to the point of entrance. And my arms are fairly 

long but I can't quite get it away eighteen inches when I 

am holding it away like this. Lastly, when you get in the 

jury room, take this gun and --- 

"THE COURT: They will not be permitted to take the gun 

to the jury room. I can't allow them to take the physical 
evidence. There is a Montana case that says it's 

error to take that. You can take all paper exhibits 

but not the physical evidence. 

"MR. FREDRICKS : [county attorney ] ~et ' s assume 

that I am Mr. VanderVoort engaged in a mortal struggle 

over this gun, and I am grasping it. Would you try 

to fire that gun, Mr. Anderson? [juror]. 

"MR. OVERFELT: [defendant's attorney] Object to this, 

this is a demonstration; assuming facts that are not 

in evidence. It is putting the jury in the position of 

participating in something that is not supported. We 

don't know the position the deceased was in nor exactly 

where he grabbed that weapon. 

"THE COURT: You may use demonstration, but I don't 

want the jury to participate in any portion of it. 

You can make your comments and discussion. 

"MR. F'REDRICKS: They won't be allowed to take that in? 

"THE COURT: I will hear arguments on that at the end of the 

case. 

''MR. FREDRICKS: Now, let's go to some other aspects of 

Mr. ~hompson's testimony. My point is here, ladies and 

gentlemen of the jury, that the physical evidence, the 

physical facts in this case, you take this gun and follow 

Mr. ~hom~son's testimony. The physical facts prove that 

his testimony is wrong and it didn't happen that way. 

I I 

[Bracketed material added. ] 

During the course of its deliberations, the jury returned 

to the courtroom and requested (1) a readback of defendant's testimony from the time he left the bar to the time of the shooting, and 

(2) permission to examine the revolver. The examination was 

conducted in the presence of the court, the defendant, and attorneys 

for both the state and defendant. 

~efendant's counsel objected: 

"MY objection is based on the fact that this jury is 

proceeding to conduct an experiment. It is obvious from 

watching them. They are trying to determine whether 

or not the trigper can be pulled when a hand is gripping 

the cylinder. There is no evidence in the record indicating 

either way whether or not the deceased was grabbing the 

gun by the cylinder thereby preventing the cylinder from 

rotating. The evidence only reveals that he was grabbing 

the barrel on the pistol somewhere. This constitutes an 

experiment on the part of the jury not based on facts in 

evidence before them, that could mislead, confuse and 

probably judging from the fact that they are asking for a 

readback on this point, asking for this critical testimony. 11 

The county attorney responded: 

"Mr. Overfelt's cross-examination of the FBI agent, he 

gripped the gun in such a manner. In addition, the 
Defendant indicated on either his direct examination 

or cross-examination that this is how the gun was 

grabbed, that one hand was over the cylinder. I I 

The jury returned a verdict finding defendant guilty of 

second degree murder. ~efendant's motion for a new trial was 

denied. 

Defendant seeks review of three issues: 

(1) Was the hypothetical question asked the FBI firearms 

expert concerning powder and smoke residues from the muzzle of 

the revolver properly allowed? 

(2) Was the state's final argument to the jury reversible 

error? 

(3) Was the examination of the revolver by the jury 

reversible error? 

Defendant contends the hypothetical question asked the FBI 

expert was speculative, without proper foundation, assumed facts 

not in evidence, and should not have been permitted. 

The relevant redirect examination by the state discloses: 

"Q. One thing I think I want clarified. That 

you get powder residue and burns from the side 

blast on the end of the muzzle too, is that correct.? 

A. That is correct. 

"Q. So that if you were holding the gun like this 

and your shirt sleeves were within say three or 

four inches of the muzzle, you would be very likely-- 

"MR. OVERFELT: Your honor, this is objected to as 

assuming facts not in evidence in this case, and I 

object to this line of questioning. 

"THE COURT : Overruled. 

"MR. OVERFELT: It is speculative. 

"MR. JOSEPHSON: I said if. 

"MR. OVERFELT: That is what I mean, it is speculative. 

There is no evidence in the record to support this 

particular line of questioning. 

"THE COURT: All right, I overruled the objection and 

you may proceed. 

"Q. If a shirt sleeve was within three to four inches 

of the muzzle of this gun, would you expect to find 

powder residue on that shirt sleeve? A. I think you 

would expect to find some, yes. 

"Q. And smoke residue? A. In that close a distance, 

yes. 
"Q. And referring to your diagram again, [it] is what 

comes out when the bullet leaves the barrel? A. Yes. 11 

[Bracketed word added.] 

The revolver and the shirt had been examined by the witness 

at the FBI laboratory. Both had been admitted in evidence. A 

photograph of the victim lying where he fell shows both sleeves of 

his shirt still fastened slightly above his wrists, This photograph had been admitted in evidence. 

On direct examination the FBI expert testified in detail 

how smoke and powder residues escape when the revolver is fired 

and deposits residue on materials in close proximity, On crossexamination he indicated that if the revolver were grasped with 

the hand over the cylinder, the shirt would have no residues unless 

I1 it was within three to five or perhaps six inches along the 

side of it." The purpose of the redirect examination was to 

establish that residues escape from the muzzle as well as the 

cylinder area, so if the shirt sleeve were within a few inches 

of the muzzle, deposits would be left on the sleeve. 

The propriety of a hypothetical question is largely within 

the discretion of the trial court whose ruling will not be distxzzbed 

in the absence of an abuse of discretion. State v. Bentley, 155 

Mont. 383, 472 P.2d 864; State v. Noble, 142 Mont. 284, 384 P.2d 

504. The purpose of a hypothetical question directed to an expert 

witness is to reduce the speculative nature of the facts to enable 

the jury to better understand the consequences. Krohmer v. Dahl, 

145 Mont. 491, 402 P.2d %?7? Here, alternative factual conclusions 

were possible under the evidence. VanderVoort either was gripping 

the revolver by the barrel, the cylinder, or both. Expert opinion 

evidence on residues under each factual alternative provides 

clarification and reduces speculation. 

The hypothetical question was relevant to a fact in issue. 

The witness was qualified as a firearms expert; there was no objection 

to foundation in the trial court. It did not assume facts not in 

evidence; the witness testified on cross-examination concerning 
deposits of residue if the revolver were gripped with a hand 

Cf. 

over the cylinder. / Burns v. Fisher, 132 Mont. 26, 313 P.2d 1044. 

Any hypothetical question is speculative in the sense that it 

assumes certain facts; the facts assumed here were within the scope 

of the evidence. Accordingly, the hypothetical question was proper 

and Judge Shanstrom did not abuse his discretion in permitting it. 

Defendant contends the state's final argument invited the 

jury to conduct an unauthorized experiment with the revolver outside 

the evidence in the case. This claim stands or falls on whether the 

jury accepted the invitation and conducted such unauthorized experiment. This is the subject of defendant's final contention 

discussed hereinafter. Aside from this, the court sustained the 

objection of defendant's counsel and ruled the jury was not to 

participate in any portion of the demonstration. The entire demonstration was dropped at this point. No prejudicial error resulted 

from the argument or attempted demonstration by the county attorney 

under such circums tances . 

People v. Evans, 39 C.2d 242, 246 P.2d 636 and State v. Hogan, 

100 Mont. 434, 49 P.2d 446, are distinguishable and do not support 

defendant's position. Both cases involve bringing facts not in 

evidence to the jury's attention in final argument. This is not 

the situation here. 

~efendant's principal contention is that the jury conducted 

an improper experiment with the revolver during its deliberations. 

Specifically, he contends that during jury examination of the 

revolver in the presence of the court, the state, the defendant 

and counsel for both parties, one juror held the cylinder while 

another attempted to pull the trigger and this performance was 

repeated by other jurors. Defendant charges jury misconduct constituting reversible error. 

Assuming, arguendo, that this occurred, we find nothing 

objectionable in this procedure under the circumstances of this 

case. Defendant testified that VanderVoort grabbed the revolver 
with both hands and maintained his hold throughout the struggle 

He demonstrated to the jury the manner in which VanderVoort gripped 

the gun. He testified the pistol was not cocked. The FBI.firearms 

expert, in response to questions by defendant's counsel, testified 

about powder and smoke residue if the revolver were held with a 

hand over the cylinder. The violent struggle over the revolver 

portrayed by defendant at least implies a firm grip on the cylinder. 

Whether the revolver could be fired under such circumstances amounts 

to no more than testing the credibility of defendant and determining 

the weight that should be given his testimony. 

The distinction between prohibited experiment and permitted 

critical examination of physical evidence is explained in the 

following quotation from a similar case, Allen v. State, 141 Tex. 

"* * * The pistol was examined and operated by 

some of the jurors---as stated by one, it was 

'fanned'. Because of this it is contended that 

the jury experimented with the pistol and brought 

into the case new and additional evidence to that 

heard from the witness box. 

"The jury had a right to take the pistol into the 

room where they were deliberating. The evidence does 

not disclose what, if any, additional fact was discovered by the jury in handling the pistol tothat 

which was shown by the testimony in the trial of the 

case. Probably it did contradict the evidence of the 

appellant to the effect that the pistol would hang at 

a certain place. The jury had a right to examine it 

to determine the truthfulness of that statement. It 

is a well-settled rule that the jury would have the 

privilege of examining a dangerous instrument 

provided they did not use it in any different manner than 

that involved in the testimony and that no new fact 

was discovered from their experiment which was hurtful 

to the appellant. I I 

We find this analysis persuasive. It promotes a just result. 

We adopt its rationale. In accord see: Andrews v. State, 15 Ohio 

CC NS 241; 33 Ohio CC 564; Hoover v. State, 107 Tex-Cr. 600, 298 

S.W. 438. 

A jury is not required to don "blinders" when deliberating on 

a verdict. Juries are permitted to take into the jury room any 

exhibits deemed proper by the trial court. Section 95-1913(c), 

R.C.M. 1947. Where, as here, the court permits the jury to examine 
a revolver used in a killing, the jury may use this physical evidence in conjunction with testimony given on the witness stand in 

determining the credibility of witnesses and the weight to be given 

their testimony. A critical examination of the firing of the 

revolver under the circumstances disclosed by the defendant in his 

testimony is not only permissible but enlightened. In searching 

for the truth, a jury is permitted to use common sense unfettered by 

illogical restraints. 

State v. Landry, 29 Mont. 218, 74 P. 418, does not support 

defendant's position here. It is distinguishable on both the facts 

and the law. It concerns a jury experiment outside the scope of 

the court's order and outside the evidence during a view of the 

premises under a special statute not involved in the instant case. 

The following authorities from other jurisdictions are cited 

by defendant in opposition to the view we have expressed here: 

State v. Burke, 124 Wash. 632, 215 P. 31; Forehand v. State, 51 

Ark. 553, 11 S.W. 766; Hansing v. Territory, 4 Okla. 443, 46 P. 509; 

95 ALR2d 351. These authorities are neither binding nor persuasive 

in the context of the case before us. To the extent they are 

construed as prohibiting a searching examination of physical evidence under conditions disclosed by the evidence in the case, they 

are relics of a bygone age when a trial was a sporting contest 

at the expense of a search for the truth. They are anachronisms 

in Montana today under our modern code of criminal procedure. 

The judgment of conviction is affirmed. 

Justice 

We Concur: