No. 12921 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

19 75 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

-vs - 

ROGER G. CARYL, 

Defendant and Appellant, 

Appeal from: District Court of the Third Judicial District, 

Honorable Nat Allen, Judge presiding. 

Counsel of Record: 

For Appellant: 

Maurice A. Maffei argued, Butte, Montana 

John Radonich argued, Anaconda, Montana 

For Respondent : 

Hon. Robert I*. Woodahl, Attorney General, Helena, 

Montana 

Jock Anderson, Assistant Attorney General, argued, 

Helena, Montana 

M. K. Daniels appeared, Deer Lodge, Montana 

Submitted: November 6, 1975 

Decided : 

EC 12 rm 
Mr. Justice Frank I. Haswell delivered the Opinion of the Court. 

Defendant was convicted by jury verdict of two first 

degree murders and a first degree assault in the district court, 

Powell County. Judge Nat Allen sentenced him to two consecutive terms of life imprisonment for the murders and an additional 

term of ten years for the assault. Defendant appeals from the 

judgment of conviction and denial of his motion for a new trial. 

Defendant is Roger G. Caryl, an 18 year old at the time 

of the crimes charged and at the time of trial. He was employed 

as a ranch hand at the Whitetail ranch near Ovando, Montana. On 

the morning of October 7, 1973 he entered the kitchen at the main 

lodge of the ranch with a shotgun in his hands, a pistol in a 

holster at his side, and a knife in his belt. As he entered 

Dianna Schnaible, a ranch employee, was going downstairs to get 

some coffee; defendant told her to get back in the kitchen and 

she did so. Seated around the kitchen table were John Miller, 

defendant's employer, and Arlene Needles, a ranch employee. Miller's 

wife, Roberta, was either seated at the kitchen table or standing 

by the dishwasher. Ruby Judd, the ranch cook, was standing by 

the stove and Dianna Schnaible had walked over behind her. 

Defendant said "Here's hello from ", it being uncertain who was named. The sequence of events thereafter is 

confused. In any event, defendant shot John Miller and Ruby Judd 

with the shotgun, the latter during her attempt to take the shotgun away from defendant. According to Dianna Schnaible, defendant also shot at her but missed. 

John Miller, Roberta Miller and Arlene Needles ran outside the main lodge building to the Copenhaver house. John 

Miller died there within a short time from the gunshot wound. 

Ruby Judd was taken by ambulance to a hospital in Missoula where 

she died that afternoon. 
Immediately after the shooting Steve Foundation, brother 

of Roberta Miller, and Jerry Schnaible, husband of Dianna 

Schnaible and an employee at the Whitetail ranch, went to the 

kitchen of the main lodge where Ruby Judd was lying on the floor. 

Both testified that Ruby Judd stated that defendant shot her. 

Defendant left the Whitetail ranch in Ruby Judd's car 

and escaped the dragnet set up to apprehend him. He traveled to 

Denver, Colorado and then to Miami, Florida where he was apprehended in February, 1974 and returned to Montana. 

On March 7, 1974 an Information was filed in the district 

court, Powell County, charging defendant with three crimes: (1) 

first degree murder of John Miller, (2) first degree murder of 

Ruby Judd, (3) first degree assault of Dianna Schnaible. Defendant was not charged in connection with the deaths of Steve Akins 

and Sam Akins, ranch employees, whose bodies were found in the 

bunkhouse on the Whitetail ranch occupied by them and defendant. 

Defendant entered a plea of "not guilty" to each charge. 

He gave notice of his intention to rely on the defense of mental 

disease or defect excluding responsibility. 

His defense at the trial principally focused on his claim 

that he was not responsible for his acts because of mental disease 

or defect. He testified in substance that the night preceding 

the killings and assault he drank some whiskey and took a "red" 

(i.e. a nonprescription drug), got "bombed", and could remember 

nothing more until a couple of days thereafter when he stopped 

at a motel in southern Montana. He did not deny the killings 

but claimed a state of mind incapable of forming the specific 

intent required to constitute the crimes. He also contended that 

the fact of the assault on Dianna Schnaible and the requisite 

specific intent was not proven. 

The major battleground at the trial concerned his claim 
of mental disease or defect. The testimony at the trial consisted of events, attitudes and relationships during his childhood and during his employment at the Whitetail ranch coupled 

with expert opinion evidence from psychologists, a social worker, 

and a psychiatrist concerning the presence or absence of mental 

disease or defect. 

The evidence indicated, among other things, that defendant was born on September 3, 1955 in Japan where his father was 

stationed in the Air Force. His mother was a registered nurse. 

Testimony indicated that defendant grew up in Mount Zion and 

Decatur, Illinois and that he was a high school graduate with 

average grades. From time to time he became a disciplinary problem at school resulting in temporary suspensions. As he went 

through high school, he spent progressively less time at home and 

became more isolated from his parents. 

From an early age he became obsessed with the "old west", 

cowboys,and gunfighters. He wore western clothes, cowboy boots, 

and talked with a drawl. He became fascinated with early Texas 

history, southerners, and the Confederacy. The night he graduated from high school, he headed for Texas where he spent a few 

days. He returned home and in August, 1973 headed west with a 

high school friend, eventually ending up at the Whitetail ranch. 

He told them his name was Texana Jess McCord, apparently 

from a television program; that he was from Texas where his folks 

had a ranch; that he was an experienced cowboy; that he had been 

wounded in Vietnam while serving with the U. S. Marines; and many 

other fantasies of the same general tenor. He was considered 

a braggart and a liar by many of those at the Whitetail ranch. 

Testimony further indicated that he had never been paid 

for his work at the ranch; that he was behind in his car payments; 

that he had damaged his employer's truck when he ran it off the 
road; that he had been given three traffic citations which were 

unpaid and further action was threatened; that he had shot his 

employer's dog; and that his employer was going to discharge him 

and have him removed from the premises. He began worrying on 

the Saturday night before the Sunday morning shootings, went to 

the bunkhouse, and began to drink. The two Akins and a "long 

haired" friend appeared at the bunkhouse; the "long hair" gave 

him a "red" which he swallowed; defendant went outside "bombed" 

and does not remember anything further until a couple of days 

after the shootings. 

After charges were filed against defendant, he was extensively examined and tested over a four week period at the 

Warm Springs State Hospital. He was also examined and tested by 

a psychologist retained by the defense. 

The principal report and testimony on behalf of the 

state was given by Dr. M. F. Gracia, a psychiatrist at the Warm 

Springs State Hospital. His diagnosis of defendant was: without 

mental disorder; episodic excessive drinking; passive-aggressive 

personality; drug dependence, psycho-stimulants (reds); social 

maladjustment; unsocialized aggressive reaction of adolescence. 

Dr. Gracia concluded: (1) that defendant had the capacity to 

understand the proceedings against him and to assist in his own 

defense; (2) that at the time of the criminal conduct charged, 

defendant had the ability to appreciate the criminality of his 

conduct and to conform his conduct to the requirements of law; 

and (3) that defendant possessed the capacity to have the particular state of mind which is an element of the offenses charged. 

The defense called Dr. Lester W. Edens, a psychologist, 

who gave a report and testimony on defendant's mental state. On 

the basis of his testing and examination, Dr. Eden's conclusion 

and opinion can be stated in this language from his report: 
"In summation, it is the impression of this 

examiner that this patient is characterized as 

a personality disorder of a non-psycotic nature. 

Specifically, the diagnosis would read personality 

disorder, anti-social personality type, Code No. 

301.7 of the A.P.A. diagnostic and statistical 

manual of disorders. In addition to the primary 

diagnosis, it is the impression of the writer 

that there are underlying schizophrenic symtoms 

not yet characterized, that is, Mr. Caryl on 

occasion appears to present contaminated thought 

processes and inappropriate mannerisms and responses. The dynamics related to a personality 

disorder, together with the milieu, undoubtedly 

contributed to the reported incident for which 

this patient is incarcerated. Additionally, with 

a tendency towards periodic disorganization of 

thought processes, his condition has been and will 

continue to be disabling, - 

particularly when cornpounded with the induction of alcohol and/or 

non-prescriptive drug abuse." 

Defendant's specifications of error can be grouped to 

permit ease of analysis and discussion: 

(1) Insufficient evidence to support the conviction. 

(2) Error in denying defendant a pretrial interview of 

state's witness Dianna Schnaible. 

(3) Error in jury instructions. 

(4) Error in admitting statement of Ruby Judd. 

(5) Prejudicial conduct of the prosecuting attorney. 

Defendant contends the evidence was insufficient to 

support his conviction on either murder charge or the assault 

charge. He contends that proof of one or more elements of each 

crime was lacking. 

Defendant claims the evidence insufficient to prove premeditation or malice aforethought in the killing of John Miller, 

and therefore the most he can be convicted of is second degree 

murder. 

Premeditation- and malice aforethought are subjective 

mental states which can only be proven by the circumstances under 

which the killing took place. 

"Whether premeditation is present in a given case 

is a question of fact to be determined by the jury 
from all the circumstances of the case such as 

the use of a deadly weapon upon an unarmed victim, * * * [and] the procuring and preparation 

of weapons with which to commit the crime * * *." 

1 Wharton's Criminal Law and Procedure, 5 267, 

pp. 566, 567, 568. 

Here premeditation and malice aforethought can be inferred from 

defendant's act of arming himself with deadly weapons, seeking 

out his victim, and shooting his unarmed victim without provocation. 

Next, defendant claims that the evidence is insufficient 

to prove premeditation and malice in the killing of Ruby Judd. 

It is apparently defendant's contention that the fact she was 

shot while trying to take the shotgun away from him negates these 

elements. 

The circumstances surrounding the killings and assault 

support an inference that defendant intended to shoot as many 

people as he could indiscriminately. What has been said heretofore in connection with the killing of John Miller applies as 

well to the killing of Ruby Judd. The fact she attempted to defend 

herself and the other persons present in the kitchen by grabbing 

the shotgun does not necessarily negate the malice and premeditation in defendant's mind. The jury found malice and premeditation and on review this Court will consider the evidence in 

the light most favorable to the prosecution who prevailed in the 

trial court (Schneider v. United States, 192 F.2d 498; Hellman 

v. United States, 298 F.2d 810), and will assume the existence 

of every fact which the jury could have deduced from all the 

evidence to reach its verdict. State v. Noble, 142 Mont. 284, 

384 P.2d 504. 

Defendant also claims there is insufficient evidence 

to prove that he shot at Dianna Schnaible or to prove a specific 

intent to kill her. 

The crime of first degree assault is defined by statute 
in section 94-601, R.C.M. 1974: 

"Every person who, with intent to kill a human 

being * * * 

"1. Assaults another with a loaded firearm, or 

any other deadly weapon, or by any other means or 

force likely to produce death * * *, 

"is guilty of assault in the first degree * * *". 

Dianna Schnaible's testimony that defendant shot at her 

with a shotgun is sufficient proof of an assault with a loaded 

firearm within the meaning of the statute. The specific intent 

to kill can be inferred from defendant's act of entering the 

room heavily armed, the shooting of John Miller and Ruby Judd 

without provocation, and his succeeding act of shooting at her 

at close range and without provocation. 

Accordingly, we hold the evidence sufficient to support 

defendant's conviction on all three charges. 

Defendant claims prejudicial error because defense counsel was unable to interview Dianna Schnaible, the only eyewitness 

to the shooting of Ruby Judd and the assault on Dianna Schnaible, 

prior to trial. 

The background of this contention is that the district 

court authorized expenses to defense counsel to travel to California for a pretrial interview of Dianna Schnaible and other 

state's witnesses. When defense counsel arrived in California 

on May 29, Dianna Schnaiblels doctor would not permit the interview because she was in an advanced state of pregnancy with the 

birth of the child imminent. The state moved for continuance 

of the date set for trial because of her unavailability to testify 

until after her child was born. The district court granted a 

continuance of the trial date to July 15 at which time the trial 

commenced. Apparently Dianna Schnaible did not arrive in Deer 

Lodge, the place of trial, until about 9:00 p.m. on July 16. 
Defense counsel apparently attempted to contact her then, but 

her husband would not permit them to interview her because she 

was highly nervous and under a doctor's care. 

Defense counsel moved to dismiss the first degree 

assault charge on this basis. Eventually defense counsel secured 

a half hour interview with her during the noon hour of July 17 

which defense counsel claimed was "wholly unsatisfactory". Dianna 

Schnaible testified thereafter at the trial as the last witness 

in the state's case-in-chief. The defense did not cross-examine 

her, but requested that she not be excused from the subpoena "in 

the event we wish to call her for the Defendant's case". She 

was never called as a witness for defendant. 

Defendant's claim of prejudicial error must fail. We are 

aware of no obligation on the part of Dianna Schnaible to allow 

defense counsel to interview her prior to trial short of the 

statute concerning pretrial depositions of material witnesses in 

criminal cases, section 95-1802, R.C.M. 1947. No attempt to take 

her deposition was made. Defense counsel had a copy of the statement she gave following the killings and assault, together with 

the representation of the county attorney to the court that he 

was aware of no changes. There is no showing that the state interfered with defense counsel's attempts to secure a pretrial interview. Defense counsel actually secured an interview with the 

witness prior to her testimony at the trial, albeit "wholly unsatisfactory" from their point of view. The defense did not 

cross-examine her at the trial, nor did they call her as a witness in their case. There is no showing of prejudice to the defense. 

Defendant's next specifications of error concern jury 

instructions. He claims error in the refusal of the court to 

give his proposed instructions 20, 21 and 23A, and contends that 
Court's Instructions 20, 24, 26, and 11 should not have been 

given. 

Defendant's proposed instruction No. 20 reads: 

"You are instructed that, to entitle a defendant 

to acquittal on the grounds of mental disease 

or defect, he is not required to overcome the 

presumption of sanity by a preponderance of the 

evidence, or any greater amount of evidence than 

enough to raise a reasonable doubt whether at 

the time of the killing and assault he was unable 

either to appreciate the criminality of his conduct 

or to conform his conduct to the requirements of 

law. " 

This instruction is an incorrect statement of the law. The defense 

of insanity must be proved by a preponderance of the evidence. 

Sections 94-119, 95-503, R.C.M. 1947. The proposed instruction 

was properly refused. 

Defendant's proposed instruction No. 21 reads: 

"In considering the question of whether the defendant as a result of mental defect or disease 

was unable either to appreciate the criminality 

of his conduct or to conform his conduct to the 

requirements of the law, you should take into 

consideration the evidence relating to his occupations and the manner in which he discharged 

the same, his personal characteristics, his 

peculiarities, his habits, his declarations and 

statements, his actions, conduct and appearance, 

prior to, at the time of, and after the act 

charged in the information, his physical condition, and any changes in his physical as well as 

his mental state, his temper, jealousy, shattered 

hopes, desires, and troubles of all kinds, together with the opinions of experts." 

The refusal of this instruction was proper. The jury 

was well instructed on the laws applicable to a mental disease 

or defect excluding responsibility by Court's Instructions No. 

26 through 31. Where the jury is adequately instructed on an 

issue by other instructions given by the court, refusal to give 

an instruction on the same subject proposed by a party is not 

prejudicial error. State v. Espelin, 106 Mont. 231, 76 P.2d 

629; State v. Bosch, 125 Mont. 566, 242 P.2d 477. Additionally, 

some of the considerations set forth in the proposed instruction 
are either beyond the evidence in the case or unrelated to determining a mental disease or defect, for example defendant's 

physical condition or his desires. The scope and extent of the 

instructions in a given case are necessarily governed by the 

particular evidence in the case. State ex rel. Krutzfeldt v. 

Dist. Ct. 163 Mont. 164, 515 P.2d 1312. 

Defendant's proposed instruction No. 23A reads: 

"You are instructed that, when a defendant is 

acquitted on the ground of mental disease or 

defect excluding responsibility, the court shall 

order him to be committed to the custody of the 

superintendent of the Montana state hospital to 

be placed in an appropriate institution for 

custody, care and treatment." 

Refusal of this instruction is not error. We ruled on this issue 

contrary to defendant's position as recently as January 8, 1975. 

State v. French, Mont . , 531 P.2d 373, 32 St.Rep. 27. We 

find no basis to change that ruling here. 

Defendant contends that court's Instructions No. 20 and 

No. 24 are prejudicial and reversible error. Instruction No. 20 

reads : 

"Voluntary intoxication is no excuse for crime 

as long as the offender is capable of conceiving an intelligent design; he will be presumed, 

if the case is otherwise made out beyond a reasonable doubt, to have intended the natural and 

probable consequences of his own act." 

The objection at the time of settlement of instructions was: 

"MR. RADONICH: We object to Plaintiff's Proposed 

Instruction Number 36 on the ground that the Instruction is unintelligible. That it would be confusing 

to the Jury. That it appears to make intoxication 

necessarily to be proven beyond a reasonable doubt 

and, although intoxication, we agree, is not an 

excuse, intoxication is an element for the Jury to 

determine and consider in determining whether or 

not the Defendant could form an intent to commit a 

crime. " 

Court's Instruction No. 24 reads: 

"There are certain presumptions of law regarding 

a person's intent by which you should be governed. 

These are that a malicious and guilty intent is 
presumed from the deliberate commission of an 

unlawful act, for the purpose of injuring 

another. There are other presumptions of law 

bearing on the question of intent, which the law 

provides are satisfactory if uncontradicted, but 

they may be contradicted by other evidence. They 

are denominated, disputable presumptions, and 

are as follows: 

"1. That an unlawful act was done with an unlawful intent; 

"2. That a person intends the ordinary consequences of his voluntary act." 

Defendant did not object to this instruction at the time of 

settlement. The gist of the objection defendant raises on appeal 

is that these two instructions permit the jury to presume a 

specific intent. 

In a murder case, the jury is entitled to presume the 

specific intent that is an element of the crime from the act of 

killing. State v. Colbert, 58 Mont. 584, 591, 194 P. 145. In 

that case this Court said: 

" * * * The rule in other cases in which a specific intent is a necessary element of the crime is 

that the prosecution is required to prove it, or, 

what is equivalent, circumstances from which the 

jury may properly infer such intent. In such 

cases the propriety of giving the instruction is 

at least questionable. * * * But in murder cases, 

section 9282, supra [94-7212, R.C.M. 19471 dispenses 

with the necessity of evidence showing such intent, 

leavinq it to be supplied by the presumption arisinq 

from the proof of the act of killing. Whatever, 

therefore, may be said of the propriety of the giving of the instruction in cases of manslaughter * * * 

as this is a murder case, the qivinq of the instruction was entirely proper." (Emphasis supplied). 

Although there is a split of authority in other jurisdictions 

whether this presumption applies to a case of first degree 

assault, Montana allows the presumption. State v. McLeod, 131 

Mont. 478, 489, 311 P.2d 400. In that first degree assault case, 

this Court said: 

" * * * With this fact established the law presumes 

that the defendant was sane at the time he committed 

the act; that defendant committed the unlawful act 

with an unlawful intent, and that defendant intended 
the ordinary consequences of his voluntary 

act. * * *" (Emphasis supplied). 

Defendant also objects to Court's Instruction No. 20 

on the basis that it does not allow the jury to consider intoxication as it relates to the formation of specific intent, 

but allows a presumption to arise and supply the missing finding. 

In addition to what has been said heretofore concerning 

the presumption of intent, we note that court's Instruction 

No. 21 negates defendant's contention. It states in part: 

"An intoxicated or drugged condition may be taken 

into consideration in determining the existence 

of a mental state which is an element of the offense * * *-'I 

The instructions must be read as a whole and when so read, the 

effect of intoxication on the specific intent required to constitute the offense is clear and a correct statement of the law found 

in section 94-119, R.C.M. 1947. 

Defendant also claims that court's Instruction No. 26 was 

prejudicial error. That instruction reads: 

"You are instructed that a person is not responsible for criminal conduct if at the time 

of such conduct as a result of mental disease or 

defect he is unable either to appreciate the 

criminality of his conduct or to conform his 

conduct to the requirements of law. 

"The terms 'mental disease or defect' does 

not include an abnormality manifested only by 

re-repeated criminal or otherwise antisocial 

conduct . " 

Defendant's objection on settlement of instructions was: 

"MR. RADONICH: This is the statute and we would 

object, Your Honor, to Plaintiff's Proposed Instruction Number 32 on the grounds and for the 

reason that there is no evidence in the case 

that the Defendant is a re-repeated criminal. 

This goes to several criminal procedures. This 

portion of the statute is to be used only where 

you have the persons who are mentally irresponsible. This is not to be used in a case of this 

nature. " 

The substance of defendant's objection to this instruction on appeal is that the second paragraph of the instruction 
suggests to the jury that defendant is a re-repeated criminal 

md therefore not entitled to the defense of mental disease or 

defect excluding responsibility. 

We do not consider the instruction susceptible to such 

interpretation. The language of the instruction refers to 

"re-repeated criminal or otherwise antisocial conduct". It 

does not refer to a re-repeated criminal. It clearly and simply 

says that an abnormality manifested by such conduct standing 

alone does not constitute a "mental disease or defect". It is 

taken directly from section 95-501(b), R.C.M. 1947, which provides: 

"As used in this chapter, the terms 'mental disease 

or defect' does not include an abnormality manifested only by re-repeated criminal or otherwise 

antiocial conduct." 

The instruction is a clear and correct statement of the law and 

unobjectionable. 

Defendant objects to court's Instruction No. 11, which 

reads: 

"If the killing was unlawful only, manslaughter 

is the crime; add to the element of unlawfulness 

malice aforethought only, and the murder of the 

second degree is the crime; and, lastly, add 

deliberation to unlawfulness, and malice aforethought 

and murder of the first degree is the crime." 

Defendant's objection on settlement of instructions was: 

"MR. RADONICH: The Defendant objects to Court's 

3 on the grounds that it is an incomplete statement 

of the law in that it leaves out the defense prescribed by Section 94-2503." 

The essence of defendant's objection on appeal is that 

the instruction is confusing because manslaughter was not defined 

as the unlawful killing of a human being, without malice, upon 

a sudden quarrel or heat of passion; and because the word "only" 

was used in defining manslaughter and second degree murder. 

Concerning the first part of defendant's objection, i.e. 

that the instruction is confusing because it is not a complete 

statement of the law and other instructions must be referred to 
in order to give it a clear meaning, in answer we simply quote 

from State v. Brooks, 150 Mont. 399, 410, 436 P.2d 91: 

"The whole of the law on a subject cannot be given 

in one instruction. In determining the effect of 

given instructions, all instructions must be considered as a whole and if they fairly tender the 

case to the jury, the fact that one or more instructions, standing alone, is not as full or as 

accurate as it might have been is not reversible 

error. State v. Watson, 144 Mont. 576, 398 P.2d 

949; State v. Stoddard, 147 Mont. 402, 412 P.2d 

827; State v. Noble, 142 Mont. 284, 384 P.2d 504" 

Answering the second part of defendant's objection, we 

simply note that the word "only" was not used to minimize the 

quantum of proof needed for the state to carry its burden as in 

State v. Taylor, 163 Mont. 106, 515 P.2d 695, but was used to 

distinguish the different degrees of homicide. It is unobjectionable in this context and a correct statement of the distinction. 

Defendant next claims reversible error in admitting in 

evidence the testimony of Steve Foundation and Jerry Schnaible 

that Ruby Judd identified defendant as the person who shot her. 

Ruby Judd's oral statement was made within a short time after 

she was shot, while she was still lying on the floor grievously 

wounded. While we agree defendant's contention that the statement is inadmissible as a dying declaration for lack of a proper 

foundation, we hold the statement admissible as part of the res 

gestae. 

The law of Montana with respect to the res gestae exception to the hearsay rule is summarized in this language from Sullivan v. Metropolitan Life Insurance Co., 96 Mont. 254, 266, 29 

"Declarations made while the mind of the speaker 

is laboring under the excitement aroused by the 

accident, before there was time to reflect and 

fabricate, are admissible. Such statements need 

not be entirely contemporaneous with the main 

incident; they may be in the form of narrative. 

Yet, if circumstances show they were made while 

the excitement produced by the incident still 
dominated the mind and was a producing cause, 

they are nevertheless part of the main event 

and competent." 

The test of admissibility is stated in this language 

from State v. Newman, 162 Mont. 450, 458, 513 P.2d 258: 

"'Declarations made while the mind of the speaker 

is laboring under the excitement aroused by the 

accident, before there was time to reflect and 

fabricate, are admissible.'" 

The question of admissibility is left to the sound legal 

discretion of the trial judge, and will be reversed on appeal 

only in case of manifest abuse. State v. Medicine Bull, Jr., 

152 Mont. 34, 445 P.2d 916. 

Here the facts fit the test of admissibility like a 

glove and Judge Allen was correct in admitting the statement. 

Finally defendant contends that the prosecution's repeated 

attempts to refer to the killing of the two Akins constituted a 

wilful1 attempt to prejudice the jury against defendant. 

After the county attorney's reference to the death of 

the two Akins in his opening statement was ruled inadmissible, 

the county attorney on three or four occasions in examining witnesses aslted questions such as these: "And, what did you find 

at the bunkhouse?'' "And whatever happened to Sam (Akins)?'' "Do 

you know where Sam and Steve Akins are now?" On each occasion 

defendant's counsel objected and was sustained before the witness 

answered. 

Following conviction the trial judge denied defendant's 

motion for a new trial. We consider such conduct to fall far 

short of reversible error, particularly where the trial judge 

did not consider it significant enough to warrant a new trial. 

The guilt of defendant to the crimes charged was clear. It was 

common knowledge that the two Akins were killed at the same time. 

The jury was instructed: 

"In your deliberations you will only consider the 
testimony of the witnesses upon the witness 

stand and such exhibits as have been admitted 

in evidence. No juror shall allow himself 

to be influenced by anything which he may have 

seen or read outside of the evidence and exhibits 

received by the Court during the course of this 

trial. " 

A measure of the lack of significance of this alleged 

error is found in the failure of the defendant to move for a 

mistrial, submit an additional cautionary instruction, request 

the court to admonish the county attorney in the presence of the 

jury, or take any further corrective action. 

For the foregoing reasons, we affirm the judgment of 

conviction and denial of defendant's motion for a new trial. 

Justice 

We concur: 

................................. I 

Chief Justice