No. 12921 INTHE 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 theThird Judicial District, Honorable Nat Allen, Judge presiding. Counsel of Record: For Appellant: MauriceA. Maffei argued, Butte, Montana JohnRadonich argued, Anaconda, Montana For Respondent: Hon. Robert I*. Woodahl, Attorney General, Helena,

Montana JockAnderson, Assistant Attorney General, argued,

Helena, Montana M. K. Daniels appeared, Deer Lodge, Montana

Submitted: November 

### 6, 1975 Decided:

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# rm

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

Defendantwas convicted by juryverdict 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 18year old at the time of the crimes charged and at the time of trial. He was employed

as a ranch hand at theWhitetail ranch near Ovando,Montana. On the morning of October 

### 7, 1973 he entered the kitchen at the main lodge of the ranchwith 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 shedid so. Seated around the kitchen table were JohnMiller, 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 Schnaiblehad walked over behind her. Defendant said "Here's hello from 

## ",itbeing uncertain who was named. The sequence of events thereafter is confused. In any event, defendant shot JohnMiller and Ruby Judd with the shotgun, the latter during her attempt to take the shotgun away fromdefendant. According to Dianna Schnaible,defendant also shotat her butmissed. JohnMiller, Roberta Miller and Arlene Needles ran outside themain 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 shedied 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 themain 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 Informationwas filed in the district court, Powell County, charging defendantwith three crimes: (1) firstdegreemurder of John Miller, (2) firstdegree murder of Ruby Judd, (3) firstdegree assault of Dianna Schnaible. Defendant was not charged in connectionwith the deaths of SteveAkins 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 ofmental disease

or defect. He testified in substance that the night preceding the killings and assault he drank somewhiskey and took a "red"

(i.e. a nonprescriptiondrug), got "bombed",and could remember nothing more until a couple of days thereafter when he stopped at amotel in southernMontana. He did not deny the killings but claimed a state ofmind 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 intentwas not proven. Themajor battleground at the trial concerned his claimofmental disease or defect. The testimony at the trial consisted of events,attitudesand relationshipsduring his childhood and during his employment at theWhitetail ranch coupled with expert opinion evidence frompsychologists, a social worker, and a psychiatrist concerning the presence or absence ofmental disease or defect. The evidence indicated,among other things, that defendant was born on September 3, 1955 in Japan where his fatherwas stationed in theAir Force. Hismother was a registered nurse. Testimony indicated that defendantgrew 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 spentprogressively less time at home and becamemore isolated from his parents. From an early age he became obsessed with the "oldwest", cowboys,and gunfighters. Hewore western clothes, cowboy boots, and talked with a drawl. He became fascinatedwith early Texas history, southerners, and the Confederacy. The night he graduated fromhigh school,he headed for Texaswhere he spent a few days. He returned home and inAugust, 1973 headed west with a high school friend,eventually ending up at the Whitetail ranch. He told them his name was Texana JessMcCord, 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 inVietnam while servingwith the U. S. Marines; and many other fantasiesof 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 theroad; that he had been given three traffic citations which were unpaid and further action was threatened; that he had shothis 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 twoAkins and a "long haired" friend appeared at the bunkhouse; the "longhair" gave him a "red"which he swallowed; defendantwent 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 StateHospital. He was also examined and tested by

a psychologist retained by the defense. The principal report and testimony on behalf of the statewas given by Dr. M. F. Gracia, a psychiatrist at the Warm Springs State Hospital. His diagnosisof defendantwas: 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 defendanthad the capacity to understand theproceedings againsthim and to assist in his own defense; (2) that at the time of the criminal conduct charged, defendanthad the ability to appreciate the criminality of his conduct and to conform his conduct to the requirementsof law; and (3) that defendant possessed the capacity to have the particular state ofmind 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'smental state. On the basis of his testing and examination, Dr. Eden's conclusion and opinion canbe stated in this language from his report:"In summation, it is the impression of this examiner that thispatient is characterized as a personality disorder of a non-psycotic nature. Specifically,the diagnosis would read personality disorder, anti-social personality type, CodeNo. 301.7 of theA.P.A. diagnostic and statistical manual of disorders. In addition to theprimary diagnosis, it is the impression of the writer that there areunderlying schizophrenic symtoms notyet characterized, that is,Mr. Caryl on occasion appears to present contaminated thought processes and inappropriatemannerisms and responses. The dynamics related to a personality disorder, togetherwith 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 specificationsof error canbe grouped to permit ease of analysisand discussion: (1) Insufficient evidence to support the conviction. (2) Error in denying defendanta pretrial interviewof 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 evidencewas insufficientto support his convictionon either murder charge or the assault charge. He contends thatproof of one ormore elements of each crimewas lacking. Defendant claims the evidence insufficient to prove premeditation ormalice aforethought in the killing of JohnMiller, and therefore themost he canbe convicted of is second degree murder. Premeditation- and malice aforethought are subjective mental stateswhich can only be proven by the circumstancesunder which the killing took place. "Whether premeditation is present in a given case is a question of fact to be determined by the juryfrom all the circumstancesof 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

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## * 

## *." 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 deadlyweapons, 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 shewas 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 asmany people as he could indiscriminately. What has been said heretofore in connectionwith 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 foundmalice 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 (Schneiderv. United States, 192F.2d 498; Hellman

v. United States, 298 F.2d 810), and will assume the existence of every factwhich the jury could have deduced from all the evidence to reach itsverdict. State v. Noble, 142Mont. 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 statutein section 94-601,R.C.M. 1974: "Every person who, with intent to kill a human being 

## * 

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## * "1. Assaults another with a loaded firearm,or any other deadly weapon, or by any othermeans or force likely to produce death

## * * *,

"isguilty of assault in the first degree

## * * 

## *". Dianna Schnaible's testimony that defendant shot at her with a shotgun is sufficientproof 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 claimsprejudicial error because defense counsel was unable to interview Dianna Schnaible, the only eyewitness to the shootingof 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 interviewof Dianna Schnaible and other state's witnesses. When defense counsel arrived in California

on May 29, Dianna Schnaiblelsdoctor would notpermit the interview because shewas in an advanced state of pregnancywith 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 courtgranted a continuanceof the trial date to July 15 atwhich time the trial commenced. Apparently Dianna Schnaibledid not arrive in Deer Lodge, the place of trial, until about 9:00 p.m. on July 16.Defense counsel apparently attempted to contacther then,but her husband would not permit them to interviewher because she

was highly nervous and under a doctor's care. Defense counselmoved to dismiss the firstdegree assault charge on this basis. Eventually defense counsel secured

a half hour interviewwith 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 eventwe wish to call her for the Defendant's case". She

was never called as a witness for defendant. Defendant's claim of prejudicial errormust fail. We are

aware of no obligation on the part of Dianna Schnaible to allow defense counsel to interviewher prior to trial shortof the statute concerning pretrial depositionsofmaterial witnesses in criminal cases, section 95-1802,R.C.M. 1947. No attempt to take her depositionwas made. Defense counsel had a copy of the statement she gave following the killingsand 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 securea pretrial interview. Defense counsel actually secured an interviewwith the witness prior to her testimony at the trial, albeit "whollyunsatisfactory" from their point of view. The defense did not cross-examineher at the trial, nor did they call her as a witness in their case. There isno showing of prejudice to the defense. Defendant's next specificationsof error concern jury instructions. He claims error in the refusal of the court to give his proposed instructions 20, 21 and 23A,and contends thatCourt's Instructions 20, 24, 26, and 11 should not have been given. Defendant's proposed instructionNo. 20 reads: "You are instructed that, to entitle a defendant to acquittal on the grounds ofmental disease or defect, he is not required to overcome the presumption of sanityby a preponderance of the evidence, or any greater amount of evidence than enough to raise a reasonable doubtwhether at the time of the killing and assault he was unable either to appreciate the criminalityof his conduct or to conform his conduct to the requirementsof law.

### " This instruction is an incorrect statementof 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 instructionNo. 21 reads: "Inconsidering the question of whether the defendantas a result ofmental 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 inwhich he discharged the same,his personal characteristics,his peculiarities, his habits, his declarationsand 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 aswell as hismental state, his temper, jealousy, shattered hopes, desires, and troublesof all kinds, togetherwith the opinions of experts." The refusal of this instructionwas proper. The jury

was well instructed on the laws applicable to a mental disease

or defect excluding responsibility by Court's InstructionsNo. 26 through 31. Where the jury is adequately instructed on an issueby other instructions given by the court,refusal to give

an instruction on the same subjectproposed by a party isnot prejudicial error. Statev. Espelin, 106Mont. 231, 76 P.2d 629; Statev. Bosch, 125Mont. 566, 242 P.2d 477. Additionally,

some of the considerations set forth in the proposed instructionare 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. Krutzfeldtv. Dist. Ct. 163 Mont. 164, 515 P.2d 1312. Defendant's proposed instructionNo. 23A reads: "You are instructed that,when a defendant is acquitted on the ground ofmental disease or defect excluding responsibility,the court shall order him to be committed to the custody of the superintendentof the Montana statehospital 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. Statev. French, Mont

# . , 531 P.2d 373, 32 St.Rep. 27. We find no basis to change that ruling here. Defendant contends that court's InstructionsNo. 20 and No. 24 areprejudicial and reversible error. InstructionNo. 20 reads: "Voluntary intoxication isno excuse for crime as long as the offender is capable of conceiving an intelligentdesign; he will be presumed, if the case is otherwise made out beyond a reasonable doubt, to have intended the natural and probable consequencesof his own act." The objection at the time of settlement of instructionswas: "MR. RADONICH: We object to Plaintiff's Proposed Instruction Number 36 on the ground that the Instruction is unintelligible. That itwould 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 InstructionNo. 24 reads: "Thereare certainpresumptions of law regarding a person's intentby which you should be governed. These are that a malicious and guilty intent ispresumed from the deliberate commissionof 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 theymay be contradicted by other evidence. They are denominated, disputable presumptions, and are as follows: "1. That an unlawful actwas done with an unlawful intent; "2. That a person intends the ordinary consequences of his voluntary act." Defendantdid 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 inwhich a specific intent is a necessary element of the crime is that the prosecution is required to prove it,or, what is equivalent,circumstances fromwhich the jurymay properly infer such intent. In such cases the propriety of giving the instruction is at least questionable.

## * * 

## * But inmurder 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 entirelyproper." (Emphasissupplied). 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. Statev. McLeod, 131 Mont. 478, 489, 311 P.2d 400. In that firstdegree assault case, this Court said: 

### " 

## * * * With this fact established the lawpresumes that the defendantwas sane at the time he committed the act; that defendant committed the unlawful act with an unlawful intent,and that defendant intendedthe ordinary consequences of his voluntary 

## act. * * *" (Emphasissupplied). Defendant also objects to Court's InstructionNo. 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'scontention. It states in part: "An intoxicated or drugged conditionmay be taken into consideration in determining the existence of a mental state which is an element of the offense 

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## * *-'I The instructionsmust 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. Defendantalso claims that court's InstructionNo. 26 was prejudicial error. That instruction reads: "Youare instructed that a person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defecthe is unable either to appreciate the criminality of his conduct or to conform his conduct to the requirementsof law. "Theterms 'mentaldisease 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 InstructionNumber 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 arementally 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 instructionsuggests 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: "Asused in this chapter, the terms 'mentaldisease 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 InstructionNo. 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 settlementof 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 defenseprescribed 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 firstpart of defendant's objection, i.e. that the instruction is confusing because it isnot a complete statement of the law and other instructionsmust be referred toin order to give it a clear meaning, in answerwe simply quote from Statev. Brooks, 150Mont. 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, isnot as full or as accurate as itmight have been is not reversible error. State

### v. Watson, 144Mont. 576, 398 P.2d 949;State

### v. Stoddard, 147Mont. 402, 412 P.2d 827; Statev. Noble, 142Mont. 284, 384 P.2d 504" Answering the second part of defendant's objection,we simplynote that the word "only" was not used to minimize the quantum of proof needed for the state to carry its burden as in Statev. Taylor, 163 Mont. 106, 515 P.2d 695,but was used to distinguish the different degrees of homicide. It isunobjectionable in this context and a correct statementof the distinction. Defendant next claims reversible error in admitting in evidence the testimony of Steve Foundation and Jerry Schnaible that Ruby Judd identified defendantas the person who shot her. Ruby Judd's oral statementwasmade within a short time after shewas shot,while shewas 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 aspart 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., 96Mont. 254, 266, 29

"Declarationsmade 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 themain incident; they may be in the form of narrative. Yet, if circumstances show they were made while the excitementproduced by the incident stilldominated themind 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 Statev. Newman, 162Mont. 450, 458, 513 P.2d 258: "'Declarationsmade while themind 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., 152Mont. 34, 445 P.2d 916. Here the facts fit the test of admissibility like a glove and JudgeAllen 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 statementwas 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?'' "Andwhatever happened to Sam (Akins)?'' "Do you knowwhere Sam and SteveAkins 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, particularlywhere the trial judge did not consider it significant enough to warrant a new trial. The guilt of defendant to the crimes charged was clear. Itwas common knowledge that the two Akins were killed at the same time. The jury was instructed: "Inyour deliberations you will only consider thetestimony of the witnesses upon the witness stand and such exhibitsas have been admitted in evidence. No juror shall allowhimself 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 failureof 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 correctiveaction. For the foregoing reasons,we affirm the judgment of convictionand denial of defendant's motion for a new trial.

Justice We concur:



## ................................. I Chief Justice