No. 12979 INTHE SUPREME COURT OF 

### THE STATE OF MONTANA 1975

THE STATE OF MONTANA, Plaintiff and Respondent,
-VS

## - ARTHUR HEINE, Defendant and Appellant.
Appeal from: District Court of the ThirteenthJudicialDistrict, Honorable Charles Luedke, Judge presiding. Counsel of Record: For Appellant: John L. Adams, 

### Jr, argued, Billings, Montana ForRespondent: Hon. Robert 

### L. Woodahl, Attorney General, Helena,

Montana Charles E, Erdman, Assistant Attorney General, argued,

Helena, Montana Harold F. Hanser, CountyAttorney, argued, Billings,

Montana

Submitted: November 7, 1975 Decided: ..E..p.Mr. Justice John Conway Harrison delivered the Opinion of the Court. Arthur Heine was convicted by a Yellowstone County jury of "driving a vehicle while under the influence of intoxicating liquor," section 32-2142,R.C.M. 1947, and of "aggravated assault," section 94-5-202,R.C.M. He was specifically accused by Information of deliberately causing a head-on collision with another vehicle in which his ex-wife, son, daughter-in-law,and threeweek old grandchild were riding. At trial, defendant attempted to convince the jury the collision was only an accident, and that his intoxicated condition obviated any possibility the actwas committed with any degree of deliberateness. In response to this contention,the prosecuting attorney offered evidence which tended to refute defendant's claim. Over his objection, defendant's ex-wife was allowed to testify concerning several events, all taking place within three years of the assault for which he has been convicted. This testimony established that defendant once tried to ram his ex-wife's car broadside with his own; that he had twice driven his car through her garage door without first bothering to open it; and, that he once successfully attacked and stabbed her with a knife. Additionally, several character witnesses were called to testify in defendant's behalf, concerning his reputation for peace and quiet in the community. The prosecuting attorney was then allowed to cross-examine thesewitnesses through the introduction of defendant'spolice record dating back to 1948. This record contained references to a number of prior arrests on charges ranging from disorderly conduct to destruction of property. On appeal, it is first contended the district court erred in admitting evidence of other offenses, and specifically the assault committed by defendant upon his ex-wife. It is the rule that evidence of other offenses or similaracts perpetrated atother timesare inadmissible for the purpose of showing the commission of the particular crime charged. Statev. Taylor, 163Mont. 106, 121, 515 P.2d 695. However, under
a well-established exception, such evidence isnot excluded when offered toprove that the act charged was not the result of accident or inadvertence, if thatmatter is atissue inthe trial. Statev. Newman, 34 Mont. 434, 440, 87 P. 462; Statev. Cassill, 70 Mont. 433, 227 P. 49; Statev. Hughes, 76 Mont. 421, 246 P.2d 959; Statev. Simanton, 100Mont. 292, 49 P.2d 981. In Statev. Jensen, 153Mont. 233, 455 P.2d 631, this Court established three criteriawhich determine exactly what type of evidence can be lawfully admitted under this exception. Thus evidence of prior offenses or acts isadmissible if such prior offenses are in some degree similar tothe actscharged,
are not too remote intime, and tend to establish a common scheme, plan or system. Weapply this testtothe ruling of the district court and find no error. Certainly allthe prior actsand offenses testified towere inthe nature of, or similar to, assaults on defendant's ex-wife. They alltook place within three years of the crime charged which, under our holding inJensen,isnot too remote. Defendant himself placed thematter in issue through his attempts to show that the event was merely an accident. We note the cautionary Instruction No. 18 given by the trialjudge: "You are instructed that evidence of other offenses istobe viewed by you with caution and that such evidence is admitted for the solepurpose of permitting you to determinewhether the acts alleged asconstituting aggravated assault were done purposely orknowingly rather than through mistake or accident." The admission of thistestimony was within the recognized exception, and provides no grounds for reversal. Second, defendant claimsthe district court erred by receiving evidence of certain specific acts and prior arrestsas shown by his police record which was ultimately admitted
as an exhibit. This testimony was introduced by the prosecutor for the purpose of impeaching defendant's character witnesses on cross-examination. When the accused calls a witness to support his generally good reputation in the community, he opens the door to all legitimate cross-examination of that witness and must therefore accept the consequences which result. State v. Moorman, 133 Mont. 148, 153, 321 P.2d 236; State v. Cor, 144 Mont. 323, 396 P.2d 86, State v. Turley, 164 Mont. 231, 521 P.2d 690. The purpose of this rule was well stated by Chief Justice Brantly in Statev. Jones, 48 Mont. 505, 516, 139 P. 441: "As the favorable testimony tends to sustain the presumption of innocencewhich the law indulges in favor of the defendant, by introducing it the defendant tenders an issue of fact,viz., whether 

### - his reputation is such as the witnesses say it is, and the prosecution has the right to cross-examine the witnesses to ascertain the sufficiency of the grounds upon which they base their statements." We note that here the impeachment data introduced dated back to 1948, some twenty-five years prior to the charges upon which defendantwas ultimately convicted. In such a situation the potential for prejudice becomes great unless some mitigating factors are shown to exist. As this Court stated in State v. Sedlacek, 74 Mont. 201, 214, 239 P. 1002, the accused's entire life should not be searched in an effort to convict him. However,
we are satisfied that defendant suffered no prejudice under these circumstances,where themajority of the offenses introduced for impeachment purposes were not remote. The prosecution had a legal right to determine by cross-examination whether the testimony of defendant's characterwitnesses had any foundation in fact, and we find that right to have been properly exercised. Defendant's final allegation of error involves a challenge to the jurisdiction of the district court regarding the charge of"driving a vehicle while under the influenceof intoxicating liquor". Upon conviction for this offense,defendantwas sentenced to an additional year in the state penitentiary, to
run concurrentlywith his fifteen year sentence for the assault charge. Generally,Montana's district courts have jurisdiction
over all criminal cases amounting to a felony and in all cases of misdemeanor not otherwiseprovided fort.ArticleVII, Section 4, 1972Montana Constitution; Section 93-318,R.C.M. 1947. Under 1947 section 95-302,R.C.M./, justice courtsmay assume jurisdiction over allmisdemeanors punishable, inter alia, by a term of imprisonment not exceeding six months. The justice courtsnormally handle the bulk of cases involving driving while intoxicated offenses. But when an individaul is convicted on such a charge for the third time, the maximum sentence may be increased to the term of one year, and the district courts become vested with jurisdiction over the matter. Section 32-2142(d), R.C.M. 1947. Defendant seems to ground his jurisdictional challenge
on the premise that evidence of the prior driving while intoxicated convictionswas inadmissible since therewas no showing that defendantwas represented by counsel when he pled guilty to them. This specific argumentwas not presented to the district court on the motion to dismiss and it cannot be raised here for the first time on appeal. Statev. Wilson, 160Mont. 473, 477, 503 P.2d 522; Statev. White, 153 Mont. 193, 197, 456 P.2d 54; State v. Campbell, 146 Mont. 251, 267, 405 P.2d 978. Judgment of the district court is affirmed.(weconcur: 

### $. .<.,

Chief Justice



## .............................. Justice

Mr. Justice Gene B. Daly and Mr. Justice Frank I. Haswell dissenting: Wedissent. The majority opinionmisconstrues and misapplies the doctrinewhich permits proof of a stateof factstending to show
a uniform course of action recently pursued--a system orplan
on thepart of the accused, for thepurpose of showing guilty knowledge orcriminal intent, and tonegate the idea that the particular actwith respect towhich the accused ischarged was theresult of accident, mistake or inadvertence. There areno authoritiescited that sustain the admission of evidence of prior offenses, alleged offenses, etc. over a period of 25 years toconvict the defendant of "aggravated assault" resulting from an automobile collision while intoxicated. The evidence was a review of thedefendant's maritalproblems which ended indivorce three years before the alleged crimeinvolved here. The parties had not had any contact for threeyears prior tothe action here. The classof cases towhich therulemay be applied are generally those citedby themajority. Newman, a forgery case with evidence taken of similar conduct very recent. Cassill, false statements tobank superintendent and by banker concerning financial condition of thebank, evidence taken of similarconduct for the same year. Hughes, branding animals notproperty of defendant and evidence taken of others branded about same time. Simanton, recognized the rule but reversed in horse stealing case,because the state failed to prove prima facie guilt of the other acts related, however close in time. The case of State v. Jensen, 153 Mont. 233, 455 P.2d 631,quoted as principal authority by the majority is a sex case and should be distinguished. There is good law from respectable jurisdictions that clearly explains the additional latitude allowed in sex cases because of the continuing state of mind of a defendant so afflicted. The Montana rule and correct application can be found in a discussionby JusticeAngstman in State v. Knox, 119Mont. 449, 175 P.2d 774, and again in State v. Merritt, 138 Mont. 546, 357 P.2d 683. The case should be remanded for a new trial on themerits.

JusticesMr. JusticeWesley Castles specially concurring: I concur inthe opinion of Justice John Conway Harrison. I do choose torespond briefly tothe dissenting opinion. There it is stated that, "The parties had not had any contact for three years prior to the action here." This is simply not
so. The facts recited inthemajority opinion are correct. Between June of 1971and June of 1972, the defendant crashed his
car through his ex-wife's garage doors on two occasions and on another occasion assaulted her with a knife atthe officewhere she worked. These incidentswere testified to to show the knowing purpose of defendant and tonegate mistake and accident, and thejury was instructed asto this. Also the evidence showed that even after the divorce in 1971defendant lived athis ex-wife's home until June, 1972. Separate from these acts, thematter of the defendant's character and reputation for peace and quiet in the community
was brought on by defendant's character witnesses. Itwas only
on cross-examination that inquirywas made intothe past events. This isproper. See Statev. Simtob, (Mont. 1975), 32 St-Rep. 1286, and cases cited therein.