No. 12979 

IN THE 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 Thirteenth Judicial District, 

Honorable Charles Luedke, Judge presiding. 

Counsel of Record : 

For Appellant : 

John L. Adams, Jr, argued, Billings, Montana 

For Respondent: 

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

Montana 

Charles E, Erdman, Assistant Attorney General, argued, 

Helena, Montana 

Harold F. Hanser, County Attorney, 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 three week 

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 act was 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 these witnesses through the introduction 

of defendant's police 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 similar 
acts perpetrated at other times are inadmissible for the purpose 

of showing the commission of the particular crime charged. 

State v. Taylor, 163 Mont. 106, 121, 515 P.2d 695. However, under 

a well-established exception, such evidence is not excluded when 

offered to prove that the act charged was not the result of accident or inadvertence, if that matter is at issue in the trial. 

State v. Newman, 34 Mont. 434, 440, 87 P. 462; State v. Cassill, 

70 Mont. 433, 227 P. 49; State v. Hughes, 76 Mont. 421, 246 P.2d 

959; State v. Simanton, 100 Mont. 292, 49 P.2d 981. 

In State v. Jensen, 153 Mont. 233, 455 P.2d 631, this 

Court established three criteria which determine exactly what 

type of evidence can be lawfully admitted under this exception. 

Thus evidence of prior offenses or acts is admissible if such 

prior offenses are in some degree similar to the acts charged, 

are not too remote in time, and tend to establish a common scheme, 

plan or system. 

We apply this test to the ruling of the district court 

and find no error. Certainly all the prior acts and offenses 

testified to were in the nature of, or similar to, assaults on 

defendant's ex-wife. They all took place within three years of 

the crime charged which, under our holding in Jensen,is not too 

remote. Defendant himself placed the matter in issue through his 

attempts to show that the event was merely an accident. We note 

the cautionary Instruction No. 18 given by the trial judge: 

"You are instructed that evidence of other offenses 

is to be viewed by you with caution and that such 

evidence is admitted for the sole purpose of permitting you to determine whether the acts alleged 

as constituting aggravated assault were done purposely 

or knowingly rather than through mistake or accident." 

The admission of this testimony was within the recognized exception, and provides no grounds for reversal. 

Second, defendant claims the district court erred by 

receiving evidence of certain specific acts and prior arrests 
as 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 State v. 

Jones, 48 Mont. 505, 516, 139 P. 441: 

"As the favorable testimony tends to sustain the 

presumption of innocence which 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 defendant was 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 the majority 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 character witnesses 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 influence of intoxicating 

liquor". Upon conviction for this offense, defendant was 

sentenced to an additional year in the state penitentiary, to 

run concurrently with 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 otherwise provided fort.Article VII, Section 

4, 1972 Montana Constitution; Section 93-318, R.C.M. 1947. Under 

1947 

section 95-302, R.C.M./, justice courts may assume jurisdiction 

over all misdemeanors punishable, inter alia, by a term of imprisonment not exceeding six months. The justice courts normally 

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 convictions was inadmissible since there was no showing 

that defendant was represented by counsel when he pled guilty 

to them. This specific argument was not presented to the district 

court on the motion to dismiss and it cannot be raised here for 

the first time on appeal. State v. Wilson, 160 Mont. 473, 477, 

503 P.2d 522; State v. 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: 

We dissent. 

The majority opinion misconstrues and misapplies the 

doctrine which permits proof of a state of facts tending to show 

a uniform course of action recently pursued--a system or plan 

on the part of the accused, for the purpose of showing guilty 

knowledge or criminal intent, and to negate the idea that the 

particular act with respect to which the accused is charged was 

the result of accident, mistake or inadvertence. 

There are no authorities cited that sustain the admission 

of evidence of prior offenses, alleged offenses, etc. over a period 

of 25 years to convict the defendant of "aggravated assault" resulting from an automobile collision while intoxicated. The evidence was a review of the defendant's marital problems which ended 

in divorce three years before the alleged crime involved here. 

The parties had not had any contact for three years prior to the 

action here. 

The class of cases to which the rule may be applied are 

generally those cited by the majority. Newman, a forgery case 

with evidence taken of similar conduct very recent. Cassill, 

false statements to bank superintendent and by banker concerning 

financial condition of the bank, evidence taken of similar conduct for the same year. Hughes, branding animals not 
property 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 discussion by Justice Angstman in State v. Knox, 119 Mont. 

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 the merits. 

Justices 
Mr. Justice Wesley Castles specially concurring: 

I concur in the opinion of Justice John Conway Harrison. 

I do choose to respond briefly to the 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 in the majority opinion are correct. 

Between June of 1971 and 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 at the office where 

she worked. These incidents were testified to to show the knowing purpose of defendant and to negate mistake and accident, 

and the jury was instructed as to this. Also the evidence showed 

that even after the divorce in 1971 defendant lived at his ex-wife's 

home until June, 1972. 

Separate from these acts, the matter of the defendant's 

character and reputation for peace and quiet in the community 

was brought on by defendant's character witnesses. It was only 

on cross-examination that inquiry was made into the past events. 

This is proper. See State v. Simtob, (Mont. 1975), 32 St-Rep. 

1286, and cases cited therein.