No. 13330 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1976 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

LOUIS ARTHUR ANDERSON, 

Defendant and Appellant. 

Appeal from: District Court of the Fourth Judicial District, 

Honorable E. Gardner Brownlee, Judge presiding. 

Counsel of Record: 

For Appellant : 

D. R. Matthews argued, Missoula, Montana 

For Respondent: 

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

Montana 

Douglas G. Harkin argued, County Attorney, Hamilton, 

Montana 

Submitted: October 22, 1976 

Decided : DEC 13 1976 

Filed: j~l; i3 lm 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

Defendant Louis Arthur Anderson appeals from a final 

judgment of conviction for the crime of operating a motor vehicle 

upon a public highway while under the influence of intoxicating 

liquor following a jury trial in the district court, Ravalli 

County. 

On the evening of December 18, 1974 defendant was stopped 

by Montana Highway Patrol Officer Stotts when defendant failed 

to dim his bright headlight beams for oncoming traffic. Upon 

observing defendant's speech and behavior, Officer Stotts and 

Officer Buck, the other investigating officer, concluded defendant 

was intoxicated. Officer Stotts cited defendant for driving a 

motor vehicle upon a public highway while under the influence 

of intoxicating liquor. 

Defendant appeared before the Ravalli County justice court 

on January 30, 1975 and a six man jury found defendant guilty as 

charged. The decision of the justice court was appealed by 

defendant to the district court, Ravalli County. 

On December 2, 1975, a twelve man jury returned a verdict 

finding defendant guilty. Defendant appeals and presents three 

issues for this Court's review: 

1. Did the district court err when the court refused 

defendant' s proposed instruction No. 3? 

2. Did the district court err when it permitted the 

arresting highway patrolman to demonstrate to the jury the manner 

in which the defendant walked at the scene of the arrest? 

3. Did the district court err when the court denied 

defendant's motion for an order allowing defendant to appeal his 
conviction with a partial transcript containing only the 

arresting highway patrolman's testimony? 

Defendant's first issue concerns refusal of his proposed 

jury instructLon No. 3, which in effect defined driving while 

under the influence of intoxicating liquor as the lessening of 

the ability of the driver of an automobile to control the vehicle. 

The record discloses defendant was not stopped on the evening 

of December 18, 1974, for failing to exercise reasonable control 

over the movement of defendant's vehicle on the road, rather 

defendant was stopped by Officer Stotts because he failed to dim 

his bright headlight beams for oncoming traffic. ~efendant's 

proposed instruction No. 3 was inapplicable under these particular 

facts. If given, the jury might be misled to believe that in 

order to show that defendant violated section 32-2142, R.C.M. 

1947,.the state must prove that defendant was under the influence 

of intoxicating liquor, that defendant was driving a motor 

vehicle on the highways of Montana and that being under the 

influence of intoxicating liquor affected defendant's driving 

ability. This would be an incorrect statement of the applicable 

law. 

Where jury instructions as a whole correctly state the 

law prejudice is not created because of a refusai of a proposed 

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

v. Lukus, 149 Mont. 45, 423 P.2d 49. 

Upon examining all of the instructions presented to the 

jury by the district court, we conclude the jury was properly 

instructed as to the applicable law in defendant's case and 

defendant incurred no prejudice through the exclusion of proposed 

instruction No. 3. 

-3- 
Defendant's second allegation of error involves the district courti- permitting Officer Stotts to demonstrate to the 

jury the manner in which the defendant walked at the scene of 

the arrest on the evening of December 18, 1974. 

The particular question of whether a witness may demonstrate the physical mannerisms of a defendant before a jury 

in a criminal matter would appear to be a matter of first impression in the state of Montana. Other jurisdictions acknowledge that a witness may give testimony showing that the accused, 

at the time of his arrest, appeared intoxicated. Millican v. 

State, 143 Tex. Crim. 115, 157 S,'W.2d 357; Green Lake County 

v. Domes, 247 Wis. 90, 18 N.W.2d 348. There is also recognized 

authority that a skilled or expert witness may use his own body, 

or a member of his body, or an article to illustrate or explain 

the evidence. State v. Atwood, 250 N.C. 141, 108 S.E.2d 219. 

Defendant objected to the demonstration of Officer Stotts 

on the grounds there was no adequate foundation for admission 

of the demonstration and the demonstration would not be on the 

record for appellate purposes. 

Whether the proper foundation for admission of the 

demonstration was presented and whether defendant would be 

substantially prejudiced by the admission of the demonstration 

is a preliminary question addressed to the discretion of the 

district court. As statedin State v. Medicine Bull, Jr., 152 

Mont. 34, 45, 445 P.2d 916: 

"* * * the solution of the question of admissibility 

of the evidence must in every case be left largely 

to the sound legal discretion of the trial court, 

subject to review only in case of manifest abuse." 
Defendant's contention there was inadequate foundation 

for allowing the demonstration by Officer Stotts would appear to 

be without merit. The record discloses Officer Stotts had 

ample opportunity to observe the defendant walking at the time 

of the arrest and at the time of the trial Officer Stotts 

had good recollection of the manner in which defendant walked on 

the evening in question. Defendant was allowed the opportunity 

to cross-examine Officer Stotts prior to the demonstration. 

Defendant's objection that the demonstration would not 

be adequately represented in the trial record is without merit. 

Officer Stott's demonstration was accorded the same formalities 

of recordation as any other introduction of non-verbal evidence. 

We find no abuse of discretion in the admission of this demonstration. 

Defendant' s final allegation of error concerns the 

district court'. denial of defendant's request to use a partial 

transcript for purposes of appeal. Defendant cites section 

93-8018, R.C.M. 1947, in his appellate brief as authority for 

the use of partial or abbreviated records on appeal. 

Section 93-8018 (superseded by appropriate rules in 

Montana Rules of Appellate Civil Procedure), was applicable to 

abbrevia,ted records on appeal in civil actions. 

Defendant's motion for a partial transcript for purposes 

of appeal would be appropriately made under section 95-2408(b), 

R.C.M. 1947, which provides in pertinent part: 

"Unless the entire transcript is to be included, 

the appellant shall, within the time above provided, 

file and serve on the respondent a description of 

the parts of the transcript which he intends to include in the record and a statement of the issues 

which he intends to present on the appeal." 
Defendant ' s motion for partial transcript, dated 

February 25, 1976, is defective since it does not set forth 

those issues which defendant intended to present on the appeal. 

The purpose for setting out the issues on appeal in the motion 

for partial transcript is to notify the court and opposing parties 

as to what areas of the record will be needed to argue the 

issues on appeal. 

Even if defendant's motion for partial transcript was 

not found to be fatally defective, it was within the sound 

discretion of the district court to determine that only by 

the examination of a complete record could it be determined 

whether or not a miscarriage of justice occurred. State v. 

Hay, 120 Mont. 573, 194 P.2d 232. We find no abuse of discretion. 

The judgment is affirmed. 

We Concur: 

s tting for ~ustice YkZ; Lstles.