No. 13760 IN THE SUPREME COURT OF THE STATE OF MONTANA

THE STATE OF MONTANA, Plaintiff and Appellant,

DARYL D. HAGERUD, Defendant and Respondent.

Appeal from: District Court of the Eleventh Judicial District, Honorable Robert C. Sykes, Judge presiding. Counsel of Record: For Appellant: 

# /nr'kc Hon. Greely,Attorney General, Helena, Montana William A. Douglas,County Attorney, argued,

Libby,Montana Ian Christopherson argued, Libby, Montana For Respondent: Morrison & Hedman,Whitefish, Montana Frank Morrison, Sr. argued, Whitefish, Montana

Submitted: September 15, 1977 Decided: Filed:Mr. Justice Frank I. Haswell delivered the Opinion of the Court. Following a nonjury evidentiary hearing, the District Court of Lincoln County entered judgmentacquitting defendant of deliberatehomicide on the grounds ofmental defect excluding responsibility. The state appeals from this judgment,or in the alternative seeks reviewand reversal by writ of supervisory control. During the late afternoon, September 13, 1976, at the Frontier Bar in Rexford, Montana, defendantwas drinking and playing pool with Wilma Eisenman, Fred Wales and Marilyn Mullin. Defendant, who had been divorced several months earlier,was "involved" with Wilma to the point they were considering marriage. During the pool game Wales made several comments to Wilma about certain things she had done at a party a fewyears earlier. Defendant,upset by these remarks, stormed into the rest room. Wales followed defendant into the rest room, carrying a pool cue and laughing abouthis conversation with Wilma. When defendant and Wales emerged from the rest room,defendantwas holding the pool cue in one hand and Wales by the shirtwith the other. Defendant shovedWales into a corner and began striking him with the pool cue and beating him with his fists. At this point Wilma and Marilyn left the bar and Marilyn called the law. After she completed the phone call,Marilyn sawdefendant leave the bar.When Marilyn re-entered the bar, Wales was sprawled across the pool table. Wales said to her: "Ican't figure outwhy Daryl did what he did to me." Wales then stood up, staggered around the bar, and collapsed dead. The broken pool cue and a broken beer bottle lay nearby. An autopsy by a forensicpathologist revealed that, in addition to numerous bruises aboutWales' body, Wales had sustainedfourblows on his upper forehead and the top and back of his head. Two of these blows could have been inflicted by an instrument similar to a pool cue; the other two blows could have been inflicted by an instrument such as a beer bottle. The pathologist concluded that any one or all of these four blows

were the direct and proximate cause of Wales' death. The defendant could not remember what happened in the rest room. The Lincoln County attorney charged defendant with the crime of deliberate homicide by information filed in the District Court. Defendant timely filed a notice of intent to interpose two defenses: (1)mental incompetence excluding responsibility, and (2) self-defense. The district judge ordered defendant to Warm Springs State Hospital forpsychiatric examination. Dr. William Alexander, the clinicaldirector atWarm Springs State Hospital, made a psychiatric examination and evaluation of defendant and rendered a report to the District Court. Dr. Alexander reported defendant had suffered severe head injuries in an industrial accident in 1966 resulting in organic brain damage. He indicated defendantwas suffering from nonpsychotic brain syndrome associatedwith mild brain trauma and classified defendant as having a passive-aggressive personality, dependent type. Dr. Alexander concludedwith an explanation of defendant's present condition in this language: "Patient is aware of the nature of the charges againsthim and he is able to assist his lawyer in his own defense. He is aware of the criminality of the alleged charges. He is able to conduct himself according to the requirements of the law, and although he isable to have a particular state ofmind which is an element of the offense charged, it seems a certainty that therewas never any intentionon his part to produce the actual end result of the fight. It is felt that this patient, inmany ways, is a victim of circumstances." In a later deposition,Dr. Alexander further explainedhis evaluation. He concluded that at the time of commission of the offense defendant was unable to conform his conduct to the requirementsof the law because of a combinationof his mental defect,his consumption of alcoholprior to the altercation, and his 

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## * * being in a particular situationat a particular time." A psychological report by Katherine Gallagher,

### a psychologist atWarm Springs State Hospital, accompanied Dr. Alexander's report. She concluded that defendant suffered from a pressing deep-smted anxiety,hysterical neurosis and nonpsychotic organic brain syndrome. At defense counsel's request, defendantwas additionally examined by psychiatrists Dr. Robert Wetzler and Dr. Sol Levy, both of Spokane, Washington, and by a Kalispell,Montana psychologist, Dr. HermanAndroes. At the county attorney's request, defendantwas also examined by Dr. Richard Jarvis, a psychiatrist from Seattle,Washington. All concurred with Dr. Alexander's diagnosis that on the day of the altercation defendant suffered from organic brain syndrome. In addition some of the examiners classified defendant

as a passive-aggressive personality type; others thought he might have hysterical neurosis. The defendant's and the state's examiners disagreed concerning the effect of defendant's mental defect on his conduct at the time of the alleged offense. Drs. Levy and Androes concluded that at the time of the alleged offense,defendantwas unable to appreciate the criminality of his conduct or to conform his conduct to the requirementsof the law. Dr. Wetzler thoughtdefendant's mental disorder impaired his ability to appreciate the criminalityof his conduct or to conformhis conduct to the requirements of law. Dr. Jarvis concluded that defendantwas not impairedtothe extent of legal insanity, but rather thathe had "intact" criminal responsibility atthebeginning of the altercation. Dr. Jarvis conceded that defendant may have been carried away by overwhelming emotion inthe course of the assault "going berserk, so tospeak". On January 20, 1977, the District Court, sittingwithout

a jury, conducted a pretrial hearing on the defense of mental defect excluding responsibility. The reports of allexaminers and various depositionswere admitted inevidence. On February 3, the DistrictCourt entered findingsof fact, conclusions of law, and a judgment of acquittal on the grounds of mental defect excluding responsibility. Defendant was committed toWarm Springs StateHospital. Following denial of the state'smotion toreconsider, the state appealed from the judgment and alternatively requested thisCourt toreview and reverse the DistrictCourt judgment by supervisory control inthe event thisCourt feltthe statehad no rightof direct appeal. The issuesraised by the parties inthisproceeding can be summarized inthismanner: (1)Does the state have the rightof direct appeal from the judgment? (2) Is the judgment subject toreview by thisCourt by writof supervisory control? (3) If thejudgment is reviewable on themerits, should it be affirmed, modified orreversed? The state contends that it has a statutory right of direct appeal from the judgment under section 95-2403(b)(l), R.C.M. 1947, granting the state the rightof appeal 

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## * * * from any court order orjudgment the substantiveeffectof which results in

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## * dismissing the case". The stateargues that the substantive effect of the DistrictCourt judgment is a dismissal of the casebecause the state will not be able to prove an essential element of the offense--the required mental state. The defendant asserts that the state has no right of appeal under common law, the Montana Constitution, or by statute. He urges that section 95-2403(b)(1)does not grant the state the right of appeal in this case because the substantive effect of the judgment is an acquittal of the defendant rather than a dismissal of the case and any statutory right of appeal granted the state is in derogation of the common law and must be strictly construed. The state's right to a direct appeal from the District Court judgment in this case is governed exclusivelyby statute. Such right did not exist at common law. Statev. Peck, 83 Mont. 327, 271 P. 707 (1928). The Montana Constitution does not specifically address the state's right of appeal in a criminal case. The controlling statute is section 95-2403which provides in pertinent part: "(a) Except as authorized by this code, the statemay not appeal in a criminal case. "(b) The statemay appeal from any court order or judgment the substantive effect of which results in: 

### " (1)dismissing a case 

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# . Although it is generally agreed that a statute in derogation of the common lawmust be strictly construed, this rule of statutory construction cannot be used to defeat the obvious purpose of the legislature, nor to lessen the scopeplainly intended to be given the statute. 3 Sutherland, Statutory Construction, Sec. 61.02, p. 46 (4thEd. 1974). Here the intentionof the legislature is clear from the language of the statute and extrinsic rules of statutory constructionmay not be employed to ascertain legislative intent. 

### W. R. Grace Co. v. Dept. of Revenue, Mont

# . , 567 P.2d 913, 34 St.Rep. 713 (1977),and cases cited therein. Here the legislature clearly granted the state the right of appeal "fromany court order or judgment the substantive effect of which results in

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## * dismissing the case1'. Nonetheless, the language of the statute grants the state no right of direct appeal in this case. The substantive effect of the judgment here isnot dismissal of the case. The substantive effect is acquittal of the defendant. The two terms

are neither mutually inclusive nor synonymous. In 

### a dismissal of the case,defendant is entirely free from further restrictions

on his liberty or further control by the court; in an acquittal by reason ofmental defect excluding responsibility, defendant must be committed to the Warm Springs State Hospital and must remain there until the committing court finds that he may be discharged or conditionally releasedwithout danger to himself

or others. Section 95-508,R.C.M. 1947. In the alternative, the state seeks to obtain review of the ~istrict Court's decision by writ of supervisory control. Both Montana's 1889 Constitution and 1972 Constitution vested in the Supreme Court supervisory control over the ~istrict Courts. The 1889 Constitutionprovided that this Court 

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## * * * shall have a general supervisory control over all inferior courts, under such regulationsand limitations asmay be prescribed 

### by law" in addition to its appellate jurisdiction. Art. VIII, Section 2, 1889 Montana Constitution. In 1928 this Court held that the process of "appeal" is a creature of statute. State v. Peck, supra. Under the 1972Montana Constitution, the Supreme Court 

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## * * has general supervisory control over all other courts" in addition to appellate jurisdiction. Art. VII, Section 2(2), 1972Montana Constitution. 

### his Court is further granted "original jurisdiction to issue,hear, and determine writs ofhabeas corpus and such otherwrits asmay be provided by law". Art. VII, Section 2(1), 1972Montana Constitution. We have previously held that one of the functionsof supervisory control is to enable this Court to control the

course of litigation in the District Courts where these courts

are proceeding within their jurisdiction, but by a mistake of law, orwillful disregard of it, are doing a gross injustice, and there is no appeal,or the remedy by appeal is inadequate. State ex rel. Whiteside v. District Court, 24 Iont. 539, 63 P. 395 (1900). Thuswhere a District Court is acting under a mistake of law and no direct appeal exists,a review of the District Court's decision through a writ of supervisory control may be entertained. See State ex rel. Nelson v. Dist. Ct., Mont

# . , 566 P.2d 1382, 34 St.Rep. 688 (1977). Montana's Code of Criminal Procedure provides a pretrial method for determining a defendant's competency at the time he allegedly committed the crime charged. Section 95-501 through 509,R.C.M. 1947. Upon defendant's interposing a defense of mental disease or defect excluding responsibility,or upon its

ownmotion, the District Court must order a psychiatric examinationof defendant. Section 95-505(1), R.C.M. 1947. Section 95-507(1)

## ,R.C.M. 1947, then provides: "If the report filed under section 95-505 finds that the defendant at the time of the criminal conduct charged suffered from a mental disease or defect which rendered him unable to appreciate the criminalityof his conduct or to conform his conduct to the requirementsof law,and the court, after a hearing if a hearing is requested by the attorney prosecuting or the defendant, is satisfied that themental disease or defectwas sufficient to exclude responsibility, the court on motion of the defendant shall enter judgmentof acquittal on the ground ofmental disease or defect excluding responsibility." Then,what is the proper standard for measuring the proof required to satisfy the court "that themental disease or defectwas sufficient to exclude responsibility?" The Revised Commission Comment to Section 95-507(1) states in part: "Under subdivision (a) [now subdivision 

### (I)]in cases of extrememental disease or defectwhere exclusion of responsibility is clear, trial can be avoided and the defendant immediately committed as irresponsible." In State ex rel. Krutzfeldtv. Dist. Court, 163Mont. 164, 170, 515 P.2d 1312 (1973),we said: "Thatcommentmakes it clear that if, in the judge's opinion and after a hearing if requested by either attorney, a defendantwas cZearZy suffering frommental disease at the time of the crime then the judge can acquit the defendant and have him committed to a state institution forthwith. The purpose isplain--to avoid a costly trial where themental defect isplain and obvious." The state contends that the proper standard of proof

was not met in this case because there was conflicting medical testimony in the record. The state argues that itwas the legislature's intent to allow the District Court to acquit a defendantby reason of sucha mental disease or defect only when there was absolutely no question or conflict ofmedical records,medical opinion or testimony that defendantwas in fact suffering from such a mental disease or defect. While we do not agree with the state's strict formulationof this standard of proof, we do agree that the District Court did not apply the proper standardshere. Section 95-507(1) requires that if the court "is satisfied" that the mental disease or defect is sufficient to exclude responsibility, the court must enter 

### a judgment of acquittalby

reason thereof. In satisfying itself of defendant's mental disease or defect, the court cannot act arbitrarily or capriciously. Nor does the term "satisfied" indicate that the court's belief of defendant's mental incompetencemay be based upon a mere preponderance of the evidence. The standard of proof required isproof such as to leave no room for a difference of opinion among reasonable minds. McRuffin v. State, 91Tex.Crim.R. 569, 240 S.W. 309 (1922); Wilcoxin v. Commonwealth, 138 Ky. 846, 129 S.W. 309, (1910). Our decisions in State ex rel. Main v. Dist. Court, 164Mont. 501, 525 P.2d 28 (1974)and State ex rel. Nelson v. District Court, supra, are not to the contrary. In Main the relatorpetitioned for a writ of supervisory control when the District Court refused to acquithim by reason of mental disease

or defect excluding responsibility. Although conflicting medical opinions existed in the record, this Court held that the testimony of the state'smedical expert did not raise a factual question. The overwhelming weight of all the testimonywas that relator suffered from such a mental disease or defect as to exclude responsibility. In Nelson, relator also petitioned for a writ of supervisory control upon a similar refusal by the District Court. There relator asserted the defense of temporary insanity in which the facts surrounding the commission of the offense were critical to his defense. While Dr. Alexander, the onlymedical expert testifying, concluded from the facts Nelson related to him that Nelson was temporarily insane,we approved the trial court's ruling that Dr. Alexander's opinion was based upon determinations of disputed facts which were for a jury to determine. The circumstances surrounding the commission of the offense in the instant case are as important here as theywere inNelson. Although Hagerud's defense was not one of temporary insanity, experts for both sides stated that their evaluations of Hagerud's responsibilitywere based on the facts immediately surrounding the commissionof the offense as related to them by Hagerud,and their evaluations could change depending upon what those factswere. Where, as here, the state contests those facts,and where they are crucial to establishing defendant's nonresponsibility under section 95-507(1), it is error for the District Court in this type of summary pretrial procedure to acquit a defendantby reason ofmental disease or defect excluding responsibility. Defendant contends that to permit the state to obtain review of the district court's decision acquitting defendant by reason ofmental disease or defect excluding responsibility under section 95-507(1) would put defendant in double jeopardy and violate his constitutional rights. We disagree. The United States Constitution provides that no person shall 

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## * * * be subject for the same offense to be twice put in jeopardy of life or limb

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## *". FifthAmendment, United States Constitution. The FifthAmendment's prohibition applies to state court criminalproceedings through the "dueprocess clause" of the FourteenthAmendment. Benton v. Maryland, 395 U.S. 784, 23 L ed 2d 789, 89 S.Ct. 2056 (1969). This Court has previously recognized that principle. State v. Cool, Mont

# . , 568 P.2d 567, 34 St-Rep.1029 (1977); State v. Cunningham, 166 Mont. 530, 535 P.2d 186 (1975). Additionally, the 1972Montana Constitution declares: 

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## * * * No person shallbe again put in jeopardy for the same offense previously tried in any jurisdiction." Montana Constitution,Art. 11, Section 25. In order for an accused to be twice put in jeopardy, he must firstbe put in jeopardy once. Montana lawprovides that jeopardy attaches in a criminal trial when the first witness is

sworn. State v. Cunningham, 166 Mont. 530, 535 P.2d 186 (1975). The federal rule provides that jeopardy attacheswhen the jury is sworn. Downum

### v. United States, 372 U.S. 734, 10 L ed 2d 100, 83 S.Ct. 1033 (1963). The constitutionalvalidity of Montana's rule is currently before the United States Supreme Court in the appeal of Bretz 

### v. Crist, 546 F.2d 1336 (9thCir. 1976), appealfiled sub-nom.Crist v. Cline, 45 U.S.L.W. 3684 (U.S. Feb. 18, 

## -- No. 76-1200), 1977,/(this was a habeas corpusproceeding in Federal Court after reliefwas denied in state court sub. nom. State ex rel. 

### -- Bretz and Cline v. Sheriff, 167Mont. 363, 539 P.2d 1191 (1975)). However, under neither the federal rule nor the Montana rule does jeopardy attach prior to the commencementof the trial of the accused.The proceeding in this case was simply a pretrial hearing to determinewhether defendant at the time of the offense charged

was so clearly unable to appreciate the criminality of his conduct

or conformhis conduct to the requirements of law that trial would be useless. Defendant was never once placed in jeopardybecause his trial on the crime charged was never held. The double jeopardy principle here is similar to that involved in Serfass

### v. United States,420U.S. 377, 43 L ed 2d 265, 95 S.Ct. 1055 (1975),where a Federal Court had dismissed

an indictmentby pretrial order. In Serfasspetitioner argued that although formal or technical jeopardy had not yet attached, the court's ruling was the functional equivalent of an acquittal

on the merits because the dismissal was based on evidentiary facts outside the indictment which would constitute a defense on the merits. Petitioner argued that thus constructive attachment of jeopardyhad occurred barring further prosecution. However, the United States Supreme Court held that although an accused may raise defenses or objections before trial which are capable of determination without a trial of the general issue, the accused had not been placed in jeopardy because he had not been subjected to the hazards of trial and possible conviction. In this case defendant was never once placed in jeopardy because he was never subjected to the possibility of conviction of the crime charged. As jeopardy has never attached in the firstinstance, thebar of doublejeopardy must fail. The judgment of the DistrictCourt isvacated and the

cause remanded tothe District Court for furtherproceedings inconformitywith thisopinion.

Justice Weconcur: