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: 

/n r'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 judgment acquitting defendant 

of deliberate homicide on the grounds of mental defect excluding responsibility. The state appeals from this judgment, or 

in the alternative seeks review and reversal by writ of supervisory control. 

During the late afternoon, September 13, 1976, at the 

Frontier Bar in Rexford, Montana, defendant was 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 few years earlier. Defendant, upset by these remarks, stormed into the rest room. 

Wales followed defendant into the rest room, carrying a 

pool cue and laughing about his conversation with Wilma. When 

defendant and Wales emerged from the rest room, defendant was 

holding the pool cue in one hand and Wales by the shirt with the 

other. Defendant shoved Wales 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 saw defendant leave 

the bar. 

When Marilyn re-entered the bar, Wales was sprawled across 

the pool table. Wales said to her: "I can't figure out why 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 forensic pathologist revealed that, in 

addition to numerous bruises about Wales' body, Wales had sustained 
four blows 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 for psychiatric examination. 

Dr. William Alexander, the clinical director at Warm 

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 defendant was suffering from nonpsychotic brain syndrome associated with mild brain trauma and 

classified defendant as having a passive-aggressive personality, 

dependent type. Dr. Alexander concluded with an explanation 

of defendant's present condition in this language: 

"Patient is aware of the nature of the charges 

against him 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 is able to have a particular 

state of mind which is an element of the offense 

charged, it seems a certainty that there was 

never any intention on his part to produce the 

actual end result of the fight. It is felt that 

this patient, in many ways, is a victim of 

circumstances." 

In a later deposition, Dr. Alexander further explained 
his evaluation. He concluded that at the time of commission 

of the offense defendant was unable to conform his conduct to 

the requirements of the law because of a combination of his 

mental defect, his consumption of alcohol prior to the altercation, and his " * * * being in a particular situation at a 

particular time." 

A psychological report by Katherine Gallagher, a psychologist at Warm 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, defendant was additionally 

examined by psychiatrists Dr. Robert Wetzler and Dr. Sol Levy, 

both of Spokane, Washington, and by a Kalispell, Montana psychologist, Dr. Herman Androes. At the county attorney's request, 

defendant was 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, defendant was unable to appreciate the criminality of his conduct or to conform his 

conduct to the requirements of the law. Dr. Wetzler thought defendant's mental disorder impaired his ability to appreciate the 

criminality of his conduct or to conform his conduct to the requirements of law. Dr. Jarvis concluded that defendant was not impaired 
to the extent of legal insanity, but rather that he had "intact" 

criminal responsibility at the beginning of the altercation. 

Dr. Jarvis conceded that defendant may have been carried away 

by overwhelming emotion in the course of the assault "going 

berserk, so to speak". 

On January 20, 1977, the District Court, sitting without 

a jury, conducted a pretrial hearing on the defense of mental 

defect excluding responsibility. The reports of all examiners 

and various depositions were admitted in evidence. On February 

3, the District Court entered findings of fact, conclusions of 

law, and a judgment of acquittal on the grounds of mental defect 

excluding responsibility. Defendant was committed to Warm Springs 

State Hospital. Following denial of the state's motion to reconsider, the state appealed from the judgment and alternatively 

requested this Court to review and reverse the District Court 

judgment by supervisory control in the event this Court felt the 

state had no right of direct appeal. 

The issues raised by the parties in this proceeding can 

be summarized in this manner: 

(1) Does the state have the right of direct appeal from 

the judgment? 

(2) Is the judgment subject to review by this Court by 

writ of supervisory control? 

(3) If the judgment is reviewable on the merits, should 

it be affirmed, modified or reversed? 

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 right of appeal " * * * from any court 

order or judgment the substantive effect of which results in * * * 

dismissing the case". The state argues that the substantive 

effect of the District Court judgment is a dismissal of the case 
because 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 exclusively by statute. 

Such right did not exist at common law. State v. 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 95-2403 which provides in pertinent 

part : 

"(a) Except as authorized by this code, the 

state may not appeal in a criminal case. 

"(b) The state may appeal from any court order 

or judgment the substantive effect of which 

results in: 

" (1) dismissing a case * * *" . 

Although it is generally agreed that a statute in derogation of the common law must be strictly construed, this rule 

of statutory construction cannot be used to defeat the obvious 

purpose of the legislature, nor to lessen the scope plainly intended to be given the statute. 3 Sutherland, Statutory Construction, 

Sec. 61.02, p. 46 (4th Ed. 1974). Here the intention of the 

legislature is clear from the language of the statute and extrinsic rules of statutory construction may 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 "from any court order or judgment 

the substantive effect of which results in * * * 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 is not 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 of mental 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 released without 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 Constitution provided that this Court " * * * 

shall have a general supervisory control over all inferior courts, 

under such regulations and limitations as may 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 1972 Montana Constitution, the Supreme Court 

" * * * has general supervisory control over all other courts" 

in addition to appellate jurisdiction. Art. VII, Section 2(2), 

1972 Montana Constitution. his Court is further granted 

"original jurisdiction to issue, hear, and determine writs of 
habeas corpus and such other writs as may be provided by law". 

Art. VII, Section 2(1), 1972 Montana Constitution. 

We have previously held that one of the functions of 

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, or willful 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). Thus where 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 

own motion, the District Court must order a psychiatric examination of 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 criminality of his conduct or to conform his 

conduct to the requirements of law, and the court, 

after a hearing if a hearing is requested by the 

attorney prosecuting or the defendant, is satisfied that the mental disease or defect was sufficient to exclude responsibility, the court on 

motion of the defendant shall enter judgment of 

acquittal on the ground of mental disease or 

defect excluding responsibility." 

Then,what is the proper standard for measuring the proof 

required to satisfy the court "that the mental disease or defect 
was 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 extreme mental disease or defect where 

exclusion of responsibility is clear, trial can 

be avoided and the defendant immediately committed 

as irresponsible." 

In State ex rel. Krutzfeldt v. Dist. Court, 163 Mont. 164, 

170, 515 P.2d 1312 (1973), we said: 

"That comment makes it clear that if, in the 

judge's opinion and after a hearing if requested 

by either attorney, a defendant was cZearZy suffering from mental 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 is plain--to avoid a 

costly trial where the mental defect is plain 

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 it was the 

legislature's intent to allow the District Court to acquit a 

defendant by reason of such a mental disease or defect only 

when there was absolutely no question or conflict of medical 

records, medical opinion or testimony that defendant was in 

fact suffering from such a mental disease or defect. While we 

do not agree with the state's strict formulation of this standard 

of proof, we do agree that the District Court did not apply the 

proper standards here. 

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 acquittal by 

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 incompetence may be based upon a mere preponderance of the evidence. The standard of proof required is 
proof such as to leave no room for a difference of opinion 

among reasonable minds. McRuffin v. State, 91 Tex.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, 

164 Mont. 501, 525 P.2d 28 (1974) and State ex rel. Nelson v. 

District Court, supra, are not to the contrary. In Main the 

relator petitioned for a writ of supervisory control when the 

District Court refused to acquit him 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's medical expert did not raise a factual 

question. The overwhelming weight of all the testimony was 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 only medical 

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 they were in Nelson. 

Although Hagerud's defense was not one of temporary insanity, 

experts for both sides stated that their evaluations of Hagerud's 

responsibility were based on the facts immediately surrounding 

the commission of the offense as related to them by Hagerud, and 

their evaluations could change depending upon what those facts 
were. 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 

defendant by reason of mental 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 of mental 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 " * * * be subject for the same offense to be twice put in 

jeopardy of life or limb * * *". Fifth Amendment, United States 

Constitution. The Fifth Amendment's prohibition applies to state 

court criminal proceedings through the "due process clause" of 

the Fourteenth Amendment. 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 1972 Montana Constitution 

declares: " * * * No person shall be 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 first be put in jeopardy once. Montana law provides 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 attaches when the jury 

is sworn. Downum v. United States, 372 U.S. 734, 10 L ed 2d 100, 

83 S.Ct. 1033 (1963). The constitutional validity of Montana's 

rule is currently before the United States Supreme Court in the 

appeal of Bretz v. Crist, 546 F.2d 1336 (9th Cir. 1976), appeal 
filed -- sub-nom. Crist v. Cline, 45 U.S.L.W. 3684 (U.S. Feb. 18, 

No. 76-1200), 

1977,/(this was a habeas corpus proceeding in Federal Court 

after relief was denied in state court -- sub. nom. State ex rel. 

Bretz and Cline v. Sheriff, 167 Mont. 363, 539 P.2d 1191 (1975)). 

However, under neither the federal rule nor the Montana rule does 

jeopardy attach prior to the commencement of the trial of the 

accused. 

The proceeding in this case was simply a pretrial hearing 

to determine whether defendant at the time of the offense charged 

was so clearly unable to appreciate the criminality of his conduct 

or conform his conduct to the requirements of law that trial would 

be useless. Defendant was never once placed in jeopardy because 

his trial on the crime charged was never held. 

The double jeopardy principle here is similar to that 

involved in Serfass v. United States,420 U.S. 377, 43 L ed 2d 

265, 95 S.Ct. 1055 (1975), where a Federal Court had dismissed 

an indictment by pretrial order. In Serfass petitioner 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 

jeopardy had 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 first 
instance, the bar of double jeopardy must fail. 

The judgment of the District Court is vacated and the 

cause remanded to the District Court for further proceedings 

in conformity with this opinion. 

Justice 

We concur: