No. 13713 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1978 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsSTEPHEN A. THOMPSON, 

Defendant and Appellant. 

Appeal from: District Court of the Fourth Judicial District, 

Honorable E. Gardner Brownlee, Judge presiding. 

Counsel of Record: 

For Appellant: 

Wm. Georqe Harris argued, Missoula, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Charles R. Anderson, Assistant Attorey General, argued, 

Helena, Montana 

Robert Deschamps 111, County Attorney, argued, Missoula, 

Montana 

Submitted: March 3, 1978 

Decided: MAR 2 P 1978 

Filed: MAR ~2 - 1378 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of 

the Court. 

Defendant Stephen A. Thompson was charged with two 

counts of perjury in the District Court of Missoula County 

based upon his sworn testimony in the homicide trial of Levi 

Stump. The jury acquitted defendant Thompson of count I and 

convicted him of count 11. Following denial of defendant's 

motion for a new trial on count 11, he appeals. 

Pursuant to a plea bargaining agreement with the prosecutor, defendant Thompson agreed to testify for the State in 

the deliberate homicide trial of Levi Stump who was accused 

of killing Charles Daniels. On June 25, 1976 defendant 

Thompson testified in the Stump trial. His direct testimony 

was that he and Stump had killed Daniels; on cross-e~mination 

he retracted this testimony by testifying that neither he 

nor Stump had anything to do with killing Daniels. The 

Stump trial ended in a mistrial. 

On July 8, 1976 defendant Thompson was charged with 

perjury. The amended information charged two counts of 

perjury: Count I charged perjury based upon defendant's 

inconsistent statements in a single proceeding; Count I1 

charged perjury based on defendant's testimony in the Stump 

trial that he saw the victim lying on the ground bleeding on 

April 22 and April 23 near where the body was found on April 

25, 1976. Defendant Thompson plead not guilty to each 

count. 

Thereafter the District Court denied defendant's motion 

to dismiss the amended information. Later, following a 

hearing, the District Court denied defendant's motion to 

suppress his statements to police following his arrest in 

the Daniels homicide. 

Defendant's trial on the perjury charges commenced on 

October 8, 1976. At the close of the State's case-in-chief, 
defendant moved for a directed verdict in his favor and 

dismissal of the amended information which was denied. 

Defendant offered no testimony in his defense and rested his 

case. The jury acquitted defendant of Count I and convicted 

him of Count 11. Defendant's motion for judgment notwithstanding the verdict on Count I1 was denied. 

Defendant was sentenced to ten years in the state 

prison with five years suspended. Later an amended judgment 

was entered whereby defendant was incarcerated at the Swan 

Lake Youth Correction Facility. Following denial of his 

motion for a new trial, defendant appeals. 

On appeal, we consolidate the issue into six specifications of error raised by defendant: 

(1) Denial of his motion to suppress his statements 

given to police following his arrest in the ~aniels' homicide. 

(2) Denial of his motion to dismiss Count I1 of the 

amended information. 

(3) Denial of his motion for a directed verdict at the 

close of the State's case-in-chief. 

(4) Denial of his motion for judgment notwithstanding 

the verdict on Count 11. 

(5) Errors in instructing the jury. 

(6) Denial of a fair trial based on the State's closing 

argument to the jury. 

Issue 1. Defendant claims that his arrest without a 

warrant in the Daniels' homicide was unlawful so his statements given to the police were involuntary and should have 

been suppressed. 

The record discloses that none of the statements defendant sought to have suppressed were admitted in evidence 

in his perjury trial. Under such circumstances, defendant's 
specification of error lacks substance. This Court does not 

decide academic, theoretical or moot questions. Adkins v. City of 

Livingston, (1948), 121 Mont. 528, 194 P.2d 238. Although 

defendant argues that this issue must be considered because 

the present case was an outgrowth of the Daniels' homicide 

case, we adhere to the rule that this Court confines its 

rulings to the case on appeal. Feely v. Lacey, (1958), 133 

Mont. 283, 322 P.2d 1104. As defendant's statements to the 

police following his arrest in the Daniels' homicide were 

not used in his perjury trial, his specification of error 

lacks relevance in this appeal. 

Issue 2. Defendant specifies error in the District 

Court's refusal to dismiss the perjury charge in Count I1 

prior to trial. He argues that his testimony in the Stump 

trial that he saw the victim lying on the ground bleeding 

two and three days prior to discovery of the body near the 

same location was not material to the issue in the Stump 

trial, specifically who killed Daniels. 

Montana's perjury statute, Section 94-7-202, R.C.M. 

1947, provides in pertinent part: 

"Perjury. (1) A person commits the offense of perjury 

if in any official proceeding he knowingly makes a 

false statement under oath * * * when the statement is 

material. 

" (3) Falsification is material, regardless of the 

admissibility of the statement under rules of evidence, 

if it could have affected the course or outcome of the 

proceeding. It is no defense that the declarant mistakenly 

believed the falsification to be immaterial. Whether a 

falsification is material in a given factual situation 

is a question of law." 

is 

The test of materiality/whether in the actual factual 

situation involved, it would be reasonable to find that 

the defendant's statement, if believed, could have 

altered the course or outcome of the proceeding. State v. 

Scanlon, (1977), 34 St.Rep. 956, Mont. , 569 P. 2d 

368; State v. Hall, (1930), 88 Mont. 297, 292 P.2d 734. 
This is the same test that applied under the prior perjury 

statute. State v. Scanlon, supra. 

Here defendant's testimony in the Stump trial that he 

saw Daniels lying bleeding on April 22 and April 23 near the 

place where Daniels' body was found on April 25 reasonably 

could have affected the outcome of the Stump trial. Defendant 

Thompson's statement, if believed by the jury, would furnish 

that 

a basis for determining / Daniels died from wounds inflicted 

by someone other than Stump and Thompson. Stump's defense 

was that someone else killed Daniels and not him; Thompson's 

statement, as the prosecution's principal witness, substantiated 

Stump's defense. 

Accordingly, we hold that defendant Thompson's sworn 

statement was material and could have affected the outcome 

of the Stump trial. The District Court was correct in 

denying defendant's motion to dismiss Count I1 of the amended 

information. 

Issue 3. Here defendant repeats his argument that his 

testimony was not material and further argues that his 

statement was not false. 

In this case the jury, if it believed the State's 

witnesses, could find that Daniels was seen alive and well 

between April 22 and April 25; that defendant Thompson 

falsely gave sworn testimony in the Stump trial that he saw 

Daniels bleeding, in the area where his body was later found some 

two and three days prior to discovery of the body. A directed 

verdict for the defendant in a criminal case can only be 

given where there is no evidence on which the jury could 

base a conviction. State v. Paulson, (1975), 167 Mont. 310, 

538 P.2d 339. The District Court was correct in denying 

defendant's motion for a directed verdict. 

Issue 4. Defendant next claims error in the District 
Court's denial of his motion for judgment notwithstanding 

the guilty verdict on Count I1 of the amended information. 

He argues that the verdicts in this case must be identical; 

that acquittal on Count I bars conviction on Count 11. He 

further contends that because of his defense of retraction, 

the verdict on both counts must be consistent and he cannot 

be charged and convicted of perjury on Count I1 because of 

his retraction. 

Consistency in verdicts on multiple charges is not 

required in all cases. Dunn v. United States (1932), 284 

U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356. Defendant recognizes 

this principle but maintains that in this case consistency 

is required because the elements of the offenses charged in 

both counts are the same and because of his defense of 

retraction. 

Where separate acts are charged in an information, each 

act is a separate offense and acquittal or conviction of one 

or more counts does not affect the other counts. State v. 

Boe, (1963), 143 Mont. 141, 388 P.2d 372. Here each count 

in the amended information filed against the defendant 

states a separate offense of perjury. Acquittal of Count I 

does not bar conviction of Count I1 because the elements 

charged in the two counts are different. 

To prove Count I, the State had to show that the defendant 

made inconsistent statements in the Stump trial and that one 

of the inconsistent statements was false and was not believed 

to be true by the defendant. To prove Count 11, the State 

had to show that defendant knowingly made a false and material 

statement under oath, not that he made inconsistent statements during the Stump trial. As the elements of the two 

offenses charged were different, consistency of the two 

verdicts was not required. 
The defense of retraction is irrelevant to defendant's 

conviction of perjury in Count I1 of the amended information. 

Count I1 charged defendant with perjury based upon his sworn 

testimony in the Stump trial that he saw Daniels bleeding on 

April 22 and April 23 in the area where the body was found 

on April 25. This statement was made on redirect examination 

and was not retracted thereafter. Thus the essential elements 

of a retraction of this statement are missing, viz. a different 

and true statement following a prior falsification in the 

same proceeding. Section 94-7-202(5), R.C.M. 1947. The 

District Court was correct in denying defendant's motion for 

judgment in his favor notwithstanding the guilty verdict on 

Count 11. 

Issue 5. We find no substance to defendant's contention 

that the jury was improperly instructed. 

No error was committed in giving State's proposed 

instruction No. 6 and refusing defendant's proposed instruction No. 12. Both relate to inconsistent statements made 

under oath and contain the statutory language of section 94- 

7-202(6), R.C.M. 1947, except that the State's proposed 

instruction omits the words "both having been made within 

the period of the statute of limitations * * *". Both 

instructions related to Count I of which defendant was 

acquitted; there was never an issue concerning the statute 

of limitations in the case; and the instruction given is 

a correct statement of the law as applied to the evidence in 

the case. 

Nor was there any error in refusing defendant's proposed 

instruction No. 16 on corroboration of perjury. Court's 

instruction No. 13 covering this subject was given to the 

jury; it incorporated the requirements of section 94-7- 

202(7), R.C.M. 1947, and was a correct statement of the law; 

and the refused instruction was redundant. 
Issue 6. Defendant's final contention is that the 

State's closing argument to the jury denied him a fair 

trial. He objects to the State's arguing to the jury that 

perjury in a homicide case could have disastrous effects in 

that an innocent man could be hanged or a killer go free; 

that the State attempted to use information, facts and 

testimony not in evidence at the trial; and that his presumption 

of innocence and his right to be fairly judged by the jury 

was destroyed. 

The State's comments in closing argument on the effect 

of perjury in a homicide trial were unobjectionable. The 

following quotation is a correct statement of the law on 

this subject: 

"Generally, the gravity of the crime charged, the volume of 

the evidence, credibility of the witnesses, inferences 

to be drawn from various phases of evidence, and legal 

principles involved, to be presented in instructions to 

the jury, are all matters within the proper scope of 

argument. * * *" [Emphasis supplied.] 23A C.J.S., 

Criminal Law, Sec. 1090, page 129. 

Here the State was simply informing the jury what 

effect perjured testimony could have in a homicide trial. 

This is simply a comment on the gravity of the crime charged 

and well within the scope of proper argument to the jury. 

Nor did the State's closing argument to the jury 

encompass information, facts or testimony not in evidence at 

the trial. We recognize that discussing facts not in evidence 

in a closing argument to the jury is improper. State v. 

Toner,(1953), 127 Mont. 283, 264 P.2d 971. We also note 

that repeated attempts to place excluded evidence before the 

jury is reversible error. State v. Bain, (1978), 35 St.Rep. 257, 

Mont. -I - P.2d 

However, in this case the transcript of testimony in 

the Stump homicide trial was admitted in evidence in the 

perjury case now on appeal. In that transcript there are 

numerous references to various individuals and statements by 
IN THE SUPREME COURT OF THE STATE OF MONTANA 

No. 13713 

.......... 

STATE OF NONTANA, 

Plaintiff and Respondent, 

v. 

STEPHEN A. THOMPSON, 

Defendant and Appellant. 

CLERK OF SUPREME COURT 

STATE OF MONTANA 

............ 

ORDER AElENDING OPINION 

............ 

The above named opinion, issued March 28, 1978, should be 

amended by deleting the present Page 9 (except for the signatures 

of authoring and concurring justices) and replacing it with the 

attached Page 9. 

DATED this ~f&day of April, 

D& $*&-

Chief Justice 
defendant. The State's closing argument attempted to explain that 

transcript to the jury so they could understand it and not be mislead by it. With one exception, the District Court did not sustain 

defendant's objections to the State's closing argument. Thus, this 

case does not present the situation where the State made repeated 

attempts to get inadmissible matters before the jury. 

Finally, we find no denial of defendant's right to a fair 

trial in the State's closing argument. A correct general statement 

of the applicable law has been stated in this language: 

"The defendant in a criminal case has the right to 

a fair trial. It is axiomatic that prejudice can 

be implied from the denial or invasion of that 

right. However, the defendant must show that his 

right to a fair trial was denied or invaded." 

State v. Bradford, (1978), Mont . , 575 

P.2d 83, 86, 35 St.Rep. 241- 

Or stated another way: 

"The rule applicable is that before a judgment in 

a criminal case will be reversed, prejudice in a 

criminal case will not be presumed, but rather 

must appear from the denial or invasion of a substantial right from which the law implies prejudice. 

The defendant must demonstrate prejudice from the 

record. (Citation omitted.)" Bradford, 575 P.2d 86. 

The record in this case fails to show denial or invasion 

of defendant's right to a fair trial in the State's closing argument. 

With one exception the State's argument to the jury was unobjectionable; that exception was corrected by the District Court's admonition. 

A£ f irmed . 

(Frank I. Haswell) 

Chief Justice 

We Concur: 

(Gene B. Daly) 

(John Conway Harrison) 

(Daniel J. Shea) 

Justices 

(Bernard W. Thomas) 

District Judge