NO. 81-474 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

VS. 

SHERRY RILEY, 

Defendant and Appellant. 

Appeal from: District Court of the Fifteenth Judicial District, 

In and for the County of Roosevelt 

Honorable M. James Sorte, Judge presiding. 

Counsel of Record: 

For Appellant: 

David Nielsen argued, Glasgow, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

Chris Tweeten argued, Assistant Attorney General, 

Helena, Montana 

Marc F. Racicot, County Prosecutors Service, Helena, 

Montana 

James A. McCann, County Attorney, Wolf Point, Montana 

Submitted: March 29, 1982 

Decided: ~ugust 13, 1982 

TA-5 b Ep~~,~m~4.- 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

Sherry Riley and three codefendants were convicted of 

deliberate homicide following a jury trial in the Fifteenth 

Judicial District, State of Montana, in and for the County 

of Roosevelt. Riley was sentenced to twenty years imprisonment with ten years suspended. From that judgment she appeals. 

The fact situation relating to the death of fiveyear-old James Gill has been stated in a recent opinion of 

this Court, State v. Powers (1982), Mon t . , 645 P.2d 

1357, 39 St-Rep. 989. Only those facts specifically applicable to Sherry Riley, the appellant here, will be set forth 

in this opinion. 

Appellant, her husband Arthur, and Norma Phillips, 

were tried jointly. Charges against Norma Phillips were 

dismissed at the close of the State's case. The jury found 

Arthur Riley not guilty. 

Appellant and her husband were members of a religious 

group known as the River of Life Tabernacle, which originally was based in Wapato, Washington. James DeLorme, the 

leader of the church, appointed various persons as "ministers" and "counselors" to assist him in church matters. 

DeLorme traveled much of the time leaving church operations 

in the hands of Arthur Riley and the appellant, who served 

as a "women's counselor." Members of the church lived 

communally, sharing food and responsibilities for the community. Often several families would occupy the same 

dwelling. 

It was within this framework that church leaders 

exerted substantial control over the lives of the members. 
The leaders established rules regarding members' work, 

living conditions and expenditures of money. Members were 

expected to contribute a percentage of their income to the 

church and to make special contributions for other items 

needed by the church leaders. 

The leaders of the church established a policy on 

child discipline that evolved from a desire to recruit 

members. DeLorme determined that well-behaved children 

would make a good impression on potential converts, and in 

the fall of 1979, the church began a policy of strict 

discipline for children of church members. During this 

period, DeLorme had a group of ten children of church 

members living at his house because he was dissatisfied with 

their parents' compliance with his discipline policies. 

Testimony indicated that he used a spatula and electric cord 

to discipline the children. 

Evidence also was introduced that members would 

compete with each other in carrying out the discipline 

policies in an attempt to please DeLorme. Testimony showed 

that adult members, including DeLorme and the appellant, sat 

around in a circle and placed a number of small children in 

the center. Whichever adult a child went to was expected to 

spank the child and place him back in the center of the 

circle. Children as young as five months were subjected to 

this treatment. 

Appellant was a central figure in the enforcement of 

the church discipline policy. She told Pat Lewis, one of 

the mothers, that Lewis had no authority over her own children and was not to discipline them. Appellant served as 

disciplinarian when DeLorme was away and undertook the job 
of disciplining the Lewis children as well as other children 

of the commune. Beatings were inflicted on the children 

with a blue-green fiberglass stick or with an electrical 

cord and thereafter the children often were hosed down with 

cold water. James Gill was one of these children. 

di-tjcip4-i-ne47Fm~ The appellant disciplined James on several 

occasions, both with the fiberglass stick and the electrical 

cord because he refused to eat. According to the testimony 

of Pat Lewis, appellant hosed James down after one beating 

and made him stand in mud for "an hour or so." Another 

witness, Takkeal, testified that he saw the appellant beat 

James for "a couple of hours" for refusing to eat and that 

afterwards James was bruised and appeared unconscious. These 

incidents occurred prior to the move of the commune to 

Montana in the fall of 1980. 

James Gill was, throughout his short life, a sickly 

child. He suffered from sickle cell anemia, a hereditary 

circulation disorder. This condition was known to the 

church leaders, including the appellant. Dr. Kenneth 

Mueller, who testified at the trial as an expert in pediatrics and forensic pathology, stated that the disease was 

"relatively moderate" and that the child would not have died 

of that disease alone. However, he testified that as a 

result of the beatings about 20 percent of the child's blood 

volume seeped from broken blood vessels into the surrounding 

tissue. This blood loss produced a shock-like effect which, 

in combination with the sickle cell disease, led to James 

Gill's death. 
In the late fall of 1980, the church moved from 

Wapato, Washington, to Glasgow and Poplar, Montana. The 

Rileys, the Gills and several other members moved into three 

units of a motel in Glasgow. They stayed at the motel until 

sometime in December. Then they gave up two of the units 

and moved those families, including the Gills, to Poplar 

where they occupied mobile homes. The appellant and her 

family kept one unit until January 2, 1981. 

Richard Dick, a church member, testified that during 

the period they were all together in Glasgow he observed the 

appellant and Don Howtopat beat James with an electrical 

cord and a stick and that this beating seemed to weaken 

James. 

Appellant testified that after her husband moved 

their trailer to Poplar sometime in mid-December she spent 

part of the time in Poplar and part in Glasgow. During this 

period, James Gill lived at their trailer part of the time. 

She also testified that during this period that James lived 

with them she did not spank him. The appellant was in 

Glasgow most of the time from January 2, 1981 to January 11, 

1981, but on Thursday, January 8, she was in Poplar to 

attend church services. According to her testimony, she saw 

James in church and he appeared to be perfectly normal. 

After church, she returned to Glasgow and did not return to 

Poplar until Sunday, January 11. She learned of James 

Gill's death Saturday morning. 

The appellant testified that on January 9, the day 

James died, she drove from Glasgow to Fort Benton, Montana, 

to get one of the church members out of jail. She denied 

that she had left the children in the charge of Robert 
Powers, a defendant in the earlier case. This testimony was 

controverted by the State through the testimony of Ronald 

Wilson, a deputy sheriff of Roosevelt County, who testified 

that shortly after the boy's death Powers told him that the 

appellant had told him on Thursday night, January 8, to 

return to the Riley trailer and take care of the children. 

Seven issues are presented for consideration: 

1. Is the information, as amended, sufficient to 

properly charge the appellant with the offense of deliberate 

homicide? 

2. Was probable cause sufficiently established in 

the county attorney's supporting affidavits to permit the 

court's granting of leave to file an information? 

3. Is the jury verdict finding the appellant guilty 

of deliberate homicide supported by sufficient evidence? 

4. Did the trial court err in allowing evidence of 

other crimes, wrongs and acts of the appellant and of individuals not parties to this action and in denying appellant's motion in limine to exclude such evidence? 

5. Did the trial court err in admitting the electrical cords into eviuence? 

6. Did the trial court err in allowing photographs 

of the deceased victim into evidence? 

7. Did the trial court err in giving Instruction No. 

16, which contains a verbatim recital of the amended information? 

The original information of January 12, 1981, was 

amended twice following motions to dismiss. In denying 

these motions the trial court ruled that: "The affidavits 

and Information filed by the County Attorney are sufficient 
to give the Defendants notice of the charges against them. 

The amended Information charges the offenses in the language 

of the statute. The charging statutes comply with the law." 

The defendants charged by this information applied to this 

Court for writs of supervisory control. We accepted jurisdiction and denied the relief petitioned for, finding that 

the affidavits established probable cause to believe that 

the defendants were guilty of deliberate homicide. 

Appellant levels two attacks against the amended 

information--one, that it fails to state an offense with the 

specificity required by the constitutional guarantee of due 

process of law, Amend. XIV, U.S. Const. and Art. 11, Sec. 

17, 1972 Mont. Const.; and two, that the affidavits filed by 

the State failed to establish probable cause to charge the 

defendants. 

As previously noted, we have considered the sufficiency of the information in a special proceeding of Arthur 

Riley for writ of supervisory control and ruled that the 

charging language at issue here was sufficiently specific to 

satisfy due process requirements. This ruling makes the 

issue res judicata. 

Section 46-1-4()(c), MCA, controls here and 

states the legal standards of specificity. It provides in 

pertinent part: 

"(1) A charge shall: 

"(c) charge the commission of an offense by: 

"(iii) stating the facts constituting the 

offense in ordinary and concise language and 

in such manner as to enable a person of common understanding to know what is intended; 
"(iv) stating ths time and place of the 

offense as definitely as can be done; . . ." 

'The language must be "concise" but still sufficient 

to allow a "person of common understanding to know what is 

intended." This Court has held previously that an information charging a homicide is sufficient under this standard 

if it charges the offense in terms of a statute without 

reciting supporting evidentiary facts. See, State v. 

Coleman (1978), 177 Mont. 1, 22, 579 P.2d 732, 745, cert. 

denied, 446 U.S. 970 (1980). 

In an earlier case, State v. Heaston (1939), 109 

Nont. 303, 308, 97 P.2d 330, 332, this Court held that an 

information need not set forth the manner in which the death 

was caused, nor recite all possible legal theories the 

prosecutor wishes to pursue. See, State ex rel. McKenzie v. 

District Court (1974), 165 Mont. 54, 63, 525 P.2d 1211, 

1216. The purpose of an information is to provide the 

defendant with notice, not to provide discovery of the 

State's evidence. See, McKenzie, supra. 

We find the amended information is sufficient. It 

charged three theories of homicide: (1) that the defendant 

as a principal purposely or knowingly caused the death of 

James Gill by engaging in one or more of four enumerated 

kinds of conduct; (2) that the defendant aided and abetted 

in purposely or knowingly causing the death of James Gill by 

engaging in one or rnore of the four kinds of conduct; and 

(3) that the death of James Gill occurred while the defendant was engaged in or aiding and abetting in the commission 

of aggravated assault. Each theory was charged in the 

statutory language under section 45-5-102(1)(a) and (b), 

MCA. In addition, the defendant was notified that the State 
intended to offer an accountability theory under section 

45-2-302, MCA. The State abandoned the felony murder theory 

prior to trial. The information is intended to be a notice 

device, and this amended information served that purpose. 

One of the attacks appellant makes on the information 

is that it fails to state the time and place of the offense 

"as definitely as can be done," since it charges that the 

various acts occurred in three different counties in this 

state over a period of about two years. We consider this 

allegation without merit. The law does not require that the 

time and place be stated with impossible precision; it 

merely requires that they be stated as definitely as possible under the circumstanees of the case, unless time is a 

"material ingredient in the offense." See, State v. Heaston, 

109 Mont. at 307, 97 P.2d at 332. Here the information 

alleges a continuing course of abusive conduct towards James 

Gill, beginning when his family joined the River of Life 

Tabernacle group and culminating with the boy's death on 

January 9, 1981. When such a continuing course of conduct 

is alleged, further specificity is not required. State v. 

House (1971), 260 Or. 138, 489 P.2d 381, 384. 

Appellant relies most directly on State ex rel. 

Offerdahl v. District Court (1971), 156 Mont. 432, 481 P.2d 

338, which is distinguishable from the case here. Offerdahl 

dealt with the sale of drugs by a relator to an informant, 

then identified only as "John Doe," occurring in Cascade 

County on a particular date. This Court held that the 

information did not sufficiently protect the relator from 

double jeopardy since it did not state sufficient facts to 

identify the transaction at issue. The Court ordered the 
prosecutor to remedy this defect by filing an amended 

information which either identified John Doe, the informer, 

or stated other facts which sufficiently identified the 

transaction. Offerdahl did not hold that the details of 

evidentiary facts of the offense must be stated in every 

case. In fact, this Court has had numerous cases which hold 

otherwise. See, State v. Coleman, supra. 

Appellant's next contention, that the amended information is defective because it fails to state the underlying 

facts of an aggravated assault which served as the basis for 

the felony murder theory, is incorrect for several reasons. 

First, no authority is cited for the proposition that such 

underlying evidentiary facts must be plead. Second, a 

person of ordinary intelligence would understand that the 

State intended to prove the aggravated assaults were against 

James Gill and resulted in his death. 

Next appellant claims that the four af f idavits filed 

in support of the charges did not establish probable cause 

to charge appellant with deliberate homicide. We find no 

merit to this argument. See, State v. McKenzie, supra, for 

principles governing the filing of an information. 

In evaluating the various affidavits for probable 

cause, "magistrates are not to be confined by niggardly 

limitations or by restrictions on the use of their common 

sense," and the reviewing court must give special deference 

to judicial probable cause determinations. See, State v. 

Troglia (1971), 157 Mont. 22, 26, 482 P.2d 143, 146, where 

this Court quoted from Spinelli v. United States (1969), 393 

U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637. Here, the evidence 

from the affidavits considered by the District Court showed 
that James Gill met his death as a result of a policy of 

persistent child abuse formulated by DeLorme and effectuated 

in large part by appellant. She encouraged the growth of 

the policy by counseling the church members to comply; she 

inflicted beatings remarkably similar to those which 

directly resulted in the death of James Gill on a variety of 

children of the commune, including James himself. While 

this conduct began in late 1979 when the church's disciplinary policy first arose, it continued when the church moved 

into Montana shortly before James Gill's death. 

The affidavits showed that James Gill's death resulted from a continuing course of brutal abuse in which the 

appellant was both an instigator and an active participant. 

The evidence indicated appellant had previously beaten James 

to a point of unconsciousness and that because of the beatings and his sickle cell anemia, the child's condition was 

noticeably weakened by the time the group moved to Montana. 

Here the District Court, using its common sense and drawing 

permissible inferences, found probable cause to believe that 

appellant's intentional and knowing infliction, encouragement and instigation of such injuries caused or aided and 

abetted in the cause of James Gill's death. These affidavits provide more than sufficient support for the District 

Court's conclusion. 

The next issue for consideration is whether there was 

sufficient evidence to support the jury verdict finding the 

appellant guilty of deliberate homicide. Appellant argues 

that under sections 45-2-301 and -302, MCA, for her to be 

guilty of deliberate homicide, there had to be evidence 

showing (1) that appellant did some act which either caused 
or facilitated the victim's death, and (2) that she did that 

act purposely or knowingly. She argues that under State v. 

Jones (1963), 143 Mont. 155, 181, 387 P.2d 913, 926, this 

Court held: " . . . in every crime or public offense there 

must exist a union or joint operation of act and intent." 

Appellant argues that under Jones, therefore, for her to be 

liable for the death of James Gill it must be shown that her 

act of disciplining James Gill in July 1980 and again in 

September 1980 was done with the accompanying intent, 

knowledge or purpose that this discipline would cause his 

death. Appellant claims there was no evidence from which to 

draw any such inference. 

Appellant argues that, in addition to the requirement 

that there must be some evidence showing a "conduct" on the 

part of the defendant to cause the death, under the provisions of section 45-2-201, MCA, there must be some "causal 

relationship" between the conduct and the resulting death. 

We have previously set forth the facts supporting the 

flling of the information against appellant. In reviewing 

these facts to show a sufficiency of the evidence, we must 

note that the State did not attempt to prove that appellant 

struck the blow that ended James Gill's life. The State's 

case was tried on the theory that appellant was a major 

participant in a systematic series of acts which led to the 

death of James Gill, and, under this aspect of the case, it 

was appellant's conduct which was "a" cause of the death. 

Section 45-2-201, MCA. 

All of the acts here related directly to the disciplinary program of the church, carried on under the direction of James DeLorme, the creator and leader of the church. 
DeLorme spent much of the time during the last two years of 

James Gill's life on the road, and during those times appellant and her husband assumed the responsibility for child 

discipline. 

Appellant was involved in church discipline throughout the time the church moved from Washington to Glasgow and 

Poplar. Along with her husband and DeLorme, appellant counseled the Gills and other church members about proper discipline of children. This discipline included punishment by 

beating with a fiberglass stick or electrical cord followed 

by a cold-water hose down. Appellant disciplined James Gill 

in this manner in his mother's presence for his refusal to 

eat; beat a one-year-old child who did not come back when 

called; and whipped Justelle Phillips DeLorme with an electrical cord in her mother's presence. Justelle testified at 

trial that the appellant did most of the whipping for the 

church and primarily was responsible for spanking James Gill 

in Glasgow. Appellant's involvement in the church's discipline policy continued to the very day of James Gill's death 

when she left Powers with the children, including James 

Gill, and told Powers he was in charge. 

The evidence clearly established that appellant knew 

of the severe beatings inflicted on the children of the 

church members. She was aware that Justelle Phillips had at 

one time been beaten so severely that she was bruised from 

the waist down and passed blood in her urine. Appellant knew 

that James Gill suffered from sickle cell anemia and had 

beat him into unconsciousness on at least one prior occas ion. 

Appellant argues that by allowing the evidence of 
"other crimes" the trial court failed to adhere to the 

decisions of this Court in State v. Just (1979), Mon t . 

, 602 P.2d 957, 36 St.Rep. 1649, and State v. Brubaker 

(198111 - Mont. , 625 P.2d 78, 38 St.Rep. 432. 

This Court has identified several kinds of evidence 

which may be admitted despite the fact it tends to prove 

crimes other than those charged. See, State v. Meidinger 

(1972), 160 Mont. 310, 321, 502 P.2d 58, 65, wherein this 

Court allowed evidence of crimes committed in preparation 

for the charged offense as part of res gestae. In addition, 

in State v. Frates (1972), 160 Mont. 431, 437, 503 P.2d 47, 

50, we allowed evidence of prior drug sales between the 

defendant and the police informant as "part of the corpus 

delecti of the crime . . . charged." In a series of recent 

cases, the Court held that evidence of crimes which is inextricably or inseparably linked with the crime charged may be 

admitted without regard to the rules governing "other 

crimes" evidence. State v. Trombley (1980), Mont. -, 

620 P.2d 367, 37 St.Rep. 1871, and State v. Jackson (1979), 

180 Mont. 195, 202, 589 P.2d 1009, 1014; see also, State v. 

Powers, supra. 

The common thread tying these cases together is the 

fact that the State is entitled to present tne entire corpus 

delecti of the charged offense including matters closely 

related to the offense and explanatory of it, even when such 

evidence discloses crimes other than those charged. The 

State's evidence in this case showed that the final beatings 

inflicted on James Gill differed from those previously 

inflicted by appellant and other church members only in the 

ultimate severity of the result. 
We hold that the jury is entitled to view the death 

of James Gill in the context of prior events and that the 

beatings inflicted by the other people in the community were 

not isolated events but part of a continuous series of 

beatings inflicted by appellant and others over a period of 

months. To properly understand the events that took place 

before James Gill's death, the jury was entitled to consider 

all of these factors of child abuse prior to the boy's 

death. 

As we noted in State v. Powers, supra, under these 

facts the State need not prove a specific intent to kill to 

prove deliberate homicide but need only show that the 

defendants engaged in a common design or course of conduct 

to accomplish an unlawful purpose (child abuse or assault). 

In Powers this Court also approved the State's contention 

that under Montana's accountability statute, where codefendants undertake a course of conduct or common scheme which 

results in a person's death, all can be held criminally 

responsible for a murder, citing People v. Spagnola (1970), 

123 Ill.App.2d 171, 260 N.E.2d 20. See also, People v. 

Johnson (1966), 35 111.2d 624, 221 N.E.2d 662, and People v. 

Richardson (1965), 32 111.2d 472, 207 N.E.2d 478. We find 

that the facts here are sufficient under Spagnola and the 

cases above-cited to support the jury verdict. 

The next issue raised is whether the court properly 

admitted two electrical cords as exhibits. The cords in 

question were State's Exhibits 8 and 9 and had been seized 

from appellant's mobile home on January 10, 1981, after 

Arthur Riley consented to the search. The State offered the 

cords through the testimony of Sgt. Ronald Wilson who seized 
them during the search. The offer was objected to, and the 

State withdrew the offer pending further foundation during 

the testimony of Justin Phillips. Justin Phillips, one of 

the children, testified that when Powers was inflicting the 

final beating on James Gill, he told Justin to fetch an 

extension cord from the cupboard. After questioning Justin 

about the cord, the State offered it for admission with the 

foundation laid by Wilson who had obtained the cord during 

the search. The court then took the matter under advisement. 

Further argument about the cords took place when the State 

announced its intention to rest its case. They were finally 

admitted as exhibits in evidence. 

Appellant argues that the cords were neither sufficiently identified as those cords used to beat James Gill 

nor connected with any conduct of the appellant. As we have 

previously held, the foundation for admission of exhibits is 

left to the discretion of the trial court. See, State v. 

Coleman, supra. Here, there was no abuse of that discretion. 

Sgt. Wilson established the chain of custody of the exhibits 

from the time of their seizure to the time they were admitted. Justin Phillipsf testimony indicated that the cords 

were similar to those employed to beat James Gill on two occasions. The cords were relevant in light of Dr. Mueller's 

description of the marks on James Gill's body as inflicted 

with a looped object. They allowed the jury to compare the 

cords with the marks depicted in the photograph exhibits. 

Finally, appellant argues that the exhibits were not 

tied to her conduct and therefore should have been excluded 

under our recent decision of State v. Casagranda (1981), - 

Mont. - , 637 P.2d 826, 38 St.Rep. 2122. In that case, the 
State introduced into evidence a pharmaceutical bottle which 

was never connected in any way to the charged burglary. 

Here, the cords were connected to the beatings inflicted on 

James Gill through the testimony of Justin Phillips. 

Casaqranda is obviously distinguishable on the facts. We 

find the exhibits were properly admitted. 

The next issue raised concerns whether the court 

properly admitted photographs of the victim's body into 

evidence. This issue was covered fully in State v. Powers, 

supra. We adopt the findings in that case, noting that the 

testimony of Dr. Mueller was virtually the same in the two 

cases. Dr. Mueller testified that the pictures accurately 

represented the victim's appearance at the autopsy and were 

reasonably necessary to depict the multiplicity and the 

extent of the injuries, how they were caused and their age. 

Here, the pictures taken at the autopsy definitely related 

to the charges against the appellant and were properly 

admitted. See, State v. Hoffman (1982), - Mont . , 639 

P.2d 507, 39 St.Rep. 79. 

The next issue raised by the appellant concerns 

whether the court properly instructed the jury in the 

language of the amended information. Instruction No. 16 

stated: 

"You are instructed that the specific charge 

involving the defendants reads as follows: 

"'That during the period of November, 1979 to 

January 9, 1981 at Yakima County, Washington, 

Valley County and Roosevelt County, Montana 

the Defendants committed the offense of 

Deliberate Homicide, a felony, in that the 

Defendants did purposely or knowingly cause 

or aided or abetted in purposely or knowingly 

causing the death of James Gill, a human 

being, by instigating, inciting, promoting, 

encouraging or commanding the physical abuse 

or mistreatment of James Gill, and/or by 
lending their support, assent, countenance or 

approval to the continued or repeated mistreatment of James Gill, and/or by failing or 

refusing to intervene or oppose the mistreatment of James Gill, and/or by failing or 

refusing to secure medical or hygenic care 

for James Gill necessary for his physical 

well-being in violation of sections 45-5- 

102(l)(a) and 45-2-302(3), MCA and contrary 

to the form, force, and effect of the 

statutes in such case made and provided and 

against the peace and dignity of the State of 

Montana. ' 

"To this charge the defendants have pled not 

guilty and under their pleas, they deny every 

material allegation of the Amended Information against them, and in order to convict 

them of the crime charged against them every 

material fact necessary to constitute such 

crime must be proved by the State by 

competent evidence, beyond a reasonable 

doubt. If the jury entertains any reasonable 

doubt upon any fact or element necessary to 

constitute the crime charged, it is your duty 

to give the defendants the benefit of such 

doubt and acquit. " (Emphasis added. ) 

To this proposed instruction counsel for appellant 

objected on the following basis: 

"Your Honor, I took my instruction basically 

from -- and the only objection that I have is 

that if you put the information in, that it 

would contain extra wordage which might 

confuse the jury on the actual elements of 

the offense, it has such things as maltreatment and so forth and there is not going to 

be an instruction on negligent homicide, so I 

think this is confusing to the jury." 

Appellant's objection to the instruction must be 

considered in light of our previous discussion of the first 

issue. In McKenzie, supra, we noted that the purpose of the 

information is to provide the defendant with notice, not to 

provide discovery of all the State's evidence. Appellant 

previously had filed motions to dismiss the original information and two amended informations. As a result of his 

objections, the State amended to provide the necessary 

information contained in Instruction No. 16. We have in our 
discussion of the first issue upheld the sufficiency of that 

information and find no necessity of changing that decision 

under this second attack on that issue. 

This Court has previously established the standard 

for instructions that a single instruction must not be 

viewed in artificial isolation but must be viewed in the 

context of the overall charge. If all instructions,reviewed 

as a whole, fairly and accurately present the case to the 

jury, the fact that one instruction, standing alone, is not 

as full as it might have been is not reversible error. State 

v. Coleman, supra; State v. Azure (1979), 181 Mont. 47, 591 

P.2d 1125; State v. Farnes (1976), 171 Mont. 368, 558 P.2d 

472. 

The instruction is a proper instruction in a deliberate homicide case, and its only difference from the instruction offered in the previous defendants1 case is that the 

words of the information were inserted into it. The instruction explains in detail the State's theory of the charge and 

when read with the other instructions given by the court, 

Instruction Nos. 30, 31, 32, 33, 34, 35, 36, 37, and 38, 

along with Instruction No. 13, it is our opinion that the 

instruction was properly granted. 

The last issue for consideration is whether the 

verdict is supported by sufficient evidence. As previously 

set forth, there is ample evidence to support the verdict in 

this case which would allow the jury to find appellant 

guilty beyond a reasonable doubt. As we previously noted in 

State v. Fitzpatrick (1973), 163 Mont. 220, 227, 516 P.2d 

605, 610, evidence must be given "all the legal effect 

toward guilt which it could support," and conflicts in the 
evidence on appeal must be resolved in favor of the State. 

See, State v. Pascgo (1977), 173 Mont. 121, 566 P.2d 802. 

When the evidence is analyzed in light of the rules set 

forth in the above cases, it is more than sufficient to 

support the State's theory of the case. 

Finding no reversible error we affirm the conviction. 

We concur: 

%!aChief JuStic5 

Justices 
Mr. Justice John C. Sheehy, dissenting: 

I would reverse the conviction of Sherry Riley. 

In my opinion the connection of Sherry Riley to the 

beating death of James Gill is far too attenuated to make 

her accountable with the principals in this case. 

This is a bizarre case of guilt by association. She has 

been convicted as accountable not because she acted to whip 

or beat James Gill, or stood by while he was being beaten, 

but because she adhered to a belief in the strong discipline 

of children as a religious tenet. Acting under that tenet, 

she had previously administered some strong discipline 

herself, to James Gill and to others, but she never beat 

anyone to the point of death. It cannot be said under the 

evidence here that she "purposely or knowingly" acted to 

bring about the death of James Gill, or that she purposely 

promoted or facilitated the commission of deliberate homicide. 

Additionally, I think that she is at the least entitled 

to a new trial because instruction no. 16 is fatally flawed 

in permitting the jury to convict Sherry Riley for nonstatutory 

reasons. In effect, the court and the jury made up their 

own crime of accountability. 

A person is accountable under section 45-2-302(3), MCA, 

only when, "either before or during the commission of an 

offense with the purpose to promote or facilitate such 

commission," the person aids or abets the principal actor 

in the planning or commission of the offense. The court 

correctly instructed the jury on this point in instruction 

no. 30. 

Instruction no. 16 conflicts with instruction no. 30 

because no. 16 adds additional but nonstatutory grounds upon 

which to convict of accountability. By breaking instruction 
no. 16 into some of its components, one can see language 

that had no place in an instruction to the jury: 

". . . The defendants did purposely or 

knowingly cause or aided or abetted in 

purposely or knowingly causing the death 

of James Gill by 

" [l] ' . . . lending their support . . . countenance or approval to the continued 

or repeated mistreatment of James Gill; 

"[2] '. . . failing or refusing to 

intervene or oppose the mistreatment of 

James Gill; 

" [3] I. . . failing or refusing to 

secure medical or hygenic care for James 

Gill; 

"[4] '. . . in violation of sections 

45-2-201 (I), (a), and 45-2-302 (3), MCA I1 ... 

The language contained in [l] , [2] , and [3] , is not to 

be found in any statute defining a crime either of accountability or deliberate homicide in Montana. Yet, that 

bracketed language is, by the statement in [4] held out to 

the jury as being a violation of certain sections of the 

Montana Code. On that basis, the instruction is misleading, 

confusing and in conflict with the other instructions given 

by the court which define the offense of accountability in 

statutory language. 

It was of course improper in this case for the court to 

include the language of the information in an instruction to 

the jury. We have approved in earlier cases the inclusion 

of the language from an information in a jury instruction, 

particularly in State v. McKenzie (1980), - Mont . - I 

608 P.2d 428, 444, 37 St.Rep. 325, 339, where we said: 

"PpIontana's criminal code is written in 

clear plain language which serves well 

as the basis for instructions to the jury. 

There was no error in incorporating the 

entire Information into the preliminary 

instructions, ---- for it too is basically in 

statutory language merely inserting dezndant's 

--- name and the victim's name --- in the proper 
places and enumerating the weapons used . . . (Emphasis added.) 

It is one thing to incorporate the statutory language 

in an instruction from an information and quite another to 

include in an instruction nonstatutory language from an 

information. For all we know, the jury convicted Sherry 

Riley of "failing or refusing to secure medical care" for 

James Gill or "failing or refusing to intervene or oppose in 

the mistreatment of James Gill," for neither or which is 

there a statutory duty placed upon Sherry Riley. To that 

extent instruction no. 16 invents a crime not set out in our 

criminal code. 

I therefore dissent. 

Mr. Justice Daniel J. Shea dissenting: 

I join with Mr. Justice Sheehy in his dissent.