No. 13550 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

STATE OF MONTANA, 

Plaintiff and Respondent, 

L. R. BRETZ AND MERREL J. CLINE, 

Defendants and Appellants. 

Appeal from: District Court of the Third Judicial District, 

Honorable Jack Green, Judge presiding. 

Counsel of Record: 

For Appellants: 

Frank B. Morrison, Sr. argued, Whitefish, Montana 

Donald E. Hedman argued, Whitefish, Montana 

Richard Anderson argued, Billings, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Robert Keller, Special Assistant Attorney General, 

argued, Kalispell, Montana 

James Masar, County Attorney, Deer Lodge, Montana 

Submitted: June 16, 1978 

Decided:FEB - 5 1m 

Filed: F.EB -- 5 19E 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Defendants L. R. Bretz and Merrel J. Cline each appeal 

from judgments of conviction against them on June 18, 1976, 

based on verdicts of guilty for certain criminal offenses 

after jury trial. 

On August 27, 1975, L. R. Bretz and Merrel J. Cline 

were charged in a five-count information with criminal acts 

alleged to have occurred while the two were serving time on 

prior convictions within the prison at Deer Lodge. The 

original information charged conspiracy and solicitation to 

assassinate the then attorney general, Robert L. Woodahl and 

his special assistant, Richard Dzivi. 

After the original information was filed, both defendants 

were transferred to the Missoula County jail to await trial 

on the assassination charges. While in the Missoula County 

jail, Bretz and Cline were alleged to have committed certain 

acts which resulted in the filing of an amended information 

in Powell County District Court, adding five new counts. 

The new counts again charged conspiracy and solicitation 

against defendants, alleging efforts on the part of defendants 

to secure perjured testimony from two Missoula County jail 

inmates, Walter Lee Fox and John Eugene Hendricks, regarding 

the character of prosecution witnesses in the original 

conspiracy and assassination counts. 

The District Court granted defendants' motion for a 

change of venue as to the last five counts from Deer Lodge 

County to Missoula County. The State appealed and the grant 

of change of venue was reversed by this Court in a divided 

opinion. (State v. Bretz and Cline (1976), 169 Mont. 505, 

548 P.2d 949.) 

The case was tried before a jury in Powell County and 

verdicts were returned. Defendant Bretz was found guilty on 

count VI, conspiracy to commit the crime of perjury by 
encouraging Walter Lee Fox and John Eugene Hendricks to make 

false statements under oath; count VII, solicitation of 

Walter Lee Fox to commit the crime of perjury; count IX, 

tampering with witnesses by attempting to induce John Eugene 

Hendricks and Walter Lee Fox to testify falsely during the 

trial of the case; and count XI fabricating physical evidence, 

relating to statements of Walter Lee Fox and John Eugene 

Hendricks, for the purpose of discrediting the credibility 

of Jack LaMere as a witness in the case. Defendant Bretz 

was found not guilty on all other counts. 

Defendant Cline was found guilty of count VI and was 

found not guilty on all other counts. 

Thus all the counts upon which convictions were obtained 

relate to actions alleged to have occurred in Missoula 

County, and not in Powell County, the place of trial. 

After the jury verdicts, judgments were entered against 

each of the defendants. Cline was sentenced to six years in 

prison. Bretz was sentenced to a six-year term on his 

conviction under count VI; imposition of sentence on his 

convictions on the other counts was deferred. Both defendants 

were then serving prison terms for prior convictions and 

these sentences were imposed to run consecutively to those 

received for the prior convictions. This Court ultimately 

reversed Cline's prior conviction, and affirmed Bretz's, in 

State v. Cline and Bretz (1976), 170 Mont. 520, 555 P.2d 

724. Appeals were duly taken by both defendants to this 

Court. 

Out of the welter of issues raised by appellants in 

this Court, we find merit in two and reverse the convictions 

on those grounds. 
The first issue relates to the amendment by the trial 

judge, while the jury was deliberating, of instruction No. 

6. It was given without objection by either defendants or 

the State and in part instructed the jury: 

"Said defendants are also charged in the 

same information with the following crimes 

alleged to have committed in Missoula 

County, Montana, between August 25, 1975, 

and October 22, 1975: 

"Count Six: Conspiracy to commit the 

crime of perjury by encouraging Walter 

Lee Foxand - John Eugene Hendricks to make 

false statements under oath or equivalent 

affirmation." (Emphasis supplied.) 

(The other counts were also charged conjointly.) 

The jury deliberated for two days after the case was 

submitted to it, and on the second day, before the jury had 

arrived at a verdict, the court informed counsel that the 

preceeding evening, a Friday night, the bailiff had 

received a question from the jury as to the interpretation 

of instruction No. 6. The transcript reveals that the 

court advised the parties respecting the amendments on 

the following morning as follows: 

"THE COURT: I wish to advise counsel 

that last night, that would be Friday 

night, the bailiff had a question from 

the jury as to the interpretation 

of instruction no. 6, where the word 

'and' was used between Fox and Hendricks. 

I advised the jury in connection to 

those paragraphs, starting with no. 6, 

that it should be amended to read 'or', 

does the State have any objections 

with that? 

"MR. GILBERT: No objections. 

"THE COURT: Does the defendant Bretz 

have any objection? 

"MR. TRIEWEILER: No objections. 

"MR. MATTHEWS: No objection." 
Both Bretz and Cline contend that the court's action in 

amending instruction No. 6 constituted an amendment of the 

information under which the defendants were charged, that 

the amendment was material and substantially prejudiced the 

rights of the defendants. 

The State contends that the amendment did not constitute a change of the offense charged; that had the State 

moved to amend the information at that time, the motion 

would undoubtedly have been granted; and that the defendants 

were each fully prepared to defend as to Walter Lee Fox - or 

John Eugene Hendricks so the change did not increase or 

lessen the defense burden. 

The State contends that the recitation by the court 

to counsel later about the amendment was also without objection. 

The State however, concedes this is raising a technicality 

to meet a technicality, and that the real concern facing 

this Court is whether or not the amendment was one of 

substance. 

The statute which mandates procedure when the jury is 

deliberating in such cases is section 95-1913(d), R.C.M. 

1947. It states: 

" (d) After Retirement, May Return into Court 

for Information. After the jury has retired 

for deliberation, if there be any disagreement 

among them as to the testimony, or if they 

desire to be informed on any point of law 

arising in the cause, they must require the 

officer to conduct them into court. Upon 

being brought into court, the information 

requested may be given in the discretion 

of the court; if such information is given 

it must be given in the presence of the 

county attorney and the defendant and his 

counsel. " 

Obviously the statute was not followed in this case. 
In State v. Herron (1975), 169 Mont. 193, 198, 545 P.2d 

678, we held that as a general rule additional instructions 

to the jury must comply with the law and failure to follow 

the law constitutes reversible error. The instruction as 

amended constituted a substantial departure from the crime 

that had been charged. The information and the instructions 

as argued by counsel by both defendants had required proof 

of the involvement of Hendricks - and Fox. Hendricks did not 

testify. The jury was obviously at sea with respect to the 

use of the conjunctive and so asked further instructions. 

When the court communicated to the jury neither counsel for 

the State nor the defendants were present. The amendment of 

the instruction permitted the jury to convict the defendants 

if they found that one only of the two persons named were 

involved. Thus, a material variance occurred which requires 

reversal. 

The second issue on which we reverse brings us back to 

the question of venue of counts VI through X of the amended 

information, all of which were alleged to have occurred in 

Missoula County. 

In the prior decision of this Court, with respect to 

the venue question (169 Mont. 505, 548 P.2d 949), the 

majority felt that the additional counts arising out of the 

alleged acts in Missoula County could not stand independently 

of the alleged acts in Powell County and therefore that 

venue in Powell County must be sustained since the first 

information was filed there. The anomaly now is that as a 

result of the acquittals, the convictions relate only to 

alleged acts in Missoula County, and on retrial would concern 

only allegations arising out of Missoula County. 

In State v. Zimrnerman (1977), Mont . , 573 

P.2d 174, 34 St.Rep. 1561, we held that an earlier erroneous 
decision of this Court is not necessarily binding as the law 

of the case in a subsequent appeal. The exception to the 

general rule of law of the case arises where the cause on 

appeal must be remanded to the District Court for further 

proceedings because of reversal on an unrelated issue. When 

that occurs, this Court may correct "a manifest error in its 

former opinion" and announce a different ruling to be applied 

prospectively to the future proceedings in the case. 

(573 P.2d 178, 34 St.Rep. 1566). We also noted that 

the exception is more readily applied where the prior 

decision is by a divided court. Perkins v. Kramer (1948), 

121 Mont. 595, 198 P.2d 475. We hold therefore that, especially 

in the light of subsequent events, the decision respecting 

venue in our prior opinion is in fact erroneous, and now 

this cause fits within the general exception to the rule on 

law of the case; that is, we find that the proper venue for 

this cause is in the District Court in Missoula County. 

Defendants raised a number of other issues on their 

appeals, but there is no need for this Court now to examine 

those issues critically because of our decision here. 

Essentially those issues relate to the sufficiency of the 

evidence to support the convictions which were obtained, or 

to whether the testimony of an accomplice had been corroborated. Since the counts upon which convictions were 

obtained must now be retried, it would be bootless to search 

the more than three thousand pages of transcript to determine 

whether the corroborating evidence was sufficient under 

State v. Cobb (1926), 76 Mont. 89, 92, 245 P. 265, or whether 

otherwise the evidence was sufficient to sustain the convictions. 

On one issue, raised by defendant Cline, however, we do 

wish to make comment. He contends that the District Court 

erred in denying his motion for a separate trial from his 

codefendant Bretz. He points out that the defendant Bretz 

-7- 
exercised the right of peremptory disqualification of the 

trial judge, and when the second judge assumed jurisdiction, 

Cline had no similar right to disqualify that judge, because 

under section 95-1709, R.C.M. 1947, defendants may not 

peremptorily disqualify more than one judge. Cline contends 

that because Bretz exercised the disqualification first, he 

was not given a like opportunity and therefore was not 

accorded equal protection of the law under 1972 Mont. Const. 

Art. 11, S4. 

This contention is now moot because under the order of 

this Court dated December 26, 1976, entitled Disqualification 

and substitution of judges (34 St.Rep. 26), each defendant 

in a criminal proceedings is now entitled to one substitution 

of a judge. Section 95-1709,R.C.M. 1947, has been superseded 

by this order. 

The convictions of each of the defendants are vacated 

and the cause is remanded to the District Court for further 

proceedings in accordance with this opinion. 

Justice 

We Concur: 

Justices 

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

Hon. LeRoy L. McKinnon, 

District Court Judge, sitting 

in for Mr. Justice Daniel J. 

Shea 
STATE -VS- BRETZ & CLINE 

I respectfully dissent from the foregoing opinion. 

The majority opinion has found merit in two of the 

issues raised on appeal. The first of said issues relates to 

a charge in the information, and to instruction number 6, 

covering said charge. 

The charges: "Count Six: Conspiracy to commit the 

crime of perjury by encouraging Walter Lee Fox and John Eugene 

Hendricks to make false statements under oath or equivalent 

affirmation", emphasis added. 

No proof was offered as to John Eugene Hendricks. 

No motion was made to conform the pleading to the proof. 

Instruction number six used the same conjunctive form "and", 

and was given without objection. 

Looking back it would seem that the charge should 

have used the "and/oru form, a motion to conform should have 

been made, and the instruction should have been worded in the 

singular. 

The ultimate fact is that when the prosecution rested, 

the defendants knew that the part of the charge pertaining to 

Hendricks was dropped, and that they need not defend against it. 

This in no way changed the burden of defense unless to lighten 

it slightly, and certainly the defendants were in no way mis-led 

or prejudiced in their defense. 

The jury was confused by the conjunctive form of the 

instruction when there was proof as to cons@ring with one person 

only. They raised the question to the bailiff. The judge then 

advised them that instruction six should be amended to read "or". 

It was such a simple little thing, and there was only 

one way to correct it, and this led the trial judge into technical error. 

-9- 
The judge promptly advised counsel on both sides 

of what had transpired, and both sides affirmatively stated they 

had no objection. At that point, no verdict had been reached. 

Upon objection from either side the judge could have convened 

the court and straightened out the whole matter, and the net 

result would have been the same. 

"Although communications between judge and jury outside of the presence of party on trial are frowned upon, 

prejudice is not to be presumed therefrom, but rather must be 

established before any verdict of guilty can be reversed on 

such ground. (Citing cases) Donald Wiseman v The People of the 

State of Colorado, t-h"t&e+&4%krade7 179 Col. 101, 498 

P 2d 930." Quoted in People v Lovato, Col. , 507 P2d 

860. 

Ballantine's Law Dictionary Third Edition at page 

1334 defines variance, and the last paragraph thereof is as 

follows: 

"In a criminal case, a variance is an 

essential difference between the accusation and the proof, and the variance is 

not material unless it is such as to 

mislead the defense, or expose the defendant to the injury of being put twice in 

jeopardy for the same offense. Brashears 

v State, 38 Okla Crim 175, 259 P 665." 

Black's Law Dictionary, Third Edition, at page 1800 

is to the same effect with some additional citations. 

In this case, there was no variance which would lead 

to any different defense, if anything, it would reduce the 

necessary defense. Neither would it lead to a possibility of 

either defendant being put twice in jeopardy. All alleged 

conspirators were identified, and there could be no further 

prosecution on the facts giving rise to this case. 

As to the question of venue, that same question was 

before this court in this same case, and was ruled upon. See 
State v Bretz and Cline, 169'~ont. 505, 548 P2d 949. 

"The general rule in Montana is that 

where a decision has been rendered 

by the Supreme Court on a particular rb 

issue between the same parties in the 

same case, whether that decision is right 

or wrong, such decision is binding on 

the parties and the courts and cannot be 

relitigated in a subsequent appeal. 

(Citing cases) " 

* * * * 

"The sole exception to the 'right or 

wrong' rule recognized by this court 

was articultated in State v Zimmerman 

(1977) Mont . , 573 P2d 174, 

178, 34 St. Rep. 1561, 1566: 

'In any event, an exception to this 

general rule exists where the case 

must be remanded to the district court 

for further proceedings because of reversal on an unrelated issue. In such 

cases this Court may correct a manifest 

error in its former opinion and announce 

a different ruling to be applied prospectively to future proceedings in the 

case. . . . Belgrade State Bank v 

Swainson, Mont . , 35 St. Rep. 

549, 549B.'" 

Since I find no reversible error, I would not reach 

the question of venue. As far as fundamental fairness, I 

doubt there is much to choose between an impartial jury, duly 

selected, in Missoula County, as compared to its counterpart in 

Powell County. I would affirm the judgment. 

LeRoy L .p~innon, ~ist;ict Judge, 

sitting in for Mr. Justice 

Daniel J. Shea.