No. 13475 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

STATE OF MONTANA, 

Plaintiff and Respondent, 

CARL GAFFORD, 

Defendant and Appellant. 

Appeal from: District Court of the Fourth Judicial District, 

Honorable -, Judge presiding. 

Counsel of Record: 

For Appellant: 

Edward A. Cummings argued, Missoula, Montana 

For Respondent: 

Hon. Michael Greely, Attorney General, Helena, 

Montana 

Dennis Moreen argued, Assistant Attorney General, 

Helena, Montana 

Richard P. Heinz argued, County Attorney, Polson, 

Montana 

Submitted: January 13, 1977 

Decided : -MAY 3 1977 

Filed: BN 3 lgn 
Mr. Justice Frank I. Haswell delivered the Opinion of the Court. 

Defendant was charged with two counts of sexual intercourse without consent causing bodily injury. Following a jury 

trial in district court, Lake County, defendant was convicted 

of both counts. Judge Jack L. Green entered judgment sentencing 

defendant to consecutive 20 year terms in the state prison on 

each count. Defendant appeals from the judgment of conviction. 

The evidence at trial disclosed that on the evening 

of June 29, 1975, the victim went to the Diamond Horseshoe, a 

Polson area bar. She was accompanied by her sister Charlotte. 

Another sister, Debbie, later joined the two girls at the Diamond 

Horseshoe. While at the bar, the victim noticed defendant Carl 

Gafford motion to her from across the dance floor. Defendant 

was married to the victim's sister Debbie. 

The victim left the table where she and her two sisters 

were seated and joined defendant. The two conversed for a few 

minutes and thereafter left the bar. According to the victim, 

defendant asked her to go for a ride and talk over the problems 

he was having with her sister. Defendant denied this. In any 

event defendant hid his motorcycle near a rural dirt road outside Polson and joined the victim in her car. They then drove 

to a bar near Dayton, Montana and had two beers each. When 

they left the bar in Dayton, defendant purchased a bottle of 

wine with the victim selecting the brand. 

They drove around the countryside drinking the wine and 

listening to the car stereo. Sometime around midnight as they 

were returning to Polson, defendant who was driving the car 

stopped alongside the highway in order to relieve himself. Thereafter as defendant attempted to drive the car back on the highway, 

the car became stuck. The victim became alarmed that her car had 

been damaged and an argument followed. At this point the evidence is conflicting as to whether the defendant struck, choked, 
slapped or sat on the victim. She testified she was forced 

to accompany defendant into a nearby field where she was 

subjected to sexual intercourse without her consent. She 

testified defendant slapped her around and struck her on the 

nose with his fist whereby she suffered bodily injury. Defendant testified that no sexual intercourse took place on 

this occasion. 

Thereafter defendant and the victim returned to the 

stuck automobile. A passing motorist stopped and with the aid 

of a rope freed the car. Defendant and the victim then continued toward Polson and stopped where defendant had previously hidden his motorcycle. Both the victim and defendant testified 

that sexual intercourse then occurred. Defendant testified 

the intercourse was with consent, while the victim testified it 

was without her consent and that she suffered bodily injury. 

The victim returned home and was examined the following day by Dr. Coriell, the family physician. The examination 

revealed several bruises and abrasions on various parts of her 

face and body. Tests showed the presence of sperm in her vaginal 

tract. The Lake County attorney was notified. 

On June 30, 1975, the county attorney filed a complaint 

in justice court charging defendant with two counts of sexual 

intercourse without consent. Defendant was arrested the same 

day, the public defender was appointed to represent him, bail 

was fixed and defendant was released on bail. Subsequently 

defendant waived preliminary hearing and was bound over to 

district court. 

On July 30, 1975, the county attorney filed an information in the district court charging defendant with two counts of 

sexual intercourse without consent during which the victim 

suffered bodily injury. Defendant appeared with the public 

defender, was arraigned and pleaded "not guilty" to each count, 
waived his right to a speedy trial, and was released on 

bail previously posted. 

On February 4, 1976, the district court set the date of 

March 1, 1976 for jury trial. On February 6, new counsel for 

defendant was substituted for the public defender. On that 

same date defendant's new counsel filed a written motion to 

require the state, among other things to provide defendant with 

a list of witnesses intended to be called by the state at trial, 

to require the state to produce "all documents, papers, or 

things which the state intends to introduce into evidence at 

trial", and all pictures of the victim or of "any item or locale 

connected with the events upon which these charges were based." 

The district court granted all these motions. 

On February 17, defendant's counsel filed a written 

notice to take the deposition of the victim and to secure "the 

names and addresses of persons who have information relevant or 

material to a determination of the facts surrounding the present 

charge." The motion of the state to depose the victim was granted 

and the county attorney assured the court "that to the extent 

that any names of witnesses who do become known to the State, that 

they will be turned over to" defense counsel. 

The deposition of the victim was taken on February 23. 

She stated X-rays had been taken of her nose. She further testified these X-rays were taken at the request of the examining 

physician, Dr. Coriell. At least one week prior to trial, both 

the county attorney and defendant's attorney were in possession 

of a written report by Dr. Coriell that made no mention of 

X-rays or possible fractures. At the time of the deposition the 

victim authorized Dr. Coriell to release medical information 

including tests to defense counsel. 

The trial began on Wednesday, March 3. On the weekend 
of March 6-7, the county attorney telephoned defense counsel 

and disclosed the existence of X-rays of the victim taken the 

day following the alleged crime which disclosed a nondisplaced 

fracture of the nose. 

On Monday, March 8, when the trial reconvened, the 

county attorney moved to enter the name of Dr. avid Dahlgren, 

the radiologist who examined the X-rays, as a witness for the 

state. Defense counsel objected and requested that in the 

event the motion was granted a continuance of one week to have 

the X-rays evaluated by an independent medical expert. A continuance of one day was granted by the court. 

Testimony was concluded on March 11 and the case was 

submitted to the jury. The jury returned a verdict of guilty 

on both counts. Judgment was entered. Defendant appeals from 

the judgment. 

Defendant raises three specifications of error: 

(1) Denial of defendant's motion for mistrial during 

jury selection based upon nonresponsive and prejudicial answers 

of two prospective jurors. 

(2) Reversible error in permitting impeachment of defendant based on a prior conviction of a felony. 

(3) Reversible error in permitting the state to add the 

name of the radiologist as an additional witness for the state 

in the middle of the trial. 

Directing our attention to the first specification of 

error, the record discloses that at the beginning of the voir 

dire examination of prospective jurors, the trial judge asked 

the whole panel if any of them knew any of the parties. Prospective juror Finley indicated he knew defendant and stated at 

one time he was in jail with defendant. Defense counsel asked 

if this jailing was at the time of the arrest of defendant on 
the charges now before the court. Finley answered that he 

thought it was not--it was on a DWI charge. Additionally, 

during voir dire examination by defense counsel, prospective 

juror Ducharme was asked whether his association with defendant in high school would cause him to be prejudiced against 

the defendant. Ducharme answered he knew defendant was in 

trouble before, but that would not prejudice him. 

As to Finley's answers, we find no reversible error on 

two grounds: (1) Defendant's motion for mistrial was not made 

at the first recess following the answers, and (2) the answers 

were invited by the further questions of defense counsel. 

Concerning Ducharme's answer, we do not consider it so 

nonresponsive as to constitute reversible error. Defense counsel could have limited his question to a "yes" or "no" answer 

and failed to do so. Ducharme's answer disclosing his knowledge 

and indicating it would not prejudice him, although perhaps 

technically broader than the question asked, was within the 

bounds of a normal response by a layman unversed in the intricacies of language and correct legal procedure. We find no reversible error in the district court's denial of defendant's motion 

for a mistrial. 

The second specification of error concerns the state's 

right to impeach the defendant by evidence of a prior conviction 

of a felony. Defendant argues this is impermissible since adoption of the 1972 Montana Constitution and repeal of section 

94-4723, R.C.M. 1947, shortly after the new Constitution became 

effective. Our attention is directed to the new Evidence Code, 

effective July 1, 1977, that eliminates this method of impeachment and particularly to the Commission Comments in connection 

therewith. 

Here, the district court denied a motion of defense 

counsel outside the presence of the jury to bar the prosecution 
from bringing to the jury's attention the fact that defendant 

had previously been convicted of a felony. Thereafter the 

state, during cross-examination of defendant in his case-inchief, asked this question: 

"Q. Carl Gafford, have you ever been convicted 

of a felony? A. When I was 19, I pleaded guilty 

to receiving stolen property." 

During final argument, the county attorney in discussing where 

the truth lies, made these remarks: 

" * * * You are to measure this case from the 

mouth of the witnesses who sat here. Is this 

girl telling the truth? You are judging her 

there. You are judging him there sitting there 

also and you may consider the fact that in 

judging his credibility the fact that he is a 

convicted felon." 

Prior to the 1972 Montana Constitution it had long been 

the law in Montana that a witness could be impeached by evidence 

of a prior conviction of a felony. Section 94-4723, R.C.M. 1947; 

Section 93-1901-11, R.C.M. 1947; State v. Coloff, 125 Mont. 31, 

231 P.2d 343; State v. Romero, 161 Mont. 333, 505 P.2d 1207. 

Art. 11, Section 28, 1972 Montana Constitution contains this 

provision: 

"Rights of the convicted. Laws for the punishment of crime shall be founded on the principles 

of prevention and reformation. Full rights are 

restored by termination of state supervision for 

any offense aqainst the state." (Emphasis added.) 

Section 94-4723 has been repealed. Section 95-2227, R.C.M. 

1947, has been enacted and provides in pertinent part: 

"Effect of conviction. * * * 

"(3) When a person has been deprived of any of 

his civil or constitutional rights by reason of 

conviction for an offense and his sentence has 

expired or he has been pardoned he shall be 

restored to all civil rights and full citizenship, 

the same as if such conviction had not occurred." 

Section 93-1901-11, R.C.M. 1947, was not repealed and 

remains the law of Montana. It provides the methods of impeachment and includes: 

" * * * it may be shown by the examination of the 

witness, or the record of judgment, that he has 

been convicted of a felony." 

Section 93-2101-2, R.C.M. 1947, also permits impeachment by 
evidence of a prior conviction of a felony. 

Defendant contends section 93-1901-11 was superseded 

by the enactment of section 95-2227. We do not so construe it. 

The legislature specifically repealed section 94-4723 and made 

no mention of section 93-1901-11 or 93-2101-2. Repeals by 

implication are not favored. State v. Winter, 129 Mont. 207, 

285 P.2d 149; State ex rel. Dunn v. Ayers, 112 Mont. 120, 113 

P.2d 785; State v. Schnell, 107 Mont. 579, 88 P.2d 19. In 

Fletcher v. Paige, 124 Mont. 114, 119, 220 P.2d 484, it is 

stated : 

"It will not be presumed that a subsequent enactment of the legislature intended to repeal former 

laws upon the subject when such former laws were 

not mentioned." 

An implied repeal of a statute will not be so held, absent a 

clear legislative intent to that effect. State v. Lagerquist, 

152 Mont. 21, 445 P.2d 910; Teamsters et al. v. Mont. Liquor 

Control Board, 155 Mont. 300, 471 P.2d 541; Fletcher v. Paige, 

supra. Here there is none. 

Defendant also argues that sections 93-1901-11 and 93- 

2101-2, R.C.M. 1947, are part of the civil code and have no 

application to criminal proceedings. The rules of evidence 

applicable to civil proceedings have long been held applicable 

to criminal proceedings. Section 95-3001, R.C.M. 1947, (Ehrmerly 

section 94-7209); State v. O'Neill, 76 Mont. 526, 248 P. 215; 

State v. Coloff, 125 Mont. 31, 231 P.2d 343; State v. Romero, 

161 Mont. 333, 505 P.2d 1207. 

Defendant advances the position that permitting impeachment by evidence of a prior conviction of a felony is unconstitutional under the 1972 Montana Constitution. He contends 

that Art. 11, Section 28, providing that full rights are restored 

by termination of state supervision for any offense against 

the state, prohibits this method of impeachment. In our view 
bis Constitutional provision cannot be given such a broad 

and sweeping construction. In construing and interpreting 

constitutional provisions, an interpretation that achieves a 

reasonable result is favored. 2A Sutherland Statutory Construction, 4th Ed., ,§ 45.12, p. 37 and cases cited therein. Section 49-134, R.C.M. 1947. State ex rel. Ronish v. School 

Dist. No. 1, 136 Mont. 453, 348 P.2d 797; Keller v. Smith, 

Mont . , 553 P.2d 1002, 33 St.Rep. 828. To construe Art. 11, 

Section 28 in the sense contended by defendant would prohibit a 

sentencing judge from hearing or considering the prior criminal 

record of a convicted felon in determining the sentence to be 

imposed; it would prohibit an employer such as a bank, a large 

supermarket, or any retail business handling money from refusing 

employment as a teller or cashier to a prior convicted embezzler 

or thief by reason thereof; and it would prohibit a state institution housing juveniles from refusing employment to a convicted 

child molester by reason of such prior conviction. Examples 

abound illustrating the unreasonableness of such construction. 

We refuse to give this constitutional provision such absolute, 

broad and sweeping construction. 

In our view the constitutional provision refers to those 

rights commonly considered political and civil rights incident 

to citizenship such as the right to vote, the right to hold 

public office, the right to serve as a juror in our courts and 

the panoply of rights possessed by all citizens under the laws 

of the land. It has no reference to an individual's characteristics, record, or previous conduct demonstrated by a prior 

felony conviction. 

Defendant further states his constitutional right to 

appear and defend himself in a criminal proceeding in person 

and by counsel is trespassed if his credibility can be impeached 
by a prior felony conviction. Art. 11, Section 24, 1972 

Montana Constitution. We find no merit in this contention. 

The testimony of an accused, as in the case of any other 

witness, is subject to attack by impeachment. Prohibiting 

impeachment as a violation of an accused's right to defend 

himself is tantamount to requiring the jury to don blinders 

in its search for the truth. 

Defendant also contends that permitting impeachment 

by prior conviction of a felony denies a prior convicted felon 

the equal protection of the law in violation of Art. 11, Section 

4, 1972 Montana Constitution. He argues this singles out a 

special class of persons, i.e. prior convicted felons, for 

special treat which is constitutionally impermissible. Classifications for different treatment are not per se unconstitutional. 

State v. Craig, Mont . , 545 P.2d 649, 33 St.Rep. 86; 

Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 31 S.Ct. 337, 

55 L Ed 369; Royster Guano Gb.v.Virginia, 253 U.S. 412, 40 S.Ct. 

560, 64 L Ed 989. It is only if the classification is unreasonable that the constitution is violated. Regardless of the legislative wisdom or merit of singling out prior convicted felons 

for special treatment, the legislative classification cannot 

be said to contravene the standard of reasonableness. 

Finally, we reject defendant's argument based on the 

proposed new code of evidence. Whatever may be said of the pros 

and cons of abolishing impeachment by evidence of a prior conviction of a felony, the new evidence code was not in effect 

at the time of trial of this case and consequently has no 

application. 

Defendant's third specification of error is whether 

permitting the addition of the radiologist as an additional 

state's witness in mid-trial was prejudicial and reversible error. 
The controlling statute section 95-1803, R.C.M. 1947, 

provides : 

"Discovery, inspection, and notice. In all 

criminal cases originally triable in district 

court the following rules shall apply: 

" (a) List of Witnesses: 

"(1) For the purpose of notice only and to prevent 

surprise, the prosecution shall furnish to the defendant and file with the clerk of the court at 

the time of arraignment, a list of the witnesses 

intended to be called by the prosecution. The 

prosecution may, any time after arraignment, add 

to the list the names of any additional witnesses, 

upon a showing of good cause. The list shall include 

the names and addresses of the witnesses. 

" (2) The requirement of subsection (a) (I), of this 

section, shall not apply to rebuttal witnesses. 

"(b) Subpoenas may be used as a discovery device 

as provided for under section 95-1801(d). 

"(c) On motion of any party within a reasonable 

time before trial all parties shall produce at a 

reasonable time and place designated by the court 

all documents, papers or things which each party 

intends to introduce in evidence. Thereupon any 

party shall, in the presence of a person designated 

by the court, be permitted to inspect or copy any 

such documents, papers or things. The order shall 

specify the time, place and manner of making the 

inspection and of taking the copies or photographs 

and may prescribe such terms and conditions as are 

just. If the evidence relates to scientific tests 

or experiments the opposing party shall, if practicable, be permitted to be present during the 

tests and to inspect the results thereof. Upon a 

sufficient showing the court may at any time order 

that the discovery or inspection be denied, restricted or deferred, or make other appropriate 

orders. If, subsequent to compliance with an order 

issued pursuant to this rule, and prior to or 

during trial, a party discovers additional material 

previously requested which is subject to discovery 

or inspection under the rule he shall promptly 

notify the other party or his attorney or the court 

of the existence of the additional material. The 

court shall exclude any evidence not presented for 

inspection or copying pursuant to this rule, unless 

good cause is shown for failure to comply. In the 

latter case the opposing party shall be entitled 

to recess or a continuation during which it may 

inspect or copy the evidence in the manner provided 

for above. 

"(d) For purpose of notice only and to prevent 

surprise, the defendant shall furnish to the 
prosecution and file with the clerk of the court 

at the time of entering his plea of not guilty 

or within ten (10) days thereafter or at such 

later time as the court may for good cause permit, 

a statement of intention to interpose the defense 

of insanity, self-defense or alibi. If the defendant intends to interpose any of these defenses, 

he shall also furnish to the prosecution and file 

with the clerk of the court, the names and addresses 

of all witnesses to be called by the defense in 

support thereof. The defendant may, prior to trial, 

upon motion and showing of good cause, add to the 

list of witnesses the names of any additional witnesses. After the trial commences, no witnesses 

may be called by the defendant in support of these 

defenses, unless the name is included on such list, 

except upon good cause shown. 

"(e) All matters which are privileged upon the 

trial, are privileged against disclosure through 

any discovery procedure." 

This statute allows the addition of witnesses after 

trial has commenced on a showing of good cause. Commission 

Comments to section 95-1803, R.C.M. 1947; State v. Klein, 

Mont . , 547 P.2d 75, 77, 33 St.Rep. 283, 286. "Good cause" 

has been defined as "substantial reasonw--one that affords a 

legal excuse. State v. Rozzell, 157 Mont. 443, 486 P.2d 877; 

State v. Klein, supra. In Klein the Court stated: 

"The court should first determine whether the need 

for the additional witnesses and the reason for 

their not being disclosed earlier is a 'substantial 

reason'. It should then determine whether there 

is prejudice based on surprise and whether this 

surprise can be overcome by the granting of a continuance. If the surprise element can be overcome 

by a continuance, then the witness should be endorsed 

and the continuance granted. The spirit and intent 

of the law is that names and addresses of potential 

witnesses should be disclosed as soon as they are 

known. " 

As trial progresses, the showing necessary to establish "good 

cause" should be more stringent. Commission Comments to section 

95-1803, R.C.M. 1947, supra. 

The circumstances of this case furnish the background of 

the district court's ruling. Defendant's counsel took the deposition of the victim eight days before trial. At that time 

the following information was elicited by defense counsel: 
"Q. you indicated that an X-ray had been 

taken? A. Yes. 

"Q. Where and by whom? A. Up at St. Joseph's 

Hospital. 

"Q. Who requested the X-ray? A. Dr. Coriell 

said that I should have it X-rayed to make sure 

that it wasn't broken." 

Sometime the previous November, the public defender and then 

counsel for defendant, had received a written medical report 

from Dr. Coriell concerning his examination of the victim. 

About a week prior to trial the county attorney received this 

medical report. Defense counsel had discussed with Dr. Coriell 

his examination of the victim. No mention of the X-rays in 

question was made in the written reports or discussion by 

Dr. Coriell. 

Trial commenced on Wednesday, March 3. Jury selection 

consumed the entire first day. On March 4 jury selection continued and thereafter general instructions were given the jury 

by the court, the state made its opening statement, defendant 

reserved his opening statement, and the victim was sworn and 

testified. On Friday, March 5, the victim resumed her testimony, photographic exhibits and a wine bottle were introduced, 

the undersheriff testified, the jury examined the premises involved in the incidents forming the basis of the charges, and 

Dr. Coriell testified. 

Over the weekend, the county attorney called defense 

counsel and informed him that the state intended to present the 

X-rays and would, for that purpose, request the endorsement of 

a radiologist as an additional witness for the state. 

When court reconvened on Monday, March 8, the state 

moved to add the name of Dr. David Dahlgren, the radiologist 

who read the X-rays, as an additional witness for the state 

and represented to the court that the reason for the motion was 
the inability of Dr. Coriell to recall whether or not such X-rays 

were requested by him. The county attorney represented to the 

court that Dr. Coriell had not advised either the victim or 

her family of the findings of the X-rays by Dr. Dahlgren and 

these were entirely unknown either to the victim or the state. 

The county attorney represented he was surprised by Dr. Coriell's 

testimony. 

The motion was resisted by defense counsel on these 

grounds: (1) The presence of the witness and the X-ray had 

to have been known by the state from the onset of the trial, 

(2) the state did not furnish defense counsel with the name 

of the witness or the existence of the X-ray in response to 

the motion requiring this, (3) Dr. Coriell had not indicated 

the presence of the X-ray or the findings in his conversation 

with defense counsel, and (4) it changed the whole complexion 

of the trial and came as a surprise to defendant in the middle 

of the trial. 

Defense counsel moved for a week's continuance to take 

the X-ray to an independent radiologist in Missoula for examination. Although some of the discussion went unreported in 

the record, it appears from the trial judge's reported remarks 

that defense counsel had already contacted Dr. Fritz in Missoula 

for this purpose. The court granted a one day continuance. 

No further request for additional time or continuance was made 

by defense counsel, nor was any objection made to the reduced 

time of continuance. Dr. Fritz was never called as a witness 

for defendant at the trial. 

The testimony of Dr. Dahlgren indicated he examined 

the X-rays and they indicated a nondisplaced fracture of the 

nose of the victim. 

On appeal defendant argues that the late disclosure 
of the X-rays and what they showed was permitted without a 

showing of "good cause" and prejudiced the defendant in 

defending himself after his theory of the case had been prepared and the case was in mid-trial. He argues the state by 

reasonable diligence could have discovered this evidence in 

advance of trial rather than waiting until the middle of the 

trial and "ambushing" defendant with a devastating and key 

piece of its evidence. 

In our view, the showing made by the state indicated 

surprise. The state represented it knew nothing about the 

findings of the X-rays and were surprised that Dr. Coriell 

did not testify as to the X-rays and what they showed. Defendant's counsel stated the state failed to exercise reasonable diligence prior to trial in uncovering this information. 

This is a two-edged sword. Both the county attorney and defense counsel knew about the X-rays prior to trial. Apparently 

neither the state nor the defense knew what they disclosed. 

Lacking this information, their relevance and significance were 

unknown and unappreciated by either the state or the defense. 

While the state could have followed through, it relied on Dr. 

Coriell to cover this point. The defense could also have uncovered this information by requesting authorization for examination of the X-rays, which they knew were at St. Joseph's 

Hospital. We cannot say that the showing by the state did not 

constitute "good cause" permitting the endorsement of the 

radiologist as a witness for the state under the circumstances 

here. 

We emphasize that there is nothing to indicate an 

intentional or deliberate withholding of evidence by the state. 

Such are not the facts here, and case rulings under such facts 

are not germane to this appeal. 

Defendant objects to the one day continuance rather 
than the week's continuance requested. At the time the one 

day continuance was granted, defense counsel had already 

contacted Dr. Fritz, the independent radiologist it sought to 

read the X-rays. When trial was resumed defendant gave no 

indication that he needed more time. He did not request an 

additional continuance. He simply proceeded with the trial 

without further objection. Under these circumstances, he will 

not be heard to say on appeal that the one day continuance 

was insufficient. 

We notedefendant has applied to the Sentence Review 

Board for a review of his sentence. This review has been deferred pending outcome of this appeal. The equity and uniformity of his sentence will be thoroughly reviewed and determined 

by that body following this appeal. We reserve jurisdiction 

to review the sentence thereafter. 

The judgment of conviction is affirmed. 

Justice 

Chief Justice L 7 

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

Justices 
Mr. Justice Daniel J. Shea dissenting: 

I would reverse the judgment of conviction and order a 

new trial. While perhaps each of the claimed errors would not 

be sufficient in itself to constitute reversible error, when taken 

together I believe the defendant was denied a fair trial. 

Because of the voir dire examination the past conduct of 

the defendant, unrelated to the charges, was already in front of 

the jury before the testimony started. (One juror stated he knew 

the defendant had been in trouble before but he could still be 

fair and the other juror stated he had been in jail with the defendant when the defendant had been charged with driving under the 

influence). It is true that these comments were invited to a 

degree by defense counsel, but this still did not free the trial 

judge from assuring that the future course of the trial would not 

further poison the trial atmosphere. 

As a step in assuring this fair trial, the trial court should 

have granted the defense motion in limine to prevent the jury 

from knowing of defendant's past felony conviction. It is clear 

that conviction, one of receiving stolen property obtained some 

7 years before the present trial when the defendant was 19 years 

of age, had no probative value on the issue of rape that was being 

tried. The sole reason for allowing the prosecution to ask 

defendant if he had ever been convicted of a felony was based on 

section 93-1901-11, R.C.M. 1947, a statute which enacted the old 

common law rule that one convicted of a felony is less worthy of 

belief, and accordingly the jury should know about the previous 

felony conviction. 
This statute is not a rule of substantive law; it is a rule 

of evidence. It does not declare that a previous felony conviction 

must be allowed in evidence; it simply states that it "may" be 

allowed in evidence. Whether to allow the previous conviction in 

evidence is a matter of discretion for the trial court, to be 

determined according to the circumstances of each case, keeping in 

mind that it is the ultimate duty of the trial court to assure 

each defendant a fair trial. This duty cannot be watered down by 

a blindfolded application of a statute, for the duty to assure a 

fair trial transcends the mechanical application of rules of 

evidence. 

Given the circumstances of this case, it was prejudicial 

error to allow the jury to consider the defendant's previous 

felony conviction. This error was compounded by two events 

occurring after the admission of this evidence. 

During settlement of jury instructions the prosecutor 

offered an instruction on how the jury was to consider evidence 

of a previous felony conviction, but it also contained law on 

other points already covered in the instructions. Defense 

counsel objected on that ground and the trial court refused the 

instruction. The prosecutor did not offer another instruction on 

the subject. While defense counsel did not offer an instruction 

on the point, nevertheless the cumulative evidence relating to 

defendant's bad conduct was such that the trial judge on his 

own motion should have given the jury a cautionary instruction. 

Furthermore, it was improper for the prosecutor to comment on 

the previous felony conviction in his final closing arguments 

where he did not cover the subject in his own opening arguments 

and defense counsel did not cover the subject in his own final 

arguments. Had the prosecutor discussed the felony conviction 
during his opening arguments defense counsel could have made 

an informed decision as to how to handle the matter. But at 

this stage of the arguments defense counsel could only object to 

an improper argument, and this would only have served to heighten 

and concentrate the jury's attention on his client's previous 

felony conviction. 

The prosecutor's remarks to which defense counsel could not 

respond, were: 

"You are to measure this case from the mouth 

of the witnesses who sat here. Is this girl telling 

the truth? You are judging her there. You are 

judging him sitting there also and you may consider 

the fact in judging his credibility the fact that he 

is a convicted felon. 

"Now, measure the truth.* * *I1 

This combination of circumstances concerning defendant's 

past conduct, wholly unrelated to the case, deprived him of a 

, fair trial. 

It also was improper to allow the X-rays in evidence under 

the circumstances as exist in this case. This is not a case where, 

after due diligence was exercised, the prosecutor came up with 

additional evidence he did not know existed. It is a case where 

the state had been rewarded for a total lack of diligence. Here, 

the prosecutor knew the X-rays existed but never bothered to 

determine if they had any evidentiary value until the middle of 

the trial. 

The prosecutor should have known the X-rays existed when he 

or his agents talked to the complaining witness to determine if 

there was probable cause for a criminal complaint. In any event, 

he most certainly knew the X-rays existed when the defense deposed 

the complaining witness and she testified X-rays were taken of her 

nose at St. Joseph's Hospital. But the first time the prosecutor 
bothered to determine if the X-rays had any evidentiary value was 

after both the complaining witness and her mother testified at 

the trial that X-rays had been taken, even though the treating 

doctor, Dr. Coriell, testified he could not recall whether he 

had ordered X-rays. It was only after this testimony that an 

effort was made to see what the X-rays contained. 

I disagree with the majority that the state was legitimately 

surprised because it expected Dr. Coriell to testify at the trial 

as to the X-rays and the results. Since the state had never 

discussed the X-rays with him before trial (in fact, his medical 

report did not even mention X-rays), it is illogical to conclude 

the state expected Dr. Coriell to cover the subject of X-rays 

at the trial. Furthermore, I think the state's failure to comply 

with discovery concerning the X-rays would have precluded the 

state from using Dr. Coriell or anyone else to testify concerning 

the X-rays and the results. 

Before trial the defense moved to discover all "documents, 

papers and things" that the prosecution intended to introduce at 

trial, and the court so ordered, with no objection from the state. 

At no time were the X-rays listed as a potential exhibit and at no 

time before trial was the defense ever given notice the state 

intended to introduce X-rays in evidence. One of the very purposes 

of the discovery statutes is to prevent surprise, and here the 

defense was totally justified in believing the state was not going 

to introduce any X-rays in evidence. Accordingly, the trial court 

was in error when it allowed the endorsement of the radiologist 

on the Information to get the X-rays and the results in evidence. 

For the foregoing reasons I would reverse the judgment of 

conviction. 

w Just ice.