No. 12948 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

JERRY ALLEN HERRON, 

Defendant and Appellant. 

Appeal from: District Court of the Fourth Judicial District, 

Honorable Robert Keller, Judge presiding. 

Counsel of Record: 

For Appellant : 

Daniel J. Shea argued, Missoula, Montana 

For Respondent : 

Hon. Robert L. Woodahl, Attorney General, Helena, 

Montana 

Thomas A. Budewitz, Assistant Attorney General, 

argued, Helena, Montana 

Robert L. Deschamps, 111 argued, County Attorney, 

Missoula, Montana 

Submitted : November 12, 1975 

Filed: ' '6 ' , 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

Defendant appeals from his conviction of attempted 

second degree murder and the 25 year sentence imposed in the 

district court, Missoula County. 

On October 20, 1972, a teen-age girl was riding her 

 bicycle on the highway near Clearwater Junction. She was shot 

by a shotgun fired from a passing vehicle. Defendant Jerry Allen 

Herron was arrested the same day and was ultimately tried for 

four alternative crimes: 1) Attempted second degree murder. 

2) First degree assault with intent to kill. 3) First degree 

assault with attempt to commit a felony. 4) Second degree assault. 

The first trial on these charges was held in June 1973. 

The jury was given these two instructions, among others: 

11 Instruction No. 20, The crimes charged against the 

Defendant are all felony offenses. Therefore, all 

twelve of your number must agree in order to return 

a verdict of guilty or not guilty, and all twelve 

of your number must agree in order to decide any question necessary to be decided in arriving at a verdict 

on a crime. 

11 It is necessary that you consider the crime of 

attempted murder first, and find the defendant either 

guilty or not guilty of that charge. 

"1n the event you find the defendant guilty of 

attempted murder you need go no further as you will 

have reached a verdict in this case. 

"In the event you find the defendant not guilty 

of attempted murder, then you must consider the crime 

of Assault in the First Degree with intent to kill 

as embodied in alternative Count I1 of the Information. 

You must find the defendant either guilty or not guilty 

of Assault in the First Degree with intent to kill. 

In the event you find the defendant guilty of that 

charge, you have reached a verdict and need go no further. 

"In the event you find the defendant not guilty 

of Assault in the First Degree with intent to kill, 

you must consider the alternative Count Number I11 of 

the Information which is Assault in the First Degree 

with intent to commit a felony. In the event you find 

the defendant guilty of that charge, you have reached 

a verdict and need go no further. 
"1n the event you find the defendant not guilty 

of Assault in the First Degree under both Counts I1 

and 111, you must then consider the lesser included 

offense of Assault in the Second Degree. You must 

find the Defendant guilty or not guilty of this charge, 

and when you do so, ou have reached a verdict and need 

not proceed further. x 

It Instruction No. 24 When you retire to the jury room, 

you shall select one of your number to act as foreman, 

who will preside over your deliberations. In order to 

reach a verdict, all twelve jurors must agree to the 

decision. As soon as you have agreed upon a verdict, 

you shall have it dated and signed by your foreman and then 

shall return with it to this room." 

The jury was provided with eight forms of verdict. The 

jury deliberated one entire night, returned to court at 5:40 a.m. 

and announced its failure to reach a verdict, and was discharged. 

Three days later a member of the jury telephoned defendant's 

attorney for the stated purpose of informing him what had actually 

occurred during the night of jury deliberations. 

According to the affidavit of this juror, which was 

filed by defendant's attorney, the jury had actually voted unanimously to acquit defendant of attempted second degree murder, first 

degree assault with intent to kill, and first degree assault with 

intent to commit a felony. The jury was deadlocked only on 

defendant's guilt or innocence of second degree assault. 

~efendant's counsel contacted the jury foreman by phone 

who substantially corroborated these events and further explained 

the reason why no verdict forms had been signed to reflect the 

verdict. According to the foreman's affidavit, the jury was confused by two instructions, No. 20 and No. 24, heretofore quoted. 

The jurors asked the bdiff to convey a question to the presiding 

judge as to whether they should sign the first verdict form before 

proceeding to the next charge. No record exists concerning what 

the bailiff asked the judge or what the judge replied to the 

bailiff, as no court reporter was in attendance and no attempt was 

made to notify either counsel of the jurors' confusion. The affidavit 
indicated the bailiff told the jury foreman that the jury was 

to arrive at only one verdict in the case and therefore should 

sign only one form. 

These events were corroborated by the affidavits of the 

other jurors. Their version of events was never questioned by 

the state in its brief or oral argument on appeal. 

The second trial of defendant was held in December 1973. 

Defendant was tried on the same charges, with one exception; the 

charge of first degree assault with intent to kill was dismissed. 

The jury was unable to reach a verdict on the remaining three 

charges at the second trial. 

A third trial was held in June 1974, on the same charges 

as in the second trial. Defendant was convicted of attempted second 

degree murder and sentenced to 25 years imprisonment in the state 

prison, where he is presently incarcerated. 

At the second and third trials defendant maintained 

the district court had no jurisdiction to try him again on charges 

of attempted second degree murder or first degree assault with 

intent to commit a felony, because he had been acquitted of both 

charges at the first trial. His claim is based on the double 

jeopardy provision of the Federal and State Constitutions. They 

provide : 

Amendment 5, United States Constitution: 

'I* * * nor shall any person be subject for the 

same offense to be twice put in jeopardy of life 

or limb * $< Y<. I' 

Article 11, Section 25, 1972 Montana Constitution: 

"* * * No person shall be again put in jeopardy 

for the same offense previously tried in any 

jurisdiction, 11 

The double jeopardy provision of the United States Constitution prohibits being twice placed on trial, as well as twice 

punished for the same offense. It does not prohibit retrial for 

the same offense if the first trial results i.n a hung jury. We 

find no reason to construe the double jeopardy provision of Monta~a's 
Constitution otherwise. 

The ultimate question on appeal is whether the record 

in this case discloses an acquittal or a hung jury at the first 

trial on the charge of attempted murder. This issue must stand 

or fall on the answer to these questions: 

1. The ,effect of the oral communication between the 

jury and the court in the absence of counsel? 

2. Whether juror affidavits can be used to supply proof 

of actual events that occurred during jury deliberation? 

In view of the fact this defendant was tried three times 

before conviction and defense counsel raised the issues we are 

about to discuss at the second and third trials, this Court is at 

a loss to understand why, upon discovering the facts after the 

first trial, he did not apply to this Court for a writ of supervisory 

control. His failure to do so caused the expense of two needless 

trials, along with unnecessary trauma to his client. 

The oral communication between the jury and the court 

via the bailiff clearly violates section 95-1913(d), R.C.M. 1947: 

"(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 officcto 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." 

It also violates the proscription against oral jury instruction. 

State v. Beesskove, 34 Mont. 41, 85 P. 376; State v. Wakely, 43 

Mont. 427,437, 117 P. 95; State v. Asher, 63 Mont. 302,306, 206 

P. 1091; State v. Gies, 77 Mont. 62,64, 249 P. 573. 

As a general rule additional instructions to the jury 

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

reversible error. The vice of the situation here is that defendant's 

attorney was not notified nor present and had no way to protect his 
client from the jury's confusion. This is patently prejudicial. 

Had the jury convicted defendant of the charge of attempted murder 

at the first trial, the verdict would have had to be set aside 

because of reversible error, chargeable to the state. 

Can juror affidavits be used to prove what occurred 

during jury deliberations? The district court, prior to the 

second trial, held that they could not on the ground that juror 

affidavits cannot be used to impeach jury verdicts in Montana. 

This holding is error. 

In the instant case the juror affidavits were not used 

to impeach the jury verdict, because the jury did not return a 

verdict of any kind. The affidavit was used to show that because 

of outside influences on the jury during its deliberations, a verdict 

of acquittal on three of the charges was actually rendered by the 

jury but was not returned to the court due to the confusion over 

jury instructions. The state does not deny this. Justice compels 

the use of juror affidavits to prove what actually occurred. 

For the foregoing reasons, the judgment of conviction of 

attempted second degree murder is vacated. The cause is remanded 

to the district court for retrial on the remaining charge of second 

degree assault. 
Mr. Chief Justice James T. Harrison and Mr. Justice Wesley Castles 

dissenting : t 

We dissent. The order declaring a mistrial as a result 

of a deadlocked jury was made on June 29, 1973. It was not until 

December 2, 1973, that the effort to, in effect, impeach a jury 

verdict was made. 

In the transcript of proceedings taken before Judge 

Keller on December 3, 1973, Judge Keller inquired specifically 

as to Judge ~ussault's recollections; counsel had not even inquired. 

Nor was the bailiff questioned. Judge Keller carefully inquired 

and finally ruled. Judge Keller stated in part: 

"MR. SHEA: For the record, Your Honor could the 

Court state the grounds for denying the motion? 

"THE COURT: Yes. This is an effort to in 

essence impeach a verdict of a jury or virtually to 

bring out what a true verdict was, one in open Court 

before the jury announced that they cannot agree 

upon a verdict and the jury was discharged at that 

time for the reason that they could not agree upon a 

verdict and nothing further was done at that time. * ;k * The motion is denied for the reason that this 

jury has been discharged and this effort to find out 

what that jury did comes in the first instance some 

days after---the first Motion for Acquittal was filed 

some days after the jury had been discharged and with 

respect to the part that the inference that the Court 

had misinstructed the jury, that comes months after 

the jury had been discharged and in both cases well 

after the possibility for the jury to be contacted 

by other persons could have occurred. * * 

"The first motion is to instruct the Defendant 

and his counsel and as far as the Court is concerned, 

it means all parties to the Defendant and his counsel, 

not to indicate in any way that the jury previously 

impaneled in this case was at one point in the deliberations 11 to 1 for complete acquittal. +: * * In as far 

as voir diring this jury panel is concerned, they cannot 

go into what the alleged vote was of that jury. 9: * *" 

Then later the following exchange appears: 

"MR. SHEA: For the record, Your Honor, I would request 

so that all the facts may be brought out before the 

Court and I have no objection. In fact, I make the 

request that the Court inquire of both bailiffs--they 

are both here today as I understand it --- as to what 

the communications were made from the jury to them to 

the judge and back to them and back to the jury again. 

And also I would be willing to go in to ask the Court 

that presided at that time as to any recollections he 

may have of the circumstances. 
"THE COURT: Do you want me to inquire? 

"MR. SHEA: Yes sir, so a record can be made. 

"THE COURT: Now are you done with your motion and 

ready to go? 

"I am satisfied that what you are doing in this 

case, the main reason, as far as I am concerned, is 

that your Motion for Acquittal is denied, that the 

salient point, if it is salient, that comes up, comes 

up in December and this case was tried in June. Is 

that correct? 

"MR. DESCHAMPS: Yes, that is correct. 

"MR.SHEA: The last of June, yes sir, Your Honor. 

"THE COURT: And frankly I am satisfied that that is 

something that you should have ascertained right after 

this case was over and if there was any validity to 

your motion that it would have been as a result of 

diligent work on your part. The only reason that I 

say that is because I want you to be aware of what 

my feelings are, Mr. Herron. I want you to be satisfied now when I ask you, are you satisfied with the 

services rendered by your counsel, your counsel that 

is going to represent you in this case. I I 

The majority opinion states that the affidavits were not 

used to impeach a jury verdict. But clearly the Court is allowing, 

by affidavit of one juror of recollections five months later, 

the impeachment of the jury's deadlock or failure to reach a 

verdict. To do that the majority is disregarding the hearing 

transcript where Judge Keller noted that there was no record of 

any communication between the Judge, the bailiff, and the jury. 

Now, five months later, this is attempted to be shown by recollections of the jury foreman. 

We would affirm the judgment in all particulars. 

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