XO. 83-138 

XN THE S~~ COURT OF TEE STATE OF WmMA 

1984 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsWILLIAM RUSSELL SIGLER, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable John S. Eenson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Carl Englund, argued, Missoula, Montana 

For Respondent: 

Mike Greely, Attorney General, Helena, Montana 

Kim KradoIfer argued, Asst. Atty. General, Helena 

Robert L. Deschamps, 111, County Attorney, Missoula, 

Montana: Robert J. Sullivan argued, Deputy County 

Attorney, Missoula, Montana 

Submitted: April 16, 1984 

De~id.~d: Jane 4, 1984 

Filed: - 13.. 

- 

Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

William Russell Siqler appeals from a iudgment of 

conviction in the District Court, Fourth Judicial District, 

Missoula County, of the deliberate homicj-de of 19-month-old 

Paul T. Wilkinson. 

The issues we treat in this opinion are: (1.) the 

admissibility of evidence of other crimes, wrongs or acts; 

(2) the admissibility of an inflammatory photograph; and (3) 

whether the instructions defining deliberate homicide were in 

error. 

On February 23, 1982, 19-month-old Paul T. Wilkinson was 

found dead in the East Missoula trailer occupied by his 

mother, Kathleen Rachel Wilkinson and her male friend, the 

appellant William Russell Sigler. 

Missoula County authorities had responded to a late 

afternoon call that a child in the residence had stopped 

breathing. When found, the child was naked and his stomach 

was noticeably distended and hard. The child was pronounced 

dead by Missoula County deputy coroner. 

An autopsy was performed on the child and the examining 

pathologist found that the cause of death was blunt force 

trauma to the abdomen which perforated the small bowel in two 

places, causing acute inflammation of the abdomen, 

peritonitis and eventual death. The pathologist 

characterized the force causing the death as severe, and 

estimated that the injury to the child which resulted in the 

death occurred within 24 hours before his death and that most 

likely the cause of injury was a blow by a fist or a foot. 

He reiected any accidental fall as a cause because the force 
would not be sufficient and because he found a number of 

other injuries of varying ages on the body of the child. 

The other injuries found during the autopsy included 

hemorrhage around the adrenal glands; an old untreated 

fracture of the right wrist; a contusion surrounding the left 

testis; a hematoma to the head; and numerous other abrasions, 

contusions, and scars on the head, face, abdomen, hands, back 

and legs. At least one of the scars could be attributed to a 

cigarette burn. Three additional medical doctors concurred 

with the pathologist's opinion that the death could not have 

been caused accidentally. 

Evidence was introduced at trial of the past history of 

the child's care by his mother and Sigler. On the evening 

before the death, neighbors Donna Collins and Larry Strange 

had been in the trailer and were told the child was quite ill 

and vomiting that evening. Ms. Collins strongly advised that 

the child be taken to the doctor immediately. 

Strange testified that he visited the trailer almost 

every day, that he usually observed the child to be sitting 

in his highchair or his potty chair and that the child would 

get quite tense when Sigler approached him. Strange saw 

Sigl-er give the child hard spankings, and once saw him pick 

the child up by the hand while he was heing spanked. He 

stated that the child had been spanked for merely crying. He 

had seen cigarette burns on the child's hand and had seen a 

bruise underneath his left eye ten days to two weeks prior to 

the death. He saw Sigler once "whop" the child on the 

forehead when he would not eat. He heard the child vomiting 

about every 20 minutes to a half hour from 6:00 p.m. to 10:OO 

p.m. on the evening before the death. 
Tim Keatron, the 16-year-old son of Donna Collins 

testified he was in the trailer home about three to four 

times a v~eek. He had seen Sigler pick the child up by his 

arm and spank him and testified that the defendant hit the 

child hard for the child's size. Two days before the death, 

he had seen Sigler slap the child on the face so hard that it 

caused his head to nearly touch his shoulder and blood to 

come from his nose. The reason for that discipline was that 

the child would not eat his cereal. Keatron also had seen 

the defendant kick the child during the same period. 

The mother testified that she had surrendered the 

discipline of the child to Sigler. None of the witnesses who 

testified saw the child's mother discipline the child in the 

manner exhibited by Sigler. 

The defendant did not testify, but he had made 

statements to law officers during the early investigation of 

the incident. In the statements, he hypothesized that the 

child had been hurt by falling on a footlocker or on a large 

plastic dump truck. He further told the officers that on the 

morning of the death, the child appeared to be feeling 

better, that he had been fed, and that he was blabbering and 

talking to himself up to ten minutes before he was found not 

to be breathing. The medical witnesses discounted the 

possibility that this last testimony was correct. 

The child's mother, Kathleen Wil-kinson, a codefendant in 

the original action had entered into a plea bargain with the 

State in connection with her testimony. She testified that 

the child was healthy until the day before the death. She 

had gone to the trailer of Donna Collins at about 3:30 p.m., 

and at about 5:30 p.m. Sigl-er had appeared and ordered her to 

return to the home. She was told by Sigler that the child 
had fallen out of bed. She examined the child, and found him 

acting sluggish and tired.. The child vomited during the 

evening and refused to eat. She denied ever striking the 

child in the abdomen or fa.ce hard enough to leave a bruise. 

The jury found Sigler guilty of deli-berate homicide. 

This appeal ensued. 

Sigler attacks the testimony of witnesses relating to 

other crimes, wrongs or acts by him toward the child on the 

grounds that the elements required in State v. Just (1979) , 

184 Mont. 262, 602 P.2d 957, and State v. Jensen (19691, 153 

Mont. 233, 455 P.2d 631 were not met; that the acts of Sigler 

as testified to by the witnesses indicated only that Sigler 

spanked the child, slapped his hands, or flipped the child's 

head with his finger, none of which would have caused his 

death, and so are dissimilar to the acts which brought about 

the death of the child; and that the acts were no more than 

normal disciplinary procedures and were not "unusual and 

distinctive" so as to qualify for wrongful. acts or crimes 

under State v. Hansen (Mont. 1980), 608 P.2d 1083, 37 St.Rep. 

657. 

The State replies that the evidence meets the guidelines 

imposed in Just, supra; that the evidence of prior acts of 

discipline are a pa.rt of the entire corpus d.elicti of the 

charged offense, citing State v. Riley (Mont. 1982), 649 P.2d 

1-273, 39 St.Rep. 1491; and that when a battered child is the 

victim, the pattern of conduct exhibited by the 

defendant-caretaker toward the child victim is within the 

scope of the issues before the court. State v. Tanner (Utah 

1983), 675 P.2d 539. 
The contention that the acts of discipline reported by 

the neighbor witnesses used by Sigler on the child are 

dissimilar to the kind of force required to bring about the 

child's death is not supportable. The mother testified that 

Sigler was the sole disciplinarian of the child. Under the 

evidence, his response to any perceived need for disciplining 

the child was always intemperate, and slipped into gear on 

the slightest provocation. His trea-tment of a 19-month-old 

infant was brutal, heedless and unfeeling. FJe cannot agree 

that his treatment constituted "normal" discipline. 

In Just, we set out a four-element test to determine the 

admissibility of evidence of other crimes or acts in criminal 

prosecutions. They are (1) similarity of crimes or acts; (2) 

nearness in time; (3) tendency to establish a common scheme, 

plan or system; and, (4) the probative value of the evidence 

must not be substantially outweighed by the prejudice to the 

defendant. 

The testimony of the witnesses here meets the Just 

elements in each particular, and in addition, meets our 

statement in State v. Brubaker (1979), 184 Mont. 294, 307, 

602 P.2d 974, 981, relating to evidence of other crimes or 

acts: 

"For evidence of unrelated crimes to be admissible, 

as an exception to the general rule, it must appear 

that the evidence of the other crimes tends to 

establish a common scheme, plan, system, design or 

course of conduct similar t.o or closely connected. 

with the one charged and not too remote; and the 

evidence must tend to establish crimes so related 

that proof of one tends to establish the other. 

Within those words must be found the paste and 

cover for the admissibility of the unrelated acts 11 ... 

The District Court here had a situation where only 

circumstantial evidence could bring out the case against the 

defendant. There were many reasons for a. jury to distrust 
the defendant's statement of the incident. We stated in 

Brubaker, that evidence of other crimes or acts should not be 

admitted if it leads the jury to surmise that the defendant 

was probably guilty of the offense. But when evidence of 

unrelated acts tends toward the conclusion that the defendant 

is guilty of the crime charged with moral certainty and 

beyond a reasonable doubt, it is certainly admissible. 

Brubaker, supra. In Tanner, supra, the Utah court pointed 

out that the only avail-able link between the specific nature 

of the child's injuries and the caretaker may be the evidence 

of prior abusive conduct by the caretaker. 

Evidence of other crimes, wrongs or a.cts is an exception 

to the general rule that evidence of a person's character is 

not admissible for the purpose of proving that he acted. in 

conformity therewith on a particular occasion. Ru1.e 404, 

M.R.Evid.. A trait of character is to be distinguished from 

habit. "A habit is a person's regular response to a repeated 

specific situation. I' Rule 406, M. R.Evid. Habit or routine 

practice may be proved by testimony in the form of an opinion 

or by specific instances of conduct sufficient in number to 

warrant a finding that the habit existed or that the practice 

was routine. 

"Character may be thought of as the sum of one's 

habits though doubtless it is more than this. But 

unquestionably the uniformity of one's response to 

habit is far greater than the consistency with 

which one's cond.uct conforms to character or 

disposition. Even though character comes in only 

exceptionally as evidence of an a-ct, surely any 

sensible man in investigating whether X did a 

particula-r act would be greatly helped in his 

inquiry by evidence as to whether he was in the 

habit of doing it." McCormick on Evidence § 162, 

at 341. 

Under Rule 406, M.R.Evid., the acts habitually performed 

by Sigler in response to his perceived need for discipline of 
the child were admissible. As a matter of habit, his 

discipline of the child was excessively harsh. 

We find no error in the admission of the disciplinary 

acts administered by Sigler to the child. 

The second principal assignment of error by Sigler is 

that the District Court abused its discretion in receiving 

the photograph identified a.s Sta.tels exhibit 18FF into 

evidence. 

The pathologist, on autopsy, discovered a subdural 

hematoma beneath the child's scalp. The pathologist took a 

photograph, the only photograph taken of that particular 

injury. The scalp was reflected or drawn back in order to 

show the injury because of the victim's long hair. Before 

allowing it into evidence, as the District Court required, 

the pathologist blocked portions of the slide pictures so 

that only the injury was shown. 

Siqler contends that the exhibit was highly prejudicial 

and inflammatory and did not depict how the child would 

appear to another person. In effect, he is claiming that the 

prejudicial effect of the photograph outweighed its probative 

value. 

Many of the photographs of the autopsy discoveries were 

admitted without objection. The subdural hematoma was 

another of the injuries that the child had received, the 

source of which was unexplained by his principal ca-retaker, 

Sigler. We hold that where the purpose of a photographic 

exhibit is to assist the jury in understanding the case, it 

is admissible, even though its effect may be prejudicial or 

inflammatory, if its probative value outweighs its 

prejudicial effect. See State v. Hoffman (1982), 196 Mont. 
268, 272, 639 P.2d 507, 510; State v. Buckley (1976), 171 

Mont. 238, 245, 557 P.2d 283, 286-287; State v. O'Donnell 

(1972), 159 Mont. 138, 142, 496 P. 2d 299, 301-302. In this 

case we hold that the District Court did not abuse its 

discretion in admitting the photograph into evidence; that 

its probative value was more important than any prejudicial 

or inflammatory effect because the jury was entitled to know 

the nature and extent of the injuries suffered by the child 

and no other method would have shown it as graphically or as 

well. This Court has been consistent in holding similarly 

with respect to photographs. State v. Austad (1982), 197 

Mont. 70, 82, 641 P.2d 1373, 1-380; State v. McKenzie (1980), 

186 Mont. 481, 505-506, 608 P.2d 428, 443-444, cert.den. 449 

U.S. 1050 (1980); State v. Fitzpatrick (1973), 163 Mont. 220, 

228-229, 516 P.2d 605, 610-611. 

111. 

Sigler's final argument is that the District Court 

failed properly to instruct the jury considering the 

definition of the mental state "purposely." He contends that 

the statutory definition of purposely, coupled with the 

statutory definition of deliberate homicide confused the 

jury. Sigler asserts that under the instructions, the jury 

could convict if it found that he purposely engaged in the 

conduct of striking the child and that the jury did not need 

to find under the instructions that he intended the result, 

that is the death, or that he purposely caused the result, 

the death. He supports this contention with affidavits 

signed by several jurors after trial and filed with his 

motion for a new trial before the District Court. 

In resolving this issue, we pay no attention to the 

affidavits of the jurors signed post-trial. They may not be 
considered since they do not fit within the exceptions 

provided in Rule 606(b), M.R.Evid., nor within the purview of 

section 25-11-102 (2) , MCA. 

The defendant made no objection to the instructi-ons when 

they were offered during the trial. He would ordinarily be 

barred from raising his objections n.ow before this Court. 

If, however, the District Court had erred in th.e vital 

definition of "purposely" in this case, we would have to 

reverse, even without objection raised by counsel at trial, 

on the grounds of plain error. Therefore, qiving Sigler the 

benefit of every doubt, we proceed to consider the issue 

raised by him with respect to these instructions. 

The court charged. the jury as to the elements of the 

crime in its instruction no. 15: 

"To sustain the charge of deliberate homicide, the 

State must prove the following propositions: 

"First, that the defendant performed the a.cts 

causing the death of Paul T. Wilkinson, Jr. 

'"econd, that when the defenda.nt did so, lie acted 

purposely or knowingly . . ." 

The court a.lso ga.ve these instructions defining 

np~rp~~ely,n "knowingly," and "deliberate homicide:" 

"Instruction -- No. 12. A person acts purposely with 

respect to a result or to conduct described by 

statute defining an offense if it is his conscious 

object to engage in that conduct or to cause that 

result. 

"Instruction -- No. 1-3. A person acts knowingly with 

respect to conduct when he is aware of his conduct. 

"A person acts knowingly with respect to the result 

of conduct d.escribed by a statute defining an 

offense when he is aware that it is highly probable 

that such result will be caused by his conduct. 

"Instruction -- No. 14. A person commits the offense 

of deliberate homicide if he purposely or knowingly 

causes the death of another human being." 
We need always to remind ourselves that in Montana, 

crimes against the State are defined by statutes. in those 

statutes we will generally find the provisions that frame the 

rights of the State to prosecute its defined crimes and that 

preserve the rights of the defendant to be convicted only of 

statutorily-defined crimes upon proof beyond a reasonable 

doubt. 

In Montana, a person commits a criminal homicide if he 

voluntarily causes the death of another human being, 

purposely, knowingly or negligently. Sections 45-5-101 and 

45-2-202, MCA. "Purposely" and "knowingly" have replaced the 

concepts of malice and intent known to our former law. 

Sections 45-2-101 (33) and (58) , MCA. In short, the voluntary 

act of a person, if not justifiable (Title 45, Ch. 3, MCA), 

knowingly, purposely, or negligently done is criminal 

homicide if it causes the death of another human being. 

Section 45-5-101. 

In a criminal homicide prosecution, therefore, the State 

must prove and the jury must find beyond a reasonable doubt 

that the voluntary and unjustified act of the defendant, 

purposely, knowingly or negligently caused the death of the 

victim. Proof of cause is a primary duty of the State, and a 

necessary element to be found by the jury for a proper 

conviction in a criminal homicide case. 

Montana law defines what constitutes a causal 

relationship between conduct and result. Section 45-2-201, 

MCA. Conduct is the cause of a result, a.s applicable to this 

case, if (a) without the conduct the result would not have 

occurred; and, (b) if the result was not within the 

contemplation or purpose of the offender, but the same kind 

of harm or injury was contemplated by him though the precise 
harm or injury was different or occurred in a different way. 

Section 45-2-201, MCA. 

Applying section 45-2-20]. to this case, the proof is 

beyond. any doubt that the conduct which brought about the 

perforations to the child's bowels caused the death of the 

child, and that without such conduct, the death would not 

have occurred. In addition, the result involves the same 

kind of harm or injury as contemplated by the conduct even 

though the precise ha.rm, the death, was different or occurred 

in a different way. In other words, if Sigler voluntarily, 

as the jury found, punched with his fist or kicked with his 

foot the stomach of the child, even though he may not have 

intended tha.t death result from the act, he contemplated "the 

same kind of harm or injury" to the child, that is, harm or 

injury to the abdominal. area of the child. 

Moreover, there are two ways in which a person can act 

"purposely" with respect to a result or conduct described by 

the statute defining an offense. Section 45-2-101 (58) , MCA. 

He acts purposely if it is his conscious object (1) to engage 

in that conduct, or (2) to cause that result. Either 

proposition will sustain the finding of the jury that the 

\ 

defendant acted purposely. Section 45-2-101(58), MCA. 

In this case, there is no claim by the defendant of 

justification, mitigation or excuse. In his statements he 

did not admit that he performed any act or acts which brought 

about the death of the child. 

In the same way, our statutory definition of "knowingly" 

cuts two ways. Applied here, Sigler acted knowj-ngly with 

respect to his conduct if he was aware of his cond-uct. He 

acted knowingly with respect to the result of his conduct if 
he was aware that it was highly probable that such a result 

would be caused by his conduct. Section 45-2-101(33), MCA. 

It is therefore true that under the instructions given 

in this case, and under the statutes defining crimes, the 

State is not required to prove the specific intent of the 

defendant to cause the death of the child. We have said: 

"We do not agree with Starr, however, on his 

contention that it was the duty of the State to 

prove Starr's specific intent to transfer a 

danqerous substance then or at a subsequent time. 

since Montana revamped its criminal statutes in 

1973 by adopting in essence the Model Penal Code, 

specific intent is not an elementa.1 concept, unless 

the statute defining the offense requires as an 

element thereof z specific purpose . II 

(Emphasis in original.) State v. Starr (Mont. 

1983), 664 P.2d 893, 897, 40 St.Rep. 796, 801. 

A few examples of the effect of deletion of specific 

intent from our statutory scheme will demonstrate the point: 

proof beyond a reasonable doubt that a defendant consciously 

shot another with a gun where no circumstances of mitigation, 

excuse or justification appear, and the other died from the 

gunshot, will suffice to convict the defendant of deliberate 

homicide, without proof that death was the intended result by 

the defendant; proof beyond a reasonable doubt that a 

defendant consciously decided to drive his automobile against 

the person of a pedestrian where no circumstances of 

mitiga.tion, excuse or justification appear, and the 

pedestrian died of the collision with his person, will 

suffice to convict the defendant of deliberate homicide, 

without proof that the death of the pedestrian was the 

intended result of the defendant. 

Our criminal law proscribes purposely doing an act which 

causes the death of another; it also proscribes doing an act 

with the conscious object of causing the death of another. 

In the former, death may not be the intended result, but if 
the act which causes the death is done purposely, deliberate 

homicide is committed. In the latter, death is the intended 

result, and any act of the defendant which leads to that 

intended result is deliberate homicide. 

In this case, as we have said, there are no issues of 

mitigation, justification or excuse. The circumstantial 

evidence here is strong enough to sustain the finding by the 

jury that the defendant purposely engaged in conduct which 

resulted in the death of the child. The instructions given 

to the jury required no more and no less for the prosecution 

to prove in this case. Therefore, the instructions given 

properly reflected the applicab1.e law. We find no error in 

the instructions given. 

IV. 

The judgment of conviction of William Russell Sigler for 

deliberate homicide is affirmed. 

We Concur: 

~4cebR,gd Chief Justice &&q 

Justices 

Mr. Jus-tice ~aniel J. Shea and Mr. Justice Frank B. Morrison, 

Jr.., dissent and will file written dissents later. 
NO. 83-138 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1984 

STATE OF MONTANA, 

VS. 

WILLIAM RUSSELL SIGLER, 

Defendant and Appellant. 

Dissent of Mr. Justice Frank B. Morrison, Jr. 

~ajority Opinion handed down: June 4, 1984 

Dissent filed: LIL,!!~ - 1984 

Clerk 
Mr. Justice Frank B. Morrison, Jr. respectfully dissents 

as follows: 

Instruction No. 14 stated the elements of deliberate 

homicide. The trial court said: 

"A person commits the offense of deliberate 

homicide if he purposely or knowingly causes the 

death of another human being." 

This instruction is an accurate paraphrase of the elements of 

deliberate homicide found in sections 45-5-101 and 45-5-102, 

MCA . An essential element of the offense is that the 

defendant purposely or knowingly caused the death of another. 

Trial court's instruction No. 15 was clearly erroneous. 

That instruction said: 

"To sustain the charge of deliberate homicide, the 

State must prove the following propositions: 

"First, that the defendant performed the acts 

causing the death of Paul T. Wilkinson, Jr. 

"Second, that when the defendant did so, he 

acted purposely or knowingly." 

The court failed to instruct the jury that they must 

find the defendant acted with knowledge or purpose in causinq 

the death as required by section 45-5-101 and 45-5-102, MCA. 

The trial court told the jury to convict d.efendant if the 

jury found that defendant acted with purpose or knowledge in 

performing the acts which resulted in death, irrespective of 

whether defendant purposely or knowingly caused the death. 

Under the court's instruction No. 15 the jury was required to 

convict the defendant of deliberate homicide even though they 

might find the victim's death was accidental. 

The majority was unable to reconcile instruction No. 15 

with the statutory definition of deliberate homicide and so, 

to achieve the desired result, simply amended the statute. 

The majority states: 

"Our criminal law proscribes purposely doing an act 

which causes the death of another; it also 

proscribes doing an act with the conscious object 

of causing the death of another. In the former, 
death may not be the intended result, but if the 

act which caused the death is done purposely, 

deliberate homicide is committed. * * *" 

By judicial fiat, the law in Montana is that a defendant 

who acts with purpose and accidentally causes the death of 

another, is guilty of deliberate homicide. In other words, 

if one strikes another on the jaw with his fist, and the one 

struck falls to the ground striking his head upon the 

curbing, and death ensues, the offense is deliberate 

homicide. 

This case perfectly illustrates the evil inherent in 

result-oriented decision making. Defend.ant Siglerls conduct 

may well have resulted in the death of an infant child. If 

believed, the State's case leaves little room for sympathy 

for Sigler. These inflamatory factual settings provide the 

genesis for irra.tiona1 and unworkable legal principles. 

I would reverse and remand for a new trial for the 

reason that court's instruction No. 15 failed to include an 

essential element of the crime of deliberate homicide. 
DISSENT OF MR. JUSTICE DANIEL J. SHEA 

No. 83-138 

State of Montana 

VS . William Russell Sigler. 
Mr. Justice Daniel J. Shea dissenting: 

I agree with the dissent of Mr. Justice Morrison in that 

I also believe that jury instruction no. 15 misstates Montana 

law and constitutes reversible error. The erroneous 

instruction, could easily mislead a jury into thinking that 

as long as the acts which resulted in death were performed 

purposely or knowingly, a conviction for deliberate homicide 

could be sustained, whether or not the defendant purposely or 

knowingly caused the death. At the very least instruction 

no. 15 is ambiguous and subject to more tha.n one 

interpretation. 

I would hold that jury instruction no. 15 fails to 

include the necessary causal element of deliberate homicide, 

and therefore this case should be remanded for a new trial. 
IN THE SUPREME COURT OF THE STATF OF MONTANA 

STATE OF MONTANA, C 

Plaintiff and Respondent, 

VS. ! 

WILLIMI RI?SSELL SIGLER, 

Defendant and Appellant. &LB/ OF 'i + SaPvFz:.$: . - 9 ;.-$3ora~' COLIR% . STATE w,irt4lAFdA 

ORDER AND OPINION ON PETITION FOR REHEARING 

In his petition for rehearing Sj-gler takes issue with 

this language in our opinion: 

"Our criminal law proscribes purposely doing an act 

which causes the death of a-nother; i.t also 

proscribes doing an act with a conscious object of 

causing the death of another. In the former, death 

may not be the intended result, hut if the act 

which causes the death is done purposely, 

deliberate homicide is commit-ted." 

Sigler contends that the above language "broadens the 

definition of a most serious crime," and eliminates the crime 

of negligent homicide. The State agrees with this 

assessment. The Attorney General has thus conceded the major 

premise of the minority opinion filed with the original in 

this case. A concession of such broad. dimensions does not 

wring from the Attorney General an admission that Sigler is 

entitled to a new trial however. Instead the State continues 

to contend that the jury in the Sigler case was "adequately 

instructed." Yet if under the original opinion in this case, 

Sigler could have been convicted of deliberate homicide for 

an accidental killing of the child, he would, indeed, as the 

minority contended, be entitled to a new trial. 
We reject the contention that our original opinion in 

this case has eliminated the crime of negligent homicide or 

broadened the cri.me of deliberate homicide. To show why, we 

must again discuss the effect of the adoption of the Yodel 

Penal Code in our criminal statutes in 1973. 

To begin with, specific intent is not an elemental 

concept of a crine under the present criminal code unless the 

statute defining the offense requires as an element thereof a 

specific purpose. State v. Starr (Mont. 19831, 664 P.2d 893, 

897, 40 St.Rep. 796, 801. The State j.n this case was not 

required to prove a specific intent on the part of Sigler to 

kill the child when he kicked his stomach. 

In State v. Gratzer (Mont. 1984), 682 P.2d 141, 145, 41 

St.Rep. 727, 731, we said: 

"The effect of the adoption of the 1973 Criminal 

Code in Montana was to change radically our legal 

concepts for proof of homicide. Formerly, the 

presumption of proof of a killing was that the 

lesser crj-me had been committed, and the State had 

the duty of going forward with the evidence beyond 

a reasonable doubt that the greater had been 

committed. Now, the legal effect of proof of a 

killing i.s that the greater crime has been 

committed, that of deliberate homicide, unless the 

evidence shows mitigation, excuse, or justification . . ." 682 P.2d, at 145. 

In this case, the Sigler jury was instructed that the 

homicide was deliberate if a death of a human being was 

caused, purposely or knowingly. The jury was al-so instructed 

that a person acts purpose1.y with respect to a result or to 

conduct constituting crime, is his conscious object 

- to engage in the conduct or to cause that result. Section 

45-2-101(58), YCA. The court also instructed the Sigler jury 

on the meaning of "knowingly" which is important here. The 

jury was told that a person acts knowingly with respect to 

conduct when he is aware of his conduct, and that he ~cts 
1 

The majority opinion therefore does not abol-ish the 

crime of negligent homicide. Rather it emphasizes the 

statutory elements of the crime which the jury found in this 

case. It should he clear, following our original Sigler 

opinion, that deliberate homicide is committed when a person 

purposely or knowingly causes the death of another .human 

being; and that the word "causes" in the statutory definition 

of deliberate homicide must be read i.n conjunction with 

section 45-2-201, MCA, which describes what constitutes a 

causal relationship between the conduct and the result. The 

original opinion states again what had been stated in 

Coleman, supra, that a person acts knowingly when there is 

proof beyond a reasonable doubt that he is aware of the high 

probability of the result of his conduct. Final-ly, there is 

a causal relationship though the result is not within the 

contemplation of or purpose of the defendant, where the same 

kind of harm or injury is contemplated by him though the 

precise harm or injury is different or occurred in a 

different way. 

Negligent homicide under our statute does not include 

the mental states of "purposely" or "knowing1.y." Section 

45-5-104, MCA. A homicide is committed negligently when the 

person acts negligently with respect to a result or 

consciously disregards a risk that the result will occur, or 

when he disregards a risk of which he should be aware that 

the result will occur. Section 45-2-101 (37), MCA. The 

person's negligence must be such that to disregard the risk 

involves a gross deviation from the standard of conduct that 

a reasonable person would observe in the actor's situation. 

Section 45-2-101(37). 
It is the presence of purposeful or knowing action, as 

define?, by our statutes, that distinguishes deliberate or 

mitigated homicide from negligent homicide. 

IT IS ORDERED: 

Accordingly, we deny the petition for rehearing and 

modify the paragraph to which exception was taken by the 

defendant and the State to insert the worc! "knowingly" as 

"Our criminal law proscribes purposely doing an act 

which causes death of another; it also proscribes 

doing an act with the conscious object of causing a 

death of another. In the former, death may not be 

the intended result, but if the act which causes 

the death is done pu;posely or knowinq1.1 deliberate 

homicide is committed. In the latter, death is the 

intended result and any act of the defendant which 

leads to that intended result is deliberate 

homicide." 

We Concur: 

C 

a,&9,4&&& 

Chief Juztice \ 

Justices 

Mr. Justice Daniel J. Shea and Mr. Justice Frank B. Morrison, Jr., 

would grant a rehearing.