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 JudicialDistrict, In and for theCounty 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 KimKradoIfer 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..

- ClerkMr. 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-deof 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 deliberatehomicidewere in

error. On February 23, 1982, 19-month-old PaulT. Wilkinsonwas 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 abdomenwhich 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 24hours beforehis death and thatmost likely the cause of injury was a blow by a fist or a foot. He reiected any accidental fall as a cause because the forcewould 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 fractureof therightwrist; a contusion surrounding the left testis; a hematoma tothehead; and numerous other abrasions, contusions, and scarson thehead, face, abdomen, hands, back and legs. Atleastone of the scars couldbe attributedtoa cigarette burn. Three additional medical doctors concurred with the pathologist's opinion that the death could not have been caused accidentally. Evidence was introduced attrialof 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 inthetrailerand were told the childwas quite ill and vomiting thatevening. Ms. Collins stronglyadvised that the childbe taken tothe doctor immediately. Strange testified that he visited the trailer almost every day, that he usually observed the child tobe sitting inhishighchair orhispotty chair and that the childwould 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 statedthatthe childhad been spanked formerely crying. He had seen cigarette burns on the child's hand and had seen a bruiseunderneath his lefteye tendays totwo weeks prior to the death. He saw Sigler once "whop" the child on the forehead when he would not eat. He heard the childvomiting about every 20 minutes toa half hour from 6:00 p.m. to 10:OO p.m. on the eveningbefore thedeath.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 disciplinewas that the child would not eat his cereal. Keatron also had seen the defendant kick the child during the sameperiod. The mother testified that she had surrendered the disciplineof the child to Sigler. None of thewitnesseswho testified saw the child'smother 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 investigationof 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, thathe 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 testimonywas 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-erhad appeared and ordered her to return to the home. She was told by Sigler that the childhad fallenoutof 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 actsby him toward the child on the grounds that the elements required in Statev. Just (1979)

## , 184 Mont. 262, 602 P.2d 957, and Statev. Jensen (19691, 153 Mont. 233, 455 P.2d 631were notmet; thattheactsof Sigler

as testified toby 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 aredissimilar tothe actswhich brought about the death of the child; and that the actswere no more than normal disciplinary procedures and were not "unusual and distinctive" so as to qualify for wrongful. acts or crimes under Statev. Hansen (Mont. 1980), 608 P.2d 1083, 37 St.Rep. 657. The State replies thatthe 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, citingStatev. Riley (Mont. 1982), 649 P.2d 1-273, 39 St.Rep. 1491; and thatwhen a battered child isthe victim, the pattern of conduct exhibited by the defendant-caretaker toward the child victim is within the scope of the issues before the court. Statev. 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. Themother 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-tmentof a 19-month-old infant was brutal, heedless and unfeeling. FJe cannot agree that his treatment constituted "normal" discipline. InJust,we setouta four-elementtest to determine the admissibilityof evidence of other crimes or acts in criminal prosecutions. They are (1) similarityof crimesor 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 ofunrelated crimes to be admissible, as an exception to the general rule, itmust 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 distrustthe defendant's statement of the incident. We stated in Brubaker,that evidence of other crimes or acts should notbe 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 caretakermay be the evidence ofprior abusive conductby the caretaker. Evidence of other crimes,wrongs or a.ctsis 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.e404, M.R.Evid.. A trait of character is to be distinguished from habit. "Ahabit is aperson's regular response to a repeated specific situation.I' Rule 406,M.R.Evid. Habit or routine practicemay be proved by testimony in the formof 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. "Charactermay be thought of as the sum of one's habits though doubtless it ismore 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 habituallyperformed by Sigler in response to hisperceived need for discipline ofthe child were admissible. As a matter of habit, his discipline of the childwas excessivelyharsh. We find no error in the admission of the disciplinary actsadministered 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.telsexhibit 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 injurywas shown. Siqler contends that the exhibit was highly prejudicial and inflammatory and did not depict how the child would appear to anotherperson. In effect,he is claiming that the prejudicial effect of the photograph outweighed itsprobative 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), 159Mont. 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); Statev. 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 themental 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 DistrictCourt. In resolving this issue, we pay no attention to the affidavits of the jurors signed post-trial. They may not beconsidered since they do not fit within the exceptions provided inRule 606(b), M.R.Evid., norwithin thepurview of section 25-11-102(2)

## ,MCA. Thedefendant made no objection to the instructi-ons when they were offered during the trial. He would ordinarily be barred from raising his objections n.owbefore this Court. If, however, the District Court had erred in th.evital 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 himwith respect to these instructions. The court charged.the jury as to the elements of the crime in its instructionno. 15: "To sustain the charge of deliberatehomicide, the State must prove the followingpropositions: "First, that the defendant performed the a.cts causing the death of PaulT. Wilkinson,Jr. '"econd, that when the defenda.ntdid so, lie acted purposely or knowingly

# ..." The court a.lso ga.ve these instructions defining np~rp~~ely,n "knowingly," and "deliberatehomicide:" "Instruction 

### -- No. 12. A person actspurposely 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 knowinglywith respect to conductwhen he is aware of his conduct. "Aperson acts knowingly with respect to the result of conduct d.escribed by a statute defining an offense when he is aware that it ishighlyprobable 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 anotherhuman being."We need always to remind ourselves that in Montana, crimes against the State are defined by statutes. in those statuteswewill 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,thevoluntary 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 aprimary duty of the State,and a necessary element to be found by the jury for a proper conviction in a criminalhomicide 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.sapplicable 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 injurywas contemplatedby him though the preciseharm or injurywas 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 theprecise ha.rm,the death,wasdifferent 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.tdeath 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 conductdescribed by the statute defining an offense. Section 45-2-101(58)

## ,MCA. He actspurposely if it ishis consciousobject (1)to engage in that conduct, or (2) to cause that result. Either proposition will sustain the finding of the jury that the \ defendantacted 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 thathe performed any act or actswhich brought about the death of the child. In the sameway, our statutorydefinition of "knowingly" cuts two ways. Applied here, Sigler acted knowj-nglywith respect to his conduct if he was aware of his cond-uct. He acted knowingly with respect to the result of his conduct ifhe 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 isnot an elementa.1concept,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 schemewill demonstrate the point: proof beyond a reasonable doubt that a defendant consciously shotanotherwith a gunwhere no circumstancesofmitigation,

excuse or justification appear, and the other died from the gunshot,will suffice to convict the defendant of deliberate homicide, withoutproof thatdeathwas the intended resultby the defendant; proof beyond a reasonable doubt that a defendant consciouslydecided todrivehis 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 resultof the defendant. Our criminal law proscribespurposely 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 ifthe act which causes the death is donepurposely, deliberate homicide is committed. In the latter,death is the intended result, and any act of the defendant which leads to that intended result isdeliberatehomicide. 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 findingby 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 instructionsgiven. IV. The judgment of convictionofWilliam Russell Sigler for deliberatehomicide is affirmed.

We Concur: 

# ~4cebR,gd

# &&q
Chief Justice

Justices

Mr. Jus-tice~aniel J. Shea and Mr. Justice Frank B. Morrison, Jr..,dissent andwill file written dissents later.NO. 83-138 INTHE SUPREME COURT OF THE STATE OF MONTANA 1984

STATE OF MONTANA,

VS.

WILLIAM RUSSELL SIGLER, Defendant and Appellant.

Dissentof Mr. JusticeFrankB. Morrison, Jr.

~ajority Opinionhanded down: June 4, 1984

Dissent filed: 

### LIL,!!~ 

## - 1984

ClerkMr. JusticeFrank 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 humanbeing." This instruction isan accurateparaphrase 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 defendantpurposely or knowinglycaused the death of another. Trial court's instructionNo. 15 was clearly erroneous. That instruction said: "To sustain the charge of deliberate homicide, the Statemust prove the following propositions: "First, that the defendantperformed the acts causing the death of Paul T. Wilkinson, Jr. "Second, that when the defendant did so, he acted purposely orknowingly." The court failed to instruct the jury that they must find the defendantactedwith knowledgeorpurpose 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.efendantif the jury found that defendant acted with purpose or knowledge in performing the acts which resulted in death, irrespectiveof whether defendant purposely or knowingly caused the death. Under the court's instructionNo. 15 the jurywas required to convict thedefendant ofdeliberate homicide even though they might find the victim's deathwas accidental. The majority was unable to reconcile instructionNo. 15 with the statutory definition of deliberatehomicide and so, to achieve the desired result, simply amended the statute. Themajority 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, deliberatehomicide 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.antSiglerlsconduct 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.tiona1and unworkable legalprinciples. I would reverse and remand for a new trial for the reason that court's instructionNo. 15 failed to include an essentialelement of the crime ofdeliberatehomicide.DISSENT OF MR. JUSTICE DANIEL J. SHEA No. 83-138

State of Montana

VS

# . William Russell Sigler.Mr. JusticeDaniel J. Shea dissenting:

I agreewith the dissent of Mr. JusticeMorrison in that Ialso believe that jury instructionno. 15misstates 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 deliberatehomicide could be sustained, whether ornot the defendantpurposely 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 deliberatehomicide, and therefore this case should be remanded for a new trial.INTHE SUPREMECOURTOF THE STATF OF MONTANA

STATEOF MONTANA,

C Plaintiffand Respondent,

VS. ! WILLIMIRI?SSELLSIGLER, Defendantand Appellant. 

# &LB/ 'i

+

# . - 9;.-$3ora~' OFSaPvFz:.$: COLIR% . STATE w,irt4lAFdA

ORDERAND OPINION ON PETITION FOR REHEARING

In his petition for rehearing Sj-glertakes issue with this language in our opinion: "Our criminal lawproscribes 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 ofanother. 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 amost serious crime,"and eliminates the crime of negligent homicide. The State agrees with this assessment. TheAttorney 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 casewas "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.meof deliberatehomicide. To showwhy, 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 conceptof a crineunder thepresent criminal code unless the statute defining the offense requiresas an element thereof a specificpurpose. Statev. 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 childwhen he kickedhis 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-mehad been committed, and the State had the duty of going forwardwith the evidencebeyond 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



# . .

# ." 682P.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 jurywas al-soinstructed that a person acts purpose1.ywith 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 courtalso instructed the Sigler jury on the meaning of "knowingly" which is importanthere. The jury was told that a person acts knowingly with respect to conduct when he is aware of his conduct, and that he ~cts1 The majority opinion therefore does not abol-ish the crime of negligent homicide. Rather it emphasizes the statutory elements of the crimewhich 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 theword "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 differentway. 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 resultwill 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 negligenthomicide. 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 lawproscribes purposely doing an act which causes death of another; it also proscribes doing an actwith the conscious object of causinga death of another. In the former,death may not be the intended result, but if the act which causes the death isdonepu;posely or knowinq1.1deliberate homicide is committed. In the latter,death is the intended result and any act of the defendantwhich 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.