### No. 13296 IN THE SUPREME COURT OF THE STATE OF YONTANA 1978

THE STATE OF MONTANA, Plaintiff and Respondent,

-vsDEWEY EUGENE COLEMAN, Defendant and Appellant.

Appeal from: District Court of the Sixteenth Judicial District, Honorable A. 

### B. Martin, Judge presiding. Counsel of Record: For Appellant: Moses, Tolliver and Wright, Billings,Montana Charles F. 

### Moses argued, Billings, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana John Forsythe argued, County Attorney, Forsyth,Montana Lee Overfelt, Billings,Montana

Submitted: March 1, 1978 Decided:

## APR

## 2

## 6 1978 Filed: 

### \Pi? 

## 2c 

## 1978Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court.

Defendant appeals from the finaljudgment of the 

### ~istrict Court, Rosebud County, following a jury trial. Defendant was convicted of deliberate homicide, aggravated kidnapping, and sexual intercourse without consent, inflicting bodily injury. On July 

### 4, 1974, Peggy Lee Harstad, 21 years of age, disappeared while driving alone from Harlowton toRosebud, Montana. Shewas lastseen alivearound 9:00 p.m. that night atMelstone, Montana. On July 

### 5, 1974, her carwas found within a few

### miles of her home, near Rosebud. On July 7, 1974, a ranch hand discovered a purse and other articles belonging toPeggy Lee Harstad inside a culvert approximately ten

### miles

### westof her abandoned car. In the developing investigation, an elderly couple informed the sheriff of Rosebud County that they had seen a black man and a whiteman hitchhiking on July 4 between Roundup and Forsyth, Montana atabout the 

### timeof day Peggy Lee Harstad was drivingbetween those towns. Subsequently, these two men 

### were identified as the defendant, Dewey Eugene Coleman, a black man, and Robert Dennis Nank, a white man. On July 9, 1974, representatives of the Rosebud County sheriff's officewent to theVeteran's ~dministration Hospital inSheridan, Wyoming, where these men 

### were, to question them. Defendant and Nank admitted being inthe area of Peggy Lee Harstad's disappearance and hitchhiking through Forsyth on the night of July 4th. On August 6, 1974, theF.B.I. laboratory provided a positive comparison between a fingerprint lifttaken from the exterior of the Harstad vehicle and a sample fingerprintof ~ank.The F.B.I. also reported a positive comparison between a fingerprint of defendant and a lifttaken from a paper found inHarstad's purse. In an interview with F.B.I. agents on August 1, 1974, defendant and Nank admitted seeing the Harstad vehicle abandoned on the road. When he was asked about his fingerprint inthepurse, defendant stated thathe found a purse along the road they 

### were hitchhiking. Vacuumings 

### were taken inthe Harstad vehicle. These



### were sent totheF.B.I. laboratory for analysis. They reported, on September 13, 1974, thatNegroid head hairs



### were found inthe loose hairs taken from the front 

### seat. In addition, two Negroid pubic hairs 

### werefound in thevacuumings. On August 29, 1974, the decomposed body of Peggy Lee Harstad 

### was found on the north bank of the Yellowstone River, just 

### westof Forsyth, Montana. A forensic pathologist, Dr. John Pfaff, identified theremains asPeggy Lee Harstad by the use of dental charts. Because of the state of decomposition of her remains, Dr. Pfaff could not determine a cause of death. Since their original questioning inSheridan, Wyoming, the defendant and Nank had moved toBoise, Idaho, sometime inAugust. Attherequest of Rosebud County authorities, the Boise police had kept thesemen under surveillance. On October 16, 1974, the then Rosebud County attorney, William Meisburger, and Undersheriff Graham u akin went to Boise, Idaho tofurther interrogate defendant and Nank. he next day, October 17, 1974, Meisburger and m akin went to see the Boise police. They talked toDetective m rake of the Boise police about bringing thedefendant and ~ank to the police station forquestioning. They informed him of all the evidence they had connecting the defendant and ~ank with

### the death of Peggy Lee 

### Karstad. Detective Brake, sincehe had been doing some of the surveillance of the two men, knew aboutmost of the evidence except about her body being found. After discussing the casewith Meisburger and Makin, Detective Brake and a Detective Crowell went tothe apartment where these two men 

### were living. There the defendant and Nank 

### wereplaced under arrestwithout a warrant for deliberate homicide inthe death of Peggy Lee 

### Harstad. After their arrestand being placed incustody, arrest warrants and complaints 

### were issued by a justice of the peace forRosebud County. The warrants and complaint charged defendant and Nank 

### with deliberatehomicide. Upon their arrest, defendant and Nank 

### wereadvised of their rights. The defendant refused towaive his rights. Nank didwaive hisrights and, afterbeing incustody for a few hours, gave a fullconfession. Inhis confession, he implicated himself and thedefendant. He 

### confessed that they kidnapped, raped, and murdered Peggy Lee 

### Harstad. Nank consented toa search of their apartment and car for the murder weapons he said

### wereused inthe crime--namely, their motorcycle helmets and a rope. A 

### searchwarrant was obtained and the helmets and rope recovered. On October 24, 

### 1974, a motion for leave to filean Information inthe District

### Court, Rosebud County, was requested and granted. The Information charged thedefendant with three counts: Count I, 

### deliberate homicide; Count 11, 

### aggravated kidnapping; and Count 111, 

### sexual intercourse without consent, inflictingbodily injury. ~efendant plead not guilty toallcounts. On January 30, 

### 1975, defendant moved to suppress all confessions, statements and evidence, illegally seized. Asuppression hearing was held. Following the disqualification of the trialjudge by the Stateand the assignment of the case toanother judge, a second suppression hearing was held and defendant's motion denied. On May 7, 1975, the Stateentered into a written plea bargaining agreement with Robert Nank. Under the 

### terms of the agreement, Nank agreed toplead guilty todeliberate homicide and solicitation tocommit sexual intercourse without consent, and further agreed to testify atdefendant's trialinreturn for the dismissal of the aggravated kidnapping charge. On May 19, 1975, defendant's then court appointed counsel made an oral offer of a conditional plea of guilty inreturn for dismissal of the aggravated kidnapping charge. On May 23, 1975, a written offer of a conditional plea of guiltywas presented to the court. In this offer, defendant insisted on maintaining his innocence. The State refused to accept a guiltyplea with defendant maintaining his innocence. Following a change of defendant's court appointed counsel, a change of venue from Rosebud County toCuster County and finally toYellowstone County, and other pretrialproceedings and motions, defendant's trial commenced

on October 23, 1975, inYellowstone County. Attrial, Coleman and Nank related opposite statements of factas totheir involvementwith MissHarstad. Nank testified that he and Coleman 

### were traveling between Roundup and Forsyth on U. S. 12on hismotorcycle when they ran outof gas. They then tried to hitchhike. He said thatone car stopped, but the elderly couple refused to give them a ride. Nank stated thatMissHarstad stopped and gave them aride. He testified thatwhile driving down the road, he reached over and turned the key on her car off and steered the car toa stop. He stated that he put the girl in the back seat, took her clothes off, and attempted to rape her, but failed, while Coleman drove the car. Nank testified that Coleman then raped her while he held her foot, testifying thathe had a foot fetish. Nank said that they then went down by the Yellowstone River. He carried the girl, now fully clothed, over his shoulder, while Coleman came from behind swinging his silvermotorcycle helmet by the chin strapand crashed 

### it against her skull. Nank said that Coleman then took a yellow nylon rope and attempted to strangleher and asked Nank to help, but he did not strangle her. Then they took her down to the river and dumped her into it. As shewas not dead, Nank held her head under water while Coleman held her legs. Nank then testified that they drove her car back toward Forsyth until itran outof gas. They removed some things from the car and walked intoForsyth. Nank left Coleman inForsyth, hitchhiked with gas to themotorcycle, and returned topick up Coleman. They then went to theV. A. Hospital inSheridanwhere they stayed until going toBoise. Defendant Coleman, on the other hand, testified that after the motorcycle ran outof gas and they were refused a ride, Nank suggested thatbecause Coleman was black and there

### were few blacks inthat area, he should go get the gas alone. Coleman testified thatwhile he was sittingoff the highway smoking, Nank got a ride. After several hours, Nank returned ina car and, according toColeman, Nank was 

### wet, upset and acting strange. Coleman said he was told to get their things off themotor-cycle and get inthe car. When they both were in the car, Nank advised Coleman thathe had killed a girl. The car ran outof gas, and they started towalk. Nank gave Coleman a purse to carry and later told him togetrid of it. Coleman threw the purse into a culvert. They then had breakfast in Forsyth, and Nank leftColeman while he went toget the motorcycle. Coleman also testified thatNank threatened him if he ever disclosed any of these facts. The trial ended on November 14, 1975. The jury returned guilty verdicts on allthree counts. On November 21, 1975, the court sentenced defendant Coleman to 100years on Count I (deliberatehomicide); todeath by hanging on Count I1 (aggravated kidnapping); and to 40 years on Count I11 (sexual intercourse without consent inflicting bodily injury). Defendant's motion for a new trialwas denied. A stay of execution has been granted pending this appeal. Defendant raises 41specifications of error on appeal. Wewilldiscuss these alleged errors within the broader context of the issue towhich they relate. Wewillrestate the issues in thismanner: 1. Whether the death penalty, imposed asdefendant's sentence for conviction on Count I1 is constitutional? 2. Whether defendant should have been sentenced for 40 years on his conviction under Count III? 3. Whether defendant's motion to suppress the evidence obtained after his arrest should have been granted? 4. Whether defendant's conditional offer toplead guilty should have been accepted? 5. Whether defendant's motion todismiss the three counts of the Information should have been granted and whether the Information should have been amended after defendant's entry of a plea?6. Whether defendant's second jury challenge should have been sustained? 7. Whether the scope of the defendant's cross-examination of the State'switnesses was improperly limited? 8. Whether Nank's competency as a witness should have been determined prior tohis testimony? 9. Whether defendant's motion todismiss, atthe close of the State's case, for lack of corroboration of Nank's testimony should have been granted? 10. Whether some of the State's witnesses

### were allowed to testify improperly to theprejudice of defendant? 11. Whether the District Court properly instructed the jury?12. Whether certain State's exhibits

### were admissible and whether defendant's exhibits

### wereproperly refused? 13. Whether defendant's motion for a new trial should have been granted? Issue 1. Defendant argues that his death sentence cannot stand because 

### it 

### isunconstitutional. He raises two claims. The first

### is that two jurors 

### were excused for cause by the District Court based on their views of capital punishment. Defendant argues that this is inviolation of Witherspoon

v. Illinois, (1968), 391U.S. 510, 88 S.Ct. 1770, 20 L Ed 2d 776. His second claim is thatMontana's deathpenalty statute, under which he was sentenced, 

### is unconstitutional

on its face. The Witherspoon rule is that a sentence of death cannot be carried out if thejury that imposed orrecommended it

was chosen by excluding prospective jurors forcause simply because they voiced general objections tothe death penalty. There is an exception totherule. It provides that if aprospective juror 

### is irrevocably committed tovoting against conviction because of the possibility of a death penalty, he may be properly excluded for cause and a sentence of death carried out. In this case, defendant argues thatWitherspoon makes his death sentence invalid as two jurors were improperly excluded. Wedisagree. We hold that the two prospective jurors inthis case

were properly excluded under the exception to the general ruleof Witherspoon. One juror stated that no 

### matter how strong the evidence of guiltwas, he could not vote to convict if 

### a death penalty could be imposed. The other juror stated that she feltshe could not livewith herself if she

was on a jury that convicted a person and that person received

a death sentence asa result. Thus, both of these jurors

were irrevocably committed tovoting against a conviction because defendant could receive the deathpenalty. Their being excused for cause because of their irrevocable commitment against the deathpenalty does not invalidate defendant's death sentence. Atthe 

### timeof defendant's trial, the death penalty statute inMontana for aggravated kidnapping was section 94- 5-304, R.C.M. 1947. It read: "A court shall impose the sentence of death following conviction of aggravated kidnapping if 

### it finds that the victim 

### is dead as the result of the criminal conduct." Defendant was sentenced todeathunder this statute. This statutewas repealed by the 1977 session of the statelegislature. Section 16, Chapter 338, Laws of Montana 1977. The new death penalty statutes arecodified as sections 95-2206.6 to 95-2206.15, R.C.M. 1947. The constitutionality of Montana's present death penalty statutes are not involved inthis case.Section 94-5-304, R.C.M. 1947, as 

### it existed in 1975, 

### is a mandatory death penalty statute. In the lightof recent U. S. Supreme Court decisions, this statute 

### isunconstitutional on 

### its face, and defendant's death sentence thereunder cannot stand. In 1976, the United States Supreme Court, for the first 

### time, ruled on the constitutionality of mandatory death penalty statutes. Woodson v. North Carolina, (1976), 428 U.S. 280, 96 S.Ct. 2978, 49 L ed 2d 944. The statutebefore the Court was North Carolina's death penalty statute. It provided thedeath sentence for allpersons convicted of first-degree murder. In holding this statuteunconstitutional, the Supreme Court said: 

## "** * North Carolina's mandatory death penalty statutefor first-degree murder departs markedly from contemporary standards respecting the imposition of the punishment of death and thus cannot be applied consistentlywith the Eighth and Fourteenth Amendments' requirement that the State's power topunish 'be exercised within the1 

### limitsof civilized standards.'" Woodson v. North Carolina, 428 U.S. at301, quothng from Trop v. Dulles, (1958), 356 U.S. 86, 78 S.Ct. 590, 2 L ed 2d 630. In two later cases, the United States SupremeCourt also
I held mandatory deathpenalty statutesunconst~tutional. I Coker v. Georgia, (1977), U.S. 

## , 97 b.Ct. 2861, 53

I L ed 2d 982; Harry Roberts v. Louisiana, (197l7), U.S.



## , 97 S.Ct. 1993, 52 L ed 2d 637. In Cokex the Court held unconstitutional a Georgia statuterequi~ing the impositionof the death sentence forrape, when

# one^ ormore specified aggravating circumstances were found tobe present. In Harry Roberts the Court held

## unconstitutional^ a Louisiana statuterequiring the imposition of a death slentencefor killing a peace officer. Concerning the Louisiana , statute, the Court said:

## "** * it is essential that the capital sentencing decision allow for consideration of whatever mitigating circumstancesmay be relevant toeither the particular offender or theparticular offense. Because the Louisiana statutedoes not allow consideration of particularized mitigating factors, it is unconstitutional." Harry Roberts v. Louisiana, 97 U.S. at1996. The same problems that existed inthe statutes declared unconstitutional inWoodson, Coker, and Harry Roberts are present inthe statuteunder which defendantwas sentenced in 1975. It 

### is a mandatory death penalty statute. Under this statute, if the court finds, as it did inthis case, that thevictim of an aggravated kidnapping died as a result of the crime, the convicted defendantmust be sentenced todie. There isno provision for the trial court to consider any mitigating circumstances. It only allows the court to determine the aggravating circumstance of death. This is not constitutionallypermissible. To have a constitutionallyvalid death penalty, the United States Supreme Court has established certain necessaryprocedures. See: Gregg v. Georgia, (1976), 428 U.S. 153, 96 S.Ct. 2909, 49 L ed 2d 859; Proffitt v. Florida, (1976), 428 U.S. 242, 96 S.Ct. 2960, 49 L ed 2d 913; Jurek

v. Texas, (1976), 428 U.S. 262, 96 S.Ct. 2950, 49 L ed 2d 929. None of those required procedures arepresent in Montana's deathpenalty statuteas 

### it existed in 1974, nor



### were they provided otherwise inthis case. Thus, defendant's death sentence cannot stand. Issue 2. Defendant was sentenced to40 years for Count 111, sexual intercourse without consent, inflictingbodily injury. This sentencewas imposed pursuant to section 94-5- 503(3)

## , R.C.M. 1947, which provides:"If the victim is less than 16 years old and the offender 

### is 3 ormore years older than the victim or if the offender in£ 

### lictsbodily injury upon anyone inthe course of committing sexual intercoursewithout consent, he shall be imprisoned inthe stateprison for any term of not less than 2 years ormore than 40 years, except asprovided in 95-2206.18." Defendant argues that therewas insufficient evidence to support theverdict that the defendant inflicted bodily injury upon Peggy Lee Harstad inthe course of committing sexual intercourse without consent. Since that 

### is so, defendant argues that his 40 year sentence 

### is erroneous. We agree. The standard used tomeasure jury determinations 

### is well settled inthis state. Statev. Pascgo, (1977), Mont. 

## , 566 P.2d 802, 34 St.Rep. 657. The rule 

### is that questions of factmust be determined by the jury and given the required legalminimum of evidence, this Court on review 

### willnot substitute 

### itsjudgment for that of the jury. State

### v. Merseal, (1974), 167 Mont. 409, 538 P.2d 1364. The evidence 

### is examined todetermine if there 

### is substantial evidence tosupport the conviction when viewed inthe lightmost favorable tothe state. Statev. Pascgo, supra; Statev. Merseal, supra; Statev. Farnes, (1976), Mont. 

## , 558 P.2d 472, 33 St.Rep. 1270. Applying these standards here, we find insufficient evidence to support the verdict that the defendant inflicted bodily injury inthe course of committing sexual intercourse. The evidence shows thatdefendant did commit sexual intercoursewithout consent. Nank testified that the defendantdid so. Negroid pubic hairs

### were found inthe car. However, Nank did not testify thatdefendant inflicted bodily injury upon Peggy Lee Harstad while engaged in sexual intercourse. The pathologist, Dr. Pfaff, specificallytestified that he found no evidence of physical injury to Peggy Lee Harstad during his examination of the body. The State argues that the evidence does show that Peggy Lee Harstad was killed following her rape. his, they say, fitsthe requirements of section 93-5-503(3), R.C.M. 1947, thatbodily injurywas inflicted inthe course of the rape. We areunconvinced. To sustain a conviction for sexual intercourse without consent, inflictingbodily injury, there must be a showing of bodily injury as that 

### termisdefined inthe criminal code, section 94-2-101 (5)

## , R.C.M. 1947. That section reads: "'Bodily injury' means physical pain, illness, or any impairment of physical condition and includes mental illness or impairment.

### " There isno evidence showing that the defendant inflicted any such injuries on Peggy Lee Harstad. Thus, the verdict of the jury that defendant inflicted bodily injury in the

course of committing sexual intercourse without consent 

### is not supported by any evidence and cannot stand. Defendant should properly have been sentenced under section 94-5- 503(2), R.C.M. 1947, for committing sexual intercourse without consent. Issue 3. Prior to trial, defendant moved to have suppressed the evidence seized inIdaho--the motorcycle helmets and the rope. He argues thathis arrestwithout a warrant was unlawful because of a lack of probable cause to arrest. He contends that the Statedid not have probable

cause toarresthim until afterNank's confession several hours after his arrest. He further claims thatNank's constitutional rights

### wereviolated because Nank's confession and consent tothe search

### were involuntary. The Dis

### trict Court refused to suppress the evidence. Defendantmaintains thiswas reversible error and raises the same arguments on appeal that he did inthe suppression hearing. We find therewas probable cause to arrestdefendant without a warrant. The legality of an arrest 

### is determined by the law of the jurisdiction where the arrestwas effected. Miller v. United States, (1958), 357 U.S. 301, 78 S.Ct. 1190, 2 L ed 2d 1332. In this case, since the arrest took place inIdaho, Idaho law must be applied todetermine the validity of the arrest. Detective Brake arrested defendant and Nank inBoise without a warrant for a deliberate homicide inMontana. Idaho's general arrest statute, section 19- 603(3), I.C., provides inpertinent part: "A peace officer may make an arrest inobedience to a warrant delivered tohim, ormay, without a warrant, arrest a person:

"3. When a felony has infactbeen committed and he has reasonable cause for believing the person arrested tohave committed it." An examination of Idaho law discloses no case determining whether a peace officer may arrest a person inIdaho for a crime committed elsewhere, without 

### a warrant, by the authority given him inthis statute. Idaho, likeMontana, has adopted the Uniform Criminal Extradition Act. There is a provision inthat act for arrestswithout a warrant of fugitives from another state, which defendant and Nank are. This provision 

### is section 19- 4514, I.C., which reads as follows: "Arrest without a warrant.--The arrestof a person may be lawfully made alsoby an officer or a private citizenwithout a warrant upon reasonable information that the accused stands charged with a crime punishable by death or imprisonment for a term exceeding one (1)year inthe courts of another state; but when so arrested the accused must be taken before a judge ormagistrate with allpracticable speed and complaint must be made against him under oath setting forth the ground for the arrest as inthe last section; and thereafter his answer shall be heard as if he had been arrested on a warrant."The courts inIdaho have not had occasion to interpret this statute. Other jurisdictions have held that thisprovision of the Uniform Criminal ExtraditionAct implies the necessity of some prior court action inthe statewhere the crime

### was committed, but the act

### isnot intended torepudiate the

common law rule that an arrestmay be made on probable cause tobelieve the arrested person had committed a crime in another stateirrespective of lack of complaint or warrant inthat state. Desjarlais v. State, (1976), 73 Wis.2d 480,

"In some jurisdictions an officer has no authority toarrestwithout a warrant a fugitive from justice from another state, even on telegraphic orpersonal request of the officersof the demanding state. In otherjurisdictions an arrestmay be made by an officer without a warrant, atleastunder certain circumstances aswhere the fugitivehas committed a felony

## * * 

## * 

# ."35 C.J.S. Extradition, 512(b)

# . These arematters leftwholly to the individual states. Burton v. New York Cent. R.R. Co., (1917), 245 U.S. 315, 38 S.Ct. 108, 62 L.Ed. 314. Thus, the inquiry must be whether

or not Idaho recognizes the common law rule. In our view Idaho law recognizes the common law rule that an arrestmay be made without a warrant where the arresting officer has probable cause tobelieve the person arrested had committed a 

### crimeinanother 

### state. Defendant's arrestwas legal inthis case as Detective Brake had probable

cause tobelieve defendant had committed a felony inMontana. Under Idaho law, probable cause existswhere there 

### is such a stateof facts aswould lead a man of ordinary care and prudence tobelieve or entertain an honest and strong suspicion that such person has committed a crime. Statev. Polson, (1959), 81 Ida. 147, 339 P.2d 510; Statev. Loyd, (1967), 92 Ida. 20, 435 P.2d 797. Here, Detective Brakeknew Peggy Lee Harstad had disappeared on the night of July 4, 1974. Heknew defendant and Nank had been seen together inthe area of her disappearance on that night. He knew their fingerprintshad been identified on her car and purse. He knew Negroid head hairs and pubic hairswere found inher

car and that defendant was a Negro. This constituted probable

cause toarrestthem. Next 

### wemust look to 

### see if the search of the apartment and car, where the helmets and rope 

### were recovered, was lawful. We note that this search was not the product of defendant's and Nank's arrest. Itwas based on Nank's consent tothe search. Defendant questions whether Nank's consentwas freelygiven. However, defendant cannot assert any violations of Nank's constitutional rights. The rule inMontana 

### is that a defendant does not have standing tochallenge violations of constitutional rights of

a co-defendant or third party by law enforcement authorities. Statev. Braden, (1973), 163Mont. 124, 515 P.2d 692. 

### his rule 

### isbased on Alderman v. United States, (1969), 394 U.S. 165, 89 S.Ct. 961, 22 L ed 2d 176. Therefore, we hold defendant cannot claim any violation of Nank's Fourth mendment rights and his consent to the searchmade 

### it a lawful search. There was no error inthe District Court's denial of defendant's motion to suppress. Issue 4. Defendant claims the Staterefused toplea bargain with him or toaccept his conditional plea of guiltybecause he 

### is 

### a black man. He claims it was because of his race that the State insisted upon having a fulltrial inthis case, where, upon conviction, a death sentence could be imposed. He argues 

### it isreversible error for the Statenot toplea bargain or to accept his offer toplead guilty. How thiswould be so, defendant has not made clear tous. We recognize that a defendantmay plead guiltywhile maintaining his innocence, especially to avoid a death sentence. Brady v. United States, (1970), 397 U.S. 742, 90 S.Ct. 1463, 25 L ed 2d 747; North Carolina v. Alford, (1970), 400 U.S. 25, 91 S.Ct. 160, 27 L ed 2d 162. However, these

cases dealwith attempts towithdraw a guiltyplea after 

### it has been entered and deal with the voluntariness of the originalplea of guilty. These cases do not require the trialcourt or theprosecution toaccept a guilty plea. The acceptance of a guilty plea toa charged offense iswithin the discretion of the trialcourt. Accordingly, 

### we find no error inthe State's refusal to plea bargain with defendant or inthe DistrictCourt's refusal toaccept his conditional plea of guiltywhile maintaining his innocence. Issue 5. Defendant contends the 

### District Court erred indenying hismotion todismiss the Information for failure to statefacts sufficient toconstitute an offense. His argument 

### is that section 95-1503, R.C.M. 1947, relating to the form of a charge, requires that the charge tobe in ordinary and concise language, and in such a manner that the defendant would know what was intended. He alleges that the Information inthis case did not meet this requirement. Defendant premises his argument on the State's attempt to amend the Information after entry of defendant's plea. He alleges that the State, inattempting to amend the ~nformation. admitted the Information was defective. The trialcourt refused to allow the Information tobe amended. However, the court itself amended Count 11, the aggravated kidnappingcharge, to add the words: "resulting inthe death of Peggy Lee Harstad." We failto seehow the State's attempt to amend the Information aids the defendant inclaiming the Information 

### isnot sufficient. The Stateby amending the Information was trying tomake 

### it a better Information. They 

### were not claiming it was insufficient as 

### it existed. An Information need only be sufficient toapprise the accused of the nature of the crime charged. It need not be perfect. "It

### isfrequently stated, as a general rule, either with reference to statutorymisdemeanors, or to statutory offenses generally, that 

### a charge is sufficientwhich follows the language of the statutecreating the offense; and it has been held that, if accused insists on greater particularity, it 

### is incumbent on him to show that from the obvious intention of the legislature or known principles of law the particular case forms an exception to the general rule." 42 C.J.S. Indictments and Informations, §139(c). Montana follows thisgeneral rule. An Information that properly charges an offense inthe language of the statute describing the offense 

### is sufficient. State

### v. Randall, (1960), 137 Mont. 534, 353 P.2d 1054; State

### v. Shannon, (1933), 95 Mont. 280, 26 P.2d 380; State

### v. Haley, (1957), 132Mont. 366, 318 P.2d 1084; State

### v. Duncan, (1957), 130 Mont. 562, 305 P.2d 761; Stateex 

### rel. Glantz 

### v. District Court, (1969), 154 Mont. 132, 461 P.2d 193. Wehold that the Information filed inthis casewas sufficient. Each count followed the language of the statutes for deliberate homicide, section 94-5-102, R.C.M. 1947, aggravated kidnapping, section 94-5-303, R.C.M. 1947, and sexual intercourse without consent, section 94-5-503, R.C.M. 1947.As for the amendment by the court toCount 11, contrary todefendant's contention, 

### we find that 

### it 

### was a properamendment. Section 95-1505, R.C.M. 1947, as it existed in 1975, allowed an Information tobe amended as to form after entry of plea but not as to substance. Defendant argues that the amendment toCount I1 was one of substance. He claims thatprior to this amendment, he was not subject to the death penalty. Wedisagree. Werecognize that any amendment to an Information which charges a crime different inpenalty is a matter of substance and impermissible. Statev. Fisher, (1927), 79 Mont. 46, 254 P. 872; Statev. Knight, (1963), 143Mont. 27, 387 P.2d 22. Here, however, the amendment was one of form. Defendant knew from thevery beginning the deathpenalty was going to be sought. Prior to the amendment toCount 11, the death penalty, upon a conviction, could have been sought under either Count I or Count 11. The amendment simply limited 

### it toCount 11. Furthermore, therecord indicates that defendant

was not surprised the deathpenalty was being sought. He objected tothe amendment inthe lower court, but he did not ask for any continuance as a result of it. He clearly knew prior to the amendment that the Statewas seeking the death penalty. In any event, no legal prejudice resulted from the amendment of Count I1 inthe lightof our holding that Montana's deathpenalty statuteas it existed in 1975 is unconstitutional. Issue 6. On October 20, 1975, defendant filed a challenge to the jury panel claiming that it was not drawn and summoned inaccordancewith thejury selection statutes. The challengewas made inconformity with section 95-1908, R.C.M. 1947, which states how a jury challenge is tobe made. After 

### a fullhearing on the challenge, the 

### ~istrict Court dismissed thejury panel.The court then ordered a new panel of 60 jurors be drawn and summoned to appear for trialon October 23, 1975. Defendant raised a second jury challenge tothis panel. He again argued that the panel was not drawn and summoned in accordance with the statutes. The court denied the challenge. Defendant, on appeal, claims his second jury challenge should have been granted. Wedisagree. Basically, defendant raises three arguments concerning why the jury panel that tried him was improperly drawn and summoned. First, he says that there

### weremore numbers in the jury box than names on the jury list. There 

### were 55,763 numbers inthe box and 44,765 on the 

### list. When a number

was drawn higher than 44,765, 

### it

### was returned to the box. Defendant claims thathaving more numbers inthe jury box than names on the jury list failsto substantially comply with the jury selection statutes and constitutes reversible

error. Section 93-1402, R.C.M. 1947, requires that each name

on the jury 

### list be assigned a number. Section 93-1404, R.C.M. 1947, requires that the numbers be placed inthe jury box in such a manner that they cannot be distinguished from each other. Neither of these statutesrequire that there be only asmany numbers inthe jury box asnames on the jury list except there can only be one number for each juror. Defendant makes no allegation that therewas more than one number for each juror. Therefore, 

### we hold thathaving more numbers inthe jury box than names on the jury 

### listdoes not destroy the validity of the panel drawn. The purpose of these statutes 

### is toinsure that therebe no unfairness in the selection of the jury. Stateex 

### rel. ~enningsen v. DistrictCourt, (1959), 136Mont. 354, 348 ~.2d 143; In reJury Box Capsules, (1967), 150Mont. 583, 447 P.2d 687. We find no unfairness here inthe drawing of the jury panel. Second, defendant complains that the 200 jurors drawn



### were notified by telephone by the District Court clerk to



### see if they would be availablefor the trialon October 23, 1975. Sixty-one of those called replied they would be available. Defendant claims that, ineffect, the District Court clerk excused 139jurors, and that, under the law, the DistrictCourt clerkmay not excuse jurors from jury duty. Further, defendant claims that thejurors 

### were allowed to excuse themselves for s l i g h t o r trivial cause inviolation of the statuteon being excused from jury duty. Section 93-1512, R.C.M. 1947, authorizes the District Court judge todraw and summon additional jurors for 

### a trial when 

### it isnecessary todo so. This section further provides that the additional jurors may be notified by telephone by the clerk of court. In this case, after dismissing the first jury panel, additional jurors 

### were needed. The 

### District Court judge drew 200 numbers out of the jury box toget a 60 member jury panel. He authorized the clerk toorally notify thejurors. The clerk, as section 93-1512, R.C.M. 1947, authorizes, notified thejurors by telephone. Thus, defendant's claim that notifying thejurors by telephone was improper 

### is without 

### merit. Section 93-1305, R.C.M. 1947, does dealwith the grounds forbeing excused from jury duty. Itprovides that a juror may not be excused for slight or trivial cause. On the record that isbefore us, there is no showing that the clerk excused any of thejurors called. We note that the district judge had ordered the clerk tohave a panel of 60 jurors for the trialon October 23, 1975, which he did. Further, therule inMontana is that the failure of a juror to appear, if properly notified, 

### willnot invalidate a subsequent trial,

as a defendant has no right to 

### select a particular juror, but has only a right torejecta juror. Statev. Moran, (196311 142Mont. 423, 384 P.2d 777. Applying that rule to this case, 

### we hold that defendant's trial should not be invalidated because 60 outof 200 jurors appeared which was the sizeof the panel ordered by the District Court. Finally, defendant argues that the speed used in selecting thejury denied him his right to a fair and impartial jury panel. He argues that thejury panel did not represent

a cross-section of the community asmost of thejurors came from the

### west sideof Billings, Montana. The rule

### is that a defendant has a right toa fair and impartial jury selected from the proper place and drawn and summoned according tolaw. The systematic and intentional exclusion of a 

### class of persons or a purposeful and deliberate design to secure the jury from a limited area instead of the entirecounty deprives a defendant of fundamental constitutional rights. Statev. Hay, (1948), 120Mont. 573, 194 P.2d 232. InHay thisCourt found that the defendant failed 

### - toestablish thathe had been deprived of hisright tohave

a jury taken from a cross-section of the county by showing that allmembers of thejury panel 

### were residents of the county seat, inthe absence of a showing that it was the resultof deliberatedesign. In this 

### case, therewas no showing of deliberate design toget a jury panel from only the

### west sideof Billings. Wehold that thejury was selected in substantial compliance with the law and thatdefendant's claim thathe

was denied a fair and impartialjury must fail.

### Issue 7. Defendant claims error in improperly restricting his cross-examination of some of the State's witnesses. At the time of trial section 93-1901-7, R.C.M. 1947, governed the scope of permissible cross-examination. In substance it permits cross-examination as to any testimony elicited on direct examination or facts connected therewith and all other facts connected with the witness's testimony which tends to enlighten the jury on the question in controversy. State Highway Commission v. Bennett, (1973), 162Mont. 386, 513 

### P.2d 5. 

### We have examined the District Court's rulings concerning cross-examination of State's witnesses Ash, Schiffer and Nank, and find no error. The questions asked were either argumentative, immaterial or otherwise answered. Defendant also claims error in connection with his attempted cross-examination of State's expert witness Hippard from the F.B.I. laboratory concerning identification of the hairs taken from the Harstad vehicle and comparison of these hairs with defendant Coleman's hair. The District Court properly disallowed cross-examination of Hippard concerning his ability to identify hair from pictures as the witness testified that he could not look at a picture of a hair and identify it. Hippard testified on direct examination that the only way of identifying and comparing hair was by a comparison microscope which was the method he used. Although defendant offered to submithair samples to Hippard, he did not specifically state how this would be done or offer to furnish a comparisonmicroscope. The District Court did tell defendant to proceed with his cross-examination and that they were then throughwith the witness unless defendant himselfcalled him on direct, which defendant did not do. The matter of permitting experiments, tests, and demonstrations is one addressed to the sound discretion of the court. Statev. London, (1957), 131Mont. 410, 310 P.2d 571; State

v. ~eller, (1952), 126Mont. 142, 246 P.2d 817; Statev. ~hompson,(1974), 164Mont. 415, 524 P.2d 1115. 

### We find no abuse of thatdiscretion here under the offer of the defendant and the DistrictCourt's rulings. Issue 8. Defendant assigns error inthe District Court's denial of defendant's challenge toNank's mental competency asa witness. A Montana statuteprovides that those of unsound mind cannot be witnesses. Section 93-701-3(1), R.C.M. 1947. It 

### is the function of the trialjudge todetermine the competency of a witness to testify. Statev. Newman, (1923), 66 Mont. 180, 213 P. 805. There isno presumption

### A that 

### a witness 

### is incompetent and the burden is on the party asserting the incompetency toprove 

### it. Statev. Newman, supra. This defendant did not do. Furthermore, if a witness 

### is sufficiently competent to understand and appreciate the nature and obligation of an oath and can correctly narrate the facts involved inthe case, he may testify and the 

### state of his mentality goes only tothe weight of his testimony and not to 

### its admissibility. Martin v. Hover, (1921), 60 Mont. 302, 199 P. 694. We find no error by the District Court on this issue. Issue 9. Atthe close of the State's case, defendant moved todismiss the Information, or, in the alternative, for a judgment of acquittal for lack of corroboration of Nank's testimony. Corroboration of the testimony of oneresponsible or legally accountable for the same offense is necessary tosustaina conviction. Section 95-3012, R.C.M. 1947. 

### his statuterequires corroboration by evidence which tends to connect the defendantwith the commission of the offense, without the testimony of the person legally accountable or responsible. Defendant argues that there

### was not sufficient corroboration of Nank's testimony to sustain defendant's conviction. Wedisagree. The ruleon corroboration 

### is stated inStatev. Cobb, (1926), 76 Mont. 89, 245 P. 265. In that case, 

### we held that the corroborating evidence may be supplied by the defendant

orhiswitnesses; 

### itmay be circumstantial evidence; 

### it need not be sufficient to sustain a conviction or establish a prima facie case of guilt; and 

### it need not be sufficient to connect the defendant with the crime but must tend toconnect him with the crime. In Statev. Keckonen, (1938), 107 Mont. 253, 84 P.2d 341, 

### we held thatwhere the alleged corrobative evidence 

### is equally consonant with a reasonable explanation pointing toward innocent conduct on the part of defendant, then such evidence does not tend toconnect him with the commission of the offense and 

### is inthe realm of speculation, not corroboration. Where the claimed corroboration shows

no more than an opportunity tocommit a crime and simply proves suspicion, it 

### isnot sufficientcorroboration to justify a conviction upon the testimony of an accomplice. Statev. Jones, (1933), 95 Mont. 317, 26 ~.2d 341. Applying those rules tothis case, 

### we hold there 

### was sufficientcorroboration of Nank's testimony to sustain defendant's conviction. The corroborating evidence is: he crack indefendant's motorcycle helmet; a hair of Peggy 

### ~ee Harstad being on the rope belonging to these men; the finger-prints on her car and inher purse; the Negroid pubic hairs similar todefendant's and theNegroid head hair found in her car; and, the evidence thatdefendant and Nank were seen together on the same road and atapproximately the same 

### time that'Peggy Lee Harstad disappeared. This evidence tends to connect defendantwith the commission of the offenses charged. It is evidence of more than mere opportunity or suspicion thatdefendant committed these offenses. This evidence does not establish any reasonable explanation pointing toward innocent conduct. We find no error in the DistrictCourt's denial of defendant's motion. Issue 10. On appeal, as atthe trial, defendant raises objections tocertainquestions and answers elicited from the State'switnesses. He argues that these arecumulative

errors requiring reversal. Wedo not agree. Hisfirstobjection 

### is toNank's being allowed, on direct examination, to testify that he had told the same story concerning the crime tothe police and the F.B.I. prior tothe trial. Defendant claims that this testimony

was used tobuttress and fortify Nank's testimony before his testimony 

### was challenged. Basically, the questions toNank 

### were to find out if Nank was testifying to the truth. This Court has held in the past that the Statemay ask such questions on direct examination. Statev. Collett, (1946), 118Mont. 473, 167 P.2d 584. InCollett, this Court said the DistrictCourt did not commit prejudicial error inallowing the witness to

answer a question as towhether he was testifying to the truth. The rationale is thatwhile the answer is inthe nature of a self-serving declaration, it isonly a reaffirmation of what the witness promises todo when he takes the

### oath. We believe this approach is 

### sound and will

### followit 

### here. We hold the questions and answers as toNank's prior statements do not constituteprejudicial error. Defendant then objects toan F.B.I. agent being allowed totestify about defendant's attitude inhis interviewwith defendant atSheridan, Wyoming. Specifically, the agent testified thatdefendantwas evasive during questioning. We

### agree that thiswas improper opinion evidence. However, technical errors or defects

### willnot provide a basis forreversal ina criminal prosecution. Statev. Gallagher, (1968), 151Mont. 501, 445 

### P.2d 45. 

### We hold that the admission of this testimony was only a technical error and is

### not a basis forreversal. Next, defendant argues that a F.B.I. 

### fingerprint expertwas allowed totestify on re-direct examination beyond the scope of cross-examination. The questions to which the defendant objected concerned the dateon which the F.B.I. 

### laboratory received certain fingerprint cards. The record reveals therewas some confusion as to the dates various fingerprint cards were received. Under those circumstances, the District Court did not abuse its 

### discretion in allowing the Statetoclarify the issueon re-direct. Finally, defendant objects towitness Makin testifying

as towhere hewas told certain hairs came from. Defendant claims thiswas hearsay. An earlierwitness, Ash, who was the declarant, testified as 

### towhere he found the

### hairs. Here, undersheriff Makin was testifying toestablish the chain of evidence. He had received the hairs from OfficerAsh, who toldMakin he obtained the hairs from the abandoned Harstad vehicle. Thus, the declaration of ~sh was

a partof the chain of evidence. We find no cumulative error inthe testimony of theState's witnesses sufficient towarrant reversal. Issue 11. Defendant objects tocertain instructions which 

### were given tothejury and offered instructions that



### were refused. We find thejury was properly instructed. Defendant's firstobjection is to Instruction 22. This instructionwas that if the jury found defendant committed a homicide and no circumstances of mitigation, excuse or justification appears, they may infer that the homicide was committed knowingly and purposely. This instructionwas based on section 95-3004(2), R.C.M. 1947. The instruction follows the statute. Defendant argues that instruction as a statutory presumption isunconstitutional, citing Leary 

### v. United States, (1969), 395 U.S. 6, 89 S.Ct. 1532, 23 L ed 2d 57. This case provides that tohave a valid criminal statutory presumption, thepresumed factmust more likely than not flow from the proved facton which 

### it depends. We find this instruction and statuteareconstitutionally valid. The jury was instructed that they "may" find knowledge orpurpose when there 

### are no circumstances of mitigation, excuse, orjustification. They arenot required tofind this. Thus, 

### it is not a conclusive presumption. The instruction and statutedo not violate the Leary requirement because a finding of knowledge orpurpose would more likely than not flow from the proved fact that a homicide

was committed by defendant and where there

### wereno circumstances of mitigation, justification, or excuse. Defendant objects to Instruction 26, which gave the statutory definition of "knowingly", and further objects thathis offered Instruction 16, which dealtwith criminal intent and premeditation, was not given. Instruction 26 was the statutorydefinitionof "knowingly" as contained insection 94-2-101(28), R.C.M. 1947. The portion of the statute and instruction defendant objects to

### is: "When knowledge of the existenceof a particular fact 

### is an element of an offense, such knowledge 

### is established if a person 

### is aware of a high probability of 

### its existence." Defendant argues that this definition does not comply with the traditional requirements of criminal intent. That 

### iswhy, according to defendant, his offered Instruction 16 should have been given

as 

### it explained the criminal intent and premeditation necessary for a conviction of deliberate homicide. We believe therewas no error inthe court's giving of Instruction 26 and refusing togive defendant's Instruction 16. We have considered the necessity of instructing the jury



### on criminal intent and premeditation before. Statev. Sharbono, (1977), Mont. 

## , 563 P.2d 61, 34 St.Rep. 196. In that case, we found no error inthe DistrictCourt's refusal togive an instruction identical todefendant's offered Instruction 16. There, 

### we held that the legislature had changed the requirements of mens rea. This Court said, indiscussing the question of criminal intent: "Upon thewhole it is theperson who means todo the thing that constitutes a crime, knows he 

### is doing 

### it, and knows that there 

### is a substantial and unjustifiable risk indoing 

### it,whose conduct warrants condemnation of the kind from which conviction results." Sharbono, 563 P.2d at72. Therefore, 

### we find the courtproperly instructed the jury as tothe "knowledge" required for a conviction inInstruction 26 and properly refused defendant's Instruction 16. Defendant objects thathis offered Instruction 10

### was not given. This instruction deals with the burden of proof. It comes from Statev. Halk, (1914), 49 Mont. 173, 141P.The Court adequately instructed the jury concerning the burden of proof inInstruction 

### 4. Thus, there is no error inrefusing defendant's offered Instruction 10. Next defendant complains that his proposed Instruction 14on reasonable doubt was not given. We believe the court rightfully refused this instruction since the jury 

### was adequately instructed on reasonable doubt inthe court's Instructions 5, 6, 7, and 10. Defendant's proposed instruction would have only been redundant, and, therefore, was unnecessary. Defendant contends thathis offered Instruction 34 should have been given. This instruction dealtwith the not having todecide inconformity with the greater number of witnesses if their testimony does not produce conviction intheir minds. Defendant argues thatwith the number of witnesses the Stateproduced, he was entitled to this instruction. Wedisagree. Wemust point out that the instruction defendant proposed

was adequately covered inthe court's Instruction 2. This instruction read inpart: "You arenot bound todecide inconformity with the declarations of any number of witnesses, not producing conviction inyour minds, against a less number or against a presumption or other evidence satisfying your minds. The direct evidence of one witness who is entitled to full credit 

### is sufficient for the proof of any fact inthis case." This is a standard Montana Jury Instruction Guide instruction which correctly states the law. The DistrictCourt was correct inrefusing defendant's offered Instruction 34 covering the same subject. Next, defendant alleges that his offered Instruction 35A should have been given. This instructionwas on the lesser included offense of mitigated deliberate homicide.Where there 

### isno evidence of mitigation thatwould fit within the statutory definitionof mitigated deliberate homicide, section 94-5-103, R.C.M. 1947, the trial court should properly refuse toinstruct on such crime. State

v. Baugh, (1977), Mont. 

## , 571 P.2d 779, 34 St.Rep. 1315. Inviewing therecord here, 

### we find no evidence of mitigation. This instructionwas properly refused. Defendant alsoobjects to Instruction 40. This instruction told the jury that sentencing was vested in the court and the jury was not toconsider thepossiblepunishment defendant could receive inreaching a verdict. Defendant's objection 

### is that inthis instruction, and invoir direof thejury, thejury was led tobelieve that thejudge had discretioninimposing the death penalty. This instruction simply told thejury sentencing was up to thejudge. The instruction does not statethat the judge

canmitigatepunishment. It only says that he has thepower toimpose punishment, which 

### is correct. It 

### iswhere the jury 

### is instructed as to thevarious possibilities of sentence thatprejudice to the defendant exists. Statev. Zuidema, (1971), 157 Mont. 367, 485 P.2d 952. This 

### is not the 

### case here. The instructionwas proper. Finally, defendant objects to the special verdict form used on Count 11. The jury was specifically asked to find if Peggy Lee Harstad died 

### as a result of the aggravated kidnapping. The jury found that she did. Defendant argues thatMontana law does not provide for specific factual findings by thejury. The jury was given general verdicts asking for a finding of guilty or not guilty on each count. The jury was tomake the additional finding that the element necessary for theimposition of the death penalty was present. Under those circumstances, this additional factual finding does not fall into the vice of a specialverdict. It does not require

a factdetermination which could be used toundermine the general verdict. Thus, the verdict forms 

### werepermissible. In any event, our holding on Montana's death penalty statuterenders this specification of error nonprejudicial. Issue 12. Defendant objects to some exhibitswhich

were admitted into evidence and some of his own which 

### were refused admission. Hisfirstobjection 

### is toState's Exhibit 20. This was

a picture of the area inwhich Peggy Lee Harstad's body was found. In thepicture, her decomposed body can be seen. Defendant argues that thispicturewas prejudicial because it is a gruesome photograph. Heclaims that any relevancy of this photograph isoutweighed by its prejudicial effect. This Court has held thatphotographs which help the jury understand the case areadmissible, but photographs that arecalculated to arouse the sympathies orprejudices of the jury areproperly excluded. Statev. Bischert, (1957), 131Mont. 152, 308 P.2d 969. This Court went on to say, inthat case, thatphotographs may not be used if intended toinflame theminds of the jury rather than enlighten them as tothe facts. Weaffirm the rule of the Bischert case, but reject 

### its application to this case. In Bischert, thephotograph was extremely distasteful and did notmake a significantcontribution tothe development of the facts inthat case. This is not the case here. Wehave examined the photograph and find that it is hazy, indistinct, and of poor quality. Any gruesome character that the photograph might otherwise possess 

### is lost initsdevelopment and reproduction. The photograph 

### is relevant in that it shows the jury the area inwhich the body was found; and it corroborates Nank's testimony as toher being fully clothed and as towhere the body was. Under the circumstances here, the photograph's probative value outweighs 

### itsprejudicial effect. Defendant objects to the admission of two other photographs, namely, State's Exhibits 

### 41and 43. These 

### were pictures of the apartment building and the parking lotin Boise, where defendant and Nank were arrested. Defendant argues that these photographs 

### were irrelevant and cumulative evidence. As a general rule, photographs, when relevant todescribe

a person, place or thing, areadmissible for the purpose of explaining and applying the evidence and assisting the court and jury inunderstanding the case. Fulton v. Chouteau County Farmers' Co., (1934), 98 Mont. 48, 37 P.2d 1025. The photographs of the apartment building and parking lothelped todescribe the place where the defendant and Nank 

### were arrested. These photographs showed where the helmets and rope were recovered. These photographs assisted the jury in understanding the arrest and search inBoise. They were properly admitted. Defendant alsoobjects to the admission of Nank's motorcycle helmet intoevidence. Hiscomplaint 

### is that the chain of evidence 

### was not established prior tothe admission of the helmet and further complains thathe was not allowed tovoir direNank prior to its admission. Defendant states therewas a problem with the chain of evidence in that this helmet was labeled 

### as belonging todefendant and not ~ank.Since Nank, prior to the admission of the helmet, positively identified it as his, we find the chain of evidence established prior to 

### its admission. The mismarked label 

### is of no consequence as the label was not admitted into evidence. We recognize that defendant might have been allowed tovoir direNank prior to the admission into evidence of the helmet but such was not required. There 

### is no indication that such a voir direwould have produced a different result. Atmost, only a procedural error not affecting the merits

was involved, and not a prejudicial error requiring reversal. Statev. Heiser, (1965), 146 Mont. 413, 407 P.2d 370. Defendant further claims error inadmitting inevidence the waiver of rights form given to defendant inBoise, which he refused to sign. Defendant claims this exhibitwas irrelevant and should have been excluded as cumulative evidence. We can find no error inthe admission of this exhibit. This exhibit aided in the jury inunderstanding the events of this case that occurred inBoise, Idaho. It supported the testimony of the Boise detectives as to the date of the arrest, the 

### timeof the arrest, and that defendant 

### was informed of his constitutional rights. The exhibitwas properly admitted. Defendant objects that his Exhibits V, 

### W, X and Y were refused. These exhibits were pictures of the State's fingerprint photos. They were enlargements and an overlay of them was made. By use of the overlay, defendant wanted to show any differences inthe fingerprints. Our review of the record indicates that defendant did not lay a foundation, prior tomoving for the admission of his exhibits, showing that fingerprints could be compared inthemanner defendant was attempting tocompare them. What defendant wanted todo was to show the jury by actualmeasurement the difference inthe distancebetween the ridges between a known print of defendant and the print found inPeggy Lee Harstad's purse. A fingerprint cannot be compared in this

manner. The same fingerprint

### willproduce differingresults with respect to a measurement between the ridges depending upon the pressure applied inmaking the print and themanner inwhich the print was leftupon the surface. Fingerprints

are compared by determining if the same ridge characteristics

arepresent ina known print and unknown print. These ridge characteristics 

### willnot vary between the differentways in which an impression 

### ismade on a surface. The rule

### is that the determination of whether a proper foundation has been laid inorder tointroduce exhibits into evidence 

### rests with the lower court and 

### its determination willnot be overturned unless there 

### is a clear abuse of discretion. Statev. Olsen, (1968), 152 Mont. 

### 1, 445 P.2d 926. Here, the DistrictCourt properly excluded the exhibits because no proper foundation

### was laid for their admission. Finally, defendant claims that the court erred in refusing his Exhibit T showing some calculations1 

### as to the height of thewater level inthe Yellowstone River on July 4, 1974. This exhibitwas to aid defendant's argument thatPeggy Lee Harstad was not drowned inthe river asNank testified shewas. Defendant was trying toprove that the river, on ~uly 4, 1974, was too deep, inthe area where the body was found, forNank and defendant tobe holding her under the water. This exhibit

### was not admissble because of a lack of a proper foundation. Our review of the transcript revealsthat the witnesses who prepared this exhibit were never shown tohave the qualifications toprepare such an exhibit; itwas notmade clearhow they arrived atthe calculations they made of the height, flow, and volume of the river; and, itwas not established that their calculations of the height of the river on July 

### 4, 1974, were competent. Under such circumstances, there was no error indenying this exhibit admission inevidence. Issue 13. Following his conviction, defendant moved for a new trial. One of the grounds defendant raised was that after both sides had rested their case, defendant was contacted by a witness who knew of defendant's good conduct and character. Defendant argues that this newly discovered evidence is grounds for a new trial under section 95-2101, R.C.M. 1947. "It

### iswell-settled that a new trial willnot be granted upon the ground of newly discovered evidence where it appears that such new evidence can have no other effect than to discredit the testimony of a witness atthe original trial. It 

### is only when it is shown by competent and satisfactory evidence that appellant would not have been convicted, but for this evidence, that a new trial willbe granted for newly discovered evidence. (Citationsomitted.)" Statev. Schleining, (1965), 146 Mont. 1, 17, 403 P.2d 625. In this case, defendant's newly discovered evidence would only go todiscreditNank's testimony and defendant has not shown that this evidence would make the difference between his being or not being convicted in a new trial. Under those circumstances, 

### we willfollow the general rule infinding no error inthe denial of defendant's motion for

a new trial. We have examined the subsidiary contentions of defendant and find that none would change our holdings in this case or merit special discussion inthis opinion.

### The judgment of conviction on allthree counts is 

### affirmed. The sentences imposed for Counts I1 

### and I11 

### are vacated. The case is

### remanded to the District 

### Court for resentencing on Counts I1 

### and 111. 

# zL&g%& Chief Justice

We Concur: I ,A' 

### - d/f92-d

# dd>i<p

Justice r" / d



### tting in the vacant seat

### Mr. Justice John Conway Harrison concurring in part and dissenting in part.

I concur in the opinion but dissent as to the majority's disposition of Issue 2. The majority finds no substantial evidence to support the jury's determination that defendant inflicted bodily injury in the course of committing sexual intercoursewithout consent. Section 94-5-503(3), R.C.M. 

### 1947,provides: 

### " 

## * 

## * * if the offender inflicts bodily injury upon anyone in the course of committing sexual intercourse without consent, he shall be imprisoned in the state prison for any term of not less than 2 years or more than 40 years, except as provided in 95-2206.18." The majority freely admits "theevidence shows that defendant did commit sexual intercourse without consent" and the jury so found. Nor is there any quarrel that there is substantial evidence showing that defendant participated in the killing of Peggy Lee Harstad. These facts were proven to the jury despite the fact,

as the majority notes, the pathologist could find no evidence of physical injury to her badly decomposed body. While the majority is unclear in what respect the State's proof was lacking, the Statemust have f5iled to prove either that (1)defendant inflicted "bodily injury" on the victim, or (2) the bodily ingury was inflicted in the course of the commission of the rape. Undoubtedly, there is substantial evidence that defendant inflicted bodily injury on the victim. As noted above, the evidence indicates defendant participated in causing her death. Certainly death is "bodily injury"within the meaning of the statute. That death is "impairmentof physical condition" is so obvious that it deserves little comment. Section section 94-2-101(5), R.C.M. 1947. To hold otherwise would lead to absurd results. For example, a person who breaks the arm of the victim in the course of committing



### a rape can receive a 40 year sentence for the rape, but a rapist who kills the victim can receive no more than a 20 year sentence

### for the rape. I 

### cannot believe the legislature intended that a rapist receive a lighter sentencebecause he did more harm to the victim than is required by the definition of "bodily injury". If death is, indeed, bodily injury, the only remaining requirement is that the death be inflicted "in the course of committing sexual intercourse without consent". This phrase is explained in section 94-5-503(4), R.C.M. 1947: "An act 'in the course of committing sexual intercourse without consent' shall include an attempt to commit the offense or flight after the attempt or cormnission." (Emphasisadded.) Clearly there is substantial evidence to show the victim

was killed in the "flightafter" the commission of the rape. According to Nank's testimony, shewas raped in her car, and then beaten and drowned nearby. Had she lived, she would have been able to identify defendant and Nank as the perpetrators. The jury certainly would have been reasonable to infer that shewas killed in

an attempt to cover up the commission of the rape. The majority completely ignores the "flightafter" language of the statute. In summary, I find substantial evidence to support the jury's verdict that defendant inflicted "bodily injury" upon the victim "in the course of committing sexual intercourse without consent". Her death supplied all the "bodily injury" required. Her death was inflicted in the course of committing the rape because it was an integral part of the flight after the commission of the offense. This is precisely the type of conduct the statute

was intended to punish to themost severe extent. I

### would affirm the imposition of the 40 year sentence.

Justice 

# (ks

### Mr. Justice Daniel J. Shea dissenting: I agree with the majority opinion holding section 94-5-304, R.C.M. 1947, to be unconstitutional. Clearly, the United States Supreme Court has prohibited mandatory death penalties because there is no allowance for consideration of mitigation. However, I would go yet another step and reverse the conviction because the second jury panel was not chosen in substantial compliance with the applicable statutes of calling in a new jury array. In fact, there

was a complete failure to follow sections 93-1501 and 93-1509,R.C.M.

The majority proceeds with this issue as though the District Court was only calling in additional jurors to complement the jury panel already legally in existence. The law involved is contained in Title 93,Chapter 15, entitled "Jurors--Drawing and Summoning for Courts of Record." Section 93-1512,R.C.M. 

### 1947,upon which the majority relies, is but one of the statutes covering the selection of juries. That sectionprovides: "Obtainingadditional jurors when necessary. Whenever it appears to a district judge that additional jurors will be needed for any term or trial - 

### the judge shall draw asmany numbers from jury box No. 1 as are necessary to secure the required number of additional jurors. Before drawing the numbers the judge shall by appropriate order designate the number of jurors needed, and, when the judge believes that securing the additional jurors from all of the county would cause unnecessary delay or expense then he may order the jurors selected from only a designated portion of the county,which portion shall never be less than the corporate limits of the county seat. If, in the selection of the additional jurors, a number is drawn and the jury list shows the person represented by the number to be a resident of 

### an area outside the area designated by the court order then that number shall be returned to the jury box and a 

### new number drawn. When the required number of names have been selected the judgemay order the prospective jurors notified by 

### telephone by the clerk of the court or he may order them summoned by the sheriff either by certified mail or by personal service."

(Emphasisadded.)

### This statute allows additional jurors to be summoned by 

### telephone (asone of the means of summoning a juror) where the jury array, then legally in existence, is not sufficient in number to complete the work of the court during the term of court. It does not apply where the legal existence of a jury array has been successfully challenged and it therefore becomes necessary to summon
an entirely new jury panel--precisely what occurred in this case. The entire jury panel was excused because it was not summoned in compliance with the applicable statutes. Themajority recognizes that this happened by stating: 

## "*

## * * On October 20, 1975, defendant filed a challenge to the jury panel claiming that it was not drawn and summoned in accordance with the jury selection statutes. The challengewas made in conformity with section 95-1908, R.C.11. 

### 1947, which states how a jury challenge is to be made. - - 

### After a full hearing on the challenge, the District Court dismissed the jury panel." (Emphasis added.) 

### Clearly, upon this dismissal, the jury panel was no longer legally in existence. If any more cases were to be tried during that jury term, an entire new jury panel had to be summoned. In such case sections 93-1501 and 93-1509,R.C.M. 1947, come into play. Section 93-1501, "Summoning of trial jury",provides: "At least once each year in each county when a civil or criminal case has been at issue and ready for trial formore than six (6)

### months and the plaintiff or defendant in such case has requested a jury trial or whenever the business of a district court requires the attendance of a trial jury for the trial of civil or criminal cases, and no jury is in attendance, the court must make an order directing a trial jury to be drawn and summoned to attend before said court. Such order must specify the number of jurors to be drawn, and the time at which the jurors are required to attend, which time may be at the same term in which the jurors are drawn, or at the next succeeding term, in the discretion of the court. And the courtmay direct that such causes, either criminal or civil, in which a jury may be required, or in which a jurymay have been demanded, be continued and fixed for trialwhen a jury shallbe in attendance." (Emphasisadded.)

### Thereafter, the statutes providing for the mechanics of selecting a jury panel (sections 93-1503 et. seq.) are followed until the requisite number of jurors is chosen from the jury list and jury boxes. After this is done, the jurors are then summoned in the manner as provided in section 93-1509, which provides: "The sheriff, as soon as he receives a list or lists of jurors drawn, shall summon the persons named therein to attend the court at the time mentioned in the order, by a written notice by certified mail to that effect addressed to them to the post-office address named in the jury list an2 deposited in the post office with the postage thereon prepaid, except in cases where the district judge expressly directs that such service shall be made by giving personal notice, and shall return the list to the court at the opening of the regular session thereof, or at such session or time as the jurorsmay be ordered to attend, specifying the names of thosewho are summoned, and the manner in which each person was notified." (Emphasisadded.) There can be no question that sections 93-1501 and 93-1509 must be followed in circumstances where a jury panel is not already legally in existence. Section 93-1512 applies only where for some

reason there are not sufficient numbers on the original panel to complete the business of the court for the particular term involved. Here, the District Court entirely ignored sections 93-1501 and 93- 1509 and themajority has approved this bypass. The procedure actually used by the District Court is fraught with dangers and is hardly the procedure to be approved for summoning an entire jury panel when a man is on trial for his life. Here, a District Court, after dismissing an entire jury panel for procedural irregularities in the summoning process, commits an error equally as grave in allowing the clerk of court to obtain sixty willing jurors by calling them on the telephone. We have no idea of the actual number of jurors called before sixty of them agreed to sit. We do not know the exact procedure used by the clerk in calling the jurors. Did he go down the list alphabetically and continue calling until he obtained the required

### number of jurors? Did he call jurors in areas of Yellowstone County where, from previous experience, he determined itwould be most likely to get an affirmative response? Did he in fact call most of the jurors first who lived on the west side of Billings, commonly known to be the area where "successful" people live? What did the clerk of court tell each person when he called? What excuses did the potential jurors give if they stated they could not sit on the jury panel? Did they have a legal excuse for not appearing? Did the clerk tell the jurors what excuses would be permissible? We will never know the answers to these questions. Of

one thing, however, I am certain. If it so happened that the sixty jurors ultimately serving were a true cross-section of the residents of Yellowstone County, it was an accident. It did not occur because the District Court scrupulously followed the law. Under these circm~stances, it is a travesty to allow the conviction to stand. In State v. Fitzpatrick, (1977), Mont

# . , 569 P.2d 383, 358, 34 St.Rep. 736, 740, this Court stated: "ThisCourt has long held the accused in a criminal prosecution is constitutionally guaranteed a trial by an impartial jury selected and drawn in accordance with the law. State 

### ex rel. Henningsen v. District Court, supra; State v. Hay, 120 Mont. 573, 194 P.2d 232; Dupont v. McAdow, 6 Mont. 226, 9 P. 925. Any material deviation or departure in procuring a jury has been held to constitute a denial of fundamental constitutional rights. State v. Porter, supra; State v. Groom, 49 Mont. 354, 141 P. 858; State v. Tighe, 27 Plont. 327, 71 P. 3; reversed on other grounds 35 Mont. 512, 90 P. 981."

(Emphasisadded.) In the present case there was not only a material departure in procuring a jury, there was a total failure to follow the applicable law. Clearly, the defendant has been denied a fundamental constitutionalright. For the foregoing reason I would reverse defendant's conviction and order a new trial.