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? 2 c 1978 
Mr. Chief Justice Frank I. Haswell delivered the Opinion 

of the Court. 

Defendant appeals from the final judgment 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 to Rosebud, 

Montana. She was last seen alive around 9:00 p.m. that 

night at Melstone, Montana. On July 5, 1974, her car was 

found within a few miles of her home, near Rosebud. On July 

7, 1974, a ranch hand discovered a purse and other articles 

belonging to Peggy Lee Harstad inside a culvert approximately ten miles west of 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 white man hitchhiking on July 4 between 

Roundup and Forsyth, Montana at about the time of day Peggy 

Lee Harstad was driving between 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 office went to the Veteran's ~dministration 

Hospital in Sheridan, Wyoming, where these men were, to 

question them. Defendant and Nank admitted being in the area 

of Peggy Lee Harstad's disappearance and hitchhiking through 

Forsyth on the night of July 4th. 

On August 6, 1974, the F.B.I. laboratory provided a 

positive comparison between a fingerprint lift taken from 

the exterior of the Harstad vehicle and a sample fingerprint 
of ~ank. The F.B.I. also reported a positive comparison 

between a fingerprint of defendant and a lift taken from a 

paper found in Harstad'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 in the purse, defendant stated 

that he found a purse along the road they were hitchhiking. 

Vacuumings were taken in the Harstad vehicle. These 

were sent to the F.B.I. laboratory for analysis. They 

reported, on September 13, 1974, that Negroid head hairs 

were found in the loose hairs taken from the front seat. In 

addition, two Negroid pubic hairs were found in the vacuumings. 

On August 29, 1974, the decomposed body of Peggy Lee 

Harstad was found on the north bank of the Yellowstone 

River, just west of Forsyth, Montana. A forensic pathologist, Dr. John Pfaff, identified the remains as Peggy 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 in Sheridan, Wyoming, 

the defendant and Nank had moved to Boise, Idaho, sometime 

in August. At the request of Rosebud County authorities, the 

Boise police had kept these men under surveillance. 

On October 16, 1974, the then Rosebud County attorney, 

William Meisburger, and Undersheriff Graham u akin went to 

Boise, Idaho to further interrogate defendant and Nank. he 

next day, October 17, 1974, Meisburger and m akin went to see 

the Boise police. They talked to Detective m rake of the 

Boise police about bringing the defendant and ~ank to the 

police station for questioning. They informed him of all 

the evidence they had connecting the defendant and ~ank with 
the death of Peggy Lee Karstad. Detective Brake, since he 

had been doing some of the surveillance of the two men, knew 

about most of the evidence except about her body being 

found. After discussing the case with Meisburger and Makin, 

Detective Brake and a Detective Crowell went to the apartment where these two men were living. There the defendant 

and Nank were placed under arrest without a warrant for 

deliberate homicide in the death of Peggy Lee Harstad. 

After their arrest and being placed in custody, arrest 

warrants and complaints were issued by a justice of the 

peace for Rosebud County. The warrants and complaint 

charged defendant and Nank with deliberate homicide. 

Upon their arrest, defendant and Nank were advised of 

their rights. The defendant refused to waive his rights. 

Nank did waive his rights and, after being in custody for a 

few hours, gave a full confession. In his confession, he 

implicated himself and the defendant. He confessed that 

they kidnapped, raped, and murdered Peggy Lee Harstad. Nank 

consented to a search of their apartment and car for the 

murder weapons he said were used in the crime--namely, their 

motorcycle helmets and a rope. A search warrant was obtained 

and the helmets and rope recovered. 

On October 24, 1974, a motion for leave to file an 

Information in the District Court, Rosebud County, was 

requested and granted. The Information charged the defendant 

with three counts: Count I, deliberate homicide; Count 11, 

aggravated kidnapping; and Count 111, sexual intercourse 

without consent, inflicting bodily injury. ~efendant plead 

not guilty to all counts. 

On January 30, 1975, defendant moved to suppress all 

confessions, statements and evidence, illegally seized. A 
suppression hearing was held. Following the disqualification of the trial judge by the State and the assignment of 

the case to another judge, a second suppression hearing was 

held and defendant's motion denied. 

On May 7, 1975, the State entered into a written plea 

bargaining agreement with Robert Nank. Under the terms of 

the agreement, Nank agreed to plead guilty to deliberate 

homicide and solicitation to commit sexual intercourse 

without consent, and further agreed to testify at defendant's 

trial in return 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 

in return for dismissal of the aggravated kidnapping charge. 

On May 23, 1975, a written offer of a conditional plea of 

guilty was presented to the court. In this offer, defendant 

insisted on maintaining his innocence. The State refused to 

accept a guilty plea with defendant maintaining his innocence. 

Following a change of defendant's court appointed 

counsel, a change of venue from Rosebud County to Custer 

County and finally to Yellowstone County, and other pretrial proceedings and motions, defendant's trial commenced 

on October 23, 1975, in Yellowstone County. 

At trial, Coleman and Nank related opposite statements 

of fact as to their involvement with Miss Harstad. 

Nank testified that he and Coleman were traveling 

between Roundup and Forsyth on U. S. 12 on his motorcycle 

when they ran out of gas. They then tried to hitchhike. He 

said that one car stopped, but the elderly couple refused to 

give them a ride. 

Nank stated that Miss Harstad stopped and gave them a 
ride. He testified that while driving down the road, he 

reached over and turned the key on her car off and steered 

the car to a 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 that he 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 silver motorcycle helmet by the chin strap and crashed it against her 

skull. Nank said that Coleman then took a yellow nylon rope 

and attempted to strangle her 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 she was 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 it ran out of gas. They removed some 

things from the car and walked into Forsyth. Nank left 

Coleman in Forsyth, hitchhiked with gas to the motorcycle, 

and returned to pick up Coleman. They then went to the V. A. 

Hospital in Sheridan where they stayed until going to Boise. 

Defendant Coleman, on the other hand, testified that 

after the motorcycle ran out of gas and they were refused a 

ride, Nank suggested that because Coleman was black and 

there were few blacks in that area, he should go get the gas 

alone. Coleman testified that while he was sitting off the 

highway smoking, Nank got a ride. 

After several hours, Nank returned in a car and, 

according to Coleman, Nank was wet, upset and acting strange. 

Coleman said he was told to get their things off the motor- 
cycle and get in the car. When they both were in the car, 

Nank advised Coleman that he had killed a girl. The car ran 

out of gas, and they started to walk. Nank gave Coleman a 

purse to carry and later told him to get rid of it. Coleman 

threw the purse into a culvert. They then had breakfast in 

Forsyth, and Nank left Coleman while he went to get the 

motorcycle. Coleman also testified that Nank threatened him 

if he ever disclosed any of these facts. 

The trial ended on November 14, 1975. The jury returned 

guilty verdicts on all three counts. On November 21, 1975, 

the court sentenced defendant Coleman to 100 years on Count 

I (deliberate homicide); to death 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 trial was denied. A stay of 

execution has been granted pending this appeal. 

Defendant raises 41 specifications of error on appeal. 

We will discuss these alleged errors within the broader 

context of the issue to which they relate. 

We will restate the issues in this manner: 

1. Whether the death penalty, imposed as defendant'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 to plead 

guilty should have been accepted? 

5. Whether defendant's motion to dismiss 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's witnesses was improperly limited? 

8. Whether Nank's competency as a witness should have 

been determined prior to his testimony? 

9. Whether defendant's motion to dismiss, at the 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 the prejudice of defendant? 

11. Whether the District Court properly instructed the 

jury? 

12. Whether certain State's exhibits were admissible 

and whether defendant's exhibits were properly 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 is unconstitutional. 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 in violation of Witherspoon 

v. Illinois, (1968), 391 U.S. 510, 88 S.Ct. 1770, 20 L Ed 2d 

776. His second claim is that Montana's death penalty 

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 the jury that imposed or recommended it 

was chosen by excluding prospective jurors for cause simply 

because they voiced general objections to the death penalty. 

There is an exception to the rule. It provides that if a 
prospective juror is irrevocably committed to voting 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 that Witherspoon 

makes his death sentence invalid as two jurors were improperly 

excluded. We disagree. 

We hold that the two prospective jurors in this case 

were properly excluded under the exception to the general 

rule of Witherspoon. One juror stated that no matter how 

strong the evidence of guilt was, he could not vote to 

convict if a death penalty could be imposed. The other juror 

stated that she felt she could not live with herself if she 

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

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

were irrevocably committed to voting against a conviction 

because defendant could receive the death penalty. Their 

being excused for cause because of their irrevocable commitment against the death penalty does not invalidate defendant's 

death sentence. 

At the time of defendant's trial, the death penalty 

statute in Montana 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 to death under this statute. 

This statute was repealed by the 1977 session of the 

state legislature. Section 16, Chapter 338, Laws of Montana 

1977. The new death penalty statutes are codified 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 in this case. 
Section 94-5-304, R.C.M. 1947, as it existed in 1975, 

is a mandatory death penalty statute. In the light of recent 

U. S. Supreme Court decisions, this statute is unconstitutional 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 statute before 

the Court was North Carolina's death penalty statute. It 

provided the death sentence for all persons convicted of 

first-degree murder. In holding this statute unconstitutional, the Supreme Court said: 

"* * * North Carolina's mandatory death 

penalty statute for first-degree murder 

departs markedly from contemporary standards 

respecting the imposition of the punishment 

of death and thus cannot be applied consistently with the Eighth and Fourteenth 

Amendments' requirement that the State's 

power to punish 'be exercised within the1 

limits of civilized standards.'" Woodson 

v. North Carolina, 428 U.S. at 301, 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 Supreme Court also I 

held mandatory death penalty statutes unconst~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 statute requi~ing the imposition of the death sentence for rape, when one^ or more specified aggravating circumstances were found to be present. In 

Harry Roberts the Court held unconstitutional^ a Louisiana 

statute requiring the imposition of a death slentence for 

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 circumstances may be 

relevant to either the particular offender 

or the particular offense. Because the 

Louisiana statute does not allow consideration 

of particularized mitigating factors, it is 

unconstitutional." Harry Roberts v. Louisiana, 

97 U.S. at 1996. 

The same problems that existed in the statutes declared 

unconstitutional in Woodson, Coker, and Harry Roberts are 

present in the statute under which defendant was sentenced 

in 1975. It is a mandatory death penalty statute. Under 

this statute, if the court finds, as it did in this case, 

that the victim of an aggravated kidnapping died as a 

result of the crime, the convicted defendant must be sentenced 

to die. There is no 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 

constitutionally permissible. 

To have a constitutionally valid death penalty, the 

United States Supreme Court has established certain necessary procedures. 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 are present in 

Montana's death penalty statute as it existed in 1974, nor 

were they provided otherwise in this case. Thus, defendant's 

death sentence cannot stand. 

Issue 2. Defendant was sentenced to 40 years for Count 

111, sexual intercourse without consent, inflicting bodily 

injury. This sentence was 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 or more years older than 

the victim or if the of fender in£ licts 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." 

Defendant argues that there was insufficient evidence to 

support the verdict that the defendant inflicted bodily 

injury upon Peggy Lee Harstad in the 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 to measure jury determinations is 

well settled in this state. State v. Pascgo, (1977), 

Mont. , 566 P.2d 802, 34 St.Rep. 657. The rule is that 

questions of fact must be determined by the jury and given 

the required legal minimum of evidence, this Court on 

review will not substitute its judgment for that of the 

jury. State v. Merseal, (1974), 167 Mont. 409, 538 P.2d 

1364. The evidence is examined to determine if there is 

substantial evidence to support the conviction when viewed 

in the light most favorable to the state. State v. Pascgo, 

supra; State v. Merseal, supra; State v. 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 in the course of committing sexual intercourse. 

The evidence shows that defendant did commit sexual 

intercourse without consent. Nank testified that the defendant did so. Negroid pubic hairs were found in the car. 

However, Nank did not testify that defendant inflicted 

bodily injury upon Peggy Lee Harstad while engaged in sexual 

intercourse. The pathologist, Dr. Pfaff, specifically 
testified 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, 

fits the requirements of section 93-5-503(3), R.C.M. 1947, 

that bodily injury was inflicted in the course of the rape. 

We are unconvinced. To sustain a conviction for sexual 

intercourse without consent, inflicting bodily injury, there 

must be a showing of bodily injury as that term is defined 

in the 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 is no 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 in Idaho--the motorcycle 

helmets and the rope. He argues that his arrest without a 

warrant was unlawful because of a lack of probable cause to 

arrest. He contends that the State did not have probable 

cause to arrest him until after Nank's confession several 

hours after his arrest. He further claims that Nank's 

constitutional rights were violated because Nank's confession and consent to the search were involuntary. The District Court refused to suppress the evidence. Defendant 
maintains this was reversible error and raises the same 

arguments on appeal that he did in the suppression hearing. 

We find there was probable cause to arrest defendant 

without a warrant. The legality of an arrest is determined 

by the law of the jurisdiction where the arrest was 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 in Idaho, Idaho law must be applied to determine the 

validity of the arrest. Detective Brake arrested defendant 

and Nank in Boise without a warrant for a deliberate homicide 

in Montana. Idaho's general arrest statute, section 19- 

603(3), I.C., provides in pertinent part: 

"A peace officer may make an arrest in obedience 

to a warrant delivered to him, or may, without 

a warrant, arrest a person: 

"3. When a felony has in fact been committed 

and he has reasonable cause for believing the 

person arrested to have committed it." 

An examination of Idaho law discloses no case determining 

whether a peace officer may arrest a person in Idaho for a 

crime committed elsewhere, without a warrant, by the authority 

given him in this statute. 

Idaho, like Montana, has adopted the Uniform Criminal 

Extradition Act. There is a provision in that act for 

arrests without 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 arrest of a person 

may be lawfully made also by an officer or a private 

citizen without 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 in the courts of another state; but 

when so arrested the accused must be taken before a 

judge or magistrate with all practicable speed and 

complaint must be made against him under oath setting 

forth the ground for the arrest as in the last section; and thereafter his answer shall be heard as 

if he had been arrested on a warrant." 
The courts in Idaho have not had occasion to interpret this 

statute. 

Other jurisdictions have held that this provision of 

the Uniform Criminal Extradition Act implies the necessity 

of some prior court action in the state where the crime was 

committed, but the act is not intended to repudiate the 

common law rule that an arrest may be made on probable cause 

to believe the arrested person had committed a crime in 

another state irrespective of lack of complaint or warrant 

in that state. Desjarlais v. State, (1976), 73 Wis.2d 480, 

"In some jurisdictions an officer has no authority 

to arrest without a warrant a fugitive from justice 

from another state, even on telegraphic or personal 

request of the officers of the demanding state. 

In other jurisdictions an arrest may be made by 

an officer without a warrant, at least under 

certain circumstances as where the fugitive has 

committed a felony * * * ." 35 C.J.S. Extradition, 

512 (b) . 

These are matters left wholly 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 arrest may be made without a warrant where the 

arresting officer has probable cause to believe the person 

arrested had committed a crime in another state. Defendant's 

arrest was legal in this case as Detective Brake had probable 

cause to believe defendant had committed a felony in Montana. 

Under Idaho law, probable cause exists where there is such a 

state of facts as would lead a man of ordinary care and 

prudence to believe or entertain an honest and strong suspicion that such person has committed a crime. State v. 

Polson, (1959), 81 Ida. 147, 339 P.2d 510; State v. Loyd, 

(1967), 92 Ida. 20, 435 P.2d 797. Here, Detective Brake 
knew Peggy Lee Harstad had disappeared on the night of July 

4, 1974. He knew defendant and Nank had been seen together 

in the area of her disappearance on that night. He knew 

their fingerprints had been identified on her car and purse. 

He knew Negroid head hairs and pubic hairs were found in her 

car and that defendant was a Negro. This constituted probable 

cause to arrest them. 

Next we must 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. It was based on Nank's 

consent to the search. Defendant questions whether Nank's 

consent was freely given. However, defendant cannot assert 

any violations of Nank's constitutional rights. 

The rule in Montana is that a defendant does not have 

standing to challenge violations of constitutional rights of 

a co-defendant or third party by law enforcement authorities. 

State v. Braden, (1973), 163 Mont. 124, 515 P.2d 692. his 

rule is based 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 search made it a lawful 

search. 

There was no error in the District Court's denial of 

defendant's motion to suppress. 

Issue 4. Defendant claims the State refused to plea 

bargain with him or to accept his conditional plea of 

guilty because he is a black man. He claims it was because 

of his race that the State insisted upon having a full trial 

in this case, where, upon conviction, a death sentence could 

be imposed. He argues it is reversible error for the State 
not to plea bargain or to accept his offer to plead guilty. 

How this would be so, defendant has not made clear to us. 

We recognize that a defendant may plead guilty while 

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 deal with attempts to withdraw a guilty plea after it 

has been entered and deal with the voluntariness of the 

original plea of guilty. These cases do not require the 

trial court or the prosecution to accept a guilty plea. The 

acceptance of a guilty plea to a charged offense is within 

the discretion of the trial court. 

Accordingly, we find no error in the State's refusal to 

plea bargain with defendant or in the District Court's 

refusal to accept his conditional plea of guilty while 

maintaining his innocence. 

Issue 5. Defendant contends the District Court erred 

in denying his motion to dismiss the Information for failure 

to state facts sufficient to constitute an offense. His 

argument is that section 95-1503, R.C.M. 1947, relating to 

the form of a charge, requires that the charge to be in 

ordinary and concise language, and in such a manner that the 

defendant would know what was intended. He alleges that the 

Information in this 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, in attempting to amend the ~nformation. 

admitted the Information was defective. The trial court 

refused to allow the Information to be amended. However, 

the court itself amended Count 11, the aggravated kidnapping 
charge, to add the words: "resulting in the death of Peggy 

Lee Harstad." 

We fail to see how the State's attempt to amend the 

Information aids the defendant in claiming the Information 

is not sufficient. The State by amending the Information was 

trying to make it a better Information. They were not 

claiming it was insufficient as it existed. An Information 

need only be sufficient to apprise the accused of the nature 

of the crime charged. It need not be perfect. 

"It is frequently stated, as a general rule, either 

with reference to statutory misdemeanors, or to 

statutory offenses generally, that a charge 

is sufficient which follows the language of the 

statute creating 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 this general rule. An Information that 

properly charges an offense in the 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), 

132 Mont. 366, 318 P.2d 1084; State v. Duncan, (1957), 130 

Mont. 562, 305 P.2d 761; State ex rel. Glantz v. District 

Court, (1969), 154 Mont. 132, 461 P.2d 193. 

We hold that the Information filed in this case was 

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 to Count 11, contrary 

to defendant's contention, we find that it was a proper 
amendment. Section 95-1505, R.C.M. 1947, as it existed in 

1975, allowed an Information to be amended as to form after 

entry of plea but not as to substance. Defendant argues 

that the amendment to Count I1 was one of substance. He 

claims that prior to this amendment, he was not subject to 

the death penalty. We disagree. 

We recognize that any amendment to an Information which 

charges a crime different in penalty is a matter of substance 

and impermissible. State v. Fisher, (1927), 79 Mont. 46, 

254 P. 872; State v. Knight, (1963), 143 Mont. 27, 387 P.2d 

22. Here, however, the amendment was one of form. Defendant 

knew from the very beginning the death penalty was going to 

be sought. Prior to the amendment to Count 11, the death 

penalty, upon a conviction, could have been sought under 

either Count I or Count 11. The amendment simply limited it 

to Count 11. Furthermore, the record indicates that defendant 

was not surprised the death penalty was being sought. He 

objected to the amendment in the lower court, but he did not 

ask for any continuance as a result of it. He clearly knew 

prior to the amendment that the State was seeking the death 

penalty. 

In any event, no legal prejudice resulted from the 

amendment of Count I1 in the light of our holding that 

Montana's death penalty statute as 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 in accordance with the jury selection statutes. 

The challenge was made in conformity with section 95-1908, 

R.C.M. 1947, which states how a jury challenge is to be 

made. After a full hearing on the challenge, the ~istrict 

Court dismissed the jury panel. 
The court then ordered a new panel of 60 jurors be 

drawn and summoned to appear for trial on October 23, 1975. 

Defendant raised a second jury challenge to this 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. We disagree. 

Basically, defendant raises three arguments concerning 

why the jury panel that tried him was improperly drawn and 

summoned. First, he says that there were more numbers in 

the jury box than names on the jury list. There were 55,763 

numbers in the box and 44,765 on the list. When a number 

was drawn higher than 44,765, it was returned to the box. 

Defendant claims that having more numbers in the jury box 

than names on the jury list fails to 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 in the jury 

box in such a manner that they cannot be distinguished from 

each other. Neither of these statutes require that there be 

only as many numbers in the jury box as names on the jury 

list except there can only be one number for each juror. 

Defendant makes no allegation that there was more than one 

number for each juror. Therefore, we hold that having more 

numbers in the jury box than names on the jury list does not 

destroy the validity of the panel drawn. The purpose of 

these statutes is to insure that there be no unfairness in 

the selection of the jury. State ex rel. ~enningsen v. 

District Court, (1959), 136 Mont. 354, 348 ~.2d 143; In re 
Jury Box Capsules, (1967), 150 Mont. 583, 447 P.2d 687. We 

find no unfairness here in the 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 available for the trial on October 23, 

1975. Sixty-one of those called replied they would be 

available. Defendant claims that, in effect, the District 

Court clerk excused 139 jurors, and that, under the law, the 

District Court clerk may not excuse jurors from jury duty. 

Further, defendant claims that the jurors were allowed to 

excuse themselves for s l i g h t o r trivial cause in violation 

of the statute on being excused from jury duty. 

Section 93-1512, R.C.M. 1947, authorizes the District 

Court judge to draw and summon additional jurors for a trial 

when it is necessary to do 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 to get a 60 

member jury panel. He authorized the clerk to orally notify 

the jurors. The clerk, as section 93-1512, R.C.M. 1947, 

authorizes, notified the jurors by telephone. Thus, defendant's 

claim that notifying the jurors by telephone was improper is 

without merit. 

Section 93-1305, R.C.M. 1947, does deal with the grounds 

for being excused from jury duty. It provides that a juror 

may not be excused for slight or trivial cause. On the 

record that is before us, there is no showing that the clerk 

excused any of the jurors called. We note that the district 

judge had ordered the clerk to have a panel of 60 jurors for 

the trial on October 23, 1975, which he did. Further, the 
rule in Montana is that the failure of a juror to appear, if 

properly notified, will not invalidate a subsequent trial, 

as a defendant has no right to select a particular juror, 

but has only a right to reject a juror. State v. Moran, 

(196311 142 Mont. 423, 384 P.2d 777. Applying that rule to 

this case, we hold that defendant's trial should not be 

invalidated because 60 out of 200 jurors appeared which was 

the size of the panel ordered by the District Court. 

Finally, defendant argues that the speed used in 

selecting the jury denied him his right to a fair and impartial 

jury panel. He argues that the jury panel did not represent 

a cross-section of the community as most of the jurors came 

from the west side of Billings, Montana. 

The rule is that a defendant has a right to a fair and 

impartial jury selected from the proper place and drawn and 

summoned according to law. 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 

entire county deprives a defendant of fundamental constitutional rights. State v. Hay, (1948), 120 Mont. 573, 194 

P.2d 232. In - Hay this Court found that the defendant failed 

to establish that he had been deprived of his right to have 

a jury taken from a cross-section of the county by showing 

that all members of the jury panel were residents of the 

county seat, in the absence of a showing that it was the 

result of deliberate design. In this case, there was no 

showing of deliberate design to get a jury panel from only 

the west side of Billings. 

We hold that the jury was selected in substantial 

compliance with the law and that defendant's claim that he 

was denied a fair and impartial jury 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), 162 Mont. 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 submit hair samples to Hippard, he did not specifically state how this would be done or offer to furnish a 

comparison microscope. The District Court did tell defendant 

to proceed with his cross-examination and that they were 

then through with the witness unless defendant himself 
called 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. 

State v. London, (1957), 131 Mont. 410, 310 P.2d 571; State 

v. ~eller, (1952), 126 Mont. 142, 246 P.2d 817; State v. 

~hompson, (1974), 164 Mont. 415, 524 P.2d 1115. We find no 

abuse of that discretion here under the offer of the defendant 

and the District Court's rulings. 

Issue 8. Defendant assigns error in the District 

Court's denial of defendant's challenge to Nank's mental 

competency as a witness. 

A Montana statute provides that those of unsound mind 

cannot be witnesses. Section 93-701-3(1), R.C.M. 1947. It 

is the function of the trial judge to determine the competency 

of a witness to testify. State v. Newman, (1923), 66 Mont. 

180, 213 P. 805. There is no presumption A that a witness 

is incompetent and the burden is on the party asserting the 

incompetency to prove it. State v. 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 in the 

case, he may testify and the state of his mentality goes 

only to the 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. At the close of the State's case, defendant 

moved to dismiss the Information, or, in the alternative, 

for a judgment of acquittal for lack of corroboration of 

Nank's testimony. Corroboration of the testimony of one 
responsible or legally accountable for the same offense is 

necessary to sustain a conviction. Section 95-3012, R.C.M. 

1947. his statute requires corroboration by evidence 

which tends to connect the defendant with 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. We disagree. 

The rule on corroboration is stated in State v. Cobb, 

(1926), 76 Mont. 89, 245 P. 265. In that case, we held that 

the corroborating evidence may be supplied by the defendant 

or his witnesses; it may 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 to connect 

him with the crime. In State v. Keckonen, (1938), 107 Mont. 

253, 84 P.2d 341, we held that where 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 to connect him with the 

commission of the offense and is in the realm of speculation, 

not corroboration. Where the claimed corroboration shows 

no more than an opportunity to commit a crime and simply 

proves suspicion, it is not sufficient corroboration to 

justify a conviction upon the testimony of an accomplice. 

State v. Jones, (1933), 95 Mont. 317, 26 ~.2d 341. 

Applying those rules to this case, we hold there was 

sufficient corroboration of Nank's testimony to sustain 

defendant's conviction. The corroborating evidence is: he 

crack in defendant's motorcycle helmet; a hair of Peggy ~ee 

Harstad being on the rope belonging to these men; the finger- 
prints on her car and in her purse; the Negroid pubic hairs 

similar to defendant's and the Negroid head hair found in 

her car; and, the evidence that defendant and Nank were seen 

together on the same road and at approximately the same time 

that' Peggy Lee Harstad disappeared. This evidence tends to 

connect defendant with the commission of the offenses 

charged. It is evidence of more than mere opportunity or 

suspicion that defendant committed these offenses. This 

evidence does not establish any reasonable explanation 

pointing toward innocent conduct. We find no error in the 

District Court's denial of defendant's motion. 

Issue 10. On appeal, as at the trial, defendant raises 

objections to certain questions and answers elicited from 

the State's witnesses. He argues that these are cumulative 

errors requiring reversal. We do not agree. 

His first objection is to Nank's being allowed, on 

direct examination, to testify that he had told the same 

story concerning the crime to the police and the F.B.I. 

prior to the trial. Defendant claims that this testimony 

was used to buttress and fortify Nank's testimony before his 

testimony was challenged. 

Basically, the questions to Nank were to find out if 

Nank was testifying to the truth. This Court has held in 

the past that the State may ask such questions on direct 

examination. State v. Collett, (1946), 118 Mont. 473, 167 

P.2d 584. In Collett, this Court said the District Court 

did not commit prejudicial error in allowing the witness to 

answer a question as to whether he was testifying to the 

truth. The rationale is that while the answer is in the 

nature of a self-serving declaration, it is only a reaffirmation of what the witness promises to do when he takes the 
oath. We believe this approach is sound and will follow it 

here. We hold the questions and answers as to Nank's prior 

statements do not constitute prejudicial error. 

Defendant then objects to an F.B.I. agent being allowed 

to testify about defendant's attitude in his interview with 

defendant at Sheridan, Wyoming. Specifically, the agent 

testified that defendant was evasive during questioning. 

We agree that this was improper opinion evidence. 

However, technical errors or defects will not provide a 

basis for reversal in a criminal prosecution. State v. 

Gallagher, (1968), 151 Mont. 501, 445 P.2d 45. We hold that 

the admission of this testimony was only a technical error 

and is not a basis for reversal. 

Next, defendant argues that a F.B.I. fingerprint 

expert was allowed to testify on re-direct examination 

beyond the scope of cross-examination. The questions to 

which the defendant objected concerned the date on which the 

F.B.I. laboratory received certain fingerprint cards. The 

record reveals there was 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 State to clarify the issue on re-direct. 

Finally, defendant objects to witness Makin testifying 

as to where he was told certain hairs came from. Defendant 

claims this was hearsay. An earlier witness, Ash, who was 

the declarant, testified as to where he found the hairs. 

Here, undersheriff Makin was testifying to establish 

the chain of evidence. He had received the hairs from 

Officer Ash, who told Makin he obtained the hairs from the 

abandoned Harstad vehicle. Thus, the declaration of ~sh was

a part of the chain of evidence. 

We find no cumulative error in the testimony of the 
State's witnesses sufficient to warrant reversal. 

Issue 11. Defendant objects to certain instructions 

which were given to the jury and offered instructions that 

were refused. We find the jury was properly instructed. 

Defendant's first objection is to Instruction 22. This 

instruction was 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 instruction was 

based on section 95-3004(2), R.C.M. 1947. The instruction 

follows the statute. Defendant argues that instruction as a 

statutory presumption is unconstitutional, citing Leary v. 

United States, (1969), 395 U.S. 6, 89 S.Ct. 1532, 23 L ed 2d 

57. This case provides that to have a valid criminal statutory presumption, the presumed fact must more likely than 

not flow from the proved fact on which it depends. 

We find this instruction and statute are constitutionally valid. The jury was instructed that they "may" 

find knowledge or purpose when there are no circumstances of 

mitigation, excuse, or justification. They are not required 

to find this. Thus, it is not a conclusive presumption. 

The instruction and statute do not violate the Leary requirement because a finding of knowledge or purpose would more 

likely than not flow from the proved fact that a homicide 

was committed by defendant and where there were no circumstances of mitigation, justification, or excuse. 

Defendant objects to Instruction 26, which gave the 

statutory definition of "knowingly", and further objects 

that his offered Instruction 16, which dealt with criminal 

intent and premeditation, was not given. Instruction 26 was 

the statutory definition of "knowingly" as contained in 
section 94-2-101(28), R.C.M. 1947. The portion of the statute 

and instruction defendant objects to is: "When knowledge of 

the existence of 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 is why, 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 there was no error in the court's giving of 

Instruction 26 and refusing to give defendant's Instruction 

16. We have considered the necessity of instructing the jury 

on criminal intent and premeditation before. State v. 

Sharbono, (1977), Mont. , 563 P.2d 61, 34 St.Rep. 

196. In that case, we found no error in the District Court's 

refusal to give an instruction identical to defendant's 

offered Instruction 16. There, we held that the legislature 

had changed the requirements of mens rea. This Court said, 

in discussing the question of criminal intent: 

"Upon the whole it is the person who means 

to do the thing that constitutes a crime, 

knows he is doing it, and knows that there is 

a substantial and unjustifiable risk in doing 

it, whose conduct warrants condemnation of the 

kind from which conviction results." Sharbono, 

563 P.2d at 72. 

Therefore, we find the court properly instructed the jury as 

to the "knowledge" required for a conviction in Instruction 

26 and properly refused defendant's Instruction 16. 

Defendant objects that his offered Instruction 10 was 

not given. This instruction deals with the burden of proof. 

It comes from State v. Halk, (1914), 49 Mont. 173, 141 P. 
The Court adequately instructed the jury concerning the 

burden of proof in Instruction 4. Thus, there is no error 

in refusing defendant's offered Instruction 10. 

Next defendant complains that his proposed Instruction 

14 on reasonable doubt was not given. We believe the court 

rightfully refused this instruction since the jury was 

adequately instructed on reasonable doubt in the court's 

Instructions 5, 6, 7, and 10. Defendant's proposed instruction 

would have only been redundant, and, therefore, was unnecessary. 

Defendant contends that his offered Instruction 34 

should have been given. This instruction dealt with the 

not having to decide in conformity with the greater 

number of witnesses if their testimony does not produce 

conviction in their minds. Defendant argues that with the 

number of witnesses the State produced, he was entitled to 

this instruction. We disagree. 

We must point out that the instruction defendant proposed 

was adequately covered in the court's Instruction 2. This 

instruction read in part: 

"You are not bound to decide in conformity with 

the declarations of any number of witnesses, 

not producing conviction in your 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 

in this case." 

This is a standard Montana Jury Instruction Guide instruction 

which correctly states the law. The District Court was 

correct in refusing defendant's offered Instruction 34 

covering the same subject. 

Next, defendant alleges that his offered Instruction 

35A should have been given. This instruction was on the 

lesser included offense of mitigated deliberate homicide. 
Where there is no evidence of mitigation that would fit 

within the statutory definition of mitigated deliberate 

homicide, section 94-5-103, R.C.M. 1947, the trial court 

should properly refuse to instruct on such crime. State 

v. Baugh, (1977), Mont. , 571 P.2d 779, 34 St.Rep. 

1315. In viewing the record here, we find no evidence of 

mitigation. This instruction was properly refused. 

Defendant also objects to Instruction 40. This instruction told the jury that sentencing was vested in the court 

and the jury was not to consider the possible punishment 

defendant could receive in reaching a verdict. Defendant's 

objection is that in this instruction, and in voir dire of 

the jury, the jury was led to believe that the judge had 

discretion in imposing the death penalty. 

This instruction simply told the jury sentencing was up 

to the judge. The instruction does not state that the judge 

can mitigate punishment. It only says that he has the power 

to impose punishment, which is correct. It is where the 

jury is instructed as to the various possibilities of sentence 

that prejudice to the defendant exists. State v. Zuidema, 

(1971), 157 Mont. 367, 485 P.2d 952. This is not the case 

here. The instruction was 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 

that Montana law does not provide for specific factual 

findings by the jury. 

The jury was given general verdicts asking for a finding 

of guilty or not guilty on each count. The jury was to make 

the additional finding that the element necessary for the 
imposition of the death penalty was present. Under those 

circumstances, this additional factual finding does not 

fall into the vice of a special verdict. It does not require 

a fact determination which could be used to undermine the 

general verdict. Thus, the verdict forms were permissible. 

In any event, our holding on Montana's death penalty 

statute renders this specification of error nonprejudicial. 

Issue 12. Defendant objects to some exhibits which 

were admitted into evidence and some of his own which were 

refused admission. 

His first objection is to State's Exhibit 20. This was 

a picture of the area in which Peggy Lee Harstad's body was 

found. In the picture, her decomposed body can be seen. 

Defendant argues that this picture was prejudicial because 

it is a gruesome photograph. He claims that any relevancy 

of this photograph is outweighed by its prejudicial effect. 

This Court has held that photographs which help the 

jury understand the case are admissible, but photographs 

that are calculated to arouse the sympathies or prejudices 

of the jury are properly excluded. State v. Bischert, 

(1957), 131 Mont. 152, 308 P.2d 969. This Court went on to 

say, in that case, that photographs may not be used if 

intended to inflame the minds of the jury rather than enlighten 

them as to the facts. We affirm the rule of the Bischert 

case, but reject its application to this case. 

In Bischert, the photograph was extremely distasteful 

and did not make a significant contribution to the development of the facts in that case. This is not the case here. 

We have 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 in its 
development and reproduction. The photograph is relevant in 

that it shows the jury the area in which the body was found; 

and it corroborates Nank's testimony as to her being fully 

clothed and as to where the body was. Under the circumstances 

here, the photograph's probative value outweighs its prejudicial 

effect. 

Defendant objects to the admission of two other photographs, namely, State's Exhibits 41 and 43. These were 

pictures of the apartment building and the parking lot in 

Boise, where defendant and Nank were arrested. Defendant 

argues that these photographs were irrelevant and cumulative 

evidence. 

As a general rule, photographs, when relevant to describe 

a person, place or thing, are admissible for the purpose of 

explaining and applying the evidence and assisting the court 

and jury in understanding the case. Fulton v. Chouteau 

County Farmers' Co., (1934), 98 Mont. 48, 37 P.2d 1025. The 

photographs of the apartment building and parking lot helped 

to describe 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 in Boise. They were 

properly admitted. 

Defendant also objects to the admission of Nank's 

motorcycle helmet into evidence. His complaint is that the 

chain of evidence was not established prior to the admission 

of the helmet and further complains that he was not allowed 

to voir dire Nank prior to its admission. Defendant states 

there was a problem with the chain of evidence in that this 

helmet was labeled as belonging to defendant 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 to voir dire Nank prior to the admission into evidence 

of the helmet but such was not required. There is no indication 

that such a voir dire would have produced a different result. 

At most, only a procedural error not affecting the merits 

was involved, and not a prejudicial error requiring reversal. 

State v. Heiser, (1965), 146 Mont. 413, 407 P.2d 370. 

Defendant further claims error in admitting in evidence 

the waiver of rights form given to defendant in Boise, which 

he refused to sign. Defendant claims this exhibit was 

irrelevant and should have been excluded as cumulative 

evidence. 

We can find no error in the admission of this exhibit. 

This exhibit aided in the jury in understanding the events 

of this case that occurred in Boise, Idaho. It supported 

the testimony of the Boise detectives as to the date of the 

arrest, the time of the arrest, and that defendant was 

informed of his constitutional rights. The exhibit was 

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 in the fingerprints. 

Our review of the record indicates that defendant did 

not lay a foundation, prior to moving for the admission of 

his exhibits, showing that fingerprints could be compared in 
the manner defendant was attempting to compare them. What 

defendant wanted to do was to show the jury by actual measurement 

the difference in the distance between the ridges between a 

known print of defendant and the print found in Peggy Lee 

Harstad's purse. A fingerprint cannot be compared in this 

manner. The same fingerprint will produce differing results 

with respect to a measurement between the ridges depending 

upon the pressure applied in making the print and the manner 

in which the print was left upon the surface. Fingerprints 

are compared by determining if the same ridge characteristics 

are present in a known print and unknown print. These ridge 

characteristics will not vary between the different ways in 

which an impression is made on a surface. 

The rule is that the determination of whether a proper 

foundation has been laid in order to introduce exhibits into 

evidence rests with the lower court and its determination 

will not be overturned unless there is a clear abuse of 

discretion. State v. Olsen, (1968), 152 Mont. 1, 445 P.2d 

926. Here, the District Court 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 the water level in the Yellowstone River on July 

4, 1974. 

This exhibit was to aid defendant's argument that Peggy 

Lee Harstad was not drowned in the river as Nank testified 

she was. Defendant was trying to prove that the river, on 

~uly 4, 1974, was too deep, in the area where the body was 

found, for Nank and defendant to be holding her under the 

water. This exhibit was not admissble because of a lack of 

a proper foundation. Our review of the transcript reveals 
that the witnesses who prepared this exhibit were never 

shown to have the qualifications to prepare such an exhibit; 

it was not made clear how they arrived at the calculations 

they made of the height, flow, and volume of the river; and, 

it was not established that their calculations of the height 

of the river on July 4, 1974, were competent. Under such 

circumstances, there was no error in denying this exhibit 

admission in evidence. 

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 is well-settled that a new trial will not 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 at the 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 

will be granted for newly discovered evidence. 

(Citations omitted.)" State v. Schleining, (1965), 

146 Mont. 1, 17, 403 P.2d 625. 

In this case, defendant's newly discovered evidence 

would only go to discredit Nank'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 will follow the general rule 

in finding no error in the 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 in this opinion. 
The judgment of conviction on all three 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/f 92-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 intercourse without 

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 "the evidence 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 

State must 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 "impairment of 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 sentence because 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." (Emphasis added.) 

Clearly there is substantial evidence to show the victim 

was killed in the "flight after" the commission of the rape. 

According to Nank's testimony, she was 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 she was killed in 

an attempt to cover up the commission of the rape. The majority 

completely ignores the "flight after" 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 the most severe extent. 

I would affirm the imposition of the 40 year sentence. 

(k

Justice 
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 section provides: 

"Obtaining additional 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 as many 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 judge may 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." 

(Emphasis added. ) 
This statute allows additional jurors to be summoned by 

telephone (as one 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. The majority 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 challenge was 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 for more 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 court may direct that such 

causes, either criminal or civil, in which a 

jury may be required, or in which a jury may 

have been demanded, be continued and fixed for 

trial when a jury shall be in attendance." 

(Emphasis added. ) 
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 jurors may be ordered 

to attend, specifying the names of those who are 

summoned, and the manner in which each person 

was notified." (Emphasis added.) 

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 the majority 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 it would 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: 

"This Court 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." 

(Emphasis added.) 

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 

constitutional right. 

For the foregoing reason I would reverse defendant's conviction and order a new trial.