### No. 13804 IN THE SUPREME COURT OF THE STATE OF MONTANA 1978

STATE OF MONTANA, Plaintiff and Respondent,

-vsWILLIAM JOHN COLLINS, Defendant and Appellant.

Appeal from: District Court of the Eiqhth Judicial District, Honorable Truman G. Bradford, Judqe presidinq. Counsel of Record: For Appellant: Smith, Emmons, Baillie & 

### Walsh, Great Falls, Montana Robert J. Emmons arqued, Great Falls,Montana For Respondent: Hon. Mike Greely,Attorney General, Helena, Montana Allen 

### B. Chronister,Assistant Attorey General, argued,

Helena,Montana J. Fred Bourdeau, County Attorney, Great Falls,Montana Nick Browning, Deputy County Attorney, appeared, Great

Falls,Montana

Submitted: April 

### 20, 1978 Decided: 

### Filed: 

# AuC1, 

## 1978Mr. Justice John C. Sheehy delivered the Opinion of the Court.

Defendant WilliamJohn Collinswas charged inthe DistrictCourt, Cascade County, with the offense of deliberate homicide. Upon hisplea of not guilty, after trial, the jury returned a verdict of guilty of mitigated deliberate homicide. Judgment of conviction was entered, and defendant

was sentenced toimprisonment for a term of fortyyears. From judgment and denial of a new trial, defendant appeals. Without question, on April 23, 1973, defendant shot Darrell David Gardipee, who died asa result. The shooting occurred on Wire MillRoad, north of Great Falls. The only witnesses tothe events prior tothe shooting were the defendant and Carla Brave. Two others, Robert M. Bretz and hiswife, drove upon the scene very shortly after the shooting. The only witness tothe actual shooting was defendant. From the evidence it appears defendant, a 48 year old unemployed painter, atand prior tothe 

### timeof the shooting



### was living ina camper mounted on his pickup truck. Hehad been inGreat Falls 4 or 5 days, with no definite location, parking his pickup and camper unit invarious places from time to time. Before returning toGreat Falls, he had been inArizona since theprevious September doing some prospecting there. CarlaBrave, then inher twenties, a singer with a band thatplayed inlocal night spots inGreatFalls, met Gardipee, then 21, about sixmonths before the incident. They became good friends. In the afternoon preceding the shooting, Gardipee went to the placewhere Carla was rehearsing. After the practice session, he invited Carla toaccompanyhim to the Brass Rail, a localbar. There they had some drinks and played pool ata table atthe rear of the premises. While Carla and Gardipee were atthe Brass Rail, about 6:30 or so inthe evening, defendant entered the bar. He had been drinking before he arrived, and upon entering he ordered a round of drinks forthe house. He noted Gardipee and Carla playing pool and fellintoconversation with them, although he did not know them. Hebought a round or two of drinks. They alltalked and played some pool and continued toconsume liquor. Finally they decided togo to another place. Defendant had the transportation facilities sohe drove them to the City Bar, where Gardipee went inand returned with a bottle of wine. Carla testified that allthree inspected the inside of the camper while they 

### were stopped atthe City Bar; defendantremembers the location as atthe Brass Rail. Atany rate, the camper was inspected and admired by carla and Gardipee. Carla particularly testified that atthe 

### timeof the inspection, she saw no riflelying on a bed inthe camper, nor indeed did she observe one inthe camper otherwise.When they leftthe City Bar, Carla wanted togo toher place, but Gardipee wanted toride around. Defendant drove theunit out of the cityon the Havre highway, and then turned off thathighway totheWire MillRoad, thence toa place not farfrom theMissouri River, where he parked. All threewere sitting inthe cab of the pickup. When they stopped, Carla and Gardipee got out and wandered towards the river. The nightwas cold, but they talked and kissed about an hour before she returned to thecab, where defendant had remained. Hehad continued to drink, consuming beer they had brought from the Brass Rail, and some whiskey he had procured from the camper. Gardipee


### was drinking from thewine bottle. Carla and defendant talked inthe cab for a 

### time, while Gardipee remained outside. Defendant told Carla that he thought ''everybody shouldmake love to everybody". The remark "kind of spooked" her. Then he asked her if she would like togo tothe camper inback and drink whiskey with him. Carla alsotestified about another matter he discussed, towhich 

### wewillalludemore fully later inthis opinion. Carla leftthe cab, and defendant remained inside. She rejoined Gardipee, but did not tellhim of the conversation inthe cab. Meanwhile, Gardipee was acting strangely. He was raising thewine bottle tothe sky, jumping up and down, and he appeared todefendant tobe "flipping out." Finally, near midnight, they decided toleave. All three got inthe cab, Carla sitting inthemiddle. Defendantdrove up tothe point of again enteringWire MillRoad. Here Gardipee grabbed the steering wheel and wanted to turn right. Defendant, however, wanted togo back toGreat Falls, which was to the left. Meanwhile Gardipee was complaining how the whiteman had messed up the Indian land, and said "This isour land." Then he slammed his fiston the dash of the cab and said "Even thisbelongs tome." ~efendant testified that atthatpoint, Gardipee started punching him inthe head while he was driving. ~efendant stopped the truck inthe lane of traffic of the roadway. Gardipee got outon his side of the pickup.Defendant testified he jumped out of the truck on the driver's side and ran back tothe rear of the camper. He opened the rear door and got into the camper, and attempted to lock the camper door behind him. Defendant testified that then the door of the camper
was jerked open by Gardipee, who said "I've got you now" or words tothat effect. Defendant was inside the camper, possibly inthe middle of the camper. Gardipee was atthe door with one hand on a handle tohelp himself inand defendant said he saw something "bright colored" inhis other hand. Defendant did not know what it was, nor was it ever further identified atthe trial. The interior of the cabwas dark. Defendant had not turned on the interior camper lights. The outside lights of the camper unit

### wereon, including the clearance lights. Defendant testified that itwas dark enough however that he could not have identified the person asGardipee coming into the truck, nor could he see Gardipee's eyes. Defendant had inthe camper a bolt-action .22 caliber riflehe had purchased inGreat Falls, prior to going to Arizona forprospecting. Defendant testified that after Gardipee jerked the camper door open, defendant ran a step

or two to the front of the camper and picked up the rifle from the bed where it was lying. He turned without raising the gun tohis shoulder, keeping it inhis right hand, and fired. He stated he did not intend to shoot Gardipee atthe time; that he thought it would scare him off; and, that the gun went off accidentally. Because of themake and type of rifleinvolved, the gun must have been ready tofire, with a bullet inposition in the chamber. Defendant said nothing and gave no warning before he fired the shot.The bullet entered the body of Gardipee nearly in the middle frontatthe level of the seventh riband traveled downward atan approximate forty-five degree angle through his diaphragm, the posterior of his liver, through his vena

cava and lodged next tohis spine inthe abdomen. Gardipee fellback from the camper tothe ground. Hewas ina doubledup position on the ground when Carla came from the cab, where she had remained after the men got out, until she heard the shotwhich sounded likean "explosion". Defendant was getting down from the camper when Carla

came to the scene. He still had the rifle inhis hand. At thatmoment another car drove up, driven by Robert Bretz, with hiswife as a passenger. Defendant placed the rifleon the floor of the camper, went around to the cab of the pickup, got in, and drove off, leaving Gardipee on the roadway, with Carla bending over him. Defendant drove to the Cascade County sheriff's office, where he turned himself in. Meanwhile Robert Bretz, his wife and Carla put the bleeding Gardipee into the Bretz car and went to the hospital, where he expired of hiswounds atapproximately 12:55 a.m. An autopsy 

### was laterperformed which established the cause of death. The foregoing outlineof facts is taken mainly from defendant's testimony. There arecertain discrepancies between his testimony and other witnesses inother matters, but the storyof the events surrounding the actual shooting

came mainly from defendant. The jury listened tothe testimony, considered the relevant facts proven, and brought initsverdict of guilty of mitigated deliberatehomicide againstdefendant.Defendant's appeal concerns mainly five issues which attack the verdict and subsequentjudgment: 1. Whether the DistrictCourt properly admitted testimony of an alleged statement of defendant that he had been imprisoned for rape. 2. Whether the DistrictCourt properly instructed the jury

# . 3. Whether defendant was denied a speedy trial. 4. Whether the District Court erred inadmitting certainphotographs inevidence. 5. Whether the evidence supports the jury verdict. The firstissue, the alleged statement of defendant thathe had been imprisoned for rape, arose during the testimony of Carla Brave about her conversation inthe cab of the pickup with defendant while Gardipee was outside. In addition tothe subjects outlined above, Carla was permitted totestify, over objection, thatdefendant told her during the conversation thatdefendant knew Merle Gardipee, the brother of 

### DarreUGardipee; that he had 

### methim inprison. She asked defendant "what were you inthere for?" and he "saidhe was inforrape." The statecontended the evidence was relevant to the events and tothe attitudeand intent of the defendant that evening. Defendant's counsel objected that the offered testimony 

### was hearsay, and was an attempt by the stateto get intothe record a statement of a factthatwas not a factatall. Also, that inrebutting such testimony, defendantwould perforce open himself up toquestioning on state's cross-examination as toa prior prison record. (In argument before this Court, the stateargued the evidence is part of the "resgestae", while defendant argued the 

### testimony was an improper showing of another unrelated crime.)When shewas cross-examined by defendant, Carla admitted she had been told inthe county attorney's office thatdefendant had not been convicted of rape. In defendant's cross-examination by the state, he admitted he had been convicted of a prior felony, not specified, and the matter was not further pursued. The net effectof the evidence then was thatdefendant told Carla he had once been inprison forrape; she admitted that later she was informed itwas not true; and defendant admitted he had a prior felony conviction on his record. The objectionon appeal that the testimony constituted proof of a prior unrelated offense does not bear analysis. The statedid not prove thatdefendant committed an unrelated crime; it didprove that defendant claimed he committed such an offense. The difference could be monumental. It isthe same difference as an unmarried woman who - is pregnant and an unmarried woman who claims tobe pregnant. A subsequentmarriage founded upon the realitymay be justified; but a marriage founded upon the supposition may not be. The statement of defendant is inthe same category of evidence, occurring atthe same time as the other verbal acts testified toby Carla, such as defendant's statement about everybody making love toeverybody, and his invitation toher todrink whiskey with him inthe camper. These remarks went inwithout objection. The statementof defendant was relevant as a part of thewhole factual situation tobe considered by the jury in weighing the guiltor innocence of defendant. Especially is this true where, ashere, the defendant asserted selfdefense asjustification. Hisstateof mind leading up tothe shooting was a matter bearing on his guiltor innocence for the jury toconsider in the lightof that defense. The statement was therefore a "verbal act" relevant to the issues, and thus admissible. As noted inOverton v. United States, (1968), 403 F.2d 444, 447, the verbal actdoctrine is technically not an exception to the hearsay rule. The words of defendant

### werenot offered for the purpose of proving the truth of the assertions they contained, but merely for the purpose of establishing the fact that the words had been said by the defendant. Ward v. United States, (1961), 296 F.2d 898. On the other hand, the statementwas not admissible as part of 

### res gestae, as that exception to the hearsay rule takes instatements made under such circumstances that reflection and fabrication areunlikely. Statev. Fairburn, (1959), 135Mont. 449, 340 P.2d 157. Standing alone the statement might not be relevant or material, but it formed a part of the circumstances, a linkwhich, when connected to other evidence, becomes relevant and material in the case. 29 Am Jur 2d, Evidence 8255. As such the statement was clearly admissible and the District Court committed no error inpermitting 

### it. Wefind no substance indefendant's first issue. In his second issue, the defendant contends the District Court committed error in instructing the jury. This issue involves two sub-heads, (a)whether a "ladder" instruction should have been given tothe jury, and (b)whether the jury

was properly instructedwith respect to self-defense. In considering this issue, we firstanalyze the law applicable todeliberate homicide, and the inferior grades of homicide thereunder, as

### well as the applicable law of justification or exoneration.

### When Montana adopted its Criminal Code of 1973 (Title 94,Chapters 1-8, Revised Codes of Montana 1947), itwiped out the theretofore existing statutory provisions defining the crimes of murder and of manslaughter. In lieu, the new code provided that criminal homicide includes deliberate homicide, mitigated deliberate homicide, and negligent homicide. Section 94-5-101 et seq., R.C.M. 1947. In capsule, the grades of criminal homicide can be defined as: an unlawful death caused by a negligent actor is negligent homicide; an unlawful death purposely or knowingly caused by

an actor under the influenceof extreme mental or emotional stress forwhich there is a reasonable explanation or excuse ismitigated deliberate homicide; and, an unlawful death caused by one acting purposely or knowingly is deliberate homicide. Section 94-5-102; 94-5-103; 94-5-104, R.C.M. 1947.It is to be noted from the definitions that committing the homicide "purposely or knowingly" is an element of deliberate homicide, and also of mitigated deliberatehomicide. In the case of mitigated deliberate homicide, even though the actmay have been committed purposely or knowingly, it is one that is committed under the influence of extreme mental or emotional stress for which there is a reasonable explanation or excuse. In considering the instructions given by the court,we must also look to the law on justification or exoneration,

more popularly known,perhaps, as "self-defense". Under the old code, a homicide committed in self-defense was "excusable homicide". Under the Criminal Code of 1973, conduct necessary to defend oneself or another against the imminent use of unlawful forcemay result in such conduct being a justifiableuse of force. Section 94-3-103, R.C.M. 1947. When a person inan occupied structureuses such force as isnecessary to prevent or terminate another's unlawful entry into the occupied structure, even tothe extent of causing deathby the use of the force, for the purpose of preventing an assaultorpersonal violence upon an individual or toprevent the commission of a forciblefelony inthe occupied structure, such use of force isjustified. Section 94-3-103, R.C.M. 1947. Atallevents, the degree of force used by the actor must be reasonable, based upon what a reasonable person would believe under the same circumstances. Sections 94-3- 103, 94-3-104, R.C.M. 1947; Statev. Brooks, (1967), 150 Mont. 399, 436 P.2d 91. The foregoing arethe concepts ina criminal homicide case, such asthe one charged here, which must be conveyed tothe jury by thejudge inthe body of his instructions. He may fleshout such concepts asmay be necessary but if the body of the instructionscontains the foregoing elements, fairly and fullyconveyed tothe jury, then we must consider thejury has been properly instructed both for the stateand the defendant. Against thatbackground, we examine the instructions given inthiscase. The essential elements arethere. The trialcourt defined the grades of criminal homicide (InstructionNo. 32); it defined deliberate homicide (~nstruction No. 31), mitigated deliberate homicide (InstructionNo. 18), and negligent homicide, (Instruction 19)

# . Moreover, the jury was instructed on thejustifiable use of force to defend oneself against the imminent use of unlawful force, and thejustifiable use of force against a person breakingintoan occupied structure, substantiallyinthe language of the statutes. Using the 

### test applied inStatev. Porter, (1964), 143Mont. 528, 539, 391P.2d 704, the instructions given on justifiable forcegave the defendant ample opportunity toexpound tothejury inargument his theory with respect tothe use of force as self-defense against an unlawful act. On oralargument, defendant strenuously argued that nowhere inthe instructionsdid the court advise the jury, with respect tomitigated deliberate homicide, inwhat circumstances thejury should acquit the defendant. Defendantpoints out that inInstructionNo. 1, the court outlined the elements of deliberatehomicide and stated that defendant should be acquitted if the elements were not proved. In Instruction No. 17, it pointed out the elements of negligent homicide and stated that if those elements were not proven beyond a reasonable doubt that defendant should be found not guilty. Contrasting those instructionswith the lack of a similar instructionwith respect tomitigated



### td.L!Xkqf 2 de-abl-e homicide, defendant contends grievous error on the part of the DistrictCourt. In essence defendant is complaining that if thejury found a justifiable forceused by defendant the instructions did not say that in such event the jury should acquit the defendant. Two thingsmilitate against thisposition of defendant. First, such an instructionwas not offered by defendant; and second, the rule inMontana is that if the jury isproperly instructed on the law pertaining tojustifiable force ina homicide case, the court need not go further and tell the jury that itmust acquit the defendant, if it finds that justifiable forcewas used. Statev. Smith, (1975), 168Mont. 93, 100, 541 P.2d 351; Statev. London, (1957), 131 Mont. 410, 433, 310 P.2d 571. ~efendant further argues that the DistrictCourt erred inrefusing togive defendant's proposed instructionNo. 6, which would have told thejury that if it had a reasonable doubt whether the homicide was justifiable,thsnit must give the defendant thebenefit of that doubt and acquit him. That specific instructionwas refused inStatev. Logan, (1970), 156Mont. 48, 66, 473 P.2d 833, and thisCourt approved. The Court inLogan indicated that such instructionwas unnecessary where thejury is otherwise properly instructed on reasonable doubt. In this case, Instruction No. 2fully covered thejury's duty with respect toreasonable doubt. Defendant further argues that his proposed instruction No. 4 which would have instructed the jury with respect to justifiable homicide, that is the use of justifiable force,

was improperly refused. As stated however, this subjectwas fully covered by the court inother instructions, and it appears that in

### its InstructionNos. 23 and 24, the court particularly instructed thejury tothe effectthat the person using force, if acting as a reasonableman, isjustified inacting ashe did. Indeed, inInstruction flo. 24, it is stated that a personmay actunder the appearance of peril if thatappearance makes the person actingbelieve thathe isindeadly perilof his lifeor of receiving great bodily harm, and if a reasonableman, inthe same situation seeing and knowing what the actor knows, would be justified inbelieving himself indanger. Since counsel was not limited under those instructions from fairlypresenting his defense tothejury, the defendant willnotbe heard tocomplain that the court failed togive the many different

nuances on a theory of defense thatmight have been devised. Finally, under this issue, with respect to the contentionmade atoralargument that the court should have given

a "ladder" instruction which would have (1)encompassed the various grades of homicide under criminal homicide, (2) instructed astothe elements, and (3) advised the jury to convict or acquitwith respect toeach such possible offense

or inferior grade of offense, the answer remains the same: such an instructionwas not offered, and inany event the instructions adequately covered the offenses of which the defendant could be convicted and his defenses thereto. It isnot tobe forgotten that inthiscase the court sent four possible verdicts tothe jury, including one for each grade of criminal homicide and one for acquittal, and defendant made no objection atthat time tothe forms of verdicts being submitted tothejury for its use. We conclude therefore that the trialcourt committed no

error with respect tothe second issue raised by defendant. Defendant inhis third issue argues thathe was denied

a speedy trialasrequired by the Fourteenth Amendment to the United States Constitution and by Article 11, Section 24, 1972Montana Constitution. Counsel for defendant in oral argument conceded that the prejudicial delay does not extend beyond the firstelevenmonths. The following timetable of events ispertinent toa determinationof this issue: April 23, 1975 Date of arrest. April 28, 1975 Information filed. ~pril 29, 1975 Defendant arraigned. ~pril 30, 1975 Defendant posted bond.May 2, 1975

May 21, 1975 May 23, 1975 August 23, 1975

October 1975

January 29, 1976

March 3, 1976

March 29, 1976 Defendant filedmotion toproduce confessionstatement on demand for discovery and production of evidence for inspection. Defendant disqualifies Judge Nelson. Judge Bradford called in. Defendant filesnotice of intent torely on selfdefense and motion for order to take the deposition of Carla Brave. Defendant leaves Montana for Arizona to seek employment. Trial date set for March 29, 1976. Defendant returns to Montana from Arizona. Trial date vacated at defendant's request. Under defendant's concession--that only the first elevenmonths aretobe considered under the speedy trial issue, 

### we have a period of 336 days elapsing from the date the Information was filed until the firsttrialdate. This number of days is greater than the presumptive period established inState ex 

### rel. Sanford v. District Court, (1976), Mont. 

## , 551 P.2d 1005, 33 St.Rep. 644, as a prima facie case of delay. Accordingly, we 

### are called on to balance the factors set out inBarker v. Wingo, (1972), 407 U.S. 514, 92 S.Ct. 2128, 33 L Ed 2d 101, todetermine the speedy trial issue. These factors are--length of delay; the

reason for delay; defendant's assertion of his right; and, prejudice to the defendant. The firstfactor, length of delay, is established. The second and third factors we consider together. It appears that defendant sought and received permission to leaveMontana forArizona while his trialwas pending. The reasons for his leaving 

### werepersonal todefendant. The period of timehe was away from the stateon personal business cannot be counted against the state. That period encompasses themonth of October 1975 through the firsttrial date of March 29, 1976, which datewas vacated atdefendant's request. The record shows negatively for that period that defendant wanted orwas ready for a trial, much less that he was assertinghis right to trial. Of significance also is the fact that defendant did not filehis intent torely on self-defense until August 23, 1975. In explaining his delay in so filing, defendant stated he needed the intervening 

### timetocomplete his investigation, and only on completion did he determine torely on selfdefense. Again, defendant is not ina position tocharge the statewith the time he himself required tocomplete the investigation necessary for his defense. It is obvious that inthe period from his arraignment untilAugust 23, 1975, he

was not ready for nor did he want a trial of the charge against him. That leaves the only unexplained 

### time, a period from August 23, 1975until an unspecified date inOctober 1975, tobe accounted for. That period of tine, even if it

### were tobe counted fully against the state, would hardly qualify

as a prejudicial deterrent todefendant's fair and speedy trial, especiallywhen in thatperiod defendant was planning to leave the state, and no prejudice is shown to the defendant's rights. The fourth factor tobe considered, the prejudice to the defendant, has no support in the record. ~othing has been brought to our attention thatwould show the delayhampered defendant inany way inpresenting his defense. ~efendant claims the delay caused him concern and anxiety, but these are inherent inany criminal case. Barker v. Wingo, supra. Here, the stateaccommodated defendant to

ease his anxiety. Itvacated a trialdatebecause of his up-coming surgery. It allowed him to leave the state to seek a job. If anxiety and concern were present, they were

asmuch the result of the needs of the defendant, as of any delay inthe speedy trialprocess. We find therefore that defendant fails tomeet the criteria necessary to show he had been denied a speedy trial by the state. Stateex 

### rel. Sanford 

### v. DistrictCourt, supra; Barker 

### v. Wingo, supra; Statev. Steward, (1975), 168 Mont. 385, 388, 543P.2d 178, 181. Defendant's fourth issue deals with the question of whether the trialcourt erred inadmitting certainphotographs intoevidence. Defendant argues the photographs were

sohighly prejudicial as tocause reversible error. Defendantrelies on Statev. Bischert, (1957), 131Mont. 152, 308 P.2d 969, for this contention. In the instant case, Dr. John Henneford, a pathologist, testified as a prosecution witness to establish the cause of death. Two black and white photographs of the deceased taken during Dr. Henneford's autopsy were offered and admitted over defendant's objections. The doctor testified thatwhile it would be possible toexplain the autopsy and diagnosis without the pictures, his testimony would be clear, precise, and easier tounderstand if the photographs

were used. The doctor then used thephotographs todescribe the angle of the entry wound and itspath through the body. The demonstration of the angle of the entry wound was

### important in determining the credibility of defendant's testimony that the victim was attempting entry into the camper when the fatal shot was fired. Bischert is distinguishable from the instant case. In Bischert the colored photographs depicted the emaciated body of a child with a ghastly skin disease not related to malnutrition, from which the child died. In the instant case there is no showing that the black and white autopsy photographs showed any inflammatory or prejudicial conditions unrelated to the crime charged. In Statev. Rollins, (1967), 149 Mont. 481, 428 P.2d 462, the Court upheld the admissibility of photographs of a victim's gunshot wounds, distinguishing Bischert upon the grounds the photographs in that case were "particularly distasteful" and did not contribute to the development of the case. In the instant case these photos helped the jury to understand the facts of the case and therefore they were properly admitted into evidence. The final issue raised by 

### defendant iswhether the evidence supported the jury verdict. One of defendant's claims is that the prosecutor's major witnesses' testimony was inconsistent and unreliable. There is no question that some of the evidence in this case was contradictory;nonetheless the jury viewed the witnesses as they testified and weighed their testimony. The standard of this 

### Court inmeasuring a 

### jury determination is stated in Statev. Merseal, (1975),167 blont.

"This Court remains ever mindful of one fundamental rule--thatquestions of factmust be determined solely by the jury, and that given a certain legal minimum of evidence,thisCourt on review

### willnot substitute its judgment for thatof thejury. 

## * 

## * *

"On appeal we examine the evidence to determine whether theverdict is supported by substantial evidence. In sodoing, we view the evidence inthe lightmost favorable to the State. 

## * 

## * *" See also: Statev. Farnes, (1976), Mont. 

### , 558 P.2d 472, 33 St.Rep. 1270; Statev. Stoddard, (1966), 147 Mont. 402, 412 P.2d 827. Therefore, this Court is limited toan examination of the evidence inthe lightmost favorable tothe stateand a determination of whether there was substantial evidence to support defendant's conviction. The evidence supports theverdict. One other contention under this final issue is that the verdict of the jury is inconsistentwith the evidence in that since the defendant was convicted of mitigated delibera.te homicide, thejury must have found defendant 

### was acting under extrememental or emotional 

### stress brought about by the apparent intended attack upon hisperson and hisproperty. Defendant contends the only possible mental

or emotional 

### stress forwhich therewas a reasonable explanation

or excuse suggested by the evidence is thatdefendant feared for himself inthe circumstances described. Therefore, defendant argues, if thejury found such stress toexist, it could only be such stress aswould permit self-defense. Then defendant returns tohis former argument that sincethe court did not instruct thejury that it should acquit the defendant when self-defense was established, the verdict is inconsistentwith the evidence. What this contention of defendant overlooks is that while under the facts of this case the jury could have found defendant was acting under mental or emotional stressbrought about by the attack by Gardipee, the jury could also have found the counter-force used by the defendant was so excessive asnot tobe reasonable and justified. Section 94-3-102, R.C.M. 1947. The jury could have concluded that the force used inself-defense by defendant, the shooting,

was not the action of a reasonable person under the circumstances. In that situation, a verdict of mitigated deliberatehomicide isjustified. It is not given tous, however, to look into theminds of the jurors to ascertain how they arrived attheir verdict. When, ashere, we find the jury

was fairly instructed, wemust leave the weighing of the evidence and determination of the facts to thatjury. It is not within our province to setaside the verdict here. The judgment of conviction is affirmed.

We Concur:

Chief Justice

Judge, sitting inplace of Mr. Justice Daly

### Mr. Justice Daniel J. Shea dissenting:

Defendant should be granted a new trial. Testimony of Carla Brave relating to defendant being in prison for rape

was not only prejudicial, it was not relevant. Moreover, the court failed to instruct the jury on the essential elements of the offense for which defendant was convicted. Before witness Carla Brave testified to the statement made by defendant that he had been in prison for rape,defense counsel moved that the statement be suppressed. The prosecution then made an offer of proof as to the relevancy of the statement to the following effect: "Your Honor, we offer to prove by the testimony of Carla Brave, in light of the question asked her, that William Collins volunteered that he had been in prison, and that he had been in prison for the

- 

### crime of rape. And we, in that regard, suaaest this is relevant, inasmuch as it

a a 

### isn't true, that that fact is not true. It shows what was on Mr. Collins' mind at that time, namely sex with Carla Brave. And that certainly bears on the events as they later transpired. Who did what for what purpose. In that regard it is strictly relevant, it ismaterial. And because it is an admission, a statement made by the defendant, and because it is relevant and material, we suggest that the Court hear the testimony." (Emphasisadded) The court then let the jury hear the testimony. During cross-examination Carla Brave admitted that in talking to a deputy after the shooting that he had told her that defendant had not been in prison for rape. Defendant asserted self-defense and while testifying in his own behalf stated that he had notmade the statement to Carla Brave. However, he was also impeached under the old rule in Montana which was mechanically followed by trial judges which allowed the state to ask the defendant if he had ever been convicted

### of a felony. Defendant admitted that he had, but the nature of the felony was never stated to the jury. The situationwas such that at the end of the prosecution's case the jury did not know whether defendant had been in prison for rape. The situationwas not alleviated by the defendant's testimony. He denied that he had been in prison for rape, but also admitted that he had been convicted of a felony, although the jury did not know the nature of that felony. It would certainly be understandable that a jury would conclude that defendant did not tell the truth when he denied making the statement to Carla Brave. For this reason alone, the jury may have decided to distrust defendant in the remainder of his testimony. The majority has concluded that the statement, although known by the prosecution to be false,was relevant to the defendant's state of mind preceding the shooting. Relevant to what? On this point the opinion is silent. If true, what did the statement tend to prove? Even if made, this statement was clearly not relevant to any issue in the case. Moreover, its prejudicial effect outweighed any probative value itmay have had. At trial, before going any further, the trial court should first have made a determination that the alleged statement to Carla Brave was relevant. There is nothing in the record from which we can determine if the trial court concluded that the alleged statementwas relevant to any issue in the case. It is true that the prosecution argued that it shows defendant's state of mind as desiring to have sex with Carla Brave. (But

even if true, that fact, as will be explained later, had nothing to do with issues at trial.) It is clear here, that the state admitted (at least to the trial judge in chambers) that defendant had not in fact been

### convicted of rape. This being so, the trial court had the further duty of determining the likelihood of defendant having made the statement to Carla Brave. In the nature of things,

a person does not normally go around exclaiming to the world that he has been in prison for rape. Particularly would this be so when such is not the fact. Clearly the probabilities

were that defendant did not make this statement to Carla Brave at all. It could be that she was deliberately not telling the truth or that she had misinterpreted what defendant had stated to her. She admitted that she had not revealed this in her statement first given to the prosecution--and the statement extensively covered the events of the evening--including the conversation she had with defendant in his pickup truck. Given this situation, the prejudice to defendant was manifest. There was a strong probability that defendant did not make this statement but if the jury heard the evidence they might get the idea that defendant, in stating he had been in prison for rape, was in fact implying to Carla Brave that if she did not go along with his desire for sex that he would force her. The further implication from this is that the state

was implying that defendant was an evil person and would stop at nothing to have his way--including taking of another person's life. But the fact is that the circumstances of the shooting had nothing to do with any alleged statementmade to Carla Brave that defendant had been in prison for rape. The events of the evening of the shooting did not transpire at one time. There was a great deal of drinking by all parties concerned throughout the evening and the alleged statement of defendant to Carla Brave took place a considerable time before the shooting. There is not a shred of evidence that

### the alleged statement had any connection directly or indirectly with the shooting. If defendant had a desire to have sex with Carla Brave, Gardipee was not aware of his desires. There is

no evidence that Gardipee knewwhat defendant and Carla Brave talked about. Indeed, the evidence is that he did not. Under these circumstances, the desire of defendant to have sex with Carla Brave is totally unrelated to his willingness to take Gardipee's life. Moreover, the circumstances of the assault upon defendant leading to the shooting are totally unrelated to any desire of defendant to have sex with Carla Brave. The fight in the pickup truck while defendant was driving Carla Brave and Gardipee back to town,was instigated solely by Gardipee. Gardipee suddenly started getting wild about the loss of his ancestral rights and in the process started pounding on defendant while defendant was driving the truck down the road. It is not at all difficult to understand why defendant stopped his truck, got out, and climbed into the back of the camper. Whatever reasons Gardipee had for pounding on the defendant, they certainly did not relate to any knowledge Gardipee had of the conversations defendant had with Carla Brave. Nor does the alleged statement by defendant to Carla Brave have any connection to defendant's state of mind when he stopped his truck and climbed into the back of his camper in order to avoid Gardipee's assault. It is difficult for me to see how defendant had sex on his mind at that time. to The only purpose for the prosecutor 

### / elic2t the statement from Carla Brave was to put defendant in as bad a light as possible in the eyes of the jury. To a degree, this is always the objective of the prosecution, but there must be 

### a sound evidentiary basis for doing so. Here there was none. The testimony was not relevant and was clearly prejudicial.

### I would also reverse the conviction because the trial court failed to instruct the jury on the elements of deliberate homicide and mitigated deliberate homicide. The jury was only given a definition of deliberate homicide and mitigated deliberate homicide; it was not provided with instructions setting forth the elements of deliberate homicide and mitigated deliberate homicide, and telling them that each of the elements must be proved beyond a reasonable doubt. Without such instructions the jury did not know what the elements of mitigated deliberate homicide were and the burden of proof required to prove each element. I cannot conceive that a trial court would allow a case to go to a jury without such instruction, nor can I conceive how an appellate court would give its stamp of approval. The duty to instruct the jury on the law,has been stated as follows in McBride, The Art of Instructing the Jury (1969,Anderson Publishing Company) (quotingfrom California Jury Instructions, Criminal, page 8): 

### "'Inrecent years we have witnessed a distinct trend of decision away from the rule of earlier days when it was held not to be error for a court to fail to instruct the jury, in the absence of a request, on even such vital rules as those of reasonable doubt and self defense. This later trend has established as a basic principle that the trial judge has the duty, even in the absence of request, to instruct the jury as to all rules of law that necessarily will be involved in a decision of the cause. People v. Holt, 25 Cal. 2d 59, 153 P.2d 21, 24. We do not have sufficient modern precedents to enable us to make a complete list of the instructions thatmust be given, in the absence of a request therefor, under the modern rule. Generally the trend points to the likelihood of reversal of a conviction if the trial court fails to give any proper and appropriate instructionwhich, were it given,might result in a different verdict. In instructing jurors,we must assume that they have no knowledge of the rules of law and that, therefore, they must be instructed on allpoints of law which, under any reason-

### able theory, might be involved in their deliberations, to the end that their decision will be according to the law and the evidence and untinged by any private and possibly false opinion of the law that they may entertain.'" (Emphasisadded) Under any view of a case, the elements of the offenses charged will be involved in a decision of the cause. The failure to instruct the jury on those elementsmust be reversible error. It appears that this Court is holding that the duty to properly instruct the jury can be delegated to counsel-- and if the trial court does so, he is relieved of any burden either for erroneous instructions submitted to the jury or for failure to instruct the jury on important aspects of the case. While the failure of counsel to submit instructions on the important aspects of the case is surely a sign of ill-preparedness, I 

### fail to see how this relieves the trial court of a duty to properly instruct the jury. This is a situationwhere the jury was not instructed on the essential elements of the offense for which defendant was convicted. The duty is not only that of defense counsel to see that proper instructions are prepared and offered for the court's consideration; there is a corresponding duty on the state to see that the jury is instructed on the essential elements of the offenses charged. But regardless of which side provides the instructions, or is derelict in not providing the instructions, the ultimate duty to fairly instruct the jury on the law resides with the trial judge. If 

### he does not receive proper instructionshe should refuse to send the

case to the jury until he is convinced he has the proper instructions. I 

### cannot believe that the only duty of the trial judge is to accept or reject the instructionswhich are offered to him by counsel for both sides. 

### If instructions are eitherimproperly worded, or are omitted, he should direct counsel to properly word the instructions or to supply the omitted instructions. Only then can we say that the trial 

### judge has properly discharged his obligations to the law. That was not done in this case.