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: AuC 1, 1978 
Mr. Justice John C. Sheehy delivered the Opinion of the Court. 

Defendant William John Collins was charged in the District Court, Cascade County, with the offense of deliberate 

homicide. Upon his plea 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 to imprisonment for a term of forty years. 

From judgment and denial of a new trial, defendant appeals. 

Without question, on April 23, 1973, defendant shot 

Darrell David Gardipee, who died as a result. The shooting 

occurred on Wire Mill Road, north of Great Falls. The only 

witnesses to the events prior to the shooting were the 

defendant and Carla Brave. Two others, Robert M. Bretz and 

his wife, drove upon the scene very shortly after the 

shooting. The only witness to the actual shooting was 

defendant. 

From the evidence it appears defendant, a 48 year old 

unemployed painter, at and prior to the time of the shooting 

was living in a camper mounted on his pickup truck. He had 

been in Great Falls 4 or 5 days, with no definite location, 

parking his pickup and camper unit in various places from 

time to time. Before returning to Great Falls, he had been 

in Arizona since the previous September doing some prospecting there. 

Carla Brave, then in her twenties, a singer with a band 

that played in local night spots in Great Falls, met Gardipee, 

then 21, about six months before the incident. They became 

good friends. In the afternoon preceding the shooting, 

Gardipee went to the place where Carla was rehearsing. 

After the practice session, he invited Carla to accompany 
him to the Brass Rail, a local bar. There they had some 

drinks and played pool at a table at the rear of the premises. 

While Carla and Gardipee were at the Brass Rail, about 

6:30 or so in the evening, defendant entered the bar. He 

had been drinking before he arrived, and upon entering he 

ordered a round of drinks for the house. He noted Gardipee 

and Carla playing pool and fell into conversation with them, 

although he did not know them. He bought a round or two of 

drinks. They all talked and played some pool and continued 

to consume liquor. 

Finally they decided to go to another place. Defendant 

had the transportation facilities so he drove them to the 

City Bar, where Gardipee went in and returned with a bottle 

of wine. 

Carla testified that all three inspected the inside of 

the camper while they were stopped at the City Bar; defendant remembers the location as at the Brass Rail. At any 

rate, the camper was inspected and admired by carla and 

Gardipee. Carla particularly testified that at the time of 

the inspection, she saw no rifle lying on a bed in the 

camper, nor indeed did she observe one in the camper otherwise. 

When they left the City Bar, Carla wanted to go to her 

place, but Gardipee wanted to ride around. Defendant drove 

the unit out of the city on the Havre highway, and then 

turned off that highway to the Wire Mill Road, thence to a 

place not far from the Missouri River, where he parked. All 

three were sitting in the cab of the pickup. 

When they stopped, Carla and Gardipee got out and 

wandered towards the river. The night was cold, but they 

talked and kissed about an hour before she returned to the 
cab, where defendant had remained. He had 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 the wine bottle. 

Carla and defendant talked in the cab for a time, while 

Gardipee remained outside. Defendant told Carla that he 

thought ''everybody should make love to everybody". The 

remark "kind of spooked" her. Then he asked her if she 

would like to go to the camper in back and drink whiskey 

with him. Carla also testified about another matter he 

discussed, to which we will allude more fully later in this 

opinion. 

Carla left the cab, and defendant remained inside. She 

rejoined Gardipee, but did not tell him of the conversation 

in the cab. 

Meanwhile, Gardipee was acting strangely. He was 

raising the wine bottle to the sky, jumping up and down, and 

he appeared to defendant to be "flipping out." 

Finally, near midnight, they decided to leave. All 

three got in the cab, Carla sitting in the middle. Defendant drove up to the point of again entering Wire Mill Road. 

Here Gardipee grabbed the steering wheel and wanted to turn 

right. Defendant, however, wanted to go back to Great Falls, 

which was to the left. Meanwhile Gardipee was complaining 

how the white man had messed up the Indian land, and said 

"This is our land." Then he slammed his fist on the dash of 

the cab and said "Even this belongs to me." ~efendant 

testified that at that point, Gardipee started punching him 

in the head while he was driving. 

~efendant stopped the truck in the lane of traffic of 

the roadway. Gardipee got out on his side of the pickup. 
Defendant testified he jumped out of the truck on the 

driver's side and ran back to the 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 to that effect. Defendant was inside the camper, 

possibly in the middle of the camper. Gardipee was at the 

door with one hand on a handle to help himself in and defendant said he saw something "bright colored" in his other 

hand. Defendant did not know what it was, nor was it ever 

further identified at the trial. 

The interior of the cab was dark. Defendant had not 

turned on the interior camper lights. The outside lights of 

the camper unit were on, including the clearance lights. 

Defendant testified that it was dark enough however that he 

could not have identified the person as Gardipee coming into 

the truck, nor could he see Gardipee's eyes. 

Defendant had in the camper a bolt-action .22 caliber 

rifle he had purchased in Great Falls, prior to going to 

Arizona for prospecting. 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 to his shoulder, keeping it in his right hand, and 

fired. He stated he did not intend to shoot Gardipee at the 

time; that he thought it would scare him off; and, that the 

gun went off accidentally. 

Because of the make and type of rifle involved, the gun 

must have been ready to fire, with a bullet in position 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 front at the level of the seventh rib and traveled 

downward at an approximate forty-five degree angle through 

his diaphragm, the posterior of his liver, through his vena 

cava and lodged next to his spine in the abdomen. Gardipee 

fell back from the camper to the ground. He was in a doubledup position on the ground when Carla came from the cab, 

where she had remained after the men got out, until she 

heard the shot which sounded like an "explosion". 

Defendant was getting down from the camper when Carla 

came to the scene. He still had the rifle in his hand. At 

that moment another car drove up, driven by Robert Bretz, 

with his wife as a passenger. Defendant placed the rifle on 

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 his wounds at approximately 12:55 a.m. 

An autopsy was later performed which established the cause 

of death. 

The foregoing outline of facts is taken mainly from 

defendant's testimony. There are certain discrepancies 

between his testimony and other witnesses in other matters, 

but the story of the events surrounding the actual shooting 

came mainly from defendant. 

The jury listened to the testimony, considered the 

relevant facts proven, and brought in its verdict of guilty 

of mitigated deliberate homicide against defendant. 
Defendant's appeal concerns mainly five issues which 

attack the verdict and subsequent judgment: 

1. Whether the District Court properly admitted testimony of an alleged statement of defendant that he had been 

imprisoned for rape. 

2. Whether the District Court properly instructed the 

jury . 

3. Whether defendant was denied a speedy trial. 

4. Whether the District Court erred in admitting 

certain photographs in evidence. 

5. Whether the evidence supports the jury verdict. 

The first issue, the alleged statement of defendant 

that he had been imprisoned for rape, arose during the 

testimony of Carla Brave about her conversation in the cab 

of the pickup with defendant while Gardipee was outside. In 

addition to the subjects outlined above, Carla was permitted 

to testify, over objection, that defendant told her during 

the conversation that defendant knew Merle Gardipee, the 

brother of DarreU Gardipee; that he had met him in prison. 

She asked defendant "what were you in there for?" and he 

"said he was in for rape." 

The state contended the evidence was relevant to the 

events and to the attitude and intent of the defendant that 

evening. Defendant's counsel objected that the offered 

testimony was hearsay, and was an attempt by the state to 

get into the record a statement of a fact that was not a 

fact at all. Also, that in rebutting such testimony, defendant would perforce open himself up to questioning on 

state's cross-examination as to a prior prison record. (In 

argument before this Court, the state argued the evidence is 

part of the "res gestae", while defendant argued the testimony was an improper showing of another unrelated crime.) 
When she was cross-examined by defendant, Carla admitted she had been told in the county attorney's office 

that defendant 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 effect of the evidence then was that defendant 

told Carla he had once been in prison for rape; she admitted 

that later she was informed it was not true; and defendant 

admitted he had a prior felony conviction on his record. 

The objection on appeal that the testimony constituted 

proof of a prior unrelated offense does not bear analysis. 

The state did not prove that defendant committed an unrelated crime; it did prove that defendant claimed he committed such an offense. The difference could be monumental. 

It is the same difference as an unmarried woman who - is 

pregnant and an unmarried woman who claims to be pregnant. 

A subsequent marriage founded upon the reality may be justified; but a marriage founded upon the supposition may not 

be. 

The statement of defendant is in the same category of 

evidence, occurring at the same time as the other verbal 

acts testified to by Carla, such as defendant's statement 

about everybody making love to everybody, and his invitation 

to her to drink whiskey with him in the camper. These 

remarks went in without objection. 

The statement of defendant was relevant as a part of 

the whole factual situation to be considered by the jury in 

weighing the guilt or innocence of defendant. Especially is 

this true where, as here, the defendant asserted selfdefense as justification. His state of mind leading up to 
the shooting was a matter bearing on his guilt or innocence 

for the jury to consider in the light of that defense. The 

statement was therefore a "verbal act" relevant to the 

issues, and thus admissible. As noted in Overton v. United 

States, (1968), 403 F.2d 444, 447, the verbal act doctrine 

is technically not an exception to the hearsay rule. The 

words of defendant were not 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 statement was not admissible as 

part of res gestae, as that exception to the hearsay rule 

takes in statements made under such circumstances that 

reflection and fabrication are unlikely. State v. Fairburn, 

(1959), 135 Mont. 449, 340 P.2d 157. Standing alone the 

statement might not be relevant or material, but it formed a 

part of the circumstances, a link which, 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 

in permitting it. We find no substance in defendant'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 to the jury, and (b) whether the jury 

was properly instructed with respect to self-defense. 

In considering this issue, we first analyze the law 

applicable to deliberate 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), it wiped 

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 influence of extreme mental or emotional 

stress for which there is a reasonable explanation or excuse 

is mitigated 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 deliberate homicide. In the case of mitigated deliberate homicide, even 

though the act may 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 force may result in such conduct being a justifiable 
use of force. Section 94-3-103, R.C.M. 1947. When a person 

in an occupied structure uses such force as is necessary to 

prevent or terminate another's unlawful entry into the 

occupied structure, even to the extent of causing death by 

the use of the force, for the purpose of preventing an 

assault or personal violence upon an individual or to prevent the commission of a forcible felony in the occupied 

structure, such use of force is justified. Section 94-3-103, 

R.C.M. 1947. 

At all events, 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; State v. Brooks, (1967), 150 

Mont. 399, 436 P.2d 91. 

The foregoing are the concepts in a criminal homicide 

case, such as the one charged here, which must be conveyed 

to the jury by the judge in the body of his instructions. 

He may flesh out such concepts as may be necessary but if 

the body of the instructions contains the foregoing elements, 

fairly and fully conveyed to the jury, then we must consider 

the jury has been properly instructed both for the state and 

the defendant. 

Against that background, we examine the instructions 

given in this case. The essential elements are there. The 

trial court defined the grades of criminal homicide (Instruction No. 32); it defined deliberate homicide (~nstruction 

No. 31), mitigated deliberate homicide (Instruction No. 18), 

and negligent homicide, (Instruction 19) . Moreover, the 

jury was instructed on the justifiable use of force to 

defend oneself against the imminent use of unlawful force, 

and the justifiable use of force against a person breaking 
into an occupied structure, substantially in the language of 

the statutes. Using the test applied in State v. Porter, 

(1964), 143 Mont. 528, 539, 391 P.2d 704, the instructions 

given on justifiable force gave the defendant ample opportunity to expound to the jury in argument his theory with 

respect to the use of force as self-defense against an 

unlawful act. 

On oral argument, defendant strenuously argued that 

nowhere in the instructions did the court advise the jury, 

with respect to mitigated deliberate homicide, in what 

circumstances the jury should acquit the defendant. Defendant points out that in Instruction No. 1, the court 

outlined the elements of deliberate homicide 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 instructions with 

the lack of a similar instruction with respect to mitigated 

td.L!Xkqf 2 

de-abl-e homicide, defendant contends grievous error on 

the part of the District Court. In essence defendant is 

complaining that if the jury found a justifiable force used 

by defendant the instructions did not say that in such event 

the jury should acquit the defendant. 

Two things militate against this position of defendant. 

First, such an instruction was not offered by defendant; and 

second, the rule in Montana is that if the jury is properly 

instructed on the law pertaining to justifiable force in a 

homicide case, the court need not go further and tell the 

jury that it must acquit the defendant, if it finds that 

justifiable force was used. State v. Smith, (1975), 168 
Mont. 93, 100, 541 P.2d 351; State v. London, (1957), 131 

Mont. 410, 433, 310 P.2d 571. 

~efendant further argues that the District Court erred 

in refusing to give defendant's proposed instruction No. 6, 

which would have told the jury that if it had a reasonable 

doubt whether the homicide was justifiable,thsnit must give 

the defendant the benefit of that doubt and acquit him. 

That specific instruction was refused in State v. Logan, 

(1970), 156 Mont. 48, 66, 473 P.2d 833, and this Court 

approved. The Court in Logan indicated that such instruction was unnecessary where the jury is otherwise properly 

instructed on reasonable doubt. In this case, Instruction 

No. 2 fully covered the jury's duty with respect to reasonable 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 subject was 

fully covered by the court in other instructions, and it 

appears that in its Instruction Nos. 23 and 24, the court 

particularly instructed the jury to the effect that the 

person using force, if acting as a reasonable man, is justified in acting as he did. Indeed, in Instruction flo. 24, it 

is stated that a person may act under the appearance of 

peril if that appearance makes the person acting believe 

that he is in deadly peril of his life or of receiving great 

bodily harm, and if a reasonable man, in the same situation 

seeing and knowing what the actor knows, would be justified 

in believing himself in danger. Since counsel was not 

limited under those instructions from fairly presenting his 

defense to the jury, the defendant will not be heard to 
complain that the court failed to give the many different 

nuances on a theory of defense that might have been devised. 

Finally, under this issue, with respect to the contention made at oral argument that the court should have given 

a "ladder" instruction which would have (1) encompassed the 

various grades of homicide under criminal homicide, (2) 

instructed as to the elements, and (3) advised the jury to 

convict or acquit with respect to each such possible offense 

or inferior grade of offense, the answer remains the same: 

such an instruction was not offered, and in any event the 

instructions adequately covered the offenses of which the 

defendant could be convicted and his defenses thereto. It 

is not to be forgotten that in this case the court sent four 

possible verdicts to the jury, including one for each grade 

of criminal homicide and one for acquittal, and defendant 

made no objection at that time to the forms of verdicts 

being submitted to the jury for its use. 

We conclude therefore that the trial court committed no 

error with respect to the second issue raised by defendant. 

Defendant in his third issue argues that he was denied 

a speedy trial as required by the Fourteenth Amendment to 

the United States Constitution and by Article 11, Section 

24, 1972 Montana Constitution. Counsel for defendant in 

oral argument conceded that the prejudicial delay does not 

extend beyond the first eleven months. 

The following timetable of events is pertinent to a 

determination of 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 filed motion 

to produce confessionstatement on demand for 

discovery and production of evidence for 

inspection. 

Defendant disqualifies 

Judge Nelson. 

Judge Bradford called in. 

Defendant files notice of 

intent to rely 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 

eleven months are to be considered under the speedy trial 

issue, we have a period of 336 days elapsing from the date 

the Information was filed until the first trial date. This 

number of days is greater than the presumptive period established in State 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 in Barker v. Wingo, (1972), 407 

U.S. 514, 92 S.Ct. 2128, 33 L Ed 2d 101, to determine 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 first factor, length of delay, is established. The 

second and third factors we consider together. It appears 

that defendant sought and received permission to leave 
Montana for Arizona while his trial was pending. The reasons for his leaving were personal to defendant. The period 

of time he was away from the state on personal business 

cannot be counted against the state. That period encompasses the month of October 1975 through the first trial 

date of March 29, 1976, which date was vacated at defendant's request. The record shows negatively for that period 

that defendant wanted or was ready for a trial, much less 

that he was asserting his right to trial. 

Of significance also is the fact that defendant did not 

file his intent to rely on self-defense until August 23, 

1975. In explaining his delay in so filing, defendant stated 

he needed the intervening time to complete his investigation, 

and only on completion did he determine to rely on selfdefense. Again, defendant is not in a position to charge 

the state with the time he himself required to complete the 

investigation necessary for his defense. It is obvious that 

in the period from his arraignment until August 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, 1975 until an unspecified date in October 1975, 

to be accounted for. That period of tine, even if it were 

to be counted fully against the state, would hardly qualify 

as a prejudicial deterrent to defendant's fair and speedy 

trial, especially when in that period defendant was planning 

to leave the state, and no prejudice is shown to the defendant's rights. 

The fourth factor to be considered, the prejudice to 

the defendant, has no support in the record. ~othing has 

been brought to our attention that would show the delay 
hampered defendant in any way in presenting his defense. 

~efendant claims the delay caused him concern and anxiety, 

but these are inherent in any criminal case. Barker v. 

Wingo, supra. Here, the state accommodated defendant to 

ease his anxiety. It vacated a trial date because of his 

up-coming surgery. It allowed him to leave the state to 

seek a job. If anxiety and concern were present, they were 

as much the result of the needs of the defendant, as of any 

delay in the speedy trial process. 

We find therefore that defendant fails to meet the 

criteria necessary to show he had been denied a speedy trial 

by the state. State ex rel. Sanford v. District Court, 

supra; Barker v. Wingo, supra; State v. Steward, (1975), 168 

Mont. 385, 388, 543P.2d 178, 181. 

Defendant's fourth issue deals with the question of 

whether the trial court erred in admitting certain photographs into evidence. Defendant argues the photographs were 

so highly prejudicial as to cause reversible error. Defendant relies on State v. Bischert, (1957), 131 Mont. 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 

that while it would be possible to explain the autopsy and 

diagnosis without the pictures, his testimony would be 

clear, precise, and easier to understand if the photographs 

were used. The doctor then used the photographs to describe 

the angle of the entry wound and its path 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 State v. 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 is whether 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 in measuring a jury determination is stated in State v. Merseal, (1975), 167 blont. 

"This Court remains ever mindful of one 

fundamental rule--that questions of fact must 

be determined solely by the jury, and that 

given a certain legal minimum of evidence, 
this Court on review will not substitute its 

judgment for that of the jury. * * * 

"On appeal we examine the evidence to 

determine whether the verdict is supported by 

substantial evidence. In so doing, we view 

the evidence in the light most favorable to 

the State. * * *" 

See also: State v. Farnes, (1976), Mont. , 558 

P.2d 472, 33 St.Rep. 1270; State v. Stoddard, (1966), 147 

Mont. 402, 412 P.2d 827. Therefore, this Court is limited 

to an examination of the evidence in the light most favorable 

to the state and a determination of whether there was substantial evidence to support defendant's conviction. The 

evidence supports the verdict. 

One other contention under this final issue is that the 

verdict of the jury is inconsistent with the evidence in 

that since the defendant was convicted of mitigated delibera.te homicide, the jury must have found defendant was 

acting under extreme mental or emotional stress brought 

about by the apparent intended attack upon his person and 

his property. Defendant contends the only possible mental 

or emotional stress for which there was a reasonable explanation 

or excuse suggested by the evidence is that defendant feared 

for himself in the circumstances described. Therefore, 

defendant argues, if the jury found such stress to exist, it 

could only be such stress as would permit self-defense. 

Then defendant returns to his former argument that since the 

court did not instruct the jury that it should acquit the 

defendant when self-defense was established, the verdict is 

inconsistent with 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 stress 
brought about by the attack by Gardipee, the jury could also 

have found the counter-force used by the defendant was so 

excessive as not to be reasonable and justified. Section 

94-3-102, R.C.M. 1947. The jury could have concluded that 

the force used in self-defense by defendant, the shooting, 

was not the action of a reasonable person under the circumstances. In that situation, a verdict of mitigated deliberate homicide is justified. It is not given to us, however, 

to look into the minds of the jurors to ascertain how they 

arrived at their verdict. When, as here, we find the jury 

was fairly instructed, we must leave the weighing of the 

evidence and determination of the facts to that jury. It is 

not within our province to set aside the verdict here. 

The judgment of conviction is affirmed. 

We Concur: 

Chief Justice 

Judge, sitting in place 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 a a is relevant, inasmuch as it 

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 is material. 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." (Emphasis added) 

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 not made 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 situation was 

such that at the end of the prosecution's case the jury did not 

know whether defendant had been in prison for rape. The 

situation was 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 it may 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 statement was 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 statement made 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 knew what 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) (quoting from California 

Jury Instructions, Criminal, page 8): 

"'In recent 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 that must 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 instruction which, 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 all points 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.'" 

(Emphasis added) 

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 elements must 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 situation where 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 instructions he 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 instructions which are offered 

to him by counsel for both sides. If instructions are either 
improperly 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.