No. 12420 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1973 

STATE OF MONTANA, 

Plaintiff and Appellant, 

-VS - ., 1 

,c t; :,i [, 

GLEN- FETTERS and STEVE LEAN, 

Defendants and Respondents. 

Appeal from: District Court of the Second Judicial District, 

Honorable John B, McClernan, Judge presidi.ng , 

Counsel of Record: 

For Appellant : 

Hon. Robert L. Woodahl, Attorney General, Helena, 

Montana. 

Lawrence Stimatz, County Attorney, Butte, Montana. 

Brian Tierney argued, Butte, Montana. 

For Respondents: 

Connors and Brolin, Anaconda, Nantana . Joseph C. Connors argued, Anaconda, Montana. 

William Brolin argued, Anaconda, Montana. 

Submitted: April 25, 1973 

: MAY 1 5 1973 

MAY 1 5 1973 Filed : 
Mr, Justice Wesley Castles delivered the Opinion of the Court. 

This is an appeal by the State of Montana from an order of 

the district court of Silver Bow County granting defendants' motion 

to suppress evidence in a criminal case. 

Two defendants, Steve Lean and Allen Fetters, were cha.rged 

in that court by Information in four counts: interference with 

railroad property; interference with railroad property caustng 

death; murder; and malicious destruction of property. 

The charges were based upon the affidavit of the county 

attorney of Silver BOW County which stated in part: 

"On Yarch 28, 1972, at approximately 8:30 o'clock 

P,M,, a runaway switch engine from the Butte Concentrator, property of The Anaconda Company, smashed 

into the rear of a Butte, Anaconda & Pacific Railway 

ore train in the Rocker Yards, approximately six 

miles west af the Concentrator which is located in 

East Butte. Two Eutte, Anaconda & Pacific employees, 

namely, Jack Weist and Vern Johnson were on the ore 

train at that time. Mr, Weist was killed instantly 

by the crash and Mr. Johnson suffered a broken leg 

when being thrown from the caboose which was shattered 

by the collision. 

"~t approximately 8:00 P,M. on March 28, 1972, one 

Jim Hodges, engineer on the switch engine, and the 

three crewmen set the brakes, pulled the power and 

reverse lever was disengaged and laj-d upon the top 

of the control box in the Concentrator Yard, The 

group went to eat their lunch and the facts indicate 

the engine was coupled to three acid cars with full 

air connection to the cars, At approximately 8:05 

P.M., the engine was seen leaving the Concentrator 

Yard and two men were spotted in the engine by one 

James Lawrence, an employee of the Concentrator, 

I r Two employees were dispatched from the Concentrator 

area to look for any signs of the engine that had just 

left and at approximately 8:10 P.M. a car driven by 

Defendant Alan Fetters and registered to the Defendant 

Alan Fetters was seen parked on the south side of the 

Concentrator on a side road. The car was positively 

identified as ~etters' from a check with registration 

through the City of Butte Police Department, The 

facts further substantiate that Steve Lean, the CoDefendant herein, reported off work and Fetters did not 

show up for work on the afternoon shift, Both Defendants 

were familiar with and had driven the engine in question 

on numerous occasions as their employment required. 

Both Defendants were drinking in Butte taverns for approximately ten to twelve hours prior to the engine 

leaving the yard, The facts further show that at approximately 8:40 or 8~45, or thereabouts, the Cadillac 

car registered to Fetters was not at the same place 

when the employees returned from their search for the 
engine, Witnesses will further substantiate that 

both Defendants came in to the Race Track Bar and 

t ordered dri.nk.s and also requested salve' for Fetters 

who had apparently burned his body. 

"The following day or so, Defendant Fetters was observed in the shower at the Concentrator with multi.ple 

bruises over his body, 

"The Sheriff's Office was directed to arrest the 

Defendants in the early morning hours of March 29, 

1972, by Lawrence G. Stimatz, County Attorney for 

Silver Bow County, without warrant. Shoes and clothing 

were taken from the Defendants upon their arrest and 

statements were taken from the Defendants at that time, 

after being advised of their rights. The shoes bore 

descriptive heel marks and these were matched by photograph and personal observation by the sheriff's Deputies 

and by Security Officers for The Anaconda Company, The 

tracks were located across the Continental Drive roadway 

from where the Fetters car was located and went up the 

bank into the Concentrator and were tracked into the 

Concentrator area. Sawdust samples taken from the Concentrator switch engine were matched with those found 

on the clothing of Defendant Fetters. 1 r 

After leave to file the Information was granted, defendants 

appeared at arraignment on August 14, 1972, and plead not guilty. 

The same day they filed a joint motion to dismiss and motion to 

suppress evidence. That motion was asserted on grounds of whether 

the officers had probable cause to arrest defendants and whether 

the existing circumstances required an immediate arrest, Judge 

James D. Freebourn ordered the motions set for hearing on September 

8, 1972. Prior to that date, on August 24, a notice of intention 

to rely upon the defense of alibi was filed, 

On September 8, 1972, the district court Register of Actions 

shows : 

"This day, defendants motion to dismiss and suppress 

evidence came on regularly for hearing. Defendants 

represented by counsel as before, State of Montana also 

represented by counsel as before. Thereupon, arguments 

on the part of both parties having been heard and concluded 

the court grants defendants ten days to prepare a brief 

and State of Montana ten days to reply and defendant five 

days to reply thereafter, Thereupon, upon request of defendants counsel the case by the court temporarily postponed, I I 

On the same day, the Register shows "Exhibits filed," 

Thereafter, on October 20, 1972, Judge John B. McCleman made 

an order granting the motion to suppress all of the physical evidence and statements obtained from and after the arrests. 
Notice of appeal by the State was filed that same day, on 

October 20, 1972. 

Almost four months later, on February 13, 1973, defendants, 

respondents on appeal, filed a motion under section 95-2408(e), 

R,C,M, 1947, to enlarge the record on appeal. The affidavit of 

col~nsel supporting the motion recited that since the State ' s appeal 

complained of the order suppressing the evidence contending that 

there was a lack of a hearing or an improper hearing, the State's 

contentions were inaccurate and improper as to what took place at 

the hearing. The staters attorney was not given notice of the 

motion. 

The following day, on February 14, 1973, Judge McClernan 

without a hearing made an "ORDER ENLARGING RECORD Ol? APPEAL"; 

which stated: 

"STATEI~NT OF FACT Pursuant to the above-named Defendants' Motion to Suppress Evidence filed herein, 

this Court fixed the 8th day of September, 1972, as 

the time for hearing this Motion. As a result, this 

Court announced at the time and place set, that it was 

ready to proceed to hear the Defendants' Motion, apprising 

both the Defendants and the Plaintiff that the Court 

Reporter was unavailable at that time, The necessity of 

a reporter was disposed of with the common consent of 

the Parties and both Parties thereupon announced their 

readiness to proceed. The Defendants being the MovantS, 

proceeded to offer in evidence what purported to be a 

transcript with attachments of the preliminary hearing 

in this matter. The State of Montana being present in 

the person and represented by J, Brian Tierney, Deputy 

County Attorney, Silver ROTJ County, offered no objection 

to the ~efendants' offer of evidence and, in fact, concurred in the offer. This Court thereupon received the 

transcripts, with attachments, consisting of F.B.1, reports, a statement by James Hodges, and a map drawn by 

George Evans. The Defendants thereupon rested in their 

presentation sf evidence. This Court then gave the 

opportunity to the State of Montana to present whatever 

evidence, either oral or documentary, it desired, However, 

the State signified its intention to rely solely upon the 

evidence offered by the Defendants and the matter was deemed 

submitted, subject only to oral arguments and briefs from 

the Parties. The Court, after considering the transcript 

with attachments as submitted by the Defendants, and arguments and briefs of the Parties, did thereupon on the 20th 

day of October, 1972, enter its Order finding for the Defendants and suppressing evj.dence as prayed for. It is from 

this Order that the State appeals, alleging that an impro er 

hearing was held upon which to base an Order to Suppress. E 

We note that no record was made, no reporter was present. 

We note too, that the district judge's "Statement of Fact" from 
~xeli~ory J£ the four aonth prior event indicates the State declined 

to offer evidence other than the record of the preliminary hearing 

and certain exhibits. In briefs and on oral argument, counsel for 

the State insists that no hearing was held nor was the State alIt~wed to introduce evidence. 

Here we have a classic case where there is no record of what 

other 

transpired /than the previously quoted Register of Acti.onsf minute 

+?ntry which on its face indicates that only oral arguments were 

aade and exhibits filed. 

l I On appeal the State argues as its sole issue that no hearing" 

,2s contemplated by section 95-1806, R.C.M. 1947, was in fact held 

arid the State is entitled to a proper hearing so that a record 

32 the proceedings can be made. We agree. 

While we do not reach the merits of the reasonableness of 

:he lrrest and search, it is apparent from a reading of the charges 

ndde, the affidavit in support of those charges, and the record 

.IF the preliminary hearing in justice court, that justice demands 

s proper legal hearing be had. 

Section 95-1806, R.C.M. 1947, provides: 

"Motion to suppress evidence illegal]-y seized. (a) PI 

defendant aggrieved by an unlawful search and seizure may 

nove the court to suppress as evidence anything so obtained, 

I I (h) The motion shall be made before trial unless fcr 

gaud cause sho~m the court shall otherwise direct, 

"(c) The defendant shall give at least ten (10) days' 

>atice of such motion to the attorney prosecuting or such 

~ther time as the court may direct. The defendant shall 

:erve a copy of the notice and motion upon the attorney 

~rosecuting. 

"(d) The motion shall be in writing and state facts 

showing wherein the search and sef-zure were unlawful. 

"(e) If the allegations of the motion state facts 

9~hich if true show that the search and seizure were unlawful the court shall conduct a hearing into the merits 

)f the motion, 

"(f) The burden of proving that the search and seizure 

Nere unlawful. shall be on the defcndant. 

fl (g) If the motion is granted the evidence shall not 

5tl. ;iJmissible agatnst the mo~rant at any trial of the case. 1 I 
That- seciriorz L:orrtenpTa tcs a judicial hezring in a court of 

record where a record is made. Respondents argue that section 

95-1806, R.C,M, 1947, does not require a record be made of the 

hearing contemplated, While the section does not say in so many 

~~ords that a record be made, after all, it is a court of record, 

The only record made was that of the clerk of court in the heretoCore quoted minute entry, 

In State ex rel, Harrison v, District Court, 135 Mont. 365, 370, 

340 P.2d 544, this Court in discussing a nunc pro tunc order correcting a previ-ous order said: 

11 But, nevertheless, a certain formality of proceedings is required by our laws. 11 

The Court, in order that justice be done to correct a faulty proceeding, then went on to expunge from the record what it termed: 

1f;k J; the so-called findings of fact and conclusions of law * 9: J:." 

Since Harrison in 1959, the new Criminal Procedure Act has 

becdme effective. Section 95-2108, R.C.M. 1947, provides: 

I I The record on appeal. (a) Composition of the Record 

Qn Appeal. The original papers and exhibits filed in 

!:he district court, the transcript of proceedings, if 

any, and a certified copy of the docket entries prepared 

iy the clerk of the district court shall constitute the 

record on appeal in all cases. 

'(c) Statement of the Evidence or Proceedings \&en No 

Report was Made or laen the Transcript is Unavailable, 

':f no report of the evidence or proceedings at a hearing 

or trial was made, or if a transcript is unavailable, 

the appellant may, within ten (10) days from the heawingortwial 

or such time extended as the district court may for goon 

cause shorn permit, prepare a statement of the evidence 

or proceedings from the best available means, including 

his recollection. The statement shall be served on the 

respondent, who may serve objections or propose amendments 

thereto withir, ten (1.0) days after service. Thereupon, 

the statement and any ob jectians or proposed amendments 

shall be submitted for settlement and approval to the 

di strict jtidge who handled the proceedings, and as settled 

and approved shall be included by the clerk of the district 

court in the record on appeal, A judge may settle and ap- 

?rove such records after he ceases to be a judge. If such 

judge before the statement is settled and approved dies, is 

renoved from office, becomes disqualified, is absent from 

che state, or refuses to settle and approve the statement, 

it shall be settled and approved i.n such manner as the 

supreme court may direct. 
"(d) Agreed Statement as the Record on Appeal. In 

lieu of the record on appeal as defined in subsection (a) 

of this section, the parties may prepare and sign a statement of the case showing how the issues presented by the 

appeal arose and were decided in the district court and 

setting forth only so many of the facts averred and proved 

or sought to be proved as are essential to a decision of 

the issue presented. If the statement conforms to the 

truth, it, together with such additions as the court may 

consider necessary fully to present the issues raised by 

the appeal, shall be approved by the district court and 

shall then be certified to the supreme court as the record 

on appeal and transmitted thereto by the clerk of the 

district court within the time provided by section 95-2409. 

Copies of the agreed statement may be filed as the appendix 

required by section 95-2418. 

"(e) Correction or Modification of the Record. If 

any difference arises as to whether the record truly discloses what occurred in the district court, the difference 

shall be submitted to and settled by that court and the 

record made to conform to the truth. If anything material 

to either party is omitted from the record by error or 

accident or is misstated therein, the parties by stipulation, or the district court, either before or after the 

record is transmitted to the supreme court, on proper 

suggestion or of its otm initiative, may direct that the 

omission or misstatement be corrected, and if necessary 

that a supplemental record be certified and transmitted. 

All other questions as to the form and content of the 

record shall be presented to the supreme court." 

In the instant case, respondents contend that since no record 

was made of the proceedings at the hearing, and since appellant 

intended to make an issue of the facts with regard to that hearing, 

appellant should have proceeded under subsection (c) or (d) of 

section 95-2408. Respondents further state they did not know 

appellant contended that no "hearingt1 as such was had until the 

state's brief was received. At that time respondents proceeded 

under subsection (e) , see tion 95-2408, claiming that appellant misstated the record. However, under subsection (a), section 95-2408, 

appellant had before it the docket entries of the clerk., heretofore 

quoted, Appellant had not misstated that record. 

The motion to enlarge the record on appeal was made on February 

13, The judge, without notice or hearing, msde his order the following day, Thus we have a dispute which could and would have been 

resolved by a record. The trial court did not make any attempt to 

harmonize his recollection with the clerk of court's records nor with 

counsel for the State. That misunderstanding could occur is obvious. 
One paramount fact stands out, In view of the serious charges 

and the evidence in the preliminary hearing, a fu1.l hearing with 

a record made is required in the interest of justice, What we 

said in Harrison is still pertinent: 

"* +C * nevertheless, a certain formality of proceedings is required by our laws, If 

Accordingly, we set aside the order of February 14, 1973; 

vacate the order suppressing the evidence entered on October 20, 

1972; and, remand the proceedings to the district court for a 

judicial hearing on the motions heretofore discussed. 

IT IS SO ORDERED. 

4, , , , , -I<, (74.-ji,*L - , -4 -, , , -- " , -- - - .. - - - - - - - - - 

~ssociake Justice 

/ chief Justice