No. 13587 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

JERRY GALLAGHER, 

Petitioner, 

VS. 

ROGER CRIST, as Warden of the 

Montana State Prison, Deer 

Lodge, Montana, 

Respondent. 

ORIGINAL PROCEEDING: 

Counsel of Record: 

For Petitioner: 

D. Frank Kampfe, Billings, Montana 

- 

Submitted: November 1, 1976 

Decided: NUv' 19 1976 
Mr. Chief Justice James T. Harrison delivered the Opinion of 

the Court. 

This is a petition for a writ of habeas corpus. 

In this petition among other contentions, much is made 

of the fact that defense counsel appointed by the district 

court had previously prosecuted petitioner while a county 

attorney. This same matter was raised on Gallagher's appeal 

from his conviction, upon which appeal he was represented by 

his present counsel. Gallagher's conviction was affirmed. 

See State v. Gallagher, 162 Mont. 155, 509 P.2d 852 (1973). 

That same fall Gallagher filed a petition for a writ 

of habeas corpus in this Court. Since that petition presented 

factual matters that required investigation and determination 

in the district court wherein petitioner's conviction of the 

crime of murder in the first degree was had, we referred the 

petition and accompanying papers to that court for such investigation, determination and hearing as to that court would appear 

necessary. See Gallagher v. Crist, 163 Mont. 536, 514 P.2d 

Following the appointment of present counsel to represent 

Gallagher the district court proceeded with a hearing and on 

March 7, 1974, made and entered the following findings of fact 

and conclusions of law: 

"The petitioner, Jerry Gallagher, having filed in 

the Supreme Court of the State of Montana a writ of 

habeas corpus on October 1, 1973, and said Court 

having remanded said proceedings to this Court for 

such investigation, determination and hearing thereon 

as to this Court may appear necessary in the premises; 

and it appearing to the Court that investigation of 

certain allegations in the petition was necessary 

both on behalf of the petitioner and the respondents 

the Court then appointed D. Frank Kampfe as attorney 

for the petitioner and on December 19, 1973, a 

hearing was had on the said petition with time thereafter allowed counsel for both parties to submit 

affidavits of jurors in support of and opposition to 

petitioner's contentions, and the Court being now 

fully advised in the premises now does hereby enter 
the following Findings of Fact: 

"1. That subsequent to petitioner's arrest and 

while he was in custody at Gillette, Wyoming, 

his back was photographed so as to depict a small 

abrasion or scratch and said photograph was later 

admitted as evidence at the trial, despite defense 

counsel's objections. 

"2. That the manner in which said photographs 

were taken, as described in the testimony of Sheriff 

Meeks at the trial, was not a violation of any of 

the defendant's constitutional rights and did not 

force the defendant to incriminate himself. 

"3. That John L. Adams, one of the Public Defenders 

of this Court, was appointed to represent the petitioner at all stages of the proceedings through 

trial and post-trial motions. Said attorney is a 

competent, able and experienced criminal trial 

attorney, having served for a number of years as 

both Deputy Yellowstone County Attorney and as Yellowstone County Attorney; that said attorney conducted 

a conscientious investigation of the facts of the 

case prior to and during trial, made timely and 

effective motions on legal grounds to the Court 

prior, during and after trial, effectively examined 

witnesses, and did do an overall commendable job in 

representing the petitioner herein. That on at least 

one occasion prior to trial the petitioner stated to 

the Court he wanted Mr. Adams to represent him and 

that on at least one subsequent occasion the petitioner 

stated to the Court that he was satisfied with the 

services of Mr. Adams. 

"4. That the State of Montana did not inflict an 

unfair trial upon the defendant by having charged 

one, John Currey with also having committed this 

crime in concert or as an accomplice to or with this 

petitioner as alleged in petitioner's petition for 

writ of habeas corpus. 

"5. That petitioner's billfold was marked as an 

exhibit during trial and submitted to the jury along 

with other exhibits and that among numerous other 

items in the billfold there was therein contained the 

following: 

"(a) Bailbondsmen personal cards from different 

states; 

"(b) Personal cards of attorneys in different 

states; 

"(c) A bailbond receipt from the State of California. 

"6. That petitioner now claims that such abovedescribed items contained in the billfold, the existence of which were not known to either counsel or 

the Court prior to their submission to the jury 

during deliberations, constituted prejudicial error. 
"7. Counsel for both the petitioner and the 

State have submitted affidavits of jurors concerning the question of whether or not the jurors examined said above referenced items in the billfold 

and if so whether or not such examination affected 

their verdict. Such items in the billfold were not 

part of the jury's deliberations on the case and 

had no affect on the verdict. 

"From the foregoing Findings of Fact the Court now 

makes its Conclusions of Law: 

"1. That no constitutional rights of the petitioner 

were violated by the taking of the photograph of his 

back at Gillette, Wyoming, and by its later admission 

into evidence at trial. 

"2. That petitioner's court-appointed counsel, John 

L. Adams, represented said petitioner thoroughly 

and adequately and without prejudice to petitioner 

during all stages of the proceedings on the charge 

of first degree murder. 

"3. That there is no showing of prejudice to the 

petitioner based on the contents of the billfold and 

there was no error in law by such contents of the 

billfold being submitted to the jury as they were. 

If any error was involved, such error was not prejudicial to the petitioner. 

"4. Petitioner has not shown any error of law or 

fact or prejudice and is hereby denied all relief 

sought. " 

In the present petition there are no new facts which 

have not been previously considered by this Court and the 

district court. Therefore the writ requested is denied and this 

proceeding is ordered dis 

Chief Justice 

We concur: