No. 80-285 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

VS . 

JERRY PAUL FORSYTH, 

Defendant and Appellant. 

Appeal from: District Court of the Eleventh Judicial District, 

In and for the County of Flathead 

Honorable Robert C. Sykes, Judge presiding. 

Counsel of Record: 

For Appellant: 

Keller and Gilmer, Kalispell, Montana 

Robert Keller argued, Kalispell, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

Chris Tweeten argued, Assistant Attorney General, 

Helena, Montana 

Ted 0. Lympus argued, County Attorney, Kalispell, Montana 

Submitted: October 21, 1981 

Decided: March 19, 1982 

Filed : MAR 1 9 1982 
Mr. Justice John C. Sheehy delivered the Opinion of the Court. 

Jerry Paul Forsyth appeals from a judgment of conviction 

of deliberate homicide of his wife, Karen Forsyth, following 

a jury trial in the District Court, Eleventh Judicial District, 

Flathead County. Forsyth received a sentence of imprisonment 

of 70 years and was designated a dangerous offender. 

In this bizarre case, officers of the Kalispell police 

department investigated a shooting report at the Skyline 

Bowl in Kalispell about 2:30 a.m. on December 12, 1979. The 

investigating officers were met at the front door of the 

bowling alley by Douglas Richards. Inside, the officers 

found Jerry Paul Forsyth apparently semi-conscious, lying on 

the floor. Douglas Richards brought the attention of the 

officers to the counter of the bowling alley, where they 

found the body of defendant's wife, Karen Forsyth, dead of a 

single gunshot wound to the head. A hand pistol, which had 

not been fired, was lying near the victim's feet. 

Richards and Forsyth were placed in separate squad 

cars. The officers searched the building and found that no 

one else was present. Forsyth was taken to a hospital 

complaining of a head injury. He was found to be suffering 

from a superficial bruise and laceration on the back of his 

head but exhibited no serious symptoms. 

The next morning two officers questioned Jerry Paul 

Forsyth about the shooting incident. He stated that he and 

his wife were closing the bowling alley for the night. As 

he started to lock the front door, the door was jerked from his 

hand from the outside. He turned to warn his wife and was 

struck from behind and knocked unconscious. He testified to 

the same story at trial. 

Douglas Richards had been questioned in the squad car 

at the scene of the crime. He stated that he had been in 
the basement of the bowling alley and had heard a "popping" 

sound which he thought to be a boiler noise. Later, when he 

came upstairs, he found Karen Forsyth dead and the defendant, 

Jerry Paul Forsyth unconscious. Richards then called the 

police. 

On January 25, 1980, Douglas Richards was arrested on a 

charge of sexual intercourse without consent involving a 

girl under the age of 16. Following his arrest, he was 

further interrogated regarding the murder of Karen Forsyth. 

When Richards was granted immunity in exchange for his 

cooperation respecting Karen's death, Richards recanted his 

prior story and implicated the defendant Jerry Paul Forsyth 

in the murder of Karen Forsyth. 

At the trial of Forsyth, Richards testified under a 

grant of immunity from prosecution for the Forsyth murder, 

the statutory rape charge for which he had been arrested, 

and an additional charge of possession of dangerous drugs. 

In his testimony he stated that he had begun working for the 

defendant Jerry Paul Forsyth at Skyline Bowl in the summer 

of 1979 and that he and Forsyth had become well acquainted. 

Forsyth complained to Richards that he no longer loved his 

wife Karen, but could not seek a divorce because an interest 

in the bowling alley was in her name. Forsyth was having an 

affair with a woman named Debby Neff, and he wanted to move 

in with her by Christmas. Because of his wife's interest in 

the family property, Forsyth told Richards that he wanted to kill 

his wife and asked for advice on how to do it. Richards, 

who appears to have been a most obliging person in these 

respects, suggested several ways, including the staging of a 

robbery. The discussions on ways to kill Karen Forsyth 

extended over several months. According to Richards, he 
told the defendant it would take $40,000 to $50,000 for 

Richards to kill her himself. In late November, they decided 

to try an overdose of barbiturates on Karen Forsyth. Richards 

purchased the drugs, Seconal and phenobarbitol, from a 

pharmacist, using money furnished by the defendant. Forsyth 

later told Richards that the attempt failed because the 

drugs were not powerful enough. 

Thereupon Richards suggested setting up a fake robbery 

in which Karen Forsyth would be killed. Forsyth procured a 

.22 caliber snub-nosed revolver. Forsyth and Richards chose 

a locker in the bowling alley basement locker room in which 

to hide the gun and the expected fruits of the robbery. For 

this purpose, Forsyth filled out the locker key envelope for 

locker no. 191 in the name of Greg Phillips, a bowler who 

had bowled on a team at Skyline Bowl. Richards placed a 

bowling bag and a pair of bowling shoes in the locker in 

order to avoid suspicion. On December 9, 1979, he placed the 

gun in the locker. When Richards arrived at work the next 

night, December 10, the defendant told him the crime would 

be committed that night. Richards took the gun from the 

locker, wrapped it in a rag, and gave it to Forsyth. Richards 

was an alcoholic and he drank steadily throughout the night 

from a bottle hidden in the basement area of the bowling 

alley. Although the bowling alley usually closed earlier, 

Forsyth had been remaining until the adjoining bar closed at 

2:00 a.m. for several days, purportedly to stop vandalism of 

bowling alley equipment. This routine served as a pretext 

to get Karen Forsyth to remain in the bowling alley so the 

"robbery" could take place. On the fateful night, the 

bartenders and last patrons left several minutes after 2:00 

a.m. Richards and Forsyth stood at the front window watching them 
leave. Richards' girlfriend made a brief appearance about 

this time. Richards gave her a key and told her to wait 

for him at his apartment. Richards then went to the basement 

locker room, opened the locker and prepared it to receive 

the proceeds of the "robbery" and the gun. He returned to 

the upstairs area, set several alarm trip-wires, and turned 

off the lights. He went downstairs to hide his bottle and 

get his coat. He then heard a single gunshot and returned 

upstairs to the bowling alley where he found the defendant 

putting the gun down and removing his gloves. Karen Forsyth 

had fallen to a position leaning against the counter near 

the cash register. 

They waited until her body showed no signs of life. As 

part of the "robbery," Forsyth inserted a pencil into the 

barrel of a .9 millimeter pistol and, holding the pistol by 

the pencil, got Karen Forsyth's fingerprints on the pistol 

and placed it near body. Richards donned the pair of gloves, 

took the pistol that Forsyth had used to kill Karen Forsyth 

and struck Forsyth in the back of the head. Richards pushed 

Forsyth to the floor and then collected the money from the 

counter to complete the "robbery." He took the money, the 

gloves, and the gun downstairs, and locked them in locker 

no. 191. Thereupon he called the telephone operator to 

report the "robbery" to the police. 

There are additional facts which we will discuss later 

in this opinion in connection with the issue of corroboration 

of an accomplice. 

The jury returned a verdict of guilty and the District 

Court imposed the judgment and sentence from which this 

appeal arises. 

There is an overriding issue on which we must reverse 

the judgment and remand this cause to the District Court for 
a new trial. That issue involves the failure of the District 

Court, probably accidental, to define the elements of the 

crime of deliberate homicide in the instructions given to 

the jury . 

The State concedes error in that the jury was not 

instructed as to the statutory elements of the crime. It 

also concedes that under State v. Lundblade (1981), 

Mont. - , 625 P.2d 545, 38 St.Rep. 441, it is clear that 

the trial court is obligated to give such an instruction 

even if one is not offered by the defense. The State, 

however, asks us to overlook the instructional error on the 

ground that it was harmless. 

The State contends that in this case both sides proceeded 

on the premise that a deliberate homicide had been committed, 

and that the essential fact question for the jury to decide 

was the identity of the killer. All the jury had to decide, 

contends the State, is whether the crime was committed by 

the defendant as the State's evidence showed, or by an 

unknown assailant. 

Lundblade stands for the proposition that "at a minimum" 

the District Court must explain or define the crime for the 

jury. Lundblade, 625 P.2d at 548, 38 St.Rep. at 443. See 

State v. Campbell (1972), 160 Mont. 111, 114, 500 P.2d 801, 

803. We must agree with the rationale of the court in 

Williams v. United States (1942), 131 F.2d 21, 22, where 

the court said: "The average man has some idea of what 

murder is, but we would not expect a judge to say, Jurors, 

you know what murder is, go and decide if this man is guilty 

of it." In view of the fact that every material fact necessary 

to constitute a crime must be proved beyond a reasonable 

doubt, we cannot ascribe the failure to define the elements 
of the crime to the jury as harmless error. 

Accordingly, our disposition of this case turns upon 

the same point as the disposition by us in Lundblade. We 

reverse the conviction and remand the cause for a new trial. 

We decline to reverse and dismiss, however, because there 

is evidence in the record to support the conviction. Lundblade, 

supra, 625 P.2d at 549 and cases thereunder. 

Because this case must be retried, we will discuss 

other issues raised by the appellant Forsyth for the purpose 

of guidance to the trial court. 

Forsyth contends that there was insufficient corroborative 

evidence in this case to support the testimony of Douglas 

Richards, who except for the immunity given to him, was 

otherwise accountable for this crime. 

In State v. Kemp (1979), Mont. , 597 P.2d 96, 

36 St.Rep. 1215, we discussed the sufficiency of evidence 

necessary to corroborate accomplice testimony. First of 

all, the sufficiency of such evidence is a question of law. 

Kemp, 597 P.2d at 99 and cases cited thereunder. To be 

sufficient, it must show more than that a crime was in fact 

committed or the circumstances of its commission. It must 

raise more than the suspicion of the defendant's involvement 

or opportunity to commit the crime charged. But the evidence 

need not be sufficient by itself to support the defendant's 

conviction or even to make out a prima facie case against 

him. It may be circumstantial and can come from the defendant 

or his witnesses. Kemp, 597 P.2d at 99. Under section 46- 

16-213, MCA, it must be evidence which in itself and without 

the aid of the testimony of the one responsible or legally 

accountable for the same offense tends to connect the defendant 

with the commission of the offense. 
Keeping in mind these principles, we examine the 

corroborative evidence that supports Douglas Richards' testimony. 

-- The Gun 

Richards testified that, after the killing, he placed 

the gun in locker no. 191 in the basement of the bowling 

alley along with the money and gloves that had been used. He 

testified that he burned the gloves in the boiler firebox, 

and melted the gun down with an arc-welder kept in the 

bowling alley for equipment repairs. The melting of the gun 

generated smoke which was noticeable to bowling alley patrons. 

Witness Lynn Norby went bowling at the Skyline Bowl on 

January 5, 1980. While there, she said she saw the bowling 

alley fill with smoke down on the lanes. She went to the 

desk where Forsyth was standing because she thought the 

place was on fire and talked to him. He reassured her, 

telling her to go ahead and bowl because they were doing 

some welding downstairs. 

The Money 

Richards had testified that the money taken in the 

"robbery" had been deposited by him in locker no. 191. He 

testified that ten days later he removed the money from the 

locker and hid it in two other places in the basement, 

behind a floor joist, and in an oil reservoir behind the pin 

polishing machine. He spent the large denomination bills, 

which had been hidden behind the floor joist, drinking and 

gambling. The group of one dollar bills which had been 

hidden in the oil reservoir became saturated with oil. 

Richards testified that he gave these bills to Forsyth, 

who told Richards that to avoid suspicion, he would send 

them to the bank with the bowling alley receipts with a 
cover story that his partner Jon Ball had spilled furniture 

polish on them. Witness Jon Ball testified that he remembered 

the one dollar bills which were oily, and that Forsyth had 

told him that furniture polish had been spilled on them. 

Defendant's Statements 

When Richards was arrested on the statutory rape charge, 

his first call was to Forsyth. Forsyth went to a Kalispell 

attorney for the purpose of learning what to do about bailing 

Richards out. Richards testified that when Forsyth failed to bail 

him out in accordance with their previous agreement, he 

decided to tell the truth about Karen Forsyth's murder and 

make the best deal he could for himself. Both parents of 

Douglas Richards testified regarding statements made by 

defendant the morning following Richards' arrest. William 

Richards testified that he received a telephone call from 

Debby Neff, the defendant's girlfriend, asking if Forsyth 

could come to talk to them. When he arrived, Forsyth told 

the Richards' that Douglas Richards had been arrested for 

statutory rape and that Forsyth could provide $1,000 of the 

$2,500 necessary for bail. Forsyth then said, "If Doug 

talks, we will both be in a lot more trouble than he is in 

now." Doris Richards testified essentially the same but in 

more detail. She stated that Forsyth was very nervous and 

very concerned about getting Douglas out when he arrived 

that morning. She testified that the defendant kept saying, 

"We have got to get him out of there, we have got to get him 

out of there because if he talks we are both going to be in 

a lot more trouble than he is in now." Doris Richards also 

testified that Forsyth stated, "I wish Doug when he gets 

out he would get completely out of the country." 

There was other evidence. A handwriting expert testified 

that the printed name of Greg Phillips on the locker envelope, 
when compared to an exemplar taken from Forsyth, could have 

been that of Forsyth. Also Forsyth had a poor relationship 

with his wife. She was 5'4 1/2" tall and weighed 280 pounds. 

She had been emotionally disturbed and suicidal over a 

period of years prior to her death. She was hostile to 

Debby Neff and had threatened her and her children. Witness 

Gary Red Elk testified that Forsyth once told him with 

respect to Karen's suicide attempts: "If she's going to do 

it I wish she would do it and get it over with." Forsyth 

also told Red Elk that divorce was not acceptable because of 

Karen's interest in the house, the bowling alley, and several 

valuable purebred show dogs that they owned. 

On the morning of the killing, the officers requested 

of Forsyth his consent to search the bowling alley. Forsyth 

gave consent on the condition the officers not search the 

locker area where, according to Richards, the evidence of 

the murder was hidden. Also on the morning following the 

killing, the investigating officer began to suspect the 

defendant because he seemed emotionally unaffected by his 

wife's death. 

In sum, and taken individually, these items of evidence 

tend to connect Forsyth with the crime, and to corroborate 

the testimony of Richards. Forsyth quarrels on appeal with 

the effect of this evidence, and particularly with the 

statements related by the parents of Douglas ~ichards. 

However, his quarrel goes to the weight of the evidence and 

not to its admissibility. 

Forsyth also contends that the court erred in its 

instruction to the jury on the credibility of an immunized 

witness. 
The court instructed the jury with respect to the 

testimony of Richards as follows: 

"The testimony of Douglas M. Richards ought to be 

viewed with distrust because he is an accomplice 

and in weighing his testimony, you are to further 

consider that he has been granted immunity from 

prosecution." 

The court refused Forsyth's offered instruction which 

would have told the jury: 

"The testimony of Douglas M. Richards ought to 

be viewed with distrust, and because he has given 

evidence in exchange for immunity from prosecution, 

evidence given by him and other evidence based 

upon his testimony is particularly suspect." 

The last portion of Forsyth's offered instruction is 

taken from language found in our opinion of State v. Kemp, 

supra, 597 P.2d at 98. 

Under section 46-16-201, MCA, the rules of evidence in 

civil actions are applicable to criminal actions, unless 

otherwise provided in the criminal code. Under section 26- 

1-303, MCA, relating to instructions to the jury on how to 

evaluate evidence, it is required that the jury be instructed 

by the court on all proper occasions "that the testimony of 

an accomplice ought to be viewed with distrust." 

find error in the instruction given by the court, 

which is not substantially different from that proposed by 

Forsyth, although counsel contends there is substantial 

difference. The statutory obligation of the District Court 

in this cause was to inform the jury that Richards' testimony 

ought to be viewed with distrust. A simple statement to 

that effect would probably best serve the statutory requirement. 

In retrial, we would suggest the simple instruction that 

"the testimony of a person accountable for the same crime ought 

to be viewed with distrust." Any further embellishment may 

tend to lead to confusion and obfuscation. 
Forsyth also contended that the testimony of the handwriting 

expert Jan Beck should be stricken from the record because 

his procedures in examining the envelope were impermissibly 

suggestive. We regard the objections made by Forsyth as 

merely going to the weight of the testimony, however, and 

see no need to exclude that evidence in any further trial. 

Forsyth's counsel also contends he was not given enough 

time to argue his case to the jury at the conclusion of the 

case. This can be avoided in a future trial by an express 

agreement arrived at between counsel and the court before 

the argument begins as to the amount of time allotted for 

making oral argument. 

Since we are remanding for a new trial, the other 

issues raised by Forsyth are not germane for discussion. 

In accordance with this opinion, therefore, the judgment 

of conviction for deliberate homicide against the defendant 

is vacated, and this cause is remanded to the District Court 

for a new trial. 

Justice C/I 

We Concur: 

Chief Justice 

-*&LC JUS tices 

Mr. Justice Daniel J. Shea will file a written dissent at a 

later time. 

-12- 
No. 80-285 

STATE OF MONTANA, 

Plaintiff and Respondent, 

VS . 

JERRY PAUL FORSYTH , 

Defendant and Appellant. 

------------------- 

DISSENT 

Mr, Justice Daniel J. Shea 

Dated: 

March 29, 1982 
Mr. Justice Daniel J. Shea dissenting: 

I do not believe the accomplice testimony was sufficiently 

corroborated as a matter of law, and therefore, I would 

reverse and order the case dismissed. The so-called corroborating evidence in this case falls far short of what the 

California court has declared to be insufficient as a matter 

of law. See People v. DfAllesandro (1958), 163 Cal.App.2d 

559, 329 P.2d 616. 

On the other hand, I disagree with the majority that 

the defendant is entitled to a new trial solely because the 

jury was not instructed on the elements of deliberate 

homicide. The elements of this offense were not at issue in 

this case, and the failure to instruct the jury on them was 

therefore harmless error. 

To prove deliberate homicide the State must prove that 

the person charged "purposely or knowingly" killed another. 

The issue in this case was not whether the defendant "purposely 

or knowingly" killed his wife, and the issue was not whether 

the defendant had legal excuse or justification to kill his 

wife. The evidence was uncontroverted that someone "purposely 

or knowingly" and without excuse or justification, killed 

Karen Forsyth. The question at trial was whether this 

defendant was in any way involved with that killing. The 

accomplice testified that he and the defendant planned the 

murder and that defendant actually fired the fatal shot. 

The defendant, on the other hand, testified that he and his 

wife were closing the bowling alley for the night. As he 

started to lock the front door, the door was jerked from his 

hand. He turned to warn his wife, was struck from behind, 

and knocked unconscious. And, of course, he denied that he 

and Douglas Richards had planned a murder. 
At the conclusion of the trial, an instruction setting 

forth the elements of deliberate homicide was accepted by 

the trial court, but somehow this instruction was lost in 

the paper shuffle and it was not given to the jury. The 

defendant at no time brought this to the trial court's 

attention, and both the State and the defendant argued the 

case to the jury without any need to refer to the elements 

of deliberate homicide, for the elements of the crime were not 

at issue. The issue was simply whether defendant killed his 

wife. 

Several jury instructions were given on the charge of 

deliberate homicide, although none of them set forth the 

elements. Instruction no. 8 stated that the defendant was 

accused of deliberate homicide and that the State must prove 

every material fact. Instruction no. 9 stated that the State 

must prove that each element of the offense was done purposely 

or knowingly. Instruction no. 10 told the jury that a material 

element of the offense is a voluntary act--that is, the act of 

killing must have been voluntary. The term "voluntary act" 

was defined for the jury. Further, this case was certainly 

not defended on the ground that the killing was either an 

accident or that the defendant somehow did not have the state 

of mind to commit the offense. Instruction no. 11 told the 

jury how the terms "purposely or knowingly" are proved: 

"Purpose and knowledge are manifested by the circumstances connected with the offense. Purpose 

and knowledge need not be proved by direct evidence, 

but may be inferred from acts, conduct and circumstances appearing in the evidence." 

This Court has long adhered to the rule that it will not 

review a case for a new trial where the trial court failed to 

instruct the jury on a matter of law unless that failure is 

prejudicial to substantial rights of the appellant. Section 
46-20-702, MCA; State v. Heiser (1965), 146 Mont. 413, 419, 

407 P.2d 370, 373; State v. Bubnash (1963), 142 Mont. 377, 

393, 382 P.2d 830, 838. See also McGuinn v. Crist (9th Cir, 

1981), 657 F.2d 1107. In McGuinn the defense was alibi, and 

the defendant asserted that because the trial court gave the 

jury the impermissible Sandstrom instruction (declared unconstitutional in Sandstrom v. Montana (1979), 442 U.S. 510, 99 

S.Ct. 2450, 61 L.Ed.2d 391, he was entitled to a new trial. 

That instruction stated that "the law presumes that a person 

intends the ordinary consequences of his voluntary acts." The 

Ninth Circuit, however, held this instruction to be harmless 

error because it could not have had an effect on the jury's 

decision. The victim had been shot four times in th~ head and 

had been very obviously murdered. The Court concluded that a 

reasonable juror could not have found beyond a reasonable doubt 

from the evidence that the defendant voluntarily committed the 

acts causing the victim's death without also inferring beyond 

a reasonable doubt that he also committed these acts knowingly 

or purposely. The same thing occurred here; the only question 

at trial was whether Jerry Forsyth killed his wife. An instruction 

setting forth the elements of deliberate homicide would not 

have affected a reasonable juror's deliberations. 

Although I have always been a stickler for proper jury 

instructions, I fail to see a basis for reversal on this ground 

where the only issue before the jury was whether the defendant 

participated in killing his wife. The defendant wanted the 

jury to believe that someone came into the bowling alley and 

knocked him unconscious and then murdered his wife. Douglas 

Richards had a different story, and the jury chose to believe 

it. Under these circumstances, the failure to instruct the 

jury on the essential elements of the crime, where they were 

not in issue,was harmless error. 

-15- 
Although I believe the failure to give an elements 

instruction was harmless error here, the fact that the trial 

court failed to follow the statutory procedure for settlement 

of jury instructions, cannot be ignored. Section 46-16-401(4) 

(d), MCA, requires a court reporter's presence when instructions 

are settled; but a court reporter was not present when the 

instructions were settled. 

Instructions were settled late in the evening, but no 

court reporter was present. It appears that both parties 

had offered instructions setting forth the elements of the 

offense, but there is no record of what happened to those 

offered instructions. And, in attempting to settle a bystander's 

bill, the trial court could not recall the circumstances relating 

to these offered instructions. He stated that "at the time 

these discussions took place the court believes that midnight 

had passed and everyone was exhausted." The attorneys could 

not agree on what had happened to the offered instructions. 

And, of course, because of the failure to follow the statute, 

there is no record of what happened. 

Before the case was argued to the jury the following 

morning, the parties went on record on the instructions that 

had been settled the night before, and the instructions did 

not inciude an elements instruction. Neither the trial court 

nor the attorneys noticed that an elements instruction had 

been omitted. 

Had there been a record of the settling of the instructions 

the night before, the Court would have been able, before reading 

the instructions to the jury, to determine that for some reason 

the elements instruction had been omitted. The Court could 

then have rectified the situation by ordering an elements 

instruction to be prepared. The failure of the trial court 
to follow the statute certainly contributed to the failure 

to discover the omission of the elements instruction, and 

the omission of that elements instruction has ultimately 

led to the reversal of the defendant's conviction. Section 

46-16-401(4)(d) was meant to be followed. The trial courts 

should do so if they want to avoid results such as have 

occurred here.