No. 85-372 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsJOHN F. LANCE, 

Defendant and. Appellant. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Leonard Langen, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

John F. Lance, pro set Florence, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Joe R. Roberts, Asst. Attorney General, Helena 

Robert L. Deschamps, 111, County Attorney, iss sou la, 

Montana 

Submitted on Briefs: Jan. 17, 1986 

Decided: June 17, 1986 
Mr. Chief Justice J. A. Turnage delivered the Opinion of the 

Court. 

After a jury trial in the District Court of the Fourth 

Judicial District, appellant, John Fesler Lance, was convicted of violating s 45-5-203 (1) (b) , MCA (1983) ' which provides: 

A person commits the offense of intimidation when, with the purpose to cause 

another to perform or to omit the performance of any act, he communicates to 

another a threat to perform without 

lawful authority any of the following 

acts: 

(b) subject any person to physical 

confinement or restraint. 

On appeal, Lance contends that this statute is an unconstitutional violation of the First Amendment, and he claims that 

several other errors occurred in the lower court which require reversal of his conviction. Since we uphold the constitutionality of the Montana intimidation statute and find 

no merit in the other issues raised, the judgment of conviction is affirmed. 

The events leading up to Lance's arrest and conviction 

began over seven years ago when he was served with a petition 

for divorce. Lance chose to represent himself in those 

proceedings, as he does in this case. When the decree of 

dissolution was granted, Lance lost custody of his children 

and a substantial amount of marital property. Sometime 

later, he lost possession of his very valuable ranch in 

Florence, Montana. From that point to the present, Lance has 

carried on a one-man crusade to recover his ranch, custody of 

his children and alleged substantial damages he has sustained 

1 This statute was amended subsequent to Lance's 

conviction. 
in the process. Numerous lawsuits have been filed by Lance 

in the state and federal courts in an effort to obtain these 

things; however, he has been met with constant defeat and 

dismissal of many of his actions. This lack of success has 

convinced Lance that there is a colossal conspiracy against 

him by most of the judiciary and attorneys in Montana. It is 

Lance's quest for final justice and his obvious frustration 

over his losses which has ultimately led to the conviction at 

issue in this case. 

Five separate letters written and mailed by Lance form 

the basis for his arrest and conviction. These letters were 

dated July 17, 1984, August 15, 1984, September 3, September 

8, and September 13, 1984, and were sent to Nate Denman, 2 

2 Two separate letters were mailed by Lance to Denman. 

Pertinent excerpts which constitute the threats for which 

Lance was convicted follow: 

First letter " . . . the answer--to focus public attention 

on what has taken place --is violence. And I mean taking a 

hostage which would put this story on page one of every 

newspaper. My defense at a jury trial I would request later 

would be 'all of the above.' . . . In short, if the road to 

the ranch is cut off, litigation stops and I am ready to turn 

to violence to reach my ends . . . A coverup will never work 

here because I am ready to put down my life and my personal 

freedom, if necessary, to expose all of this. Further, I 

believe I am perfectly capable of getting that hostage in 

hand, and capable of negotiating for his/her release. There 

are no concrete plans now. No hostage is positively selected. No dates have been set. No location has been 

selected . . . But if they do, the final straw is violence." 

(Emphasis his. ) 

Second letter: 

"All my life I have sought to avoid violence. Always there 

has been another way out. Here it is not 

possible . . . Those incidents alone, Denman, will allow me 

to proceed to violence in a desperate, last ditch quest for 

final justice. With a key hostage in hand, I will negotiate. 

There are no alternatives . . . I will bring the Governor 

into this and probably Dean of the Law School, but only when 

hostage is in hand. Then we will go to radio, TV, newspapers, other media. This story will be told--over a 

telephone--by John Lance. Hour after hour unless the law 
Judge Kichael ~eed~,~ Tom wingt4 and Judge Jack Green, 5 

respectively. Basically, Lance stated in the letters that if 

his remaining lawsuits are dismissed, he will take a hostage 

presses me. In that event, they will choose violence. And 

there are - times when violence is the A onlv wav A to create 

change . . . I will pay any price--take any risk--to even the 

score . . . If you think my 'objections' raise eyebrows (they 

do) just wait. The real exposure has not even begun. There 

are a lot of targets. With a hostage in hand, I will have an 

attentive audience." (Emphasis his.) 

3 Pertinent excerpts of the letter are: 

"I of course expect to have my main federal lawsuit dismissed. There is no justice in any of this. 

. . . If a federal dismissal comes, I will of course appeal 

to the Supreme Court of the United States but there I will 

have about a 2% chance of having the appeal heard. So at 

that point the whole contest will really be removed to the 

'streets of Dodge' for resolution and I of course plan to put 

this whole story at that time on the front page of every 

newspaper in the U.S. . . . The contest will continue until 

I have my ranch and my children and damages determined by a 

jury . 

4 Pertinent excerpts of the letter are: 

"Enclosed is a copy of my letter to Denman dated August 15, 

1984. I believe it indicates where I stand with regard to 

Denman and with regard to the use of violence to find final 

justice or to upset the impropriety found today in this court 

system. . . Then when I do act - when the relief has not 

come through the courts - the record will clearly indicate 

what is wrong, who is wrong, and why it remains wrong. From 

a telephone, my hostage and I will negotiate. There will be 

no violence unless the 'System' then initiates violence by 

attempting to reach the hostage. That provocation would 

result in violence without question. But I will have the 

right hostage and if violence comes, there will be very, 

very little loss to society." 

5 Pertinent excerpts of the letter are: 

"However, I can tell you one thing I do know. I will fight 

for final justice here to the very end of my life. It is my 

intent and I have resolved that if these lawsuits are improperly dismissed on appeal, I wm1 at that point take the 

necessary action to put this entire matter on the front page 

of every newspaper in the United States of America. Needless 

to say, this will not be done by writing to the editors of 

each newspaper. It will take a substantial public act to 

reach this goal and it is my belief that regardless of the 
for the purpose of focusing nationwide media attention on his 

plight and for the purpose of negotiating to obtain the 

return of his ranch and his children, and for the damages he 

has sustained. Nate Denman was particularly alarmed by the 

letters he received, and he sent relevant excerpts of them to 

the Director of the Montana State Hospital at Warm Springs 

who, in turn, sent the excerpts to the County Attorney in 

Hamilton, Montana. Subsequently, on September 19, 1984, the 

Missoula County Attorney filed an Information charging Lance 

with the offense of intimidation. 

Lance was arrested on September 20, and bail was initially set at $500,000. However, one week later bail was 

reduced by the District Court to $50,000, and on November 8 

Lance was released on his own recognizance. During this 

time, Lance brought an application for writ of habeas corpus 

alleging that S 45-5-203, MCA, was unconstitutional on its 

face and as applied. On November 1, 1984, the District Court 

issued an opinion upholding the constitutionality of that 

statute and denying the application for the writ. On December 6, the court accepted the State's motion to file an 

amended information. Trial was set for January 28, 1985 and 

on January 30 the jury found Lance guilty of intimidation. 

Lance conducted his own defense at trial. and continues his 

pro se status on appeal. 

Appellant has raised numerous issues, both formally and 

informally, in his lengthy brief. The precise issues raised 

personal consequences to me, that act must be done here if 

the judicial system denies me my just and proper right to 

jury trials for these defendants who are clearly corrupt and 

who have quite obviously conspired against me." 
were difficult to discern in view of the fact that they were 

intertwined with rambling attacks on the judiciary and 

attorneys of Montana, in addition to allegations of a massive 

conspiracy designed to prevent him from recovering what he 

lost in the divorce seven years ago. Nevertheless, we 

believe that there are six issues which are legitimately 

raised: 

(1) Does S 45-5-203 (1) (b) , MCA (1983), violate the 

First Amendment because it is overbroad or because it is 

unconstitutional as applied? 

(2) Was reversible error created by the fact that bail 

was originally set at $500,000 but was reduced to $50,000 one 

week later, in light of the fact that appellant was released 

on his own recognizance six weeks later? 

(3) Was appellant denied his constitutional right of 

access to the courts during his six week pre-trial confinement by being denied access to a substantial legal library 

and by the failure of his court appointed counsel to comply 

with every request he made? 

(4) Was reversible error created when the prosecutor 

obtained juror affidavits before a mistrial hearing was held 

which was based on alleged witness misconduct occurring at 

the trial without first acquiring the court's permission to 

do so? 

(5) Did the trial court abuse its discretion by accepting the second amended information? 

a 

(6) Did the trial court abuse its discretion by failing to allow appellant a continuance so he could file proposed jury instructions, which resulted in proposed jury 

instructions being filed only by the prosecution? 
Another issue raised by appellant involves his allegations of 

conspiracy and corruption within the legal community in 

Montana. Since this issue is totally irrelevant to his 

appeal and consists largely of groundless speculation, we do 

not consider it in our decision. 

I 

Since appellant's first issue requires us to construe 

Montana's intimidation statute with the commands of the First 

Amendment in mind, and because there may be some doubt as to 

its constitutionality after the federal court decision in 

Wurtz v. Risley (9th Cir. 1983), 719 F.2d 1438, we will 

discuss this issue in some detail. 

A 

Appellant first contends that 5 45-5-203 is unconstitutional on its face because it is overbroad. This statute is 

particularly susceptible to an overbreadth attack because it 

makes criminal a form of pure speech. Subsection (b) imposes 

criminal liability when a person "communicates to another a 

threat" to subject any person to physical confinement or 

restraint without lawful authority and with the purpose of 

causing another to perform or omit the performance of any 

act. Thus, the heart of the offense is communication. No 

overt act or conduct of any kind is required. Although the 

statute requires the communication of a threat to take some 

specific act coupled with a criminal state of mind, the 

offense is complete upon the communication of the threat. 

Only words are punished by the statute. Therefore, it can 

withstand appellant's attack upon its constitutionality only 

if it does not apply to speech that is protected by the First 
Amendment. Gooding v. Wilson (1972), 405 U.S. 518, 92 S.Ct. 

1103, 31 L.Ed.2d 408. 

The doctrine of overbreadth in the area of First Amendment freedom of speech is an exception to the normal rules of 

standing. This doctrine allows appellant to raise an objection to 5 45-5-203 on First Amendment grounds even though the 

statute would have been constitutional as applied to his 

particular case. "It matters not that the words [appellant] 

used might have been constitutionally prohibited under a 

narrowly and precisely drawn statute." Goodinq, 405 U.S. at 

520. "[Aln individual whose own speech or expressive conduct 

may validly be prohibited or sanctioned. is permitted to 

challenge a statute on its face because it also threatens 

others not before the court--those who desire to engage in 

legally protected expression but who may refrain from doing 

so rather than risk prosecution or undertake to have the law 

declared partially invalid." Brockett v. Spokane Arcades, 

Inc. (1985), U.S. , 105 S.Ct. 2794, 2802, 86 L.Ed.2d 

394, 405-406. Thus, the statute may be unconstitutional on 

its face even though it would be constitutional as applied to 

appellant. 

Section 45-5-203 (1) (c) has been declared 

unconstitutional by the Ninth Circuit in Wurtz on grounds of 

overbreadth. Appellant contends that Wurtz controls the 

decision i.n this case. We disagree with this view for two 

reasons. 

First, only subsection (c) was at issue in Wurtz, and 

the court considered the overbreadth challenge solely with 

6 Subsection (c) made it unlawful to threaten to 

"commit any criminal offense." 
regard to that subsection. The court did not declare the 

entire intimidation statute to be unconstitutional; rather, 

it held only 45-5-203 (1) (c) to be unconstitutional. It is 

an elementary principle of constitutional law that "the same 

statute may be in part constitutional and in part unconstitutional, and that if the parts are wholly independent of each 

other, that which is constitutional may stand while that 

which is unconstitutional will be rejected." Brockett, 105 

S.Ct. at 2801, quoting from Allen v. La. (1881), 103 U.S. 80, 

83-84, 13 Otto 80, 26 L.Ed. 318. 

We view the separate subsections of the statute as 

completely independent of each other. It was the legislature's purpose to impose criminal sanctions on individuals 

who threaten to commit certain specific acts. Simply because 

threats to "commit any criminal offense" were held to be 

unconstitutional does not mean that the legislature would not 

want to continue punishing threats to "subject any person to 

physical confinement or restraint." One prohibition in the 

statute does not hinge on another. Therefore, the decision 

in Wurtz declaring subsection (c) to be unconstitutional does 

not state the applicable law in this case. 

Secondly, Wurtz is not controlling here because it was 

decided without the benefit of recent United. States Supreme 

Court cases clarifying the analysis to be applied in determining whether a statute is overbroad. Broadrick v. Oklahoma 

(1973), 413 U.S. 601, 615, 93 S.Ct. 2908, 2918, 37 L.Ed.2d 

830, 842, established that where speech is combined with 

conduct, "the overbreadth of a statute must not only be real, 

but substantial as well, judged in relation to the statute's 

plainly legitimate sweep." (Emphasis added.) There was some 

question after Broadrick whether substantiality was 
applicable where pure speech was involved. However, that 

question was answered in New York v. Ferber (1982) , 458 U.S. 

The statute at issue in Ferber prohibited distribution 

of child pornography. Admittedly, only speech was involved, 

and the question left unanswered in Broadrick was directly 

presented. The Court held: 

This case, which poses the question 

squarely, convinces us that the rationale of Broadrick is sound and should be 

applied in the present context. . . . 

The premise that a law should not be 

invalidated for overbreadth unless it 

reaches a substantial number of impermissible applications is hardly novel. 

On most occasions involving facial 

invalidation, the Court has stressed the 

embracing sweep of the statute over 

protected expression. 

Ferber, 458 U.S. at 771. 

The Court reiterated in Brockett that the substantial overbreadth doctrine applies to pure speech. In footnote 12, the 

Court stated: "The Court of Appeals erred in holding that the 

Broadrick substantial overbreadth requirement is inapplicable 

where pure speech rather than conduct is at issue. New York 

v. Ferber (cite omitted) specifically held to the contrary." 

Brockett, 105 S.Ct. at 2802. 

Applying the foregoing principles to the present case, 

we hold that S 45-5-203(1) (b) is not substantially overbroad. 

It prohibits threats to subject any person to physical confinement or restraint without lawful authority with the 

purpose of causing another to perform or omit the performance 

of any act. Although the statute uses the words "physical 

confinement or restraint," we construe the word "restraint" 

to mean a "physical" restraint. The statute does not punish 
any threat to subject another to some form of mental or 

psychological restraint. Only threats to subject another to 

a physical confinement or a physical restraint are punishable. Clearly the State has a legitimate and considerable 

interest in preventing persons from threatening to take a 

hostage or impose some other unlawful physical restraint on 

another for the sole purpose of attaining some end. Appellant has not identified, and we are unable to find, any 

situations where a person would be constitutionally permitted 

to make such a threat. Although it might be possible that 

some rare situations will arise in the future where a person 

could constitutionally threaten to take a hostage to accomplish some end, those possible unconstitutional applications 

of the statute are not sufficient to invalidate it on its 

face. As Ferber said, quoting from Parker v. Levy (1974) , 

417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439: 

This Court has . . . repeatedly expressed its reluctance to strike down a 

statute on its face where there were a 

substantial number of situations to 

which it might be validly applied. 

Thus, even if there are marginal applications in which a statute would infringe on First Amendment values, facial 

invalidation is inappropriate if the 

"remainder of the statute . . . covers a 

whole range of easily identifiable and 

constitutionally proscribable . . . conduct . . . " (Citation omitted.) 

Ferber, 458 U.S. at 770, Fn. 25. 

Therefore, since appellant has been unable to identify any 

substantial applications of the statute to constitutionally 

protected speech and has not shown how the statute impacts 

differently on third parties not before the Court, his claim 

that the statute is unconstitutionally overbroad must fail. 
We now proceed to determine whether S 45-5-203(1) (b) is 

unconstitutional as applied to appellant. We note at the 

outset that the statute carries a heavy burden since it seeks 

to prohibit pure speech without any requirement of an overt 

act. However, this fact alone is not sufficient to invalidate such a statute. It is only when a statute prohibits 

"protected" speech that it will be found to be unconstitutional, keeping in mind, however, that the vast majority of 

speech is protected. 

Beginning at least as early as 1919, the United States 

Supreme Court recognized that the right to speak one's mind 

on any subject at any time was not the intent of the First 

Amendment. Justice Holmes wisely observed that " [t] he most 

stringent protection of free speech would not protect a man 

in falsely shouting fire in a theater, and causing a panic." 

Schenck v. United States (1919), 249 U.S. 47, 52, 39 S.Ct. 

247, 249, 63 L.Ed. 470, 473. The Court gave greater scope to 

this doctrine over twenty years later in Chaplinsky v. New 

Hampshire (1942), 315 U.S. 568, 86 L.Ed. 1031, 62 S.Ct. 766. 

The Court stated: 

Allowing the broadest scope to the 

language and purpose of the Fourteenth 

Amendment, it is well understood that 

the right of free speech is not absolute 

a-t all times and under all circumstances. There are certain well-defined and 

narrowly limited classes of speech, the 

prevention and punishment of which have 

never been thought to raise any Constitutional problems. These include the 

lewd and obscene, the profane, the 

libelous, and the insulting or "fighting" words--those which by their very 

utterance inflict injury or tend to 

incite an immediate breach of the peace. 

It has been well observed that such 

utterances are no essential part of any 

exposition of ideas, and are of such 

slight social value as a step to truth 
that any benefit that may be derived 

from them is clearly outweighed by the 

social interest in order and morality. 

Chaplinsky, 315 U.S. at 571-572. 

Thus, Chaplinsky established that "fighting words" do not 

come within the protection of the First Amendment. 

Roth v. United States (1957), 354 U.S. 476, 77 S.Ct. 

1304, 1 L.Ed.2d 1498, established another exception to constitutionally protected speech. The Court observed that "the 

First Amendment was not intended to protect every utterance," 

and held that "obscenity is not within the area of constitutionally protected speech or press." Roth, 354 U.S. at 483, 

485. The Court took a further step in Ferber. There it held 

that child pornography, even though it may not meet the 

standards established for obscenity, is not speech protected 

by the First Amendment. The Court based its holding in large 

part on a finding that the state's interest in regulating 

child pornography was of "surpassing importance," and by 

finding that the evil sought to be prevented overwhelmingly 

outweighs the expressive interests involved. 

With these firmly established principles as our guide, 

and ever mindful of the stringent protection of speech required by the First Amendment, we hold that threats of the 

kind prohibited by S 45-5-203 (1) (b) are not speech protected 

by the First Amendment. The State has a substantial, if not 

overwhelming, interest in preventing intimidation of the 

public and the resulting fear and anxiety caused by these 

terroristic-type threats. "It has been clear since this 

Court's earliest decisions concerning the freedom of speech 

that the state may sometimes curtail speech when necessary to 

advance a significant and legitimate state interest." City 

Council v. Taxpayers for Vincent (1984), 466 U.S. 789, 804, 
104 S.Ct. 2118, 2128, 80 L.Ed.2d 772, 786. The value to 

society of permitting threats of this nature is minuscule at 

best. Furthermore, the statute does not aim at discriminating between different types of speech, nor does it prohibit 

any constitutionally protected speech. The threats prohibited by it are punishable whatever their purpose and however 

noble the ultimate goal of the threatener may be. The statute is based on content only insofar as to determine whether 

a prohibited threat is involved in the speech. 

Thus, it is not rare that a 

content-based classification of speech 

has been accepted because it may be 

appropriately generalized that within 

the confines of the given classification, the evil to be restricted so 

overwhelmingly outweighs the expressive 

interests, if any, at stake, that no 

process of case-by-case adjudication is 

required. 

Ferber, 458 U.S. at 763-764. 

The proposition that specific types of threats do not 

come within the protection of the First Amendment has been 

given firm support by the United States Supreme Court and 

several lower federal courts. In Watts v. United States 

(1969), 394 U.S. 705, 707, 89 S.Ct. 1399, 1401, 22 L.Ed.2d 

664, 667, a case involving threats against the President, the 

Court had no difficulty in finding that "the statute under 

which petitioner was convicted is constitutional on its 

face." Similarly in United States v. Howell (5th Cir. 1983), 

719 F.2d 1258, 1261, the court held: 

Not all utterances are afforded the same 

degree of first amendment protection; 

whatever contribution statements like 

Howell's may make to the "uninhibited, 

robust, and wide-open" debate on public 

issues to which this nation is committed, the compelling governmental interest in protecting the safety of the 

Chief Executive has been thought to 

outweigh it. 
Howell had been convicted of threatening the life of the 

President for making the statement: "If released, I would 

make my way to Washington and kill him--I will kill the 

President." 

However, § 45-5-203 does not prohibit all speech which 

is "threatening." "What is a threat must be distinguished 

from what is constitutionally protected speech." Watts, 394 

U.S. at 707. We find that implicit in the word "threat", as 

used in the intimidation statute, is a requirement that it be 

communicated under circumstances which reasonably tend to 

produce a fear that the threat will be carried out. This 

implicit requirement has been made explicit by the legislature in its 1985 amendment of the statute. Furthermore, the 

threat must be a "true threat." Threats which are, when 

taken in context, made in jest or which are simply "political 

hyperbole" are not punishable under the statute. Watts, 

supra. Mere advocacy of the use of force or violence to 

accomplish some end also does not constitute a threat under 

the statute since that form of expression is protected by the 

First Amendment. NAACP v. Claiborne Hardware Co. (1982) , 

458 U.S. 886, 102 S.Ct. 3409, 73 L.Ed.2d 1215; Brandenburg v. 

Ohio (1969), 395 U.S. 444, 89 S.Ct. 1827, 23 ~.Ed.2d 430. 

Rather, only serious expressions of an intention to take a 

hostage, murder, inflict serious injuries on persons or 

property, or commit a £el-ony, for the purpose of accomplishing some end constitute a threat punishable under the statute. However, the question of intention is to be decided on 

the basis of an objective standard, United States v. Kelner 

(2nd Cir. 1976), 534 F.2d 1020, and whether a statement 

constitutes a true threat is to be determined by the trier of 
fact. United States v. Merrill (9th Cir. 1984), 746 F.2d. 

458; Howell, supra. 

We hold that appellant's statements constitute threats 

punishable under S 45-5-203 (1) (b) . He repeatedly wrote that 

he would take a hostage in order to bring public attention to 

his plight and for the purpose of securing the return of his 

ranch, his children, and the monetary damages he has suffered. (See especially Fn. 2 and Fn. 4.) These statements 

were more than mere political opposition to the Montana legal 

system, as appellant contends on appeal. They were serious 

threats to take a hostage in order to attain his goals. This 

type of speech is so inimical to society and plays such a 

minimal part in the exposition of ideas that the State may 

constitutionally prohibit it. An individual cannot be permitted to terrorize members of the public through threats, 

and then claim protection from prosecution under the First 

Amendment. Freedom of speech was never meant to be stretched 

to the point where more injury is done to society as a whole 

than good. Furthermore, the statute is narrowly tailored to 

accomplish the State's asserted purpose--caustic, abusive, 

and robust speech is fully protected until it rises to the 

level of threats which cause harm to society. "The ordinance 

curtails no more speech than is necessary to accomplish its 

purpose." City Council, 466 U.S. at 810. 

Under the commands of the First Amendment, we have 

scrupulously reviewed appellant's conviction. We hold that 

the Montana intimidation statute is neither unconstitutionally overbroad, nor is it unconstitutional as applied. 
Appellant contends next that reversible error was 

created by the lower court in setting his bail at $500,000 

originally, and then in setting it at $50,000 one week later. 

The imposition of bail is an area which is largely within the 

discretion of the trial court, and the amount set will always 

be upheld if it is reasonable. State v. McLeod (1957), 131 

Mont. 478, 311 P.2d 400. However, it is not necessary for us 

to decide whether $50,000 was a reasonable amount in appellant's case because the issue is moot. 

Appellant was released on his own recognizance at least 

two and one half months before his trial began. Under the 

circumstances, this was an adequate amount of time to enable 

this pro se defendant to prepare his case. Appellant has not 

demonstrated any prejudice which may have resulted by having 

only two and one half months to prepare his case, and has not 

shown how having the extra month and one half he spent in 

confinement would have materially benefitted his defense. We 

find no error on this basis. 

Appellant contends that he was unconstitutionally 

denied access to the courts during his pre-trial confinement 

by being denied access to a substantial legal library and by 

certain inadequacies of his court appointed counsel. 

Appellant is correct in his assertion that a prisoner 

has a constitutional right of access to the courts. However, 

the cases appellant cites in support of this rule and others 

that we have been able to locate are concerned solely with 

the right of indigent prisoners. Johnson v. Avery (1969), 

393 U.S. 483, 490, 89 S.Ct. 747, 751, 21 L.Ed.2d 718, 724, 
held only that unless the "State provides some reasonable 

alternative to assist inmates in. the preparation of petitions 

for post-conviction relief, it may not validly enforce a 

regulation . . . barring inmates from furnishing such assistance to other prisoners." (Emphasis added.) ~ounds v. 

Smith (1977), 430 U.S. 817, 828, 97 S.Ct. 1491, 1498, 52 

L.Ed.2d 72, 83, went a step further and held: 

[Tlhe fundamental constitutional right 

of access to the courts requires 

prison authorities to assist inmates in 

the preparation and filing of meaningful 

legal papers by providing prisoners with 

adequate law libraries or adequate 

assistance from persons trained in the 

law. (Emphasis added. ) 

Nowhere is there a requirement that county jails provide 

persons awaiting trial with a substantial legal library. The 

only requirement is that prisons provide inmates with adequate legal libraries or some other reasonable alternative. 

We express no opinion on whether this constitutionally mandated requirement extends to persons awaiting trial while in 

county jails, nor as to whether it extends to non-indigents. 

R.ather, we find that appellant was in fact provided with a 

reasonable alternative to an adequate legal library. 

Appellant chose to proceed pro se in defending the 

charge brought against him and in his action for writ of 

habeas corpus. Even though appellant was not indigent, the 

court appointed counsel to assist him in doing legal research. Counsel made copies of cases appellant requested, 

did some independent research for appellant, and allowed 

appellant the use of his own Montana codes. The sheriff at 

the county jail made every effort to accommodate appellant's 

request to do research at the jail and to prepare his brief. 

The resulting brief appellant filed in support of the writ of 
habeas corpus was 47 typed pages long and it cited numerous 

cases, the majority of which represented the relevant law on 

the subject. We find that appellant was provided with more 

than adequate legal assistance during the short time he was 

incarcerated, and that his right of access to the courts was 

not denied. 

IV 

Sometime after the trial had concluded, appellant moved 

for a mistrial on the basis of alleged misconduct by a witness during the trial. It appears that during Mr. Denman's 

testimony the court recessed, and appellant, the county 

attorney, and the judge went into chambers. While they were 

out, one of the jurors asked the bailiff if he could be 

excused to go to the bathroom. Mr. Denman replied that the 

juror had a constitutional right to do so. Before the mistrial hearing was held, the prosecutor obtained, without 

first acquiring the court's permission, affidavits from 

several jurors which generally stated that the remark was 

taken as a joke and had no influence on their decision. 

Appellant contends that the prosecutor's action deprived him 

of due process of law. 

Appellant has not cited a single case which holds that 

the taking of juror affidavits by the prosecutor after trial 

amounts to a denial of due process. We fail to see how he 

could have been prejudiced in anyway by these actions. 

Furthermore, he has not demonstrated any prejudice to his 

case by the humorous remark made by the witness. No substantial rights of appellant were affected by the witness's 

remarks nor by the prosecutor's conduct. Therefore, if there 
was any error, it must be disregarded. Section 46-20-702, 

MCA. 

Appellant contends next that the trial court committed 

error by its acceptance of the Second Amended Information. 

He bases this contention on two grounds: (1) the amended 

information failed to include all of the necessary elements 

because it did not state that the threat was made to the 

"victim" as required by State v. Wurtz, and (2) appellant was 

not given proper notice of the hearing held to address the 

proposed filing of the amended information, in violation of 

the Fourteenth Amendment. 

Appellant is correct in his reading of State v. Wurtz 

(Mont. 1981), 636 P.2d 246, 38 St.Rep. 1808. That case 

stated: 

There are three elements which the State 

must prove in order to sustain a charge 

of intimidation: (1) that the defendant 

communicated to the victim a threat to 

commit one or more of the acts enumerated in section 45-5-203 (1); (2) that the 

defendant was without legal authority to 

perform the threatened act; and (3) that 

the defendant had the purpose to cause 

the victim to perform or omit the performance of any act. (Emphasis added. ) 

Wurtz, 636 P.2d at 250. Under this definition, if the victim 

to whom the threat is made is required to be the same victim 

which defendant had the purpose of causing to perform an act, 

appellant could not have been properly charged under the 

statute because he communicated threats to four different 

individuals with the purpose of causing either the State of 

Montana or the Montana judiciary to perform an act; i.e., the 

person threatened differed from the person sought to be 

coerced. 
The language of § 45-5-203 does not use the word "victim"; rather, the word "another" is used. We believe that it 

is within the language and intent of the statute that the 

person who receives the threat can be different from the 

person who is sought to be compelled by the threat. Otherwise, for example, an individual could contact the news media 

threatening to take the life of a hostage if the Governor 

does not meet his demands, and he could not be convicted 

under this statute. But it is this very situation which the 

statute is aimed at outlawing. Therefore, we find that the 

decision in State v. Wurtz gave too narrow a reading of the 

statute, and we overrule it to the extent that it is inconsistent with this opinion. Considering "another" with regard 

to its plain meaning, the amended information sufficiently 

charged appellant with the crime of intimidation. Furthermore, viewing the amended information together with the 

contents of the supporting affidavit, it is clear that the 

State intended to prove the offense of intimidation and that 

sufficient facts were set forth to establish probable cause 

for that offense, which is all that was required for the 

court to accept the amended information. State v. Longneck 

(1981), 196 Mont. 151, 640 P.2d 436; State v. Hamilton 

(1980), 185 Mont. 522, 605 P.2d 1121. 

As to appellant's assertion that he was not given 

sufficient notice of the hearing, § 46-11-403, MCA states the 

applicable rule: 

(1) (a) An information may be amended in 

matters of substance at anytime not less 

than 5 days before trial with leave of 

court. 

(c) If the motion is timely and the 

amended information is supported by 
probable cause, the court shall grant 

leave to amend. 

(e) The defendant shall have a reasonable period of time to prepare for trial 

on the amended information. 

The amended information was accepted by the court on December 

6, 1984, and trial began on January 28, 1985. Under the 

circumstances, this was a reasonable amount of time for 

appellant to prepare for trial on the amended information, 

which did not differ materially nor state a separate charge 

from the original information. Nowhere in the statute is 

there a requirement that a defendant be given notice before 

the amended information may be accepted by the court, nor is 

such notice required by due process. The trial court did not 

err in its acceptance of the amended information. 

Finally, appellant contends that the trial court erred 

by not granting him a continuance so that he could file 

proposed jury instructions. Under S 46-13-202(3), MCA, 

[a] 11 motions for continuance are addressed to the discretion of the trial 

court and shall be considered in the 

light of the diligence shown on the pa.rt 

of the movant. Th.is section shall be 

construed to the end that criminal cases 

are tried with due diligence consonant 

with the rights of the defendant and the 

state to a speedy trial. 

The only reason appellant gave in support of his motion was 

that because of all his other pending lawsuits, he simply did 

not have time to prepare the proposed instructions. Appellant chose to proceed pro set and he will be held to the same 

standards applied to attorneys. Excuses based on lack of 

time to prepare because of other commitments are among the 
most frequently used by attorneys and are the least likely to 

justify a continuance. State v. Paulson (1975), 167 Mont. 

310, 315, 538 P.2d 339, 342, held: 

Motions for continuance are addressed to 

the discretion of the trial court and 

the granting of a continuance has never 

been a matter of right. (Citation 

omitted.) The district court cannot be 

overturned on appeal in absence of a 

showing of prejudice to the movant. 

Over four months elapsed between the time appellant was 

arrested and the time when trial began. This was ample time 

for appellant to prepare his case, and the reason given in 

support of his motion for continuance was totally insufficient. We find no prejudice to appellant by the court's 

denial of his motion. 

The judgment of conviction is affirmed. 

We concur: 

flW& 

Chief Justice