NO. 13011 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1976 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

-VS - 

DUNCAN PEDER McKENZ IE , JR. , 

Defendant and Appellant. 

Appeal from: District Court of the Eighth Judicial District, 

Honorable R. J. Nelson, Judge presiding. 

Counsel of Record : 

For Appellant : 

Barney Reagan argued, Cut Bank, Montana 

Charles L. Jacobsen argued, Conrad, Montana 

For Respondent: 

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

Montana 

John F. North, Assistant Attorney General, argued, 

Helena, Montana 

Douglas Anderson argued, County Attorney, Conrad, 

Montana 

Submitted: September 3, 1976 

-- - '! 7 Decided: 3 16 

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Filed: \. 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This appeal is from the district court, Cascade County, 

following a j&ry verdict of guilty to the crimes of deliberate 

homocide and aggravated kidnapping. Punishment under the codes 

of Montana for each crime: death. 

Lana Harding was a 23 year old rural school teacher in 

Pondera County. On the morning of Tuesday, January 22, 1974, 

she failed to appear at school. At the Pioneer School teacherage, 

where she lived, the bed was found in a disheveled condition. The 

sheriff of Pondera County was called and officers were dispatched 

to the school, arriving there mid-morning. 

Investigation that day revealed (1) a red tennis shoe 

belonging to Lana just outside the school, (2) a drag trail from 

the teacherage to a nearby road, (3) blood near the end of the drag 

trail (later identified as Lam's type and Rh factor), and (4) a 

wristwatch belonging to Lana was found in the same area as the 

blood. Lana Harding was last seen in Conrad, some thirteen miles 

from the teacherage, on Monday, January 21, 1974 at about 5:00 p.m. 

Defendant had recently moved into the community and was 

working for the K & K Wholesale Seed Co. located approximately 

three miles from the Pioneer School teacherage. Within a day or 

so before January 21, defendant made arrangements to buy a 1948 

black Dodge pickup, recognizable to most inhabitants of the area 

due to the fact it had belonged to one owner for a long period of 

time. On January 21, 1974, defendant worked on the pickup after 

work. He was seen leaving the K & K Wholesale Seed Co. at approximately 6:45 p.m., driving the black pickup and headed towards his 
place of residence, which was not far from the teacherage. The 

pickup was seen about 7:00 p.m. about a mile from the teacherage. 

Approximately an hour and twenty minutes later, at 

about 8:00 p.m., defendant knocked on the door of the Pearson 

farm residence, located across the road from the teacherage. He 

asked for assistance in starting his Dodge pickup. It was later 

determined the pickup was parked on the road where the drag trail 

ended and where the blood and watch were found on the following day, 

January 22. At the Pearson residence defendant asked directions 

to his own residence and from there called his wife to say he 

was coming home. Don Pearson pulled the pickup and got it started 

and later noted defendant did not drive on to his place of residence. 

Shortly thereafter the pickup was seen being driven toward the 

drill site where the body was later located. 

On the morning of January 23, Wednesday, the body of Lana 

Harding was found at a location called the "drill sitef' in the 

area of K & K Wholesale Seed Co. The body was clothed only in 

a shirt, sweater and bra and it was draped over the tongue of a 

grain drill. She had been severely beaten about the head and body. 

The forensic pathologist who examined the body testified the 

death blow was one that was delivered to the head and laid open the 

right side. A rope was tied around her neck and there was evidence 

she had been strangled with it but pressure had been released so 

she did not die of strangulation. Entangled in her hair was a 

coil of wire, later shown to have come from a roll of wire found 

in the back of the Dodge pickup. 

In the course of the search for the body and the investigation of the murder a number of items were found and later received 

into evidence that were incriminating against defendant: 
1) A pair of gloves worn by defendant at work on January 

21 and found in a field not far from where the body was discovered, 

the gloves had human blood on them. 

2) Overshoes found about a quarter mile away had type 0 

human blood and brain tissue on them, impressions on the soles 

matched the heels of the boots later taken from defendant's home. 

3) Lana Harding's purse was found near where the overshoes 

were recovered. 

As a result of the investigation by the sheriff and his 

deputies, late on the afternoon of Tuesday, January 22 the county 

attorney filed a complaint before the justice of the peace and 

obtained a warrant for the arrest of defendant and a search warrant. 

Thereafter, defendant was arrested on an assault charge 

at his home. The Dodge pickup was seized and impounded. Human 

blood was found in the bed of the pickup and on the springs; the 

back end of the pickup had been recently sprayed with black paint; 

the spray paint was identified by F.B.I. experts as identical to 

a spray paint brand named "Weekend". This brand was not available 

in the Conrad area. A can of the black spray paint was found in 

the cab of the pickup and another was later found at defendant's 

home. 

After seizing the truck and taking it to Conrad, several 

items were found in the back of the pickup. A coil of wire, 

later identified by F.B.I. experts as having been connected to 

and broken away from the coil of wire found in deceased's hair; 

and an exhaust manifold that had been painted black. On the manifold was found human blood of the same type and Rh factor as 

Lana's along with brain and cortical tissue. Dr. John Phaff, who 
examined the body and the manifold testified the manifold could 

have inflicted the fatal blow. 

At the drill site, where the body was found, a piece of 

brass from a water pump was found. The prior owner of the Dodge 

pickup testified this piece of brass was in the back of the pickup 

when defendant took possession of it on January 19, 1974. 

Several co-workers at the K & K Wholesale Seed Co. testified 

at trial that defendant on January 21 had said he broke in every 

new vehicle by engaging in sexual intercourse in the newly acquired 

vehicle. Several days before he said he had intercourse with 

country school teachers; that they were naive, he could teach them, 

and they were easy to get. 

Defendant appeals his conviction of guilty and presents 25 

issues on appeal in an unprecedented brief of over 500 pages 

accompanied by two volumes of appendixes, plus a 75 page reply 

brief. Also filed was an amicus curiae brief from the NAACP on 

the death penalty. For the purpose of clarity and brevity the 

25 issues will not necessarily be discussed in order, some will be 

consolidated, but all will be considered. The 25 specifications of 

error listed by defendant are: 

1. The court erred in denying defendant's motion to suppress 

and in holding section 95-1806(f), R.C.M. 1947, constitutional. 

2. The court erred in refusing to grant defendant's 

motion to withdraw plea or defendant's motion to enforce plea. 

bargaining agreement of December 23, 1974. 

3. The court abused its discretion in requiring defendant 

to put witnesses on out of order and erred in refusing defendant's 

proposed exhibits 1-12, 13A,13B, 14 -23, 24, 24A,25, 25A, 27, 

28, 30 and 31. 
4. The erred in admitting into evidence state's exhibits 

{I 6 - 11, which were postmortem photographs of the victim's body. 

5. The trial court erred in admitting state's exhibit 

#97, over defendant's objection. 

6. The court erred in allowing persons in the audience 

to record the closing argument of counsel for the state, over 

objection. 

7. The court erred in granting the state's motion to endorse 

58 additional witnesses on the amended information on the first 

day of trial. 

8. The court erred in not enforcing its own order requiring 

the state to furnish defendant with the statements of its witnesses. 

9. The court erred in allowing experts to testify as to 

results of tests run on items which were subsequently admitted 

into evidence, and erred in admitting opinion testimony concerning 

proposed exhibits not yet admitted into evidence. 

10. The court erred by refusing to grant defendant's motions 

to disqualify district judges. 

11. The court erred in allowing the state to file its 

amended informations and denied defendant a speedy trial. 

12. The court erred in defining "torture", giving the 

question of torture to the jury; and defendants rights were prejudiced by giving Instructions {I 23,29 and 54. 

13. The court erred in giving preliminary instructions 

numbered 1 through 28, over objection. 

14. The court erred in giving of additional instructions 

29 through 54, over objection. The court erred in directing the 

use of statutory presumptions to supply proof of material elements 

of the offenses charged. 
15. The court erred in submitting to the jury verdict 

forms not in accordance with the requirements of the law. 

16. The court erred in refusing defendant's proposed 

instructions. 

17. The court erred in denying defendant the right to 

allow defendant to voir dire on mental disease or defect. 

18. The court erred in refusing to allow the defendant's 

psychiatrist to be present in the courtroom during the testimony 

of the state's rebuttal witnesses. 

19. The court erred in denying defendant's "Amended 

Motion for Protective Order and Other Appropriate Relief" and 

in holding section 95-1803 constitutional. 

20. The evidence presented at trial does not support the 

verdicts. 

21. The court erred by basing its judgment and sentence 

upon an erroneous "Findings, Conclusions, Sentence and Order". 

22. The court erred by refusing to grant defendant's motion 

for a new trial. 

23. The trial court erred in adopting or demonstrating 

a partisan attitude toward defendant, thereby denying him a fair 

trial. 

24. The doctrine of cumulative error constitutes reversible 

error, by denying defendant a fair trial. 

25. The court erred in imposing the sentence of death. 

At the outset, we consider the contention that the assessment 

of the death penalty violates the Sixth, Eighth and Fourteenth 

Amendments to the United States Constitution and the 1972 Montana 

Constitution. 
While the original briefs of the state and defendant 

relied on Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L ed 

2d 346 (1972) arguments, later briefs received by this Court 

rely on five United States Supreme Court cases released on July 2, 

1976, covering punishment statutes of five states: 1) Gregg v. 

Georgia, 44 U.S. L.W. 5230; 2) Proffitt v. Florida, 44 U.S.L.W. 

5256; 3) Jurek v. Texas, 44 U.S.L.W. 5262; 4) Woodson v. North 

Carolina, 44 U.S.L.W. 5267, and 5) Roberts v. Louisiana, 44 U.S.L.W. 

5281. Therefore, we will discuss Montana's statutes in light of 

the holdings in the five listed United States Supreme Court cases. 

Following Furman Montana enacted its new criminal code of 

1973, which revised its capital punishment statutes to provide a 

mandatory death sentence for the crimes of "deliberate homocide" 

and "aggravated kidnapping", unless the trial court found "mitigating 

circumstances". These Montana statutes were in effect on January 

21, 1974, the date of the kidnap murder of Lana Harding: 

"94-5-102. Deliberate homicide. (1) Except as provided 

in section 94-5-103 (1) (a) , criminal homicide constitutes 

deliberate homicide if: 

"(a) it is committed purposely or knowingly; or 

"(b) it is committed while the offender is engaged 

in or is an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting 

to commit robbery, sexual intercourse without consent, 

arson, burglary, kidnaping, felonious escape or any other 

felony which involves the use or threat of physical force 

or violence against any individual. 

"(2) A person convicted of the offense of deliberate 

homicide shall be punished by death as provided in section 

94-5-105, or by imprisonment in the state prison for 

any term not to exceed one hundred (100) years." 

"94-5-103. Mitigated deliberate homicide. (1) Criminal 

homicide constitutes mitigated deliberate homocide when 

a homicide which would otherwise be deliberate homicide 

is committed under the influence of extreme mental or 

emotional stress for which there is reasonable explanation 

or excuse. The reasonableness of such explanation or 
or excuse shall be determined from the viewpoint of 

a reasonable person in the actor's situation. 

"(2) A person convicted of mitigated deliberate 

homicide shall be imprisoned in the state prison for 

any term not to exceed forty (40) years." 

"94-5-104. Negligent homicide. (1) Criminal homicide 

constitutes negligent homicide when it is committed 

negligently. 

"(2) A person convicted of negligent homicide shall 

be imprisoned in the state prison for any term not to 

exceed ten (10) years." 

"94-5-105. Sentence of death for deliberate homicide. 

(1) When a defendant is convicted of the offense of 

deliberate homicide the court shall impose a sentence of 

death in the following circumstances, unless there are 

mitigating circumstances: 

"(a) The deliberate homicide was committed by a 

person sewing a sentence of imprisonment in the state 

prison; or 

"(b) The defendant was previously convicted of another 

deliberate homicide ; or 

"(c) The deliberate homicide was committed by means 

of torture; or 

"(d) The deliberate homicide was committed by a 

person lying in wait or ambush; or 

"(e) The deliberate homicide was committed as a 

part of a scheme or operation which, if completed, would 

result in the death of more than one person. 

"(2) Notwithstanding the provisions of subsection 

(1) and regardless of circumstances, when a defendant is 

convicted of the offense of deliberate homicide under 

subsection (1) (a) of section 94-5-102 in which the victim 

was a peace officer killed while performing his duty the 

court shall impose a sentence of death." 

The provision of section 94-5-304, R.C.M. 1947, providing 

for the "mitigating circumstances" was amended out of the statute 

by Sec. 1, Ch. 126, Laws of 1974. The amendment became effective 

March 11, 1974 and was - not in effect at the time of the death of 

Lana Harding. Under Montana's capital punishment statutes the 

jury determines whether the defendant is guilty of a crime for which 
the death penalty may be imposed, leaving to the trial judge 

the imposition of the sentence after consideration of "mitigating 

circumstances" . 

Following the jury's verdict in the instant case, the trial 

judge ordered and received a presentence investigation report 

and thereafter heard defendant's motion for mitigation. The 

sentencing procedure in Title 95, Chapter 22, R.C.M. 1947, requires 

the individual characteristics of the person convicted be considered. Review of the sentence imposed is provided for by Title 

95, Chapter 25, R.C.M. 1947. In the trial court's findings of 

fact regarding defendant's motion for mitigation, the court held: 

"2. That both of the offenses of which the defendant 

has been found guilty are of equal gravity and seriousness under the law, both being mandatorily punishable by 

death, unless there are mitigating circumstances. 

"3. That there is nothing in the evidence of the case, 

nor in the presentence investigation, nor in the character, 

nature, or background of the defendant, nor in any other 

manner presented to the Court which mitigate his conduct 

or the sentence required by law. 

"8. That the prognosis for change in and rehabilitation 

of persons with anti-social personality disorders such 

as defendant's is so unlikely and minimal as to be 

practically non-existent. 

"9. That the defendant must never be allowed to be 

free in and endanger society again * * * [or] be turned 

loose to menace society again * * *." 

On appeal defendant argues that the death sentence here 

imposed violates his constitutional rights because there was no 

jury participation of any kind in the determination of the sentence. 

He cites in support the five United States Supreme Court cases 

decided July 2, 1976, heretofore listed, and Trop v. Dulles, 356 

U.S. 86, 78 S.Ct. 590, 2 L ed 2d 630; Witherspoon v. Illinois, 

391 U.S. 510, 88 S.Ct. 1770, 20 L ed 2d 776; Furman v. Georgia, 

supra. 

- 10 - 
We turn now to consideration of the above cited cases in 

applying them to Montana's statutes with particular emphasis on 

the question of whether "jury participation in the sentence" is 

a necessity for constitutionality. This Court has long held 

that the presumption of constitutionality attaches to all 

statutes coming before this Court. State v. Parker, 161 Mont. 

394, 506 P.2d 850; State v. Henrich, 162 Mont. 114, 509 P.2d 

288; Harrison v. City of Missoula, 146 Mont. 420, 407 P.2d 703. 

The United States Supreme Court in Gregg v. Georgia, 

44 U.S.L.W. 5230, 5234, 5242, held "the punishment of death does 

not invariably violate the Constitution." It then said, referring 

to its decision in the early case of Furman: 

I I In summary, the concerns expressed in Furman that 

the penalty of death not be imposed in an arbitrary 

or capricious manner can be met by a carefully drafted 

statute that ensures that the sentencing authority is 

given adequate information and guidance." 

Following the Furman decision Montana revised its capital punishment 

statutes to be in compliance with the holding in that case. 

Considering the three state statutes in the cases upheld 

by the United States Supreme Court, we find the provisions of 

the Texas statute come closest to sections 94-5-105 and 94-5-303, 

R.C.M. 1947. Texas, as noted in Jurek v. Texas, 44 U.S.L.W. 5262, 

5263, 5266, provides for a bifurcated sentencing procedure in 

which the jury is the sentencing authority and it must answer 

two (sometimes three) questions which in effect go to aggravation: 

1. Whether the conduct of defendant that caused the death 

of the deceased was committed deliberately and with the reasonable 

expectation that the death of the deceased or another would result; 

2. Whether there is a probability that the defendant would 

commit criminal acts of violence that would constitute a continuing 
threat to society; and 

3. If raised by the evidence, whether the conduct of the 

defendant in killing the deceased was unreasonable in response 

to the provocation, if any, by the deceased. 

The Court in Jurek then went on to observe that any law 

allowing the sentencing authority to consider aggravation only 

would not meet constitutional standards. It observed that in 

answering the second question the question of mitigation was 

presented and held: 

"We conclude that Texas' capital-sentencing procedures, 

like those of Georgia and Florida, do not violate the 

Eighth and Fourteenth Amendments. By narrowing its definition of capital murder, Texas has essentially said that 

there must be at least one statutory aggravating circumstance in a first-degree murder case before a death sentence 

may even be considered. By authorizing the defense to 

bring before the jury at the separate sentencing hearing 

whatever mitigating circumstances relating to the individual defendant can be adduced, Texas has ensured that the 

sentencing jury will have adequate guidance to enable it 

to perform its sentencing function. By providing prompt 

judicial review of the jury's decision in a court with 

statewide jurisdiction, Texas has provided a means to 

promote the evenhanded, rational, and consistent imposition of, death sentences under law .'I 

While the Montana statutes do not provide for the jury 

in the bifurcated sentencing procedure, we find they are within 

the Gregg and Jurek decisions. Under Montana statutes the sentence 

of death in the instant case was rested to a narrowly defined 

type of murder or kidnapping. The statute provided the sentencing 

judge consider mitigating circumstances. In addition, appellate 

judicial review is provided. 

We note further, in considering mitigation, that Montana 

has the Sentence Review Division which reviews all sentences at 

the request of the defendant. The Sentence Review Division of 

the Supreme Court is provided for by Chapter 25 of the Code of 
Criminal Procedure and includes sections 95-2501 through 95- 

2504, R.C.M. 1947. Pursuant to the above this Court activated 

the Sentence Review Board on December 1, 1967. Since its inception 

it has been composed of three (3) di~trict court judges and the 

statute provides that no judge may sit on a case before the 

Board in which he was the sentencing judge. Under the provisions 

of Montana law a person convicted is immediately made aware of 

his right to appear before the Board and a schedule is set up for 

his appearance, with counsel if desired. The Board may affirm, 

decrease or increase the sentence. Also, Chapter 26, of Montana's 

Code of Criminal Procedure provides for post-conviction hearing. 

Section 95-2608, R.C.M. 1947, permits an appeal to this Court by 

either the petitioner or the state. See: State v. Simtob, 154 

Mont. 286, 462 P.2d 873; State v. Henrich, 162 Mont. 114, 509 

P.2d 288; State v. Heyward, 152 Conn. 426, 207 A.2d 730; Anno. 

168 A.L.R. 706. 

Directing our attention to the judicial sentencing, and 

defendant's argument against it, we find that no prohibitions in 

any of the five cases appear against judicial sentencing. While 

the United States Supreme Court speaks to the desirability of a 

bifurcated jury sentencing, it speaks clearly in Proffitt v. 

Florida, 44 U.S.L.W. 5256, 5259 about judicial sentencing. It 

held: 

"The basic difference between the Florida system and 

the Georgia system is that in Florida the sentence is 

determined by the trial judge rather than by the jury. 

This Court has pointed out that jury sentencing in a 

capital case can perform an important societal function, 

Witherspoon v. Illinois, 391 U.S. 510, 519 n.15, but it 

has never suggested that jury sentencing is constitutionally 

required. And it would appear that judicial sentencing 

should lead, if anything, to even greater consistency 

in the imposition at the trial court level of capital 

punishment, since a trial judge is more experienced in 
sentencing than a jury, and, therefore is better 

able to impose sentences similar to those imposed in 

analogous cases. I I 

Footnote 10, appended to the above quote reads: 

"See ABA Standards Relating to Sentencing Alternatives 

& Procedures 51.1, Commentary, pp. 43-48; President's 

Comm'n on Law Enforcement & Administration of Justice: 

The Challenge of Crime in a Free Society, Task Force 

Report: The Courts 26 (1967). See also -, 

ante, pp. 32-33. In the words of the Florida Court, 

'a trial judge with experience in the facts of criminality 

possesses the requisite knowledge to balance the facts 

of the case against the standard criminal activity which 

can only be developed by involvement with the trials of 

numerous defendants.' State v. Dixon, 283 So.2d, at 8." 

Here, defendant argues that Article 11, Section 28, 1972 

Montana Constitution no longer expressly authorizes the legislature to provide for the death penalty as did Article 111, Section 

24, 1889 Montana Constitution. The failure to reenact the 

authorization might have significance had not the Constitutional 

Convention given the people of Montana the option of adopting 

into the 1972 Constitution language expressly prohibiting the 

enactment of the death penalty. The people of Montana voted 

for 147,023 and against 77,733, to retain the death penalty. 

Such a vote, so recently, negates any argument the death penalty 

violates contemporary standards of decency. 

Defendant argues that even if a judicial sentence 

procedure is approved, that Judge Nelson failed to follow the 

criteria found necessary to consider before approving a death 

sentence. We do not agree. 

As previously noted, this case was tried prior to the 

United States Supreme Court's latest considerations of the death 

penalty, and therefore before any set pattern of matters that a 

jury must consider in death cases, here Judge Nelson did, in his 

findings, consider in general those matters the Supreme Court 

found necessary. 
A reading of the findings clearly shows the conduct of the 

defendant that caused the death was done deliberately, with 

reasonable expectation that death would result. He used a rope 

around her neck that could have killed the victim had he not 

crushed her head with instruments he had in the truck---all done 

in a sexual attack on the victim. 

Judge Nelson, prior to sentencing, had a thorough presentence 

report compiled on defendant which indicated this was not his 

first encounter with the law. Defendant was a former parolee at 

the time of the murder having been convicted in 1970 of the crime 

of aggravated assault on another woman. That woman was found 

brutally beaten, clad only in a blouse crawling alongside a road. 

Defendant received a three year sentence for that crime, was 

paroled after some six months in the prison, but returned to 

prison after numerous parole violations. In 1972 he was again 

paroled as safe to be at large in society. That parole had 

expired three months before the present crime. The findings 

and conclusions found no circumstances that mitigated defendant's 

conduct. In addition, Judge Nelson found defendant should never 

be allowed to be free in and endanger society again. 

While there is no specific finding there was no provocation, none was ever alleged. The findings note that the conduct 

of defendant in killing Lana Harding was unreasonable, and without 

any mitigating circumstances. 

While we have referred solely to the holding in Jurek v. 

Texas, 44 U.S.L.W. 5262, we call attention to the opinion in Gregg 

v. Georgia, 44 U.S.L.W. 5230, wherein the United States Supreme 

Court approved a bifurcated procedure in Georgia. There the state 

supreme court approved the death penalty in an armed robbery and 
murder case where the trial judge, at the penalty stage, instructed the jury it could recommend either a death or life 

imprisonment sentence on each count. Further, the jury was 

free to consider mitigating or aggravating circumstances, if any, 

as presented by the parties, and that the jury could not impose 

a death sentence unless it first found beyond a reasonable doubt 

(1) that the murder was committed while the offender was engaged 

in the commission of other felonies (i.e. armed robbery) ; (2) that 

he committed the murder for the purpose of receiving the victim's 

money, or (3) that the murder was "outrageously and wantonly 

vile, horrible and inhuman" in that it "involved the depravity 

of the mind of the defendant". In Gregg the jury found the first 

and second of these aggravating circumstances and returned a sentence of death. Here, the trial judge found all three (1) that 

the murder was committed in the commission of a felony; (2) a 

sexual attack on the victim, and (3) "it was a brutal, conscienceless, 

torture rape and deliberate killing of a human being." 

We note too, that this Court looks at the total record 

during its review to determine whether the sentence was influenced 

by passion, prejudice or any other arbitrary factor; whether the 

evidence supports the finding of a statutory aggravating circumstance; and, whether the death sentence is excessive or disproportionate to the penalty imposed in similar cases, considering both 

the crime and the defendant. We affirm, as did the Supreme Courts 

of Georgia, Florida and Texas in the most recent United States 

Supreme Court cases. 

We find no merit to defendant's argument that Article 11, 

Section 22, 1972 Montana Constitution prohibits the death penalty 

as cruel and unusual punishment. First, the vote of the people of 
Montana indicated that they did not intend by ratifying the 

1972 Constitution, that any section thereof would abolish the 

death penalty. In addition, a majority of the United States 

Supreme Court in Gregg did not find the imposition of the death 

penalty to be "cruel and unusual punishment1'. 

We next discuss defendant's issue on probable cause. 

This issue is broken down into six sub-issues by defendant: 

1. Was there probable cause for the arrest and search 

warrant to issue? 

2. Were the facts supporting probable cause made under 

oath or affirmation and reduced to writing? 

3. Was the search warrant a general warrant? 

4. Was there a consent search or a search incident to 

arrest? 

5. Is section 95-1806(f), R.C.M. 1947, constitutional? 

6. Was defendant entitled to suppression? 

We find no merit in defendant's contention there was no 

probable cause for the arrest or search warrant. This Court in 

State ex rel. Garris v. Wilson, 162 Mont. 256, 511 P.2d 15, considered federal case law and the long standing rule in this jurisdiction on probable cause for arrest and search warrants, noting: 

"IWe reach this decision by application of the 

following standards: only a probability of criminal conduct 

need be shown. "I 

Far more was shown here! See: State v. Troglia, 157 Mont. 22, 

482 P.2d 143; Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 

584, 21 L ed 2d 637. 

Defendant argues the search warrants must fall on the 

basis of failure on the part of the county attorney to swear or 
affirm and reduce the testimony to writing. He relies on State 

ex rel. Townsend v. Dist. Ct., Mont . 543 P.2d 193, 

32 St.Rep. 1163; and Petition of Gray, 155 Mont. 510, 473 P.2d 

532. We find neither case factually applicable here. 

Article 11, Section 11, 1972 Montana Constitution, 

provides : 

'I* * *No warrant to search any place, or seize any 

person or thing shall issue * * * without probable 

cause, supported by oath or affirmation reduced to 

writing." 

In Townsend nothing was reduced to writing. Here, there is an 

affidavit signed by the county attorney and made a part of both 

warrants. At a later date, defendant argues the justice of the 

peace failed to follow the rituals of the swearing. County 

Attorney Nelson later testified he asked the Justice of the Peace 

"if he was sworn." 

Defendant argues the county attorney made the affidavit 

only facts obtained from Jerry Hoover, a deputy sheriff of 

Pondera County, who had been at the scene of the crime as part 

of the investigating team. This is not a true picture of what 

took place before Justice of the Peace Wolfe at the time the 

county attorney gave the affidavit and obtained the warrants. 

On September 30, 1974, a hearing on the defendant's motion to 

suppress was held before Judge Robert J. Nelson. Testifying 

were Sheriff Hammermeister, his deputy, Jerry Hoover, Justice of 

the Peace Robert Wolfe and County Attorney David H. Nelson. The 

arguments of defendant's counsel were directed to the lack of 

probable cause for the issuance of the warrants. 

A summary of the testimony shows Justice of the Peace 

Wolfe testified he customarily swears all witnesses though he did 

not recall swearing in the county attorney, he considered him sworn. 
Deputy Hoover testified he came into town about 4:30 p.m. on 

January 22, 1974, with directions to go to the county attorney's 

office; that he helped the county attorney prepare the affidavit 

and he then went before Justice of the Peace Wolfe and gave sworn 

testimony in support of the issuance of the warrants. County 

Attorney Nelson testified he had been at the scene with the 

sheriff and his deputies during the afternoon and just prior 

to his coming town to get the warrants issued. At the hearing, 

he said in answer to a question of what knowledge he had of the 

facts: 

"A. Well, without looking at the affidavit now 

---I think the first paragraph or two is my statement as to what I determined, that she was missing 

and may have been the victim of foul play but of 

what nature we didn't know at the particular time, 

and that she resided at the teacherage." 

In addition, the county attorney examined Deputy Hoover before 

the Justice of Peace as to facts he learned during the investigation. Here, unlike Gray there was sworn testimony by the county 

attorney and deputy sheriff in addition to the affidavit and the 

combination thereof established probable cause. The fact that 

defendant had been parked at the roadside near the school the night 

before had been established by the Pearsons, who assisted defendant 

in getting the truck moved. It was there that the victim's 

watch was found in a pool of blood by the investigating officers 

before going to town to get the warrants. See: Lindley v. State, 

0kl.Cr. (1956), 294 P. 2d 851. 

This, in our opinion is a sufficient showing of probable 

cause to issue the warrants. 

Defendant next attacks the specificity of the search warrant, 

alleging that under the search warrant issued, a blanket seizure 

resulted. Examination of the warrant indicates that both the 
house and the vehicle were to be searched. Though an error on 

the vintage of the black Dodge pickup (1950 instead of 1948) 

appeared, that is of little significance. State ex rel. Flournoy 

v. Wren, 108 Ariz. 356, 498 P.2d 444. All parties knew the pickup 

involved. All that is needed to meet the requirements of 

specificity is that the officer with reasonable effort, can 

ascertain the automobile intended to be searched, and its owner, 

if possible. Wangrow v. United States, 399 F.2d 106. Defendant 

cites case authority that some seven criteria are needed for 

identification of a motor vehicle--owner, make, model, year, 

color, motor number and license number. Here the affidavit for 

the search warrant answers five of the seven listed criteria and 

it was sufficiently specific. Wilkerson v. Commonwealth, 200 

Ky. 399, 255 S.W. 76; Hatley v. State, 72 Okla. Cr. 69, 113 P.2d 

396. 

~efendant's argument that the items seized were not covered 

by the language "any other contraband articles", is without merit. 

The language used comes within the holding of this Court in State 

v. Quigg, 155 Mont. 119, 467 P.2d 692. 

Next we consider the constitutionality of section 95-1806(f), 

R.C.M. 1947, which states: 

"The burden of proving that the search and 

seizure were unlawful shall be on the defendant." 

We find no merit in defendant's contention this subsection is 

unconstitutional. We note defendant cites no authority for his 

position and therefore fails to overcome the presumption of constitutionality. United States v. Keleher, 2 F.2d 934, relied upon 

by defendant, is not applicable to the facts here, We note that 

Montana's statute section 95-1806(f), R.C.M. 1947, is patterned 

after Chapter 38, 5 114-12(b), Ill. Code of Criminal Procedure, 

which states in part: 
"* * * The judge shall receive evidence on any 

issue of fact necessary to determine the motion 

and the burden of proving that the search and 

seizure were unlawful shall be on the defendant * * *.If 

Here, such a hearing was held by the trial court and defendant 

failed in his effort. People v. Normant, 25 Ill.App.3d 536, 323 

N.E.2d 553; State v. Tritz, 164 Mont. 344, 522 P.2d 603. 

For the purpose of brevity we will combine and discuss 

defendands specifications of error 10 and 20 together, in view 

of the fact they are directed at the alleged partiality of the 

trial court and its failure to grant a new trial due to insufficiency of the evidence. 

This was a protracted pretrial case. The case began 

officially in the district court of the ninth judicial district, 

county of Pondera, on January 24, 1974. Some 89 docket entries later, 

the case was sent to Cascade County on December 4, 1974 on a 

motion for change of venue. During this period Judge McPhillips 

presided until September 19, 1974 when he was disqualified and 

Judge Nelson of the eighth judicial district, Cascade County, 

assumed jurisdiction. The first entry in the record of the eighth 

judicial district is December 6, 1974, the last is numbered 181 

and dated December 9, 1974. We call attention to this record 

in view of the attack made on the partiality of Judge Nelson. 

Defendant used his only motion for substitution against the original 

trial judge and now complains that he got in that judge's place 

a judge whose "extrajudicial knowledge" made him biased and prejudiced. To this argument we find no merit. 

Judge R. J. Nelson was and is one of the senior trial 

judges of this state. He came to the bench in 1957 after an 

active career as a trial attorney. He was one of three district 
judges chosen to serve on the legislative authorized committee 

that completely revised the substantive and procedural criminal 

law of this state, a task that took some ten years. He has been 

the senior judge in his district for most of his judicial career 

and serves in one of Montana's busiest judicial districts. 

Here, Judge Nelson, of necessity, had to hear and consider 

many motions and make rulings and the fact that he did not please 

defendant does not indicate bias and prejudice against defendant. 

The presumption is that his rulings were correct or they would 

have come to this Court's attention. His membership on the 

Criminal Law Commission indicates a willingness to perform an 

affirmative obligation of judicial officers to work for the improvement of the law and judicial administration. His activities 

come within the Canons of judicial conduct. 

Defendant next argues Judge Nelson should have disqualified 

himself in that he gained extrajudicial knowledge of the case from 

plea bargaining, citing United States v. Grinnell Corp., 384 U.S. 

563, 86 S.Ct. 1698, 16 L ed 2d 778. That case is not applicable 

for to establish bias or prejudice under the holding of Grinnell 

the judge's opinion as to the merits of the case had to come from 

some source other than the knowledge obtained from the judge's 

participation in the case. Here, whatever knowledge Judge Nelson 

gained was during the course of this case. 

We find Judge Nelson correctly construed the law and 

in the motions where he ruled against defendant, there is no 

bias indicated. 

We have held in numerous cases in weighing the sufficiency 

of the evidence that the court is not the trier of the fact, the 

jury is, and following conviction if there is substantial evidence 
to support the judgment the presumption is in favor of the 

judgment. State v. Stoddard, 147 Mont. 402, 412 P.2d 827; State 

v. White, 146 Mont. 226, 405 P.2d 761; State v. Gleim, 17 Mont. 17, 

41 P. 998. Here there is abundant evidence to support the verdict. 

Specifications of error 6 and 24 appear to be a shotgun 

attempt in defendant's attack on Judge Nelson in his effort to 

"cumulate" a record of alleged errors that would lead this Court 

to reverse and order a new trial. During closing arguments, in 

what defendant calls a "partisan audience", tape recordings were 

taken. Defendant objected but Judge Nelson did nothing to stop 

the recording. Defendant fails to convince this Court, and failed 

to convince the trial court, that such activities on the part of 

persons in the audience violate any canon of judicial conduct or 

merit further consideration of the matter by this Court. 

Defendant's specification of error 24 argues, in his words, 

whether alleged error which might be termed "harmless error" 

cumulated into prejudicial error? 

Defendant alleges the doctrine of cumulative error was 

established in Chapman v. California, 386 U.S. 18, 21, 87 S. Ct. 

824, 17 L ed 2d 705, 709; Krulewitch v. United States, 336 U.S. 

440, 69 S.Ct. ?, 93 L ed 790; Kotteakos v. United States, 328 

U.S. 750, 66 S.Ct. 1239, 90 L ed 1557. He also argues the concepts of "harmless error" and "cumulative error" are interrelated 

and should be applied here. 

Defendant begins his argument on appeal noting that he 

has set forth 25 specifications of error, his brief is 514 pages 

in length, with an appendix of some 800 pages. He then states 

if he had set forth all of the error, the brief would have been 

absurd. He then admits to "plowing ground" but argues such should 
not detract from the thesis and legal effect. This argument is 

without merit for we find no reversible error. 

Defendant's specification of error 4 and 5 object to certain 

photographs which were introduced into evidence as being gruesome 

and inflammatory or otherwise prejudicial. 

The basic rule on photographic evidence in Montana as 

stated in State v. Campbell, 146 Mont. 251, 261, 405 P.2d 978, 

is : 

'I* * * Photographs are admissible for the purpose of 

explaining and applying the evidence and assisting the 

court and jury in understanding the case. Fulton v. 

Chouteau County Farmers' Co., 98 Mont. 48, 37 P.2d 

1025. When the purpose of an exhibit is to inflame the 

minds of the jury or excite the feelings rather than - - 

to enlighten the jury as to any fact, it should be excluded. State v. Bischert, 131 Mont. 152, 308 P.2d 969 * * **'I 

Here, the photographs in question fall into three categories: 

1) photographs of the body taken at the "drill site"; 2) autopsy 

photographs taken by the pathologist; and 3) a single photograph 

of a can of spray paint in a suitcase. 

In each instance these photographs meet the above test, 

they were relevant and were useful and necessary in explaining 

the evidence and assisting the court and jury in understanding the 

case. (1) The photographs taken at the site where the body was 

found were used by the pathologist to show creases in the body 

which were not present after the body had been moved and which 

tended to show how long the body had been at the site. 2) The 

autopsy photographs, taken in color and then printed in black 

and white, were used by the pathologist to show the nature of the 

wounds and explain the evidence which formed the basis of his 

opinion as to the size and configuration of the weapon which was 

used to inflict the wounds. 3) The photograph of the can of spray 
paint in the suitcase was used to show the defendant had in 

his possession a type of paint which was not available in the 

area stores. Defendant finds prejudice from this photograph 

in the implication of flight that could arise from the fact the 

paint was in a suitcase. Defendant had been in custody for some 

time prior to the time these photographs were taken. This alleged 

prejudice could have been easily explained away in cross-examination, and there was no intent to excite feelings with this 

photograph which was in no way gruesome. It was properly admitted. 

Defendant argues in specification of error 2 that there was 

an enforceable plea bargain made and requests that it be 

specifically performed. As the factual basis of this argument 

defendant alleges counsel for the state and defendant met and 

concluded that a guilty plea would be entered to deliberate 

homicide and aggravated assault with a 50 year and 20 year 

sentence to be imposed respectively. The next day counsel 

met with the presiding judge and obtained his approval. A date, 

about a week later, was set for the entry of the plea of guilty. 

A few days prior to the day set for entry of the plea, defendant 

was informed the deal was off. The state agrees with the basic 

factual description of the events, except that it states it was 

always its intent to get the reaction of the victim's parents and 

the sheriff before making any final agreement and no bargain 

would be completed without the approval of these parties. This 

approval was not obtained and defendant was notified the deal 

was off. 

Defendant argues that Santobello v. New York, 404 U.S. 

257, 92 S.Ct. 495, 30 L ed 2d 427, stands for the proposition that 

plea bargains are enforceable. There a plea had been entered. 
Santobello is not applicable, for the fact situation is far 

different than here. Specification of error 2 is without merit. 

Defendant's specifications of error 3, 7, 8 and 9 allege 

1) the failure on the part of the court to enforce its order 

relating to the giving of copies of witness' statements to the 

fendant, 2) prejudice arising from the addition of 58 new 

witness' names to the Information on the day of trial, 3) prejudLcia1,interference with the order of the presentation of 

defendant's case, 4) failure in the chain of possession of evidence and prejudice arising from the presentation of expert 

opinion prior to the introduction into evidence of the evidence 

which was the basis for that expert opinion. These specifications 

are factually interrelated and must be viewed against the basic 

policies and the structure of the Montana Code of Criminal Procedure. 

That code in sections 95-1801(d) (1) , (d) (2) and 95-1804(a), 

R.C.M. 1947, provide the basic discovery tools. Section 95-1804(a), 

provides : 

"On motion of a defendant in any criminal case made 

prior to trial the court shall order the state to 

furnish the defendant with a copy of any written confession or admission and a list of the witnesses to 

its making. If the defendant has made an oral confession 

or admission a list of witnesses to its making shall be 

furnished. I' 

This provision by its mandatory language entitles the defendant 

as a matter of right, upon motion, to statements he made. It 

requires no showing of good cause. 

Section 95-1801 (d)(l), provides: 

"Upon motion of either party and upon showing of good 

cause, the court may issue a subpoena prior to the trial 

directing any person other than the defendant to produce 

books, statements, papers and objects before the court at 

a time prior to the trial or prior to the time when they 

are to be offered in evidence and the court may, upon 

their production, permit the books, statements, papers or 
objects or portions thereof to be inspected, copied, 

or photographed by the parties and their attorneys." 

The Revised Commission Comment discussing this section points 

out : 

"The discovery allowed under subsection (d) is a 

two-part mechanism for gathering information. Under 

paragraph (1) either party may require a third person, 

other than the defendant, through the use of a subpoena 

(section 93-1501-3), to produce certain articles. The 

only restriction is that good cause must be shown. 

This allows what is sometimes referred to as a "fishing 

expedition1' --- but only where third parties are concerned. * * *" 

Section 95-1801(d) (2) , provides : 

"Upon motion of the defendant, within a reasonable 

time before trial, the court may, upon a showing of 

good cause, at a time and place designated by the 

court, order the prosecution to produce prior to trial 

for inspection, photographing or copying by the 

defendant, designated books, statements, papers,or objects 

obtained from the defendant or others by the prosecution 

which are material, relevant and necessary to the preparation of the defendant's case." 

The Revised Commission Comment as to this portion of the section 

states: 

"The second paragraph permits discovery by the defendant 

or the prosecution with the additional requirement that 

the object desired must be "material, relevant and 

necessary to the preparation of the case." 

This comment points out that the showing necessary to get access 

to material in the hands of the prosecutor is greater than is 

required to get at material in the hands of third parties. 

Against this background, and with the recognition that 

in most criminal cases in Montana discovery is conducted on a 

more informal basis without resort to the motion and hearing procedures outlined above, this Court finds the allegation of error 

based on a delay of approximately a week in compliance with the 

demand made by defendant after the trial had begun, to be without 

merit. 
Defendant claims that he had made two prior demands upon 

the county attorney for this material. These demands were in 

the form of letters to the county attorney. They made a number 

of specific requests and then made a general request for "* * * 

copies of any documentary or physical items which you will rely 

on for proof of any fact * * *.I1 The second letter expressed 

the defense counsel's opinion that the state was not going to 

provide this information as requested. This letter was dated 

August 20, 1974. On January 13, 1975, after trial began, 

defendant filed a demand and motion requesting that all statements 

taken by the prosecution from all witnesses be turned over to 

defendant demanding immediate compliance. The court granted 

defendant's motion even it was not made "within a reasonable time 

before trial'' as required by section 95-1801(d)(2), and stated: 

"Before a witness takes the stand, other than your 

foundation witnesses, that you [the state] are 

proceeding with now, furnish them [defense counsel] 

with such copies as you have that are not your work 

product as such, and before they [the witnesses] take 

the stand, he is going to be given an opportunity to 

talk with each witness, particularly those that have 

been endorsed just the other day * *.I' (Bracketed 

material added). 

The time it took for the state to gather, sort, and copy 

the requested material during the presentation of the state's 

case in chief was reasonable. The court prevented any prejudice 

by allowing defendant to interview the witnesses prior to their 

taking the stand. We note that the state complied with the 

specific requests made by defendant in the August letters, and 

that the reports received from the F.B.I. and the autopsy report 

were forwarded to the defendant soon after they were received 

and months prior to the August requests. 
Defendant also alleges the addition of the names of 58 

new witnesses to the Information on the day trial began was 

error. 

The pertinent section of the Code of Criminal Procedure 

is section 95-1803 (a) (I), which reads : 

"(a) List of Witnesses: 

"(1) For the purpose of notice only and to prevent 

surprise, the prosecution shall furnish to the defendant and file with the clerk of the court at the 

time of arraignment, a list of the witnesses intended 

to be called by the prosecution. The prosecution may, 

any time after arraignment, add to the list the names 

of any additional witnesses, upon a showing of good cause. 

The list shall include the names and addresses of the 

witnesses .I1 

The Revised Commission Comment on this section points out: 

"Section 95-1503 (d) of Chapter 15 requires the state 

to endorse the names of the witnesses for the state 

on the indictment or information. The motion under 

this section permits the defendant to get a list at any 

time, probably after arraignment and before trial. i an^^ times the state does not know before it files 

the indictment or information all the witnesses it may 

call. 

"Further, this provision allows the addition of names 

not only prior to trial, but after the trial has commenced. 

As the trial progresses, the showing which is necessary 

to establish 'good cause' should be more stringent. At 

any time, the judge may allow a continuance (section 95- 

1708) it if should appear necessary in the interest of 

justice." 

In State v. Campbell, 160 Mont. 111, 500 P.2d 801, the 

person whose name was added was the victim of the assault and 

the Court there found no serious claim of surprise and pointed 

out that while defendant objected he made no effort to ask for 

a continuance, In State v. Rozzell, 157 Mont. 443, 486 P.2d 

877, the district court judge recognized there was the possibility 

the witnesses that were added would surprise the defendant and 

offered to continue the trial until the defendant had had a 

chance to interview all the new witnesses, but this was refused. 
These cases clearly indicate that the proper procedure 

where surprise is claimed from the addition of the new witness 

names is to ask for a continuance so that defendant may prepare. 

In the present case, defendant objected to the addition of the 

witnesses based on surprise and inability to prepare the defense 

but never requested a continuance. The district court in 

granting the state's request for the addition of the new witness 

names cautioned: 

"* * * and in granting this motion, it must be 

understood before any of these witnesses is allowed 

to testify, the defendant must be given an opportunity 

to have his counsel talk with them, examine them * * *." 

The witnesses added were not prejudicial to defendant. 

The addition of the names of the F.B.I. agents did not surprise 

defendant, he knew the content of their testimony from the 

reports he had received several months earlier. All of the 

rest of the additional witnesses who were actually called to 

testify were employees of Wright Chevrolet. These persons' 

testimony was a part of the chain of possession of the evidence 

seized from the truck. The remainder of the witnesses whose 

names were added but who were not called to testify, were named 

because they could, if need be, corroborate the testimony of the 

already listed witnesses, lay further foundation, or testify 

about the weather and temperature in the area on the dates in 

question. 

In its order, the court was careful to provide defendant 

with the protection against surprise and to ensure the defendant 

was able to prepare for the testimony. Defendant was in no 

way prejudiced by the addition of these witnesses. Before 

allowing the addition of the new witness names the court 

examined the county attorney to determine the reason for the 
addition of each new witness and to find out the nature of each 

of the witness' testimony in the presence of defendant's counsel, 

so that defendant was apprised of the basic nature of the 

testimony. 

Defendant alleges error because he had to make an outof-order presentation of his case-in-chief during the state's 

case-in-chief.There is no question that the usual order of 

trial may be departed from in the proper case. Section 95-1911, 

R.C.M. 1947, states: 

"When the state of the pleading requires it, or in 

any other case, for good reasons, and in the discretion of the court, the order prescribed in the 

last section may be departed from." 

We note that the artful phrase "good cause" is not used, rather 

there must be "good reasons" for the departure of the usual 

order of the trial. 

Defendant' s difficulty arose from the fact the F .B .I. 

agents who were to testify in this case were scheduled to testify 

in several other cases in other states and the judge would not 

require them to remain for the duration of the trial, nearly 

three weeks, unless there was good reason to keep them. The 

court requested defendant make an offer of proof to show why 

these persons should not be relased from their subpoenas after 

defendant opened his case-in-chief and examined them during the 

state's case-in-chief. Defendant argued that no reasonable offer 

of proof could be made until the completion of the state's casein-chief. This may well have been true prior to enactment 

of the liberal discovery procedures in the Code of Criminal 

Procedure. In the present case, however, defendant had examined 

the F.B.I. reports; he had examined the physical evidence; and 

he had a list of the proposed exhibits that were to be put into 

evidence. If there was some reason to require the F.B.I. agents 
to remain defendant would know it at the time of trial. No 

showing of such need was made and the judge in a proper exercise 

of his discretion and for good reasons allowed the agents to 

leave after they had testified as part of the defendant's casein-chief, in the middle of the state's case-in-chief. 

Defendant also objects that certain expert opinion was 

permitted to be given prior to the completion of the chain of 

possession of the evidence upon which this opinion was based. 

This again involves the F.B.I. agents. The judge allowed them 

to give their opinion as to the evidence they had examined, which 

had not as yet been admitted in evidence, because there was a 

portion of the chain of possession which had not been established. 

It is within the discretion of the court to allow pinion to be 

given, conditioned on the subsequent production and admission 

of the evidence which forms the basis of the opinion. Risken 

v. Northern Pac. Ry., 137 Mont. 57, 350 P.2d 831; 

Graham v. Rolandson, 150 Mont. 270, 435 P.2d 263, It is clear 

after a careful examination of the chain of possession of the 

evidence, that there was a proper basis for the admission of 

the evidence in this case. The necessary evidence which served 

to complete the chain of possession was supplied, thus there 

was no prejudice to defendant. 

Defendant's specifications of error 12, 13, 14, 15, and 

16 concern instructions. Defendant objects that the extensive 

preliminary instructions given by the court were in error, that 

it was error to give them prior to the introduction of evidence, 

that the remaining instructions given after the presentation 

of evidence were in error, and the court failed to give the jury 

verdict forms which covered all possible verdicts. 
The preliminary instructions were the usual instructions 

given on the role of the jury. In addition, included were a 

number of instructions which set out the elements of the various 

crimes of which defendant was accused, and set out statutory 

definitions of terms used. 

~ontana's criminal code is written in clear plain language 

which serves well as the basis for instructions to the jury. 

There was no error in incorporating the entire Information into 

the preliminary instructions, for it too is basically in 

statutory language merely inserting the defendant's name and the 

victim's name in the proper places and enumerating the weapons 

used. The language is not inflammatory but is as neutral 

as language detailing the charges involved here can be. Examination of the instruction defining reasonable doubt and the burden 

of proof show proper statements of the law. 

Defendant asserts that language in the instruction which 

defines the degree of proof necessary as being that which convinces the mind "to a moral certainty of the truth of the charge, 

no more and no less" falls into the type of error found in State 

v. Taylor, 163 Mont. 106, 515 P.2d 695. In Taylor, the state's 

burden was defined using the phrase "only such proof as may'' 

which impliedly limits consideration of some of the evidence and 

which could be interpreted to limit the burden of proof. Here, 

the nature of the subjective judgment to be made by the jurors 

is being set forth and the language "no more and no less'' merely 

emphasizes the nature of the judgment and in no way diminishes 

it. 

The Court finds no error to the prejudice of defendant 

from the fact the extensive preliminary instructions were 

given prior to the introduction of evidence in the case. 
Defendant concedes that section 95-1911, R.C.M. 1947 gives the 

court the power to vary the order of trial set out in section 

95-1910, R.C.M. 1947, for good reasons. The present case was 

built entirely on circumstantial evidence. Some of the counts 

charged were complex and not easy to understand. For example, 

the second homicide count was a felony homicide which had as 

alternative felonies, sexual intercourse without consent and 

aggravated assault. The aggravated assault alternative had 

as alternate aggravating factors, serious bodily injury or bodily 

injury with a weapon, listing as alternative weapons a rope or 

a heavy object. It was for good reasons that the judge instructed 

the jury as to the basic elements of all the offenses charged, 

so the jury could have some.understanding of the complex circumstantial evidence to be presented. In a less complex case which 

was not based only on circumstantial evidence, such preliminary 

instructions might not be necessary and there would not be the 

required good reasons for varying the usual order of the trial, 

but here it was acceptable to do so. 

Defendant objects that the instruction defining torture 

incorrectly defines that term. The instruction states : 

"Whoever purposely assaults another physically for 

the purpose of inflicting cruel suffering upon the 

person so assaulted for the particular purpose of 

enabling the assailant to either: 

"(a) extort anything from such person; 

"(b) or to persuade such person against his or 

her will, or 

"(c) to satisfy some other untoward propensity of 

the assailant * * *.Ir 

The term "untoward propensity" is defined in the same instruction 

as meaning "any perverse, wrong, bad or corrupt inclination or 

tendency." 
A number of California cases have adopted a similar 

definition of torture. People v. Daugherty, 40 Cal.2d 876, 

256 P.2d 911, 917, states: 

"Murder is perpetrated by torture 'when "the assailant's 

intent was to cause cruel suffering on the part of the 

object of the attack, either for the purpose of revenge, 

extortion, persuasion or to satisfy some other untoward 

propensity." People v. Tubby, 34 Cal.2d 72, 77, 207 

P.2d 51,54; People v. Bender, 27 Cal.2d 164, 177, 163 

P.2d 8.' People v. Martinez, 38 Cal.2d 556, 561, 241 P. 

2d 224, 227." 

The language of the instruction proposed by defendant is an exact 

quotation from the opinion of an earlier California case, People 

v. Heslen, 163 P.2d 21,27. See: 165 P.2d 250, 27 Cal.2d 520. 

That case dealt with the sufficiency of the evidence to support 

a finding of murder by torture and while there is no real conflict 

between the two instructions, the one given by the court is in 

the general language which does not comment on the evidence and 

which breaks the elements down and sets the various purposes 

out in the alternative for a clearer and more understandable 

statement of the law. The instruction given is a proper one 

and certainly the better of the two proposed instructions. 

People v. Wiley, (Calif. Oct. 4, 1976) 554 P.2d 881. 

Defendant objects to the remaining instructions given 

after the presentation of evidence. Most of the objections are 

aimed at the method of proof of the state of mind element of the 

charges against the defendant. It is clear that in the usual 

case the juror must rely on his normal mental processes to determine if the defendant did an act "purposely or knowingly". 

Here, the court in an extensive and thorough set of instructions 

outlined the normal course of the inferences that arise and how 

they arise and carefully defined the terms used in these instructions. 
In this case, based as it was on circumstantial evidence entirely, 

it was proper to give these instructions. 

Defendant argues the verdict forms provided the jury do 

not cover all the possible verdicts and that they amount to special 

verdicts. 

Defendant submitted instructions and verdict forms which 

covered the offenses of mitigated deliberate homicide and unlawful 

restraint. It is clear, as stated in State v. Gray, 152 Mont. 

"'The submission of a lower offense is justified 

only when the evidence on some basis would support a 

finding that the defendant is innocent of the higher 

offense and guilty of the lower."' 

See also: State v. McDonald, 51 Mont. 1, 149 P. 279. 

In this case there was no such evidence and the instructions 

on the lesser offenses were properly not given. 

The verdicts given the jury were general verdicts asking 

for a finding of guilty or not guilty and requesting the jury 

to make the additional finding that the element necessary for 

the imposition of the death penalty was present. This factual 

finding does not fall into the vice of a special verdict because 

it does not require a fact determination which could be used to 

undermine the jury determination. 

Defendant claims error because his instructions were 

not given. Careful examination indicates for the most part, 

the subject matter of these instructions was covered by the court's 

instructions. ~efendant's instructions on mental state and 

mental disease and defect misstate the law and the instructions 

on the elements of the crimes charged add an element that is not 

required. 
In specifications of error 17 and 19, defendant makes 

an extensive attack on the Montana provisions for notice of 

mental defect or disease and the mental defect or disease provisions in the Code of Criminal Procedure, sections 95-501 

through 509 and section 95-1803(d). These arguments were an-. 

swered by this Court in State ex rel. Sikora v. District Court, 

154 Mont. 241, 462 P.2d 897. This general broadside attack 

loses much of its force when it is recognized that the United 

States Supreme Court promulgated and Congress, after careful 

consideration, approved Rule 12.2, Notice of Defense Based on 

Mental Condition of the Federal Rules of Criminal Procedure which 

nearly is identical to the procedure attacked. It should be 

again emphasized the purpose of the statute is for notice and 

to prevent surprise and to eliminate the necessity for a continuance of a trial when the defense is raised. The fact of the 

notice does not amount to a plea and it could not be used in 

any way as evidence in the trial on the merits. The provisions 

merely provide for advance notice of the intent to rely on such 

defense so that the state may prepare. 

State v. Olson, 156 Mont. 339, 480 P.2d 822, upheld the 

statutory section that places upon the defendant the burden to 

prove by a preponderance of the testimony the existence of mental 

defect or disease. In the instant case defendant was in no way 

prejudiced because none of defendant's instructions were refused 

based on a court finding that defendant could not meet this 

burden. State v. Bentley, 155 Mont. 383, 472 P.2d 864, found 

the reciprocity required. Indeed, under the Montana procedure in 

section 95-505(5) that requires a copy of the psychiatric examination be sent to counsel for the defendant, it is impossible to have 
a secret rebuttal witness on this matter. Defendant knows who 

the state's witnesses are and through the report he knows the 

content of their testimony as well. 

There is no need for fear of self-incrimination during the 

psychiatric examination, for section 95-509 protects the defendant 

if incriminatory information is gained during the examination. 

Defendant refused to give the notice as required by the 

statute. He claims prejudice because he was not allowed to voir 

dire on the subject of mental defect or disease. However, at 

the time he wished to voir dire he had not complied with the 

notice and the issue could not at that time be presented to 

the jury. The court was correct in refusing to allow the voir 

dire. 

Defendant alleges error because his expert on mental defect 

or disease was not allowed to be present during the state's 

presentation of its rebuttal experts on this matter. Earlier 

in the trial, defendant argued for a ruling from the court that 

rebuttal witnesses should be excluded from the courtroom during 

the presentation of the case. The judge ruled against this 

request. Defendant alleges this was an abuse of discretion to 

the prejudice of defendant. However, the state's witnesses 

finished at the end of the day and defendant's rebuttal began 

the next day. There was time to inform the defense expert of 

any additional information not in the report made by these experts, which the defense already had, and to prepare the rebuttal 

testimony. There was no prejudice from this minor inconsistency 

on the part of the judge. 

The alleged error in filing the fourth Information is 

without merit. The filing follows the directions set out by this 
Court in State ex rel. McKenzie v. District Court, 165 Mont. 

54, 525 P.2d 1211, therefore there was no error in the Information 

or its filing. 

Defendant was not denied his right to a speedy trial. 

While it is true that approximately 350 days elapsed between 

the filing of the charges and the beginning of trial, mas 

a long enough period to shift to the state the burden of explaining 

the delay and showing the the absence of prejudice. Fitzpatrick 

v. Crist, 165 Mont. 382, 388, 528 P.2d 1322; State v. Keller, 

Mont . ,=l?.2d 1013, 33 St.Rep. 795,798. The state's 

explanation for the delay, which included defendant's several 

appearances in this Court, the difficulties arising from the 

defendant's refusal to plead, the difficulties which arose because this was the first homicide committed under the new Montana 

Criminal Code and under the new capital punishment scheme, is 

satisfactory to this Court. Much of the time can in fairness 

be charged to neither party, but it is clear that it aided both 

parties to better prepare for the trial, this being a complex 

circumstantial case. This advantage outweighs any anxiety 

defendant might have suffered. 

Defendant asserts error in the trial court's Findings, 

Conclusion, Sentence and Order. The errors referred to are 

essentially clerical errors in the body of that document. A 

mistaken citation of the subsection letter in section 94-5-105, 

R.C.M. 1947, which was caused by the amendment which numbered 

the section is an example. This document is not in error in 

respect to the factual or legal basis of any of its findings 

and this Court finds no prejudice in the clerical errors. 
Finding no reversible error, the judgment is affirmed. 

dge, sitting for Justice Gene B. 

Mr. Justice Frank I. Haswell concurring: 

I concur in the result reached by the majority. However, 

with respect to the issue of the constitutionality of the death 

penalty, the majority opinion relies too heavily on tenuous 

analogy to the statutory schemes of other states analyzed in 

Gregg v. Georgia, 44 U.S.L.W. 5230; Proffitt v. Florida, 44 

U.S.L.W. 5256; and Jurek v. Texas, 44 U.S.L.W. 5262, all decided 

July 2, 1976. In my view the precise application of Montana 

statutes to the imposition of the death penalty is left in a 

dense fog. This concurring opinion attempts to describe the 

constitutional application of the Montana statutes. 

The cumulation of majority opinions in Furman v. Georgia, 

408 U.S. 238, 92 Sect. 2726, 33 L ed 2d 346 (1972), led to 

considerable confusion among the several states' legislatures 
which desired to retain a constitutionally viable death penalty. 

In some jurisdictions Furman was read as requiring a strictly 

mandatory death sentence for certain classes of proven crimes. 

This view was laid to rest by the decisions in Roberts v. Louisiana, 

44 U.S.L.W. 5281, and Woodson v. North Carolina, 44 U.S.L.W. 5267, 

(both decided July 2, 1976), and by this language in Gregg at 

pp. 5240 and 5242, 44 U.S. L.W.: 

"Furman mandates that where discretion is afforded 

a sentencing body on a matter so grave as the 

determination of whether a human life should be 

taken or spared, that discretion must be suitably 

directed and limited so as to minimize the risk of 

wholly arbitrary and capricious action. 

I I In summary, the concerns expressed in Furman that 

the penalty of death not be imposed in an arbitrary 

or capricious manner can be met by a carefully 

drafted statute that ensures that the sentencing 

authority is given adequate information and guidance. 

As a general proposition these concerns are best met 

by a system that provides for a bifurcated proceeding 

at which the sentencing authority is apprised of the 

information relevant to the imposition of sentence 

and provided with standards to guide its use of the 

information." (Emphasis supplied). 

Thus, statutory schemes which impose the death penalty in 

a wholly mandatory or wholly discretionary fashion do not pass 

constitutional muster. I believe the Montana laws effective at the 

date of the crimes in the instant case are in that constitutionally 

permissible middle ground between unbending mandatory death sentences 

and unbridled discretion in the imposition of death sentences. 

To ensure that death sentences are not "wantonly" or 

"freakishly" imposed (Furman v. Georgia, 408 U. S. 238,310) the 

United States Supreme Court in its most recent pronouncements on 

the subject, seems to have established three general criteria 

which are requisite to a valid death penalty statutory scheme. See 

e.g., Jurek v. Texas, 44 U.S.L.W. 5262, 5266. 
First, there must be at least one statutory aggravating 

circumstance before a death sentence may even be considered. 

Second, the defense must be afforded the opportunity to bring 

before the sentencing body at a separate sentencing hearing any 

mitigating circumstances relating to the individual defendant. 

Third, there must be available prompt judicial review of the 

sentencing decision by a court of statewide jurisdiction, providing 

a means to promote the evenhanded, rational, and consistent imposition of death sentences under law. 

The death penalty statutes under attack in the instant 

case, sections 94-5-105 and -304, R.C.M. 1947, as they existed 

at the time of the crimes, satisfy the first criterion set forth 

above. The death sentence cannot be imposed unless one of six 

aggravating circumstances is found by the trier of fact to exist. 

The majority opinion herein adequately shows that this condition 

was found in the instant case. 

The second criterion, that mitigating circumstances be 

reviewed at a separate sentencing hearing, is satisfied by two 

separate statutory provisions: First, both death penalty statutes 

provide that the court "shall" impose a sentence of death "unless 

there are mitigating circumstances". Defendant urges that the 

"unless" clause may purport to circumscribe the sentencing judge's 

authority, but that there are no guiding standards nor sources 

of information provided for. This argument ignores the second 

statutory provision relevant here, that is, the presentence investigation and report provisions. Section 95-2203, R.C.M. 1947, 

requires a written presentence investigation report to be delivered 

to and considered by the sentencing court in felony cases. Section 

95-2204, R.C.M. 1947, provides the report shall contain information 
respecting "the characteristics, circumstances, needs, and 

potentialities of the defendant; his criminal record and social 

history; the circumstances of the offense; * * * and the harm 

to the victim, his immediate family, and the community." The 

report provides the sentencing authority with whatever circumstances may exist in mitigation of the defendant's conduct. 

Reading the two provisions together, the sentencing court 

is required to consider mitigating circumstances, and is required 

to consider the presentence investigation report which must 

contain any matters relevant to mitigation. In addition, all 

sentencing courts are directed by section 95-2201, R.C.M. 1947, 

to perform their sentencing functions "to the end that persons 

convicted of a crime shall be dealt with in accordance with their 

individual characteristics, circumstances, needs and potentialities". This mandates the imposition of sentences which are 

not disproportionate to the severity of the crime. Finally, the 

defendant is authorized to seek a hearing to present to the court 

his testimony and evidence in mitigation of punishment. 

Prompt judicial review of death sentences is provided for 

by appeal to this Court, as well as appeal to the Sentence Review 

Division. This Court determines the legality of the sentence 

imposed, State v. Simtob, 154 Mont. 286, 462 P.2d 873, while 

the review division is designed to determine the appropriateness 

of the sentence with respect to the individual offender and 

particular offense. 

In summary, although Montana's statutory scheme is unlike 

those approved by the United States Supreme Court in Gregg, Proffitt 

and Jurek, I can see no substantive failure of Montana's statutory 
scheme to comply with constitutional standards. Our system is 

neither wholly mandatory nor wholly discretionary. There are 

precise statutory requirements for finding aggravating and 

mitigating circumstances, and a procedure for flushing out the 

facts with respect to such circumstances. There is appellate 

review at two levels, insuring that the sentence is both legal 

and proportional to the nature and class of the crime. In short, 

I believe that the statutory scheme in existence at the time of 

the crimes herein, affords defendant the procedural safeguards 

necessary to protect his substantive right to be sentenced 

without arbitrariness or caprice. 

Justice. 
Honorable Robert J. Boyd, District Judge, sitting for Justice 

Wesley Castles, dissenting: 

While I concur with much that has been said by the 

majority of the Court in affirming the conviction of the defendant, 

I must respectfully dissent from the majority in sustaining the 

lower court in the matter of the admission into evidence of plaintiff's 

exhibits numbered 6 through 11 which was specification of error 

number 4 in the appellant's brief. 

Plaintiff's exhibit number 6 was a colored photograph 

of the victim's body taken at the place of discovery. Plaintiff's 

exhibit number 7 was a colored enlarged close-up of the victim's 

face. Plaintiff's exhibit number 8 was a black and white autopsy 

photo of the victim's face. Plaintiff's exhibit number 9 was an 

eight by ten autopsy photo of the victim's face showing the head 

partially shaved with gaping wounds. 

Exhibit number 10 was a black and white autopsy photograph 

showing the shaved skull and gaping wounds. Plaintiff's exhibit 

number 11 was a black and white autopsy photo showing the bloody 

face of the victim with brain tissue protruding from the wound. 

At the outset it is noted that there was no issue for the 

jury as to the fact of death or the identity of the victim for 

this had been stipulated by and between counsel. The majority 

recognizes the requirements laid down in Fulton v. Chouteau County 

Farmers' Co., 98 Mont. 48, 37 P.2d 1025, and State v. Bischert, 

131 Mont. 152, 308 P.2d 969, of "relevance" and "necessity", but 

then completely ignores the testimony of Dr. John Pfaff that he 

could render his opinion without reference to the photographs. 
The photographs were sdmlcredly gruesome and the court 

was Chereiore placed into the unenviable position of weighing 

the probative value of the offered photographs with the affect 

that the photos were bound to have on the jury. This is 

particularly so of exhibits 9 and 10 which were taken during 

the autopsy by Dr. John Pfaff and after the head of the victim 

had been shaved. These were admitted even though Dr. Pfaff had 

"Q. (By Mr. Reagan) Dr. Pfaff, you did conduct this 

autopsy? A. Yes Sir. 

Q. And you are here prepared to testify in this Court 

to this jury as to the results of your autopsy? A. Yes. 

. And you are prepared to render certain opinions 

based upon your expertise, and your autopsy, as to the 

injuries suffered and the cause of death? A. I am. 

'Q. And is it possible for you to so testify and render 

 hose opinions in this court today without these photographs? A. It is possible for me to, yes sir. 

Q. And you would be able to do so? A. To the best of 

my ability. 

"Q. And you would, without the photographs, be able to 

cestify and render an opinion as to the type and scope 

of the injuries and to the probable cause of death? A. 

L can testify to the best of my ability in answer to 

the questions that are put to me. 

'Q. The point I am trying to make, you have observed the 

wounds? A. Yes sir. 

Q. And based upon your observation of those wounds and 

other tests conducted by you, you are prepared to render 

an opinion as to the cause of death? A. I am. 

'Q. And to do that, you could do that without the use 

~f those photographs? A. I could do that without these 

photographs. 

'MR. REAGAN: Objection to these photographs, not only 

based upon all of the objections he listed in P6, but 

further grounds these particular photographs are gruesome 

and not necessary for the purpose of eliciting the testimony from this particular witness. 

"'L'HE COURT: Overruled; he may answer. The exhibit may be 

admitted ." 
It is apparent from the holding of this Court in Bischert 

that if the pictures of a homicide victim made subsequent to death 

are gruesome or ghastly and carry danger of prejudice, they are 

inadmissible unless they are relevant to some material issue and 

wnuld reasonably assist the jury in the determination of the 

defendant's guilt, and this relevancy must outweigh the danger 

that the jury would substitute emotion for reason for a basis 

of its verdict. 

In the case at bar, there was no reason for the introduction 

of the photos, there was no issue or controversy as to the cause 

of death. Additionally, the photographs taken during the autopsy 

reveal matters such as the shaved head of the victim which were 

not the handy work of the defendant, and could under the circumstances serve no other purpose than to arouse the emotions and 

passions of the jury. 

As stated inBischert , 131Mont. 152, 160: 

"Here, where the pathologist was fully able to explain 

his findings without the use of the photographs, their 

purpose could only arouse the human feelings of the jury 

without aiding them in further understanding of the 

crime charged." 

I would hold that the trial court abused its discretion in 

the admission of these photographs and by reason thereof prejudice 

resulted and a reversal should be had. 

Judge, sitting for ~ustice Wesley 

Castles.