No. 13334 

IN THE SUPREME COURT OF THE STI-TE OF MONTANA 

1976 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-VS - 

CARL LEO ORSBORN, 

Defendant and Appellant. 

Appeal from: District Court of the Eleventh Judicial District, 

Honorable Robert S. Keller, Judge presiding. 

Counsel of Record : 

For Appellant: 

Fennessy, Crocker and Harman, Libby, Montana 

David Id. Harman argued, Libby, Montana 

For Respondent : 

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

Montana 

John North, Assistant Attorney General, argued, 

Helena, Montana 

William A. Douglas, County Attorney, argued, Libby, 

Montana 

Submitted: August 30, 1976 

P r- -. Decided: %- Lr) 3 xi ':AFiled : :". 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

Defendant appeals from his conviction of one count of 

aggravated assault and the 20 year sentence imposed by the 

district court, Lincoln County. 

The record reveals this sequence of events: On August 12, 1974 

defendant Carl Leo Orsborn began a lengthy period of drinking 

by consuming a drink shortly after arising at about 6:00 a.m. 

Later in the morning he had a drink with a friend. At approximately 1:00 p.m. he entered the Mine Lounge in Libby, Montana 

and had several drinks including one with a fellow patron, Charles 

A. Lowder. 

After drinking most of the day Orsborn encountered Jesse 

First Raised and they went to the Mine Lounge to close out the 

day of drinking. Lowder was still at the bar quite intoxicated 

and the barmaid pursuaded Orsborn and First Raised to get him 

out of the bar so she could close up. They put Lowder in Orsborn's 

car and after driving around for sometime they parked at a gravel 

pit located out of town. The testimony is in conflict as to 

whether or not the two men were going to "roll" Lowder but there 

was no question that some kind of fracas occurred at the gravel 

pit and Lowder was hit by a rock thrown by Orsborn. 

After this incident, Orsborn and First Raised got back in 

the car and continued driving until they encountered Thomas A. 

Miller who was parked along the roadside with a flat tire. They 

stopped and got a tire iron out of the trunk of Orsborn's car to 

fix the flat tire. What happened next is subject to conflicting 

testimony. First Raised testified Orsborn struck Miller with a 
pulaski (an axe-hoe combination tool). Miller testified Orsborn 

swung down with something. Orsborn testified he did not attack 

Miller. At any rate, Miller suffered bruises to his neck and 

shoulder. 

Based on these two incidents, an Information was filed in 

district court on August 15, 1974, charging Carl Leo Orsborn with 

two counts of aggravated assault in violation of section 94-5-202, 

R.C.M. 1947. Count I charged defendant with aggravated assault 

by purposely or knowingly causing bodily injury to Charles Albert 

Lowder by means of a weapon. Count 11 charged the same as to Tom 

A. Miller. Trial was had on October 16, 1974, with Jesse First 

Raised appearing as a witness for the state having been granted 

immunity from prosecution for any role he had in the incidents, 

The jury after retiring to consider a verdict reported it was 

deadlocked, whereupon the court declared the matter a mistrial. 

On November 12, 1974, a motion to sever the two counts and 

request for separate trials was made by defendant. This motion 

was subsequently denied. Defendant was again tried on the two 

counts of aggravated assault on December 2, 1974. At the close 

of the state's case, defendant's motion to dismiss Count I was 

denied. On settling jury instructions, the court refused defendant's proposed Instruction No. 2, covering the lesser included 

offense of assault, section 94-5-201, R.C.M. 1947. The jury 

found defendant not guilty on Count I and guilty on Count 11. 

Following the verdict, a presentence investigative report was 

filed and on December 26, 1974, a presentence hearing held. 

Defendant was sentenced to 20 years in the Montana State Prison. 

Defendant appeals from the judgment and sentence. 
These issues are presented for review: 

1. Whether the sentencing judge may receive and adopt 

information from sources other than the testimony of witnesses 

in open court? 

2. Whether the Montana Youth Court Act applies to the 

facts pertaining to sentencing in this case? 

3. Whether the district court erred in refusing to give 

defendant's proposed Instruction No. 2, covering the lesser 

included offense of assault? 

4. Whether the district court erred in refusing to grant 

defendant% motion for separate trials on separate counts? 

5. Whether the district court erred in refusing to grant 

defendant's motion to dismiss Count I at the end of the state's 

case. 

Issue 1. Defendant contends his constitutional right to 

confront the witnesses against him was violated by the proceedings at the presentence hearing. United States Constitution, 

sixth and Fourteenth Amendments; Article 11, Section 24, 1972 

Montana Constitution. In support defendant cites Kuhl v. 

District Court, 139 Mont. 536, 568, 366 P.2d 347. 

The specific portion of the presentence hearing which 

defendant objects to is what occurred after defendant gave 

facts in mitigation of sentence. (We note here that a copy of 

the presentence report was furnished defendant and his counsel). 

At this point the trial .judge said: 

"This pre-sentence investigation report is silent with 

respect to running off to Texas with your younger 

brother and some girl. I am aware of that. I am 

satisfied you are aware of that. But I am not satisfied 

that the report shows that I am aware of it. And it is 

the kind of a thing that I think you should have an 

opportunity to explain if you want to, because it certainly is all black in the Court's mind." 
In answer defendant, represented by counsel, admitted the 

occurrence to be true. He made no statement in mitigation of the 

facts the trial judge referred to. We find no constitutional 

violation. 

Our examination af.Kuh1, ~ - in relation to present Montana 

statutory law and relevant federal case law, leads to the conclusion that under the circumstances of this case defendant received 

due process at the presentence hearing. 

In - Kuhl we note this statement by the Court: 

"* * * However, keeping in view, as we must, the 

provisions of sections 94-7813 and 94-7814, supra, the question arises: Was the trial judge authorized to disregard 

the mandates of the two-last mentioned sections and to 

proceed to pass sentence upon the defendant Kuhl without 

giving him or his counsel an opportunity to learn or know 

any of the circumstances set forth in the investigator's 

report and without giving either the defendant or his 

counsel an opportunity to rebut or refute any of the representations therein contained?" (Emphasis supplied.) 

Section 94-7813, R.C.M 1947, referred to in Kuhl provided 

that the sentencing court in its discretion could hear circumstances in aggravation or mitigation of sentence. Section 94- 

7814, R.C.M. 1947, provided that such "* * *circumstances must be 

presented by the testimony of witnesses examined in open court 

* * *.I1 However, subsequent to - Kuhl these statutory sections 

were repealed. Sections 95-2203 and 95-2204, R.C.M. 1947, now 

require that presentence information in mitigation or aggravation 

of punishment be made available to the sentencing judge where 

conviction may result in commitment of one year or longer. Section 

95-2205, R.C.M. 1947, the present applicable statute pertaining 

to sources of sentencing information, reads: 

"* * * If the court discloses the identity of persons 

who prozded information, the judge may, in his discretion, allow the defendant to cross-examine those 

who rendered the information. * * *" (Emphasis supplied.) 
There is no lack of due process where the trial judge brings 

to the attention of defendant facts he knows, that defendant 

knows he knows, and gives defendant an opportunity to explain 

them in a mitigation procedure, as in the instant case. Under 

section 95-2205, the right of cross-examination in a presentence 

hearing is a discretionary matter of the trial court. 

Such a change in policy is reflective of the trend towards 

distinguishing evidential procedure at trial from that at the 

sentencing stage. The United States Supreme Court in Williams v. 

New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 93 L ed 1337, 1342, 

stated: 

"* * * A sentencing judge, however, is not confined to 

the narrow issue of guilt. His task within fixed statutory 

or constitutional limits is to determine the type and extent 

of punishment after the issue of guilt has been determined. 

Highly relevant--if not essential--to his selection of an 

appropriate sentence is the possession of the fullest 

in£ ormation possible concerning the defendant' s life and 

characteristics. And modern concepts individualizing 

punishment have made it all the more necessary that a sentencing judge not be denied an opportunity to obtain pertinent information by a requirement of rigid adherence to 

restrictive rules of evidence properly applicable to the 

trial * * *." (Emphasis supplied.) 

However, this does not mean that the spirit of - Kuhl is dead. A . . 

convicted defendant still has a due process guarantee against a 

sentence predicated on misinformation. The real question before us 

then is whether defendant received that protection. 

Here: (1) Defendant was represented by counsel at the time 

the sentencing information was made known to him. Townsend v. 

Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L ed 1690; Mempa v. Rhay, 

389 U.S. 128, 88 S. Ct. 254, 19 L ed 2d 336; United States v. Hone, 
(2) He had the opportunity to rebut the information. United 

States v. Espinoza, 481 F.2d 553; United States v. Huff, 512 F.2d 

66. 

(3) Defendant chose to affirm the accuracy of the information. 

United States v. Horsley, 519 F.2d 1264; United States v. Brown, 

479 F.2d 1170; State v. Mann, - Mont . , 546 P.2d 515, 33 

St. Rep. 278. 

Thus, any danger of utilizing misinformation in sentencing was thus 

averted by the trial judge. 

Issue 2. Defendant contends that the source of the presentence 

information was his juvenile record. Since defendant had reached 

the age of majority, its use in sentencing without his consent 

or upon court petition is claimed to be prejudicial error under 

the terms of the Montana Youth Court Act, Title 10, Chapter 12, 

R.C.M. 1947. 

The record, including the presentence investigative report, 

reveals no indication of a juvenile record on the part of defendant or that he was ever under the jurisdiction of the Youth 

Court. We find no merit in defendant's second issue. 

Issue 3. Defendant argues the use of a weapon was not 

sufficiently established under Count I1 of the Information, thus 

the district court erred in not giving defendant's proposed 

Instruction No. 2 on the lesser included offense of assault. 

Specifically defendant contends that since Jesse First Raised 

could have been charged with accountability pursuant to sections 

94-2-106 and 94-2-107, R.C.M. 1947, for his part in the Tom Miller 

incident, any testimony he gave as to the use of a weapon in that 

incident required independent corroboration under section 95-3012, 

R.C.M. 1947. Defendant claims the state failed to supply the 
necessary corroboration. The state, while not disputing the 

need for corroboration due to the fact that First Raised had 

been granted immunity from prosecution in exchange for his testimony, takes the position that the use of a weapon by defendant 

against Miller was sufficiently corroborated. 

The issue then becomes---What kind of evidence is sufficient 

to corroborate the testimony of one legally accountable? Section 

95-3012, R.C.M. 1947, states: 

"A conviction cannot be had on the testimony of one 

responsible or legally accountable for the same offense, 

as defined in section 94-2-106, unless he is corroborated 

by other evidence, which in itself, and without the aid 

of the testimony of the one responsible or legally 

accountable for the same offense, tends to connect the 

defendant with the commission of the offense; and the 

corroboration is not sufficient, it merely shows the 

commission of the offense, or the circumstances thereof." 

State v. Cobb, 76 Mont. 89, 92, 245 P. 265, has been cited many 

times Bs to- the general guidelines for determining the sufficiency of evidence corroborating the testimony of one legally 

accountable. Though - Cobb was decided under section 11988, R.C.M. 

1921, since repealed, the language of the old statute is nearly 

identical to that of section 95-3012, R.C.M. 1947, in pertinent 

part. We note these guidelines from - Cobb: 

"(a) The corroborating evidence may be supplied by 

the defendant or his witnesses. 

"(b) It need not be direct evidence--it may be 

circumstantial. 

"(e) It need not be sufficient to connect the defendant 

with commission of the crime; it is sufficient- if it tends 

to do so. 

"(f) Whether the corroborating evidence tends to 

connect the defendant with the commission of the 

offense is a question of law, but the weight of the 

evidence * * * is a matter for the consideration of 

the jury." (Emphasis supplied.) , 
The testimony concerning the assault on Miller is undisputed 

on these facts: First Raised's testimony that defendant for no 

reason struck Miller with a pulaski but fortunately Miller saw or 

heard the action and moved so that he was only struck in the 

shoulder and neck. The blow stunned Miller but he was able to 

recover enough to run away, chased a short time by defendant 

carrying the pulaski. Miller saw enough to testify it was defendant, "not the Indian" who swung on him. Defendant and First 

Raised immediately fled the area and went to Idaho. First Raised 

testified he had the pulaski on the trip to Idaho and threw it 

out of the car somewhere between Libby and Priest River, Idaho. 

We hold that such circumstantial evidence tends to connect defendant with the use of a weapon in the attack on Miller. See: 

State v. Spielmann, 163 Mont. 199, 516 P.2d 617; State v. Dess, 

154 Mont. 231, 462 P.2d 186; 30 Am Jur 2d Evidence, 5 1153. 

Therefore, the district court did not err refusing defendant ' s 

proposed Instruction No. 2 on the lesser included offense of 

simple assault. Spielmann, supra; State v. Perry, 161Mont. 155, 

505 P.2d 113, 

Issue 4; , Defendant alleges the district court committed 

reversible error in failing to grant defendant's motion for separate 

trials on separate counts of aggravated assault. Though conceding that two offenses of the same class may be joined pursuant 

to section 95-1504(a), R.C.M. 1947, defendant notes that the 

statute on joinder of offenses further provides at section 95- 

1504(c), R.C.M. 1947: 

"If it appears that a defendant * * * is prejudiced 

by a joinder * * * of separate charges * * * the court 

may order separate trials * * * or provide any other 

re1 ief as justice may require." 
We find no error due to the fact defendant had separate 

and distinct defenses to the two counts. He plead selfdefense to the first count and the jury must have believed him 

for at the second trial he was acquitted. As to Count 11, he 

denied the assault alleging that First Raised was guilty. 

Section 95-1504(c) is similar to Rule 14, Federal Rules 

of Criminal Procedure, and for this reason we have examined 

federal case law on the potentialities of prejudice resulting 

from the joinder of two crimes of the same class. Federal 

courts have found three basic kinds of prejudice that may occur 

upon the joinder of similar offenses. Wright, 1 Fed.Pract. & 

Proc., Criminal, 222, p. 437. 

First, .the jury may consider defendant who is subject to 

multiple :charges to-,be .a bad man. The prejudice claimed is that 

the jury may tend to accumulate evidence against him until it 

finds him guilty of something. However, our examination of federal 

cases reveals that such a claim of prejudice rarely has been found 

sufficient to provide relief. See: Johnson v. United States, 

356 F.2d 680, cert.den. 385 U.S. 857, 87 S.Ct. 105, 17 L ed 2d 

84; Pumrnill v. United States, 297 F.2d 34. We do not find such 

a claim of prejudice sufficient here. The burden of showing 

prejudice is on defendant and here he failed to make such a 

showing. 

Second, proof of guilt of one offense may be used to convict 

the defendant of another offense even though such proof may be 

inadmissible at a separate trial. However, where, as here, 

the alleged fact of the separate offenses was sufficiently distinct to allow the jurors to keep them separate in their minds, 

no prejudice will be found. See: Drew v. United States, 331 

E.2d 85; Robinson v. United States, 459 F.2d 847; United States v. 

Kellerman, 432 F.2d 371. 

- 10 - 
Third, prejudice may result where the defendant wishes to 

testify on his own behalf on one charge but not on the other. But 

we note federal courts have only considered such a claim of 

prejudice where the alleged offenses were totally separate as 

to time, place and evidence. See: Cross v. United States, 335 

F.2d 987; United States v. Lee, 428 F.2d 917; Holmes v. Gray, 

526 F.2d 622. The factual circumstances of the instant case do 

not lend themselves to a claim of this type of prejudice. 

For the reasons set forth, we fail to find any prejudice 

resulting to defendant from the joinder of the two counts of 

aggravated assault. 

Issue 5. Defendant contends the district court erred in , 

failing to dismiss Count I of the Information at the end of the 

state's case. He cites two reasons for this position. First, 

the evidence on Count I was insufficient to support a guilty 

verdict, and second, the court was under a continuing duty to 

protect the defendant from prejudicial joinder of separate offenses. 

We simply say that in view of this Court's position 

on joinder of the two offenses in this case, and the fact defendant was found not guilty on Count I, no prejudice to defendant 

was demonstrated. 

The judgment of the trial court is affirmed. 

m 
We Concur: 

Justices 6