No. 13111 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977

STATE OF MONTANA,Plaintiff and Respondent,

VS. LOREN DUANE SHARBONO, Defendant and Appellant.

Appeal from: DistrictCourt of the Seventh Judicial District, Bonorable L. C. Gulbrandson, Judge presiding. Counsel of Record: For Appellant: Moses, Kampfe, Tolliver and Wright, Billings,

Montana Charles F. Moses argued, Billings, Montana For Respondent: Hon. Michael Greely, Attorney General, Helena,

Montana Victor G. Koch argued, County Attorney, Sidney,

Montana

Submitted: January 24, 1977 ~ecided: 

# Pn!?3

## 119flMr. Justice John Conway Harrison delivered the Opinion of the Court. Defendant appeals from a jury conviction of deliberate homicide entered in the district court, Richland County. Defendant

was sentenced to 75 years inthe Montana StatePrison. Defendant Loren Sharbono was an independent oilfield service worker whose job took him away from home. He resided with hiswife Ellen Sharbono and their 12 year old son inBaker, Montana. Atthe time of her death Ellenwas eight months pregnant. On November 15, 1974, defendant picked up his son in Baker and took him to stay inGlendive, Montana. Defendant was to return on November 16, 1974, to pick up Ellen and go to Sidney, Montana or toDickinson, North Dakota, for the weekend to talk

over some domestic problems. Testimony of witnesses indicated Ellen was afraid of night driving and was not going unless defendant came for her. Defendant denied this, but testified she did have poor eyesight and wore thick lens glasses. Defendant had been going with a Sidney girl, Janis Hams, for two years and thiswas known by Ellen. According to testimony of Janis, they were contemplating marriage. Thirty days before ~llen's death a December 6, 1974 marriage datewas set. Defendant told Janis his divorce would be final November 

### 23, 1974, although he refused toname his attorney and asked Janis to trust him. Defendant denied any intent to divorce Ellen and testified he had no intention tomarry Janis. However, sometime following ~llen's death, he told

### an is' father he was in love with Janis. On November 

### 16, 1974, defendant.made a date with Janis

to pick her up from work at 11:30 p.m. At7:01 p.m., telephonerecords indicated he called hisBaker home from a telephone booth inWibaux, Montana, 45 miles from Baker, charged tohisbusiness credit card, and talked for 2minutes. Defendant testified he then drove toGlendive and went coon hunting inwestern Richland County, without a gun. Hishunting consisted of using a stick and flashlight, striking the coons between the eyes. Atabout 11:15 p.m. that evening, defendant called Janis from Savage, Montana, and toldher he was running late and would pick her up about 12:15 or 12:20 a.m. She testified thiswas the first time he had been late intheir two year courtship. He later advised her he had pickup trouble. Ross Wilson of Savage, Montana, a key witness for the state, went to Glendive the evening of November 16 to see a movie. He left Gkndive about 20:00 p.m. He testified he was anxious toget home and drove at80-90 miles per hour on the triphome. He was approximately four miles south of Savage when he came upon an Because his parents livednearby orange Ford pickup truck, parked in his lane of traffic.

### /Be-thought it might be poachers, so he slowed down and checked the license number, getting the county designation 39- and the first and last numbers of 10-9. The middle two numbers he could not catch due to the fact they were partially covered with dirt. Estimating his speed between Glendive and the parked truck, he thought he came upon the orange pickup atabout 10:30 p.m. 

### He slowed down to 12 to 

### 15miles per hour before passing the truck and in so doing noted therewere two occupants of the truck cab; a passenger was getting into the truck and a man was bent over in an effort to close the door. He noted the driverhad dark hair. Upon hearing of the "accident" later that night, he went tothe scene and reported this information to a fireman and the undersheriff. Defendant wasdriving his orange Ford p~ckup, wich License number 39-1969. Savage, Montana is located approximately 

### 23 miles south of Sidney on thehighway toGlendive. Atapproximately LL;15 p.m., November 16, 1974, a witness Clinton Pattersonwas driving toward Glendive. About four miles south of Savage he

saw a glowing on the side of the hills. When he arrived atthe

scene he saw a car ina ravinewith flames coming out of the window area and around the hood. About this same time a beet truck arrived atthe scene. 

### this cruck was drivenby off-duty highway patrolman Jack Gaughan, who instructed Patterson to return to Savage and call the fire department and authorities. Gaughan could only getwithin 10 to 12 feet of the car, since it was burning fiercely, but he read the license number of the car as 39-924. The vehicle was registered inthe name of Ellen Sharbono and defendant. Other officers, the Savage firedepartment, and the coroner subsequently arrived atthe scene. The firedepartment took about 

### 25minw~testo control the fire. By this time thebadly charred remains of Ellen Sharbono had been discovered lying on the floorboard, withher head against the passenger side of the car. The victim's body was removed by the coroner. In the earlymorning of November 1-7, 1974, defendant

was located ata motel inSidney and notified of hiswife's death. Histruck, with licensenumber 39-1969, was parked atthemotel. About 4:15 a.m. on November 17, 1974, the Sharbono truckwas seen stopping atthe home of JimFischer, a retiredhighway patrolman and brother-in-law of defendant married to defendant's sister, Louella.Fischers testified defendant called them to tellthem of ~llen's death and asked to come out to their home. They testified he was very upset when he arrived and it had been an emotional experience. Defendant talked with them for sometime and slept on

a couch inthe living room for an hour and half early inthe morning of the 17th. During his conversations with theFischers, from the testimony of numerous witnesses, itwould appear defendant made an effort to get them to provide an alibi forhim by stating: "You can say we was fox hunting together.'' The Fischers told this story about fox hunting to several investigating officers and itwas not until December 

### 26, the day of defendant's arrest that JimFischer voluntarily went to the county attorney's office and gave him a corrected story. In themeantime, on November 20, upon learning thathis wife's body had been taken toGreat Falls, defendant contacted Fischers and had them drive over a country road from Sidney to Wibaux with him. During this triphe had them note certain,places where he saidhe had been, at specified times, during the evening of November 16-17. During defendant's visit tothehome of Fischers on the 17th, he asked his sisterto say they were playing "pinochle" that evening. When his sister asked him why she should say that, he replied "Iwas on that road--the Glendive-Sidney road". He also told his sisterhe calledhis girlfriend from Savage at about 11:OO to 

### 11:lO p.m. on November 16. Atno time during his testimony did defendant admit being on the particular section of the Glendive-Sidney road where the accident occurred. Investigation of the accident revealed the victim's car went off the road atalmost a 90' angle. This was described by the investigators as a most unusual angle of leaving thehighway.

### Investigationby the state firemarshal's office revealed the firewas caused by accelerants, starting in the passenger portion of the victim's automobile. The chemist from the state crime laboratory concluded the gasoline sample taken from the interior of the victim's car was a different gasoline than that in the tank of the automobile. OnNovember 20, 1974,Dr. Joseph McKinley, a Sidney pathologist, made a partial autopsy and found fractures of the hyoid bone and thyroid cartilage,which to him indicatedmanual strangulation. On December 20, 1974, thebody was flown to Great Falls where a complete autopsywas performed jointlyby Dr. McKinley and Dr. Pfaff,a forensicpathologist. Both concluded Ellen Sharbono died of manual strangulation. Thevictim's own doctor testified that Ellen Sharbonowas previously in good health. In1;addition, the state introduced evidence that defendant obtained life insurance onhis wife on September 24, 1974. The policy was a jointwhole-lifepolicy for Loren and Ellen Sharbono in the amount of $150,000. Defendant's agent testified he had suggested the additional insurancedue to defendant's going into business for himself. On appeal,defendant presents 14 issues for'thisCourt's review: 1) Was PatrolmanGaughan improperly allowed to give an unresponsive answer and testify as to his opinions and conclusions in describing the burning car? 2) Was Patrolman Rowe improperly allowed to testify as to a self-serving statement by sayinghewent to view the car "to gather evidence"? 

### improperly 3) 

### Was Patrolman~aul/allowed to give his opinion as to the speed of the carwhen it left the highway and its speedwhen

### it hLt the bottom of the ravinewithout proper foundation? 

### 4) Was Exhibit A-14, a gaschromebiography analysis of gasoline, improperly admitted into evidence without sufficient foundation? 5) 

### Was it error to permit Dr. Pfaff to repeat his opinion that the cause of death was by strangulation? 6) 

### Was hearsay testimony improperly allowed into evidence when Mary McGonigal testified as to a telephone conversation she had with Ellen Sharbono? 7) 

### Was hearsay testimony improperly allowed into evidence when James Fischer testified as to a telephone conversation he had with the county attorney? 

### 8) Was the State improperly allowed to impeach its witness, James Fischer,without a showing of surprise? 

### 9) Was there sufficient evidence at the close of the state's case to go to the jury? 10) Should the case have been dismissed at the close of the state's case because the medical testimony failed to satisfy the circumstantial evidence test by failing to rule out all other reasonable hypotheses as to the cause of death other than strangulation? 11) Was the sheriff improperly allowed to present hearsay and conclusionary testimonyby stating he had no reason to believe Wilsonwould be involved? 12) Was the sheriff improperly allowalto repeat his testimony aboutWilson? 

### 13) Was it error for the district court to refuse the 

### 'burnfilm''? 14) Did the district court err in refusing Sharbono's proposed instructionill4 which defined "deliberation"?Issues 1, 2 and 3 involve the tescirnony of three highway patrolmen and willbe considered as one. Jack Gaughan was one of the firstwitnesses on the scene. Sefore going down to the burning car, he sent Patterson, the firstwitness on the scene, to Savage to get help from the volunteer firedepartment. Gaughan estimated his time of arrival at the scene between 11:15 and 11:30 p.m. He took an extinguisher from his truck down to the fire inan effort to extinguish it, but was unable to get closer than from 10 to 12 feet, due to the intensity of the fire. In describing what he saw, he said 

# "**

# * itwould---like a piece of rag burning that has been oil soaked or something, to me it reminded me of

# ----.'I ~efendant's dounsel objected alleging the answer was not responsive and was che opinion and conclusion of the witness. Defendant argues the court erred in overruling his objection and citesnumerous cases and text in support of his objection. Ne have examined those cases and text cited and findnone cpntiol

### ling,, Here, Gaughan was asked the question "Would you describe whac you saw inregard to the burning vehicle?" The answer was

a description of what Gaughan saw and defendant objected and moved to strike the entire answer as not responsive and as an opinion and conclusion. No effortwas made to specificallypoint out what his objectionwas directed to and it was an improper objection.

H witness, as the witness here, who saw the car burning, may, arter stating as much as he can of the constituent facts, state his impression or inference with respect towhat he saw. Inre ~~Ller's Etate, 36 Utah 228, 102 P. 996; Paulich v. Nipple, 104 Yan. 801, 180 P.771; Hillv. Chappel Bros., 97 Mont. 305, 33 P.2d 819; Union Pacific Ry. Co. v. Gilland, 4 Wyo.395, 34 P. 953; 32 Z.J.S., Evidence §546(9).-8-Defendant next objects to the testimony of Patrolman Rowe as "self-servingu. Rowe

## , along with several other investigating officers, went to the fairgounds where theburned vehicle

was stored for the purpose of getting certain parts of the vehicle that where laterused inthis case. The testimony and objectionwas: "Q. Was there any purpose ingoing out and meeting with these other parties you described on the 25th of November? A. Yes. Q. What was that purpose? "MR. MOSES: I object upon the ground that it is self-serving.'' We find no merit to defendant's argument. Rowe was a part of an investigative team forthe purpose of "gathering evidence1'. His answer was not a self-serving statement. 

### 3LA C.J.S. Evidence, 9216, p. 590, states the rule regarding self~servingdeclarations: "A 'self-serving declaration' within the rule is one made by a party inhis own interest at some time and place out of court, and does not include testimony which he gives as a witness atthe trial." See Welch v. Thomas, 102Mont. 591, 601, 61P.2d 404. Defendant also objected to the testimony of Sgt. John Kaul of thehighway patrol as tohis opinion of the speed of the death vehicle when it left the road. Sgt. Kaul testifiedhe had been a highway patrol sergeant for approximately 12years; had considerable special training inaccident investigations and had investigated some 300 accidents. He qualified asan expert in his field. Kaul stated, inhis opinion, the vehicle leftthe road at "a very low rate of speed" 

# --- somewhere inthe vicinity of from 10 to 

### 15miles per hour. Prior tothat testimony, he had

### totally familiarizedhimselfwith the scene,observed .thetracks of the vehicle on the grass slope,checked for skid or gouge marks onboth the slope and highway and foundnone, observed the damage done to the automobile caused by its coming to rest against the bank of the ravine, took photographs of the scene (later used

as exhibits), and noted the unusual angle of the vehicle as it left the highway. The trial court properly admitted this testimony. The rule inMontana relating to the admission of expert testimony is set forth inHaynes v. County of Missoula, 163Mont. 270, 517 P.2d 370, This Court has held highway patrolmen are experts in their field of accident investigation. See: State v. Souhrada, 122 Mont, 377, 204 P.2d 792; Statev. Stoddard, 147 Mont. 402, 412P.2d 827;State v. Deshner, 158Mont.188, 489 P.2d 1290; 

### 8Am Jur 2d,Automobiles and Highway Traffic 5990, We find defendant's issues 1, 2 and 3 to be without merit. Issue 4,alleges there was insufficient foundation for the admissionof evidence obtained from the gaschromebiography. We find no merit in,issue

### ,4. The objection arose during the testimony ofArnold Melnikoff, the forensic chemist and lab supervisor of the criminal investigation departmentwhen he tried to use a chart to illustrate the gaschromebiography analysis of gas samples taken at the scene and from the burned vehicle. Following extensive direct examination and cross-examination on the operation and use of the gaschromebiograph,and a discussion in chamberswith the judge,counsel for defendant made his objection as to the competency of the evidence in a criminal

case. The court ruled a proper foundationhad been laid and stated:



# - 10

# -

# "**

# * Certainly 

### I am convinced it was adequate after you [Moses] got throughwith him. 

### I think 

### Iunderstand the process but 1 

### amnot sure it makes it more competent evidence, but inmind 

### I am much more familiarwith the process.

# ***" Defendant's objection canbe divided into two parts: 1) The lack of foundation of the verification of the accuracy of the instrument. 2) The competency of the gaschromebiograph in a criminal case. 

### 1) The foundationwas laid by the qualifications of Melnikoff, the state chemist, and his testimony of how the machine

was periodically checked and that itwas in good working order. 2) Concerning the competency of such evidence on the fractionation of mixtures of substances and its ability to afialyze both organic and inorganic compounds, see: The Cyclopedia of Chemistry, 2d Ed.(1966); The Journal of Chromatopgraphy,a 116 volume work of scientific scholars;and the Journal of Forensic Medicine from 1971 through 1976. Whfle admission of this type of evidence in a criminal case is a 

### matter of first impression in this jurisdiction,we have allowed its admission in a civil case,Jangula v. United States Yubber.Co.,147Mont. 98, 410 P.2d 462. Several states,Missouri, California,Arkansas and Vermont have allowed its admission in criminal cases. Statev. Perryman, (Mo.App. 1975), 520 S.W.2d 126; State v. 

### Munn, 257Ark. 1057, 521 S.W.2d 535; People v. Rawlings, 42 

### Cal.App.3d 952, 117 Cal.Rptr. 651;Statev. Burack, 133Vt. 482, 

### 346 A.2d 192, 194; 23 C,J.S., Criminal Law, §858(2), p. 380. We adopt the position of theVermont Court in

### - Burack

--- 

### in allowing ~he 

### admission of the testsmade by a gaschromebiograph. This Court has long held it is within the jurisdiction 

### OL the 

### trial judge to admit scientific and expert testimony. Wefind no abuse of that discretionhere. Graha~n v. Kolandson, 150 Mont. 270, 435 P.2d 263; Hurley v. StarTransfer Company, 141 Mont. 176, 376 P.2d 504. Issue 

### 5 

### is directed atalleged repetitious opinion testiniorly of Dr. Pfaff, the forensic pathologist. During direct testimony Dr. Pfaff testified that, inhis opinion "I believe she died as the result of manual strangulationand asphyxia therefrom.II On redirect, he gave the same testimony in answer to a question---over the objection of defendant. The redirect testimony

cane after defendant's cross-examination where an effortwas made to establish the cause of death occurring from a steering bheel injury. Its purpose was to clarify any question inthe airids of the jury members as towhat was Dr. ~faff's expert opinion on the cause of death. We findno error. Moore v. rremelling, 100 F.2d 

### 39; 3Wigmore, Evidence, 

### 5782(2) (Chadbourn Kev. 1970); 4 Jones on Evidence, 

### 528:

### 7. Issue 6 is directed to hearsay conversations between Ellen and Mary McGonigal, a nurse and neighbor friend of Ellen. rhey saw each other daily and talked often on the phone. Mary WcJonigal testified she could recognize Ellen's voice on the ohone, she knew of ~llen's plans to spend the weekend with deLendant, and had, in fact, loaned her a suitcase to go on the trip. She was allowed, over objection and after argument in chambers to testify that she talked on the phone with Ellen on Yovember 

### 5 about her weekend plans; that Ellen was afraid to drive atnight and that she would not go on the weekend unless her husband drove. The trialcourt allowed the admission of the testimony under the state-of-mind exception to the hearsay rule. We agree. 

# - 12

# -The hearsay rule generally dxcludes statements made aut of court, where the speakers arenot present tobe examined. There are exceptionsmade for statements and acts which serve to explain the act inquestion where the speaker 

### is incapable of being present. Telephone conversations, as in this case, are admissible. 22A C.J.S. Criminal Law $662(2)(4); Anno. 113A.L.R. 268 303, $ V(b)(2). This Court inThompson v. Steinkamp, 120Mont. 475, 481, 187 P.2d 1018, allowed hearsay testimony to show intent. The Court said: 

## "' When intent isa material element of a disputed fact, declarations of a decedent made after aswell asbefore an alleged act that indicate the intent with which he performed the act are admissible in evidence as an exception to the hearsay rule

# * 9~ *."I Testimony relati~~e to the intent of a decedent as to destination or taking 

### a tr2p isadmissible and is one of the state-oE-mind hearsay exceptions. Mutual Life Ins. Co. 

### v. Hillmon, 145U.S. 285, 12 S.Ct. 909, 36 L ed 706; People v. McMonigle, 29-Cal.2d 730, 177 P.2d 745. In a case nearly 

### on allfours with the instant case the Supreme Court of Oregon in Statev. Bartolon, 8 Ore.App.538, 495 P.2d 772, admitted a statement by deceased of her intent to go to a certain place. In the instant case arguments of both counsel were made to the court in chambers, questions to be propounded to the ' witness Mary McGonigal were discussed and many were dropped by the county attorney due to defendant's objections. In the end the solution on admissibility was in the hands of the trial court whose sound discretion is subject toreview only ina case of manifest abuse. None 

### is found here. Statev. Medicine Bull, 

### Jr., ij2Mont. 34, 445 P.2d 916.

### Issue 

### 7 is directed at hearsay testimonyby a witness in a telephone conversationwith the county attorney. Defendant contends it was error to permit James Fischer,defendant's brother-in-law,to testify as to a hearsay conversation he had with the county attorney. Fischerhad given a 

### statement to the county attorney that the defendanthad been hunting with him on the night ofNovember 16. The conversationreferred to was between James Fischer and the county attorney: "Q. Prior to that time,Mr. Fischer,before any

conversation thatwe have been refreshing your memory on on the statement,did youmake any statement to any law enforcement officer about going to the Sidney-Wibauxroadwith the defendant and stopping at a pay boothwhere youmade a telephone call on November 16, 1974? A. Go over that onemore. "Q. Prior to the time that

# -- letme go back a minute. After you learned that the defendanthad been arrested and what he was chargedwith,what did you do? Did younotify anybody? A. Not that 

### Iknow of really. Ifmean, if 

### Idid now you can refreshmy memory. "Q. All right, that very evening,did you call the CountyAttorney? A. 

### Idid, sir. "Q. What did you say? A. 

### I simply lied to you." No error is found in the court's ruling. Where the witness

can answer the questionpropounded to him ofhis own knowledge, and the value of his testimony does not depend in any degree upon the veracity or competency of any other person,his answers

are not objectionable as hearsay. In Statev. Crean, 43Mont. 

### 47, 59, 

### 114 P. 603,a similar fact,case,this Court said: 

# "** 9~

### Our Code

# *** provides: 

## ' A witness can testify to those facts onlywhich he knows of his own knowledge', etc. The term 'hearsay,' as used in the law of evidence, signifies a11 evidencewhich is not founded upon the personal knowledge of the witness fromwhom it is elicited 

# * * The principal objections to this species of evidence are (1) that it is given under oath--that is, that

### the person whose words are repeared was 

### riot under oarh-- 

### and 

### (2) that such person is not subject to cross-examination. That the evidence sought to be elicited by these questions was not hearsay is apparent enough. The witness could answer every question of his own knowledge, and the value of the testimony given did not depend in any degree upon the veracity or competency of any other person.II 

### See also: McGonigle 

### v. Prudential Insurance Co., 

### 100 Mont. 203,

Issue 

### 8 relates to charges the statewas erroneously permitted to impeach its ownwitness without showing surprise. James Fischer,defendant's brother-in-law,who made the quoted statement in Issue 

### 7,and who went with defendant over the Sidney-Wibauxroad to cover defendant's travels on the night of the death,was a most reluctantwitness for the state. This reluctance came after he called the county attorney and admitted he lied and after voluntarily going to the county attorney's office and giving a clarifying statement. That statementwas taken home by Fischer and his wife a week before the trial for any corrections,but in spite of all of this he was a most evasive witness. Finally, after two sessions in the judge's chamber and

some 30pages of testimony, the trial court declared him a hostile witness and allowed impeachment. The state contends that itwas refreshing the witness' memory,but since the defense's objection is to impeachment,we cite the Montana sections pertinent: Section 93-1901-8,

### R.

### C.M. 1947. "The party producing a 

### witness is not allowed to impeachhis credit by dvidence of bad,character,but he may 

### contradict him by other evidence, and may also show that he has made dt 

### other times statements inconsistentwith his present testimony as provided in section 93-1901-12.'' jection 93-1901-12,

### R.C.M. 1947. "A witness may also be impeached by evidence that he has made, at other times, statements inconsistentwith his present testimony;but before this can be done the statementsmust be related to him,with the circumstances of times,places, and persons

### present, and he must be asked whether he made such statements,and if so,allowed to explain them. If the statementsbe inwriting, they must be shown to the witness before any question is put to him concerning them. " 

### Here,Fischervoluntarily gave a statement correcting a previous statement and was also allowed time to correct same. He failed to tell the truth and the trial judge, fromall the testimony he heard and from what he saw of the witness, ruled the county attorneywas surprised. We find nomerit in defendant's Issue 

### 8. Issue 9 questionswhether therewas insufficient evidence at the close of the state's case to grant a motion to dismiss. Defendantdirected his motion on an alleged failure of the state to establishhis presence in the vicinity or as to the evidentiary value of the attempt by defendant to establish an alibi. The court recognized the problems of the case at that point of the trial and ruled therewas sufficient circumstantial evidence before the jury with 

### (I) the double indemnity insurance, (2) the proposal ofmarriage to the girl £rid,, (3) the alibi attempt, and 

### (4) the statement of the defendantmade to 

### Mary McGonigal on the day of Ellen's funeral. Defendant cites authority that there must be substantial proof to convict and suspicion isnot enough. He relies on State

v. 

### McCarthy, 36 Mont. 226, 92P. 521; Statev. Powers, 39Mont. 259, 102 P. 583; State v. Brower, 55Mont.349, 

### 117 P. 241; State

v. 

### Merseal, 167Mont. 409, 538P.2d 1366, 32St.Rep. 823. We find the cases cited unrelated to the issue of alibi and have little value to the factshere. The thrust of defendant's motion was directed at the alibi testimony. We find the rule on such testimony stated in People

v. 

### Wayne, 

### 41 Cal.2d 

### 814, 264 P.2d 547, 551,where it was said:"'9~ 

# ** But where a material fact is established by evidence and it is shown that a defendant's testimony as to that factwas wilfully untrue, this circumstance not only furnishes a ground for disbelieving other testimony of this defendant

# *** but also tends to show consciousness of guilt or liability on hispart and has probative force in connection with other evidence on the issue of such guilt or liability. Such false testimony 

### is in the nature of an admission from which other evidence guilt or liabilitymay be inferred.

## ' " See also: 2Wigmore, Evidence, 

### 5 278. Here, the court noted the circumstantial evidence before the jury and found it sufficient to overrule defendant's motion to dismiss. We findno error inthe court's ruling fornot only was there an attempt to establish an alibibut there was testimony that (1) placed defendant atthe scene, (2) established motive for the crime, (3) showed deceased feared night driving, (4) the medical testimony on the cause of death, and 

### (5) Mary ~cGonigal's testimony as to this conversation with defendant on the day of ~llen's funeral: "Q. Would you cite asnear aspossible the conversation? A. He said: 'Mary, I am awfully sorry about your suitcase and I want to replace it' and I told him it was allright. "Q. Did you have any reaction to that? A. Yes, I did because nobody knew I loaned it. II See: Statev. Cor, 144Mont. 323, 396 P.2d 86. Issue 10 contends error because the trialcourt failed to dismiss atthe close of the state's case on the basis that the medical evidence as to death failed to satisfy the circumstantial dvidence test. While the two pathologists could not rule out

a blow to the neck from the steering wheel, they both found other ovidence of damage that the throat fractures would have been in diiferent locations had there been a blow to the windpipe. In chat case the fractures would have been along the sides, not the front. Both pathologists testified that Ellen was dead before

### the fire began and in their opinions deathwas caused by asphyxiation,due to manual strangulation. Defendant cites Statev. Allen, 34Mont. 403, 415, 

### 87 P. 177, for the rule for admitting circumstantial evidence. There the Court speaking to an instruction,noted: 

# "**

# * Reading this paragraphwith the rest of the charge, we do not think the jury could have been mislead;yet, it should have stated that the jury should convict only if the circumstances were of such a character as to satisfy the minds of the jury of the guilt of the defendant beyond a reasonable doubt to the exclusion of every reasonable hypothesis other than the guilt of the defendant." (Emphasis added.) While we do riot disagree with this citation in an early case of this Court,we find the evidence here couldwell have satisfied the minds of the jurors "to the exclusion of every reason- able hypothesis." This Court in State v. Fitzpatrick, 163Mont. 

# - 220, 227, 516 P.2d 605, stated: 

# "** * this Court held in reviewing a case the Court is to give to each circumstance in evidence all the legal effect toward guilt which it could 

# - support to see whether a rational conclusion of innocencewas excluded.

# *

# **" See: Statev. Radi, Mont

# . , 542P.2d 1206, 32 St.Rep. 1143;State v. Cor, supra; State v. DeTonancour, 112Mont. 94, 98, 112 P.2d 1065;State v. Warrick, 152Mont. 94,

### 446 P.2d 916. Issue 11alleges that hearsay and conclusion testimonywas permitted by the sheriff. Over the objections of the defendant the sheriffwas allowed to testify to what was clearly hearsay and conclusion answers in regard to matters concerning-whether or not Ross Wilson was involved. Allowing the sheriff to testify in the

manner he did was improper and error. However,we do not find it

so prejudicial as to require reversal. Before this Court will

reverse a judgment,prejudicemust be shown. Statev. Totterdell, 135 Mont. 56, 336 P.2d 696;State v. Hay, 120Mont. 573, 194~eiendanc's Zssue 12alleges the sheriff's statements, discussed inIssue 

### 11, were repetitious. We find no error. The rnatter is discretionary with the trialcourt and no substantial rights of defendant were damaged. Issue 13alleges the court erred inrefusing to allow the jury tu view a "burn filmt'offered by the defense. Defense called ds itswitness Dr. F. D. Lee, a physics teacher from Ball State University, Muncie, Indiana, who testified as to the speed of the death vehicle and the injuries that could have resulted. The defense then attempted toput into evidence a filmwhich demonstrated six different car burnings, and a film that had been prepared todemonstrate what could happen as far as fireswere concerned when cars were involved in collisions. Defendant argues this evidence was vital to the defense inview of the testimony given by statewitnesses and that under Montana law 

### icwas errornot to allow thejury to see these films, citing Gobel v. Rinio, 122Mont. 235, 238, 200 P.2d 700. Here, the court viewed the film inchambers and noted tha~ allsixcollisions dealt with rear end collisionswhere the gas tanks were ruptured and noted that there was no rupture in the instant case, further that therewas no evidence of a fuel line rupture or a showing of gas burning underneath the

a. The trial court denied a showing of the films. This Court considered the same issue inLeary v. Kelly !?ipeCo. 

### , Mont

# . , 549 P.2d 813, 817, 33 St.Rep. 413, 411, involving the negligent unloading of aItruckwhere the tlrlal court excluded evidence on a showing of the proper method

JE loading a truck, and said:"These photographs do not deyicc ALLYconditiori related to this controversy. The pictured trucks are different trucks loaded differently from the F-B truck and trailer involved inthis case. We find no error inexcluding them." Here, the films involved experiments with different and smaller vehicles incrash situations entirely different than the facts here. Leary controls and as noted in Gobel, citedby defendant: "This court is committed to the view that the trial court has a wide discretion inadmitting any diagram, map or photograph

# *

# **." Defendant's Issue 14 concerns the court's denial of defendant's offered instruction No. 14 as to the required intent for deliberate homicide. Defendant's proposed instruction No. 14 reads: "You are instructed that homicide which isperpetrated by any kind of willful, deliberate and premeditated killing iscommitted purposely or knowingly and is deli6eratehomicide. "To constitute this type of crime, the killing must be accompanied and must be preceded by a clear deliberate intent to take life, an intent tokill which must be the result of deliberation and premeditation so that it must have been formed upon a preexisting reflection and not under a sudden heat of passion or other condition such as precludes the idea of deliberation. II It is defendant's position that before he can be convicted of this crime the statemust beyond a reasonable doubt satisfy itsburden that defendant had a guilty mind, a guilty or wrongful purpose, a criminal intent. In support he relies upon a number of

cases but principally the holding inMorissette v. United States, 342 

### U.S. 246, 96 L ed 288, 72 S.Ct. 240. Defendant argues that under the instructions given by the court the necessity for the jury to find defendanfs mens rea (criminal intent) iseliminated. Further that knowingly and purposely, as defined by the Montana Criminal Code, and as given in the court's given instructions do not include this vital element and therefore failure to give defenant's proposed instructionNo. 

### 14 was error.

### The statute involved ,issection 94-5-102,

### R.C.M. 1947, the pertinent part ofwhich reads: "~xcept as provided in section 94-5-103(1) (a) 

## , criminal homicide constitutes a deliberate homicide if: "(a) 

### it is 

### committed purposefully or knowingly".

The CommissionComment states: "Section 94-5-102relates only to conductwhich is done deliberately;that is,purposely or knowingly. 

# **

# *" (Emphasis supplied.)

What the legislature did, in enacting the Montana Criminal Code 1973,was to reduce the difficulty in this area by articulating generalprinciples that shall applywhen the definitions of a particular offense are ambiguous. The culpability requirements adhere to familiar concepts, purposely,knowingly. Upon the whole it is the personwho means to do the thing that constitutesa crime 

# ,knowshe is doing it, and knows that there is a substantial and unjustifiable risk in doing it,whose conductwarrants condemnationof the kind fromwhich conviction results. The problem of scienter,guilty knowledge, goes to the question of culpability generally and hasbeen usually dealt with by the concept of 

# -- mens rea. While culpability is variously stated in criminal statutes in terms such as "willful","willfully and unlawfully", "with intent to" and other phrases, these exact words are not necessary in determiningwhether the statute is vague. The United States Supreme Court has held in a series of cases that 

### a statutewill not be evaluated on its face,but

... , 

### ..



# - 21

# -only in the context with which a defendant is,charged. United Statesv. Petrillo, 332 U.S. 

### 1, 91L ed 1877, 67 S.Ct. 1538. It has also looked into the requirement of scienter inthe statutory definition of the crime inwords like "~illfully'~, "intentionally1'and "knowingly" as overcoming the vice of vagueness. Boyce Motor Lines v. United States, 342 U.S. 337, 91L ed 367, 72 S.Ct. 329. Under the provisions of section 94-5-102, R.C.M. 1947, the necessary requirements for "mens rea" and "criminal intent" are embodied inthe use of the new language of the statute "purposely" and "knowingly". The court's given InstructionNo. 

### 17defined both

IIpurposely" and "knowingly" interms set forth in section 94-2- 101, R.C.M. 1947. It is defendant's contention the homicide statute requires more to be clear. We do not agree, for it 

### isclear from the Commission Comment that it was the legislative intent to replace such terms as "deliberately". This Court in Statev. Klein, Mont

# . , 547 P.2d 75,78, 33 St.Rep. 283,288, spoke tothis issue. InKlein, a robbery case, itwas alleged the trialcourt committed error in refusing defendant's instruction defining "feloniously". There

we referred to theAnnotator's notes under section 94-2-101, Montana Criminal Code of 1973, Annotated, which stated: "A major problem of prior Montana criminal law

was the use in the code of numerous terms affecting culpability that were largely undefined. Under the new Code, the mental states required for various degrees of culpability are defined carefully in a hierarchy. 'Purposely' is the most culpable state and implies a design. This term replaces a term frequently used inthe old code, 'intentionally' J: 3c **"

### The Court then stated: "It is clear that the legislature intended the words I

### purposely' and 'knowingly'would substitute for the word 

## 'felonious' (i.e. intentionally) as used in the old code.* 

# *

# *" Here, the court gave defendant's offered instructionNo. 

### 17, defining both "purposely" and "knowingly". 

### We find 

### no error. Judgment of the trial court is affirmed.

We Concur: ,----7