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: District Court 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 1 19fl 
Mr. 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 in the Montana State Prison. 

Defendant Loren Sharbono was an independent oil field 

service worker whose job took him away from home. He resided with 

his wife Ellen Sharbono and their 12 year old son in Baker, Montana. 

At the time of her death Ellen was eight months pregnant. 

On November 15, 1974, defendant picked up his son in 

Baker and took him to stay in Glendive, Montana. Defendant was 

to return on November 16, 1974, to pick up Ellen and go to Sidney, 

Montana or to Dickinson, 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 this was known by Ellen. According to testimony 

of Janis, they were contemplating marriage. Thirty days before 

~llen's death a December 6, 1974 marriage date was set. Defendant 

told Janis his divorce would be final November 23, 1974, although 

he refused to name his attorney and asked Janis to trust him. 

Defendant denied any intent to divorce Ellen and testified 

he had no intention to marry 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. At 7:01 p.m., telephone 
records indicated he called his Baker home from a telephone booth 

in Wibaux, Montana, 45 miles from Baker, charged to his business 

credit card, and talked for 2 minutes. Defendant testified he then 

drove to Glendive and went coon hunting in western Richland County, 

without a gun. His hunting consisted of using a stick and flashlight, striking the coons between the eyes. 

At about 11:15 p.m. that evening, defendant called Janis 

from Savage, Montana, and told her he was running late and would 

pick her up about 12:15 or 12:20 a.m. She testified this was the 

first time he had been late in their 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 to get 

home and drove at 80-90 miles per hour on the trip home. He was 

approximately four miles south of Savage when he came upon an 

Because his parents lived nearby 

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 at about 10:30 p.m. He slowed down to 12 

to 15 miles per hour before passing the truck and in so doing 

noted there were 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 driver had dark hair. Upon hearing 

of the "accident" later that night, he went to the scene and reported 

this information to a fireman and the undersheriff. Defendant was 
driving his orange Ford p~ckup, wich License number 39-1969. 

Savage, Montana is located approximately 23 miles 

south of Sidney on the highway to Glendive. At approximately 

LL;15 p.m., November 16, 1974, a witness Clinton Patterson was 

driving toward Glendive. About four miles south of Savage he 

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

scene he saw a car in a ravine with flames coming out of the 

window area and around the hood. 

About this same time a beet truck arrived at the scene. 

this cruck was driven by off-duty highway patrolman Jack Gaughan, 

who instructed Patterson to return to Savage and call the fire 

department and authorities. Gaughan could only get within 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 

in the name of Ellen Sharbono and defendant. Other officers, the 

Savage fire department, and the coroner subsequently arrived 

at the scene. The fire department took about 25 minw~testo control 

the fire. By this time the badly charred remains of Ellen Sharbono 

had been discovered lying on the floor board, with her head against 

the passenger side of the car. The victim's body was removed by 

the coroner. 

In the early morning of November 1-7, 1974, defendant 

was located at a motel in Sidney and notified of his wife's death. 

His truck, with license number 39-1969, was parked at the motel. 

About 4:15 a.m. on November 17, 1974, the Sharbono truck was seen 

stopping at the home of Jim Fischer, a retired highway patrolman and 

brother-in-law of defendant married to defendant's sister, Louella. 
Fischers testified defendant called them to tell them 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 in the living room for an hour and half early in the 

morning of the 17th. During his conversations with the Fischers, 

from the testimony of numerous witnesses, it would appear defendant 

made an effort to get them to provide an alibi for him by stating: 

"You can say we was fox hunting together.'' 

The Fischers told this story about fox hunting to several 

investigating officers and it was not until December 26, the day 

of defendant's arrest that Jim Fischer voluntarily went to the 

county attorney's office and gave him a corrected story. 

In the meantime, on November 20, upon learning that his 

wife's body had been taken to Great Falls, defendant contacted 

Fischers and had them drive over a country road from Sidney to 

Wibaux with him. During this trip he had them note certain,places 

where he said he had been, at specified times, during the evening 

of November 16-17. During defendant's visit to the home of 

Fischers on the 17th, he asked his sister to say they were playing 

"pinochle" that evening. When his sister asked him why she should 

say that, he replied "I was on that road--the Glendive-Sidney road". 

He also told his sister he called his girl friend from Savage at 

about 11:OO to 11:lO p.m. on November 16. At no 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 at almost a 90' angle. This was described by 

the investigators as a most unusual angle of leaving the highway. 
Investigation by the state fire marshal's office revealed 

the fire was 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. 

On November 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 indicated manual 

strangulation. On December 20, 1974, the body was flown to Great 

Falls where a complete autopsy was performed jointly by Dr. McKinley 

and Dr. Pfaff, a forensic pathologist. Both concluded Ellen 

Sharbono died of manual strangulation. The victim's own doctor 

testified that Ellen Sharbono was previously in good health. 

In1;addition, the state introduced evidence that defendant 

obtained life insurance on his wife on September 24, 1974. The 

policy was a joint whole-life policy for Loren and Ellen Sharbono 

in the amount of $150,000. Defendant's agent testified he had 

suggested the additional insurance due to defendant's going into 

business for himself. 

On appeal, defendant presents 14 issues for'this Court's 

review: 

1) Was Patrolman Gaughan 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 saying he went to view the car "to 

gather evidence" ? 

improperly 

3) Was Patrolman ~aul/allowed to give his opinion as to 

the speed of the car when it left the highway and its speed when 
it hLt the bottom of the ravine without 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 testimony by stating he had no reason to believe 

Wilson would be involved? 

12) Was the sheriff improperly allowal to repeat his 

testimony about Wilson? 

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

'burn film''? 

14) Did the district court err in refusing Sharbono's 

proposed instruction ill4 which defined "deliberation" ? 
Issues 1, 2 and 3 involve the tescirnony of three highway 

patrolmen and will be considered as one. 

Jack Gaughan was one of the first witnesses on the scene. 

Sefore going down to the burning car, he sent Patterson, the 

first witness on the scene, to Savage to get help from the 

volunteer fire department. 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 in an 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 

"* * * it would---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 cites numerous cases and text in support of his objection. 

Ne have examined those cases and text cited and find none cpntiolling,, 

Here, Gaughan was asked the question "Would you describe 

whac you saw in regard 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 effort was made to specifically point out 

what his objection was 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 to what he saw. In re 

~~Ller's Etate, 36 Utah 228, 102 P. 996; Paulich v. Nipple, 104 

Yan. 801, 180 P.771; Hill v. 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 the burned vehicle 

was stored for the purpose of getting certain parts of the 

vehicle that where later used in this case. The testimony and 

objection was: 

"Q. Was there any purpose in going 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 for the 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~serving declarations : 

"A 'self-serving declaration' within the rule is one 

made by a party in his own interest at some time 

and place out of court, and does not include testimony which he gives as a witness at the trial." 

See Welch v. Thomas, 102 Mont. 591, 601, 61 P.2d 404. 

Defendant also objected to the testimony of Sgt. John 

Kaul of the highway patrol as to his opinion of the speed of the 

death vehicle when it left the road. Sgt. Kaul testified he had 

been a highway patrol sergeant for approximately 12 years; had 

considerable special training in accident investigations and had 

investigated some 300 accidents. He qualified as an expert in 

his field. 

Kaul stated, in his opinion, the vehicle left the road 

at "a very low rate of speed" --- somewhere in the vicinity of 

from 10 to 15 miles per hour. Prior to that testimony, he had 
totally familiarized himself with the scene, observed .the tracks 

of the vehicle on the grass slope, checked for skid or gouge 

marks on both the slope and highway and found none, 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 in Montana relating to the admission of expert testimony 

is set forth in Haynes v. County of Missoula, 163 Mont. 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; State v. Stoddard, 147 Mont. 402, 

412 P.2d 827; State v. Deshner, 158 Mont.188, 489 P.2d 1290; 

8 Am 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 admission of evidence obtained from the gaschromebiography. 

We find no merit in ,issue ,4. 

The objection arose during the testimony of Arnold Melnikoff, 

the forensic chemist and lab supervisor of the criminal investigation department when 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 chambers with the judge, counsel for defendant made 

his objection as to the competency of the evidence in a criminal 

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

- 10 - 
"* * * Certainly I am convinced it was adequate 

after you [Moses] got through with him. I think 

I understand the process but 1 am not sure it makes 

it more competent evidence, but in mind I am much 

more familiar with the process. * * *" 

Defendant's objection can be 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 foundation was laid by the qualifications of 

Melnikoff, the state chemist, and his testimony of how the machine 

was periodically checked and that it was 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., 147 Mont. 98, 410 P.2d 462. Several states, Missouri, 

California, Arkansas and Vermont have allowed its admission in 

criminal cases. State v. Perryman, (Mo.App. 1975), 520 S.W.2d 126; 

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

42 Cal.App.3d 952, 117 Cal.Rptr. 651; State v. Burack, 133 Vt. 

482, 346 A.2d 192, 194; 23 C,J.S., Criminal Law, §858(2), p. 380. 

We adopt the position of the Vermont Court in - Burack --- in allowing 

~he admission of the tests made by a gaschromebiograph. 

This Court has long held it is within the jurisdiction 

OL the trial judge to admit scientific and expert testimony. We 
find no abuse of that discretion here. Graha~n v. Kolandson, 150 

Mont. 270, 435 P.2d 263; Hurley v. Star Transfer Company, 141 

Mont. 176, 376 P.2d 504. 

Issue 5 is directed at alleged repetitious opinion testiniorly of Dr. Pfaff, the forensic pathologist. During direct 

testimony Dr. Pfaff testified that, in his opinion "I believe 

she died as the result of manual strangulation and asphyxia 

therefrom. I I 

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 effort was 

made to establish the cause of death occurring from a steering 

bheel injury. Its purpose was to clarify any question in the 

airids of the jury members as to what was Dr. ~faff's expert 

opinion on the cause of death. We find no error. Moore v. 

rremelling, 100 F. 2d 39 ; 3 Wigmore, Evidence, 5 782 (2) (Chadbourn 

Kev. 1970) ; 4 Jones on Evidence, 5 28: 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 at night and that she would not go on the weekend unless 

her husband drove. The trial court 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 are not present to be examined. 

There are exceptions made for statements and acts which serve 

to explain the act in question 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. 113 A.L.R. 

268 303, $ V(b) (2). 

This Court in Thompson v. Steinkamp, 120 Mont. 475, 481, 

187 P.2d 1018, allowed hearsay testimony to show intent. The 

Court said: 

"' When intent is a material element of a disputed 

fact, declarations of a decedent made after as well 

as before 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 is admissible and is one of the 

state-oE-mind hearsay exceptions. Mutual Life Ins. Co. v. 

Hillmon, 145 U.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 

all fours with the instant case the Supreme Court of Oregon 

in State v. 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 to review only in a case of 

manifest abuse. None is found here. State v. Medicine Bull, Jr., 

ij2 Mont. 34, 445 P.2d 916. 
Issue 7 is directed at hearsay testimony by a witness in a 

telephone conversation with 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. Fischer had given a statement to the 

county attorney that the defendant had been hunting with him on 

the night of November 16. The conversation referred to was 

between James Fischer and the county attorney: 

"Q. Prior to that time, Mr. Fischer, before any 

conversation that we have been refreshing your 

memory on on the statement, did you make any statement to any law enforcement officer about going to 

the Sidney-Wibaux road with the defendant and stopping 

at a pay booth where you made a telephone call on 

November 16, 1974? A. Go over that one more. 

"Q. Prior to the time that -- let me go back a 

minute. After you learned that the defendant had 

been arrested and what he was charged with, what 

did you do? Did you notify anybody? A. Not that 

I know of really. If mean, if I did now you can 

refresh my memory. 

"Q. All right, that very evening, did you call the 

County Attorney? A. I did, 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 question propounded to him of his 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 State v. Crean, 43 Mont. 47, 

59, 114 P. 603, a similar fact,case, this Court said: 

"* * 9~ Our Code * * * provides: ' A witness can testify 

to those facts only which he knows of his own knowledge', 

etc. The term 'hearsay,' as used in the law of evidence, 

signifies a11 evidence which is not founded upon the 

personal knowledge of the witness from whom 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. I I 

See also: McGonigle v. Prudential Insurance Co., 100 Mont. 203, 

Issue 8 relates to charges the state was erroneously permitted to impeach its own witness 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-Wibaux road to cover defendant's travels on the night of 

the death, was a most reluctant witness 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 statement was 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 30 pages of testimony, the trial court declared him a hostile 

witness and allowed impeachment. The state contends that it was 

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 impeach his 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 inconsistent with 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 inconsistent with his present testimony; but 

before this can be done the statements must 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 statements be in writing, they must be shown to 

the witness before any question is put to him concerning 

them. " 

Here, Fischer voluntarily 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, from all the 

testimony he heard and from what he saw of the witness, ruled 

the county attorney was surprised. We find no merit in defendant's 

Issue 8. 

Issue 9 questions whether there was insufficient evidence 

at the close of the state's case to grant a motion to dismiss. 

Defendant directed his motion on an alleged failure of the 

state to establish his 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 there was sufficient circumstantial 

evidence before the jury with (I) the double indemnity insurance, 

(2) the proposal of marriage to the girl £rid,, (3) the alibi 

attempt, and (4) the statement of the defendant made to Mary 

McGonigal on the day of Ellen's funeral. 

Defendant cites authority that there must be substantial 

proof to convict and suspicion is not enough. He relies on State 

v. McCarthy, 36 Mont. 226, 92 P. 521; State v. Powers, 39 Mont. 

259, 102 P. 583; State v. Brower, 55 Mont.349, 117 P. 241; State 

v. Merseal, 167 Mont. 409, 538 P.2d 1366, 32 St.Rep. 823. We 

find the cases cited unrelated to the issue of alibi and have 

little value to the facts here. 

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 fact was 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 his part 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 liability may be inferred. ' " 

See also: 2 Wigmore, 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 find no error in the court's ruling for not 

only was there an attempt to establish an alibi but there was 

testimony that (1) placed defendant at the 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 as near as possible 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 all right. 

"Q. Did you have any reaction to that? A. Yes, I did 

because nobody knew I loaned it. I I 

See: State v. Cor, 144 Mont. 323, 396 P.2d 86. 

Issue 10 contends error because the trial court failed to 

dismiss at the 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 death was caused by 

asphyxiation, due to manual strangulation. 

Defendant cites State v. Allen, 34 Mont. 403, 415, 87 P. 

177, for the rule for admitting circumstantial evidence. There 

the Court speaking to an instruction, noted: 

"* * * Reading this paragraph with 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 could well have satisfied the minds of the jurors "to the exclusion of every reason- 

- able hypothesis." This Court in State v. Fitzpatrick, 163 Mont. 

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 

innocence was excluded. * * *" 

See: State v. Radi, Mont . , 542 P.2d 1206, 32 St.Rep. 

1143; State v. Cor, supra; State v. DeTonancour, 112 Mont. 94, 98, 

112 P.2d 1065; State v. Warrick, 152 Mont. 94, 446 P.2d 916. 

Issue 11 alleges that hearsay and conclusion testimony was 

permitted by the sheriff. Over the objections of the defendant 

the sheriff was 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, prejudice must be shown. State v. Totterdell, 

135 Mont. 56, 336 P.2d 696; State v. Hay, 120 Mont. 573, 194 
~eiendanc's Zssue 12 alleges the sheriff's statements, 

discussed in Issue 11, were repetitious. We find no error. The 

rnatter is discretionary with the trial court and no substantial 

rights of defendant were damaged. 

Issue 13 alleges the court erred in refusing to allow the 

jury tu view a "burn filmt' offered by the defense. Defense called 

ds its witness 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 to put into evidence a film which demonstrated six different car burnings, and a film that had been 

prepared to demonstrate what could happen as far as fires were 

concerned when cars were involved in collisions. Defendant 

argues this evidence was vital to the defense in view of the 

testimony given by state witnesses and that under Montana law 

ic was error not to allow the jury to see these films, citing 

Gobel v. Rinio, 122 Mont. 235, 238, 200 P.2d 700. 

Here, the court viewed the film in chambers and noted 

tha~ all six collisions dealt with rear end collisions where 

the gas tanks were ruptured and noted that there was no rupture 

in the instant case, further that there was 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 in Leary v. Kelly 

!?ipe Co. , Mont . , 549 P.2d 813, 817, 33 St.Rep. 413, 

411, involving the negligent unloading of a Itruck where the 

tlrlal court excluded evidence on a showing of the proper method 

JE loading a truck, and said: 
"These photographs do not deyicc ALLY conditiori 

related to this controversy. The pictured trucks 

are different trucks loaded differently from the 

F-B truck and trailer involved in this case. We 

find no error in excluding them." 

Here, the films involved experiments with different and smaller 

vehicles in crash situations entirely different than the facts 

here. Leary controls and as noted in Gobel, cited by defendant: 

"This court is committed to the view that the trial 

court has a wide discretion in admitting 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 is perpetrated 

by any kind of willful, deliberate and premeditated 

killing is committed purposely or knowingly and is 

deli6erate homicide. 

"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 to kill 

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. I I 

It is defendant's position that before he can be convicted 

of this crime the state must beyond a reasonable doubt satisfy 

its burden 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 in Morissette 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) is eliminated. 

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 instruction No. 14 was error. 
The statute involved ,is section 94-5-102, R.C.M. 1947, 

the pertinent part of which 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 Commission Comment states: 

"Section 94-5-102 relates only to conduct which 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 general principles that shall apply when the definitions 

of a particular offense are ambiguous. The culpability requirements adhere to familiar concepts, purposely, knowingly. 

Upon the whole it is the person who means to do the thing that 

constitutes a crime , knows he is doing it, and knows that there 

is a substantial and unjustifiable risk in doing it, whose 

conduct warrants condemnation of the kind from which conviction 

results. 

The problem of scienter, guilty knowledge, goes to the 

question of culpability generally and has been 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 determining whether the statute is 

vague. The United States Supreme Court has held in a series 

of cases that a statute will not be evaluated on its face, but ... , .. 

- 21 - 
only in the context with which a defendant is,charged. United 

States v. Petrillo, 332 U.S. 1, 91 L ed 1877, 67 S.Ct. 1538. 

It has also looked into the requirement of scienter in the 

statutory definition of the crime in words like "~illfully'~, 

"intentionally1' and "knowingly" as overcoming the vice of vagueness. Boyce Motor Lines v. United States, 342 U.S. 337, 91 L 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 in the use of the new language of the statute "purposely" 

and "knowingly". The court's given Instruction No. 17 defined both 

I I purposely" and "knowingly" in terms 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 is clear from 

the Commission Comment that it was the legislative intent to 

replace such terms as "deliberately". 

This Court in State v. Klein, Mont . , 547 P.2d 

75,78, 33 St.Rep. 283,288, spoke to this issue. In Klein, a 

robbery case, it was alleged the trial court committed error in 

refusing defendant's instruction defining "feloniously". There 

we referred to the Annotator'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 in the 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 instruction No. 

17, defining both "purposely" and "knowingly". We find no error. 

Judgment of the trial court is affirmed. 

We Concur: 

,----7