No. 13855 

IN THE SUPREME COURT OF THE STATE OFBONTANA 

1977 

STATE ex rel. JOHN G. WINSTON, 

County Attorney, 

Plaintiff and Appellant, 

THE DISTRICT COURT OF THE SECOND JUDICIAL 

DISTRICT OF THE STATE OF MONTANA, IN AND 

FOR THE COUNTY OF BUTTE-SILVER BOW, AND THE 

HONORABLE JAMES D. FREEBOURN, PRESIDING JUDGE, 

Respondent. 

ORIGINAL PROCEEDING: 

Counsel of Record: 

For Appellant: 

Hon. Mike Greely, Attorney General, Helena, 

Montana 

John G. Winston, County Attorney, Butte, Montana 

Craig Phillips argued, Deputy County Attorney, 

Butte, Montana 

For Respondent: 

Henningsen, Purcell and Genzberger, Butte, Montana 

Rex F. Henningsen argued and John Jardine argued, 

Butte, Montana 

Submitted: June 22, 1977 

Decided: ,)UL 26 19a 

Filed: J& 36 1977 

mfi)hfk, Clerk 
No. 13844 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

STATE OF MONTANA, ex rel. THEODORE NELSON, 

Relator, 

-vsTHE DISTRICT COURT OF THE SECOND JUDICIAL 

DISTRICT OF THE STATE OF MONTANA, IN AND FOR 

THE COUNTY OF SILVER BOW, AND THE HON. JAMES 

D. FREEBOURN, PRESIDING JUDGE, 

Respondent. 

ORIGINAL PROCEEDING: 

Counsel of Record: 

For Relator : 

Henningsen, Purcell & Genzberger, Butte, Montana 

Rex F. Henningsen argued and John Jardine argued, 

Butte, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

John G. Winston, County Attorney, Butte, Montana 

Craig Phillips argued, Deputy County Attorney, 

Butte, Montana 

Filed: 

Submitted: June 22, 1977 

Decided: Jf# 28 
Mr. Justice John Conway Harrison delivered the Opinion of the Court. 

Defendant Theodore Nelson, charged with the crime of 

deliberate homicide, and the state of Montana, by John G. Winston, 

County Attorney, Silver Bow County, petition for separate writs 

of supervisory control. Because petitioners are adversaries in 

the same criminal proceeding, the issues raised by these petitions 

were combined for argument before this Court and both will be 

decided pursuant to this opinion. 

On January 4, 1977 an Information was filed in the 

district court, Silver Bow County, charging defendant with 

deliberate homicide under section 94-5-102(1)(a), R.C.M. 1947. 

Defendant plead not guilty and filed a timely notice of intent 

to rely on the affirmative defense of mental disease or defect. 

He was admitted to bail after examination by William N. Alexander, 

M.D., whom defendant had hired to conduct such examination. On 

January 17, 1977, pursuant to stipulation of counsel, the district 

court ordered defendant be admitted to Warm Springs State Hospital 

for psychiatric examination and evaluation in accordance with 

section 95-505, R.C.M. 1947. Defendant was examined again by 

Dr. Alexander in his capacity as Clinical Director and Chief of 

Forensic Medicine at the Montana State Hospital at Warm Springs. 

Dr. Alexander submitted his report to the court on April 6, 1977. 

The report stated, in pertinent part: 

"Patient is aware of the nature of the charges 

against him and is able to assist his lawyer in 

his own defense. He is also able to appreciate 

the criminality of the charges. At the time of 

the incident which led to the present charges it 

is felt that the patient was unable to conduct 

himself according to the requirements of the law 

because he had reached the climax of a severe 

adjustment reaction which had temporarily assumed 

psychotic proportions. At that point he was 

unable to have a particular state of mind which 

is an element of the offense charged.* * *" 
Upon receipt of this report defendant filed a motion for 

acquittal by reason of mental disease or defect, and a hearing 

was held. At the hearing Dr. Alexander testified in his opinion 

defendant was unable to appreciate the criminality of his conduct 

or to conform his conduct to the requirements of law at the time 

of the killing. The state called no rebuttal witnesses, but 

cross-examined Dr. Alexander extensively regarding the factual 

basis for his diagnosis and the subjective nature of a psychological examination. Dr. Alexander stated his diagnosis was based 

upon the facts surrounding the incident as related to him by 

defendant, and while he thought defendant was telling the truth, 

his diagnosis could change if the facts were not as defendant 

claimed them to be. He also stated it was possible, though 

unlikely, that his opinion would be disputed by his colleagues. 

The district court found: 

"That the question of whether defendant was aware 

or unaware of his actions or whether he was able 

or unable to have a particular state of mind at 

the designated moment is disputable". 

The court denied the motion for acquittal. 

Did the district court err in denying defendant's motion 

for acquittal? Defendant argues that under section 95-503(a), 

R.C.M. 1947, he need only prove mental disease or defect excluding 

responsibility by a preponderance of the evidence, and the only 

evidence before the court, the testimony of Dr. Alexander, clearly 

establishes this proof. 

The structure for the procedure in question is set out in 

section 95-507(1), R.C.M. 1947: 

"If the report filed under section 95-505 finds that 

the defendant at the time of the criminal conduct 

charged suffered from a mental disease or defect 

which rendered him unable to appreciate the criminality 

of his conduct or to conform his conduct to the 

requirements of law, and the court, after a hearing 

if a hearing is requested by the attorney prosecuting 

or the defendant, is satisfied that the mental disease 
or defect was sufficient to exclude responsibility, 

the court on motion of the defendant shall enter 

judgment of acquittal on the ground of mental disease 

or defect excluding responsibility." 

This Court has previously discussed the purpose of 

section 95-507(1). In State ex rel. Krutzfeldt v. District Court, 

163 Mont. 164, 170, 515 P.2d 1312, the Court noted: 

"* * * the Revised Commission Comment to section 95- 

507, R.C.M. 1947, in regard to subdivision (a), 

states in part: 

"'Under subdivision (a) in cases of extreme 

mental disease or defect where the exclusion 

of responsibility is clear, trial can be 

avoided and the defendant immediately committed as irresponsible.' 

"That comment makes it clear that if, in the 

judge's opinion and after a hearing if requested by 

either attorney, a defendant was clearly suffering 

from mental disease at the time of the crime then 

the judge can acquit the defendant and have him 

committed to a state institution forthwith. The 

purpose is plain--to avoid a costly trial where the 

mental defect is plain and obvious.* * *" 

At this stage of the process, the^ the question is not one 

of the preponderance of the evidence, but whether the exclusion of 

criminal responsibility due to mental disease or defect is "plain 

and obvious". If it is not plain and obvious, a trial should 

be conducted and the trier of fact can determine the preponderance 

of the evidence. The summary procedure outlined by section 95-507 

was never designed to replace the trial where the issue of criminal 

responsibility is disputable. In Krutzfeldt this Court held this 

procedure does not preclude a defendant from raising the defense 

of mental disease or defect at trial. Such a holding would be 

unnecessary if the standard of proof at the hearing was equivalent 

to the standard at trial. 

Defendant argues he is entitled to acquittal as a matter 

of law under the authority of State ex rel. Main v. District 

Court, 164 Mont. 501, 525 P.2d 28. Main is deceptively similar 

to the instant case, but there are critical differences. In Main, 
relator filed a motion to dismiss on the grounds of mental disease 

or defect and a hearing was held under section 95-507, R.C.M. 1947. 

Dr. M. F. Gracia testified relator was not responsible at the time 

of the criminal conduct charged. The only doubt was cast by 

another psychiatrist, Dr. Moisey, who testified that, in his 

opinion, relator was not so mentally disturbed he did not know what 

he was doing. However, he admitted he was unable to determine 

relator's state of mind at the time of the incident, and this 

Court held Dr. Moisey's testimony was thereby rendered incompetent 

and thus raised no factual issue. There was no doubt cast upon 

the testimony of Dr. Gracia, except for the incompetent testimony 

of Dr. Moisey, so relator was entitled to an acquittal as a matter 

of law. We noted the persuasive basis for Dr. Gracia's opinion 

in Main: 

"* * * Dr. Gracia based his opinion on (1) an 

examination of relator several weeks after the 

alleged crime; (2) upon extensive psychological 

testing and medical examination including 

observation by staff personnel every day for 

several years; (3) upon the study of relator's 

social history and history of mental illness 

dating back to 1962; and (4) the doctor's 

personal contact with relator beginning in 

1966." 164 Mont. 509 

In the instant case, by contrast, Dr. Alexander based his 

opinion on his examination of defendant which lasted six to 

seven hours in total. While we do not doubt this is adequate 

for a complete and thorough psychiatric examination, it is a 

fact Dr. Alexander's findings were largely based on the facts 

of the occurrence as related to him by defendant. The alleged 

temporary insanity was admittedly of short duration, and Dr. 

Alexander testified his diagnosis could change if the facts were 

not in accord with defendant's version of the incident. For 

example, this colloquy occurred between the county attorney and 

Dr. Alexander on cross-examination: 
"Q. But the question is anyway, the question: 

Your opinion would change if you knew he had a 

loaded gun before he got there? A. Yes, sir. 

"Q. And he's the only one that told you that. 

You don't know the facts of that do you? A. I 

do not." 

We did not hold in Main, and do not intend to hold, that 

the district judge is absolutely bound by the opinion of an expert 

testifying on the ultimate issue of mental disease or defect. We 

do not believe the statute intended to make the examining psychiatrist into the trier of fact. While State v. Taylor, 158 Mont. 

323, 335, 491 P.2d 877, dealt with the release of a defendant 

from commitment after his sanity was allegedly restored, the 

reasoning there with regard to the opinion testimony of experts 

is applicable: 

"While the determination of defendant's mental 

condition and his expected behavior, if released, 

must be on the basis of expert testimony, the 

trial court could weigh such opinion evidence but 

he is not bound by it. He could reject it if, 

in his judgment, the reasons given for the testimoney were unsound." 158 Mont. 335 

In the instant case, while the opinion of Dr. Alexander is 

uncontradicted by any other testimony, the district judge could 

properly have found his opinion was based upon determinations of 

fact which were for a jury to determine. Therefore, the existence 

of mental defect at the time of the incident was not so "plain 

and obvious" as to require an acquittal at this stage of the 

proceeding. Accordingly,the district court's denial of defendant's 

motion for acquittal is affirmed. 

The state in its application for a writ of supervisory 

control alleges that the trial court abused its discretion by its 

denial of the state's motions for: (1) The examination of defendant 

by another psychiatrist; (2) the listing of additional witnesses 

on the Information; and (3) a continuance until July 15, 1977, due 

to the unavailability of key witnesses. The continuance issue 
would appear to be moot at this time and will not be discussed. 

Defendant argues the issues raised by the state do not 

fall within section 95-2403, R.C.M. 1947, governing the scope of 

appeal by the state in a criminal case. An application for a writ 

of supervisory control before this Court is an original proceeding 

and not an appeal. Jurisdiction is not denied by the fact the 

relator has no right to an appeal. Defendant's jurisdictional 

argument is without merit. 

The state seeks an examination of defendant by another 

qualified psychiatrist under the authority of section 95-507(2), 

R.C.M. 1947: 

"When either the defendant or the state wishes the 

defendant to be examined by a qualified psychiatrist 

or other expert, selected by the one proposing the 

examination, the examiner shall be permitted to 

have reasonable access to the defendant for the 

purpose of the examination." 

This is expanded upon by the Revised Commission Comment to the 

original section 95-507: 

"Subdivision (b) [now subdivision (2) ] allows both 

the prosecution and defense access to the defendant 

for purposes of psychiatric examinations. The 

sheriff or warden must make the defendant accessible 

for such examinations. The number of times the 

defendant must be made accessible for such examinations will rest in the discretion of the court." 

Despite the fact this statute expressly gives the prosecution or the defense the right to an examination of defendant, defense 

counsel argue the title of section 95-507 restricts the benefit 

of the statute to defendant. The title is: 

"Determination of irresponsibility on basis of report -- 

access to defendant by psychiatrist of his own choice -- 

form of expert testimony when the issue of responsibility 

is tried." 

Defendant's imaginative argument is that allowing a psychiatrist of 

the state's choice to have access to defendant would violate Art. V, 

section 11(3), 1972 Montana Constitution, which states: 
"Each bill, except general appropriation bills and 

bills for the codification and general revision of 

the laws, shall contain only one subject, clearly 

expressed in its title. If any subject is embraced 

in any act and is not expressed in the title, only 

so much of the act not so expressed is void." 

This provision obviously refers to acts or bills, but does not 

refer to sections within each act. The title of the act creating 

section 95-507 is contained in the Laws of 1967, Chap. 196, and 

states: 

"An Act Creating a Montana Code of Criminal Procedure 

to Codify and Generally Revise the Statutes Which 

Govern Court Procedures in Criminal Matters." 

Section 95-507 was amended by the Laws of 1974, Chap. 120, entitled: 

"AN ACT FOR THE CODIFICATION AND GENERAL REVISION 

OF THE LAWS RELATING TO THE DEPARTMENT OF INSTITUTIONS." 

Patently these acts were codifications and general revisions and 

possessed adequate titles. The constitutional provision requiring 

acts to have complete titles has never been applied to the sections within each act, and defendant has cited no authority. 

Alternatively, defendant argues section 95-507(2) allows 

not a substantive psychiatric examination but merely an inquiry 

into the procedure and credibility of the psychiatrist who reported 

under section 95-505. The plain language of section 95-507(2) and 

the Revised Commission Comment however, refer to a psychiatric 

examination of the defendant. The purpose of subsection (2) becomes clear in subsection (3) of section 95-507, which states in 

pertinent part: 

"* * * both the prosecution and the defense may summon 

any other qualified psychiatrist [other than the 

reporting psychiatrist who was appointed under section 

95-5051 or other expert to testify, but no one who 

has not examined the defendant is competent to testify 

to an expert opinion with respect to the mental condition or responsibility of the defendant, as distinguished from the validity of the procedure followed 

by, or the general scientific propositions stated by 

another witness." 

Clearly, any psychiatrist or other expert may testify regarding 

defendant's mental condition or responsibility provided the 
psychiatrist has examined the defendant. Subsection (2) allows 

for such an examination by either the prosecution or the defense. 

The remaining question is whether the trial court abused 

its discretion in refusing to allow an examination of defendant by 

a psychiatrist other than Dr. Alexander, since the number of 

additional examinations allowed under section 95-507 is within 

the discretion of the trial court. Revised Commission Comment, 

section 95-507, R.C.M. 1947. There are two main considerations: 

1. Prior to examining defendant pursuant to stipulation 

of counsel, Dr. Alexander was hired by defendant to examine him 

for purposes of bail. This at least raises a conflict of interest. 

2. The district court found Dr. Alexander's conclusions 

to be "disputable". If the conclusions of the only expert who has 

examined defendant are found to be disputable, it would appear to 

be sensible to allow at least one other psychiatrist to examine and 

either confirm or dispute the findings of the initial expert. 

In light of these circumstances, we hold the district 

court abused its discretion in refusing to allow access to the 

defendant by a psychiatrist, in addition to Dr. Alexander. 

The state also seeks reversal of the denial by the district 

court of the state's motion, made six days before the trial was to 

commence, to add to the Information the names of approximately 

twenty witnesses. The state alleges these witnesses were discovered after the original Information was filed and are necessary 

to prove the state's case in light of defendant's affirmative 

defense of mental disease or defect. 

Section 95-1503(d), R.C.M. 1947 states: 

"If the charge is by information or indictment, it 

shall include endorsed thereon, the names of the 

witnesses for the state, if known." 

Also applicable is section 95-1803(a) (1) (2), R.C.M. 1947: 

"In all criminal cases originally triable in district court the following rules shall apply: 
" (a) List of Witnesses: 

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

prevent surprise, the prosecution shall furnish to 

the defendant and file with the clerk of the court 

at the time of arraignment, a list of witnesses 

intended to be called by the prosecution. The 

prosecution may, any time after arraignment, add to 

the list the names of any additional witnesses, upon 

a showing of good cause. The list shall include the 

names and addresses of the witnesses. 

" (2) The requirement of subsection (a) (1) , of 

this section, shall not apply to rebuttal witnesses." 

The proper procedure to be followed when the state moves to 

list additional witnesses is set out in State v. Klein, Mont . 

"The court should first determine whether the need 

for the additional witnesses and the reason for their 

not being disclosed earlier is a 'substantial reason'. 

It should then determine whether there is prejudice 

based on surprise and whether this surprise can be 

overcome by the granting of a continuance. If the 

surprise element can be overcome by a continuance, 

then the witnesses should be endorsed and the 

continuance granted. The spirit and intent of the 

law is that the names and addresses of potential 

witnesses should be disclosed as soon as they are 

known. " 

Here, the state claims and the defense does not deny the witnesses 

are material to the question of defendant's responsibility and 

they were unknown to the state at the time the Information was 

filed. The defense claims prejudice in that on the one hand, it 

would have no time to prepare for trial if the witnesses were 

added, and on the other hand, if a continuance were granted, defendant would be prejudiced by an unnecessary delay. Defendant cannot 

have it both ways. If good cause to list the additional witnesses 

is shown, as here, and if any prejudice caused by defendant's 

surprise can be overcome by the granting of a continuance, the 

additional witnesses should be listed. The district court's denial 

of the state's motion to list additional witnesses is reversed. 

Finally, the state asks this Court, to rule on an issue 

collateral to those in its petition for a writ of supervisory 
control for the reason that the issue might arise at trial, if 

the state was denied a psychiatric examination of defendant. This 

issue is not properly before the Court and the state's motion is 

denied. 

In summary, the district court's denial of defendant's 

motion for acquittal is affirmed. The district court's denial of 

the state's motions for a psychiatric examination and to list additional witnesses on the Information is reversed. The cause is 

remanded to the district court with instructions to allow for a 

psychiatric examination of defendant and to allow the listing of 

the additional witnesses on the Information pursuant to the state's 

motion. 

n 

Justices