*1
Rеspondent,
MONTANA,
The STATE OF
Plaintiff
Appellant.
COLEMAN,
DEWEY EUGENE
No. 13296.
March
1978.
Submitted
April
1978.
Decided
May
Rehearing Denied
(1) *7 Moses, Tolliver'& Charles F..Moses Wright, for argued, Billings, defendant and appellant. Gen., Helena,
Mike Greely, Atty. Forsythe argued, County John Overfelt, Lee Atty., Forsyth, for and Billings, plaintiff respondent. HASWELL, MR. CHIEF delivered the of the opinion Court. Court, from the final of the District appeals judgment Rosebud a trial. Defendant was convicted County, following jury homicide, of deliberate and sexual aggravated inter- kidnapping, consent, course without inflicting bodily injury. 4, 1974, Harstad,
On Lee of July Peggy years age, disap- Rosebud, Montana. to from Harlowton while alone driving peared Melstone, at 9:00 that p.m. night last alive around She was seen 5, 1974, a few miles of was within her car found Montana. On July 7, 1974, home, a ranch hand discovered her near Rosebud. On July a inside to Lee Harstad a and articles Peggy other purse belonging car. west of abandoned ten miles her culvert approximately an informed elderly In investigation, couple the developing a a man and that had seen black sheriff Rosebud County they of and Roundup Forsyth, 4 between hitchhiking July white man on driving Lee Harstad was at the time of day Peggy Montana about two men were identified those towns. these Subsequently, between man, Coleman, defendant, a and black Eugene as the Dewey Nank, Robert Dennis a white man. 9, 1974, sheriff’s County of the Rosebud
On July representatives Sheridan, office Veteran’s Administration Hospital went were, and these men them. Defendant question where Wyoming, Lee Harstad’s disap- Nank admitted in the area of being Peggy 4th. on Forsyth night July pearance hitchhiking through a On the F.B.I. August laboratory provided positive a lift taken from the exterior of comparison between fingerprint a The F.B.I. also Harstad vehicle and of Nank. sample fingerprint of defendant fingerprint between reported positive comparison In an inter- and a from found in Harstad’s lift taken paper purse. 1, 1974, ad- view Nank August with F.B.I. on agents he on road. When mitted the Harstad vehicle abandoned seeing defendant stated was asked about his in the purse, fingerprint hitchhiking. he found a the road were purse they along were sent were taken in the Harstad vehicle. These Vacuumings on laboratory They reported, September the F.B.I. analysis. 13, 1974, the loose hairs head hairs were found in that Negroid addition, hairs front In two Negroid pubic taken from the seat. were in the vacuumings. found 29, 1974, Lee Harstad
On August decomposed body Peggy River, west just on bank of the found the north Yellowstone Pfaff, identified Montana. A forensic Dr. Forsyth, pathologist, John *8 the remains as Lee Peggy Harstad the use of dental by charts. remains, Because of the state of of her decomposition Dr. Pfaff could not determine a cause of death. Sheridan,
Since their in original the questioning Wyoming, Boise, Idaho, defendant and Nank had moved to sometime in аuthorities, At the August. request Rosebud the County Boise police had these men under kept surveillance. 16, 1974,
On October the then Rosebud County attorney, William Meisburger, and Undersheriff Graham Makin went to Boise, Idaho to further interrogate defendant and Nank. The next 17, 1974, October day, and Meisburger Makin went to see the Boise talked police. They to Detective Brake of Boise police about bringing defendant and Nank station for police informed questioning. They him of all the evidence had con- they necting defendant and Nank with the death of Peggy Lee Brake, Harstad. Detective since he had been some of the doing men, surveillance of the two knew about most of the evidence ex- about her cept body being found. After with discussing case Makin, and Detective Meisburger Brake and a Detective Crowell went to the apartment where these two men were There living. defendant and Nank were under placed arrest without a warrant for deliberate homicide in the death of Lee Harstad. Peggy
After their arrest and in being placed arrest warrants custody, and were issued a complaints justice of for Rosebud peace County. warrants and defendant and Nank complaint charged with deliberate homicide. arrest, their defendant and Nank were advised of their
Upon The defendant refused to waive his Nank did waive rights. rights. and, hours, his after for a few full rights being a custody gаve confession, confession. In his and the he himself defend- implicated and they ant. He confessed murdered kidnapped, raped, Peggy Lee Harstad. Nank consented to search of their apartment — car for the murder he said were used in the crime weapons A warrant their helmets and search namely, motorcycle rope. was obtained and the helmets recovered. rope file an Information for leave to motion *9 On October Court, was and requested granted. Rosebud County, in the District I, with three counts: Count the defendant charged The Information homicide; II, and Count aggravated kidnapping; Count deliberate consent, III, injury. inflicting bodily intercourse without sexual not to counts. guilty all plead 30, 1975, all moved to confes- suppress January On evidence, sions, seized. hear- suppression and A illegally statement of the trial Following disqualification judge by held. was ing to a second judge, and of the case another the State the assignment was and defendant’s motion denied. held suppression hearing 7, 1975, a bargaining into written plea On the State entered May of the agreement, with Nank. Under the terms Robert agreement and solicitation Nank to to deliberate homicide agreed plead guilty consent, and further agreed to commit sexual intercourse without for the dismissal of ag- to at defendant’s trial in return testify grivated charge. kidnapping 19, 1975, then court counsеl appointed
On defendant’s May oral a in return for made an offer of conditional plea guilty 23, 1975, On charge. May dismissal of aggravated kidnapping to a a written offer of conditional plea guilty presented offer, his this on in- maintaining court. In defendant insisted a with defendant accept guilty nocence. State refused to plea his innocence. maintaining counsel, defendant’s court change appointed
Following to Custer and final- of venue from Rosebud change County County and and mo- Yellowstone other County, pretrial proceedings ly tions, trial on October defendant’s commenced Yellowstone County. trial, of fact as and statements opposite
At Coleman Nank related with Miss Harstad. to their involvement between he were traveling Nank testified that and Coleman ran they on when motorcycle and U.S. 12 on his Forsyth Roundup car He said that one stop- out of then tried to hitchhike. They gas. a ride. refused to them couple give but the ped, elderly Nank stated that Miss Harstad and them a stopped gave ride. He road, testified that while driving down he reached over and turned the her on car off and key steered the car to He stated stop. seat, off, that he in the back her put girl took clothes and at- her, failed, tempted but while rape Coleman drove the car. Nank testified that Coleman then her while he held raped her foоt, that he had a testifying foot fetish. Nank said that then they went down by Yellowstone River. He carried the now girl, fully clothed, shoulder, over his while Coleman came from behind his silver swinging motorcycle helmet the chin and crash- strap ited her skull. Nank said against that Coleman then took a yellow and nylon rope attempted strangle her asked Nank to help, he but did not her. strangle Then took her down they to the river dead, her into it. As she was not dumped Nank held her head *10 under water while Coleman held her legs.
Nank then testified that drove her car back they toward Forsyth until it ran out of gas. removed They some from the car things and walked into Nank left in Forsyth. Coleman Forsyth, hitchhiked with gas to and motorcycle, returned to Coleman. pick up They then to went the V.A. in Hospital Sheridan where until they stayed to going Boise. Coleman, hand, on the other testified that after the ride, ran of and
motorcycle out were refused a Nank gas they sug- that because Coleman was black and there were few gested blacks area, in that he should alone. Coleman testified that go get gas while he was off the Nank a ride. sitting highway smoking, got hours, and,
After several Nank returned in a car to according Coleman, wet, Nank was and Coleman upset said acting strange. he was to told their off the and get things motorcycle in car. get car, When were both in the Nank advised they Coleman he had killed a girl. The car ran out of and started to walk. gas, they Nank Coleman to rid gave purse carry later told him to of get it. Coleman threw the into a culvert. had purse then breakfast They and Nank left Forsyth, Coleman while he went to the motor- get Coleman also cycle. testified that Nank threatened him if he ever disclosed facts. any these returned guilty on November 1975.
The trial ended the court counts. On November verdicts on all three (deliberate I to 100 on Coleman Count years sentenced defendant homicide); on II kidnap- death Count by hanging (aggravated to (sexual con- intercourse without on Count III years ping); new trial Defendant’s motion sent inflicting bodily injury). this ap- has been granted pending was denied. A execution stay peal. ' We will of error on appeal. Defendant raises specifications of the issue within the broader context discuss these errors alleged which relate. they this We will restate the issues in manner: as the death defendant’s sentence penalty, 1. Whether imposed is constitutional? for conviction on Count II for 40 should have been sentenced years 2. Whether defendant under III? on his conviction Count evidence obtain-
3. defendant’s motion to suppress Whether his have been ed after arrest should granted? to plead defendant’s conditional offer should guilty
4. Whether been have accepted? counts of the
5. defendant’s motion dismiss three Whether and whether the Informa- Information should have been granted been defendant’s of a entry tion should have amended after plea? 6. defendant’s second should have been challenge Whether sustained? the defendant’s cross-examination of scope Whether witnesses was limited? improperly
State’s *11 a witness should have been 8. Whether Nank’s as competency to his testimony? determined prior dismiss, close motion to at the
9. Whether defendant’s case, testimony lack of corroboration of Nank’s should State’s been have granted? allowed testify
10: some of the State’s witnesses were Whether to the of defendant? prejudice improperly 11. Whether District Court instructed the properly jury? 12. Whether certain State’s exhibits were admissible and whether defendant’s exhibits were refused? properly
13. Whether defendant’s for a motion new trial should have been granted?
Issue Defendant
his death sentence
argues
cannot stand
that
because it is unconstitutional. He raises two claims. The first is that
jurors
two
were excused for
cause
District
based
by
Court
on
their views of capital
that this is
punishment.
argues
Illinois, (1968),
violation of
Witherspoon
391 U.S.
88 S.Ct.
1770,
carried out if the that or recommended it was chosen imposed jurors for cause excluding prospective simply because they voiced general the death There objеctions is an penalty. excep tion to the rule. It that if provides is prospective juror irrevocably committed to voting conviction because against possibility of a death he be penalty, may excluded for cause properly case, sentence of death out. carried In this that argues makes his death sentence invalid as two Witherspoon were jurors excluded. We improperly disagree.
We hold that the two in this case were prospective jurors excluded rule under to the properly exception general One stated no how juror that matter Witherspoon. strong was, evidence of he could vote if a not to convict death guilt penal could be The other stated that she felt she could imposed. juror ty live if not with herself she was on a that convicted a person Thus, received a death sentence as a result. both of person were jurors irrevocably these committed to con voting against viction because defendant could receive the death Their penalty. excused for cause because of their irrevocable commitment being does the death not invalidate defendant’s death against penalty sentence.
15 trial, the statute penalty the defendant’s death At the time of 94-5-304, was section aggravated kidnapping Montana for read: It R.C.M.1947. conviction following the sentеnce of death impose court shall
“A as the the victim is dead if it finds that of aggravated kidnapping conduct.” of the criminal result statute. was to death under this sentenced 1977 session of the state the statute repealed by
This 16, 338, The Montana 1977. Laws of Section legislature. Chapter 95-2206.6 are codified as sections penalty new death statutes 95-2206.15, Montana’s constitutionality pre R.C.M. 1947. this statutes is not involved in case. sent death penalty 94-5-304, 1975, R.C.M.1947, is a it existed in man- Section as In the of recent U.S. light Supreme death statute. datory penalty face, decisions, its is unconstitutional on Court this statute cannot stand. defendant’s death sentence thereunder time, 1976, Court, for the first In United States Supreme death statutes. mandatory penalty ruled on the constitutionality 2978, 280, Carolina, (1976), 428 96 S.Ct. v. U.S. Woodson North was North Carolina’s 49 944. The statute before the Court L.Ed.2d all death sentence for persons death statute. It provided penalty statute holding In this unconstitu- convicted murder. first-degree tional, the Court said: Supreme “* * * death statute for Carolina’s mandatory penalty North from stand- contemporary departs markedly murder first-degree of death and thus of the ards the imposition punishment respecting and Fourteenth with the Eighth be consistently cannot applied ‘be ex- requirement power punish Amendments’ State’s within,the v. civilized standards.’” Woodson limits of ercised 301, 2990, Carolina, 96 at from quoting 428 at S.Ct. North U.S. 590, 86, Dulles, (1958) L.Ed.2d 630. 356 78 S.Ct. 2 U.S. v. Trop cases, held Court also In two later United States Supreme death statutes unconstitutional. Coker mandatory penalty 982; 2861, (1977), 53 L.Ed.2d 433 U.S. 97 S.Ct. Georgia, Louisiana, (1977), 431 U.S. S.Ct. Roberts v.
L.Ed.2d. 637. In Coker Court held unconstitutional a Georgia statute of the death requiring imposition sentence for rape, when one more specified aggravating circumstances were found to be In present. Roberts the Court held unconstitutional a Loui-
siana statute of a death requiring imposition sentence kill- *13 statute, officer. ing peace the Louisiana Concerning the Court said: “* * * it is essential that the capital decision allow for sentencing consideration of what ever mitigating circumstances be rele- may vant to either the particular offender or the particular offense. Because the Louisiana statute does not allow consideration of par- factors, ticularized it is mitigating unconstitutional.” v. Roberts Louisiana, 97 U.W. at 1996. problems
The same that in existed the statutes declared un Woodson, Coker, constitutional in are Roberts in the present statute under which was defendant sentenced in 1975. It is man statute, finds, datory death statute. penalty Under this the it court case, as did it in this that the victim of an aggravated kidnapping crime, died as a result of the the convicted defendant must be sentenced to is die. There no for the trial to provision court con sider any mitigating circumstances. It to allows the court only determine аggravating circumstance of death. This is not con stitutionally permissible.
To have valid constitutionally death the United States penalty, Court has established Supreme certain necessary procedures. See: (1976), 153, 2909, v. 428 96 Gregg Georgia, U.S. S.Ct. 49 859; Florida, (1976), 242, L.Ed.2d. v. 428 96 U.S. S.Ct. Proffitt 2960, 913; Texas, (1976), 49 262, L.Ed.2d 428 U.S. 96 Jurek 2950, S.Ct. 49 L.Ed.2d. 929. None of those required procedures are in Montana’s death present statute as it existed in penalty Thus, nor were otherwise they in this case. provided defendant’s death sentence cannot stand. III,
Issue 2. Defendant was sentenced to Count sex- years'for consent, ual intercourse without bodily injury. This inflicting 94-5-503(3), sentence to section imposed pursuant R.C.M.1947, which provides: less is 3 the victim is than 16 old and the offender years
“If than if the more older the victim or offender inflicts years bodily in the course of sexual intercourse injury upon anyone committing consent, he without shall be the state imprisoned prison any than 2 than 40 as years term of not less or more except pro- years, vided in 95-2206.18.” that there was insufficient evidence to argues support verdict that defendant inflicted bodily injury upon Peggy
Lee Harstad in course of sexual intercourse without committing so, is consent. Since that sentence that his 40 argues year is We erroneous. agree. is well standard used to measure determinations (1977), state. 173 Mont.
settled in this State v. Pascgo, fact determined by P.2d The rule is must be questions evidence, this minimum of legal given required will not its for that of judgment jury. Court on review substitute Merseal, (1974), 1364. The 538 P.2d. State v. there is substantial evidence evidence is examined determine if in the most favorable the conviction when viewed light support *14 Merseal, v. the State supra; state. State v. State Pascgo, supra; Farnes, (1976), stan these 558 P.2d Applying here, the verdict that evidence to dards we find insufficient support committing the inflicted in the course of bodily injury sexual intercourse.
The evidence shows did inter- that defendant commit sexual course without consent. that so. Nank testified the defendant did However, hairs the car. did were found in Nank not Negrod pubic that defendant Lee bodily inflicted testify injury upon Peggy intercourse. Dr. Harstad while in sexual engaged pathologist, Pfaff, he found no in- testified that evidence of specifically physical Lee Harstad his examination of the Peggy during body. Lee that Peggy evidence does show that the argues
The State This, re- the fits say, her rape. they was killed following Harstad R.C.M.1947, 94-5-503(3), injury bodily section of quirements sus- To We are unconvinced. rape. in the course of was inflicted consent, tain a conviction for sexual intercourse without inflicting there must be a bodily injury, as that term showing bodily injury code, 94-2-101(5), is defined in the criminal section R.C.M.1947. That section reads:
“ illness, means ‘Bodily injury’ physical pain, any impairment condition and includes mental physical illness or impairment.” There is no evidence that the defendant inflicted showing any Thus, such on Lee injuries Harstad. the verdict of the Peggy that defendant inflicted in the course bodily injury committing sexual intercourse without consent is not supported by any evidence and cannot stand. Defendant should have been properly R.C.M.1947, 94-5-503(2), sentenced under section for committing sexual intercourse without consent. trial,
Issue 3. Prior to defendant moved to have suppressed evidence in Idaho—the helmets and motorcycle He rope. argues that his arrest without a warrant was unlawful because of a lack of probable cause to arrest. He contends that the State did not have cause to arrest him until probable aftér Nank’s confession several hours after his arrest. He further claims that Nank’s constitutional were violated rights because Nank’s confession and consent search were The District Court refused to involuntary. suppress evidence. Defendant maintains this was reversible error and raises the same on that he did in arguments hear- appeal suppression ing.
We find there was cause to arrest defendant probable without a warrant. The anof arrest is determined legality law of the where the arrest was effected. jurisdiction Miller v. States, (1958), United U.S. S.Ct. 2 L.Ed.2d case, Idaho, 1332. In this since the arrest took in Idaho law place must be to determine the of the arrest. Detective applied validity Brake arrested defendant and Nank in Boise without a warrant for statute, a deliberate homicide in Montana. Idaho’s arrest general I.C., 19-603(3), section provides pertinent part: *15 “A officer make an arrest in obedience to a warrant peace may him, warrant, delivered to a a or without arrest may, person: and he has committed a has in fact been “* * *“3. When felony have commit arrested to the person for believing reasonable.cause ted it.” determining discloses no case of Idaho law
An examination a crime a in Idaho for arrest person a officer may whether peace warrant, elsewhere, authority given a without committed statute. him in this Montana,
Idaho, Criminal Extradi has the Uniform like adopted without a war in that act for arrests There is a tion Act. provision state, defendant and Nank another which from rant fugitives 19-4514, I.C., as follows: which reads is section are. This provision be lawfully arrest of a person may “Arrest with a warrant. —The without a warrant upon an officer or a citizen made also by private with a accused stands charged information that the reasonable for a term exceeding death or imprisonment crime punishable by state; (1) arrested the courts of another but when so one in the year a with all prac- accused be taken before or judge magistrate must be made him under oath against ticable must complaint speed section; the arrest as in the last forth the setting ground he had been arrested on his answer be heard as if thereafter shall warrant.” this occasion to interpret have not had
The courts Idaho statute.. of the Uniform have held that this provision
Other jurisdictions court of some Act the necessity prior Extradition implies Criminal committed, act is but the the crime was action in the state where arrest law rule than an may the common not intended repudiate had com- believe the arrested person cause to be made on probable lack complaint in another state irrespective mitted crime (1976), 73 Wis.2d in their state. v. State Desjarlais warrant 243 N.W.2d to arrest no authority an officer has
“In some jurisdictions state, even from another from justice without a warrant fugitive of the demanding of the officers request or personal on telegraphic *16 20
state. other In an arrest jurisdictions may be made an officer warrant, circumstances, without a at least under certain as where * * Extradition, has committed a fugitive *.” 35 felony. § C.J.S. 12lb.
These are matters left to the individual wholly states. Burton v. Co., (1917), 315, 108, New York Cent. R. R. 245 U.S. 38 S.Ct. 62 Thus, L.Ed. 314. must be whether or not inquiry Idaho the common law recognizes rule.
In our view Idaho law
the common law
recognizes
rule
than an arrest
bemay made without a warrant where the arresting
officer has
cause
probable
to believe the person arrested had com
mitted a crime in another state. Defеndant’s arrest was
in
legal
this
case as Detective Brake had
cause to believe
probable
law,
had
committed
in Montana. Under
felony
Idaho
probable
cause exists where there is such a state of facts as would lead a man
of
care and
ordinary
to believe or entertain
prudence
an honest and
that such
strong suspicion
has
person
committed a crime. State v.
Polson,
510;
(1959),
147, 339,
(1967),
81 Idaho
P.2d
State v. Loyd,
20,
Here,
92 Idaho
Next we must look to see if the search of the apartment recovered, where the helmets and was lawful. We rope were note that this search was not the defendant’s arid Nank’s ar- product rest. It was based on Nank’s consent to the search. Defendant ques- However, tions whether Nank’s consent was defend- freely given. ant cannot assert violations of Nank’s constitutional any rights. in
The rule Montana is that a defendant does not have violations of constitutional of a co- standing challenge rights defеndant or third law enforcement authorities. State party by Braden, (1973), 163 515 is Mont. P.2d 692. This rule based on
21 States, (1969), Alderman v. United U.S. S.Ct. Therefore, claim L.Ed.2d 176. we hold defendant cannot any violation of Nank’s Fourth Amendment and his consent to rights the search made it a lawful search. no
There was error the District Court’s denial of defendant’s motion to suppress.
Issue 4. Defendant claims the
refused
State
with
plea bargain
him or to
his conditional
is a
accept
because he
black
plea
guilty
man. He claims it was because of his race that the State insisted
case, where,
conviction,
a full trial in this
upon having
upon
*17
death sentence could be
He
it is
imposed.
reversible error for
argues
the State not to
or to
his offer to
plea bargain
accept
plead guilty.
so;
How this
be
would
defendant has not made clear
us.
to
We
that a defendant
recognize
while
may plead guilty
innocence,
his
to avoid a death
maintaining
sentence.
especially
States, (1970,
742,
1463,
Brady v. United
397 U.S.
90 S.Ct.
25
747;
(1970),
25,
L.Ed.2d
North Carolina v. Alford,
400
91
U.S.
However,
S.Ct.
Accordingly, the State’s refusal to plea with defendant or in the bargain District Court’s refusal to accept his conditional while plea his innocence. guilty maintaining
Issue 5. Defendant contends the District Court erred in denying his motion dismiss the Information for failure to state facts suffi- 95-1503, cient to constitute an offense.His is that section argument R.C.M.1947, to the form of a relating charge, requires to be in and concise and in such a man- charge ordinary language, ner that the defendant would know what was intended. He alleges that the in this case did not meet this Information requirement. his on the State’s to amend premises argument attempt the Information after of defendant’s that the He entry plea. alleges
State, Information, in to amend the admitted the Infor- attempting mation was defective. trial court refused to allow the Informa- However, II, tion to be amended. the court itself amended Count to add the words: in aggravated kidnapping charge, “resulting the death of Lee Harstad.” Peggy
We fail to see how the State’s to amend the In attempt formation aids the the Information is not claiming sufficient. The State the Information was by amending trying make it a better Information. were not it was insuf They claiming ficient as it existed. An Information need be sufficient to only ap the accused of the prise nature the crime It need not be charged. perfect. stated, rule,
“It is
as a
with
either
referеnce to
frequently
general
misdemeanors, or to
that a
statutory
statutory offenses generally,
is sufficient which
of the
charge
follows the
statute
language
offense;
that,
and it has been held
if
creating
accused insists on
it is incumbent on him to show that from the
greater particularity,
obvious intention of the
or known
of law the
legislature
principles
case forms an
particular
rule.” 42
exception
general
C.J.S.
Informations,
Indictments and
139c.
§
Montana follows this
rule. An Information that
general
an offense in the
of the statute describ
properly charges
language
Randall, (1960),
the offense is sufficient.
ing
State v.
1054;
Shannon,
(1933),
353 P.2d
State v.
Mont.
*18
360;
1084;
(1957),
366,
P.2d
State v.
132 Mont.
P.2d
Haley,
761;
Duncan,
562,
(1957),
State v.
130 Mont.
305 P.2d
State ex rel
Court,
132,
(1969),
Glantz District
In no resulted from the amendment any legal prejudice II in the that death Count our Montana’s light holding penalty statute as it existed in 1975 is unconstitutional. 20, 1975,
Issue 6. On defendant filed a to the challenge October that it was not drawn and summoned in accor jury claiming panel dance with the selection statutes. The was made challenge 95-1908, how a with section R.C.M. which states conformity is to be made. After a full on the jury challenge challenge, hearing the District Court dismissed the panel.
The court then ordered a new of 60 be drawn and panel jurors summoned to for trial on 1975. Defendant October appear raised a second He this jury challenge panel. again argued was not drawn and summoned in аccordance with the panel Defendant, on statutes. The court denied the challenge. appeal, claims second have been We his should jury challenge granted. disagree. defendant raises three arguments concerning why
Basically, *19 that tried him was drawn and summoned. jury panel improperly First, he that were more numbers in the box than jury there says 55, 763 in the names on the list. There were numbers box jury 44,765, 44,765 list. was drawn than higher on the When number it was Defendant that more having returned to the box. claims numbers in the box than names on the list fails to substan- jury jury with the selection statutes and constitutes rever- tially comply jury sible error. R.C.M.1947, 93-1402, that each name requires
Section
93-1404,
on the
a number. Section
list be
jury
assigned
box in
that the numbers be
in the jury
R.C.M.
requires
placed
such a
cannot be
from each other.
manner that they
distinguished
these statutes
that
there be
as
require
only
many
Neither of
list
there can
numbers in the
box as names on
jury
jury
except
makes no allegation
be one number for each
juror.
only
Therefore,
each
we
that there was
than one number for
juror.
more
box than names on
hold that
more numbers in the
having
drawn. The pur
list does not
destroy
validity
panel
in the
statutes is to insure that there be no unfairness
of these
pose
Court,
v. District
selection of the
State ex rel
jury.
Henningsen
143;
(1959), 136 Mont.
348 P. 2d
In re
Box
Jury
Capsules,
(1967),
We find no unfairness here
Second, the 200 jurors defendant complains see the District Court clerk to drawn were nоtified by telephone 23, 1975. Sixty- available for the trial on October if would be they be available. Defendant called would they one of those replied effect, that, excused 139 jurors, the District Court clerk claims that, law, clerk not excuse may the District Court under the Further, the jurors defendant claims that jury duty. from jurors cause in for or trivial sight to excuse themselves were allowed jury duty. excused from the statute on being violation of R.C.M.1947, 93-1512, authorizes the District Court Section it is trial when to drawn and summon additional jurors judge that the additional to do so. This section further provides necessary this the clerk of court. In by telephone by be notified jurors may case, additional were jurors the first jury panel, dismissing after out of the *20 drew 200 numbers jury District Court judge needed. The the clerk to oral He authorized to a 60 member jury panel. box get 93-1512, clerk, R.C.M.1947, as section the The jurors. ly notify Thus, authorizes, defendant’s by notified the jurors telephone. the is telephone improper that jurors by claim notifying merit. without R.C.M.1947, 93-1305, deal with the for grounds does
Section not be It that a juror may excused from being jury duty. provides us, that before the record is excused for or trivial cause. On slight called. of the any jurors there no that the clerk excused is showing have a the clerk to We that the district had ordered note judge 1975, 23, he the on which did. of 60 trial October jurors panel Further, is that the failure of a to juror appear, the rule in Montana trial, notified, will a as a subsequent if not invalidate properly Moran, (1963), a 142 defendant has State right reject juror. no case, we hold 384 777. that rule to this Mont. P.2d Applying 60 out of that not be invalidated because defendant’s trial should the was the of the ordered by 200 which size jurors appeared panel District Court. the in jury defendant that used argues speed selecting
Finally, argues a panel. his to fair and He impartial jury denied him right com- a of the did not cross-section represent that the jury panel side of Billings, came from west as most of jurors munity Montana. has a to a fair and im is that a defendant right rule and drawn and sum selected from the proper place
partial jury
and intentional exclusion
moned
to law. The systematic
according
to secure
a
a
deliberate design
of class of
persons
purposeful
a
the entire county deprives
a
area instead of
from limited
jury
State v. Hay,
of
constitutional
rights.
fundamental
(1948),
that
In
this Court found
Hay
Issue Defendant claims error in improperly his restricting cross-examination of some of the State’s witnesses. At the time of 93-1901-7, R.C.M.1947, trial section governed scope per missible cross-examination. In substance it permits cross- as examination on testimony elicited direct examination or any facts connected therewith and all facts other connected with the witness’s which tends to testimony on the enlighten ques Bennett, (1973), tion State controversy. Commission v. Highway Mont. P.2d
We have examined the District Court’s rulings concerning *21 Ash, Nank, cross-examination of State’s witnesses and Schiffer and find no error. The asked either questions were im argumentative, material or otherwise answered.
Defendant also error claims in connection with his at tempted cross-examination of State’s witness from expert Hippard the F.B.I. laboratory concerning identification of the hairs and the from Harstad of vehicle and these hairs with defen comparison dant Coleman’s hair. The District Court disallowed cross- properly examination of his to concerning hair Hippard ability identify as from the witness he pictures testified that could not look at a pic ture of a and hair it. identify testified on direct examination that the
Hippard only way of and hair was identifying comparing by comparison which was the method he microscope Although used. defendant of fered to samples submit hair to he did not Hipрard, specifically state how this would be or to done offer furnish comparison tell, did District Court defendant to with microscope. proceed the and cross-examination were then with the they through direct, witness unless defendant himself called him on which de- and tests of permitting experiments, did not do. The matter fendant of the the sound discretion is one addressed to demonstrations 571; 410, London, (1957), 131 310 P.2d State Mont. court. State v. 817; 142, Keller, v. (1952), State Thomp 246 P.2d v. Mont. no of
son, (1974), 1115. We find abuse 524 P.2d 164 Mont. and the of the defendant here under offer that discretion rulings. District Court’s of the District denial 8. error in Court’s
Issue Defendant assigns aas mental competency defendant’s to Nank’s witness. challenge that those of unsound mind Montana statute provides A 93-701-3(1), It is cannot be witnesses. Section R.C.M.1947. of a of witness function the trial to determine judge competency Newman, (1923), 805. 213 P. State v. testify. no that a is incompetent There is witness presumption it. State is on the incompetency prove burden party asserting Newman, do. The defendant did not v. supra.
Furthermore, is competent if witness sufficiently of oath the nature and an understand and appreciate obligation case, involved in the he may and can narrate facts correctly of to the of his only weight the state his testify mentality goes Hover, (1921), 60 to its Martin and not testimony admissibility. P. Mont. 694. on this issue.
We find no error the District Court case, close moved to At the of the State’s Issue Information, or, alternative, in the for a judgment dismiss the of Nank’s Cor for lack corroboration acquittal testimony. account roboration of one responsible legally testimony a conviction. Sec for the same offense is to sustain able necessary 95-3012, corroboration by This statute requires tion R.C.M.1947. with the commis tends to connect the defendant evidence which *22 offense, of ac of the without the the testimony person legally sion that there not suffi or Defendant argues countable responsible. con of to sustain defendant’s cient corroboration Nank’s testimony We viction. disagree. Cobb, on is stated in State v.
The rule corroboration 28 89, case,
(1926),
Applying suffi cient corroboration Nank’s to sustain defendant’s con testimony viction. evidence is: The crack corroborating in defendant’s helmet; a hair of on motorcycle Lee Harstad Peggy being rope men; to these on her belonging car in her fingerprints purse; hairs similar to Negroid pubic defendant’s and the car; and, head hair found in her that Negroid evidence defend ant and Nank seen were on the same road and at together approx the same time that Lee Peggy Harstad This imately disappeared. evidence tends to connect defendant with the commission the of fenses It is evidence more than charged. mere opportunity that defendant suspicion committed these offenses. This evidence does not establish reasonable any toward explanation pointing in nocent conduct. We find no error the District denial of Court’s defendant’s motion. trial, 10. On as at objections
Issue defendant raises appeal, questions certain and answers elicited from State’s witnesses. He these are cumulative errors reversal. We argues requiring do agree. not
29 allowed, direсt ex on to being is Nank’s first objection His the amination, concerning told the same story that he had to testify the trial. Defendant to and the F.B.I. prior to the police crime Nank’s to buttress and fortify was used testimony that this claims was challenged. his testimony before testimony was if Nank were to find out Nank to questions Basically, that the State in the has held past This Court to the truth. testifying Collett, State v. direct examination. on questions ask such may Collett, said In this Court (1946), P.2d 584. error in allowing did not commit prejudicial the District Court to the was testifying as to whether he answer a question witness to nature of answer is in the is that while the truth. The rationale declaration, what the it is reaffirmation only self-serving this We believe ap- to do when he takes the oath. witness promises question it here. We hold the is and will follow sound proach constitute prejudicial statements do not answers as to Nank’s prior error. allow being to F.B.I. agent then an objects his with de attitude in interview about defendant’s
ed to testify Sheridan, testified agent at Wyoming. Specifically, fendant evasive during questioning. that defendant was However, evidence. that this was improper opinion We agree in a a basis for reversal will not technical errors or defects provide (1968), 151 Mont. criminal State Gallagher, prosecution. this was testimony only the admission of 45. We hold that P.2d a basis for reversal. and is not a technical error Next, was expert that a fingerprint F.B.I. argues the scope re-direct examination beyond on testify allowed defendant objected to which the questions cross-examination. certain received on which the F.B.I. laboratory concerned the date confusion as reveals there was some cards. The record fingerprint Under those were received. cards fingerprint to the dates various circumstances, abuse its discretion did not the District Court on re-direct. clarify issue allowing State as to Makin testifying to witness defendant objects Finally, where he was told certain hairs came from. Defendant claims this witness, Ash, declarant, was An earlier who hearsay. was the testified as to he where found hairs.
Here, Undersheriff Makin establish chain of testifying Ash, evidence. He had received the hairs from Officer who told Makin he obtained the hairs from the abandoned Harstad vehicle. Thus, the declaration of was a Ash of the chain of part evidence.
We find no cumulative error in the the of State’s testimony witnesses to sufficient warrant reversal.
Issue 11. Defendant to certain objects instructions which were to the given and offered that jury instructions were refused. We find the was jury instructed. properly
Defendant’s first
is to Instruction 22.
objection
This in
struction was that
if the
found defendant
committed a
homicide and no
of
circumstances
or
mitigation, excuse
justifica
tion
that
infer
the
appears, they may
homicide was committed
and
This instruction was
on
purposely.
based
section
knowingly
94-3004(2), R.C.M.1947. The instruction follows the statute.
Defendant
that
argues
instruction as a
is
statutory
un
presumption
constitutional,
States,
6,
(1969),
v.
citing Leary United
31 the statutory was not Instruction given. premeditation, 94-2-101(27), as section of contained in “knowingly” definition instruction defendant of the statute and portion R.C.M. 1947. fact of a particular “When of the existence knowledge to is: objects offense, aif per- of an such is established is an element knowledge of its existence.” Defendant son is aware of high prоbability with the traditional re- this definition does not that argues comply defendant, is why, according of criminal intent. That quiement it explained 16 should have been as given his offered Instruction conviction of premeditation criminal intent deliberate homicide.
We believe there was no in the of Instruction error court’s giving 16. have refusing defendant’s Instruction We con- give sidered the on criminal intent and necessity instructing jury, Sharbono, (1977), 175 Mont. before. State premeditation case, Court’s the District we no error in 61. In that found P.2d In- defendant’s offered an instruction identical refusal to give There, changed had the legislature we held that struction said, ques- in discussing rea. This court requirements mens intent: tion criminal to do the whole it is the who means
“Upon person thing *25 it, crime, he knows that there a constitutes a knows is and is doing it, and in whose conduct war substantial risk unjustifiable doing rants condemnation of the kind from which conviction results.” Sharbono, 563 at 72. P.2d
Therefore, we
court
find the
instructed the
as to the
properly
jury
conviction
“knowledge” required
in Instruction 26
pro-
refused defendant’s Instruction 16.
perly
that his
was
objects
offered Instruction 10
not
This instruction deals with the burden of
It
given.
proof.
comes
Halk, (1914),
from
State v.
Mont.
The Court instructed the the burden adequately jury concerning Thus, of in Instruction 4. there is no error in defend- proof refusing ant’s offered Instruction 10.
Next defendant that his Instruction 14 complains proposed on reasonable doubt was not We bеlieve the court given. rightfully refused this instruction since the was on instructed jury adequately 7,6, reasonable doubt in the court’s Instruction and 10. Defend- and, redundant, ant’s instruction would have proposed been only therefore, was unnecessary.
Defendant contends that his offered Instruction 34 should have been given. This instruction dealt with the not jury having decide in with the conformity number of witnesses if their greater does not in testimony produce conviction their minds. Defendant with that the number of argues witnesses the State he produced, was entitled to this instruction. We disagree.
We must out that the point instruction defendant proposed covered in the court’s Instruction This adequately instruction read in part:
“You not are bound decide in with the declara- conformity witnesses, tions of number any not conviction in producing your minds, number less or other against presumption against evidence direct minds. The evidence of one witness satisfying your who is entitled full credit is sufficient for the fact in proof any this case.”
This is a standard Montana Instruction instruction Jury Guide which correctly states the law. The District was correct in Court defendant’s offered Instruction 34 refusing covering same sub- ject.
Next, defendant that his offered Instruction 35A alleges Should have been This instruction was on the lesser included given. offense of deliberate mitigated homicide.
Where there is no evidence of would fit mitigation that within homicide, statutory definition deliberate section mitigated 94-5-103, 1947, the trial R.C.M. court should refuse to in properly (1977), struct on such crime. State Baugh, here, P.2d 779. In the record we find no viewing evidence of miti gation. This instruction was refused. properly This
Defendant also to Instruction 40. instruction objects told sentencing was vested the court *26 defendant could punishment was not to consider possible is that in this Defendant’s objection receive in verdict. reaching instruction, led to believe of the was jury and in voir dire jury, the death had discretion in imposing penalty. that the judge was to the up told the jury sentencing This instruction simply can mitigate not state that the judge The instruction does judge. punish- It that he has only power impose punishment. says ment, is is instructed as to the which is correct. It where jury ex- of sentence that to the defendant various possibilities prejudice Zuidema, (1971), 952. This ists. P.2d State is not the case here. The instruction was proper. to the verdict form used
Finally, objects special was asked to find if Lee on Count II. The jury specifically Peggy died as a result of the The Harstad aggravated kidnapping. jury found that did. Defendant law does not she Montana argues factual provide specific findings by jury. was verdicts for a general given asking finding guilty
or not on each count. The was to make the additional guilty that the element for the of the death finding necessary imposition circumstances, was Under those this additional penalty present. factual does not fall into the vice of a verdict. It finding special does not a fact determination which could be used to require Thus, undermine verdict. the verdict forms were general per- missible. event,
In our on Montana’s death statutes holding penalty any renders this of error specification nonprejudicial.
Issue 12. Defendant to some exhibits which were admit- objects ted into evidence and some of his own which were refused admis- sion. 20. This was a
His first is to State’s Exhibit objection picture was found. In the the area which Lee Harstad’s Peggy body pic- ture, that this her can be seen. Defendant argues decomposed body is a He because it picture prejudicial gruesome photograph. its claims that of this is outweighed by any relevancy photograph effect. prejudicial
This has held that which help jury Court photographs admissible, understand the case are but that are photographs of the are calculated to arouse the or prejudices jury sympathies Bischert, (1957), excluded. 131 Mont. State v. properly case, in that P.2d 969. This Court went on to say photographs not be used if intended to inflame the minds of the rather may jury We affirm the rule of the than them as to the facts. enlighten case, Bischert but its to this case. reject application Bischert, distasteful and
In the photograph,was extremely did not make a contribution to the of the development significant in that is not the case here. We have examined the facts case. This indistinct, and find that it is and of poor quality. photograph hazy, character that the otherwise might Any gruesome photograph The is lost in its and development reproduction. possess in that it the area in which is relevant shows photograph jury found; and it Nank’s as to her corroborates body testimony clothed and as to where the was. Under the cir being fully body here, value its cumstances the photograph’s probative outweighs effect. prejudicial of two other the admission objects photographs, (cid:127) and 43. These were of the State’s Exhibits 41
namely pictures Boise, and the lot in where apartment building parking that these and Nank were arrested. Defendant argues photographs were irrelevant and cumulative evidence. rule, when relevant
As general photographs, are admissible for the describe person, place thing, purpose and the court and the evidence applying assisting explaining the case. Fulton v. Choteau Farmers' understanding County Co., (1934), of the P.2d 1025. photographs lot to describe the building parking helped place apartment where the defendant and Nank were arrested. These photographs These where the helmets and were recovered. showed rope the arrest and assisted the in understanding photographs admitted. in Boisе. were They properly search Defendant also to the admission of Nank’s motor- objects chain helmet into evidence. His is that the complaint cycle evidence was not established to the admission of the helmet prior and further that he was not allowed voir dire Nank complains to its admission. Defendant there was a with states prior problem the chain of evidence in that this helmet was labeled as belonging to defendant and not Nank. Nank, helmet,
Since
to the admission of the
iden-
prior
positively
his,
tified it as
we find the chain of evidence established
to its
prior
admission.
no
The mismarked label is of
as the label
consequence
was not admitted into evidence. We
that defendant
recognize
have been allowed to voir dire Nank
to the admission
might
prior
into evidence of the helmet
not
but such was
There is no
required.
indication that such a voir dire would have
a different
produced
*28
most,
result. At
a
error not
the merits
only
procedural
affecting
involved,
was
and not a
error
reversal. State
prejudicial
requiring
Heiser, (1965),
413,
v.
146 Mont.
Defendant further claims error in in evidence admitting Boise, the waiver of form to defendant in which rights given he refused to Defendant claims this exhibit sign. was irrelevant and should have been excluded as cumulative evidence.
We can no find error in the admission of this exhibit. This exhibit aided in the in the events of this that understanding case occur- Boise, red in Idaho. It of the supported Boise detec- testimony arrest, arrest, tives as to the date of the the time of the and that defendant was informed of his constitutional The exhibit rights. was admitted. properly V, W, that his objects Exhibits X Y were
refused. These exhibits were of the State’s pictures fingerprint were and an of them was made. photos. They enlargements overlay use of the defendant wanted to By show differences in overlay, any the fingerprints. reView of the
Our record indicates that defendant did not lay foundation, exhibits, for the admission of his show- prior moving that could be in ing the manner fingerprints compared was to do them. What defendant wanted attempting compare actual the different in the
was to show the measurement jury by distance between a known of defendant ridges print between and the found in Harstad’s A Lee print Peggy purse. fingerprint cannot be this will in manner. The same compared fingerprint pro- with duce results to a measurement between differing respect in ridges depending upon making print pressure applied surface. manner in which the was left print upon are if the same Fingerprints compared by determining ridge in a and unknown characteristics are known present print print. These characteristics will not between the different ridge vary in which an is made on a surface. ways impression
The rule is that the determination of whether
proper
intrоduce exhibits into
foundation has been laid
order to
will
evidence rests with the lower court and its determination
not
be overturned
a clear abuse of discretion.
unless there is
State
1,
Olsen, (1968),
Here,
Finally, his Exhibit T some calculations as to the of the showing height water level in the River Yellowstone on July was to aid defendant’s This exhibit Lee argument Peggy Harstad was not drowned in the river as Nank testified she was. river, that the on was Defendant was trying prove July found, too in the area where the was for Nank and body deep, defendant to be her under the water. This exhibit not holding lack foundation. admissible because of Our review proper *29 reveals that the witnesses who this exhibit prepared transcript an ex- were never shown to have the such qualifications prepare hibit; at it was not made clear how arrived the calculations they river; flow, and, it was made of the and volume of the they height, that calculations of the of the river on not established their height circumstances, 4, 1974, were Under such there July competent. in was no error in this exhibit admission evidence. denying conviction, a defendant moved for Issue 13: his Following was that defendant raised after both new trial. One of grounds case, defendant was contacted witness had rested their sides and character. Defendant knew of defendant’s conduct good who evidence is for a new that this discovered newly grounds argues 95-2101, trial under section R.C.M.1947.
“It is well-settled that a new trial will not be granted upon discovered evidence where it that such appears ground newly discredit the new evidence can have no other effect than to at the trial. It is when it is of witness testimony original only shown evidence satisfactory appellant by competent convicted, evidence, been but for this that a new would not have (Citations discovered evidence. trial will be for granted newly 1, 17, (1965), omitted.)” 403 P.2d State Schleining, case, evidence would only In this defendant’s discovered newly Nank’s and defendant has not shown that to discredit go testimony not this evidence would make the difference between his being circumstances, we will convicted in a new trial. Under those being rule in no error in the denial of defend- follow the general finding ant’s trial. motion for new of defendant and
We have examined the contentions subsidiary our in this case or merit holding find that none would change discussion in this special opinion. affirmed. The of conviction on all three counts is judgment The case is
sentences for II and III are vacated. Counts imposed on Counts II and resentencing remanded to the District Court III. DALY, GULBRANDSON,
MR. and L. District C. JUSTICE Court, in the vacant seat on the concur. Judge, sitting HARRISON, MR. in concurring part dissenting JUSTICE part. in the but dissent as to the
I concur opinion majority’s disposition of Issue 2. The finds no substantial evidence to support majority in the determination that defendant inflicted jury’s bodily injury *30 course of sexual intercourse without consent. Section committing 94-5-503(3), R.C.M.1947, provides:
“* * * if the offender inflicts in the bodily injury upon anyone consent, course of sexual intercourse without he shall committing be in the state term of not less than 2 imprisoned prison any than 40 or more as in 95-2206.18.” years years, except provided admits “the evidence shows that defendant majority freely did commit sexual intercourse without consent” and the so found. Nor is there that there is substantial evidence any quarrel that defendant the in Lee showing participated killing Peggy fact, Harstad. These facts were as to the proven jury despite notes, the could find no evidence of majority pathologist physical to her While the is injury badly decomposed body. majority unclear in what the State’s was the State respect lacking, proof (1) must have failed either that defendant inflicted prove “bodily victim, (2) on the or in injury” inflicted bodily injury course of the commission of the rape. there is substantial evidence that defendant in
Undoubtedly, above, flicted on the victim. As the evidence in bodily injury noted dicates defendant in her death. participated causing Certainly death is within the of the statute. That injury” meaning “bodily death is condition” is so obvious that it “impairment physical 94-2-101(5), deserves little comment. Section R.C.M. 1947.To hold otherwise would lead to absurd results. For who person example, breaks can the arm of the victim the course committing rape receive a 40 sentence for the but a who kills the year rape, rapist victim can receive no more than a 20 sentence for the I rape. year cannot believe the intended that a receive rapist legislature than is re sentence because he did more harm to the victim lighter the definition of quired by “bodily injury”. is, indeed,
If death remaining requirement bodily injury, only is that the death be inflicted “in the course of sexual in committing without consent”. This is in section tercourse phrase explained 94-5-503(4), R.C.M.1947. intercourse without
“An act ‘in the course of sexual committing consent’ shall include an to commit offense or attempt flight commission,” added.) attempt (Emphasis after the victim was there is substantial evidence show Clearly commission of the According killed in the after” the “flight rape. *31 car, and then beaten and Nank’s she was in her testimony, raped lived, drowned she she would have been able to iden- Had nearby. as Nank the The tify perpetrators. jury certainly would been reasonable to infer that she was killed in an at- have to cover the commission of the The com- tempt majority up rape. the after” of the statute. pletely ignores “flight language In I find substantial evidence to the ver- support summary, jury’s dict that defendant inflicted the victim “in “bodily injury” upon the course of sexual intercourse without consent”. Her committing death all the Her death was in- supplied “bodily required. injury” flicted in the course of the because it was an in- committing rape the after the commission of the offense. This is tegral part flight the of conduct the statute was intended to precisely type punish the most severe extent.
I would affirm the of the 40 imposition sentence. year SHEA, MR. dissenting: JUSTICE 94-5-304,
I with the section agree majority holding opinion R.C.M.1947, to be unconstitutional. the United Clearly, States has Court death because Supreme prohibited mandatory penalties However, there is no allowance for consideration of I mitigation. would another and reverse the conviction because the go yet step second was not chosen in substantial with jury panel compliance fact, the statutes of in a new In there applicable calling jury array. 93-1509, awas failure to follow section 93-1501 and complete R.C.M.1947. with this issue as the District majority proceeds though
Court in additional the only calling jurors complement in existence. The law involved is contained in panel legally already Title entitled AND SUM- Chapter “JURORS-DRAWING 93-1512, MONING FOR COURTS OF RECORD.” Section relies, R.C.M. 1947, is but one of the which the majority upon the selection of That section juries. provides: statutes coverning when Whenever it nеcessary. ap- additional jurors “Obtaining a will be needed jurors to district additional pears judge numbers the many term trial the shall draw as judge or any from addi- to secure the number necessary required box as are [No. 1] numbers, shall by ap- Before jurors. drawing judge tional needed, and when order the number of jurors propriate designate all of the believes that the additional from jurors the judge securing he would cause unnecessary delay expenses, may county [then] from of the order the jurors'selected only designated portion be limits which shall never less than corporate county, portion If, in the selection of the additional jurors, of the seat. county represented by number is drawn and the list shows person the area number to be a resident of an area outside designated order, that number shall be returned to the jury the court then by drawn. When the number required box and new number selected, order judge may prospective names have been court or he may the clerk of the notified jurors by telephone *32 either certified mail or by order them summoned the sheriff by by added). service.” personal (Emphasis to be summoned This statute allows additional jurors by (as a where the one of the means of summoning juror) telephone existence, in then in is not sufficient number jury array, legally term of court. It does not the work of the court during complete a has been successful- whеre the existence of legal jury array apply an to summon en- necessary and it therefore becomes challenged ly this case. The en- what occurred in new jury panel precisely tirely — was not summoned in com- was excused because it tire jury panel recognizes with the statutes. majority pliance applicable stating: this happened by
“* * * 20, 1975, a to the filed challenge On October in accorr drawn and summoned that it was not claiming jury panel in was made challenge statutes. The with the selection jury dance 95-1908, R.C.M.1947, a which states how with section conformity on the challenge, a full hearing to be made. After is challenge jury ” added.) (Emphasis the jury panel. dismissed the District Court dismissal, legally was no longer the jury panel this Clearly, upon that jury be tried during cases were to more in existence. If any such case term, summoned. In had to be new panel an entire jury R.C.M.1947, 93-1509, into Sec come play. 93-1501 and sections 93-1501, trial jury”, provides; of “Summoning tion criminal when a civil or each county, once each in “At least year (6) for more than six for trial at issue and ready case has been a requested in such case has or defendant months plaintiff a district court requires the business trial of whenever jury cases, and the trial civil or attendance a trial criminal jury for attendance, must make an order directing is in the court no jury said court. and summoned to attend trial to be drawn jury befоre drawn, and the to be the number of jurors Such order must specify attend, be which time may are required time at which jurors drawn, at the next suc- are at the same term in which jurors term, And the court may of the court. in the discretion ceeding civil, causes, in which a jury either criminal or direct that such demanded, be have been be or in which required, jury may may attendance.” when a shall be in continued and fixed for trial jury added.) (Emphasis
Thereafter, of selecting for the mechanics the status providing (sections until the requisite 93-1503 et are followed seq.) jury panel boxes. After is chosen from the list and jury number of jurors done, as in the manner pro- this is are then summoned jurors 93-1509, vided in section which provides: drawn, he a list or lists of jurors “The as soon as receives sheriff, the court at the to attend shall summon the named therein persons order, mail in the a written notice by time mentioned certified office address named to them to the to that effect addressed post with the in the office postage list and deposited post *33 the district judge expressly thereon in cases where prepaid, except notice, services shall be made by giving personal directs that such at the of the regular the list to the court opening and shall return thereof, session or at session or time as such be jurors may attend, ordered to the names specifying of those who are sum- moned, (Em- and the manner in which each was notified.” person added.) phasis
There can be no question that sections 93-1501 and 93-1509 must be followed in circumstances where is not panel in existence. already legally Section 93-1512 where for applies only some reason there are sufficient numbers on the original panel not. the business of complete the court for the term in- particular Here, sections„93-1501 volved. the District Court entirely ignored and 93-1509 and the has majority this approved bypass. pro- cedure used actually the Distict Court is by with fraught dangers and is hardly to be procedure for an en- approved summoning tire jury panel when man is on trial for his life.
Here, Court, a District after an entire dismissing jury panel procedural irregularities in the summoning process, commits an er- ror as equally grave the clerk of court allowing to obtain sixty willing jurors them by calling on the telephone.
We have no idea of the actual number of called jurors before six- ty them to sit. agreed We do not know the exact used procedure the clerk in calling Did he jurors. down the list go and continue alphabetically until he obtained calling the required number of Did he call jurors? in areas of jurors Yellowstone Coun- where, from ty previous he determined experience, it would be most an likely get affirmative Did he in fact call response? most of the first who lived jurors on the west side of Billings, commonly known to be the area-where “successful” live? What people did the clerk of court tell each when he called? person What excuses did if potential jurors stated give they could not sit on they the jury Did panel? have they legal excuse for not Did the appearing? clerk tell the what jurors excuses would be We will permissible? however, never know the answers to these questions. Of one I thing, am certain. If it so happened the sixty jurors ultimately serving were a true cross-section of the residents of Yellowstone it County, was an accident. It did not occur because the District Court
43 circumstances, it is a Under these the law. followed scrupulously stand. conviction to to allow travesty . 388, 174, 1977), P.2d ( Mont. 569 174
In v. State Fitzpatrick, this Court stated: prosecution accused in a criminal held the has long
“This Court selected a trial an impartial is constitutionally guaranteed v. Henningsen ex rel with the law. State in accordance and drawn 232; 573, P.2d 194 Court, 120 Mont. v. Hay, State supra; District 226, deviation McAdow, material Any P. 6 Mont. v. Supont a constitute been held to a has in procuring departure Porter, State v. supra constitutional rights. denial of fundamental Groom, 49 Mont. 984], 242 P.2d State Mont. [125 P.3; 958; other reversed on 27 Mont. P. State v. Tighe, added.) 512, 90 P.981.” (Emphasis grounds departure was not only In the case there material present failure to follow applicable there was a total procuring jury, con- denied a fundamental defendant has been law. Clearly, stitutional right. conviction I reverse defendant’s
For the reason would foregoing and order new trial.