*1 MONTANA, OF Respondent, STATE Plaintiff Appellant. HEINE, Defendant ARTHUR 12979. No.
Submitted Nov. 1975.
Decided Jan. *2 Adams, L. argued, John Billings, Jr. for defendant and appellant. Woodahl,
Robert Atty. Helena, L. Gen., Charles E. Ard- man, Atty. Gen., argued, Asst. Helena, Hanser-, Harold F. County Atty., argued, plaintiff Billings, respondent. for
MR. JUSTICE Opinion JOHN C. HARRISON delivered the of the Court.
Arthur County Heine was convicted jury Yellowstone “driving intoxicating vehicle while under the influence of liquor,” 32-2142, R.C.M.1947, section “aggravated and of as- sault,” 94-5-202, section specifically R.C.M. He was accused deliberately causing Information of a headon collision with ex-wife, son, another vehicle which daughter-in-law, his grandchild riding. three week old were trial, attempted At to convince jury the col- only lision was and that his intoxicated condition any possibility degree obviated the act was committed with prosecut- response contention, In deliberateness. to this ing attorney offered evidence which tended to refute defend- objection, his was al- ant’s claim. Over defendant’s ex-wife testify events, taking place to concerning lowed several within ivhich con- of the assault for he has been This tried victed. established that defendant once own; to his ex-wife’s car with had ram broadside his he garage without first through twice driven his car her door successfully bothering open it; and, attacked that he once and stabbed her a knife.
Additionally, were called to test- several character witnesses ify behalf, concerning peace defendant’s quiet prosecuting attorney community. in- then allowed to witnesses cross-examine these police dating troduction of record back to defendant’s This record contained references to a number of arrests *3 charges of ranging disorderly on from conduct to destruction property. appeal,
On it is first contended the district court erred admitting offenses, of specifically evidence other the by upon assault committed defendant his ex-wife.
It is the rule that evidence of other or offenses similar perpetrated acts at other times pur are inadmissible the pose showing of the particular commissionof the charged. crime Taylor, 106, State v. 163 121, Mont. 515 However, 695. P.2d under a exception, well-established such evidence is not ex when prove cluded offered to charged that the act was not inadvertence, the' result accident or if that matter at is the Newman, issue in trial. State v. 34 Mont. 87 P. 462; Cassill, 70 Mont. 227 P. Hughes, 76 246 Simanton, P.2d P.2d Jensen,
In State vm.
type lawfully excep- under evidence can be admitted this prior tion. Thus offenses or is if evidence acts admissible prior degree .such are in acts offenses some similar to the charged, time, are not too and tend to establish a remote scheme, system. plan common or ruling court apply this test to the of the district We Certainly prior and find no error. all the acts and offenses to, of, or on in the similar assaults testified were nature place They took within three defendant’s ex-wife. which, holding Jensen, our is not charged of the crime under placed the matter issue too remote. Defendant himself merely an attempts to that event was through his show given cautionary 18No. We note the Instruction accident. judge: trial is to of other offenses instructed that evidence “You are such evidence is by you with be caution viewed permitting you to determine admitted for sole constituting aggravated assault alleged as whether acts knowingly than mis- purposely or rather were done take accident.” or recognized testimony within the was this admission of provides grounds no for reversal.
exception, and by receiv- Second, claims the district court erred ing specific arrests as evidence certain acts police ultimately shown his record admitted prose- by the was introduced as exhibit. This impeaching purpose of character cutor for the defendant’s on witnesses cross-examination.
When accused support gen calls witness to erally good community, opens in he the door *4 legitimate to all cross-examination of that witness must consequences accept therefore the which result. v. Moor State man, 148, 153, Cor, 133 Mont. 321 P.2d State v. 144 Mont. 323, Turley, 231, Mont.
The of this by rule was well Brant- stated Chief Justice ly Jones, in 139 P. 445:
“As the testimony presump- favorable tends to sustain the tion of indulges innocence which the law in favor of de- fendant, introducing it the defendant tenders an issue fact, viz., say whether his is such as the witnesses is, prosecution it right and the has the to cross-examine the upon witnesses to sufficiency grounds ascertain the they base their statements.” impeachment We note that here the data introduced twenty-five years prior charges dated back to some to the upon ultimately which defendant In convicted. such protential prejudice situation the great unless becomes mitigating some factors are shown to exist. As this Court Sedlacek, 201, 214, stated 239 P.
accused’s entire life should not in an effort to be searched However, convict him. we are satisfied that defendant suf prejudice circumstances, fered no under where the ma these jority impeachment purposes of the offenses introduced for prosecution legal right were not remote. had a to deter of defend mine cross-examination whether fact, we ant’s character witnesses had foundation right properly find that to have been exercised. allegation final challenge
Defendant’s of error involves a jurisdiction regarding charge of the district court “driving intoxicating a vehicle while under the influence of liquor”. Upon offense, conviction for this defendant was sen- year tenced to an penitentiary, additional to run the state concurrently year fifteen sentence for assault charge.
Generally, jurisdiction Montana’s district courts have over amounting criminal cases felony to a all cases of provided for, misdemeanor not VII, otherwise Article Section Constitution; 1972 Montana 93-318, Section R.C.M.1947. 95-302, justice Under section R.C.M.1947, may courts assume *5 30 alia, by a
jurisdiction punishable, inter over all misdemeanors justice The imprisonment exceeding months. term of not six driving involving normally bulk eases of courts handle is con- But an individual when while intoxicated offenses. time, maximum charge a for the third victed on such year, and of one may to the term be increased sentence jurisdiction matter. with over the courts vested district become (d), 32-2142 R.C.M.1947. Section challenge jurisdictional ground to seems Defendant driving intoxi while of the premise on the that evidence showing was no there inadmissible since cated was convictions guilty pled when he represented counsel was dis presented to the specific argument not was to them. This raised it cannot be to trict the motion dismiss court on Wilson, Mont. appeal. v. State here the first time on 197, 456 White, 473, 477, v. State 251, 267, 405 P.2cl Campbell, Judgment of the court is affirmed. district MR. T. HARRISON CHIEF JUSTICE JAMES concurs. (dissenting) MR. : DALY and HASWELL JUSTICES We dissent. opinion majority misapplies
The misconstrues and the doc- permits proof trine which of tending a state of a facts to show recently of pursued system course action plan or uniform —a part accused, on the of for the showing guilty knowledge intent, negate or criminal and to that the idea particular respect act with charged which the accused is the result mistake or inadvertence. no
There are authorities cited that sustain the admission prior offenses, alleged offenses, period evidence of etc. over a 25 years “aggravated to convict the defendant of assault” resulting from automobile collision while intoxicated. The problems evidence was review of the defendant’s marital alleged crime divorce before the ended in parties for three not had contact involved here. The had years prior to the action here. applied are may of cases to which the rule be class Newman, forgery case
generally by majority. cited those Cassill, very conduct evidence taken of similar recent. superintendent by banker con- false to bank statements bank, taken cerning condition financial evidence *6 branding Hughes, animals year. similar for the conduct same property not branded defendant and evidence taken of others Simanton, recognized about time. the rule but reversed same prove prima in stealing case, horse the state failed to because related, guilt facie other in time. acts however close Jensen, 233, 455 P.2d The case 153 Mont. quoted principal authority by majority sex case as is respect- distinguished. good and from should be There is law jurisdictions clearly explains able that latitude the additional continuing in allowed sex cases because of the mind state of a so afflicted. application in
The Montana rule and correct can be found Knox, Angstman 119 Mont. discussion Justice again Merritt, The case should be remanded for a new trial on the merits. MR. (specially concurring) JUSTICE CASTLES : I opinion concur in the Conway Justice John Harrison. I respond briefly do dissenting opinion. choose to the that, There parties it is stated “The had not had contact years prior for simply to the action here.” This not is so. opinion majority facts recited are correct. Between June and June of the defendant crashed his car garage his ex-wife’s on doors two and on occasions an- other occasion assaulted her awith knife at the office where
she worked. the know- These incidents were testified to show ing negate of defendant and to mistake and jury and the was instructed as to this. Also the evidence showed that after at even the divorce 1971 defendant lived June, his ex-wife’s home until
Separate acts, from matter of char- these the defendant’s quiet peace community in the acter and brought on defendant’s character witnesses. It was only inquiry past on cross-examination was made into the Simtob, proper. (Mont.1975), events. is This See State v. cited cases therein.