*1 The presumption of innocence defendant at surrounds the
every step in the trial and to he is its benefits entitled every jury. determination of fact It weight has and effect evidence the defendant’s
behalf. Harrison, 23 Mont. Sun, Wong Mont. 761. (2d) Pac. It quite that, is upon evident under the and law submitted, prosecution prove guilty did not the defendant of carrying weapon beyond a person concealed certainty. reasonable doubt and to a moral That the guilty found defendant does not weaken something simply conclusion. It tends to show judgment jury. than swayed of the evidence of concealment If thing was the fact that caused defendant’s conviction boy pistol he left found and the restroom where and, it, endangering perhaps, others, fired thus himself gestae answer Although part is: such evidence is of the res properly such, nevertheless, admissible as the defendant restroom, leaving pistol trial for in the but for the pistol carrying person crime of concealed on his he can legаlly only. convicted for that crime justify The evidence insufficient defend ant’s charged. eonvietionthe crime For that reason the case remanded to the lower court with directions to dismiss it.
MR. ADAIR, JUSTICE CHIEF and ASSOCIATE JUS- METCALF, BOTTOMLY, TICES ANGSTMAN, concur STATE, Respondent, SAUTER, et Appellants. al., No. 9012. March 6,
Submitted 1951. Decided June 1951. 232 *2 Hutton, & Meyer Wiggenhorn Messrs. Mr. Arthur R. and Billings, appellant. all of for Gen., Atty. Poppler, Mr. E. Olsen, H. Louis
Mr. Arnold County Atty., Billings, Gen., Sande, B. Atty. Mr. Charles Asst. respondent. for Poppler argued orally. Mr. Meyer,
Mr. Mr. Sande and FREEBOURN: MR. JUSTICE Schneider, appellant, George and Sauter, defendant John “by with the charged by rape, tlje information crime of violence, great and threats of and and and violence use of force age years. bodily harm,” upon a female of the immediate convicted and Sauter, separately, was sentenced to serve tried appeals. prison. From this conviction he years state permitted-to introduce objection, prosecution was Over tending he had cоm- to show defendant statements of prior to the com- sometime woman upon another rape mitted trial. he was act for which mission of
Ill previous rape Such statements and evidence were inadmissiblein case. Jur., Rape, p.
The 44 Am. rule is found in universally where it is said: courts to admit evi- “The refuse dence of the commission of other and distinct crimes where such relevant, application evidence is not and otherwise of this rule it is for prosecution rape well settled on evidence of another crime or other sex committed at different time against person, having and on or another * ** no connection charged, with the admissible. not prosecution may the defendant has show had females, sexual young intercourse with other or that he has committed other sex crimes immoral acts.”
In 22 S., C. J. pages general rule, it is subject said: “The exceptions which is stated in 683-690, infra, that, prosecution secs. on a particular crime, evidence which shows or tends to show that accused has committed wholly independent of, another crime *3 and with, unconnected trial, for which he is on even though a it is crime sort, of the is same irrelevant and inad- missible, and such independent evidence of an inad- missible for the reason, among others, ordinarily does not tend to establish by the commission accused of the offense charged, that accused must be tried time, for one offense aat that, and in general accordance with the rule, more extensive applies cases, which to all criminal, civil and the evidence must point be confined to the in issue.”
The same rule extends ato confession or admission by accused of the commission of another 22 S., crime. J.C. 682, page 1088. State, See also: Gunter v. 769, 180 472; Miss. 178 So. Baygents State, v. 442, 144 Miss. 114; 110 State, 522, So. Bartz v. 229 282 Wis. N. W. It 562. applies statutory rape. R., p. also See 167 A. L. 588, and authorities citеd. People App. (2d) v. 70 Whalen, 142, (2d) Cal.
560, 562, California court said: “The authorities are unani-
112 in this fair trial right to a holding in that a defendant’s
mous com- of the receipt of sort of case is violated per- person or charged, with a similar to those mission of acts Asavis, Cal. People v. prosecutrix. sons other than (2d) and cases cited.” (2d) 492, Pac. App. 61, the evi 102 Mont. Peterson, In State v. show corrobora received to and acts were dence of other similаr under identical prosecutrix tion, and to acts with confined Paddock, 86 Mont. See also: State v. circumstances. 118, 162 Pac. Gaimos, 53 Mont. case, it out of which takes nothing in the before us There any brings it within and general rule herein announced exception thereto. having with the admitted intercourse
Defendant Whether it was or was not rape. it was not but contended identity jury. Neither defendant’s question a fact for the previous in sexual act question. nor intent was occurred woman, prosecutrix, at with a another time not the place thereof than that the information. Evidence gestae. prior could not be res The evidence of the act had no for which defendant was on trial. It connection with the act systematic plan embracing did not tend to establish scheme or of two or more offenses so related to each other the commission other, to establish proof tends or to connеct the charged. defendant with commission of the offense Gaimos, supra. acts, originating rape, whether or no
Sexual barroom pickups, powered by urge, and in automobiles, consummated day common in this entirely age too are have much evidentiary systematic showing plan. value scheme or State, Tex. Cr. R.
In Walker 281 S. W. *4 case, appears appellant “that forcible came to the prosecutrix represented boarding of the and tо house her that his employ baby companion to nurse and as her he desired to believing representation, and, she went with wife, said for his line, and end of the then walked to the him on the street car they reached had through a until woods appellant with pistol drawing a by spot, appellant rather secluded when prosecutrix The with him. her, intercourse forced her to have in the lived her that he appellant represented to testified that he thought was she they going, and that in which were direction giving her em- purpose taking her his home for the to ployment. ‘‘* * * testify appellant was negro permitted woman her he street, 1923, and told Gable to her house on came him, take somebody and she consented wanted work for Independence Heights, job, went with the defendant to and and direction, they on a car got and street at his instance got later down railroad track into woods out went they got woods, thе held somewhere, appellant in the and when gun her on the and forced to have intercourse witness witnesses, testimony by him. given Similar was various other by appellant. learned trial as to assaults made on them The they told charge court in his that if believed the state had connected the defendant with collateral assaults before they same, they must could consider believe that said assaults by defendant, they had been committed and if same had found сommitted, any so not purpose been then to consider them except system, motive, defendant, to illustrate and intent of the motive, system, if said collateral assaults illustrate did committing intent in the offense for which the defendant was * * * on trial. testimony case, “Under facts in of the collateral clearly above mentioned was transactions inadmissible. Mr. correctly stated Branch has the rule as follows: “ may ‘The fact that two or crimes more distinct have bеen ’ ” way “system.” same does not show committed the alleged previous of the acts defendant and evidence any way involving could tend disposition. Since he had introduced his character and show bad so introduced good reputation such evidence no clearly inadmissible. by state *5 114 may provides: “A 1947, 93-1901-11, M. witness
R. C. section called,- by against impeached by party whom he was reputa- general contradictory by or evidence evidence by truth, honesty, integrity bad, is but tion for or not evidence particular acts, may by wrongful except of be shown witness, judgment, the examination of the or the record of the felony.” that he has of been convicted a 587, said in 56 185 Pac. Popa, This court State Mont. ‘‘ 1114, given 1115: im- support Evidence either or peachment must, of of as a of character one accused rule, reputation, be confined to and cannot be extended particular Shadwell, 22 559, to acts. State v. Mont. 281.” 445,
In Jonеs, 441, Mont. said: we particular “Extrinsic of wrongful acts therefore admissible, against proof because it violates rule particular reputation, by facts to establish declared the statute. Rev. see. 8024 Codes, Codes R. now C. M. [Rev. sec. 93-1901-11, supra] ; Wigmore Evidence, 988; on sec. Underhill Evidence, Criminal 1 McClain on 307.” State, Williams v. (2d) 937, Okl. Cr. a rape case, said, quoting the OHahoma court leading from the “ Lapage, case of 57 N. Rep. H. 24 Am. 69: ‘To make one another, criminal еvidence of a connection be tween them must have existed actor, mind of linking together them purpose some he intended accomplish; or, to necessary identify it must be person to the actor shows connection which that he who committed the one must have done the other. Without this obvious connection, it is not only unjust prisoner compel to the him acquit himself of two of one, offenses instead but it is justice detrimental burden mislead the a trial jury. [*] * # multiрlied Proof that tend to confuse and issues first crime would show very respondent bad perhaps man —would show tendency crime; disposition particular or to commit that but more little amount to in fact would go further, and it would no inad character, which respondent’s upon an than attack his char an attack issue, puts it missible unless he inadmissible. is also acts, which by showing particular acter * * * necessity of extreme I case to illustrate mention this be seen testimоny unless there can caution not to admit such be requires, law connection, as the logical some distinct such ’ ’’ *6 in issue. and the fact proposed proved tween the fact to 250, 252, wherein Williams, In State v. Utah 10, evidence prosecuted rape for on a child of defendant was completed, defendant prosecutrix, assault had been that after had to his stated were other female children that come there offense, ad home with whom he had committed the same was Supreme holding in such evi mitted. The Court of Utah said dence inadmissible and introduction error: “The authorities its uniformly in a hold this class of eases that where defendant particular trial for a evidence that crime he on some other separate occasion wholly committed a and distinct crime dis charged connected from the person on some other than the one mentioned in the information or indictment is nevеr admissible. ‘Proof of a distinct substantive offense is never logical admissible there is unless some connection between the proof two from which it can be said that of the one tends to prosecution establish in the other. Thus a for rape testimony competent would not be a time comprehended at within gestae the res the defendant had rape committed a on another Gillett, woman.’ & Ind. Col. Ev. In Am. Wharton’s says: Crim. author ‘It is under no circum prosecutоr stances admissible for the put in evidence the general character, defendant’s bad his tendency or to commit particular charged, offense nor is it prove admissible independent though crimes, even of the same character, strictly except falling exceptions within the when stated.’ The exceptions consideration does not within the evidence under fall Enc. Ev. author. rule is stated referred to rape competent prosеcution for is not for as follows: ‘In a tending state to show the defend- to introduce evidence female other attempted ant commit similar offense ” prosecutrix.’ than the the Su- State, In Walker 23 Ariz. preme being pros- appellant Arizona “The was Court of said: person against rape ecuted the crime of committed May Brakebill, perpetration Ruthie and the of other crimes of wholly against persons similar than nature she being the issue, beside the crime —forcible —not one in which similar There could offense rule obtains. have been, therefore, asking purpose questions no other than these get guise before the certain statements of ques- tions, prejudicial highly would be appellant to the but county attorney which the assistant must have known were in- any purpose, though may admissible for even he have been they convinced were true.” crimes, they
Proof that accused committed othеr even if were charged, of like nature to that is not admissible to show depravity his propensities, or criminal or the resultant likelihood committing charged; may offense nor such evidence be offered if it prejudice tends to create a against accused *7 jury. the minds of the S., Law, C. J. Criminal sec. pages 1088, 1089.
The rule should strictly be enforced all cases applicable, where prejudicial because of the injus- effect and evidence, ticе of such and should departed not be from except under clearly conditions which justify such a departure. The exceptions carefully be should limited, and their number and scope S., not increased. C. J. page motion required Defendant’s that the state be to elect the alleged rape for tried, which defendant was to be should granted, by appropriate have been instruction the court should have directed the that defendant onwas trial and only. could be convicted that offense charge An information can but one offense. C. M. R. can naturally that a defendant 94-6407. It follows offense, convicted of but one tried for and supra. Gaimos, information. State v. constituting rape is
Every act of sexual intercourse separate M. section offense, R. C. and distinct since sexual intercourse” 94-4101, provides “Rape is an act of in such statute. accomplished under the conditions set out Although charged Sauter and Schneider the information under jointly accomplishing “an act of sexual intercourse” knew, amounting rape, prosecution from the conditions testimony indulged prosecutrix, of the defendant had each separate in a sexual prosecutrix. act of intercourse with the prosecution which, The further knew that there was evidence believed, if showed defendant to have assisted Schneider in accomplishing intercourse, by placing act of sexual a hand shoulder pressing of the some metallic object against neck, thereby putting her her in fear. prosecution
The court should have say directed the whether prosecuting it was defendant for the consisting offense accomplishing prosecutrix by intercourse with the himself, or if prosecuting it was defendant for the offense aiding assisting in consummating Schneider Schneider’s act of sexual prosecutrix. intercourse with the right cоmpel personal right election is a of the Duncan,
defendant. State v.
MR. JUSTICE and MR. JUSTICE BOT- CHIEF TOMLY, concur. (dissenting).
MR. JUSTICE ANGSTMAN: proof think that defend- permitting I did not err the court rape upon another act of another committed ant admited he *8 charged information the prior to the girl a month about very under similar shown in the act circumstances to those ma- chargеd. I concede rule stated in general to be as the jority opinion, but I a well established think this ease ruled exception general to the rule. companion,
The record shows that defendant and his defend- Schneider, They bought ant met in a barroom. They her persuaded get some drinks. her to into their auto- promise they mobile on the would take her to town where They go apply position singer. she to desired for as a took country companiоn her on-a road and after defendant’s had first hysterical raped condition, an her and reduced her to defendant took over and committed act of with an intercourse her without her consent.
The with girl other act the other was committed under strikingly similar circumstances. It one month occurred earlier. The that led events to that act were these: This defendant, his Schneider, two other up confederate men struck conver- girl They sation awith in a bаrroom. offered her a ride home. They her an drove isolated location. Defendant and two of men other left the one man raped car. left the car girl. so, After he had done of the others had intercourse defendant, finding girl her and then limp in the front seat of the car had intercourse with her and did know whether she was at conscious the time.
I think relating the evidence prior to the -offense was ad- scheme, missible show design, plan, pattern and сourse the defendant, action of and hence comes an exception within to the rule. practically People
This case same as Sullivan, that of App., Cal. wherein the court said: testimony concerning "The of B. R. offense was Appellant’s properly conduct admitted. that occasion similarity significant respects bore such his conduct in gen- herein to indicate a with the crime as connection by design. was directed It was plan eral that his conduct testimony same precisely reason that admissible
119 admis charged was deemed concerning the offense herein R. W. concerning for the offense appellant of trial upon sible App. Sullivan, 96 Cal. People v. herein, in testified which B. R. supporting cases (2d) 558.” Other (2d) 742, 216 Pac. E. 525, 168 S. State, 176 following: v. Ga. Suber
view are 543; State v. 13, (2d) 55 State, Ariz. 585; Taylor v. 111 citing Stitz, 850, v. 493, 268 Pac. State 126 Kan. Jenks, 186, Kan. Bisagno, 121 910 275, 206 Pac. Kan. 332, 137 People Cosby, App. 246 Cal. 1001; v. Pac. 272, 188 Cassandras, App. (2d) 83
(2d) 218; People v. Cal. 48;W. 546; Shtemme, 184, v. 133 Minn. 158 N. (2d) State 837; L. R. Cupit, 189 La. 179 167 A. So. Note in 594; Wharton, Evidence, 11th Ed., p. Wigmore, Evidence, 3rd Ed., II p. 265, where the may carry that points great significance author out such evidence ‘‘ design plan rape as a specific said, or of Courts have shown altogether much receiving too in hesitation such evidence.” And when a defendant with a sex the law is offense in admitting proof more similar liberal of sex offenses than in admitting evidence of similar offenses when а defendant charged with a non-sexual crime. Commonwealth Kline, Pa. 65 A. Bracey States, v. United App. U. S. D. C. 142 F. court
(2d) 85, pointed out that in trials for sexual offenses, evidence is concerning admissible acts intercourse of prosecutrix the accused and prior between specific upon being pointed which defendant was tried. The court out the District of Columbia had that not decided whether would be admissible that defendant had committed in com- upon sex оther victims than the one named offenses “Logically exception plaint. said: The court however pre- offenses. The emotional include such other would seem girl little would raping in passion disposition or involved Evi- raping in another.. as that involved seem the same to be girl shows upon one little a crime committed of such dence another, and the the same to commit disposition passion will predisposition probability the emotional оr great as the other. The better reasoned continue is as one case jurisdictions support also the admission such cases evidence, exception rule.” within the ruling point until
The court however reserved on the it was argued ease, testimony in ques- briefed and another since the theory tion in that on a different case was admissible and'for purpose. clearly different court however indicated authority both support reason the view thаt such evidence is admissible. repeatedly
We have held that evidence is admissible show defendant has committed other acts *10 charged. before or after the commission of the act State Peres, 358, 27 162; Vinn, Mont. 71 27, Pac. 50 State v. Mont. 773; 144 Harris, Pac. State v. 496, 198; 51 Mont. 154 Pac. Keeler, 52 205, State v. Mont. 156 1080, 1916E, Pac. L. R. A. 472, 1917E, Ann. Cas.
Likewise it is well settled in this state that of evidence other charged crimes similar to that and committed at about the same may time purpose be shown for the оf showing intent, plan, scheme, pattern, or course of part action on the of the accused. Pippi, State v. 59 Mont. 195 556; Pac. Cesar, State v. 72 1109; Mont. Hughes, State v. 76 Mont. 246 Pac. Simanton, 100 Mont. (2d) 981; Pac. Simpson, Mont. 761; State v. Knox, 119 Mont. (2d) 774. last the cited case former eases were they modified far so as hold that evidence of other offenses larceny is admissible to case, show intent applies but the rule still when the evidence of the offenses plan system design, operations. shows or of right I permitting think court was the the evidence com- noted, plained court, properly of be received. The it should be by purpose the an instruction to restricted the the jury.. opinion far majority so as leaves disagree
I the also with requiring grant the motion did impression that the court the against the committed which the offenses to elect state rely conviction. on for it would witness prosecuting satisfy made sufficient an election shows that record than being counsel other defendant, representing counsel then appeal. The record shows him representing those following: is on the this witness please,
“Mr. Felt: If court while Schneider, being co- George he one stand —the witness think it case tried for this offense—I defendants in this to be require which act proper at this time the State elect by prosecution. basis for this evidence is the disclosed particularly “Mr. Sande: I shows the act the evidence think being with.
“Mr. only Collins: There is one act each of defend- No be made. ants. choice is to out, pointed
“The Court: As counsel has proved possibly could be defendant, reference to this he charged with. would be Well, I
“Mr. Felt: it, do not care to technical about but definitely I offense, want it understood that it is the or act, committed John Sauter than rather committed by George Schneider. pleaded!
“The Court: Intent been “Mr. Felt: That has been done. I have looked into that. *11 Well, “The I— Court:
“Mr. I not Felt: do care to discuss— only crime, rape, “Mr. Collins: There is the crime it was. We do have to choose between them. whichever act rape. committed, the crime of one crime There ‘‘ By particular this defendant! The Court: Yes, defendant. “Mr. Collins: Very well.
“The Court: thing. the whole apply Which would “Mr. Collins: That what— “The Court: That sufficient.”
“Mr. Felt: charge I think understood what state relied as did also defendant and his counsel. judgment my opinion should be affirmed.
MR. JUSTICE METCALF:
I foregoing dissenting opinion concur of Mr. Justice Angstman. Appellant.
BAIRD, Respondent, BAIRD, No. 9023. Submitted March 1951. Decided June 1951.