No. 12797
I N THE SUPREME COURT O THE STATE O MONTANA
F F
1974
THE STATE O MONTANA, ex r e l .
F
DUNCAN PEDER McKENZIE , J R .
Petitioner,
THE DISTRICT COURT OF THE NINTH JUDICIAL
DISTRICT O f t h e S t a t e of Montana, i n and
f o r t h e County of Pondera and t h e HON.
R. D. McPHILLIPS, Judge t h e r e o f ,
Respondent .
OR.IGINAL PROCEEDING :
For P e t i t i o n e r :
Barney Reagan argued, Cut Bank, Montana
Charles L. Jacobson argued, Conrad, Montana
For Respondent :
Hon. Robert L. Woodahl, A t t o r n e y General, Helena,
Montana
Thomas J. Beers argued, A s s i s t a n t A t t o r n e y General,
Helena, Montana
David H . Nelson argued, County A t t o r n e y , Conrad, Montana
D o u g h s L. Anderson, Jr. argued, S p e c i a l P r o s e c u t o r ,
Conrad, Montana
fib,.
-. F . I
Submitted: 8,
~ u l y 1974
Decided : Abc - 6 1974
lionorable Gordon B e n n e t t , D i s t r i c t J u d g e , s i t t i n g i n p l a c e of M r .
J u s t i c e Gene B. Daly, d e l i v e r e d t h e Opinion o f t h e C o u r t .
T h i s i s an o r i g i n a l p r o c e e d i n g f o r a w r i t of s u p e r v i s o r y
c o n t r o l i n which t h e r e l a t o r s e e k s a n o r d e r d i r e c t i n g t h e d i s t r i c t
c o u r t t o s e t a s i d e i t s l e a v e t o f i l e a second amended i n f o r m a t i o n ;
t o s t r i k e a p l e a of n o t g u i l t y e n t e r e d by t h e c o u r t on b e h a l f o f
t h e r e l a t o r ; t o r e q u i r e t h e d i s t r i c t c o u r t t o l i m i t any i n f o r m a t i o n
t o be f i l e d t o such c h a r g e o r c h a r g e s a s t o which p r o b a b l e c a u s e
h a s been shown, o r t o r e l e a s e t h e r e l a t o r i f no p r o b a b l e c a u s e i s
shown, and t o r e q u i r e t h e d i s t r i c t c o u r t t o p e r m i t t h e f i l i n g of
o n l y such an i n f o r m a t i o n a s w i l l meet t h e r e q u i r e m e n t s o f due pro-
c e s s by a l l e g i n g a c r i m e o r c r i m e s i n a manner which w i l l p e r m i t
the relator t o intelligently enter a plea. Counsel f o r t h e r e l a t o r
was h e a r d e x p a r t e , whereupon we o r d e r e d and h e l d an a d v e r s a r y
h e a r i n g a t which r e l a t o r , r e s p o n d e n t and t h e a t t o r n e y g e n e r a l were
heard.
R e l a t o r i s d e f e n d a n t i n t h e c a s e of S t a t e o f Montana v .
Duncan McKenzie, f i l e d i n t h e n i n t h j u d i c i a l d i s t r i c t c o u r t i n
and f o r Pondera County. I n a second amended i n f o r m a t i o n he i s
c h a r g e d under t h e Montana C r i m i n a l Code o f 1973 w i t h seven c o u n t s
of d e l i b e r a t e homicide, t e n c o u n t s of a g g r a v a t e d k i d n a p p i n g , t h r e e
c o u n t s o f a g g r a v a t e d a s s a u l t and two c o u n t s of s e x u a l i n t e r c o u r s e
without consent. A l l s u c h a c t s a r e a l l e g e d t o have been committed
a g a i n s t one Lana Harding on o r a b o u t J a n u a r y 2 1 , 1974.
An o r i g i n a l i n f o r m a t i o n c h a r g i n g d e l i b e r a t e homicide o n l y
was f i l e d upon l e a v e of c o u r t on J a n u a r y 2 4 , 1974. O February 15,
n
1 9 7 4 , r e l a t o r moved f o r d i s m i s s a l of t h e i n f o r m a t i o n on g r o u n d s ,
i n t e r a l i a , t h a t i t p u r p o r t e d t o p l e a d i n t h e a l t e r n a t i v e and
t h e r e b y d e p r i v e d t h e d e f e n d a n t of knowledge a s t o t h e e l e m e n t s of
t h e offense charged. The county a t t o r n e y on F e b r u a r y 1 9 , 1974,
moved f o r l e a v e t o f i l e an amended i n f o r m a t i o n c h a r g i n g two c o u n t s
of deliberate homicide, aggravated kidnapping, sexual intercourse
without consent and aggravated assault. On March 15, 1974, re-
lator filed a number of motions directed at the amended complaint,
among them being a motion for an order requiring the state " * * *
to separately state and number each and every charge of the Amended
Information including each and every charge which is intended to
be covered as a possible offense * * *."
Before any plea was taken on the original information and
before any action was taken by the court on the proposed amended
information or any of the objections to the original information
or to the filing of the second information, the county attorney,
on May 20, 1974, moved for leave of the court to file a second
amended information. Relator filed his objections to the filing
of this information; argument and briefing was had thereon and on
May 28, 1974 the court granted leave to file the second amended
information, which is the information under review here, and the
information was filed that day. On May 30, 1974, the relator re-
fusing to enter a plea, the court entered a plea on his behalf of
"not guilty" to all 22 counts.
The first question to be considered is as to the form of
the motion for leave to file the second amended information. Re-
lator questions whether it complies with this sentence of section
95-1301, R.C.M. 1947: "the application must be by affidavit
supported by such evidence as the judge may require." While no
affidavit, labeled as such, was filed, the motion itself declares
that it is made on the oath of the county attorney, it is signed
by him and both the subscription and the oath are certified to by
the clerk of the court. There is no evidence contradicting or
raising any question as to the oath or the signature of either the
county attorney or the clerk of court. We find that the motion is
sufficient as an affidavit within the meaning of the cited section,
w h i l e a c the same t i m e conceding t h a t t h e b e t t e r p r a c t i c e would
have been t o f i l e t h e motion s u p p o r t e d by a s e p a r a t e a f f i d a v i t .
R e l a t o r a l s o a r g u e s , a s t o form, t h a t t h e motion i s a
mere d e c l a r a t i o n o r c o n c l u s i o n of t h e c o u n t y a t t o r n e y t h a t he
f i n d s p r o b a b l e c a u s e t h a t t h e s e v e r a l c r i m e s a l l e g e d have been
committed and i s t h e r e f o r e i n s u f f i c i e n t under o u r r u l i n g i n S t a t e
e x r e l . B e l l v . D i s t . C o u r t , 157 Mont. 35, 38, 482 P.2d 557.
I n p e r t i n e n t p a r t , t h e motion s t a t e s :
" T h i s motion i s made f o r t h e r e a s o n t h a t t h e
s a i d County A t t o r n e y h a s i n v e s t i g a t e d t h e f a c t s
and c i r c u m s t a n c e s c o n c e r n i n g t h e commission o f
t h e a l l e g e d o f f e n s e s and i s of t h e b e l i e f t h a t
t h e s a i d Defendant, DUNCAN McKENZIE, committed
t h e s a i d c r i m e s a t t h e t i m e and p l a c e a f o r e s a i d .
That t h e s a i d County A t t o r n e y h a s p e r s o n a l l y
i n t e r v i e w e d and/or t a k e n s t a t e m e n t s from t h e
f o l l o w i n g named p e r s o n s a s shown by E x h i b i t "A"
a t t a c h e d h e r e t o and hereby made a p a r t of t h i s
Motion: And from s a i d i n t e r v i e w s and s t a t e m e n t s
t h e s a i d County A t t o r n e y h a s r e a s o n t o b e l i e v e
that: "
Following t h i s s t a t e m e n t i s a r e c i t a t i o n f o u r and o n e - h a l f p a g e s
l o n g s e t t i n g f o r t h p u r p o r t e d f a c t s d i s c o v e r e d by t h e c o u n t y a t t o r -
new i n an a p p a r e n t l y l e n g t h y i n v e s t i g a t i o n i n v o l v i n g 58 l i s t e d
w i t n e s s e s and an e x h a u s t i v e a u t o p s y r e p o r t , a copy o f which i s
attached. While t h e c o n c l u s i o n s s t a t e d a r e t h o s e o f t h e c o u n t y
a t t o r n e y , i t i s p a t e n t from t h e whole t e n o r of t h e motion t h a t
t h e c o u n t y a t t o r n e y was n o t s e e k i n g l e a v e t o f i l e t h e i n f o r m a t i o n
on t h e b a s i s of h i s c o n c l u s i o n s , b u t on t h e b a s i s o f t h e f a c t s
he p r e s e n t e d . T h i s d i s t i n g u i s h e s t h i s c a s e from B e l l where t h i s
Court found n o t h i n g i n t h e r e c o r d t o shotz7 t h a t t h e s t a t e had
s u f f i c i e n t f a c t s t o e s t a b l i s h probable cause. Here, t h e c o u n t y
a t t o r n e y p r e s e n t e d a l a r g e a r r a y of p u r p o r t e d f a c t s i n a c c e p t a b l e
a f f i d a v i t form. Nothing f u r t h e r i s r e q u i r e d , as t o form, by s e c -
t i o n 95-1301. There i s no r e q u i r e m e n t , a s r e l a t o r urged i n a r g u -
ment, t h a t t h e r e be a s u p p o r t i n g a f f i d a v i t of a w i t n e s s h a v i n g
d i r e c t knowledge of t h e a l l e g e d c r i m e . S t a t e v . Dunn, 155 Mont.
319, 472 P.2d 288.
As to substance, relator argues that the facts presented
in the motion were insufficient, even if believed by the judge,
to establish probable cause to believe the crimes alleged in the
information were committed or committed by him. The motion in-
cluded the following purported facts.
The victim was an unmarried 23 year old female school-
teacher who lived and taught at a country school in Pondera
County and she enjoyed the respect of the community.
She was last seen alive in the late afternoon hours of
January 21, 1974, in Conrad. Her partially clad body was discovered
January 23, 1974, approximately five miles northwest of her school.
An autopsy performed by a licensed physician concluded
that the victim died of traumatic injury to the head and that head
injuries included scalp lacerations, skull fracture, brain contu-
sion and laceration, exsanguination from external hemorrhage, and
abrasive contusions of the face. He also reported multiple abra-
sions and contusions to trunk and extremities, recent asphyxia1
strangulation from rope about the neck and evidence of recent
sexual assault consisting of vaginal laceration of the hymenal
area and human spermatazoa present in vagina and pubic hair. He
also indicated a time period of more than one hour elapsed be-
tween the first injuries to the victim and the time she died.
On the evening of January 21, 1974, relator left the place
of his employment at about 6:30 or 7:00 p.m. and his black Dodge
pickup was observed at about 7:00 p.m. in the vicinity of the
teacherage where the victim resided. A resident of the area assisted
him in starting his stalled pickup at about 8:00 to 8:30 p.m., at
a location approximately 150 feet from the teacherage. t el at or's
home is south of the teacherage. After having been assisted in
starting his vehicle relator turned east and his pickup was observed
going north at about 8:30 p.m. in the direction of the site
where the body was found.
The bed, springs and manifold of relator's pickup were
stained with blood. The blood on the manifold was determined
to be of the same type as the victim's. Hair found in and about
the pickup was determined to have the same characteristics as
the victim's. At a point near the place where the relator was
assisted in starting his pickup was found a pool of blood of the
victim's type and the victim's wrist watch.
Relator had made statements to his co-workers in regard
to his sexual prowess with school teachers and he had made spec-
ific reference to the victim. The teacherage was on the road
between where the relator worked and where he lived and he was
in exclusive possession of the pickup.
Seminal secretions found in the pubic hair of the victim
were connected to the blood type of the relator.
Examination of the teacherage and the yard surrounding
it indicated the victim had been dragged across the floor and
the yard, through a fence and to the point where the blood pool
and watch had been found in the near vicinity of where relator's
pickup had been stalled.
From these purported facts, and others, the judge found
probable cause to believe the relator had committed the crimes
alleged in the proposed information and granted leave to file it.
," ?
In 1903, this Court in State v. M a r t i n ~ f M o n t .273, 275,
laid down some ground rules for consideration of the validity of
challenged informations:
"Obtaining leave to file an information without
a previous examination of the accused before a
committing magistrate is not a mere perfunctory
matter which should be granted as of course, but
rests in the sound discretion of the district
judge, upon the showing made to him at the time
* * *,
"An abuse of discretion materially prejudicing a
substantial right of the accused would be ground
for reversal * * * the appellate court cannot
presume that the trial court exceeded its authority
or abused its discretion."
In State ex rel. Juhl v. District Court, 107 Mont. 309,
316, 84 P.2d 979, we held:
"* * * there must be sufficient facts and
information presented to the court to move the
discretion of the court * * *."
The Criminal Law Commission appended this comment to section
95-1301, R.C.M. 1947: " * * * The application must be complete
in itself, and contain such salient facts as will allow the dis-
trict judge to make an independent determination that an offense
has been committed. * * *"
Section 95-1301(a), R.C.M. 1947, requires the judge to
find "probable cause" to believe that an offense has been committed
as a condition for granting leave to file an information. The term
"probable cause" was discussed in State ex rel. Pinsoneault v.
Dist. Ct., 145 Mont. 233, 239-240, 400 P.2d 269, where the Court
adopted several definitions, including:
" * * * knowledge of facts, actual or apparent,
strong enough to justify a reasonable man in the
belief that he has lawful grounds for prosecuting
the defendant * * *"
and
" * * * the concurrence of the belief of guilt with
the existence of facts and circumstances reasonably
warranting the belief. "
Following these principles, we find the purported facts
presented in the county attorney's motion were more than sufficient
to properly and adequately move the court's discretion in finding
probable cause to believe that the crimes of deliberate homicide
(94-5-102), aggravated assault (94-5-202), sexual intercourse
without consent (94-5-503) and aggravated kidnapping (94-5-303),
all of the Criminal Code of 1973, had been committed by the relator
and that it therefore was authorized to grant leave to file an
information charging any or all of these crimes.
The next question is whether all of these crimes could
or should have been included in a single information. The joinder
provisions of section 95-1504, R.C.M. 1947, are highly flexible.
Part (a) thereof permits an information to charge two or more
different offenses connected together in their commission, dif-
ferent statements of the same offense, or two or more different
offenses of the same class of crime under separate counts. This
1967 statute is reinforced by the 1973 statute, section 95-1711(2),
R.C.M. 1947, which provides: " * * * When the same transaction
may establish the commission of more than one offense, a person
charged with such conduct may be prosecuted for each such offense.
* * *" The prosecution is not required to elect between different
offenses or counts and there may be a conviction of any number of
offenses charged, section 95-1504(a), R.C.M. 1947. But where the
offenses arise from the "same transaction" the number of convictions
that can be had on them is limited by section 95-1711(2), R.C.M.
1947. On the other hand, if a number of crimes arise from the
"same transaction", as defined in that statute, the prosecution
is bound to prosecute them all at one time, insofar as he can, at
the risk of running into a maze of double jeopardy problems set
forth in part (3) of the above statute.
In view of the above provisions, we see no bar to the
charging of all four categories of crime set forth in the infor-
mation. Inasmuch as the alleged crimes all arise from the same
transaction, the prosecution is well advised to charge all of them
as it may be its only opportunity to do so. Upon the trial of the
case, the court may be required to limit by instruction the num-
ber and kind of verdicts the jury may return on the basis of the
evidence presented and on the limitations of section 95-1711(2),
R.C.M. 1947, but that is of no concern here.
We turn then to the manner in which these crimes should
be charged.
The purpose of an information is to inform the defendant
of what he is charged, nothing more, nothing less. Section 95-
1503, R.C.M. 1947, requires a statement of the name of the of-
fense, the statute violated, the time and place, the name of the
accused and " * * * the facts constituting the offense in ordinary
and concise language and in such manner as to enable a person of
common understanding to know what is intended." No bill of par-
ticulars is called for or permitted, nor is a statement of all
possible legal theories the prosecutor intends to pursue. It is
not the function of the information to anticipate or suggest in-
structions to the jury, to argue the case or to influence either
public opinion or the jury. It is a notice device, not a discovery
device.
The information in this case includes seven counts of
deliberate homicide. The first count charges purposely and know-
ingly causing the death of the victim. The second count charges
purposely and knowingly causing the death of the victim by means
of torture. The third count charges purposely and knowingly
causing the death of the victim by lying in wait. The fourth count
charges purposely and knowingly causing the death of the victim
while committing the crime of sexual intercourse without consent.
The fifth count charges purposely and knowingly causing the death
of the victim while committing the crime of aggravated assault
causing serious bodily injury. The sixth count charges purposely
and knowingly causing the death of the victim while committing the
crime of aggravated assault causing bodily injury by use of a
weapon, namely a rope. The seventh count charges purposely and
knowingly causing the death of the victim while committing the
crime of aggravated assault causing bodily injury by use of a weapon,
namely a heavy object.
- 9 -
We believe these seven counts of deliberate homicide
should be reduced to two, in accordance with the alleged facts
and the statutory definition of the crime. The statute tells us
there are two kinds of unmitigated delherate homicide (94-5-102(1)) .
The first kind is committed when the offense is committed "pur-
posely or knowingly". The second kind is committed when the
offense is committed " * * * while the offender is engaged in or
is an accomplice in the commission of, or an attempt to commit,
or flight after committing or attempting to commit robbery, sexual
intercourse without consent, arson, burglary, kidnapping, felon-
ious escape or any-other felony which involves the use or threat
of physical force or violence against any individual". The first
count should be similar to the first count in the present infor-
mation; i.e. it should simply allege that the crime was committed
"purposely and knowingly". The second count should allege alterna-
tively that the crime was committed while the relator was engaged
in other felonies. These could include aggravated assault, sexual
intercourse without consent and aggravated kidnapping.
It is neither appropriate nor necessary to base separate
counts on torture or lying in wait, counts 2 and 3. Section 94-5-
105, Criminal Code of 1973, deals with sentencing and does not de-
fine a specific crime. If torture or lying in wait, or both, are
alleged as part of the second count, the defendant is sufficiently
notified of what the prosecution intends to prove. If justified
by the evidence, the court may instruct on these two features and
ask for a special verdict on them to assist in fixing the penalty.
So, too, with the special aggravated assault weapon counts,
No.'s 6 and 7. Use of a weapon or weapons may be an appropriate
specification under aggravated assault in the second deliberate
homicide count, but it should not be elevated to the dignity of
special count in this case. Again, it might become the subject
of an appropriate instruction, if justified by the evidence.
Aggravated kidnapping is set forth in ten counts in the
information, counts 8 through 17, inclusive.
Six of them, counts 8, 9, 10, 13, 14 and 15, allege the
purpose was to facilitate the commission of the crime of aggra-
vated assault. The first three of these, counts 8, 9 and 10,
allege secreting or holding, and the second three, counts 13, 14
and 15, allege the use of physical force. Counts 8 and 13 spec-
ify no particular implements, but 9 and 14 specify the use of a
rope, and 10 and 15 specify the use of a heavy object.
Counts 11 and 16 allege the purpose was to facilitate
commission of the crime of sexual intercourse without consent.
Count 11 specifies secreting or holding and count 16 specifies the
use of physical force. Count 12 alleges the victim was secreted
or held with the purpose of inflicting bodily injury or terroriz-
ing her, and count 17 alleges physical force was used for the same
purpose or purposes.
We can find no rationale for this plethora of counts.
Section 94-5-303(1) defines aggravated kidnapping:
"(1) A person commits the offense of aggravated
kidnapping if he knowingly or purposely and with-
out lawful authority restrains another person by
either secreting or holding him in a place of
isolation, or by using or threatening to use
physical force, with any of the following purposes:
"(a) to hold for ransom or reward, or as a shield
or hostage; or
"(b) to facilitate commission or any felony or
flight thereafter; or
"(c) to inflict bodily injury on or to terrorize
the victim or another; or
"(d) to interfere with the performance of any
governmental or political function; or
"(e) to hold another in a condition of involuntary
servitude."
The facts alleged in the prosecution's motion for leave to file
the information would seem to justify counts based on parts (b)
and (c) of the statute. The count under part (b) could specify
the felonies of aggravated assault and sexual intercourse with-
out consent, in the alternative if appropriate, and describe the
means, such as a rope, and methods, such as secreting, where
necessary and appropriate. The second count, under part (c),
could be set forth almost in the words of the statute without
detailed specification. Once again, it seems that this would
fulfill the notice requirement of an information. The defend-
ant has available extensive discovery procedure to determine
the details of the prosecution's case.
All three counts of aggravated assault, counts 18, 19
and 20, allege, in the words of the statute, purposely and know-
ingly causing serious bodily injury, and counts 19 and 20 specify
use of a weapon, namely a rope and a heavy object, respectively.
The-statute, section 94-5-202(1), specifies four types of aggra-
vated assault:
1 A person commits the offense of aggravated
assault if he purposely or knowingly causes:
"(a) serious bodily injury to another; or
"(b) bodily injury to another with a weapon; or
"(c) reasonable apprehension of serious bodily
injury in another by use of a weapon; or
(d) bodily injury to a peace officer."
It would seem sufficient to limit the counts of aggravated assault
to two, based on parts (a) and (b) of the section, specifying al-
ternatively the rope and the heavy object as the weapon in the
count based on part (b) .
Counts 21 and 22 allege sexual intercourse without con-
sent. They are essentially the same except count 22 specifies
bodily injury. The statute, section 94-5-503, defines a single
crime. Subsection (1) provides:
"A male person who knowingly has sexual inter-
course without consent with a female not his
spouse commits the offense of sexual inter-
course without consent."
Subsection three increases the penalty in cases where the victim
is less than 16 years old and the offender is three years older,
or the victim is injured. A single count, based on the definition
of the crime, would be adequate notice to the defendant in this
case. The defendant is certainly on notice from all the other
counts and the motion for leave to file the information that the
prosecution intends to prove injury. If the court deems it nec-
essary as an aid to sentencing, it may ask for a special verdict
on whether injury was inflicted in the course of committing the
sexual offense, if any such offense be proven.
In summation, it is our opinion that the crimes for which
probable cause has been shown could be charged in a total of seven
counts instead of twenty-two without loss of necessary notice to
the relator and with considerable gain in comprehensibility to
the trial jury.
Next, the relator complains the information cites several
penalty provisions of the code, which he says are unnecessary,
redundant and inflamatory. He is correct. We refer to citation
of the following sections and subsections in the counts noted:
94-5-102 (2), count 1; 94-5-105 (1) (d) , count 2; 94-5-105 (1)(e),
count 3; 94-5-303(2) and 94-5-304, counts 8, 9, 10, 11, 12, 13,
14, 15, 16 and 17; 94-5-202 (2), counts 18, 19 and 20; 94-5-503 (2),
count 21, and 94-5-503(3), count 22.
Finally, the relator asks that the "not guilty" plea enter-
ed by the court on his behalf be stricken. It is sufficient to
note that the court was required to do so under the provisions of
section 95-1606(c), R.C.M. 1947, the relator having refused to
enter a plea. The relator may change the plea at any time prior
t o c o n v i c t i o n i f h e s o dssires.
The c a u s e i s remanded t o t h e d i s t r i c t c o u r t f o r f u r t h e r
proceedings c o n s i s t e n t with this opinion.
Hon. Gordon B e n n e t t , D i s t r i c t J u d g e ,
s i t t i n g i n p l a c e of M r . J u s t i c e Gene
B. Daly.
Chief J u s t i c e
-
s t r i b t Judge
s i t t i n g f o r M r . j u s t i c e Wesley
Castles.