No. 13384
I N THE SUPREME COURT O THE STATE O M N A A
F F OTN
1976
THE STATE O M N A A O THE
F OTN F
RETATION O JAMES E. MURPHY,
F
Relator,
THE HONORABLE LeROY L. McKINNON,
DISTRICT JUDGE O THE TENTH JUDICIAL
F
DISTRICT OF THE STATE O M N A A I N
F OTN
AND FOR THE C U T O FERGUS,
O NY F
Respondent.
ORIGINAL PROCEEDING :
Counsel o f Record :
F o r Rela t o r :
B e r g e r , Anderson, S i n c l a i r and Murphy, B i l l i n g s ,
Montana
Arnold B e r g e r a r g u e d , B i l l i n g s , Montana
F o r Respondent:
Hon. R o b e r t L. Woodahl, A t t o r n e y G e n e r a l , Helena,
Montana
John F. North a p p e a r e d , A s s i s t a n t A t t o r n e y G e n e r a l ,
Helena, Montana
W i l l i a m A. S p o j a , County A t t o r n e y , a r g u e d ,
Lewistown, Montana
Submitted: J u n e 7, 1976
M r . J u s t i c e Gene B . Daly delivered t h e Opinion of t h e Court.
This i s an o r i g i n a l proceeding wherein r e l a t o r James E. Murphy
seeks a w r i t of supervisory c o n t r o l , on a p p l i c a t i o n from t h e
d i s t r i c t c o u r t of Fergus County.
The f a c t s a r e : A t approximately 9:00 a.m. on A p r i l 29, 1975,
James Murphy, Edwin Rasmussen and Gary Smith entered t h e Roy Bar
located i n Roy, Montana. Seated a t t h e f a r end of t h e b a r was
Ray Hamann, t h e owner and operator. Hamann had had dealings with
t h e t h r e e men before and was t o t e s t i f y a t a pending t r i a l i n which
t h e t h r e e were named a s defendants. This involved an a l t e r c a t i o n
with o t h e r persons t h a t had previously taken place i n t h e Roy Bar.
While Murphy and Smith seated themselves a t t h e b a r some d i s t a n c e
from Hamann, Edwin Rasmussen walked up behind Hamann and jerked
him o f f h i s b a r s t o o l . Three s e p a r a t e a t t a c k s by Rasmussen on
Hamann followed over a s h o r t period of time, t h e l a s t r e s u l t i n g i n
Hamann's death. During t h e course of t h e s e a t t a c k s , Gary Smith f l e d ,
but Murphy remained i n t h e b a r . A f t e r t h e t h i r d a t t a c k Murphy ren-
dered a s s i s t a n c e t o Hamann and turned him over so t h a t he would not
choke on h i s own blood. He then t o l d t h e barmaid Linda Alexander
t o c a l l an ambulance. A f t e r t h e l a s t a t t a c k on Hamann an unspeci-
f i e d amount of money was taken from t h e cash r e g i s t e r by Edwin
Rasmussen.
O May 5 , 1975 motions supported by a f f i d a v i t s were made
n
by t h e s t a t e f o r leave t o f i l e Informations d i r e c t , charging both
Rasmussen and Murphy with d e l i b e r a t e homicide. The motions were
allowed by t h e d i s t r i c t c o u r t . A Information was f i l e d a g a i n s t
n
Edwin Rasmussen charging him with d e l i b e r a t e homicide pursuant t o
section 94-5-102, R.C.M. 1947, as the result of his physical
actions against Ray Hamann.
By separate Information Murphy was also charged with deliberate
homicide by reason of his words and physical presence during the
attacks on Ray Hamann. On May 15, 1975, an Amended Information
was filed against Murphy, still charging him with deliberate homi-
cide, but containing new allegations as to his role in the attacks.
Specifically, he was charged:
"* * * as accessory and principal [in that he either]
purposely or knowingly caused the death of Ray Hamann
[or in the alternative] as accessory and principal [in
that he] caused the death of * * * Ray Hamann while en-
gaged in the commission of a Felony-Tampering with a
Witness, which felony involved the use or threat of
physical force or violence against * * * Ray Hamann, or
during the commission of or flight after the commission
of Felony-Robbery." [Bracketed material paraphrased].
Subsequently the Information against Rasmussen was also amended
to i include additional charges of deliberate homicide as the
result of robbery, and tampering with a witness.
Upon arraignment Murphy entered a plea of not guilty to the
Amended Information. Rasmussen plead guilty to the chargesgainst him
and received a prison sentence. Thereafter, on April 15, 1976,
Murphy filed several motions with the district court. These motions
were :
1. Motion to dismiss the Amended Information upon the
ground that the affidavit contained insufficient facts to support
the filing of an Information.
2. Motion to suppress any statement or affidavit attributed
to Ray Hamann.
3. Motion in limine to prohibit the state from asking certain
questions of witnesses.
On April 23, 1976, the state filed an amended affidavit. On
May 11, 1976, the district court denied all of Murphy's motions.
It is from a denial of these motions and the further contention
the amended affidavit is still insufficient to support the Amended
Information, that application is made to this Court for a writ of
supervisory control.
First, we consider whether sufficient facts were:. before
the district court to support the granting of leave to file an
Information direct, charging Murphy with deliberate homicide.
Section 94-5-102(1), R.C.M. 1947 states:
"Deliberate homicide (1) Except as provided in section
94-5-103(1)(a), criminal homicide constitutes deliberate
homicide if:
"a
() it is committed purposely or knowingly; or
" (b)it 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, felonious escape or any other felony which
involves the use or threat of physical force or violence
against any individual. "
Given the circumstances surrounding asm muss en's attack on
Ray Hamann, including the admission in the amended affidavit that
"no other person struck or hit the said Ray Hamann to cause any
injury to him", it necessarily follows that to determine whether
sufficient facts exist to charge Murphy with deliberate homicide
in either intentionally causing Hamann's death by kicking and
J-
beating pursuant to section 94-5-102(a)' or as the result of tampering
i
with a witness under section 94-5-102(b), we examine the statute on
criminal accountability. That statute, section 94-2-107, R.C.M. 1947,
reads in pertinent part:
"When accountability exists. A person is legally
accountable for the conduct of another when:
" 1 having a mental state described by the statute
()
defining the offense, he causes another to perform the
conduct, regardless of the legal capacity or mental
state of the other person; or
"2
() The statute defining the offense makes him so
accountable; or
( ) either before or during the commission of an
"3
offense, and with the purpose to promote or facilitate
such commission, he solicits, aids, abets, agrees or
attempts to aid, such other person in the planning or
commission of the offense. ***
As to the sufficiency,,d
the amended affidavit, we note it is
well established that leave to file an Information direct may be
granted only upon probable cause as evidenced by the affidavit before
the district court, and any other evidence which the court may
require. Section 95-1301(a), R.C.M. 1947; State ex rel. Bell v.
District Court, 157 Mont. 35, 482 P.2d 557; State v. Dunn, 155 Mont.
319, 472 P.2d 288. Examination of the record reveals no supporting
evidence other than the amended affidavit . Thus, in determining
whether probable cause existed this Court is confined to the con-
tents of the amended affidavit. Petition of Gray, 155 Mont. 510,
473 P.2d 532. The amended affidavit reads in relevant part:
"That prior to the attack by Edwin Rasmussen, there was
a discussion between Edwin Rasmussen and Defendant, James
Murphy, of the testimony of the said Ray Hamann to be given
at a pending trial of State of Montana vs. Edwin Rasmussen
and James Murphy on another charge (this according to admis-
sions of the Defendant before your affiant and Sheriff Jack
L. Songer) ; and,
"That immediately subsequent to said discussion the Defendant,
Rasmussen and witness Gary Smith proceeded directly to the
Roy Bar owned by the decedent and then Edwin Rasmussen, immedi-
ately upon entering, went forthwith to the decedent and
attacked him, (this according to witnesses Alexander, Kalal
and Smith) ; and,
"That thereafter Defendant, James Murphy, at no time took
any physical steps to restrain Edwin Rasmussen but instead
upon at least one occasion reprimanded the said Ray Hamann
and said that 'he [Hamann] had this coming' or words to that
effect . (Statements of Linda Alexander)"
W f a i l t o s e e how such a l l e g a t i o n s can s u f f i c e t o e s t a b l i s h
e
probable cause t h a t Murphy c o ~ i t t e d e l i b e r a t e homicide i n t e n t i o n a l l y
d
o r a s t h e r e s u l t of witness tampering. The d e f i n i t i o n s of d e l i b e r a t e
homicide and c r i m i n a l a c c o u n t a b i l i t y contemplate a more a c t i v e r o l e
before a person can be charged a s a p r i n c i p a l o r accessory t o
murder. The amended a f f i d a v i t does not s t a t e a s f a c t t h a t Murphy
went t o t h e b a r with t h e purpose of harming Hamann; i t merely s t a t e s
he had discussed w i t h Rasmussen t h e f a c t t h a t Hamann was t o t e s t i f y
a t t h e i r pending t r i a l . The a f f i d a v i t s t a t e s Murphy was i n f a c t
i n t h e b a r during Rasmussen's a t t a c k s on Hamann. However, t h i s
Court has long adhered t o t h e p r i n c i p l e t h a t more than mere presence
a t t h e scene of a crime i s necessary t o e s t a b l i s h c r i m i n a l responsi-
bility. S t a t e v. McComas, 85 Mont. 428 , 278 P. 993. Neither does
t h e a l l e g a t i o n t h a t Murphy d i d l i t t l e t o s t o p t h e a t t a c k s b u t r a t h e r
rendered an opinion t h a t Hamann "had t h i s coming" c o n s t i t u t e
s u f f i c i e n t evidence of c r i m i n a l design and encouragement on t h e
p a r t of Murphy. The a f f i d a v i t goes on t o s t a t e a s f a c t :
"That Defendant, James Murphy, 1 ) encouraged by words t h e
s a i d Edwin Rasmussen, 2) planned t h e i n i t i a l c o n t a c t with
t h e s a i d Ray Hamann by t h e Defendant and others.* *I1 *
However such statements a r e not f a c t s b u t only conclusions, con-
c l u s i o n s not supported by o t h e r f a c t s i n t h e amended a f f i d a v i t .
I n summary, t h e Revised Commission Comment on s e c t i o n 95-1301,
R.C.M. 1947, i s appropriate. It s t a t e s i n pertinent part:
'I* ** Obtaining leave t o f i l e an information i s n o t a
mere perfunctory matter * * *. The a p p l i c a t i o n must be
complete i n i t s e l f , and contain such s a l i e n t f a c t s a s
w i l l allow t h e d i s t r i c t judge t o make an independent
determination t h a t an offense has been committed."
See a l s o : S t a t e ex r e l . B e l l v. D i s t r i c t Court, 157 Mont. 35, 482
P.2d 557.
- 6 -
The amended affidavit before us fails this test, making an
independent determination of probable cause by the district court
impossible. This conclusion applies to both the charge of inten-
tionally causing, as an accessory or principal, the death of Ray
Hamann and to the alternative charge of being an accessory or
principal to the death caused by tampering with a witness by means
of forde or violence.
The question of whether probable cause existed to believe
Murphy committed deliberate homicide during the commission of
robbery or flight thereafter, the relevant portion of the amended
affidavit reads:
"That in addition to the above, the said Rasmussen and
Defendant, immediately after the attacks on Hamann, took
and used certain cash money from the cash register and
decedent's wallet and Rasmussen took certain liquor from
the bar * * *.I1
In light of this portion of the amended affidavit and the other
theories advanced by the state in its claim that Murphy committed
deliberate homicide, we note with approval the following guidelines
as to the applicability of the felony-murder rule stated in 1 Wharton's
Criminal Law and Procedure (Anderson), 5252, p. 543:
"For the felony-murder rule to apply, it is necessary that
the homicide be a natural and probable consequence of the
commission or attempt to commit the felony; that the homicide
be so closely connected with such other crime as to be
within the res gestae thereof; or the natural or necessary
result of the unlawful act; or that it be one of the causes.* **
"Something more than a mere coincidence of time and place
between the wrongful act and the death is necessary. It
must appear that there was such actual legal relation between
the killing and the crime committed or attempted that the
killing can be said to have occurred as a part of the perpetra-
tion of the crime, or in furtherance of an attempt or purpose
to commit it .I1
Thus for the felony-murder rule to apply a causal connection between
the felonious act and the death must be present. State v. Schwensen,
237 Ore. 506, 392 P.2d 328; Commonwealth v. Redline, 391 Pa.
486, 137 A.2d 472; People v. Hardy, 33 C.2d 52, 198 P.2d 865;
S t a t e v. Diebold, 152 Wash. 68, 277 P. 394.
Examining t h e amended a f f i d a v i t a s a whole and t h e s e c t i o n
p e r t a i n i n g t o t h e a l l e g e d robbery i n p a r t i c u l a r , we f i n d c a u s a l
connection lacking f o r s e v e r a l reasons: F i r s t , t h e mere a l l e g a t i o n
t h a t t h e robbery occurred "immediately" a f t e r t h e a t t a c k s i s n o t
s u f f i c i e n t by i t s e l f t o e s t a b l i s h p b a b l e cause t o b e l i e v e t h e
a t t a c k s were i n p e r p e t r a t i o n . Second, t h i s i s e s p e c i a l l y s o i n
l i g h t of t h e i n c o n s i s t e n t theory advanced by t h e s t a t e t h a t t h e
a t t a c k s were i n f a c t r e t a l i a t i o n f o r Hamann's planned appearance
a s a witness a t a pending t r i a l . Third, i f we a r e t o b e l i e v e t h a t
t h e a t t a c k s may have had a two-fold purpose, t h e i n t i m i d a t i o n of
Hamann and robbery, t h e amended a f f i d a v i t s t i l l contains i n s u f f i -
c i e n t f a c t s upon which t o base probable cause.
%Holdingt h a t probable cause d i d n o t e x i s t f o r f i l i n g an
Information a g a i n s t r e l a t o r Murphy under any of t h e t h e o r i e s
advanced by t h e s t a t e , t h i s Court does n o t reach t h e o t h e r i s s u e s
r a i s e d by h i s a p p l i c a t i o n .
The w r i t w i l l i s s u e with d i r e c t i o n t o dismiss t h e charge under
c o n s i d e r a t i o n with prejudice.
We Concur:
Hon. Gordon B e n n e t t , d i s t r i c t
judge, s i t t i n g i n p l a c e of M r .
Chief J u s t i c e James T . H a r r i s o n .