No. 12979
I N THE SUPREME COURT OF THE STATE OF M N A A
OTN
1975
THE STATE O MONTANA,
F
P l a i n t i f f and Respondent,
-VS -
ARTHUR HEINE,
Defendant and A p p e l l a n t .
Appeal from: D i s t r i c t Court o f t h e T h i r t e e n t h J u d i c i a l D i s t r i c t ,
Honorable C h a r l e s Luedke, Judge p r e s i d i n g .
Counsel o f Record :
For A p p e l l a n t :
John L. Adams, Jr, argued, B i l l i n g s , Montana
F o r Respondent:
Hon. Robert L Woodahl, A t t o r n e y General, Helena,
.
Montana
C h a r l e s E, Erdman, A s s i s t a n t A t t o r n e y G e n e r a l , a r g u e d ,
Helena, Montana
Harold F. Hanser, County A t t o r n e y , argued, B i l l i n g s ,
Montana
Submitted: November 7 , 1975
Decided : ..E..p.
Mr. Justice John Conway Harrison delivered the Opinion of
the Court.
Arthur Heine was convicted by a Yellowstone County jury
of "driving a vehicle while under the influence of intoxicating
liquor," section 32-2142, R.C.M. 1947, and of "aggravated assault,"
section 94-5-202, R.C.M. He was specifically accused by Informa-
tion of deliberately causing a head-on collision with another
vehicle in which his ex-wife, son, daughter-in-law, and three week
old grandchild were riding.
At trial, defendant attempted to convince the jury the
collision was only an accident, and that his intoxicated condition
obviated any possibility the act was committed with any degree of
deliberateness. In response to this contention, the prosecuting
attorney offered evidence which tended to refute defendant's claim.
Over his objection, defendant's ex-wife was allowed to testify
concerning several events, all taking place within three years of
the assault for which he has been convicted. This testimony es-
tablished that defendant once tried to ram his ex-wife's car broad-
side with his own; that he had twice driven his car through her
garage door without first bothering to open it; and, that he once
successfully attacked and stabbed her with a knife.
Additionally, several character witnesses were called to
testify in defendant's behalf, concerning his reputation for peace
and quiet in the community. The prosecuting attorney was then
allowed to cross-examine these witnesses through the introduction
of defendant's police record dating back to 1948. This record
contained references to a number of prior arrests on charges
ranging from disorderly conduct to destruction of property.
On appeal, it is first contended the district court erred
in admitting evidence of other offenses, and specifically the
assault committed by defendant upon his ex-wife.
It is the rule that evidence of other offenses or similar
acts p e r p e t r a t e d a t o t h e r t i m e s are inadmissible f o r t h e purpose
of showing t h e commission of t h e p a r t i c u l a r crime c h a r g e d .
S t a t e v . T a y l o r , 163 Mont. 1 0 6 , 1 2 1 , 515 P.2d 695. However, under
a well-established e x c e p t i o n , such e v i d e n c e i s n o t e x c l u d e d when
o f f e r e d t o prove t h a t t h e a c t c h a r g e d w a s n o t t h e r e s u l t of a c c i -
dent o r inadvertence, i f t h a t matter i s a t i s s u e i n t h e t r i a l .
S t a t e v . Newman, 34 Mont. 434, 4 4 0 , 87 P. 462; S t a t e v . C a s s i l l ,
70 Mont. 433, 227 P . 49; S t a t e v . Hughes, 76 Mont. 421, 246 P.2d
959; S t a t e v . Simanton, 1 0 0 Mont. 292, 49 P.2d 981.
I n S t a t e v . J e n s e n , 153 Mont. 233, 455 P.2d 631, t h i s
C o u r t e s t a b l i s h e d t h r e e c r i t e r i a which d e t e r m i n e e x a c t l y what
t y p e of e v i d e n c e c a n be l a w f u l l y a d m i t t e d under t h i s e x c e p t i o n .
Thus e v i d e n c e of p r i o r o f f e n s e s o r a c t s i s a d m i s s i b l e i f s u c h
p r i o r o f f e n s e s a r e i n some d e g r e e s i m i l a r t o t h e a c t s c h a r g e d ,
a r e n o t t o o remote i n t i m e , and t e n d t o e s t a b l i s h a common scheme,
p l a n o r system.
W e apply t h i s t e s t t o t h e r u l i n g of t h e d i s t r i c t c o u r t
and f i n d no e r r o r . C e r t a i n l y a l l t h e p r i o r a c t s and o f f e n s e s
t e s t i f i e d t o w e r e i n t h e n a t u r e o f , o r s i m i l a r t o , a s s a u l t s on
d e f e n d a n t ' s ex-wife. They a l l t o o k p l a c e w i t h i n t h r e e y e a r s of
t h e crime c h a r g e d which, under o u r h o l d i n g i n J e n s e n , i s n o t t o o
remote. Defendant h i m s e l f p l a c e d t h e matter i n i s s u e t h r o u g h h i s
a t t e m p t s t o show t h a t t h e e v e n t was m e r e l y a n a c c i d e n t . W note
e
t h e c a u t i o n a r y I n s t r u c t i o n No. 18 g i v e n by t h e t r i a l judge:
"You a r e i n s t r u c t e d t h a t e v i d e n c e o f o t h e r o f f e n s e s
i s t o be viewed by you w i t h c a u t i o n and t h a t such
evidence i s admitted f o r t h e s o l e purpose of per-
m i t t i n g you t o d e t e r m i n e whether t h e acts alleged
a s c o n s t i t u t i n g a g g r a v a t e d a s s a u l t were done p u r p o s e l y
o r knowingly r a t h e r t h a n t h r o u g h m i s t a k e o r a c c i d e n t . "
The a d m i s s i o n of t h i s t e s t i m o n y was w i t h i n t h e r e c o g n i z e d excep-
t i o n , and p r o v i d e s no grounds f o r r e v e r s a l .
Second, d e f e n d a n t c l a i m s t h e d i s t r i c t c o u r t e r r e d by
r e c e i v i n g e v i d e n c e of c e r t a i n s p e c i f i c a c t s and p r i o r a r r e s t s
as shown by his police record which was ultimately admitted
as an exhibit. This testimony was introduced by the prosecutor
for the purpose of impeaching defendant's character witnesses on
cross-examination.
When the accused calls a witness to support his generally
good reputation in the community, he opens the door to all
legitimate cross-examination of that witness and must therefore
accept the consequences which result. State v. Moorman, 133 Mont.
148, 153, 321 P.2d 236; State v. Cor, 144 Mont. 323, 396 P.2d 86,
State v. Turley, 164 Mont. 231, 521 P.2d 690. The purpose of
this rule was well stated by Chief Justice Brantly in State v.
Jones, 48 Mont. 505, 516, 139 P. 441:
"As the favorable testimony tends to sustain the
presumption of innocence which the law indulges
in favor of the defendant, by introducing it the
defendant tenders an issue of fact, viz., whether
-
his reputation is such as the witnesses say it is,
and the prosecution has the right to cross-examine
the witnesses to ascertain the sufficiency of the
grounds upon which they base their statements."
We note that here the impeachment data introduced dated
back to 1948, some twenty-five years prior to the charges upon
which defendant was ultimately convicted. In such a situation
the potential for prejudice becomes great unless some mitigating
factors are shown to exist. As this Court stated in State v.
Sedlacek, 74 Mont. 201, 214, 239 P. 1002, the accused's entire
life should not be searched in an effort to convict him. However,
we are satisfied that defendant suffered no prejudice under these
circumstances, where the majority of the offenses introduced for
impeachment purposes were not remote. The prosecution had a
legal right to determine by cross-examination whether the testi-
mony of defendant's character witnesses had any foundation in fact,
and we find that right to have been properly exercised.
Defendant's final allegation of error involves a challenge
to the jurisdiction of the district court regarding the charge of
"driving a vehicle while under the influence of intoxicating
liquor". Upon conviction for this offense, defendant was
sentenced to an additional year in the state penitentiary, to
run concurrently with his fifteen year sentence for the assault
charge.
Generally, Montana's district courts have jurisdiction
over all criminal cases amounting to a felony and in all cases
of misdemeanor not otherwise provided fort.ArticleVII, Section
4, 1972 Montana Constitution; Section 93-318, R.C.M. 1947. Under
1947
section 95-302, R.C.M./, justice courts may assume jurisdiction
over all misdemeanors punishable, inter alia, by a term of im-
prisonment not exceeding six months. The justice courts normally
handle the bulk of cases involving driving while intoxicated
offenses. But when an individaul is convicted on such a charge
for the third time, the maximum sentence may be increased to the
term of one year, and the district courts become vested with
jurisdiction over the matter. Section 32-2142(d), R.C.M. 1947.
Defendant seems to ground his jurisdictional challenge
on the premise that evidence of the prior driving while intoxi-
cated convictions was inadmissible since there was no showing
that defendant was represented by counsel when he pled guilty
to them. This specific argument was not presented to the district
court on the motion to dismiss and it cannot be raised here for
the first time on appeal. State v. Wilson, 160 Mont. 473, 477,
503 P.2d 522; State v. White, 153 Mont. 193, 197, 456 P.2d 54;
State v. Campbell, 146 Mont. 251, 267, 405 P.2d 978.
Judgment of the district court is affirmed.
(weconcur: $. <
.,
.
Chief J u s t i c e
..............................
Justice
Mr. J u s t i c e Gene B. Daly and M r . J u s t i c e Frank I . Haswell
dissenting:
W e dissent.
The m a j o r i t y o p i n i o n m i s c o n s t r u e s and m i s a p p l i e s t h e
d o c t r i n e which p e r m i t s proof of a s t a t e o f f a c t s t e n d i n g t o show
a uniform c o u r s e o f a c t i o n r e c e n t l y pursued--a system o r p l a n
on t h e p a r t o f t h e a c c u s e d , f o r t h e p u r p o s e of showing g u i l t y
knowledge o r c r i m i n a l i n t e n t , and t o n e g a t e t h e i d e a t h a t t h e
p a r t i c u l a r a c t w i t h r e s p e c t t o which t h e a c c u s e d i s c h a r g e d w a s
t h e r e s u l t of accident, mistake o r inadvertence.
There a r e no a u t h o r i t i e s c i t e d t h a t s u s t a i n t h e a d m i s s i o n
of evidence of p r i o r o f f e n s e s , a l l e g e d o f f e n s e s , etc. over a period
o f 2 5 y e a r s t o c o n v i c t t h e d e f e n d a n t o f " a g g r a v a t e d a s s a u l t " re-
s u l t i n g from a n a u t o m o b i l e c o l l i s i o n w h i l e i n t o x i c a t e d . The e v i -
d e n c e w a s a r e v i e w o f t h e d e f e n d a n t ' s m a r i t a l problems which ended
i n divorce t h r e e years before t h e a l l e g e d c r i m e involved here.
The p a r t i e s had n o t had any c o n t a c t f o r t h r e e y e a r s p r i o r t o t h e
a c t i o n here.
The c l a s s o f c a s e s t o which t h e r u l e may be a p p l i e d a r e
g e n e r a l l y t h o s e c i t e d by t h e m a j o r i t y . Newman, a f o r g e r y c a s e
with evidence taken of s i m i l a r conduct very r e c e n t . Cassill,
f a l s e s t a t e m e n t s t o bank s u p e r i n t e n d e n t and by banker c o n c e r n i n g
f i n a n c i a l c o n d i t i o n o f t h e bank, e v i d e n c e t a k e n of s i m i l a r con-
d u c t f o r t h e same y e a r . Hughes, b r a n d i n g a n i m a l s n o t
property of defendant and evidence taken of others branded
about same time. Simanton, recognized the rule but reversed in
horse stealing case, because the state failed to prove prima
facie guilt of the other acts related, however close in time.
The case of State v. Jensen, 153 Mont. 233, 455 P.2d
631, quoted as principal authority by the majority is a sex case
and should be distinguished. There is good law from respectable
jurisdictions that clearly explains the additional latitude
allowed in sex cases because of the continuing state of mind
of a defendant so afflicted.
The Montana rule and correct application can be found
in a discussion by Justice Angstman in State v. Knox, 119 Mont.
449, 175 P.2d 774, and again in State v. Merritt, 138 Mont. 546,
357 P.2d 683.
The case should be remanded for a new trial on the merits.
Justices
Mr. J u s t i c e Wesley C a s t l e s s p e c i a l l y c o n c u r r i n g :
I concur i n t h e o p i n i o n o f J u s t i c e John Conway H a r r i s o n .
I do choose t o respond b r i e f l y t o t h e d i s s e n t i n g o p i n i o n .
There it i s s t a t e d t h a t , "The p a r t i e s had n o t had any c o n t a c t
f o r t h r e e years p r i o r t o t h e action here." This i s simply n o t
so. The f a c t s r e c i t e d i n t h e m a j o r i t y o p i n i o n a r e c o r r e c t .
Between J u n e o f 1971 and J u n e of 1972, t h e d e f e n d a n t c r a s h e d h i s
c a r t h r o u g h h i s e x - w i f e ' s g a r a g e d o o r s on two o c c a s i o n s and on
a n o t h e r o c c a s i o n a s s a u l t e d h e r w i t h a k n i f e a t t h e o f f i c e where
s h e worked. These i n c i d e n t s were t e s t i f i e d t o t o show t h e know-
i n g p u r p o s e o f d e f e n d a n t and t o n e g a t e m i s t a k e and a c c i d e n t ,
and t h e j u r y w a s i n s t r u c t e d a s t o t h i s . Also t h e e v i d e n c e showed
t h a t even a f t e r t h e d i v o r c e i n 1971 d e f e n d a n t l i v e d a t h i s e x - w i f e ' s
home u n t i l J u n e , 1972.
S e p a r a t e from t h e s e a c t s , t h e m a t t e r o f t h e d e f e n d a n t ' s
c h a r a c t e r and r e p u t a t i o n f o r p e a c e and q u i e t i n t h e community
was b r o u g h t on by d e f e n d a n t ' s c h a r a c t e r w i t n e s s e s . I t was o n l y
on c r o s s - e x a m i n a t i o n t h a t i n q u i r y was made i n t o t h e p a s t e v e n t s .
This i s proper. See S t a t e v . Simtob, (Mont. 1 9 7 5 ) , 32 S t - R e p .
1286, and c a s e s c i t e d t h e r e i n .