dissenting:
I dissent. In my opinion the majority here improperly substitutes their opinion for that of the jury. Admittedly, the fact situation is unusual but that is what jurors are for and they, not this Court, heard the testimony, saw the witnesses and were in a far better position to weight the evidence.
As to the giving of the precautionary instruction, I fail to find the trial court in error when it follows the case law established in this State. As recently as last year we upheld the refusal to give such an instruction in State v. Just (1979), 184 Mont. 262, 602 P.2d 957. See also, State v. Ballew (1975), 166 Mont. 270, 532 P.2d 407. I find no need to search elsewhere for authority to overturn this case when we have, in my opinion, ample authority to sustain the lower court.