State v. Sigler

XO. 83-138

XN THE S~~ COURT OF TEE STATE OF WmMA

1984

STATE O MONTANA,
F

P l a i n t i f f and Respondent,

-vs-

WILLIAM RUSSELL SIGLER,

D e f e n d a n t and A p p e l l a n t .

APPEAL FROM: D i s t r i c t Court of t h e Fourth J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f M i s s o u l a ,
The H o n o r a b l e J o h n S . E e n s o n , J u d g e p r e s i d i n g .

COUNSEL O RECORD:
F

For Appellant:

C a r l E n g l u n d , a r g u e d , M i s s o u l a , Montana

F o r Respondent:

Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
K i m K r a d o I f e r a r g u e d , A s s t . A t t y . G e n e r a l , Helena
R o b e r t L . Deschamps, 111, County A t t o r n e y , M i s s o u l a ,
Montana: R o b e r t J . S u l l i v a n a r g u e d , Deputy County
A t t o r n e y , M i s s o u l a , Montana

Submitted: A p r i l 1 6 , 1984

D e ~ i d . ~ d :Jane 4, 1984

Filed: - 13..

-
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.

William Russell Siqler appeals from a iudgment of
conviction in the District Court, Fourth Judicial District,
Missoula County, of the deliberate homicj-de of 19-month-old
Paul T. Wilkinson.
The issues we treat in this opinion are: (1.) the
admissibility of evidence of other crimes, wrongs or acts;
(2) the admissibility of an inflammatory photograph; and (3)

whether the instructions defining deliberate homicide were in
error.
On February 23, 1982, 19-month-old Paul T. Wilkinson was
found dead in the East Missoula trailer occupied by his
mother, Kathleen Rachel Wilkinson and her male friend, the
appellant William Russell Sigler.
Missoula County authorities had responded to a late
afternoon call that a child in the residence had stopped
breathing. When found, the child was naked and his stomach
was noticeably distended and hard. The child was pronounced
dead by Missoula County deputy coroner.
An autopsy was performed on the child and the examining
pathologist found that the cause of death was blunt force
trauma to the abdomen which perforated the small bowel in two
places, causing acute inflammation of the abdomen,
peritonitis and eventual death. The pathologist
characterized the force causing the death as severe, and
estimated that the injury to the child which resulted in the
death occurred within 24 hours before his death and that most
likely the cause of injury was a blow by a fist or a foot.
He reiected any accidental fall as a cause because the force
would n o t be s u f f i c i e n t and b e c a u s e h e found a number of

other i n j u r i e s of varying a g e s on t h e body of the child.

The other injuries found during the autopsy included

hemorrhage around the adrenal glands; an old untreated

f r a c t u r e of t h e r i g h t w r i s t ; a c o n t u s i o n s u r r o u n d i n g t h e l e f t

t e s t i s ; a hematoma t o t h e head; and numerous o t h e r a b r a s i o n s ,

c o n t u s i o n s , and s c a r s on t h e head, f a c e , abdomen, h a n d s , back

and l e g s . A t l e a s t one of t h e s c a r s c o u l d be a t t r i b u t e d t o a

c i g a r e t t e burn. Three a d d i t i o n a l m e d i c a l d o c t o r s c o n c u r r e d

w i t h t h e p a t h o l o g i s t ' s o p i n i o n t h a t t h e d e a t h c o u l d n o t have

been caused a c c i d e n t a l l y .

Evidence was i n t r o d u c e d a t t r i a l o f t h e p a s t h i s t o r y of

t h e c h i l d ' s c a r e by h i s mother and S i g l e r . On t h e e v e n i n g

before t h e death, n e i g h b o r s Donna C o l l i n s and L a r r y S t r a n g e

had been i n t h e t r a i l e r and were t o l d t h e c h i l d was q u i t e ill

and v o m i t i n g t h a t e v e n i n g . Ms. Collins strongly advised t h a t

t h e c h i l d be t a k e n t o t h e d o c t o r immediately.

Strange t e s t i f i e d that he v i s i t e d the trailer almost

e v e r y d a y , t h a t h e u s u a l l y o b s e r v e d t h e c h i l d t o be s i t t i n g

i n h i s h i g h c h a i r o r h i s p o t t y c h a i r and t h a t t h e c h i l d would

get quite t e n s e when Sigler approached him. S t r a n g e saw

S i g l - e r g i v e t h e c h i l d h a r d s p a n k i n g s , and once saw him p i c k

the child up by t h e hand w h i l e h e was h e i n g spanked. He

s t a t e d t h a t t h e c h i l d had been spanked f o r merely c r y i n g . He

had s e e n c i g a r e t t e b u r n s on t h e c h i l d ' s hand and had s e e n a

b r u i s e u n d e r n e a t h h i s l e f t e y e t e n d a y s t o two weeks p r i o r t o

the death. He saw Sigler once "whop" the child on the

f o r e h e a d when he would n o t e a t . He h e a r d t h e c h i l d v o m i t i n g

a b o u t e v e r y 2 0 m i n u t e s t o a h a l f hour from 6:00 p.m. t o 10:OO

p.m. on t h e e v e n i n g b e f o r e t h e d e a t h .
 Tim Keatron, the 16-year-old son of Donna Collins
testified he was in the trailer home about three to four
times a v~eek. He had seen Sigler pick the child up by his
arm and spank him and testified that the defendant hit the
child hard for the child's size. Two days before the death,
he had seen Sigler slap the child on the face so hard that it
caused his head to nearly touch his shoulder and blood to
come from his nose. The reason for that discipline was that
the child would not eat his cereal. Keatron also had seen
the defendant kick the child during the same period.
The mother testified that she had surrendered the
discipline of the child to Sigler. None of the witnesses who
testified saw the child's mother discipline the child in the
manner exhibited by Sigler.
The defendant did not testify, but he had made
statements to law officers during the early investigation of
the incident. In the statements, he hypothesized that the
child had been hurt by falling on a footlocker or on a large
plastic dump truck. He further told the officers that on the
morning of the death, the child appeared to be feeling
better, that he had been fed, and that he was blabbering and
talking to himself up to ten minutes before he was found not
to be breathing. The medical witnesses discounted the
possibility that this last testimony was correct.
The child's mother, Kathleen Wil-kinson, a codefendant in
the original action had entered into a plea bargain with the
State in connection with her testimony. She testified that
the child was healthy until the day before the death. She
had gone to the trailer of Donna Collins at about 3 : 3 0 p.m.,
and at about 5 : 3 0 p.m. Sigl-er had appeared and ordered her to
return to the home. She was told by Sigler that the child
had f a l l e n o u t of bed. She examined t h e c h i l d , and found him

acting sluggish and tired.. The c h i l d vomited during t h e

e v e n i n g and r e f u s e d t o e a t . She d e n i e d e v e r s t r i k i n g t h e

c h i l d i n t h e abdomen o r fa.ce h a r d enough t o l e a v e a b r u i s e .

The jury found Sigler guilty of d e l i - b e r a t e homicide.

T h i s a p p e a l ensued.

S i g l e r a t t a c k s t h e testimony of witnesses relating t o

o t h e r c r i m e s , wrongs o r a c t s by him toward t h e c h i l d on t h e

grounds t h a t t h e e l e m e n t s r e q u i r e d i n S t a t e v . J u s t (1979) ,

184 Mont. 262, 602 P.2d 957, and S t a t e v . J e n s e n (19691, 153

Mont. 233, 455 P.2d 631 were n o t m e t ; t h a t t h e a c t s o f S i g l e r

a s t e s t i f i e d t o by t h e w i t n e s s e s i n d i c a t e d o n l y t h a t S i g l e r

spanked t h e c h i l d , s l a p p e d h i s hands, o r f l i p p e d t h e c h i l d ' s

head w i t h h i s finger, none o f which would have caused h i s

d e a t h , and s o a r e d i s s i m i l a r t o t h e a c t s which b r o u g h t a b o u t

t h e d e a t h of t h e c h i l d ; and t h a t t h e a c t s w e r e no more t h a n

normal disciplinary procedures and were not "unusual and

distinctive" so as t o q u a l i f y f o r wrongful. a c t s o r crimes

under S t a t e v. Hansen (Mont. 1 9 8 0 ) , 608 P.2d 1083, 37 St.Rep.

657.

The S t a t e r e p l i e s t h a t t h e e v i d e n c e m e e t s t h e g u i d e l i n e s

imposed i n J u s t , supra; t h a t t h e e v i d e n c e o f p r i o r a c t s of

d i s c i p l i n e a r e a p a . r t of t h e e n t i r e corpus d . e l i c t i of the

charged o f f e n s e , c i t i n g S t a t e v . R i l e y (Mont. 1 9 8 2 ) , 649 P.2d

1-273, 39 St.Rep. 1491; and t h a t when a b a t t e r e d c h i l d i s t h e

victim, the pattern of conduct exhibited by the

defendant-caretaker toward the child victim is within the

s c o p e of t h e i s s u e s b e f o r e t h e c o u r t . S t a t e v . Tanner (Utah

1 9 8 3 ) , 675 P.2d 539.
 The contention that the acts of discipline reported by
the neighbor witnesses used by Sigler on the child are
dissimilar to the kind of force required to bring about the
child's death is not supportable. The mother testified that
Sigler was the sole disciplinarian of the child. Under the
evidence, his response to any perceived need for disciplining
the child was always intemperate, and slipped into gear on
the slightest provocation. His trea-tment of a 19-month-old
infant was brutal, heedless and unfeeling. F e cannot agree
J
that his treatment constituted "normal" discipline.
In Just, we set out a four-element test to determine the
admissibility of evidence of other crimes or acts in criminal
prosecutions. They are (1) similarity of crimes or acts; (2)
nearness in time; (3) tendency to establish a common scheme,
plan or system; and, (4) the probative value of the evidence
must not be substantially outweighed by the prejudice to the
defendant.
The testimony of the witnesses here meets the Just
elements in each particular, and in addition, meets our
statement in State v. Brubaker (1979), 184 Mont. 294, 307,
602 P.2d 974, 981, relating to evidence of other crimes or
acts:
"For evidence of unrelated crimes to be admissible,
as an exception to the general rule, it must appear
that the evidence of the other crimes tends to
establish a common scheme, plan, system, design or
course of conduct similar t o or closely connected.
.
with the one charged and not too remote; and the
evidence must tend to establish crimes so related
that proof of one tends to establish the other.
Within those words must be found the paste and
cover for the admissibility of the unrelated acts
... 11

The District Court here had a situation where only
circumstantial evidence could bring out the case against the
defendant. There were many reasons for a. jury to distrust
the defendant's statement of the incident. We stated in
Brubaker, that evidence of other crimes or acts should not be
admitted if it leads the jury to surmise that the defendant
was probably guilty of the offense. But when evidence of
unrelated acts tends toward the conclusion that the defendant
is guilty of the crime charged with moral certainty and
beyond a reasonable doubt, it is certainly admissible.
Brubaker, supra. In Tanner, supra, the Utah court pointed
out that the only avail-able link between the specific nature
of the child's injuries and the caretaker may be the evidence
of prior abusive conduct by the caretaker.
Evidence of other crimes, wrongs or a.cts is an exception
to the general rule that evidence of a person's character is
not admissible for the purpose of proving that he acted. in
conformity therewith on a particular occasion. Ru1.e 404,
M.R.Evid.. A trait of character is to be distinguished from
habit. "A habit is a person's regular response to a repeated
specific situation.I
' Rule 406, M. R.Evid. Habit or routine
practice may be proved by testimony in the form of an opinion
or by specific instances of conduct sufficient in number to
warrant a finding that the habit existed or that the practice
was routine.
"Character may be thought of as the sum of one's
habits though doubtless it is more than this. But
unquestionably the uniformity of one's response to
habit is far greater than the consistency with
which one's cond.uct conforms to character or
disposition. Even though character comes in only
exceptionally as evidence of an a-ct, surely any
sensible man in investigating whether X did a
particula-r act would be greatly helped in his
inquiry by evidence as to whether he was in the
habit of doing it." McCormick on Evidence § 162,
at 341.
Under Rule 406, M.R.Evid., the acts habitually performed
by Sigler in response to his perceived need for discipline of
the child were admissible. As a matter of habit, his
discipline of the child was excessively harsh.
We find no error in the admission of the disciplinary
acts administered by Sigler to the child.

The second principal assignment of error by Sigler is
that the District Court abused its discretion in receiving
the photograph identified a.s Sta.tels exhibit 18FF into
evidence.
The pathologist, on autopsy, discovered a subdural
hematoma beneath the child's scalp. The pathologist took a
photograph, the only photograph taken of that particular
injury. The scalp was reflected or drawn back in order to
show the injury because of the victim's long hair. Before
allowing it into evidence, as the District Court required,
the pathologist blocked portions of the slide pictures so
that only the injury was shown.
Siqler contends that the exhibit was highly prejudicial
and inflammatory and did not depict how the child would
appear to another person. In effect, he is claiming that the
prejudicial effect of the photograph outweighed its probative
value.
Many of the photographs of the autopsy discoveries were
admitted without objection. The subdural hematoma was
another of the injuries that the child had received, the
source of which was unexplained by his principal ca-retaker,
Sigler. We hold that where the purpose of a photographic
exhibit is to assist the jury in understanding the case, it
is admissible, even though its effect may be prejudicial or
inflammatory, if its probative value outweighs its
prejudicial effect. See State v. Hoffman (1982), 196 Mont.
268, 272, 639 P.2d 507, 510; State v. Buckley (1976), 171
Mont. 238, 245, 557 P.2d 283, 286-287; State v. O'Donnell
(1972), 159 Mont. 138, 142, 496 P. 2d 299, 301-302. In this
case we hold that the District Court did not abuse its
discretion in admitting the photograph into evidence; that
its probative value was more important than any prejudicial
or inflammatory effect because the jury was entitled to know
the nature and extent of the injuries suffered by the child
and no other method would have shown it as graphically or as
well. This Court has been consistent in holding similarly
with respect to photographs. State v. Austad (1982), 197
Mont. 70, 82, 641 P.2d 1373, 1-380; State v. McKenzie (1980),
186 Mont. 481, 505-506, 608 P.2d 428, 443-444, cert.den. 449
U.S. 1050 (1980); State v. Fitzpatrick (1973), 163 Mont. 220,
228-229, 516 P.2d 605, 610-611.
111.
Sigler's final argument is that the District Court
failed properly to instruct the jury considering the
definition of the mental state "purposely." He contends that
the statutory definition of purposely, coupled with the
statutory definition of deliberate homicide confused the
jury. Sigler asserts that under the instructions, the jury
could convict if it found that he purposely engaged in the
conduct of striking the child and that the jury did not need
to find under the instructions that he intended the result,
that is the death, or that he purposely caused the result,
the death. He supports this contention with affidavits
signed by several jurors after trial and filed with his
motion for a new trial before the District Court.
In resolving this issue, we pay no attention to the
affidavits of the jurors signed post-trial. They may not be
considered since they do not fit within the exceptions
provided in Rule 606(b), M.R.Evid., nor within the purview of
section 25-11-102 (2), MCA.
The defendant made no objection to the instructi-onswhen
they were offered during the trial. He would ordinarily be
barred from raising his objections n.ow before this Court.
If, however, the District Court had erred in th.e vital
definition of "purposely" in this case, we would have to
reverse, even without objection raised by counsel at trial,
on the grounds of plain error. Therefore, qiving Sigler the
benefit of every doubt, we proceed to consider the issue
raised by him with respect to these instructions.
The court charged. the jury as to the elements of the
crime in its instruction no. 15:
"To sustain the charge of deliberate homicide, the
State must prove the following propositions:
"First, that the defendant performed the a.cts
causing the death of Paul T. Wilkinson, Jr.
'"econd, that when the defenda.nt did so, le acted
i
purposely or knowingly . . ."
The court a.lso ga.ve these instructions defining
np~rp~~ely,n
"knowingly," and "deliberate homicide:"
"Instruction - -
No. 12. A person acts purposely with
respect to a result or to conduct described by
statute defining an offense if it is his conscious
object to engage in that conduct or to cause that
result.
"Instruction - -
No. 1-3. A person acts knowingly with
respect to conduct when he is aware of his conduct.
"A person acts knowingly with respect to the result
of conduct d.escribed by a statute defining an
offense when he is aware that it is highly probable
that such result will be caused by his conduct.
"Instruction - -
No. 14. A person commits the offense
of deliberate homicide if he purposely or knowingly
causes the death of another human being."
 We need always to remind ourselves that in Montana,
crimes against the State are defined by statutes. in those
statutes we will generally find the provisions that frame the
rights of the State to prosecute its defined crimes and that
preserve the rights of the defendant to be convicted only of
statutorily-defined crimes upon proof beyond a reasonable
doubt.
In Montana, a person commits a criminal homicide if he
voluntarily causes the death of another human being,
purposely, knowingly or negligently. Sections 45-5-101 and
45-2-202, MCA. "Purposely" and "knowingly" have replaced the
concepts of malice and intent known to our former law.
Sections 45-2-101 (33) and (58), MCA. In short, the voluntary
act of a person, if not justifiable (Title 45, Ch. 3, MCA),
knowingly, purposely, or negligently done is criminal
homicide if it causes the death of another human being.
Section 45-5-101.
In a criminal homicide prosecution, therefore, the State
must prove and the jury must find beyond a reasonable doubt
that the voluntary and unjustified act of the defendant,
purposely, knowingly or negligently caused the death of the
victim. Proof of cause is a primary duty of the State, and a
necessary element to be found by the jury for a proper
conviction in a criminal homicide case.
Montana law defines what constitutes a causal
relationship between conduct and result. Section 45-2-201,
MCA. Conduct is the cause of a result, a.s applicable to this
case, if (a) without the conduct the result would not have
occurred; and, (b) if the result was not within the
contemplation or purpose of the offender, but the same kind
of harm or injury was contemplated by him though the precise
harm or injury was different or occurred in a different way.
Section 45-2-201, MCA.
Applying section 45-2-20]. to this case, the proof is
beyond. any doubt that the conduct which brought about the
perforations to the child's bowels caused the death of the
child, and that without such conduct, the death would not
have occurred. In addition, the result involves the same
kind of harm or injury as contemplated by the conduct even
though the precise ha.rm, the death, was different or occurred
in a different way. In other words, if Sigler voluntarily,
as the jury found, punched with his fist or kicked with his
foot the stomach of the child, even though he may not have
intended tha.t death result from the act, he contemplated "the
same kind of harm or injury" to the child, that is, harm or
injury to the abdominal. area of the child.
Moreover, there are two ways in which a person can act
"purposely" with respect to a result or conduct described by
the statute defining an offense. Section 45-2-101 (58), MCA.
He acts purposely if it is his conscious object (1) to engage
in that conduct, or (2) to cause that result. Either
proposition will sustain the finding of the jury that the
\
defendant acted purposely. Section 45-2-101(58), MCA.
In this case, there is no claim by the defendant of
justification, mitigation or excuse. In his statements he
did not admit that he performed any act or acts which brought
about the death of the child.
In the same way, our statutory definition of "knowingly"
cuts two ways. Applied here, Sigler acted knowj-ngly with
respect to his conduct if he was aware of his cond-uct. He
acted knowingly with respect to the result of his conduct if
he was aware that it was highly probable that such a result
would be caused by his conduct. Section 45-2-101(33), MCA.
It is therefore true that under the instructions given
in this case, and under the statutes defining crimes, the
State is not required to prove the specific intent of the
defendant to cause the death of the child. We have said:
"We do not agree with Starr, however, on his
contention that it was the duty of the State to
prove Starr's specific intent to transfer a
danqerous substance then or at a subsequent time.
since Montana revamped its criminal statutes in
1973 by adopting in essence the Model Penal Code,
specific intent is not an elementa.1 concept, unless
the statute defining the offense requires as an
element thereof z specific purpose .
II

(Emphasis in original.) State v. Starr (Mont.
1983), 664 P.2d 893, 897, 40 St.Rep. 796, 801.
A few examples of the effect of deletion of specific
intent from our statutory scheme will demonstrate the point:
proof beyond a reasonable doubt that a defendant consciously
shot another with a gun where no circumstances of mitigation,
excuse or justification appear, and the other died from the
gunshot, will suffice to convict the defendant of deliberate
homicide, without proof that death was the intended result by
the defendant; proof beyond a reasonable doubt that a
defendant consciously decided to drive his automobile against
the person of a pedestrian where no circumstances of
mitiga.tion, excuse or justification appear, and the
pedestrian died of the collision with his person, will
suffice to convict the defendant of deliberate homicide,
without proof that the death of the pedestrian was the
intended result of the defendant.
Our criminal law proscribes purposely doing an act which
causes the death of another; it also proscribes doing an act
with the conscious object of causing the death of another.
In the former, death may not be the intended result, but if
the act which causes the death is done purposely, deliberate
homicide is committed. In the latter, death is the intended
result, and any act of the defendant which leads to that
intended result is deliberate homicide.
In this case, as we have said, there are no issues of
mitigation, justification or excuse. The circumstantial
evidence here is strong enough to sustain the finding by the
jury that the defendant purposely engaged in conduct which
resulted in the death of the child. The instructions given
to the jury required no more and no less for the prosecution
to prove in this case. Therefore, the instructions given
properly reflected the applicab1.e law. We find no error in
the instructions given.
IV.
The judgment of conviction of William Russell Sigler for
deliberate homicide is affirmed.

We Concur:

~4cebR,gd
Chief Justice
&&q

Justices

Mr. Jus-tice ~ a n i e lJ. Shea and Mr. Justice Frank B. Morrison,
Jr.., dissent and will file written dissents later.
 NO. 83-138

I N THE SUPREME COURT O F T H E S T A T E O F MONTANA

1984

S T A T E O F MONTANA,

VS.

WILLIAM RUSSELL S I G L E R ,

D e f e n d a n t and A p p e l l a n t .

D i s s e n t of M r . J u s t i c e F r a n k B. M o r r i s o n , Jr.

~ a j o r i t y p i n i o n handed d o w n :
O June 4 , 1 9 8 4

D i s s e n t filed: I ,-! 1984
LL! ~

Clerk
 Mr. Justice Frank B. Morrison, Jr. respectfully dissents
as follows:
Instruction No. 14 stated the elements of deliberate
homicide. The trial court said:
"A person commits the offense of deliberate
homicide if he purposely or knowingly causes the
death of another human being."
This instruction is an accurate paraphrase of the elements of
deliberate homicide found in sections 45-5-101 and 45-5-102,
MCA . An essential element of the offense is that the
defendant purposely or knowingly caused the death of another.
Trial court's instruction No. 15 was clearly erroneous.
That instruction said:
"To sustain the charge of deliberate homicide, the
State must prove the following propositions:
"First, that the defendant performed the acts
causing the death of Paul T. Wilkinson, Jr.
"Second, that when the defendant did so, he
acted purposely or knowingly."
The court failed to instruct the jury that they must
find the defendant acted with knowledge or purpose in causinq
the death as required by section 45-5-101 and 45-5-102, MCA.
The trial court told the jury to convict d.efendant if the
jury found that defendant acted with purpose or knowledge in
performing the acts which resulted in death, irrespective of
whether defendant purposely or knowingly caused the death.
Under the court's instruction No. 15 the jury was required to
convict the defendant of deliberate homicide even though they
might find the victim's death was accidental.
The majority was unable to reconcile instruction No. 15
with the statutory definition of deliberate homicide and so,
to achieve the desired result, simply amended the statute.
The majority states:
"Our criminal law proscribes purposely doing an act
which causes the death of another; it also
proscribes doing an act with the conscious object
of causing the death of another. In the former,
 death may not be the intended result, but if the
act which caused the death is done purposely,
deliberate homicide is committed. * * * "
By judicial fiat, the law in Montana is that a defendant
who acts with purpose and accidentally causes the death of
another, is guilty of deliberate homicide. In other words,
if one strikes another on the jaw with his fist, and the one
struck falls to the ground striking his head upon the
curbing, and death ensues, the offense is deliberate
homicide.
This case perfectly illustrates the evil inherent in
result-oriented decision making. Defend.ant Siglerls conduct
may well have resulted in the death of an infant child. If
believed, the State's case leaves little room for sympathy
for Sigler. These inflamatory factual settings provide the
genesis for irra.tiona1 and unworkable legal principles.
I would reverse and remand for a new trial for the
reason that court's instruction No. 15 failed to include an
essential element of the crime of deliberate homicide.
 DISSENT OF MR. JUSTICE DANIEL J. SHEA

No. 83-138

State of Montana

VS .
William Russell Sigler.
Mr. Justice Daniel J. Shea dissenting:

I agree with the dissent of Mr. Justice Morrison in that

I also believe that jury instruction no. 15 misstates Montana
law and constitutes reversible error. The erroneous
instruction, could easily mislead a jury into thinking that
as long as the acts which resulted in death were performed
purposely or knowingly, a conviction for deliberate homicide
could be sustained, whether or not the defendant purposely or
knowingly caused the death. At the very least instruction
no. 15 is ambiguous and subject to more tha.n one
interpretation.
I would hold that jury instruction no. 15 fails to

include the necessary causal element of deliberate homicide,
and therefore this case should be remanded for a new trial.
 IN THE SUPREME COURT OF THE STATF OF MONTANA

STATE OF MONTANA,
C

Plaintiff and Respondent,
VS.
!

WILLIMI RI?SSELL SIGLER,

Defendant and Appellant. &LB/ 'i .
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COLIR% .
OF SaPvFz:.$:
+ 9

STATE w,irt4lAFdA

ORDER AND OPINION ON PETITION FOR REHEARING

In his petition for rehearing Sj-gler takes issue with
this language in our opinion:
"Our criminal law proscribes purposely doing an act
which causes the death of a-nother; i . t also
proscribes doing an act with a conscious object of
causing the death of another. In the former, death
may not be the intended result, hut if the act
which causes the death is done purposely,
deliberate homicide is commit-ted."
Sigler contends that the above language "broadens the
definition of a most serious crime," and eliminates the crime
of negligent homicide. The State agrees with this
assessment. The Attorney General has thus conceded the major
premise of the minority opinion filed with the original in
this case. A concession of such broad. dimensions does not
wring from the Attorney General an admission that Sigler is
entitled to a new trial however. Instead the State continues
to contend that the jury in the Sigler case was "adequately
instructed." Yet if under the original opinion in this case,
Sigler could have been convicted of deliberate homicide for
an accidental killing of the child, he would, indeed, as the
minority contended, be entitled to a new trial.
 We reject the contention that our original opinion in
this case has eliminated the crime of negligent homicide or
broadened the cri.me of deliberate homicide. To show why, we
must again discuss the effect of the adoption of the Yodel
Penal Code in our criminal statutes in 1973.
To begin with, specific intent is not an elemental
concept of a crine under the present criminal code unless the
statute defining the offense requires as an element thereof a
specific purpose. State v. Starr (Mont. 19831, 664 P.2d 893,
897, 40 St.Rep. 796, 801. The State j n this case was not
.
required to prove a specific intent on the part of Sigler to
kill the child when he kicked his stomach.
In State v. Gratzer (Mont. 1984), 682 P.2d 141, 145, 41
St.Rep. 727, 731, we said:
"The effect of the adoption of the 1973 Criminal
Code in Montana was to change radically our legal
concepts for proof of homicide. Formerly, the
presumption of proof of a killing was that the
lesser crj-me had been committed, and the State had
the duty of going forward with the evidence beyond
a reasonable doubt that the greater had been
committed. Now, the legal effect of proof of a
killing i.s that the greater crime h a s been
committed, that of deliberate homicide, unless the
evidence shows mitigation, excuse, or justification
. . ." 682 P.2d, at 145.
In this case, the Sigler jury was instructed that the
homicide was deliberate if a death of a human being was
caused, purposely or knowingly. The jury was al-so instructed
that a person acts purpose1.y with respect to a result or to
conduct constituting crime, is his conscious object

-
to engage in the conduct or to cause that result. Section
45-2-101(58), YCA. The court also instructed the Sigler jury
on the meaning of "knowingly" which is important here. The
jury was told that a person acts knowingly with respect to
conduct when he is aware of his conduct, and that he ~ c t s
 1

The majority opinion therefore does not abol-ish the
crime of negligent homicide. Rather it emphasizes the
statutory elements of the crime which the jury found in this
case. It should he clear, following our original Sigler
opinion, that deliberate homicide is committed when a person
purposely or knowingly causes the death of another .human
being; and that the word "causes" in the statutory definition
of deliberate homicide must be read i n conjunction with
.
section 45-2-201, MCA, which describes what constitutes a
causal relationship between the conduct and the result. The
original opinion states again what had been stated in
Coleman, supra, that a person acts knowingly when there is
proof beyond a reasonable doubt that he is aware of the high
probability of the result of his conduct. Final-ly, there is
a causal relationship though the result is not within the
contemplation of or purpose of the defendant, where the same
kind of harm or injury is contemplated by him though the
precise harm or injury is different or occurred in a
different way.
Negligent homicide under our statute does not include
the mental states of "purposely" or "knowing1.y." Section
45-5-104, MCA. A homicide is committed negligently when the
person acts negligently with respect to a result or
consciously disregards a risk that the result will occur, or
when he disregards a risk of which he should be aware that
the result will occur. Section 45-2-101 (37), MCA. The
person's negligence must be such that to disregard the risk
involves a gross deviation from the standard of conduct that
a reasonable person would observe in the actor's situation.
Section 45-2-101(37).
 It is the presence of purposeful or knowing action, as
define?, by our statutes, that distinguishes deliberate or
mitigated homicide from negligent homicide.
IT IS ORDERED:
Accordingly, we deny the petition for rehearing and
modify the paragraph to which exception was taken by the
defendant and the State to insert the worc! "knowingly" as

"Our criminal law proscribes purposely doing an act
which causes death of another; it also proscribes
doing an act with the conscious object of causing a
death of another. In the former, death may not be
the intended result, but if the act which causes
the death is done pu;posely or knowinq1.1 deliberate
homicide is committed. In the latter, death is the
intended result and any act of the defendant which
leads to that intended result is deliberate
homicide."

We Concur:
C

a,&9,4&&&
Chief Juztice \

Justices

Mr. Justice Daniel J. Shea and Mr. Justice Frank B. Morrison, Jr.,
would grant a rehearing.