State v. Rollins

• Decision Date: 05 June 1967
• Docket Number: No. 11241,11241
• Citation: 428 P.2d 462,149 Mont. 481
• Parties: The STATE of Montana, Plaintiff and Respondent, v. Fred ROLLINS, Defendant and Appellant.
• Court: Montana Supreme Court

Page 462

428 P.2d 462

149 Mont. 481

The STATE of Montana, Plaintiff and Respondent, v. Fred ROLLINS, Defendant and Appellant.

No. 11241.

Supreme Court of Montana.

Submitted May 10, 1967.

Decided June 5, 1967.

Michael J. Whalen (argued), Billings, for appellant.

Forrest H. Anderson, Atty. Gen., Helena, John Adams, Jr., County Atty., H. F. Hanser, Deputy County Atty., Billings, James R. Beck, Asst. Atty. Gen. (argued), Helena, for respondent.

CASTLES, Justice.

This is an appeal from a judgment of conviction of assault in the second degree. The appellant, Fred Rollins, was charged with the crime of assault in the first degree; he was tried and the jury verdict resulted in the conviction from which he is appealing.

The incident giving rise to charges against the appellant occurred in the early morning hours of December 5, 1965. On the evening in question, Ray Earsley, his wife Nikki and the appellant's former wife Laurel Rollins were at the Rimrock Bar in Billings. The appellant was also at this bar the same evening. At about 2:00 A.M. Earsley, his wife, and Laurel Rollins left the bar and got into a car owned by Laurel Rollins. Upon pulling away from the curb, Ray Earsley, the driver, noticed that a rear tire had gone flat and stopped to investigate. He got out of the car and was standing at the right door when he first noticed appellant, who had pulled up in his car just prior to this. The appellant had a rifle in his hand when he got out of his car. He approached Ray Earsley and Laurel Rollins, who had gotten out of the car and was standing nearby. The appellant pointed the rifle at his ex-wife and told her to come with him. Upon being told by Earsley to leave her alone, he walked over and hit him alongside the head with the rifle, knocking him to the ground. At this point there is some conflict in the testimony. Several witnesses stated that after Earsley was lying on the ground, the appellant shot him once through the neck. According to appellant, the rifle accidently discharged when he struck Earsley with it across the cheek. Ray Earsley himself had only a dim recollection of the event.

After shooting Earsley the appellant turned on his ex-wife and pointed the rifle at her. He struck her with the butt of the rifle, knocking her down, and them stood over her pointing the rifle in her face. More shots were fired but fortunately no further injuries occurred. The appellant then left the scene in his car, and was later arrested in Wyoming. The rifle, admitted by the defendant to be the same one used, was found some four blocks distant.

There are three issues presented. First, whether testimony concerning the assault upon Laurel Rollins was properly admitted into evidence; second, whether a photograph showing Ray Earsley's wound was properly admitted; and finally, whether the court erred in giving an instruction relating to the credibility of witnesses.

The District Court permitted several witnesses to testify to the assault on appellant's ex-wife. As a general rule, evidence of a separate or collateral crime is not admissible. But an exception may occur when one criminal act is so closely related to the one upon which the charge is based as to form part of the 'res gestae'. In State v. Howard, 30 Mont. 518, 524, 77 P. 50, 52, this court said: '* * * If, while a person is engaged in the commission of one felony, he commits another, evidence of the commission of both is admissible as part of the res gestae.' See also State v. Tighe, 27 Mont. 327, 71 P. 3, in support of this rule. Although the concept of 'res gestae' is sometimes abused in an attempt to rationalize the use of otherwise inadmissible evidence, we feel that testimony concerning the attack on Laurel Rollins was properly received by the district court here. Appellant struck Laurel Rollins immediately after shooting Earsley; to separate these events in a reconstruction of the facts at trial would be extremely difficult as a practical matter. Monreover, the continuity of act and intent demonstrated by both assaults, coupled with the fact that appellant fired more shots after assaulting Earsley, greatly minimize the possibility that Earsley was shot 'accidentally', as claimed by appellant. It passing on the question of criminal intent, the assault of Laurel Rollins was highly relevant.

The second issue is whether a color photograph taken of Earsley's wounds at the hospital was improperly shown to the jury. Appellant cites State v. Bischert, 131 Mont. 152, 308 P.2d 969, in support of the proposition that such evidence may not be used if intended to inflame the minds of the jury rather than enlighten them as to the facts. We affirm the rule of the Bischert decision but reject its application in this instance. In passing on the admissibility of such evidence, the court should weigh its probative value against its prejudicial effect. The photograph involved in Bischert was particularly distasteful and did not make a significant contribution to the development of facts in that case. The picture of Earsely here in question is not of that character. It was taken after the bullet wound had been cleaned and dressed. The reason offered by the State for its introduction was that it showed the presence of powder burns which were no longer visible at the time of trial. Such burns might corroborate appellant's version of the facts-that the gun discharged when Earsley was struck on the cheek with the weapon. It might even be argued that the photograph minimizes the severity of the wound inflicted. The trial judge should have latitude of discretion in passing on the admissibility of such evidence, and we cannot find any abuse of such discretion in this case.

The final issue, and the one of greatest concern to this court, is whether an instruction given on the credibility of witnesses constituted reversible error. The instruction, or variations thereof, has enjoyed a long and dubious history in the case law of this state. It reads as follows:

'The Court instructs the jury that you are the sole judges of the credibility of the witnesses, and of the weight of...