STATE v TAYLOR

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No. 12394 I N THE SUPREME COURT OF THE STATE O M N A A F OTN 1973 STATE OF MONTANA, P l a i n t i f f and Respondent, -vs ANDREW TAYLOR, Defendant 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 E i g h t h J u d i c i a l D i s t r i c t , Honorable Truman B r a d f o r d , Judge p r e s i d i n g . Counsel of Record: For Appellant: Robert A . Tucker, G r e a t F a l l s , Montana J a c k L. Lewis a r g u e d , G r e a t F a l l s , Montana t For ~ e s p o n d e n : Hon. R o b e r t L. Woodahl, A t t o r n e y G e n e r a l , H e l e n a , Montana Thomas J. B e e r s , 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 p p e a r e d , Helena, Montana J . Fred Bourdeau, County A t t o r n e y , G r e a t F a l l s , Montana N e i l E. Ugrin, Deputy County A t t o r n e y , a r g u e d , G r e a t F a l l s , Montana Submitted: September 11, 1973 Decided : NOV Filed: NQM5 197'3 5 7973 M r . J u s t i c e Wesley C a s t l e s d e l i v e r e d t h e Opinion of t h e Court. This i s an appeal by defendant Andrew Taylor from a judgment of t h e d i s t r i c t c o u r t of Cascade County e n t e r e d on a j u r y v e r d i c t of second degree murder. Defendant was sentenced t o l i f e imprisonment. The f a c t s of t h i s c a s e a r e r e p e l l i n g . However, our i n q u i r y a s appears h e r e i n a f t e r i s whether o r n o t defendant h a s had a f a i r t r i a l ; and n o t whether defendant may be g u i l t y o r innocent. O t h e morning of December 22, 1971, V i c t o r i a Lynn Mullen n d i e d a t Columbus H o s p i t a l i n Great F a l l s , Montana. caused by a massive subdural hematoma, i . e . Death was a bleeding i n t o t h e c r a n i a l c a v i t y i n t h e space s e p a r a t i n g t h e b r a i n and t h e membrane l i n i n g t h e boney v a u l t . Within s i x days of h e r d e a t h Vicky Mullen would have been two y e a r s o l d . Vicky was t h e c h i l d of d e f e n d a n t ' s w i f e , Linda T a y l o r , by a previous marriage. The Taylors were married e a r l y i n November 1971, and t h e marriage continued a t l e a s t u n t i l a f t e r t h e t r i a l of t h i s cause. S h o r t l y a f t e r t h e marriage defendant, an e n l i s t e d man i n t h e United S t a t e s A i r Force, was r e a s s i g n e d t o Malmstrom A i r Force Rase i n Great F a l l s . I t was t h e s t a t e ' s t h e o r y t h a t s h o r t l y a f t e r t h e Taylors a r r i v e d i n Montana t h e defendant embarked on a c o u r s e of conduct which culminated i n Vicky's d e a t h . While t h e r e i s a g r e a t d e a l of testimony i n t h e r e c o r d implic a t i n g defendant i n v i c k y 1 s d e a t h , t h e most damaging i s t h a t of d e f e n d a n t ' s w i f e , Linda Taylor. T e s t i f y i n g over d e f e n d a n t ' s con- t i n u i n g o b j e c t i o n based on t h e m a r i t a l p r i v i l e g e p r o v i s i o n s of s e c t i o n s 93-701-4(1) and 94-8802, R.C.M. 1947, M r s . Taylor i n d i c a t e d hat defendant f r e q u e n t l y spanked t h e c h i l d very h a r d , o f t e n hard enough t o l e a v e b r u i s e s , when she s o i l e d h e r s e l f o r misbehaved. She t e s t i f i e d : t h a t s h o r t l y a f t e r t h e family a r r i v e d i n Montana defendant began t o spank t h e c h i l d w i t h a s t i c k f o r w e t t i n g h e r p a n t s and on a t l e a s t one occasion t h e r e was blood on t h e s t i c k following a spanking; t h a t defendant spanked t h e c h i l d on numerous occasions w i t h a p l a s t i c s t i c k and b e a t h e r w i t h a b e l t l e a v i n g s e v e r e b r u i s e s , t h i s a l s o a s punishment f o r misbehavior; t h a t when Vicky r e f u s e d t o e a t defendant would s l a p h e r , slam h e r head v e r y hard a g a i n s t t h e back of t h e h i g h c h a i r and b e a t h e r head w i t h a s t i c k . I n a n o t h e r i n c i d e n t , Mrs. Taylor t e s t i f i e d defendant became angry over t h e c h i l d ' s r e f u s a l t o walk i n a shopping c e n t e r parking l o t and backhanded h e r hard enough t o knock h e r down. occurred on December 1 3 o r 14, 1971. This On a n o t h e r o c c a s i o n , de- fendant slapped t h e c h i l d f o r w e t t i n g h e r p a n t s , causing h e r t o s t r i k e h e r head a g a i n s t t h e a r m r e s t of t h e couch and go i n t o convulsions. death. This occurred on t h e evening preceding t h e c h i l d ' s M r s . Taylor a l s o t e s t i f i e d t h a t on December 18, 1971, defendant t i e d a b e l t around t h e c h i l d ' s f e e t , s t r a p p e d t h e b e l t t o t h e doorknob and then opened and c l o s e d t h e door s e v e r a l t i m e s , c a u s i n g t h e c h i l d t o bang h e r head a g a i n s t t h e door. Also, t h a t same evening he s t r a p p e d t h e b e l t over t h e t o p of a door and suspended t h e c h i l d head down and t h e n opened t h e door very q u i c k l y c a u s i n g Vicky t o f a l l t o t h e f l o o r on h e r head. A t t r i a l , M r s . Taylor admitted having made a number of p r i o r s t a t e m e n t s a s t o t h e c a u s e of Vicky's i n j u r i e s which were i n c o n s i s t e n t w i t h h e r testimony a t t r i a l . She i n d i c a t e d t h e e a r l i e r accounts were f a l s e and t h a t h e r account a t t h e time of t r i a l was t r u e and a c c u r a t e . However, under cross-examination, she d i d s p e c i f i c a l l y a f f i r m an e a r l i e r statement i n which s h e s a i d "He never r e a l l y i n t e n t i o n a l l y meant t o h u r t h e r . d i s c i p l i n i n g her." I t was h i s way of She a l s o t e s t i f i e d t h e defendant played w i t h t h e c h i l d , k i s s e d h e r , o f t e n gave h e r t r e a t s of c o o k i e s and would look i n on h e r a t n i g h t t o s e e i f she was covered. Mrs. ~ a y l o r ' stestimony was supported i n p a r t by t h e testimony of M r . and M r s . Hyatt. The H y a t t s were c l o s e f r i e n d s of t h e Taylors and t h e two f a m i l i e s v i s i t e d f r e q u e n t l y . t o d e f e n d a n t ' s punishment o f t h e c h i l d . Both Hyatts t e s t i f i e d a s Mrs. Hyatt confirmed one i n c i d e n t , t e s t i f i e d t o by Mrs. Taylor, when defendant spanked Vicky hard enough t o produce b r u i s e s . She t e s t i f i e d t h a t on a n o t h e r occasion a f t e r defendant spanked Vicky, t h e r e was blood on h i s hand and h e r bottom. M r . Hyatt t e s t i f i e d he heard o r saw defendant d i s c i p l i n e Vicky on a number of occasions and t h a t i n h i s opinion t h e d i s c i p l i n e administered by defendant was f a r t o o s e v e r e f o r a c h i l d of v i c k y f s age. Both H y a t t s agreed t h e spankings they saw o r heard being a d m i n i s t e r e d were f o r t h e purpose of d i s c i p l i n i n g Vicky f o r some misbehavior. They a l s o t e s t i f i e d t h a t on occasion defendant d i s p l a y e d a f f e c t i o n toward t h e c h i l d by hugging and k i s s i n g h e r . Defendant t e s t i f i e d on h i s own b e h a l f and acknowledged d i s c i p l i n i n g t h e c h i l d by spanking and s t a n d i n g h e r i n a c o r n e r a s punishment f o r v a r i o u s misdeeds. Defendant a l s o r e c a l l e d t h e parking l o t i n c i d e n t of December 1 3 o r 14 when Vicky was having t r o u b l e walking b u t denied s l a p p i n g h e r on t h a t occasion. He denied e v e r having h i t h e r w i t h a b e l t , denied e v e r having hung t h e c h i l d from a door, and denied h i t t i n g h e r w i t h s t i c k s . In g e n e r a l , defendant denied m i s t r e a t i n g Vicky i n any of t h e ways t e s t i f i e d t o by h i s wife. He s t a t e d he knew of one f a l l which accounted f o r some of Vicky's b r u i s e s and t h a t h i s w i f e had t o l d h i m of o t h e r f a l l s which would e x p l a i n some of t h e o t h e r i n j u r i e s . The e x t e n t of Vicky's i n j u r i e s was t e s t i f i e d t o by D r . John P f a f f , Jr., a p a t h o l o g i s t who performed t h e autopsy. He t e s t i f i e d t h a t t h e c a u s e of d e a t h was b l e e d i n g which occurred i n t h e space between t h e b r a i n and t h e membrane l i n i n g of t h e s k u l l . This b l e e d i n g was e s t i m a t e d t o have begun approximately 10 t o 1 3 days p r i o r t o death. However, t h e d o c t o r b e l i e v e d t h e r e were e p i s o d e s o f r e b l e e d i n g caused by i n j u r i e s t o t h e head which occurred between t h e time of t h e f i r s t i n j u r y and t h e time of death. Dr. Pfaff f u r t h e r s t a t e d t h a t t h e e n t i r e s c a l p was swollen and had a "boggy" c o n s i s t e n c y , suggesting b l e e d i n g over t h e e n t i r e s c a l p . This c o n d i t i o n was c o n s i s t e n t w i t h h i s f i n d i n g t h a t t h e b l e e d i n g which caused v i c k y l s d e a t h was t h e r e s u l t of one o r a s e r i e s of s e v e r e blows, w i t h t h e a r e a of i n i t i a l b l e e d i n g being subsequently aggravated and e n l a r g e d by o t h e r s e v e r e blows t o t h e head. I n f u r t h e r testimony, D r . P f a f f s t a t e d t h e autopsy examinat i o n revealed additional multiple i n j u r i e s . While t h e s e i n j u r i e s were n o t d i r e c t l y r e l a t e d t o t h e cause of d e a t h , t h e y d i d tend t o c o r r o b o r a t e t h e testimony of Mrs. Taylor and t h e H y a t t s a s t o r e p e a t e d s e v e r e d i s c i p l i n i n g s of t h e c h i l d . These i n j u r i e s i n - cluded m u l t i p l e b r u i s e s and a b r a s i o n s of t h e f a c e and neck a r e a s ; m u l t i p l e b r u i s e s on b o t h arms and l e g s ; r a t h e r l a r g e b r u i s e s on b o t h upper l e g s and t h e a r e a of t h e t h i g h s ; and, a t l e a s t two a r e a s of hemorrhage i n t h e abdomen r e s u l t i n g from s e v e r e b l u n t f o r c e impacts. The m a j o r i t y of t h e s e i n j u r i e s had been i n f l i c t e d from t h r e e t o f o u r t e e n days p r i o r t o t h e c h i l d ' s d e a t h . D r . McKenzie t e s t i f i e d he t r e a t e d t h e c h i l d on December 3 , 1971, and t h a t he examined h e r a g a i n on December 9, 1971, a t which time he n o t i c e d head and f a c e i n j u r i e s which would be c l a s s i f i e d a s c o n t u s i o n s and a b r a s i o n s . He a l s o t e s t i f i e d t h a t his examina- t i o n of December 9 would have r e v e a l e d a massive s u b d u r a l hematoma, b u t he a s c e r t a i n e d none. However, he d i d i n d i c a t e t h a t h i s examina t i o n would n o t have r e v e a l e d t h a t a b l e e d i n g p r o c e s s , which could end i n a massive subdural hematoma, had begun, Mrs. Taylor t e s t i f i e d t h a t following Vicky's d e a t h defendant g a t h e r e d up t h e c h i l d ' s c l o t h e s and f o r c e d h e r t o go w i t h him t o t h e dump where he d i s c a r d e d t h e bloody c l o t h e s , a f t e r g i v i n g a f a l s e name t o t h e p r o p r i e t o r of t h e dump. Defendant, on t h e o t h e r hand, t e s t i f i e d i t was Mrs. Taylor who picked up t h e c l o t h e s , and t h a t he took them t o t h e dump and gave a f a l s e name and a d d r e s s t h e r e t o p r o t e c t h i s wife. F i n a l l y , t h e r e was testimony by d e f e n d a n t ' s c e l l mate t h a t defendant had t o l d him he spanked t h e c h i l d w i t h a b e l t and h i t h e r w i t h a b e l t , because s h e was a s p o i l e d b r a t . He a l s o t e s t i f i e d defendant had s a i d he d i d n o t r e a l l y mean t o h u r t h e r , h e was j u s t trying t o correct her. At the close of the evidence, the district court refused defendant's offered instructions on voluntary and involuntary manslaughter. It also refused defendant's request for change in the general cautionary instruction regarding the credibility of witnesses which would have specifically instructed the jury to consider prior inconsistent statements as possibly repelling the presumption that each witness spoke true. Over defendant ' s objection, the court gave two instructions regarding the burden of proof to the effect that the State had only to prove guilt beyond a reasonable doubt. On appeal, defendant raises numerous issues for review which we shall consider in this order: (1) That the district court erred in refusing defendant's offered instructions on voluntary and involuntary manslaughter. (2) That it was error to allow defendant's wife to testify over his objection. (3) doubt Corpus delecti was not established beyond a reasonable . (4) That it was error to admit over objection testimony "considering the possibility of Battered Child ~yndrome". (5) That testimony as to other injuries was improper. (6) That the jury was not properly instructed regarding prior inconsistent statements. (7) That it was error to qualify the State's burden of proof with the word "only" in two of the court's instructions. Since only the failure to give the requested manslaughter instructions requires reversal and a new trial, we will consider I, issue ( ) and then deal with the other issues only as their resolution bears on a new trial. In justifying the district court's refusal of defendant's offered instructions on manslaughter, the State argues essentially two things. First, that once the commission of the homicide by the defendant is shown the burden of proving circumstances of mitigation devolves on the defendant and since in this case defendant denied the doing of the acts causing death, rather than showing circumstances of mitigation, he failed to meet this burden and was not entitled to instructions on manslaughter. Second, the jury had the choice of believing either all the testimony of Mrs. Taylor or all the testimony of Mr. Taylor, and since the jury convicted Mr. Taylor it obviousiy believed Mrs. Taylor, whose testimony was sufficient to support a conviction for second degree murder. The central proposition of the State's first argument is specifically established by section 94-7212, R.C.M. 1947, which provides : "Upon a trial for murder, the commission of the homicide by the defendant being proved, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable. ' 1 It is immediately apparent from a consideration of section 94-7212, that there is an exception to the burden placed on a defendant of coming forward with evidence of mitigation, after proof of the commission of a homicide. This exception is appli- cable to those situations in which the proof relied on by the prosecution to establish guilt also tends to show circumstances of mitigation. case law. This exception is well established in ~ontana's State v. Rivers, 133 Mont. 129, 133, 320 P.2d 1004, describes it thusly: "Still there is an exception or modification to this general rule, most explicit in our Montana law. It is that such a presumption of malice does not exist in the face of evidence tending to show that the acts of the defendant amount only to manslaughter. I I As in Rivers, this rule is most important in the instant case. At trial, the state's principal witness, Mrs. Taylor, testified that defendant "never really intentionally meant to hurt her. It was his way of disciplining her." With regard to specific incidents, she testified that defendant's acts in striking the child were, with one exception, for purposes of discipline. Similarly the ~yatts'testimony, who were also state's witnesses, was to the effect that defendant's striking of the child was punish- ment f o r v a r i o u s misdeeds. Even t h e admissions of t h e defendant, a s r e l a t e d by h i s former c e l l mate, were t o t h e e f f e c t t h a t defendant s t r u c k t h e c h i l d a s a punishment f o r being "spoiled", b u t he had n o t meant t o h u r t h e r . From t h e s e f a c t s a t t e s t e d t o by t h e S t a t e ' s own w i t n e s s e s , t h e i n f e r e n c e could have been drawn by t h e j u r y t h a t defendant i n f l i c t e d the f a t a l i n j u r i e s while disciplining the child. I f the jury reached t h i s conclusion under proper i n s t r u c t i o n s , i t could then have concluded t h a t t h e death occurred a s t h e r e s u l t of t h e doing of a l a w f u l a c t , t h e d i s c i p l i n i n g of a c h i l d permitted by s e c t i o n 94-605(4), R.C.M. 1947, i n an unlawful manner o r without due c a u t i o n o r circumspection. A p r o p e r l y i n s t r u c t e d j u r y could f i n d i n v o l u n t a r y manslaughter under t h e p r o v i s i o n s of s e c t i o n 94-2507, R.C.M. 1947: "Manslaughter i s t h e unlawful k i l l i n g of a human b e i n g , without malice. It i s of two kinds: " (2) I n v o l u n t a r y , i n t h e commission of a n unlawful a c t , n o t amounting t o f e l o n y ; o r i n t h e commission of a l a w f u l a c t which might produce d e a t h , i n an unlawful manner, o r w i t h o u t due c a u t i o n o r circumspection. I I Mrs. Taylor t e s t i f i e d t o one i n s t a n c e where defendant became angry w i t h t h e c h i l d and slapped h e r hard enough t o knock h e r down. This i n c i d e n t occurred n e a r t h e c r i t i c a l time e s t a b l i s h e d by t h e medical testimony f o r t h e i n f l i c t i o n of t h e i n i t i a l i n j u r y causing the c h i l d ' s death. i n c i d e n t which I f t h e j u r y b e l i e v e d i t was t h i s l e d t o t h e o n s e t of t h e hematoma, i t could have found t h a t t h e d e a t h was t h e r e s u l t of "a sudden q u a r r e l o r h e a t of passion" and found defendant g u i l t y of v o l u n t a r y manslaughter under t h e p r o v i s i o n s of s e c t i o n 94-2507(1), R.C.M. 1947. F u r t h e r , t h e r e was testimony by M r s . Taylor t h a t defendant played w i t h t h e c h i l d , k i s s e d h e r , o f t e n gave h e r t r e a t s of cookies and would look i n on h e r a t n i g h t t o s e e i f s h e was covered, The H y a t t s a l s o t e s t i f i e d t o d i s p l a y s of a f f e c t i o n by defendant t o the child. This testimony tends t o put i n i s s u e t h e q u e s t i o n of malice. In State v. Thomas, 147 Mont. 325, 331, 332, 413 P.2d 315, this Court observed that testimony by the defendant stating affection and lack of ill feeling toward the deceased was sufficient to put in issue the question of malice by tending to "'eliminate' or 1 negative' the presence of malice". Also in Rivers, testimony relating to the defendant's treatment of the deceased was held to show a lack of malice. While the district court may have considered the evidence in support of manslaughter weak and inconclusive, still it was bound to instruct the jury on manslaughter since the weight to be given the evidence is a question for the jury. 1901(b), Section 95- R.C.M. 1947, provides: "Questions of law shall be decided by the court, and questions of fact by the jury * *." Since the weight to be given testimony is in essence a question of fact, it follows that the court should have allowed the jury to resolve it by instructing the jury as to manslaughter. The conclusion that the district court erred in refusing the offered manslaughter instructions is reenforced by this Court's observations in Thomas, where it stated: "It is a fundamental rule that the court's instructions should cover every issue or theory having support in the evidence. I' The Court then, in Thomas, applied this general rule to homicide cases : "'Any evidence, however slight, which shows that the homicide was committed under such circumstances as to eliminate the element of malice, requires a charge on the law of manslaughter. 1 I t In view of the foregoing, the State's second argument justifying the refusal of the offered manslaughter instructions can be dealt with in a more summary fashion. It is premised on the assertion that the jury had the choice of believing all of Mrs. Taylor ' s testimony or all of Mr. Taylor's testimony. correct. That premise is in- A jury is not obligated to believe all of any witness's testimony. This Court in State v. Le Duc, 89 Mont. 545, 562, 300 P. 919, said the jury is: '* * * at liberty to believe all, a part of, or I none of the testimony of any witness. II Accordingly, even if the jury rejected all of defendant's testimony, it was still at liberty to believe only parts of Mrs. ~aylor'stestimony. With the right to reject any part of Mrs. ~aylor's testimony, a properly instructed jury could have found that defendant struck the blow causing the fatal bleeding while disciplining the child and returned a verdict of involuntary manslaughter, or that the blow which caused the fatal bleeding was struck by defendant in sudden anger and returned a verdict of voluntary manslaughter. To the second part of the state's argument--that the conviction should stand because Mrs. Taylor's testimony was sufficient to support a conviction for second degree murder--we merely observe that while this may be so, it is not enough. Mrs. ~aylor's testimony also supports a manslaughter theory, thus requiring instructions on manslaughter. State v. Thomas, supra. Since the evidence could be interpreted to support a finding that the killing was done without malice in the course of doing a lawful act without due circumspection; was done without malice in the doing of an unlawful act not amounting to a felony; or, was done without malice on a sudden passion; the failure to instruct the jury as to manslaughter requires reversal of this cause for new trial with a jury properly instructed. This cause will be tried again so we will consider defendant's other specifications of error as they bear on a new trial. Chief among those specifications of error is the denial of defendant's claim of marital privilege against the admission of his wife's testimony. We find this specification of error to be without merit. Defendant's contention is that his wife, Linda Taylor, could not testify against him over his objection. In support of his claim of marital privilege, defendant cites sections 93-701-4(1) and 94-8802, R.C.M. 1947. II Section 93-701-4(1), provides: There are particular relations in which it is the policy of the law to encourage confidence and to preserve it inviolate; therefore, a person cannot be examined a s a witness i n t h e following c a s e s : (1). A husband cannot be examined f o r o r a g a i n s t h i s w i f e without h e r consent; nor a w i f e f o r o r a g a i n s t h e r husband without h i s consent; nor can e i t h e r , during t h e marriage o r afterward, be, without t h e consent of t h e o t h e r , examined a s t o any communic a t i o n made by one t o t h e o t h e r during t h e marriage; b u t t h i s exception does n o t apply t o a c i v i l a c t i o n o r proceeding by one a g a i n s t t h e o t h e r , nor t o a c r i m i n a l a c t i o n o r proceeding f o r a crime committed by one a g a i n s t t h e o t h e r . 11 Section 94-8802, R.C.M. 1947, provides: "Except with t h e consent of both, o r i n cases of c r i m i n a l violence upon one by t h e o t h e r , o r i n c a s e of abandonment, o r n e g l e c t of c h i l d r e n by e i t h e r p a r t y , o r of abandonment o r n e g l e c t of t h e wife by t h e husband, n e i t h e r husband nor wife i s a competent witness f o r o r a g a i n s t t h e o t h e r i n a criminal a c t i o n o r proceeding t o which one o r both a r e p a r t i e s . 11 While both t h e S t a t e and defendant t r e a t each of t h e s e s e c t i o n s a s a p p l i c a b l e t o t h i s case, we f i n d t h a t only s e c t i o n 94-8802, R.C.M. 93-701-4(1), 1947, need be considered on these f a c t s . R.C.M. Section 1947, a r u l e of evidence f o r c i v i l causes, i s a p p l i c a b l e t o c r i m i n a l causes only through t h e operation of s e c t i o n 94-7209, R.C.M. 1947, which provides: "The r u l e s of evidence i n c i v i l a c t i o n s a r e a p p l i c a b l e a l s o t o criminal a c t i o n s , except a s otherwise provided i n t h i s code. 11 I n t h e i n s t a n t c a s e , defendant and t h e witness a r e s t i l l husband and wife. 8802, R.C.M. Since " t h i s code" has f u l l y provided i n s e c t i o n 941947, f o r t h e admission o r exclusion of testimony of persons who a r e s t i l l husband and w i f e , i t i s apparent t h a t i t has been "otherwise provided" w i t h i n t h e meaning of s e c t i o n 94-7209, R.C.M. 701-4(1), R.C.M. 1947, excluding t h e a p p l i c a b i l i t y of s e c t i o n 931947, t o t h i s f a c t s i t u a t i o n . The S t a t e argues t h a t Mrs. ~ a y l o r ' stestimony i s admissible a g a i n s t h e r defendant husband on a number of bases, including assertions: t h a t a w i f e can t e s t i f y a s t o t h e a c t s a s d i s t i n g u i s h e d from t h e communications of h e r husband ; t h a t a crime a g a i n s t t h e w i f e ' s c h i l d i s a crime a g a i n s t t h e wife f o r purposes of t h e exception t o t h e s t a t u t e allowing a spouse t o t e s t i f y i n c a s e s involving c r i m i n a l violence by one spouse a g a i n s t t h e o t h e r ; and, t h a t t h e w i f e ' s testimony i s a d m i s s i b l e under t h e exception t o t h e s t a t u t e allowing one spouse t o t e s t i f y a g a i n s t t h e o t h e r W e i n c a s e s i n v o l v i n g "abandonment o r n e g l e c t of c h i l d r e n " . do n o t comment on t h e v a l i d i t y of t h e f i r s t two grounds urged by t h e S t a t e s i n c e we f i n d t h i s c a s e s q u a r e l y w i t h i n t h e e x p l i c i t e x c e p t i o n t o t h e s t a t u t e a l l o w i n g one spouse t o t e s t i f y a g a i n s t t h e o t h e r i n c a s e s of abandonment o r n e g l e c t of c h i l d r e n . Defendant claims t h a t f o r a d e f i n i t i o n of t h e term 1I neglect" used i n framing t h e e x c e p t i o n we must r e l y on s e c t i o n 19-103(16), R.C.M. 1947, which d e f i n e s n e g l e c t a s : ** It* a want of such a t t e n t i o n t o t h e n a t u r e o r probable consequences of t h e a c t o r omission a s a prudent man o r d i n a r i l y bestows i n a c t i n g i n h i s own concerns. 11 From t h i s d e f i n i t i o n defendant then a r g u e s t h a t t h e exception cannot be a p p l i e d t o a l l o w testimony when t h e charge i s murder, s i n c e murder r e q u i r e s an i n t e n t which denotes a w i l l f u l n e s s i n c o n s i s t e n t w i t h negligence. This p o s i t i o n i s untenable. While d e f e n d a n t ' s statement o f t h e s t a t u t o r y d e f i n i t i o n of n e g l e c t i s c o r r e c t , i t i s incomplete i n t h a t s e c t i o n 19-103, R , C.M. 1947, a l s o provides t h a t t h i s d e f i n i t i o n s h a l l a p p l y only II u n l e s s otherwise a p p a r e n t from t h e c o n t e x t . " In t h i s case the c o n t e x t i s t h e s t a t u t e , t h e purpose of which i s t h e p r o t e c t i o n of t h e s a n c t i t y of marriage and t h e home. W f e e l t h a t t h e pure pose of t h e e x c e p t i o n s t o t h i s s t a t u t e i s a l s o p r o t e c t i v e . In t h e c a s e of t h e exception r e l a t e d t o t h e n e g l e c t of c h i l d r e n , t h e purpose i s p r o t e c t i o n of c h i l d r e n from abuse which could o t h e r wise b e p r a c t i c e d without f e a r of r e t r i b u t i o n under p r o t e c t i o n of t h e m a r i t a l p r i v i l e g e . I f dekendant ' s c o n s t r u c t i o n of t h i s p r o t e c t i v e e x c e p t i o n i s adopted, t h e p r o t e c t i o n would extend t o i n j u r i e s n e g l i g e n t l y i n f l i c t e d b u t n o t w i l l f u l a s s a u l t , t o a n e g l i g e n t homicide b u t n o t t o premeditated murder. Such a c o n s t r u c t i o n i s c l e a r l y t o o narrow, o u t r a g i n g both r e a s o n and j u s t i c e . I n t h i s context a broader d e f i n i t i o n of n e g l e c t i s r e q u i r e d than t h a t o f f e r e d by s e c t i o n 19-103, R.C.M. 1947. For t h e purposes of t h i s exception, we hold t h a t t h e term "neglect" i n c l u d e s any abuse of c h i l d r e n whether i n f l i c t e d n e g l i g e n t l y o r i n t e n t i o n a l l y . I n adopting t h i s cot~struction we a r e s a t i s f i e d t h a t we r e a c h a r e s u l t which i s r e q u i r e d by both reason and j u s t i c e and which i s w i t h i n t h e contemplation of t h e l e g i s l a t u r e a t t h e time i t enacted s e c t i o n 94-8802, R.C.M. 1947. Under t h i s c o n s t r u c t i o n of t h e m a r i t a l p r i v i l e g e s t a t u t e s , M r s . T a y l o r ' s testimony w i l l be p r o p e r l y a d m i s s i b l e on r e t r i a l . I t should be noted t h a t i n view of our d i s c u s s i o n of i s s u e ( I ) , on r e t r i a l of t h i s m a t t e r t h e j u r y w i l l b e i n s t r u c t e d a s t o manslaught e r t h u s r a i s i n g t h e i s s u e of negligence and making M r s . ~ a y l o r ' s testimony a d m i s s i b l e even under d e f e n d a n t ' s c o n s t r u c t i o n of t h i s exception. Considering d e f e n d a n t ' s t h i r d s p e c i f i c a t i o n of e r r o r - - t h a t t h e S t a t e f a i l e d t o e s t a b l i s h corpus d e l e c t i s u f f i c i e n t t o support a c o n v i c t i o n of murder--it i s s u f f i c i e n t a t t h i s time merely t o observe t h a t of t h e showings r e q u i r e d by s e c t i o n 942510, R.C.M. 1947, t h e r e i s no d i s p u t e a s t o t h e c h i l d ' s d e a t h and t h e r e was s u f f i c i e n t c r e d i b l e evidence t o support t h e j u r y ' s f i n d i n g t h a t defendant was r e s p o n s i b l e beyond a r e a s o n a b l e doubt. Nothing more i s r e q u i r e d . S t a t e v. Medicine B u l l , Jr., 152 Mont. 34, 445 P.2d 916; S t a t e v. Bosch, 125 Mont. 566, 242 P.2d 477. Defendant's f o u r t h and f i f t h s p e c i f i c a t i o n s of e r r o r q u e s t i o n Itlhile d e f e n d a n t ' s t h e p r o p r i e t y of allowing c e r t a i n testimony. p o i n t t h a t testimony a s t o f ' p o s s i b i l i t i e sI' 11 w i l l n o t w i t h o u t more, supply evidence" (LaForest v. Safeway S t o r e s , I n c . , 147 Mont. 431, 414 P.2d 200) i s w e l l t a k e n , i t i s n o t a p p l i c a b l e t o t h i s c a s e . The d o c t o r was n o t asked i f t h e r e was a p o s s i b l i t y of B a t t e r e d Child Syndrome, b u t r a t h e r , i f he had considered t h e p o s s i b i l i t y of B a t t e r e d Child Syndrome. A f t e r he answered t h a t q u e s t i o n i n t h e a f f i r m a t i v e , he went on t o d e s c r i b e such of h i s f i n d i n g s a s supported t h e conclusion t h a t t h e B a t t e r e d Child Syndrome was p r e s e n t . This further testimony takes the doctor's consideration out of the realm of mere possibility and makes it fully admissible as expert testimony. Defendant also claims it was error for the court to allow testimony concerning injuries which were not specifically related to the cause of death. This testimony was clearly admissible on the first trial of this action, since one of the offenses charged was murder by torture and the condition of the body was evidence from the the jury could have inferred the essential element of intent to inflict cruel suffering. People v. Lawhon, 33 Cal.Rptr. 718, 723, 220 C.A.2d 311. We feel the testimony will also be admissible on retrial of this cause on the alternative ground of showing a common scheme, plan, or design to inflict injury on the child. While the general rule is that evidence of other offenses other similar acts at other times inadmissible for the purpose of showing the commission of the particular crime charged, there are certain well established exceptions. State v. Tiedemann, 139 Mont. 237, 362 P.2d 529; State v. Jensen, 153 Mont. 233, 238, 455 P.2d 63. These exceptions are summarized in Jensen: 11 There are recognized exceptions to this general rule: similar acts with the same prosecuting witness, State v. Sauter, 125 Mont. 109, 232 P.2d 731 (1951); similar acts not too remote in time, State v. Nicks, supra; and 'where the evidence of other crimes tends to establish a common scheme, plan or system and where such other crimes are similar to, closely connected with and not too remote from the one charged, and also where they are so that proof of one tends to establish the other.' State v. Merritt, 138 Mont. 546, 357 P.2d 683 (1960); State v. Gransberry, 140 Mont. 70, 367 P.2d 766 (1962)." Having established the exceptions, Jensen goes on to set out a three part test to guide the determination of what other acts can be admitted under the exceptions. The elements of the Jensen test are: "similarity of crimes or acts, nearness in time, and tendency to establish a common scheme, or plan or system. I1 In Jensen a pattern of behavior is held to be a "common scheme or plan. 11 In the instant case, the testimony objected to went not directly to the acts of the defendant but rather to injuries from which acts could be inferred and which were corroborative of acts by the defendant testified to by other witnesses. These we hold are also admissible under the Jensen exceptions, if they meet the criteria of Jensen and can be related to defendant's acts. In this case, the criteria of Jensen are met in that: (1) Various beatings all administered to the same child are similar acts; (2) injuries inflicted within 21 days of death satisfy the requirement of nearness in time; and (3) by showing a continuous pattern of behavior toward the child there appears a common scheme or plan within the meaning of the exception. These injuries were sufficiently related to defendant by the testimony of other witnesses regarding the severe beatings administered by defendant to the child during the final 21 days of her life. ~efendant's final specifications of error relate to certain instructions given by the court. The court gave the general cautionary instruction on duties of the jury, No. 1.02C, Montana Jury Instruction Guide Criminal. In giving this instruction the court refused a request by defendant to specifically include in the instruction prior inconcistent statements as one of the factors which the jury should consider as possibly repelling the presumption that a witness speaks the truth. It is defendant's claim that the court erred in refusing to so specifically instruct the jury. Section 93-1901-12, R.C.M. 1947, specifically provides: 1' A witness may also be impeached by evidence that he has made, at other times, statements inconsistent with his present testimony * * * . I ' Clearly, such an instruction would have been proper and in a case, such as this, where the State's principal witness had admittedly made a number of prior inconsistent statements, it would seem particularly appropriate. The giving of the instruction with the defendant's requested inclusion regarding prior inconsistent statements would better accord with the accepted principle of f u l l y and c l e a r l y i n s t r u c t i n g t h e j u r y a s t o t h e s p e c i f i c s of t h e law a p p l i c a b l e t o t h e c a s e . Defendant a l s o o b j e c t s t o t h e u s e of t h e word "only1' i n c e r t a i n of t h e c o u r t ' s i n s t r u c t i o n s r e l a t i n g t o t h e S t a t e ' s burden of proof and quantum of proof r e q u i r e d t o show proof beyond a r e a s o n a b l e doubt. W agree with defendant's contention t h a t e d e s c r i b i n g t h e s t a t e ' s burden a s "only t h a t d e g r e e of proof1', and proof beyond a r e a s o n a b l e doubt a s "only such proof a s may" c o u l d t e n d t o confuse a j u r y composed of laymen and i n e f f e c t d i l u t e t h e degree of g u i l t and proof t h e S t a t e i s bound t o establish. The u s e of t h e l i m i t i n g word "only" i s n o t n e c e s s a r y t o c l e a r l y and f u l l y d e s c r i b e t h e burden and should n o t be i n cluded i n t h e i n s t r u c t i o n s on r e t r i a l . The judgment i s r e v e r s e d and t h e c a u s e remanded t o t h e d i s t r i c t c o u r t f o r f u r t h e r proceedings n o t i n c o n s i s t e n t w i t h t h i s o p i n i o n . Justice / I . , *, Chief J u s t i c e ,/'\ Justices. I / 1 M r \ J u s t i c e Gene B. Daly, deeming himself d i s q u a l i f i e d , took 'i , no {{parti n t h i s opinion.

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