                            No. 82-45
            IN THE SUPREME COURT OF THE STATE OF MONTANA
                               1382


STATE OF MONTANA,
                            Plaintiff and Appellant,
      VS.

GORDON HEBER NICHOLLS,
                            Defendant and Respondent.


Appeal from:     District Court of the Fourth Judicial District,
                 In and for the County of Lake
                 Honorable James B. Wheelis, Judge presiding.
Counsel of Record:
     For Appellant:
            Hon. Mike Greely, Attorney General, Helena, Montana
            Richard P. Heinz, County Attorney, Polson, Montana
     For Respondknt:
            Terry Wallace, Plissoula, Montana


                              Submitted on briefs: May 27, 1982
                                          Decided: September 2, 1982
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.

     The State appeals from a judgment of dismissal of a
misdemeanor assault charge against defendant Gordon Reber
PJicholls, entered in the District Court, Fourth Judicial
District, County of Lake.
     Nicholls had been charged in a complaint filed in the
justice court with misdemeanor assault in that on September
25, 1980, Nicholls had purposely or knowingly caused bodily

injury to Tim Thornton by setting a German shepherd dog to
attack him and then by Nicholls striking Tim Thornton in the
face with his fist.
    Idicholls was found guilty after a nonjury trial before

the justice of the peace and he appealed the justice court
conviction to the District Court in Lake County.
     The matter came on for trial before the District Court,
sitting without a jury.     The State presented evidence through
Tim Thornton and others, that defendant Nicholls and other
members of his family had caused a German shepherd dog to
attack and bite Thornton, and that defendant Nicholls also
struck hin with his fist.    There was evidence of bodily
injury to Thornton. The defense introduced evidence from
defendant Nicholls and others that Thornton had to come upon
the Nicholls property in spite of "No Trespassing" and "Beware of
the Dog" signs posted on the fence over which he had gone,
and a denial that the defendant Nicholls had set the dog
upon Thornton, or that Nicholls had struck Thornton.
     At the close of all the evidence, the following statement
by the court and colloquy with counsel occurred:
     "THE COURT:   .. .
     "All right, now so far as the acts of the dog, the
     complaint, I mean, there has been no proof that
    would tie the defendant of any assault pursuant to
    any acts taken by this dog. No showing of any
    control or intent or whatever by either testimony.
    As far as I'm concerned, it's not persuasive one
    way or the other whether wounds were received. I
    believe Mr. Nicholls punched Mr. Thornton. I find
    that to be the case. I find that the dog knocked
    him down and that he and Mr. Nicholls, that is,
    Mr. Thornton and the Defendant were close enough
    so that Mr. Nicholls could have hit him and Mr.
    Nicholls did hit him. That's what I believe from
    assessing the credibility of each individual. The
    rest of it is all irrelevant. The only real issue
    left which is a legal issue is whether there was
    justification. Considering that there was, Mr.
    Thornton was in a state of trespass, had no business
    being there, totally wrongfully on the property.
    "I would like briefs, if people want to file briefs.
    Otherwise, I'll conduct the research myself. If I
    conclude that I have to find Mr. Nicholls guilty, I'll
    fine him whatever is fined in the lower court. Do
    you want some time to file briefs?
        "MR. WALLACE:     Sure.
        "MR. WOLF:     Yes, Your Honor.
        '"THE COURT:    Ten days each?
        "MR. WALLACE:     I need more time.
     "THE COURT:        Twenty days.
        "MR. WALLACE:     Yes.    He can file the first one.
    "THE COURT: Ten days, ten days to reply and then
    you can respond to Mr. Wallace. The only issue I
    want discussed is justification. Assuming the
    facts that I have found to be true are true."
     In case the foregoing is confusing to the reader, the
parties are in agreement that the court extended 10 days to
the State to file its brief, 10 days to the defendant to
respond to the brief, and 10 days thereafter to the State to
reply to the defendant7s'brief.
     The conversation above reported occurred on October 30,
1980.     The State did not file its brief.       Instead, on November
18, 1981, the deputy county attorney wrote to the presiding
judge at his address in Misscula.          In the letter, the deputy
county attorney stated that it was the duty of the defendant
to give notice of "self-defense as an affirmative defense
within 10 days of his plea of guilty"; and that under the
circumstances, it would be more appropriate for the defendant
first to submit a brief raising the issue and then to allow
the State to respond to the defendant's brief rather than

the opposite.
     On November 19, defendant moved to dismiss the action
against Nicholls upon the ground that the State had failed
to file a brief as ordered, that no extension of time to
file a brief was requested during the 10 day period, and
that the State's failure to file a brief could only be
construed as an admission that the State's position was
without merit, and that the defendant was justified in
striking Tim Thornton.   At the bottom of the motion is an
order of the court, dated November 23, 1981, and filed
November 27, 1981, in which the District Court said:
     "On motion of defendant, and good cause appearing
     therefore, the finding of this court made on
     October 30, 1981, that defendant struck Tim
     Thornton is vacated and'the charge against the
     defendant is dismissed. The State is further
     ordered to exonerate all bond paid by the
     defendant in this matter."
     On December 1, 1981, the Lake County deputy attorney
moved the District Court to vacate its order of November 23,
1981, on the ground that the court on its own motion, undertook

to consider justifiable use of force; that although the State
did not file a brief with respect to justification, it was
improper for the court to vacate its prior finding of fact
in dismissing the case and; that because the defendant also
failed to file a brief, the matter should be left to the
discretion of the court for its own research and analysis of
the issue raised.   The State further objected to the raising
of the issue of justifiable use of force by the court -
                                                      sua
sponte.
      On January 6, 1982, the court refused to vacate its
earlier order.
      The State appeals from the judgnent of dismissal and
from the denial of its post-trial motion.
      The issues presented fcr review are:
      1.   Whether the District Court should have raised the

issue of justifiable use of force sua sponte?
                                           -
      2.   Whether the District Court erred in vacating a
finding of fact made upon the record?
      3.   Whether the District Court erred in dismissing the
case upon the State's failure to file a "voluntary" brief
when the defendant did not also file a brief to which the

State was allowed to respond?
      The State's contentions on the first issue centers
around the fact that our statutes provide, section 46-15-
301(2), MCA, that     ". . .   the defendant shall furnish to the
prosecution and file with the clerk of the court at the time

of entering his plea of not guilty or within 10 days thereafter
...     (a) a statement of intention to interpose the defense

of justifiable use.of force        . . .   (b)   . . . the names and   addresses
of all witnesses other than defendant to be called by the
defense in support thereof        . . ."
      The State contends that because the defendant did not
raise justifiable force as an affirmative defense, or give
notice thereof, pursuant to section 46-15-301(2), MCA, that
it was i~properfor the court to raise it - -  -
                                         sua sponte at the
close of evidence in the case.
      In this case the District Court was in a dilema at the
close of the evidence.         It found that Nicholls could have
hit   ". . . and   did hit" Thornton.      It also found that

Thornton at the time had no business being on the property
and was "totally wrongfully on the property."    It saw that
the only real issue left was whether there was justification
as an issue of law.
       When a jury trial is waived in a criminal proceedings
in Montana, the court must decide questions of law and fact.
Section 46-16-103(2),   MCA.   When the trial is by jury, the
District Court must still decide all questions of law.
Section 46-16-103(2), supra.    The power and duty vested in
the District Court to decide questions of law necessarily
includes the power to determine what the questions of law
are.   Here the District Court determined that a question of
law existed which it would have to decide in deciding the
guilt or innocence of defendant.
       The State underestimates the power and function of the
District Court in raising the first issue.   Of course the

court has the power to raise the question of an affirmative
defense when the evidence in a cause justifies it, even
though counsel may not have followed procedural methods to
bring the affirmative defense to issue.   The ~istrictCourt

is not an automaton in its judicial function, mechanically
responding to encoded instructions fed to it by the counsel
before it.    In criminal cases, the court has a duty to the
State to protect the law, to define it, to enforce it, and
to punish the guilty.    The District Court's duty is also to

extend to a defendant in criminal proceedings the full
constitutional protections of due process, equal protection,
and the presumption of innocence.    The court shculd never

indulge in or permit gamesmanship based on technicalities,
which in the end may result in injustice to the State or to
a defendant.
      An affirmative defense is one that admits the doing of
the act charged, but seeks to justify, excuse or mitigate
it.   21 Arn.Jur.2d 338, 5 183, Criminal Law.   One may not
assume from the statute requiring a defendant to give notice
of an affirnative defense that the District Court may not
raise such a defense - sponte in a proper case.
                     sua                             Section
46-15-301(2), supra, provides for a statement of intention
tc interpose the defense of justifiable use of force "for
the purpose of notice only and to prevent surprise."    The

whole purpose of section 46-15-301, requiring such notice
from the State and from a defendant is to provide for the
discovery of witnesses, and to place both parties on an
equal footing with respect to the proof necessary in the
trial of a cause.   The State never claimed here that it was

prejudiced as to the production of additional evidence or
witnesses because the court had raised the issue of justification.
      As an example of the power of the court to act -
                                                     sua
spcnte, we can look to the provision on witnesses.    Section
46-16-201, MCA, makes the civil rules of evidence applicable
to criminal proceedings.   Rule 614(a), M.R.Evid. provides
that the court may on its motion call witnesses to testify

before it.   There is little difference between the power of
a court to call witnesses not produced by counsel and the
power of the District Court to raise issues of law or fact

not raised by counsel.
      We determine therefore that the District Court did not
act improperly in raising sua sponte the issue of justification

in this case.
      The State's second issue is that the District Court
erred in vacating the finding of fact made upon the record.
      No Montana statute requires a District Court to make

findings of fact in a nonjury criminal trial.     There is a
provision for the District Court to make findings of fact in
post-conviction proceedings, section 46-21-202(2), MCA, but
not otherwise in criminal proceedings.      At the close of all
the evidence in the jury trial, the court may on its own
motion dismiss the action and discharge the defendant where
the evidence is insufficient, but the court is not required
to make findings of fact to support the dismissal.        Section
46-16-403, MCA.
     Here the District Court made not a written finding, but
an oral statement that Nicholls could have and did hit

Thornton. Nothing      the record indicates that the District
Court intended that to be its final conclusion.        In ordering
briefs, the District CouEt asked for justification to be
discccssed, "assuming the facts that I've found to be true
are t r u e . ' V h e court had not completed .its factfinding

function and would not have completed it until eventually it
made the ultimate determination as to whether the plaintiff
was guilty or innocent.     No findings of fact or conclusicns of
law had actually been filed in the cause.       In truth, the
District Court was still in the process of its judicial
determination both of the facts and the law.       In M.arias
River Syndicate v. Big West Oil Company (1934), 98 Mont.
254, 257, 268, 38 P.2d 599, 603, this Court said:
     "At no time prior to the hearing of this
     motion had any findings of fact and conclusicns
     of law been filed. They, when filed, are the
     foundation for the judgment. (Citing a case.)
     Where findings have been prepared and filed and
     are incomplete, defective, or unresponsive to
     the issues, it is still open to counsel to move
     their amendment or correction in either or all
     respects, and until the findings have been filed,
     and amended or corrected, the case is still in
     the process of judicial determination and not
     ripe for the entry of judgment, and until that
     status is attained, where all that renains to be
     done is the entry of judgment in conformity to
     findings of fact and conclusions of law made and
     filed, a party is nct entitled to demand a judgment
     as a matter of right.    . ."
     There was no reason therefore, why the District Court
could not vacate its oral statement on a tentative finding of
fact in this case.
     The third issue is that the court erred in dismissing
the case without reaching a verdict of not guilty, based
upon the failure of the State to file a voluntary brief.
Although the State's letter to the District Court respecting
briefs had indicated that the deputy county attorney had
been ill and out of the office for 2 days, the clear import
of the letter to the District Court is an indication that a
brief would not be filed by the State, that the court should
not have raised the issue sua sponte, and that if briefs
were required, the defendant shculd file the first brief.
     The course and conduct of trial proceedings is peculiarly
within the province of the District Court to determine, and
not for counsel to decide.    We fail to see haw the State in
this cause could have been prejudiced if the brief requested
by the court from the State had been submitted to it.   Even

after the court entered its order cf dismissal on the motion
for reconsideration, no brief on this issue or any other issue
was presented by the State.    The cause was at the stage where
the District Court felt forced to dismiss because of lack of
prosecution by the State.    We see no error under the circumstances

in this cause.
     A£ firrned   .

                                                   Justice   1
We Concur:



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