-     -
                                         No. 12618

              I N THE SUPREME COURT O THE STATE O M N A A
                                     F           F OTN




    STATE Or' M N A A e x rel, WILL J .
               OTN
    KRUTZFELDT, COUNTY ATTORNEY O              F
    CUSTER COUNTY, M N A A AND JAMES J
                       OTN                               .
    SINCLAIR, h i s S p e c i a l A s s i s t a n t ,

                                 Relators,



    THE DISTRICT COURT O THE THIRTEENTH JUDICIAL
                                       F
    DISTRICT, I N AND FOR THE COUNTY O YELLOIJSTONE,         F
    on Change o f Venue from D i s t r i c t Court o f t h e
    S i x t e e n t h J u d i c i a l D i s t r i c t of t h e S t a t e of
    Montana, I n and F o r t h e County o f C u s t e r , The
    Honorable M. James S o r t e , P r e s i d i n g , t h e r e o f ,

                                 Respondents.



    ORIGINAL PROCEEDING:

    Counsel o f Record:

          For Relators :

                 James J . S i n c l a i r , S p e c i a l A s s i s t a n t County A t t o r n e y ,
                  a r g u e d , B i l l i n g s , Montana
                 W i l l J. K r u t z f e l d t a p p e a r e d , County A t t o r n e y , M i l e s
                  C i t y , Montana

          F o r Respondents :

                 J o s e p h P. Hennessey a r g u e d , B i l l i n g s , Montana
                 Kenneth Wilson a p p e a r e d , M i l e s C i t y , Montana

                 Amicus C u r i a e

                 Hon. Robert L. Woodahl, A t t o r n e y G e n e r a l , H e l e n a , Montana
                 3. C. Weingartner, A s s i s t a n t Attorney General, appeared,
                  Helena, Montana
                 Harold F. H a n s e r , County A t t o r n e y , B i l l i n g s , Montana
                 Diane B a r z , Deputy County A t t o r n e y , a r g u e d , B i l l i n g s ,
                  Montana



                                                       Submitted:         October 24, 1973

                                                          Decided :
    Filed :                                                             UbV 12
Mr. Justice Wesley Castles delivered the Opinion of the Court.

    This is an original proceeding seeking a writ of supervisory
control or other appropriate writ and seeking, in effect, a
declaratory judgment on a rule of law.
    Petition is by the State seeking to set aside an order of
the district court sitting in Yellowstone County after change
of venue from Custer County, the Hon. M. James Sorte presiding.
That order declared section 95-503, R.C.M. 1947, unconstitutional;
permitted defendant to present the question of mental disease
as a defense before the jury; and, declared the rule of law for
the defense of mental disease to be that of the American Law
lnstitutelsModel Penal Code and foreclosing the so-called
       rule as set forth in State v. Noble, 142 Mont. 284,
~'~aghten
384 P.2d 504.
    The issues here arise out of a first degree murder charge
against defendant William E. French, Jr., as a result of the
killing of Douglas Fleming on March 5, 1973, in Miles City,
Montana.    On March 7, 1973, Judge A. B. Martin ordered a psychi-
atric examination pursuant to section 95-505, R.C.M. 1947.
Such examination was had.    On March 31, 1973, counsel for de-
fendant sought and received an order for production of autopsy
reports, statements, photographs, physical evidence, records,
tapes and F.B.I. records concerning the deceased.    Bail was
denied defendant after hearing. Bail was also denied defendant
by this Court.
    On April 28, 1973, counsel for defendant gave notice under
section 95-503, R.C.M. 1947, of the defense of mental disease or
defect. On defendant's motion, the district judge ordered de-
fendant transferred from the Yellowstone County jail to the
Billings Deaconess Hospital for medical and psychiatric examin-
ation.     Also, on defendant's motion Judge Martin was disqualified.
Judge M. James Sorte assumed jurisdiction.
      A t t h i s point, on June 11, 1973, defendant moved t h e c o u r t

t o (1) conduct a hearing without a j u r y under s e c t i o n 95-507 ( a ) ,
R.C.M.     1947, t o determine t h e mental condition of defendant,
and (2) t o determine whether such mental condition was s u f f i c i e n t
t o exclude r e s p o n s i b i l i t y f o r the a c t s committed and t h e crime
                                                               II
charged.        The c o u r t ordered a hearing                     t o determine t h e mental
c o n d i t i o n of t h e defendant a t t h e t i m e of t h e commission of t h e
o f f e n s e charged and h i s mental condition a t t h e present t i m e . "
      On J u l y 18, 1973, Judge Sorte made f i n d i n g s of f a c t and

conclusions of law t h a t (1) defendant was f i t t o proceed and
a s s i s t i n h i s defense, and (2) defendant's mental condition a t
t h e t i m e of t h e offense was n o t a d e f e c t s u f f i c i e n t t o exclude
r e s p o n s i b i l i t y and t h a t he had t h e a b i l i t y t o a p p r e c i a t e t h e
c r i m i n a l i t y of h i s conduct o r t o conform h i s conduct t o t h e
requirements of t h e law.
      On August 9, 1973, venue was changed from Custer t o Yellow-
s t o n e County and t h e c a s e was s e t f o r t r i a l on October 9 , 1973.
      O September 19, 1973, defendant made a motion which asked
       n
the court:
      "* * *      f o r a r u l i n g t h a t s e c t i o n 95-503, R.C.M. 1947,
      a s amended i s u n c o n s t i t u t i o n a l f o r t h e reason t h a t
      s a i d s e c t i o n of t h e Montana Code g i v e s advantage t o
      t h e S t a t e and provides no r e c i p r o c i t y t o t h e defendant.
       [Defendant had a l r e a d y given n o t i c e of t h e defense
      under t h e s t a t u t e on A p r i l 28, 1973, and had t h e a f o r e -
      mentioned hearing leading t o Judge S o r t e ' s order of
      J u l y 18, 1973. ]
      "The defendant, having been compelled under t h i s
      s e c t i o n t o plead h i s defense t o t h e charge affirma-
      t i v e l y , has had h i s c o n s t i t u t i o n a l r i g h t s i r r e v o c a b l y
      jeopardized and can never have a f a i r t r i a l a s a r e -
      s u l t thereof.
      "1t i s f u r t h e r moved t h a t t h e case be dismissed.                    "
      (Paraphrased m a t e r i a l supplied.)
      On October 1, 1973, Judge Sorte denied t h e motion and s t a t e d
t h a t he f e l t o b l i g a t e d t o follow S t a t e ex r e l . Sikora v. D i s t r i c t
Court, 154 Mont. 241, 462 P.2d 897, i n holding t h a t n o t i c e of t h e
defense of i n s a n i t y does n o t v i o l a t e t h e C o n s t i t u t i o n s of Montana
o r the United S t a t e s .
      On t h a t same day, Judge Sorte ordered t h e S t a t e t o submit t o

defendant t h e names of r e b u t t a l witnesses t o t h e defense of i n -
sanity.       On October 2 , 1973, t h e S t a t e furnished n o t i c e t h a t
D r . M. F. Gracia was t h e only known r e b u t t a l witness a t t h a t time.
The S t a t e gave t h e names of two o t h e r r e b u t t a l witnesses on
October 5, 1973.
      O October 2, 1973, Judge S o r t e n o t i f i e d a l l counsel of h i s
       n
intentions :
      1.     To allow t h e defense t o defend on t h e grounds of i n -
s a n i t y a t t h e t r i a l on t h e m e r i t s , and
      2.     He would n o t i n s t r u c t on t h e ~ ' N a g h t e nr u l e because
he believed t h a t r u l e had been abolished by t h e new Montana
Criminal Procedure Code.
      On October 9, 1973, t h e d a t e s e t f o r t r i a l , Judge Sorte

m e t with counsel, dismissed t h e j u r y , and i n proceedings i n
chambers r u l e d , i n a d d i t i o n t o t h e above, t h a t s e c t i o n 95-503,
R.C.M.     1947, was u n c o n s t i t u t i o n a l r e l y i n g on Wardius v. Oregon,
      U.S.           ,   93 S.Ct.            ,   37 L ed 2d 82, 41 L.W.               4804.
      The p e t i t i o n f o r a w r i t of supervisory c o n t r o l was i n v i t e d
by t h e t r i a l judge.          Both t h e S t a t e and defense seek a c l a r i f i -
c a t i o n of t h e i s s u e .    The p e t i t i o n seeks a w r i t d i r e c t i n g t h e
d i s t r i c t c o u r t t o d e c l a r e t h e proceedings of October 9 , 1973,
n u l l and void, and t o determine t h a t :
      1.     Section 95-503, R.C.M.               1947, i s c o n s t i t u t i o n a l .
      2.     The defendant be foreclosed from presenting t h e defense
of mental d i s e a s e o r d e f e c t a t t h e time of t h e a l l e g e d crime
t o t h e j u r y , and
      3.     The ~ ' N a g h t e nr u l e a s s e t f o r t h i n Noble be declared
t o be t h e r u l e of law i n Montana.
      The i s s u e concerning t h e c o n s t i t u t i o n a l i t y of s e c t i o n 95-503,
R.C.M.     1947, i s c l e a r l y moot i n t h i s case.              Defendant gave n o t i c e
and sought t h e hearing h e r e t o f o r e described.                   Receiving what
he considers t o be an adverse d e c i s i o n , he now a t t a c k s t h e con-
s t i t u t i o n a l i t y of t h e very s t a t u t e of which he sought t o take
advantage. Had he believed his rights were truly jeopardized
by the statute, he should have attacked it initially rather than
seeking relief under its provisions and then alleging it uncon-
stitutionally deprives him of his rights.
    Defendant's contention might have merit were he able to show
prejudice to his case.    However, the essence of his contention is
that he lacks the reciprocity required by Wardius.     In fact,
he has received the names of three rebuttal witnesses from the
State, pursuant to Judge ~orte'sorder. Here, any favorable
decision to defendant could give him no more than he already
has, namely, the names of the state's intended rebuttal witnesses.
    From the foregoing it follows that we must apply the rule
that this Cour:: will not decide upon the cons:i:utimality    of
legislative enactments unless it is absolutely essential to
the disposition of the case.    State ex rel. Douglas v. District
Court ,      Mont   .   , 507 P.2d 1055, 30 St.Rep. 354; State ex
rel. Harnmond v Hager,
               .             Mont   .
                                    -
                                    9    503 P.2d 52, 29 St.Rep.
945. A decision on the constitutionality of section 95-503,
R.C.M. 1947, was and is unnecessary, therefore we hold that
portion of Judge Sorte's order of October 9, 1973, declaring
section 95-503, R.C.M. 1947, unconstitutional to be null and
void.
    The State next contends defendant is foreclosed from pre-
senting the defense of insanity to the jury at trial.    It argues
that Chapter 5, Title 95, R.C.M. 1947, contemplates that a de-
fendant relying on the defense of insanity may either (1) try
the issue to the trial judge alone in accordance with section
95-507(a),   R.C.M. 1947, or (2) try the issue to the jury at
trial.    He cannot however do both.    It argues that defendant,
having proceeded to a hearing under section 95-507(a),    R.C.M.
1947, is now foreclosed from presenting that defense to the jury.
In other words, the state's position is that defendant must
choose between the alternatives, and having chosen one, cannot
pursue the other. We do not agree.
       I n our opinion, i t was t h e l e g i s l a t u r e ' s i n t e n t t o give
t h e t r i a l judge t h e power t o commit t h e defendant t o a s t a t e
i n s t i t u t i o n without a t r i a l i n e i t h e r of two cases:       (1) i f t h e
defendant i s not f i t t o proceed, which s i t u a t i o n i s covered by
s e c t i o n 95-506, R.C.M.         1947, o r (2) i f t h e defendant a t t h e
t i m e of t h e criminal conduct charged s u f f e r e d from a mental
d i s e a s e o r d e f e c t which rendered him unable t o a p p r e c i a t e t h e
c r i m i n a l i t y of h i s conduct o r t o conform h i s conduct t o t h e
requirements of law, which s i t u a t i o n i s covered by s e c t i o n 95-
507, R.C.M.       1947.         Here, we a r e concerned with t h e l a t t e r .
The Revised Commission Comment t o s e c t i o n 95-507, R.C.M.                    1947,
i n regard t o subdivision ( a ) , s t a t e s i n p a r t :
       1I
        Under subdivision (a) i n c a s e s of extreme mental
       d i s e a s e o r d e f e c t where t h e exclusion of responsi-
       b i l i t y i s c l e a r , t r i a l can be avoided and t h e
       defendant immediately committed a s i r r e s p o n s i b l e . 11
       That comment makes i t c l e a r t h a t i f , i n t h e judge's opinion
and a f t e r a hearing i f requested by e i t h e r a t t o r n e y , a defendant
was c l e a r l y s u f f e r i n g from mental d i s e a s e a t t h e t i m e of t h e
crime then t h e judge can a c q u i t t h e defendant and have him com-
mitted t o a s t a t e i n s t i t u t i o n forthwith.      The purpose i s plain--
t o avoid a c o s t l y t r i a l where t h e mental d e f e c t i s p l a i n and
obvious.        Such procedure does not deprive a defendant of t h e
defense of mental d e f e c t a t t r i a l .        Had t h e l e g i s l a t u r e intended
t h e hearing contemplated by s e c t i o n 95-507(a), R.C.M.                  1947, t o
f o r c l o s e a defendant from h i s r i g h t t o present a defense of
mental d e f e c t t o a j u r y , then i t would have c l e a r l y s p e l l e d t h a t
out i n t h e s t a t u t e .
       The S t a t e r e l i e s on S t a t e v. Olson, 156 Mont. 339, 480 P.2d
822.        In Olson, t h e defendant advanced t h e proposition t h a t
s e c t i o n s 95-507 and 95-508, R.C.M.           1947, provided a s t a t u t o r y
procedure f o r b i f u r c a t i o n of t h e i s s u e s of mental d e f e c t and
g u i l t o r innocence.          That was squarely r e j e c t e d .    To suggest t h a t
t h e holding i n Olson supports t h e s t a t e ' s contention t h a t pre-
s e n t a t i o n of t h e i s s u e of mental d e f e c t t o t h e t r i a l judge
pursuant to section 95-507( ) R.C.M.
                           a,           1947, precludes presentation
of that issue to the jury at trial is untenable. To adopt the
State's contention would fly in the face of Olson, in that since
the issue has been decided by the trial judge and would be fore-
closed from presentation to the jury, the trial would be in fact
bifurcated.   We find the state's position to be without merit.
    Finally, the State asks this Court to reaffirm the M'Naghten
rule and the "irresistible impulse" rule as set forth in State
v. Noble, 142 Mont. 284, 298, 384 P.2d 504.   This we will not do.
In Noble, this Court gave extensive consideration to the problem
of defining the standards of criminal irresponsibility. There
we stated:
         "Having reviewed the authorities, both legal
         and scientific, we are unwilling at this time
         to abandon the established position of this
         court having found nothing better that would
         justify a change. 11
    Since Noble, Chapter 5 of Title 95, R.C.M. 1947, was enacted
by the legislature. That chapter defines criminal irresponsibility
in section 95-501(a),   R.C.M. 1947, which provides:
         "A person is not responsible for criminal
         conduct if at the time of such conduct as a
         result of mental disease or defect he is unable
         either to appreciate the criminality of his
         conduct or to conform his conduct to the re-
         quirements of law. 1 I
    That definition is the same as that adopted by the American
Law Institute in its Model Penal Code, with one exception.
Article 4, Section 4.01, of the Model Penal Code, provides:
         "A person is not responsible for criminal
         conduct if at the time of such conduct as a
         result of mental disease or defect he lacks
         substantial capacity either to appreciate
         the criminality [wrongfulness] of his conduct
         or to conform his conduct to the requirements
         of the law. I I
    The Montana Legislature in section 95-501(a),      R.C.M.   1947,
substituted the phrase "is unable" for the phrase "lacks sub-
stantial capacity" in the Model Penal Code.
    While this Court has not abandoned its tests of criminal
irresponsibility as set forth in Noble, it is clear the legis-
lature has taken the matter into its own hands.     In view of
the nearly identical wording of the two rules, and in view
of the Revised Commission Comments to section 95-501(a),   R.C.M.
1947, which in pertinent part state:
     h his section is intended to expand the applica-
    tion of the existing Montana law to include any
    psychical abnormalities or subnormalities such
    as emotional deficiencies that have reached the
    dimension that they can be termed mental diseases
    or defects and not otherwise. The section ex ands
    the application of existing Montana l a w h i s
    added)
this Court concludes that the MINaghten and "irresistible
impulseu rules no longer have application in those terms.
The test for criminal irresponsibility is as set forth in
section 95-501(a),   R.C.M.   1947.
    One further matter requires comment here--that is the effect
of the substitution of the phrase "is unable" found in Montana's
statute for the phrase "lacks substantial capacity" found in
the Model Penal Code.    The Revised Commission Comments to
section 95-501( ) R.C.M. 1947, suggest a guide:
               a,
    "While it recognizes the objective of the more
    modern tests that lack of understanding and lack
    of control need not be total in order to excuse,
    and that the question is one of degree, yet it does
    not excuse (as does the Model Penal Code rule), for
    a I substantial impairment' of either of these capa-
    cities. Rather in order to excuse, the impairment
    must be so great that the trier of fact can say that
    the accused was unable to appreciate the criminality
    of his conduct, or that he was unable to conform his
    conduct to the requirements of society. I I
    Thus it is clear the legislature intended a stricter test
for mental incapacity than seems contemplated by the Model Penal
Code.   We will not set forth any rigid language for trial courts
to use in instructing a jury, but will simply recommend that
they adopt an approach based on Chapter 5, Title 95,.R.C.M. 1947,
and the Revised Commission Comments thereto.   The scope and
extent of the instructions in a given case will necessarily be
governed by the particular evidence in the case.   For a recent
treatment of a similar problem see State v. Grimm, (W.Vir.1973),
            The cause i s remanded t o the d i s t r i c t court for proceedings
        consistent with t h i s opinion.




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          Justices.
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