                                     No.     12990

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




STATE O MONTANA,
       F

                               P l a i n t i f f and R e s p o n d e n t ,



ANDRA PHILLIP STEWART,

                               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 Eighth J u d i c i a l D i s t r i c t ,
                       Hon. R o b e r t S. K e l l e r , J u d g e p r e s i d i n g .

C o u n s e l o f Record:

       For Appellant:

            Moses, Kampfe, T o l l i v e r and W r i g h t , B i l l i n g s ,
             Montana
            C h a r l e s F. Moses a r g u e d , B i l l i n g s , Montana

       F o r Respondent :

             Hon. M i c h a e l G r e e l y , A t t o r n e y G e n e r a l , a r g u e d ,
              H e l e n a , Montana
             J. F r e d Bourdeau, 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:              J a n u a r y 24,   1977


                              -,
Filed:   J f C 7.' -   ,, -
Mr. Justice Daniel J. Shea delivered the Opinion of the Court.



            Defendant Andra Phillip Stewart appeals from a conviction
of aggravated kidnapping under section 94-5d303, R.C.M. 1947, fol-
lowing trial in the District Court, Cascade County.

            In early January, 1974, defendant, an airman stationed at
Malmstrom Air Force Base near Great Falls, Montana, was involved in
a court-martial hearing at that installation.      On January 9, after

spending the afternoon at Malmstrom's legal office, defendant met

Larry Vample, also an airman at the Base, and the two men went to
the Base recreation center.      They stayed there for a few minutes,
then drove in Vample's car to the apartment of Billy Naray Evans

in Great Falls.      Vample later left Evans' apartment in his car, and
defendant and Evans drove to Darrell Sloan's apartment, where they

met Vample, Sloan, and three other airmen.

       '    The men discussed defendant's court-martial.   Defendant
told them someone had informed on him and others living off the

Base in Great Falls.      John K. Walsh, Jr., an airman who lived in
defendant's barracks, was mentioned as a possible informant.      They
agreed to confront Walsh and to force him to tell them whether he
had informed, and if he had, what he had said.     Before leaving for

the Base,      Evans obtained a syringe from one of the other airmen
and filled it with battery acid, with the apparent intention of
using this device to threaten Walsh.

            They arrived at Malmstrom sometime between 9:00 and 9:30
p.m.       While the others waited in his barracks room, defendant went
to get Walsh.      Defendant returned with Walsh, and asked him if he
had been an informant.     Walsh denied he had informed on anyone, and
bolted for the door.      He was stopped, a scuffle ensued, and Walsh
was knocked to the floor and grabbed by several people.      Evans then
tried to inject the battery acid into Walsh's leg, but the needle
broke and the attempt was unsuccessful.
                                                             .'
                                                             I
                                                                  'I'
                                                                   b




           One of the men threatened Walsh with a gun, telling him to
be quiet.     Walsh finally was subdued.   By this time, the only per-
sons left in defendant's room were Evans, Vample, Walsh, and defend-
ant.     His mouth taped and his bod-y wrapped in a blanket, Walsh was

carried out of the barracks, placed in Vample's automobile, and
taken to the Giant Springs recreation area near Great Falls.      There
Walsh was removed from the vehicle and shot--once in the chest and

three times in the head.     His body was thrown over the bank of the
Missouri River, where it was found three days later by a fisherman.

          There was a direct conflict in testimony at the trial con-

cerning who was present and who did the shooting when John Walsh,
Jr. was killed.     Evans and Vample testified they, together with

defendant, took Walsh to Giant Springs and defendant shot and killed
Walsh.    Defendant testified he abandoned the enterprise as Walsh

was being taken from the barracks by Evans and Vample, and he was
not present when Walsh was shot.
          Defendant subsequently was arrested and charged by Informa-

tion, filed in the District Court, Cascade County, on three felony
counts:    one court of deliberate homicide, in violation of section

94-5-102, R.C.M. 1947, and two counts of aggravated kidnapping, in
violation of section 94-5-303, R.C.M. 1947.
          Defendant plead not guilty to each of the counts of the

Information.    Trial by jury began on September 9, 1974.   At the
conclusion of the state's case, the trial court granted defendant's

motion to dismiss the third count, which alleged defendant kidnapped
Walsh for the purpose of interfering with a governmental investiga-
tion.    On September 19, 1974, defendant was found not guilty of the
deliberate homicide count, and guilty of the remaining count of
aggravated kidnapping.     Defendant appeals from the conviction and
from the 100 year     sentence imposed thereon.
        Defendant presents twelve issues for review:

        1.    Whether the District Court had jurisdict.ion over this
kidnapping offense which occurred on a United States Air Force Base.
        2.    Whether defendant's motion for a change of venue should
have been granted.
        3.    Whether Air Force personnel and Blacks were spectacularly
and purposely excluded from the assessment roll which made up the
jury panel list.

        4.    Whether testimony and evidence obtained by the use of a
dog is admissible.
        5.    Whether the District Court erred when it refused defend-
ant the right to cross-examine a prosecution witness as to his mili-
tary rank.

        6.    Whether the District Court erred when it refused to

allow testimony as to items seized under a search warrant.
        7.    Whether a prosecution witness was erroneously permitted

to testify as to a self-serving and hearsay statement.
        8.    Whether a prosecution witness was erroneously permitted

to testify as to his conclusion.
        9.    Whether the District Court erroneously answered a jury
question after the case was submitted to the jury.

        10.   Whether the kidnapping punishment statute which requires
the sentencing judge to make a finding of fact and base his sentence
thereon is unconstitutional.

        11.   Whether the 100 year sentence was error.
        12.   Whether the District Court improperly retried the case
by personally interviewing witnesses after the jury verdict and
then making determinations of fact as a part of the sentencing
procedure.

        Issue 1.   Defendant contends the District Court was without
jurisdiction over the kidnapping offense because the crime took
place on a United States Air Force Base.     In State ex rel. Parker
v. District Court, 147 Mont. 151, 155, 410 P.2d 459 (1966), this
Court held that where the federal government purchases land from

the state, the state reserves criminal jurisdiction over such lan?.
after its purchase.    Defendant recognizes Parker, but contends

1) it is erroneous, and 2) it is no longer controlling as the law
has since been changed and the state now has no such jurisdiction.
          We affirm our holding in Parker.   The state may reserve

criminal jurisdiction over land conveyed to the federal government.
State v. Rindal, 146 Mont. 64, 67, 404 P.2d 327 (1965).
          The next question of Issue 1 is whether section 95-304,
R.C.M. 1947, the general statute for criminal jurisdiction, enacted
after Parker, divests the state of jurisdiction over a crime com-

mitted on a federal military base located in Montana.      In relevant
part, section 95-304 provides:
          "(a) A person is subject to prosecution in this
          state for an offense which he commits * * * if:
          "(1) The offense is committed either wholly or
          partly within the state * * *



          "(d) This state includes the land and water and
          the air space above such land and water with re-
          spect to which the state has legislative juris-
          diction. "
          Defendant argues that since Montana first must have legis-,

lative jurisdiction over the Air Force Base before it can claim
criminal jurisdiction, under section 95-304, the state may not try
the kidnapping in the present case.   We do not think this statute
can be so narrowly interpreted.
          The Revised Commission Comment concerning section 95-304
states:
          "The purpose of this section is to establish a
          broad grant of jurisdiction for all crimes.


          "Subsection (d) claims for the state of Montana
          the maximum territorial jurisdiction compatible
          with federal claims."
There is nothing in the language of section 95-304 indicating legis-
lative intent to restrict jurisdiction this state had previously

exercised   over crimes committed on land purchased by the federal
government.   We hold the District Court did have jurisdiction.
        Issue 2.     Defendant contends the trial court should have
granted his motion for change of venue because of the anti-Black
attitude alleged to exist in Great Falls, the trial site.    Defendant
and the other airmen involved in the incident are Blacks.    The vic-

tim was Caucasian.

        Defendant did not move for change of venue until the eve

of trial.   One witness called in support at the hearing on defend-
ant's motion was Air Force Captain Theron R. Jones, Chief of Social

Activities at Malmstrom.    The main thrust of his testimony was that
there is, in his opinion, a kind of "unconscious bias" against

Blacks in Great Falls.     He explained that by "unconscious bias",

he meant the local population would tend to judge a Black person to
be a troublemaker.    A Black himself, Capt. Jones conceded he had

not had any problems personally, but indicated other Blacks experi-
enced this "unconscious bias".
       During the hearing, this exchange took place:

       "THE COURT: Do you think going out of this county
       would change unconscious bias?
        "THE WITNESS:     [Jones]Not in the State of Montana, no.


        "MR. WRIGHT: [counsel for defendant] Your Honor, I
        personally think * * * I asked the Captain if he
        thought Airman Stewart would get a fair trial here,
        and I believe your answer was * * *
        "THE WITNESS:    My answer is no.

        "THE COURT: By the same token, you don't think he
        would get any fairer a trial anywhere else in the
        State as far as you know?
        "THE WITNESS:    As far as I know."
Captain Jones stated this "unconscious bias" probably existed through-.
out the state of Montana and that it. also existed in other states
where he had been stationed.   The only other evidence on this point
was presented by the same witness, who testified to some vague proh-
lems created in the community by Black Air Force personnel dating

local white, Indian, and Chicana girls.
        A clear abuse by the District Judge in denying a change of
venue is required to support reversal of his denial.   State v. Logan,
156 Mont. 48, 58, 473 P.2d 833 (1970). Neither in the original
hearing on this motion nor on appeal has defendant shown he could

not receive a fair trial in Cascade County.    There is simply no
evidentiary basis in the record to show the trial court abused its
discretion in denying a change in venue.
        Issue 3.   Defendant contends he was denied a fair trial
because Air Force personnel and Blacks were excluded from the assess-

ment roll which made up the jury panel list.   There is no dispute
that no Black Air Force personnel were included in the jury panel
list.

        A fair cross section of the community must be represented
on such a panel to fulfill the Sixth Amendment"    guaranty of an
impartial jury trial in criminal prosecutions.    While a defendant
is not entitled to a jury of any particular composition, the jury
panel "must not systematically exclude distinctive groups in the
community and thereby fail to be reasonably representative thereof."
Taylor v. Louisiana, 419 U.S. 522, 538, 95 S.Ct. 692, 702, 42 L ed 2d

690, 703 (1975).
        The jury panel in the instant case came from the Cascade
County assessor's list of qualified taxpayers, a method of selection
that is not per se unconstitutional.   Leggroan v. Smith, 498 F.2d
168, 170 (10th Cir. 1974).   Defendant argues this method is uncon-
stitutional here becauseitsuse results in the exclusion of a sub-
stantial percentage of the Air Force personnel at Malmstrom from
the county's jury panel.
          The record discloses Air Force personnel constitute approxi-.

mately 15 percent of the population of Cascade County, and that
approximately 10 percent of all Air Force personnel at Malmstrom

are Black.    The assessor's list of taxpayers, however, includes
only about 20 percent of the Air Force personnel who live in the
county.    The questions is--Does this variation between the percentage
of Air Force personnel in the county and the percentage of their
representation on the jury panel, as taken from the assessment

roll, reflect a constitutional infirmity in the selection method.
          We hold that it does not.   Under the Soldiers' and Sailors'
                        !
Relief Act, 50 U.S.C.' S574, enacted in 1940, military personnel
may not be required to pay taxes in the state in which they are
stationed if they retain residence elsewhere.    Cascade County allows

Air Force personnel to exempt themselves from this taxation by the
signing of an affidavit stating that the affiant is a nonresident.
The effect of this voluntary exemption is to keep those who so
elect off of the assessment roll, and consequently, off of the
county's jury panel list.
          Here, at the time of trial, state law required that a juror

be a resident of this state for one year.    Section 93-1301, R.C.M.
1947 (repealed 1975).   One year residency requirements for jurors

have been upheld as constitutional.    United States v. Ross, 468
F.2d 1213, 1216 (9th Cir. 1972), cert. denied 410 U.S. 989, 93
S.Ct. 1500, 36 L ed 2d 188; United States v. Perry, 480 F.2d 147,
148 (5th Cir. 1973) .

          By signing the affidavit of nonresidency required for
exemption from taxation, military personnel established exemption
from jury duty in the state.   The latter effect was incidental; the
purpose of the exemption affidavit was to facilitate compliance
with federal law respecting the status of military personnel as
taxpayers in the state where they are stationed.

         Nonresidency is sufficient grounds for the exclusion from
the jury panel list of the majority of Air Force personnel living
in Cascade County on temporary assignment, and defendant's conviction
therefore is not invalid.
         Since over 95 percent of the Black population of Cascade

County is Air Force personnel, it follows that, if most of them
choose to take the exemption from taxation, only a small percentage
of the jury panel list will be Blacks.   The number of Black Air
Force personnel remaining for inclusion in the jury panel equals
approximately .35 percent of the county's total population.   All

Blacks in Cascade County constitute approximately 1.65 percent of

the county's population; the variation between the percentage of

Blacks in the county and those qualified to be on the jury panel
list thus is about 1.4 percent.   Defendant cites no authority to
the effect that such a small variation shows systematic exclusion
of a distinctive community group.

         Issue 4.   Defendant contends the trial court improperly

allowed testimony as to evidence obtained through the use of dogs
during the search of the Giant Springs area.    Keith Wolverton, a
Cascade County deputy sheriff, and other sheriff's department per-
sonnel   brought several dogs to the area after the victim's body
was discovered there.   The dogs located a pool of blood in the snow,
and after examination the sheriff's deputies recovered two bullets
in or near the blood.

         Defendant argues that under State v. Storm, 125 Mont. 346,
238 P.2d 1161 (1951), testimony given by Deputy Wolverton relating to
the recovery of this evidence should not have been permitted.      In

Storm, bloodhounds allegedly followed a scent from a foot or knee-

print found near the site of a fatal shooting   which ultimately led
them to the defendant's house.      The handler testified that his dogs'

behavior would tend to incriminate the defendant.      The purpose of
the testimony was to link the defendant to the crime, and it was

the only evidence.
          Storm is clearly distinguishable from the present case.
Here,    dogs were not used to track and locate the defendant, and the
testimony allowed did not tend to identify defendant as having been
in the area searched with the aid of the dogs.     The testimony objected
to here was not that of a dog or other dumb animal as interpreted by
his handler.     It was that of an investigating officer, whose tools

included specially trained dogs.     Defendant was afforded ample oppor-
tunity on cross-examination to question the relevance of the evi-

dence recovered with the aid of the dogs, and Deputy Wolverton's

testimony concerning this recovery is not "bloodhound testimony"
found to be incompetent in Storm.      The testimony was properly allowed.
         Issue 5.     Defendant contends the trial court erred in re-

fusing his inquiry as to the military rank of a prosecution witness,
Robert L u s ~ ,Jr.   Lusk, a special agent of the Air Force Office
of Special Investigations, testified on direct examination that the
victim, Walsh, had provided him with information concerning criminal
investigations Lusk's office was carrying out at Malmstrom.      In his

testimony, Lusk identified the victim's body in a photograph as
Walsh.
         In his voir dire of the witness, defense counsel asked Lusk
what his military rank was.      Lusk replied that his rank was privi-

leged.   During the in-chambers discussion that followed, defense
counsel contended the question as to Lusk's rank was related to the
second count of aggravated kidnapping, the charge involving defend-

ant's alleged interference with the performance of a governmental
investigation.
         In chambers, the witness stated that nondisclosure of his
military rank was necessary to insure cooperation from military
personnel being investigated.     It was the Air Force's belief that
personnel of a lower rank than the investigator would be intimidated,
and that personnel of a higher rank might intimidate a lower ranking

investigator.   The trial court ruled Lusk's rank was irrelevant, and
since the purpose of Lusk's direct testimony was to identify the

victim, inquiry into the witness' rank exceeded the scope of direct
examination.
        Defendant has shown no prejudice as a result of the trial
court's ruling.     Whatever inquiries defendant may have made concerning

the third count were rendered moot by the trial court's granting of
defendant's motion to dismiss that count at the close of the state's
case.
         Issue 6.   Defendant contends the trial court improperly

refused to allow testimony as to items seized under a search warrant.
Cascade County Deputy Sheriff William Fargo testified on direct

examination that he searched defendant's barracks room and recovered
a note and some masking tape.    On cross-examination, he stated a
rug and sheets from defendant's bed were also recovered, and that

the other officer present seized other items.    Deputy Fargo also
testified a complete inventory of all items seized was filed as a

return on the search warrant with the issuing court.
        When defense counsel asked how many items were taken, the
state objected on the grounds the best evidence would be the search
warrant and return thereon, and the trial court sustained the objec-
tion.   Defendant has not shown how he was prejudiced by this ruling,
and the fact the witness testified on recross-examination as to the
other items seized eliminates any possibility of prejudicial error.
         Issue 7.   Defendant contends a prosecution witness was

improperly allowed to make a self-serving and hearsay statement.
The witness, Air Force Captain Robert Stewart, was brought to
14almstrom to try defendant's court-martial.    On cross-examination,
defense counsel asked the witness if he had made formal application
to call John Walsh, Jr., as a witness in the court martial pro-
ceedings.    Captain Stewart testified he hadmade no such applica-
tion, and the Air Force Office of Special Investigations had refused

to officially release Walsh's name.    On redirect examination, the
witness was asked if he had attempted or had been precluded from
making formal application for Walsh as a witness.    This question

triggered defendant's objection, and the trial court's overruling

of the objection, here specified as error.     The witness' answer,

that he had been precluded from calling Walsh in the sense that
the Office of Special Investigations would not release Walsh's
name, was not prejudicial to the defense.    There was no error in
allowing the question.
          Issue 8.   Defendant contends the trial court should not

have permitted a prosecution witness to testify that he knew of no
reason why Billy Naray Evans would shoot John Walsh, Jr.    Defendant
argues the question called for a conclusion and therefore, the trial

court should have sustained his objection to the question.
          Defendant has shown no prejudice from this question or its
answer with respect to the kidnapping charge.    The question went

to the prosecution's attempt to prove defendant guilty of the
deliberate homicide charge, of which he was found innocent.    There

was no prejudicial error in permitting the witness to reply to the
question.

          Issue 9.   Defendant contends the trial court erroneously
answered a jury request after the matter was submitted to the jury.

The record discloses this was submitted, in writing, to the trial
court :
           "There have been two charges of kidnapping.
           They dropped one charge. Could you specify the
           charge and boundary of the charge that was dropped?
           We the jury feel that one charge that was dropped
           is the one inside. The other we feel is the one
           with the car to Giant Springs."
Defendant and his counsel were given the opportunity to read the
request.     Defendant argued the only proper response would be to
supply the jury with a copy of the dismissed third count.

           Over defendant's objection, the trial court gave the jury
a written answer which stated that the Information alleged two counts
of aggravated kidnapping; set forth both counts verbatim from the
Information; and, concluded by stating that Count I11 had been dis-

missed.

           Defendant contends the answer, as given, placed undue empha-
sis on the remaining kidnapping count and therefore impcoperly
indicated to the jury how it should view the evidence.      This con-
tention is without merit.

           The original instructions did not set out the Information
under which defendant was charged.     The instructions did state
defendant was charged with deliberate homicide and aggravated kid-

napping, and indicated what those charges entailed.      The response
to the jury's request given by the trial court was no more than
an additional, warranted instruction as to the law applicable to
the case.

           Under section 95-1913(d), R.C.M.   1947, a trial court may
give additional instructions after the case has been submitted to
the jury.     In State v. Hawkins, 165 Mont. 456, 460, 529 P.2d 1377
(1975), this Court held it is in the discretion of the trial court
whether or not to give additional instructions when such a request
is made.     There was no abuse of discretion in the present case.

           Issue 10.   Defendant challenges the constitutionality of
section 94-5-303(2), R.C.M.     1947, the aggravated kidnapping punish-

ment statute.     This sub-section, before amendment in 1977, provided:
        "(2) A person convicted of the offense of
        aggravated kidnapping shall be punished by death
        as provided in section 94-5-304, or be impri-
        soned in the state prison for any term not to
        exceed one hundred (100) years unless he has
        voluntarily released the victim, alive, in a
        safe place, and not suffering from serious
        bodily injury, in which event he shall be im-
        prisoned in the state prison for any term not to
        exceed ten (10) years. "
        Defendant asserts this statute is unconstitutional because
it requires the trial court to make a finding of fact, thereby
violating defendant's right to have all facts submitted to and
determined by the jury.

        The existence of every fact necessary to constitute the
crime charged must be proved beyond a reasonable doubt.    In re

Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L ed 2d 368, 375 (1970).

Initially, the question is whether an accused's voluntary release
of or failure to release his victim in a safe place, alive and not
suffering from serious bodily injury, has any bearing on his guilt
or innocence of the crime of aggravated kidnapping.
        Clearly it does not.   Section 94-5-303(1), R.C.M. 1947,
provides :

        "(1) A person commits the offense of aggravated
        kidnapping if he knowingly or purposely and without
        lawful authority restrains another person by either
        secreting or holding him in a place of isolation,
        or by using or threatening to use physical force,
        with any of the following purposes:

             "(a) to hold for ransom or reward, or as a
        shield or hostage; or
             "(b) to facilitate commission of any felony
        or flight thereafter; or
             "(c) to inflict bodily injury on or to ter-
        rorize the victim or another; or
             "(d) to interfere with the performance of any
        governmental or political function; or
             "(e) to hold another in a condition of involun-
        tary servitude."

The intent to restrain and the restraint, for any of the enumerated

purposes, are the facts the jury must determine to establish an
accused's guilt of aggravated kidnapping.      No additional facts need
be proved in order to constitute the crime.

        The next question of Issue 1-0 is whether defendant's right
to a jury trial includes the right to    have the jury determine
facts that relate only to the severity of punishment, once guilt
has been established.

        In Patterson v. New York,       U.S.      , 97 S.Ct. 2318, 53
L ed 2d 281 (decided June 17, 1977), the United States Supreme Court
held that a state may require a defendant to prove mitigating cir-
cumstances of severe emotional distress as an affirmative defense
to a second degree murder charge.   The challenge there turned on
the defendant's contention that due process required the state prove
beyond a reasonable doubt that he had not acted under the influence

of severe emotional distress.   The Court found the mitigating factor
was a separate issue, neither presumed nor inferred to be an ele-
ment of the crime from the statutory definition of the offense, and

the state therefore did not have the burden of proving it.
        In language relevant to the present case, Justice Powell in
his dissent in Patterson stated:
       " * * * The Due Process Clause requires that the
       prosecutor bear the burden of persuasion beyond a
       reasonable doubt only if the factor at issue makes
       a substantial difference in punishment and stigma.
       The requirement of course applies a fortiori if
       the factor makes the difference between guilt and
       innocence. But a substantial difference in punish-
       ment alone is not enough. It must also be shown
       that in the Anglo-American legal tradition the
       factor in question historically has held that
       level of importance. * * * " 53 L ed 2d 302.

       Here, we are concerned with a statute having a bifurcated
sentencing provision rather than a statute that separately allocates
the burden of proof, as in Patterson.    However, the present case
and Patterson, both, focus on the status of a fact neither by tra-
dition nor by statute a necessary element of the crime charged.      The

majority decision and Justice Powell's dissent in Patterson indicate
that when the presence or absence of such a fact determines only

the severity of punishment, it need not be proved by the state beyond
a reasonable doubt.             The release or nonrelease of a kidnapper's
victim is such a fact, and it is within the power of the state to
allow the trial court, rather than the jury, to make this factual
determination.

           Issue 11.         Defendant next contends the 100 year sentence
imposed by the trial court was error.                Defendant argues that since
the jury acquitted him on the deliberate homicide charge, it neces-
sarily follows it found he had not accompanied the victim to Giant
Springs.      Defend-antasserts his abandonment of the enterprise at the

barracks exit limits his punishment under the applicable statute to
a maximum of 10 years.

           Section 9 4 - 5 - 3 0 3 ( 2 )   provides a maximum sentence of 10 years
for a person convicted of aggravated kidnapping when the accused
voluntarily released the victim, alive, in a safe place, and not
suffering from serious bodily injury.                Defendant maintains that
under the facts of the present case, as found by the jury, he did

voluntarily release John Walsh, Jr. alive and not suffering from
bodily injury in a safe place, the Malmstrom Air Force Base barracks

where defendant and Walsh lived.
       Even assuming that Walsh was alive and not seriously injured
when defendant claims to have left him with Vample and Evans, it
cannot be said defendant released Walsh in a "safe place".                It
defies logic to say that a location is, as a matter of law, "safe"

for a person who there was struck by a lamp, threatened with a gun,

assaulted with a syringe filled with battery acid, bound, gagged
and wrapped in a blanket.
        This was not a release in a "safe place" as would entitle

defendant to receive the benefit of the lesser sentence, and there
was no inconsistency in sentencing this defendant to the greater
sentence, even if he had no further participation in the events
that culminated in Walsh's death.

           Issue 12.    In his final issue defendant challenges the
methods employed by the trial court in conducting its own presentence
investigation following defendant's conviction.      The record shows

thatatvarious times and places between September 19, 1974, when
the jury returned its verdict, and October 15, 1974, the date of

the presentence hearing, the trial judge personally interviewed

several persons who testified at the trial.      The day after the
trial concluded, the trial judge interviewed witness Jimmy Lee

Thomas at Malmstrom.      On the night before the hearing on defendant's

bail request, the trial judge interviewed witnesses Billy Naray
Evans and Larry Vample at the Cascade County jail.      On the day of

the bail hearing, the trial judge interviewed witness Hiram McDonald

at an undisclosed location.      Also interviewed, at times and places
not appearing in the record, were witnesses Fay McRoberts and

Marion Johnson, Jr.
        No record was made of any of these interviews, and no notice

was given to defendant or his counsel of the trial court's intent

to conduct the interviews.      When defense counsel learned of the
trial court's actions in this regard, during an in-chambers discus-

sion just prior to the opening of the presentence hearing, he moved

the trial judge to disqualify himself from the sentencing of defend-

ant.   The motion was denied, and the question here is whether it
was proper for the trial court to act as the sentencing judge in

light of his out-of-court interviewing of several witnesses.
         Defendant argues the trial judge should have disqualified
himself.    He relies primarily on Kuhl v. District Court, 139 Mont.
536, 366 P.2d 347 (1961), and State v. Simtob, 154 Mont. 286, 462
P.2d 873 (1969).       In both cases this Court held that the reliance
on information privately received by a sentencing judge is an abuse

of the judge's sentencing discretion.      However, neither case is

controlling here.
        In Kuhl, the Court was interpreting sentencing statutes,
sections 94-7813 and 94-7814, R.C.M. 1947, repealed in 1967, and
replaced by sections 95-2203, 95-2204, and 95-2205, R.C.M. 1947.
The statutes are considerably different.    In Simtob, the Court was
interpreting a provision of the Dangerous Drug Act (section 54-133,
R.C.M. 1947) which provides that a first-time offender under 21
is presumptively entitled to a deferred imposition of sentence.
The trial court relied on private information and sentenced defend-
ant to a prison term.   Defendant had no opportunity to meet this
information.   Relying on Kuhl, this Court held use of this privately

received information to be improper.
        In the present case, the controlling statutes are sections
95-2203, 95-2204, and 95-2205, R.C.M.   1947.   Section 95-2203 pro-

vides that a presentencing investigation be prepared by a probation

officer, when a defendant has been convicted of a crime which may
result in a sentence of one year or more.   Under section 95-2204,
the probation officer is directed to inquire into, among other
things, the circumstances of the offense.   Section 95-2205 grants

the sentencing judge the discretion to make the report, in full or
in part, available to the defendant and to allow cross-examination

of those who gave information included in the report.
       The effect of these statutes on the question of whether a
sentencing judge may receive and adopt information from sources
other than the testimony of witnesses in open court was considered
by this Court in State v. Orsborn,       Mont .      ,   555 P.2d 509,
33 St.Rep. 935, 939 (1976).   There, we held that when a defendant
is protected against a sentence predicated on misinformation, there

is no due process violation when presentence information comes from
a source not subject to cross-examination in court.      Orsborn, supra.
        The specific protections found to have been present in
Orsborn included:   1) defendant was represented by counsel at the
time the sentencing information was made known to him; 2) the
defendant had the opportunity to rebut the information; and 3) the
defendant chose to affirm the accuracy of the information.    Orsborn,
                                                              -
however, cannot be read to mean that in every case in which a sen-
tencing judge goes beyond the confines of a presentencing investi-
gation report, the sole question is whether or not subsequent pro-

ceedings afford the defendant an opportunity to correct inaccuracies
in the judge's information.
        When, as in the present case, the sentencing judge becomes
a private fact gatherer, he thereby oversteps his legitimate role
as a fact finder in the sentencing procedure.   Whether or not the
defendant is "protected" from misinformation is irrelevant.
        There is no doubt the trial judge's primary motivation in
conducting the interviews was to get the "full story" of the killing
of John Walsh, Jr.   The trial judge stated he was "satisfied the

bulk of these witnesses there have a lot   more to say than what we
heard at this trial".   The interviews were designed, at least in
part, to find what was left out of their testim.ony.
        The trial judge characterized his discretion as a sentencing
judge as being limited only by the requirement that "anything I
use be presented in open Court, so that there is no sand bagging."
While the court's sincere efforts at full disclosure of and granting
access to the sources of his presentence information are laudable,
they cannot remove the prejudice to defendant that attached the
moment the trial judge began his informal and   private   retrial
of the case.
        A sentencing judge may not conduct his own presentence
investigation by privately interviewing persons he believes to know

more than they have told.   By doing this, he becomes a fact gatherer
as well as a fact finder, and thereby subjects a defendant to an
impossible burden.   Realistically, there is no way a defendant can
dislodge from a judge's mind, the results of his own personal
investigation.    It is only natural that a judge has at least a
subconscious bias supporting the techniques used and the results of
his own investigation.    The judge, by this process, has unwittingly

become intimately     connected with the accusatory process.    In this
case, for example, cross-examination of the witnesses whom the

judge had privately interviewed, would only serve to make the co11.rt
guardian of those conclusions he adduced from his personal investi-
gation.    Moreover, assuming a witness had not told the truth to
the trial judge during the private investigation, it is unlikely
such witness would, on the witness stand, admit that he had on a

previous occasion, lied to the very judge hearing his testimony.
We must not forget that the presence of a judge in a role as a

private investigator, can be intimidating, if not coercive.
          This is not to say the trial court cannot acquire more
information as to the circumstances of a crime.    We only hold that
if it is his desire to do so, he must delegate that responsibility
to other officials.    They can gather the information and put it in
a report to be made available to the defense.    At the presentencing

hearing, if anything in the report is contested, these officials
may then be cross-examined as to the investigation and the results
of their investigation.    Here, it would be an impossible burden
to suggest that the defendant if he desired, could cross-examine

the trial judge as to the methods he employed, and the results of
his private investigation.
          Here, because the trial judge became so intimately involved
in the presentence fact gathering process, it is clear he should
have disqualified himself from sentencing the defendant.       His
failure to do so requires the sentence be vacated.
          In so holding, we emphasize that we reaffirm our adherence

to the sentencing policy stated in Orsborn, supra, quoting from
   Williams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 93 L.Ed.


                 * * Highly relevant--if not essential--to
              " I *

             [the sentencing judge's] selection of an appro-
             priate sentence is the possession of the fullest
             information possible concerning the defendant's
             life and characteristics. And modern concepts
             individualizing punishment have made it all
             the more necessary that a sentencing judge not
             be denied an opportunity to obtain pertinent
             information by a requirement of rigid adherence
             to restrictive rules of evidence properly appli-
             cable to the trial.'"

             However, the United States Supreme Court also stated in
   Williams, supra:
             " * * * Leaving a sentencing judge free to
             avail himself of out-of-court information
             * * * does secure to him a broad discretionary
             power, one susceptible of abuse. * * * " (Emphasis
             added.) 93 L.Ed. 1344.
             It is clear that in this case this sentencing discretion
   was abused.
             We affirm the defendant's conviction; vacate the sentence

   imposed; and, remand for resentencinq.




   We Concur:




('J2AcbA
           Justices
                      , ~~~
                      :
