                                   No. 12531

         I N T E SUPREME COURT O THE STATE O MONTANA
              H                 F           F

                                      1973



STATE O MONTANA,
       F

                           P l a i n t i f f and Respondent,

         -vs   -
BERNARD JAMES FITZPATRICK,

                           Defendant and Appellant.



Appeal from:        D i s t r i c t Court of t h e Third J u d i c i a l D i s t r i c t ,
                    Honorable Robert J . Boyd, Judge p r e s i d i n g .

Counsel of Record:

    For Appellant :

               James J . Masar argued, Deer Lodge, Montana

    For Respondent :

               Hon. Robert L. Woodahl, Attorney General, Helena,
                Montana
               Thomas J . Beers argued, A s s i s t a n t Attorney General,
                Helena, Montana
               M. K. D a n i e l s , County Attorney, Deer Lodge, Montana



                                               Submitted:        October 2, 1973

                                                  Decided:      OK4 1973
Filed:    8f-64 5973
Hon. Edward T. Dussault, District Judge, sitting in place of Mr.
Justice John Conway Harrison, delivered the Opinion of the Court.

        The defendant and appellant, Bernard James Fitzpatrick,
an inmate of Montana State Prison, was convicted on February 28,
1973, of murder in the second degree upon a jury verdict in the
third judicial district, County of Powell.
        Appellant and one Gus Hamilton Gardner, another inmate,

were charged by information filed October 12, 1972, with "wilfully,
wrongfully, unlawfully, deliberately, feloniously premeditatedly
and with malice aforethought, kill and murder one ALFRED FALCON,
a human being.", on April 15, 1972.   The victim was also an inmate
of the State Prison.

        At the close of the State's case, Gardner's counsel moved
for a directed verdict and same was granted by the trial court.
        Upon denial of his motion for judgment of acquittal not-
withstanding the verdict, or in the alternative, for a new trial,
defendant Fitzpatrick appealed.
        The defendant raises three issues on appeal:
        1.   The verdict was not justified by the evidence.
        2.   The trial court erred in admitting in evidence:
(a) color photographs of the scene of the crime; (b) pieces of a
sweatshirt; (c) trousers and a pocket; (d) pair of tennis shoes.
        3.   That the court erred in not admitting inquiries into
the possibility of clothing exchange among inmates.
        On the evening of April 15, 1972, at approximately 7:00
p.m. at Rothe Hall, a part of the Montana State Prison complex
located west of Deer Lodge, Montana, Alfred Falcon, an inmate,
was stabbed and died approximately three hours later in the Powell
County Memorial Hospital.
        Rothe Hall is a dormitory type building, where many in-
mates were housed at the time of the incident.   The assault
o c c u r r e d i n t h e basement i n a s m a l l room known a s t h e I n d i a n

League Room, where i n m a t e s w e r e a l l o w e d t o p r a c t i c e m u s i c a l

instruments.           O t h e ground o r main f l o o r t h e r e a r e two d o r m i t o r y
                        n

rooms, #1 t o t h e n o r t h and # 2 t o t h e s o u t h .                Between t h e s e two

d o r m i t o r y rooms i s a lobby a r e a where t h e r e i s l o c a t e d t h e g u a r d ' s

r e c e i v i n g d e s k , a p o o l t a b l e , t e l e v i s i o n s e t and a b a r b e r c h a i r .

             The s h i f t l i e u t e n a n t , Wallace A t k i n s o n , was i n t h e lobby
a r e a when h e observed A l f r e d Falcon a t t h e f r o n t d o o r , which i s

l o c a t e d j u s t e a s t of h i s d e s k , a t t e m p t i n g t o open t h e d o o r .         At-

k i n s o n went t o h i s a i d and a s s i s t e d him i n s i d e , l a y i n g him down

on some o u t g o i n g l a u n d r y which was p i l e d n e a r t h e f r o n t d o o r .              The

l i e u t e n a n t o b s e r v e d t h a t F a l c o n was c u t s e v e r e l y on t h e r i g h t s i d e

of h i s neck and was b l e e d i n g p r o f u s e l y .

             Atkinson immediately locked t h e basement and lobby a r e a

and sounded t h e a l a r m .

             E a r l i e r i n t h e e v e n i n g between t h e hour of 6 : 0 0 and 7 : 0 0

p.m.     A t k i n s o n ' s a t t e n t i o n was drawn t o t h e d e f e n d a n t , F i t z p a t r i c k ,

because of t h e u n u s u a l d e s i g n on t h e back of a s w e a t s h i r t he was
wearing.        I t d e p i c t e d an I n d i a n w i t h a bow and a r r o w s h o o t i n g a t

a butterfly.

             S h o r t l y a f t e r t h e a l a r m was g i v e n , Warden C r i s t , Deputy

Warden B l o d g e t t and S h e r i f f C o l l i n g s a r r i v e d .      The warden i n i t i a t e d

an immediate s e a r c h .          During t h e c o u r s e of t h e i n v e s t i g a t i o n , t h e

t r a s h c a n s from dorms #1 and # 2 w e r e p u l l e d i n t o t h e lobby a r e a .

While t h e s e a r c h was i n p r o g r e s s L i e u t e n a n t Atkinson a g a i n saw
d e f e n d a n t F i t z p a t r i c k , who a t t h a t t i m e had changed i n t o a s h i r t
and s w e a t e r , i n t h e lobby a r e a .
             Found i n t h e t r a s h c a n of dorm #1was a k n i f e w i t h a t h r e e
i n c h b l a d e , wet and bloody remnants of a s w e a t s h i r t which was p i e c e d

t o g e t h e r on t h e f l o o r and formed a g r a y s w e a t s h i r t w i t h t h e name
" F i t z p a t r i c k " t h e r e o n and t h e p e c u l i a r I n d i a n d e s i g n above d e s c r i b e d .
Also found i n t h e same t r a s h can was a p a i r of wet and bloody

denim t r o u s e r s from which t h e p o c k e t s had been t o r n .

             The n e x t morning, a p o c k e t which matched t h e t r o u s e r s was

found i n t h e p r i s o n sewage lagoon.                  On t h i s p o c k e t was t h e name

"Fitzpatrick".

             P h o t o s of t h e s m a l l room i n t h e basement where t h e c r i m e

o c c u r r e d c l e a r l y d e p i c t e d t h e s c e n e and a l s o showed f o o t p r i n t s i n

t h e blood i n t h e room, which f o o t p r i n t s l e d from t h e s c e n e of t h e

a l t e r c a t i o n i n t o t h e rest of t h e basement and down a h a l l w a y toward

t h e b a c k s t a i r s t h a t l e a d t o dorm # l .

             There was a l s o found a t t h e s c e n e of t h e c r i m e t h e workings

of a watch which was broken and which had s t o p p e d a t 7:Ol.                                   This

workings f i t e x a c t l y i n t o t h e watch c a s e on t h e v i c t i m ' s arm.

             The s h o e s and i t e m s of c l o t h i n g were s e n t t o t h e F . B . I .

and t h e r e p o r t , a d m i t t e d i n e v i d e n c e by s t i p u l a t i o n , r e v e a l e d t y p e

"0"   blood on t h e s h o e s , s w e a t s h i r t and t r o u s e r s .         The r e p o r t a l s o

showed t h a t t h e p o c k e t and t r o u s e r s were of t h e same m a t e r i a l .
             While t h e r e was no e v i d e n c e of t h e v i c t i m ' s blood t y p e ,

t h e r e was e v i d e n c e t h a t F i t z p a t r i c k ' s blood was t y p e " 0 " .

             D e f e n d a n t ' s d e f e n s e was an a l i b i .      He was a r e s i d e n t of

dorm # 2 , b u t t e s t i f i e d t h a t a t t h e t i m e of t h e c r i m e he was i n

dorm # I , t a l k i n g w i t h i n m a t e C o r l i s s a b o u t a n o r d e r f o r h a n d c r a f t e d
l e a t h e r b e l t s t h a t C o r l i s s was a d e p t a t making and t h a t he was

s e e n t a l k i n g t o C o r l i s s by i n m a t e F i d d l e r .    Both C o r l i s s and F i d d l e r

t e s t i f i e d i n h i s behalf.        Defendant a l s o t e s t i f i e d t h a t h e n e v e r

wore t h e above d e s c r i b e d s w e a t s h i r t and d e n i e d t h e a l l e g e d a s s a u l t
t h a t r e s u l t e d i n t h e d e a t h of F a l c o n .
              Inmate C o r l i s s t e s t i f i e d t h a t F i t z p a t r i c k had i n f a c t been
t o his bunk i n dorm #1 a b o u t 6:30 p.m.                     o r thereabouts with an order
f o r 3 l e a t h e r b e l t s w i t h names on them, which names were s u p p l i e d

by d e f e n d a n t .   C o r l i s s bunked n e x t t o F i d d l e r .       Fiddler t e s t i f i e d
he saw d e f e n d a n t t a l k t o C o r l i s s w h i l e he was changing s h e e t s

on h i s bunk and i n t h e meantime went t o t a k e t h e s h e e t s t o t h e

o u t g o i n g l a u n d r y p i l e and t h e r e saw F a l c o n .     On r e t u r n i n g t o

his bunk F i d d l e r made some remark a b o u t a n i n m a t e b e i n g on t h e

o u t g o i n g l a u n d r y and b l e e d i n g b a d l y .    Upon h e a r i n g t h a t remark,

F i t z p a t r i c k d e p a r t e d f o r t h e lobby a r e a .

             F i t z p a t r i c k t e s t i f i e d h i s w a s "0" t y p e blood and t h a t h e

wore 8D o r 9 t e n n i s s h o e s .
             C                                   He a l s o t e s t i f i e d t h a t h e was work-

i n g a s a cook i n Rothe H a l l t h e S a t u r d a y e v e n i n g of A p r i l 1 5 , 1972,

a s t h e y were s h o r t h a n d e d and t h a t when he f i n i s h e d h i s s h i f t a t

6;00    p.m.     h e was wearing r e g u l a t i o n b l u e s h i r t and j e a n s .          He test-

i f i e d f u r t h e r t h a t he t h e n went t o h i s dorm # 2 , t o o k a shower and

changed t o a g r a y s w e a t s h i r t w i t h a f i v e i n c h l e t t e r a c r o s s t h e

back of i t and wore t h e same j e a n s .                     He t h e n went t o t h e lobby

a r e a t o g e t a f o o t b a l l game s t a r t e d b u t c o u l d n ' t , s o went back t o

h i s dorm and changed t o a p r i s o n i s s u e b l u e s h i r t and r e t u r n e d t o

t h e lobby and t o dorm #1 t o see C o r l i s s a b o u t t h e l e a t h e r b e l t s .
Defendant d e n i e d t h e a s s a u l t on F a l c o n .

             It i s t o be n o t e d t h a t , a l t h o u g h d e f e n d a n t F i t z p a t r i c k and

d e f e n d a n t Gardner were t r i e d t o g e t h e r , e a c h had s e p a r a t e c o u n s e l

and t h a t no motion was made f o r s e p a r a t e t r i a l s .

             The f i r s t i s s u e r a i s e d by a p p e l l a n t i s t h a t t h e v e r d i c t
was n o t j u s t i f i e d by t h e e v i d e n c e .

             A d m i t t e d l y t h e S t a t e ' s c a s e was proven t o t a l l y by circum-

s t a n t i a l evidence.         The r u l e s t h a t govern t h e weight and s u f f i c i e n c y
of c i r c u m s t a n t i a l e v i d e n c e a r e s e t o u t i n t h e c a s e of S t a t e v . Cor,
1 4 4 Mont. 323, 326, 396 P.2d 86 ( 1 9 6 4 ) .                      There, t h i s Court s t a t e d :
             " C i r c u m s t a n t i a l e v i d e n c e i s n o t always i n f e r i o r i n
             q u a l i t y nor i s it n e c e s s a r i l y r e l e g a t e d t o a 'second
             c l a s s s t a t u s ' i n t h e c o n s i d e r a t i o n t o be g i v e n i t .
             The v e r y f a c t it i s c i r c u m s t a n t i a l i s n o t a s u f f i -
             c i e n t a l l e g a t i o n t o j u s t i f y a r e v e r s a l of t h e judg-
             ment f o r s u c h e v i d e n c e may be and f r e q u e n t l y i s ,
             most c o n v i n c i n g and s a t i s f a c t o r y . I n any c r i m i n a l
        case, evidence that is material, relevant and
        competent will be admitted, 'nothing more and
        nothing less.' The test is whether the facts
        and circumstances are of such a quality and quan-
        tity as to legally justify a jury in determining
        guilt beyond a reasonable doubt. If such be the
        case, then the court should not, indeed cannot,
        set aside the solemn findings of the trier of the
        facts. "
Or, stated another way, this Court has held that to justify a
conviction on circumstantial evidence, the facts and circumstances
must not only be entirely consistent with the theory of guilt,
but must be inconsistent with any other rationale(1.e. reasonable)
conclusion.   -
              Cor, at 327; State v. Stoddard, 147 Mont. 402, 408,


       As to the quality and quantity of evidence necessary,
the rule is that if substantial evidence is found to support the
verdict, then it will stand.   State v. White, 146 Mont. 226, 229,
405 P.2d 761 (1965). This Court in Stoddard stated:
       "First we should note that this court is not a
       trier of fact * * * In view of the presumption
       of innocence at the trial, the jury must have
       been instructed to that effect, but on appeal
       after conviction the rule changes. Then, if the
       record shows any substantial evidence to support
       the judgment, the presumption is in favor of such
       judgment. "
        In the present case, there is very little contradictory
evidence between the witnesses as to the facts.
        Corliss, used as a witness by defendant, actually corrob-
orated the State's witness as to the gray sweatshirt and then the
blue shirt worn by defendant that evening between the hours of
5:00 and 7:00 p.m.
       As this Court has held many times over, the jury is the
fact finding body in our system of jurisprudence, and its decision
is controlling.   The jury is free to consider all the evidence
presented and to pick and choose which of the witnesses it wishes
to believe.   If sufficient testimony was introduced, as well as
exhibits to justify the jury's findings, then its conclusion will
not be disturbed unless it is apparent there was a clear mis-
understanding by the jury or that there was a misrepresentation
made to the jury.
        To find a person guilty beyond a reasonable doubt, each
fact in a chain of circumstances that will establish guilt need
not be proven beyond a reasonable doubt.   What must be proven is
that there is not a reasonable doubt arising from consideration
of - the evidence in the case.
   all                             State v. Medicine Bull, Jr.,
152 Mont. 34, 445 P.2d 916 (1968); People v. Eddy, 123 C.A.2d 826,

268 P.2d 47, 52 (1954); People v. Kross, 112 C.A.2d 602, 247
P.2d 44, 51 (1952); People v. Deibert, 117 C.A.2d   410, 256 P.2d
355, 362 (1953).
        Thus, what are the facts and circumstances which the jury
believed?   The jury could have concluded from the evidence that
Fitzpatrick was wearing the gray sweatshirt with the peculiar
Indian design on its back when Lt. Atkinson saw him between the
hours of 6:00 to 7:00 p.m. on the night of the killing.    The de-
fendant denied wearing such a sweatshirt; that this was the same
sweatshirt which was wet and bloody and found in the trash can
in dorm #1 at approximately 7:30 p.m.; that in this same trash
can which contained defendant's sweatshirt, there was also dis-
covered a paring knife, along with a pair of wet and bloody
trousers with the pockets ripped out.   One of these pockets was
later discovered and identified as part of the trousers belong-
ing to defendant.   The jury could have concluded from the pictures
of the scene that a lot of blood was spilled in this altercation
and such blood would probably be present on the killer's clothing.
They could conclude that Fitzpatrick was not where he claimed he
was at approximately 7:00 p.m. and that he did not have on-the
clothes he said he was wearing.   This is true because inmate Corliss
testified that it was entirely possible that Fitzpatrick had on a
sweatshirt when they talked, and inmate Fiddler gave a prior
inconsistent statement saying that Fitzpatrick did have on a
gray or white sweatshirt when Fiddler saw him around 7:00 p.m.
Thus, if the defendant and Fiddler were lying as to the clothes
defendant was wearing, the jury could certainly conclude they
were lying as to Fitzpatrick's whereabouts at 7:00 p.m.     The
facts that the clothing and the coverup seem.to place defendant
at the scene of the crime, and that the victim's broken watch
found at the scene had stopped at 7:01, seem to be most persua-
sive evidence that the defendant was there at 7:00 p.m.
         In Stoddard, at 408, this Court held that in reviewing
a case the court is to give to each circumstance in evidence -
                                                             all
the legal effect toward guilt which it could support to see
whether a rational conclusion of innocence was excluded.    Hence,
if - the legal effect toward guilt is given to the facts and
   all
circumstances which the jury believed in this case, then it is
evident- that substantial evidence was found to support this ver-
dict.   There were twelve jurors that reviewed this evidence, and
all twelve conclusively determined the defendant's guilt.
        After consideration of all these facts, (~edicineBull, Jr., s u p ~ a
it is clear that the quality and quantity of the facts and cir-
cumstances in this case did legally justify the jury's determin-
ation that Fitzpatrick was guilty of second degree murder beyond
a reasonable doubt.
        Defendant's second issue on appeal concerns whether the
trial court erred in admitting in evidence (a) color photographs
of the scene of the crime; (b) pieces of a sweatshirt; (c) pair
of trousers and a pocket; (d) a pair of tennis shoes.
        As to the color photos of the scene of the crime, the ob-
jection was that they were inflammatory, served no purpose, and
were designed to prejudice the jury.
          The rule in Montana regarding the admissibility of
 photographs was first stated in the case of Fulton v. Chouteau
 County Farmers' Co., 98 Mont. 48, 61, 37 P.2d 1025 (1934).    This
 Court said:
          " * * * However, photographs stand on the same
          footing as diagrams, maps, plans, and the like,
          and, as a general rule, whenever relevant to
          describe a person, place, or thing, they are
          admissible for the purpose of explaining and
          applying the evidence and assisting the court
          and jury in understanding the case."
          This rule has been expounded by this Court through the
years.    The Court in State v. Warrick, 152 Mont. 94, 100, 446
P.2d 916 (1968), held that color photographs that have probative
value are admissible.    In State v. Logan, 156 Mont. 48, 60, 473
P.2d 833 (1970), this Court held that photographs that are prob-
atkve and material are admissible.   This was followed in State v.
OIDonnell, 159 Mont. 138, 142, 496 P.2d 299 (1972).
          However, this Court, in refining this general rule, there
stated:
          " * * * When the purpose of an exhibit is to
          inflame the minds of the jury or excite the
                                   - -
          feelings rather than to enlighten the jury as
          to any fact, it should be excluded.   State v.
          Bischert, 131 Mont. 152, 159, 308 P.2d 969.11
          (Emphasis supplied) .
          Hence, the question before the Court is whether these
photos were introduced into evidence for the probative purpose of
 enlightening the jury or whether they were introduced for the pur-
 pose of inflaming the minds of the jury?    It is clear the purpose
was probative and it is equally clear that these photos do have
probative value.    It must be remembered that this case was built
 purely on circumstantial evidence; thus, it was necessary that
 every element of evidence that had probative value be introduced
 in order that the jury might more fully understand the proof and
apply the evidence.     The photos depicted the scene of the crime
 as it was very shortly after the assault when the first witnesses
saw it.    The photos showed blood all over the room, which certain-
ly helped to demonstrate that this was a malicious, vicious
attack.    Finally, the immense amount of blood at the scene was
certainly probative in demonstrating the high degree of probability
that the assailant got blood on himself and his clothing.      As to
the fact that one picture also showed a bat and a steel bar, the case
of O'Donnell at p. 143, is controlling.      There, a photo admitted
into evidence depicted a stick which the defense contended had
nothing to do with the crime and, in fact, its connection with the
crime was never established.   As to this photo, the Court in
OtDonnell said:
          "While the stick does not appear to be relevant,
          we are of the opinion that the pajamas, shoes
          and telephone cord are relevant and material
          and the photographs depicting these items were
          properly admitted. Evidence that is admissible
          for one purpose, but not for another, must not
          be excluded. Teesdale v. Anschutz Drilling Co.,
          138 Mont. 427, 357 P.2d 4. * * * " (Emphasis
          supplied).
          Thus, it is obvious that the purpose of introducing these
pictures was for their probative value.     They were relevant to
the issues in the case.    Once this relevance is established, the
fact that a photograph may be inflammatory should not render it
inadmissible any more than inflammatory word descriptions should
render testimony inadmissible, so long as the purpose is probative
and the true facts and conditions are described.     Jones on Evidence,
6th Ed., Vol. 3, sec. 17:50 (1972).
          A pair of tennis shoes was    found in dorm #2.   These
shoes had blood stains of type   "0"   blood and inside of them was
inked the name "Tom Rivard".    They were offered in evidence to-
gether with the pieces of sweatshirt, trousers and pocket and ob-
jected to on the ground that they were not properly marked at the
time they were found and by the person who found them.      Thus, it
is the defendant's contention that the state did not prove that no
substantial change had taken place in the articles while in
their custody.
        Factors that should be considered when dealing with the
chain of possession of physical evidence are the nature of the
article, the circumstances involved in its storage and preser-
vation, and the likelihood of outsiders tampering with it.    The
rule in Montana, dealing with the foundation that must be laid
by the state in or2er to introduce physical evidence, was most
recently explained in the case of State v. Wilroy, 150 Mont. 255, 258,
434 P.2d 138 (1967).   This Court said:
        " * * * Failure to either properly identify the
        article, or to prove that no substantial change
        has taken place in the article, while in custody,
        constitutes ground for an objection that the
        proper foundation has nbt been shown." (Emphasis
        supplied)  .
This Court in Wilroy cited the case of State v. Wong Fong, 75 Mont.
81, 241 P. 1072 (1925), in expounding its rules on the introduc-
tion of physical evidence.   Wong Fong held that it was only incum-
bent upon the state to demonstrate prima facie that no substantial
change had taken place in the article.    The Court said:
       " * * * It was not incumbent upon the state to
       prove that it [package containing cocaine] could
       not have been tampered with. It was not necessary
       that all possibility of its having been tampered
       with should be excluded by affirmative testimony.
       * * * It was only necessary to identify the package
       and to make a prima facie showing that there had
       been no substantlal change in it to warrant its
       introduction in evidence. * * * " (Emphasis
       supplied)   .                        -



Thus, it is implicit within these rules that, once a prima facie
showing is made, it is incumbent upon the opposing party to prove
to the contrary.   No such proof was offered by the defendant.
        In Wilroy, physical evidence similar to that in the case
at bar was introduced and admitted.   In that case, the lower court
admitted a man's right shoe, a pair of man's white undershorts,
a man's white T-shirt and a pair of man's white trousers.    The
defendant contended that the identification was not sufficient.
This Court found that the identification was sufficient and said:
          " * * * we find the identification to have been
          sufficient. The lack of specific or positive
          identification marks is not of great import for
          the items were not so uncommon that a reasonable
          identification cannot be made. The lack of posi-
          tive identification goes to the weight of the
          p.*
          It is sufficient if they are shown to be connected
          with the crime, and identified as such."
          (Emphasis supplied).
In the case at bar the physical evidence was certainly shown to
be connected with the crime and identified as such.
          The defendant's objection is to the fact that there were
no identification marks placed on the pieces of sweatshirt,
trousers, pocket and tennis shoes before they were placed in the
hands of the sheriff. After they got to the sheriff they were
marked.    The State contends that no marking was necessary so long
as the State did identify these articles and demonstrate, prima
facie, that there was no substantial change in the articles while
they were in the possession of the State.   As to the sweatshirt
and trousers, Warden Crist, Deputy Warden Blodgett, Lt. Atkinson
and the sheriff were all present when this clothing was taken from
the trash can.    The sheriff took pictures and at that time the
deputy warden turned this evidence over to the sheriff who was
standing right there.   At trial, all of these individuals said
the sweatshirt and trousers shown them at trial were the same as
those taken from the trash can.   As to the pocket, it was found
by an employee of the prison in the prison sewer lagoon.     This
employee testified that this was the same pocket he found.     This
pocket was given by the employee to the captain of the guard in
a brown paper bag marked with the date and time.   The captain
said he opened the bag and the contents had "Fitzpatrick" written
on it.    The captain said he turned it over to the sheriff immedi-
ately thereafter.   Further, it was stipulated that the pocket
found in the sewage lagoon by the witness Bill Thompson, came
from the denim levis or trousers found in the trash can and
could have originated from no other source.     As to the shoes,
they were also identified by the prison employee who found them
as being the same shoes he found and that no substantial change
had been made on them.
         Thus, the state did identify these articles and did prove,
under the rules of Wilroy and Wong F o n ~ ,that no substantial
change had been made on them.
         We therefore hold that the objections made to the intro-
duction of the photos, pieces of sweatshirt, trousers, pocket
and tennis shoes were without merit.
         The last issue raised by defendant is that the trial court
should have admitted in evidence inquiries as to the exchange of
clothing by inmates.
         Lt. Atkinson said he saw Fitzpatrick between 6 : 0 0 and 7:00
p.m. wearing a sweatshirt. Atkinson said he noticed the sweat-
shirt on Fitzpatrick because of the unusual design on the back of
it.   The design was of an Indian with a bow and arrow, who was
shooting at a butterfly.    The defendant, however, denied ever wear-
ing this sweatshirt.   Thus, the jury had two choices:     to believe
Fitzpatrick was wearing the sweatshirt, or believing he was not.
It was up to the jury to decide who they were going to believe.
If they believed the defendant's statement that he was not wear-
ing the sweatshirt, then they could not convict him.     They did
not have to decide whether another inmate could have had it on,
but only had to decide whether they believed Fitzpatrick who said
he did not have it on, or believe Atkinson, who said that Fitz-
patrick did have it on.    If the jury believed Atkinson, then
another inmate could necessarily not have been wearing the sweat-
shirt.   Thus, the possibility of exchange of clothing was irrelevant.
The q u e s t i o n f o r t h e j u r y was o n l y whether t h e d e f e n d a n t had
t h e s e c l o t h e s o n , n o t whether some o t h e r i n m a t e had them on.

            The j u r y b e l i e v e d A t k i n s o n and c o n c l u d e d t h a t defend-

a n t was wearing t h e s w e a t s h i r t w i t h t h e u n u s u a l d e s i g n .   As

t r i e r s of f a c t , t h e y were e n t i t l e d t o make s u c h a c o n c l u s i o n .

            F o r t h e f o r e g o i n g r e a s o n s , t h e judgment of t h e t r i a l
c o u r t i s affirmed.




                                             Hon. Edward T . D u s s a u l t , D i s t r i c t
                                             Judge, s i t t i n g i n p l a c e o f M r .
                                             J u s t i c e John C . H a r r i s o n .




 Justices
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