                                          No.    13855

                   I N THE SUPREME COURT O F THE STATE OFBONTANA

                                                1977



STATE ex r e l . JOHN G.             WINSTON,
County Attorney,

                           P l a i n t i f f and A p p e l l a n t ,



THE D I S T R I C T COURT O F THE SECOND J U D I C I A L
D I S T R I C T O F THE STATE O F MONTANA, I N AND
FOR THE COUNTY O F BUTTE-SILVER BOW, AND THE
HONORABLE JAMES D. FREEBOURN, P R E S I D I N G JUDGE,

                           Respondent.



O R I G I N A L PROCEEDING:

C o u n s e l of R e c o r d :

      For A p p e l l a n t :

             Hon. M i k e G r e e l y , A t t o r n e y G e n e r a l , H e l e n a ,
              Montana
             John G. Winston, C o u n t y A t t o r n e y , B u t t e , M o n t a n a
             C r a i g P h i l l i p s argued, D e p u t y C o u n t y A t t o r n e y ,
              B u t t e , Montana

      For R e s p o n d e n t :

             H e n n i n g s e n , P u r c e l l and G e n z b e r g e r , B u t t e , M o n t a n a
             R e x F. H e n n i n g s e n argued and John J a r d i n e a r g u e d ,
              Butte, Montana



                                                   Submitted:           June 2 2 , 1 9 7 7

                                                      Decided:         ,)UL 26 1
                                                                               9a


Filed:       J& 36 1977


       mfi)hfk,                                         Clerk
                                         No.    13844

              I N THE SUPREME COURT O F THE S T A T E O F MONTANA

                                             1977



S T A T E O F MONTANA,           ex r e l . THEODORE NELSON,

                                    Relator,
             -vs-

THE D I S T R I C T COURT O F T H E SECOND J U D I C I A L
D I S T R I C T O F THE S T A T E O F MONTANA, I N AND FOR
THE COUNTY O F S I L V E R BOW, AND THE HON. JAMES
D. FREEBOURN, P R E S I D I N G J U D G E ,

                                   Respondent.



O R I G I N A L PROCEEDING:

C o u n s e l of R e c o r d :

      For R e l a t o r :

             Henningsen, Purcell & G e n z b e r g e r , B u t t e , Montana
             R e x F. H e n n i n g s e n argued and John J a r d i n e argued,
              Butte, Montana

      For R e s p o n d e n t :

             Hon. M i k e G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , M o n t a n a
             John G. W i n s t o n , C o u n t y A t t o r n e y , B u t t e , M o n t a n a
             C r a i g P h i l l i p s argued, D e p u t y C o u n t y A t t o r n e y ,
              Butte, Montana



                                                    Submitted:          June 2 2 , 1 9 7 7
                                                       Decided:        Jf# 28

Filed:
Mr.     J u s t i c e John Conway H a r r i s o n d e l i v e r e d t h e Opinion o f t h e C o u r t .



              Defendant Theodore Nelson, c h a r g e d w i t h t h e c r i m e of

d e l i b e r a t e homicide, and t h e s t a t e of Montana, by John G . Winston,

County A t t o r n e y , S i l v e r Bow County, p e t i t i o n f o r s e p a r a t e w r i t s

of s u p e r v i s o r y c o n t r o l .     Because p e t i t i o n e r s a r e a d v e r s a r i e s i n

t h e same c r i m i n a l p r o c e e d i n g , t h e i s s u e s r a i s e d by t h e s e p e t i t i o n s

were combined f o r argument b e f o r e t h i s C o u r t and b o t h w i l l be

decided pursuant t o t h i s opinion.

             On J a n u a r y 4 , 1977 a n I n f o r m a t i o n was f i l e d i n t h e

d i s t r i c t c o u r t , S i l v e r Bow County, c h a r g i n g d e f e n d a n t w i t h

d e l i b e r a t e homicide under s e c t i o n 9 4 - 5 - 1 0 2 ( 1 ) ( a ) , R.C.M.             1947.

Defendant p l e a d n o t g u i l t y and f i l e d a t i m e l y n o t i c e of i n t e n t

t o r e l y on t h e a f f i r m a t i v e d e f e n s e of m e n t a l d i s e a s e o r d e f e c t .

He was a d m i t t e d t o b a i l a f t e r e x a m i n a t i o n by William N. A l e x a n d e r ,

M.D.,     whom d e f e n d a n t had h i r e d t o c o n d u c t such e x a m i n a t i o n .               On

January 1 7 , 1977, p u r s u a n t t o s t i p u l a t i o n o f c o u n s e l , t h e d i s t r i c t

c o u r t o r d e r e d d e f e n d a n t b e a d m i t t e d t o Warm S p r i n g s S t a t e H o s p i t a l

f o r p s y c h i a t r i c e x a m i n a t i o n and e v a l u a t i o n i n a c c o r d a n c e w i t h

s e c t i o n 95-505,       R.C.M.         1947.    Defendant was examined a g a i n by

D r . Alexander i n h i s c a p a c i t y a s C l i n i c a l D i r e c t o r and Chief of

F o r e n s i c Medicine a t t h e Montana S t a t e H o s p i t a l a t Warm S p r i n g s .

D r . Alexander s u b m i t t e d h i s r e p o r t t o t h e c o u r t on A p r i l 6 , 1977.

The r e p o r t s t a t e d , i n p e r t i n e n t p a r t :

             " P a t i e n t i s aware of t h e n a t u r e of t h e c h a r g e s
             a g a i n s t him and i s a b l e t o a s s i s t h i s lawyer i n
             h i s own d e f e n s e .         He i s a l s o a b l e 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 t h e c h a r g e s . A t t h e t i m e of
             t h e i n c i d e n t which l e d t o t h e p r e s e n t c h a r g e s it
             i s f e l t t h a t t h e p a t i e n t was u n a b l e t o c o n d u c t
             h i m s e l f a c c o r d i n g t o t h e r e q u i r e m e n t s o f t h e law
             b e c a u s e he had r e a c h e d t h e c l i m a x o f a s e v e r e
             a d j u s t m e n t r e a c t i o n which had t e m p o r a r i l y assumed
             p s y c h o t i c p r o p o r t i o n s . A t t h a t p o i n t h e was
             u n a b l e t o have a p a r t i c u l a r s t a t e o f mind which
             i s a n element of t h e o f f e n s e c h a r g e d . * * * "
          Upon receipt of this report defendant filed a motion for
acquittal by reason of mental disease or defect, and a hearing
was held.    At the hearing Dr. Alexander testified in his opinion
defendant was unable to appreciate the criminality of his conduct
or to conform his conduct to the requirements of law at the time
of the killing.    The state called no rebuttal witnesses, but
cross-examined Dr. Alexander extensively regarding the factual
basis for his diagnosis and the subjective nature of a psychologi-
cal examination.    Dr. Alexander stated his diagnosis was based
upon the facts surrounding the incident as related to him by
defendant, and while he thought defendant was telling the truth,
his diagnosis could change if the facts were not as defendant
claimed them to be.    He also stated it was possible, though

unlikely, that his opinion would be disputed by his colleagues.
          The district court found:
         "That the question of whether defendant was aware
         or unaware of his actions or whether he was able
         or unable to have a particular state of mind at
         the designated moment is disputable".
The court denied the motion for acquittal.
         Did the district court err in denying defendant's motion
for acquittal?    Defendant argues that under section 95-503(a),
R.C.M.   1947, he need only prove mental disease or defect excluding
responsibility by a preponderance of the evidence, and the only

evidence before the court, the testimony of Dr. Alexander, clearly
establishes this proof.
         The structure for the procedure in question is set out in
section 95-507(1), R.C.M.   1947:
         "If the report filed under section 95-505 finds that
         the defendant at the time of the criminal conduct
         charged suffered from a mental disease or defect
         which rendered him unable to appreciate the criminality
         of his conduct or to conform his conduct to the
         requirements of law, and the court, after a hearing
         if a hearing is requested by the attorney prosecuting
         or the defendant, is satisfied that the mental disease
        or defect was sufficient to exclude responsibility,
        the court on motion of the defendant shall enter
        judgment of acquittal on the ground of mental disease
        or defect excluding responsibility."
        This Court has previously discussed the purpose of
section 95-507(1).   In State ex rel. Krutzfeldt v. District Court,
163 Mont. 164, 170, 515 P.2d 1312, the Court noted:
        " * * * the Revised Commission Comment to section 95-
        507, R.C.M. 1947, in regard to subdivision (a),
        states in part:
             "'Under subdivision (a) in cases of extreme
             mental disease or defect where the exclusion
             of responsibility is clear, trial can be
             avoided and the defendant immediately com-
             mitted as irresponsible.'
            "That comment makes it clear that if, in the
       judge's opinion and after a hearing if requested by
       either attorney, a defendant was clearly suffering
       from mental disease at the time of the crime then
       the judge can acquit the defendant and have him
       committed to a state institution forthwith. The
       purpose is plain--to avoid a costly trial where the
       mental defect is plain and obvious.* * * "
       At this stage of the process, the^ the question is not one
of the preponderance of the evidence, but whether the exclusion of
criminal responsibility due to mental disease or defect is "plain
and obvious".   If it is not plain and obvious, a trial should
be conducted and the trier of fact can determine the preponderance
of the evidence.   The summary procedure outlined by section 95-507
was never designed to replace the trial where the issue of criminal
responsibility is disputable.   In Krutzfeldt this Court held this
procedure does not preclude a defendant from raising the defense
of mental disease or defect at trial.   Such a holding would be
unnecessary if the standard of proof at the hearing was equivalent
to the standard at trial.
        Defendant argues he is entitled to acquittal as a matter
of law under the authority of State ex rel. Main v. District
Court, 164 Mont. 501, 525 P.2d 28.   Main is deceptively similar
to the instant case, but there are critical differences.    In Main,
relator filed a motion to dismiss on the grounds of mental disease
or defect and a hearing was held under section 95-507, R.C.M. 1947.
Dr. M. F. Gracia testified relator was not responsible at the time
of the criminal conduct charged.     The only doubt was cast by
another psychiatrist, Dr. Moisey, who testified that, in his
opinion, relator was not so mentally disturbed he did not know what
he was doing.     However, he admitted he was unable to determine
relator's state of mind at the time of the incident, and this
Court held Dr. Moisey's testimony was thereby rendered incompetent
and thus raised no factual issue.     There was no doubt cast upon
the testimony of Dr. Gracia, except for the incompetent testimony
of Dr. Moisey, so relator was entitled to an acquittal as a matter
of law.    We noted the persuasive basis for Dr. Gracia's opinion
in Main:
           " * * * Dr. Gracia based his opinion on (1) an
           examination of relator several weeks after the
           alleged crime; (2) upon extensive psychological
           testing and medical examination including
           observation by staff personnel every day for
           several years; (3) upon the study of relator's
           social history and history of mental illness
           dating back to 1962; and (4) the doctor's
           personal contact with relator beginning in
           1966." 164 Mont. 509
           In the instant case, by contrast, Dr. Alexander based his
opinion on his examination of defendant which lasted six to
seven hours in total.    While we do not doubt this is adequate
for a complete and thorough psychiatric examination, it is a
fact Dr. Alexander's findings were largely based on the facts
of the occurrence as related to him by defendant.    The alleged
temporary insanity was admittedly of short duration, and Dr.

Alexander testified his diagnosis could change if the facts were
not in accord with defendant's version of the incident.      For
example, this colloquy occurred between the county attorney and
Dr. Alexander on cross-examination:
        "Q. But the question is anyway, the question:
        Your opinion would change if you knew he had a
        loaded gun before he got there? A. Yes, sir.
        "Q. And he's the only one that told you that.
        You don't know the facts of that do you? A. I
        do not."
        We did not hold in Main, and do not intend to hold, that
the district judge is absolutely bound by the opinion of an expert
testifying on the ultimate issue of mental disease or defect.      We
do not believe the statute intended to make the examining psychi-
atrist into the trier of fact.   While State v. Taylor, 158 Mont.
323, 335, 491 P.2d 877, dealt with the release of a defendant
from commitment after his sanity was allegedly restored, the
reasoning there with regard to the opinion testimony of experts
is applicable:

        "While the determination of defendant's mental
        condition and his expected behavior, if released,
        must be on the basis of expert testimony, the
        trial court could weigh such opinion evidence but
        he is not bound by it. He could reject it if,
        in his judgment, the reasons given for the testi-
        money were unsound." 158 Mont. 335
        In the instant case, while the opinion of Dr. Alexander is
uncontradicted by any other testimony, the district judge could
properly have found his opinion was based upon determinations of
fact which were for a jury to determine.   Therefore, the existence

of mental defect at the time of the incident was not so "plain
and obvious" as to require an acquittal at this stage of the
proceeding.   Accordingly,the district court's denial of defendant's
motion for acquittal is affirmed.
        The state in its application for a writ of supervisory
control alleges that the trial court abused its discretion by its
denial of the state's motions for:   (1) The examination of defendant
by another psychiatrist; (2) the listing of additional witnesses
on the Information; and (3) a continuance until July 15, 1977, due
to the unavailability of key witnesses.    The continuance issue
would appear to be moot at this time and will not be discussed.
        Defendant argues the issues raised by the state do not
fall within section 95-2403, R.C.M. 1947, governing the scope of
appeal by the state in a criminal case.   An application for a writ
of supervisory control before this Court is an original proceeding

and not an appeal.   Jurisdiction is not denied by the fact the
relator has no right to an appeal.   Defendant's jurisdictional

argument is without merit.
        The state seeks an examination of defendant by another
qualified psychiatrist under the authority of section 95-507(2),

R.C.M. 1947:

        "When either the defendant or the state wishes the
        defendant to be examined by a qualified psychiatrist
        or other expert, selected by the one proposing the
        examination, the examiner shall be permitted to
        have reasonable access to the defendant for the
        purpose of the examination."
This is expanded upon by the Revised Commission Comment to the
original section 95-507:
       "Subdivision (b) [now subdivision (2)]  allows both
       the prosecution and defense access to the defendant
       for purposes of psychiatric examinations. The
       sheriff or warden must make the defendant accessible
       for such examinations. The number of times the
       defendant must be made accessible for such examina-
       tions will rest in the discretion of the court."
       Despite the fact this statute expressly gives the prosecu-

tion or the defense the right to an examination of defendant, defense

counsel argue the title of section 95-507 restricts the benefit
of the statute to defendant.   The title is:
       "Determination of irresponsibility on basis of report --
       access to defendant by psychiatrist of his own choice --
       form of expert testimony when the issue of responsibility
       is tried."
Defendant's imaginative argument is that allowing a psychiatrist   of
the state's choice to have access to defendant would violate Art. V,
section 11(3), 1972 Montana Constitution, which states:
          "Each bill, except general appropriation bills and
          bills for the codification and general revision of
          the laws, shall contain only one subject, clearly
          expressed in its title. If any subject is embraced
          in any act and is not expressed in the title, only
          so much of the act not so expressed is void."
This provision obviously refers to acts or bills, but does not

refer to sections within each act.    The title of the act creating
section 95-507 is contained in the Laws of 1967, Chap. 196, and
states:
          "An Act Creating a Montana Code of Criminal Procedure
          to Codify and Generally Revise the Statutes Which
          Govern Court Procedures in Criminal Matters."

Section 95-507 was amended by the Laws of 1974, Chap. 120, entitled:
          "AN ACT FOR THE CODIFICATION AND GENERAL REVISION
          OF THE LAWS RELATING TO THE DEPARTMENT OF INSTITUTIONS."

Patently these acts were codifications and general revisions and
possessed adequate titles.    The constitutional provision requiring
acts to have complete titles has never been applied to the sec-
tions within each act, and defendant has cited no authority.

          Alternatively, defendant argues section 95-507(2) allows
not a substantive psychiatric examination but merely an inquiry
into the procedure and credibility of the psychiatrist who reported

under section 95-505.    The plain language of section 95-507(2) and
the Revised Commission Comment however, refer to a psychiatric
examination of the defendant.    The purpose of subsection (2) be-

comes clear in subsection (3) of section 95-507, which states in
pertinent part:
          " * * * both the prosecution and the defense may summon
          any other qualified psychiatrist [other than the
          reporting psychiatrist who was appointed under section
          95-5051 or other expert to testify, but no one who
          has not examined the defendant is competent to testify
          to an expert opinion with respect to the mental con-
          dition or responsibility of the defendant, as dis-
          tinguished from the validity of the procedure followed
          by, or the general scientific propositions stated by
          another witness."

Clearly, any psychiatrist or other expert may testify regarding
defendant's mental condition or responsibility provided the
psychiatrist has examined the defendant.     Subsection (2) allows
for such an examination by either the prosecution or the defense.
        The remaining question is whether the trial court abused
its discretion in refusing to allow an examination of defendant by
a psychiatrist other than Dr. Alexander, since the number of
additional examinations allowed under section 95-507 is within
the discretion of the trial court.     Revised Commission Comment,
section 95-507, R.C.M. 1947.     There are two main considerations:

        1.   Prior to examining defendant pursuant to stipulation
of counsel, Dr. Alexander was hired by defendant to examine him
for purposes of bail.    This at least raises a conflict of interest.

        2.   The district court found Dr. Alexander's conclusions
to be "disputable".     If the conclusions of the only expert who has
examined defendant are found to be disputable, it would appear to
be sensible to allow at least one other psychiatrist to examine and
either confirm or dispute the findings of the initial expert.
        In light of these circumstances, we hold the district
court abused its discretion in refusing to allow access to the
defendant by a psychiatrist, in addition to Dr. Alexander.
        The state also seeks reversal of the denial by the district
court of the state's motion, made six days before the trial was to
commence, to add to the Information the names of approximately
twenty witnesses.   The state alleges these witnesses were dis-
covered after the original Information was filed and are necessary
to prove the state's case in light of defendant's affirmative
defense of mental disease or defect.
        Section 95-1503(d), R.C.M. 1947 states:
        "If the charge is by information or indictment, it
        shall include endorsed thereon, the names of the
        witnesses for the state, if known."
Also applicable is section 95-1803(a) (1)(2), R.C.M. 1947:
        "In all criminal cases originally triable in dis-
        trict court the following rules shall apply:
              " (a) List of Witnesses:
              "(1) For the purpose of notice only and to
         prevent surprise, the prosecution shall furnish to
         the defendant and file with the clerk of the court
         at the time of arraignment, a list of witnesses
         intended to be called by the prosecution. The
         prosecution may, any time after arraignment, add to
         the list the names of any additional witnesses, upon
         a showing of good cause. The list shall include the
         names and addresses of the witnesses.
              " (2) The requirement of subsection (a)(1), of
         this section, shall not apply to rebuttal witnesses."
         The proper procedure to be followed when the state moves to
list additional witnesses is set out in State v. Klein,         Mont .


         "The court should first determine whether the need
         for the additional witnesses and the reason for their
         not being disclosed earlier is a 'substantial reason'.
         It should then determine whether there is prejudice
         based on surprise and whether this surprise can be
         overcome by the granting of a continuance. If the
         surprise element can be overcome by a continuance,
         then the witnesses should be endorsed and the
         continuance granted. The spirit and intent of the
         law is that the names and addresses of potential
         witnesses should be disclosed as soon as they are
         known. "
Here, the state claims and the defense does not deny the witnesses
are material to the question of defendant's responsibility and
they were unknown to the state at the time the Information was
filed.   The defense claims prejudice in that on the one hand, it
would have no time to prepare for trial if the witnesses were
added, and on the other hand, if a continuance were granted, defen-
dant would be prejudiced by an unnecessary delay.   Defendant cannot

have it both ways.   If good cause to list the additional witnesses
is shown, as here, and if any prejudice caused by defendant's
surprise can be overcome by the granting of a continuance, the
additional witnesses should be listed.   The district court's denial
of the state's motion to list additional witnesses is reversed.
         Finally, the state asks this Court, to rule on an issue
collateral to those in its petition for a writ of supervisory
control for the reason that the issue might arise at trial, if
the state was denied a psychiatric examination of defendant.   This
issue is not properly before the Court and the state's motion is
denied.
          In summary, the district court's denial of defendant's
motion for acquittal is affirmed.   The district court's denial of
the state's motions for a psychiatric examination and to list addi-
tional witnesses on the Information is reversed.   The cause is
remanded to the district court with instructions to allow for a
psychiatric examination of defendant and to allow the listing of
the additional witnesses on the Information pursuant to the state's
motion.
                                n




     Justices
