                                    No. 12394

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

                                      1973



STATE OF MONTANA,

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

         -vs -

ANDREW TAYLOR,

                            Defendant 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 E i g h t h J u d i c i a l D i s t r i c t ,
                    Honorable Truman B r a d f o r d , Judge p r e s i d i n g .

Counsel of Record:

    For Appellant:

            Robert A . Tucker, G r e a t F a l l s , Montana
            J a c k L. Lewis a r g u e d , G r e a t F a l l s , Montana

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

            Hon. R o b e r t L. Woodahl, A t t o r n e y G e n e r a l , H e l e n a ,
             Montana
            Thomas J. B e e r s , A s s i s t a n t A t t o r n e y G e n e r a l , a p p e a r e d ,
             Helena, Montana
            J . Fred Bourdeau, County A t t o r n e y , G r e a t F a l l s , Montana
            N e i l E. Ugrin, Deputy 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:         September 11, 1973

                                                         Decided : NOV       5 7973
Filed:   NQM5 197'3
M r . J u s t i c e Wesley C a s t l e s d e l i v e r e d t h e Opinion of t h e Court.


        This i s an appeal by defendant Andrew Taylor from a judg-
ment of t h e d i s t r i c t c o u r t of Cascade County e n t e r e d on a j u r y
v e r d i c t of second degree murder.                 Defendant was sentenced t o
l i f e imprisonment.
        The f a c t s of t h i s c a s e a r e r e p e l l i n g .     However, our i n q u i r y
a s appears h e r e i n a f t e r i s whether o r n o t defendant h a s had a f a i r
t r i a l ; and n o t whether defendant may be g u i l t y o r innocent.
        O t h e morning of December 22, 1971, V i c t o r i a Lynn Mullen
         n
d i e d a t Columbus H o s p i t a l i n Great F a l l s , Montana.                 Death was
caused by a massive subdural hematoma, i . e .                         a bleeding i n t o t h e
c r a n i a l c a v i t y i n t h e space s e p a r a t i n g t h e b r a i n and t h e membrane
l i n i n g t h e boney v a u l t .     Within s i x days of h e r d e a t h Vicky Mullen
would have been two y e a r s o l d .
       Vicky was t h e c h i l d of d e f e n d a n t ' s w i f e , Linda T a y l o r , by a
previous marriage.              The Taylors were married e a r l y i n November 1971,
and t h e marriage continued a t l e a s t u n t i l a f t e r t h e t r i a l of t h i s
cause.       S h o r t l y a f t e r t h e marriage defendant, an e n l i s t e d man i n
t h e United S t a t e s A i r Force, was r e a s s i g n e d t o Malmstrom A i r Force
Rase i n Great F a l l s .         I t was t h e s t a t e ' s t h e o r y t h a t s h o r t l y a f t e r
t h e Taylors a r r i v e d i n Montana t h e defendant embarked on a c o u r s e
of conduct which culminated i n Vicky's d e a t h .
       While t h e r e i s a g r e a t d e a l of testimony i n t h e r e c o r d impli-
c a t i n g defendant i n v i c k y 1 s d e a t h , t h e most damaging i s t h a t of
d e f e n d a n t ' s w i f e , Linda Taylor.        T e s t i f y i n g over d e f e n d a n t ' s con-
t i n u i n g o b j e c t i o n based on t h e m a r i t a l p r i v i l e g e p r o v i s i o n s of
s e c t i o n s 93-701-4(1)       and 94-8802, R.C.M.              1947, M r s . Taylor i n d i c a t e d
 hat defendant f r e q u e n t l y spanked t h e c h i l d very h a r d , o f t e n hard

enough t o l e a v e b r u i s e s , when she s o i l e d h e r s e l f o r misbehaved.                 She
t e s t i f i e d : t h a t s h o r t l y a f t e r t h e family a r r i v e d i n Montana defendant
began t o spank t h e c h i l d w i t h a s t i c k f o r w e t t i n g h e r p a n t s and on
a t l e a s t one occasion t h e r e was blood on t h e s t i c k following a
spanking; t h a t defendant spanked t h e c h i l d on numerous occasions
w i t h a p l a s t i c s t i c k and b e a t h e r w i t h a b e l t l e a v i n g s e v e r e
b r u i s e s , t h i s a l s o a s punishment f o r misbehavior; t h a t when Vicky
r e f u s e d t o e a t defendant would s l a p h e r , slam h e r head v e r y hard
a g a i n s t t h e back of t h e h i g h c h a i r and b e a t h e r head w i t h a s t i c k .
        I n a n o t h e r i n c i d e n t , Mrs. Taylor t e s t i f i e d defendant became
angry over t h e c h i l d ' s r e f u s a l t o walk i n a shopping c e n t e r parking
l o t and backhanded h e r hard enough t o knock h e r down.                             This
occurred on December 1 3 o r 14, 1971.                        On a n o t h e r o c c a s i o n , de-

fendant slapped t h e c h i l d f o r w e t t i n g h e r p a n t s , causing h e r t o
s t r i k e h e r head a g a i n s t t h e a r m r e s t of t h e couch and go i n t o con-
vulsions.         This occurred on t h e evening preceding t h e c h i l d ' s
death.       M r s . Taylor a l s o t e s t i f i e d t h a t on December 18, 1971,
defendant t i e d a b e l t around t h e c h i l d ' s f e e t , s t r a p p e d t h e b e l t t o
t h e doorknob and then opened and c l o s e d t h e door s e v e r a l t i m e s ,
c a u s i n g t h e c h i l d t o bang h e r head a g a i n s t t h e door.             Also, t h a t
same evening he s t r a p p e d t h e b e l t over t h e t o p of a door and
suspended t h e c h i l d head down and t h e n opened t h e door very q u i c k l y
c a u s i n g Vicky t o f a l l t o t h e f l o o r on h e r head.
        A t t r i a l , M r s . Taylor admitted having made a number of p r i o r
s t a t e m e n t s a s t o t h e c a u s e of Vicky's i n j u r i e s which were i n c o n s i s -
t e n t w i t h h e r testimony a t t r i a l .          She i n d i c a t e d t h e e a r l i e r
accounts were f a l s e and t h a t h e r account a t t h e time of t r i a l was
t r u e and a c c u r a t e .   However, under cross-examination, she d i d
s p e c i f i c a l l y a f f i r m an e a r l i e r statement i n which s h e s a i d "He
never r e a l l y i n t e n t i o n a l l y meant t o h u r t h e r .       I t was h i s way of
d i s c i p l i n i n g her."    She a l s o t e s t i f i e d t h e defendant played w i t h
t h e c h i l d , k i s s e d h e r , o f t e n gave h e r t r e a t s of c o o k i e s and would
look i n on h e r a t n i g h t t o s e e i f she was covered.
        Mrs. ~ a y l o r ' stestimony was supported i n p a r t by t h e testimony
of M r . and M r s . Hyatt.            The H y a t t s were c l o s e f r i e n d s of t h e Taylors
and t h e two f a m i l i e s v i s i t e d f r e q u e n t l y .    Both Hyatts t e s t i f i e d a s
t o d e f e n d a n t ' s punishment o f t h e c h i l d .          Mrs. Hyatt confirmed one
i n c i d e n t , t e s t i f i e d t o by Mrs. Taylor, when defendant spanked
Vicky hard enough t o produce b r u i s e s .                  She t e s t i f i e d t h a t on
a n o t h e r occasion a f t e r defendant spanked Vicky, t h e r e was blood
on h i s hand and h e r bottom.                M r . Hyatt t e s t i f i e d he heard o r saw
defendant d i s c i p l i n e Vicky on a number of occasions and t h a t i n
h i s opinion t h e d i s c i p l i n e administered by defendant was f a r t o o
s e v e r e f o r a c h i l d of v i c k y f s age.       Both H y a t t s agreed t h e
spankings they saw o r heard being a d m i n i s t e r e d were f o r t h e purpose
of d i s c i p l i n i n g Vicky f o r some misbehavior.                  They a l s o t e s t i f i e d
t h a t on occasion defendant d i s p l a y e d a f f e c t i o n toward t h e c h i l d
by hugging and k i s s i n g h e r .
        Defendant t e s t i f i e d on h i s own b e h a l f and acknowledged
d i s c i p l i n i n g t h e c h i l d by spanking and s t a n d i n g h e r i n a c o r n e r
a s punishment f o r v a r i o u s misdeeds.               Defendant a l s o r e c a l l e d t h e
parking l o t i n c i d e n t of December 1 3 o r 14 when Vicky was having
t r o u b l e walking b u t denied s l a p p i n g h e r on t h a t occasion.                  He
denied e v e r having h i t h e r w i t h a b e l t , denied e v e r having hung
t h e c h i l d from a door, and denied h i t t i n g h e r w i t h s t i c k s .                 In
g e n e r a l , defendant denied m i s t r e a t i n g Vicky i n any of t h e ways
t e s t i f i e d t o by h i s wife.       He s t a t e d he knew of one f a l l which
accounted f o r some of Vicky's b r u i s e s and t h a t h i s w i f e had t o l d
h i m of o t h e r f a l l s which would e x p l a i n some of t h e o t h e r i n j u r i e s .
        The e x t e n t of Vicky's i n j u r i e s was t e s t i f i e d t o by D r . John
P f a f f , Jr., a p a t h o l o g i s t who performed t h e autopsy.                  He t e s t i f i e d
t h a t t h e c a u s e of d e a t h was b l e e d i n g which occurred i n t h e space
between t h e b r a i n and t h e membrane l i n i n g of t h e s k u l l .                 This
b l e e d i n g was e s t i m a t e d t o have begun approximately 10 t o 1 3 days
p r i o r t o death.       However, t h e d o c t o r b e l i e v e d t h e r e were e p i s o d e s
o f r e b l e e d i n g caused by i n j u r i e s t o t h e head which occurred between
t h e time of t h e f i r s t i n j u r y and t h e time of death.                   Dr.    Pfaff
f u r t h e r s t a t e d t h a t t h e e n t i r e s c a l p was swollen and had a "boggy"
c o n s i s t e n c y , suggesting b l e e d i n g over t h e e n t i r e s c a l p .       This
c o n d i t i o n was c o n s i s t e n t w i t h h i s f i n d i n g t h a t t h e b l e e d i n g which
caused v i c k y l s d e a t h was t h e r e s u l t of one o r a s e r i e s of s e v e r e
blows, w i t h t h e a r e a of i n i t i a l b l e e d i n g being subsequently
aggravated and e n l a r g e d by o t h e r s e v e r e blows t o t h e head.
        I n f u r t h e r testimony, D r . P f a f f s t a t e d t h e autopsy examina-
t i o n revealed additional multiple i n j u r i e s .                         While t h e s e i n j u r i e s
were n o t d i r e c t l y r e l a t e d t o t h e cause of d e a t h , t h e y d i d tend t o
c o r r o b o r a t e t h e testimony of Mrs. Taylor and t h e H y a t t s a s t o
r e p e a t e d s e v e r e d i s c i p l i n i n g s of t h e c h i l d .     These i n j u r i e s i n -
cluded m u l t i p l e b r u i s e s and a b r a s i o n s of t h e f a c e and neck a r e a s ;
m u l t i p l e b r u i s e s on b o t h arms and l e g s ; r a t h e r l a r g e b r u i s e s on
b o t h upper l e g s and t h e a r e a of t h e t h i g h s ; and, a t l e a s t two a r e a s
of hemorrhage i n t h e abdomen r e s u l t i n g from s e v e r e b l u n t f o r c e
impacts.         The m a j o r i t y of t h e s e i n j u r i e s had been i n f l i c t e d from
t h r e e t o f o u r t e e n days p r i o r t o t h e c h i l d ' s d e a t h .
        D r . McKenzie t e s t i f i e d he t r e a t e d t h e c h i l d on December 3 ,
1971, and t h a t he examined h e r a g a i n on December 9, 1971, a t which
time he n o t i c e d head and f a c e i n j u r i e s which would be c l a s s i f i e d
a s c o n t u s i o n s and a b r a s i o n s .     He a l s o t e s t i f i e d t h a t his examina-
t i o n of December 9 would have r e v e a l e d a massive s u b d u r a l hematoma,
b u t he a s c e r t a i n e d none.         However, he d i d i n d i c a t e t h a t h i s examina
t i o n would n o t have r e v e a l e d t h a t a b l e e d i n g p r o c e s s , which could
end i n a massive subdural hematoma, had begun,
        Mrs. Taylor t e s t i f i e d t h a t following Vicky's d e a t h defendant
g a t h e r e d up t h e c h i l d ' s c l o t h e s and f o r c e d h e r t o go w i t h him t o
t h e dump where he d i s c a r d e d t h e bloody c l o t h e s , a f t e r g i v i n g a
f a l s e name t o t h e p r o p r i e t o r of t h e dump.                  Defendant, on t h e o t h e r
hand, t e s t i f i e d i t was Mrs. Taylor who picked up t h e c l o t h e s , and
t h a t he took them t o t h e dump and gave a f a l s e name and a d d r e s s
t h e r e t o p r o t e c t h i s wife.
        F i n a l l y , t h e r e was testimony by d e f e n d a n t ' s c e l l mate t h a t
defendant had t o l d him he spanked t h e c h i l d w i t h a b e l t and h i t
h e r w i t h a b e l t , because s h e was a s p o i l e d b r a t .                 He a l s o t e s t i f i e d
defendant had s a i d he d i d n o t r e a l l y mean t o h u r t h e r , h e was j u s t
trying t o correct her.
     At the close of the evidence, the district court refused
defendant's offered instructions on voluntary and involuntary
manslaughter.     It also refused defendant's request for change in
the general cautionary instruction regarding the credibility of
witnesses which would have specifically instructed the jury to
consider prior inconsistent statements as possibly repelling the
presumption that each witness spoke true.     Over defendant ' s
objection, the court gave two instructions regarding the burden
of proof to the effect that the State had only to prove guilt
beyond a reasonable doubt.
     On appeal, defendant raises numerous issues for review
which we shall consider in this order:
        (1) That the district court erred in refusing defendant's
offered instructions on voluntary and involuntary manslaughter.
        (2)   That it was error to allow defendant's wife to testify
over his objection.
        (3)   Corpus delecti was not established beyond a reasonable
doubt   .
        (4)   That it was error to admit over objection testimony
"considering the possibility of Battered Child ~yndrome".
        (5)   That testimony as to other injuries was improper.
        (6)   That the jury was not properly instructed regarding
prior inconsistent statements.
        (7) That it was error to qualify the State's burden of proof
with the word "only" in two of the court's instructions.
        Since only the failure to give the requested manslaughter
instructions requires reversal and a new trial, we will consider
issue ( ) and then deal with the other issues only as their
       I,
resolution bears on a new trial.
     In justifying the district court's refusal of defendant's
offered instructions on manslaughter, the State argues essentially
two things.      First, that once the commission of the homicide by the
defendant is shown the burden of proving circumstances of mitigation
devolves on the defendant and since in this case defendant denied
the doing of the acts causing death, rather than showing circum-
stances of mitigation, he failed to meet this burden and was not
entitled to instructions on manslaughter.      Second, the jury had
the choice of believing either all the testimony of Mrs. Taylor or all
the testimony of Mr. Taylor, and since the jury convicted Mr.
Taylor it obviousiy believed Mrs. Taylor, whose testimony was
sufficient to support a conviction for second degree murder.
       The central proposition of the State's first argument is
specifically established by section 94-7212, R.C.M. 1947, which
provides :
       "Upon a trial for murder, the commission of the
       homicide by the defendant being proved, the burden
       of proving circumstances of mitigation, or that
       justify or excuse it, devolves upon him, unless the
       proof on the part of the prosecution tends to show
       that the crime committed only amounts to manslaughter,
       or that the defendant was justifiable or excusable. ' 1
It is immediately apparent from a consideration of section
94-7212, that there is an exception to the burden placed on a
defendant of coming forward with evidence of mitigation, after
proof of the commission of a homicide.    This exception is appli-
cable to those situations in which the proof relied on by the
prosecution to establish guilt also tends to show circumstances
of mitigation.    This exception is well established in ~ontana's
case law.    State v. Rivers, 133 Mont. 129, 133, 320 P.2d 1004,
describes it thusly:
       "Still there is an exception or modification to this
       general rule, most explicit in our Montana law. It
       is that such a presumption of malice does not exist
       in the face of evidence tending to show that the acts
       of the defendant amount only to manslaughter. I I
As in Rivers, this rule is most important in the instant case.
       At trial, the state's principal witness, Mrs. Taylor, testi-
fied that defendant "never really intentionally meant to hurt
her.    It was his way of disciplining her."   With regard to specific
incidents, she testified that defendant's acts in striking the
child were, with one exception, for purposes of discipline.
Similarly the ~yatts'testimony, who were also state's witnesses,
was to the effect that defendant's striking of the child was punish-
ment f o r v a r i o u s misdeeds.          Even t h e admissions of t h e defendant,
a s r e l a t e d by h i s former c e l l mate, were t o t h e e f f e c t t h a t de-
fendant s t r u c k t h e c h i l d a s a punishment f o r being "spoiled",
b u t he had n o t meant t o h u r t h e r .
        From t h e s e f a c t s a t t e s t e d t o by t h e S t a t e ' s own w i t n e s s e s , t h e
i n f e r e n c e could have been drawn by t h e j u r y t h a t defendant i n f l i c t e d
the f a t a l i n j u r i e s while disciplining the child.                   I f the jury
reached t h i s conclusion under proper i n s t r u c t i o n s , i t could then
have concluded t h a t t h e           death      occurred a s t h e r e s u l t of t h e
doing of a l a w f u l a c t , t h e d i s c i p l i n i n g of a c h i l d permitted by
s e c t i o n 94-605(4), R.C.M.          1947, i n an unlawful manner o r without
due c a u t i o n o r circumspection.
        A p r o p e r l y i n s t r u c t e d j u r y could f i n d i n v o l u n t a r y manslaughter
under t h e p r o v i s i o n s of s e c t i o n 94-2507, R.C.M.           1947:
        "Manslaughter i s t h e unlawful k i l l i n g of a human
        b e i n g , without malice. It i s of two kinds:


                  " (2) I n v o l u n t a r y , i n t h e commission of a n
        unlawful a c t , n o t amounting t o f e l o n y ; o r i n t h e
        commission of a l a w f u l a c t which might produce
        d e a t h , i n an unlawful manner, o r w i t h o u t due
        c a u t i o n o r circumspection. I I
        Mrs. Taylor t e s t i f i e d t o one i n s t a n c e where defendant became
angry w i t h t h e c h i l d and slapped h e r hard enough t o knock h e r
down.      This i n c i d e n t occurred n e a r t h e c r i t i c a l time e s t a b l i s h e d
by t h e medical testimony f o r t h e i n f l i c t i o n of t h e i n i t i a l i n j u r y
causing the c h i l d ' s death.            I f t h e j u r y b e l i e v e d i t was t h i s
i n c i d e n t which    l e d t o t h e o n s e t of t h e hematoma, i t could have
found t h a t t h e d e a t h was t h e r e s u l t of "a sudden q u a r r e l o r h e a t
of passion" and found defendant g u i l t y of v o l u n t a r y manslaughter
under t h e p r o v i s i o n s of s e c t i o n 94-2507(1), R.C.M.             1947.
        F u r t h e r , t h e r e was testimony by M r s . Taylor t h a t defendant
played w i t h t h e c h i l d , k i s s e d h e r , o f t e n gave h e r t r e a t s of cookies
and would look i n on h e r a t n i g h t t o s e e i f s h e was covered,
The H y a t t s a l s o t e s t i f i e d t o d i s p l a y s of a f f e c t i o n by defendant
t o the child.          This testimony tends t o put i n i s s u e t h e q u e s t i o n
of malice.    In State v. Thomas, 147 Mont. 325, 331, 332, 413 P.2d
315, this Court observed that testimony by the defendant stating
affection and lack of ill feeling toward the deceased was suffi-
cient to put in issue the question of malice by tending to "'elim-
inate' or 1 negative' the presence of malice".    Also in Rivers,
testimony relating to the defendant's treatment of the deceased
was held to show a lack of malice.
     While the district court may have considered the evidence
in support of manslaughter weak and inconclusive, still it was
bound to instruct the jury on manslaughter since the weight to
be given the evidence is a question for the jury.      Section 95-
1901(b),   R.C.M. 1947, provides:
      "Questions of law shall be decided by the court,
      and questions of fact by the jury *   *."
Since the weight to be given testimony is in essence a question
of fact, it follows that the court should have allowed the jury
to resolve it by instructing the jury as to manslaughter.
      The conclusion that the district court erred in refusing the
offered manslaughter instructions is reenforced by this Court's
observations in Thomas, where it stated:
      "It is a fundamental rule that the court's instruc-
      tions should cover every issue or theory having
      support in the evidence. I'
The Court then, in Thomas, applied this general rule to homicide
cases :
      "'Any evidence, however slight, which shows that the
      homicide was committed under such circumstances as
      to eliminate the element of malice, requires a charge
      on the law of manslaughter. 1 I t
      In view of the foregoing, the State's second argument justifying
the refusal of the offered manslaughter instructions can be dealt
with in a more summary fashion.     It is premised on the assertion
that the jury had the choice of believing all of Mrs. Taylor ' s
testimony or all of Mr. Taylor's testimony.      That premise is in-
correct.   A jury is not obligated to believe all of any witness's
testimony. This Court in State v. Le Duc, 89 Mont. 545, 562, 300
P. 919, said the jury is:
    '* * * at liberty to believe all, a part of, or
     I
    none of the testimony of any witness. II
    Accordingly, even if the jury rejected all of defendant's
testimony, it was still at liberty to believe only parts of Mrs.
~aylor'stestimony. With the right to reject any part of Mrs.
~aylor's testimony, a properly instructed jury could have found
that defendant struck the blow causing the fatal bleeding while
disciplining the child and returned a verdict of involuntary man-
slaughter, or that the blow which caused the fatal bleeding was
struck by defendant in sudden anger and returned a verdict of
voluntary manslaughter.
     To the second part of the state's argument--that the conviction
should stand because Mrs. Taylor's testimony was sufficient to
support a conviction for second degree murder--we merely observe
that while this may be so, it is not enough.     Mrs. ~aylor's
testimony also supports a manslaughter theory, thus requiring in-
structions on manslaughter.     State v. Thomas, supra.
     Since the evidence could be interpreted to support a finding
that the killing was done without malice in the course of doing
a lawful act without due circumspection; was done without malice
in the doing of an unlawful act not amounting to a felony; or,
was done without malice on a sudden passion; the failure to in-
struct the jury as to manslaughter requires reversal of this cause
for new trial with a jury properly instructed.
     This cause will be tried again so we will consider defendant's
other specifications of error as they bear on a new trial.       Chief
among those specifications of error is the denial of defendant's
claim of marital privilege against the admission of his wife's
testimony. We find this specification of error to be without merit.
     Defendant's contention is that his wife, Linda Taylor, could
not testify against him over his objection.     In support of his
claim of marital privilege, defendant cites sections 93-701-4(1)
and 94-8802, R.C.M. 1947.     Section 93-701-4(1),   provides:
     II
      There are particular relations in which it is the
     policy of the law to encourage confidence and to
     preserve it inviolate; therefore, a person cannot be
       examined a s a witness i n t h e following c a s e s :

          (1). A husband cannot be examined f o r o r a g a i n s t
       h i s w i f e without h e r consent; nor a w i f e f o r o r
       a g a i n s t h e r husband without h i s consent; nor can
       e i t h e r , during t h e marriage o r afterward, be, without
       t h e consent of t h e o t h e r , examined a s t o any communi-
       c a t i o n made by one t o t h e o t h e r during t h e marriage;
       b u t t h i s exception does n o t apply t o a c i v i l a c t i o n
       o r proceeding by one a g a i n s t t h e o t h e r , nor t o a
       c r i m i n a l a c t i o n o r proceeding f o r a crime committed
       by one a g a i n s t t h e o t h e r . 11
       Section 94-8802, R.C.M.              1947, provides:
       "Except with t h e consent of both, o r i n cases of
       c r i m i n a l violence upon one by t h e o t h e r , o r i n c a s e
       of abandonment, o r n e g l e c t of c h i l d r e n by e i t h e r
       p a r t y , o r of abandonment o r n e g l e c t of t h e wife by
       t h e husband, n e i t h e r husband nor wife i s a competent
       witness f o r o r a g a i n s t t h e o t h e r i n a criminal a c t i o n
       o r proceeding t o which one o r both a r e p a r t i e s . 11
       While both t h e S t a t e and defendant t r e a t each of t h e s e
s e c t i o n s a s a p p l i c a b l e t o t h i s case, we f i n d t h a t only s e c t i o n
94-8802, R.C.M.         1947, need be considered on these f a c t s .                     Section
93-701-4(1),       R.C.M.     1947, a r u l e of evidence f o r c i v i l causes,
i s a p p l i c a b l e t o c r i m i n a l causes only through t h e operation of
s e c t i o n 94-7209, R.C.M.        1947, which provides:
       "The r u l e s of evidence i n c i v i l a c t i o n s a r e
       a p p l i c a b l e a l s o t o criminal a c t i o n s , except a s
       otherwise provided i n t h i s code. 11
I n t h e i n s t a n t c a s e , defendant and t h e witness a r e s t i l l husband
and wife.       Since " t h i s code" has f u l l y provided i n s e c t i o n 94-
8802, R.C.M.       1947, f o r t h e admission o r exclusion of testimony
of persons who a r e s t i l l husband and w i f e , i t i s apparent t h a t
i t has been "otherwise provided" w i t h i n t h e meaning of s e c t i o n
94-7209, R.C.M.         1947, excluding t h e a p p l i c a b i l i t y of s e c t i o n 93-
701-4(1), R.C.M.          1947, t o t h i s f a c t s i t u a t i o n .
       The S t a t e argues t h a t Mrs. ~ a y l o r ' stestimony i s admissible
a g a i n s t h e r defendant husband on a number of bases, including
assertions:        t h a t a w i f e can t e s t i f y a s t o t h e a c t s a s d i s t i n g u i s h e d
from t h e communications of h e r husband ; t h a t a crime a g a i n s t t h e
w i f e ' s c h i l d i s a crime a g a i n s t t h e wife f o r purposes of t h e
exception t o t h e s t a t u t e allowing a spouse t o t e s t i f y i n c a s e s
involving c r i m i n a l violence by one spouse a g a i n s t t h e o t h e r ; and,
t h a t t h e w i f e ' s testimony i s a d m i s s i b l e under t h e exception
t o t h e s t a t u t e allowing one spouse t o t e s t i f y a g a i n s t t h e o t h e r
i n c a s e s i n v o l v i n g "abandonment o r n e g l e c t of c h i l d r e n " .            We
do n o t comment on t h e v a l i d i t y of t h e f i r s t two grounds urged
by t h e S t a t e s i n c e we f i n d t h i s c a s e s q u a r e l y w i t h i n t h e
e x p l i c i t e x c e p t i o n t o t h e s t a t u t e a l l o w i n g one spouse t o t e s t i f y
a g a i n s t t h e o t h e r i n c a s e s of abandonment o r n e g l e c t of c h i l d r e n .
                                                                                            1I
         Defendant claims t h a t f o r a d e f i n i t i o n of t h e term                      neglect"
used i n framing t h e e x c e p t i o n we must r e l y on s e c t i o n 19-103(16),
R.C.M.      1947, which d e f i n e s n e g l e c t a s :
         It* ** a want of such a t t e n t i o n t o t h e n a t u r e o r
         probable consequences of t h e a c t o r omission a s
         a prudent man o r d i n a r i l y bestows i n a c t i n g i n h i s
         own concerns. 11
From t h i s d e f i n i t i o n defendant then a r g u e s t h a t t h e exception
cannot be a p p l i e d t o a l l o w testimony when t h e charge i s murder,
s i n c e murder r e q u i r e s an i n t e n t which denotes a w i l l f u l n e s s i n -
c o n s i s t e n t w i t h negligence.           This p o s i t i o n i s untenable.
         While d e f e n d a n t ' s statement o f t h e s t a t u t o r y d e f i n i t i o n of
n e g l e c t i s c o r r e c t , i t i s incomplete i n t h a t s e c t i o n 19-103, R ,
C.M.     1947, a l s o provides t h a t t h i s d e f i n i t i o n s h a l l a p p l y only
II
 u n l e s s otherwise a p p a r e n t from t h e c o n t e x t . "          In t h i s case the
c o n t e x t i s t h e s t a t u t e , t h e purpose of which i s t h e p r o t e c t i o n
of t h e s a n c t i t y of marriage and t h e home.                   W f e e l t h a t t h e pur-
                                                                        e
pose of t h e e x c e p t i o n s t o t h i s s t a t u t e i s a l s o p r o t e c t i v e .         In
t h e c a s e of t h e exception r e l a t e d t o t h e n e g l e c t of c h i l d r e n ,
t h e purpose i s p r o t e c t i o n of c h i l d r e n from abuse which could o t h e r -
wise b e p r a c t i c e d without f e a r of r e t r i b u t i o n under p r o t e c t i o n
of t h e m a r i t a l p r i v i l e g e .
         I f dekendant ' s c o n s t r u c t i o n of t h i s p r o t e c t i v e e x c e p t i o n i s

adopted, t h e p r o t e c t i o n would extend t o i n j u r i e s n e g l i g e n t l y i n -
f l i c t e d b u t n o t w i l l f u l a s s a u l t , t o a n e g l i g e n t homicide b u t n o t
t o premeditated murder.                     Such a c o n s t r u c t i o n i s c l e a r l y t o o narrow,
o u t r a g i n g both r e a s o n and j u s t i c e .       I n t h i s context a broader
d e f i n i t i o n of n e g l e c t i s r e q u i r e d than t h a t o f f e r e d by s e c t i o n
19-103, R.C.M.           1947.       For t h e purposes of t h i s exception, we
hold t h a t t h e term "neglect" i n c l u d e s any abuse of c h i l d r e n
whether i n f l i c t e d n e g l i g e n t l y o r i n t e n t i o n a l l y .   I n adopting t h i s
cot~structionwe a r e s a t i s f i e d t h a t we r e a c h a r e s u l t which i s
r e q u i r e d by both reason and j u s t i c e and which i s w i t h i n t h e
contemplation of t h e l e g i s l a t u r e a t t h e time i t enacted s e c t i o n
94-8802, R.C.M.            1947.
        Under t h i s c o n s t r u c t i o n of t h e m a r i t a l p r i v i l e g e s t a t u t e s ,
M r s . T a y l o r ' s testimony w i l l be p r o p e r l y a d m i s s i b l e on r e t r i a l .
I t should be noted t h a t i n view of our d i s c u s s i o n of i s s u e ( I ) , on

r e t r i a l of t h i s m a t t e r t h e j u r y w i l l b e i n s t r u c t e d a s t o manslaugh-
t e r t h u s r a i s i n g t h e i s s u e of negligence and making M r s . ~ a y l o r ' s
testimony a d m i s s i b l e even under d e f e n d a n t ' s c o n s t r u c t i o n of t h i s
exception.
        Considering d e f e n d a n t ' s t h i r d s p e c i f i c a t i o n of e r r o r - - t h a t
t h e S t a t e f a i l e d t o e s t a b l i s h corpus d e l e c t i s u f f i c i e n t t o
support a c o n v i c t i o n of murder--it                i s s u f f i c i e n t a t t h i s time
merely t o observe t h a t of t h e showings r e q u i r e d by s e c t i o n 94-
2510, R.C.M.          1947, t h e r e i s no d i s p u t e a s t o t h e c h i l d ' s d e a t h
and t h e r e was s u f f i c i e n t c r e d i b l e evidence t o support t h e j u r y ' s
f i n d i n g t h a t defendant was r e s p o n s i b l e beyond a r e a s o n a b l e doubt.
Nothing more i s r e q u i r e d .           S t a t e v. Medicine B u l l , Jr., 152 Mont.
34, 445 P.2d 916; S t a t e v. Bosch, 125 Mont. 566, 242 P.2d 477.
        Defendant's f o u r t h and f i f t h s p e c i f i c a t i o n s of e r r o r q u e s t i o n
t h e p r o p r i e t y of allowing c e r t a i n testimony.                 Itlhile d e f e n d a n t ' s
p o i n t t h a t testimony a s t o f ' p o s s i b i l i t i e sI'     11
                                                                          w i l l n o t w i t h o u t more,
supply evidence" (LaForest v. Safeway S t o r e s , I n c . ,                          147 Mont. 431,
414 P.2d 200) i s w e l l t a k e n , i t i s n o t a p p l i c a b l e t o t h i s c a s e .
The d o c t o r was n o t asked i f t h e r e was a p o s s i b l i t y of B a t t e r e d
Child Syndrome, b u t r a t h e r , i f he had considered t h e p o s s i b i l i t y
of B a t t e r e d Child Syndrome.               A f t e r he answered t h a t q u e s t i o n i n t h e
a f f i r m a t i v e , he went on t o d e s c r i b e such of h i s f i n d i n g s a s sup-
ported t h e conclusion t h a t t h e B a t t e r e d Child Syndrome was p r e s e n t .
This further testimony takes the doctor's consideration out of the
realm of mere possibility and makes it fully admissible as expert
testimony.
      Defendant also claims it was error for the court to allow
testimony concerning injuries which were not specifically related
to the cause of death.      This testimony was clearly admissible on
the first trial of this action, since one of the offenses charged
was murder by torture and the condition of the body was evidence
from the the jury could have inferred the essential element of
intent to inflict cruel suffering.      People v. Lawhon, 33 Cal.Rptr.
718, 723, 220 C.A.2d 311. We feel the testimony will also be
admissible on retrial of this cause on the alternative ground of
showing a common scheme, plan, or design to inflict injury on the
child.      While the general rule is that evidence of other offenses
           other similar acts at other times    inadmissible for the
purpose of showing the commission of the particular crime charged,
there are certain well established exceptions.      State v. Tiedemann,
139 Mont. 237, 362 P.2d 529; State v. Jensen, 153 Mont. 233, 238,
455 P.2d 63.      These exceptions are summarized in Jensen:
      11
       There are recognized exceptions to this general
      rule: similar acts with the same prosecuting
      witness, State v. Sauter, 125 Mont. 109, 232 P.2d
      731 (1951); similar acts not too remote in time,
      State v. Nicks, supra; and 'where the evidence of
      other crimes tends to establish a common scheme,
      plan or system and where such other crimes are
      similar to, closely connected with and not too re-
      mote from the one charged, and also where they are so
      that proof of one tends to establish the other.'
      State v. Merritt, 138 Mont. 546, 357 P.2d 683 (1960);
      State v. Gransberry, 140 Mont. 70, 367 P.2d 766 (1962)."
      Having established the exceptions, Jensen goes on to set
out a three part test to guide the determination of what other
acts can be admitted under the exceptions.      The elements of the
Jensen test are: "similarity of crimes or acts, nearness in time,
and tendency to establish a common scheme, or plan or system. I1
In Jensen a pattern of behavior is held to be a "common scheme or
plan. 11
        In the instant case, the testimony objected to went not
directly to the acts of the defendant but rather to injuries
from which acts could be inferred and which were corroborative
of acts by the defendant testified to by other witnesses.       These
we hold are also admissible under the Jensen exceptions, if
they meet the criteria of Jensen and can be related to defendant's
acts.        In this case, the criteria of Jensen are met in that:
(1) Various beatings all administered to the same child are
similar acts; (2) injuries inflicted within 21 days of death
satisfy the requirement of nearness in time; and (3) by showing
a continuous pattern of behavior toward the child there appears
a common scheme or plan within the meaning of the exception.
These injuries were sufficiently related to defendant by the
testimony of other witnesses regarding the severe beatings ad-
ministered by defendant to the child during the final 21 days
of her life.
     ~efendant's final specifications of error relate to certain
instructions given by the court.       The court gave the general
cautionary instruction on duties of the jury, No. 1.02C, Montana
Jury Instruction Guide Criminal.       In giving this instruction
the court refused a request by defendant to specifically include
in the instruction prior inconcistent statements as one of the
factors which the jury should consider as possibly repelling
the presumption that a witness speaks the truth.       It is defendant's
claim that the court erred in refusing to so specifically instruct
the jury.        Section 93-1901-12, R.C.M. 1947, specifically provides:
        1'
      A witness may also be impeached by evidence that
     he has made, at other times, statements inconsistent
     with his present testimony * * * . I '
        Clearly, such an instruction would have been proper and in a
case, such as this, where the State's principal witness had ad-
mittedly made a number of prior inconsistent statements, it would
seem particularly appropriate. The giving of the instruction
with the defendant's requested inclusion regarding prior inconsis-
tent statements would better accord with the accepted principle of
    f u l l y and c l e a r l y i n s t r u c t i n g t h e j u r y a s t o t h e s p e c i f i c s of
     t h e law a p p l i c a b l e t o t h e c a s e .
            Defendant a l s o o b j e c t s t o t h e u s e of t h e word "only1' i n
    c e r t a i n of t h e c o u r t ' s i n s t r u c t i o n s r e l a t i n g t o t h e S t a t e ' s burden
    of proof and quantum of proof r e q u i r e d t o show proof beyond a
    r e a s o n a b l e doubt.     W agree with defendant's contention t h a t
                                    e
    d e s c r i b i n g t h e s t a t e ' s burden a s "only t h a t d e g r e e of proof1',
    and proof beyond a r e a s o n a b l e doubt a s "only such proof a s may"
    c o u l d t e n d t o confuse a j u r y composed of laymen and i n e f f e c t
    d i l u t e t h e degree of g u i l t and proof t h e S t a t e i s bound t o
    establish.          The u s e of t h e l i m i t i n g word "only" i s n o t n e c e s s a r y
    t o c l e a r l y and f u l l y d e s c r i b e t h e burden and should n o t be i n -
    cluded i n t h e i n s t r u c t i o n s on r e t r i a l .
            The judgment i s r e v e r s e d and t h e c a u s e remanded t o t h e d i s t r i c t
    c o u r t f o r f u r t h e r proceedings n o t i n c o n s i s t e n t w i t h t h i s o p i n i o n .




                                                            Justice
                                                                              .
                                                                              , *,




/ I      Chief J u s t i c e




    ,/'\ Justices.           I
/
1   M r \ J u s t i c e Gene B. Daly, deeming himself d i s q u a l i f i e d , took


'i
,   no {{parti n t h i s opinion.
