                                No. 13550
               IN THE SUPREME COURT OF THE STATE OF MONTANA




STATE OF MONTANA,
                        Plaintiff and Respondent,


L. R. BRETZ AND MERREL J. CLINE,
                        Defendants and Appellants.


Appeal from:     District Court of the Third Judicial District,
                 Honorable Jack Green, Judge presiding.
Counsel of Record:
     For Appellants:
          Frank B. Morrison, Sr. argued, Whitefish, Montana
          Donald E. Hedman argued, Whitefish, Montana
          Richard Anderson argued, Billings, Montana
     For Respondent:

          Hon. Mike Greely, Attorney General, Helena, Montana
          Robert Keller, Special Assistant Attorney General,
           argued, Kalispell, Montana
          James Masar, County Attorney, Deer Lodge, Montana


                                   Submitted:   June 16, 1978
                                     Decided:FEB   -51
                                                     m
Filed: F.EB   -- 5 1E
                    9
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.

     Defendants L. R. Bretz and Merrel J. Cline each appeal
from judgments of conviction against them on June 18, 1976,
based on verdicts of guilty for certain criminal offenses
after jury trial.
     On August 27, 1975, L. R. Bretz and Merrel J. Cline
were charged in a five-count information with criminal acts
alleged to have occurred while the two were serving time on
prior convictions within the prison at Deer Lodge.   The
original information charged conspiracy and solicitation to
assassinate the then attorney general, Robert L. Woodahl and
his special assistant, Richard Dzivi.
     After the original information was filed, both defendants
were transferred to the Missoula County jail to await trial
on the assassination charges.   While in the Missoula County
jail, Bretz and Cline were alleged to have committed certain
acts which resulted in the filing of an amended information
in Powell County District Court, adding five new counts.
The new counts again charged conspiracy and solicitation
against defendants, alleging efforts on the part of defendants
to secure perjured testimony from two Missoula County jail
inmates, Walter Lee Fox and John Eugene Hendricks, regarding
the character of prosecution witnesses in the original
conspiracy and assassination counts.
     The District Court granted defendants' motion for a
change of venue as to the last five counts from Deer Lodge
County to Missoula County.   The State appealed and the grant
of change of venue was reversed by this Court in a divided
opinion.   (State v. Bretz and Cline (1976), 169 Mont. 505,
548 P.2d 949.)
     The case was tried before a jury in Powell County and
verdicts were returned.   Defendant Bretz was found guilty on
count VI, conspiracy to commit the crime of perjury by
encouraging Walter Lee Fox and John Eugene Hendricks to make
false statements under oath; count VII, solicitation of
Walter Lee Fox to commit the crime of perjury; count IX,
tampering with witnesses by attempting to induce John Eugene
Hendricks and Walter Lee Fox to testify falsely during the
trial of the case; and count X I fabricating physical evidence,
relating to statements of Walter Lee Fox and John Eugene
Hendricks, for the purpose of discrediting the credibility
of Jack LaMere as a witness in the case.    Defendant Bretz
was found not guilty on all other counts.
       Defendant Cline was found guilty of count VI and was
found not guilty on all other counts.
       Thus all the counts upon which convictions were obtained
relate to actions alleged to have occurred in Missoula
County, and not in Powell County, the place of trial.
       After the jury verdicts, judgments were entered against
each of the defendants.    Cline was sentenced to six years in
prison.    Bretz was sentenced to a six-year term on his
conviction under count VI; imposition of sentence on his
convictions on the other counts was deferred.    Both defendants
were then serving prison terms for prior convictions and
these sentences were imposed to run consecutively to those
received for the prior convictions.     This Court ultimately
reversed Cline's prior conviction, and affirmed Bretz's, in
State v. Cline and Bretz (1976), 170 Mont. 520, 555 P.2d
724.     Appeals were duly taken by both defendants to this
Court.
       Out of the welter of issues raised by appellants in
this Court, we find merit in two and reverse the convictions
on those grounds.
     The first issue relates to the amendment by the trial
judge, while the jury was deliberating, of instruction No.
6.   It was given without objection by either defendants or
the State and in part instructed the jury:
     "Said defendants are also charged in the
     same information with the following crimes
     alleged to have committed in Missoula
     County, Montana, between August 25, 1975,
     and October 22, 1975:
     "Count Six: Conspiracy to commit the
     crime of perjury by encouraging Walter
             -
     Lee Foxand John Eugene Hendricks to make
     false statements under oath or equivalent
     affirmation." (Emphasis supplied.)
      (The other counts were also charged conjointly.)
     The jury deliberated for two days after the case was
submitted to it, and on the second day, before the jury had
arrived at a verdict, the court informed counsel that the
preceeding evening, a Friday night, the bailiff had
received a question from the jury as to the interpretation
of instruction No. 6.    The transcript reveals that the
court advised the parties respecting the amendments on
the following morning as follows:
     "THE COURT: I wish to advise counsel
     that last night, that would be Friday
     night, the bailiff had a question from
     the jury as to the interpretation
     of instruction no. 6, where the word
     'and' was used between Fox and Hendricks.
     I advised the jury in connection to
     those paragraphs, starting with no. 6,
     that it should be amended to read 'or',
     does the State have any objections
     with that?
     "MR. GILBERT:    No objections.
     "THE COURT: Does the defendant Bretz
     have any objection?
     "MR. TRIEWEILER:   No objections.
     "MR. MATTHEWS:   No objection."
     Both Bretz and Cline contend that the court's action in
amending instruction No. 6 constituted an amendment of the
information under which the defendants were charged, that
the amendment was material and substantially prejudiced the
rights of the defendants.
     The State contends that the amendment did not con-
stitute a change of the offense charged; that had the State
moved to amend the information at that time, the motion
would undoubtedly have been granted; and that the defendants
were each fully prepared to defend as to Walter Lee Fox -
                                                        or
John Eugene Hendricks so the change did not increase or
lessen the defense burden.
     The State contends that the recitation by the court
to counsel later about the amendment was also without objection.
The State however, concedes this is raising a technicality
to meet a technicality, and that the real concern facing
this Court is whether or not the amendment was one of
substance.
     The statute which mandates procedure when the jury is
deliberating in such cases is section 95-1913(d), R.C.M.
1947. It states:
     " (d) After Retirement, May Return into Court
     for Information. After the jury has retired
     for deliberation, if there be any disagreement
     among them as to the testimony, or if they
     desire to be informed on any point of law
     arising in the cause, they must require the
     officer to conduct them into court. Upon
     being brought into court, the information
     requested may be given in the discretion
     of the court; if such information is given
     it must be given in the presence of the
     county attorney and the defendant and his
     counsel. "
     Obviously the statute was not followed in this case.
     In State v. Herron (1975), 169 Mont. 193, 198, 545 P.2d
678, we held that as a general rule additional instructions
to the jury must comply with the law and failure to follow
the law constitutes reversible error.   The instruction as
amended constituted a substantial departure from the crime
that had been charged.   The information and the instructions
as argued by counsel by both defendants had required proof
of the involvement of Hendricks - Fox.
                                and          Hendricks did not
testify.    The jury was obviously at sea with respect to the
use of the conjunctive and so asked further instructions.
When the court communicated to the jury neither counsel for
the State nor the defendants were present.    The amendment of
the instruction permitted the jury to convict the defendants
if they found that one only of the two persons named were
involved.   Thus, a material variance occurred which requires
reversal.
     The second issue on which we reverse brings us back to
the question of venue of counts VI through X of the amended
information, all of which were alleged to have occurred in
Missoula County.
     In the prior decision of this Court, with respect to
the venue question (169 Mont. 505, 548 P.2d 949), the
majority felt that the additional counts arising out of the
alleged acts in Missoula County could not stand independently
of the alleged acts in Powell County and therefore that
venue in Powell County must be sustained since the first
information was filed there.   The anomaly now is that as a
result of the acquittals, the convictions relate     only to
alleged acts in Missoula County, and on retrial would concern
only allegations arising out of Missoula County.
     In State v. Zimrnerman (1977),       Mont   .       ,   573
P.2d 174, 34 St.Rep. 1561, we held that an earlier erroneous
decision of this Court is not necessarily binding as the law
of the case in a subsequent appeal.    The exception to the
general rule of law of the case arises where the cause on
appeal must be remanded to the District Court for further
proceedings because of reversal on an unrelated issue.    When
that occurs, this Court may correct "a manifest error in its
former opinion" and announce a different ruling to be applied
prospectively to the future proceedings in the case.
(573 P.2d 178, 34 St.Rep. 1566).   We also noted that
the exception is more readily applied where the prior
decision is by a divided court.    Perkins v. Kramer (1948),
121 Mont. 595, 198 P.2d 475.    We hold therefore that, especially
in the light of subsequent events, the decision respecting
venue in our prior opinion is in fact erroneous, and now
this cause fits within the general exception to the rule on
law of the case; that is, we find that the proper venue for
this cause is in the District Court in Missoula County.
     Defendants raised a number of other issues on their
appeals, but there is no need for this Court now to examine
those issues critically because of our decision here.
Essentially those issues relate to the sufficiency of the
evidence to support the convictions which were obtained, or
to whether the testimony of an accomplice had been cor-
roborated. Since the counts upon which convictions were
obtained must now be retried, it would be bootless to search
the more than three thousand pages of transcript to determine
whether the corroborating evidence was sufficient under
State v. Cobb (1926), 76 Mont. 89, 92, 245 P. 265, or whether
otherwise the evidence was sufficient to sustain the con-
victions.
     On one issue, raised by defendant Cline, however, we do
wish to make comment.   He contends that the District Court
erred in denying his motion for a separate trial from his
codefendant Bretz.   He points out that the defendant Bretz
                          -7-
exercised the right of peremptory disqualification of the
trial judge, and when the second judge assumed jurisdiction,
Cline had no similar right to disqualify that judge, because
under section 95-1709, R.C.M. 1947, defendants may not
peremptorily disqualify more than one judge.   Cline contends
that because Bretz exercised the disqualification first, he
was not given a like opportunity and therefore was not
accorded equal protection of the law under 1972 Mont. Const.
Art. 11, S4.
     This contention is now moot because under the order of
this Court dated December 26, 1976, entitled Disqualification
and substitution of judges (34 St.Rep. 26), each defendant
in a criminal proceedings is now entitled to one substitution
of a judge.    Section 95-1709,R.C.M. 1947, has been superseded
by this order.
     The convictions of each of the defendants are vacated
and the cause is remanded to the District Court for further
proceedings in accordance with this opinion.



                                        Justice

We Concur:




             Justices

.............................
 Hon. LeRoy L. McKinnon,
 District Court Judge, sitting
 in for Mr. Justice Daniel J.
 Shea
STATE   -VS-   BRETZ   &   CLINE


               I respectfully dissent from the foregoing opinion.
             The majority opinion has found merit in two of the
issues raised on appeal.            The first of said issues relates to
a charge in the information, and to instruction number 6,
covering said charge.
             The charges:          "Count Six: Conspiracy to commit the
crime of perjury by encouraging Walter Lee Fox and John Eugene
Hendricks to make false statements under oath or equivalent
affirmation", emphasis added.
             No proof was offered as to John Eugene Hendricks.
No motion was made to conform the pleading to the proof.
Instruction number six used the same conjunctive form "and",
and was given without objection.
             Looking back it would seem that the charge should
have used the "and/oru form, a motion to conform should have
been made, and the instruction should have been worded in the
singular.
             The ultimate fact is that when the prosecution rested,
the defendants knew that the part of the charge pertaining to
Hendricks was dropped, and that they need not defend against it.
This in no way changed the burden of defense unless to lighten
it slightly, and certainly the defendants were in no way mis-led
or prejudiced in their defense.
             The jury was confused by the conjunctive form of the
instruction when there was proof as to cons@ring with one person
only.   They raised the question to the bailiff.           The judge then
advised them that instruction six should be amended to read "or".
             It was such a simple little thing, and there was only
one way to correct it, and this led the trial judge into techni-
cal error.

                                    -9-
               The judge promptly advised counsel on both sides
of what had transpired, and both sides affirmatively stated they

had no objection.       At that point, no verdict had been reached.
Upon objection from either side the judge could have convened
the court and straightened out the whole matter, and the net
result would have been the same.
               "Although communications between judge and jury out-
side of the presence of party on trial are frowned upon,
prejudice is not to be presumed therefrom, but rather must be
established before any verdict of guilty can be reversed on
such ground.       (Citing cases)   Donald Wiseman v The People of the
State of Colorado, t"e4re
                   -t+%a7
                    h&&kd                       179 Col. 101, 498
P   2d 930."    Quoted in People v Lovato,       Col.      , 507 P2d
860.
               Ballantine's Law Dictionary Third Edition at page
1334 defines variance, and the last paragraph thereof is as
follows:
           "In a criminal case, a variance is an
           essential difference between the accusa-
           tion and the proof, and the variance is
           not material unless it is such as to
           mislead the defense, or expose the defen-
           dant to the injury of being put twice in
           jeopardy for the same offense. Brashears
           v State, 38 Okla Crim 175, 259 P 665."
               Black's Law Dictionary, Third Edition, at page 1800
is to the same effect with some additional citations.
               In this case, there was no variance which would lead
to any different defense, if anything, it would reduce the
necessary defense.      Neither would it lead to a possibility of
either defendant being put twice in jeopardy.       All alleged
conspirators were identified, and there could be no further
prosecution on the facts giving rise to this case.
           As to the question of venue, that same question was
before this court in this same case, and was ruled upon.       See
State v Bretz and Cline, 169'~ont.505, 548 P2d 949.
          "The general rule in Montana is that
          where a decision has been rendered
          by the Supreme Court on a particular       r   b




          issue between the same parties in the
          same case, whether that decision is right
          or wrong, such decision is binding on
          the parties and the courts and cannot be
          relitigated in a subsequent appeal.
          (Citing cases) "
          *           *             *        *
          "The sole exception to the 'right or
          wrong' rule recognized by this court
          was articultated in State v Zimmerman
          (1977)      Mont  .    , 573 P2d 174,
          178, 34 St. Rep. 1561, 1566:
          'In any event, an exception to this
          general rule exists where the case
          must be remanded to the district court
          for further proceedings because of re-
          versal on an unrelated issue. In such
          cases this Court may correct a manifest
          error in its former opinion and announce
          a different ruling to be applied pros-
          pectively to future proceedings in the
          case.  ...   Belgrade State Bank v
          Swainson,        Mont .     , 35 St. Rep.
          549, 549B.'"
          Since I find no reversible error, I would not reach
the question of venue.    As far as fundamental fairness, I
doubt there is much to choose between    an impartial jury, duly
selected, in Missoula County, as compared to its counterpart in
Powell County.   I would affirm the judgment.




                                LeRoy L . p ~ i n n o n ,
                                                        ~ist;ict Judge,
                                sitting in for Mr. Justice
                                Daniel J. Shea.
