State v. Hale ( 1952 )

MR. JUSTICE ANGSTMAN

(dissenting).

I think it was proper.to receive evidence of the claim dated November 16, 1950, for the. purpose of showing plan, purpose, intent, system, motive and guilty knowledge. The cases sustaining that view are legion and are cited in the dissenting opinion of Mr. Justice Metcalf in State v. Searle, 125 Mont., 467, 239 Pac. (2d) 995, 1002.

I wrote the majority opinion in the Searle ease, but rested it entirely upon State v. Sauter, 125 Mont., 109, 232 Pac. (2d) 731, in which I dissented. I acquiesced in the opinion in the Searle case by accepting the majority opinion in the Sauter case as stare decisis when applied to sex crimes. My position in the Searle case was stated at the end of the opinion as follows:

“Having disagreed with the majority opinion in State v. Sauter, 125 Mont., 109, 232 Pac. (2d) 731, I accept the ruling in that case as stare decisis when applied to sex crimes, and since I see no substantial distinction between the facts showing plan, design and purpose in that case and those here involved, I think it rules this case.”

I thought the majority opinion in the Sauter case was confined to sex offenses because it relied almost wholly on sex cases and I thought the court did not intend to overrule in wholesale fashion the legion of prior cases dealing with other crimes without giving some reason for so doing.

This is the first case which extends the new rule to other than sex crimes. The effect of the majority opinion is to impliedly overrule a long line of cases sanctioning the use of evidence of other and similar crimes for limited purposes. I think the court is in error in so doing and particularly in not giving any reasons for so doing. I think likewise that the giving of instruction No. 10 did not prejudice any substantial right of defendant.

Since this is not merely a proceeding to remove a public officer for charging and collecting illegal fees, I see no purpose in discussing proceedings under R. C. M. 1947, sec. 94-5516. Neither do I agree that if the acts charged were done in confirmity with advice given by a state examining officer that they may be done with impunity.

I think the judgment should be affirmed.