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No. 12136
IN THE SUPREME COURT OF THE STATE OF MONTANA
1972
THE STATE OF MONTANA,
Plaintiff and Respondent,
-vs -
LARRY FRATES,
Defendant and Appellant.
Appeal from: District Court of the Thirteenth Judicial District, Honorable Charles Luedke, Judge presiding.
Counsel of Record:
For Appellant :
Towe, Neely and Ball, Billings, Montana. Gerald J. Neely argued, Billings, Montana.
For Respondent:
Honorable Robert L. Woodahl, Attorney General, Helena, Montana.
J. C. Weingartner, Assistant Attorney General, argued, Helena, Montana.
Harold F. Hanser, County Attorney, argued, Billings, Montana.
Submitted: May 16, 1972
Mr. Justice Gene B. Daly delivered the Opinion of the Court.
Defendant, Larry Frates, appeals from a judgment of convic- tion of the crime of criminal sale of dangerous drugs entered on June 10, 1971, following jury trial and verdict of guilty in the district court of the thirteenth judicial district, county of Yellowstone, the Hon. Charles Luedke, district judge presiding. Following denial of his motion for a new trial, defendant appeals from the judgment of conviction.
Defendant was arrested on the night of March 17, 1971, in Room 105 of the Imperial 400 Motel in Billings by officers of the Billings police department following a sale by defendant of 900 LSD tablets to an undercover police officer, Richard Stelzer. Two officers of the Billings police department, Sgt. Jack Samson and Detective Pat Hagel, occupied the adjoining motel room and heard the entire conversation between defendant and Officer Stelzer by means of an electronic "bug" planted in the telephone in Room 105, which transmitted the conversation through the telephone in the room they occupied.
At trial, defendant admitted his actions of March 17, 1971, but offered testimony and evidence to support his defense of entrapment by the Billings police and the Yellowstone County sheriff's departments.
During trial it developed that a police informer, Dale Anderson, a bartender at the Midway Bar in Billings, had purchased 100 LSD tablets from defendant on two separate occasions within days of the crime charged, and played a significant role in
arranging the meeting at the Imperial 400 Motel between Officer
Stelzer and defendant culminating in the sale of 900 LSD tablets with which defendant was charged.
Defendant was duly charged with the latter sale, tried by jury, convicted, and sentenced to twenty years in the state
prison. Following denial of his motion for a new trial, de-
fendant appeals from his conviction.
Defendant raises seven issues on appeal:

1. The court erred in refusing to give defendant's offered
instruction No. 7.

2, The court abused its discretion in admitting evidence
where there was an incomplete chain of possession.

3.
The court abused its discretion in allowing informant
to testify to alleged prior sales.


4.
Entrapment having been shown as a matter of law, the
court erred in not granting a directed verdict of acquittal at
the close of the prosecution's case.


5.
The court erred in not striking all testimony relating
to conversations taking place in the motel room in question.



6, The court erred in not granting a new trial or directing
a verdict of acquittal at the close of defendant's case.

7. The court erred in overruling defendant's objection to
plaintiff's offered instruction No. 4.

Directing our attention to Issue 1, we observe that de-
fendant's offered instruction No, 7 is covered by the court's
instruction No. 2, which is the cautionary instruction taken
verbatim from Instruction No. 1, M.J.I.G. Accordingly there
is no error in the court's refusal of defendant's offered
instruction No. 7 covering the same point in slightly different
language. State v. Lagge, 143 Mont. 289, 388 P.2d 792; State
v, Logan, 156 Mont. 48, 473 P,2d 833.

In Issue No. 2, defendant argues the district court abused
its discretion in admitting evidence of dangerous drugs where
there was an incomplete chain of possession. The evidence
establishes a chain of possession of the LSD tablets from de-
fendant to the arresting officers; from there to tagging, marking
and storing in the evidence vault at the Billings police de-
partment; the packaging and addressing of four of the tablets
to the Bureau of Narcotics and Dangerous Drugs in San Francisco;

the receipt of the four pills by this agency; their examination, testing, and identification by chemist Chan of that agency; and, the return of the plastic container, the mailing box, and the mailing wrapper,bearing the handwriting of one of the Billings officers, to the Billings police department. Under such circumstances, the absence of the direct testimony of the person who actually mailed them to San Francisco is immaterial and in no sense breaks the chain of possession, precluding their ad- missibility in evidence.
Issue No. 3 concerns the admission of testimony by informant Anderson of alleged prior sales of dangerous drugs by defendant.
The state's evidence disclosed that Dale Anderson was re-quested by the Billings police department to assist it in curbing the drug traffic in Billings and to relay information on drug traffic as a paid informer, Anderson was given the names of two suspects of particular interest to the Billings police de- partment, one of whom was Ron Novasio and the second, the de- fendant.
In late February or early March 1971, defendant came to the Midway Bar in Billings where Anderson was employed as a bartender. Anderson told defendant that he wanted to go into a "partnership" with defendant in the illegal drug field. Anderson informed defendant he was not getting supplied like he should, and asked if defendant could assist him. Defendant replied that he was not sure at that time, but he would let Anderson know. Again, about a week later, defendant and Anderson came into contact and discussed their possible agreement.
On March 9, 1971, approximately a week and a half after their last meeting, defendant came to the Midway Bar and handed Anderson a sack containing 100 capsules of LSD. Defendant told Anderson the capsules were LSD, which could be sold for double the amount of money needed to purchase them. Anderson turned the capsules over to Detective Hagel, who gave Anderson $150 so that he could pay defendant. About a week later, on March 14,
1971, defendant returned to the Midway Bar and handed Anderson

another sack containing 100 LSD capsules which were again turned

over to Detective Hagel. It is the evidence of these prior

transactionq admitted at the trial over the objection of defendant,

that is one of the principal assignments of error.

The general rule in regard to the admissibility of evidence

of other crimes is stated in 29 Am,Jur.2d, Evidence, 5320,p.366:

"It is a well-established common-law rule that in a

criminal prosecution proof which shows or tends to
show that the accused is guilty of the commission of

other crimes and offenses at other times, even though
they are of the same nature as the one charged, is in-
competent and inadmissible for the purpose of showing

the commission of the particular crime charged * * *."
~ontana's adherence to the above quoted general rule is

recited in State v. Jensen, 153 Mont. 233, 238, 455 P.2d 631,

which states:

"* * * Montana recognizes the general rule "'that
when a defendant is put upon trial fox one offense,
he should be convicted, if at all, by evidence which
shows that he is guilty of that offense alone; and
evidence which in any manner shows, or tends to show,
that he has committed another crime wholly independent.

even though it be a crime of the same sort, is irrele-

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