¶1dissenting:
¶2This dissent must begin with the conviction for robbery. If that conviction is defective, and if the robbery conviction was used as a basis for conviction for aggravated kidnapping and deliberate homicide, then the latter two convictions would also have to be set aside.
¶3Justice Shea indicates, and the record supports his assertion, that defendant was charged with robbery under subsections a and b of § 45-5-401(1). Yet as Justice Shea points out the trial court instructed the jury as to subsection c of that statute which allows conviction for robbery if, during the commission of a theft, the defendant commits any other felony. Subsection c was not charged but was given to the jury as an alternative means of finding the defendant guilty of robbeiy. This was error. Furthermore, an instruction is erroneous that allows the jury to convict a defendant on the basic of finding the defendant committed “a felon/’ where a felony has not been specified and defined for the jury. In other words, this type of instruction is erroneous because it allows the jury to speculate and prevents the defendant from knowing the charge and preparing a defense.
¶4There is another and more glaring error in the robbery instruction. The Court gave the following instruction:
“To sustain a charge of robbery, the State must prove that the defendant, during the course of committing or aiding or abetting in committing, a theft, either:
“First: Inflicted, or aided or abetted in inflicting, bodily injury upon Monte Dyckman, or
“Second: Threatened or aided or abetted in threatening to inflict bodily injury upon Monte Dyckman or purposely or knowingly put, or aided or abetted in putting Monte Dyckman in fear of immediate bodily injury, or
“Third: Committed or aided or abetted in committing any felony other than theft.
“In the course of committing a theft as used here includes acts which occur in an attempt to commit or in the commission of theft or in flight after the attempt or commission.
“If you find from your consideration of all the evidence that any of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty of robbery.
“If, on the other hand, you find from your consideration of all the evidence that none of these propositions has been proved beyond a reasonable doubt, then you should find the defendant not guilty.” (Instruction No. 22)
¶5*385The only other instruction which bears upon the offense of robbery is Instruction No. 1 in which the Court read to the jury the charge against defendant. The applicable portion of that instruction reads as follows:
“COUNT THREE
“On or about April 5,1975, Bernard James Fitzpatrick, did, at Hardin, Big Horn County, Montana, commit the crime of ROBBERY, to-wit: In that Bernard James Fitzpatrick (a) did, while in the course of committing, or aiding, or abetting, or agreeing to aid or abet, or attempting to aid or abet in committing a theft of money and/or checks of the Hardin, Montana Safeway Store, inflicted, or aided, or abetted, or agreed to aid or abet, or attempted to aid or abet in inflicting bodily injury upon Monte Dyckman, or (b) did, while in the course of committing, or aiding, or abetting, or agreeing to aid or abet, or attempting to aid or abet in committing, a theft of money and/or checks of the Hardin, Montana Safeway Store, threatened to inflict bodily injury upon Monte Dyckman or purposely or knowingly put Monte Dyckman in fear of immediate bodily injury, or aided, or abetted, or agreed to aid or abet, or attempted to aid or abet in threatening to inflict bodily injury upon Monte Dyckman, or purposely or knowingly put Monte Dyckman in fear of immediate bodily injury, in violation of Section 94-5-40l(l)(a) or Ob), R.C.M. 1947.”
¶6Nowhere in the instructions is the offense of theft defined. Theft is defined in 45-6-301, MCA, as follows:
“45-6-301. Theft. (1) A person commits the offense of theft when he purposely or knowingly obtains or exerts unauthorized control over property of the owner and:
“(a) has the purpose of depriving the owner of the property;
“(b) purposely or knowingly uses, conceals, or abandons the property in such manner as to deprive the owner of the property; or
“(c) uses, conceals, or abandons the property knowing such use, concealment, or abandonment probably will deprive the owner of the property.
“(2) A person commits the offense of theft when he purposely or knowingly obtains by threat or deception control over property of the owner and:
“(a) has the purpose of depriving the owner of the property;
“(b) purposely or knowingly uses, conceals, or abandons the property in such a manner as to deprive the owner of the properly; or
“(c) uses, conceals, or abandons the property knowing such use, concealment, or abandonment probably will deprive the owner of the property.
*386“(3) A person commits the offense of theft then he purposely or knowingly obtains control over stolen property knowing the property to have been stolen by another and:
“(a) has the purpose of depriving the owner of the property;
“(b) purposely or knowingly uses, conceals, or abandons the property in such manner as to deprive the owner of the property; or
“(c) uses, conceals, or abandons the property knowing such use, concealment, or abandonment probably will deprive the owner of the property.
“(4) A person commits the offense of theft when he purposely or knowingly obtains or exerts unauthorized control over any part of any public assistance, as defined in 53-3-101, by means of:
“(a) a knowingly false statement, representation, or impersonation; or
“(b) a fraudulent scheme or device.
“(5) Aperson convicted of the offense of theft of property not exceeding $150 in value shall be fined not to exceed $500 or be imprisoned in the county jail for any term not to exceed 6 months, or both. A person convicted of the offense of theft or property exceeding $150 in value or theft of any commonly domesticated hoofed animal shall be imprisoned in the state prison for any term not to exceed 10 years.
“(6) Amounts involved in thefts committed pursuant to a common scheme or the same transaction, whether from the same person or several persons, may be aggregated in determining the value of the property.”
¶7Under the Court’s instructions the jury was left to speculate about what the Court meant when using the term theft in the robbery instruction. This omission is obvious error requiring reversal.
¶8Failure to define legal terms was treated by the Oregon Appeals Court in State v. Delucia (1979), 40 Or.App. 711, 596 P.2d 585. In that case the defendant appealed from his conviction of third degree assault. At trial, defendant requested that the following instruction be given:
“A person in lawful possession or control of premises is justified in using physical force upon another person when and to the extent that he reasonably believes it necessary to prevent or terminate what he reasonably believes to be the commission or attempted commission of a criminal trespass by the other person in or upon the premises.” (596 P.2d at 586)
¶9The appellate court held that the rejected instruction was an accurate statement of the law but it was incomplete for failure to *387define “criminal trespass”. The following excerpt is taken from the court’s opinion:
“The instruction, as requested follows exactly the language of ORS 161.225(1) which delineates the use of physical force in defense of premises. It is, therefore, a correct statement of law insofar as it goes. Its defect lies in its incompleteness. ORS 161.225(1), as repeated in the instruction, allows the use of physical force to prevent or terminate what is reasonably believed to be the commission or attempted commission of a criminal trespass in or upon the premises. Therefore, in order to decide whether the defense was justified, the jury must know what a ‘criminal trespass’ is so that it may determine whether defendant had a reasonable belief that one was indeed committed or imminent.” (596 P.2d at 586) (Emphasis supplied.)
¶10The Montana Supreme Court has spoken on the need to define legal terms when instructing in a criminal case. State v. Larson (1978), 175 Mont. 395, 574 P.2d 266, 35 St.Rep. 69. In that case defendant complained on appeal that the trial court erred in giving extensive definitions of “knowledge” and argued that the extensive nature of the definitions was prejudicial to defendant. In answering this contention of the defendant the court said:
“… the crimes charged, mitigated deliberate homicide and aggravated assault, require ‘knowledge’ or ‘purpose’ on the part of the accused. The jury therefore was entitled to a complete definition of ‘knowledge’ and the given instruction, taken almost verbatim from § 94-2-101(27), R.C.M., 1947, was such a definition.” (574 P.2d at 270) (Emphasis supplied).
¶11Here, the court did not give any definition of theft. The jury could not have convicted the defendant of robbery without first finding that the defendant committed a theft. Without defining a theft in statutory language the jury would be left to speculate and in all likelihood, would apply a lay definition of theft which might well be contrary to the offense outlined in the Montana statute. There is simply no way that this Court can overlook such obviously prejudicial error. The robbery conviction must fall and with it necessarily the balance of the offenses charged must likewise fall.
¶12Robbery provided a basis for conviction on the charge of deliberate homicide. Court’s Instruction No. 23 provided:
“A person commits the offense of deliberate homicide if:
“1) He causes the death of another human being purposely or knowingly; or
*388“2) The death of another human being is caused while the offender is engaged in or is an accomplice in the commission of or an attempt to commit, or flight after committing or attempting to commit robbery or kidnapping.”
¶13Thus, the jury could have convicted the defendant by finding that the death of the victim was caused while defendant was engaged in the crime of robbery. Since defendant’s conviction for robbery must fall for failure to define theft, necessarily the conviction for deliberate homicide must also be overturned.
¶14Court’s Instruction No. 25 defined aggravated kidnapping as follows:
“A person commits the offense of aggravated kidnapping if he knowingly or purposely and without lawful authority restrains another person by either using or threatening to use physical force with any of the following purposes:
“1) To facilitate commission of any felony or the flight thereafter; or
“2) To inflict bodily injury on or to terrorize the victim.”
¶15The jury could have convicted defendant by finding that defendant restrained the victim for the purpose of committing “any felony” which, of course, includes the charge of robbery. Since the jury could have used the offense of robbery to convict defendant of aggravated kidnapping the conviction on aggravated kidnapping is equally as defective as the conviction for robbery.
¶16I agree with the legal principals enunciated by Justice Shea in his dissent respecting “unanimous verdict” requirements. I do not agree with all that is said in his dissent in terms of application of that law to the facts at bar. However, the failure to define theft invalidates the convictions on all three crimes charged and it becomes unnecessary to deal with the unanimous verdict question.
¶17In my opinion this case must be reversed and remanded for a new trial under proper instructions. However, I will discuss the sentence imposed. The discussion on sentencing which follows only becomes germane if defendant’s conviction is affirmed. The sentencing analysis which is set forth, proceeds upon the assumption that the jury’s findings of guilty are upheld.
¶18The death penalty is available under the proper circumstances where defendant is convicted of deliberate homicide. A mitigating factor which the trial court must consider is the role of the defendant in the crime. The court is to consider an accomplice's role as a mitigating factor. Here the trial court could not determine whether the deliberate *389homicide conviction was on the basis of defendant having committed premeditated murder or rather on the basis that defendant was convicted as an accomplice or under the “felony murder” rule. In this case, as Justice Shea points out in his dissent, the trial court instructed the jury that a person commits the offense of deliberate homicide if death of another human being is caused while the offender is engaged in or is an accomplice in the commission of robbery or kidnapping.
¶19For purposes of sentencing we would have to assume that the defendant was convicted under the instruction which gave to the jury the most latitude. Therefore, for purposes of sentencing, we must assume that defendant was convicted because the jury found him to be an accomplice in committing both robbery and kidnapping and that the death of another human being was caused thereby. Justice Shea argues that the requirement of jury unanimity is applicable to this situation. In my opinion it is not applicable, but we must assume that the jury convicted under the “felony murder” or accomplice aspect of the instruction. In other words, if six voted for conviction because they believed defendant himself committed the homicide, but six voted to convict defendant because he was an accomplice or death resulted during the commission of a kidnapping, the conviction can only be sustained on the basis that all twelve jurors agreed that the elements were present requiring a conviction under the “felony murder” rule or because defendant was an accomplice. If this assumption is not made, then Justice Shea’s argument for “unanimity” must be sustained.
¶20Since we must assume that defendant was convicted as an accomplice or under the “felony murder” aspect of the instruction, we must face the question of whether such a conviction can provide the basis for imposition of the death sentence. Justice White, in a concurring opinion in Lockett v. Ohio (1978), 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973, indicated that the death penalty could only be imposed where the defendant was guilty of premeditated murder thereby foreclosing its application to defendant’s conviction as an accomplice or defendant’s conviction under a “felony murder” instruction. Furthermore, the role of the defendant is something that must be considered in imposing the death sentence in Montana. Since we must assume that the defendant did not actually kill someone, but rather aided or abetted, a mitigating factor exists negating the death sentence. This mitigating factor was not treated by the trial court. If we were to assume that defendant was convicted -under the “felony murder” instruction, the same result would attach.
¶21*390The trial court considered “ambush” to be an aggravating circumstance for imposition of the death penalty. I concur in Justice Shea’s dissent on this issue. Ambush was not properly considered as an aggravating circumstance where there was no proof that the death of Monte Dyckman resulted from “lying in ambush”.
¶22The same problems which exist in defendant’s conviction for deliberate homicide exist in defendant’s conviction for aggravated kidnapping. We must assume that the defendant’s role in aggravating kidnapping was as an accomplice. Not only did the trial court fail to consider defendant’s accomplice role as a mitigating factor, but under Justice White’s concurring opinion in the Lockettcase, the penalty of death could not be imposed where the defendant’s role was only that of an accomplice.
¶23In Lockett v. Ohio, supra, Justice White said:
“It is now established that a penalty constitutes cruel and unusual punishment if it is excessive in relation to the crime for which it is imposed. A punishment is disproportionate ‘if it (1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime. A punishment might fail the test on either ground.’ Coker v. Georgia, 433 U.S. 584, 592 [97 S.Ct. 2861, 2866, 53 L.Ed.2d 982,] (1977) (opinion of White, J.). Because it has been extremely rare that the death penalty has been imposed upon those who were not found to have intended the death of the victim, the punishment of death violates both tests under the circumstances present here. (438 U.S. at 624, 98 S.Ct. at 2983.)
“... Under those circumstances the conclusion is unavoidable that the infliction of death upon those who had no intent to bring about the death of the victim is not only grossly out of proportion to the severity of the crime but also fails to contribute significantly to acceptable or, indeed, any perceptible goals of punishment.” (438 U.S. at 626, 98 S.Ct. at 2984.)
¶24A majority of the United States Supreme Court has not settled the question discussed by Justice White in his concurring opinion in Lockett. Certiorari has now been granted and the United States Supreme Court will soon determine this question. In my judgment the Court will follow Justice White’s opinion as quoted above.
¶25Should the federal courts determine that the death sentence is available under the circumstances of this case, then the death sentences given, and the circumstances -under which they were given, must be examined. Clearly, in this case, the acceleration of a sentence *391from life to death on the deliberate homicide charge, was in violation of the guideline set forth in Pearce v. North Carolina (1969), 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656. The trial court improperly accelerated the sentence to a death penalty by considering facts which occurred prior to the time that the first sentence was imposed. Secondly, it was improper for the trial court to consider defendant’s demeanor on the witness stand during the second trial and base an accelerated sentence upon that demeanor. I concur in the statements made by Justice Shea on this issue.
¶26We have, indeed, failed to promulgate nales for proportional review as mandated by statute. The imposition of the death sentence cannot be permitted under these circumstances. I concur in Justice Shea’s dissent on this issue.
¶27I also agree that defendant is entitled to a hearing on whether hanging is cruel and unusual punishment. The majority has dismissed this contention by stating that the form of execution is a matter for the legislature. This is not so. The constitution prohibits “cruel and unusual punishment”. It is the exclusive province of the judiciary to determine whether that fundamental right is being violated. This determination cannot be made by the legislature. Defendant has raised a substantial claim that, if supported by evidence, would indicate that hanging causes pain and suffering prior to death. This form of execution, if constituting a type of torture, would certainly be cruel and unusual punishment prohibited by the constitution. Only the courts can make this determination and the defendant must have a hearing so that the courts can properly evaluate the medical evidence bearing upon this claim.
¶28I would reverse defendants conviction and remand for a new trial under appropriate instructions defining theft, robbery, kidnapping, aggravated kidnapping and deliberated homicide.