dissenting:

The thrust of the majority’s opinion is (1) to stress the hideousness of the crimes; (2) *1544 to stress the few instructions that standing alone would withstand constitutional muster; and (3) to weave a tortured path through the instructions that the jury might have followed to find a verdict untainted by the numerous instructions 1 that concededly placed an unconstitutional burden of proof on the defendant and served to confuse rather than instruct the jury.

The dissent disagrees on two principal bases. First, the instructions were so flawed that the defendant could not have had a fair trial. Harmless error analysis is simply inappropriate in such a case. The instructions in this case are so bad that even the prosecution at trial objected to their use and requested that alternatives be read in their place. They are instructions that the counsel for the State at the en banc oral argument admitted were in some respects the worst he had ever seen. Justice Shea of the Montana Supreme Court called the instructions “the most confusing and inconsistent set of instructions I have ever seen.” McKenzie v. Osborne, 195 Mont. 56 , 640 P.2d 368, 411 (1981) (Shea, J., dissenting). Because only a complete reading of the instructions will illustrate fully the extent to which they deviate from fair and comprehensible instructions, we append the full text to the end of this dissent. We suggest that the readers of this opinion turn first to the instructions in order to appreciate the dissent’s profound disagreement with the approach the majority embraces.

Second, however, if the majority must be met on its own terms, the errors were not harmless.

BACKGROUND

McKenzie was convicted of one count of deliberate homicide “by means of torture” and one count of aggravated kidnapping. Both offenses require the jury to find that the defendant acted “knowingly and purposely,” 2 and that he acted with a particular purpose. Repeatedly, the jury instructions given at his trial directed the jury to presume that he had the mental states of acting “knowingly or purposefully,” upon finding that the defendant performed the physical acts. As conceded by the State and the majority, because the instructions shifted the burden of proof to the defendant, they violated the due process clause of the fourteenth amendment. Sandstrom v. Montana, 442 U.S. 510 , 99 S.Ct. 2450 , 61 L.Ed.2d 39 (1979).

No one challenges the fact that McKenzie committed the dreadful acts. His intent was the issue at trial. His defense was mental incapacity — an inability to form the requisite criminal intent. The concepts that the jury needed to understand in order to determine whether McKenzie had the requisite criminal intent are subtle and difficult. Those trained in the law find them confusing; laypersons must find them doubly so. Insanity and diminished capacity are distinct conditions, similar but different. The defendant who asserts insanity as a defense has the burden to establish it by a preponderance of the evidence. If defendant’s claim, however, is diminished capacity that precludes him from forming the requisite criminal intent, once he has raised a genuine issue in this regard, the state must prove that he had the mental capacity to form the requisite intent beyond a reasonable doubt. To convict *1545 McKenzie, the jury had to find not only that, beyond a reasonable doubt, he had the general criminal intent to commit the criminal acts (that he did them “knowingly or purposefully,”) but that he acted with particular purposes in mind. The jury needed to understand that general and specific intent are distinct and different, and that a defendant could possess one without the other. It needed to understand that although it could infer intent from the evidence, it could not presume it, and that although it could presume sanity, it could not presume intent. Obviously, it needed to understand the meaning of “infer” and “presume.” Adequate jury instructions would have to convey these concepts in a manner that a reasonably intelligent jury could comprehend.

FUNDAMENTAL FAIRNESS

McKenzie’s due process right to be convicted upon proof established beyond a reasonable doubt, and his sixth amendment right to a trial by jury have been violated. Upon the facts of this case, harmless error analysis is wholly improper.

The purpose of the requirement of proof beyond a reasonable doubt is to ensure that only the truly guilty are convicted. It reflects an age-old tradition that it is better that a guilty person go free than that an innocent one be punished. Rose v. Clark, 478 U.S. 570 , 106 S.Ct. 3101, 3107 , 92 L.Ed.2d 460 (1986). The Supreme Court has suggested that the requirement is so fundamental to our notion of fairness that the failure to instruct the jury that the state must prove its case beyond a reasonable doubt can never be harmless. Id. 106 S.Ct. at 3107 n. 8 (citing Jackson v. Virginia, 443 U.S. 307 , 320 n. 14, 99 S.Ct. 2781 , 2790 n. 14, 61 L.Ed.2d 560 (1979)).

Also central to our system of criminal justice is the right to a trial by jury. See generally id. at 3114 (Blackmun, J., dissenting). The jury’s fact-finding role is protected from all interference. Id. Accordingly, when a trial error has affected the jury’s deliberative processes, a court may apply a harmless error analysis only where the error had no effect on the outcome. Id. at 3108 n. 11; Delaware v. Van Arsdall, 475 U.S. 673 , 106 S.Ct. 1431, 1436 , 89 L.Ed.2d 674 (1986) (constitutional errors may be harmless “in terms of their effect on the factfinding process at trial”). Thus, a directed verdict on an element of the offense in favor of the state can never be harmless. See Connecticut v. Johnson, 460 U.S. 73, 84 , 103 S.Ct. 969, 976 , 74 L.Ed.2d 823 (1983) (plurality opinion); United States v. Martin Linen Supply Co., 430 U.S. 564, 572-73 , 97 S.Ct. 1349, 1355-56 , 51 L.Ed.2d 642 (1977). But Sand-strom error, or an incorrect statement of what standard against which to judge predicate facts, Pope v. Illinois, — U.S. —, 107 S.Ct. 1918 , 95 L.Ed.2d 439 (1987), may be harmless because such instructions do not necessarily remove the issue from the jury. 3

Before we may apply the harmless error analysis, we must decide whether “placed in context,” Rose, 106 S.Ct. at 3107 , the instructions in the case were so egregious as to render the trial “fundamentally unfair,” Pope, 107 S.Ct. at 1922 , by preventing the jury from performing its constitutionally mandated function of determining guilt beyond a reasonable doubt. We conclude the trial was fundamentally unfair.

*1546 This is not a case involving an isolated instruction tainted by Sandstrom error. The unconstitutional instructions were “multiple” (as the majority notes), restated in a variety of formulations, and mutually reinforcing.

The following excerpts from the jury instructions are representative of those containing Sandstrom error. 4

Instruction 31 (“Mental State — Methods of Proof”) describes the differences between inferences and presumptions. It states:

(Emphasis added.) To illustrate the use of presumptions, the instruction goes on to offer the following example:

(Emphasis added.)

The Sandstrom errors continue in Instructions 33 (“Method of Proof Applicable to the Offense of Deliberate Homicide”), 35 (“Method of Proof Applicable — Kidnapping”), 37 (“Methods of Proof Applicable to *1547 Sexual Intercourse Without Consent”), and 38 (“Methods of Proof Applicable to the Offenses of Aggravated Assault”). Instruction 33 states:

(Emphasis added.)

Instruction 35 states:

(Emphasis added.)

Instruction 37 states:

(Emphasis added).

Finally, Instruction 38 states:

(Emphasis added).

The majority attempts to downplay the egregiousness of the Sandstrom errors by suggesting that reading all of the instructions together makes it plain the presumptions were rebuttable. Ante at 1529-30 n. 4. But stating that a presumption is rebuttable does not cure the error. The presumption still impermissibly shifts the burden of proof to the defendant. See Francis v. Franklin, 471 U.S. 307 , 105 S.Ct. 1965, 1972 , 85 L.Ed.2d 344 (1985).

Further, the instructions as a whole were long (forty-eight pages), convoluted, confusing, and contradictory. See United States v. Patel, 762 F.2d 784, 790 (9th Cir.1985) (“Instructions in a criminal case must be unmistakably clear_”). For example, McKenzie was initially charged with seven counts, each of which could result in a finding of guilt through myriad alternatives. “All told, defendant is charged with committing the crimes in at least seventeen alternative ways.” State v. McKenzie, 608 P.2d 428, 470 (1980) (Shea, J., dissenting). 5 The jury was told that an unsound mind could be established both upon a reasonable doubt and upon a preponderance of the evidence. The examples are nearly endless. For example, Instruction 33 begins:

With regard to “particular purposes” the jury was first instructed that “[w]hen a particular purpose is an element of an offense, the element is established although such purpose is conditional, unless the condition negatives the harm or evil sought to be prevented by the law defining the offense.” Instr. 7. Later the jury was instructed:

Instr. 32. Defense counsel aptly characterized the nature of these instructions when he wrote: “The premise that the ‘presumptions’ played no part in [the jury’s implicit findings of ‘particular purposes’] ... credits the jury with a superhuman ability to parse out the confusing and conflicting instructions in this case and apply a law professor’s precision to the use of the words ‘presume’ and ‘infer.’”

The instructions were so confusing that the jury had no clear direction as to how to distinguish the different intents it must find, the burdens of proof involved, or the distinction between sanity and mental capacity. Instruction 30 advised the jury that “the defendant is presumed to have been free from any disease or defect of the mind which excludes responsibility for his conduct_” Instr. 30. It drew no distinction between insanity and diminished capacity, nor did it define the limits of “mental accountability,” nor did it specify what showing by the defendant would overcome this presumption. It said simply that a defendant is presumed free from any disease or defect. Since some of the particular purposes could have been viewed by the jury as involving an intent requirement, instruction 30 could have had an impact on the particular purpose instructions. See Francis v. Franklin, 105 S.Ct. 1965, 1972-77 (1985) (involving a similar “sound mind” instruction).

The majority suggests that instruction 30 “[t]aken in context,” refers only to the defendant’s responsibility for his conduct. The “context” the majority has in mind is instruction 53, which the majority insists makes clear that the defendant’s capacity to form a mental state is distinct from his legal responsibility. To say the least, this reading is strained. Instruction 53, though it speaks generally to mental accountability, says nothing specific about diminished capacity, the difference between it and insanity, or — most important — the vastly different burdens of proof attaching to each. The only elaboration of mental capacity the majority could identify appears in the last sentence of instruction 53:

Instr. 53. The “presumption” referred to is defined in the previous paragraph of the instruction as being rebuttable “by a preponderance of the evidence.” The “mental state,” the jury had been told at least eight times, it could presume. The use of the conjunction “and” between the mention of accountability and mental state perhaps has persuaded the majority that the two issues could be separated in the jurors’ minds. This seems doubtful.

It is hard to share the majority’s certitude that instruction 53 adequately narrowed instruction 30 so that the latter applied only to responsibility and that the jury would so understand it. Instruction 53 nowhere refers to instruction 30, and nowhere clarifies the distinction between insanity and diminished capacity. The majority opinion supposes that the jury not only managed the unlikely logical link between instructions 30 and 53, but also succeeded in divining from instruction 53’s Byzantine locution the oblique legal nuances that separate insanity from capacity. At the same time, the majority confidently assures us that no reasonable juror would have followed so “tortured” a chain of thought as to pay attention to one improper instruction (Instr. 36) over another (Instr. 37) immediately adjacent to it and flatly contradicted by it.

Nor were the many unconstitutional errors mitigated by a clear instruction that the jury must find every element of an offense beyond a reasonable doubt. Rose, 106 S.Ct. at 3107 . Although such an instruction was given, it was read to the jury only at the beginning of the trial. Further, *1550 it authorized a finding of guilt upon “an abiding conviction to a moral certainty,” language that has been condemned for suggesting a jury may rely on emotion rather than the facts in rendering a decision. See United States v. Drake, 673 F.2d 15, 21 (1st Cir.1982) (condemning language, but finding instructions as a whole to have fairly apprised the jury of reasonable doubt standard). It also did not include an explanation of “doubt” that may arise from the lack of evidence supporting the charges. Only passing references to the prosecution’s burden of proof were contained in the instructions given following the trial. See United States v. Ruppel, 666 F.2d 261, 274 (5th Cir.) (citing ABA Advisory Committed on the Criminal Trial, Trial by Jury 116-18 (1968)); 8A Moore’s Federal Practice 1130.02 at 30-5 (2d ed. 1981) (district judge should have repeated presumption of innocence instruction at end of trial, although finding harmless error), cert. denied, 458 U.S. 1107 , 102 S.Ct. 3487 , 73 L.Ed.2d 1369 (1982). Instead, the instructions given after the evidence was presented, including the many directing the use of presumptions, tended to emphasize the defendant’s guilt over his innocence.

The instructions were inflammatory. The use of presumption and inference was illustrated by examples replete with violence and blood. The judge read the information to the jury without a cautionary instruction. See United States v. Long, 706 F.2d 1044, 1056 (9th Cir.1983) (finding no error because jury was cautioned). He referred repeatedly to the specific allegations against the defendant. In one instruction, he chose to use the word, “kill,” rather than the statutory phrase, “cause the death of,” over the objection of the defendant. Instr. 34.

This is not a case like Sandstrom, Francis, Rose or Pope , each of which involved only one unconstitutional instruction. 6 Here, the violations were scattered throughout 48 pages of instructions. Many of the jury instructions contained more than one violation. The effect was a constant drumbeat that directed the jury to presume criminal intent. 7 The errors raise grave doubt about the jury’s ability to perform a fair fact-finding function. Unlike cases containing a single tainted instruction, the instructions in this case do not provide the possibility to a reviewing court to excise and isolate the bad and find that the jury would have returned a verdict of guilty even if the jury had never heard the bad instructions. The whole process was infected. See Chapman v. California, 386 U.S. 18, 22-23 , 87 S.Ct. 824, 827-28 , 17 L.Ed.2d 705 (1967). The application of the harmless error test to a case such as this is in a very real sense unprecedented. 8

A criminal defendant is entitled to a fair trial, not a perfect trial. Delaware v. Van Arsdall, 175 U.S. 673 , 106 S.Ct. 1431, 1436 , 89 L.Ed.2d 674 (1986). This defendant had neither. While the court may and, indeed, should ignore minor, non-substantive errors, which may be inevitable in a long or complicated trial, “[o]ur duty to search for constitutional error with painstaking care is never more exacting than in a capital case.” Burger v. Kemp, — U.S. —, 107 S.Ct. 3114, 3121 , 97 L.Ed.2d 638 (1987). Reviewing the circumstances of Duncan McKenzie’s trial, one Justice of the Montana Supreme Court called the trial a “mockery” and a “travesty.” McKenzie v. Osborne, 640 P.2d 368, 436 (Mont.1981) (Morrison, J., dissenting). Another stated: “Never in the annals of criminal law history in this State has a defendant ever been *1551 the victim of such a consistent and wholesale denial of fundamental rights.” Id. at 434 (Shea, J., dissenting).

Everyone agrees that the trial court’s instructions to the jury were riddled with Sandstrom errors. These errors occurred in the context of confusing and incoherent instructions — instructions that provide a mass of information with no apparent structure. The errors touched every question asked the jury and every route it might have taken to answer them. To permit these convictions and this sentence to stand in the face of these instructions, would be a fundamental miscarriage of justice.

HARMLESS ERROR ANALYSIS

Even if harmless error analysis were appropriate in this case, we vigorously disagree with the majority’s assertion that beyond a reasonable doubt the verdict was unaffected by the numerous unconstitutional instructions.

The majority approaches its harmless error analysis in a manner different from that employed in Pope and Rose . Although it acknowledges the Pope-Rose approach, in essence, the majority advances the argument that, in fact, the jury did not rely on the improper instructions. It asserts that the jury found that McKenzie committed the underlying acts with particular purposes in mind without relying on any presumptions, but rather relying on the instructions that required that they infer the particular purposes. The jury, it asserts, would then necessarily have found general intent without needing to rely on the unconstitutional presumptions. Under Rose and Pope , by contrast, we must disregard what the jury actually did and, instead, consider whether the jury, if it had never heard the erroneous instructions, nonetheless, beyond a reasonable doubt, would have convicted the defendant.

We feel constrained first to challenge the majority’s assertion that, beyond a reasonable doubt, the jury in fact did not rely on the constitutionally infirm instructions in reaching its verdict. Second, using the analysis mandated by Rose and Pope , we make clear why our court, as the reviewing court, cannot determine beyond a reasonable doubt that the jury would have convicted McKenzie even if it had never heard the flawed instructions.

What the jury had to decide was whether McKenzie had the mental capacity to form the requisite criminal intent and to perform the acts with the particular purposes in mind. The fact that McKenzie committed the predicate acts was never in doubt, so the question before the jury was whether he had the various intents. The crucial evidence to be considered by the jury was the testimony of both sides’ experts in psychology and psychiatry. We summarize the testimony.

Dr. Wetzler, the defense psychiatrist, testified that, based on his interviews with McKenzie, his experience, and his knowledge, he had concluded that McKenzie was incapable of forming the mental states that are elements of ,the crimes charged. The State produced a psychiatrist and a psychologist who found that McKenzie suffered from a personality disorder, but disagreed that he could not have formed the requisite mental states.

Dr. Wetzler heads the Spokane Psychiatric Clinic and is Chief of Staff of a psychiatric hospital in Spokane. After five years in an accredited residency program, he became Board certified in psychiatry and neurology. During World War II, Dr. Wetzler worked in a five-hundred bed neurological and psychiatric unit, in which he treated primarily soldiers returning from overseas. In addition to being a Fellow of the North Pacific Branch of the American Psychiatric Association, he was President of the Eastern Washington State District Branch of the American Psychiatric Association. Dr. Wetzler teaches forensic psychiatry at Gon-zaga Law School and consults for such agencies as the Department of Labor and Industries, the Selective Service, and the Social and Health Services. He is one of the founders of the Spokane County Medical Health Center. On cross-examination, Dr. Wetzler admitted that his wife is a first cousin of McKenzie’s trial counsel.

*1552 Dr. Wetzler testified that his evaluation was based on eight hours of tapes and two interviews with the defendant, one lasting six hours and the other between four and six hours. During the interviews, he listened to McKenzie’s complaints and his background and observed his body language. He did not administer psychological tests or an electroencephalogram, because he did not feel they were necessary. He did not ask about the incident for which McKenzie was charged, but testified he would not change his diagnosis upon learning how the defendant allegedly acted during and immediately after it. 9

Dr. Wetzler’s diagnosis was that McKenzie had a personality trait disturbance, specifically a schizoid personality. Dr. Wetz-ler concluded that because of his mental defect, McKenzie was incapable of forming the requisite mental states.

Dr. Garcia, testifying for the State, is a staff psychiatrist at the Warm Springs State Hospital and is Director of a continuing treatment service clinic. After a one-year internship from 1955 to 1956, he worked in a number of hospitals, and participated in seminars and symposiums, until coming to Warm Springs in 1961. He was Clinic Director of the Warm Springs Hospital for about ten years and Director of the Mental Hygiene Clinic in Butte, Montana for two years. A member of the Montana committee for the care of the elderly, he wrote the committee's published report that was submitted to the Governor. He has also written a number of papers in psychiatry. For ten years, Dr. Garcia has worked with juveniles as a Psychiatric Consultant to the Third Judicial District Court. He acknowledged that he failed the foreign graduates medical test, which Montana has since required for licensing.

Dr. Garcia spent about one hour formally interviewing McKenzie. In addition, he observed McKenzie about once a week for five weeks, and received 24-hour reports from attendants and nurses while McKenzie was at Warm Springs. He testified that because McKenzie would not talk about the incident, he could not complete his evaluation. He also acknowledged that he could have made a better evaluation if he had pursued questions about McKenzie’s sexuality, but that McKenzie had not wanted to discuss it. Dr. Garcia looked to McKenzie’s background, family, verbal communication, thinking processes, ideas, and feelings in drawing his conclusion.

Dr. Garcia found that McKenzie had a passive-aggressive personality, was socially maladjusted, drank excessively and had been dependent on drugs. Like Dr. Wetz-ler, he found that McKenzie lacked a father figure and felt extreme hostility toward his sister.

According to Dr. Garcia, McKenzie's insight was mildly to moderately impaired, his judgment moderately impaired, and his grasp of his own life and life plan was impaired. At one point, Dr. Garcia testified that McKenzie had poor control over his energy level, particularly his aggressive drive, which would suddenly come out in a “very unacceptable manner,” but later testified that he did not have an inability to repress hostile feelings. He found only minimal daydreaming, and only some oversensitivity and difficulty making friends.

Dr. Garcia disagreed that McKenzie had a schizoid personality. Rather, he found some element of antisocial behavior, which he characterized as a personality disorder rather than a mental disorder. He also disagreed with Dr. Wetzler’s conclusion that McKenzie could not establish the requisite states of mind, but he acknowledged that whether McKenzie “had the ability to commit a crime” was a “matter of opinion.”

*1553 The State’s second witness, Dr. Edward Shubat, is a clinical psychologist with the Great Falls Clinic Department of Psychology. He received his Ph.D. in 1969, having interned in 1968 and 1969 at the Palo Alto Veterans Hospital. He is a member of various psychological associations and is an accepted candidate for a diploma by the American Board of Professional Psychologists.

He interviewed McKenzie the Saturday before trial. During the interview he administered four psychological tests and took McKenzie’s background. He acknowledged that psychological tests are designed to confirm or augment other diagnostic methods. He claimed that severe mental disease would show up on the tests, but Dr. Wetzler disagreed that they could necessarily reflect a schizoid type disturbance.

Dr. Shubat was able to give only a “diagnostic impression” because McKenzie did not provide him with all of the facts. Dr. Shubat found an antisocial personality. McKenzie had difficulty relating to other people, had little or no regard for them, and exhibited compulsive and self-defeating behavior. He had difficulty with anger and aggression. His “diagnostic impression” was that McKenzie could have established the requisite states of mind.

The evidence seems quite balanced — certainly not conclusive for either side. Yet the majority concludes that the jury, on the instructions given, in fact, beyond a reasonable doubt, could and did reach a guilty verdict without relying on the impermissible presumptions. It reasoned that the fact that the jury was instructed not to use a presumption in making its determination that McKenzie acted with a particular purpose indicates that the jury properly found the particular purpose element. 10 Having found that McKenzie did act with a particular purpose, the jury necessarily rejected the defense psychiatrist’s, Dr. Wetzler’s, testimony that McKenzie was incapable of acting knowingly or purposefully. The jury therefore, if properly instructed, would have found that McKenzie acted knowingly or purposefully. 11 This argument is seriously flawed.

To support this argument, the majority adopts the state’s view that the jury must have considered the “particular purpose” element before the “knowingly and purposely” element. This, the majority and the State reason, is the only way a rational juror could have reconciled the two conflicting applicable instructions: (1) that the jury could use a presumption in determining the knowingly or purposefully element, with (2) the instruction that it could use only an inference in determining the particular purpose. However, we find no basis to assume that no rational juror could have considered the knowingly or purposefully element first. The instructions required each juror to parse and recombine numerous directives, a task, if undertaken at all, that could lead to two paths of analysis — to determine the knowingly or purposefully element first and then the particular purpose, or to reverse the order. Further, the State’s argument ignores the instructions that strongly suggest that the jury consider the knowingly or purposefully element first. See, e.g., Instr. 36; 12 see generally *1554 McKenzie, 608 P.2d at 484-86 (Shea, J., dissenting). When jury instructions are inconsistent, we cannot assume that the jury chose the constitutional path. Francis, 105 S.Ct. at 1975-76 . Because a rational juror could have considered first the knowingly and purposefully element, the unconstitutional presumption could well have tainted a juror’s consideration of the particular purpose element, thereby impermissibly providing a building block from which to use the inference. Having found — although improperly — that McKenzie acted knowingly or purposefully, it is but a small step to choose among possible objectives McKenzie’s alleged particular purpose.

Even if we were to agree that the jury, through an uncanny ability to make sense of these instructions, determined first McKenzie’s particular purpose, it cannot be determined beyond a reasonable doubt that the jury rejected Dr. Wetzler’s testimony concerning diminished capacity even though finding a particular purpose. Although twice referring to the particular purpose element as a mental state, see Instrs. 34, 36, the trial judge nowhere defined the element as an intent requirement nor explained what is necessary to reach a finding that the element was present. 13 Further, one of the particular purposes, “to satisfy some [ ] untoward propensity of the assailant” does not invite consideration of Dr. Wetzler’s testimony at all.

Some of the particular purposes arguably could have been viewed by the jury as involving an intent requirement. Nonetheless, these instructions are also tainted by the unconstitutional presumption. Instruction 30 directs the jury to presume that McKenzie is of sound mind. The trial court directed the jury to read all of the instructions together with all of the other instructions. Implicitly, then, instruction 30 must have had an impact on the particular purpose instructions or, at least, there is a high likelihood that it did. See Francis, 105 S.Ct. at 1972-77 (involving a similar “sound mind” instruction). In addition, several of the particular purposes permit consideration of the underlying felonies. Elsewhere, the trial judge directed the jury to use the unconstitutional presumptions in finding these underlying felonies. See Instr. 37 (sexual intercourse without consent); Instr. 38 (assault). The majority’s answer is that the trial judge directed the jury “never” to use a presumption in determining a particular purpose. In actuality, that instruction is inconsistent with the other instructions and only adds to the confusion. It is not clear beyond a reasonable doubt that it was the only instruction a rational juror would follow. Francis, 105 S.Ct. at 1975-76 . We simply cannot agree with the majority that the jury, in fact, beyond a reasonable doubt, did not rely on the unconstitutional presumptions.

Nor are we persuaded by applying the Rose-Pope analysis that “the facts found by the jury were such that it is clear beyond a reasonable doubt that if the jury had never heard the impermissible instruction its verdict would have been the same.” Pope, 107 S.Ct. at 1922 n. 6. Looking at the record as a whole, we must determine whether “ ‘the evidence was so dispositive on intent that ... beyond a reasonable doubt ... the jury would have found it unnecessary to rely on the presumption.’ ” Rose, 106 S.Ct. at 3109 (quoting Connecticut v. Johnson, 460 U.S. 73 , 97 & n. 5, 103 S.Ct. 969 , 983 & n. 5, 74 L.Ed.2d 823 (1983) (Powell, J., dissenting)).

We are confronted essentially with the conflicting evidence of the State’s and the defendant’s expert psychiatrists as to the capacity of the defendant to form criminal intent. It appears fairly evenly balanced. Our role is not to judge the credibility of the witnesses, but rather to determine *1555 whether any juror could have had a reasonable doubt as to the defendant’s capacity to form a criminal intent.

Because of the conflicting testimony of qualified experts, directed to the critical issue of mental capacity, who can say beyond a reasonable doubt how the jury, unburdened from the wrong and confusing instructions, would have decided whether McKenzie had the requisite intents? We simply can’t know and certainly we cannot know beyond a reasonable doubt. Even if we were to accept that the jury’s findings of “particular purposes” were properly made, the “particular purposes” are a strange assortment of goals, not all of which are clearly matters of intent. The finding of “particular purposes” does not make it clear beyond a reasonable doubt that the jury, if properly instructed, would have found an intent to kill or kidnap. The capacity to have a particular purpose does not necessarily encompass the capacity to entertain a rather different kind of intent.

Nor can we assume that the jury, in finding that McKenzie entertained a particular purpose, necessarily rejected all of Dr. Wetzler’s testimony. The jury was not required to accept or reject that testimony in its entirety; it could have accepted portions of it and drawn its own conclusions regarding McKenzie’s ability to entertain particular kinds of intent.

When intent is at issue, a Sandstrom error ordinarily cannot be harmless. See Bowen v. Kemp, 832 F.2d 546 (11th Cir.1987) (en banc). The evidence of intent must be overwhelming to make the error harmless. Id. at 551 . The evidence of McKenzie’s capacity to form the requisite intents was far from overwhelming.

CONCLUSION

Duncan McKenzie was accused of heinous and violent crimes. But the nature of the crimes does not excuse the State of Montana from affording him a fair trial. The errors in instructions were many and monstrous, intertwined and confusing. They obscured the only issue: whether McKenzie had the capacity to form the requisite criminal intent. The effect was to deny Duncan McKenzie a fair trial. 14 The district court’s decision dismissing the writ of habeas corpus should be reversed.

APPENDIX TO DISSENT

The State of Montana, Plaintiff, v. Duncan Peder McKenzie, Jr., Defendant.

Criminal Case No. 6593A

IN THE DISTRICT COURT OF THE EIGHTH JUDICIAL DISTRICT OF THE STATE OF MONTANA, IN AND FOR THE COUNTY OF CASCADE.

Filed Feb. 1, 1975

PRELIMINARY INSTRUCTIONS

LADIES AND GENTLEMEN OF THE JURY:

The following are preliminary written instructions of the law in this case, and at the conclusion of the trial additional instructions may be necessary, and, if so, they will be given to you. These instructions are given to you at this time to assist you throughout the trial of the case.

1. It is the duty of the Judge to instruct the jury on the law applicable to this case, and it is your duty as jurors to follow the law as I shall state it to you.

2. The function of the jury is to try the issues of fact that are presented by the allegations in the information filed in this Court and the defendant’s pleas of “Not Guilty”. This duty you should perform uninfluenced by passion or prejudice. You must not suffer yourselves to be biased against a defendant because of the fact that he has been arrested for these offenses, or because an information has been filed against him, or because he has been brought before the Court to stand trial. None of these facts is evidence of his guilt and you are not permitted to infer or to speculate from any or all of them that he is more likely to be guilty than innocent.

*1556 3. By no remark made by the Court during the trial nor by these instructions does the Court express any opinion as to the facts in this case or what verdict you should return.

4. You should take the law in this case from the Court’s instructions alone. You should not give any weight to statements of counsel or of anyone else as to what the law is, nor should you allow yourselves to decide this case contrary to these instructions, even though you might believe that the law ought to be otherwise. Counsel, however, are privileged to comment and argue to the jury upon the law as given in these instructions. If, in these instructions, any rule, direction or idea be stated in varying ways, no emphasis thereon is intended by me, and none must be inferred by you; neither are you to single out any certain sentence, or any individual point or instruction, and ignore the others, but you are to consider all of the instructions as a whole, and are to regard each in the light of all the others. The order in which the instructions are given has no significance as to their relative importance.

5. You are to be governed solely by the evidence introduced in this trial and the law as stated to you by me. The law forbids you to be governed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling. Both the State and the defendant have a right to demand, and they do demand and expect that you will conscientiously and dispassionately consider and weigh the evidence and apply the law to the case and that you will reach a just verdict.

6.STATEMENT OF THE CASE

The defendant, DUNCAN PEDER McKENZIE, JR., is accused in the information filed against him of the following offenses: Deliberate Homicide — two counts; Aggravated Kidnapping — two counts; Sexual Intercourse Without Consent — one count; Aggravated Assault — two counts. The offenses are charged as follows:

Although the Defendant is charged with two counts in each of the offenses of Deliberate Homicide, Aggravated Kidnapping and Aggravated Assault, only one offense of Deliberate Homicide and one offense of Aggravated Kidnapping and one offense of Aggravated Assault are involved in this case. Leave was granted the State of Montana to charge in this manner, and to also charge the offense of Sexual Intercourse Without Consent, in order to meet the problems in proof that arise when an offense or offenses can be committed in different ways, or by different means, or for different purposes.

The Defendant can be convicted or acquitted on any or all of said offenses as you may find the allegations in each of said counts proved or not proved, but in no event may be sentenced for more than one offense of Deliberate Homicide and more *1558 than one offense of Aggravated Kidnapping and more than one offense of Aggravated Assault even though you may find both of the counts with which he is charged in each of said offenses to have been proved beyond a reasonable doubt.

Sentencing, if any, will depend upon the verdict or verdicts which you may return, and under Montana law the matter of sentencing is vested solely in the Court so you are not to concern yourselves therewith.

In arriving at your verdict or verdicts in this case, the subject of penalties or possible punishment is not to be discussed or considered by you and must not in any way be allowed to affect your decisions as to the innocence or guilt of the defendant of the offenses charged.

To each of the seven counts contained in the Information the Court, under the law of this State, ordered a plea of “Not Guilty” to be entered on behalf of the defendant, when under his legal right he stood mute and refused to plead to the counts contained in the Information. Under such pleas of “Not Guilty” every material allegation contained in each of said seven counts is denied.

In order to convict the defendant of the offense charged in any of said counts all of the material allegations contained in that particular count must be proved beyond a reasonable doubt. All of the allegations contained in each Count are material to the charge contained in that count.

7.PRESUMPTION OF INNOCENCE-DEFINITION OF REASONABLE DOUBT

You are instructed that a defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to an acquittal. The effect of this presumption places upon the State the burden of proving the defendant guilty beyond a reasonable doubt.

Reasonable doubt is defined as follows:

It is not a mere possible doubt, because everything relating to human affairs and depending upon evidence is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction to a moral certainty of the truth of the charge.

8.MAY NOT CONVICT ON CONJECTURE OR SURMISE

A person may not be convicted on possibilities or on mere conjecture or surmises, however shrewd, but only on evidence establishing his guilt beyond a reasonable doubt; that is, on evidence which establishes an abiding conviction to a moral certainty of the truth of the charge.

9.EXCLUDING ALL POSSIBILITY OF ERROR AND PROOF TO ABSOLUTE CERTAINTY NOT REQUIRED

You are instructed that the law does not require demonstration or that degree of proof which, excluding all possibility of error, produces absolute certainty, for such degree of proof is rarely possible. That degree of proof is necessary which convinces the mind and directs and satisfies the conscience of those who are bound to act conscientiously upon it; that is, to a moral certainty of the truth of the charge, no more and no less.

10.PURPOSELY DEFINED:

A person acts purposely with respect to a result or to conduct described by a statute defining an offense if it is his conscious object to engage in that conduct or cause that result. When a particular purpose is an element of an offense, the element is established although such purpose is conditional, unless the condition negatives the harm or evil sought to be prevented by the law defining the offense. Equivalent terms such as “purpose” and “with the purpose” have the same meaning.

*1559 11.KNOWINGLY DEFINED:

A person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware of his conduct or that the circumstance exists. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence. Equivalent terms such as “knowing” or “with knowledge” have the same meaning.

12. INTENT DEFINED:

Intent is a state of the mind importing conscious purpose, aim or decision.

13. FELONY DEFINED:

“Felony” means an offense in which the sentence imposed upon conviction is death or imprisonment in the state prison for any term exceeding one (1) year.

14.FORCIBLE FELONY DEFINED:

“Forcible felony” means any felony which involves the use or threat of physical force or violence against any individual.

15.THREAT DEFINED:

“Threat means a menace, however communicated to

(a) inflict physical harm on the person threatened or any other person or on property; or

(b) subject any person to physical confinement or restraint; or

(c) commit any criminal offense.

16.ACTS DEFINED:

“Acts” has its usual and ordinary grammatical meaning and includes any bodily movement, any form of communication, and where relevant, includes a failure or omission to take action.

17.VOLUNTARY ACT DEFINED:

A “voluntary act” is any act that is the product of the effort or determination of the actor, either conscious or habitual.

18. BODILY INJURY DEFINED:

“Bodily injury” means physical pain, illness or any impairment of physical condition and includes mental illness or impairment.

19.SERIOUS BODILY INJURY DEFINED:

“Serious bodily injury” means bodily injury which creates a substantial risk of death or which causes serious permanent disfigurement, or protracted loss or impairment of the function or process of any bodily member or organ and includes serious mental illness or impairment.

20.SEXUAL INTERCOURSE DEFINED:

“Sexual intercourse” means penetration of the vulva, anus or mouth of one person by the penis of another person, or penetration of the vulva or anus of one person by any body member of another person or penetration of the vulva, or anus of one person by any foreign instrument or object manipulated by another person for the purpose of arousing or gratifying the sexual desire of either party. Any penetration, however slight, is sufficient.

21.HUMAN BEING DEFINED:

“Human being” means a person who has been born and is alive.

22.DELIBERATE HOMICIDE DEFINED:

In this case, insofar as we are concerned with the offense of deliberate homicide, you are instructed:

Deliberate homicide is one kind of criminal homicide. Homicide is deliberate homicide if:

(a) it is committed either purposely or knowingly,

(b) it is committed while the offender is engaged in or is an accomplice in the commission of, or an attempt to commit kidnapping, or any other felony which involves *1560 the use or threat of physical force or violence against the individual.

Proof that the defendant acted both purposely and knowingly is not required. Proof of either of said mental states is sufficient.

23. DELIBERATE HOMICIDE BY MEANS OP TORTURE DEFINED:

Deliberate Homicide by Means of Torture insofar as we are concerned with the definition thereof in this case is:

Whoever purposely assaults another physically for the purpose of inflicting cruel suffering upon the person so assaulted for the particular purpose of enabling the assailant to either:

(a) extort anything from such person;

(b) or to persuade such person against his or her will, or

(c) to satisfy some other untoward propensity of the assailant,

and in so doing the assailant causes the death of the person he assails, in the law is guilty of the offense of Deliberate Homicide by Means of Torture, whether or not it was the purpose or intention of the assailant to cause such death.

“Untoward Propensity” means any perverse, wrong, bad or corrupt inclination or tendency.

24. DELIBERATE HOMICIDE BY MEANS OF LYING IN WAIT OR AMBUSH DEFINED:

Deliberate Homicide by means of lying in Wait or Ambush, insofar as we are concerned with the definition thereof in this case is:

Whoever conceals himself, and watches and waits for another with the particular purpose of taking such person unawares, and killing him, and he does kill him is Guilty of Deliberate Homicide by means of lying in wait or ambush.

25.KIDNAPPING AND AGGRAVATED KIDNAPPING DEFINED:

Insofar as we are concerned with the offense of Kidnapping in this case you are instructed:

Kidnapping:

A person commits the offense of kidnapping if he either knowingly or purposely and without lawful authority restrains another person by either secreting or holding him in a place of isolation, or by either using or threatening to use physical force to hold said person.

Aggravated Kidnapping:

A person commits the offense of aggravated kidnapping if he either knowingly or purposely restrains another person by either secreting or holding him in a place of isolation or by using or threatening to use physical force to hold said person for any of the following particular purposes:

26.SEXUAL INTERCOURSE WITHOUT CONSENT DEFINED:

A male person who knowingly has sexual intercourse without consent, with a female, not his spouse, commits the offense of sexual intercourse without consent.

“Without Consent” means the victim is compelled to submit by force, or by threat of imminent death, bodily injury or kidnapping, or that the victim is incapable of consent because she is physically helpless.

“Physically helpless” means that a person is unconscious or otherwise physically unable to communicate an unwillingness to act.

27.AGGRAVATED ASSAULT DEFINED:

A person commits the offense of Aggravated Assault if he either purposely or knowingly causes either:

*1561 “Weapon” means any instrument or article, or substance which, regardless of its primary function, is really capable of being used to produce death or serious bodily injury.

28. COURT ADMONITION TO JURY:

It is your duty not to converse among yourselves or with anyone else, or to suffer yourselves to be addressed by any person on any subject connected with this trial, or to form or express any opinion thereon until the case is finally submitted to you. If anyone should attempt to talk to you about the case, you will advise them that you have been selected as a juror in the case and that you are not permitted to talk about it. If they continue to talk to you, it will be your duty to immediately report the same to the Court.

The State of Montana, Plaintiff, vs. Duncan Peder McKenzie, Jr., Defendant.

Criminal Case No. 6593-A

IN THE DISTRICT COURT OF THE EIGHTH JUDICIAL DISTRICT OF THE STATE OF MONTANA, IN AND FOR THE COUNTY OF CASCADE

Filed Feb. 1, 1975

ADDITIONAL INSTRUCTIONS

LADIES AND GENTLEMEN OF THE JURY:

29. REQUIREMENT OF VOLUNTARY ACT WITH A MENTAL STATE.

A person to be guilty of any of the offenses charged in any of the seven counts charged in the Information must have committed the act or acts charged voluntarily, while having with regard to each element contained in the law defining the offense one of the mental states contained in the said definition.

I.

The offense of Deliberate Homicide requires that the voluntary act (the Killing) have been committed by the defendant either knowingly or purposely or that it was committed in the commission of a forcible felony.

II.

The offense of Deliberate Homicide by Means of Torture requires that the voluntary act (the physical infliction of cruel suffering) be done purposely and in addition thereto that it was done for the particular purpose of enabling the assailant either:

(a) to extort something from the person assailed; or,

(b) to persuade the assailed against his or her will; or

(c) to satisfy some other untoward propensity of the assailant.

III.[Omitted by Court]

IV.

The Offense of Kidnapping requires that the voluntary act (the secreting or holding of a victim in a place of isolation without lawful authority, or the holding of said person by physical force or threats thereof) be done either knowingly or purposely.

V.

The Offense of Aggravated Kidnapping requires that the voluntary act (the secreting or holding the victim without lawful authority in a place of isolation, or the holding of said person by physical force or threats thereof), be done either knowingly or purposely, and in addition thereto that it be done for one of the following particular purposes: either

(a) to facilitate the commission of any felony (in this case sexual intercourse without consent of the victim, or an aggravated assault upon the victim), or

(b) to inflict bodily injury on the victim, or

(c) to terrorize the victim.

*1562 VI.

The Offense of Sexual Intercourse Without Consent requires that the voluntary act (sexual intercourse without consent) be done knowingly.

VII.

The Offense of Aggravated Assault requires that the voluntary act (the infliction of serious bodily injury either with or without a weapon, or the infliction of bodily injury with a weapon) be done either knowingly or purposely.

30. MENTAL STATE — KNOWLEDGE OR PURPOSE — HOW MANIFESTED

The knowledge or purpose with which an act is done is manifested by the circumstance connected with the offense and the sound mind of the accused. All persons are of sound mind who are not afflicted with a disease or defect of the mind which excludes responsibility for their conduct.

Upon the trial of the issues raised by the pleas of “Not Guilty” to the charges made in the Information, the defendant is presumed to have been free from any disease or defect of the mind which excludes responsibility for his conduct at the time the offenses are alleged to have been committed and to be sane now.

31. MENTAL STATE — METHODS OF PROOF

The knowledge or purpose with which an act is committed being a mental state, is incapable of being proved by direct evidence, and proof thereof is permitted by indirect or circumstantial evidence, which means proof by rules of law, denominated inferences and presumptions.

In considering the question of mental state (either knowledge or purpose) it is necessary that you understand the difference between direct and indirect or circumstantial evidence and the legal distinction between inferences and presumptions, so that you use and apply the correct rule in evaluating the evidence, and in your determination of the questions of knowledge or purpose.

Direct evidence is evidence obtained through the use of any of the five senses, and which proves the fact in question without the use of either inferences or presumptions.

Direct evidence, if found to be true, is conclusive proof of the facts testified to.

Indirect evidence, also known as circumstantial evidence, does not prove the fact in question directly. Rather the fact in question is deduced, that is reasoned, from a proved fact, or facts. Indirect evidence is of two kinds; namely presumptions and inferences.

A presumption is a deduction or reasoning which the law expressly directs a jury make from proved fact or facts; while an inference is a deduction or reasoning which the law permits or allows the jury to draw from the fact or facts proved.

Presumptions expressly direct you to reason from proved facts.

Inferences permit you to reason from proved facts.

It is not necessary that facts be proved by direct evidence. They may be proved also by indirect evidence or by a combination of both direct and indirect evidence. Both direct evidence and indirect evidence are acceptable as a means of proof. Neither is entitled to any greater weight than the other.

By way of example only, and to illustrate the difference between direct and indirect evidence and the difference between inferences and presumptions of law, you are instructed:

I.

Proof by Direct Evidence (Testimony obtained through the use of any of the five senses, and which prove the fact in question without the use of either inferences or presumptions and which, if found true, conclusively prove such fact):

The witness actually saw “A” pick up a board and hit “B” over the head with it knocking “B” to the ground with a bleeding head. He testified only as to what he *1563 saw: “A” picking up the board, hitting “B” over the head with it and “B” being knocked to the ground with a bleeding head. If the jury believes the witness it conclusively proves without the use of inference or presumption only that “A” picked up a board and struck “B” over the head with it and “B” was injured thereby. “A’s” mental state — did he hit “B” over the head knowingly and purposely to injure “B” — has to be reasoned from the fact “A” picked up the board and from the manner and way he used it in striking “B”, and from any other facts and circumstances proved in connection with the matter, that is proved by indirect or circumstantial evidence (inference or presumption).

II.

Proof by Indirect or Circumstantial Evidence.

(Deduction or reasoning which the jury makes from facts proved):

1. Proof by Inference (Deduction which the reason of the jury makes from facts proved without an express direction of the law to that effect).

The witness heard a cry for help, he immediately looked out of the window and saw only two men: “A” holding a board, was standing over the body of “B” who was unconscious on the ground bleeding from a wound in his head. He did not see “A” strike “B” and testified only as to what he saw and heard. Other evidence was introduced to show that the board then held by “A” had blood on it which was the same type as “B’s” blood, and that “A” had a motive for striking “B” and had made threats against “B”.

If the jury believes the witness and the other evidence which was introduced they are permitted to deduce; that is, reason therefrom that “A” struck “B” with the board and that he did so intentionally; that is knowingly or purposely.

2. Proof by Presumption of Law (Deductions which the law expressly directs to be made from particular facts):

The witness heard a cry for help. He immediately looked out of a window and saw only two men; “A” holding a board and standing over the body of “B” who was unconscious on the ground and with his head bleeding. Other evidence was introduced to show that the board then held by “A” had blood on it which was the same type as “B’s” blood and evidence was introduced that “B” had been struck on the head three times by the board to show that the striking was not accidental. No evidence was introduced as to a motive for “A’s” striking “B” and no evidence of threats by “A” against “B” was introduced.

If the jury believes the witness and the other evidence introduced they are permitted to deduce or reason that “A” struck “B” over the head with the board intentionally and for the purpose of injuring him but in addition thereto the law presumes, that is, the law expressly directs the jury to reason: That an unlawful act was done with an unlawful intent and also that a person is presumed to intend the ordinary consequences of his voluntary act.

Having found that “A” struck “B” over the head with a board three times, intentionally (absent any evidence that the act was in self defense by “A”), “A’s” act was unlawful and the jury is expressly directed to reason that “A” struck “B” with an unlawful intent; that is, knowingly or purposely and is further expressly directed to reason that he intended to inflict the injuries that ordinarily result from such an act.

There are other legal presumptions besides those referred to in the foregoing illustration and you will be instructed with particularity as to the use of inferences and presumptions as they may have application to each Count with which the defendant is charged.

Further, unless you are otherwise instructed with regard to a particular presumption, all presumptions are rebuttable; that is, they may be controverted and overcome by other evidence.

32. PARTICULAR PURPOSE NEVER TO BE PRESUMED

In offenses which require proof of a particular purpose the particular purpose re *1564 quired may never be proved by means of legal presumptions, but must be proved by means of inferences only. In this case the offenses of: Deliberate Homicide by Means of Torture and Aggravated Kidnapping all require proof that the defendant committed the particular act charged for a particular purpose, in addition to proof that he committed said act either knowingly or purposely.

33. METHOD OF PROOF APPLICABLE TO THE OFFENSE OF DELIBERATE HOMICIDE

The mental state accompanying the voluntary act required for the offense of deliberate homicide being either knowingly or purposely and not requiring in addition thereto that the act be committed for a particular purpose, proof of the mental state may be made by the use of either inferences or presumptions, or by the use of both inferences and presumptions.

I. Proof of Mental State by Inference

If you find from the evidence beyond a reasonable doubt that the defendant, on or about January 21,1974, in Pondera County, Montana, in the commission of a voluntary act, caused the death of Lana Harding, you are permitted from that fact alone to deduce or reason that he did so either knowingly or purposely, if no circumstances of mitigation, excuse or justification appear in the evidence.

You will be instructed on mitigation, excuse and justification if such instructions are needed.

In addition to the fact of death being voluntarily caused by the accused, you may, and are instructed to also consider all of the facts and circumstances connected with said death, that have been proved in the evidence in determining whether or not the defendant acted either knowingly or purposely.

II. Proof of Mental State by Presumptions.

(1) If you find beyond a reasonable doubt that the defendant, on or about January 21, 1974, in Pondera County, Montana, voluntarily committed an illegal act on Lana Harding, such as assaulting or injuring her, the law presumes that an unlawful act was done with an unlawful intent; that is, the law expressly directs you to reason from such unlawful act that the defendant acted with an unlawful intent, or purpose.

This is a rebuttable presumption, which means it may be controverted and overcome by other evidence, but whether or not a presumption, once it has come into effect is overcome, is for the jury to determine.

(2) The law also presumes that a person intends the ordinary consequence of his voluntary act.

Therefore, if you find beyond a reasonable doubt that the defendant, on or about January 21, 1974, in Pondera County, Montana, voluntarily and unlawfully assaulted or injured Lana Harding, and if you further find beyond a reasonable doubt that the death would result as the ordinary consequence of such an assault or injury, the law presumes that, and expressly directs you to reason therefrom that the defendant intended to cause said death regardless of whether or not he actually had such an intent or purpose.

This also is a rebuttable presumption capable of being controverted and overcome, but once it has come into effect it is for the jury to determine whether or not it has been rebutted.

III.Proof of Deliberate Homicide by Commission of a Forcible Felony

Under subdivision (b) in the definition of deliberate homicide you have been instructed a homicide is deliberate homicide if it is committed while the offender is engaged in the commission of, or an attempt to commit sexual intercourse without consent, kidnapping or any other felony which involves the threat of any physical force or violence against any individual.

Sexual Intercourse without consent, Kidnapping and Aggravated Kidnapping and Aggravated Assault have been defined for you. All of these offenses are felonies which involve the threat of physical force or violence against an individual.

*1565 Therefore, if you find from the evidence beyond a reasonable doubt that the defendant, on or about January 21, 1974, in Pond-era County, Montana, while engaged in: —the offense of Sexual intercourse without consent, or in the offense of kidnapping, or in the offense of aggravated kidnapping, or in the offense of aggravated assault,— caused the death of Lana Harding, the law has declared that he has committed the offense of deliberate homicide, regardless of whether or not it was his purpose or intent to cause such death.

34. METHODS OF PROOF APPLICABLE TO DELIBERATE HOMICIDE BY MEANS OF TORTURE

The mental state of purposely assaulting another physically to inflict cruel suffering upon that person for a particular purpose cannot be proved by using the legal presumptions you have been directed to use in the proof of deliberate homicide, and must be proved by the use of inferences alone.

Therefore, if you find from the evidence beyond a reasonable doubt that the defendant, on or about January 21, 1974, in Pond-era County, Montana, purposely assaulted Lana Harding physically and inflicted cruel suffering upon her and in so doing caused her death, you are permitted to infer, that is, deduce or reason from the facts and circumstances which are proved in connection therewith, that he did so for one or more of the particular purposes charged; either,

(a) to extort something from her, or

(b) to persuade her to do something against her will, or

(c) to satisfy some other untoward propensity of the defendant.

And if you find one or more of said particular purposes to have been proved beyond a reasonable doubt and that the defendant killed her while purposely so inflicting cruel suffering upon her, he has committed the offense of Deliberate Homicide by means of Torture, whether it was or was not his purpose or intention to kill her.

35. METHOD OF PROOF APPLICABLE — KIDNAPPING

The offense of kidnapping is a lesser offense included in the charges of Aggravated Kidnapping made in Counts 3 and 4 of the Information.

The charge of kidnapping requires that the defendant need only to have either knowingly or purposely, without unlawful authority, restrained Lana Harding by secreting or holding her in a place of isolation, or by using or threatening to use physical force to hold her.

It does not require, as does the offense of Aggravated Kidnapping, that the defendant have had in addition to such unlawful restraining a particular purpose in mind, such as the purpose to commit sexual intercourse without her consent, or to inflict bodily injury on her, or to terrorize her.

Therefore, the mental state of either knowingly or purposely restraining Lana Harding may be proved by way of inferences or presumptions of law or by the use of both inferences and presumptions of law.

I. Proof by Inference

If you find beyond a reasonable doubt that the defendant, on or about January 21, 1974, in Pondera County, Montana, without lawful authority, voluntarily restrained Lana Harding, either by secreting her in a place of isolation, or by using physical force, or by threatening to use physical force to hold her, you are permitted to reason therefrom and from all other facts and circumstances connected therewith that he did so either knowingly or purposely.

II. Proof by Presumption

If you find beyond a reasonable doubt that the defendant, on or about January 21, 1974, in Pondera County, Montana, without lawful authority, restrained Lana Harding, either by secreting her in a place of isolation, or by using physical force, or by threatening to use physical force to hold her, the law presumes that he acted therein with an unlawful intent, purpose or knowl *1566 edge, and expressly directs you to so reason.

This presumption in law that an unlawful act was done with an unlawful intent is as you have heretofore been instructed, a re-buttable presumption subject to being controverted and overcome by other evidence as you may find the evidence to be.

36.METHOD OF PROOF — AGGRAVATED KIDNAPPING

The offense of Aggravated Kidnapping, in addition to the proof required to prove the offense of kidnapping, requires proof that the kidnapping was committed for a particular purpose.

In this case Count 4 requires proof that the Kidnapping was for a particular purpose either to inflict bodily injury on Lana Harding, or to terrorize her and Count 3 requires that the kidnapping have been for the particular purpose of facilitating the commission of a felony: either sexual intercourse with Lana Harding without her consent, or to commit an Aggravated Assault on her.

Therefore, if you find beyond a reasonable doubt that the defendant, on or about January 21, 1974, in Pondera County, Montana, did kidnap Lana Harding, before he can be found guilty of the offense of aggravated kidnapping as charged in the Information, you must further find beyond a reasonable doubt that he acted while having at least one of the particular purposes charged.

Since a particular purpose may never be presumed in law, the mental state of either knowingly or purposely secreting or holding for a particular purpose must be proved by inference only without the use of any presumptions of law.

This means if you find beyond a reasonable doubt that the defendant did kidnap Lana Harding, you are permitted to deduce or reason from any and all facts and circumstances proved in connection therewith that he did so with one or more of the particular purposes charged in Counts 3 and 4, and to find beyond a reasonable doubt that he committed the offense as charged.

37. METHODS OF PROOF APPLICABLE TO SEXUAL INTERCOURSE WITHOUT CONSENT

I. Proof by Inference

You are permitted to deduce, that is reason, from facts proved beyond a reasonable doubt: That the defendant on or about the 21st day of January, 1974, in Pondera County, Montana, without the consent of Lana Harding, who was not his wife, knowingly had sexual intercourse with her, and to find beyond a reasonable doubt, that he committed the offense of sexual intercourse without consent as charged.

II. Proof by Presumption

Since the offense of sexual intercourse without consent does not require that the act be done purposely or for a particular purpose and may be proved by showing the act was knowingly done, proof of such mental state can be made by presumption.

Therefore, since the law presumes that an unlawful act was done with an unlawful intent if you reason from facts proved beyond a reasonable doubt that the defendant on or about January 21st, 1974, in Pondera County, Montana, had sexual intercourse with Lana Harding who was not his wife, and without her consent, you are expressly directed to reason therefrom, that he did so knowingly, and you may find therefrom beyond a reasonable doubt that he committed said offense as charged.

This presumption that an unlawful act was done with an unlawful intent is a re-buttable presumption subject to being controverted and overcome as you may find the evidence to be.

38. METHODS OF PROOF APPLICABLE TO THE OFFENSE OF AGGRAVATED ASSAULT

I. Proof by Inference

You are permitted to reason from facts proved beyond a reasonable doubt:

*1567 (a) That the defendant on or about the 21st day of January, 1974, in Pondera County, Montana, either knowingly or purposely caused Lana Harding serious bodily harm (as distinguished from just bodily harm) without the use of a weapon, and/or

(b) That on or about the 21st day of January, 1974, in Pondera County, Montana, the defendant either knowingly or purposely with a weapon, inflicted bodily harm (as distinguished from serious bodily harm) on Lana Harding, and to find beyond a reasonable doubt that the defendant committed the offense as charged.

II. Proof by Presumptions

Since the offense of aggravated assault may be committed either knowingly or purposely, the offense may be proved by showing the act was knowingly done, and the legal presumptions that: “An unlawful act was done with an unlawful intent, and the legal presumption that a person is presumed to intend the ordinary consequences of his voluntary act,” can be used to prove the mental state of knowingly.

Therefore, if you reason from facts proved in the evidence beyond a reasonable doubt that the defendant on or about the 21st day of January, 1974, in Pondera County, Montana, unlawfully caused Lana Harding bodily injury either with or without a weapon, the law expressly directs you to reason therefrom that he acted with unlawful intent that is purposely; and if you further reason from facts proved beyond a reasonable doubt that the harm inflicted by him was such as ordinarily results from an act such as defendant’s, the law expressly directs you to reason that he intended the consequences of his act.

These presumptions “that an unlawful act was done with an unlawful intent”, and “A person is presumed to intend the ordinary consequences of his voluntary act”, are both rebuttable presumptions, each being subject to being controverted and overcome by other evidence as you may find the evidence to be.

39. CIRCUMSTANTIAL EVIDENCE — TEST OF SUFFICIENCY

You are instructed when the proof of any allegation required to prove a criminal offense against a defendant rests entirely on indirect or circumstantial evidence, the defendant may not be found guilty of the offense unless:

1. Each fact or circumstance which is presented to complete a chain of circumstances that will establish guilt must be proved beyond a reasonable doubt, and

2. Such proved facts and circumstances must be consistent only with a hypothesis of guilt and inconsistent with any other rational conclusion.

This does not mean that each proved fact or circumstance considered alone must be consistent only with a hypothesis of guilt, but that each fact or circumstance from which guilt may be deduced or reasoned must be proved beyond a reasonable doubt and that all of the proved facts and circumstances when considered together and as a whole give rise to the deduction or reasoning that the defendant is guilty. The doctrine of reasonable doubt applies only to the proof of guilt and not to proving that each link in a chain of evidence used to show guilt is consistent only with guilt. Any proved fact or circumstance when considered by itself may give rise to an inference which is as equally consistent with innocence as it is with guilt, but all of the proved facts and circumstances when considered together must be consistent only with a hypothesis or inference of guilt and inconsistent with any other rational inference or deduction.

40.

If the evidence in this case as to any particular charge is susceptible of two constructions or interpretations, each of which appears to you to be reasonable, and one of which points to the guilt of the defendant, and the other to his innocence, it is your duty, under the law, to adopt that interpretation which will admit of the defendant’s *1568 innocence, and reject that which points to his guilt.

You will notice that this rule applies only when both of the two possible opposing conclusions appear to you to be reasonable. If, on the other hand, one of the possible conclusions should appear to you to be reasonable and the other to be unreasonable, it would be your duty to adhere to the reasonable deduction and to reject the unreasonable, bearing in mind, however, that even if the reasonable deduction points to defendant’s guilt, the entire proof must carry the convincing force required by law to support a verdict of guilt.

41.PRODUCTION OF ALL EVIDENCE NOT REQUIRED

Neither the prosecution nor the defense is required to call as witnesses all persons who are shown to have been present at any of the events involved in the evidence or who may appear to have some knowledge of the matters in question in this trial; nor is the prosecution or defense required to produce as exhibits all objects or documents that have been referred to in the testimony, or the existence of which may have been suggested by the evidence.

42.DIRECT AND CIRCUMSTANTIAL EVIDENCE EQUALLY ENTITLED TO CONSIDERATION

Two classes of evidence are recognized and admitted in courts of justice, upon either or both of which, juries lawfully may base their findings, whether favorable to the State of Montana or to the defendant, provided, however, that to support a verdict of guilt the evidence, whether of one kind or the other or a combination of both, must carry the convincing quality required by law.

One type of evidence is known as direct and the other as circumstantial. The law makes no distinction between the two classes as to the degree of proof required for conviction or as to their effectiveness in defendant’s favor, but respects each for such convincing force as it may carry and accepts each as a reasonable method of proof.

43.REGARDING FAILURE OF DEFENDANT TO TESTIFY

It is a Constitutional right of a defendant in a criminal trial that a defendant may not be compelled to testify.

In deciding whether or not to testify, the defendant may choose to rely on the state of the evidence, and upon the failure, if any, of the prosecution to prove every essential element of the particular charges against him. No lack of testimony on the defendant’s part will supply a failure of proof by the prosecution so as to support by itself a finding against him on any essential element of a particular charge or charges.

If the defendant chooses not to testify you are not to consider his choice in any manner as evidence against him nor to allow it to prejudice your deliberations in any way.

44.CREDIBILITY OF WITNESSES AND PRESUMPTION OF TRUTH

The jury are the sole and exclusive judges of the effect and value of evidence addressed to them and of the credibility of the witnesses who have testified in the case. The term “witness” includes every person whose testimony under oath has been received as evidence, whether by examination here in court or through deposition.

The character of the witnesses, as shown by the evidence, should be taken into consideration for the purpose of determining their credibility, that is whether or not they have spoken the truth. The jury may scrutinize the manner of witnesses while on the stand, and may consider their relation to the case, if any, and also their degree of intelligence. A witness is assumed to speak the truth. This assumption, however, may be repelled by the manner in which he testifies; his interest in the case, if any, or his bias or prejudice, if any, for or against one or any of the parties; by the character of his testimony, or by contra *1569 dictory evidence. A witness may be impeached also by evidence that at other times he has made statements inconsistent with his present testimony as to any matter material to the cause on trial.

A witness wilfully false in one material part of his or her testimony is to be distrusted in others. The jury may reject the whole of the testimony of a witness who has wilfully sworn falsely as to a material point. If you are convinced that a witness has stated what was untrue as to a material point, not as a result of mistake or inadvertence, but wilfully and with the design to deceive, then you may treat all of his or her testimony with distrust and suspicion, and reject all unless you shall be convinced that he or she has in other particulars sworn to the truth.

45.IMPEACHMENT BY CONTRADICTORY STATEMENTS

In respect to any attempt to impeach a witness by showing that on some former occasion he made a statement or statements that are contradictory of his testimony here, you are instructed that the evidence of any such contradictory statement is not received for the purpose of proving the truth of what then was said, but only for the purpose of testing the credibility of the witness; you are permitted to consider such evidence only for that purpose, and you are the exclusive judges of the effect of such evidence on the witness’s credibility.

46.REGARDING EXPERT TESTIMONY

Duly qualified experts may give their opinions on questions in controversy at a trial. To assist you in deciding such questions, you may consider the opinion with the reasons stated therefor, if any, by the expert who gives the opinion. You are not bound to accept the opinion of an expert as conclusive, but you should give to it the weight to which you shall find it to be entitled. You may disregard any such opinion, if you find it to be unreasonable.

47.REGARDING EVIDENCE ADMITTED FOR A LIMITED PURPOSE

At times throughout the trial of this case evidence was admitted for a limited purpose or purposes. You are to consider the evidence admitted for a limited purpose or purposes for that purpose or those purposes only.

48.DIRECT EVIDENCE OF ONE WITNESS SUFFICIENT

The direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact in this case.

49. DISTRUST OF WITNESS FOUND WILFULLY FALSE

A witness wilfully false in one material part of his testimony is to be distrusted in other parts thereof.

50. REGARDING COURT RULINGS ON EVIDENCE

At times throughout the trial, the Court will be called upon to pass on the question whether or not certain offered evidence may properly be admitted. You are not to be concerned with the reason for the rulings and are not to draw any inferences from them. Whether offered evidence is admissible is purely a question of law. In admitting evidence to which an objection is made the Court does not determine what weight should be given such evidence; nor does it pass on the credibility of the witness. As to any offer of evidence that has been rejected, or any evidence that has been ordered stricken out by the Court, you, of course, must not consider the same; as to any questions as to which an objection was sustained, you must not conjecture as to what the answer might have been, or as to the reason for the objections, nor may you draw any inferences from the question itself.

51. DO NOT SPECULATE OR MAKE UNWARRANTED INFERENCES

Do not speculate, conjecture, or make unwarranted inferences as to what the *1570 facts might be, and do not assume the existence of any facts unless there is evidence to justify the conclusion. Nor can you act upon any information, other than the evidence given to you in court; that is, stipulations of counsel, exhibits admitted into evidence and witnesses whose sworn testimony is given and admitted in court. You should consider all of the evidence bearing either way on the question presented to you, regardless of which side has produced it.

You are not bound to decide in conformity with the testimony of a number of witnesses which does not produce conviction in your mind as against the declarations of a lesser number, or a presumption or other evidence which appeals to your mind with more convincing force.

This rule of law does not mean that you are at liberty to disregard the testimony of the greater number of witnesses merely from caprice or prejudice, or from a desire to favor one side as against the other. It does mean that you are not to decide an issue by the simple process of counting the number of witnesses who have testified on the opposing sides. It means that the final test is not in the relative number of witnesses, but in the relative convincing force of the evidence.

52. CHARGE OF DELIBERATE HOMICIDE BY LYING IN WAIT OR AMBUSH DISMISSED

The charge of Deliberate Homicide By Lying in Wait or Ambush has been dismissed by the Court and you are not to concern yourselves with this charge, contained in Count II of the Information filed against the defendant.

53. DEFENSE OF MENTAL DISEASE OR DEFECT EXCLUDING RESPONSIBILITY

I.

The defendant has served notice on the Court that he suffers from a mental disease or defect which excludes his responsibility for the acts charged against him by the State of Montana and that he intended to introduce evidence in support of this defense.

By this notice and defense the defendant does not admit that he committed the acts charged against him, but in effect says if you find beyond a reasonable doubt that I did do said acts or any of them, that because of a disease or defect of the mind from which I suffered I was unable at that time to appreciate that said acts were criminal, or in the alternative, if I did appreciate the criminality of the acts I was unable because of said mental disease or defect to avoid the commission of said acts.

II.

Mental Disease or Defect Excluding Responsibility — Definition

A person is not responsible for criminal conduct, if at the time of such conduct, as a result of a mental disease or defect he is unable either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.

The term “mental disease or defect” does not include an abnormality or subnormality of the mind manifested only by repeated criminal or otherwise antisocial conduct, but does include any mental abnormality or subnormality that has reached the degree that a person affected thereby is unable to appreciate that an act is criminal; that is, that the act is wrong and is punishable by the law, and it also includes such persons who may know that acts are wrong and are subject to punishment, but are unable to avoid the commission of the prohibited acts, because of some mental abnormality or subnormality.

In the degree of their individual physical attributes and abilities people differ, and, likewise, they differ individually in their degrees of intellect, their ability to understand and appreciate, their knowledge, their learning, their morality and in the degree that each is able to resist doing that which he or she knows to be wrong and punishable by law.

The law in order to protect the individual person and his or her rights recognizes that *1571 these mental differences exist, but in order to protect society the law does not measure and it does not even attempt to measure mental differences in individuals until and unless the differences in question have reached the point that the differences can be truly termed a mental disease or defect which precludes the power of thought and reason and either renders the afflicted person incapable of appreciating that an act is criminal, or is unable to resist doing the criminal act because of said mental disease or defect if he does appreciate the criminality thereof.

When the defense of mental disease or defect excluding responsibility for criminal conduct has been interposed the jury must determine under the definition thereof given by the Court and from all the evidence in the case whether or not the defendant suffered from such a disease or defect of the mind that it excludes his responsibility for the conduct charged against him.

III.

Burden of Proof-Mental Disease or Defect Excluding Responsibility for Conduct

Mental disease or defect excluding responsibility for criminal conduct is an affirmative defense, which means that the defendant must give advance notice thereof and prove this defense by a preponderance of the evidence.

By a preponderance of the evidence is meant such evidence as when weighed with that opposed to it has the more convincing force and the greater probability of truth.

The law has placed this burden on defendants in criminal cases because in law all persons are presumed to be free from mental diseases and defects which exclude their responsibility for conduct and to be accountable for their conduct (that is the law expressly directs the jury to so reason). This presumption that all persons are free from mental diseases and defects and are accountable for their conduct is a rebut-table presumption which the defendant has the burden of controverting and overcoming.

Therefore, if you find beyond a reasonable doubt that the defendant did do the act or any of the acts charged against him you are expressly directed by the law to deduce or reason that at the time of such conduct he was able to appreciate the criminality of his conduct and to conform his conduct to the requirements of law.

To overcome this express direction of the law the defendant must prove by a preponderance of the evidence, that he suffered from such an abnormality or subnormality of the mind at the time of such conduct that the jury cannot say that it does not have a reasonable doubt as to his responsibility for such conduct.

Since the defendant, by the interposing of the defense of disease or defect of the mind which excludes responsibility for conduct, does not admit any of the acts charged against him, and since the defense goes only to the mental responsibility and control of the defendant, you should first determine from the evidence in the case beyond a reasonable doubt whether the defendant did do the acts charged against him in the Information. If you find beyond a reasonable doubt that the defendant did do said acts or any of them you must then consider whether or not the defendant has overcome the presumption of accountability and whether or not he has created a reasonable doubt in your minds as to his mental accountability and responsibility for any of the acts you may find he committed, and whether or not he could have had the requisite mental state for the act or acts which you have found he committed.

54. VERDICT FORMS AND INSTRUCTIONS AS TO THEIR USE

Upon retiring to your jury room you will select one of the jurors to act as foreman, who will preside over your deliberations, and who will date and sign the verdict or verdicts and which you agree.

In order to return a verdict, all twelve jurors must agree to the decision, including the additional findings you are asked to make on the Guilty of Deliberate Homicide *1572 verdict form and on the Guilty of Aggravated Kidnapping verdict form.

I.

Verdict Form — Mental Disease or Defect Excluding Responsibility for Conduct

If after considering all of the charges made against the defendant you have found that the defendant committed the acts charged, or did commit any of the acts charged, and have further determined that he suffered from a mental disease or defect which excludes his responsibility for said act or acts, you are furnished with a form upon which to return such a verdict, to wit: Not Guilty of any of the offenses charged against him because of a mental disease or defect which excludes responsibility for his conduct.

If you reach this verdict have your foreman date and sign this verdict form and return with it to the courtroom.

If, of course, you do not find that the defendant committed any of the acts charged, you will not need to use this form, but instead will return a verdict of Not Guilty of any of the offenses charged against him on a verdict form furnished you for such a verdict.

II.

Verdict Forms — Deliberate Homicide

You are to consider each and all of the charges remaining against the defendant, and even though you may find more than one or all of said charges to have been proved beyond a reasonable doubt, as only one death is alleged, only one Guilty of Deliberate Homicide verdict form is required.

You are also furnished with a Not Guilty of Deliberate Homicide verdict form to use if such is your verdict.

If you adopt the Guilty of Deliberate Homicide verdict form you are asked to find on that form whether the Deliberate Homicide was or was not By Means of Torture as this is the most serious of the remaining charges of Deliberate Homicide made against the defendant.

After you have reached a verdict on the charges of Deliberate Homicide, whether Guilty or Not Guilty, you are still required to return a verdict on the charges of Aggravated Kidnapping. Have your foreman date and sign the verdict form upon which you agree on the charges of Deliberate Homicide and take up the Charges of Aggravated Kidnapping.

III.

Verdict Forms — Aggravated Kidnapping

Since only one Aggravated Kidnapping is alleged, though in different ways and for different purposes, you are to consider all of the charges of Aggravated Kidnapping made against the defendant and even though you may find more than one or all of the charges of Aggravated Kidnapping to have been proved beyond a reasonable doubt you are furnished with only one verdict form upon which to return a verdict of Guilty of Aggravated Kidnapping.

You are also furnished with a Not Guilty of Aggravated Kidnapping verdict form to use if such is your verdict.

If you adopt the Guilty of Aggravated Kidnapping form you will be required to find on that form whether Lana Harding did or did not die as a result of said Aggravated Kidnapping.

After you have reached a verdict on the Charges of Deliberate Homicide and a verdict on the charges of Aggravated Kidnapping, if you have found him Guilty of Deliberate Homicide or Guilty of Aggravated Kidnapping or Guilty of both of said offenses, have your foreman date and sign the verdict forms and return with them to the Court, for if you have found him guilty of either or both Deliberate Homicide and/or Aggravated Kidnapping the remaining charges of Sexual Intercourse without Consent, Aggravated Assault and Kidnapping are all lesser offenses which are included in the charges of Deliberate Homicide, and Aggravated Kidnapping in this case.

If you have found the defendant Not Guilty of Deliberate Homicide and Not Guilty of Aggravated Assault you are re *1573 quired then to return a verdict on the charge of Sexual Intercourse Without Consent which is the most serious of the remaining charges.

IV.

Verdict Forms — Sexual Intercourse Without Consent

If you have adopted the Not Guilty of Deliberate Homicide verdict form and have adopted the Not Guilty of Aggravated Kidnapping verdict form, you have been furnished with a verdict form for Guilty of Sexual Intercourse Without Consent and a verdict form for Not Guilty of Sexual Intercourse Without Consent. Use the form which you find to be appropriate.

If you adopt the Guilty of Sexual Intercourse Without Consent Verdict Form, have your Foreman date and sign the form and return with it to the Courtroom.

If you adopt the Not Guilty of Sexual Intercourse Without Consent you are then required to take up the charges of Aggravated Assault.

V.

Verdict Forms — Aggravated Assault

If you have found the defendant Not Guilty of Deliberate Homicide, and Not Guilty of Aggravated Kidnapping and Not Guilty of Sexual Intercourse Without Consent, you are to consider all of the charges of Aggravated Assault made against the defendant and even though you may find more than one or all of said charges of Aggravated Assault to have been proved beyond a reasonable doubt, only one Guilty of Aggravated Assault verdict form is furnished upon which to return such a verdict.

You are also furnished with a Not Guilty of Aggravated Assault verdict form if such is your verdict.

If you adopt the Guilty of Aggravated Assault verdict form, have your foreman date and sign the form and return with it to the Courtroom.

If you adopt the Not Guilty of Aggravated Assault verdict form, you are required to reach a verdict on the remaining charge of kidnapping.

VI.

Verdict Forms — Kidnapping

If you have adopted the verdict form Not Guilty of Deliberate Homicide and the verdict form not guilty of Aggravated Kidnapping and the verdict form Not Guilty of Sexual Intercourse Without Consent and the verdict form Not Guilty of Aggravated Assault, you have been furnished with a verdict form upon which to return a verdict of Guilty of Kidnapping and a verdict form upon which to return a verdict of Not Guilty of Kidnapping.

If you adopt the Guilty of Kidnapping verdict form, have your foreman date and sign it and return with it to the Courtroom.

If you adopt the Not Guilty of Kidnapping verdict form you will have acquitted the defendant of all charges made against him, and rather than returning separate and multiple Not Guilty verdict forms, you have been furnished with a verdict form for Not Guilty of Any of the Offenses charged against him. Have your foreman date and sign this verdict and return with it to the Courtroom if this is your verdict.

VII.

Verdict Form — Not Guilty of any of the Offenses Charged.

This form is for your use if you find that the defendant is not guilty of any of the offenses charged against him, and have not adopted the verdict form of Not Guilty of any of the Offenses charged because of a Mental Disease or Defect which excludes responsibility for conduct.

. In the twenty-five "additional” instructions read to the jury at the end of trial — and immediately before its deliberations — there were perhaps as many as fourteen unconstitutional presumptions.

. In fact, "Homicide By Means of Torture” is not an actual offense in Montana. Torture is not a statutory element of any offense; rather, it is relevant only to punishment. McKenzie was actually charged with two counts of deliberate homicide. One required for a finding of guilt that he caused death "knowingly or purposefully." The other, a felony-murder provision, did not. Neither included a particular purpose requirement like the one used in the judge’s torture instructions. It is unclear which count the jury used to find McKenzie guilty. The jury verdict merely states that McKenzie was guilty of deliberate homicide. A box on the verdict form stating “by means of torture" was checked. Further, the judge instructed the jury that for McKenzie to be guilty of deliberate homicide by means of torture, McKenzie did not need to have the specific intent to cause death, so long as he "knowingly or purposefully" tortured for one of the particular purposes. Instr. 23.

. Rose relies on the fact that intent, unlike other elements of a crime, may only be proved through circumstantial evidence, which includes predicate acts. Otherwise properly instructed, the jury properly finds the predicate acts. Unless the defendant interposes a viable defense to the intent element, an instruction on intent is superfluous.

Pope is somewhat different. An obscenity case, Pope relies on the fact that the jury considered the element of the magazine’s "value," even though it judged the value by reference to the wrong community’s standard. As in certain cases involving Sandstrom error, in Pope , the jury may have found predicate acts upon which the reviewing court could build in finding beyond a reasonable doubt that the jury would have found guilt under the proper standard. The same construct cannot be built in reviewing an instruction to the jury using an improper standard of review. Jackson thus continues as sound authority after Pope. Contrast Pope, 107 S.Ct. at 1922 n. 7.

. A full explication of the jury instructions is beyond the scope of this dissent. For a thorough explication, see Justice Shea’s thoughtful dissent in State v. McKenzie, 608 P.2d 428, 462-86 (1980). Also see appendix to this opinion.

. This raises another constitutional problem. The jury was never specifically instructed that it must reach a unanimous decision based on a single path, rather it was told only that "all twelve jurors must agree to the decision, including the additional findings you are asked to make." Instr. 54. These instructions violated McKenzie’s sixth amendment right to a unanimous verdict. United States v. Payseno, 782 F.2d 832, 834-37 (9th Cir.1986).

. See Sandstrom, 442 U.S. at 513 , 99 S.Ct. at 2453 ; Francis, 105 S.Ct. at 1973 ; Rose, 106 S.Ct. at 3107 ; Pope, 107 S.Ct. at 1922 .

. Justice Shea of the Montana Supreme Court concluded that unconstitutional presumptions so "permeated" the jury charge that for nearly every count of the indictment, there was a corresponding Sandstrom- violative instruction. State v. McKenzie, 608 P.2d 428, 470 (Mont.1980) (Shea, J., dissenting).

.Our court in a recent case, in reversing a conviction, stated "one consideration is whether as a whole [the instructions] were misleading or inadequate to guide the jury's determination.” United States v. Washington, 819 F.2d 221, 226 (9th Cir.1987). "[A] conviction should not rest on ambiguous and equivocal jury instructions on a basic issue.” Id.

. The State asserts that Dr. Wetzler’s testimony is wholly incredible because Dr. Wetzler did not consider the acts McKenzie allegedly committed during the incident with Lana Harding. We disagree. Dr. Wetzler asserted that such acts were irrelevant to his diagnosis. We find it plausible that Dr. Wetzler would have identified a mental disease or defect that simply would not vary with time and that knowledge of the predicate acts was not necessary to his diagnosis. Further, these acts are consistent with Dr. Wetz-ler’s description of a schizoid personality. Finally, we believe that it is within the realm of the expert to determine what facts are relevant to a psychiatric diagnosis.

. Even this direction to the jury was flawed. Instruction 36 does instruct that proof of particular purpose is necessary in order to find aggravated kidnapping, and cautions jurors that such a purpose can never be presumed. But one "particular purpose” the jury was told it could find was facilitating the commission of sexual intercourse without consent. Aggravated assault was another such purpose. In other instructions, the trial judge directed the jury to rely on the unconstitutional presumptions in finding these underlying felonies. Instr. 37 (sexual intercourse with consent); Instr. 38 (aggravated assault).

. The State also relied on the fact that the physical acts committed by McKenzie tended to show McKenzie’s mental capacity. But these acts are equally, or, in fact, more consistent with those of a madman than with those of a sane one. The State and the majority also argued that the jury’s rejection of McKenzie’s insanity defense indicates that it rejected Dr. Wetzler’s testimony. This argument, however, ignores the critical difference of the allocation of burden of proof in those two defenses.

. Instruction 36 states; "The offense of Aggravated Kidnapping in addition to the proof required to prove the offense of kidnapping, requires that the kidnapping was committed for a particular purpose.... Therefore, if you find beyond a reasonable doubt that the defendant *1554 ... did kidnap Lana Harding, before he can be found guilty of the offense of aggravated kidnapping ..., you must further find beyond a reasonable doubt that he acted while having at least one of the particular purposes charged." (Emphasis added.) See also Instr. 34.

In addition, instructions 29 and 32 require that the particular purpose be proved “in addition to proof that he committed said act either knowingly or purposefully." (Emphasis added.)

. We do not think that Instr. 10 clarified for the jury the meaning of the particular purpose element.

. We do not reach the other issues addressed by the majority.