presence hearing in Montana

1960"The California decisions are in substantial harmony with ours. `Here we have the fact that the testatrix made her mark to the instrument, the declaration that it was her will and testament, made in the presence and hearing of the witnesses, and the fact that the witnesses subscribed the same at her request in her presence, and in the presence of each other. * * * We think this was sufficient.' In re Estate of Emart, 175 Cal. 238, 244 , 165 P. 707, 710 .

1960"The California decisions are in substantial harmony with ours. `Here we have the fact that the testatrix made her mark to the instrument, the declaration that it was her will and testament, made in the presence and hearing of the witnesses, and the fact that the witnesses subscribed the same at her request in her presence, and in the presence of each other. * * * We think this was sufficient.' In re Estate of Emart, 175 Cal. 238, 244 , 165 P. 707, 710 .

2024State v. Wilson, 2013 MT 70, ¶ 11 , 369 Mont 282 , 297 P. 3d 1208 .

2024State v. Wilson, 2013 MT 70, ¶ 11 , 369 Mont 282 , 297 P. 3d 1208 .

2023See State v. Tapson, 2001 MT 292, ¶ 14 , 307 Mont. 428 , 41 P.3d 305 (review was appropriate where Tapson’s counsel professed to waive Tapson’s right to be present but there was nothing in the record indicating Tapson himself 7 knew of his right to be present or waived that right); State v. Bird, 2002 MT 2, ¶¶ 37-38 , 308 Mont. 75 , 43 P.3d 266 (we rejected an argument that a defendant had waived his presence claim during voir dire because the record did not establish that he was ever informed of his right to be present and that he waived that right); State v. Kennedy, 2004 MT 53, ¶¶ 28-30 , 3

2023See State v. Tapson, 2001 MT 292, ¶ 14 , 307 Mont. 428 , 41 P.3d 305 (review was appropriate where Tapson’s counsel professed to waive Tapson’s right to be present but there was nothing in the record indicating Tapson himself 7 knew of his right to be present or waived that right); State v. Bird, 2002 MT 2, ¶¶ 37-38 , 308 Mont. 75 , 43 P.3d 266 (we rejected an argument that a defendant had waived his presence claim during voir dire because the record did not establish that he was ever informed of his right to be present and that he waived that right); State v. Kennedy, 2004 MT 53, ¶¶ 28-30 , 3

2023See State v. Tapson, 2001 MT 292, ¶ 14 , 307 Mont. 428 , 41 P.3d 305 (review was appropriate where Tapson’s counsel professed to waive Tapson’s right to be present but there was nothing in the record indicating Tapson himself 7 knew of his right to be present or waived that right); State v. Bird, 2002 MT 2, ¶¶ 37-38 , 308 Mont. 75 , 43 P.3d 266 (we rejected an argument that a defendant had waived his presence claim during voir dire because the record did not establish that he was ever informed of his right to be present and that he waived that right); State v. Kennedy, 2004 MT 53, ¶¶ 28-30 , 3

2023See State v. Tapson, 2001 MT 292, ¶ 14 , 307 Mont. 428 , 41 P.3d 305 (review was appropriate where Tapson’s counsel professed to waive Tapson’s right to be present but there was nothing in the record indicating Tapson himself 7 knew of his right to be present or waived that right); State v. Bird, 2002 MT 2, ¶¶ 37-38 , 308 Mont. 75 , 43 P.3d 266 (we rejected an argument that a defendant had waived his presence claim during voir dire because the record did not establish that he was ever informed of his right to be present and that he waived that right); State v. Kennedy, 2004 MT 53, ¶¶ 28-30 , 3

2018The right to treatment provided for in this part may not be waived. ***120 (2) The right of the respondent to be physically present at a hearing may also be waived by the respondent's attorney and the friend of respondent with the concurrence of the professional person and the judge upon a finding supported by facts that: (a)(i) the presence of the respondent at the hearing would be likely to seriously adversely affect the respondent's mental condition; and (ii) an alternative location for the hearing in surroundings familiar to the respondent would not prevent the adverse effects on the respo

2018The right to treatment provided for in this part may not be waived. ***120 (2) The right of the respondent to be physically present at a hearing may also be waived by the respondent's attorney and the friend of respondent with the concurrence of the professional person and the judge upon a finding supported by facts that: (a)(i) the presence of the respondent at the hearing would be likely to seriously adversely affect the respondent's mental condition; and (ii) an alternative location for the hearing in surroundings familiar to the respondent would not prevent the adverse effects on the respo

2018The right to treatment provided for in this part may not be waived. ***120 (2) The right of the respondent to be physically present at a hearing may also be waived by the respondent's attorney and the friend of respondent with the concurrence of the professional person and the judge upon a finding supported by facts that: (a)(i) the presence of the respondent at the hearing would be likely to seriously adversely affect the respondent's mental condition; and (ii) an alternative location for the hearing in surroundings familiar to the respondent would not prevent the adverse effects on the respo

2018The right to treatment provided for in this part may not be waived. ***120 (2) The right of the respondent to be physically present at a hearing may also be waived by the respondent's attorney and the friend of respondent with the concurrence of the professional person and the judge upon a finding supported by facts that: (a)(i) the presence of the respondent at the hearing would be likely to seriously adversely affect the respondent's mental condition; and (ii) an alternative location for the hearing in surroundings familiar to the respondent would not prevent the adverse effects on the respo

2018The right to treatment provided for in this part may not be waived. ***120 (2) The right of the respondent to be physically present at a hearing may also be waived by the respondent's attorney and the friend of respondent with the concurrence of the professional person and the judge upon a finding supported by facts that: (a)(i) the presence of the respondent at the hearing would be likely to seriously adversely affect the respondent's mental condition; and (ii) an alternative location for the hearing in surroundings familiar to the respondent would not prevent the adverse effects on the respo

2018The right to treatment provided for in this part may not be waived. ***120 (2) The right of the respondent to be physically present at a hearing may also be waived by the respondent's attorney and the friend of respondent with the concurrence of the professional person and the judge upon a finding supported by facts that: (a)(i) the presence of the respondent at the hearing would be likely to seriously adversely affect the respondent's mental condition; and (ii) an alternative location for the hearing in surroundings familiar to the respondent would not prevent the adverse effects on the respo

2018The right to treatment provided for in this part may not be waived. ***120 (2) The right of the respondent to be physically present at a hearing may also be waived by the respondent's attorney and the friend of respondent with the concurrence of the professional person and the judge upon a finding supported by facts that: (a)(i) the presence of the respondent at the hearing would be likely to seriously adversely affect the respondent's mental condition; and (ii) an alternative location for the hearing in surroundings familiar to the respondent would not prevent the adverse effects on the respo

2018The general rule stated in § 46-20-701(2), MCA, requiring the defendant to establish the claimed error was prejudicial does not apply where, as here, " 'the only means to meet that burden-the court record-was not preserved by reason of the commission of the error itself.' " State v. Price , 2009 MT 129 , ¶ 27, 350 Mont. 272 , 207 P.3d 298 (quoting Tapson , ¶ 35 ).

2018The general rule stated in § 46-20-701(2), MCA, requiring the defendant to establish the claimed error was prejudicial does not apply where, as here, " 'the only means to meet that burden-the court record-was not preserved by reason of the commission of the error itself.' " State v. Price , 2009 MT 129 , ¶ 27, 350 Mont. 272 , 207 P.3d 298 (quoting Tapson , ¶ 35 ).

2018The right to treatment provided for in this part may not be waived. ***120 (2) The right of the respondent to be physically present at a hearing may also be waived by the respondent's attorney and the friend of respondent with the concurrence of the professional person and the judge upon a finding supported by facts that: (a)(i) the presence of the respondent at the hearing would be likely to seriously adversely affect the respondent's mental condition; and (ii) an alternative location for the hearing in surroundings familiar to the respondent would not prevent the adverse effects on the respo

2018The right to treatment provided for in this part may not be waived. ***120 (2) The right of the respondent to be physically present at a hearing may also be waived by the respondent's attorney and the friend of respondent with the concurrence of the professional person and the judge upon a finding supported by facts that: (a)(i) the presence of the respondent at the hearing would be likely to seriously adversely affect the respondent's mental condition; and (ii) an alternative location for the hearing in surroundings familiar to the respondent would not prevent the adverse effects on the respo

1992Marlene F., 257 Cal.Rptr. at 105 , 770 P.2d at 285 , quoting § 46 com. 1, p. 79.

1992Marlene F. at 105, 770 P.2d at 285 , quoting § 46 com. 1, p. 79.

1992Christensen at 99 , 820 P.2d at 201 .

1992Christensen at 99 , 820 P.2d at 201 .

1933In view of the conflict on this point, the case is brought squarely within the principle announced in Bitter Boot Creamery Co. v. Muntzer, 90 Mont. 77 , 300 Pac. 251 , in which the court followed with approval what was said in Cox v. Sail, 54 Mont. 154 , 168 Pac. 519, 521 , viz.: “To us, out of the presence and hearing of the witnesses, it appears that the court below might well have *227 reached a different result; but it would be a gross perversion to say that the findings and decree are without substantial evidence to support them.” The court below did have some evidence upon which to base

1933In view of the conflict on this point, the case is brought squarely within the principle announced in Bitter Boot Creamery Co. v. Muntzer, 90 Mont. 77 , 300 Pac. 251 , in which the court followed with approval what was said in Cox v. Sail, 54 Mont. 154 , 168 Pac. 519, 521 , viz.: “To us, out of the presence and hearing of the witnesses, it appears that the court below might well have *227 reached a different result; but it would be a gross perversion to say that the findings and decree are without substantial evidence to support them.” The court below did have some evidence upon which to base

1933In view of the evidence in this case, we *572 may well reiterate the language of the court in the case of Kirby v. Hoeh, 94 Mont. 218 , 21 Pac. (2d) 732 , 735: “To us, out of the presence and hearing of the witnesses, it appears that the court below might well have reached a different result; but it would be a gross perversion to say that the findings and decree are without substantial evidence to support them.” The intent of the Compensation Law (Laws 1915, Chap. 96, as amended), as often expressed' by this court, was to aid and protect the workman.

1933In view of the evidence in this case, we *572 may well reiterate the language of the court in the case of Kirby v. Hoeh, 94 Mont. 218 , 21 Pac. (2d) 732 , 735: “To us, out of the presence and hearing of the witnesses, it appears that the court below might well have reached a different result; but it would be a gross perversion to say that the findings and decree are without substantial evidence to support them.” The intent of the Compensation Law (Laws 1915, Chap. 96, as amended), as often expressed' by this court, was to aid and protect the workman.

1933In view of the conflict on this point, the case is brought squarely within the principle announced in Bitter Boot Creamery Co. v. Muntzer, 90 Mont. 77 , 300 Pac. 251 , in which the court followed with approval what was said in Cox v. Sail, 54 Mont. 154 , 168 Pac. 519, 521 , viz.: “To us, out of the presence and hearing of the witnesses, it appears that the court below might well have *227 reached a different result; but it would be a gross perversion to say that the findings and decree are without substantial evidence to support them.” The court below did have some evidence upon which to base

1933In view of the conflict on this point, the case is brought squarely within the principle announced in Bitter Boot Creamery Co. v. Muntzer, 90 Mont. 77 , 300 Pac. 251 , in which the court followed with approval what was said in Cox v. Sail, 54 Mont. 154 , 168 Pac. 519, 521 , viz.: “To us, out of the presence and hearing of the witnesses, it appears that the court below might well have *227 reached a different result; but it would be a gross perversion to say that the findings and decree are without substantial evidence to support them.” The court below did have some evidence upon which to base

1930As a *526 general rule a defendant cannot be bound by acts and conversations between third persons not in his presence, although under some circumstances such may be admissible as part of the res gestae. (33 Cyc. 1460; State v. Grove, 61 W.

1926The court held that the evidence was clearly admissible, citing subdivision 3, supra. (State v. Pepo, 23 Mont. 473, 480 , 59 Pac. 721 ; State v. Lucey, 24 Mont. 295, 302 , 61 Pac. 994 ; State v. Willette, 46 Mont. 326, 331 , 127 Pac. 1013 ; People v. Byrne, 160 Cal. 217 , 116 Pac. 521, 529 .) To render the testimony admissible it must be shown either that the accused did in fact hear what was said or that he was in a position to hear.

1926The court held that the evidence was clearly admissible, citing subdivision 3, supra. (State v. Pepo, 23 Mont. 473, 480 , 59 Pac. 721 ; State v. Lucey, 24 Mont. 295, 302 , 61 Pac. 994 ; State v. Willette, 46 Mont. 326, 331 , 127 Pac. 1013 ; People v. Byrne, 160 Cal. 217 , 116 Pac. 521, 529 .) To render the testimony admissible it must be shown either that the accused did in fact hear what was said or that he was in a position to hear.

1926(Territory v. Big Knot on Head, 6 Mont. 242 , 11 Pac. 670 ; 16 C.

1926The court held that the evidence was clearly admissible, citing subdivision 3, supra. (State v. Pepo, 23 Mont. 473, 480 , 59 Pac. 721 ; State v. Lucey, 24 Mont. 295, 302 , 61 Pac. 994 ; State v. Willette, 46 Mont. 326, 331 , 127 Pac. 1013 ; People v. Byrne, 160 Cal. 217 , 116 Pac. 521, 529 .) To render the testimony admissible it must be shown either that the accused did in fact hear what was said or that he was in a position to hear.

1926The court held that the evidence was clearly admissible, citing subdivision 3, supra. (State v. Pepo, 23 Mont. 473, 480 , 59 Pac. 721 ; State v. Lucey, 24 Mont. 295, 302 , 61 Pac. 994 ; State v. Willette, 46 Mont. 326, 331 , 127 Pac. 1013 ; People v. Byrne, 160 Cal. 217 , 116 Pac. 521, 529 .) To render the testimony admissible it must be shown either that the accused did in fact hear what was said or that he was in a position to hear.

1926The court held that the evidence was clearly admissible, citing subdivision 3, supra. (State v. Pepo, 23 Mont. 473, 480 , 59 Pac. 721 ; State v. Lucey, 24 Mont. 295, 302 , 61 Pac. 994 ; State v. Willette, 46 Mont. 326, 331 , 127 Pac. 1013 ; People v. Byrne, 160 Cal. 217 , 116 Pac. 521, 529 .) To render the testimony admissible it must be shown either that the accused did in fact hear what was said or that he was in a position to hear.

1926The court held that the evidence was clearly admissible, citing subdivision 3, supra. (State v. Pepo, 23 Mont. 473, 480 , 59 Pac. 721 ; State v. Lucey, 24 Mont. 295, 302 , 61 Pac. 994 ; State v. Willette, 46 Mont. 326, 331 , 127 Pac. 1013 ; People v. Byrne, 160 Cal. 217 , 116 Pac. 521, 529 .) To render the testimony admissible it must be shown either that the accused did in fact hear what was said or that he was in a position to hear.

1926The court held that the evidence was clearly admissible, citing subdivision 3, supra. (State v. Pepo, 23 Mont. 473, 480 , 59 Pac. 721 ; State v. Lucey, 24 Mont. 295, 302 , 61 Pac. 994 ; State v. Willette, 46 Mont. 326, 331 , 127 Pac. 1013 ; People v. Byrne, 160 Cal. 217 , 116 Pac. 521, 529 .) To render the testimony admissible it must be shown either that the accused did in fact hear what was said or that he was in a position to hear.

1926The court held that the evidence was clearly admissible, citing subdivision 3, supra. (State v. Pepo, 23 Mont. 473, 480 , 59 Pac. 721 ; State v. Lucey, 24 Mont. 295, 302 , 61 Pac. 994 ; State v. Willette, 46 Mont. 326, 331 , 127 Pac. 1013 ; People v. Byrne, 160 Cal. 217 , 116 Pac. 521, 529 .) To render the testimony admissible it must be shown either that the accused did in fact hear what was said or that he was in a position to hear.

1924(See Daley v. Torrey, 69 Mont. 599 , 223 Pac. 498 .) Defendant relies upon the proposition that plaintiffs’ only remedy was a suit to recover “delay money.” We do not say what the result would be in the absence of the surrender clause, paragraph numbered 14, of the “lease.” On all the facts we do say, however, that because of the presence- of that clause the plaintiffs were not relegated to that as the only remedy.

1924(See Daley v. Torrey, 69 Mont. 599 , 223 Pac. 498 .) Defendant relies upon the proposition that plaintiffs’ only remedy was a suit to recover “delay money.” We do not say what the result would be in the absence of the surrender clause, paragraph numbered 14, of the “lease.” On all the facts we do say, however, that because of the presence- of that clause the plaintiffs were not relegated to that as the only remedy.