No. 12127
I N THE SUPREME COURT OF THE STATE OF MONTANA
1972
THE STATE OF MONTANA,
P l a i n t i f f and Respondent,
RONALD L. JONES,
Defendant and A p p e l l a n t .
Appeal from: D i s t r i c t Court of t h e Eighth ~ u d i c i a l i s t r i c t ,
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Honorable P a u l G. H a t f i e l d , ~ u d g e r e s i d i n g .
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Counsel o f Record:
For Appellant:
John C. H a l l a r g u e d , G r e a t F a l l s , Montana,
F o r Respondent :
Hon. Robert L, Woodahl, A t t o r n e y G e n e r a l , Helena,
Montana.
J o n a t h a n B. Smith, A s s i s t a n t A t t o r n e y G e n e r a l , a r g u e d ,
Helena, Montana.
J. Fred Bourdeau, County A t t o r n e y , G r e a t F a l l s , Montana.
James R. Walsh, Deputy County A t t o r n e y , a r g u e d , G r e a t
F a l l s , Montana.
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Submitted: November 27, 1972
Decided: J A N 8 - '1973
Filed: iAP4 2 lYi3
M. Justice Frank I . Haswell delivered the Opinion of the Court.
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Defendant was convicted of the crime of second degree assault
following a jury t r i a l in the d i s t r i c t court of Cascade County and sentenced
t o one year in the s t a t e prison by the Hon. Paul G. Hatfield, d i s t r i c t judge.
Defendant now appeals from the judgment of conviction.
Defendant Ronald Leslie Jones was a passenger in a Volkswagen van
t h a t overturned about 6:00 p.m. on March 2 3 , 1971, in Parkdale, a housing
development in Great Falls, Montana. A t the time of the accident, Mike McCrea
was driving the Volkswagen and Patrick McCrea and defendant were passengers.
Officer Clifford Ayers of the Great Falls police department was dispatched
t o investigate. Upon his arrival a t the accident scene, he found the Volks-
wagen van laying on i t s side and several people standing around, including
the driver and passengers of the Volkswagen van who identified themselves.
After ascertaining t h a t there were no serious i n j u r i e s , Officer Ayers took
the driver, Mike McCrea, into the police car and began f i l l i n g out an acci-
dent report form. Patrick McCrea and defendant remained near the overturned
vehicle.
In the meantime Officer Eugene Bernardi of the Great Falls pol ice
had been sent t o the accident scene t o a s s i s t in the investigation by the
police dispatcher who informed him t h a t possibly some beer belonging t o the
occupants of the Vol kswagen van might be involved. When Officer Bernardi
arrived a t the accident scene he ascertained from Officer Ayers t h a t no one
had been injured in the accident and that the two men standing near the
overturned vehicle had been involved in the accident. Officer Bernardi
walked over t o a nearby parking area, found some beer between two cars,
and placed i t in Officer Ayers' police car. H then walked over t o Patrick
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McCrea and defendant.
From t h i s point the testimony i s largely conflicting. The S t a t e ' s
evidence indicated t h a t Officer Bernardi asked Patrick McCrea and defendant
whether i t was t h e i r beer and defendant rep1 ied, "Yes, you f----- pig. We
saved this f o r you t o drink and t h a t l i t t l e bastard standing next t o you,"
referring t o a small child standing nearby. Officer Bernardi told defendant
t o watch his language--that there werea,lot of young children around. De-
fendant then turned t o Patrick McCrea and said "Did you hear that?" Patrick
McCrea answered "Yes. Don't say t h a t f----- pig again." A t t h i s point
Officer Bernardi warned him the second time and told him the next time i t
happened he was going t o p u t him under a r r e s t . Defendant then said, "Did
you hear what the f----- pig said?" Officer Bernardi then attempted t o
grab defendant by his r i g h t arm and l e f t shoulder, but his attempted arm-
lock f a i l e d . A struggle ensued between Officer Bernardi and defendant d u r -
ing which Patrick McCrea kicked Officer Bernardi in the head. Eventually
defendant was subdued, handcuffed, placed in Bernardi 's patrol car, driven
t o the pol ice station and booked. Thereafter Officer Bernardi , who had
received a nose injury, facial injuries, lacerations on both knees, and a
broken hand, was taken t o Deaconess Hospital.
Defendant's evidence, on the other hand, indicated that Officer
Bernardi came over t o Patrick McCrea and defendant, asked them f o r i d e n t i f i -
cation, and the identification was furnished. Officer Bernardi, in a hostile
manner, then asked who hid the beer-- McCrea or defendant. Defendant answered
that he d i d n ' t hide any f----- beer. Officer Bernardi said "Watch your
language", whereupon defendant turned t o Patrick McCrea and said "These f-----
pigs never leave a guy alone." Patrick McCrea said "Don't call him that--a
f ----- pig." Officer Bernardi said "Don't call m a f----- pig" and defend-
e
ant said 'If--- you." A t this point Officer Bernardi struck defendant in the
face, knocking his glasses o f f . A scuffle ensued and several blows were
struck by Officer Bernardi and defendant. During the scuffle Patrick McCrea
kicked Officer Bernardi in the head. According t o defendant, Officer Bernardi
never told him he was under a r r e s t prior t o striking him and a t a l l times
Officer Bernardi was the aggressor, defendant only trying t o protect himself.
Defendant was eventually handcuffed and driven t o the police station by Officer
Bernardi i n his patrol car, dragged by his c o l l a r into the police s t a t i o n ,
knocked t o the ground, kicked into unconsciousness, and thrown into the "drunk
tank".
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Defendant was charged by d i r e c t information w i t h second degree
a s s a u l t t o which he plead "not g u i l t y * . He was t r i e d by jury, convicted,
and sentenced t o one year i n t h e s t a t e prison. He now appeals from the
judgment of conviction .
Defendant r a i s e s two issues f o r review upon appeal:
(1) Did the d i s t r i c t court e r r i n instructing the jury on elements
of the second degree a s s a u l t s t a t u t e not embraced i n the charge against
defendant?
(2) Did the d i s t r i c t court e r r i n refusing defendant's offered
instructions on s e l f -defense?
The f i r s t issue i s the principal issue upon appeal. The charge against
defendant s e t f o r t h i n t h e information accuses the defendant of the crime of
a s s a u l t i n the second degree committed as follows:
"That a t t h e County of Cascade, S t a t e of Montana, on or
about the 23 day of March, A.D. 1971, and before the
f i l i n g of t h i s Information, the said defendant[s] then and
there being, did then and there w i l f u l l y , wrongfully,
unlawfully and feloniously a s s a u l t a human being, who was
an o f f i c e r of the Great Falls City Police Department, t o
w i t : Eugene Bernardi, w i t h the i n t e n t then and there i n
[him] , the s a i d defendant [s] t o prevent o r r e s i s t t h e
lawful apprehension o r detention of a human being, i n
violation of Section 94-602, R.C.M. 1947 as amended * * *."
This c l e a r l y charges a second degree a s s a u l t under section 94-602,
R.C.M. 1947, which provides:
"Every person who, under circumstances not amounting t o
[ f i r s t degree a s s a u l t ] :
"(5) Assaults another w i t h i n t e n t t o commit a felony, o r
t o prevent or r e s i s t t h e execution of any lawful process
or mandate of any court or o f f i c e r , o r the lawful
apprehension or detention of himself, or any other person,
? s g u i l t y of an a s s a u l t i n the second degree * * *."
(Bracketed materi a1 paraphrased; emphasis added. )
Defendant contends t h a t the jury was instructed, i n e f f e c t , t h a t
he could be convicted of second degree a s s a u l t under subdivision 3 of section
94-602, R.C.M. 1947, wherein one i s g u i l t y of second degree a s s a u l t i f he:
" ( 3 ) Wilfully or wrongfully wounds or i n f l i c t s grievous
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bodily harm upon another, e i t h e r w i t h or without a weapon."
i Defendant argues t h a t he could not be convicted of second degree a s s a u l t
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dnder subdivision 3 because t h a t charge is not contained in the information
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f i l e d against him.
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Specifically the defendant assigns c o u r t ' s instructions No. 2 ,
No. 10, and No. 11 as e r r o r . Instruction No. 2 reads:
"An a s s a u l t is defined a s an unlawful attempt t o in-
f l i c t injury upon the person of another, coupled
w i t h the present a b i l i t y t o i n f l i c t such injury.
"Assault i n the Second Degree is defined:
"A. Every person who wilfully or wrongfully wounds
or i n f l i c t s grievous bodily harm upon another,
e i t h e r w i t h or without a weapon; o r ,
"B. Assaults another t o prevent or r e s i s t the
execution of any lawful process or mandate of any
court o r o f f i c e r , or t h e lawful apprehension or
detention of himself , or of any other person ."
Defendant's objection t o this instruction was i n the following
1anguage :
"Object t o t h a t , Your Honor, i n t h a t i t does not define
the a s s a u l t charged i n the Information which i s 94-602-605
( s i c ) , but includes other sections, other subsections of
t h a t section, which a r e n o t charged i n t h e information."
Court's instruction No. 10 provided:
"With regard t o the charge t h a t the defendant committed
an a s s a u l t i n the second degree i n t h a t he w i l f u l l y and
wrongful l y assaulted Officer Bernardi i n a manner
1i kely t o produce grievous bodily harm, s p e c i f i c i n t e n t
is not an element of t h e charge. The law presumes a
ma1 icious and g u i l t y i n t e n t from the d e l i b e r a t e commis-
sion of an unlawful a c t f o r the purpose of injuring
another. This i s a conclusive presumption which means
i t cannot be controverted or rebutted by other evidence.
"Therefore, i f you find beyond a reasonable doubt t h a t
the defendant, though he did not intend t o r e s i s t o r
prevent his 1awful apprehension or detention, he never-
theless struck Officer Bernardi forbthe purpose of
injuring h i m , the law presumes t h a t he acted w i t h a
malicious and g u i l t y i n t e n t , and the defendant i s not
e n t i t l e d t o rebut t h e presumption, f o r i f you have
found t h a t the defendant's a c t was.unlawfu1 and was
f o r the purpose of injuring you Mve necessarily found
unlawful i n t e n t . "
A though i t does not appear in the record w i t h c l a r i t : ~ , we shall
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assume t h a t the following objection by defendant was d i r e c t e d a t c o u r t ' s
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instruction No. 10.
" I object t o i t f o r the reason t h a t i t should s t a t e
t h e kind of second degree a s s a u l t . Further reason t h e
kind of crime referred t o i n the Information i s the
kind of a s s a u l t w i t h intent t o prevent o r r e s i s t a r r e s t . "
Court's instruction No. 11 said:
"You a r e instructed t h a t grievous bodily harm would include
any hurt o r injury calculated t o i n t e r f e r e with health or
comfort of the person injured; i t need not be necessarily
an injury of a permanent character. By grievous is meant
atrocious, aggravated, harmful , painful , hard t o bear,
serious in nature."
Defendant objected t o this instruction i n the following manner:
" I object t o t h a t on the ground t h a t t h e Information
charges a s s a u l t w i t h i n t e n t t o prevent o r r e s i s t a r r e s t .
In t h i s charge, this instruction does not conform t o the
information a t a l l , and the crime of a s s a u l t , 1i kely t o
produce grjeoous bodily harm i s not included i n the infor-
mation a t a l l " .
Defendant Is objections t o a1 1 three instructions were overruled
and the instructions were given t o the jury.
The t h r u s t of defendant's contention is t h a t these three instruc-
t i o n s permit conviction of a kind of a s s a u l t not charged in the information,
s p e c i f i c a l l y a s s a u l t by w i l f u l l y i n f l i c t i n g grievous bodily harm on another
i n violation of section 94-602(3), R.C.M. 1947. Defendant f u r t h e r argues
t h a t t h i s type of a s s a u l t requires only a general i n t e n t t o commit the a c t
constituting the a s s a u l t whereas the a s s a u l t charged i n the information re-
quires a s p e c i f i c i n t e n t . Defendant concludes t h a t a s i t i s impossible t o
t e l l which type of a s s a u l t the defendant was convicted o f , t h e instructions
i n question c o n s t i t u t e prejudicial and reversible e r r o r .
A t t h e o u t s e t , i t is c l e a r t o us t h a t defendant was charged in the
information w i t h but one kind of second degree a s s a u l t , viz: assault w i t h
i n t e n t t o prevent o r r e s i s t h i s lawful apprehension o r detention i n violation
of section 94-602(5). The charge s p e c i f i c a l l y charges an a s s a u l t "with
t h e i n t e n t then and there i n [ h i m ] , the said defendantks], t o prevent o r
r e s i s t the lawful apprehension or detention of a human being." The charge
does not contain language r e f e r r i n g t o an a s s a u l t involving t h e wilful1 or
wrongful wounding or i nfl i c t i ng grievous bodily harm upon another. Therefore
c o u r t ' s instructions No. 2 , No. 10 and No. 11 should not have been given.
The only remaining question then i s whether t h i s error was prejudicial
and reversible.
Section 95-2412, R.C.M. 1947 specifically provides in pertinent
part:
" * * * No cause shall be reversed by reason of any
error committed by the t r i a l court against the appel-
l a n t , unless the record shows t h a t the error was
prejudicial. "
Section 95-2425, R.C.M. 1947, expresses the converse of t h i s rule
in the following language:
"Any e r r o r , defect, irregularity or variance which does not
a f f e c t substantial rights shall be disregarded. * * *I1
Thus the t e s t in Montana of reversible versus harmless error i s whether
the error a f f e c t s the substantial rights of the party against whom the
error was committed or not.
Under the circumstances of t h i s case, w hold the error harmless.
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The j u r y ' s verdict of conviction demonstrates i t s rejection of defendant's
evidence t h a t he acted in self-defense. Absent t h i s evidence, only one
conclusion i s possible under the remaining evidence, viz; that defendant
assaulted Officer Bernardi t o prevent or r e s i s t his lawful apprehension or
detention. Defendant admitted t h a t he repeatedly used profane and obscene
language in the presence of women and small children. The evidence i s un-
rebutted t h a t t h i s constitutes a crime under the ordinances of the City of
Great Falls. I t i s undisputed t h a t t h i s offense was committed in the
presence of Officer Bernardi who warned defendant against the use of such
1anguage . Absent defendant's evidence tending t o prove self-defense and
t h a t Officer Bernardi struck h i m f i r s t , which the jury demonstrably rejected,
the only remaining evidence indicated that Officer Bernardi attempted t o
apply an armhold on defendant f o r the purpose of apprehending and detain-
ing h i m . Defendant admits a struggle w i t h Officer Bernardi, admits t h a t
he struck Officer Bernardi , and admits t h a t he was eventually handcuffed
and placed in the police car. The evidence permits b u t a single conclusion--
t h a t defendant assaulted Officer Bernardi with the specific intent t o pre-
vent his lawful apprehension and detention. The evidence i s not only over-
whelming, i t demonstrates conclusively defendant's gui 1t of the crime charged.
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Under such circumstances, defendant's g u i l t o r innocence of a type of
a s s a u l t not charged i s immaterial and cannot a f f e c t the verdict. Accord-
ingly, the e r r o r s i n the three jury instructions c o n s t i t u t e harmless
error.
Directing our a t t e n t i o n t o the second issue f o r review, defendant
contends t h a t reversible e r r o r occurred when the court refused his f o l l owing
offered jury i n s t r u c t i o n s :
" I t i s lawful f o r a person who i s being assaulted, and
who has reasonable ground f o r believing t h a t bodily
injury i s about t o be i n f l i c t e d upon him, t o stand his
ground and defend himself from such a t t a c k , and i n doing
so he may use a1 1 force and means which he be1 ieves t o
be reasonably necessary and which would appear t o a
reasonable person, i n the same or similar circumstances,
t o be necessary t o prevent the injury which appears t o
be imminent " .
"A person who has been attacked and who i s exercising
h i s r i g h t of lawful self-defense is not required t o
r e t r e a t , and he not only may stand h i s ground and
defend himself against the attack but may a l s o pursue
his a s s a i l a n t until he has secured himself from danger
i f t h a t course appears t o him, and would appear t o a
reasonable person in the same s i t u a t i o n , t o be reason-
ably and apparently necessary; and this is h i s r i g h t
even though he might more e a s i l y have gained s a f e t y by
withdrawing from the scene. "
The'gist of defendant's complaint is t h a t t h e "reasonable man"
standard enabl ing defendant t o a c t on appearances in s e l f -defense a s provided
i n t h e above instructions is t h e law in Montana and was n o t covered anywhere
i n the c o u r t ' s instructions t o the jury. Defendant c i t e s S t a t e v . Totten,
65 Mont. 203, 210 P. 1061 and S t a t e v . Daw, 99 Mont. 232, 43 P.2d 240, i n
support of the offered instructions.
The giving or refusal of a p a r t i c u l a r i n s t r u c t i o n i n a given case
must be determined in the l i g h t of the evidence and issues in t h a t case,
and therefore a given instruction may be proper i n one case and improper i n
another. W have no quarrel w i t h t h e offered instructions here a s c o r r e c t
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statements of the law; however, we hold t h e i r refusal by the t r i a l court
c o r r e c t because the evidence did not support such instructions. In the i n s t a n t
case appearances and a c t u a l i t i e s a r e i d e n t i c a l ; there i s simply no evidence
from which the jury could i n f e r t h a t the defendant i n exercising his r i g h t of
self-defense acted on appearances as a reasonable man rather than in light
of the actual situation t h a t presented i t s e l f .
The judgment of the d i s t r i c t court i s affirmed.
2!A rR&.@d
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Associate Justice
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