No. 12551
I N THE SUPREME COURT OF THE STATE O M N A A
F OTN
1974
STATE O MONTANA,
F
p l a i n t i f f and Respondent,
-vs -
K Y L TURLEY ,
OA
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 E i g h t e e n t h J u d i c i a l D i s t r i c t ,
Honorable W. W. L e s s l e y Judge p r e s i d i n g .
Counsel of Record:
For Appellant :
R o b e r t L. S t e p h e n s a r g u e d , B i l l i n g s , Montana
F o r ~ e s p o n d e n:
t
Hon. R o b e r t L. Woodahl, A t t o r n e y G e n e r a l , H e l e n a ,
Montana
J. C . W e i n g a r t n e r , Deputy A t t o r n e y G e n e r a l , a p p e a r e d ,
Helena, Montana
Thomas A . O l s ~ n ,County A t t o r n e y , a r g u e d , Bozeman, Montana
Submitted: March 1 9 , 1974
Decided: APR 1 6 1974
Mr. Justice John C. Harrison delivered the Opinion of the Court.
This is an appeal from a conviction on a charge of dis-
turbing the peace, in violation of section 94-3560, R.C.M. 1947.
The factual situation stems from an incident occurring
at the Three Forks Airport, Gallatin County, on the evening of
May 31, 1972. It appears that appellant maintains a hangar at
the airport and on the evening of May 31, 1972, he and his wife
were at the hangar, unloading various items from their car to put
in the hangar and cleaning out the airplane. William Fairhurst,
manager of the airport, had come to the airport to set the timer
clock for the airport beacon. After doing so, he drove his car
next to the Turley automobile. Turley was standing next to the
automobile with a holstered pistol in his hands. At this point
appellant's and Fairhurst's versions of what happened next are in
conflict.
Appellant's version is that he had removed the pistol,
still holstered, from the plane preparatory to putting it in his
car. He was at the rear of his automobile when he noticed Fair-
hurst approaching at a high rate of speed, and it appearing to
him that Fairhurst was going to pass by very close to his auto-
mobile he waited for Fairhurst to pass. Instead of passing how-
ever, Fairhurst pulled to a stop and asked appellant, "What are
you doing with that gun?", to which appellant replied, "I don't
believe I have to answer that question". At that, Fairhurst began
to use abusive language and after a couple of pungent remarks,
drove off. According to appellant, he never slapped his pistol
against his legs nor was he agitated. Mrs. Turley, who had re-
mained in the car with the windows up, testified that Turley did
not unholster the pistol and that she heard loud talk from Fair-
hurst, but not from Turley.
In opposition to this version, Fairhurst said that while
h e was on t h e way t o t h e beacon i n i t i a l l y , h e had n o t i c e d T u r l e y
s t a n d i n g i n t h e hangar s l a p p i n g what a p p e a r e d t o be a p i s t o l
a g a i h s t h i s l e g i n a n a g i t a t e d manner. A f t e r c o n c l u d i n g h i s work
a t t h e beacon, he d r o v e up t o t h e T u r l e y c a r and s t o p p e d , b u t d i d
n o t g e t o u t of t h e c a r . H e asked T u r l e y i n a j o k i n g manner, "Well,
T u r l e y , who a r e you g o i n g t o s h o o t down?" Whereupon a p p e l l a n t t o o k
t h e p i s t o l from t h e h o l s t e r , p o i n t e d i t a t F a i r h u r s t , and s a i d ,
"I w i l l s h o o t you i f you g e t o u t of t h a t a u t o m o b i l e " . Fairhurst
t e s t i f i e d t h a t a p p e l l a n t w a s s e r i o u s and t h a t he c o u l d see s h e l l s
i n t h e c y l i n d e r of t h e p i s t o l . According t o F a i r h u r s t , immediately
a f t e r t h i s t h r e a t , he p u t t h e c a r i n g e a r , s t a r t e d t o l e a v e , and
looking i n t h e rearview m i r r o r , he could s e e a p p e l l a n t running
a f t e r t h e c a r s p i t t i n g a t it.
A p p e l l a n t was c h a r g e d w i t h t h e c r i m e o f d i s t u r b i n g t h e
p e a c e , i n v i o l a t i o n of s e c t i o n 94-3560, R.C.M. 1947. After t r i a l
i n j u s t i c e c o u r t where he was c o n v i c t e d h e a p p e a l e d t o t h e d i s t r i c t
c o u r t , where a f t e r a t r i a l w i t h a j u r y he was a g a i n c o n v i c t e d .
H e a p p e a l s t h a t c o n v i c t i o n and t h e d e n i a l of h i s motion f o r a new
trial.
T u r l e y c i t e s s e v e r a l i s s u e s f o r o u r r e v i e w which we w i l l
combine f o r o u r d i s c u s s i o n .
1. Whether t h e S t a t e s u b m i t t e d s u f f i c i e n t e v i d e n c e t o
w a r r a n t a c o n v i c t i o n under t h e s t a t u t e w i t h which he was c h a r g e d ?
A s a n o t h e r i s s u e , T u r l e y p r e s e n t s t h e q u e s t i o n of whether
t h e a c t i v i t y of T u r l e y c o n s t i t u t e d a c r i m e u n d e r t h e i n s t r u c t i o n s
t o t h e j u r y , however t h e j u r y i n s t r u c t i o n s r e f e r r e d t o , p r i n c i p a l l y
j u r y i n s t r u c t i o n No. 1, merely r e l a t e s t h e t e r m s o f t h e s t a t u t e
i n v o l v e d t o t h e j u r y , hence any d i s c u s s i o n of t h e f i r s t i s s u e a l s o
answers t h i s question.
The s t a t u t e i n q u e s t i o n , s e c t i o n 94-3560, R.C.M. 1947, r e a d s
i n part:
- 3 -
"Every person who willfully and maliciously
disturbs the peace of any neighborhood or person
by loud or unusual noise, or by tumultuous or
offensive conduct, or threatening, traducing,
quarreling, challenging to fight or fighting
* * *.'I
The thrust of appellant's argument on this issue seems
to be that the State failed to deny, or contradict appellant's
version of the incident. Therefore the appellant reasons, his
version is true and the verdict and judgment must be reversed.
We do not agree.
The State's evidence shows that appellant was slapping
his pistol against his leg in an agitated manner; he unholstered
the weapon and pointed it at Fairhurst; he threatened to shoot him;
and he spat at Fairhurst's departing automobile. Suffice it to
say that if this version is true, and it is evident that the jury
thought so, the conduct falls within the terms of the statute and
is sufficient to convict. It is for the jury to determine factual
issues, and they are free to believe or disbelieve witnesses as
they choose. State v. Medicine Bull, Jr., 152 Mont. 34, 445 P.2d
916; State v. Warrick, 152 Mont. 94, 446 P.2d 916; State v. Hoskins,
Mont . , 514 P.2d 1331, 30 St.Rep. 889. It is evident the
jury chose to believe Fairhurst and to disbelieve the Turleys.
There being sufficient credible evidence to support their belief,
we will not disturb their verdict. State v. ~ouldin,153 Mont.
@
276, 456 P.2d 830; State v. Hoskins, supra. The State need only
make its prima facie case; should the jury believe it, that is
sufficient.
As a second point under this issue, appellant challenges
the evidence of prior occasions of public disturbance in which
appellant was a participant. As to this the State correctly points
out that such evidence was brought out on direct examination of
appellant by appellant's own counsel. Having done so, he cannot
now complain. State v. Henrich, 159 Mont. 365, 498 P.2d 124; State
v. Meidinger, 160 Mont. 310, 502 P.2d 58, 29 St.Rep. 861.
2. Whether it was error for the district court to deny
appellant's motions for a directed verdict and a new trial?
As to the denial of the motions for a directed verdict,
the applicable rules in this situation were recently reaffirmed
by this Court in State v. Stewart, 161 Mont. 501, 507 P.2d 1050,
1053, 30 St.Rep. 325:
"The rule with regard to the granting of motions
for directed verdicts was stated by this Court
in State v. Yoss, 146 Mont. 508, 514, 409 P.2d
452, 455:
"'A directed verdict in a criminal case in this
jurisdiction is given only where the State fails
to prove its case and there is no evidence upon
which a jury could base its verdict.'
"In considering whether the district court erred
in refusing to grant the defendant's motion for
a directed verdict the evidence must be viewed
in a light most favorable to the prosecution.
State v. Peschon, 131 Mont. 330, 310 P.2d 591."
Since the evidence, viewed most favorably to the prosecu-
tion, does make a prima facie case, it follows that the district
court was correct in denying the motions for a directed verdict.
The motion for a new trial lists five grounds as basis.
Four of them have been answered by the discussion thus far and
are without merit. The remaining ground will be discussed below.
3. Whether it was error for the district court, at the
time of sentencing, to refuse to consider evidence of a voluntary
polygraph examination of appellant taken after the verdict but
prior to sentencing?
Appellant voluntarily submitted himself to a polygraph
examination after the trial but prior to sentencing. At that time
his counsel moved the district court to enter a deferred imposition
of sentence and offered the results of the polygraph examination
in support.
We have read the conclusions of the examiner and note that
the test was opinion testimony designed to determine appellant's
truthfulness as to his version of the incident. The district
court ordered and had before it at the time of sentencing the
results of a presentence investigation even though such was not
required under section 95-2203, R.C.M. 1947. Furthermore, the
district court heard testimony of the appellant designed to assure
the court of his future good behavior. In our view the district
court leaned over backward to assure itself that it had adequate
facts upon which to base a fair sentence. There is no merit in
this contention.
Judgment is affirmed.
We concur:
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