No. 13737
IN THE SUPREME COURT OF THE STATE OF MONTANA
1978
THE STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
CARTER BOUSLAUGH,
Defendant and Appellant.
Appeal from: District Court of the Thirteenth Judicial
District,
Honorable Charles Luedke, Judge presiding.
Counsel of Record:
For Appellant:
lloses, Tolliver and Wright, Billin~s,Montana
R. Allen Beck argued, Billings, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
J. Mayo Ashley argued, Assistant Attorney General,
Helena, Montana
Harold F. Hanser, County Attorney, argued, Billings,
Montana
James Walen, Deputy County Attorney, argued,
Billings, Montana
Submitted: January 26, 1978
~ecided#RR 2 2 7978
MbL, ,- - ,-?I
Filed:
M r . J u s t i c e Gene B. Daly d e l i v e r e d t h e Opinion of t h e Court:
Defendant C a r t e r Bouslaugh was charged i n t h e D i s t r i c t
Court, Yellowstone County, with having committed t h e crime of
aggravated a s s a u l t on J u l y 18, 1976, i n v i o l a t i o n of s e c t i o n
94-5-202(1)(b), R.C.M. 1947. Following a jury t r i a l he was
convicted and sentenced t o serve 10 years i n t h e Montana s t a t e
prison. Defendant appeals t h e conviction.
The i s s u e s presented on appeal a r e :
1) Whether by r e f u s i n g t o include an o f f e r e d i n s t r u c t i o n
on misdemeanor a s s a u l t , the t r i a l c o u r t committed r e v e r s i b l e
error?
2) Whether by r e f u s i n g an o f f e r e d i n s t r u c t i o n p o i n t i n g
o u t t h a t a shooting alone i s n o t s u f f i c i e n t t o o b t a i n a
conviction, t h e t r i a l c o u r t committed r e v e r s i b l e e r r o r ?
3) Whether t h e t r i a l c o u r t committed r e v e r s i b l e e r r o r i n
r e f u s i n g o f f e r e d i n s t r u c t i o n s dealing with s p e c i f i c i n t e n t and
mens rea o r c r i m i n a l i n t e n t ?
On J u l y 18, 1976, a t a motorcycle h i l l c l i m b south of
B i l l i n g s , Montana, defendant C a r t e r Bouslaugh was involved i n
a f i s t f i g h t which was p r e c i p i t a t e d by Don Maxwell who accused
defendant of s t e a l i n g h i s beer cooler. Following a s h o r t , one-
sided f i g h t between Maxwell and defendant, another f i g h t broke
out between Mike Donovan and defendant. After a f i v e t o f i f t e e n
minute f i g h t , defendant r e t r e a t e d and attempted t o g e t i n t o h i s
pickup. During t h i s a f f r a y , defendant's g l a s s e s were knocked
o f f and l o s t . A t t h e time defendant t r i e d t o g e t i n t o h i s pickup,
he appeared t o be t i r e d and t r y i n g t o avoid any f u r t h e r f i g h t i n g .
When Bouslaugh reached h i s pickup and attempted t o g e t i n s i d e ,
he was hindered by Mike Donovan who slammed d e f e n d a n t ' s l e g i n
t h e door. Bouslaugh then g o t out of h i s pickup with a .44 magnum
p i s t o l i n h i s hand. He s h o t i t i n t h e a i r and t o l d everyone t o
l e a v e him a l o n e . This warning d e t e r r e d Donovan who took o f f
looking f o r cover. A t t h i s time Bouslaugh could s t i l l n o t l e a v e
t h e h i l l c l i m b s i t e because o t h e r v e h i c l e s blocked h i s pickup
truck. Bouslaugh then went t o t h e r e a r of h i s v e h i c l e where
Ken Boulet and Kerry Loran and o t h e r s p e c t a t o r s were l o c a t e d .
A s Bouslaugh approached, Kerry Loran t o l d him t o put h i s gun
down, Bouslaugh pointed t h e gun a t them and t o l d them t o back
off.
Nevertheless, Loran stepped toward defendant who turned
-toward him, pointed t h e gun a t him, and pushed i t toward him.
While pushing t h e gun toward Loran, t h e weapon discharged and
t h e b u l l e t s t r u c k Kerry Loran i n t h e c h e s t . Both t h e v i c t i m
and Boulet t e s t i f i e d t h a t a t t h i s time they d i d n o t b e l i e v e
Bouslaugh was going t o shoot anybody, s i n c e he had no reason
f o r doing so.
A f t e r t h e v i c t i m was shot a group of men a t t a c k e d Bouslaugh
and took t h e gun from him. I n t h e ensuing s t r u g g l e t h r e e o t h e r
s h o t s were f i r e d , one h i t t i n g a bystander i n t h e arm.
Defendant contends he had no s p e c i f i c i n t e n t t o a s s a u l t
Loran and t h e gun e i t h e r a c c i d e n t l y d i s c h a r g e d , o r discharged
due t o ~ o u s l a u g h ' snegligence. I t i s a fundamental r u l e t h a t
t h e c o u r t ' s i n s t r u c t i o n s should cover every i s s u e o r theory having
support i n t h e evidence. S t a t e v. Thomas, 147 Mont. 325, 413 P.2d
315. Here, defendant was charged w i t h aggravated a s s a u l t i n
v i o l a t i o n of s e c t i o n 94-5-202, R.C.M. 1947, which provides:
II
A person commits the offense of aggravated
assault if he purposely or knowingly causes:
"b
() Boaily injury to another with a weapon."
The District Court refused to give a lesser included offense
instruction of mtsdemeanor assault. Under section 94-5-201,
R.C.M. 1947:
" 1 A person commits the offense of assault if he:
()
"***
" b negligently causes bodily injury to another with
()
a weapon * * *.I1
The difference between aggravated assault and the lesser
included offense of misdemeanor assault is the intent of
defendant at the time the crime was committed. From a review
of the record, it becomes readily apparent there was ample
evidence to put into question whether the defendant knowingly
or purposely shot the victim, or negligently shot the victim.
Montana's standard for determining whether there has been
sufficient evidence as to a theory introduced to warrant the
granting of an instruction is set forth in State v. Buckley,
(1976), Mont . , 557 P.2d 283, 33 St. Rep. 1204, 1207:
"* * * the district court's instructions must cover
every issue or theory having support in the evidence,
and the inquiry of the district court must only be
whether or not any evidence exists in the record to
warrant an instruction on mitigated deliberate homi-
cide .I1
This is the standard to be used when dealing with all lesser
included instructions, regardless of the offense.
The United States Supreme Court in Keeble v. United
States, (1973), 412 U.S. 205, 93 S.Ct. 1993, 36 L ed 2d 844, said
that the defendant is entitled to instructions on a lesser in-
cluded offense, if evidence would permit the jury rationally to
find him guilty of the lesser offense and acquit him of the greater.
I n t h e c a s e before us t h e record i s r e p l e t e with such
evidence. The t r a n s c r i p t shows t h e v i c t i m Kerry Loran, a t t h e
time of t h e shooting,did not b e l i e v e defendant was going t o
shoot him. There was a l s o testimony given by various e x p e r t
witnesses a s t o defendant's v i s i o n without h i s g l a s s e s , i . e . ,
without h i s g l a s s e s Bouslaugh's v i s i o n was 401400 o r l e g a l l y
blind. Other s p e c t a t o r s t e s t i f i e d t h a t defendant had been
beaten up s u b s t a n t i a l l y and he seemed u n s t a b l e a t t h e time he
came from t h e pickup with t h e gun. I t i s c l e a r from t h e evidence
a reasonable inference may be drawn t h a t defendant a c c i d e n t l y o r
n e g l i g e n t l y shot t h e v i c t i m and t h e r e f o r e i t was p r e j u d i c i a l
e r r o r t o r e f u s e t o give t h e jury an i n s t r u c t i o n on misdemeanor
assault.
The s t a t e contends t h e crime committed was e i t h e r aggravated
a s s a u l t o r no crime a t a l l . I n S t a t e v. Baugh, (1977),
Mont . , 571 P.2d 779, 34 St.Rep. 1315, 1318, t h e defendant
was convicted of d e l i b e r a t e homicide. Defendant argued he was
prejudiced by t h e t r i a l c o u r t ' s r e f u s a l t o give a l e s s e r included
i n s t r u c t i o n on mitigated d e l i b e r a t e homicide. I n Baugh t h e r e
was no evidence of any f a c t o r s tending t o i n s t i g a t i o n and t h i s
Court held:
"' * * * I n many i n s t a n c e s , however, t h e evidence i s
such a s t o show t h a t t h e defendant i s e i t h e r g u i l t y
of t h e offense charged o r i s e n t i t l e d t o an a c q u i t t a l .
I n such cases t h e c o u r t may not be put i n e r r o r f o r
r e f u s i n g o r f a i l i n g t o i n s t r u c t a s t o t h e lower degree
of t h e included offense.'" 571 P.2d 781.
See a l s o : S t a t e v. McDonald, (1915), 51 Mont. 1, 16, 149 P. 279.
From our record t h e j u r y could have found, had i t been properly
i n s t r u c t e d , t h a t defendant was g u i l t y of t h e l e s s e r included
offense of misdemeanor a s s a u l t . The record i n d i c a t e s :
1) The gun went o f f while defendant was i n t h e middle
of a sentence.
2) Defendant, who l o s t h i s g l a s s e s e a r l y i n t h e f i g h t ,
i s l e g a l l y b l i n d without them.
3) Defendant by f i r i n g t h e gun i n t h e a i r demonstrated no
i n t e n t t o harm anyone.
4) None of t h e many witnesses could t e s t i f y they thought
defendant intended t o shoot t h e victim.
5) Defendant appeared t i r e d and unstable.
6) Defendant t o l d everyone around him t o s t a y away.
7) D r . Trunnel t e s t i f i e d t h a t due t o defendant's mental
make-up, confusion caused by t h e f i g h t , and h i s almost t o t a l
l o s s of v i s i o n without h i s g l a s s e s , he would s u f f e r a decompen-
s a t i o n f u n c t i o n , which means defendant would be very upset and
con£used.
The judgment of t h e t r i a l c o u r t i s reversed and t h e sentence
i s vacated. The cause i s remanded f o r a new t r i a l , c o n s i s t e n t
with t h i s opinion.
A'
/
Justice
/
W Concur:
e
\
Chief J u s t i c e .
Mr. Justice John C. Harrison dissenting:
I dissent.
The testimony that the witness was not afraid that the
appellant would shoot him should have been rejected. The witness's
state of mind was neither material to the crime with which
appellant was charged, nor relevant to the jury's determination
whether the weapon was exhibited in a threatening manner. The
purpose of the statute is to make punishable acts that endanger
or are likely to endanger other persons without any specific
intent to do so. Whether or not he drew the weapon for self-
, defense was a fact question to be determined by the jury and here
they found contra to the appellant's contentions and in my opin-
ion we are bound by their finding. I would affirm the conviction.