                              No. 12232

     I N THE SUPREME C U T O THE STATE O MONTANA
                      OR    F           F

                                 f 972


T E STATE O MONTANA,
 H         F

                          P l a i n t i f f and Respondent,

     -vs   -
LEV1 CAMPBELL,

                          Defendant and Appellant.



Appeal from:     D i s t r i c t Court of t h e Second J u d i c i a l D i s t r i c t ,
                 Honorable John B. McClernan, Judge p r e s i d i n g .

Counsel of Record:

     For Appellant :

           Mark P. S u l l i v a n argued, B u t t e , Montana,

     For Respondent :

           Larry J. Stimatz argued, County Attorney, B u t t e , Montane.
           Robert L. Woodahl, Attorney General, Helena, Montana.
           J. C. Weingartner argued, A s s i s t a n t Attorney General,
             Helena, Montana.



                                                          Submitted:        June 13, 1972

                                                             Decided: AUG 2 9 1972




                                                           erk
Mr. Chief Justice James T. Harrison delivered the Opinion of
the Court.
        Levi Campbell, appellant, was convicted of second degree
assault following a jury trial in Silver Bow County.
        The facts of the case taken from the record on appeal are
that on August 6, 1971, or during the early morning hours of
August 7, 1971, Levi Campbell, Kenneth Lucero and Leonard Lucero
attacked and severely assaulted John Ereaux.    The assault took
place at the Dutch Inn Bar in Butte, Montana.    An eyewitness
described the scene as the following:    John Ereaux was standing
watching a fight between Levi Campbell and another man when
Leonard Lucero took a swing at him; Ereaux then knocked Lucero
to the floor at which time Leonard's wife jumped on Ereaux's
back.   After throwing her to the floor Ereaux was then grabbed
from behind by Campbell and Leonard Lucero began to strike him;
Mr. Ereaux was knocked to the floor at which time Campbell and
the two Luceros began to kick him.    All three pulled him outside
and continued to kick him.     His resulting injuries were such
that his doctor did not expect him to live and there was the
possibility of brain damage.
        Appellant Campbell raised several issues on appeal.   He
claims as error the giving by the court below of instruction No.
14 and the refusal of the trial judge to give defense proposed
instructions A., B. and C.   The State being allowed to add Ereaux's
name to the list of witnesses on the opening day of the trial
is also claimed as error, and whether he was sentenced properly
under Montana's statutes for increased penalty for conviction
of a prior felony.   The final issue is whether or not venue was
properly proved in the trial.
        Campbell complains that the giving of instruction No. 14
was error because it did not refer directly to either the stat-
ute concerning first or second degree assault and was not related
to the facts in the case.   The instruction given by the court
reads as follows:
       "Every person who commits an assault upon the
       person of another by any means of force likely
       to produce great bodily injury is guilty of a crime.
       "To constitute that crime the assault must be
       committed by a means which is used in such manner
       and with such force that it would be likely to
       produce great bodily injury.
       "Actual bodily injury is not a necessary element
       of the crime, but, if such injury is inflicted,
       its nature and extent are to be considered in
       connection with all the evidence in determining
       whether the means used and the manner in which
       it was used were such that they were likely to
       produce great bodily injury."
The trial court in a previous instruction had already instructed
the jury on what the elements of first and second degree assault
were, and the State argues that this instruction was needed to
further define and explain to the jury what that statutory lang-
uage meant.   In particular the state points out the instruction
was necessary to give some meaning to the term "grievous bodily
harm", which is used in the second degree assault statute.    As
a general proposition an instruction in a criminal case must
contain an explanation or definition of the crime and normally
the wording of the statute will be sufficient but the exact
language of the statute need not be given.   In a state such as
ours where our criminal code uses language which is not common
to every day usage it becomes necessary to add explanation so
the jurors will understand the law under which they are to de-
cide the case.   While a later instruction gave a better or clear-
er definition of "grievous bodily harm" we cannot see how the
appellant was prejudiced by the giving of instruction No. 14 and
therefore we find no error in it being given to the jury.
         Counsel for Campbell argues that it was error for the
court to refuse to give defense proposed instructions A., B.
and C.    The State responds to this argument by pointing out
that if not the exact language at least the meaning of the
proposed instructions was contained in other instructions given
by the court.     Proposed defense instruction A. reads:
         "In this case, the whole of your number must
         agree in finding the defendant guilty or not
         guilty of the crime alleged in the information
         herein, namely assault in the first degree."
We agree with the State in their contention that the meaning of
the above instruction was given in clear language in instruction
No. 27, given by the court along with the language concerning
lesser included offenses.     Instruction No. 27 reads:
         "This being a felony case, all twelve of your
         number must agree in order to find a verdict.
         In this case you may find any one of the follow-
         ing verdicts:
                "1. Guilty of Assault in the First Degree
                "2. Guilty of Assault in the Second Degree
                "3.   Not Guilty
         "Wl~enyou retire to your jury room, you must select
         one of your number as Foreman, and he or she must
         sign any verdict upon which you may agree."
It is our conclusion that the idea expressed in the proposed in-
struction was better conveyed by the given instruction and there-
fore it was not error for the court to refuse to give defense
instruction A.
         Defense proposed instruction B. was totally contained
within another instruction given by the court.    The second para-
graph of instruction No. 3 reads in part:
         "You are not bound to decide in conformity with
         the declarations of any number of witnesses which
          do not produce conviction in your minds, against
          a less number, or against a presumption, or other
          evidence satisfying your minds."
There would have been no useful purpose served by setting this
language off from the rest of the instruction, therefore the
court committed no error in using this method.
          The court in its instruction No. 2-1/2, in which it in-
structed the jury on his presumption of innocence and the law
concerning reasonable doubt, adequately instructed on those
points.    Therefore defense proposed instruction C. would not
have added anything and the court was correct in refusing to
give it.
       We have many times stated that in criminal prosecutions
where the instructions as a whole correctly stated the law and
fully and fairly instructed the jury thereon, there is no error
in refusing proposed instructions which were either covered by
given instructions or were inapplicable.    See State v. Messerly,
126 Mont. 62, 244 P.2d 1054, and cases therein cited.    Such is
the case here.
       The addition of John Ereaux's name to the list of wit-
nesses for the State on the first day of trial was contended to
be prejudicial.    Section 95-1803(a) provides that upon a showing
of good cause the list of witnesses filed with the clerk of court
may be amended.    The Criminal Law Commission comment to this sec-
tion indicates that this procedure may be done anytime up until
a verdict is found.    Here there is no showing of abuse of dis-
cretion on.the part of the trial judge and we will not reverse
unless there is such a showing.    It was the victim of the crime
whose name was being added.    It would certainly seem difficult
to claim surprise in an assault action to have the person assaulted
testify.    The record indicates that defense counsel objected but
made no effort to ask for a postponement or continuance as
permitted by statute at the time when the name was added or
when Ereaux testified.     Section 95-1708, R.C.M. 1947.
       Appellant Campbell next asserts that his sentencing was
not proper in that the proper procedure for increasing his sen-
tence because of conviction of prior felony was not followed.
He claims there was no proper identification of him as being
the same Levi Campbell that had committed a burglary in Billings,
Montana.   In a recent decision we held that before the increased
penalty statutes could be used there had to be competent evidence
to show that the accused was the person committing the prior
felony.    State v. Cooper, 158 Mont. 102, 489 P.2d 99 (1971),
28 St.Rep. 835.     The State argues in this case that the appellant
admitted being in the Montana State Prison during the trial.        Up-
on a careful reading of the record the references the State refers
to talk about being in Deer Lodge.     The required notice that an
increased penalty was going to be sought was served upon the de-
fense counsel in this case and he had ample time at the sentencing
hearing to raise any objection to the identity of the accused at
that time and he did not.     Where there was no objection made to
the use of such evidence the appellant will waive his claim that
he was not properly identified.
       The last issue in this cause is the question of whether or
not venue was properly proved during appellant Campbell's trial.
       This Court has previously held that venue is a jurisdic-
tional question and not an element of the crime.     On the question
of proof of venue we held that, "The measure of proof is the
same as that required to establish any material fact in a criminal
prosecution."     State v. Williams, 122 Mont. 279, 280, 202 P.2d
245 (1949).     Appellant's counsel argues that venue must be proved
by direct testimony of the facts.   We do not agree but rather
find as the Ohio Court of Appeals did, that there is no set
formula for the proof of venue.    State v. Trantharr, 22 Ohio
App.2d 187, 259 N.E.2d 752, 754 (1969).    If there is no estab-
lished method by which venue must be proved, and it must be
proved as any disputed fact, we find nothing that would prohibit
the use of circumstantial evidence to meet the standard of proof.
The Mississippi Supreme Court reached such a conclusion in
Cruthixds v. State, 51 S.2d 747, 748 (Miss. Sect., 1951), holding:
                                                     .
       "Venue, like any other fact in a criminal case,
       may be proved b either direct or circumstan-
                      ;
       tial evidence."
       In the record of the trial of appellant Campbell, there
is a great deal of circumstantial evidence which would allow this
Court to conclude that venue was properly proved in the trial.
During the course of the trial there was testimony from five
police officers.    Each of the five stated that he was employed
by the Butte city police department and that he was connected to
the investigation of the assault in some official capacity.      Two
officers testified that they were on their regular patrol when
they were called to the Dutch Inn Bar shortly after the beating
took place.   The trial court could logically infer from this
testimony that the assault had taken place within the city limits
of Butte, Montana.
       The testimony put in by the appellant would also lead to
the conclusion that venue was proved.    Jimmy Holmes, the only
other defense witness, testified that he knew the appellant in
Butte during the summer the assault took place.    He further testi-
fied that on the day of the crime the appellant had visited him
in his home and he had accompanied the appellant to the Dutch Inn
Bar that night.    The appellant, testifying in his own behalf,
stated that he had traveled to Butte, Montana from Billings,
Montana on August 6, 1971, and that he was in the Dutch Inn
Bar the night John Ereaux was assaulted. We believe this was
sufficient circumstantial evidence for the trial court to take
judicial notice of the fact the crime took place in Butte,
Montana, and that Butte is locat&d within the exterior bound-
aries of Silver Bow County.   State v. Anderson, 156 Mont. 122,
476 P.2d 780 (1970); State v. Harney,   - .
                                         Mont  -
                                               1     -P.2d
 ,
- 29     St.Rep. 627.   The Towa Supreme Court, in State v.
Wardenburg, 261 Ia. 1395, 158 N.W.2d 147, 152 (1968), reached
the same conclusion when it held:
       " * * * No positive testimony that the violation
       occurred at a specific place is required, it is
       sufficient if it can be concluded from the
       evidence as a whole that the act was committed
       in the county where the indictment is found.
       Circumstantial evidence may be and often is
       stronger and more convincing than direct evidence."
The court then went on to say:
      " ' * * * If, from the facts and evidence, the only
      rational conclusion which can be drawn is that
      the crime was committed in the state and county
      alleged, the proof is sufficient * * * . I "
      The judgment of conviction is affirmed.
                                               Chief - ~ u s t i c e

h e concur:
                             //
                             .            /+


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