                                      No. 12180

           I N THE SUPREME COURT O THE STATE O M N A A
                                  F           F OTN

                                         1972



THE STATE O M N A A
           F OTN,

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

          -VS   -
PAUL MANNING,

                              Defendant and Appellant.



Appeal from:        D i s t r i c t Court of t h e T h i r t e e n t h J u d i c i a l District,
                    Honorable C h a r l e s Luedke, Judge p r e s i d i n g .

Counsel of Record:

         For Appellant :

                John L. Adams, Jr. argued, B i l l i n g s , Montana.

         For Respondent :

                Hon. Robert L. Woodahl, Attorney General, Helena,
                 Montana.
                David V. Gliko, A s s i s t a n t Attorney General, argued,
                 Helena, Montana.
                Harold F. Hanser, County Attorney, B i l l i n g s , Montana.
                G. Todd Baugh, Deputy County A t t o r n e y , argued, B i l l i n g s ,
                 Montana.



                                                 Submitted:        A p r i l 20, 1972

                                                    Decided :     Juf. 2 8 1E
                                                                            9
Filed:     JUL 2 Fj 1972
Mr. Chief J u s t i c e James T. Harrison delivered the Opinion of the Court.
          T h i s is an appeal from a conviction of the crime of a s s a u l t i n t h e
second degree following a t r i a l before a jury i n the d i s t r i c t court of
Yellowstone County.      Defendant was sentenced t o ten years i n the Montana
s t a t e prison fol lowing proof of a prior conviction.
          From t h e record i t appears t h a t i n the e a r l y morning hours of
September 13, 1971, Rita Jensen, hereinafter referred t o as Rita, was force-
f u l l y struck i n the face by the defendant outside t h e Midway Club, a Billings
night club.     The blow, i n f l i c t e d by defendant's f i s t , was of such impact as
t o produce a comminuted and depressed f r a c t u r e of t h e zygomatic arch and
a f r a c t u r e of t h e coronoid process, which a r e component bones in the jawbone
structure.    The injury required Rita t o be hospitalized and operated upon
by an oral surgeon.      Rita t e s t i f i e d t h a t the injury was so painful t h a t she
had t o return t o the hospital emergency room f o r several days t o receive pain-
suppressing injections.       A t t r i a l , the oral surgeon a l s o gave h i s opinion
t h a t such an injury would surely be painful.         Rita was a student a t Billings
Business College and had t o miss about three weeks of school because of t h e
injury.
          The circumstances leading t o the injury began w i t h the a r r i v a l of
Rita and her e s c o r t , Gordon Sticka, a t t h e Midway Club about 10:30 p.m. on
the evening of September 12.        She and her e s c o r t had some drinks and engaged
i n dancing from t h e i r time of a r r i v a l u n t i l the club closed about 2:00 a.m.,
September 13.     Shortly p r i o r t o closing time, the defendant and the lady he
was escorting arrived a t the Midway Club f o r the purpose of dancing and
having "a few drinks".       Defendant's testimony s t a t e s t h a t he arrived about
1 :00 or 1 :30 a.m.    Defendant, Paul Manning, says he was also d r i n k i n g t h a t
evening before arriving a t the Midway.
          Although Manning and Rita were i n separate p a r t i e s t h a t evening,
they did on one occasion dance together.           I t was apparently customary f o r a
couple t o "switch off every once in awhile" and dance with other partners.
This one dance was the only contact Rita had w i t h Manning until closing
time a t the Midway.
            A t t h i s point, the testimony i s in c o n f l i c t regarding the immediate
circumstances bringing about the injury, which occurred j u s t following the
closing of the Midway Club on t h e morning of September 13. Defendant said
he was talking w i t h Rita outside the club when Gordon Sticka suddenly
s t a r t e d a f i g h t w i t h him.   Manning t e s t i f i e d t h a t i f he h i t Rita, i t must
have been by accident due t o her getting i n the way of the alleged Sticka-
Manning melee.
            Rita and Gordon Sticka deny t h a t there was any f i g h t whatsoever be-
tween Sticka and Manning.                Rita t e s t i f i e d t h a t while she was standing out-
side the club waiting f o r her escort t o bring h i s c a r from where i t was
parked, Manning asked her t o leave w i t h h i m .               She refused, turned away from
Manning and moved toward the car which Gordon Sticka had now brought nearby.
She did not hear Manning say anything e l s e , b u t she does remember Manning's
f i s t swinging toward her.             Gordon Sticka t e s t i f i e d t h a t when Rita reached
the car w i t h Manning j u s t behind her, Manning said:                  "Have you ever seen a
woman h i t ? " A t t h a t point, defendant h i t Rita.
            On or about September 14, 1971, defendant was arrested on a charge
of second degree assaul t.
            A t the close of the t r i a l , defendant's attorney offered h i s instruc-
tions Nos. 11, 12 and 13 on t h i r d degree a s s a u l t and the penalties f o r second
and t h i r d degree a s s a u l t .     All these instructions were refused by t h e court.
Alleging e r r o r i n such ruling, defendant appeals.
            The issue t o be determined is whether, upon t h i s record, the d i s t r i c t
court erred i n refusing t o i n s t r u c t the jury on t h i r d degree a s s a u l t .
            Defendant's refused instruction No. 11 would have advised the jury
t h a t second degree a s s a u l t i s a felony and t h a t t h i r d degree a s s a u l t i s a
misdemeanor and would have described the difference in penalty f o r each
offense.     Refused instruction No. 12 would have advised t h a t defendant might
be found g u i l t y of any l e s s e r included offense i f the evidence was insuf-
f i c i e n t t o establish the offense charged, and t h a t the offense charged,
second degree a s s a u l t , "   ***     necessarily includes t h e l e s s e r offense of
Assault i n the Third Degree".            Defendant's instruction No. 13, also refused,
would have defined t h i r d degree a s s a u l t f o r the jury.
           Defendant was charged w i t h and found g u i l t y of violating section
94-602(3), R.C.M.       1947, which reads as follows:
           "Every person who, under circumstances not amounting t o
           the offense specified in the l a s t section: * * *

           " ( 3 ) Mil l f u l l y or wrongfully wounds o r i n f l i c t s grievous
           bodily harm upon another, e i t h e r w i t h o r without a weapon
           * * *, 1 '

           Section 94-603, R.C.M.         1947, e s s e n t i a l l y defines t h i r d degree a s s a u l t
as any a s s a u l t o r a s s a u l t and battery not previously specified i n the Code a s
a greater degree of a s s a u l t .      Like other degrees of a s s a u l t , t h i r d degree
a s s a u l t requires unlawful i n t e n t on the p a r t of t h e a c t o r .
           On the basis of the evidence i t had t o consider, there can be no
question t h a t the jury-could find t h a t the defendant "willfully" i n f l i c t e d
"grievous bodily harm" upon Rita Jensen.                 Two of t h e three witnesses t e s t i -
f i e d t h a t without provocation, Manning struck Rita w i t h his closed f i s t .
Her jaw was fractured, requiring hospital i z a t i on and oral surgery.
           In refusing t o give defendant's offered instructions, the court i n
e f f e c t ruled t h a t , as a matter of law, there was no evidence t o support a
finding of t h i r d degree a s s a u l t .   The d i s t r i c t court was correct in so l i m i t -
ing the j u r y ' s determination t o second degree a s s a u l t o r no a s s a u l t a t a l l .
           In reviewing the record we find t h a t there was no evidence of t h i r d
degree a s s a u l t , w i t h i t s r e q u i s i t e of criminal, unlawful i n t e n t , because the
only other testimony regarding the cause of the injury, Manning's, was prem-
ised upon a theory of accidental s t r i k i n g .          If the jury were t o believe de-
fendant's theory of "accident", they would then have to acquit, since no
element of criminal intent would then be involved.
         This Court recently ruled in State v. Lewis, 157 Mont. 452, 457,


         " * * * Where the facts disclose, as in this case, that
        the evidence constituted at 1 east second degree assaul t
        or no assault at a1 1 , the contention that the court erred
        in failing to give instructions on third degree assault
        is not meritorious." See also State v. Satterfield, 114
        Mont. 122, 132 P.2d 372 and State v. Karri, 84 Mont. 130, 276
        P.2d 427.
         The district court was also correct in refusing to instruct on
degrees of punishment. In State v. Zuidema, 157 Mont. 367, 373, 485 P.2d
952, we stated:
         "We note here that in all criminal prosecutions the
         jury under the new rules is told that punishment is not
         of its concern; its sole function is to decide the de-
         fendant's guilt or innocence. By legislative action
         punishment has been given solely to the trial judge,
         leaving the function of finding facts and weighing them
         to the jury,"
         Accordingly,.the j




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