                                      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 ,
                                                                             D
                      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 .
                                                                     p

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.

                                                           --



                                                   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.
 r
           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
                                                    e
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".
                                          - 3 -
           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
                                         - 4 -
                         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
               i


              dnder subdivision 3 because t h a t charge is not contained in the information
        ,!*
              f i l e d against him.
    /
                         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
                          1
              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
                                                                                           I
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.
                                                        e
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.
                                            - 7 -
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
               e
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
                                               ------ --- --
                                                      Associate Justice




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