                                   No.     89-600

                 IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         1990



STATE OF MONTANA,
                 Plaintiff and Respondent,
     -vs-
ODELL ECKER,
                 Defendant and Appellant.



APPEAL FROM:          District Court of the Tenth Judicial District,
                      In and for the County of Fergus,
                      The Honorable Peter L. Rapkoch, Judge presiding.


COUNSEL OF RECORD:
                 For Appellant:
                     Bradley B. Parrish, Attorney at Law, Lewistown,
                     Montana
     ,-          For Respondent:
                     Hon. Marc. Racicot, Attorney General, Helena,
                     Montana
                     Elizabeth Baker, Assistant Attorney General, Helena,
                     Montana
                     Craig Buehler, County Attorney, Lewistown, Montana




          -. -
                                         Submitted on Briefs:   April 5, 1 9 9 0
                                                    ~ecided: May 8, 1990
Filed:


                                    A"
                                         Clerk
Justice Diane G. Barz delivered the Opinion of the Court.

     Odell Ecker, defendant, appeals the decision of the District
Court of the Tenth Judicial District, Fergus County, denying his
motion to dismiss the amended information charging misdemeanor
assault.   Defendant alleged that the amended information was not
supported by an affidavit establishing probable cause.      We affirm
the district court.
     On September 12, 1988, the deputy county attorney for Fergus
County filed an information in the District Court for the Tenth
Judicial District, charging the defendant with the offense of
criminal endangerment, a felony. In support of the application for
leave to file the information, the deputy county attorney filed an
affidavit reciting the following facts:
           That on or about the 10th day of August, 1988,
           Charlene Garoutte was operating her motor
           vehicle on a highway in Fergus County, Montana
           near the Coffee Creek, Montana area. That the
           Defendant Odell Ecker was operating his white
           pickup truck in the same area.       That the
           Defendant drove his pickup immediately behind
           the car of Charlene Garoutte and appeared to
           b[e] trying to hit her car with his pickup,
           that the Defendant also pulled his truck
           around Charlene Garoutte[, ] got in front of
           her of her [sic] car and put on his brakes,
           whereby she had to either swerve around him or
           crash into the back of his pickup.        That
           Charlene Garoutte then went around him, and
           the Defendant then again put his pickup right
           on the rear bumper of her car, as well as
           tried to pass her and force her off the road.
           That such activity of the Defendant appeared
           to create a substantial risk of death or
           serious bodily injury.
Trial was set for December 14, 1988, and was continued until August
     On August 4, 1989, defendant moved to amend the charge on the
ground that the offense of criminal endangerment was not intended
to create an offense for conduct involving illegal or negligent
operation of motor vehicles,        and,   if so applied, would    be
unconstitutionally overbroad.       The district court agreed with
defendant and granted the motion to amend, ruling that the amended
charge should be a misdemeanor assault in violation of       §   45-5-
201 (1) (d), MCA.   Defendant raised no objection to this ruling, and
the court directed defense counsel to prepare the order. An order
was subsequently entered expressing the court's determination that,
           the facts stated in the Affidavit in Support
           of the Motion for Leave to File Information
           concerning the alleged incident more precisely
           support a charge of assault under M.C.A.
           Section 45-5-201(1) (dl rather than the offense
           charged in the Information under M.C.A.
           Section 45-5-207. (Emphasis in original.)
The district court therefore directed the deputy county attorney
to file an amended information, but found no need for the filing
of a separate affidavit.     An amended information was filed August
29, 1989, charging defendant with misdemeanor assault.
     prior to commencement of trial on August 29, 1989, defendant
moved to dismiss the amended information on the ground that there
had been no affidavit filed to support the new charge of assault.
The court found that the affidavit in support of the original
information clearly described "all of the elements necessary to
charge assault" and denied defendant's motion to dismiss the
amended information as well as defendant's request to continue the
trial setting.
     Defendant was convicted on August 30, 1989 of misdemeanor
assault.     On September 7, 1989, he appeared in open court for
sentencing and was ordered to pay a fine of $500, together with a
$10 fee pursuant to 5 45-18-236, MCA, jury costs in the amount of
$956.16, and court costs of $67.50; he was further sentenced to a
term of six months1 incarceration at the Fergus County jail, with
all but three days thereof suspended.
      The sole issue raised on appeal is whether the district court
erred    in denying     defendant's motion     to dismiss the amended
information for failure to file a new affidavit.
      Defendant argues that the offense of criminal endangerment and
the offense of misdemeanor assault are such dissimilar acts that
the     county    attorney   was   required   to   support   the    amended
information, charging defendant with misdemeanor assault, with an
affidavit that specifically stated that defendant "purposely or
knowingly caused reasonable apprehension of bodily             injury in
another."        Defendant then argues that since the affidavit in
support of the        information charging defendant with          criminal
endangerment does not mention the language found in the assault
statute, that the affidavit is not sufficient to establish probable
cause for the offense of misdemeanor assault.         We disagree.
      A court may use common sense and draw permissible inferences
when examining an affidavit for a determination of probable cause.
State v. Riley (1982), 199 Mont. 413, 423, 649 P.2d 1273, 1278.
This Court's role on appeal is merely to determine whether the
district court abused its discretion.         State v. Buckingham (Mont.
1989), 783 P.2d 1331, 1334, 46 St.Rep. 2102, 2105.
      The filing of an amended information does not require a second

                                     4
affidavit if the affidavit filed with the original information
established probable cause as to the amended charge.         Parker v.
Crist (1980), 190 Mont. 376, 381, 621 P.2d 484, 487.         In Parker,
this Court specifically stated that
          The filing of a second affidavit containing
          the same information and the same showing of
          probable cause would serve no purpose, would
          not   contravene the policy     behind   the
          requirement, and would be superfluous. The
          law does not require idle acts. Section 1-3-
          223, MCA.

Parker, 190 Mont. at 381, 621 P.2d at 487.       Accordingly, leave to
file the amended information was proper in this case if the
affidavit in support of the criminal endangerment charge contained
sufficient factual allegations to support a finding of probable
cause to believe that defendant had committed the offense of
misdemeanor assault.
     The district court, in response to defendant's motion to
dismiss the amended information on the ground that there had been
no affidavit filed to support the new charge of assault, found that
the affidavit in support of the original information clearly
described "all of the elements necessary to charge assault."            In
particular,   the   court   noted   that   the   affidavit   described
defendant's actions, and also the victim's actions in trying to
avoid the assault, showing her awareness of the situation.             The
court also commented that the part of the affidavit stating     I'   [tlhat
such activity of the Defendant appeared to create a substantial
risk of death or serious bodily injury" constitutes one of the
elements of assault.
     The offense of misdemeanor assault is committed if a person
I1purposely or knowingly causes reasonable apprehension of bodily
injury in another.'I    Section 45-5-201 (1)(d), MCA.        As already
noted, assault requires apprehension of bodily injury, whereas the
terminology in the affidavit stated that defendant's actions
I1appeared to create a substantial risk.''     This difference in
phraseology, however, does not defeat the showing of probable cause
for assault. As noted above, the district court is allowed to draw
permissible inferences from the affidavit.   When the affidavit is
examined as a whole, the district court could reasonably infer that
defendant's actions created a reasonable apprehension of harm in
the victim.   The district court did not abuse its discretion in so
concluding.
     Affirmed.




                                       -          Just
                                                         '



We concur:
