No. 12232 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

f 972 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

-vs - 

LEV1 CAMPBELL, 

Defendant and Appellant. 

Appeal from: District Court of the Second Judicial District, 

Honorable John B. McClernan, Judge presiding. 

Counsel of Record: 

For Appellant : 

Mark P. Sullivan argued, Butte, Montana, 

For Respondent : 

Larry J. Stimatz argued, County Attorney, Butte, Montane. 

Robert L. Woodahl, Attorney General, Helena, Montana. 

J. C. Weingartner argued, Assistant 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 statute 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 language 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 decide the case. While a later instruction gave a better or clearer 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 following verdicts: 

"1. Guilty of Assault in the First Degree 

"2. Guilty of Assault in the Second Degree 

"3. Not Guilty 

"Wl~en you 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 instruction was better conveyed by the given instruction and therefore 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 paragraph 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 instructed 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 witnesses 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 section indicates that this procedure may be done anytime up until 

a verdict is found. Here there is no showing of abuse of discretion 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 sentence 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. Upon 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 defense 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 jurisdictional 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 established 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 testified 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 boundaries 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 -~ustice 

. he concur: 

Associate Justices f