No. 12232 IN

### THE SUPREME COURT OF THE STATE OF MONTANA 

### f972

THE STATE OF MONTANA, Plaintiff and Respondent,

-vs

# - LEV1 CAMPBELL, Defendant and Appellant.

Appeal from: District Court of the Second JudicialDistrict, Honorable John 

### B. McClernan, Judgepresiding. Counsel of Record: For Appellant: Mark P. Sullivanargued, Butte, Montana, For Respondent: Larry J. Stimatz argued, CountyAttorney, Butte, Montane. Robert L. Woodahl, Attorney General, Helena, Montana. J. C. Weingartner argued, AssistantAttorney General, Helena, Montana.

Submitted: June 13, 1972 Decided: 

### AUG2

### 91972

erkMr. 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 onAugust 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 InnBar in Butte,Montana. An eyewitness described the scene as the following: John Ereaux was standing watching a fightbetween 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 frombehind by Campbell and Leonard Lucero began to strikehim; Mr. Ereaux was knocked to the floor atwhich time Campbell and the two Lucerosbegan to kick him. All three pulled him outside and continued to kickhim. His resulting injurieswere such that his doctor did not expect him to live and therewas the possibility of brain damage. Appellant Campbell raised several issues on appeal. He claims as error the giving by the court below of instructionNo. 14 and the refusal of the trial judge to give defenseproposed instructionsA., B. and C. The Statebeing 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 iswhether or notvenue was properly proved in the trial. Campbell complains that the giving of instructionNo. 14was error because itdid not refer directly to either the statute concerning first or second degree assault and was not related to the facts in the case. The instructiongiven by the court reads as follows: "Everyperson who commits an assault upon the person of another by anymeans of force likely to produce great bodily injury is guilty of a crime. "To constitute that crime the assaultmust be committed by a means which isused in such manner and with such force that itwould be likely to produce great bodily injury. "Actualbodily injury is not a necessary element of the crime, but, if such injury is inflicted, itsnature and extent are to be considered in connectionwith all the evidence in determining whether themeans used and themanner in which it was used were such that they were likely to produce great bodily injury." The trial court in a previous instructionhad already instructed the jury onwhat the elements of first and second degree assault were, and the State argues that this instructionwas needed to further define and explain to the jury what that statutory language meant. Inparticular the state points out the instruction

was necessary to give somemeaning to the term "grievousbodily harm",which isused in the second degree assault statute. As a general proposition an instruction in a criminal casemust containan explanation or definition of the crime and normally thewording of the statute will be sufficient but the exact language of the statuteneed not be given. In a state such as
ourswhere our criminal code uses languagewhich isnot common to every day usage itbecomes necessary to add explanation so the jurorswill understand the lawunder which they are to decide the case. While a later instructiongave a better or clearer definition of "grievousbodily harm"we cannot seehow the appellant was prejudiced by the giving of instructionNo. 14 andtherefore we find no error in itbeing given to the jury. Counsel for Campbell argues that it was error for the court to refuse to give defenseproposed instructionsA., 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 instructionA. 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 firstdegree." We agreewith the State in their contention that the meaning of the above instructionwas given in clear language in instruction No. 27, given by the court along with the language concerning lesser included offenses. InstructionNo. 27 reads: "Thisbeing a felony case,all twelve of your number must agree in order to find a verdict. In this case youmay 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,youmust select one of your number as Foreman, and he or she must sign any verdict upon which youmay agree." It is our conclusion that the idea expressed in the proposed instruction was better conveyed by the given instruction and therefore itwas not error for the court to refuse to give defense instructionA. Defenseproposed instruction B. was totally contained within another instruction givenby the court. The second paragraph of instructionNo. 3 reads inpart: "Youare not bound to decide in conformity with the declarations of any number of witnesses whichdo 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 thismethod. The court in its instructionNo. 2-1/2, inwhich it instructed the jury on his presumption of innocence and the law concerning reasonable doubt, adequately instructed on those points. Therefore defenseproposed instruction C. would not have added anything and the court was correct in refusing to give it. We have many times stated that in criminalprosecutions 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 Statev. 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 firstday of trial was contended to be prejudicial. Section 95-1803(a) provides that upon a showing of good cause the list of witnesses filedwith the clerk of court may be amended. The Criminal Law Commission comment to this section indicates that this proceduremay be done anytime up until

a verdict is found. Here there isno showing of abuse of discretion on.thepart of the trial judge and we will not reverse unless there is such a showing. Itwas thevictim of the crime whose name was being added. Itwould certainly seemdifficult to claim surprise in an assault action to have the person assaulted testify. The record indicates that defense counsel objected butmade no effort to ask for a postponement or continuanceas permitted by statute at the time when the namewas added or when Ereaux testified. Section 95-1708,R.C.M. 1947. Appellant Campbell next asserts that his sentencingwas not proper in that the proper procedure for increasing his sentence because of conviction of prior felonywas not followed. He claims there was no proper identificationof 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 soughtwas 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 therewas no objection made to the use of such evidence the appellantwill 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, "Themeasure of proof is the

same as that required to establish any material fact in a criminal prosecution." Statev. Williams, 122Mont. 279, 280, 202 P.2d 245 (1949). Appellant's counsel argues that venue must be provedby 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 theproof of venue. Statev. 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 itmust be proved as any disputed fact,we find nothing that would prohibit the use of circumstantial evidence tomeet the standard of proof. TheMississippi 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 evidencewhich would allow this Court to conclude thatvenue was properly proved in the trial. During the course of the trial therewas 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 assaulthad taken place within the city limits of Butte,Montana. The testimony put inby 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 appellanthad 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 fromBillings, Montana onAugust 6, 1971,and that he was in the Dutch Inn Bar the night John Ereaux was assaulted. We believe thiswas sufficient circumstantialevidence 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. Statev. Anderson, 156 Mont. 122, 476 P.2d 780 (1970); State

### v. Harney,

# - Mont

# . P.2d -1 

# - - , 29 St.Rep. 627. The Towa Supreme Court, in Statev. Wardenburg, 261 Ia. 1395, 158N.W.2d 147, 152 (1968), reached the same conclusion when itheld: 

### " 

## * * * 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 countywhere the indictment is found. Circumstantialevidencemay 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 conclusionwhich can be drawn is that the crime was committed in the state and county alleged, the proof is sufficient

## * * *.I" The judgmentof conviction is affirmed.

# // +/ Chief -~ustice



## . he concur:

Associate Justices 

### f