No. 81-239 IN THE SUPREME COURT OF THE STATE OF MONTANA 1981

THE STATE OF MONTANA, Plaintiff and Appellant,

EMIL LONGNECK, Defendant and Respondent.

Appeal from: District Court of the Twelfth Judicial District, Inand for the County of Hill Honorable B. W. Thomas, Judge presiding. Counsel of Record: ForAppellant: Hon. Mike Greely,Attorney General, Helena, Montana Chris Tweeten argued,Assistant Attorney General,Helena,

Montana Ronald W. Smith,County Attorney, Havre,Montana For Respondent: Morrison, Ettien and Barron,Havre,Montana J. Chan Ettien argued, Havre,Montana

Submitted: October 28, 1981 Decided: December 22, 1981 

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### 1985 Filed:Mr. Justice John C. Sheehy delivered the Opinion of the Court.

On November 19, 1980, Emil Longneck was charged with deliberatehomicide under a felony-murder theory in the District Court of the Twelfth Judicial District, Hill County. A jury found him not guilty of deliberate homicide but guilty of the lesser-included offense of aggravated assault. Upon motion by the defendant, the District Court entered an order acquitting the defendant notwithstanding the verdict. The State appeals the District Court's order. We reverse. The deliberatehomicide charge arose from the death of CurtisAlexander, whose body was found on a street in Havre, Montana, at approximately 3:00 a.m., onAugust 7, 1980. Alexander had been drinking at various bars in Havre during the evening ofAugust 6 and the early morning of August 7. His companions that evening were his sister, KarenAlexander, and a friend, Daryl Kirkaldie. The defendantknew the Alexanders and he made repeated efforts throughout the night to convince KarenAlexander to go outwith him. His advanceswere declined, however, and he soon began to harass Kirkaldie, whom he viewed as a rival for KarenAlexander's affections. Shortly before 2:00 a.m., Kirkaldie and the defendant had a brief scuffle outside Lee's Tavern. In the course of the fight the defendantwas knocked to the ground. Immediately following the encounterwith the defendant, Kirkaldie,KarenAlexander, and Curtis Alexander began walking from Lee's Tavern to another bar. The defendant testified that he decided to get evenwith Kirkaldie and toward that end he found a "stick" in a nearby alley. Heran up behind the three as they werewalking and delivered a single blow with the stick to CurtisAlexander's head. The defendantapparentlybelieved that he was striking Kirkaldie. The blow, which knocked Alexander to the ground, was audible a half a block away. After strikingAlexander, the defendant

ran from the scene. Kirkaldie and Karen Alexander chased the defendant but theywere unable to catch him. When they returned to the scene of the attack they found Alexander lying flat on his back. They helped him to his feet and handed him his hat, which had been knocked off in the attack. Alexander did not appear to be injured and he indicated that hewas all right. The three then continuedwalking. After they had gone about a block and a half CurtisAlexander expressed a desire to go to the hospital. He left the other two and walked by himself toward the hospital. Less than an hour later his body was found in a pool of blood approximately two blocks fromwhere hewas last seen by Kirkaldie and KarenAlexander. An autopsy revealed fourhead injuries and several lacerations and bruises onAlexander's arms. The doctor's testimony indicates that these injuries causedAlexander's death and were sustained in a single attack which occurred at the place where the body was found. The facts, then, are relatively simple. Curtis Alexander

was the victim of two separate assaults on that summer night. The first occurred as he walked down the street with his sister and his friend. This first assault, although it knocked Alexander to the ground, did not lead to his death. The second assault took place a while later asAlexander walked alone. It was the second assault which caused his death. The defendant admits committing the first assault,but, he denies it constituted an "aggravated" assault, under section 45-5-202,MCA. Theprosecution did not attempt to prove that the defendant committed the fatal, second assault. The issuepresented iswhether the District Court erred inholding that the jury convicted the defendant of an aggravated assaultwith which he was not charged. The information charging the defendant reads as follows: "[The county attorney] 

# . . . files herein this information, charging and accusing the said defendant,Emil Longneck with the crime of deliberate homicide, section 45-5-102(1)(b), MCA, 1978." Thus, the chargenamed in this portion of the information isdeliberate homicide. Under this charge the defendant could also have been convicted of the lesserincluded offense of aggravated assault,but that conviction would have to rest on the facts surrounding the fatal, second assault. Section 46-11-501(2), MCA. Neither of these crimeswas proven at trial. Thedefendant was convicted of

an aggravated assault, but itwas not the assault included in the charge of deliberate homicide because it was not the fatal assault. Thus, the second assault is named in the informationbut the first assaultwas proven at trial. The process of charging the defendant is saved from fatal defect,however, by a short recitation of facts at the bottom of the information and a lengthy narrative of facts contained in the motion for leave to file the information. Apparently,at the time of filing the information,the police and the county attorney mistakenly believed that the first assault causedAlexander's death. Each recital of facts, therefore, described the nonfatal, first assault which was proven at trial.This Court has stated that the contents of the affidavit supporting amotion for leave to file an information may be considered in determining the meaning of the language contained in the information. State v. Dunn (1970),155 Mont. 319, 472 P.2d 288, 294. In the present case the motion for leave to file serves as the supporting affidavit, and may therefore be considered in determining the meaning of the language contained in the information. Defendant's attorney acknowledged receipt of both the information and the motion for leave to file the information. The test to be applied in judging the sufficiencyof an information is whether a person of common understandingwould knowwhat is intended to be charged. Statev. Kirkland (1979), Mont.



## , 602 P.2d 586, 590, 36 St.Rep. 1963, 1966. "The 

### - general rule is thatwhen the facts, acts and circumstances are set forthwith sufficient certainty to constitute an offense, it is not a fatal defect that the complaint gives the offense an erroneous name." State v. Schnell (1939), 107Mont. 579, 88 P.2d 19, 22. It is clear from a reading of the facts set forth in the information and the leave to file the information that the state intended to prove the nonfatal, first assault as part of its deliberate homicide theory. Ideally, the information should have named, in addition to the deliberate homicide charge, a separate count of aggravated assault to cover the nonfatal, first assault; or, it should have charged the defendant with only the nonfatal, first assault. Despite this inaccuracy in naming the offense, the factsdetailed in the information and in the motion for leave to file the information served to inform the defendant of what was intended to be charged and againstwhat he wasrequired todefend. He could not have been surprisedor misled attrial. Based upon the foregoing, wereverse theDistrict Court and reinstate thejury's verdict. Weremand tothe District Court forfurtherproceedings.



## --------- Justice WeConcur:

Chfl Justice 

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tices