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, 

In and for the County of Hill 

Honorable B. W. Thomas, Judge presiding. 

Counsel of Record: 

For Appellant: 

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 

DEc 2 3 1985 

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

Court. 

On November 19, 1980, Emil Longneck was charged with 

deliberate homicide 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 deliberate homicide charge arose from the death of 

Curtis Alexander, whose body was found on a street in Havre, 

Montana, at approximately 3:00 a.m., on August 7, 1980. 

Alexander had been drinking at various bars in Havre during 

the evening of August 6 and the early morning of August 7. 

His companions that evening were his sister, Karen Alexander, 

and a friend, Daryl Kirkaldie. 

The defendant knew the Alexanders and he made repeated 

efforts throughout the night to convince Karen Alexander to 

go out with him. His advances were declined, however, and 

he soon began to harass Kirkaldie, whom he viewed as a rival 

for Karen Alexander'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 defendant was 

knocked to the ground. 

Immediately following the encounter with the defendant, 

Kirkaldie, Karen Alexander, and Curtis Alexander began 

walking from Lee's Tavern to another bar. The defendant 

testified that he decided to get even with Kirkaldie and 

toward that end he found a "stick" in a nearby alley. He 
ran up behind the three as they were walking and delivered a 

single blow with the stick to Curtis Alexander's head. The 

defendant apparently believed that he was striking Kirkaldie. 

The blow, which knocked Alexander to the ground, was audible 

a half a block away. After striking Alexander, the defendant 

ran from the scene. Kirkaldie and Karen Alexander chased 

the defendant but they were 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 

he was all right. The three then continued walking. After 

they had gone about a block and a half Curtis Alexander 

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 from where he was last seen by Kirkaldie and 

Karen Alexander. 

An autopsy revealed four head injuries and several 

lacerations and bruises on Alexander's arms. The doctor's 

testimony indicates that these injuries caused Alexander'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 as Alexander 

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. The prosecution did not attempt 

to prove that the defendant committed the fatal, second 

assault. 

The issue presented is whether the District Court erred 

in holding that the jury convicted the defendant of an 

aggravated assault with 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 charge named in this portion of the 

information is deliberate 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 

crimes was proven at trial. The defendant was convicted of 

an aggravated assault, but it was 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 

information but the first assault was 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 caused Alexander'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 a motion 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 sufficiency of an information is 

whether a person of common understanding would know what is 

intended to be charged. State v. Kirkland (1979), Mont. 

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

general rule is that when the facts, acts and circumstances 

are set forth with 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), 

107 Mont. 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 facts detailed 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 against what he was 
required to defend. He could not have been surprised or 

misled at trial. 

Based upon the foregoing, we reverse the District Court 

and reinstate the jury's verdict. We remand to the District 

Court for further proceedings. 

--------- 

Justice 

We Concur: 

Chfl Justice 

-4- tices