No. 13337 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

19 76 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

-vs - 

DENNIS FUGER , 

Defendant and Appellant. 

Appeal from: District Court of the Fourth Judicial District, 

Honorable Jack Green, Judge presiding 

Counsel. of Record : 

For Appellant: 

Curtis C. Cook argued, Hamilton, Montana 

For Respondent : 

Hon. Robert TJ. l~loodahl, Attorney General, Helena, 

Montana 

Douglas Harkin, County Attorney, Hamilton, Montana 

Margaret A. Tonon argued, Deputy County Attorney, 

Hamilton, Montana 

Submitted: August 30, 1976 

Decided: SEP 22 1976 

Filed : $EP 2. j376 
Mr. Justice Wesley Castles delivered the Opinion of the Court. 

1975 

On May 23,/~ennis Fuger was charged by Information in 

Ravalli County with aggravated assault in violation of section 

94-5-202(1) (a), R.C.M. 1947. After trial by jury in December 

1975, he was found guilty and sentenced to ten years in prison 

with all of it suspended except six months in the Ravalli County 

jail. He appeals. 

Appellant presents three issues for review: 

1) Did the state produce sufficient evidence to enable 

the jury to find that the victim was placed in "substantial risk 

2) Did the evidence show as a matter of law that defendant's 

use of force against the victim was justified as defense of 

another? 

Resolution of these two issues will determine the result of 

this appeal. Appellant's third issue, whether a new trial should 

have been granted or the judgment modified to find him guilty 

of only simple assault, lacks merit in view of our ruling on 

the first issue. 

The Information charged that Fuger: 

"* * * purposely or knowingly caused serious bodily 

injury to DAVE DANIELS by kicking md beating the 

said DAVE DANIELS about the face and upper portion 

of the body * * *." 

This charge arose from a fight occurring on the evening of April 

26, 1975. Fuger and his cousin Ron Snell were riding in one 

pickup and Dave Daniels (the victim) and Diane Snell (Ron ~nell's 

ex-wife) were riding in another pickup. The two vehicles met on 

a narrow road and stopped. The fight quickly followed. Fuger 
testified that Daniels knocked him unconscious and when he came 

to he saw Daniels sitting on Ron Snell and heard Snell yell for 

help: "Dennis! He has got a knife!" Fuger said he kicked Daniels 

to protect Snell from the knife. This version of the fight was 

supported by the testimony of Ron Snell. Daniels, however, 

testified that he voluntarily gave up the knife before he was 

hit or kicked. 

Fuger contends the evidence was insufficient to show Daniels 

faced a "substantial risk of death" as required for a conviction 

for aggravated assault. Section 94-5-202(1)(a), R.C.M. 1947, 

provides that aggravated assault may be committed by causing 

"serious bodily injury to another .I1 "Serious bodily injury" is 

defined by section 94-2-101(54), R.C.M. 1947, as "bodily injury 

which creates a substantial risk of death." 

Daniels was first treated in the emergency room at Daly 

Hospital in Hamilton by Dr. Robert Palmer and later transported 

to Missoula for further examination and treatment. Appellant 

bases his argument on Dr. Palmer's testimony that - in retrospect - 

Daniels was not in "substantial risk of death" at any time. 

Appellant concludes that this testimony precluded the jury from 

finding to the contrary and therefore the guilty verdict for 

aggravated assault was not supported by the evidence. 

However, Dr. Palmer also testified on redirect examination: 

"Q. Dr. Palmer, just one question; was it your 

opinion at the time when you examined him that due 

to the nature of his injuries he was in a potentially 

dangerous situation and was at that time facing a substantial risk of death? A. Yes, 1 think he was." 

The legislature has not defined "substantial risk of death", 

but it obviously means something more than "Bodily injury" which 

section 94-2-101(5), R.C.M. 1947, defines as "physical pain, 
illness or any impairment of physical condition and includes 

mental illness or impairment .I1 Injury which creates a "substantial risk of death" is graver and more serious, and whether 

or not it has been established by the evidence is generally a 

question of fact to be determined by the jury. 

Testimony at trial showed that when Daniels was admitted 

to the emergency room in Hamilton he was in a semi-conscious 

state with extensive bruises and swelling around the face. Further 

examination showed Daniels suffered a broken nose and a fractured 

palate. 

Dr. Palmer also testified Daniels was transferred to Missoula 

because the facilities at Hamilton were not equipped "to handle 

seriously injured or gravely injured head-type cases." No 

serious complications in fact developed as a result of Daniels' 

injuries. However, the test of "substantial risk of death" is not 

whether the victim lives or.dies. People v. Martinez, Colo., 540 

P.2d 1091, 1093. The evidence was sufficient to enable the jury 

to find that Daniels' injuries created a "substantial risk of 

death" . 

Appellant's second issue is whether his use of force against 

Daniels was justified as defense of another. Section 94-3-102, 

R.C.M. 1947, states: 

"A person is justified in the use of force or threat 

to use force against another when and to the extent 

that he reasonably believes that such conduct is 

necessary to defend himself or another against such 

other's imminent use of unlawful force. However, he is 

justified in the use of force likely to cause death 

or serious bodily harm only if he reasonably believes 

that such force is necessary to prevent imminent death 

or serious bodily harm to himself or another, or to 

prevent the commission of a forcible felony ." 

It is undisputed that Daniels was sitting on Ron Snell 

and holding a knife when Snell yelled for help. Appellant further 
testified he thought Snell was in great danger of being stabbed 

and he kicked Daniels only because he was afraid to use his bare 

hands against the knife. As pointed out previously, however, 

Daniels testified he voluntarily surrendered the knife before 

he was kicked. Also, Snell testified that Fuger kicked Daniels 

again after the fight was over and Daniels was lying in the snow 

unable to defend himself. The annotator's note to section 94- 

3-102, R.C.M. 1947, Montana Criminal Code, 1973, Annotated, 

Montana Criminal Law Commission, Prof. William F.Crowley, p. 

127, states: 

'I* * * The clause 'when and to the extent he 

reasonably believes' pertains to the proper occasion 

for the use of force which is a question of fact for 

the jury. 'Is necessary to defend himself or another' 

refers to the proper amount of force which may be used 

and remain justified---again a question to be determined 

by the jury. * * * '' 

As there was a conflict in the evidence, the issue of selfdefense was properly before the jury as the trier of fact and 

Daniels' testimony, if believed, was sufficient to support the 

verdict. 

The judgment is affirmed.