No. 13503 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsMYRON LARSON , 

Defendant and Appellant. 

Appeal from: District Court of the Second Judicial District, 

Honorable James D. Freebourn, Judge presiding. 

Counsel of Record: 

For Appellant: 

Leonard J. Haxby argued, Butte, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

Allen B. Chronister argued, Assistant Attorney 

General, Helena, Montana 

John G. Winston, County Attorney, Butte, Montana 

Nadine Scott argued, Deputy County Attorney, 

Butte, Montana 

Submitted: September 30, 1977 

Decided : JAB 18 I978 

Filed: J.Ab? 1 8 -...-.&- 

Clerk 
Mr. Justice Daniel J. Shea delivered the Opinion of the Court. 

Defendant Myron Larson appeals from a conviction entered 

in the District Court, Silver Bow County, on charges of mitigated 

deliberate homicide, in violation of section 94-5-103, R.C.M. 

1947, and aggravated assault, in violation of section 94-5-202, 

R.C.M. 1947. 

On March 13, 1975, in the District Court, Silver Bow 

County, defendant was charged by Information with two counts of 

mitigated deliberate homicide and one count of aggravated assault 

following a shooting incident at a residence in Butte, Montana, 

which resulted in the deaths of Curt Phillips and Mike McDermott 

and the wounding of Mike Phillips. 

Defendant's first trial on these charges was declared a 

mistrial when the jury was unable to return a verdict. Following the second trial, defendant was found guilty of mitigated 

deliberate homicide for the killing of Curt Phillips and aggravated 

assault for the wounding of Mike Phillips. Defendant was found 

not guilty of mitigated deliberate homicide in the death of Mike 

McDermott. Defendant was sentenced to prison terms of 30 and 15 

years, to run concurrently. 

On February 16, 1975, between the hours of 2:00 and 3:30 

a.m., a drinking party was in progress at the Butte apartment of 

Gary Larson, defendant's brother. Approximately 15 to 20 people 

were there, including Myron and Gary Larson, Curt and Mike Phillips, 

and Mike McDermott. 

Defendant and Curt Phillips got into an argument over the 

opening of a door in the kitchen. Phillips wanted the door to 

remain closed and defendant wanted it opened to let fresh air 

into the apartment. Defendant testified Phillips swung first and 

he responded by striking Phillips with a leather sapp he was 

carrying. The two men wrestled to the floor. ~efendant's brother 
Gary separated the two combatants and told Curt Phillips to 

leave the apartment. Phillips refused to leave. Gary Larson 

then went to his bedroom, retrieved a .38 caliber pistol, 

returned to the kitchen and fired a shot into the ceiling. 

Gary then placed the gun in the refrigerator and began fighting 

with Curt Phillips. Phillips managed to get on top of Larson 

and was beating him with his fists and the plaster cast he had 

on his arm, as the two men were on the floor. 

Defendant, whose face and jaw at the time were wired 

together as the result of an altercation in which he had been 

involved some five weeks earlier, attempted to enlist the aid of 

several persons in an effort to break up the fight. One person 

tried to pull Phillips off of Gary Larson but abandoned the task 

when he was struck or kicked by Phillips' brother Mike. 

As Curt Phillips was standing over and apparently kicking Gary Larson, defendant acted. He pulled a .357 caliber pistol 

from his back pocket holster and shot Phillips in the back. Mike 

Phillips then lunged at defendant and defendant shot him in the 

arm, knocking him down. Mike McDermott then grabbed defendant, 

the two men wrestled backwards into a bathroom and the gun discharged, killing McDermott. 

After the shootings someone called the Butte city police. 

The officers who arrived at the scene determined that Curt Phillips 

and Mike McDermott were dead. Defendant told the officers he 

had shot the two men, gave one of the officers the .357 and the 

leather sapp, and was taken into custody. 

Defendant presents five issues for review: 

1) Whether the District Court should have either dismissed the action or directed a verdict in defendant's favor on 

the grounds of insufficient evidence. 

2) Whether the verdicts were consistent with the 
evidence presented relative to the defenses of self-defense 

and defense of another. 

3) Whether the verdicts were consistent with given 

instructions on self-defense and defense of another. 

4) Whether several given instructions were proper and 

whether offered but refused instructions should have been given. 

5) Whether defendant was prejudiced by the state's 

attempts to have certain items admitted as evidence. 

Issues 1 and 2 challenge the sufficiency of the evidence 

to support defendant's convictions. Defendant contends the 

evidence shows his conduct was reasonable and the shootings were 

justifiable because he was acting in defense of himself and his 

brother. 

Section 94-3-102, R.C.M. 1947, deals with the justifiable 

use of force in defense of the actor or another and provides in 

part : 

"A person * * * 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." 

This Court stated in State v. Brooks (19671, 150 Mont. 399, 410, 

" * * * to justify a homicide by self-defense, 

there must be evidence that the party killing 

acted under the influence of reasonable fear 

that someone was going to be murdered or seriously injured. * * *. " 

Evidence presented by defendant went to establishing the 

reasonableness of his fear for the safety of his brother as 

justification for the shooting of Curt Phillips and the reasonableness of his fear for his own safety as justification for the 

shooting of Mike Phillips. 

This evidence included testimony from a psychologist who 

evaluated defendant at Warm Springs State Hospital to the effect 
defendant was fearful for his brother and himself on the night 

of the shootings and that such fear was reasonable. Defendant's 

own testimony in this regard included this exchange: 

"Q. At that particular point in time did you have 

any fear for the well being or the life of Gary? 

A. Yes, I did. 

"Q. Why is that? A. Well, I knew what I'd gone 

through when somebody had worked me over, knocked 

me out and worked me over. I woke up in the 

hospital. I didn't even know what happened until 

the doctor explained to me that the side of my 

head was caved in. * * * I was -- I was really 

afraid for my brother. It was just really apparent 

to me that he could suffer the same kind of damage, 

if not more. 

''a. Did you think at that particular time that 

Curt Phillips was capable and able to inflict that 

type of injury? A. My God, yes. Curt was a hefty 

person and he was throwing all of his weight into 

those kicks. The first time he kicked my brother, 

my brother was trying to get up off the floor like 

this (showing) and the first kick, he got Gary in 

the side of the face and it spun him completely 

around like he was on a spit or something, just 

completely around. I couldn't believe it. I 

thought, boy if I got kicked like that, my face 

would fall apart again. 

"Q. At that particular point in time did you 

make any effort to take the sapp and go over and hit 

Curt in the back of the head with it or anything to 

stop him from doing any further damage? A. I asked 

Mike to please stop it, or I said to him 'Stop him.' 

And Mike had threatened me that I'd better not do 

anything to stop them or he'd do the same to me. So 

I -- I was really afraid that if I took a step and 

turned my back to Mike that he'd land base me on the 

back of the head or something. 

"Q. Just prior to the time that you -- or that Curt 

was shot, what was he doing? A. He was bending over 

to give my brother a third kick. 

"Q. What did you do then? A. I shot. I had to stop 

him. I had to stop him from kicking. A kick like 

that could do some damage. Those shoes were heavy." 

The state concedes defendant was not required to sit 

idly by while his brother was being beaten, but argues defendant's use of the pistol was an excessive use of force and unreasonable under the circumstances. Evidence the state presented 
tended to show Gary Larson was not badly beaten by Curt Phillips. 

To the officers who arrived at the scene shortly after the 

shootings, defendant's brother did not appear to be injured, 

and he made no complaint to them of having been beaten. Curt 

Phillips' brother Mike testified the fight was "fair". The 

only witness called who was at the scene and was unrelated to 

any of the participants testified she did not see Curt Phillips 

kicking Gary Larson; she did see Phillips hitting Larson with 

his cast; and, that she had not seen all of the fight. 

Defendant testified he was not intoxicated and was thinking clearly at the time of the incident. He also testified he 

had been around guns since an early age and that although he 

had not meant to kill Curt Phillips, he "probably could have" 

wounded him. Testimony indicated only defendant and his brother 

were armed with any kind of weapon at the time of the incident. 

As to the wounding of Mike Phillips, the testimony was 

similarly conflicting. Defendant asserted he was protecting 

himself from Phillips' attack when he shot the other man in the 

arm. Phillips testified he was moving away from defendant when 

he was shot. 

Defendant argued the jury improperly rejected his claim 

the shootings were justified under the circumstances. Whether 

the circumstances were such as to justify defendant's actions 

is clearly a question of fact for the jury. State v. Fine (1931), 

90 Mont. 311, 315, 2 P.2d 1016; State v. Harkins (1929), 85 Mont. 

585, 601, 281 P. 551. The jury may have believed defendant 

feared for his own life or for the life of his brother, and 

still found the force defendant used to have been excessive. 

As this Court stated in State v. Fuger (1976), Mont . I 

554 P.2d 1338, 1341, 33 St.Rep. 887, 890, citing the annotator's 

note to section 94-3-102, R.C.M. 1947: 
"' * * * the proper amount of force which 

may be used and remain justified -- [is] a question to be determined by the jury.'" 

There was sufficient evidence for the jury to determine 

defendant's fatal shooting of Curt Phillips and his wounding 

of Mike Phillips were not justified. 

Defendant's Issues 3 and 4 challenge the trial court's 

giving of certain instructions and refusal of others. Defendant contends two of his proposed instructions relative to the 

defenses of self-defense and defense of another should have been 

given. Four instructions directly concerning these matters, two 

offered by defendant and given over the state's objections and 

two offered by the state and given without objection, were given. 

The given instructions accurately and completely set out the law 

concerning self-defense and defense of another, and are not 

challenged by defendant. The refused instructions were merely 

repititious. 

Defendant contends the district court erred in refusing 

two of his proposed instructions on presumption of innocence 

and reasonable doubt. Seven instructions on these matters were 

given, and defendant does not argue they were insufficient or 

incorrect statements of the law. He argues that he was entitled 

to a "very short and brief statement" as to these requirements. 

Since the legal theories of these proposed instructions were 

covered by given instructions, it was not error for the trial 

court to refuse them. State v. Lukus (1967), 149 Mont. 45, 53, 

423 P.2d 49. 

Defendant also challenges given Instruction No. 20, arguing his proposed Instruction No. 14 should have been given in its 

place. Defendant's proposed instruction No. 14 states: 

"A person acts knowingly with respect to his conduct or to an element of the offense when he is 

aware of his conduct or when he is aware of the 
existence of circumstances described by the 

statute defining the offense." 

As given, given Instruction No. 20 includes the above, and adds: 

"(When knowledge of the existence of a particular 

fact is an element of the offense, such knowledge 

is established if a person is aware of a high 

probability of its existence.)" 

Defendant argues the additional language further defining 

"knowledge" was prejudicial as having no relation to self-defense 

and defense of another. The crimes charged, mitigated deliberate 

homicide and aggravated assault, require "knowledge" or "purpose" 

on the part of the accused. The jury therefore was entitled to 

a complete definition of "knowledge" and the given instruction, 

taken almost verbatim from section 94-2-101,(27), R.C.M. 1947, 

was such a definition. 

Defendant's Issue 5 contends he was prejudiced by the 

state's attempts to have certain items admitted into evidence. 

The state sought to have a .357 pistol, a holster, a leather 

sapp, and some bullet fragments, among other items, received 

during its case-in-chief. Defendant objected to their admission 

on the grounds of insufficient foundation, with the trial court 

reserving its ruling. During cross-examination of defendant 

the leather sapp was admitted; the other exhibits were ultimately 

refused. 

There was a connection between these items and the 

crimes charged. All were recovered at the scene of the shootings by the officers called to investigate. It was during the 

testimony of these officers that the state tried to lay a foundation for the admission of these items. The refusal of the 

items reflects the inability of the state to lay a proper foundation for the admission of evidence, not a bad faith attempt 

to prejudice the jury. None of the items was irrelevant, immaterial, or otherwise inadmissible in an essential way, and 
defendant's conviction cannot be reversed on the grounds their 

admission was attempted. 

The judgment is affirmed. 

n 

Chief Justice /I