No. 82-154 INTHE SUPREME COURT OF THE STATE OF MONTANA 1982

THE STATE OFMONTAKA,Plaintiff and Respondent,
VS

# . EMIL LONGNECK, Defendant and Appellant.

Appeal from: DistrictCourt of theTwelfthJudicialDistrict, Inand fortheCounty of Hill Honorable Bernard W. Thomas, Judge presiding. Counsel of Record: For Plaintiff: Mike Greeiy, Attorney General, Helena, Montana Ronald Smith, County Attorney, 

### Havre, Montana For Defendant: Morrison, Ettien, Barron & Young; J. Chan Ettien, Havre, Montana

Submittedon briefs: August 12, 1982 Decided: 

# -8

Filed: 

## [ikC

# <

# -1982 ,@



# . ClerkMr. 

### JusticeGene B. 

### Daly delivered theOpinion of the Court.
Thiscase was 

### before thisCourt on apreviousoccasion, State

v. 

### Longneck, 38 

### St.Rep. 2160, 640 P.2d 436. At 

### that time 

### we reversed the District 

### Court which acquitted the defendant of aggravated assault despite the jury's verdict of guilty on that charge. On remand, the District 

### Court of the Twelfth Judicial District, Hill

### County, sentenced the defendant to 

### two (2)years imprisonment, defendant appeals his conviction and sentence. We

### willnow briefly summarize the facts for a more complete recitation, see

### Statev. Longneck, supra. The charges in this 

### case 

### stem from incidents that occurred early in the morning of August 7, 1980. The victim, Curtis Alexander, his sister, Karen, and a friend, Daryl Kirkaldie

### were inLeeIs

### Tavern inHavre

# . Shortlybefore closing time

### Kirkaldie and the defendant got into a 

### short scuffle outside of Lee's. 

### In the course of this scuffle the defendant was knocked to the ground. Immediately af

### ter the altercation, Kirkaldie

## ,KarenAlexander and the victimleftLee's 

### on foot. The defendantgot up and proceeded down an alley, where he found a sticklying in the roadway and decided to get even with Kirkaldie. He picked up the stickand proceeded inthe directionthatthe victimand his com

### panions had gone. He 

### approached the three from the 

### rear and struck Curtis a single blow to the back of the head with the stick apparently thinking him to be Kirkaldie. Karen and Kirkaldie pursued the defendant but 

### were unable 

### to catch him. Upon returning tothe site

### of the assaultthey found Curtisstill



### on the ground. He 

### was 

### lying flat on his back. They assisted him to his feet. He 

### appeared uninjured and at 

### that time stated he was 

### all right. A 

### short 

### time later though, he expressed a desire to go to the hospital. At 

### that point he lefthis cornpanions and proceeded in the general directionof the hospital

# . Less than an hour later he 

### was found dead a short distance from where he lefthiscompanions.It 

### is 

### clear that Curtis 

### was the victim of two separate assaults that morning. State v. Longneck, supra. The first occurred while he 

### was with his 

### sister and friend and 

### was not the

cause of death. The othermust have occurred while he was alone and caused his death. The State never connected Longneck with the homicide 

### or second assault but proved the first assault 

### at trial, Statev. Longneck, supra. This is 

### the charge on which he

was convicted. Statev. Longneck, supra. Longneck raises several issueson appeal: 1. 

### Whether thejury convictedLongneck on a charge of aggravated assaultnot included inthe in£ 

### ormation? 2. Whether Longneck's fifth and sixth amendment rights, under the United States Constitution

### were violated by convicting himof an uncharged offense? 3. 

### Whether Longneck's rights under Article 11, 

### Section 17, 20, 24 and 25

### of theMontana Constitution

### were violated? 4. 

### Whether this Court has the power 

### to change a jury's verdictand convictionon a 

### lesser included charge tothatof guilty

on the unincluded separateand unrelated charge? 5. 

### Whether the defendant was properly arraigned under section46-12-202, MCA? 6. 

### Whether a directed verdict should have been granted at 

### the close of the 

### state's case-in-chief or at the 

### close of the testimony? 7. 

### Whether the jury was instructed on the separate aggravated assault? 8. 

### Whether therewas sufficientevidence to 

### convictLongneck of aggravated assault? The first four of the above issues dealing with the claim 

### that the defendant 

### was found guiltyof an uncharged offense are easily disposed of. Our decision in State v. Longneck, supra, where 

### we found that the information coupled with the facts 

### set out in themotion for leave to file it 

### were sufficientto charge the defendantwith the nonfatal firstassault, is 

### the 

### lawof the

### case. We have previously 

### set down the rule 

### to be followed when dealing with 

### law of the 

### case in Englund v. Englund (1979)

## , .- Mont

# . -------.-

## , 603 P.2d 1048, 36 St.Rep. 2211, and cases cited thereinwhere we stated: 

### "'The rule 

### is

### wellestabished and long adhered 

### to in this 

### state that where, upon an appeal, the Supreme Court, in deciding a case presented 

### states in 

### its opinion 

### a principle 

### or rule of 

### law necessary to the decision, such pronouncement becomes the law of the 

### case

## ,and must be adhered 

### to throughout 

### its subsequent progress, both in the 

### trial court and upon subsequent appeal;

# ... Carlson v. Northern Pac. R. Co. 86 Mont. 78, 281 P. 913, 914." 603 P.2d at1049. Thus, these first four issues 

### are taken 

### care of by our holding in the previous 

### case, which 

### is the 

### law of the 

### case and must be followed. Eng1 und v. Eng1 und

## , supra. Appellant also 

### raises the question of whether Longneck 

### was improperly arraigned under section 46-12-202, MCA. That section requires that the defendant be advised by the court "of the nature of the 

### crime charged againsthim" and "the punishment 

### set forthby statute forthe 

### crime charged." It appears that 

### at the 

### timeof his arraignment the appellant



### was only informed of the deliberate homicide charge and the punishment for it. However, 

### it is clear from the defense put on that he 

### was aware that he 

### was charged with the first aggravated assault. In the examination of witnesses by the defendant's attorney, he tried to show that the stick used in the first assault was not 

### a weapon, and that there 

### was no serious bodily injury 

### as a reuslt of the firstassault. These factors, coupled with our prior decision holding that the information viewed in conjunction with the motion for leave 

### to file it 

### were sufficient to charge the defendant with aggravated assault, show that the defendant had sufficient information 

### to know what he 

### was charged with, and that he indeed knew he 

### was charged with the first aggravated assault. The purposes of arraignment, 

### set out in sections 46-12-101 and 46-12-202, MCA, to 

### call the defendant into court 

### to answer

### thecharges againsthim and to inform him of certain rights, 

### were waived by the defendant when he proceeded to trial 

### and defended againstthe aggravated assaultcharge. Arraignment may be so waived without anyviolationof the due process clause "so long as the accused had sufficient notice of the accusation and an adequate opportunity to defend himself

# ." Garland v. Washington (1914),232 U.S. 642, 645, 34 S.Ct. 456, 58 

### 772. L.Ed.

# %. The defendant in thiscase waived hisarraignment by proceeding to trial and defending against the alleged offense of aggravated assault. Also, 

### inhisreplybrief appellant 

### claims thatthe failure

### to arraignhim constitutesdouble jeopardy. He 

### contends thata conviction on either the deliberate homicide charge 

### or one of 

### its lesser included offenseswould not have prevented a second prosecution on the first aggravated assault charge because he was


### never arraigned. However, this would not be the 

### case. The defendant 

### was charged with the firstassault, Statev. Longneck, supra, and went to trial and defended against that charge, as pointed outabove, therebywaiving hisarraignment. After such a trial the Statewould not again be 

### allowed to charge the defendant with the same 

### crime, merely because of a technical defect, such as improper arraignment, which 

### as--- 

### Garland pointsout,may be waived. Any such attempt 

### to re-try the defendant would constitute double jeopardy and 

### is specifically prohibited by Article 11, 

### Section 25of theMontana Constitution. Appellant also contends that a directed verdict should have been 

### granted at 

### the close of the States case-in-chief, 

### or at 

### least at 

### the close of all 

### of the evidence. However, as 

### pointed out by section46-16-403, MCA, it 

### is 

### within the District 

### Court's discretion whether to dismiss an action at the close 

### of the States 

### case or all 

### the evidence. "Further

## , a directed verdict shouldonlybe givenwhere there is 

### no evidence on which the jury could base a conviction. Paulson, supra, State v. Thompson (1978)r 576 P.2d 1105, 35 St.Rep. 343." Statev. 

### White (1980),605 P.2d 191, 194, 37 St.Rep. 84. In the present case there 

### is evidence on which a jury could base a conviction. There 

### was testimony from the victims companions that he was struck from behind, fell to the ground, 

### was slow to get up and a short 

### time later said he 

### was going 

### to the hospital. They also testified that they heard a loud "thump" 

### or "thud" and 

### saw the defendant with an eighteento twenty-four inch long, round object in his hand. Testimony of other witnesses corroborates their testimony as to the sound, its loudness and the approximate sizeand shape of the object which the defendant held. Also, the defendant himself characterized the weapon 

### as 

### a "lightstick." Appellant next contends that the jury 

### was not instructed on the separate charge of aggravated assault stemming from the first assault. He predicates 

### error on the rule enunciated by this Court that "[ilt 

### is a basic rule in this 

### state that the trial court's instructionsmust cover every issue ortheory having support inthe evidence." Statev. Gopher (1981),633 P.2d 1195, 38 St.Rep. 1521; State v. Buckley (1976), 171Mont. 238, 557 P.2d 283; State 

### v. Taylor (1973)r 163Mont. 106, 515 P.2d 695; State

v. Thomas (19661, 147 Mont

# . 325, 413 P.2d 315. However, the above cited 

### cases are distinguishable from the present one. In those cases instructions 

### were either given and then withdrawn or refused by the trial court, while in the present 

### case, no instruction 

### was offered by either side drawing 

### a clear distinction between the totally separate first assault of which the defendant was convicted, State v. Longneck, supra, and the lesser included offense of aggravated assault in connection with the deliberate homicide charge. This Court has 

### set out the general rule covering such a situation in the cases of Statev. Bashor (1980),614 P.2d 470, 37 St.Rep. 1098; and State

### v. 

### Harvey (1979),603P.2d 661, 36 St.Rep. 2035. In those two 

### cases it 

### was held "that error may not be predicated upon the failure 

### to give

an instruction when the instruction 

### was not offered. State v.Harvey (1979), 36 St.Rep. 2035, 2038. Failure 

### to offer the instruction removes the cause of 

### error.

# .." State 

### v. Bashor, 614 P.2d at487. This Court has previously placed the responsibility of providing any special instructions on the party desiring them, based

on section 46-16-401, MCA, Statev. Harvey, supra. This statute hasbeen construed 

### asmandatory intheHarvey decision, and 

### cases cited therein, thus, if the defendant desired a distinctionmade between the separate assault and that of the 

### lesser included offense he should have offered an instruction 

### to that effect. The final issue raised by appellant 

### is whether the evidence



### was sufficienttoconvicthim of aggravated assault. He contends that the State failed 

### to prove use of a weapon capable of inflictingdeath

### or seriousbodily injury

### as required by sections 45-2-lOl(71) and 45-5-202(1), MCA. In support of this contention he 

### cites the case of State v. Deshner (1978), 175 Elont. 175, 573 P.2d 172. In that 

### case 

### we held that the evidence 

### was insufficient 

### to support 

### a conviction

on aggravated assault charges 

### as it 

### was not proven that the slingshot and projectile 

### were a weapon. The defense then argues that since there 

### was no apparent mark lefton the victim after the assault, there 

### is not evidence 

### as to the composition of the stick and since the victim initially stated that he 

### was all right, there 

### is no proof that 

### a weapon 

### was used. However, it should be noted that the 

### trier of fact need not have the weapon before 

### it in order to convict of aggravated assault when the circumstantial evidence indicates a weapon was used by the assailant, State v. Lozeau, 39 St.Rep. 1729. This 

### is precisely the 

### case we are faced with here, because despite the weapon never being found there 

### is evidence in the record that would 

### allow the 

### trier of fact to conclude 

### a weapon


### was used. First, it should be noted that 

### all the witnesses testified the object, which the defendant used to strikeCurtis


### was eighteen 

### to twenty-four inches inlength and round in shape.Kirkaldie stated thatwhen he saw the defendant afterCurtis was hit that the defendant was in a bent over position with both hands on the object. The victim was knocked to the ground and remained there for 

### a period of 

### time. The thud from the blowwas audible for 

### some distance away. Also, despite Curtis' initial statements that he 

### was all right, he shortly after the incident expressed hiswish to go 

### to the hospital and lefthiscompanions to do 

### so. Finally, it should be noted the defendant himself characterized the object 

### as a stick. His exact words 

### were a "lightstick." When all the evidence 

### is viewed in the light

### most favorable to the State, the convictioncannot be overturned where such evidence would allow 

### a rational 

### trier of fact 

### to find 

### all the 

### elements of the 

### crime beyond 

### a reasonable doubt. Statev. Lozeau, 39 St.Rep. at1731, and 

### cases cited therein. In this 

### case, the circumstantialevidence described above provides substantialevidence to support the verdict rendered by the jury and therefore itmust stand; Statev. White, 605 P.2d at195. The judgment of the District Court 

### i

'iJe concur: /'

ChlefJustice 1,