No. 82-154 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

THE STATE OF MONTAKA, 

Plaintiff and Respondent, 

VS . 

EMIL LONGNECK, 

Defendant and Appellant. 

Appeal from: District Court of the Twelfth Judicial District, 

In and for the County 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 

Submitted on briefs: August 12, 1982 

Decided : - 8 

Filed: [ikC < - 1982 

,@ . Clerk 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

This case was before this Court on a previous occasion, 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 convict ion and sentence. 

We will now briefly summarize the facts for a more complete 

recitation, see State v. 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 

in Lee Is Tavern in Havre . Shortly before 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 , Karen Alexander 

and the victim left Lee's on foot. The defendant got up and proceeded down an alley, where he found a stick lying in the roadway and decided to get even with Kirkaldie. He picked up the 

stick and proceeded in the direction that the victim and his companions 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 to the site of the assault they found Curtis still 

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 left his cornpanions and proceeded in the general direction of the hospital . Less than an hour later he was found dead a short distance from 

where he left his companions. 
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 other must 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, State v. Longneck, supra. This is the charge on which he 

was convicted. State v. Longneck, supra. 

Longneck raises several issues on appeal: 

1. Whether the jury convicted Longneck on a charge of aggravated assault not included in the in£ ormat ion? 

2. Whether Longneck's fifth and sixth amendment rights, 

under the United States Constitution were violated by convicting 

him of an uncharged offense? 

3. Whether Longneck's rights under Article 11, Section 17, 

20, 24 and 25 of the Montana Constitution were violated? 

4. Whether this Court has the power to change a jury's verdict and conviction on a lesser included charge to that of guilty 

on the unincluded separate and unrelated charge? 

5. Whether the defendant was properly arraigned under section 46-12-202, 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 there was sufficient evidence to convict Longneck 

of aggravated assault? 

The first four of the above issues dealing with the claim 

that the defendant was found guilty of 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 the motion for leave to file it were sufficient to charge 

the defendant with the nonfatal first assault, is the law of 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 

therein where we stated: 

" 'The rule is well estabished 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 at 1049. 

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. Eng 1 und v. Eng 1 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 against him" and "the punishment set 

forth by statute for the crime charged." 

It appears that at the time of 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 first assault. 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 
the charges against him and to inform him of certain rights, were 

waived by the defendant when he proceeded to trial and defended 

against the aggravated assault charge. 

Arraignment may be so waived without any violation of 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 this case waived his arraignment by 

proceeding to trial and defending against the alleged offense of 

aggravated assault. 

Also, in his reply brief appellant claims that the failure to 

arraign him constitutes double jeopardy. He contends that a conviction on either the deliberate homicide charge or one of its 

lesser included offenses would 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 first assault, State v. Longneck, 

supra, and went to trial and defended against that charge, as 

pointed out above, thereby waiving his arraignment. After such a 

trial the State would 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 points out, may be 

waived. Any such attempt to re-try the defendant would constitute double jeopardy and is specifically prohibited by Article 

11, Section 25 of the Montana 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 section 46-16-403, 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 

should only be given where 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." State v. 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 eighteen to 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 size and shape of the object which the defendant 

held. Also, the defendant himself characterized the weapon as a 

"light stick." 

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 instructions must cover every issue or theory having support in the evidence." State v. Gopher (1981), 633 P.2d 1195, 38 

St.Rep. 1521; State v. Buckley (1976), 171 Mont. 238, 557 P.2d 

283; State v. Taylor (1973)r 163 Mont. 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 connect ion 

with the deliberate homicide charge. This Court has set out the 

general rule covering such a situation in the cases of State v. 

Bashor (1980), 614 P.2d 470, 37 St.Rep. 1098; and State v. Harvey 

(1979), 603 P.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 at 487. 

This Court has previously placed the responsibility of providing any special instructions on the party desiring them, based 

on section 46-16-401, MCA, State v. Harvey, supra. This statute 

has been construed as mandatory in the Harvey decision, and cases 

cited therein, thus, if the defendant desired a distinction made 

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 sufficient to convict him of aggravated assault. He contends 

that the State failed to prove use of a weapon capable of 

inflicting death or serious bodily 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 left on 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 strike Curtis 

was eighteen to twenty-four inches in length and round in shape. 
Kirkaldie stated that when he saw the defendant after Curtis 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 blow was 

audible for some distance away. Also, despite Curtis' initial 

statements that he was all right, he shortly after the incident 

expressed his wish to go to the hospital and left his companions 

to do so. Finally, it should be noted the defendant himself 

characterized the object as a stick. His exact words were a 

"light stick." 

When all the evidence is viewed in the light most favorable 

to the State, the conviction cannot be overturned where such evidence would allow a rational trier of fact to find all the elements of the crime beyond a reasonable doubt. State v. Lozeau, 

39 St.Rep. at 1731, and cases cited therein. In this case, the 

circumstantial evidence described above provides substantial evidence to support the verdict rendered by the jury and therefore 

it must stand; State v. White, 605 P.2d at 195. 

The judgment of the District Court i 

'iJe concur: /' 

Chlef Justice 1,