No. 12127

INTHE SUPREME COURT OF THE STATE OF MONTANA 1972

THE STATE OF MONTANA, Plaintiff and Respondent,

RONALD L. JONES, Defendant and Appellant.

Appeal from: District Court of the Eighth ~udicial District, Honorable Paul G. Hatfield, ~udge presiding. Counsel of Record: For Appellant: John C. Hall argued, Great Falls, Montana, For Respondent: Hon. Robert L, Woodahl, Attorney General, Helena,

Montana. Jonathan B. Smith, Assistant Attorney General, argued,

Helena, Montana. J. Fred Bourdeau, County Attorney, Great Falls, Montana. James R. Walsh, Deputy County Attorney, argued, Great

Falls, Montana.

-- Submitted: November 27, 1972 Decided: 

### JAN 8

# - '1973 Filed: 

### iAP4 2 lYi3

### Mr. Justice Frank I. Haswell delivered the Opinion of the Court. Defendant was convicted of the crime of second degree assault following ajury trial in the districtcourt of Cascade County and sentenced to one year in the stateprison by the Hon. Paul G. Hatfield, districtjudge. Defendant now appeals from thejudgment of conviction. Defendant Ronald Leslie Jones was a passenger in 

### a Volkswagen van that overturned about 6:00 p.m. on March 23, 1971, in Parkdale, a housing development in Great Falls, Montana. 

### Atthe time of the accident, Mike McCrea

was driving the Volkswagen and Patrick McCrea and defendant were passengers. Officer Clifford Ayers of the Great Falls police department was dispatched to investigate. Upon his arrival atthe accident scene, he found the Volkswagen van laying on itsside and several people standing around, including the driver and passengers of the Volkswagen van 

### who identified themselves. After ascertaining that there were no serious injuries, Officer Ayers took the driver, Mike McCrea, into the police car and began filling out an accident report form. Patrick McCrea and defendant remained near the overturned vehicle. In the meantime Officer Eugene Bernardi of the Great Falls police had been sent to the accident scene to assist in the investigation by the police dispatcher

### who informed him that possibly some beer belonging to the occupants of the Volkswagen 

### van might be involved. When Officer Bernardi arrived atthe accident scene he ascertained from Officer Ayers that no one had been injured in the accident and that the two men standing near the overturned vehicle had been involved in the accident. Officer Bernardi walked over to a nearby parking area, found some beer between two cars, and placed itin Officer Ayers' police car. He then walked over to Patrick McCrea and defendant. From thispoint the testimony is largely conflicting. The State's evidence indicated that Officer Bernardi asked Patrick McCrea and defendant whether itwas their beer and defendant rep1ied, "Yes, you f-----pig. We saved this foryou todrink and that littlebastard standing next toyou,"referring to a small child standing nearby. Officer Bernardi told defendant towatch his language--that there werea,lotof young children around. Defendant then turned 

### toPatrick McCrea and said "Did you hear that?" Patrick McCrea answered "Yes. Don't say that f----- pig again." Atthis point Officer Bernardi warned him the second time and told him the next time it happened he was going to put him under arrest. Defendant then said, "Did you hear what the f----- pig said?" Officer Bernardi then attempted to grab defendant by his right arm and left shoulder, but his attempted armlock failed. A struggle ensued between Officer Bernardi and defendant during which Patrick McCrea kicked Officer Bernardi in the head. Eventually defendant was subdued, handcuffed, placed in Bernardi

### 's patrol car, driven tothe police station and booked. Thereafter Officer Bernardi

### ,who had received a nose injury, facial injuries, lacerations on both knees, and a broken hand, was taken to Deaconess Hospital. Defendant's evidence, 

### on the other hand, indicated that Officer Bernardi came over to Patrick McCrea and defendant, asked them for identification, and the identification was furnished. Officer Bernardi, in a hostile manner, then asked who hid the beer-- McCrea or defendant. Defendant answered that he didn't hide any f----- beer. Officer Bernardi said "Watch your language", whereupon defendant turned 

### toPatrick McCrea and said "These f----- pigs never leave a guy alone." Patrick McCrea said "Don't call him that--a

f

## ----- pig." Officer Bernardi said "Don't call me a f----- pig" and defendant said 'If--- you." At

### this point Officer Bernardi struck defendant in the face, knocking his glasses off. A scuffle ensued and several blows were struck by Officer Bernardi and defendant. During the scuffle Patrick McCrea kicked Officer Bernardi in the head. According 

### todefendant, Officer Bernardi

never told him he was under arrest prior to striking him and atall times Officer Bernardi was the aggressor, defendant only trying to protect himself. Defendant was eventually handcuffed and driven to the police station by Officer Bernardi inhis patrol car, dragged by his collar into the police station, knocked to the ground, kicked into unconsciousness, and thrown into the "drunk tank". -3-Defendant was charged by direct information with second degree assault towhich he plead "not guilty*. He was tried by jury, convicted, and sentenced toone year inthe stateprison. He now appeals from the judgment of conviction

# . Defendant raises 

### two issues for review upon appeal: (1) Did the districtcourt err ininstructing thejury on elements of the second degree assault statutenot embraced inthe charge against defendant? (2) Did the district court err inrefusing defendant's offered instructions on self-defense? The firstissue 

### is the principal issue upon appeal. The charge against defendant setforth inthe information accuses the defendant of the crime of assault inthe second degree committed as follows: "That atthe County of Cascade, Stateof Montana, on or about the 23 day of March, A.D. 1971, and before the filing of this Information, the said defendant[s] then and there being, did then and there wilfully, wrongfully, unlawfully and feloniously assault a human being, who was an officer of the Great Falls City Police Department, to wit: Eugene Bernardi, withthe intent then and there in [him]

### ,the said defendant

### [s] toprevent or resist the lawful apprehension or detention of a human being, in violation of Section 94-602, R.C.M. 1947 as amended 

## * *

## *." This clearly charges a second degree assault under section 94-602, R.C.M. 1947, which provides: "Every person who, under circumstances not amounting 

### to [firstdegree assault]:

"(5)Assaults another with intent tocommit a felony, or 

### toprevent or resist the execution of any lawful process or mandate of any court or officer, or the lawful apprehension or detention of himself, or any other person, ?s guiltyof an assault inthe second degree 

### * 

## *

## *." (Bracketedmateria1 paraphrased; emphasis added.) Defendant contends that thejury was instructed, ineffect, that he could be convicted of second degree assault under subdivision 3 of section 94-602, R.C.M. 1947, wherein one 

### is guilty of second degree assault if he: "(3)Wilfully or wrongfully wounds or inflicts grievous -4-bodily harm upon another, eitherwithor without a weapon." 

### i Defendant argues that he could not be convicted of second degree assault

i dnder subdivision 3 because that charge 

### is not contained in the information ,!*filed against him.

/ Specifically the defendant assigns court's instructions No. 2, No. 10, and No. 11 as error. Instruction No. 2 reads: "An assault 

### is defined as an unlawful attempt toinflictinjury upon 

### the person of another, coupled withthe present ability to inflict such injury. "Assault inthe Second Degree 

### is defined: "A. Every person who wilfully or wrongfully wounds or inflicts grievous bodily harm upon another, either with

### or without a weapon; or, "B. Assaults another to prevent or resist the execution of any lawful process or mandate of any court or officer, or the lawful apprehension 

### or detention of himself

### ,or of any other person

# ." Defendant's objection tothis instruction was inthe following 1

anguage:"Object to that, Your Honor, inthat itdoes not define 

### the assault charged inthe Information which is94-602-605 (sic), but includes other sections, other subsections of that section, which are

### not charged inthe information." Court's instruction 

### No. 10provided: "With regard tothe charge that the defendant committed an assault inthe second degree inthat he wilfully and wrongfullyassaulted Officer Bernardi ina manner 1

ikely toproduce grievous bodily harm, specific intent is not an element of the charge. The law presumes a ma1icious and guilty intent from the deliberatecommission of an unlawful act for thepurpose of injuring another. This 

### is a conclusive presumption which means itcannot be controverted or rebutted by other evidence. "Therefore, ifyou find beyond a reasonable doubt that the defendant, though he did not intend to resist or prevent his 1 awful apprehension 

### or detention, he nevertheless struck Officer Bernardi forbthe purpose of injuring him, the law presumes that he acted with a malicious and guilty intent, and the defendant isnot entitled to rebut the presumption, for ifyou have found that the defendant's actwas.unlawfu1 and was for the purpose of injuring you Mve necessarily found unlawful intent." A1though itdoes not appear in the record with clarit:~, we shall

assume that the following objection by defendant was directed atcourt's Iinstruction No. 10. "I object to itfor the reason that itshould state the kind of second degree assault. Further reason the kind of crime referred to inthe Information is

### the kind of assault with 

### intent toprevent or resist arrest." Court's instruction No. 11 said: "You are instructed that grievous bodily harm would include any 

### hurt or injury calculated to interferewith health or comfort of the person injured; itneed not be necessarily an injury of a permanent character. By grievous ismeant atrocious, aggravated, harmful

## ,painful

### ,hard tobear, serious in nature." Defendant objected tothis instruction inthe following manner: "I object tothat on the ground that the Information charges assault with intent to prevent orresist arrest. In this charge, this instruction does not conform tothe information atall, and the crime of assault, 1 ikely to produce grjeoous bodily harm isnot included inthe information atall

# ." Defendant

### Is objections toa11three instructions were overruled and the instructions were given tothejury. The thrust of defendant's contention is that these three instructions permit conviction of a kind of assault not charged in the information, specificallyassault by wilfully inflicting grievous bodily harm on another inviolation of section 94-602(3), R.C.M. 1947. Defendant further argues that this type of assault requires only a general intent to commit the act constituting the assaultwhereas the assault charged inthe information requires a specific intent. Defendant concludes that as itisimpossible to tell which type of assault

### the defendant was convicted of, the instructions inquestion constitute prejudicial and reversible error. 

### Atthe outset, it

### is clear 

### to

### us that defendant was charged in the information with but one kind of second degree assault, viz: assaultwith intent toprevent or resist his lawful apprehension or detention inviolation of section 94-602(5). The charge specificallycharges an assault "with the intent then and there in [him], the said defendantks], to prevent or resist the lawful apprehension or detention of a human being." The charge does not contain language referring 

### toan assault involving thewilful1 or wrongful wounding or inflicting grievous bodily harm upon another. Thereforecourt's instructions No. 2, No. 10 and No. 11 should not have been given. The only remaining question then iswhether this error was prejudicial and reversible. Section 95-2412, R.C.M. 1947 specifically provides in pertinent part: 

### " 

## * ** No cause shall be reversed by reason of any error committed by the trial court against the appellant, unless the record shows that the error was prejudicial.

### " Section 95-2425, R.C.M. 1947, expresses the converse of thisrule in the following language: "Any error, defect, irregularity 

### or variance which does not affect substantial rights shall be disregarded. 

## * * *I1 Thus the test in Montana of reversible versus harmless error iswhether the error affects the substantial rights of the party against whom the

error 

### was committed or not. Under the circumstances of this case, we hold the error harmless. The jury's verdict of conviction demonstrates itsrejection of defendant's evidence that he acted in self-defense. Absent this evidence, only one conclusion is possible under the remaining evidence, viz; that defendant assaulted Officer Bernardi to prevent or resist his lawful apprehension 

### or detention. Defendant admitted that he repeatedly used profane and obscene language in the presence of women and small children. The evidence is

### unrebutted that this constitutes a crime under the ordinances of the City of Great Falls. Itisundisputed that this offense was committed in the presence of Officer Bernardi who warned defendant against the use of such 1

anguage

# . Absent defendant's evidence tending toprove self-defense and that Officer Bernardi struck himfirst, which thejury demonstrably rejected, the only remaining evidence indicated that Officer Bernardi attempted to apply an armhold on defendant for the purpose of apprehending and detaining him. Defendant admits a struggle with Officer Bernardi, admits that he struck Officer Bernardi

## ,and admits that he was eventually handcuffed and placed in the police car. The evidence permits but a single conclusion-- that defendant assaulted Officer Bernardi with the specific intent to prevent his lawful apprehension and detention. The evidence isnot only overwhelming, itdemonstrates conclusivelydefendant's gui1 

### t of the crime charged. -7-Under such circumstances, defendant's guiltor innocence of a type of assault not charged is immaterial and cannot affect the verdict. Accordingly, the errors inthe threejury instructions constitute harmless

error. Directing our attention to the second issue forreview, defendant contends that reversible error occurred when the court refused his following offered jury instructions: "Itis lawful for a person who 

### is being assaulted, and who has reasonable ground for believing that bodily injury 

### is about tobe inflicted upon him, to stand his ground and defend himself from such attack, and indoing so he may use a11force and means which he be1ieves to be reasonably necessary and which would appear toa reasonable person, inthe same or similar circumstances, tobe necessary toprevent the injurywhich appears to be imminent

# ." "A person who has been attacked and who isexercising his right of lawful self-defense 

### is not required to retreat, and he not only may stand his ground and defend himself against the attack but may also pursue his assailant until he has secured himself from danger if that course appears to him, and would appear to a reasonable person in the same situation, 

### tobe reasonably and apparently necessary; and this 

### is his right even though he might more easily have gained safetyby withdrawing from the scene.

### " The'gist of defendant's complaint is that the "reasonableman" standard enabling defendant toacton appearances in self-defense as provided inthe above instructions 

### is the law in Montana and was 

### not covered anywhere inthe court's instructions to thejury. Defendant citesState

### v. Totten, 65

### Mont. 203, 210 P. 1061 and State

### v. Daw, 99 Mont. 232, 43 P.2d 240, in support of the offered instructions. The giving or refusal of a particular instruction ina given case 

### must be determined in the light of the evidence and issues in that case, and therefore a given instruction may be proper inone case and improper in another. We have no quarrel withthe offered instructions here as correct statements of the law; however,we hold their refusal by the trial court correct because the evidence did not support such instructions. In the instant

case appearances and actualities are identical; there 

### is simply no evidence from which thejury could infer that the defendant inexercising his right ofself-defense acted on appearances as 

### a reasonable man rather than in light of the actual situation 

### thatpresented itself. The judgment of the district court isaffirmed. 

## 2!A

# rR&.@d ------ --- -- Associate Justice

I