No. 12127 

IN THE 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 a jury trial in the district court of Cascade County and sentenced 

to one year in the state prison by the Hon. Paul G. Hatfield, district judge. 

Defendant now appeals from the judgment 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. At the 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 at the accident scene, he found the Volkswagen van laying on its side 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 pol ice 

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 Vol kswagen van might be involved. When Officer Bernardi 

arrived at the 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 it in Officer Ayers' police car. He then walked over to Patrick 

McCrea and defendant. 

From this point the testimony is largely conflicting. The State's 

evidence indicated that Officer Bernardi asked Patrick McCrea and defendant 

whether it was their beer and defendant rep1 ied, "Yes, you f----- pig. We 

saved this for you to drink and that little bastard standing next to you," 
referring to a small child standing nearby. Officer Bernardi told defendant 

to watch his language--that there werea,lot of young children around. Defendant then turned to Patrick McCrea and said "Did you hear that?" Patrick 

McCrea answered "Yes. Don't say that f----- pig again." At this 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 

to the pol ice 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 to Patrick 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 to defendant, Officer Bernardi 

never told him he was under arrest prior to striking him and at all 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 in his 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 to which he plead "not guilty*. He was tried by jury, convicted, 

and sentenced to one year in the state prison. He now appeals from the 

judgment of conviction . 

Defendant raises two issues for review upon appeal: 

(1) Did the district court err in instructing the jury on elements 

of the second degree assault statute not embraced in the charge against 

defendant? 

(2) Did the district court err in refusing defendant's offered 

instructions on self -defense? 

The first issue is the principal issue upon appeal. The charge against 

defendant set forth in the information accuses the defendant of the crime of 

assault in the second degree committed as follows: 

"That at the County of Cascade, State of 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, with the intent then and there in 

[him] , the said defendant [s] to prevent 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 

[first degree assault] : 

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

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 any other person, ?s guilty of an assault in the second degree * * *." 

(Bracketed materi a1 paraphrased; emphasis added. ) 

Defendant contends that the jury was instructed, in effect, 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, either with or 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 to inflict injury upon the person of another, coupled 

with the present ability to inflict such injury. 

"Assault in the 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 to this instruction was in the following 

1 anguage : 

"Object to that, Your Honor, in that it does not define 

the assault charged in the Information which is 94-602-605 

(sic), but includes other sections, other subsections of 

that section, which are not charged in the information." 

Court's instruction No. 10 provided: 

"With regard to the charge that the defendant committed 

an assault in the second degree in that he wilfully and 

wrongful ly assaulted Officer Bernardi in a manner 

1 i kely to produce grievous bodily harm, specific intent 

is not an element of the charge. The law presumes a 

ma1 icious and guilty intent from the deliberate commission of an unlawful act for the purpose of injuring 

another. This is a conclusive presumption which means 

it cannot be controverted or rebutted by other evidence. 

"Therefore, if you 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 is not 

entitled to rebut the presumption, for if you have 

found that the defendant's act was.unlawfu1 and was 

for the purpose of injuring you Mve necessarily found 

unlawful intent." 

A1 though it does not appear in the record with clarit:~, we shall 

assume that the following objection by defendant was directed at court's 

I 
instruction No. 10. 

"I object to it for the reason that it should state 

the kind of second degree assault. Further reason the 

kind of crime referred to in the Information is the 

kind of assault with intent to prevent or resist arrest." 

Court's instruction No. 11 said: 

"You are instructed that grievous bodily harm would include 

any hurt or injury calculated to interfere with health or 

comfort of the person injured; it need not be necessarily 

an injury of a permanent character. By grievous is meant 

atrocious, aggravated, harmful , painful , hard to bear, 

serious in nature." 

Defendant objected to this instruction in the following manner: 

"I object to that on the ground that the Information 

charges assault with intent to prevent or resist arrest. 

In this charge, this instruction does not conform to the 

information at all, and the crime of assault, 1 i kely to 

produce grjeoous bodily harm is not included in the information at all . " 

Defendant Is objections to a1 1 three instructions were overruled 

and the instructions were given to the jury. 

The thrust of defendant's contention is that these three instructions permit conviction of a kind of assault not charged in the information, 

specifically assault by wilfully inflicting grievous bodily harm on another 

in violation 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 assault whereas the assault charged in the information requires a specific intent. Defendant concludes that as it is impossible to 

tell which type of assault the defendant was convicted of, the instructions 

in question constitute prejudicial and reversible error. 

At the outset, it is clear to us that defendant was charged in the 

information with but one kind of second degree assault, viz: assault with 

intent to prevent or resist his lawful apprehension or detention in violation 

of section 94-602(5). The charge specifically charges 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 to an assault involving the wilful1 or 

wrongful wounding or i nfl i cti ng grievous bodily harm upon another. Therefore 
court's instructions No. 2, No. 10 and No. 11 should not have been given. 

The only remaining question then is whether 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 this rule 

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 is whether 

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 its rejection 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. It is undisputed 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 to prove self-defense and 

that Officer Bernardi struck him first, which the jury 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 is not only overwhelming, it demonstrates conclusively defendant's gui 1 t of the crime charged. 

-7- 
Under such circumstances, defendant's guilt or innocence of a type of 

assault not charged is immaterial and cannot affect the verdict. Accordingly, the errors in the three jury instructions constitute harmless 

error. 

Directing our attention to the second issue for review, defendant 

contends that reversible error occurred when the court refused his foll owing 

offered jury instructions: 

"It is lawful for a person who is being assaulted, and 

who has reasonable ground for believing that bodily 

injury is about to be inflicted upon him, to stand his 

ground and defend himself from such attack, and in doing 

so he may use a1 1 force and means which he be1 ieves to 

be reasonably necessary and which would appear to a 

reasonable person, in the same or similar circumstances, 

to be necessary to prevent the injury which appears to 

be imminent . " 

"A person who has been attacked and who is exercising 

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, to be reasonably and apparently necessary; and this is his right 

even though he might more easily have gained safety by 

withdrawing from the scene. " 

The'gist of defendant's complaint is that the "reasonable man" 

standard enabl ing defendant to act on appearances in sel f -defense as provided 

in the above instructions is the law in Montana and was not covered anywhere 

in the court's instructions to the jury. Defendant cites State 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 in a given case 

must be determined in the light of the evidence and issues in that case, 

and therefore a given instruction may be proper in one case and improper in 

another. We have no quarrel with the 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 the jury could infer that the defendant in exercising his right of 
self-defense acted on appearances as a reasonable man rather than in light 

of the actual situation that presented itself. 

The judgment of the district court is affirmed. 

------ 2!A --- rR&.@d -- 

Associate Justice 

I