No. 13737 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1978 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsCARTER BOUSLAUGH, 

Defendant and Appellant. 

Appeal from: District Court of the Thirteenth Judicial 

District, 

Honorable Charles Luedke, Judge presiding. 

Counsel of Record: 

For Appellant: 

lloses, Tolliver and Wright, Billin~s, Montana 

R. Allen Beck argued, Billings, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

J. Mayo Ashley argued, Assistant Attorney General, 

Helena, Montana 

Harold F. Hanser, County Attorney, argued, Billings, 

Montana 

James Walen, Deputy County Attorney, argued, 

Billings, Montana 

Submitted: January 26, 1978 

~ecided#RR 2 2 7978 

MbL, ,- - ,-?I 

Filed: 
Mr. Justice Gene B. Daly delivered the Opinion of the Court: 

Defendant Carter Bouslaugh was charged in the District 

Court, Yellowstone County, with having committed the crime of 

aggravated assault on July 18, 1976, in violation of section 

94-5-202(1)(b), R.C.M. 1947. Following a jury trial he was 

convicted and sentenced to serve 10 years in the Montana state 

prison. Defendant appeals the conviction. 

The issues presented on appeal are: 

1) Whether by refusing to include an offered instruction 

on misdemeanor assault, the trial court committed reversible 

error? 

2) Whether by refusing an offered instruction pointing 

out that a shooting alone is not sufficient to obtain a 

conviction, the trial court committed reversible error? 

3) Whether the trial court committed reversible error in 

refusing offered instructions dealing with specific intent and 

mens rea or criminal intent? 

On July 18, 1976, at a motorcycle hillclimb south of 

Billings, Montana, defendant Carter Bouslaugh was involved in 

a fist fight which was precipitated by Don Maxwell who accused 

defendant of stealing his beer cooler. Following a short, onesided fight between Maxwell and defendant, another fight broke 

out between Mike Donovan and defendant. After a five to fifteen 

minute fight, defendant retreated and attempted to get into his 

pickup. During this affray, defendant's glasses were knocked 

off and lost. At the time defendant tried to get into his pickup, 

he appeared to be tired and trying to avoid any further fighting. 
When Bouslaugh reached his pickup and attempted to get inside, 

he was hindered by Mike Donovan who slammed defendant's leg in 

the door. Bouslaugh then got out of his pickup with a .44 magnum 

pistol in his hand. He shot it in the air and told everyone to 

leave him alone. This warning deterred Donovan who took off 

looking for cover. At this time Bouslaugh could still not leave 

the hillclimb site because other vehicles blocked his pickup 

truck. Bouslaugh then went to the rear of his vehicle where 

Ken Boulet and Kerry Loran and other spectators were located. 

As Bouslaugh approached, Kerry Loran told him to put his gun 

down, Bouslaugh pointed the gun at them and told them to back 

off. 

Nevertheless, Loran stepped toward defendant who turned 

-toward him, pointed the gun at him, and pushed it toward him. 

While pushing the gun toward Loran, the weapon discharged and 

the bullet struck Kerry Loran in the chest. Both the victim 

and Boulet testified that at this time they did not believe 

Bouslaugh was going to shoot anybody, since he had no reason 

for doing so. 

After the victim was shot a group of men attacked Bouslaugh 

and took the gun from him. In the ensuing struggle three other 

shots were fired, one hitting a bystander in the arm. 

Defendant contends he had no specific intent to assault 

Loran and the gun either accidently discharged, or discharged 

due to ~ouslaugh's negligence. It is a fundamental rule that 

the court's instructions should cover every issue or theory having 

support in the evidence. State v. Thomas, 147 Mont. 325, 413 P.2d 

315. Here, defendant was charged with aggravated assault in 

violation of section 94-5-202, R.C.M. 1947, which provides: 
I I A person commits the offense of aggravated 

assault if he purposely or knowingly causes: 

"(b) Boaily injury to another with a weapon." 

The District Court refused to give a lesser included offense 

instruction of mtsdemeanor assault. Under section 94-5-201, 

R.C.M. 1947: 

"(1) A person commits the offense of assault if he: 

"*** 

"(b) negligently causes bodily injury to another with 

a weapon * * *.I1 

The difference between aggravated assault and the lesser 

included offense of misdemeanor assault is the intent of 

defendant at the time the crime was committed. From a review 

of the record, it becomes readily apparent there was ample 

evidence to put into question whether the defendant knowingly 

or purposely shot the victim, or negligently shot the victim. 

Montana's standard for determining whether there has been 

sufficient evidence as to a theory introduced to warrant the 

granting of an instruction is set forth in State v. Buckley, 

(1976), Mont . , 557 P.2d 283, 33 St. Rep. 1204, 1207: 

"* * * the district court's instructions must cover 

every issue or theory having support in the evidence, 

and the inquiry of the district court must only be 

whether or not any evidence exists in the record to 

warrant an instruction on mitigated deliberate homicide .I1 

This is the standard to be used when dealing with all lesser 

included instructions, regardless of the offense. 

The United States Supreme Court in Keeble v. United 

States, (1973), 412 U.S. 205, 93 S.Ct. 1993, 36 L ed 2d 844, said 

that the defendant is entitled to instructions on a lesser included offense, if evidence would permit the jury rationally to 

find him guilty of the lesser offense and acquit him of the greater. 
In the case before us the record is replete with such 

evidence. The transcript shows the victim Kerry Loran, at the 

time of the shooting,did not believe defendant was going to 

shoot him. There was also testimony given by various expert 

witnesses as to defendant's vision without his glasses, i.e., 

without his glasses Bouslaugh's vision was 401400 or legally 

blind. Other spectators testified that defendant had been 

beaten up substantially and he seemed unstable at the time he 

came from the pickup with the gun. It is clear from the evidence 

a reasonable inference may be drawn that defendant accidently or 

negligently shot the victim and therefore it was prejudicial 

error to refuse to give the jury an instruction on misdemeanor 

assault. 

The state contends the crime committed was either aggravated 

assault or no crime at all. In State v. Baugh, (1977), 

Mont . , 571 P.2d 779, 34 St.Rep. 1315, 1318, the defendant 

was convicted of deliberate homicide. Defendant argued he was 

prejudiced by the trial court's refusal to give a lesser included 

instruction on mitigated deliberate homicide. In Baugh there 

was no evidence of any factors tending to instigation and this 

Court held: 

"' * * * In many instances, however, the evidence is 

such as to show that the defendant is either guilty 

of the offense charged or is entitled to an acquittal. 

In such cases the court may not be put in error for 

refusing or failing to instruct as to the lower degree 

of the included offense.'" 571 P.2d 781. 

See also: State v. McDonald, (1915), 51 Mont. 1, 16, 149 P. 279. 

From our record the jury could have found, had it been properly 

instructed, that defendant was guilty of the lesser included 

offense of misdemeanor assault. The record indicates: 
1) The gun went off while defendant was in the middle 

of a sentence. 

2) Defendant, who lost his glasses early in the fight, 

is legally blind without them. 

3) Defendant by firing the gun in the air demonstrated no 

intent to harm anyone. 

4) None of the many witnesses could testify they thought 

defendant intended to shoot the victim. 

5) Defendant appeared tired and unstable. 

6) Defendant told everyone around him to stay away. 

7) Dr. Trunnel testified that due to defendant's mental 

make-up, confusion caused by the fight, and his almost total 

loss of vision without his glasses, he would suffer a decompensation function, which means defendant would be very upset and 

con£ used. 

The judgment of the trial court is reversed and the sentence 

is vacated. The cause is remanded for a new trial, consistent 

with this opinion. 

A' 

/ 

Justice 

/ 

We Concur: 

\ 

Chief Justice. 
Mr. Justice John C. Harrison dissenting: 

I dissent. 

The testimony that the witness was not afraid that the 

appellant would shoot him should have been rejected. The witness's 

state of mind was neither material to the crime with which 

appellant was charged, nor relevant to the jury's determination 

whether the weapon was exhibited in a threatening manner. The 

purpose of the statute is to make punishable acts that endanger 

or are likely to endanger other persons without any specific 

intent to do so. Whether or not he drew the weapon for self- 

, defense was a fact question to be determined by the jury and here 

they found contra to the appellant's contentions and in my opinion we are bound by their finding. I would affirm the conviction.