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

## 22

## 7978 MbL, ,- - ,-?I Filed:

### Mr. Justice Gene B. Daly delivered the Opinion of the Court:
Defendant Carter Bouslaugh was charged inthe 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 trialhe was convicted and sentenced to serve 10 years intheMontana 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 trialcourt committed reversible error? 2) Whether by refusing an offered instruction pointing out that a shooting alone 

### isnot sufficient to obtain a conviction, the trialcourt committed reversible error? 

### 3) Whether the trialcourt committed reversible error in refusing offered instructions dealing with specific intent and
mens rea or criminal intent? On July 18, 1976, ata motorcycle hillclimb south of Billings, Montana, defendant Carter Bouslaugh was involved in
a fistfight which was precipitated by Don Maxwell who accused defendant of stealinghisbeer cooler. Following a short, onesided fight between Maxwell and defendant, another fight broke out between Mike Donovan and defendant. After a fiveto fifteen minute fight, defendant retreated and attempted toget intohis pickup. During this affray, defendant's glasses were knocked off and lost. Atthe time defendant tried toget into his pickup, he appeared tobe tired and trying to avoid any further fighting.When Bouslaugh reached his pickup and attempted toget 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 inhis hand. He shot it in the airand told everyone to leave him alone. This warning deterred Donovan who took off looking for cover. Atthis time Bouslaugh could stillnot leave the hillclimb sitebecause 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. AsBouslaugh approached, Kerry Loran told him toput his gun down, Bouslaugh pointed the gun atthem and told them toback off. Nevertheless, Loran stepped toward defendant who turned -toward him, pointed the gun athim, and pushed it toward him. While pushing the gun toward Loran, the weapon discharged and the bullet struckKerry 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. Statev. Thomas, 147Mont. 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:II 

### A person commits the offense of aggravated assault ifhe purposely or knowingly causes:
"(b) Boaily injury to another with a weapon." The District Court refused to give a lesser included offense instructionofmtsdemeanor assault. Under section 94-5-201, R.C.M. 1947: "(1) 

### A person commits the offense of assault if he: 

## "*** "(b) negligently causesbodily injury to anotherwith a weapon

# ** *.I1 

### The differencebetween aggravated assault and the lesser included offense ofmisdemeanor assault is the intent of defendant at the time the crime was committed. From a review of the record, itbecomes readily apparent therewas ample evidence toput into questionwhether the defendant knowingly
or purposely shot the victim, ornegligently shot the victim. Montana's standard for determiningwhether therehas been sufficient evidence as to a theory introduced to warrant the granting of an instruction is set forth in Statev. Buckley,

(1976), Mont

# . , 557P.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 courtmust only be whether or not

## any evidence exists in the record to warrant an instruction onmitigated 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 inKeeble v. United States, (1973), 412U.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 acquithim of the greater.In the casebefore us the record is repletewith such evidence. The transcript shows the victim Kerry Loran, atthe time of the shooting,did not believe defendant was going to shoot him. There was also testimony givenby various expert witnesses as to defendant's visionwithout his glasses, i.e., without his glasses Bouslaugh's vision was 401400 or legally blind. Other spectators testified that defendant had been beaten up substantiallyand he seemed unstable atthe time he
came from the pickup with the gun. It isclear from the evidence
a reasonable inference may be drawn that defendant accidently or negligently shot the victim and therefore itwas prejudicial
error torefuse to give thejury an instruction on misdemeanor assault. The state contends the crime committed was either aggravated assault orno crime atall. In Statev. Baugh, (1977), Mont

# . , 571P.2d 779, 34 St.Rep. 1315, 1318, the defendant
was convicted of deliberate homicide. Defendant argued he was prejudiced by the trialcourt's refusal to give a lesser included instructionon mitigated deliberatehomicide. InBaugh there
was no evidence of any factors tending to instigation and this Court held: 

## "'

# *** Inmany instances, however, the evidence is such as toshow 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 toinstruct as to the lower degree of the included offense.'" 571P.2d 781. See also: Statev. McDonald, (1915), 51Mont. 1, 16, 149 P. 279. From our record the jury could have found, had itbeen 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 inthe middle of a sentence. 2) Defendant, who lost his glasses early inthe fight, is legallyblind without them. 

### 3) Defendant by firing the gun in the airdemonstrated no intent toharm 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 todefendant's mental make-up, confusion caused by the fight, and his almost total loss of visionwithout his glasses, he would suffer a decompensation function, which means defendant would be very upset and con£ used.

The judgment of the trialcourt is reversed and the sentence isvacated. The cause is remanded for a new trial, consistent with this opinion. 

## A'

/ Justice

/ We Concur:

\ Chief Justice.

### Mr. JusticeJohn

### C. Harrisondissenting: 

### Idissent. The testimony that the witness was not afraid that the appellant would shoothim should have been rejected. Thewitness's state of mind was neither material to the crime with which appellantwas charged,nor relevant to the jury's determination whether the weaponwas 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 nothe drew the weapon for self-

, 

### defensewas a fact question to be determined by the jury and here they found contra to the appellant's contentionsand inmy opinionwe are bound by their finding. 

### Iwould affirm the conviction.