State v. Bentley

• Decision Date: 23 July 1970
• Docket Number: No. 11676,11676
• Parties: The STATE of Montana, Plaintiff and Respondent, v. Donald Allen BENTLEY, Jr., Defendant and Appellant.
• Court: Montana Supreme Court

Page 864

472 P.2d 864

155 Mont. 383

The STATE of Montana, Plaintiff and Respondent, v. Donald Allen BENTLEY, Jr., Defendant and Appellant.

No. 11676.

Supreme Court of Montana.

Submitted June 3, 1970.

Decided July 23, 1970.

Donald R. Matthews and Anthony F. Keast, Donald R. Matthews argued, Missoula, for defendant and appellant.

Robert L. Woodahl, .atty. Gen., J. C. Weingartner, Asst. Atty. Gen., argued, Helena, Daniel J. Shea argued, Harold J. Pinsoneault, County Atty., appeared, Missousla, for plaintiff and respondent.

JOHN C. HARRISON, Justice.

This is an appeal from convictions in a multiple count assault case of a first degree count, a second degree count, and a count of carrying a deadly weapon with intent to assault. The appellant, Donald Allen Bentley, Jr., was sentenced to 10 years on the first degree count, 10 years on the second degree count, and 5 years on the carrying a deadly weapon with intent to assault count; the sentences to run consecutively.

According to the police reports the downtown area of Missoula had been quiet the night of May 24, 1968 until the hour of 2:20 a. m., May 25, just after closing time, when the following bizarre occurrences took place. After an evening on the town, the appellant, his wife, and his brother were walking down West Main street when, according to appellant, they were accosted by one Brian Magnuson who allegedly made some remarks to appellant's wife. Appellant, a 33 year old male, 5 10 tall, weighing some 160 pounds, took offense and a fight ensued. Magnuson, a 24 year old ex-fullback for the University, weighing some 220 pounds, whose story differed from that of appellant in that he said appellant made an offensive remark to him, testified that as a result of the remark '* * * we went at each other and I believe started to fight at the time, and I think I hit him first. I am not exactly sure just what happened, but about that time he got up and drew a knife on me.'

At the time of the drawing of the knife two University students, David Youngdale and Patrick Melby, came upon the scene. Both saw the appellant with the opened knife in his hand backing Magnuson down the street, witnessed him close the knife and pocket it and begin to scuffle with Magnuson only to be knocked to the ground. Both Melby and Youngdale testified that about that time several men came from across the street either to witness or engage the appellant's brother who was in the vicinity of the first fight and that a second fight broke out between the brother and one of these men. They testified appellant got up from the street, where he had been paralleled by Magnuson, went over to a white Buick, got the keys, opened the trunk and after rustling around in the trunk, came out with a revolver. Youngdale described what happened then: 'We then started, Pat and I started yelling at Brian, 'Look our, he's got a gun'. And Brian didn't hear us because he didn't take out right away and we kept yelling at him 'Get out of there, Brian, he has got a gun.' So finally Brian started running down the street and Mr. Bentley raised the gun approximately like this (indicating with arm outstretched) and sighted down right in the general direction of Brian Magnuson and pulled the trigger three times or so. He did not fire. There was not * * *'. Both Youngdale and Melby testified they could hear the trigger snap while the gun was pointed at the repidly departing Magnuson and that appellant then came over to near where they were standing and pointed the revolver at them and again pulled the trigger two or three times. The following then took place, according to Youngdale's testimony:

'Q. What happened then after he pointed that pistol at you and he snapped the trigger? A. He then walked up to Pat and I and said to us 'Are you part of this punk's crew,' referring to Brian, and I said 'No. I was walking down the street.' And he stood there and we stared at each other for a minute, and then he turned around and walked out into the middle of the street where the fight had been going on and now had stopped, and walked up and without even breaking his stride, he walked up right in front of his brother where a man was standing and with a back hand-he had the gun in his right hand-with a backed hand he hit the larger gentlemen across the cheek and this gentleman, of course, backed up and it was all, the blow was so loud that we could hear it from where we were which was probably 50 feet away.

'Q. You heard the smash of this weapon against his face? A. Yes, we did.

'Q. Now did you notice anything or observe anything about the physical condition of Mr. Gerhardt upon sustaining this blow? A. Well. you could see his face open right away and blood was just spurting out.

'Q. And what did you observe after that? A. Then a lady who I persume is Mr. Gerhardt's wife walked up and said 'You can't do that, you son-of-abitch.' And Mr. Bentley then came across like this (indicating) and hit her on the-well, it would be on her left cheek.

'Q. And what happened then, Sir? A. She was knocked unconscious at the first blow and fell to the ground.

'Q. At the time, Sir, did you hear the sound of the weapon smash against her face? A. Yes, we did.'

The man and woman who were struck by appellant were Mr. and Mrs. William J. Gerhardt. They had arrived at the scene of the night's activity with another couple, Mr. and Mrs. Donald Gilbert, after an evening on the town. The two couples had just left the Turf restaurant when they observed the appellant backing Magnuson down the street with a knife. Gilbert ran across the street to the immediate scene of the fight and became engaged in a fight with appellant's brother Shannon, who up to that time had been immediately available to his brother, in case of need. Shannon Bentley appeared to be better at fisticuffs than appellant for he decked Mr. Gilbert and was putting the boots to him when Mr. Gerhardt intervened in defense of his friend. For being the good samaritan Gerhardt got punched in the mouth by Shannon and had to fight Shannon. This fight ended with a handshake between the two men and it was while he was shaking hands with Shannon Bentley that appellant struck Gerhardt. The blow was on the right side of the face.

Dr. Callahan, the attending oral surgeon, comparing Mr. Gerhardt's injuries to those suffered by his wife, testified the injuries were '* * * confined to the right side of the face in the same areas, the comminution or the breaking into small pieces was not as extensive, but the same bones were involved with nearly the same type of depression and fracture of the lateral wall of the upper jaw.

'The zygomatic arch again and the body of the zygoma. Also, the lateral rim of the orbit and the inferior rim of the orbit.' As can be seen from Dr. Callahan's testimony Mr. Gerhardt suffered grievous injuries requiring both hospitalization and surgery.

Mrs. Gerhardt, coming out of the Turf with her husband and the Gilberts, observed the melee in the street but did not venture into the fracas until her husband became involved with Shannon Bentley. She then attempted to get her husband out of the fray only to be struck down by appellant as she reached her husband's side. She witnessed appellant striking her husband with the pistol; her next recollection was coming to, lying in the street. Appellant hit her with the pistol immediately after striking Mr. Gerhardt. Dr. Callahan described her injuries as follows:

'A. At the time of my examination, Mrs. Gerhardt over the left side of her face was badly swollen. There was ecchymosis, black-and-blue areas over this entire area. She ahd difficulty opening her mouth. There was considerable swelling inside the mouth and this is all confined to the area of the, around the eye and over (indicating), what would be known as the cheek bone.

'X-ray interpretationw as done and this was found that she had received, she had fractures over this entire area (indicating), what we call the cheek bone or the zygoma. The rim of the orbit around the eye was badly comminuted or in many pieces. This is the zygomatic arch. This zygomatic arch was also fractured in many pieces. The lateral wall of her maxilla or under jaw inside was also in pieces, with portions of the cheek bone or the body of the zygoma being driven into her maxillary sinus.'

From these injuries Mrs. Gerhardt suffered grievous pain, was hospitalized and underwent surgery.

In order not to be repetitious we will summarize by stating that the record discloses numerous witnesses who testified concerning appellant's conduct, his use of the knife, his pointing the gun and pulling the trigger at Magnuson, Melby and Youngdale, and confirming the assaults on Mr. and Mrs. Gerhardt. Their testimony is voluminous and uncontradicted.

Immediately after the assaults on the Gerhardts, appellant ran to the white Buick, from which he had obtaiend the pistol, and was driven off at a high rate of speed by his wife who had been in the car during the fight. Just as the appellant's car left the scene, a police car arrived. Upon hearing from the witnesses that a man with a gun was in the departing Buick, the police car, carrying two officers, pursued the car and stopped it within a few blocks. During the pursuit officers Doty and Pfau observed appellant trying to put something under the seat. Upon stopping the Buick, the officers ordered the occupants out of the car, searched them and the car. They found the pistol under the front seat of the Buick and placed appellant under arrest. Later, at the police station, Mrs. Bentley was arrested for a traffic violation. Within a short time appellant was taken before a police judge where he was informed of his rights and the charges and where, due to his obstreperous conduct, he was found in contempt on four separate occasions. Thus ended the Bentleys' night on the town.

These events of the early morning of May 25, bizarre and confusing as they may be, are lighthouses...