State v. Campbell
| Decision Date | 29 August 1972 |
| Docket Number | No. 12232,12232 |
| Citation | 500 P.2d 801,160 Mont. 111,29 St.Rep. 736 |
| Parties | The STATE of Montana, Plaintiff and Respondent, v. Levi CAMPBELL, Defendant and Appellant. |
| Court | Montana Supreme Court |
Mark P. Sullivan, argued, Butte, for defendant and appellant.
Larry J. Stimatz, argued, County Atty., Butte, Robert L. Woodahl, Atty. Gen., J. C. Weingartner, argued, Asst. Atty. Gen., Helena, for plaintiff and respondent.
Levi Campbell, appellant, was convicted of second degree assault following a jury trial in Silver Bow County.
The facts of the case taken from the record on appeal are that on August 6, 1971, or during the early morning hours of August 7, 1971, Levi Campbell, Kenneth Lucero and Leonard Lucero attacked and severely assaulted John Ereaux. The assault took place at the Dutch Inn Bar in Butte, Montana. An eyewitness described the scene as the following: John Ereaux was standing watching a fight between Levi Campbell and another man when Leonard Lucero took a swing a him; Ereaux then knocked Lucero to the floor at which time Leonard's wife jumped on Ereaux's back. After throwing her to the floor Ereaux was then grabbed from behind by Campbell and Leonard Lucero began to strike him; Mr. Ereaux was knocked to the floor at which time Campbell and two Luceros began to kick him. All three pulled him outside and continued to kick him. His resulting injuries were such that his doctor did not expect him to live and there was the possibility of brain damage.
Appellant Campbell raised several issues on appeal. He claims as error the giving by the court below of instruction No. 14 and the refusal of the trial judge to give defense proposed instructions A., B. and C. The State being allowed add Ereaux's name to the list of witnesses on the opening day of the trial is also claimed as error, and whether he was sentenced properly under Montana's statutes for increased penalty for conviction of a prior felony. The final issue is whether or not venue was properly proved in the trial.
Campbell complains that the giving of instruction No. 14 was error because it did not refer directly to either the statute concerning first or second degree assault and was not related to the facts in the case. The instruction given by the court reads as follows:
'Every person who commits an assault upon the person of another by any means of force likely to produce great bodily injury is guilty of a crime.
'To constitute that crime the assault must be committed by a means which is used in such manner and with such force that it would be likely to produce great bodily injury.
'Actual bodily injury is not a necessary element of the crime, but, if such injury is inflicted, its nature and extent are to be considered in connection with all the evidence in determining whether the means used and the manner in which it was used were such that they were likely to produce great bodily injury.'
The trial court in a previous instruction had already instructed the jury on what the elements of first and second degree assault were, and the State argues that this instruction was needed to further define and explain to the jury what that statutory language meant. In particular the state points out the instruction was necessary to give some meaning to the term 'grievous bodily harm', which is used in the second degree assault statute. As a general proposition an instruction in a criminal case must contain an explanation or definition of the crime and normally the wording of the statute will be sufficient but the exact language of the statute need not be given. In a state such as ours where our criminal code uses language which is not common to every day usage it becomes necessary to add explanation so the jurors will understand the law under which they are to decide the case. While a later instruction gave a better or clearer definition of 'grievous bodily harm' we cannot see how the appellant was prejudiced by the giving of instruction No. 14 and therefore we find no error in it being given to the jury.
Counsel for Compbell argues that it was error for the court to refuse to give defense proposed instruction A., B. and C. The State responds to this argument by pointing out that if not the exact language at least the meaning of the proposed instructions was contained in other instructions given by the court. Proposed defense instruction A. reads:
'In this case, the whole of your number must agree in finding the defendant guilty or not guilty of the crime alleged in the information herein, namely assault in the first degree.'
We agree with the State in their contention that the meaning of the above instruction was given in clear language in instruction No. 27, given by the court along with the language concerning lesser included offenses. Instruction No. 27 reads:
'When you retire to your jury room, you must select one of your number as Foreman, and he or she must sign any verdict upon which you may agree.'
It is our conclusion that the idea expressed in the proposed instruction was better conveyed by the given instruction and therefore it was not error for the court to refust to give defense instruction A.
Defense proposed instruction B. was totally contained within another instruction given by the court. The second paragraph of instruction No. 3 reads in part:
'You are not bound to decide in conformity with the declarations of any number of witnesses which do not produce conviction in your minds, against a less number, or against a presumption, or other evidence satisfying your minds.'
There would have been no useful purpose served by setting this language off from the rest of the instruction, therefore the court committed no error in using this method.
The court in its instruction No. 2 1/2, in which in instructed the jury on his presumption of innocence and the law concerning reasonable doubt, adequately instructed on those points. Therefore defense proposed instruction C. would not have added anything and the court was correct in refusing to give it.
We have many times stated that in criminal prosecutions where the instructions as a whole correctly stated the law and fully and fairly instructed the jury thereon, there is no error in refusing proposed instructions which were either covered by given instructions or were inapplicable. See State v. Messerly, 126 Mont. 62, 244 P.2d 1054, and cases therein cited. Such is the case here.
The addition of John Ereaux's name to the list of witnesses for the State on the first day of trial was contended to be prejudicial. Section 95-1803(a) provides that upon a showing of good cause the list of witnesses filed with the clerk of court may be amended. The Criminal Law...
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State v. McKenzie
...the judge may allow a continuance (section 95-1708) if it should appear necessary in the interest of justice." In State v. Campbell, (1972), 160 Mont. 111, 500 P.2d 801, the person whose name was added was the victim of the assault and the Court there found no serious claim of surprise and ......
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State v. Allen, 63565
...967, 969, 580 P.2d 205, 206 (1978); State v. Dombrowski, 44 Wis.2d 486, 502, 171 N.W.2d 349, 357 (1969); see State v. Campbell, 160 Mont. 111, 117, 500 P.2d 801, 804 (1972) (measure of proof "same as that required to establish any material fact in a criminal prosecution").2 Henley v. State,......
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State v. McKenzie
...the judge may allow a continuance (section 95-1708) if it should appear necessary in the interest of justice." In State v. Campbell (1972), 160 Mont. 111, 500 P.2d 801, the person whose name was added was the victim of the assault and the Court there found no serious claim of surprise and p......
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State v. McKenzie
...time, the judge may allow a continuance (section 95-1708) if it should appear necessary in the interest of justice.' In State v. Campbell, 160 Mont. 111, 500 P.2d 801, the person whose name was added was the victim of the assault and the Court there found no serious claim of surprise and po......