State v. Sanders, 12032
| Decision Date | 04 October 1971 |
| Docket Number | No. 12032,12032 |
| Citation | 158 Mont. 113,489 P.2d 371 |
| Parties | The STATE of Montana, Plaintiff and Respondent, v. Richard SANDERS, also known as Dick Sanders, Defendant and Appellant. |
| Court | Montana Supreme Court |
Arnold Huppert, Jr., argued, Livingston, for defendant and appellant.
Robert L. Woodahi, Atty. Gen., David V. Gliko, argued, Asst. Atty, Gen., Helena, Jack Yardley, County Atty., John W. McDonald, Jr., Deputy County Atty. argued, Livingston, for plaintiff and respondent.
Defendant was convicted in the district court of three counts of second degree assault and appealed. We hold that Count I should be dismissed. Counts II and III should be reversed and the cause remanded for new trial due to prejudicial evidence admitted at trial.
This is an appeal from a conviction of three counts of second degree assault under section 94-602, R.C.M.1947. The case was tried by jury in the district court of the sixth judicial district, Park County. Defendant was sentenced to serve four years in the state penitentiary on each count; each sentence to be served concurrently.
Defendant was the operator of a gasoline service station in Livingston, the situs of all the alleged assaults.
Count I alleges that on June 24, 1969, three itinerant magazine salesgirls, all about college age, entered defendant's service station and tried to sell subscriptions to defendant's employee, one Lawrence Bahn. They were unsuccessful but Bahn suggested they approach the defendant; again they were unsuccessful. The girls then pulled sunglasses off of a display rack and tried them on, apparently with no intention to purchase them. They then proceeded to the restroom where they remained for a considerable length of time.
Defendant and Bohn became concerned that the girls were up to some sort of mischief, so they both proceeded to the restroom and knocked on the door. The girls opened the door and defendant asked them to leave, whereupon one of the girls threw a pop bottle 'right beside' defendant, causing it to shatter on the pavement. Defendant directed Bahn to call the police while he procured a small caliber pistol with a loaded magazine which he pointed 'toward the girls'; ostensibly for the purpose of restraining the girls until the arrival of the police. The police arrived and the girls made a statement alleging assault by the defendant. None of the girls signed a complaint at the time of the incident, nor did any of them testify at the trial.
Count II alleges that on August 30, 1969, at approximately 11 p. m., a tourist parked his Winnebago motorhome at the rear of defendant's service station in order that he might have it serviced early the next morning. The tourist, James McNearney, slept in his motorhome that right, along with his wife and son. He had tied his dog outside the motorhome prior to retiring. The next morning McNearney discovered his dog was missing and the motorhome had a flat tire, apparently due to the removal of the valve cap and core by an unknown person.
In the meantime defendant had opened his station for business so McNearney approached him to inquire as to the loss of his dog and the cause of his flat tire. Defendant admitted letting the air our of the tire and called McNearney a 'son-of-abitch'n Californian', whereupon McNearney took a swing at defendant, but missed. McNearney returned to his motorhome and jacked it up to change the flat tire. Defendant followed McNearney and attempted to kick the jack out, but was unsuccessful. McNearney reached for a lug wrench and told defendant to 'get the hell out of here before I crack you on the head'. Defendant left, but returned a short time later with a pistol which he pointed at McNearney and demanded a $3 parking fee or he would 'blow (his) guts out'. As McNearney took out his wallet, defendant tried to grab it. Failing to obtain the wallet, defendant handed the pistol to his employee and hit McNearney in the jaw. Earlier, defendant had summoned the police and they arrived on the scene at this point. A statement was taken by the county attorney from McNearney on the day of the incident, but no complaint was filed.
Court III alleges that on March 6, 1970, a former employee of defendant, Craig Monroe, who had been discharged by defendant, together with his father entered defendant's service station for the purpose of securing young Monroe's tools and belongings. Defendant told them to come back later when he had more time to watch them. An argument ensued whereupon defendant picked up a crescent wrench and threatened the Monroes that if they did not leave he would call the police.
When the Monroes refused to depart without the tools, defendant produced a pistol. The Monroes armed themselves with a piece of piple and a bumper jack but decided to leave instead of challenging defendant. Defendant fired the pistol and ordered the Monroes to 'halt'. The Monroes dropped the jack and pipe, got into their pickup and drove to the sheriff's office. It was following this incident, the third within eight months, that formal charges were filed, resulting in defendant's conviction.
Defendant bases his appeal on four grounds: (1) That the evidence was not sufficient as a matter of law to establish defendant's guilt beyond a reasonable doubt on all three counts. (2) That evidence unrelated to the offenses charged was offered and accepted by the court erroneously, to the prejudice of defendant. (3) That evidence of prior offenses was erroneously presented to the jury. (4) That defendant was denied a fair trial because he was deprived of effective counsel.
We will combine our discussion of issues (2) and (3) in view of their interrelation.
The essential elements of assault in the second degree under section 94-602, R.C.M.1947, are (1) a general intent to commit an assault, State v. Straight, 136 Mont. 255, 347 P.2d 482; (2) the use of a deadly weapon, Section 94-602(4), R.C.M.1947; and (3) apprehension or fear of grievous bodily harm on the part of the person assaulted, State v. Barry, 45 Mont. 598, 124 P. 775; State v. Karri, 84 Mont. 130, 276 P. 427.
The evidence presented by the state at trial is insufficient as a matter of law to convict the defendant of second degree assault under Count I. In fact, the testimony of the state's witness, Lawrence Bahn, would seem to indicate that defendant's use of the pistol was merely to restrain the three girls until the arrival of the police. Bahn's testimony further indicates the girls were disorderly, hard to manage, adept in the use of foul language, and one of the girls had...
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