MR. JUSTICE DALY
delivered the opinion of the Court.
Defendant David Ottley Brown appeals from a conviction in the district court, Gallatin County. Defendant was convicted of one count of aggravated assault and one count of simple assault. He appeals from the conviction of aggravated assault.
The relevant facts are: On the evening of March 13, 1975, one Ann Docksey, a student at Montana State University, was walking back to her dormitory from work in downtown Bozeman. At an intersection near the campus she approached a man standing at the corner. She testified that as she passed him, the man grabbed her, pressed what was apparently a screwdriver to her throat and attempted to force her into a car. As she was being pressed against the car, another car drove by, frightening her attacker. She then told him she was expected soon at a nearby house to babysit; and at that point the man let her go.
About 10:00 p. m. that same night Ann Docksey was shown a set of photographs by the police. She failed to identify her attacker. Later, at 12:30 a. m., March 14, defendant who had been taken into custody as a result of a separate disturbance in another part of town, was shown to her in a two-man lineup. At this time, Ann Docksey identified defendant as her attacker. Defendant was then on parole for a rape conviction which occurred in 1972.
On March 17, 1975, based in part on Ann Docksey’s identification, an Information was filed against defendant. Count I of that Information charged him with aggravated assault against [43] Ann Docksey. It read, in pertinent part, that defendant, in violation of section 94-5-202(1 )(a), R.C.M.1947:
“* * * purposely or knowingly caused serious bodily injury to Ann Docksey by grabbing her by the shoulder and putting his arm around her throat and trying to force her into a car.”
On March 24, 1975, defendant was arraigned and plead not guilty to Count I and one additional count related to a separate incident. On April 2 the state moved to amend Count I of the Information to charge defendant with violation of section 94-5-202(l)(c), R.C.M.1947, by purposely or knowingly causing “reasonable apprehension of serious bodily injury in [Ann Docksey] by use of a weapon * * *.” The district court granted this motion over the objection of defendant, and the amended Information was filed the same day. Defendant plead not guilty to the amended Information. Trial was had on May 6, 1975, approximately 34 days after filing of the amended Information.
The jury returned a verdict finding defendant guilty of aggravated assault as specified in Count I and guilty of simple assault on the unrelated second count. He received concurrent sentences of 20 years and 6 months respectively. It is from the judgment and sentence as to aggravated assault that defendant appeals.
Defendant presents several issues for review, but we need discuss only one as it is dispositive of this appeal.
That issue is whether the trial court erred in allowing the prosecution to amend Count I of the Information after defendant had plead to the original information.
Section 95-1505, R.C.M.1947, reads:
“(a) A charge may be amended in matters of substance at any time before the defendant pleads, without leave of court.
“(b) The court may permit any charge to be amended as to form at any time before verdict or finding if no additional or different offense is charged and if the substantial rights of the defendant are not prejudiced.
“(c) No charge shall be dismissed because of a formal defect [44] which does not tend to prejudice a substantial right of the defendant.” (Emphasis supplied.)
Defendant contends the amendment to Count I after pleading, was as to matters of substance, and prejudiced substantial rights of defendant and therefore should not have been granted by the district court. The state counters asserting the amendment of Count I to be one of form rather than substance. In the alternative, the state argues that even if the amendment was one of' substance, it did not prejudice a substantial right of the defendant.
Believing discussion of the state’s two-pronged argument to be the best method of resolving the issue, we will discuss the state’s contentions in turn, citing the recent decision in State v. Stewart, 161 Mont. 501, 504, 507 P.2d 1050, 1052, as the basis.
In Stewart, this Court discussed the general test for determining whether an amendment to an information was valid:
“* * * The question to be decided by this Court is whether the amended information charged a crime different in nature from that previously charged, and if such amendment sufficiently apprised the defendant of the charges against him.” (Emphasis supplied.)
In determining whether an amendment to an information is one of substance or form, we again quote from Stewart where this Court was confronted with the same question. There the Court said:
“The crime charged is the same * * *. The elements are the same. The proof to the crime would remain the same.”
Clearly then, the amendment is one of form rather than substance.
What does a comparison of the crime charged in Count I of the original Information and that charged in Count I of the amended Information reveal in the instant case? The original Information charged defendant with violation- of subsection (1) (a) of section 94-5-202, R.C.M.1947. The amended Information [45] charged him with violation of subsection (l)(c) of section 94-5-202, R.C.M.1947. The pertinent subsections read:
“94-5-202(1) A person commits the offense of aggravated assault if he purposely or knowingly causes:
“(a) serious bodily injury to another; or
“(c) reasonable apprehension of serious bodily injury in another by use of a weapon; or * * *”
Subsection (l)(a) requires the causing of serious bodily injury. Subsection (l)(c) merely requires the causing of reasonable apprehension of serious bodily injury by use of a weapon. Obviously, the essential elements required under subsections (l)(a) and (l)(c) are different and therefore under the criteria of Stewart the amended Information charged a crime different in nature from that previously charged and therefore Count I of the amended Information contained a new and different offense. Consequently, the amendment was one as to matters of substance. See: State v. Tropf, 166 Mont. 79, 530 P.2d 1158; Commission Comments to Sections 94-5-201 and 94-5-202, R.C.M.1947.
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MR. JUSTICE DALY
delivered the opinion of the Court.
Defendant David Ottley Brown appeals from a conviction in the district court, Gallatin County. Defendant was convicted of one count of aggravated assault and one count of simple assault. He appeals from the conviction of aggravated assault.
The relevant facts are: On the evening of March 13, 1975, one Ann Docksey, a student at Montana State University, was walking back to her dormitory from work in downtown Bozeman. At an intersection near the campus she approached a man standing at the corner. She testified that as she passed him, the man grabbed her, pressed what was apparently a screwdriver to her throat and attempted to force her into a car. As she was being pressed against the car, another car drove by, frightening her attacker. She then told him she was expected soon at a nearby house to babysit; and at that point the man let her go.
About 10:00 p. m. that same night Ann Docksey was shown a set of photographs by the police. She failed to identify her attacker. Later, at 12:30 a. m., March 14, defendant who had been taken into custody as a result of a separate disturbance in another part of town, was shown to her in a two-man lineup. At this time, Ann Docksey identified defendant as her attacker. Defendant was then on parole for a rape conviction which occurred in 1972.
On March 17, 1975, based in part on Ann Docksey’s identification, an Information was filed against defendant. Count I of that Information charged him with aggravated assault against [43] Ann Docksey. It read, in pertinent part, that defendant, in violation of section 94-5-202(1 )(a), R.C.M.1947:
“* * * purposely or knowingly caused serious bodily injury to Ann Docksey by grabbing her by the shoulder and putting his arm around her throat and trying to force her into a car.”
On March 24, 1975, defendant was arraigned and plead not guilty to Count I and one additional count related to a separate incident. On April 2 the state moved to amend Count I of the Information to charge defendant with violation of section 94-5-202(l)(c), R.C.M.1947, by purposely or knowingly causing “reasonable apprehension of serious bodily injury in [Ann Docksey] by use of a weapon * * *.” The district court granted this motion over the objection of defendant, and the amended Information was filed the same day. Defendant plead not guilty to the amended Information. Trial was had on May 6, 1975, approximately 34 days after filing of the amended Information.
The jury returned a verdict finding defendant guilty of aggravated assault as specified in Count I and guilty of simple assault on the unrelated second count. He received concurrent sentences of 20 years and 6 months respectively. It is from the judgment and sentence as to aggravated assault that defendant appeals.
Defendant presents several issues for review, but we need discuss only one as it is dispositive of this appeal.
That issue is whether the trial court erred in allowing the prosecution to amend Count I of the Information after defendant had plead to the original information.
Section 95-1505, R.C.M.1947, reads:
“(a) A charge may be amended in matters of substance at any time before the defendant pleads, without leave of court.
“(b) The court may permit any charge to be amended as to form at any time before verdict or finding if no additional or different offense is charged and if the substantial rights of the defendant are not prejudiced.
“(c) No charge shall be dismissed because of a formal defect [44] which does not tend to prejudice a substantial right of the defendant.” (Emphasis supplied.)
Defendant contends the amendment to Count I after pleading, was as to matters of substance, and prejudiced substantial rights of defendant and therefore should not have been granted by the district court. The state counters asserting the amendment of Count I to be one of form rather than substance. In the alternative, the state argues that even if the amendment was one of' substance, it did not prejudice a substantial right of the defendant.
Believing discussion of the state’s two-pronged argument to be the best method of resolving the issue, we will discuss the state’s contentions in turn, citing the recent decision in State v. Stewart, 161 Mont. 501, 504, 507 P.2d 1050, 1052, as the basis.
In Stewart, this Court discussed the general test for determining whether an amendment to an information was valid:
“* * * The question to be decided by this Court is whether the amended information charged a crime different in nature from that previously charged, and if such amendment sufficiently apprised the defendant of the charges against him.” (Emphasis supplied.)
In determining whether an amendment to an information is one of substance or form, we again quote from Stewart where this Court was confronted with the same question. There the Court said:
“The crime charged is the same * * *. The elements are the same. The proof to the crime would remain the same.”
Clearly then, the amendment is one of form rather than substance.
What does a comparison of the crime charged in Count I of the original Information and that charged in Count I of the amended Information reveal in the instant case? The original Information charged defendant with violation- of subsection (1) (a) of section 94-5-202, R.C.M.1947. The amended Information [45] charged him with violation of subsection (l)(c) of section 94-5-202, R.C.M.1947. The pertinent subsections read:
“94-5-202(1) A person commits the offense of aggravated assault if he purposely or knowingly causes:
“(a) serious bodily injury to another; or
“(c) reasonable apprehension of serious bodily injury in another by use of a weapon; or * * *”
Subsection (l)(a) requires the causing of serious bodily injury. Subsection (l)(c) merely requires the causing of reasonable apprehension of serious bodily injury by use of a weapon. Obviously, the essential elements required under subsections (l)(a) and (l)(c) are different and therefore under the criteria of Stewart the amended Information charged a crime different in nature from that previously charged and therefore Count I of the amended Information contained a new and different offense. Consequently, the amendment was one as to matters of substance. See: State v. Tropf, 166 Mont. 79, 530 P.2d 1158; Commission Comments to Sections 94-5-201 and 94-5-202, R.C.M.1947.
The state, citing the fact the motion to amend and amendment occurred 34 days prior to trial, next argues that even if the amendment was one of substance, it was still valid since no substantial rights of defendant were prejudiced. Such an interpretation ignores the clear language of section 95-1505, R.C.M.1947. Subsection (a) allows information amendments of substance prior to pleading. However subsection (b) essentially carries a two-fold requirement where information amendment is desired subsequent to defendant pleading: (1) such an amendment is only allowed as to matters of form, and (2) only when no substantial right of the defendant is prejudiced. We recognized this statutory principle in Stewart when the Court said an amendment to an Information subsequent to pleading can only be as to form and if such amendment sufficiently apprised the defendant of the charges against him. Therefore once it is deter[46] mined that an amendment subsequent to pleading is as to matters of substance, the Court need go no further, as that determination is controlling.
This reasoning also applies to section 95-1505(c), since that subsection reads “No charge shall be dismissed because of a formal defect * * (Emphasis supplied.)
Here, subsequent to defendant’s not guilty plea, the district court permitted amendment to the Information which charged a new and different offense. Such action is directly contrary to section 95-1505, R.C.M.1947, and constitutes reversible error. This does not mean that this Court is not cognizant of the State’s argument as to the lack of prejudice to substantial rights of defendant resulting from the amendment to the Information. However the language of the statute is clear: no substantive amendment of the Information subsequent to pleading is allowed. The further qualification as to matters affecting substantial rights is just that, a qualification concerning only amendments which have already been determined to be those of form.
We find the statement in State v. Fisher, 79 Mont. 46, 51, 254 P. 872, is appropriate here. In attempting to resolve a similar situation where Information amendment occurred after pleading, this Court quoted with approval from State v. District Court, 36 Utah 396, 104 P. 282, where the Utah Supreme Court said:
“ ‘The legislature must be understood to mean what it has plainly expressed. It is our duty to give the statute such effect and not to set it aside or evade its operation by forced and unreasonable construction.’ ”
The judgment of the district court is reversed and Count I dismissed.
MR. JUSTICES HASWELL and BERNARD W. THOMAS, District Judge, sitting for Chief Justice James T. Harrison, concur.