State v. Gish

• Decision Date: 30 July 1965
• Docket Number: No. 9600,9600
• Citation: 89 Idaho 334,404 P.2d 595
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Clyde GISH, a/k/a Roy Albert King, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 595

404 P.2d 595

89 Idaho 334

STATE of Idaho, Plaintiff-Respondent, v. Clyde GISH, a/k/a Roy Albert King, Defendant-Appellant.

No. 9600.

Supreme Court of Idaho.

July 30, 1965.

J. Blaine Anderson, of Furchner, Anderson & Beebe, Blackfoot, for appellant.

Allan G. Shepard, Atty. Gen., Thomas G. Nelson, Deputy Atty. Gen., Boise, Dean Williams, Pros. Atty., Blackfoot, for respondent.

McFADDEN, Justice.

Defendant, Clyde Gish, was previously tried on a charge of murder in the first degree, and by the jury found guilty of the crime of voluntary manslaughter. A ten year sentence was imposed, and defendant appealed to this court. See: State v. Gish, 87 Idaho 341, 393 P.2d 342. Upon appeal, the judgment of conviction was affirmed, but the cause was remanded with directions to the trial court to set aside the sentence imposed and afford the defendant an opportunity to make a showing in support of his application for leniency.

The matter came on for hearing before the trial court on July 27, 1964, at which time the sentence previously imposed was vacated. Defendant then moved for consideration of his application for probation or for leniency, at which time he submitted to the court certain letters from friends and acquaintances where he had lived and been employed prior to his trial. In his motion for probation, defendant added as an additional ground that he had by his actions, conduct and demeanor during the time he had been on bail pending the first appeal in the matter (a period of practically a year), demonstrated that he was a suitable subject for probation. At this hearing the court accepted the letters submitted by the defendant and directed that a pre-sentence investigation report be made. The court stated that he had already interviewed the probation officer and requested that in making the pre-sentence investigation, such probation officer considered the file of the district court and also request information from the probation departments of the states of Oregon and California (where defendant had lived prior to his trial). The court then continued the matter for approximately a month.

On the day set for the next hearing, the defendant appeared with his counsel, at which time the court advised the defendant that the probation officer making the pre-sentence investigation report had not as yet completed it and continued the matter until September 14, 1964.

On this latter date defendant and his counsel again appeared before the court. The court inquired if there was any legal cause why sentence should not be imposed, at which time defendant's counsel again renewed his application for probation, and forcefully argued to have defendant placed on probation. After all arguments of defendant's counsel and counsel for the state were completed, the trial court sentenced defendant to imprisonment in the penitentiary for a term not to exceed ten years.

This appeal was taken from the judgment and sentence imposed and from the order and decision of the court in denying defendant's application for probation or leniency. Defendant has assigned four errors, which can be summarized as follows:

1. The trial court abused its discretion in denying him probation or leniency and re-imposing a ten year sentence.

2. The trial court erred in failing to give defendant ample time to review the presentence investigation report in order to rebut or explain any false accounts, hearsay, or other unfavorable matter contained therein.

3. That there was no oral written presentation in open court or in Chambers in the presence of the defendant of the matters contained in the probation officer's report.

4. That defendant was not afforded a legal hearing on his application for leniency or probation.

These assignments of error break down into two categories: the first going to the discretion of the trial court concerning the imposition of sentence, and the second, encompassing the last three assignments of error, deal with the procedure employed by the trial court at the time he announced that he had considered the various matters and determined to deny probation.

As concerns the first category, this court has held that the pronouncement of the sentence to be imposed is within the discretion vested in the trial court and will not be disturbed by this court in the absence of an abuse of such discretion. State v. Weise, 75 Idaho 404, 273 P.2d 97; State v. Yockey, 57 Idaho 497, 66 P.2d 111; State v. Farnsworth, 51 Idaho 768, 10 P.2d 295. It has also been held that a sentence fixed within the limits prescribed by statute will not ordinarily be considered as an abuse of discretion by the trial court. State v. Powell, 71 Idaho 131, 227 P.2d 582; State v. Farnsworth, supra.

After a plea of guilty or upon a conviction after trial, consideration of an application for probation is directed to the discretion of the trial court. State v. Mitchell, 77 Idaho 115, 289 P.2d 315.

In State v. Mitchell, supra, this court in affirming a judgment of conviction, but in remanding the cause to the trial court to set aside a sentence imposed and to consider the showing made by the defendant, advised the trial court:

'* * * In considering an application for probation the court must also consider, among other things, the showing made as to whether the defendant is a first offender, as to his previous character and actions, and as to whether it reasonably appears that defendant will abide by the terms of his probation and may be reasonably expected to be rehabilitated; and should also consider the interests of society.' At 77 Idaho 118, 289 P.2d 316.

In the instant cause the record indicates that the trial court has substantially complied with the requirements as discussed in the Mitchell case, supra. The trial court at the time of pronouncement of sentence stated:

'Gentlemen, in this case the defendant received a fair and just trial; he was represented by competent counsel; every means of the court was made available to the defendant, and to the prosecution, to determine the facts upon which this case was tried. * * * The Court has carefully studied this case; has studied all of the information available to it; and I might state that the Court is not influenced by the opinion of anyone (sic) person. And it appears to the Court that we have here a defendant, who in many respects has shown himself to be a good citizen--that is reflected in his business activities. Comments were made by people who knew him, that he had high business ethics. On the other hand, we have a man who is shown to be impulsive, who is inclined to take things into his own hands, if necessary to make threats with firearms, or threaten people, to kill them, if their conduct did not happen to meet with his immediate approval. Now, instances of this type have happened before his apprehension, following the unfortunate incident out at Atomic City. Have also happened while he was on bond and his case was on appeal to the Supreme Court of Idaho.'

The record indicates that the trial court fully considered all matters brought before it on the question of whether defendant should be considered as a person suitable for probation, and hence no error appears as claimed by defendant's first assignment of error.

A more serious problem is presented by the second category of errors assigned. Defendant strenuously claims that prejudicial error was committed by the trial court in not presenting to him or his co...