State v. Hawkins, 12686

• Citation: 529 P.2d 1377,165 Mont. 456
• Decision Date: 15 January 1975
• Docket Number: No. 12686,12686
• Parties: The STATE of Montana, Plaintiff and Respondent, v. Sherman P. HAWKINS, Defendant and Appellant.
• Court: United States State Supreme Court of Montana

Page 1377

529 P.2d 1377

165 Mont. 456

The STATE of Montana, Plaintiff and Respondent, v. Sherman P. HAWKINS, Defendant and Appellant.

No. 12686.

Supreme Court of Montana.

Submitted Sept. 13, 1974.

Decided Dec. 26, 1974.

Rehearing Denied Jan. 15, 1975.

Sandall, Moses, Cavan & Kampfe, D. Frank Kampfe argued and A. Clifford Edwards argued, Billings, for defendant and appellant.

Robert L. Woodahl, Atty. Gen., John P. Atkins, Asst. Atty. Gen., argued, Helena, Harold F. Hanser, County Atty., Charles A. Bradley, Deputy County Atty., argued, Billings, for plaintiff and respondent.

DALY, Justice.

This is an appeal from a final judgment of conviction after a jury verdict of guilty of murder in the first degree in the district court, Yellowstone County, in connection with the slaying of defendant's wife, Sandra Hawkins.

This appeal presents but one issue for this Court's review: The refusal by the trial judge to give additional instructions to the jury during its deliberation.

The facts are not in dispute and appellant agrees the court properly instructed the jury, prior to deliberation.

The jury retired for deliberation at 4:53 p.m.; at 12:40 a.m., the court ordered the jury into the courtroom and proceeded in this manner:

'THE COURT: Ladies and Gentlemen of the Jury, I don't want you to indicate to me in any way what your vote may be at this point or which way your vote may be, but I want to ask you if you think that you are close to reaching a verdict at this time.

'JURY FOREMAN: Yes, Your Honor, I think that we are fairly close. I mean it isn't that lopsided.

'THE COURT: The reason that I am asking this is that it has been a long day for all of you, I know, and some of you probably have great endurance, physical and otherwise, than others because of age and various things, and this is what I am concerned about, and this is why I was inquiring as to whether or not you think you are close to a verdict.

'JURY FOREMAN: May I ask a question, sir?

'THE COURT: No, the law won't permit that. If you have any questions the law requires that you submit the question to me in writing and I will answer it in the same way.

'JURY FOREMAN: We have it in writing.

'THE COURT: Very well, Mr. Bailiff, will you submit the written question to the Court?

'(Thereupon the Baliff submitted the written questions to the Court, said questions being as follows:

'1. Do each of the conditions of willful, deliberate and premeditated have to be proven by the State?

'2. Does deliberate have anything to do with premeditate?

'3. Does deliberate mean the defendant has given thought to more than deciding to perform or not perform the action?

'4. Does deliberation mean considering the consequences of the crime before committing it?'

The court excused the jury until 9:00 a. m., the following day and immediately met with counsel in chambers. The court's first impression, stated in the record, was that if counsel agreed the court would instruct the jury that the words were already defined in the instructions and he could not instruct further on definition. Further, the court suggested that if both counsel could agree on any further definition that would answer the jury's questions, the court would also consider that as well.

Counsel could not agree to additional instruction. Counsel representing the state requested that no further instruction be given the jury to prevent any further confusion. Counsel for defendant requested that question number 1 be answered, but that numbers 2, 3, and 4 not be answered. Counsel for the state objected to the answering of question 1, and stated that if number 1 was answered, then numbers 2, 3 and 4 should also be answered. In other words, counsel disagreed about which of the questions, if any, should be answered and did not make any effort to propose further definition as suggested by the court, except in this suggestion by defense counsel to call further attention to court's Instruction No. 1:

'MR. KAMPFE: The first question bothers me, Judge.

'THE COURT: But it should be clearly defined.

'MR. BRADLEY: Every material allegation of the Information has to be proved and these are the material allegations. The word willful, premeditated and deliberate are all defined.

'MR. KAMPFE: Well, the first question bothers me because that is very plain in the Instructions.

'THE COURT: It's in the first instruction. I think the first two instructions cover that, the fact that they must prove all of the material allegations are in about three or four instructions altogether, but it is specifically set out what the specific allegations are and you can define willful and premeditation.

'MR. KAMPFE: It would be my suggestion to the Court that the first question should be answered by either referring to a specific Court instruction and an example of that would be see Court's Instruction such and such, or in the alternative, which would be answered by saying, yes, before a conviction of first degree murder can be rendered you must believe beyond a reasonable doubt that each of these separate elements have been proven by the State, and I make...