State v. Palen

• Decision Date: 25 March 1947
• Docket Number: 8708.
• Citation: 178 P.2d 862,119 Mont. 600
• Parties: STATE v. PALEN.
• Court: Montana Supreme Court

178 P.2d 862

119 Mont. 600

STATE v. PALEN.

No. 8708.

Supreme Court of Montana

March 25, 1947

Appeal from District Court, Seventh District, Dawson County; F. S P. Foss, Judge.

Clifford Palen was convicted for first-degree murder, and he appeals.

Remanded.

C. T. Sanders, of Sidney, for appellant.

R. V Bottomly, Atty. Gen., Clarence Hanley, Asst. Atty. Gen., and E. W. Popham and Desmond J. O'Neil, both of Glendive, for respondent.

ANGSTMAN Justice.

Defendant by information, was charged with having committed the crime of murder in the first degree, alleged to have been committed in Dawson county on the 3rd day of July, 1946, by 'willfully, unlawfully, feloniously, premeditatedly and with premeditated malice aforethought' killing and murdering Frank Cavanagh. At the time of arraignment the defendant entered a plea of not guilty. Thereafter defendant and his counsel appeared in court and requested permission to withdraw his plea of not guilty and to enter a plea of guilty. The court permitted the defendant to thus change his plea, but before doing so, elicited from him the fact that he fully understood what he was doing and that he had not been made any promises as to what the punishment might be and that he was acting freely and without any inducement of any kind. The court then set the matter down for hearing to determine the degree of the crime and the punishment to be imposed. The record shows that the plea of guilty was entered on September 10th and the hearing was fixed for September 16th. The court directed the clerk to issue subpoenas for both the state and the defendant for not to exceed five witnesses each, and permission was granted to each side to subpoena additional witnesses upon procuring consent of the court.

The court, after hearing all of the evidence submitted by both sides, reached the conclusion that Frank Cavanagh was 'premediatedly murdered--shot in the back, without warning, without excuse, without justification and while in the performance of a public duty' and sentenced the defendant to death by hanging and entered judgment accordingly. The defendant thereupon filed a motion to modify the judgment of conviction so as to substitute life imprisonment for the death sentence. This motion was denied and the defendant has appealed from the judgment of conviction and from the order denying the motion to modify the judgment.

By one specification of error defendant complains of the manner in which the court conducted the hearing. First, the defendant contends that the right to object to questions propounded to the witnesses examined by the state was not afforded to counsel for the defendant and also that the defendant was not afforded the right of cross-examination of the witnesses. There is no merit in these contentions. The record shows that defendant's counsel cross-examined every witness whom he desired to cross-examine and there is nothing to indicate that he was denied the right to object to any questions propounded to the state's witnesses.

He also contends that the court erred in permitting Gertrude Palen, the wife of the defendant, to be examined as a witness for the state. Section 10536, Revised Codes of 1935, prohibits the wife from being examined for or against her husband without his consent. The complete answer to this contention is that the record does not disclose that any objection was made by the defendant either to the competency of his wife as a witness or of her testimony.

Section 10536 also prohibits an attorney from being examined as to any communication made by his client to him without the consent of his client and this court has held that to take advantage of this statute, objection to the competency of the evidence or of the witness must be made. This was the holding in the case of Wilson v. Wilson, 64 Mont. 533, 544, 210 P. 896, 900, where the court said: 'Appellant argues that * * * in permitting one W. B. Leavitt, an attorney, to testify to a conversation with him, the court disregarded * * * section 10536, Revised Codes of 1921 * * *. The point is without merit, and we dispose of it simply by saying that the rule is elementary that a court cannot be put in error where timely objection is not made either to the competency of the evidence or of the witness, as was the case here.' To the same effect is Lewis v. Bowman, 113 Mont. 68, 75, 121 P.2d 162, 166, where the court said: 'It is elementary that unless seasonable and appropriate objection is made in such a situation the point is deemed waived.'

But had an objection been made to the testimony of Mrs. Palen the result would still be the same. The most that we could do in case of prejudicial error in receiving incompetent evidence would be to set aside the judgment and remand the cause for another hearing on the issue of the proper punishment. This we would not do unless it were reasonably apparent that defendant had been prejudiced by the reception of incompetent evidence. People v. Riley, 376 Ill. 364, 33 N.E.2d 872, 134 A.L.R. 1261.

Mrs. Palen's testimony did not bear directly upon the circumstances attending the shooting. Defendant's rights were not prejudiced by her evidence. There was other and competent evidence tending to show deliberation and premeditation in the killing. Mrs. Palen's testimony related only to matters preliminary to the killing and did not in itself establish anything that would tend to aggravate the punishment.

Furthermore the proceeding to determine the punishment is not a trial in the strict sence. People v. Noll, 20 Cal. 164; 24 C.J.S., 'Criminal Law,' sec. 1983, note 23, page 1205. After the plea of guilty the defendant was no longer clothed with the presumption of innocence. Instead he stood before the court an admitted felon 'hoping for mercy but entitled only to justice.' People v. Riley, supra [376 Ill. 364, 33 N.E.2d 875]. And the court, as in chancery cases, will be presumed to have disregarded incompetent evidence. People v. Popescue, 345 Ill. 142, 177 N.E. 739, 77 A.L.R. 1199.

The defendant asserts that the court made an improper determination of the degree of the crime from the competent evidence before it. We shall not here attempt to set out all of the evidence contained in the transcript which consists of more than 250 typewritten pages. Briefly summarized, the evidence shows that defendant was employed by the Northern Pacific Railway Company as a brakeman on and prior to July 3, 1946, maintaining his home in Glendive; that on the morning of July 3rd at about 1:30 o'clock he came to his home and started a disturbance by calling his wife names and ordering her to get out; that his wife was then in bed; that she thereupon left her bedroom and went to the bedroom of a daughter in the basement of the house and later left the home and sought the aid of a policeman, Mr. Frank Cavanagh. Defendant, soon after reaching his home, went to his son's room where he talked with the son and daughter; that during this conversation he told them he was going to shoot his wife; that thereafter he went to the bedroom which was rented by a roomer but which was unoccupied at the time and took from the dresser drawer a gun; that he put nine loaded cartridges in the gun; that he threatened to shoot his daughter if she called the police; that while the defendant was talking with his son and daughter and after he had procured the gun and loaded it, defendant's wife entered the house with Frank Cavanagh; that Cavanagh exhibited to the defendant a warrant of arrest and advised him that he was under arrest and would have to go with him. At that time defendant had the gun in the lefthand pocket of his trousers. The defendant's daughter then related what happened in connection with the shooting as follows:

'Q. Then what happened after that? A. My mother and Frank walked in. My mother walked ahead of Frank Cavanagh and they came in the kitchen and Frank took off his cap and showed my dad the warrant. He had the warrant in his cap and he told him he was under arrest and would have to go with him and my dad said he would have to go. And then Frank told him to hurry up, he had some other things to do; and my dad started to walk out with him. Before they started to walk out I tried to tell him he had the gun and Frank didn't understand what I was trying to say. * * *

'Q. Now, when did you see him reaching for his pocket--after they started down the hall, is that right? A. Yes.

'Q. Tell what happened? A. I ran over to my mother to tell her my dad had the gun and as soon as I started to tell her he had already taken the gun out and he started firing and Frank turned around a little bit to see what my mother was saying; and she turned around while he was shooting and we ran outside.'

She also testified:

'Q. Now, did you have any conversation with your father after you and he were downstairs before he went to that telephone? A. Well he wanted me--while we were in the bedroom I was sitting on the bed and he was talking to me about--he said then he was going to kill my mother and himself and anyone else that got in the way--anyone else that tried to stop him * * *

'Q. Was anything said about any officers? A. Well, he said he would kill anyone that tried to stop him--any policeman that tried to stop him and there would probably be nine or ten dead before he got through.'

Defendant's son also testified that the defendant stated that he was going to kill the witness' mother and anyone who tried to stop him. The record shows that defendant fired four shots, at least three of which entered the body of deceased. When the shooting occurred Cavanagh was reaching for the door knob to open the door.

The defendant testified that on the afternoon preceding the morning of the shooting he had been...