State v. Palen

• Decision Date: 13 November 1947
• Docket Number: 8762.
• Citation: 186 P.2d 223,120 Mont. 434
• Parties: STATE v. PALEN.
• Court: Montana Supreme Court

186 P.2d 223

120 Mont. 434

STATE v. PALEN.

No. 8762.

Supreme Court of Montana

November 13, 1947

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

Clifford Palen was convicted of first-degree murder on his plea of guilty to a charge of murder, and he appeals.

Affirmed.

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

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

ANGSTMAN Justice.

Defendant pleaded guilty to a charge of murder on September 10, 1946. Thereafter the court held a hearing to determine the degree of the crime and the punishment to be imposed. At the conclusion of the hearing the court found the crime to be murder in the first degree and sentence the defendant to death by hanging. Defendant's motion to modify the judgment having been denied, he appealed to this court. This court remanded the case to the district court for the purpose of hearing further evidence on the issue of defendant's mental condition at the time of the homicide produced by alleged intoxication. That opinion is reported in State v. Palen, 178 P.2d 862.

Pursuant to the mandate of this court the district court heard further evidence. The additional evidence, briefly summaized, shows that defendant had been drinking heavily on the evening of July 2nd and the morning of July 3rd prior to the homicide which took place in the early morning of July 3rd. There is evidence that he started drinking in the afternoon of July 2nd by taking some drinks between six and seven in the evening at the restaurant which was run by himself and his wife. Later he had some drinks at the Jordan Bar. He then went to another liquor establishment known at the Oasis where he had four or five more drinks of whiskey. He then returned to the Jordan Bar and stayed there until it closed at 1:00 a. m. on July 3rd. The testimony concerning the effect of the liquor upon the defendant was conflicting. Some of the evidence shows that his eyes were bloodshot, his tongue swollen, his speech incoherent and some witnesses classified him as being drunk. Others said they failed to note anything out of the way in his appearance, manner, talk or walk and that so far as they could observe he was sober. The trial court at the conclusion of all of the evidence reached the conclusion that the sentence pronounced originally should not be changed or modified.

The defendant has again appealed to this court. Our province on the appeal is to determine whether the punishment imposed by the court was within the limits fixed by law. If it is, we are not at liberty to interfere with it. 'Whether we might on original consideration of the facts differ from the trial judge is therefore immaterial.' People v Gilbert, 22 Cal.2d 522, 140 P.2d 9, 13. On other words if the fixing of the degree of the offense finds support in the evidence and if the punishment is within the maximum limits fixed by law, then we cannot substitute our judgment for that of the trial judge. We are at liberty to interfere only in the event that there has been a clear abuse of discretion or a failure to follow...