State v. Palen , 119 Mont. 600 ( 1947 )

Defendant was charged with the murder of Frank Cavanagh, a policeman, on July 3, 1946. On July 9, 1946, leave was granted to file an inforamtion direct. The information was read in open court and a copy delivered to defendant. The defendant stated that he did not have counsel to represent him, that he was without means to employ counsel and after being advised by the court, said that he wanted the court to appoint counsel. Thereupon counsel was appointed and July 13, 1946, set as the date of arraignment. On that date the defendant appeared in court with his counsel and entered a plea of not guilty. Thereafter on September 10, 1946, defendant with his counsel appeared in open court, advised the court that he wished to withdraw his plea of not guilty and enter a plea of guilty. At that time the court examined the defendant as follows:

"Q. You know that you are charged in this case with first degree murder? A. Yes, sir.

"Q. Do you know that the punishment for that crime may be either life imprisonment or death by hanging? A. Yes, sir.

"Q. Have you been promised or have any promises been made to you as to what punishment would be inflicted if you made a plea of guilty? A. No, sir.

"Q. Have you been threatened in any way or in any manner as to what punishment might be inflicted did you not plead guilty? A. No, sir.

"Q. The desire then, on your part, is entirely voluntary? A. Yes, sir.

"Q. And it is freely made — is it freely made? A. Yes, sir.

"Q. And without inducement of any kind? A. No, sir.

"Q. No consideration — procurement consideration of any kind have been made? A. No, sir.

"Q. You understand that it is not the custom in this district, upon entering a plea, that the entering of a plea in any way affects the punishment which may be inflicted — you understand that? A. Yes, sir.

"Q. Very well. The court now inquires of you, what is your plea to this information, guilty or not guilty? A. I plead guilty."

The court set September 16, 1946, as the date for the hearing provided by section 12056, Revised Codes of 1935. It was at this hearing that the record of 250 pages mentioned in the majority opinion was made and it is on this record that the matter is now before this court.

It is well settled that the trial court has discretion in fixing sentence within the limits prescribed by law (24 C.J.S., Criminal Law sec. 1878) and that this discretion will not be interfered with except for manifest abuse of this discretion. State v. Fowler, 59 Mont. 346, 355, 196 P. 992, 995, 197 P. 847. In that case the court said: "After reading the evidence, keeping in mind that the defendant was not represented by counsel, we are inclined to the opinion that the penalty inflicted was severe. Nevertheless this is a matter with which this court has nothing to do. If the defendant desires relief in this regard, he should apply to the executive department of the government, in which is lodged the power of commutation or pardon."

In these cases where a plea of guilty admits all the facts and the sole question to be determined is the degree of the crime and the punishment to be imposed, the appellate court is only concerned with determining whether the discretion of the trial court was judicially exercised. Commonwealth v. Frisbie, 342 Pa. 177, 20 A.2d 285; People v. Hawk, 17 Cal. 2d 812, 112 P.2d 225; People v. Lang, 2 Cal. 2d 417, 41 P.2d 165; State v. Sullivan, 230 Iowa 817, 298 N.W. 884.

There is evidence in the record that appellant was intoxicated. The majority decision points out that intoxication is only to be considered "for the purpose of determining whether the accused was capable of entertaining the purpose, intent, or malice, which is an indispensable ingredient of certain grades of the offense." Citing 26 Am. Jur., sec. 118. This is the statutory rule in Montana by virtue of paragraph 1, section 10728, Revised Codes of 1935. It is commonly known there are various degrees of "intoxication" or "drunkenness." Tracy v. Brecht, 3 Cal. App. 2d 105,39 P.2d 498; State v. Yates, 132 Iowa 475,109 N.W. 1005. And to say that a person is intoxicated may mean much or little. It indicates nothing as to the degree of intoxication. Brethony v. Pottsville Union Traction Co., 218 P. 123, 66 A. 1006. But intoxication excusing a criminal act must be such as to render the accused incapable of forming the felonious intent which is a necessary element of the crime. Collins v. State,115 Wis. 596, 92 N.W. 266.

"It follows that a defense to a crime involving intention cannot be established by merely showing that the perpetrator, was, at the time, intoxicated; he must go farther, and make it appear that his intoxication had progressed so far as to rob him of his mental faculties * * *. Stated in another way, a man may be drunk, but his responsibility for crime continues while he retains control of his mental faculties sufficient to appreciate what he is doing." State v. Yates, supra [132 Iowa, 475,109 N.W. 1006].

The appellant testified that he had been drinking on the day of the shooting, that he arrived in Glendive about one o'clock p.m., went home and cleaned up and then went down to the restaurant run by himself and wife and ate lunch. Then he went over to a wholesale house and bought some sugar and brought it back to the cafe. He stayed in the basement awhile "checking over things and seeing what was in stock" and then went upstairs and took three drinks out of a pint bottle of whiskey. He then left the cafe about 4:30 or 5:00, went to the Oasis where he had nothing to drink and after a short time went to the Jordan Bar. He "drank steady" until about 8:00 or 8:30 p.m. Except that he remembered that he returned to the Oasis a second time, that he went home and was in the hallway outside the bathroom and that he was arrested after the shooting, he alleged that he was unable to recall any of the events that led up to the fatal shooting, the actual shooting itself or what took place after the shooting and before his arrival at the lunchroom where he was arrested. There was other evidence as to his drinking. After he came home and frightened his wife, she ran out to get the police and swore out a complaint which recited that the appellant was drunk. The appellant's daughter, Harriet Palen, testified that her father was drunk when he came home. His son saw him on the street about 9:30 p.m. and testified that at that time his eyes were bloodshot and that later just before the shooting his father's eyes were still bloodshot.

Mrs. Palen testified that the appellant came home about 1:20 a.m., that he came into the bedroom and called her names and ordered her out of the house. She fled to her daughter's room in the basement and later crept out to call the police. After obtaining a warrant from the police magistrate she returned with the deceased, Frank Cavanagh, the policeman detailed to make the arrest. They entered the house by the front door and saw the appellant and his daughter Harriet in the kitchen. Her testimony continues:

"Q. What happened after that? A. Then Mr. Cavanagh talked to my husband and told him he would have to go with him. At first he said he wouldn't.

"Q. At first your husband said he wouldn't? A. Yes.

"Q. Well, did Mr. Cavanagh, if you remember, say anything about any papers? A. He didn't the first time he asked him. Then he asked him the second time. He said he would have to go with him and then he showed him the warrant.

"Q. Did he take off his cap? A. Yes.

"Q. And did he show the warrant to Mr. Palen? A. Yes.

"Q. Tell what happened after that? A. I don't think he said anything then, but he started to walk into the hallway and my husband kind of followed him.

"Q. Who was ahead? A. Frank, Mr. Cavanagh.

"Q. Now, Mr. Cavanagh started walking into the hallway and your husband followed him. Is that right? A. Yes.

"Q. Where were you standing? A. I was standing just where I was, right behind him when he stood at the stove.

"Q. And where were you with reference to this door? A. I was standing by the stove when he was walking out.

"Q. Did you move? A. No.

"Q. Well, could you see your husband and Mr. Cavanagh walking down the hall? A. Yes, I could.

"Q. Tell what happened? A. Well, when they got to the door, Frank, Mr. Cavanagh, was going to open the door and then I saw my husband draw the gun.

"Q. Did you notice from which pocket he drew it? A. No.

"Q. Did you see the gun? A. I saw part of it.

"Q. What part did you see? A. The barrel part of it.

"Q. Where was it when you saw it? A. It was above his shoulder.

"Q. Demonstrate how he held it, if you can? A. I saw it when he raised it up like that. (Indicating with arm raised so that barrel of gun would appear over shoulder.)

"Q. Was your husband in front or behind Mr. Cavanagh at the time? A. He was behind.

"Q. Had he said anything that you know of? A. No, he didn't say anything.

"Q. Tell what happened? A. Oh, when I saw the gun I screamed and said: `Oh, my God, he has a gun.' And my daughter and I run out the side door."

Harriet Palen, appellant's 15 year old daughter, was awake when her father came home between 1:00 and 1:30 a.m. She was asked what happened when her father came home and her answer was: "When he came home he walked in the house and he was drunk. He started shouting names and called my mother names and told her to get out and she came downstairs." She then heard her father coming downstairs and she met him on the stairs and when he asked if her mother was down there she said her mother was not there. Her father then went outside and after looking outdoors for him, she met him in the hall as he re-entered the house and they went together upstairs to her brother, Clifford Palen's room. Her brother was asleep but awakened after she opened the door. They talked awhile and the appellant then went into the next room, rented by a man named Steele.

She further testified:

"Q. What did you and your father talk about while you were up in your brother's room. A. He just kept saying he was going to shoot my mother or kill my mother.

"Q. Did he say why? A. No. Not that I can remember.

"Q. Then after your father was in there talking to you you say he went into Mr. Steele's room? A. Yes.

"Q. Was Mr. Steele there? A. No.

"Q. How did your father find out whether or not he was there? A. He rapped on the door and called his name.

"Q. And there was no answer? A. No. * * *

"Q. All right. Now what did your father do when he went into Mr. Steele's room? A. He sat on the bed — no, he pulled out the dresser drawer and took the gun.

"Q. Did you see that? A. Yes.

"Q. Where were you then? A. I was standing in the doorway.

"Q. By the `doorway' you mean that doorway there? A. Yes.

"Q. You followed him that far? A. Yes. My brother told me he thought he was going after the gun so I went in and watched and he did take it.

"Q. You say he pulled out the dresser drawer and got the gun? A. Yes.

"Q. Had you ever seen that gun before? A. Yes.

"Q. When? A. When I was cleaning his room it was on the dresser.

"Q. On the dresser or in it? A. On it.

"Q. Then did you, yourself, see your father take that gun out of the dresser drawer? A. Yes.

"Q. Then what happened after that then? A. He sat on the bed and loaded it.

"Q. Where did he get the shells? A. Out of the same drawer.

"Q. Did you see him load it? A. Yes.

"Q. Did you see how many shells he put in it? A. Nine.

"Q. Did you see him? A. Yes.

"Q. Put all of those shells in? A. Yes.

"Q. Did he say anything to you while he was doing that? A. I don't remember. I don't think he did.

"Q. Did you say anything to him? A. I don't remember.

"Q. What did you do after that? A. I started down the stairway.

"Q. And then what happened. A. He told me to come back up. I wasn't supposed to call the police. He would shoot me if I did.

"Q. Then what happened after that? A. We went back in my brother's room and then my father wanted a cigarette so I went downstairs to get it for him and then he went downstairs and smoked a cigarette; and he went in the kitchen and told me to go down to the beanery with him and have a cup of coffee, and I wasn't dressed and wasn't ready to go. Then he started looking in the telephone directory for a number and while he was doing that my mother and Mr. Cavanagh walked in. * * *

"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 that he was going to kill my mother and himself and anyone else that got in the way — anyone else that tried to stop him."

Clifford Palen testified to the same effect as to the appellant's knocking on the door of Steele's room to see if anyone was there and then going in. His testimony as to his meeting with his father at 9:30 p.m. is significant.

"Q. Where did you see him? A. On the street in front of the theater.

"Q. Did you talk to him? A. Yes I did.

"Q. How long was that before you went home and went to bed? A. About an hour.

"Q. Did he appear to be the same as you had always seen him at that time? A. No.

"Q. How is that? A. No, his eyes were bloodshot.

"Q. What did he say to you then? A. He asked me if my mother was at the cafe.

"Q. Did he talk distinctly? A. Yes.

"Q. Was he alone there in front of the theater? A. No, there was another man with him but I don't know who.

"Q. Then when — going back now to your house and when your sister and your father came in and you woke up, did you notice anything strange about your father at that time? A. His eyes were still bloodshot.

"Q. During the time he was talking with you and your sister did he appear to be the same as you had known him at other times? A. His eyes were bloodshot.

"Q. Was that the only thing you noticed about him that was different? A. Umm-humm."

Grace Kalberg, waitress at the Northern Pacific lunchroom, testified as to appellant's actions in the lunchroom after the shooting:

"Q. Did you notice anything unusual about him when he came in? A. No, I didn't.

"Q. What did he do when he came in? A. Just asked for a cup of coffee.

"Q. I see, and then what did he do after that? A. He sat and talked — do you want me to tell what he said?

"Q. Did he have more than one cup of coffee? A. Yes. Vera Fleischman gave him the first cup and he asked for another one and I gave him the second one.

"Q. Then did he talk to you? A. Yes, he called me over.

"Q. He called you over? A. Yes.

"Q. What did he say to you? A. Well, he said he did the worst thing he ever did in his life. He said: `the worst thing that could ever happen to me — I killed a man.'

"Q. What did you say? A. I said: `No, I didn't think that could be possible.' I said. And he said: `Yes, I did.'

"Q. Did he say anything else? A. Well, he thought he would go out and kill himself and I said I didn't think he should, he would be yellow and I thought he had better face the music.

"Q. Did he tell you who he killed? A. No, he didn't.

"Q. Well, what happened after that? A. Well, then he sat awhile and then he went over to the telephone.

"Q. Well, did he say anything more about something breaking? A. Yes. He said something about it had been on his mind for five or six months — I don't know just the words he used. I can't remember.

"Q. Then you said he used the telephone? A. Yes.

"Q. Did you hear who he called? A. No, I didn't.

"Q. Did he just use it once? A. About three times, I think.

"Q. Did anyone else come after him then? A. Nobody but the sheriff.

"Q. I see, and where was Mr. Palen when the sheriff came after him? A. He was sitting at the telephone.

"Q. What happened then? A. Well, I don't know. They just come in behind him and told him to put his hands up.

"Q. Did Mr. Palen put his hands up? A. Yes.

"Q. Did you hear him say anything more then? A. No. One time, I think, he dropped them and Martin told him to get them up.

"Q. And you didn't hear anything more that he said? A. No, I didn't.

Willa Webster, the telephone operator on duty, heard the appellant call in from the lunchroom sometime after 2:00 a.m. She recognized his voice:

"Q. Did he tell you who it was? A. No, he didn't.

"Q. Repeat, as nearly as you can, exactly what was said over the telephone? A. Mr. Palen asked if there was any calls from his home for the police and I told him no, and I said: `Have you had any trouble? And he said: `Yes, I have. I have done something terrible. I am sure sorry for what I have done. I shot an innocent man.'

"Q. Did he say who it was? A. No, he didn't.

"Q. Did he say anything more? A. No.

"Q. Did you ask him if he killed the man? A. Yes, I did.

"Q. What did he say? A. He said `Yes, I looked at him and he was dead.'

"Q. Then he said he was an innocent man, is that right? A. Yes.

"Q. What was it he said about being sorry? A. He said he was sorry he done it. He didn't know why he done it because he was a good man.

"Q. Well, did he ask you to telephone for him in any way? A. Yes, he did.

"Q. What did he say? A. He said: `I wish you could help me in some way.' `Well,' I said, `it is too late now; you had better call the sheriff.' Then he told me to call the sheriff then.

"Q. He told you to call the sheriff? A. Yes.

"Q. Did he tell you where he was? A. I knew where he was. The call came from the lunch room.

"Q. Could you tell from your position that it was from the lunch room? A. Yes.

"Q. Well, did Mr. Palen call you more than once? A. Yes. He called me three times.

"Q. Well, did he say anything different the second time? A. Well, the first time he called me and told me what he had done and then he called me a third time. I forget what he said the second time.

"Q. Was it something about killing someone? A. Yes, and then the third time he called he said: `I think I will place a long distance call.' And then he started to place the call and just then I guess it was at that time that the sheriff came in because it was cut off right there before he said anything more.

"Q. Well, each time he called you what was his name for you? A. Billie.

"Q. He called you `Billie.' A. Yes.

"Q. Did he say anything about shooting himself? A. He said: `I suppose I should shoot myself, but I want to live for those little ones,' he said.

"Q. Did he say why he wanted to live for the little ones? A. He said they just pleaded with me pathetically and I feel like I should live for their sake.

"Q. Did he say what they plead with him about? A. Not to hurt their mother."

Martin Kalberg, the sheriff who arrested the appellant, searched him and among other things found a partially filled pack of cigarettes with twelve .22 shells in it. These were identified as the same type shells that were in the pistol and the same type that were kept in Steele's room.

As against the appellant's testimony that he was drunk and unable to recall any of the occurrences of the evening, we have affirmative evidence of his actions on the evening in question. Palen recalled that there was a pistol in Steele's room and was able to go to the dresser where it was kept, load it to capacity and take extra cartridges in the cigarette package. He talked distinctly when his son saw him on the streets and the only thing about him that seemed different was that his eyes were bloodshot. He talked with his daughter after he had loaded his pistols and kept her with him so that she could not call the police. He refused to go with Cavanagh until after Cavanagh produced and showed him the warrant for his arrest. He expressed remorse and indicated he knew the seriousness of his action when he talked with Grace Kalberg in the lunchroom. He talked to Willa Wester over the phone, called her by name, his voice was normal so that she was able to recognize it and identify him and he declared that he had killed an innocent man, that he was sorry and that the deceased was a good man.

All these actions took place during the time he was allegedly suffering from loss of memory. Certainly with such evidence in the record we cannot say there was a manifest abuse of discretion in holding that the accused was not so intoxicated as to be incapable of forming the felonious intent necessary for a conviction of murder in the first degree.

A quotation from State v. Treficanto, 106 N.J. Law 344,146 A. 313, 316, is in point: "It is pertinent to observe in this case that a man who could go from his room to Caputo's and return several times, as Treficanto did; deliberately go there for his pistol and go back and use it in an endeavor to shoot Caputo, is evidence from which the jury could conclude, and doubtless did conclude, that Treficanto's faculties were not so far prostrated by intoxication as to render him incapable of forming an intent to kill."

Evidence of intoxication should always be received with great caution and carefully examined in connection with other proven circumstances. I Warren on Homicide, Perm. Ed., 205.

"The weight to be accorded to evidence of intoxication, and whether such intoxication precluded the accused from forming a specific intention to kill and murder, which intent is a necessary element in murder in the first degree, are matters essentially for the determination of the trier of the facts." People v. Lami, 1 Cal. 2d 497, 36 P.2d 192, 193; State v. Treficanto, supra.

It is a serious undertaking to determine the degree of a murder and to impose punishment. The statutes and decisions have made it mandatory to hold a hearing to ascertain the degree and discover circumstances in mitigation or aggravation. The trial court has scrupulously adhered to these statutes and at every stage protected the rights of the accused. The trial judge conducted this hearing; weighed the evidence; passed on the credibility of the witnesses and assumed the solemn burden of imposing the sentence. Frank Cavanagh was killed while carrying out his duties as a policeman. He was in full uniform, had a valid warrant of arrest and apparently his murderer had full knowledge that he was being arrested. At least three and possibly four shots were fired.

In pronouncing judgment the court declared: "I have given this matter considerable thought. I have received and analyzed the testimony that was introduced and have come to the conclusion that Frank Cavanagh was premeditatedly murdered — shot in the back, without warning, without excuse, without justification, and while in the performance of a public duty. Having come to this conclusion I feel that the Court would be derelict in its duty would it not or did it impose any sentence other than that about to be pronounced."

In determining that the accused was guilty of murder in the first degree the court has determined that the accused was not so intoxicated as to be deprived of the ability to form the requisite intent. There is evidence in the record to sustain his decision.

To remand this case for further hearing of evidence which would be cumulative in character is an unwarranted interference with the discretion imposed in the trial court.

The judgment should be affirmed.