No. 12468 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1973 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vs - 

ROBEY HATFIELD, 

Defendant and Appellant. 

Appeal from: District Court of the Thirteenth Judicial District, 

Honorable Robert Wilson, Judge presiding. 

Counsel of Record: 

For Appellant : 

Sandall, Moses and Cavan, Billings, Montana 

K. D. Tolliver argued, Billings, Montana 

For Respondent : 

Hon. Robert L . Woodahl , Attorney General, Helena, 

Montana 

J. C. Weingartner, Assistant Attorney General, argued, 

Helena, Montana 

Harold F. Hanser, County Attorney, Billings, Montana 

Diane G. Barz argued, Deputy County Attorney, Billings, 

Montana 

Submitted: October 2, 1973 

Decided : DEC - 7 1973 

Filed : DEc - 7 1973 

I 

Clerk 
Hon. Edward T. Dussault, District Judge, sitting for Mr. Justice 

John Conway Harrison, delivered the Opinion of the Court. 

Defendant Robey N. Hatfield was convicted of murder in 

the first degree by a jury in the district court of the thirteenth 

judicial district, county of Yellowstone. He was sentenced to 

life imprisonment. From this conviction, he appeals. 

Hatfield, a 68 year old college graduate, in the last few 

years had assisted his 53 year old wife, Eva, in the operation 

of a cafe in Billings. 

In the late afternoon of April 8, 1972, an acquaintance, 

Stanley McMillian, age 45, came to the cafe for a cup of coffee, 

as he had done many times previously. At about 5:30 p.m. the 

cafe was closed and Hatfield, Eva, a male cook, and McMillian 

had coffee together after Eva had returned from a short shopping 

trip. 

Hatfield announced he was going home to check on their 

son, Robey Hatfield, Jr., with whom the parents had had some 

trouble in the last year. Mrs. Hatfield said she was going with 

McMillian and assist him in finding his girl friend, Caroline, 

and that she would be home early. 

Hatfield did go to their home but found the son absent. 

He stayed at home, did some reading, watched TV, then fell asleep. 

At about 10:OO p.m. he was awakened by a telephone call from 

one of their waitresses, inquiring whether she should come to 

1 

work the next day. Hatfield then dozed off again and later was 

awakened by a telephone call, but by the time he answered it 

the calling party had hung up. He again awakened around 11:OO 

p.m. and finding his wife was not home, he dressed, put on his 

overcoat and hat and put a .22 caliber revolver in his overcoat 

pocket. 

In search of his wife and McMillian, Hatfield went to 

several bars, had one drink on the way, then went to the Crystal 

Lounge, entering by the back entrance, arriving there about mid- 
night. His wife was sitting with McMillian in a booth. She 

noticed Hatfield and waved to him to come over. Hatfield went 

to the booth and sat next to his wife, facing McMillian. Harsh 

words were had between Hatfikld and his wife about her not coming 

home and running around with Millian. There was talk of a divorce. 

McMillian asked Hatfield to come sit beside him, as he 

wanted to talk to him as a friend. He tried to explain what he 

and Mrs. Hatfield were doing together, and tried to convince 

Hatfield that they had attempted to call him several times that 

evening. In doing so, McMillian grabbed h at field's arm and said: 

"sit down, I want to talk to you as a friend". To which Hatfield 

replied, "YOU are no friend of mine, you son-of-a-bitch, you are 

with my wife." After several attempts to get Hatfield to remain 

seated and after tugging on his overcoat to the extent it partly 

came off his left shoulder, Hatfield stood up at the end of the 

booth table, took the pistol from his pocket and fired five shots, 

two hit McMillian and killed him almost instantly. Hatfield 

then sat down, put the gun on the table and awaited arrival of 

the police. 

Following his arrest Hatfield gave a statement to the 

police, stating he "intended to kill him and put him out of his 

misery. 'I A witness in the booth next to that where the crime 

occurred testified he heard Hatfield state he meant to kill McMillian. 

Defendant urges that during the course of the trial testimony revealed certain facts which gave rise to the possible presence 

of the defense of self-defense. He states the possible existence 

of self-defense was not at all apparent during the course of the 

pretrial investigation. 

Accordingly, at the conclusion of the trial defense counsel 

offered an instruction as to self-defense. The county attorney 

objected on the ground there was no evidence introduced and no 

notice of self-defense was given. The trial court refused the 

offered instruction. 
Defendant predicates his appeal to this Court for a 

reversal of his conviction and the granting of a new trial on 

the grounds that the notice requirement of section 95-1803(d), 

R.C.M. 1947, although held constitutional, can be applied unconstitutionally in certain factual situations, particularly 

those in this case. 

Defendant contends the pretrial statements of several 

witnesses did not contain sufficient facts to show the alleged 

I I violence" and "altercation" between the deceased and himself, 

and for that reason he could not raise the affirmative defense. 

The statement of witness Charles Kuchera was in part: 

"Wayne Hysjulien and1 met Wally Anderson at the 

Crystal Lounge about 11:45 p.m. Saturday night 

the 8th of April, 1972. ?t * 9: Roby was doing most 

of the talking. Eva didn't yell and the other 

man wasn' t saying anything. ;b Jx * there is trouble 

in the next booth * * 9: right behind us, they are 

fighting * * I heard him [Hatfield] say, 'Get 

your hands off of me and let me go'. * * * I could 

see that something was going on, like wrestling. * Jx * I also heard him say [McMillian] to Hatfield 

1 why don't you shut up, sit down and let me talk 

to you as a friend' * * *.I' 

At trial, Mr. Kuchera testified in part: 

"Q. And when they were having this conversation 

was the defendant, Mr. Hatfield, sitting beside 

Mr. McMillian7 A. Yes, ma'am. 

"Q. Did you see them wrestling? A. Never. 

"Q. Did you see Mr. McMillian jerking the defendant? 

A. I don't think I could clas sify it as a jerking 

motion. 

I I Q. Well, can you tell the Jury what you did see, 

how it happened? A. I-- As I said, I didn't make 

myself a spectacle to turn around and stare at the 

entirety, but when I did turn around I was looking 

over my shoulder and Mr. Hatfield started to, like 

he was going to get up, move away, and Mr. McMillian 

grabbed hold of his shoulder and said, 'Come on, 

sit down, I want to talk to you.' 

"Q. Did he act violent? A. Mr. McMillian9 

"Q. Yes. A. No. 

'Q Was he speaking loudly? A. I don't ---Well, 

it was loud enough that I could hear it, but it 

was no shout. It was nothing that would have probabl caught anyone's or the entire bar's attention, 

no. x 
The statement given by witness Walter Anderson was, in 

part : 

I' We sat in a booth next to a man and woman and our 

booth was just west of theirs. J: * * I was facing 

towards the west and could see the back of the 

ladies head who I have been told was Eva Hatfield. 

I could not see the man that was sitting across 

from Eva very well, but I could see that he was 

wearing glasses and I could see his shoulder. * * * 

I saw * * * the man Roby, seated on the other side 

of the booth along side of the man with glasses and 

his overcoat was pulled off of one shoulder * * * 

I noticed the coat on Hatfield being pulled down. * * * there was going to be trouble. l I 

Anderson's testimony at trial was, in part: 

"Q. Now what kind of trouble were you speaking 

about when you told the barmaid that there is 

going to be trouble? A. Well, I just thought 

that there was going to be a fight or something, 

I just didn't know what was going to take place. 

"Q. When you say fight, do you mean a fist fight? 

A. Well, some trouble, yes. 

"Q. So what you observed in your own mind you 

were concerned because there might be physical 

violence in the booth next to you. A. Yes, sir. I I 

The statement given by witness Wayne Hysjulien was, 

in part: 

11 When this man first came in, I could tell that 

he was very angry by the tone of his voice. I 

heard this man say that he wanted a divorce the 

next day. J: J: 9: Then this man that did the shooting 

stood up and said I am getting out of here and then 

this man that was shot pulled him down in the booth. 

Then this other man said you take your hands off of 

me right now. J: * * Then I heard this man that did 

the shooting say, 'Take your hands off of me.' I 

looked over to see what was going on and I saw this . 

man shoot three times but I don't have any idea 

where the three shots went. I I 

~ysjulien's testimony at trial was: 

"Q. Did you observe or hear the defendant's tone 

of voice that night? A. Yes, it was angry tone of 

voice. 

"Q. Was it loud? A. Not overly loud. 

Q. But you could hear? A. Yes. 

I'Q. What gig you hear the defendant say? A. I heard 

him say/%hat he was a gentleman and he kept his hands 

off of other women. Also, let's see. That he wanted 

a divorce the next day or was to get one. 
I I Q. Was he sitting right beside Eva Hatfield 

at that time? A. Yes. 

"Q. Did the man that got shot, Stanley McMillian, 

did he say anything that you could hear? A,. Only 

the confirmation of her saying that she had called 

him. 

"Q. At what point did the defendant stand up and 

sit down beside the victim, did you see that? A.Yes, 

when he said that he wanted to talk to him as a 

friend. 

"Q. Stanley McMillian said that? A. Yes. 

"Q. And did you see how he sat down, was he pulled 

down'! A. He was pulled down. 

"Q. After he was pulled down beside Stanley McMillian, could you hear any more conversation that 

went on? A. He said, 'Let go1. He asked him to 

let go. 

"Q. Mr. Hatfield said that? A.. Yes. 

"Q. Did you see the defendant get up and try and 

get away several times? A. Once. 

I1Q. You saw him get up only once? A. I saw him 

only try to pull away once. 

"Q. And when he pulled away what did he do? A. He 

just said to sit down and tried to pull him back 

down in the booth. 

"Q. Was he pulling at the defendant's coat at that 

time? A. Yes, on the arm of his coat. 

11 Q. Was he being violent? A. No. 

"Q. Did it sound like he was threatening the 

defendant? A. No. 

"Q. Did you see them wrestle? A. No. I I 

~efendant's pretrial statement was, in part: 

"About 10:OO p.m., I started getting mad because 

Eva was not home and about 12:00 I took a .22 

revolver and loaded it with 8 rounds of high caliber 

magnum ammunition. After I loaded the gun, I put 

it in my righthand overcoat pocket and went out 

looking for Eva. * * 9: I walked into the Crystal, 

I saw Eva with McMillian and she waved at me. I 

went over and sat down beside her * * McMillian 

interrupted us while we were talking and said that 

he wanted me to sit on his side. I moved over and 

sat down beside McMillian Jc * 9~ he grabbed me. I 

told him to let go, which he did * 2k * McMillian 

grabbed me again and released me and the third time 

that he jerked me; I told him if you do that again, 

you'll be sorry. I pulled the revolver out of my 
pocket and shot him. I was not trying to hurt 

him, and I shot him until he was dead. I intended 

to kill him and put him out of his misery." 

At trial defendant testified in part: 

"A. * * I got up and started to go and he said, 

'Why don't you sit down over here with me and talk?' * 7k So I sat down over there and he started to 

grab ahold of my arm and coat and jerked me over 

toward him and not too roughly, but rough enough 

so he bothered up my coat, and my arm 9~ ik *. 

"Q. How did he jerk you over there, Mr. Hatfield? 

A. Well I would say that the first time that he 

just took ahold of my coat and sleeve and arm and 

pulled it. * * * the first time wasn't too mild. 

The second time was quite violent, and I would say 

much more than was necessary at all * * * I said, 

'I don't care for you. * * I doi't want to hear 

anything you have got to say at all. * 9: * There is 

nothing that you could possibly tell me that would 

interest me for five minutes. * * 9~ If you keep on 

bothering me you are going to be more than sorry', 

and the third time when he pulled me over to him 

why he got his arm around my neck sort of in a 

twisting ugly hold, you might call it, and jerked 

me over to him violently and well, you might call 

it roughhouse * * * and pulled me over to him very 

violently and very crudely and I was quite surprised. 

I said, 'Okay, that's the way you feel about it,' 

so I got up, unlatched my coat, took out my gun and 

shot him. I' 

We fail to see where the testimony at trial made a better 

case for self-defense than did the pretrial statements. Neither 

'1 revealed "violence" or an altercation" to the extent that Hatfield acted under the influence of a reasonable fear that someone 

was going to be murdered or seriously injured. There was no 

evidence from witnesses for the state that Hatfield did the killing 

in fear, nor did he himself testify that he acted under any fear 

of harm. 

In State v. Brooks, 150 Mont. 399, 410, 436 P.2d 91, this 

Court had the same issue before it. There we said: 

"Under Montana law if a homicide is to be justified 

by self-defense there must be evidence that the 

party killing acted under the influence of a reasonable fear that someone was going to be murdered or 

seriously injured. [Citing authorities] In this case 

there is no evidence whatever that the defendant acted 

under a reasonable apprehension of death or great 

bodily harm. The witnesses for the State gave no indication that the defendant did the killing in fear nor 

did the defendant himself claim that he acted under 

any fear of harm. 
I I Instructions must have relation to the facts 

given in a particular case. State v. Evans, 60 

Mont. 367, 199 P. 440. Although instructions may 

state a correct principle of law, if they are not 

based upon or in conformity with the issues or 

facts raised or supported by the evidence they 

ought not to be given. State v. Smith, 57 Mont. 

563, 190 P. 107; State v. Mitten, 36 Mont. 376, 

92 P. 969. In this case Judge McClernan was 

correct in refusing to instruct on self-defense. 11 

In State v. Eisenman, 155 Mont. 370, 374, 472 P.2d 857, the 

defendant did give notice of intention to rely on self-defense 

pursuant to section 95-1803(d), R.C.M. 1947. Defendant there 

offered several instructions on self-defense. The trial court 

refused them on the grounds that there was no evidence presented 

that supported such a theory. This Court affirmed the district 

court, saying: 

I' According to appellant's own version, she saw her 

husband waving a gun in their home and looking 

'goofy'. She testified that she tried to disarm 

him and in the ensuing scuffle and wrestling match, 

he was shot five times! At best she was claiming 

accidental shooting. She never claimed that she 

shot in defense of anything. There simply is no 

evidence supporting a self-defense theory. 11 

For the foregoing reasons we cannot agree with defendant's 

contention, After careful reading of the transcript and statements, 

we find the undisputed facts prove that defendant could not have 

availed himself of the defense of self-defense. 

Having found no issue of self-defense, the claim of unconstitutionality as to section 95-1803, R.C.M. 1947, is not before 

us. Ho~irever, for a discussion of this matter see: State ex rel. 

Sikora v. District Court, 154 Mont. 241, 462 P.2d 897; State v. 

Bentley, 155 Mont. 383, 472 P.2d 864; State ex rel. Krutzfeldt, 

Mon t . 9 -- P. 2d , 30 St.Rep. 993; Williams v. 

Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L ed 2d 446; Radford v. 

Stewart 320 F.Supp. 826 472 F.2d 161 Wardius v. Oregon, - U. S. 

-9 93 S.Ct. , 37 2 ed 2d 82 tI-973). 

The judgment of conviction is affirmed. 

Hon. Edward T. Dussault, District 

Judge, sitting for Justice John 

Conway Harrison. 
Justices.