No. 12468 INTHE 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

# -71973 Filed:

# DEc

# -7

## 1973

I ClerkHon. Edward T. Dussault, District Judge, sitting forMr. 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 inthe district court of the thirteenth judicial district, county of Yellowstone. He was sentenced to lifeimprisonment. From this conviction, he appeals. Hatfield, a 

### 68 year old college graduate, in the last few years had assistedhis 53 year old wife, Eva, inthe operation of a cafe inBillings. In the late afternoon of April 

### 8, 1972, an acquaintance, Stanley McMillian, age 45, came to the cafe for a cup of coffee,

ashe had done many times previously. Atabout 5:30 p.m. the cafewas 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 tocheck 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 assisthim in finding his girlfriend, Caroline, and that shewould be home early. Hatfield did go to theirhome but found the son absent. He stayed athome, did some reading, watched 

### TV, then fellasleep. Atabout 10:OO p.m. he was awakened by a telephone call from

one of theirwaitresses, inquiring whether she should come to

1 work thenext day. Hatfield then dozed off again and laterwas 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 hiswife was not home, he dressed, put on his overcoat and hat and put a .22 caliber revolver inhis overcoat pocket.In search of hiswife and McMillian, Hatfield went to severalbars, had one drink on the way, then went to the Crystal Lounge, enteringby the back entrance, arriving there about mid-night. 

### Hiswife was sittingwith McMillian ina booth. She noticed Hatfield and waved tohim to come over. Hatfieldwent to thebooth and satnext tohis wife, facingMcMillian. Harsh words were had between Hatfikld and hiswife about her not coming home and running around with Millian. There was talk of a divorce. McMillian asked Hatfield to come sitbeside him, as he wanted to talk tohim 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 callhim several times that evening. In doing so, McMillian grabbed 

### h at field's arm and said: 

## "sit down, I want to talk toyou as a friend". To which Hatfield replied, "YOU areno friend of mine, you son-of-a-bitch, you are with my wife." After several attempts to get Hatfield toremain seated and after tugging on his overcoat tothe extent it partly

came off his left shoulder, Hatfield stood up atthe end of the booth table, took the pistol from his pocket and fired five shots, two hitMcMillian 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, statinghe "intended tokillhim and put him out of his misery. 'I A witness inthe booth next to thatwhere the crime occurred testified he heard Hatfield statehe meant tokillMcMillian. Defendant urges that during the course of the trial testimony revealed certain factswhich gave rise to the possible presence of the defense of self-defense. He states the possible existence of self-defense was not atallapparent during the course of the pretrial investigation. Accordingly, atthe 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 trialcourt 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 incertain factual situations, particularly those in this case. Defendant contends the pretrial statements of several witnesses did not contain sufficient facts to show the alleged

IIviolence" 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 inpart: "Wayne Hysjulien and1met Wally Anderson atthe 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 letme go'. 

# **

# * I could see that something was going on, likewrestling. 

# * Jx

# * I alsoheard him say [McMillian] to Hatfield 1why don't you shut up, sit down and letme talk toyou as a friend' 

# ** *.I' At trial, Mr. Kuchera testified inpart: 

### "Q. And when they were having this conversation was the defendant, Mr. Hatfield, sittingbeside Mr. McMillian7 A. Yes, ma'am. "Q. Did you see them wrestling? A. Never. "Q. Did you seeMr. McMillian jerking the defendant? A. I don't think I couldclassify it as a jerking motion.

II

### Q. Well, can you tell the Jurywhat you did see, how it happened? A. I-- As I said, I didn't make myself 

### a spectacle to turn around and stare atthe 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 totalk toyou.' 

### "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.

# xThe statement given by witness Walter Anderson was, in part:

I' We satina booth next toa 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 toldwas Eva Hatfield. I could not see the man that was sittingacross from Eva verywell, 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 thebooth 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 tobe trouble. l I Anderson's testimony attrialwas, inpart: "Q. Now what kind of trouble were you speaking about when you told the barmaid that there is going tobe trouble? A. Well, I just thought that therewas going tobe a fight or something, I just didn't know what was going totake place. 

### "Q. When you say fight, do you mean a fistfight? A. Well, some trouble, yes. "Q. So what you observed inyour own mind you were concerned because there might be physical violence in the booth next toyou. A. Yes, 

### sir.II The statement given by witness Wayne Hysjulien was, inpart:

11

When this man firstcame in, I could tellthat 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 thebooth. Then this other man saidyou 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 seewhat was going on and I saw this

. man shoot three times but I don't have any idea where the three shots went. II ~ysjulien's testimony attrialwas: "Q. Did you observe orhear the defendant's tone of voice that night? A. Yes, itwas 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/%hathe was a gentleman and he kept hishands off of other women. Also, let's see. That he wanted a divorce the next day or was to get one.IIQ. Was he sittingright beside Eva Hatfield atthat time? A. Yes. 

### "Q. Did the man that got shot, StanleyMcMillian, did he say anything that you could hear? A,. Only the confirmation of her saying that she had called him.

"Q. Atwhat point did the defendant stand up and 

### sitdown beside the victim, did you see that? A.Yes, when he said that he wanted to talk tohim as a friend. "Q. StanleyMcMillian said that? A. Yes. "Q. And did you seehow 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 letgo. "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 thebooth. "Q. Was he pulling atthe defendant's coat atthat time? A. Yes, on the arm of his coat.

11

Q. Was he being violent? A. No. "Q. Did it sound likehe was threatening the defendant? A. No. "Q. Did you see them wrestle? A. No. II ~efendant's pretrial statement 

### was, inpart: "About 10:OO p.m., I started gettingmad because Eva was not home and about 12:00 I took 

### a .22 revolver and loaded itwith 

### 8 rounds of high caliber magnum ammunition. After I loaded the gun, I put it inmy righthand overcoat pocket and went out looking for Eva. 

# ** 9: I walked into the Crystal, I saw Eva with McMillian and she waved atme. 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 letgo, which he did

# * 2k

# * McMillian grabbed me again and released me and the third time that hejerked me; I told him ifyou do that again, you'll be sorry. I pulled the revolver out of mypocket and shot him. I was not trying tohurt him, and I shot him untilhe was dead. I intended tokillhim and put him out of hismisery." At trialdefendant testified inpart: "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 

### armand pulled it.

# *** the first time wasn't too mild. The second time was quite violent, and I would say much more than was necessary atall

# *** I said, 'I don't care foryou. 

# ** I doi't want tohear anything you have got to say atall.

# * 9: 

# * There 

### is nothing that you could possibly tellme that would interest me for fiveminutes. 

# ** 9~ If you keep on bothering me you are going tobe more than sorry', and the third time when he pulled me over tohim why he got his arm around my neck sort of ina twisting ugly hold, you might call it, and jerked me over tohim violently and well, you might call it roughhouse

# **

# * and pulled me over tohim very violently and very crudely and 

### I was quite surprised. I said, 'Okay, that's the way you feelabout it,' so I got up, unlatched my coat, took out my gun and shot him. I' We failto seewhere the testimony attrialmade a better

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

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

was going tobe 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 issuebefore it. There we said: "Under Montana law if a homicide is tobe justified by self-defense there must be evidence that the party killing acted under the influence of a reasonable fear that someone was going tobe murdered or seriously injured. [Citing authorities] In this case there isno evidence whatever that the defendant acted under a reasonable apprehension of death or great bodily harm. The witnesses for the Stategave no indication that the defendant did the killinginfearnor did the defendant himself claim that he acted under any fear of harm.IIInstructions must have relation to the facts given in a particular case. Statev. Evans, 60 Mont. 367, 199 P. 440. Although instructions may state a correct principle of law, if they arenot based upon or inconformity with the issues or facts raised or supported by the evidence they ought not tobe given. Statev. Smith, 57 Mont. 563, 190 P. 107; Statev. Mitten, 36 Mont. 376, 92 P. 969. In this case Judge McClernan was correct inrefusing 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 trialcourt 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 todisarm him and in the ensuing scuffle and wrestling match, he was shot five times! Atbest shewas claiming accidental shooting. She never claimed that she shot indefense of anything. There simply isno evidence supporting a self-defense theory. 11 For the foregoing reasons we cannot agree with defendant's contention, After carefulreading 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, 

### isnot before

us. Ho~irever,for a discussion of this matter see: Stateexrel. Sikora v. District Court, 154 Mont. 241, 462 P.2d 897; Statev. Bentley, 155 Mont. 383, 472 P.2d 864; State ex rel. Krutzfeldt, Mont

# . 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 

## 2ed 2d 82 

### tI-973). The judgment of conviction is affirmed.

Hon. Edward T. Dussault, District Judge,sitting for Justice John Conway Harrison.

### Justices.