MR. JUSTICE ANGSTMAN
delivered the opinion of the Court.
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 “premeditatedly murdered — shot in the back, without warn
ing, 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 reeord 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 Pac. 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 ox the witness, as was the case here.” To the same effect is Lewis v. Bowman, 113 Mont. 68, 75, 121 Pac. (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 ease 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 sense. People v. Noll, 20 Cal. 164; 24 C. J. S., “Criminal Law,” see. 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 evidehce before it. ¥e 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.
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MR. JUSTICE ANGSTMAN
delivered the opinion of the Court.
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 “premeditatedly murdered — shot in the back, without warn
ing, 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 reeord 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 Pac. 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 ox the witness, as was the case here.” To the same effect is Lewis v. Bowman, 113 Mont. 68, 75, 121 Pac. (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 ease 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 sense. People v. Noll, 20 Cal. 164; 24 C. J. S., “Criminal Law,” see. 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 evidehce before it. ¥e 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. * * *
£IQ. 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 drinking; that he first took three drinks out of a bottle of whiskey which he had at the restaurant operated by himself and his wife; that- thereafter on the evening of July 2nd he went to the Jordan Bar and there had a number of drinks. He said the bartender was a man whom he always thought of as Thompson and he said
there was another man at the Jordan Bar who drank with him. a man who ran the Farmers’ Union Market but whose name he did not remember. He did not remember how many drinks he had while at the Jordan Bar. He was there for a couple of hours or maybe longer and while there “drank steady.”
He testified that in addition to the manager of the Farmers’ Union Market, the latter’s brother-in-law and another person were at the Jordan Bar, and they bought some drinks, apparently for the group. When asked whether during the course of the last year he made it a practice to drink extensively, he said: “I never did drink much. I would drink once in a great while — not because I liked it.”
The state’s witness Harriet Palen, a daughter of the defendant, testified that when her father came to the house on the morning of the homicide, “he was drunk.”
Mrs. Palen saw defendant at the cafe around 4:30 p. m. on the evening preceding the morning of the shooting. She said that there was no quarreling between them at the time but that she thought he was not sane and rational at that time.
The son saw defendant at about 9 :30 p. m. of the evening preceding the shooting and said he didn’t appear the same— that his eyes were bloodshot, although defendant himself said he did not remember seeing his son at that time.
Mr. Goodale, who roomed at the Palen home, said he ate lunch with defendant around 1:30 p. m. on the afternoon of July 2nd and he seemed the same then as usual; that he was awakened by the defendant’s son and daughter on the morning of July 3rd and between 2:30 and 3:00 a. m. and walked with defendant to the Northern Pacific depot and the only thing said by defendant during the trip was that “he believed he was dead.”
Defendant contends that the court did not consider his evidence of intoxication which he asserts warrants the imposition of a sentence less severe than the death penalty. Our statute dealing with intoxication provides as follows: “No act committed by a person while in a state of voluntary intoxication
is less criminal by his being in said condition. But, whenever the actual existence of any particular purpose, motive, or intent, is a necessary element to constitute any particular species or degree of crime, the jury may take into consideration the fact that the accused was intoxicated at the time, in determining the purpose, motive or intent with which he committed the act.” Par. 1, sec. 10728, Rev. Codes of 1935.
It is well settled that intoxication on the part of the accused in a prosecution for homicide should be taken into consideration, “not for the purpose of excusing or mitigating the killing, but 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 of-fence.” 26 Am. Jur., Homicide, sec. 118, p. 235. And the clear weight of modern authority is to the effect that if a person who is charged with murder in the first degree was intoxicated when the offense was committed to such an extent as to render him incapable of entertaining the purpose, intent or malice requisite for first degree murder, the crime is reduced to second degree murder. See 13 Rul. Cas. Law, sec. 18, p. 717 et seq.
Deliberation and premeditation added to the unlawful killing with malice aforethought constitutes murder in the first degree. State v. Fisher, 23 Mont. 540, 59 Pac. 919; State v. Cates, 97 Mont. 173, 33 Pac. (2d) 578. And “the purpose to kill may be formed the moment before it is executed as well as for an hour or a day, and still the act be premeditated.” Id., and see People v. Bellon, 180 Cal. 706, 182 Pac. 420.
But as above noted, one who is intoxicated to the extent of being deprived of mental capacity to deliberate or premeditate cannot be guilty of murder in the first degree unless he formed the purpose to' kill before becoming intoxicated.
The record fails to disclose any motive on the part of the defendant for the killing of Frank Cavanagh. There is no motive shown for his stated purpose to kill his wife. The lack of any such motive, it seems to us, tends somewhat to cor
robórate defendant’s testimony that he was so far under the influence of intoxicating liquors at the time of the homicide that he did not realize what he was doing. His evidence was to the effect that he did not remember anything that happened, relating to the shooting. The court of course was not obliged to believe his testimony (State v. Jochim, 55 N.
D.
313, 213 N. W. 484) except in so far as it was corroborated by other credible evidence or by facts and circumstances. As above noted there are some circumstances and some direct evidence tending to corroborate his testimony that he was intoxicated at the time of the shooting. On the other hand, some facts and circumstances' tend to refute his claim that he was so far intoxicated as not to know or understand what he was doing at the time of the shooting. Persons claimed to have been drinking with defendant were not called as witnesses.
‘ We think under the circumstances of this case the trial court should hear additional evidence on the point of the extent of the drinking done by the defendant on the evening in question and the degree of his intoxication. If the defendant drank as extensively as he says he did it seems to us he should be able to furnish some corroboration of his testimony, either through the manager of the Farmers’ Union Market, the latter’s brother-in-law, or the bartender who served the drinks, or others present. Likewise it seems to us, further evidence ought to be within the power of the parties to produce, bearing upon the extent of his intoxication at the time of the shooting. The daughter who was called by the state as a witness said the defendant was drunk when he came to. the house but she was not asked to relate the facts upon which she based her opinion nor did she give any information on the subject from which the court could reach a decision as to the extent of intoxication or whether the drinking was sufficient to dethrone the reason.
While we do not hold the trial court committed reversible error, yet we have some doubt on the question of the extent of defendant’s intoxication at the time of the homicide and we
think, in view of the gravity of the offense involved and the seriousness of the question so far as the defendant is concerned, full justice can be done to the defendant and to the state by remanding the cause to the district court for the purpose of hearing further evidence on the issue of the defendant’s mental condition at .the time of the homicide, produced by alleged intoxication.
It is so- ordered.
Mr. Chief Justice Adair and Associate Justices Choate and Cheadle concur.