                                      No. 12596

          I N T E SUPREME C U T O THE STATE O M N A A
               H           OR    F           F OTN

                                           1974



THE STATE O MONTANA,
           F

                              P l a i n t i f f and Respondent,

          -vs   -
W L A E L O D RHODES , J R
 AL C L Y                            .,
                              Defendant and Appellant.



Appeal from:        D i s t r i c t Court o f t h e S i x t e e n t h J u d i c i a l D i s t r i c t ,
                    Honorable A l f r e d B. Coate, Judge p r e s i d i n g .

Counsel of Record :

     F o r Appellant :

            Robert J . Campbell argued, Missoula , Montana

     For Respondent :

            Hon. Robert L. Woodahl, Attorney General, Helena,
             Montana
            Thomas J. Beers, A s s i s t a n t Attorney General, argued,
             Helena, Montana
            J. C. Weingartner, Deputy Attorney General, appeared,
             He Lena, Montana
            William F. Meisburger, County Attorney, argued, F o r s y t h ,
             Montana



                                                   Submitted:          A p r i l 23, 1974

                                                      ~ e c i d e d JUL
                                                                    :      19 1974
Filed :    JuL 1 9 1974
                                         No. 12597

          I N T E SUPRIWE COURT O T E STATE OF MONTANA
               H                 F H

                                           1974



THE STATE O MONTANA,
           F

                                 P l a i n t i f f and Respondent,

          -vs   -
JAMES M R U SHIELDS,
       ACS

                                 Defendant and Appellant.



Appeal from:           D i s t r i c t Court of t h e S i x t e e n t h J u d i c i a l D i s t r i c t ,
                       Honorable Alfred B. Coate, Judge p r e s i d i n g .

Counsel of Record:

     For Appellant :

                Robert J. Campbell argued, Missoula, Montana

     For Respondent :

                Hon. Robert L. Woodahl, Attorney General, Helena,
                 Montana
                Thomas J . Beers, A s s i s t a n t Attorney General, argued,
                 Helena, Montana
                J. C . Weingartner, Deputy Attorney General, Helena,
                 Montana
                William F. Meisburger, County Attorney, argued, Forsyth,
                 Montana



                                                        Submitted:         A p r i l 23, 1974

                                                           ~ e c i d e d ~jU1-1.9 19Pq
                                                                       :

Filed :   Jul,      1 9 1974
Mr. Justice Wesley Castles delivered the Opinion of the Court.

          This is an appeal from a judgment entered following a
jury verdict of guilty of first degree murder, kidnapping and
robbery.    The trial judge imposed a sentence of death on the
first degree murder count; a sentence of ten years on the kid-
napping count; and a sentence of ten years on the robbery count;
the latter two sentences to run consecutively.           The judgment was
the same for each of the two defendants, Shields and Rhodes, and
both cases are included in this opinion.
          On September 17, 1972, Donald K. Kalberg, age 48, a
resident of Hardin, Montana, left his home to drive his son to
Missoula to attend the University of Montana.           He left his son in
Missoula, but never arrived home.          At a lonely highway rest stop
about 21 miles east of Forsyth, Montana, the body of Don Kalberg
was found in a pool of blood.     He had been shot several times.
His car, credit cards, and wrist watch were gone.          Don Kalberg was
last seen alive in his car 21 miles west of the death scene while
purchasing gas in a service station in Forsyth.          The two defendants
were with him in his car at that time.
          The two defendants, Shields and Rhodes, had escaped from
jail in Mountain Home, Idaho, when they overpowered the sheriff
at 9:15 a.m. on September 17, 1972, taking with them two revolvers,
a .38 caliber S   &   W and a .357 S   &   W.   They also took a police officer
as hostage.    On that same day the two defendants took by force an
automobile belonging to Edward and Margaret Uffelman of Deyville,
Oregon.    The Uffelman automobile was found abandoned at a rest stop
at Columbus, Montana.     Don Kalberg's route of travel returning from
Missoula to his home in Hardin would ordinarily have been through
Columbus, where the Uffelman automobile was found abandoned.
          Don Kalberg's stolen automobile was f3und abandoned at a
rest stop at Emmons, Minnesota.        At that rest stop, defendants
S h i e l d s and Rhodes kidnapped one R u s s e l l B a t t o n and f o r c e d him

t o d r i v e them s o u t h .          Defendants were apprehended i n Memphis,

Tennessee.          A t t h e t i m e o f t h e i r a p p r e h e n s i o n , S h i e l d s and Rhodes

had t h e two s t o l e n r e v o l v e r s from Mountain Home, I d a h o i n t h e i r

possession.           They a l s o had t h e w r i s t watch, c r e d i t c a r d s and o t h e r

p e r s o n a l p r o p e r t y b e l o n g i n g t o Don Kalberg.         The l a t e n t f i n g e r -

p r i n t s o f S h i e l d s and Rhodes were found i n K a l b e r g ' s a u t o m o b i l e

a t Ernrnons, Minnesota.                The f i v e b u l l e t s t a k e n from t h e body o f

Don Kalberg had been d i s c h a r g e d from t h e . 3 8 S                   &   W stolen in

Mountain Home, Idaho and found i n t h e p o s s e s s i o n o f t h e two de-

f e n d a n t s i n Memphis.

             S h i e l d s and Rhodes were c h a r g e d i n f e d e r a l c o u r t w i t h

kidnapping i n r e s p e c t t o t h e i r abduction of hostage Batton, they

p l e a d g u i l t y and were e a c h s e n t e n c e d t o 10 y e a r s .

             S h i e l d s and Rhodes had e a c h been c o n v i c t e d of f e l o n i e s

p r e v i o u s l y ; S h i e l d s o f b u r g l a r y and Rhodes of m a n s l a u g h t e r .        The
e v i d e n c e i n t h i s c a s e i s c l e a r , c o n v i n c i n g and beyond any d o u b t

o f a s e r i e s of c r i m e s and of a v i c i o u s , wanton, cold-blooded murder
of Don Kalberg.

             The d i s t r i c t c o u r t i n pronouncing judgment s t a t e d :

              "Court:        For t h e p u r p o s e s of t h e r e c o r d and b e f o r e t h e

pronouncement of s e n t e n c e t h e c o u r t now f i n d s t h a t b o t h d e f e n d -
a n t s were b r o u g h t t o Montana f o r t r i a l and under t h e I n t e r s t a t e

D e t a i n e r A c t by s u c h a c t t r i a l must be had w i t h i n 120 d a y s o r t h e

I n f o r m a t i o n and c h a r g e s must be d i s m i s s e d .      The d e f e n d a n t s were

b r o u g h t t o t h i s c o u r t on t h e 2nd day of March, r e q u e s t e d c o u n s e l ,
c o u n s e l was a p p o i n t e d .    Both d e f e n d a n t s r e q u e s t e d t h a t t h e y be
given a p s y c h i a t r i c examination.               The c o u r t e x p l a i n e d t o b o t h
d e f e n d a n t s t h a t t h e 45 d a y s f o r t h a t e x a m i n a t i o n would be added
t o t h e 120 d a y s , t h e r e f o r e making a t o t a l t i m e o f 165 d a y s .                 The

t r i a l was had, a v e r d i c t r e t u r n e d and t h i s i s t h e 211th d a y , w i t h
15 days remaining.    The court further finds that at the request
of the defendants this court excluded certain items of evidence
in an attempt by the court to keep the jury from being inflamed.
The jury verdict is guilty on all three counts.     The court has
reviewed U. S. Supreme Court decision of Furman vs. Georgia and
it appears to the court that any capital punishment is unconsti-
tutional if that capital punishment is based upon race, religion,
wealth, social position, class.    Further, that such punishment
must be acceptable to society and further the punishment must not
be excessive.    Both defendants this court finds are white.   Both
defendants are Protestant although neither practices his religion.
Both defendants are destitute, however, knowledge of economics
ability was not permitted to go to the jury.    Both defendants are
unemployed laborers.    Such knowledge was not permitted to go to
the jury.    Both defendants have normal I. Q.'s.   This knowledge
was not permitted to go to the jury.    Both defendants were found
to have been sane.    Defendant Shields was twice so found by the
State of Idaho and the State of Montana.     The people of this State
at an election held on June 6, 1972, overwhelmingly voted for the
death penalty.    Both defendants have been found guilty or have
entered pleas of guilty to prior criminal charges.    Defendant
Rhodes, involuntary manslaughter, defendant Shields, burglary.
Both defendants have entered a plea of guilty to the crime of
Kidnapping, subsequent to the crime herein charged.    The defend-
ants will please stand and face the court.    To the crime of Murder
in the First Degree I find you guilty.     I find the verdict just.
I have denied a motion for a new trial.     I sentence you to be
remanded to the custody of the Sheriff and to be executed accord-
ing to the laws of this State on or before the 13th day of Septem-
ber, 1973.    To the crime of Kidnapping the maximum punishment is
10 years.    I sentence you to 10 years for that crime.   To the
c r i m e of Robbery I s e n t e n c e you t o LO y e a r s f o r t h a t c r i m e .                   The
s e n t e n c e s a r e t o r u n c o n s e c u t i v e l y and n o t c o n c u r r e n t l y .   The

County A t t o r n e y w i l l p r e p a r e t h e s e n t e n c e .       When t h e s e n t e n c e

i s prepared t h e c o u r t w i l l s i g n it.              Any o t h e r m a t t e r s t o come
before the court?"

             The a p p e a l i s b r o u g h t i n b o t h c a s e s by a s i n g l e c o u n s e l ,
d i f f e r e n t from t h e s e p a r a t e t r i a l c o u n s e l .     Two i s s u e s a r e p r e -
sented f o r review.

             1.     Whether o r n o t d e f e n d a n t s were d e n i e d fundamental due

p r o c e s s under t h e Montana o r United S t a t e s C o n s t i t u t i o n when t h e

d i s t r i c t c o u r t d e n i e d t h e i r motion f o r a m i s t r i a l d u r i n g t h e v o i r

d i r e examination of prospective j u r o r s .

             2.     Whether o r n o t d i s c r e t i o n a r y d e a t h s e n t e n c e s imposed

p u r s u a n t t o s e c t i o n 94-2505,       R.C.M.      1947, a r e u n c o n s t i t u t i o n a l

under t h e r u l e of Furman v . G e o r g i a , 408 U.S.                    238, 33 L ed 2d 346,
92 S.Ct.       2726, a s t h e United S t a t e s Supreme Court i n t e r p r e t e d t h e

E i g h t h Amendment t o t h e United S t a t e s C o n s t i t u t i o n .

             As t o the f i r s t issue:              a p p e l l a n t s contend t h a t a prospec-

t i v e j u r o r , F l o r e n c e F i s h e r , had p r e v i o u s l y d i s c u s s e d t h e c a s e

w i t h t h e c o u n t y s h e r i f f and made some remarks d u r i n g v o i r d i r e

e x a m i n a t i o n t o t h e e f f e c t t h a t a s a r e s u l t of t h e f a c t s g i v e n t o

h e r by t h e s h e r i f f s h e was convinced t h e a c c u s e d men were g u i l t y .

These a l l e g e d remarks were made b e f o r e t h e e n t i r e j u r y p a n e l a n d ,

i t i s contended, s e v e r e l y p r e j u d i c e d t h e c a s e .           An immediate motion
f o r m i s t r i a l was made a t t h e s u g g e s t i o n of t h e t r i a l judge who

d e n i e d it and t h e t r i a l c o n t i n u e d .
             The a l l e g e d remarks were n o t t r a n s c r i b e d .             But, t h e t r a n -

s c r i p t d o e s r e v e a l t h e exchange between C o u r t and c o u n s e l o u t of
t h e p r e s e n c e of t h e j u r y .     T h i s exchange shows t h a t t h e t r i a l judge

c a r e f u l l y considered t h e matter.                I n t h e c l o s e d h e a r i n g , o u t of
t h e p r e s e n c e of t h e j u r y , M r s . F i s h e r s t a t e d s h e had d i s c u s s e d t h e
case with the sheriff at a time prior to when she was a pros-
pective juror in the case.     She stated the sheriff showed her
some photographs and discussed some of the facts concerning the
crime.   Mrs. Fisher was challenged and did not sit on the jury.
         Appellants' counsel goes to some length to reason that a
small Montana community is susceptible to high emotions and such
a remark on voir dire would prejudice the entire jury.     This is
not a sufficient showing of prejudice.     See State v. Lane, 161
Mont. 369   ,   506 P.2d 446, 30 St. Rep. 229; State v. Gallagher,
151 Mont. 501, 445 P.2d 45.
         We find no error on the first issue.
         The second issue raises squarely under the Eighth and
Fourteenth Amendments to the United States Constitution the con-
stitutionality of the death penalty as provided in section 94-2505,
R.C.M. 1947, which provides in pertinent part:
         "Every person guilty of murder in the first
         degree shall suffer death, or shall, in the
         discretion * * * of the court * * * be imprison-
         ed in the state prison for the term of his natural
         life * * * I
                   .'
         Until January 1, 1968, the jury had sentencing discretion.
However in 1967, the legislature enacted into law the Criminal
Procedure Act which in section 95-2212 provided that all sentences
"shall be imposed exclusively by the judge of the court."
         The language of section 94-2505, R.C.M. 1947, is clearly
discretional and this Court so held in State v. Palen, 120 Mont.
434, 186 P.2d 223.
         Appellants contend that the United States Supreme Court
decision in Furman v. Georgia, 408 U.S. 238, 33 L ed 2d 346, 92
S.Ct. 2726, invalidates section 94-2505, R.C.M. 1947, as to the
death penalty in Montana as being unconstitutional in violation of
the Eighth and Fourteenth Amendments.     The per curiam decision of
the United States Supreme Court was entered in three cases, Furman
v . G e o r g i a , Jackson v . G e o r g i a , and Branch v. Texas, a l l a t 408

U.S.     238, 33 L ed 2d 346, 92 S.Ct.                      2726, r e h e a r i n g d e n i e d , 4 0 9 U.S.

902, 34 L ed 2d 163, 93 S.Ct.                      89, and s t a t e d :        "The judgment i n
e a c h c a s e i s t h e r e f o r e r e v e r s e d i n s o f a r a s it l e a v e s u n d i s t u r b e d

t h e d e a t h s e n t e n c e imposed, and t h e c a s e s a r e remanded f o r f u r t h e r

proceedings."

             A s r e v e a l e d by t h e p r e v i o u s q u o t e d s t a t e m e n t of t h e t r i a l

judge h e r e i n pronouncing s e n t e n c e , t h e t r i a l judge i n t e r p r e t e d
Furman a s f o r b i d d i n g t h e d e a t h p e n a l t y o n l y where " c a p i t a l p u n i s h -

ment i s based upon r a c e , r e l i g i o n , w e a l t h , s o c i a l p o s i t i o n , c l a s s "
and where t h e d e a t h p e n a l t y i s n o t " a c c e p t a b l e t o s o c i e t y and               * * *
is excessive.         'I



             T h i s view of Furman i s e r r o n e o u s .              Furman i n v a l i d a t e s

d e a t h s e n t e n c e s imposed under s t a t u t e s s u c h a s o u r s e c t i o n 94-2505

n o t b e c a u s e o f r a c e o r economic s t a t u s b u t b e c a u s e o f t h e u n f e t t e r e d

d i s c r e t i o n lodged i n t h e judge.

             W do n o t i n t e n d t o f u l l y a n a l y z e t h e Furman d e c i s i o n , and
              e

t h e many c a s e s i n o t h e r j u r i s d i c t i o n s .      W s h a l l only b r i e f l y dis-
                                                                     e

c u s s Furman.

             Furman h o l d s u n c o n s t i t u t i o n a l e v e r y d e a t h s e n t e n c e imposed

p u r s u a n t t o a s t a t u t o r y scheme t h a t a l l o w s t h e s e n t e n c e r d i s c r e t i o n
whether o r n o t t o impose t h e d e a t h p e n a l t y upon c o n v i c t i o n .                   This

i s p l a i n f o r several reasons.

             F i r s t , t h e Furman o p i n i o n s t h e m s e l v e s a r e e x p l i c i t on t h e

point.       Although t h e f i v e s e p a r a t e o p i n i o n s w r i t t e n by t h e m a j o r i t y
d i f f e r i n scope ( f o r example, on t h e q u e s t i o n whether t h e c o n s t i -
t u t i o n a l i t y o f mandatory d e a t h p e n a l t i e s o u g h t t o be d e c i d e d o r
r e s e r v e d ) , a l l f i v e j u s t i c e s p l a i n l y , u n c o n t r o v e r t i b l y and un-

mistakably agree t h a t d i s c r e t i o n a r y death p e n a l t i e s a r e unconsti-
tutional.

             Second, Furman was e x p l a i n e d and a p p l i e d by a unanimous
c o u r t i n Moore v. I l l i n o i s , 408 U.S.              786, 33 L ed 2d 706, 716,
92 S.Ct. 2562.      In Moore, Mr. Justice Blackmun wrote for nine
justices when he concluded that "the Court today has ruled that
the imposition of the death penalty under statutes such         those
of Illinois is violative of the Eighth and Fourteenth Amendments,
                       * * *
Furman v. Georgia./ The sentence of death    * * *   may not now be
imposed. "
        Third, the Moore opinion merely states explicitly what
an inspection of the court's June 29, 1972, order list establishes
beyond peradventure.     For the court on that day, simultaneously
with Furman and upon its authority, summarily vacated death sen-
tences in 117 other capital cases, involving numerous differing
death penalty statutes from 26 states.     The court thus broadly
overturned the death sentences in each and every case of discre-
tionary capital punishment before it--whether death sentencing was
dependent upon the discretion of judge or jury, and without regard
to the form of the statutes conferring such discretion.      The court
vacated death sentences where a defendant had been sentenced to
death by a jury which had a choice between death and prison con-
finement.    See:   Jackson v. Alabama, 408 U.S. 938, 33 L ed 2d 757,
92 S.Ct. 2866; Morales v. Texas, 408 U.S. 938, 33 L ed 2d 758,
92 S.Ct. 2868; where the death penalty was mandatory unless the
jury recommended mercy, Johnson v. Florida, 408 U.S. 939, 33 L ed 2d
762, 92 S.Ct. 2875; Eaton v. Ohio, 408 U.S. 935, 33 L ed 2d 750,
92 S.Ct. 2857, where the sentence was life unless the jury recommended
death, Canaday v. Washington, 408 U.S. 940, 33 L ed 2d 764, 92 S.Ct.
2878; where the defendant was sentenced to death by a judge follow-
ing a plea of guilty, Alvarez v. Nebraska, 408 U.S. 937, 33 L ed 2d
756, 92 S.Ct. 2865; Fesmire v. Oklahoma, 408 U.S. 935, 33 L ed 2d
749, 92 S.Ct. 2855; the defendant waived jury trial and was tried
and sentenced by a judge, Delgado v. Connecticut, 408 U.S. 940, 33
L ed 2d 764, 92 S.Ct. 2879; Miller v. Maryland, 408 U.S. 934, 33
L ed 2d 747, 92 S.Ct. 2851; where the jury could make a binding
recommendation of death, but where a recommendation of mercy could
be overridden by a j'udge, Seeney v. Delaware, 408 U.S. 939, 33 L
ed 2d 760, 92 S.Ct. 2871; Kelbach v. Utah, 408 U.S. 935, 33 L ed 2d
751, 92 S.Ct. 2858; and where the jury could make a binding recom-
mendation of mercy, but where a recommendation of death could be
overridden by a judge, Hurst v. Illinois, 408 U.S. 935, 33 L ed 2d
749, 92 S.Ct. 2854; Strong v. Maryland, 408 U.S. 939, 33 L ed 2d
760, 92 S. Ct. 2872; Gilmore v. Maryland, 408 U.S. 940, 33 L ed 2d
763, 92 S.Ct. 2876.   And the court has continued to vacate death
sentences whenever capital punishment is imposed at the discretion
of the sentencer.   See e.g., Jackson v. Georgia, supra.    Cf.
Pennsylvania v. Brown, 411 U.S. 917, 36 L ed 2d 308, 93 S.Ct. 1547;
New York v. Fitzpatrick, 42 U.S. L.W. 3291 (Nov. 13, 1973).
        Fourth, both the majority and the minority opinions in
Furman recognize that the rule of that case overturning discretionary
capital punishment provisions is not limited to the statutes of the
26 states that happened to be before the court on June 29, 1972.
        Fifth, the Furman decision has been widely and uniformly
applied to invalidate death sentences in the lower federal courts,
state trial courts, and state appellate courts.     Every one of these
federal and state decisions applies Furman without regard to whether
the death penalty was imposed by a jury, by a judge, or by joint
action of the two, and without regard to the form of the statutory
authorization of death-sentencing discretion involved. All of the
decisions reach basically the same conclusion:      "the United States
Supreme Court in Furman v. Georgia   * * *   has held that the carry-
ing out of a death penalty imposed at the discretion of the trier
of facts constitutes 'cruel and unusual punishment' in violation
of the Eighth and Fourteenth Amendments to the United States Con-
stitution."   State v. Leigh, 31 Ohio St. 2d 97, 285 N.E.2d 333,
334.   In Bartholomey v. State, 267 Md. 175, 297 A.2d 696, 701,
for example, the Court of Appeals of Maryland rejected the Attorney
General's position that the Maryland statute could escape the rule
of Furman, saying:
        "We entertain not the slightest doubt that the
        imposition of the death sentence under any of the
        presently existing discretionary statutes of Mary-
        land which authorize, but do not require, that
        penalty is unconstitutional under Furman as violative
        of the Eighth and Fourteenth Amendments to the fed-
        eral constitution. In other words, we think the
        net result of the holding in Furman is that the death
        penalty is unconstitutional when its imposition is
        not mandatory. See,     s., State v . Martineau,N.H.,
        293 A.2d 766 (1972); State v. Leigh, 31 Ohio St. 2d
        97, 285 N.E.2d 333 (1972); Commonwealth v. Bradley,
        Pa., 295 A.2d 842 (1972). Adams v. State, Ind., 284
        N.E.2d 757 (1972); State v. Dickerson, Del. (1972);
        Adderly v. Wainwright, F.R.D. (M.D. Fla. 1972);
        Johnson v. Warden, Md.App., 295 A.2d 820 (Post Con-
        viction) September Term, 1972 (filed October 24, 1972).
        That Furman invalidates - death penalties imposed
                                all
        pursuant to discretionary statutes is so, without
    ,   regard to the nature of the offense, the particular
        circumstances under which the crime was committed,
        or the particular procedure followed in imposing the
        death sentence. Indeed, included among the 120 cases
        which the Supreme Court remanded for further proceed-
        ings in light of Furman were cases involving murders
        of law enforcement officers (as in Bartholomey), mass
        killings, and aggravated rapes."
        It is true that no Montana cases involving a defendant
sentenced to death were pending before the Supreme Court of the
United States at the time of Furman.   But the court's disposition
of cases involving statutes similar to Montana's clearly controls
the issue of the constitutionality of the death sentences imposed
upon appellants in this case.
        The trial court theorized that Furman was inapplicable
to these appellants because they were white, Protestant, and of
average intelligence. However, nothing in the Furman decision
or in the cases disposed of with or after Furman indicates that
the particular circumstances of individual cases or defendants
are relevant to the Eighth Amendment invalidity of a death sen-
tence imposed under a statute providing for discretionary capital
punishment.   To the contrary, both majority and dissenting justices
in Furman emphasized that the court's ruling was not premised on
an evidentiary record which demonstrated a pattern of racial or
economic or.religious discrimination.   In Furman, Mr. Justice
Stewart noted that "racial discrimination [in the imposition of
capital punishment] has not been proved1' (408 U.S. at 310) I and
pointed out that the court had rejected "claims under the Due
Process and Equal Protection Clauses of the Fourteenth Amentment"
in McGautha v. California, 402 U.S. 183, 28 L ed 2d 711, 91 S.Ct.
1454 (408 U.S. at 310 n. 12.)   Mr. Chief Justice Burger, dissent-
ing, emphasized that "any equal protection claim is totally
distinct from the Eighth Amendment question, to which our grant
of certiorari was limited in these cases."   (408 U.S. at 390 n.


        Some of the majority justices did comment upon apparent
racial discrimination in capital sentencing patterns, but their
primary emphasis was on the infrequent, arbitrary, and unpredict-
able nature of discretionary capital punishment.   It was the
freakish rarity of the death penalty, making it "discriminatory"
when applied to either blacks or whites, rich or poor, that vio-
lated Eighth Amendment standards.   See 408 U.S. at 251 (Douglas
J. concurring); 408 U.S. at 293 (Brennan J. concurring); 408 U.S.
at 309-310 (Stewart J. concurring); 408 U.S. at 313 (White J.
concurring); 408 U.S. at 356 (Marshal1 J. concurring).   Mr.
Justice White commented that:
        " * * * I can do no more than state a conclusion
        based on 10 years of almost daily exposure to
        the facts and circumstances of hundreds and
        hundreds of federal and state criminal cases
        involving crimes for which death is the author-
        ized penalty. That conclusion * * * is that
        the death penalty is exacted with great infre-
        quency even for the most atrocious crimes and
        that there is no meaningful basis for distinguish-
        ing the few cases in which it is imposed from the
        many cases in which it is not."
        This Court must follow the law of the land.   We have no

choice but to declare the judgment of death under section 94-2505
    R.C.M. 1947, unconstitutional and thus the judgment of death
    invalid.              The United States Constitution, as the United States
    Supreme Court interpreted it, gives us no latitude.
                      Heretofore we quoted the trial judge on the overwhelming
    vote of the people of Montana to retain the death penalty.                Sub-
    sequently the Legislature enacted into law a mandatory death
    penalty.              We emphasize here that this holding does not in any
    way purport to rule on the validity of the new statute, passed
    as Sec. 2, Chapter 262, Laws of 1974 (section 94-5-105, R.C.M.
    1947 as amended).
                      The judgments of conviction are affirmed, but the sen-
    tences of death are reversed.             Because the two defendants are
    now serving time in federal prison, and by authority of section
    95-2404, R.C.M. 1947, this Court modifies the judgments by imposing
    sentences on each of the defendants of imprisonment in the Montana
    State Prison for the term of his natural life.                 This opinion shall
    constitute such              judgments and verified copies shall be filed in
    the district court of Rosebud County.

                                                         I

                                                 "   t

                                                             .; Justice

    We concur:
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         Chief Justice




         Justices
