Abshier v. People, 12558.

• Decision Date: 09 June 1930
• Docket Number: 12558.
• Citation: 289 P. 1081,87 Colo. 507
• Parties: ABSHIER v. PEOPLE.
• Court: Colorado Supreme Court

289 P. 1081

87 Colo. 507

ABSHIER v. PEOPLE.

No. 12558.

Supreme Court of Colorado, En Banc.

June 9, 1930

Rehearing Denied June 30, 1930.

Error to District Court, Prowers County; A. F. Hollenbeck, Judge.

George J. Abshier was convicted of murder, and he brings error.

Affirmed.

Byron G. Rogers and Frank C. Bryant, both of Las Animas, for plaintiff in error.

Robert E. Winbourn, Atty. Gen., and E. J. Plunkett, Asst. Atty Gen., for the People.

ADAMS J.

The defendant, George J. Abshier, alias Bill Messick, was tried and convicted of the murder of A. N. Parrish, committed on May 23, 1928, and sentenced to hang. The crime was committed while defendant and three confederates, Howard L. Royston (also known as 'Heavy'), with Ralph Fleagle and Jack Fleagle, were all engaged in the act of robbing the First National Bank of Lamar, in Prowers county, Colo Parrish was president of the bank at the time that he was killed.

There is no dispute about any material question of fact. The defendant pleaded guilty; the jury so found and fixed the punishment at death. All elements of the crime were proven by the state; the defendant made a voluntary written confession to officers before the trial; and the confession was admitted in evidence without objection by defendant, except as to certain features connected with the flight of the accused. Defendant also voluntarily took the witness stand in his own behalf and repeated his story of the crime, substantially as contained in his previous confession. Defendant's counsel also called as a witness, 'Heavy' Royston, one of the participants in the robbery and murder. Royston's testimony corroborated that of defendant in all essential particulars as to the matters concerning which he testified. On the above evidence a jury of twelve found the defendant guilty and fixed the punishment at death.

Some of the details of the robbery, homicide, and flight which were not told by certain witnesses were vividly related by others. Their testimony all formed a connected story, and none of it was denied in any material particular. In some respects, the most accusing part of the recital which follows comes from the lips of Abshier and Royston, corroborated by witnesses for the prosecution. Fred Fleagle, a brother of Ralph and Jake, contributed an important section of the testimony. Ralph Fleagle did not testify in the case here under review, and Jake was not present at the trial. It does not appear from the record that he has been apprehended. Survivors of the robbery and bloodshed at the bank, eyewitnesses to the crime, testified to the happenings there, and Kansas and Colorado witnesses described subsequent events.

The robbery had been planned long in advance. Defendant and his companions had a rendezvous near Marienthal, in the state of Kansas, on a ranch known as the 'horse ranch,' rented and occupied by Fred Fleagle, who described its location and related actions of Abshier, Royston, and Ralph and Jake Fleagle before and after the shooting of Parrish. Details of the proposed robbery were planned by defendant and his confederates at the Kansas ranch. Defendant said that Jake had been figuring on robbing the bank for seven or eight years; that Jake spoke to defendant about it first in the fall of the year 1927; that defendant Jake, and Ralph had discussed the proposed holdup for some four or five months before it occurred; that Ralph put in several months looking over the roads, and that defendant had been over the roads several times before the robbery; that they had been at Lamar several times before 'looking over the situation, sizing up the bank,' its 'possibilities' and 'how defended'; that they had come prepared to commit the robbery on most of these occasions, but that they decided that the job 'was too tough for three men'; and that Jake or Ralph 'propositioned' Royston, who accepted and later joined the other criminals at the horse ranch and participated with them in their deeds of violence that followed. According to defendant, Royston accompanied the other three participants on some of their scouting expeditions.

At about 3 o'clock in the morning of May 23, 1928, Jake, Ralph, 'Heavy' Royston, and 'Bill' (the defendant) left the horse ranch in Western Kansas by automobile, headed for Lamar. They had Kansas, California, Oklahoma, and Colorado automobile license plates. The Colorado license plates were obtained especially for the bank job, and the different plates were provided for the purpose of throwing the officers off the track. The four men arrived at Lamar about 9 o'clock in the morning of May 23, and spent the forenoon in that city making observations. They agreed that it was best to wait until 'everybody' (meaning those connected with the bank) was inside. Apparently satisfied, at about 1 o'clock in the afternoon of the same day, the four, all armed with deadly weapons, entered the bank for the purpose of robbing it. Parrish was talking to a customer; there were other customers present, and employees were engaged in the transaction of their duties. E. A. Lundgren, a teller, testified that he heard a command, 'Hands up!' and 'You sons-a-bitches get them all up!' and that he heard another command from the lobby, 'Get that old son-of-a-bitch in there.' Garrett, assistant cashier of the bank, gave similar testimony, and other witnesses corroborated it. These obscene words of assumed authority came from the robber outfit. According to the defendant's confession, the last-quoted remark was uttered by Ralph Fleagle, after the first shot was fired, and then (said defendant). 'That is when this shooting commenced, shortly after.' Garrett also testified that he heard calls from the marauders, such as, 'Get those rifles,' 'Get those liberty bonds,' and 'Get up, we will take you too.'

The bandits had previously planned their several stations, had arranged the part that each was to take in the robbery, and each of them actively participated in its consummation. Defendant admits that the details had been discussed and arranged between the desperados a good many times. Without attempting to relate all of the particulars of the crime, it is shown by the evidence that the defendant grabbed and struggled with a bank customer, and Royston with another. Abshier said in his confession, 'I grabs hold of the man standing along side of me, shoved him to the floor; told him to get down. I called in this window for people to lay down behind; I wanted them to get out of the way of the bullet. I also lay down myself, for an instant or two. And when I raised up the main part of the shooting was over at that time; it all took place very quickly.' E. A. Lundgren, who was then a teller on duty at the bank, says he heard a command, 'Get down, you sons-a-bitches.' Lundgren, Garrett, his wife (Myrtle Garrett), and Miss Potter, all bank employees, and perhaps others, were compelled by the robbers to lie down on the floor. Another incident related by the defendant in his testimony is that, at the command of Jake, he (defendant) returned to the bandits' automobile, brought back two rifles, and gave one to Jake. Defendant says that this was shortly before they left the bank. Defendant retained the other rifle.

Many shots were fired by the brigands. After they had begun the fusillade, A. N. Parrish, the bank president, seized his gun and shot Royston in the jaw, severely wounding him. Later during the havoc, one of the robbers shot and killed A. N. Parrish, and one of them shot and killed J. F. Parrish, another officer of the bank and son of the president. Each bandit had brought a pillow slip with him in which to carry away the plunder. They stole from the bank the sum of $10,664 in money, $12,400 in Liberty bonds, and $196,500 in commercial bonds, a total of $219,564. Defendant says that they later sorted out the loot, and that he burned it all except the cash and Liberty bonds; that they later disposed of the Liberty bonds; that the original arrangement between the band was that defendant was to get 10 per cent. of the gross proceeds, at no expense to himself, but that unforeseen matters arose, and that he actually got about $2,100 as his share of the crime and paid his own expenses.

When Ralph, Jake, 'Heavy' Royston, and 'Bill' (the defendant) filed from the bank with their booty, they kidnapped Lundgren and another bank teller by the name of Kessinger. The admitted purpose of the robbers in taking Lundgren and Kessinger with them was to protect themselves in case of pursuit. Defendant says that they intended to take one bank employee for 'protection,' but for some reason they took two. The four bandits hurried to their waiting automobile and made off with their prisoners and spoils. Lundgren has but one arm, and his captors released him a short distance from the city of Lamar. Lundgren testified that Kessinger 'told them he had a wife and baby, and he kind of cried, and wanted to be let out.' They refused, and took Kessinger with them.

The fleeing bandits were pursued and overtaken by L. E. Alderman, the sheriff of Prowers county, and another citizen, but the four gave battle and escaped with Kessinger, their remaining prisoner. They arrived at the 'horse ranch' in Kansas the same night. They bound and blindfolded Kessinger, and defendant said, 'We decided we had better get rid of Kessinger.' The defendant with Jake and Ralph (according to defendant) at a later time took Kessinger to a shack, and Ralph shot him in the body, shot him several times after he fell and killed him. Kessinger's decomposed body was found afterwards.

Royston's wounds were painful, and needed medical attention. The other three, Jake, Ralph, and Bill (the defendant) therefore decoyed Dr. Weinenger, a physician and surgeon of Dighton,...