State v. Dryman, 9325

• Decision Date: 29 April 1954
• Docket Number: No. 9325,9325
• Citation: 269 P.2d 796,127 Mont. 579
• Parties: STATE v. DRYMAN.
• Court: Montana Supreme Court

Page 796

269 P.2d 796

127 Mont. 579

STATE v. DRYMAN.

No. 9325.

Supreme Court of Montana.

Submitted Jan. 5, 1954.

Decided April 29, 1954.

Jerry J. O'Connell, Great Falls, for appellant.

Arnold H. Olsen, Atty. Gen., John L. McKeon, Asst. Atty. Gen., Louis P. Donovan, Sp. Asst. Atty. Gen., John L. McKeon, Asst. Atty. Gen., argued orally, for respondent.

FREEBOURN, Justice.

Frank R. Dryman, also known as Frank R. Valentine, charged by information in Toole County, Montana, with the crime of murder, was by a jury on January 11, 1953, found 'guilty of murder in the first degree,' which jury left 'his punishment to be fixed by the court.' By judgment of the trial court, pronounced on January 13, 1953, it was 'ordered, adjudged and decreed, that the said Frank R. Dryman, also known as Frank R. Valentine, be * * * hanged by the neck until dead.' From this judgment the defendant has appealed.

The crime with which defendant was charged was alleged to have been committed on April 4, 1951, according to the allegations of the information filed April 11, 1951. On April 12, 1951, without benefit of counsel, the defendant, then nineteen years of age, entered a plea of guilty to the charge of murder.

After taking evidence to determine the degree of murder, the trial court found defendant guilty of murder in the first degree and by its judgment of April 12, 1951, sentenced defendant to be, on June 1, 1951, 'hanged by the neck until dead.'

Thereafter the defendant having secured counsel moved to set aside the judgment of April 12, 1951, and be allowed to enter a plea of not guilty, which motion was denied. Upon appeal from the denial of such motion, this court by its decision of February 15, 1952, in the case of State v. Dryman, 125 Mont. 500, 241 P.2d 821, remanded the cause to the lower court with directions to withdraw the plea of guilty and enter a plea of not guilty. The lower court did this and the plea of not guilty was entered on July 25, 1952. Defendant's trial by a jury followed, resulting in the verdict of guilty, on January 11, 1953, and the judgment of January 13, 1953.

In August of 1952, and before trial to a jury, defendant petitioned and moved the trial court for a change of venue and to change the place of his trial, on the grounds: 'That the people of the County of Toole, State of Montana, are so prejudiced against the said defendant that he cannot have a fair trial; [and] that it is impossible to obtain a jury in the County of Toole, State of Montana, that has not formed an opinion, as to the guilt or innocence of the said defendant, such as would disqualify them as jurors.'

By order of the trial court dated October 30, 1952, it appears that 'a hearing on the defendant's request for change of place of trial was had on October 29, 1952, at which hearing evidence, both documentary and oral, was introduced by plaintiff and defendant, and * * * it is ordered that defendant's petition for change of place of trial be denied, and that the trial * * * be held in Toole County, Montana.'

Defendant in his appeal to this court asserts that the refusal of the trial court to grant a change of venue and his petition for change of place of trial was error, and that such change of place of trial should have been granted.

At the hearing on the petition and motion for change of place of trial, held October 29, 1952, defendant's exhibit 1 went into evidence. It consisted of one sheet of white paper 10 inches in width and 15 inches in length, blank on one side and with printing and two pictures in red ink on the other side, several hundred copies of which were circulated in Shelby, Montana. At the top appeared the word 'Extra' which was 8 inches in length with the letters 1 5/8 inches in height. Under the word 'Extra' appeared 'The Shelby Promoter and Tribune of Shelby' after which appeared the printing and pictures. Stamped on the sheet in blue ink appeared the words 'Compliments The Shelby Promoter.' The Shelby Promoter is a newspaper published at Shelby, Montana, with a circulation, as appears from the evidence, as of April 4, 1951, to July 1, 1952, of: 1655 in Toole County; 75 in Glacier County; 80 in Pondera County; and 115 in Liberty County.

Space will not permit setting out the entire 'Extra' here. It suffices to say that one of the pictures is that of the presiding judge and the other that of the defendant with 'Killer' over defendant's picture. Four columns, 8 1/2 inches of small print, purport to detail the story of the crime and of what took place in the courtroom when the defendant was first sentenced to death following his plea of guilty. The article states: 'The unemotional Dryman, cold blooded killer of Clarence C. Pellett * * * took eight shots at Pellett when the begging Four Corner oilman attempted to run away from the angry hitch-hiker. * * * all of the bullets entered from the back side. Six of the seven bullet wounds were fatal * * *.

'Court Room Packed. People began milling into the Toole County District Courtroom about a half hour before the testimony [taken to determine what degree of murder defendant was guilty of] which got under way at 2:00 p. m. By 1:55 all seats were taken and there was standing room only * * *. Many high school students took seats on the floor for the hearing. Cars lined from the bowling alley to the hospital, a distance of about a block and a half and were parked in every available spot around the court house. Inside spectators were quiet until the passing of the sentence, when they rapidly filed out of the court room to gather and talk in groups in muted or excited tones, depending on their reactions. * * *

'Justice is Done. In one brief week a killer has been tracked down and captured, a confession and complete evidence obtained and sentence of death pronounced.

'It was almost like the swift and terrible justice of the old Vigilante Days except this was within the formality of the law, with the prisoner being accorded council and also full access to a jury trial or change of venue--if he had asked for it. But he did not. He must have pre-judged in his own heart the black guilt in which he perpetrated the most dastardly deed in the history of Toole County. Either that, or as it appeared he was so steeped in criminal tendencies that nothing could appeal to his warped and stony mind.

'Killer had been in Trouble Before. Frank Dryman, alias Frank Valentine, was sentenced to juvenile court * * * at the age of 16 for robbing a liquor store * * * the Nevadan was given an undesirable discharge, and while in service his family moved to Vallejo, California * * *.

'It's bitterly ironical that the slayer was a former neighbor and friend of Mrs. C. J. Sharp (a sister of the deceased), a kind woman who was his friend on many troublesome occasions.

'County officials were undecided following the sentencing whether to keep Dryman in custody at the Toole County jail or remove him to the state penitentiary at Deer Lodge.'

The county officials may have been 'undecided following the sentencing' as to where to keep the defendant, but such indecision appears to have crystallized into action after the appearance of the red 'Extra' and resulted in a written request made by the Toole County sheriff, and approved by the trial judge, to the Montana state board of prison commissioners, at the state capitol, in Helena, Montana. This written request in the form of an affidavit and petition, signed by the sheriff of Toole County on June 5, 1951, was presented to the Montana state board of prison commissioners and is as follows: 'The facilities of Toole County jail are not adequate to afford proper protection for the above-named defendant [Dryman] during the period of time before the above captioned case can be concluded * * *.

'The undersigned, C. O. Dunstall, sheriff of Toole County, Montana, respectfully requests that your honorable Board authorize the removal of the above-named defendant to the state penitentiary at Deer Lodge, Montana * * *'.

It appears that the sheriff and one other witness appeared and testified before the prison board. Referring to such appearance before the board, the sheriff testified: 'I told them at the time of the murder there was high feeling' against the defendant.

As a result of such request, as shown by the record, the state prison board on June 6, 1951, passed the following resolution: 'Whereas: In view of the feeling in Toole County and adjacent counties against the defendant [Dryman], the Board was of the opinion that the only safe place for the defendant until the Supreme Court has acted on the appeal for a stay of execution would be the Montana State Prison.

'Now, Therefore: Be it resolved that the Board of Prison Commissioners for the State of Montana authorize and direct the Warden of the Montana State Prison to accept custody of the defendant, Frank R. Dryman, until such a time as the State Supreme Court has acted on his appeal and he is either required to suffer the penalty given him in the District Court, or is required to appear again for further court proceedings. In either instance, he is to be delivered to the sheriff of Toole County only.'

The record discloses the following discussion between the trial judge and one of counsel for defendant. 'Mr. O'Connell: If it please the Court, I find that the record does not contain any copy of the petition for removal to Deer Lodge. The Court: Well, I signed or endorsed the original which went down to the State Board of Pardons at Helena, and there is no copy in the record. I checked that myself. However, your copy has been offered and received by the court in evidence. I was familiar with it before because I endorsed or signed it when it was first made. Go ahead.'

It appears that the defendant is still being kept in the state penitentiary.

Placed in evidence also we an article which appeared 'in the issue of the Shelby Promoter dated November 22, 1951,' which appears to be comments on...