State v. Kump

• Decision Date: 25 September 1956
• Docket Number: No. 2708,2708
• Citation: 301 P.2d 808,76 Wyo. 273
• Parties: The STATE of Wyoming, Plaintiff and Respondent, v. Frank KUMP, Defendant and Appellant.
• Court: Wyoming Supreme Court

Page 808

301 P.2d 808

76 Wyo. 273

The STATE of Wyoming, Plaintiff and Respondent, v. Frank KUMP, Defendant and Appellant.

No. 2708.

Supreme Court of Wyoming.

Sept. 25, 1956.

Ernest L. Newton, L. A. Crofts, Lander, Goppert & Fitzstephens, Cody, for appellant.

George F. Guy, Atty. Gen., Robert H. McPhillamey, Deputy Atty. Gen., Howard B. Black, Walter J. Muir, Arthur F. Fisher, Asst. Attys. Gen., W. A. Smith, County and Pros. Atty., Lander, for respondent.

BLUME, Chief Justice.

In this case the defendant Frank Kump was charged with murder in the second degree for killing Helen A. Kump, his wife, on February 20, 1954. He was convicted of manslaughter and sentenced to the penitentiary for a term of 8 to 12 years. From this conviction and sentence, he has appealed.

The defendant was born in Austria on December 24, 1900. He came be Shoshoni, Wyoming, in 1921, where he had a sister. He worked for a time for the Chicago and Northwestern Railroad and thereafter for some years on a ranch. About 1928, he bought what is called the Ollie Olsen place which was subsequently appropriated by the Government of the United States in connection with the Shoshoni Dam. The defendant married Helen A. Kump at Billings, Montana, in the fall of 1948 and they set up housekeeping on the Olsen place for a short time and then moved into a house in Shoshoni until they leased the so-called Griffin place. In 1951 they gave up the lease on the Griffin place and bought a ranch near Lander on Baldwin Creek known as the Meyers place, to which purchase Helen A. Kump contributed $1,800 in cash and $1,000 proceeds of an insurance policy. Soon thereafter they sold this place and bought a place in Missouri Valley, Fremont county, Wyoming, which was bought in the name of both. Everything they had was in their joint names, including a bank account, except a pickup truck owned by defendant alone.

The defendant testified that on Friday, February 19, 1954, he went to a sale at Riverton, Wyoming. While there he engaged Dr. Robert E. Fuechsel, a veterinarian, to come out to his place the next day to look after a sick cow. He bought a half gallon of wine and went home about 3 o'clock in the afternoon. After he arrived home he and his wife had a drink of wine but got into some argument about the sale of the land. It seems much of the land was alkaline and defendant wanted to sell it. He told his wife he would sell it for $8,000 but would take less if necessary. Helen A. Kump, the deceased, apparently did not want to sell the land for less and told him she would get a divorce if he sold the place as he said he was going to do. Just how much of the wine the defendant drank that night is not clear. Some of it apparently was left. When he got up on the morning of February 20, his wife was not there. She had taken the pickup truck and had gone to Riverton, Wyoming. Defendant stated he drank some of the wine on that morning and went to see George Bennett who lived in a sheep wagon about three-quarters of a mile from defendant in order to have Bennett help him feed his cattle. Defendant further stated that Bennett did help him and he and Bennett then went back to the sheep wagon; that Bennett gave him a quart of wine which he drank; that he stayed in the sheep wagon and did not know what happened after that time until he found his wife dead in his home. She was lying on a bed in the room which she occupied with a .25-20 Winchester carbine by her side. She had been shot through the heart. He then went to the Cunningham place where George Bennett stayed, in order to call the sheriff. They told him to go to the Schmidt place, which was about half a mile south of defendant's place, where he called the sheriff and told him that his wife was dead. He also called other neighbors, the Griffins, who came over. He called the sheriff, as stated, about 5:30 p. m. on February 20.

George Bennett, mentioned above, testified at the preliminary hearing but had died before the trial of the case. His testimony at the preliminary hearing was introduced in the trial of this case. He testified in greater detail as to what took place on the afternoon of February 20. He did not state he had helped the defendant feed the cattle but he testified to the effect that defendant was drinking and was with him in the sheep wagon mentioned above. He stated he saw Mrs. Kump, the deceased, about 2 o'clock in the afternoon of February 20 at the Schmidt place when he and the defendant were driving past that place. He and defendant saw the pickup truck of defendant there; defendant then said his wife must be there; defendant stopped. The witness got out and saw Mrs. Kump and told her that her husband was going home and asked her whether she was going home and deceased stated she might as well do so. Mrs. Kump drove on ahead in defendant's pickup. Witness and defendant followed. When they arrived at the Kump place they found the veterinarian, heretofore mentioned, who wanted the defendant to run the sick cow into the chute but defendant did not want to do so--apparently in poor condition to do it. Witness told the veterinarian to come back some other time. When the witness, the defendant and Mrs. Kump were all in the kitchen, the defendant acted like he was about half asleep. Mrs. Kump put her coat on a chair and did not take off her hat. The witness suggested that Mrs. Kump cook dinner and that the defendant would then be all right. She did so, but the defendant went to bed and would not eat. However, witness ate part of the dinner which Mrs. Kump had prepared. He left about 3 o'clock in the afternoon and suggested to Mr. Kump that when the defendant got up she should not argue with him. The witness next saw the defendant at the Cunningham place just before sundown when defendant stated his wife was dead and that there was a gun in the room. The witness and Schmidt accompanied the defendant to the Kump place and found Mrs. Kump dead. The witness saw the defendant again in the evening and stated that defendant acted as though he had 'just come to.'

The veterinarian testified he left the Kump place about 2 o'clock in the afternoon and that the defendant was then quite drunk.

The witness O. R. Britian saw the defendant at the Kump place about 4 o'clock in the afternoon of February 20. The defendant staggered out to the car and asked the witness for a drink. The witness told him he did not have any. Defendant then said, 'Well, let us go get one.' The witness said, 'No, you ain't in no shape to go any place. You have had enough.' The witness then drove away leaving the defendant. After that the only persons on the premises were defendant and deceased.

Dr. Bernard D. Stack, who drove out to the Kump place along with the sheriff and the deputy sheriff, arrived about 8 o'clock on the evening of February 20. He testified that Mrs. Kump was shot through the heart and killed instantly between about 4 o'clock and 5 o'clock in the afternoon.

Mr. Robert M. Zimmers, an expert on ballistics, testified that the muzzle of the gun which killed the deceased was within an inch of the body of the deceased when the shot was fired and that no finger prints were on the gun which was used to kill the deceased. Other facts will be mentioned later.

It is the contention of the defendant that he did not kill the deceased, and he so testified, and he further contends that she committed suicide.

1. Hearsay Evidence and Instruction.

The main contention made in this case is that five witnesses for the state were permitted to testify to statements made by deceased the evening previous to and on the morning of the day of the homicide; that these statements were all hearsay testimony and should not have been admitted. These witnesses are Bennett, Slagle, Parks, Winninger and Moran. We have heretofore set out the testimony of the witness Bennett. The objection made to his testimony is that he stated to the deceased not to argue with the defendant when he would get up. We can see no objection to this testimony. The defendant was drunk and the statement by Bennett was a natural statement made by anyone under these circumstances. Nor can we find any harm in the statement. It is objected also that the testimony of Slagle, the deputy sheriff, should not have been admitted. That testimony relates to a conversation and request of the deceased that he accompany her to her home at the ranch; that she did not want to go alone, and that she wanted him to accompany her. We see no objection to testimony of that sort. It was admissible if for no other reason than to show that she had no intention of committing suicide. The testimony of the other witnesses is of a different nature. Mrs. Parks testified that Mrs. Kump had told her that defendant had come home on the evening of February 19 with a bottle of wine, had drunk part of it and then stated, 'I am going to get rid of you, if you don't leave, I'ill kill you. I'll choke you to death. I'll give you $3000. I will give you time to pack up your clothes and leave,' that he had thrown a platter of eggs at her which hit the wall; that the deceased had also stated, 'Frank, I am not leaving you. You are forcing me to go.' The witness Mrs. Winninger was permitted to testify that the deceased stated to her that defendant had run her out and that defendant had thrown eggs at her. The witness Moran was permitted to testify that Mrs. Kump told him during the morning of February 20 that the defendant had threatened to kill her; that he was going to kill her by choking her, and that he had forced her to leave the place the preceding night, and that it was impossible to continue the marriage relationship. In other words, the nature of the testimony objected to is the testimony that the deceased was permitted to relate the hostile attitude of the defendant toward the deceased, including threats which the defendant had made against the deceased. At various times objection to this hearsay...