State v. Simpson

• Decision Date: 16 October 1939
• Docket Number: 7950.
• Citation: 95 P.2d 761,109 Mont. 198
• Parties: STATE v. SIMPSON.
• Court: Montana Supreme Court

95 P.2d 761

109 Mont. 198

STATE v. SIMPSON.

No. 7950.

Supreme Court of Montana

October 16, 1939

Rehearing Denied Nov. 17, 1939.

Appeal from Fourteenth Judicial District Court, Golden Valley County; William L. Ford, Judge.

W. L Simpson was convicted of murder in the first degree, and he appeals.

Affirmed.

George E. Hurd, of Great Falls, and A. G. McNaught, of Roundup, for appellant.

Wellington D. Rankin, of Helena, and Nat Allen, of Ryegate, for the State.

ARNOLD Justice, delivered the Opinion of the Court.

On September 23, 1938, in the district court of Golden Valley county, Montana, the defendantW. L. Simpson was convicted by a jury of murder in the first degree for the slaying, on April 14, 1938, of one Arthur Burford, a deputy sheriff of that county, the jury fixing the punishment by death.Judgment and sentence were pronounced on September 27, 1938 in accordance with the verdict.From the judgment and an order denying a new trial this appeal is prosecuted.The defendant made several assignments of error as will hereinafter appear.The evidence disclosed that the defendant made a full confession of the slaying on April 15, 1938, to the sheriff of Fergus county, Montana, in the jail at Lewistown, to which town he had fled during the night following the murder of Burford.

Early in April, 1938, the defendant Simpson was having trouble over livestock on his ranch.A replevin action had been filed against him by one Gibbs to recover a mare and colt.During the pendency of this action, and before the sheriff arrived to take possession of the mare and colt, he had directed three of his employees, Robert, Gerald and Richard McDonald to take the colt and conceal it in the timber on his ranch, instructing them to cover up the tracks of the colt in the snow by driving over them.When the sheriff arrived to repossess the mare and colt Simpson offered him the mare and another colt which was refused by the plaintiff and sheriff on the ground that it was not the one which was sought in the action.

At about the same time two other young men named Harmon and Dunwald were sent to the state prison on pleas of guilty to a charge of stealing and butchering a calf belonging to the defendant.The defendant had also complained to one T. R. Biggerstaff of the loss of a large number of sheep, Biggerstaff being the secretary of the Central Montana Production Credit Association, which association held a chattel mortgage on the sheep.On April 14, 1938, Biggerstaff, Hall Clement and Aaron McDonald, father of the aforesaid McDonald boys, went to the Simpson ranch to see about the sheep.After counting them and determining that there was no substantial loss of sheep, they approached the defendant's house to tell him about the satisfactory count, and on arriving at the yard of defendant, he came out with a rifle and warned the three men to come no further, stating that they had come far enough.He asked them the question, "Where is the other car?" and was advised that there was no other car.He also stated that he did not like the looks of things and directed his wife to search the Biggerstaff car to determine if anyone was concealed in the back seat.His wife examined the car and reported that everything was all right.At this time Aaron McDonald asked the defendant as to the whereabouts of his boys, Robert and Gerald, who apparently had been missing for three or four days.

Upon returning to Ryegate, Biggerstaff notified the sheriff that the defendant was acting "crazy."Late in the afternoon of that day sheriff Dolve and his deputy, Arthur Burford, went to the Simpson ranch for the purpose, as expressed by sheriff Dolve, of endeavoring to settle the difficulties peaceably and with no intention of arresting Simpson.The sheriff and his deputy each had a pistol but very little ammunition.When they arrived at the yard of defendant, the latter's wife came out of the barn, and upon being questioned by the sheriff as to whether her husband was sick or had been drinking, she stated that he had not been drinking and advised the officers that she would not talk.As they approached the house defendant's wife called his name "Lee" three times in what the sheriff described as warning tones.The defendant immediately appeared at the door of his house with a rifle.The sheriff was out of his car walking toward the house and Burford was still in the car.According to the sheriff, Simpson immediately opened fire upon him, firing three shots, and as the sheriff disappeared around the corner of the house, one of the bullets chipped the corner of the stone house.

There is a dispute as to who opened fire first, whether it was defendant Simpson or the deputy Burford--the defendant's wife being the only witness who asserted that the deputy opened fire first.Intermittently for several hours firing took place, the defendant firing forty or fifty shots and the deputy firing six or seven, a similar number of shots having been fired by the sheriff.The sheriff, after using up his shells and after the death of Burford, returned to Ryegate for a posse.

About 5:30 p. m. of that day the defendant shot and killed Burford, who was lying on the ground near the rear of his car.Burford had been previously wounded and while he was lying on the ground, his gun being empty of cartridges, the defendant approached him and, placing the muzzle of a pistol near his head, fired the bullet which caused his death.Several hours later when the sheriff returned from Ryegate with a posse, they found that the defendant had fled.He arrived in Lewistown in the early morning hours of April 15th, and after daylight telephoned to sheriff Guy Tullock, who came after him at the rooming house where he had registered under an assumed name.The sheriff took the defendant to the Fergus county jail where he made a full confession of the killing of Arthur Burford, and also confessed that he had killed the two McDonald boys on April 10, 1938.This confession was made in the presence of a number of witnesses.The defendant told where the McDonald boys' bodies could be found, and also the manner in which he had killed them, Robert having been killed by shooting with a rifle, and Gerald by a blow with an ax, Robert having been killed about noon, and Gerald in the evening of April 10th.Following the directions of the defendant, the bodies were found at the place he had described, and Dr. S.E. Crouse, who examined the bodies, found death wounds which could have been caused by the weapons the defendant said he had used.

The defendant assigns as error the refusal of the court to sustain the challenge of juror C. M. Brovold.On direct examination this juror stated that he had formed an opinion based on talking with others and on newspaper accounts.The trial judge read to the juror the names of the witnesses endorsed on the information and asked him if he had talked to any of them, and he stated that he believed he had not.He stated to the court that he could give a fair and impartial verdict despite his opinion.On examination by counselhe stated that it would be pretty hard to set aside his opinion, but that he would try to rely on the evidence alone for a verdict and that he had formed no opinion as to the defendant's sanity or insanity.On cross-examination by defendant's counsel, this question was asked the juror: "Q.And there wouldn't be any use for all the other jurors to try to change that opinion; that opinion would be there; anything the other men might say about it you couldn't get rid of it?A.No, sir."Thus in answer to three separate questions framed in one sentence, we see a simple categorical denial which is contrary to the answer of another similar question put to the juror by the court as follows: "Q.Notwithstanding such opinion, do you think you could listen to the evidence introduced here by both sides and the instructions of the court and render a fair and impartial verdict after hearing all that and lay aside the present opinion?A.Yes, sir."The juror's answers as to his qualifications were mainly affirmations and denials in answer to questions, chiefly leading and suggestive, framed by counsel in anticipation of the answers.He admitted that his opinion was based only on rumor and that he would be willing to let jurors of his mind sit on his case if he were the defendant.

In challenging the juror the defendant's counsel merely stated, "We challenge the juror for cause."The court denied the challenge.The record shows that prior to the denial of the challenge by the courtthe defendant had exhausted three of his peremptory challenges, and that thereafter he exhausted his remaining seven peremptory challenges.At no time did he exercise such a challenge against juror Brovold.This, of course, would not bar the defendant from asserting error on appeal, if the challenge for cause should have been sustained, since he exercised all of his remaining peremptory challenges after his challenge for cause had been denied.

The defendant cites in his brief the case of State v. Brooks,57 Mont. 480, 188 P. 942, 943.That case holds as follows: "The rule is recognized everywhere, that if any objectionable juror is forced upon the defendant after he has exhausted his peremptory challenges, the ruling of the court denying a challenge for cause as to such juror will constitute reversible error if the challenge should have been sustained."It is thus seen that the case has no bearing on the facts in the case before us.

In cases of this nature ten peremptory challenges are allowed the defendant.There is, perhaps, no other country in the world that allows...