State v. Spears, 2729

• Decision Date: 24 July 1956
• Docket Number: No. 2729,2729
• Citation: 300 P.2d 551,76 Wyo. 82
• Parties: The STATE of Wyoming, Plaintiff and Respondent, v. Elmo Dempsey SPEARS, Defendant and Appellant.
• Court: Wyoming Supreme Court

Page 551

300 P.2d 551

76 Wyo. 82

The STATE of Wyoming, Plaintiff and Respondent, v. Elmo Dempsey SPEARS, Defendant and Appellant.

No. 2729.

Supreme Court of Wyoming.

July 24, 1956.

Goppert & Fitzstephens, E. J. Goppert, Cody, for appellant.

George F. Guy, Atty. Gen., Robert H. McPhillamey, Deputy Atty. Gen., Howard B. Black, Walter J. Muir and Arthur F. Fisher, Asst. Attys. Gen., Wilbur O. Henderson, County Pros. Atty., Basin, for respondent.

PARKER, Justice.

A charge of first degree murder was filed against the defendant, Elmo Dempsey 'Johnny' Spears; and a jury in Big Horn County on June 11, 1954, found him guilty of murder in the second degree, adding to their verdict the longhand notation of their foreman, 'Because of extenuating circumstances, the jury recommends leniency.' The court sentenced the defendant to a term of twenty to twenty-five years in the penitentiary; and from this verdict and judgment, the defendant appeals.

The evidence is undisputed that the defendant fatally shot Raymond Bookout in the abdomen with a .38 Colt police pistol about 5:30 p. m. on Thanksgiving Day, November 26, 1953, in the back lounge of the Shoshone Bar at Lovell, Wyoming. Death, caused by the gunshot wound and the resulting peritonitis, ensued on December 8, 1953.

Defendant, twenty-five years of age at the time of the shooting, was born on October 10, 1928, at Canute, Oklahoma, where he received his grade school education. At the age of sixteen, he was married to Mabel Gifford of Lovell, which has been their home since that time. Except for a year's service in the army, he had worked as a steady employee of the Ohio Oil Company in the Bryon-Garland oil field for some eight years. He had a good work record with his employer until a relatively short time before the incident in question, when he became forgetful, absent-minded, and undependable. He was laid off by the company on October 21, 1953, on which occasion while he was looking after a tank of oil he allowed it to run over; and when the company representative went to talk to him about the matter, he was asleep.

The Spears had acquired their home in Lovell in 1947 under the provisions of the G. I. loan. They had two children and, according to the testimony, appeared to get on very well until September 1953 when Mrs. Spears advised the defendant that she was suing him for divorce. The record is not entirely clear regarding all of their difficulties, but apparently part of the trouble arose because of defendant's long hours of work. In addition to his employment by the Ohio Oil Company, he often worked for ten hours a day additional as a contract welder and was thus away from home a great deal.

After Mrs. Spears' threat of divorce in September 1953, she left home and caused divorce papers to be served on the defendant. During the period of this difficulty, he consulted a doctor, and when he was advised to take a vacation, went to see his parents in Oklahoma. He returned to Lovell on November 8, 1953, and immediately sought his wife in an attempt to become reconciled; but she refused to return to the home. Later that week, the two of them went to discuss their situation with Father Brady, a Lovell priest. Saturday night, November 14, 1953, defendant attended a birthday party where he again talked to his wife about their marital problems. She told the defendant at that time that she had 'gone out a few times with Ray [the deceased].' Mrs. Spears returned to the defendant's home that night; and they lived together until November 26, 1953, Thanksgiving. On Monday or Tuesday, the 16th or 17th of November, 1953, Mrs. Spears told the defendant about having had a date for the following Sunday with Bookout, but she said she had broken the date and told him she wouldn't go out. The following Saturday night defendant and his wife went to a show. When she went out for a smoke, he followed and saw Lee Parks and Bookout standing in the lobby talking. Defendant went over and asked Bookout if he could see him sometime 'whenever he got time,' to which Bookout replied, 'sure Johnny, any time.' Defendant testified, 'I wanted to tell him not to call my wife any more, leave her alone. * * * I never seen him again until Thanksgiving Day. * * * my wife, after we got home, she told me she said Ray and her went to school together; there was nothing between them, never had been, never would be.'

On Thanksgiving day, defendant had a job fixing a hay chopper for one Jack Snyder, and on the way back had a little job of welding at the Lovell city water plant. He had his gun belted on as he had been 'target practicing,' and in returning through town stopped to talk to Kirk Emmett about a job. He later went to the toilet at the rear of the Shoshone Bar.

Inasmuch as defendant's counsel at various times during the presentation of the State's case admitted the shooting of Raymond Bookout, and defendant himself later testified voluntarily regarding the occurrences in the bar immediately prior to the shooting, and since the State's evidence agrees substantially on the major points, it serves no useful purpose to recount the testimony of various witnesses.

Defendant's statement, which must be assumed to have been favorable to him, was competent evidence; and the jury was entitled to believe it if they chose. His story was as follows:

'As I was about almost to the end of the bar here, there was a fellow grabbed me by the shoulder and says 'what the hell does he want to see me about'. I looked up and seen it was Ray. I told him, I says I am going back to the toilet, I'll be right back, and I'll buy you a drink. So I went on back to the toilet. When I came out, he was there, talking to Joe Good * * *. I stood at the end of the bar, and they finished talking. He came on back, and got a booth, and I bought him a drink. * * * [Bookout asked] 'what did you want to see me about Johnny; I guess you want to see me about your wife, don't you'. I said, 'Well, Ray, I don't want you to be calling her any more'. I said 'you know she is all through with you,' and I said 'she is mine, and I intend to keep her'. He says: 'I think she is a mighty swell person, myself, and I think a hell of a lot of her.' I said 'I do too; she is my wife; you better leave her alone.' He said 'until you wife tells me that, I won't leave her alone. I'm calling as I please'. I said if you do, Ray, 'I'll shoot you'. He said 'that gun don't scare me, a darned bit'. * * * I pulled it out and showed it to him, and put the gun back in my pocket. He said 'it don't scare me a damned bit. I can shoot just as good as you can. I have got a gun as good as yours. Until Mabel tells me, I'm not going to stay away. You mess with her one more time; she'll be mine.' I said 'don't bother her any more, Ray'. He said 'well, it's just like this, until she tells me, I won't stay away'. I said 'you better, Ray, or I'll shoot you'. He said 'are you carrying your gun'. I said, 'yes, if you are carrying yours'. He stuck out his hand and said 'yes, sir'. I got up, left the bar and went home. I told my wife approximately what he said. I called Chris Lynn. I asked him for a permit for me to carry my gun. He said he wouldn't give me one. I asked him if it was illegal to carry a gun in the open. He said it wasn't. He said, besides, you don't need to carry a gun. Well, I said, this guy has been chasing around with my wife, won't leave her alone, threatened to shoot me. I want to protect myself too, if he doesn't stay away. He said 'I wouldn't do it'. I said what would you do, if you was in that fix. He said, I don't know, but I shouldn't do it. My wife asked me if I would take her back to the bar, so she could tell Ray that they were all through * * *. * * * I took her down there. * * * We took a booth, and went back and sat down and ordered a drink. * * * I didn't see Ray when I first went in. * * * I ask him [the bartender] if Ray was in there. * * * I said, 'if you see him up front there, tell him to drift back this way, I want to see him'. * * * I turned around and looked back up there, I see Ray in front. * * * He was up there with a lady friend of his. * * * He was kissing her, when I walked up. * * * I asked him if he would come back to the booth. I said 'my wife is back here'. And he said 'okay, let's go'. He went back and sat down. I ordered him a drink. * * * My wife said, 'Ray, there has never been anything between us; there never has been anything between us; that is the way I want you to tell John.' About that time, Harry [the bartender] brought the drink up, set it down and left. She told him, she said, 'now we went back together and we intend to stay together; just don't be bothering us any more'. She said, 'I really and truly love Johnny, and I know he loves me'. Ray said--I don't know just exactly what he said along about then. He said something to her, and he was kind of quiet about it, and then he began to laugh about it. He said to me, 'I think you got an awful pretty wife, Johnny.' He said that if she was mine, I would really take care of her. I said, 'she isn't yours, she's mine, and I intend to keep her'. He said, 'I don't want to stay with you,' and he started to laugh again. He said, 'hell besides, if you wasn't here, you son-of-a-bitch, I could really make it with her.' He reached out and grabbed hold of my wife's hand or arm some place along there. He said 'remember that night up at Byron, you weren't such a hot chunk up there. You don't need to give me the slip now'. I blowed up; I passed clear out; then I heard a deep rumble, and he was laying up against my shoulder. I set him down in the booth, and I hollered for Harry to call the doctor * * *.'

The fifteen specifications of error filed herein are, for the purpose of argument, consolidated by counsel into seven main points which will be discussed in the order in which defendant has presented them.

1. Right to Preliminary Hearing and to Compel Attendance of Witnesses....