State v. Storm, 9033

• Decision Date: 15 December 1951
• Docket Number: No. 9033,9033
• Citation: 125 Mont. 346,238 P.2d 1161
• Parties: STATE v. STORM.
• Court: Montana Supreme Court

Page 1161

238 P.2d 1161

125 Mont. 346

STATE v. STORM.

No. 9033.

Supreme Court of Montana.

Dec. 15, 1951.

As Corrected Feb. 13, 1952.

W. B. Leavitt, miles City, for appellant.

W. E. Coyle, Butte, amicus curiae.

Arnold H. Olsen, Atty. Gen., William H. Coldiron, Asst. Atty. Gen., for respondent.

On Petition for Rehearing

ADAIR, Chief Justice.

From a judgment of conviction entered on a jury's verdict finding him guilty of murder in the second degree, John Loy Storm has appealed.

At about 7:40 o'clock on the evening of Friday, April 1st, 1949, Russell Bean was shot in the back and killed. At the time he was seated at the supper table in his small four room country home located about 14 miles west of Forsyth. His back was to the south window. The bullet came from without. At about the center of the lower window pane the bullet made a small hole about the diameter of an ordinary wooden lead pencil.

With decedent at the time of his death were his wife and four minor children. It was after dark and the electric lights were on in the house. No witness was found who saw who fired the fatal shot.

The Russell Bean home is located to the north of Finch siding on the main line of the Northern Pacific railway. Adjacent to Bean's south boundary line fence is an east west travelled country road known as the old Yellowstone Trail, referred to in the record as county road No. 1. Paralleling such county road and adjoining it on the south is the railway's fenced right-of-way, wherein are located the main line tracks, a set of siding tracks and a set of spur tracks. Paralleling the railway tracks and to the south of the railway's south right of way fence is United States Highway No. 10. A side road leads north from U. S. Highway No. 10, crossing the railway tracks and extending north to the Bean dwelling which is located some 42 rods distant from U. S. Highway No. 10. A lane, referred to in the testimony as county road No. 2, extends south-westerly from U. S. Highway No. 10 to Mrs. Ethel Storm's dwelling and passes a trailer house located about 35 rods west of such dwelling, wherein at that time lived Ethel Storm's son, John Everett Storm, 31, and her divorced husband, John Loy Storm, 57, hereinafter referred to as Loy Storm.

Russell Bean's nearest neighbors were Mr. and Mrs. Robert Ross, whose home was located a quarter of a mile southeast of the Bean home. Mrs. Ethel Storm's dwelling was situate southwest of the Ross home and almost directly south of the Bean dwelling. The dwellings of the Rosses and of Mrs. Ethel Storm, as well as the trailer house occupied by Loy Storm and his son, were all located south of U. S. Highway No. 10.

Immediately following the shooting, Mrs. Russell Bean dispatched her young son on foot to the home of her nearest neighbors, Mr. and Mrs. Robert Ross, for help. The Rosses, accompanied by William Bean, then proceeded to the ranch home of Mrs. Ethel Storm, a sister of decedent where there was a telephone and from where phone calls were placed to Forsyth for a doctor and an ambulance. This done, the Rosses, accompanied by William Bean, Ethel Storm and Milton Chandler, proceeded to the Russell Bean home, arriving there about 8:30 o'clock p. m.

At about 8:50 o'clock p. m., W. C. Beals, the county coroner, accompanied by his brother Burdette Beals and driving an ambulance arrived from Forsyth.

At the trial the coroner testified that when he drove up, 'there were quite a number of people in the house at the time; there was Mr. Chandler, Milton Chandler, Mrs. Storm, Mr. and Mrs. Bob Ross and the Bean children, some of the Bean children.'

After the arrival of the coroner, Maurice Davidson, the undersheriff, accompanied by his wife drove into the yard of the Bean home where they were met by Milton Chandler who informed them of the homicide. The undersheriff entered the dwelling, made a hurried investigation and then sent his wife to Forsyth to summon the sheriff while Davidson remained at the scene.

Thereafter, various other persons, hearing of the shooting came to the Bean home where they parked their cars and walked in and about the house and premises.

At about 10:00 o'clock p. m., the sheriff Floyd P. Dowlin, sometimes referred to in the testimony as 'Whitey' Dowlin, arrived. Following a brief inspection of the body and the premises, the sheriff, accompanied by the coroner, proceeded to the trailer house occupied by Loy Storm and his son, arriving there about 10:40 o'clock p. m. Finding both occupants in bed, the sheriff informed them that someone had killed Russell Bean and, after talking with them and looking over the trailer house and its contents, the sheriff and the coroner returned to the Bean home.

Shortly thereafter Robert Ross, who drives the school bus, took Mrs. Bean and her children to the home of Mrs. Ethel Storm where the mother and children spent the night.

Thereafter the sheriff arranged for Eli Spannagel, a rancher and his hired man, Jack Clauson, to come to the Bean home and watch it for the remainder of the night when the officers should return to their respective homes in Forsyth.

Spannagel and Clauson arrived at the Bean home sometime after midnight and upon their arrival the coroner and the sheriff left for Forsyth with the body of the slain man.

At about 1:00 o'clock a. m., the undersheriff Maurice Davidson departed, leaving only Spannagel and Clauson at the Bean home to see that nothing therein should be molested during the absence therefrom of the family and officers.

At about 6:00 o'clock on the morning of April 2nd, the sheriff returned to the Bean home and together with Spannagel and Clauson began examining the dwelling and premises for evidence. They observed the small hole in the lower pane of glass in the south window of the dwelling. The distance from the hole in the window pane to the floor of the house measured 36 inches.

Track No. 1. Shortly after his arrival, on Saturday morning, April 2nd, the sheriff called the attention of Spannagel and Clauson to a small oval depression in the yard where the grass appeared to be slightly pressed down, which depression was at a spot 49 1/2 feet to the south of the damaged window. This depression proved to be so faint and indistinct that neither photograph nor cast could be taken of it, but the sheriff testified that in his opinion the track or pressing down of the grass represented a human footprint.

At the sheriff's direction, Spannagel marked the depression, hereinafter referred to as Track No. 1, with a small wooden stake which he twisted into the ground at the spot indicated by the letter 'D' on a map of the area drawn to scale by the state's witness, H. G. Young, which map was introduced in evidence as the state's Exhibit 2.

After so marking the depression, the sheriff, Spannagel and Clauson walked back and forth over all that portion of Bean's lands located to the south of the dwelling searching for human tracks or footprints. The presence of numerous persons who had walked about the premises after the shooting, both before and after the arrival of the officers and the absence of any snow, rain or mud made this task most difficult.

When asked to state how the search was conducted, Eli Spannagel testified: 'We followed--when we found a track we began to follow to see where this track went and there were some places that tracks weren't too plain and consequently we worked rather slow, sometimes going off in opposite directions or some places to see if there were any other tracks or different kind of tracks that might have led away from this place and this one set of footprints we traced--this one particular footprint was the only track we could find that definitely led away from that place.'

Mr. Spannagel also testified:

'Q. It wasn't raining the night you were on duty there? A. No, there was no rain.

'Q. Now how many tracks approximately did you observe or imprints, whatever we want to call them? A. Well I never attempted to count them, but a good many.

'Q. And who was with you when you made the observations? A. Whitey Dowlin, Jack Clauson.

'Q. Now we come back to the black dot marked 'D' to the south of the Bean house. Did you, Mr. Clauson and Mr. Dowlin or any other person after daylight, got up on that track, close to it? A. No.

'Q. What was the furthest that anyone was permitted to approach or did approach to the track 'D'? A. Well outside of marking it, I doubt whether there was anybody within foot and half or two feet.

'Q. All right now--and that's a fair approximation? A. Yes.

'Q. And that was made when a mark was made? A. Yes.

'Q. Now tell the jury what kind of a mark was made? A. Just a small stake was put up there.

'Q. By who? A. I put it up. * * *

'Q. Did you impress that stake into the ground at that point or was it necessary for you to drive it? A. I just put a little twist in it. * * *

'Q. Now did you after having marked that print to which you have just testified, Mr. Spannagel, and at the time that you marked that print, who stood back of you or around you there? A. Well at that time I believe that only Mr. Dowlin and Jack were there.

'Q. And that would be approximately what time in the day? A. Well that would be while we were making this search for tracks, it was early in the morning.'

Track No. 2. At a distance of 50 yards southwest of the dwelling the sheriff and his companions observed a second so-called track in the grass in Bean's field being what appeared to them to be a single footprint near Bean's west fence and referred to as Track No. 2.

Track No. 3. At a distance of about 80 yards from the dwelling the searchers observed a third so-called track in the grass in Bean's field located about eight feet inside of Bean's south boundary line fence and referred to as Track No. 3.

There was no evidence tending to show that Track No. 1 being the 'depression' in the grass had any connection whatever with either Track No. 2 or Track No. 3 or that these tracks were...