State v. Welch

• Decision Date: 29 June 1927
• Docket Number: 6141.
• Parties: STATE v. WELCH.
• Court: Montana Supreme Court

257 P. 1010

79 Mont. 614

STATE v. WELCH.

No. 6141.

Supreme Court of Montana

June 29, 1927

Rehearing Denied July 18, 1927.

Appeal from District Court, Lewis and Clark County; W. H. Poorman Judge.

Jay Welch was convicted of murder in the second degree, and he appeals. Affirmed.

Lester H. Loble and Hugh R. Adair, both of Helena, for appellant.

L. A Foot, Atty. Gen., and I. W. Choate, Asst. Atty. Gen., for the State.

CALLAWAY C.J.

On Sunday afternoon, December 27, 1925, two hunters observed the body of a dead man in Skelly gulch, on the Fletcher ranch, a remote spot in Lewis and Clark county. Their attention was first attracted by a bloody trail in the snow, indicating the course over which the body had been dragged. They notified the sheriff of the fact, and he, with one of the hunters and some others, proceeded to the Fletcher ranch, arriving there about midnight. On this ranch there is a log cabin, which serves as a dwelling house, with a door in the east end. At the west end, and 4 or 5 feet distant from the main building is a smaller cabin with a door opening to the south. This small building was used for the purpose of making moonshine whisky, and when the sheriff arrived there Frank Gray and Jay Welch, the defendant, were engaged in that nefarious work. The sheriff asked Gray what he was doing there, to which Gray answered that he had arrived there about dark. The sheriff then asked where the other party was, and Gray said, "Who do you mean, Billstrom?" The sheriff said, "Yes; Billstrom." Both Gray and Welch said he had gone to town.

The sheriff asked, "When did he go to town?" and Gray replied, "About 4 or 5 days ago." The sheriff then suggested that there must have been a rough-house before Billstrom pulled out, and in response to that, according to one of the witnesses, the defendant said, "The Wop had throwed him out, had a row with him, and throwed him out and went to town." By the "Wop" George Sass, a Roumanian, was meant, and it was ascertained that he was sleeping in the dwelling house. At this time the defendant was under the influence of liquor. Sass, when awakened, was found to be in a like state. As soon as Sass was dressed, the sheriff and his party took Gray, Welch, and Sass to the place where the body was found, Otten, one of the hunters, acting as guide. The body was that of John Billstrom. His head had been beaten in with a blunt instrument.

On the next day an examination of the premises disclosed that two men had dragged the body of Billstrom from the northeast corner of the dwelling house to a point in Skelly gulch, about 400 yards distant. Blood spots were found on the floor of the dwelling house and on the logs outside at the northeast corner of the house.

Gray, Welch, and Sass were charged by information with the crime of murder in the first degree. The defendants pleaded not guilty. While the record does not disclose it affirmatively, it is evident that they demanded separate trials. At the trial of the defendant Welch, Sass became a witness for the state. He testified that on Christmas Eve, Gray, Welch, Billstrom, and himself were at the ranch. Gray slept in the small cabin, while Billstrom, Welch, and himself slept in the dwelling house. On Christmas morning Gray told Billstrom to get ready to go to town, but Billstrom said he could not do so because he was sick. Gray told him he would make him go pretty soon. Gray then told Sass to go after the horses and to get ready to go to the bridge, meaning the railroad trestle across Greenhorn creek. Sass was gone about half an hour. When he left the house, Gray, Welch, and Billstrom were there. When he returned to the cabin, he saw Gray and Welch standing in the door. Billstrom was on the ground along side the cabin with a rope around his body; he was dead. In the cabin there was blood all over the floor. There was a double-bitted axe lying about ten yards from the body of Billstrom upon which there was blood and hair. "It had the drops here and there all over it; on the bit of the axe it had just a few drops here and there." There was an axe behind the door in the cabin with a broken handle, and upon this axe there were a few drops of blood. Gray told Sass to help Welch drag Billstrom "into the draw." When Sass hesitated, Gray said, "Do you see that man over there?" and from this expression Sass believed that if he did not do as he was ordered, something would happen to him as it had to Billstrom, and so he obeyed. He and Welch wrapped the rope around the handle of the double-bitted axe. Then each took hold of an end of the axe handle, and they dragged Billstrom's body to the spot where it was found. It took about 15 minutes to drag the body down to the gulch. After leaving the body there, Sass and Welch came back to the cabin. Gray then told Sass to get a pan of water, "and then Gray and Welch washed one another in the water that I brought over from the cabin. The part they washed was everywhere there was blood. I never paid any attention to where the blood was on them. Yes; I said that after Welch and I dragged the body down the gulch I got some water for Frank Gray and Welch. Frank Gray told me to get the water, and Gray and Welch washed themselves. They washed their hands, and shoes, and clothes, and everything." Immediately after this Gray and Sass took 10 gallons of whisky to the Greenhorn trestle where Gray's automobile was. Gray told Sass to return to the ranch and to clean up the blood and, if necessary, to take ashes and cover it, and this he did. He washed the double-bitted axe, but not the other. Gray and Welch never told him anything about the killing of Billstrom, and he never asked any questions because he was afraid. Gray told him not to say anything if anybody inquired about John Billstrom; that nobody would look for Billstrom because he was an old man and had nobody to look after him. Gray said to him that, if he told anybody, that would happen to him which had happened to Billstrom. When Sass got back to the ranch, he found that Welch had removed the mattress upon which Billstrom had slept, and Billstrom's clothes, from the cabin. After starting to clean up the blood, Sass talked with Welch and Welch said, "Everything is all right."

Upon cross-examination, Sass admitted that he had told a different story, but said it was not true; he had told it at the instance of Gray; Gray had offered to give him $500. The defendant did not take the stand nor did the defense offer any testimony. The jury found the defendant guilty of murder in the second degree, and on March 8, 1926, the court imposed a penalty of not less than 30 nor more than 60 years in the state prison. The defendant ...