State v. Benson

• Decision Date: 21 June 1928
• Docket Number: No. 28238.,28238.
• Citation: 8 S.W.2d 49
• Parties: STATE v. BENSON.
• Court: Missouri Supreme Court

8 S.W.2d 49

STATE v. BENSON.

No. 28238.

Supreme Court of Missouri, Division No. 2.

June 21, 1928.

Appeal from Circuit Court, Jackson County; A. Stanford Lyon, Judge.

Carl Benson, alias Swede Benson, etc., was convicted of murder in the first degree, and he appeals. Affirmed.

North T. Gentry, Atty. Gen., and David P. Janes, Asst. Atty. Gen., for the State.

HIGBEE, C.

Appellant, Carl Benson, together with Richard Miller, Millard Abel, and Earl Lawrence Abel, on June 17, 1926, were jointly charged by indictment in the circuit court of Jackson county with murder in the first degree, in that on May 8, 1926, at said county, they feloniously, willfully, deliberately, premeditatedly, on purpose, and of their malice aforethought, shot and killed Harry Talmage McConnell. Benson was arraigned, refused to plead, and a plea of not guilty was entered by the court. The defense is an alibi. A severance was granted. The trial before a jury began on August 5, 1926, and on August 12 the jury returned a verdict finding the defendant Carl Benson, alias Swede Benson, alias Carl Lee, alias Arthur Pellman, alias Mike Mitchell, guilty of murder in the first degree as charged in the indictment, and assessing his punishment at imprisonment in the penitentiary for life. A motion for new trial was overruled, sentence was pronounced in accordance with the verdict, and the defendant appealed.

The homicide occurred on May 8, 1926, at the Busy Bee parking station and garage, located at 921 Wyandotte street, Kansas City, Mo., on the south part of the northwest quarter of block 900. Entrance to the garage and station is at the northwest corner of the intersection of the alleys in said block, which is the southeast corner of the garage. The parking station and garage were conducted by Albert Abel, a brother of Millard Abel.

No brief has been filed by the appellant. We have been greatly aided, however, by the statement and brief prepared by Mr. Janes, the Assistant Attorney General.

The evidence for the prosecution shows that this homicide occurred a few minutes after noon on Saturday, May 8, 1926, at the Busy Bee parking station and garage. On that morning Harry T. McConnell, an employee of the Fred Harvey System at the Union Station in Kansas City, drove in his Dodge touring car, with Daniel Glasner, cashier of the Fred Harvey Company, to the First National Bank, where Glasner deposited the company's cash, about $3,500, and got $1,500 in $1 bills for use in the company's business on that day and the Sunday following. Glasner had been making deposits daily for several months. McConnell usually parked his car at the Busy Bee parking station while he and Glasner attended to their affairs. On this day they were ready to return to the Union Station about noon. McConnell left Glasner at the bank corner, and started to the parking station to get his car, which was in the first or east stall of the shed.

Two shots in quick succession, like one shot, were heard; the first being louder than the second. Fred R. Duncan had driven his car out of the station just before the shots were fired, and had been compelled to stop his car to avoid running over the defendant Benson. He heard no shots. He noticed Benson closely, and recognized him at the jail in the latter part of June, and identified him (but not positively) at the trial.

Mabry Mellier testified:

"My car was parked on the north side and near the west end of the parking station. Dick Miller, one of the employees at the station (also one of the defendants), assisted me in getting my car into the aisle. At this time I saw two persons scuffling at McConnell's car at the east end of the station. I heard the two shots in quick succession, and saw a man run out from the front end of McConnell's car. This man was about 15 feet from me. I recognized him at the jail as the defendant, Benson. I saw another man at McConnell's car who had dark hair and wore a cap and coat, but I could not identify him. I saw McConnell lying on his face in the alley; he was covered with blood, and took a last gasp. I saw a lot of people coming up the alleys. I saw a man in the rear of the fifth car on the south side with dark hair and a cap on. His coat was off, with blood on the right shoulder. I saw him afterwards; he was lying down in the alley with seven or eight men on top of him. I have since learned his name is Millard Abel."

Clifford Hamilton (colored, aged 20) testified:

"I heard the two shots, looked up, and saw a man in a Dodge car on the east side of the car, and another standing with one foot on the east running board; they were tussling, facing each other, and in a grappling position. The fellow in the car got out; he fell, staggered, and scrambled eight or ten feet and fell; the other fellow threw an automatic gun down by the corner of the shed where the car was parked, and went around the parking station, and I lost sight of him. His name was Millard Abel; the man who was in the car was McConnell. Abel dropped his gun in the alley right after the shooting. I went up there and saw this gun; it was a great big automatic. This fellow with a scar on his face picked it up; I think his name is Miller. After I came up there, Millard Abel started out; some one dropped him, and six or eight jumped on him till the police came and got him."

Orville Mabry, cashier of the A. B. Dick Company, was about 40 feet from the entrance to the parking station. He testified:

"I heard the two shots; the first one was louder than the other. I went to the doorway and looked out. I saw a man lying up in the alley and two men bending over him. I have since learned it was McConnell. I came out of our back doorway, and noticed a gun lying a short distance from McConnell's feet It looked like a .45 automatic. My attention was drawn to a man running in the parking station toward the gate. I had a stone in my hand and raised it as if to throw it, and he ran back through the door into the station. I ran back down the alley, and he was down and was captured. I learned his name was Millard Abel. Abel had on no coat, and was bleeding. He wore a cap."

John W. Lee, a city detective, testified:

"I received a call on May 8 to go to the parking station at 921 Wyandotte, and arrived there about 12:15. I saw McConnell's body in the alley. I examined a Dodge touring car protruding three or four feet from the front stall; the right front door was open; the windshield was closed. I took the license number, and learned it was Harry T. McConnell's car. I found an empty exploded shell on the floor in the front seat in this Dodge car on the right side. The shell is a .45 caliber for an automatic pistol."

(Witness found a hat at the right rear wheel of the car which was identified by witness Duncan as the hat worn by Benson before the homicide.)

Raymond Hester testified:

"I drove a truck for Albert Abel at his garage, 921 Wyandotte. I quit a few days after May 8, 1926. On that day I was eating my lunch on the work bench. I heard two shots. After that a bareheaded man came in the door; he had a large pistol in his hand; he hesitated, looked towards the back, and then towards the front of the garage. I spoke to him, and he put the pistol on me, and told me not to move. I started to hide behind a car, and looked up, and the man was going out of the door. He had nothing in his hand. I saw him two or three days later at police headquarters. He is the defendant, Carl Benson. After he went out, I walked down the alley, and saw a man (McConnell) lying with his face down. I stopped for a couple of minutes, and my attention was called to a man hollering, `There he goes, there he goes,' and here came another man out of the parking station. His name was Millard Abel, a brother of Albert Abel. As I started down the alley, I saw the big pistol, the automatic, lying there in the alley close to the entrance. A man said: `There is the gun.' Richard Miller started to pick it up. I told him to let the police pick it up. He picked it up and stuck it in one of those tills. (Here witness identified the gun he saw in the alley.) Officers came and got the gun within 10 or 15 minutes after the shots were fired. It is not the gun that Benson pointed at me."

Richard Ritchie:

"I was watchman at the Shubert Theater. I heard two shots fired and went out in the alley. I seen a man come around in front of the parking station. I learned afterwards it was Mr. McConnell, and he came up the side of the wall a couple of steps, and then he fell. I looked back towards the alley and saw a man without a hat come out of the doorway. He was running, and disappeared at the end of the alley, I saw him at the police station. He is the defendant, Carl Benson."

Hugh C. Myers, a sergeant of the metropolitan police, testified that he was attracted to the parking station on this occasion a little after noon by the crowd. He got the revolver that Miller threw into the tool bin. It was still smelling of smoke. It was a .44 Colt, and was fully loaded, six chambers, except one cartridge had been fired. It was smoking, and smelled of fresh powder; smelled like black powder, semismokeless powder. It would take an hour for the powder odor to leave a gun of that caliber. While at the parking station some one handed witness a coat (identified as Millard Abel's). He examined the coat at the time, observed a hole on the right back shoulder, and that there was fresh blood on the inside of the coat. He took a fully loaded .45 automatic clip out of the pocket of the coat which he identified and exhibited before the jury. It held seven shells. He testified:

"This clip slips right up in the revolver. They are steel jacketed bullets, the only kind an automatic will fire. That cartridge is used for a .45 automatic; semismokeless powder is used in that kind of cartridge."

Charles S. Turner, deputy coroner and physician, testified that he saw the body of Harry T. McConnell at the parking station; arrived...