State v. Buckley

• Decision Date: 10 October 1927
• Docket Number: No. 27853.,27853.
• Citation: 298 S.W. 777
• Parties: STATE v. BUCKLEY.
• Court: Missouri Supreme Court

298 S.W. 777

STATE v. BUCKLEY.

No. 27853.

Supreme Court of Missouri, Division No. 2.

October 10, 1927.

Appeal from Circuit Court, Benton County; B. G. Thurman, Judge.

Chambers Buckley was convicted of murder in the first degree, and he appeals. Reversed and remanded.

Henry P. Lay, of Warsaw, for appellant. North T. Gentry, Atty. Gen., and Smith B.

Atwood, Asst. Atty. Gen., for the State.

HIGBEE, C.

This is a second appeal. An information was filed in the circuit court of Benton county, charging the defendant and his son Earl Buckley and Claude Estes with murder in the first degree. There was a mistrial on August 13, 1923. On the second trial, begun on August 24, 1923, the defendant and his son Earl were found guilty of murder in the first degree and sentenced to imprisonment in the penitentiary for life. On appeal, the conviction was reversed, and the cause remanded. State v. Buckley, 309 Mo. 38, 274 S. W. 74. A second amended information was filed on December 9, 1925, charging the defendant and his son Earl and Claude Estes with murder in the first degree, in that on June —, 1922, they assaulted, shot, and killed Alfred E. Lutman with a rifle and pistol, each loaded with gunpowder and leaden balls. A severance was granted to Chambers Buckley, and on a trial begun on December 16, 1925, he was found guilty as charged and his punishment assessed at imprisonment in the penitentiary for life. From a sentence in accordance with the verdict, the defendant appealed.

It is admitted by the appellant that the Corpus delicti was proven, and it is said that the facts proved at the second trial are correctly stated in the opinion of the court on the first appeal. Appellant's counsel also states that the evidence for the state on the East trial was substantially the same as at the former trial, and that there was also additional evidence on the part of the state. Lutman lived alone on his farm in Benton county, adjoining the defendant's farm on the west. There was and had been enmity between them for years. Lutman was last seen, as far as the evidence shows, on June 11, 1922. The theory of the prosecution is that the Buckleys conspired together to kill Lutman and employed Claude Estes to shoot and kill him, and that thereafter, on the afternoon of June 14, 1922, the defendant Chambers Buckley, and Claude Estes, the latter carrying a rifle, were seen together in a cornfield on Buckley's farm near the east line of Lutman's farm; that Estes went toward and disappeared in the brush on Lutman's farm, and defendant returned to his home. Later in the afternoon, Claude Estes went to defendant's house and left the rifle there. On July 14, 1922, Lutman's decomposed body was found on his farm in a very small clearing surrounded by dense brush; there was no flesh on the skeleton; there was a hole in the skull over one eye, about the size of an ordinary lead pencil or .38 ball, and one in the cheek. After the inquest and burial, the body was exhumed and a gunshot wound was found on Lutman's left breast, about the size of a .38 bullet. Two or three weeks later three or four empty .22 cartridge shells were picked up near the spot where Lutman's body was found.

It is contended that the demurrer to the evidence should have been sustained; that there was no proof of a conspiracy between Chambers Buckley, Earl Buckley, and Claude Estes to kill Lutman; that the statements of Earl Buckley and Claude Estes, made out of the presence of the defendant, were hearsay, and their admission in evidence was prejudicial error.

We do not agree with appellant's learned counsel that the evidence at the last trial was the same as at the second; it is the same in most respects, but in others it is not the same. There was also some important additional evidence developed at the last trial In the consideration of appellant's contentions, it will be helpful to set out some of the evidence offered by the state at the last trial.

Jim Hart testified:

"I had a conversation with Chambers Buckley about the time the coroner's jury was trying the case. He referred to the cutting of a bee tree; he said, `I think they will find out who killed Lutman if they will find out who cut the bee tree.' He didn't say who cut the bee tree, but said, if they would find out who cut the bee tree, they would find out who killed him."

Everett Forth, defendant's son-in-law, testified:

"I had a conversation with Chambers Buckley with reference to the killing of Lutman; he asked me if I remembered the incident of the cutting of the bee tree on Lutman's farm. Jess Compton and I found a bee tree, and were talking at my house about cutting it. Buckley came down and said: `Let's go and cut it.' I said, `Let's wait till evening, and it will be cooler, and Mr. Lutman is liable to be down there on his land following the fence, and, if he catches us down there, he would raise the dickens with us.' Buckley said: `There is no danger.' Later that evening we cut the tree; that was on June 18, 1922. A week or ten days later I asked Buckley if he knew there wasn't any danger in cutting the bee tree. He said: `I knew there wasn't any danger for I seen it with my own eyes.' He had about three .38 shells in his hand. He didn't say what he saw. I heard Buckley say a few times that Lutman might be found some time with the buzzards picking his bones. This tree was on Lutman's farm about 6 feet from the fence dividing the Lutman and Buckley farms."

C. M. Davidson testified

"In the spring of 1922, the defendant was at my house one night. In the conversation lie said he and the boys were building a fence on or near the line between him and Lutman. Be said the boys did the work, and that he had a gun and watched. He said he expected Lutman to come there and interfere with the work; he didn't come, and it is a good thing. He said he figured Lutman would come that night and pull the posts; `if he had come to pull the posts, we aimed to kill him.'"

Grover Mabry testified that, in a conversation with the defendant, Buckley told witness that Claude Estes came to his house and got the gun and went off towards Lutman's house; that he said, "`I heard the gun shoot, and I just knew that there was a dead man if he hadn't missed;' and I don't remember what I said, something about what did they pull such a stunt for, or something to that effect." He said Claude came back that evening and said he killed him. He did not say whose gun it was; he said he came by there and got it. He said something about Forth talking. "Q. What did he say, if anything, in reference to whether he had told Forth about the killing of Lutman? A. He said that him and Forth went down to cut a bee tree, and he told Forth about it; that Forth was talking too much. I asked him why he told Forth or how Forth came to know, and he said something to the effect that when they went to cut the bee tree that he told Forth something about that it was all right; that he thought Forth was all right. All this conversation was about the killing of Lutman. He said Forth was talking too much. He said he had told Forth about it when he cut the bee tree. I am Earl Buckley's brother-in-law. Lutman was commonly known as `Fritz' or `Old Fritz' in the neighborhood."

On cross-examination, witness stated he did not remember if, on the former trial, he was asked if he had had conversations with Chambers Buckley about the killing of Lutman, it that he was asked about Earl several times. Witness stated that at the time of the trial he was under arrest and in jail, charged with killing Lutman; that he had no promise of discharge if he testified right.

H. L. McDade testified:

"Referring to a lawsuit between Chambers Buckley and Lutman, I asked Buckley how he came out with Lutman. He said, `They made me awful mad. If I had had my gun I don't know but what I would have hurt him.' Then we talked for a few minutes, and he says, `If it occurs again I will crack down on him.'"

The state offered evidence as to statements made by Earl Buckley and Claude Estes, which were admitted over the objections of the defendant that they were not made in the presence of the defendant and were hearsay. The court, in overruling the objections, said the prosecuting attorney announced he expected to prove a conspiracy and that they would not be admissible unless the conspiracy were proved.

Arthur Allen testified:

"I had a conversation with Earl Buckley in March or April, 1922. Earl Buckley said he would like to go over and rock Lutman's house; raise a little hell with Lutman. Claude Estes says: `Who would go?' He was the only one that said anything, and he said, `You and me and Charlie;' says, `We could get others to go.' That was all that was said at that time, and the next time Earl Buckley ever mentioned Mr. Lutman * * * was one morning when Lutman was passing his place; he said it was Mr. Lutman, and he made the remark that it was too good a set of harness * * * for that s. o. b. to be driving. * * * The next time, * * * two or three weeks, something like that, Mr. Lutman passed Buckley's place again, and he made remarks something about Lutman. * * * He said he would like to kill that s. o. b. During that day he asked me if I would like to trap Mr. Lutman, and he said by stretching a wire across the road at the foot of the hill on Mr. Lutman's way he would return home back from town, and hide and shoot off a gun and scare the team and cause the team to run away and throw Mr. Lutman out of the wagon, and told him, `No, sir; II wouldn't go with him.'"

The witness related other conversations with Earl Buckley, in which he suggested that they rock Lutman's house; that be would like to get that s. o. b.—the witness continuing: "One day we were fixing a fence he mentioned to me about killing Alfred Lutman. He said he would give me $25 or $30, or get me a new suit of clothes if I would kill Alfred Lutman for him." Witness refused, and Earl Buckley called him a coward and ...