State v. Cowdit

• Decision Date: 19 March 1925
• Docket Number: No. 25784.,25784.
• Citation: 270 S.W. 286
• Parties: STATE v. COWDIT
• Court: Missouri Supreme Court

270 S.W. 286

STATE v. COWDIT

No. 25784.

Supreme Court of Missouri, Division No. 2.

March 19, 1925.

Appeal from Circuit Court, Andrew County; Thos. B. Buckner, Special Judge.

Emma Condit was convicted of murder in the first degree, and she appeals. Reversed and remanded.

Maurice Murphy, of St. Joseph, K. D. Cross, of Savannah, and Eastin & McNeely, of St. Joseph, for appellant.

Jesse W. Barrett, Atty. Gen., and Harry L. Thomas, Sp. Asst. Atty. Gen., for the State.

WHITE, J.

On February 19, 1924, in a trial before a jury in the circuit court of Andrew county, the appellant was found guilty of murder in the first degree, and her punishment assessed at imprisonment for life in the penitentiary. She and one Bert Whittaker were jointly charged with the murder of her husband, Roy Lee Condit, March 26, 1923. There was a severance.

Almost the sole evidence against the appellant was the testimony of her coindictee, Bert Whittaker, who, at the time of her trial, was confined in the penitentiary, having been convicted of the same murder, and some confessions which the appellant is said to have made after she was arrested.

At the time of the trial the defendant, Emma Condit, was 38 years of age. She married her husband in 1904. They lived in St. Joseph. Her husband was salesman for the Apex Electrical Company, and solicited business for the Standard Life Insurance Company. Defendant worked in St. Joseph as a cook at the Haber Hotel across the street from Union Station. Her hours at the hotel were from 8 a. m. to 2 p. m., and from 5:30 p. m. to 7:30 p. m. She did her housework mornings, afternoons, and evenings. They had no children.

On March 26, 1923, Roy Condit disappeared. Thirteen days later, on Sunday, April 8, 1923, his body was found by some fishermen, partly submerged in the Platte river near the line between Andrew county and Buchanan county. Barbed wire attached to a heavy rock was tied around one foot, a fur collar was tied over his head, and the body bound around the knees with rope. Examination of the body showed he had been clubbed to death by blows upon the head, and the body afterwards thrown into the river.

After the disappearance of her husband, the defendant made such inquiries as might be expected of an anxious wife, of persona who might know his whereabouts, including Whittaker. Roy Condit's father, O. S. Condit and Roy's mother, his sister, Mrs. John Wasson, and the defendant's sister, Mrs. Courter and her husband, lived across in Kansas at Troy and Wathena. At the time of the disappearance of Roy Condit, his brother, George Condit, had come recently from Louisiana and was visiting his relatives. All these, Roy Condit's relatives, as well as the defendant's relatives, stood by her and were witnesses in her behalf at the trial. Johnnie Wolf, a boy 16 years of age, nephew of defendant, also was a witness in her behalf.

Bert Whittaker had been a friend of Roy Condit. The evidence shows they had been quite intimate for years, and that Whittaker often visited Condit at home. Roy Condit drank a great deal, was frequently drunk, and at such times was cruel to his wife.

On March 27th, the day following the disappearance of her husband, Emma Condit hired Whittaker to drive her over to Troy, Kansas, for the purpose of making inquiries about her husband, and afterwards, at her request, George Condit stayed at her house, reported the disappearance ,to the police, and apparently made every effort to find what had become of Roy Condit. On April 9th, after discovery of the body on April 8th, Emma Condit was arrested and taken to the police station. Bert Whittaker also had been arrested.

It was the theory of the state that the defendant, for the purpose of collecting life insurance, caused the death of her husband and procured the assistance of Whittaker in making away with him. Mr. Cornelius, agent of the. New York Life Insurance Company, testified that in November, 1922, he was given the names of the Condits by Bert Whittaker, as prospects interested in life insurance. Whittaker told him where to find Condit, and where to find his wife. He went to see Mrs. Condit about it, and later she came to his office, made application for insurance on herself in the sum of $1,000 in favor of her husband, and took an application to her husband. She and her husband returned to the office, and a policy was issued on the life of each in favor of the other. Afterwards, an additional $1,000 was written on the life of Condit in favor of his wife. Cornelius said, "Well, at the time of making the original application, I ordered the additional $1,000 myself, with the possibility of delivering, it." Condit and his wife were present when the additional $1,000 was delivered. At the time of taking it out, Condit canceled $1,100 insurance in the Eagles. According to Mrs. Condit, he always carried insurance. Whittaker testified that one Adams told him that Cornelius was going to split the commission with him (Adams) and that Adams was going to split commissions with Whittaker. This Whittaker gave as his original reason for suggesting the names of the Condits for insurance.

Whittaker, the principal witness for the state, besides being at the time an inmate of the penitentiary, after conviction of the same murder, admitted that he had served two other terms in penitentiaries, one in Nebraska and one in Missouri. After the arrest he signed a written statement in which he described the manner of Roy Condit's death, associating a man named Rex with himself in the commission of the crime. Rex appears in the record as a mysterious person whom nobody knew. Mrs. Condit testified that she had seen him once; possibly another witness or two had seen him. The statement of Whittaker shows that he, Rex, and Roy Condit, March 26, 1923, drove to the country to get some whisky; that Condit and Rex were drinking. While they were driving on what he termed the East Savannah road, Rex, who was standing in the back end of the car, which had the top down, struck Condit on the head with a club. Condit got out of the car and Rex hit him again, and deliberately beat him with the club; he drew a gun on Whittaker, and told him to do what he was told or he would kill him. This appears to have been in Andrew county. The statement then tells how they stopped at an old well and got some rocks; how they got some barbed Wire, tied the rocks to the body and threw it into the river. It described the occurrence as a cold-blooded murder on' the part of Rex. Rex stayed in town two or three days and disappeared. Whittaker never told the police nor made any complaint about it because he was afraid. The statement goes further and connects Mrs. Condit with the killing. That part of it will be noticed below. This statement of Whittaker, excepting that part connecting Mrs. Condit with the murder, was read to the jury Over the objection of the defendant. Officers who took the statement were then permitted to testify, over the objection of the defendant, that Whittaker took them over the road showing where the murder was committed, where they found the club with which it was done, pointed out the place where the rocks and the barbed wire were obtained, and the place where the body was thrown into the river.

Whittaker then was offered as a witness, and testified that, after the taking out of the insurance mentioned, Mrs. Condit told him that she now had a policy on her husband, and she was ready for him to be "bumped off." He said that no offer was made to him except that Mrs. Condit asked him if he would do it, and he said, "No"; that she said she would split the insurance with anybody who would. He testified that he introduced Rex to Mrs. Condit, and that he told Rex about Mrs. Condit's proposition in regard to killing her husband, and the next morning after the murder Rex told him to see Mrs. Condit and have her send him (Rex) all the money she possibly could get hold of, that he had to leave town; that witness saw Mrs. Condit that morning, told her that Rex had killed Roy and thrown him in the river, told her to notify the police; that he was afraid to; that Rex threatened him. He described his driving Mrs. Condit over to Troy, Kansas, the next morning after the disappearance to see her relatives. At that time John Wasson, her brother-in-law, gave her a check for $50 for a cow he had bought. On her return Mrs. Condit requested him to cash the check, and he refused to do so. She then cashed the check and got the money, put it in an envelope and handed it to him saying: "Here is the $2 for driving me over to Troy." That the envelope contained $50, which he afterwards gave to Rex. That is his testimony. His account of the murder was somewhat different from that in his original statement. He said that Rex and Roy were pretty drunk and got into a fight, and some people coming along wanted to know if assistance was needed, and he told them he could separate them himself. This is his statement:

"I stopped when Rex hit Roy with—I don't know what he hit him with the first time—I know afterwards, after we got out of the car, I took the club away from him and threw it away. I killed the engine when I stopped. When he struck the man, Roy fell over to the side of the car and staggered out of the car, and Rex was right after him. I killed the engine and took out after Rex. Roy ran down the road a little ways, Rex after him, beating him all the time. I said, `Rex, what are you trying to do, kill that man?' and he said, `You are damn right.'"

He then described the disposition of the body as in his statement. In his original statement Whittaker said: "No one erase had any hand in the murder." He testified that he had no knowledge that Rex was going to hit Roy; Rex had said nothing to him about killing him, and that he considered it just a drunken fight. When asked what he did at the time he said he sat there dumbfounded.

The defendant afterwards put in evidence that part of...