State v. Lourie

• Decision Date: 18 December 1928
• Docket Number: No. 28284.,28284.
• Citation: 12 S.W.2d 43
• Parties: STATE v. LOURIE.
• Court: Missouri Supreme Court

12 S.W.2d 43

STATE v. LOURIE.

No. 28284.

Supreme Court of Missouri, Division No. 2.

December 18, 1928.

Appeal from Circuit Court, Jackson County; Nelson E. Johnson, Judge.

Alberdina Lourie, alias Alberdina Frank, was convicted of an attempt to commit first degree murder, and she appeals. Reversed, and defendant discharged.

George H. Combs, Jr., and Carl L. Crocker, both of Kansas City, for appellant.

North T. Gentry, Atty. Gen., and L. Cunningham, Asst. Atty. Gen., for the State.

HENWOOD, C.

This is the companion case of State v. Davis, decided by the court in banc at the April term, 1928, and reported in 6 S.W.(2d) at page 609. This appellant and Davis were jointly charged in the circuit court of Jackson county with an attempt to commit murder in the first degree. A severance was granted, and, upon a separate trial, this appellant was convicted and sentenced to imprisonment in the penitentiary for five years. Davis, also, was convicted, upon a separate trial, but, upon his appeal, the judgment in his case was reversed for failure of proof, and he was discharged, in accordance with the decision above mentioned. The facts in this case being the same in all essentials as the facts in the Davis Case, the same result necessarily follows in this case.

With the exception of the written confession of Davis, which we have inserted, in substance, the evidence offered by both sides in this case is fairly and comprehensively stated by Mr. Cunningham, Assistant Attorney General, in his brief, as follows:

"The evidence for the State tends to prove that defendant and Edmon Lourie had lived together for several years and were the parents of a son; that defendant and Carl B. Davis were in love with each other and planned to have Edmon Lourie killed so that they could get his life insurance amounting to $66,000.00 and be together. Edmon Lourie was away from home most of the time, returning at intervals of two or three weeks. In the furtherance of their plans, the defendant and Carl B. Davis engaged Earl E. Leverton to secure for them the services of some ex-convict who would commit the murder for hire. Leverton, instead of securing an ex-convict, disclosed the plot to Joel L. Dill, who was a member of the police force of Kansas City, Missouri, and who agreed to pose as the ex-convict and meet the appellant and Carl B. Davis. Several meetings were had between Carl B. Davis, Earl E. Leverton and Joel L. Dill, at which time Davis stated that he and the appellant were in love and wanted Edmon Lourie killed, and that appellant would pay for the murder. He fully explained their plans and made an agreement with Dill to kill Lourie for $600.00 and diamonds of the value of $3,000.00. They also arranged for appellant and Dill to see each other and thus be able to recognize each other by sight. Appellant was present with Davis at the time and place appointed for that purpose. Lourie was in Chicago in the early part of February, 1926, and appellant, through Carl B. Davis, arranged for Dill to go there and commit the crime, and if he should be unable to locate Lourie, that she would go to Chicago and help. Appellant then learned that Edmon Lourie would return to Kansas City about the 13th of February, 1926, and Davis arranged with Dill that upon Lourie's return, appellant would notify Davis, who would notify Leverton who would in turn notify Dill of the time. Appellant gave Davis six hundred dollars, which Davis paid to Dill. It was agreed by appellant and Davis and in turn with Dill that appellant would persuade Edmon Lourie to go with her to some place of amusement and leave their home together at eight o'clock at night, and that she would carry the diamonds on her person; that Dill should shoot Lourie, either as they left their home or as they returned and should also muss appellant up some and take the diamonds and make it appear as a robbery, and that she would faint, or appear to faint, and give him time to get away. The word was accordingly sent to Dill that Lourie and appellant would leave their home at eight o'clock on the night of February 13, 1926, and for him to commit the murder that night. Dill took three other police officers with him and went to Lourie's home about eight o'clock as planned. They found Lourie and appellant both fully dressed and ready to start. Appellant had the diamonds on her person. When Dill and the other officers entered the room, appellant turned pale and turned away facing the wall. As she listened for the shot, she heard instead Officer Dill directing that she and Edmon Lourie be taken to the police station. Two of the officers took them in charge, and Dill and another one of the officers went after Davis and arrested him. The appellant made a confession which was reduced to writing and signed by her. She made an oral confession in the presence of Dill and others in which she said that she furnished the money and gave it to Davis and intended to have Edmon Lourie killed, and that she intended to give her diamonds as part payment when the job was finished. She also made an oral confession in the presence of Chief of Detectives L. R. Toyne as follows:

"`Q. Just tell the jury here, Chief, what she said.

"`A. I asked her if it was true that she wanted to have her husband killed and she said it was. I asked her if she had plotted with Davis to have him killed; she said that she had. I asked her if she knew Joe Dill. She said she thought she did know him once. I asked her if she had seen him at Eleventh and Oak and she said she didn't remember. Then I asked her if she wanted to make a written statement and sign it and she said she would rather not at that time, and she told me the details and that Frank had been mean to her and she wanted him killed, and she had talked to Davis about having him killed. I asked her if it was her money she had given to Davis that night and she said it was.

"`Q. Did you hand her Davis' statement?

"`A. I did.

"`Q. Did she read it?

"`A. Yes.

"`Q. What did she say?

"`A. She said, "That statement is true. That is a fact."'

"(The written confession of Davis, as stated, in substance, in the opinion in his case, is as follows: `Upon his arrest, defendant [Davis] made and signed a confession in which he stated that he and Alberdina planned to have Edmon Lourie killed. In pursuance to the plan he met Dill, whom he assumed to be an ex-convict and the subject of hire for the purpose intended. The day before the contemplated murder he gave Dill $200 and $400 the day the murder was to be consummated, together with a picture of Edmon Lourie. It was arranged that Dill was to go to Chicago to kill Lourie. Lourie, however, unexpectedly arranged to go home, notifying Alberdina of his intention by telegram. Thereupon Alberdina informed defendant of the fact, whereupon he notified Dill, resulting that the scene of the contemplated murder was changed to Lourie's home in Kansas City. The arrangements contemplated that Alberdina was to accompany Lourie that night to a picture show, and Dill was to stage a hold-up and kill Lourie. Alberdina agreed to remove the diamond rings from her fingers, giving them to Dill, and he was to retain them as part payment for the murder of Lourie. Lourie masqueraded under different names, among them Lourie, Frank, Payne, and Edmonds; Alberdina telling defendant that she thought he was a master mind among criminals.')

"It was shown that all of the acts occurred in Kansas City, Jackson County, Missouri, during the months of January and February, 1926.

"At the close of the State's case, appellant requested an instruction in the nature of a demurrer, which was overruled. Appellant requested the court to call Earl E. Leverton and E. L. Lourie as court witnesses, which was refused.

"The evidence of the defendant tended to prove that she had endured a hard life; that Edmon Lourie was a Jew and that they...