State v. Mansker

• Decision Date: 17 November 1936
• Docket Number: No. 34784.,34784.
• Citation: 98 S.W.2d 666
• Parties: THE STATE v. FERD MANSKER, Appellant.
• Court: Missouri Supreme Court

98 S.W.2d 666

THE STATE v. FERD MANSKER, Appellant.

No. 34784.

Supreme Court of Missouri.

Division Two, November 17, 1936.

Appeal from Mississippi Circuit Court. — Hon. Frank Kelly, Judge.

AFFIRMED.

W.H. Grissom and John Fletcher for appellant.

Roy McKittrick, Attorney General, and Wm. Orr Sawyers, Assistant Attorney General, for respondent.

COOLEY, C.

In the Circuit Court of Mississippi County appellant was convicted of murder in the first degree and sentenced to life imprisonment for the killing of Elisha (called Lige) P. McCutchan, in said county. We shall refer to appellant as the defendant and to McCutchan as the deceased. The killing occurred on the night of July 3, 1935. That it was murder is clear from the evidence and is not seriously disputed. Defendant's motion for new trial presents but few questions for review, mainly the giving of certain instructions on the subject of conspiracy, defendant contending that the evidence did not warrant instructions on that theory, and the admission of certain evidence relative to deceased's financial status and living conditions in his home.

The theory of the State was that deceased was murdered for the purpose of collecting his life insurance, pursuant to a conspiracy in which were implicated C.V. Williams, Bud Greece, Albert Vowels, Chester ("Big Son") Brightman and the defendant. Brightman is a negro, the other alleged conspirators being white men. The evidence tended to show the following:

Deceased was a man in very poor circumstances, working at common labor for small wages and living in a small three-room box house, which was in ill repair and poorly furnished. At times he and his family lacked sufficient food. In March, 1935, Williams, an insurance agent working for the Kansas City Life Insurance Company, wrote and delivered to deceased a policy of life insurance, insuring deceased in the sum of $2500, and another of like amount insuring deceased's wife. It is a fair inference from all the evidence that Williams, at the time of writing these policies, had in mind making away with deceased or his wife, or both of them, or procuring it to be done, for the purpose of himself collecting the insurance. Some time before deceased was murdered — the time does not definitely appear — Williams went to the McCutchan home and procured the policies. It seems that there had been some default in the payment of premiums, but from statements of Williams to witnesses in the case it appears that the policies could yet be kept alive by payments of the premiums, which Williams apparently made. Two or three days after deceased's death Bud Greece was arrested in Danville, Illinois, and had the policies in his possession, together with a paper which is not set out in the record but which the evidence indicates was a written assignment of the policies to Williams.

Vowels testified as a witness for defendant. He had been indicted for the same offense. Although warned by the court, in the presence of his attorney, that there was an indictment pending against him for the same offense and fully informed of his rights he testified voluntarily. He said, in answer to a question propounded to him on cross-examination, that he had already either been convicted or had pleaded guilty but, if so, it is not shown that he had been sentenced. At any rate, as stated, he was called by defendant and testified freely, and at some length. Such further reference to his testimony as may be deemed necessary will be made in the course of the opinion. For the present we deem it sufficient to say that from facts testified to by him and from all the facts and circumstances shown in evidence it is clear that there existed a conspiracy to kill deceased among at least Williams, Greece, Vowels and Brightman, as early as June 10, 1935, and on the part of Williams a design to that effect and conversations between him and Vowels relative thereto for some time prior to said date.

The evidence tending to link defendant with the conspiracy is not so clear. He was an intimate friend of Vowels and at the time of the murder was working for Vowels at the latter's garage at Wyatt, Mississippi County. He knew the other alleged conspirators, but the evidence does not show that, prior to the murder, he had had any conferences with Williams or Greece. He had ample opportunity, of course, to confer with Vowels. Of such conferences and of the testimony of Brightman, a witness for the State, we shall speak later.

Deceased lived on what appears to have been a somewhat lonely dirt road several miles from Wyatt. The distance of the place of the homicide from deceased's home is not shown. His body was found there the next day. The homicide appears to have been committed between about eight or eight-thirty P.M., and midnight of July 3rd. Deceased was killed by being struck on the head with some heavy blunt instrument — the State's evidence tends to show a heavy hammer. The circumstances — as well as Brightman's testimony — tend to show that he was struck from behind, while urinating. His skull was crushed. The blow or blows must have caused practically instantaneous death. While the State, as we have said, contends that the killing was pursuant to the conspiracy we have referred to, its evidence — the testimony of its witness, Brightman — is also to the effect that the defendant himself struck the lethal blow, or at least one of them — there appear to have been several blows struck.

Brightman, a witness for the State, testified in substance as follows:

About two days before the murder Vowels came to him in the field where he was "chopping" cotton and told him he (Vowels) and "Mr. Ferd" — defendant — had a job with "a right smart of money in it," that Brightman could make more money doing that job. Vowels did not then tell him what the job was nor how much it would pay, promising to tell him later. The next day, July 2nd, Vowels again saw him in the field. He asked Vowels what the job was and Vowels told him he, Vowels, would give him $200 to "bump a man off" but did not tell him who the man was. Brightman says he told Vowels, "I ain't never done nothing like that in my life, I ain't never killed nobody, I wouldn't do that." Vowels then said to him, "Well, just go with me and Mr. Ferd, then," to which he said "All right," in order to get Vowels out of the field so that his employer "wouldn't say nothing about holding the mules up." Vowels cautioned him not to tell anybody, to which he agreed, and Vowels left. Testimony of other witnesses corroborated Brightman's testimony that Vowels saw and talked with him in the field.

According to Brightman's testimony he next saw Vowels the evening of July 3rd. He says he had run out of gasoline and was on his way to get some when he met a boy in a car who took him to Vowels' garage at Wyatt, his purpose being to get some gasoline. There he met Vowels, who said he was just starting to see him to get his battery, which it seems Brightman had. He got a gallon of gasoline and started afoot to his home, not far from Wyatt. While putting the gasoline in his car Vowels came, in his own car. (Vowels testified that he went to get his battery which was needed to start the Delco lighting system at the garage.) Brightman said he then started to Wyatt but his car would not run and Vowels, with his car, pushed him to Wyatt. Vowels then, in his car, took Brightman's mother and some other relatives home, Brightman going also, riding on the fender. He got off the car but Vowels, when he had turned around, asked him to "come go a piece with me." He got in the car and then for the first time discovered that deceased was also in the car, "laying over on the left hand side in the corner, asleep." He asked Vowels "Who is that?" to which Vowels replied, "That's the man I was telling you about."

During the occurrences above referred to on the evening of July 3rd, defendant was at Vowels' garage. According to Brightman when he and Vowels returned after taking his mother home, Vowels and defendant "talked a little, I don't know what about, ... turned around and come back to the car" and defendant told Brightman to get in the back seat which he did. It appears deceased was also in the back seat, and Vowels and defendant rode in the front seat, Vowels driving.

Brightman then described in detail the route they took toward deceased's home, stopping several places, once to get a lunch, two or three times to buy liquor and to take drinks. When they reached a place where the road "goes under the railroad" Vowels stopped the car, leaving the engine running, they all took another drink and "Mr. Albert (Vowels) and Mr. Ferd (defendant) gets out of the car and talked ... I don't know what they talked about, they come and get back in the car and pulls on out to the next little road, crosses over the railroad and stopped again and we all took another shot of the liquor, all except Mr. McCutchan, he wouldn't take no more... . We go down at the side of this alfalfa and get to a little bridge. Mr. Ferd says, `This road is too rough, this is far enough to go.'" Here, for a space, we quote Brightman's testimony. After stating that the place where they last stopped was about a quarter of a mile west of the "alfalfa" — apparently a place called the alfalfa mill — he testified:

"When we gets to the bridge he (defendant) said, `This road is too rough, this is far enough to go, let's turn round;' well, Mr. Albert whipped the car to the right, run down to a little ditch and turns round, he backs up a little towards the bridge; Mr. Ferd gets out on the right hand side; Mr. Ferd is the first man out, and Mr. Albert rouses Mr. McCutchan, says, `Wake up, old top,' that's what he said to Lige McCutchan; he roused up; after he roused up he says, `Get out, this is as far as we are going, the road is rough.' At that time Mr. Albert gets out on the left hand side, I goes on over Mr. Lige's feet on out, and Mr. Ferd is on the right...