The State v. Buckley
| Citation | 298 S.W. 777,318 Mo. 17 |
| Decision Date | 10 October 1927 |
| Docket Number | 27853 |
| Parties | The State v. Chambers Buckley, Appellant |
| Court | Missouri Supreme Court |
Appeal from Benton Circuit Court; Hon. B. G. Thurman Judge.
Reversed and remanded.
Henry P. Lay for appellant.
(1) Under the evidence the trial court should not have submitted the case to the jury. State v. Buckley, 274 S.W. 74 and cases cited. The appellant now respectfully submits to the court that taking all the legal evidence offered by the State there is no sufficient evidence: (a) that Estes actually killed the deceased; (b) that the present defendant conspired with Estes for the purpose of having Lutman killed; (c) that there was any conspiracy between Estes, the defendant and Earl Buckley legally proved. (2) It was gross error to admit statements alleged to have been made by Earl Buckley out of the presence of the appellant, no conspiracy between the defendant and Earl Buckley having been proved, by any competent testimony. Without proof of a conspiracy, alleged admissions of a coconspirator are not admissible. 16 C. J. 647; State v Harrison, 263 Mo. 642; State v. Ferrell, 246 Mo. 322; State v. Potts, 239 Mo. 403; State v. Fields, 234 Mo. 615. (3) The appellant concedes that a conspiracy need not be established by direct evidence; but insists that it must be established, as is agency in a civil action, by proof of circumstances from which the existence of a conspiracy may be fairly inferred, before alleged statements of coconspirators are admissible. (4) Even though a conspiracy had been sufficiently proven, yet it was material error to admit statements by the alleged coconspirators Earl Buckley and Estes made after the murder. State v. Forshee, 199 Mo. 145; State v. Frisby, 204 S.W. 3; State v. Hayes, 249 S.W. 49.
North T. Gentry, Attorney-General, and Smith B. Atwood, Assistant Attorney-General, for respondent.
(1) Statements of coconspirators made during the existence of the conspiracy are admissible even though made out of the presence of the defendant. State v. Smalley, 252 S.W. 443; State v. Shields, 296 Mo. 389; State v. Gatlin, 267 S.W. 797; State v. Bersch, 276 Mo. 397. Statements made after the conspiracy has terminated are not admissible. State v. Hayes, 249 S.W. 49; State v. Frisby, 204 S.W. 3. All of such statements made after the termination of the conspiracy were withdrawn from the consideration of the jury, and they were instructed that they were not to regard them in arriving at their verdict. See Instruction 8. (2) In passing on the demurrer to the evidence the court had to assume the truth of the State's evidence. State v. Mann, 217 S.W. 67; State v. Hogle, 137 S.W. 21. There appears to be ample evidence to justify a finding by the jury that a conspiracy existed; that appellant knew of its existence, and that he participated in it. (3) Statements of alleged coconspirators, even though not made in the presence of the defendant, are admissible. State v. Smalley, 252 S.W. 443; State v. Shields, 296 Mo. 389. (4) The question of the existence of the conspirators is one for the jury and may be shown by circumstantial evidence alone. State v. Craft, 299 Mo. 332; State v. Delbono, 306 Mo. 553; State v. Porter, 199 S.W. 158. (5) When an intention is announced to show a conspiracy, the trial court has wide discretion as to the time when such statements are admissible. State v. Reich, 293 Mo. 422; State v. Walker, 98 Mo. 95; State v. Fields, 234 Mo. 615. (6) The jury having found that a conspiracy existed to which appellant was a party, appellant was equally guilty with Claude Estes who actually did the killing, although not present or participating. State v. Reich, 293 Mo. 423; State v. Porter, 199 S.W. 158; State v. Sheline, 225 S.W. 673.
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 last 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 six 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 he said he and the boys were building a fence on or near the line between him and Lutman. He 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...
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