The State v. Buckley

• Decision Date: 05 June 1925
• Docket Number: 25773
• Parties: THE STATE v. CHAMBERS BUCKLEY and EARL BUCKLEY, Appellants
• Court: Missouri Supreme Court

274 S.W. 74

309 Mo. 38

THE STATE v. CHAMBERS BUCKLEY and EARL BUCKLEY, Appellants

No. 25773

Supreme Court of Missouri

June 5, 1925

Appeal from Benton Circuit Court; Hon. Berry G. Thurman Judge.

Reversed and remanded.

C C. Barrett and Henry P. Lay for appellants.

(1) The trial court committed error in admitting the testimony of witness Mabary, that the alleged accomplice Estes after the commission of the crime, stated to the witness, Mabary "I met him and fed him three," referring to Alfred Lutman, the deceased. Statements made by an (alleged) accomplice, after the commission of the (alleged) crime, cannot be admitted in evidence against the defendants. This, of course applied to all evidence of this character. 16 C. J. 656; State v. Forshee, 199 Mo. 145; State v. Frisby, 204 S.W. 3; State v. Hays, 249 S.W. 49. (2) Appellants insist that the trial court erred in refusing defendants' instructions in the nature of a demurrer to the evidence, requested both at the close of the State's case and at the conclusion of the testimony. The State's case, as shown by its instructions, was predicated upon the theory that Claude Estes killed Alfred Lutman; if the court will read the testimony carefully, it will find that there is no competent evidence that Estes killed Lutman; eliminate the incompetent testimony, and there is no evidence that Lutman was brought to his death by Estes. Certainly, there is no legal evidence, upon the State's own theory, that the present defendants were instrumental in Lutman's death. We insist that the court apply the same rules of evidence, presumptions and rules which the court always applies in civil cases; we ask nothing more; certainly we are entitled to nothing less.

Jesse W. Barrett, Attorney-General, and George W. Crowder, Assistant Attorney-General, for respondent.

(1) Flight is a circumstance to be taken into consideration, when unexplained, in determining the guilt of an accused and in this case testimony of the escape and flight of Claude Estes was proper as a circumstance to be considered by the jury in determining his guilt of the murder of Lutman, he being accused of the actual killing, pursuant to a conspiracy entered into with appellants. (2) A conspiracy may be established wholly by circumstantial evidence, and the trial court has a large discretion in determining whether a conspiracy has been established sufficiently to admit evidence of statements made by the conspirators. State v. Bersch, 276 Mo. 397; State v. Casto, 231 Mo. 398; State v. Hembree, 295 Mo. 1; State v. Samis, 296 Mo. 471. Anything said or done by one of a number of conspirators, with respect to the purpose of the conspiracy, before a conspiracy has been finally concluded, is admissible in evidence against the others, whether said or done in the presence of the others or not. State v. Bersch, 276 Mo. 397; State v. Bobbitt, 228 Mo. 252; State v. Fields, 234 Mo. 615; State v. Kolafa, 291 Mo. 340; State v. Samis, 296 Mo. 471; State v. Pfeiffer, 277 Mo. 202. (3) The evidence was sufficient to take the case to the jury, and the court committed no error in overruling appellants' instruction in the nature of a demurrer to the evidence.

OPINION

Blair, J.

Defendants were convicted of murder in the first degree for the killing of Alfred E. Lutman in Benton County. They were sentenced in accordance with the verdict to imprisonment for life in the State Penitentiary and have appealed.

As the main question in the case is the sufficiency of the evidence to sustain the verdict, a full understanding of the facts is necessary. Chambers Buckley is the father of his co-defendant, Earl Buckley. He and his family lived upon a farm adjoining the farm of deceased. The deceased lived alone upon a farm of several hundred acres and engaged extensively in stock raising. In July, 1922, he was missed from his usual haunts, and it began to be suspected that he might have been the victim of foul play. After a careful search of his farm by some of his neighbors, his badly decomposed body was found on July 14, 1922, in the brush on his own place about a half mile from the home of Chambers Buckley. It is not entirely clear just when deceased disappeared, but the most reliable evidence tended to show that he was last seen alive about June 14th, or about one month before his body was found.

In oral argument here counsel for defendants conceded that the proof of the corpus delicti was sufficient, that is, that the body found was that of Lutman and that his death was due to the criminal act of someone. However, it is vigorously contended that the evidence is entirely insufficient to sustain the finding of the jury that either or both of the defendants were guilty of killing the deceased, or of conspiring with another who actually fired the fatal shots. It is the theory of the State that one Claude Estes did the killing in pursuance of a conspiracy to that end with the defendants, who hired him to commit the murder. The evidence relied upon to establish such conspiracy and to prove the killing by Claude Estes was wholly circumstantial.

In his brief, as well as in oral argument, counsel for defendants agreed that the statement of facts made by the Attorney-General is substantially correct. Therefore, we may safely quote from such statement as follows:

"As furnishing a motive for the murder, it was shown that a deep grudge of long standing was held by appellants against Alfred Lutman; that appellants had often been heard to speak bitterly against deceased, threatening his life, saying that he ought to be dead; that he would be found dead with his head shot full of holes, and that when so found it was their opinion that he wouldn't have friends enough to bury him. Such talk came particularly from appellant Chambers Buckley. The language of Chambers Buckley, as shown by the testimony, was unusually wicked and vicious. He was heard to say that he would rather kill Alfred E. Lutman than to eat when he was hungry; that he would love to walk upon his bones, and similar statements of a vicious and wicked character were attributed to him. It was shown that appellant Earl Buckley, at different times, suggested to his comrades that they waylay the road and kill Lutman, and there was evidence that he went so far as to offer money for the killing. Such suggestions finally found lodgment in one Claude Estes, a young man in the neighborhood whose father had at one time had some difficulty with Mr. Lutman. After the passage of months through which these threats had been made, witnesses heard appellant Earl Buckley propose to Claude Estes that Claude do the actual killing, offering him money for the job.

"About the 14th of June, 1922, Claude Estes, carrying a 22-caliber rifle belonging to the appellant Chambers Buckley, and accompanied by Chambers Buckley, entered the latter's cornfield, where two girls named Minnie and Mary Farth, granddaughters of Chambers Buckley, were engaged in replanting corn. This was in the afternoon, and Claude Estes was in a partial state of intoxication. When Estes left the corn field he was seen to go in the direction of Alfred Lutman's house and was seen no more. After he left the corn field, the two girls, either having finished their work or discontinuing it for the day, went to the home of Chambers Buckley where they lived, and in the evening of the same day, as they testified, Claude Estes came back to the home of Chambers Buckley, put up the gun in the house, and went out on the porch where he had a talk with appellant Chambers Buckley. At different times following this date Earl Buckley and Claude Estes were seen together frequently engaged in private conversation, and at one time shortly thereafter Earl Buckley was seen to pass some money to Estes. Soon after the money transaction, Claude Estes left the neighborhood and was arrested in another state and brought back to Benton County.

"After the body of Alfred Lutman had been found, Chambers Buckley was heard to repeat the disparaging things that he had theretofore said, and it was disclosed by the evidence that when he went down and looked at the body on the day it was found and upon observing its advanced state of decomposition, he was heard to say that if the fellow who did it would keep his mouth shut and just say no, there would be no way to ever prove who committed the murder, and was heard to say further that Lutman had only received his just desert."

In connection with the statement of the Attorney-General concerning the ownership by Chambers Buckley of a 22 rifle and its possession by Claude Estes, it should be noted that the testimony tended to show that two bullet holes were found in the body of deceased. One pierced the skull and the bones of the face, and the other entered the body in the region of the heart. Witness Drennon testified that he judged that the wound in the head was made by a 38-caliber bullet. Presumably, the hole made in the head would quite accurately indicate the size of the bullet making such hole. After the body was found and a number of people had been about and in the vicinity of the body of the deceased, one witness testified that he found four discharged 22 rifle shells not far from the body.

One Arthur Allen, who seems to have lived at the Buckley house for a time prior to the killing, testified that defendant Earl Buckley offered to pay him if he would kill Lutman. He also testified that he heard Earl Buckley suggest to Claude Estes that he lure Lutman from his house and kill him; that he would give him twenty-five or thirty dollars. This witness afterwards told Earl Buckley he knew...