The State v. Condit

• Decision Date: 19 March 1925
• Docket Number: 25784
• Parties: THE STATE v. EMMA CONDIT, Appellant
• Court: Missouri Supreme Court

270 S.W. 286

307 Mo. 393

THE STATE v. EMMA CONDIT, Appellant

No. 25784

Supreme Court of Missouri

March 19, 1925

Appeal from Andrew Circuit Court; Hon. Thomas B. Buckner Special Judge.

Reversed and remanded.

Maurice Murphy, K. D. Cross and Eastin & McNeely for appellant.

(1) The written statements preceding the oral statements were not voluntary and not admissible. Therefore they were properly excluded. Greenleaf on Evidence (15 Ed.) sec. 219; Wharton's Crim. Evidence (10 Ed.) p. 1320; Underwood on Crim. Evidence, sec. 140; 12 Cyc. 464; State v Brockman, 46 Mo. 566; State v. Powell, 258 Mo 248, 266 Mo. 100; State v. Thomas, 250 Mo. 211; State v. Lewis, 273 Mo. 518; State v. Ellis, 294 Mo. 269, 24 L. R. A. 682; State v. Borello, 161 Cal. 367, 37 L. R. A. (N. S.) 434; Watts v. State, 99 Md. 30; Parker v. State, 46 Tex. Crim. 461, 80 S.W. 1008; Watts v. United States, 20 App. D. C. 347; State v. Whitfield, 70 N.C. 356; State v. Carson, 36 S.C. 524; Hoober v. State, 81 Ala. 51; State v. Dougherty, 2 Tenn. (2 Over.) 80; State v. McCullum, 18 Wash. 394; Baum v. United States, 168 U.S. 532, 42 L.Ed. 568; State v. Nagle, 25 R. I. 105; People v. Prestige, 182 Mich. 80. (2) The written statements preceding the oral statements were procured through violation of the statutes, and through violation of, at least, the spirit of the Constitution. For that reason, also, they were properly excluded. U.S. Constitution, VI Amendment; Mo. Constitution, art. 2, sec. 22; R. S. 1919, secs. 3200, 3681; State v. Young, 119 Mo. 520; State v. Blackburn, 273 Mo. 482; State v. Thomas, 250 Mo. 211; Tucker v. Davis, 44 L. R. A. (N. S.) 1083, note; Purpura v. United States, 262 F. 473; Green v. State, 88 Ga. 516. (3) The written statements given at the police station, having been involuntary and illegally obtained, subsequent oral statements following in their wake will be presumed to have been the product of the same influence, and should also have been excluded. 16 C. J. 722; 6 Am. & Eng. Cyc. Law (2 Ed.) p. 542; State v. Ellis, 294 Mo. 269, 283, 24 A. L. R. 682; State v. Brown, 73 Mo. 631; Ammons v. State, 18 L. R. A. (N. S.) 857, note; People v. Stewart, 75 Mich. 21; Deathridge v. State, 33 Tenn. (1 Sneed) 75; Thompson v. Commonwealth, 20 Grat. (Va.) 724; State v. Force, 69 Neb. 162; State v. Miller, 68 Wash. 239; Owen v. State, 78 Ala. 425; State v. Guild, 10 N. J. L. 163, 18 Am. Dec. 404; 1 R. C. L. 573; State v. Chambers, 39 Iowa 179; State v. Wood, 122 La. 1014; State v. Drake, 113 N.C. 624; Commonwealth v. Taylor, 5 Cush. (Mass.) 605; Lang v. State, 24 L. R. A. 690. (4) Since the court, nevertheless, did admit such subsequent oral statements, the weight, if any, to be given them was a question for the jury in the light of all the circumstances and events leading up to them, and the trial court erred in excluding, under the penalty of admitting the inadmissible written statements, any and all evidence of the events of the two days' inquisition immediately preceding such oral statements. State v. McKinzie, 144 Mo. 48; Ammons v. State, 18 L. R. A. (N. S.) 866 and note; 1 R. C. L. 573, 574; Commonwealth v. Harmon, 4 Pa. St. (4 Barr) 269; People v. Barker, 60 Mich. 277; Spence v. State, 17 Ala. 192; State v. Wells, 35 Utah 400; Milner v. State, 124 Ga. 86; White v. State, 129 Miss. 182, 24 A. L. R. 702. (5) It was error to exclude the testimony of the witness O. L. Tarvin and other evidence tending to show absence of conspiracy and to deny in that connection, the defendant's offer of proof showing how the insurance on the life of defendant and her husband came to be taken out and showing that it was not done pursuant to a conspiracy, but was done from independent causes and in good faith. 21 Cyc. 930; State v. Young, 119 Mo. 522; State v. Gabriel, 88 Mo. 638; Johnke v. State, 68 Neb. 154; Harrison v. State, 18 Ala. 5; Mathison v. State, 87 Miss. 739; Mutual Ins. Co. v. Hillmon, 145 U.S. 285. (6) It was error to receive in evidence, over defendant's objection, Whittaker's testimony as to alleged conversations with Rex, out of the hearing and presence of the defendant. The time at which some of said conversations were alleged to have been had is not fixed, and the time of others is clearly after the murder. State v. Hays, 249 S.W. 49; 16 Cyc. 1199; State v. Roberts, 201 Mo. 702; Brown v. United States, 150 U.S. 98, 37 L.Ed. 1010; 1 R. C. L. sec. 61, p. 520.

Jesse W. Barrett, Attorney-General, and Harry L. Thomas , Special Assistant Attorney-General, for respondent.

(1) The oral confessions of appellant, shown by the record to be purely voluntary, and found by the jury, under proper instruction, to be voluntary, were admissible. The trial court gave the appellant the benefit of the doubt in excluding the written confession at the first trial, although the State offered substantial evidence that the same was made voluntarily. The question as to whether the oral confessions were voluntary was properly submitted to the jury although there was no evidence offered by appellant that such confessions were involuntary, the making of such being denied by appellant's witnesses. State v. Ellis, 294 Mo. 269, 281; State v. Stibbens, 188 Mo. 387, 389. It affirmatively appears that all of the influences that might have attended the taking of the original statement had been fully removed. State v. Brown, 73 Mo. 631, 634. The making of the oral confessions was the only point in question. The State affirmatively showed that the confessions were voluntary. The appellant offered no evidence to the contrary. The evidence as to the written confession was therefore properly excluded. (2) The evidence was sufficient. To entitle the State to introduce in evidence against the person on trial the acts and declarations of another relative to the felonies charged, it is essential to the existence of a conspiracy that a common design or purpose between the defendant and the alleged co-conspirator to commit the crime be shown, but the law does not require direct and positive proof or evidence of such conspiracy. State v. Fields, 234 Mo. 615; State v. Roberts, 201 Mo. 702; State v. Darling, 99 Mo. 168; State v. Sykes, 191 Mo. 62. Where a conspiracy is established, the act or declaration of the common plot or undertaking is the act or declaration of all. State v. Walker, 98 Mo. 104.

White, J. Blair, J., concurs; Walker, P. J., not sitting.

OPINION

WHITE

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 co-indictee, 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 thirty-eight 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 the Union Station. Her hours at the hotel were from eight A. M. to two 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 persons 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 the Missouri River 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 sixteen 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...