*1 17 Nоtwithstanding distinctly allege appellant’s the failure of brief to carefully us errors, examined the record before other we have adjudged. properly tried, considered and conclude that the case was judgment affirmed. All concur. Appellant. S. 777. Buckley, The State W. Chambers Two, 10, 1927. Division October *2 Henry Lay appellant. P. for *3 Atwood, As- Attorney-General, and B. Gentry,
North T. Smith Attorney-General, respondent. for sistant
HIGBEE, C. This is a appeal. second An information was filed in the Circuit Court County, Bеnton charging the defendant and his son Earl and Claude with in murder the first de- gree. There August was a mistrial on 1923. On the second trial, begun August 24, 1923, the defendant and his son Earl were found guilty of degree murder in the first imprisonment sentenced to in the penitentiary for life. On appeal, the conviction was reversed and the cause remanded. Buckley, [State Mo. 274 W. S. 74.] A second amended information was 9, 1925, filed on December charg- ing the defendant аnd his son Earl and Claude Estes with murder degree the first —, on June assaulted, shot killed Alfred E. Lutman with pistol, a rifle and gun- each loaded with powder and balls. A granted leaden severance to Chambers Buckley, begun and on a trial 36, 1925, on December he was found guilty charged punishment as and his imprisonment assessed at penitentiary for life. From a sentence with the accordance verdict appealed. the defendant аppellant
It is corpus admitted proven, that the delicti was proved correctly is said that the facts at second trial are opinion stated in appeal. of the court on first Appellant’s counsel -also states that the for the last evidence State on trial substantially trial, same as at the former there part also additional evidence on the of the State.
Lutman County, adjoining lived alone on his farm in the Benton enmity defendant’s farm on the west. There was and had been be- years. seen, as tween them for Lutman was far as the evidence last shows, theory prosecution the that the on June 1922. The of is 11, Buckleys together employed Claude conspired Lutman, kill and thereafter, him, of kill on the afternoon to shoot and Estes, Buckley, 14, 1922, defendant Chambers and June the carrying rifle, together in a Buck- seen cornfield on the latter a were farm; went to- ley’s that Estes farm near line of Lutman’s the east farm, in Lutman’s and brush defendant disappeared ward and the on afternoon, went to in the Claude Estes his Later returned to home. July Lut- On and left the rifle there. defendant’s house very small farm, in a decomposed body his was found on man’s skele- flesh the brush; was no on clearing dense there surrounded an of the size eye, about ton; in the skull over оne there was a hole the After cheek. one the ball, or .38 and ordinary pencil lead ivas gunshot wound a body and was the inquest and exhumed burial found on breast, Lutman’s left about the size of .38 a Two bullet. or three weeks later empty cartridge three or four .22 shells were picked up near spot the body where Lutman’s was found.
It is contended that the demurrer to the have evidence should proof been sustained; conspiracy there was no of a between Buckley, Buckley Lutman; Chambers kill Claude Estes to Buckley that the statements of Earl of and Claude Estes made out presence the of hearsay the defendant were their admission prejudicial evidence was error. agree
We appellant’s do not with that the learned counsel evidence second; at the last trial was as it is the same in most the same at the respects, but same. was also some others it is not the There In the important last trial. developed additional evidence at the helpful out it will to set appellant’s consideration of be contentions last trial. some of the State at the the evidence offered Buckley I with Chambers Jim had a conversation Hart testified: case. He referred jury trying about time the coroner’s killed tree; will find out who cutting they I think said, of a bee he say who didn’t they if who tree. He Lutman will find out cut the bee bee who cut find out tree, if cut the bee but said him. would find out killed tree who Forth, son-in-law, testified: I
Everett defendant’s had a conversa- Buckley with reference killing with Chambers to the tion of Lut- ; cutting if I man he asked me remembered the incident Compton I on Lutman’s farm. Jess found a bee tree bee tree my cutting talking about Buckley at house it. came were down evening it.” I go and cut let’s wait till and said: "Let’s is Mr. Lutman liable be down there on his will be cooler and following if down he catches us there he would fence and land danger.” Buckley with us. said: "There no the dickens raise tree; A evening June 1922. we cut the Later that Buckley any days knew there wasn’t later I asked ten week or "I wasn’t cutting He said: knew there danger tree. the bee eyes.” had about three my own He for with any danger, I sеen it say I what he saw. heard didn’t hand. He .38 in his shells the buz- migfit some time with found be Lutman say few times^that farm about on Lutman’s This tree picking bones. zards his Buckley farms. dividing Lutman fence sis feet from spring 1922, the defendant In Davidson testified: M.C. he and said conversation he night. In the my house one atwas him *5 line between near the building on or a fence boys were gun a he had boys work, and that the did said the He Lutman. interfere there to come Lutman expected watched; said he he he thing; he said good come, it a work; he didn’t the with if he had posts; night the pull that come would figured Lutman to him. we kill pull posts the aimed to come Mabry Grover testified that in defendant, a with conversation
Bncldey told witness got that Claude Estes came to house and his gun and went off house; “I towards Butman’s he that said: heard gun just shoot I knew there a that was dead man if he hadn’t said; missed.” I something And what don’t remember I they about what pull did for, something such a stunt or to that effect. He said evening Claude came back killed him. He that and said he say gun didn’t was; got whose it he said he came there and it. something He said talking. “Q. say, about Forth did What he anything, killing about reference to whether he had told Forth of Butman? A. a He said that him and Forth down to cut went ’’ bee tree and it; talking he told that Forth was much. Forth about too why I him know, asked he and he told Forth or how Forth came to something tree, said that, they to the when went cut the effect bee he something right; thought told Forth about that it was that all he right. killing Forth was of all All this conversation was about the talking much; Butman. he had told He said Forth was he said too Buckley’s Forth am Earl about when he cut the- bee tree. I commonly as “Fritz” or “Old brother-in-law. Butman was known neighborhood. Fritz” if,
On did not remember cross-examination, witness stated he with trial, on had if he had conversations former asked Buckley killing Butman, but that he Chambers of about of time that at the asked about Earl times. Witness stated several killing But- charged with jail, and in the trial he was under arrest right. man; if he discharge no testified promise he liad Chambers Referring to a lawsuit between H. B. testified: McDade But- out with Buckley Buckley he came Butman, I asked how I my gun If had I had made me awful mad. man. He a talked for we hurt him. Then don’t know but what I would have him. down again I will crack if it occurs says, few minutes and he Buckley Earl statements made evidence as to The State offered objections of admitted over the which were Estes, and Claude presence the defendant not made defendant that were objections, said court, overruling the hearsay. and were conspiracy a expected to attorney prosecuting prqye announced he were conspiracy unless the be admissible they would not proved. Buckley in Earl with I had conversation a testified: Arthur Allen go over like he would Buckley said Earl April, 1922. March or with Butman. little hell house; raise and rock Butman’s anything, said only one that g’o? ivas the says: He Who get others We Charlie; could says, said, You and me and he time next and the time, said at all that was go; that was when morning . was one . . Mr. Butman mentioned ever (cid:127) . . Mr. Butman it was said рlace his passing Butman —he *6 and he made the that good remarks it was too a set of harness . . . for that s. driving o. b. to be . . . The . . next time . two or three weeks, something that, passed like Mr. Lutman Buck- ley’s place again and made something he remarks about Lutman. . . . He said he would kill During like to that s. o. b. that day he asked me if I would to trap like Lutman, Mr. and he said stretching a wire across the road at the Lut- foot of hill on Mr. way man ’s he would return bаck from town, home and hide and gun shoot away off a and scare the team and to run cause the team and wagon, sir; Mr. Lutman I him, throw out and told No go I wouldn’t with him.
The Buckley witness related Earl other conversations with in which suggested he that house; rock that would to Lutman’s he like get witness, continuing: that s. o. day b. One we were fixing a He killing fence he mentioned to me about Alfred Lutman. give get said he $25 would me or or a new suit of clothes $30, me if I kill Earl would Alfred Lutman for him. Witness and refused Buckley else,” him a and told wit- “everything called coward night he and ness not to tell it. Witness further stated that one Buckley’s and Earl told Claude Claude Estes were at Earl house money ready work; asked for him he did the Estes that the when no answer. going to kill Lutman. Claude made him he was Mr. when about it. These con- if he told threatened to kill witness 14, 1922. were before June versations any conversations being hаd Forth, he ever had asked Everett if I asked me killing,” answered: He Buckley about “the with Earl Well, he I No. him, Lutman deal and told about the anyone told Mabry’s it Alfred wife knows Grover my it, knows says, wife ? would tell Duncan suppose Alfred it; you says, he do knows Duncan says I reward. dollars a thousand offer says; understand He I Well, care. don’t would do Duncan Alfred know what I don’t dollars. it for ten thousand tell says, I wouldn’t day him on told Mabry Estes that Claude testified Grover аnd fed Fritz 1922) I met : (June 15, Henry Allen sale before the go to the you will you know don’t up; I shut him three. anybody does that, I said something like that, or for
penitentiary admitted This it. Buckley knew Mr. it ? And he said else know accomplice alleged by an a statement objection that was over the hearsay. it was had (Claude) that he him told that Claude testified Estes Oscar it. do him to Buckley hired Earl Lutman; that Chambers killed at jail Buckley Earl while Witness had this convеrsation Sedalia. go witness Buckley asked Elmer Estes testified shut. mouth keep his Kansas tell Ross Allen testified part the latter Emmett Forth Spry being
and Bob present, he heard Earl Buckley ask Emmett Forth if he wanted to money make some and said: If we kill *7 Alfred Lutman got he would money. see that we some him We told we didn’t need it.
It is conceded by counsel for the 15, defendant that 1922,. on June Buckley gave Chambers Osage Valley Claude Estes a check on Bank for ten dollars. Briefly recapitulating: It spring evidence that the of 1922, Chambers Buckley told boys C. M. Davidson that he and the building were a fence on Lutman; or near the line between him and boys he, the did work gun had a Buckley, expected watched; that he Lutman to come there and intertere with the work. . pull posts . “If had come to aimed to . we ’’ kill him. Mabry told 0-rover that Claude Estes came to his got house and gun EucJuey and went toward house. Lutman’s gun “I just heard the shoot and I knew there dead man was a missed;’’ he hadn’t evening and said that Claude back that came he had part Buckley promised killed him. In the of 1921, latter money Spry if to Ross Emmett Forth and Bob Allen, by Earl kill Lutman. We have referred to other statements made Buckley. con- of a
We have and circumstantial evidence here both direct spiracy. from by may proving circumstаnces conspiracy proved
“The
be
pursue
steadily
same
as,
parties
may
if the
presumed;
which it
be
by
dif-
together,
common or
acting separately or
object, whether
[Kelley’s
result.”
leading
same unlawful
to the
all
means,
ferent
925, and cases
Law,
Crim.
sec.
cited.]
by
be shown
circumstantial
any
fact, may
like
other
conspiracy,
“A
agreement
an
direct evidence
necessary
prove
to
nоt
evidence:
v.
conspiracy.
establish a
[State
in order to
commit a crime
to
Fields,
363;
v.
Shout,
State
l. c.
623;
v.
263 Mo.
234 Mo. l. c.
State
of
Because
98 Mo. l. c.
531;
Walker,
Lewis, 273
State v.
104.]
Mo.
be shown
generally it must
evidence,
difficulty
procuring
of
direct
W.
562, 268
306 Mo.
S.
Delbono,
60.]
v.
circumstances.”
[State
is not neces
by circumstances.
proven
It
conspiracy may be
“A
com
enterprise to
common
engage in a
who
parties
sary
prove
to
crime.”
committing the
agreement before
a definite
mit a crime made
cited; State
437,
cases
645,
W.
285 S.
Stamper, 314 Mo.
v.
[State
285 W.
S.
Kinnamon,
v.
314 Mo.
62.]
introduc-
reference
with
conspiracy
proof
of
of a
“The order
alleged con-
declarations
acts
of
tion
the evidence of
”
spirator, must be
largely
left
to the
judge.
discretion
tlie trial
v. Craft, 299
[State
Mo.
We attempted have not recаpitulate all the evidence offered by the State at the last trial. What above, has been together set out with the evidence as opinion summarized of the first appeal, suffices present for our purpose. In opinion our it is sufficient prima-facie make a Buckleys case that and Claude Estes con- spired to Lutman; assassinate hence the statements of either of the conspirators pursuing while their purpose common or design, made accomplishment before the of that purpose, were admissible evi- against dence the defendant. Shields, Mo. 246 S. [State W. 932.]
“But declarations and confessions made after the transactions are fully against over party are admissible only them, who made conspirator and one is not liable for the acts of another outside *8 and independent conspiracy.” [Kelley’s Law, supra.] of the Crim.
“It is the settled law of this State that declarations of a cocon- spirator, enterprise made after the common criminal ac- has been complished merely past occurrences, and narrative of are inadmissible against 97 conspirator.” another v. 199 Mo. Forshee, [State 933; 249 Hayes, (3).] S. W. State v. S. W. 50 by The admission evidence of statements made prej- conspiracy was and Estes after the consummation of the Claude hearsay. error; udicial it was mere proof is that Claude by appellant
It is that there no also contended failure is an entire Lutman; that there Estes shot and killed hence been sustained. should have and to the evidence proof, the demurrer appeal: the first Appellant quotes opinion from the on ‘ ‘ head in deceased’s оf the wound only the character proof as to If the .38 caliber bullet. by a the entrance of is that it was caused bullet, that it is certain .38a caliber his from deceased came to death It is not .22 rifle. from the a not kill him with bullet Estes did caliber.” .38 any firearms of that Estes carried shown sheriff, testimony of the the read in evidence and The State offered had hearing, that he preliminary Groomer, the defendant’s Mr. at rifle, but Stevens a .22 found and house defendant’s searched the trial. died before Mr. Groomer no revolver. that he found that stated defendant that State for the is evidence There he gun; that got his and house came to defendant’s Claude Estes ifman just a. dead there “T knew the shot heard back came that said also missed;” defendant and that hadn’t afternoon onwas This him. had killed evening said he that 1922. of June
No witness testified the last trial that hole found Lut- eye man’s skull over his was made a .38 ball. caliber The evi- point dence on this that was a in Lutman’s one is there hole skull over eyes ordinary pencil of his about the of an .38 ball, size lead or gunshot body exhumed, one in his After a cheek. wound a was found on Lutman’s breast about the size of .38 bullet. charged juries guilty Two have found that the defendant as light in the informations. In the of the evidence the verdicts mean instigation defendant, at of the Estes, found that Claude These verdicts re- shot killed Lutman with .22 caliber riñe. If was no substantial ceived the sanction of the trial court. there required aside, it support evidence to this is set verdict, court jury but or from which was substantial evidence facts there power we are without reasonably could deduce the defendant’s guilt, to interfere. appear
It does not that search was madе for the ball in Lutman’s head. There was no direct evidence .22 caliber balls are leaden or balls, balls, gun that such when from a shot become hot and softened extent, spread towill, some “mushroom” heat, or flatten when strike a bone, hard substance like or that if Lutman pierced by was shot and his skull ball, such a the hole would be larger than the diameter of the at it ball the instant was fired from gun. required been held It has that courts are “to take notice of geographical current facts history, scientific and of facts (Reineman commonly known mankind” Larkin, to all Mo. judicial 307), expand 121 S. W. trend mind is “the judicial ripen and, horizon as decided cases into precedents, *9 things judicial the list of of which courts take made manifest that 212 sensibly growth.” Railroad, being by added to v. notiee is [State notice 111 S. W. is held that “courts take of 676, Mo. It also 500.] ought genеrally limits of their to known within the whatever is or be ex ought ignorance of, to or that not assume jurisdiction, and persons to all knowledge, which known matters are clude from their judicial subject may proper a of . be intelligence. of . . What Although . . . may at another*. place or not be notiee at one time ‘ it before besides pretty obvious known and pretty a fact be well must ’ wait, necessary for courts to judiсial of, is not can be taken notice and everybody knows thing, until taking judicial of a before notice (1), Is to be: said test has been it. . . . The understands which knowledge jurisdiction, in the everyday fact one of common, things about of knowledge everyone and average intelligence of indisput (2), certain Is it him can be to know? and presumed of properties qualities 61; see as 59, able?” C. J. [23 matter, page 143.]
27
judicial
“But
knowledge
phenomena
of
by
natural
is limited
com-
mon knowledge, and consequently unique or
relating
obscure matters
thereto will not be noticed
R. C.
without evidence thereof.”
L.
[15
1099; Chicago Ry.
874,
861;
Co. v.
32
Champion,
N.
23
A.
E.
L. R.
Nix v. Hedden, 149
304;
U. S.
Wilhite,
State v.
We think the trial court judicial could not have that taken notice leaden balls are exclusively rifles, used in .22 that a ball from or shot such a will larger rifle make a in a than diameter hole man’s skull of the ball when it gun; yet light in the of fired from the evidence is juries by that what precisely both found their verdicts. The in juries, rendering their verdicts, right, their had and it was duty, to things generally use their common sense of and to take notice by judge known people intelligence jurisdiction, of in their and “to weight general by of of knowl- force the evidence their own edge subject inquiry.” Cyc. of the of [38 1839.]
It Buckley was in evidence or skeleton on body that saw Lutmаn’s day which it in was ex- was discovered. The hole the skull opinion expressed amined about of a and the that it was the size jury accepted Mabry’s pencil, lead a .38 ball. If the evi- or caliber that dence, they reasonably believed conclude that In (Buckley’s) rifle. shot killed with his Lutman opinion are view of in we of the the facts and circumstances evidence whether if, an a it should become issue cause, on retrial of this hands by .22 rifle in the or not a caliber Lutman shot killed by a to be determined Estes, question that would be of fact of Claude a of as whether ball jury, competent evidence aided skull. Lutman’s size could would make the hole found or given for the instructions assign appellant does not error made, how is Complaint not be considered. State and need of toas statements cautionary a instruction evеr, of refusal by some corroborated accomplice” crime, when not alleged “an is meant is clear what It not person implicated the crime. not jury give required is accomplice.” The “alleged an court when a accomplice of an to the instruction as evidence cautionary alone, accomplice but testimony of an sought upon the conviction Harkins, accomplice. v. alleged an [State not as to the evidence W. 179, Mo. 17 S. Jackson, 106 830; v. 13 S. W. State Mo. 100 27; Koplan, v. W. State 20 S. Woolard, 301; State M.o. No ac W. Merrell, 263 S. State v. 121.] W. 304, 66 S. Mo. State; hence for the witness as a testified complice defendant cautionary instruction. *10 give required not court was made statements as admitting evidence court erred presence, defendant’s out and Claude by Earl For appellant. objections over the Lutman, the death after Hen- cause remanded. judgment reversed and the these errors the is C., wood, concurs; Davis, concurs result. C., adopted foregoing opinion Higbee, C., PER CURIAM: The concur; Wallcer, J., White, J., P. opinion of the court. as the remanding the case. not J., reversing, but Blair, concurs Louis M. of Estate of Willgues, V. Administratrix Willgues, Ida Pennsylvania W. 817. Company, Appellant. S. Railroad One, 1927. October Division