Claiborne v. United States

• Decision Date: 10 June 1935
• Docket Number: No. 10118.,10118.
• Parties: CLAIBORNE v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

77 F.2d 682 (1935)

CLAIBORNE v. UNITED STATES.

No. 10118.

Circuit Court of Appeals, Eighth Circuit.

May 3, 1935.

Rehearing Denied June 10, 1935.

William L. Vandeventer, of Springfield, Mo. (Calvin, Vandeventer & Kimbrell, of Kansas City, Mo., on the brief), for appellant.

Thomas A. Costolow, Asst. U. S. Atty., of Kansas City, Mo. (Maurice M. Milligan, U. S. Atty., and Randall Wilson and Sam C. Blair, Asst. U. S. Attys., all of Kansas City, Mo., on the brief), for the United States.

Before STONE, SANBORN, and FARIS, Circuit Judges.

SANBORN, Circuit Judge.

The appellant was indicted for perjury, under section 231, title 18, U. S. C. (18 USCA § 231), and was tried, found guilty, and sentenced. From the judgment of conviction, he has appealed. (He will be referred to as the defendant.)

On August 12, 1933, at about 1 o'clock in the morning, Thomas B. Bash, the sheriff of Jackson county, Mo., with his wife, his deputy, Lawrence Hodges, and a little girl, were in an automobile in Kansas City, returning from an ice cream social. As they were driving south on Forest avenue between 34th street and Armour boulevard, they heard shooting, followed by screaming. The sheriff directed his deputy, who was driving, to stop the car. The car was stopped, and the sheriff, after taking from its case a riot gun which he carried in the car, stepped out of one door, as his deputy stepped out of the other. The sheriff's car was then about 50 or 60 feet from Armour boulevard. Just then a car swung around from the west on Armour boulevard into Forest avenue, and the occupants of this car commenced firing at the sheriff and his deputy. The sheriff returned their fire. The shooting still continued, but not from the car. A man came running toward the sheriff, shooting as he came. The sheriff leveled his gun to shoot him, and thereupon the man dropped his gun, threw up his hands, and screamed at the sheriff not to kill him. This man was Charles Gargotta. The sheriff backed him up against an apartment building on the northeast corner of Forest and Armour, at the same time keeping an eye on the gun that Gargotta had dropped. When Hodges approached, the sheriff directed him to pick up the gun. Hodges handed it to the sheriff, who placed it in his pocket. The gun was a .45 Colt automatic pistol, marked "Model of 1911, U. S. Army" on one side, and on the other "United States Property." Its serial number, according to Sheriff Bash, was 377,675.

The two men, in the front seat of the car, who had fired upon the sheriff and had thereafter been fired upon by him, were found to be dead. One was Fasone; the other Lascola. As the sheriff opened the door of their car, another automatic pistol, similar to that which had been used by Gargotta, fell from the dead hand of Fasone. The serial number had been filed off this gun. The sheriff took possession of it.

A short distance away from the immediate scene of the shooting was found the dead body of Ferriss Anthon, "well known alcohol dealer," who had been shot. Sheriff Bash had accidentally come upon the scene just as Anthon had been killed, to the evident annoyance of his killers. On Anthon's body was found a .38 Colt short-nosed revolver.

About thirty minutes after the shooting, a police officer by the name of Strean came upon the scene. He heard some one say that a man had run away and had passed between two nearby houses. Strean followed the trail pointed out to him, and at the rear of one of these houses found another .45 Colt automatic pistol, of the same type as the gun used by Gargotta, lying upon the ground. He picked it up with his pencil in order not to destroy any finger prints, and tied it in his handkerchief. This gun he then turned over to the defendant, Leonard L. Claiborne, a police officer and detective, of Kansas City, who was his superior officer and a member of the homicide squad. Claiborne was at the scene of the shooting shortly after it occurred. This gun, delivered to Claiborne by Strean, will be called the "Strean gun." Another gun, of the same kind, was found in Gargotta's pocket by the police officers who took him into custody. This bore serial No. 69,791.

There were therefore four automatic pistols exactly alike except for serial numbers. Of these guns, two had been taken from Gargotta, one from Fasone, and one had been found by Strean. Obviously, the Strean gun had not been dropped by Gargotta, but had evidently been dropped by one of his associates who had fled from the sheriff.

Sheriff Bash took two of these guns to his office from the scene of the shooting, one Gargotta gun and the Fasone gun. Claiborne, after he received the Strean gun from Strean, unwrapped it and handled it for the purpose of unloading it, and then took it to the office of Sheriff Bash and turned it in to him. The gun found in Gargotta's pocket was also brought to the sheriff, as was the Anthon gun; so that when the guns were all collected in the sheriff's office early in the morning of August 12th, he had five guns in his possession, of which four were .45 Colt automatic pistols of the same model.

That same morning, shortly after he had delivered the Strean gun to Sheriff Bash, Claiborne returned for it for the purpose of taking it to police headquarters to be examined for fingerprints. He obtained from the sheriff what the sheriff says was the Strean gun, serial No. 504,567. Thereafter at about 8 o'clock of the morning of August 12th, a federal agent and Merle A. Gill, a ballistics expert, at the sheriff's request, went to police headquarters and obtained this gun. The serial number, according to Gill, was 504,567. Sheriff Bash then turned over all of the guns to Gill for testing. Gill ascertained that the bullets that killed Anthon were fired from the gun with serial No. 377,675. This, according to the sheriff, was the same gun that Gargotta had used in firing at him. From the testimony of Sheriff Bash and others, it appears that gun No. 377,675 was never out of the possession of the sheriff until it was turned over to Gill for testing; that Claiborne never had possession of it at any time; and that the only one of these guns that he did have possession of was No. 504,567, the Strean gun.

Gargotta was indicted and tried for murder in the state court. Claiborne, upon the trial, testified that when he obtained from the sheriff what purported to be the Strean gun on the morning of August 12th, he took it directly to police headquarters, and that, before it was turned over to Gill and the federal agent, he made out a tag for it, copying the serial number of the gun onto the tag; that he did not attach the tag to the gun, but placed the tag in a drawer in his office. When produced, this tag read as follows:

"Held for Court. "Dist. D. D. Date Aug. 12, 1933 No. ____ Where "From Taken Armour & Forest Whom "Charge Murder "By Whom Claimed Unknown "Property 1 .45 cal Army Colts Auto 1911 model #377675 "Estimated Value loaded .45 Rem. shell empty .45 Rem. shell "Arresting Officer Claiborne & Eldredge "T. J. Higgins, Officer in Charge. "10M-5-2-33" Reverse:

"This gun found at scene of murder of Anthon, LaScola and Fasone, Armour & Forest, Aug. 12-33. Found by Jack Strean."

Claiborne also testified in the state court that on August 14, 1933, he made out his report of the occurrences of the morning of August 12th. The report is as follows:

"Gang Murder and Shooting by Sheriff Bash, Aug. 12, 1933, at about 1:15 AM, Armour & Forest. At 1:25 AM, Aug. 12, 1933, received a call to go to Armour & Forest and investigate a murder; arrived at scene at about 1:40 AM. Found a body in front of Steuben Club on parkway; body identified as Ferris Anthon, well known alcohol dealer. Anthon had been shot a number of times with what appeared to be .45 caliber bullets; body was lying three feet west of entrance to Steuben Club, head lying east near auto identified as belonging to Anthon.

"Found two bodies in Buick auto on Forest about 10 feet north of north curb line of Armour; car was five or six feet out into street and headed northwest. The driver of this car who was dead behind the wheel was identified as Sam Lascola, alias Sam Hogg. The other body was in front seat beside LaScola and was identified as Steve Faconia, alias Steinei. Both men had been killed by several charges of buck shot in head and chest by Sheriff Bash and Deputy Sheriff Hodges when they had attempted to escape from the scene of the Anthon murder.

"Bash and Hodges captured Charles Gargotta at scene, but had left before Homicide Squad arrived. Dr. Owens, Coroner, and Deputy Coroner Berner were at scene and ordered the bodies sent to the Passantino Funeral Home. A search was made for witnesses but owing to the immense crowd none could be found.

"Officer Jack Strean turned over to me a .45 caliber Colt's automatic, 1911 model army issue, #377675. This gun had one loaded Remington shell in the barrel; this shell was extracted and placed in the clip which was empty. Gun was taken to Sheriff's office at about 3:00 AM and turned over to Sheriff Bash for inspection, also one empty .45 caliber Remington shell. Gun later taken to Police Headquarters for inspection and record, and was tagged in Identification Bureau at 8:15 am. Operative Turo from Federal Bldg. and Merle Gill, ballistic expert, call for gun about this time and tag taken from and kept as record. Gun was returned to Sheriff's office by the above mentioned officials. Strean stated he found the gun between the second and third houses going east from Forest on the north side of Armour. We later made additional searches but did not find any other guns.

"This case being handled by Sheriff's office and we have not made any arrests and this concludes our investigation. Aug. 14, 1933.

"L. L. Claiborne & Wm. Eldredge Homicide Squad."

There was a direct conflict between the testimony of Sheriff Bash, which is contained in the record before us, and the tag and report of Claiborne....