Gallego v. State

• Decision Date: 17 January 1955
• Docket Number: No. 39506,39506
• Citation: 222 Miss. 719,77 So.2d 321
• Parties: Gerald A. GALLEGO v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 321

77 So.2d 321

222 Miss. 719

Gerald A. GALLEGO v. STATE of Mississippi.

No. 39506.

Supreme Court of Mississippi.

Jan. 17, 1955.

Frank Hammond, Jr., Moss Point, for appellant.

J. P. Coleman, Atty. Gen., by Joe T. Patterson, Asst. Atty. Gen., for appellee.

McGEHEE, Chief Justice.

The appellant Gerald A. Gallego, twenty-six years of age, an escaped convict from California in violation of his parole, was tried and convicted on the 9th and 10th days of June, 1954, in Jackson County, Mississippi, of the murder of Ernest Beaugez, a police officer at Ocean Springs in that county, and sentenced to death. The homicide occurred between midnight and day on May 27, 1954, some 26 to 28 miles east of Ocean Springs, after the appellant had severely beaten and had disarmed the said officer in the jail at Ocean Springs and had compelled him to get in his police car and drive the appellant eastward en route to Mobile, Alabama, where the latter robbed the American Bank & Trust Company of Mobile of the sum of approximately $1,000, some six or seven hours after the homicide.

The proof on behalf of the State, taken in the absence of a jury, disclosed that a few hours after the appellant had been arrested on the day of the killing he made a free and voluntary confession to the officers in great detail, as to his guilt of both of these crimes, the murder of the officer having been committed in Jackson County, Mississippi, and the robbery of the bank with a firearm in Mobile, Alabama. The appellant testified on the hearing as to whether or not the confession was free and voluntary, and made a token effort to contradict the testimony offered by the State in that behalf. The trial judge resolved the issue in favor of the State and there was ample testimony to support his finding.

There are about twenty grounds assigned for error by the appellant on this appeal, the principal ones being, first, that the trial court should have granted him a continuance of the case from the May Term of the court in Jackson County until the November Term thereof; second, that the trial court should have granted him a change of venue; and third, that the trial court should have granted a directed verdict in his favor on the ground of insanity at the time of the commission of the homicide. The other assignments of error will be hereinafter mentioned.

For a clear understanding of the issues presented on this appeal, and especially the three grounds hereinbefore enumerated, it is necessaryt that we state the controlling facts in regard thereto.

It appears from the proof without much contradiction, and without any contradiction in many material particulars, that shortly after midnight on May 27, 1954, the appellant 'thumbed a ride' in the automobile of one Evans J. Hale, a soldier in the Air Corps at Keesler Field, as the latter was leaving the City of Gulfport in his automobile; that en route from Gulfport to Biloxi, the destination of the soldier, it was disclosed by a conversation between the soldier and the appellant that the former was from Pocatello, Idaho, and that the latter claimed to be from Salt Lake City, Utah, near where the soldier had resided; that the soldier inquired of the appellant as to what was going on in Salt Lake City, and was told by the appellant that a bank building was being constructed on a site in Salt Lake City where a big fire had occurred; and that the soldier who had worked until midnight at a radio station in Gulfport before leaving for the air base at Keesler Field in Biloxi, informed the appellant that the soldier's wife had given birth to a baby a few days prior thereto. These facts, as testified to by the soldier at the trial, become material upon the issue of the appellant's sanity or insanity, since the appellant recited the same details as to the conversation between him and the soldier, in the former's confession to the officers prior to the time that they were related by the soldier in his testimony at the trial, showing that the appellant remembered the details of what occurred on the night of the homicide. The appellant in his confession further corroborated the testimony of the soldier in regard to the fact that the soldier carried him to a place in front of the City Hall at Biloxi, and told him that that would be a good place for him to catch another ride on toward Mobile, where the appellant had stated he intended to go.

It further appears from the confession of the appellant to the officers after his arrest that he caught another ride from Biloxi as far as Ocean Springs, where the police Officer Beaugez was on duty; that the appellant was waiting at the stop light in Ocean Springs when the said officer accosted him and asked for some identification; that the appellant claimed that he was unable to furnish the identification for the reason that he claimed to have been robbed; and that thereupon the police officer told the appellant that he would place him in the city jail at Ocean Springs to spend the remainder of the night, pending a check on the appellant's status, but subsequent events show that he evidently reasoned that it would be detrimental to his chances for remaining at large if he should permit the officer to thus detain him and ascertain that he was a parole violater from San Quentin Penitentiary, where he had been incarcerated three times.

It was further shown that when the officer failed to check in for the purpose of going off duty between six and seven o'clock on the morning of May 27th, the chief of police of Ocean Springs drove all over the town and could not find the police car anywhere on the streets; that according to the testimony of the chief of police he then decided to go to the city jail to investigate; that at the city jail he found the keys of the policeman Beaugez in an unlocked cell door, and then discovered the policeman's cap on the floor, and found blood on the floor and walls, and a glass window smashed; that the chief of police followed the blood stains out of the jail to where the policeman Beaugez usually parked his police car; and that he then observed that the car had been backed out from near the jail building and driven away. From this point a considerable portion of the remainder of the story is supplied by the confession of the appellant, and which clearly demonstrates his guilt of having committed the homicide beyond any reasonable doubt and to the exclusion of every other reasonable hypothesis; and that he was possessed of ample mentality to know the difference between right and wrong when he committed the homicide in question and the armed robbery of the bank at Mobile.

The appellant's confession discloses that he had the police officer Beaugez drive the latter's car through the City of Pascagoula and then the town of Moss Point en route toward Mobile, and that when this officer drove near two policemen in Pascagoula and indicated that he was going to contact them the appellant threatened to kill the officer if he made any such further gesture; that en route from Pascagoula to the scene of the crime he infomed his said captive that he was going to have to get rid of him; that the officer informed him that he was married and had a family and begged for his life as they were proceeding eastward toward Mobile; that after passing through the Town of Moss Point the appellant had the officer turn his car onto a dirt road and travel some two hundred yards from the paved highway, where he then caused the police car to be turned around and stopped; that the appellant then got out of the car from the side where he was sitting and had the officer get out on the same side; that thereupon he demanded that the officer remove his trousers and exchange trousers with him, which was accordingly done; that there was no disparity in the size of the two men; that the appellant was wearing blue denim (blue jeans) trousers and the officer was wearing the blue trousers of his police uniform; that after the exchange of trousers had taken place the appellant, who still had the pistol of the officer, caused the latter to march about eight feet ahead of him through the gate or cattle cap which crossed the dirt road; that while this was taking place the officer was looking back and begging for his life; that thereupon the appellant shot the officer in the left chest, and after the latter had fallen to the ground he walked up to his body and shot another bullet through his head. It was shown by the testimony of the investigating officers that this spent bullet was found on the ground underneath the head of the dead officer, and it was shown by the testimony of a ballistics expert that this bullet was fired from the officer's pistol, which was in possession of the appellant at the time he was arrested, the same being identified by the record of its serial number kept by the chief of police at Ocean Springs; that immediately before shooting the officer the appellant says that he had thrown the officer's billfold to him, and it was shown by other testimony that this billfold was later found at the body of the deceased lying near his hand; that the appellant had failed to remove his own billfold from the pocket of the denim trousers that he had compelled the officer to put on before he killed him, and it was shown by other proof that this billfold contained some check stubs and other identifications showing the name of 'Gerald A. Gallego', and that the denim trousers being worn by the deceased, but belonging to the appellant as aforesaid, contained a laundry mark '421', matching the laundry marks on some of the clothing which the appellant had admittedly left in a bundle in the jail at Ocean Springs after beating up the officer and compel him to drive the car eastward toward Mobile.

The witness Evans J. Hale, who had given the appellant a ride from Gulfport to Biloxi that night, testified that when he picked up the appellant he had a bundle in his hand which was...