Pool v. United States

• Decision Date: 13 October 1958
• Docket Number: No. 15865.,15865.
• Citation: 260 F.2d 57
• Parties: William Cecil POOL, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

260 F.2d 57 (1958)

William Cecil POOL, Appellant, v. UNITED STATES of America, Appellee.

No. 15865.

United States Court of Appeals Ninth Circuit.

October 13, 1958.

Morton Galane, Las Vegas, Nev., for appellant.

W. Wilson White, Asst. Atty. Gen., Harold H. Green, D. Robert Owen, Attorneys, Department of Justice, Washington, D. C. Howard W. Babcock, U. S. Atty., Las Vegas, Nev., for appellee.

Before STEPHENS, Chief Judge, and FEE and BARNES, Circuit Judges.

BARNES, Circuit Judge.

Appellant, one time Chief of Police of North Las Vegas, Nevada, was indicted on two counts of violating 18 U.S.C. § 242, which reads, in material part:

"Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State * * * to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States * * * shall be * * * imprisoned not more than one year. * * * "

Appellant was convicted by jury verdict on both counts. A motion for new trial was denied by the trial court and appellant was sentenced to one year imprisonment concurrently on each count. He appeals here, 28 U.S.C. § 1291; 18 U.S.C. § 3772, on the following grounds:

I. Errors Charged

A. Errors in Introduction of Evidence

(1) Error in refusing to strike from evidence a "voluntary statement" of the District Attorney of Clark County.

(2) Error in permitting testimony of appellant's wife (at the time, though later divorced) as to the manner in which appellant talked to a prisoner in her presence, over the objection such communications were privileged.

(3) Error in rejecting and later admitting a prior inconsistent statement of a prosecution witness.

B. Errors in Instructions to the Jury

(1) Failure to instruct the jury so as to explain and name the offense (even though appellant failed to except to the failure).

(2) Material variance between proof and indictment which was raised at end of government's case (but not at end of trial).

(3) The trial court "amended the indictment" in its charge to the jury (although no objection was made by appellant at the trial).

C. Error in Refusing to Grant New Trial

II. The Indictment

Because of the "variance" and "amendment" claimed, it is necessary to consider the form of the respective counts of the indictment.

Count I charged that Pool, as "Chief of Police," and his original co-defendant, Clifton (who turned state's evidence at the trial), as "Captain of Police," did, on February 27, 1956, in Clark County, Nevada,

"* * * while acting under color of the laws, statutes, ordinances and regulations of the State of Nevada * * * creating the offices and positions aforesaid and prescribing the duties thereof, wailfully subject Ray Lewis Sage, Jr., an inhabitant of the State of West Virginia, to the deprivation of the rights and privileges secured to him and protected by the Fourteenth Amendment to the Constitution of the United States not to be deprived of his liberty without due process of law, to-wit, (1) the right and privilege to be secure in his person while in the custody of anyone acting under the color of the laws of the State of Nevada, (2) the right and privilege to be immune from force and violence by anyone exercizing the authority of the State of Nevada or acting under color of its laws for the purpose of obtaining a confession, statement, or information about an alleged offense, and (3) the right and privilege to be tried for an alleged offense by due process of law and if found guilty to be sentenced and punished in accordance with the laws of the State of Nevada, and not to be subjected to illegal punishment, force and violence by any person acting under color of the laws of the State of Nevada;

"That is to say, that at the time and place aforesaid, the defendants, William Cecil Pool and Edward Ellis Clifton, while acting under color of law as aforesaid, did beat with a flashlight, fists and elbows, and did kick with their feet the said Ray Lewis Sage, Jr., all for the purpose and with the intent of depriving him of the Constitutional rights aforesaid.

"In violation of Section 242, Title 18, United States Code." Emphasis and figures in parentheses added.

The second count charged that on the same date and in the same Clark County, Nevada, acting under the same color of law as Chief of Police, Pool, alone, had deprived Coite Martin Gaither, Jr., an inhabitant of the State of South Carolina, of the same three "rights and privileges":

"That is to say, that at the time and place aforesaid, the defendant, William Cecil Pool, while acting under color of law as aforesaid, did beat with fists and elbows, and did kick with his feet the said Coite Martin Gaither, Jr., all for the purpose and with the intent of depriving him of the Constitutional rights aforesaid.

"In violation of Section 242, Title 18, United States Code."

III. The Evidence

Several burglaries of grocery store markets had taken place in and about North Las Vegas, Nevada, prior to February 27, 1956. The principal booty collected by the burglars was slot machines.

In the early morning hours of February 27, 1956, an attempt was made to burglarize the Valley Market. Later that same morning of February 27, 1956, Sage and Gaither, two airmen from a nearby airbase, were taken into custody by North Las Vegas police officers and booked for "burglary investigation." Upon being questioned, they denied connection with any of the several recent burglaries in which slot machines had been taken from business establishments According to Gaither, Chief Pool and Detective Carlson shortly after noon took Gaither for a ride in a police car. He was questioned further about the slot machine burglaries and refused to confess. At all times his hands were handcuffed behind him. The car was driven toward Nellis Air Force Base and off highway 91 onto a gravel road. Gaither testified Pool ordered him from the car, and then struck him in the face. Appellant and Carlson allegedly beat and kicked Gaither a number of times. He was knocked down six or eight times. Various threats were made. After an hour or so the party returned to the North Las Vegas Police Department where Gaither's face was observed to be "red and flushed."

Subsequently, Pool interrogated Sage at the Police Station. He then ordered Sage into a police car, and Clifton, Carlson and Pool got in. Sage states he was told to get down on the floor boards by the back seat. He was then not handcuffed. Again the car was allegedly driven three or four miles along the main highway, then off on a gravel side road. Sage was not handcuffed. He was ordered from the car and Clifton struck him first, with fist or elbow, and then continued to strike him with a flashlight "25 to one hundred times on the chest and abdomen" (Carlson estimates 60 to 70 blows with the flashlight). Sage stated he fell to the ground twenty times. Clifton asked him many times, "Are you ready to talk?" About the middle of this "interview" Sage says his hands were handcuffed behind him. He was taken to a little gulley. Pool asked him if he was ready to talk and then Clifton thrust a pistol to Sage's temple and said: "You had better talk." At one place in his testimony Sage testified Pool kicked him on the chest while he was down; at another place in his testimony he denies this. (Carlson testified Pool kicked Sage several times.) Sage said Clifton stamped on him while he was down.

Sage was taken back to the North Las Vegas station, then to the Henderson jail. There he fainted, and J. B. French, M.D., and Mayor of Henderson, was called to examine Sage. He found a bruised mouth, twelve to fifteen "long" bruises over his chest and abdomen, and smaller bruises on both wrists and one ankle. These "long" bruises were three to ten inches in length and an inch or one and one-half inches wide. Possible internal injury was diagnosed; possibly a fractured rib or ruptured spleen. Sage was hospitalized and given medication. Subsequent x-rays disclosed no broken bones and no proof of serious internal injuries.

Hospital records of the "Rose de Lima Hospital" were in evidence (Pltff's Ex. 7). They disclose that Sage, admitted at 10:05 P.M. on February 27, 1956, "complains of having been beaten in custody of NLV police." Two 8 × 10 black and white photographs of Sage were taken by the Clark County Sheriff's Office on February 29, 1956, (Pltff's Exs. 27, 28) which clearly showed numerous severe bruises on the chest and upper abdomen. On February 30, 1956 (sic), two colored still photographs of Sage were taken by the Clark County Sheriff's Office (Pltff's Ex. 26) which vividly show the bruises.

At 9:45 P.M. on February 27, 1956, before entering the hospital, and shortly after he was first seen by Dr. French in the Henderson jail, the latter interviewed Sage as to the cause of his bruises. The questions and answers were taken down by a stenographer, transcribed, and signed and sworn to by Sage (Dft's Ex. A). The questions and answers were asked and given in the presence of Dr. French, a Dr. Coogan, and Jacqueline W. Williamson, the Notary.

"Q. How did this (marks on chest) occur? A. It occurred when the North Las Vegas Police used the end of a flashlight on me."

The questions and answers were few in number, but Sage referred to three men "working on him," he didn't know for sure who the policemen were; thought the Chief of Police took him in a gulley; referred to the gun at his head, the threats, the handcuffs, the flashlight, etc.

Dr. French testified at the trial. Among other things, he testified there was no sand or gravel on any of Sage's injuries; that only the injury in Sage's left cheek could be considered "an abrasive burn"; that the bruises he saw could have occurred in jumping from a car only if the person had hit a gate pipe.

Gaither, at about 8:00 P.M. on February 27, 1956, was taken from the Las Vegas jail to the North Las Vegas jail. There he was...