State v. Gartland

Decision Date05 June 1924
Docket NumberNo. 25268.,25268.
Citation304 Mo. 87,263 S.W. 165
PartiesSTATE v. GARTLAND.
CourtMissouri Supreme Court

Appeal from Circuit Court, Buchanan County; W. H. Utz, Judge.

Owen J. Gartland was convicted of manslaughter, and he appeals. Reversed and remanded.

J. V. Gaddy, S. K. Owens, and J. D. McNeely, all of St. Joseph, for appellant.

Jesse W. Barrett, Atty. Gen., and Allen May, Sp. Asst. Atty. Gen., for the State.

WHITE, J.

The appellant, with one George II. Pauly, in the circuit court of Buchanan county, was charged with murder in the second degree, and on a severance was convicted of manslaughter, and his punishment assessed at two years' imprisonment in the penitentiary.

On October 19, 1922, Gartland, and one Stroud were members of the police force of St. Joseph, doing general patrol duty in a Ford automobile. About 7:30 p. m. that day they met a Buick automobile with one headlight out. One of the officers called to the occupants of the Buick car to pull into the curb and fix the light. Instead of doing so the driver of the Buick drove on; the officers turned around and started in pursuit of it. According to the testimony of Gartland they chased it for about 40 blocks through the city and then east of the city on the Mitchell avenue road to the Leonard road, where they turned south, crossing a bridge and some railroad tracks, until they reached the Pickett road, where they turned east, all the time following the car by its taillight In this pursuit shots were fired by Officers Gartland and Pauly before and after they got on the Pickett road. The car they were pursuing passed a Ford going up a hill on the Pickett road and was lost to sight by the pursuers, who came up to where the Ford was stopped by the roadside, Passed it, and then backed up to where it was. This Ford which they overtook had four occupants, William Hale, aged 23 years, Everett Hale, brother, 17, in the front seat; Everett driving. In the rear seat were Nellie Hale, sister, aged 14, and Joy Corlis, a boy 15 years old.

As the police car backed up one of the officers said, "They were shooting at you;" and Everett replied, "No, sir, they didn't shoot; you shot my sister." Nellie Hale was shot; the bullet entering near the spine and passing through the body, cutting the arch of the aorta, a wound which produced her death. The girl was lifted out of Hale's car and placed in the car of the policemen for the purpose of being hurried to the hospital. They were then about three miles from the city. Gartland swore that the policemen started to take her to Noyes Hospital, but that she died before they reached the city.

According to the testimony of the Hale boys and Corlis, the Buick car passed them before the police car approached, no shots were fired from it, and Nellie Hale was shot after it passed and while they were on the Pickett road.

In the police car Stroud was driving. Gartland sat with him in the front seat and Pauly sat in the back seat. Gartland testified that he fired twice, one shot before they got to the wooden bridge and the railroad. crossing. Then he saw he could not attract the attention of the man driving the Buick car and said, "`I will wait a few moments;' and the car was still traveling, and I stuck the gun up again about near the corner of the car and fired it up over the top of the Ford car." After they turned into the Pickett road Pauly fired three shots.

Dr. Hansen, who examined the body of the dead girl, testified:

"After I had gone into the office I came back and said, `Men, the father says the police shot this girl;' and Gartland answered, saying, `We couldn't see the Hale car for the dust; I fired twice over the car in the air, and I fired shorts.' Pauly spoke up and said, `I fired three times;' but Stroud said, `I didn't fire at

Hugh Raphael, who was called "Chief," testified that when Gartland made his report Gartland and Pauly told him what happened; "he said they had been chasing a bootlegging car out at the east end and that they had accidentally shot this girl." Some question is raised as to the authority of Gartland over the rest of the squad. He was not superior in rank, but was the oldest in service. Raphael, when asked if he knew who was in charge of the squad, replied, "Why, I guess Gartland was in charge of the squad to a certain extent."

Gartland himself testified on this subject:

"Three men are assigned to a car, and sometimes five, and whoever is the oldest one is in charge at the time, or maybe some one else, whoever the captain or officer down there feels like putting in charge going out. That is the rules down there.

"Q. Well, then you were in charge at that time? A. Yes."

Stroud testified that each one had the same authority, but, Gartland being the oldest member on the force, naturally they would listen to him; that Gartland gave the order to turn around and follow the Buick car. This question was asked:

"Q. Who was in charge of this squad of you three men? A. Well, there is always one man, you know, to bear the responsibility, and I suppose Gartland was in charge on account of his being the oldest member.

"Q. He was in charge and bearing the responsibility? A. I suppose so, if you want to put it that way."

Another policeman testified that Gartland gave orders to take the body to the police station.

The particular official duty of the officers at the time they are charged with shooting Nellie Hale is in question, and it becomes important to inquire the purpose of these officers in pursuing the Buick car. One headlight was out, and they were entirely within their rights in ordering the occupants of the car to fix that light. They did not, however, pursue it for that reason. Likewise, they did not pursue it because it was exceeding the speed limit. The evidence does not show that any excessive speed was attained until they had pursued it for some distance. Gartland said that they reached 35 miles an hour. The driver of the Buick car testified that he attained 45 miles an hour, but his speedometer was out of order. However, no speed limit was mentioned and no purpose was shown for pursuing the car on account of that.

When asked why the police tried to catch the Buick car, Gartland testified that there was an old tarpaulin on the back seat and it looked as if they had liquor covered up in that car. He further said:

"The boys suggested that there was booze in that car and that was the reason he didn't stop and I told the man to tarn around and follow that car. That was the only order I gave."

He further said that—

"When a police officer orders a man to stop and turn on his lights and he don't do it, he is suspected of having booze in his car and we are supposed to follow him. It is our duty."

When asked why he thought it was a bootlegger's car, he said, "The man didn't act right."

The question was asked:

"When did you come to the conclusion that it was a bootlegger's car? A. When he passed us and it looked suspicious that a man wouldn't stop and do what he was told to do."

Stroud testified that when they told the driver of the Buick car to turn on the light the driver got away in such a hurry "we thought there was something wrong, and we thought he had something in his car that he was trying to get away with something."

The Buick car was described as being a four-cylinder, having yellow wheels and with a Kansas license. The driver of the Buick car was John Bond, 21 years old at the time of the trial, and with him was Miss Verna Nye, who, at the time of the trial, was Bond's wife. Bond quit work in the afternoon of October 19th, and went to the place where Miss Nye was employed at 11th and Mitchell avenue in a tablet factory. He was then driving a Ford car. He took Miss Nye to his home, where they had supper with his father and mother. Either before or after supper he concluded the purchase of the Buick car by trading for it. He then took Miss Nye, his father and mother in the Buick and drove to the Olive Street Methodist Church, where the father and mother of Bond got out and remained. He then drove on with Miss Nye until accosted by the police on account of one headlight being out. About 7:30 in the evening the police car came up in front of them. As Bond drove by they called to him to pull up to the curb and fix his light. Instead of doing so Bond drove on, and after he had gone about a half a block the police car turned and followed him. Then he evidently entered into the spirit of the chase. He was asked:

"Q. Why didn't you stop then when they called to you? A. Well, I am not in the habit of stopping when anybody hollers."

He further stated that he did not want the car to catch up with him. He was asked why, and said: "Because I didn't. I don't let any car pass me up if I can help it." He testified he did not know they were police officers who had called to him to stop and were chasing him. His wife, then Miss Verna Nye, testified to the same. The officers swore they were in full uniform. It was 7:30 in the evening; they came up from in front with the headlight on; there is nothing to indicate that street lights at that point illuminated the scene. Any one knows it is difficult to see the form of a person driving a car from which the headlight shines. It is perfectly reasonable that Bond could not see the officers' uniforms or tell they were officers. Stroud testified that he could not tell whether the occupants of the Buick car were two men, two women, or a man and a woman. Gartland showed his defective observation because he said there were two men in the Buick car. However, he said he chased it so closely that it could not have stopped and no one could have got out without being seen by him. Bond and Miss Nye were in the Buick when it passed the Hale Ford car; in fact, no question is raised but that Bond and Miss Nye were in the Buick car all the time. They kept in advance of the police car for several blocks in the city, turned east on Mitchell street...

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