State v. Pauly.

• Citation: 267 S.W. 799
• Decision Date: 31 December 1924
• Docket Number: No. 25650.,25650.
• Parties: STATE v. PAULY.
• Court: United States State Supreme Court of Missouri

267 S.W. 799

STATE v. PAULY.

No. 25650.

Supreme Court of Missouri, Division No. 2.

December 31, 1924.

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

George H. Pauly was convicted of manslaughter, and he appeals. Affirmed.

B. M. Lockwood and J. E. Heffiey, both of St. Joseph, for appellant.

Jesse W. Barrett, Atty. Gen., and Harry L. Thomas, Sp. Asst. Atty. Gen., for the State.

HIGBEE, C.

The defendant was convicted of manslaughter, sentenced to imprisonment in the county jail for 6 months, and appealed.

The defendant and Owen J. Gartland were charged on information by the prosecuting attorney with murder in the second degree, in that on October 19, 1922, at the county of Buchanan, they shot and killed Nellie Hale. Gartland was granted a severance, and on a trial was found guilty of manslaughter and sentenced to the penitentiary for a term of two years. His conviction was reversed and the cause remanded for an error in instruction No. 9, in an elaborate opinion by Judge White. See State v. Gartland (Mo. Sup.) 263 S. W. 165. The material facts in this case are, with some exceptions as to the evidence offered at the trial, the same as in the Gartland Case, and need not be set out in detail.

Briefly stated, at about 7:30 p. m., October 19, 1922, Stroud, Gartland, and the defendant Pauly, patrolmen, were riding in a squad car, Stroud at the wheel, when they met a Buick car on the streets of St. Joseph, with only one headlight burning. This car was driven by Mr. Bond, aged 21, accompanied by a young lady, both apparently unknown to or not recognized by the officers. The patrolmen ordered Bond to drive up to the curb and fix his light. Not understanding the order, Bond "stepped on the gas," and a chase ensued by the squad car for about three miles to a point on a country road where the distressing accident occurred. At this point, near a turn in the road, the Buick car passed a Ford car driven by Ever.. ett Hale, aged 17, accompanied by his brother William, aged 24, his sister Nellie, aged 14, and a boy named Corliss, aged 16. Corliss and Nellie were in the rear seat. As the Buick car passed the Hales noticed the lights of the squad car coming over the hill behind them, and immediately heard several shots from the squad car. Instantly Nellie cried, "Oh," and her body crumpled down. Her companions saw blood coming from her mouth. There can be no reasonable doubt all the facts considered, that one of the shots struck her in the back, penetrating her body and severing the aorta. She died before the officers could get her to a hospital. Pauly and Gartland were arrested on a warrant. issued by a justice of the peace on October 22, and waived a preliminary examination.

Pauly filed a plea in abatement and a demurrer to the third amended information on which he was tried. These are the same as those filed by Gartland. Judge White holds they were properly) overruled, and they need not be considered.

At the trial, which occurred on October 29, 1923, the chief of police, Hugh Raphael, testified that between 7:30 and 8 p. m., of October 19, 1922, Stroud, Gartland, and Pauly came into the station, and, while they were all standing about him, one of the three, Gartland as he remembered, said: "We was chasing a bootlegger car and shot a girl, out on solve dirt road, the Pickett or Pritchett road, or some such name, I can't remember." Witness then related Gartland's statement about chasing this car; that they went out on this Pickett or Pritchett road, or wherever it is, and Gartland said:

"I shot twice, and I don't remember how many times Pauly said he shot. They told me they had accidentally shot a girl, and I says, `What did you do with that girl?' and they said, `She is out here in the car,' and I said, `You get her to the undertakers just as quick as you can, and stay with the car until the coroner comes, and don't let anybody touch the body.'" Witness could not state if Pauly made any statement that he had fired any shots or not, but said that, to the best of his knowledge, Pauly had some empty shells and loaded shells in his hand and so did Gartland, but he could not remember how many. They said Nellie Hale died in the car on the way to the hospital.

Stroud testified that Pauly and Gartland were in the car; that they chased the Buick car out onto the Pickett road; that they ran by this Ford car; that the boys in the Ford car "hollered" some one had shot their sister; that he stopped his car and backed up to the Ford car; saw the Hale boys and the girl in the back seat; that she was crumpled down and bleeding at the nose and, mouth; that they took her out and started for town; that both the officers fired shots before they passed the Ford car; they fired straight ahead; they both had guns; he heard no other shots than from the car he was riding in; the girl died after they drove down the road a mile or so. Witness said he was present when Gartland and Pauly reported the accident; Pauly said he fired shots ; did not say how many; they did not ask who did the killing; that there might have been five shots fired; Gartland fired the first shot.

Ernest A. Phillips, reporter for the St. Joseph Gazette, went to the police station about 10 p. In. on October 19. Pauly, Gartland, and Stroud were there. Pauly, answering a question propounded by witness, said that after the car turned off the dirt road onto the Pickett road he fired three shots, aiming at the...