101 Mystery Stories

43 Because the Constable Blundered Francis M. Nevins, Jr.

At long last the procedural delays were over and the date of the trial was announced. Gilmore heard the news on the car radio while trapped and sweltering in the daily traffic jam out of the city. He swung the car off the boulevard at the next corner, making a right and then another right, heading back downtown to Headquarters.

The announcer of the six o’clock news recapped the headlines — Eisenhower takes history’s first presidential helicopter ride, plans completed for nationwide civil defense exercise, Aga Khan dies — but Gilmore wasn’t listening. He gunned the car up the ramp to the rooftop parking deck for high Department officials, locked the car doors, jogged across oil-stained concrete to the elevators.

In his own cedar-paneled office he pulled out the MO sheet on Bugs Ruber (having decided a week ago that Ruber would be the best one to use) and reread it over and over, puffing on a cigar as he did so, until every detail had become a part of him. Then he transferred the necessary equipment from his bottom desk drawer to his jacket and rode the elevator back to the roof.

The traffic had thinned and he made good time to the northwest corner of the city. He parked five blocks from his destination, across the street from a run-down neighborhood theater, and looked up curiously at the already lighted marquee. Two Westerns were playing tonight. He liked Western films. You could always tell who was good and who was bad in them.

He walked the five blocks, passing few people since it was suppertime, and turned in at a shabby red-brick residence that had been converted into four apartments. Tom Stroud had the top rear, Gilmore knew. He used a skeleton key on his ring to bypass the vestibule’s buzzer system, mounted the work stairs to the second floor, and pressed the bell with a knuckle and waited. On the third ring the door opened the width of the chain latch.

Gilmore thrust his card through the aperture. “Official business,” he said brusquely.

Stroud fumbled with the chain and stepped back to let his visitor in. Gilmore briefly studied the man, a tall, lean, crew-cut, pleasant-faced fellow wearing a T-shirt and chino slacks, his face and arms glistening from the July heat. A whirring fan in the corner of the untidy livingroom pushed humid air around the apartment. A blue patrolman’s uniform hung on a wire hanger from the top edge of a closet door, swaying in the air current.

“Sorry to disturb you when you’re off duty, Stroud,” Gilmore began, “but if you heard the evening news you’ll know what I’m here about.” He nodded in the direction of a tacky small-screen TV cater-cornered against a wall junction.

“I didn’t,” the young patrolman said. “I just got up a little while ago. I have the 12-to-8 this week.” Gilmore knew that already. He could see rumpled bedclothes through the doorway into the next room.

“Your wife isn’t around?”

“We’ve separated, sir,” Stroud explained.

Gilmore knew that too. “Sorry to hear it,” he lied. “Well, the reason I had to see you is that Jackson Coy is definitely not going to cop a plea. He’s sticking to his guns and the trial is on for three weeks from tomorrow. When you go on duty tonight you’re probably going to find a message to report to the prosecutor’s office in the morning. I just wanted to, well, go over with you what you’re going to say to the prosecutor.”

Stroud’s face took on a quizzical expression, as if he couldn’t quite see the point. “All right, sir, if you say so. Why don’t you take off your jacket and make yourself comfortable? I’ll get us some iced tea. In this heat we can use a cold drink.”

“I’ll leave the jacket on,” Gilmore said. “No thanks on the tea.” He walked across a cheap imitation-Persian mg to the sagging mohair couch and sat erect in a corner while Stroud padded to the kitchen. The patrolman poured a tall glass of iced tea from a pitcher in the refrigerator and took a long swallow, then crossed the room and took a seat at the opposite corner of the couch, setting down his glass on a coffee table marred with the residue of countless wet rings.

“If you’ll excuse my saying so, sir, I don’t see anything in the Jackson Coy case that’s important enough for a visit from...” He glanced down at the card he had taken from Gilmore at the door. “... from a deputy assistant commissioner.”

“We do want to win this one,” Gilmore said, pinching an end of his steel-gray moustache between two fingers. “These imputed-malice cases can be tricky.”

“Well, I’m not a lawyer, but I remember what we were told about felony murder and imputed malice when I took that refresher course at the Police Academy last year,” Stroud said. “I thought the courts in this state have ruled that whenever anyone dies in the course of a felony, the premeditation that’s necessary for first-degree murder is sort of carried over from the felony and imputed to all the people involved so that they can all be charged with Murder One and sentenced to the chair if they’re convicted. It doesn’t matter whether any of the felons did the killing themselves.”

“That’s about right,” Gilmore agreed. The hard mohair surface of the couch was like fine quills against his back. “We’ve had cases where an officer accidentally shot an innocent bystander in a gun battle with some thieves, and one where a robbery victim resisted and shot one of the two guys who were robbing him, and where two fellows were committing arson and one of them managed to burn himself to a cinder as well as the building. We got murder convictions against the surviving felons in all three cases and the state supreme court upheld them all on appeal. This imputed-malice theory is a great deterrent to anyone who’s tempted to commit a felony. If there’s any death as a result, no matter how it comes about, they can be hit with Murder One. The Department,” Gilmore said solemnly, “wants the law to stay that way.”

“So do I, sir,” the young patrolman replied earnestly.

“So let’s go over the facts,” Gilmore suggested.

Stroud leaned back in his corner of the couch and drank more tea. “It was about nine months ago, the first week in October. Jim Noonan and I were out in our squad car on the 12-to-8 trick. We’d been teamed up off and on for about three years, ever since I got back from Korea.”

“You joined the force five years ago, around ’51, didn’t you?” Gilmore interrupted.

“Right.” Stroud displayed a lopsided boyish grin. “Then a few months after I’d graduated from the Academy and gotten married, my Reserve unit was called up for Korea duty. When I got back I joined the force again and was assigned to a car. Jim was my partner, oh, about half the time all told.” His face fell and the light faded from his deep brown eyes. “Poor Jim. That night in October was his last.”

Gilmore tried to prod him out of his brooding silence. “You got a call on the squawk box that a burglary was in progress...”

“Right. About three in the morning. It was raining and overcast and visibility was terrible. We got a squawk there was a burglary in progress over on Webster Avenue. We were the nearest car and got there in a couple of minutes. It was an old store front divided in two, one side a pawnshop and the other a rug dealer with a funny name.”

“Nalabindian,” Gilmore supplied absently.

Stroud’s eyes widened in surprise.

“The Department is very interested in this case,” Gilmore said. “Go on with your story, Officer.”

“Yes, sir. We got out of the squad car and started to close in on the store just the way it says to do in the book. We’d only taken a few steps across the sidewalk when the guy looting the store opened up on us with a .45. We split up. I took cover behind the hood of the squad car and Jim ran for the doorway and hit the deck. We returned fire. It was dark and noisy as hell and the whole thing was over in less than a minute. Twelve or fifteen shots fired, the burglar in the pawnshop howling his head off with a bullet in his leg, and poor Jim Noonan dead in the doorway of Nalabindian’s rug store. More cars came up then, and they grabbed the suspect and hauled him downtown, and called an ambulance for Jim even though we knew he was dead.”

He paused a moment in his recital. “You know who it was in the pawnshop, of course — Jackson Coy, with a knife scar across his cheek and a record a mile long. Jim was my buddy and it was damn tough to lose him that way. If you haven’t come up through the ranks I don’t know if you can realize how tough a thing like that can be.”

Gilmore said nothing for a full minute. It was like the traditional sixty seconds of silence for one who has died. Then he fingered his moustache again and looked down at his wristwatch. It was getting late.

“The worst of it came later, I suppose,” he ventured. “When the autopsy report came in.”

“I almost quit the force when I heard,” Stroud said, his voice falling to a near-whisper.

“Coy had been firing a .45 at you and Noonan,” the official recounted, “but the autopsy showed that the bullet that killed Noonan came from a .38. The Police Positive caliber. Since he obviously hadn’t shot himself, then it must have been one of your shots that hit him in the darkness and confusion when he was edging out of that doorway.”

“Do you have to go over it?” Stroud demanded. He seemed to be fighting to hold back tears. “Don’t you think I’ve done that often enough to myself?”

“And then to top it off, your wife left you a couple of weeks later,” Gilmore said, almost gently.

“She couldn’t take it. I told her I’d killed a lot of people in Korea and that never bothered her, but somehow this was different for her. Too close to home, I guess.”

“Naturally,” Gilmore pointed out, “Jackson Coy and his lawyer don’t know yet that it wasn’t Coy’s bullet that killed Noonan. The prosecutor tried to get him to cop a plea to second-degree murder but it was no go. Coy’s a crapshooter from way back. He’s going to go for broke, stand trial for first degree and hope something will come up that will get him a hung jury or better.”

He paused.

“The fact that it was your shot that killed Noonan,” he went on quietly, “may just do the trick for Coy. When we go to trial that will have to come out.”

Stroud pushed himself to his feet, paced parallel to the ring-marred coffee table as if its length were that of a prison cell. “But so what?” he demanded. His voice was on the verge of breaking, his T-shirt drenched with sweat. “Under the imputed-malice cases he’s still guilty of first-degree murder, isn’t he? It’s just like that case where the officer accidentally killed the innocent bystander. That guy was convicted.”

“There’s a difference,” Gilmore said.

Stroud stood still. His head jerked to face the deputy assistant commissioner. He kept silent and the sweat kept pouring down him.

“You know what the difference is,” Gilmore said.

“I’m not a lawyer...” the young patrolman began.

“But you damn well remembered the law you were taught in that refresher course at the Academy!” Gilmore spat out the words from between taut lips. “You found out that Noonan had been shacking up with your wife the whole time you were in the service and afterward too. I don’t think you found out until shortly before the night of the shooting. You’re not the type that could sit calmly in a patrol car night after night with a guy who was making time with your wife. You found out she and Noonan had a thing going and your refresher course gave you the idea what to do about it. All you had to do was wait till the next call came in that would put you and him in a gun battle. In a city like this, that wouldn’t be a long time. In the confusion of the gunfight you pump a slug into Noonan, and under the imputed-malice rule the poor slob who was committing the original crime gets the chair for first-degree murder. That’s why your wife left you, wasn’t it? She knew it wasn’t just an accident that you had shot the guy she was making it with.”

“You can’t prove any of this,” Stroud began defiantly.

“Come off it,” the other growled. “Why do you think I’m here? Your wife talked to Captain Logan of the Confidential Squad two months ago. Logan talked to the commissioner and the commissioner talked to me. In a technical sense you’re right, I haven’t enough proof to get you indicted for murder, and we don’t dare bring departmental charges against you for what you did because then the truth comes out and Jackson Coy gets off the hook, and we want that boy put away. But what do you think is going to happen now that there has to be a trial? What do you think Coy’s lawyer — and he’s been assigned a good one — is going to do when the autopsy surgeon testifies that your bullet killed Noonan? He’s going to do some investigating, and find out what I found out when I talked to a few of your neighbors over the past week: that Noonan visited here every chance he could get when you were on duty and he was off. The judge will instruct the jury that under the imputed-malice cases it doesn’t matter how Noonan died, Coy is still legally responsible, but maybe the jury will balk and acquit him anyway, or maybe they’ll find him guilty and on appeal the supreme court will reverse it and may just knock out a good part of the imputed-malice theory at the same time, because that theory was never intended to shield a cop who commits cold-blooded murder behind it. So thanks to you, Stroud, we stand a good chance of losing a damned effective deterrent against the commission of felonies.”

Stroud stood silent, drenched in his own sweat.

“Get into your uniform,” Gilmore ordered. “You’re going downtown with me.”

Stroud did not move toward the blue uniform swaying gently in the breeze from the fan.

“Move!” Gilmore shouted.

The patrolman jerked around like a robot, turned his back on the official and began taking hesitant steps toward the open closet door.

Gilmore caught up to him in two strides. He pulled out the crowbar taped to the lining of his jacket and smashed it against the back of Stroud’s head with all his strength, then again, and again. Stroud crumpled in a heap. His blood and brains crawled onto the faded rug.

Gilmore moved rapidly now, retrieving his official card, wiping his prints from the weapon and dropping it beside the body, opening a rear window and breaking an upper pane from the outside, leaving other traces around the apartment that conformed to Bugs Ruber’s modus operandi which Gilmore had mastered so completely. It took him no more than five minutes. Then he let himself out cautiously by the front door and softly descended the worn oak staircase to the street door and walked back the five blocks to where he had parked his car.

One of his favorite sayings kept going though his mind as he walked, a statement of a wise judge many years before. Why should the criminal escape because the constable blundered? Gilmore had never been able to think of a single reason why.

It had been a good evening’s work, he told himself as he lit another cigar, one that he could never officially report nor even hint at off the record to anyone else in the Department, but a good evening’s work nevertheless. He had avenged a cold-blooded killing, taken care of a legally unpunishable murderer, removed a bad cop from the force without even a whisper of adverse publicity for the Department, left open at least a fighting chance that Coy would be convicted on the theory that Stroud’s shooting of Noonan had been an accident for which Coy was legally responsible, and had even hung a rap around the neck of Bugs Ruber, who was a dangerous character and a threat to decent citizens.

The double feature across the street was letting out. Gilmore turned the car into the stream of others driven by moviegoers departing from the pair of Western films and became indistinguishable from them.