# Appendix — Swenson v. Stidham

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0078%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1973
- **Citation:** 409 U.S. 224

## Text

INDEX
Volume I

Appendix A—Transcript in State v. Stidham, No.
45537 Al

Volume II
Appendix B—tTranscript in State v. Stidham, No.
No. 52406 A561
Appendix C—Transcript in Stidham v. State, No.
54674 A595
Appendix D—Opinion in State v. Stidham, No. 45537
: A697

Appendix E—Opinion in State v. Stidham, No. 52406

A721
Appendix F—Opinion in State v. Stidham, Reinstated
Appeal, Nos. 45537 and 54674 ... A725
Appendix G—Opinion in Stidham v. Swenson, Federal
Habeas Corpus, Civil Action No. 18121-2
Appendix H—Order Dismissing Appeal in Stidham
v. Swenson, No. 20337 A758
Appendix I—Order of United States District Court
Dismissing Reinstated Appeal in Stidham v. Swen- |
son, No. 20337 A759
Appendix J—Opinion of the United States District
Court in Stidham v. Swenson, No. 18771-2 A760
Appendix K—Opinion of the Eighth Circuit Court of
Appeals in Stidham v. Swenson, No. 20685 A765
Appendix L—Order Denying Petition for Rehearing
En Banc Before the United States Court of Appeals
for the Eighth Circuit in Stidham v. Swenson, No.
20685 A777

duet tang SDE DBAS wind

A381

TROOPER R. C. CALDWELL,
BEING RECALLED, TESTIFIED:
Redirect Examination by Mr. Riley

Q. Will you state your name please? A. R. C.
Caldwell.

Q. You were sworn just a while ago to testify in this
case, weren’t you? A. Yes, sir.

[535] Q. Where do you live Mr. Caldwell? A. Fred-
ericktown.

Q. Up here in Madison Cotinty? A. Yes,

Q. You are with the Missouri State Highway Patrol?
A. Yes, sir.

Q. I will ask you, how long have you been with the
Patrol? A. Since the 14th day of December, 1942.

Q. Did you go to the Missouri State Penitentiary in
September of 1954? A. Yes, sir.

Q. When did you get there sir? A. I got there at
twenty-five minutes to eleven on September, the night
of September 22nd.

Q. Do you know the Defendant, James William Stid-
ham? A. Yes, sir

Q. Wiss was the first tins you eae tae? A. The
first time I ever saw him was on the morning of the 27th
of September.

Q. Where was that? A. In Death Row, at the Penj-
tentiary.

Q. Now, did you go tosDeath Row? A. Yes, sir.

Q. Did you take the Defendant anyplace? A. Yes,
sir, Patrolman Jenneman of the St. Louis Police Force
[536] and myself, took him from Death Row to the field
house of the Penitentiary.

Q. Did you go back to his cell to get him? A. I
didn’t go back to his cell, Patrolman Jenneman and a guard

A384

after he had written the statement out, as to why he would
. get himself implicated in the murder of somebody that
hadn’t really done anything to him.

MR. HENNELLY: Object to that Your Honor, and
ask rt it be stricken and the Jury instructed to disregard
it and a mistrial be declared, hearsay and not ‘binding on
this Defendant.

THE COURT: Overruled.

Q. Did he answer that statement?. A. I asked him
the words, I remember, as to whether—

THE COURT: Just state what his statement was.

A. Hesaid that Donnell was a snitch and had snitched
on some of the boys and that they had got a load of time
out of it, and that I was living my life under a different
code than he was living his, and that he respected my
code, whether I did his or not.

Q. I believe that is all.

[540] Recross-Examination by Mr. Hennelly

Q. Did he say that he was living under a different
code? A. Yes, sir

Q. Did you, by that code, think that he meant that
nobody should ever snitch on anybody else? A. I don’t
know what he meant, that is the words he said.

Q. But he did tell you that the reason Donnell was
killed was because he had informed somebody and had
snitched on somebody else, is that right? A. He told me
that the reason he wanted to kill Donnell was that he was
a snitch and that he had snitched on a bunch of the boys
and that they had got a load of time out of it.

Q. There isn’t any question about the fact that he
said that to you, is’there Trooper? A. If there was, I
wouldn’t make the statement.

Q. Nobody hit him and nobody did anything to him
and nobody held him from the — that is trie, isn’t
it? A. Yes, sir

Pe ee ere Pee Ee oe Pa rd

A385

Q. Nobody did anything like that to him, isn’t that
right? A. That is right.

Q. Now, Trooper Caldwell, you took him from Death
Row, is that correct? A. Yes, sir.

Q. And then you took him over to this shed? A.
To the field house.

[541] Q. To the fiela house? A. Yes, sir.

Q. Did you take him back to Death Row when you
were finished questioning him? A. No, sir.

Q. Was he in the same condition when you took him
out of Death Row that he was when you left that shed,
was he in the same physical condition? A. Yes, sir.

Q. He hadn’t shown any evidence had he of any of his
fingers being paralyzed as a result of being hung up? A.
He didn’t show anything like that.

_ Q. Didn’t make any complaint to you about ever
being mistreated, or anything like that, did he? A. No,
sir.

Q. Nobody had to lay a hand on him, did they, no-
body had to hang him up or do anything to him? A. There
wasn’t anybody that was hung up or beaten up, no, sir.

Q. Now, when you took him back after he had left
there Trooper, where was it that you said you took him to?
A. You mean from the field house, where we took him to?

Q. Yes, sir. A. After he made this statement?

Q. Yes, sir. [542] A. To O Hall.

Q. O Hall? A. Yes, sir.

Q. And did you place him in a cell there? A. I didn’t
place him in a cell. He was placed in a cell, but not by me.

Q. Had there been any conversation about the De-
fendant’s wrist watch before he left Death Row? A. Not
to my knowledge, no, sir.

Q. Did he have a wrist watch on? A. I don’t re-
member seeing one on him.

A386

Q. Well, did you assist in putting the handcuffs on
him? A. He was brought out from his cell by Patrol-
man Jenneman and one of the guards out to the front
and my handcuffs were placed on him, and his hands were
handcuffed to the back of him like this.

Q. And did those handcuffs remain on the back of
him during all of the oral interrogation? A. Yes, sir.

Q. And where was he in that room during that in-
terrogation? A. Sitting in a chair.

Q. Did he at anytime leave that position at that chair?
A. Not that I remember of.

Q. There was no, he made no movements after he
once sat down to the best of your knowledge, is that right?
A. As far as leaving the chair, I don’t remember him leav-
ing [543] the chair.

Q. Was he at a table when he was being interrogated?
A. Close to a table similar to that, but he wasn’t sitting
right up close to it.

Q. No further questions.

MR. RILZY: That is all.

THE COURT: I believe we will recess now for sup-
per. During the evening recess, remember the previous
statements of the Court not to talk to anyone or permit
anyone te talk te you sbout it, and don’t discuss the case
among yours .2 of reed anything about it or listen to
anything sbowt i, and the Sheriff will take you to the
hotel for your supper and we will recess until seven or
seven-fifteen.

And thereafter to-wit: On the same day, the follow-
ing order was entered of record:

Circuit Court Record, Butler County, Missouri (Book 62,
page 428) Tuesday, July 19th, 1955, Regular July 1955
Term :

Now at this time, it being supper hour, trial in this

cause is recessed for the Supper Recess. ;

A387

Now, supper recess being over, comes again the parties
by their respective counsel, and comes the Jury herein
impaneled. and sworn to try this cause, and whereupon
trial in this cause is resumed and progressés in the hearing
of the evidence herein.

[544] THOMAS JENNEMAN,
RECALLED, TESTIFIED:
Redirect Examination by Mr. Riley

Q. Will you state your name please? A. Thomas
Jenneman.
Q. Where are you employed sir? A. St. Louis Po-
lice Department.
Q. For how long have you been employed by the
St. Louis Police Department? A. Fifteen years ago last
December 24th.
Q. How old are you sir? A. Thirty-seven.
Q. I will ask you if you know the Defendant, James
William Stidham? A. Yes, sir, I do.
Q. Can you recall when you saw him the first time?
A. The morning of the 27th of September.
_Q. What year? A. 1954.
Q. And where were you? A. At the Penitentiary.
Q. Where was the first time you saw him? A. In
Death Row. ;
Q. You just tell us what you did and what hap-
pened. A. Trooper Caldwell and, on orders of Lieutenant
Eitzman went to Death Row to bring Stidham down to
the baseball field [545] athletic shack for questioning
concerning the murder of Walter Lee Donnell.
Q. And where did you go to get him? A. Death Row.
Q. Death Row? A. Yes.
Q. And you took him down to the recreation building
on the athletic field? A. Yes, sir.

A388

Q. Now, how was he taken down there? A. In the
Patrol car, Trooper’s car.

Q. And did you take him in the building? A. In
the athletic building?

Q. Yes. A. Yes, sir. of

Q. Were you there all the time he was there? ‘A.
Not all of the time, no, there was a couple of times that I
stepped outside.

Q. Now, during the time—I will show you what has
been marked as Exhibit 16 and 16-1, and ask you if you
ever saw that before? A. Yes, sir. I have.

Q. Now, is your name, does your name appear on
that exhibit? A. My initials on the first page and my
name on the second.

Q. Were you there when that exhibit was written?
A. Yes, sir, I was.

Q. All of it? A. Yes, sir.

[546] Q. Now, I will ask you if you or anyone in your
presence who signed that, who wrote that Exhibit— A.
Stidham wrote it.

Q. Didhesignit? A. Yes, sir.

Q. Inyour presence? A. Yes, sir.

Q. I will ask you if you or anyone in your presence
promised Stidham anything to make a statement? A.
No, sir.

Q. I will ask you if you or anyone in your presence
threatened Stidham? A. No, sir.

Threatened him in any way? A. No, sir
Strike him? A. No, sir. What did you say, trick

I said threaten? A. Threaten him, no, sir.

Now, did you or anyone in your presence hit,
strike, beat Stidham in any way, or in any manner? A.
No, sir.

Q
Q
?
Q. No,strikehim? A. No, sir.
Q
Q.

Pennine
A389

Q. Did you offer him any violence whatsoever? A.
No, sir.

[547] Q. Now, did you tell Stidham what to put in
that statement? A. No, sir.

Q. Who was doing the questioning? A. Lieutenant
Eitzman and Sergeant Little.

Q. Did you hear them tell him what to put in that
statement? A. No, sir.

Q. Did anyone tell him what to put in that state-
ment? A. No, sir.

Q. Did Stidham make any statement other than what
is contained in those sheets of paper? A. Made an oral
statement before he wrote this.

Q. I will ask you if you can recall anything that he
said orally, that isn’t in that statement? A. I recall him
saying that he had a grudge against Donnell, due to the
fact that Donnell snitched on him in July while they were
in E Hall.

And that was his reason for being put in Death
Row, the snitch was over a riot that was supposed to take
place in July.

MR. HENNELLY: I am going to object to that an-
swer and ask that it be stricken and the Jury instructed
to disregard it and a mistrial declared, as they are attempt-
ing to prove another crime, and it is an attempt to put the
reputation of the Defendant in issue.

THE COURT: The objection is overruled.

[548] Q. That is all.

Recross-Examination by Mr. Hennelly

Q. Officer Jenneman, had you been up in the Peni-
tentiary from the night that the riot began? A. Yes,
sir.

Q. What time did you arrive up there? A. Early,
about five-thirty the morning of the 23rd.

A390

Q. Five-thirty the morning of the 23rd? A. That
was Daylight Saving Time, four-thirty Jeff City time.

Q. Did you at that time go down into Death Row?
A. No.

Q. Were you in B basement at anytime on the 23rd?
A. No, sir.

Q. Now, you are attached to what district in St. Louis?
A. Central.

Q. And Lieutenant Eitzman is your commanding of-
ficer, or at least one of your commanding officers down
there, isn’t he? A. Yes, sir.

Q. And these other officers, Billings and what is the
name of the other officer that testified here? A. Over-
beck.

Q. You are all out of the Central District? [549] A.
Yes, sir.

Q. Incidentally, how big a man are you? A. Five
foot eleven, one hundred and ninety-five pounds.

Q. One hundred and ninety-five? A. Yes, sir.

Q. Now, are you attached to any particular riot squad
or anything in the City of St. Louis? A. No, sir.

Q. I see. Now then, when you came up to—strike
that. On the day that this defendant was questioned, you
were one of the officers that got him out of his cell in Death
Row, am I correct in stating that? A. Yes, sir.

Q. Now, was there any conversation either directly to
you, or any conversation in your presence with respect to
a wrist watch that the Defendant had on? A. No, sir.

Q. There wasnone? A. No, sir. .

Q. Did he have a wrist watch on when you first got
back to his cell? A. When I first went to get him?

Q. Yes. A. Isawno wrist watch.

Q. ‘Did you go to his cell? A. Went to the door of his
cell.

[550] Q. And at the time that you went to the door
of his cell, was he laying down on the floor or standing

A391

up or where was he? A. Well, I don’t recall whether he
was laying down or standing up.

Q. And did you have some conversation with him
then? A. Icalled him.

Q. Did you tell him you were going to take him over
to the athletic shed? A. Didn’t tell him where, said come
along.

Q. Didn’t tell him where he was going, is that right?
A. No, sir.

Q. Did you stop at anytime in that classification room
and raise him up off of the floor? A. No.

Q. Didn’t do that, did you? A. No, sir.

Q. This time he was questioned over in the athletic
shed, is that right? A. I don’t know of any other time that
he was questioned.

Q. Allright. And can you tell me where these hand-
cuffs were put on? A. You mean what part of his body?

Q. Yes. A. On his hands, and his hands were be-
hind his back.

[551] Q. His hands were behind his back? A. Yes,
sir.

Q. And then he was taken out of Death Row and put
into one of the cars and taken some distance to this shack,
is that right? A. He was taken out of his cell there
shortly, or rather a small distance from his cell door is a
cage, there is a walkway there, and he was brought up to
the front gate of Death Row and there the handcuffs weré
put on him.

Q. There the handcuffs were put on him? A. Yes,
sir.

-~ Q. Now, when you took him in, did you take him in
a car over to the athletic field? A. Yes, sir.

Q. Can you give His Honor and this Jury any idea of
how far you had to drive to get him over there? A. From
the Death Row cell?

A392

Q. Yes, from the time you got into the car and you
drove him over to the athletic shed? A. I would say
perhaps close to a quarter or half a mile.

Q. Between a quarter and half a mile? A. Yes, sir.

Q. You know how close the Administration Building
is to Death Row? A.. No, sir.

[552] Q. Youdon’t? A. No, sir.

Q. But you took him between a quarter and half a
mile down there to question him, is that correct? A. Yes,
sir.

Q. Now then, when he got down there and as he was
sitting in the car, he was still handcuffed with his hands
behind him, is that right? A. Yes, sir. '

Q. Did either you or Trooper Caldwell have any shot-
guns with you or pistols when you went up there? A. I
had a riot gun.

Q. You had a riot gun? A. And my sidearms.

Q. And yoursidearms? A. Yes, sir.

Q. And with all that, you still handcuffed him to the
back, is that right? A. Yes, sir.

Q. And then you taken him down there, and when he
got in there, were there some officers in that room already?
A. Yes, sir.

Q. And tell us if you will, where were they in that
room? A. Seated at a table, and Lieutenant Eitzman was,
I don’t recall if he was seated at a table or standing behind
it, and Sergeant Little was seated at the side of the table,
and [553] I don’t recall just where Overbeck or Billings
were, but they were in the room, whether they were seated
or standing I don’t remember.

Q. Now then, do you, were you there for the first part
or all of the questioning Officer? A. When we first went
in it was a pretty hot day, and I stepped over to a fan that
was there, and I was fairly close to the fan. Shortly after-
wards I had to step outside, due to a severe cough that I
had, and I was outside for a few minutes.

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A393

Q. You say that it was a pretty hot day, this was
September, you say September 27th, is that right? A. Yes,
sir.

Q. Was it, was thesun shining? A. Yes, sir.

Q. And would you say it was real hot? A. It was
hot enough to where we were instructed by the Captain of
the St. Louis Police Department to remove our blouses and
go around in shirt sleeves.

Q. All right. Were you there while he was ques-
tioned at all in the beginning Officer? A. As I said, when
we first went into the room with him, I stepped over to
this fan, and shortly afterwards I stepped outside, due to
a severe cough, which I had spent fourteen days in the

' hospital because of.

Yes.

[554] Q. Did you come back in again? A. Yes, sir.
Q. And was he questioned then in your presence? A.

Q. And during that time Officer, did he deny that he

. had anything to do with the death of Donnell? A. I don’t

DE are RRA OE he WU ed oe o>

recall anytime that he denied it, when I was in there.

Q. Youdon’t recall that? A. No,sir. —

Q. You know how long you were gone outside of the
room? A. Perhaps close to ten minutes.

Q. Close to ten minutes? A. Yes, sir.

Q. When you came back in, did you stand up close to
the position where he was being interrogated by the of-
ficers? A. I stood to his left, rather, I went over and sat
on a bench to his left against the wall.

Q. How far would you have been away from the De-
fendant at that time? A. Approximately four feet.

Q. Four feet? A. Yes, sir.

Q. But at no time did you hear him deny that he had
anything to do with the murder? A. Not while I was in
the room.

[555] Q. Not while you were there? A. No, sir.

A394

Q. Now was he admitting then when you were there
that he had something to do with the murder? A. Not
right at that moment, no.

Q. All right. Now, is it your testimony that nobody
hit him, nobody did anything to him, isn’t that right? A.
In my presence the man was never injured or struck in
any way.

Q. And—

THE COURT: Let the witness answer, he was an-
swering, go ahead and complete your answer. What were
you saying?

A. In my presence the man was never touched and
never injured and never threatened in any way.

Q. All right. Was he at anytime taken and lifted up
to the ceiling, rather lifted a few inches from the ground
with a rope which was attached to the handcuffs to the
back? A. No, sir.

Q. That wasn’t done wasit? A. No, sir.

Q. Did you leave that room at anytime after that
first time that you went outside? A. No, sir.

Q. And did he complain of any pain in his hands?
A. No, sir.

[556] Q. Could you see his hands? A. See both of
them.

Q. And there was nothing wrong with the hands when
you saw them, is that right? A. Not that I could see, no,
sir.

Q. You didn’t see any shrinking of the little finger
and the next finger on the left hand, did you? A. I did
not observe anything like that.

Q. All right. Now then, how long was he in there
before he mace a signed statement? A. I would say ap-
proximately twenty-five minutes or a little longer.

Q. Twenty-five minutes? A. Yes, sir.

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A395

Q. Now, was he still in the same position when the
statement was reduced to writing as he had been in when
he was making the oral statement? A. No, when he
started writing, the handcuffs were removed.

Q. And did he remain in the same chair and in the
same position? A. Same chair, but not the same position,
no.

Q. Allright. Now, at that time, were you all seated
around the table? A. Not all of us, no.

Q. Did anybody tell him anything to put in that state-

i ment? [557] ‘A. No, sir.

Q. Nothing at all, is that right? A. He was in-

: structed to state what his name was and his age.

PREETI CTD DAE at haat

Q. His name and his age? A. And that he was an in-
mate of the Penitentiary.

Q. You were there, you were right there, weren’t you?
A. Yes, sir.

Q. And he was instructed to give his name and his
age and that he was an inmate of the Penitentiary? A.
Yes, sir.

Q. Now, is that the only thing that anybody said to
him that was at that table during this interrogation, is
that the only thing that anyone said to him? A. Is that the
only thing anyone said to him?

Q. Yes, is that the only directions given to him with
regard to writing the statement? A. Yes.

Q. Theonly thing? A. Yes. ;

Q. No question about that now, is there Officer? A.
I don’t recall anything else that was said.

Q. Now, how long would you say it took him to write
the thing out? A. I would say possibly around fifteen or
twenty minutes.

[558] Q. Fifteen or twenty minutes? A. Yes, sir.

A396

Q. Now, after he got finished, did you put the hand-
cuffs on him again? A. I don’t believe we put them on
immediately, no.

Q. Did you put them on him after you got him out-
side? A. We put them on to take him back to O Hall,
where we took him.

Q. You didn’t take him back to where you got him,
did you? A. No.

Q. Were there at the time you went to Death Row
and got him, were there some other men celled in Death
Row? A. Yes.

Q. When you took him back down to O Hall, who
was with you at that time? A. Trooper Caldwell.

Q. Sir? A. Trooper Caldwell.

Q. Trooper Caldwell? A.- Yes, sir.

Q. Was that the last time that you saw the Defend-
ant Stidham? A. No.

Q. Did you question him at any time after that? A.
No, I didn’t question him.

Q. Iam sorry. Did you hear anybody else question
him after that? [559] A. No, sir.

Q. Did you see him down in the hospital down in
Springfield, Missouri? A. No, sir.

Q. You—did you go down there Officer? A. No, sir.

Q. No further questions Your Honor.

MR. RILEY: I believe that is all. Call Officer Bil-
lings.

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A397

CHARLES BILLINGS,
BEING RECALLED, TESTIFIED:

Redirect Examination by Mr. Riley

Q. Will you state your name please? A. Charles
Billings.

Q. You have been previously sworn, haven’t you?
A. Yes, sir.

Q. And how old are you Mr. Billings? A. Thirty-
five.

Q. By whom are you employed? A. St. Louis Metro-
politan Police Department.

Q. How long have you been Officer? A. Eleven
years.

Q. Are you acquainted with the Defendant, James
William Stidham? A. Yes.

Q. I will show you what has been marked as State’s
Exhibit 16 [560] and 16-1. Have you seen that instru-
ment before? A. Yes, sir.

Q. Do you know what it is? A. Yes, sir.

Q. Did you sign it? A. Yes, sir.

Q. Did you sign both pages? ‘A. I initialed the one
page and signed the other. .

Q. And were you present when that instrument was
written? A. Yes, sir.

Q. Who wrote it? A. James Stidham.

Q. And did he sign it? A. Yes, sir.

Q. Were you present when he signed it? A. Yes, sir.

Q. Where did this occur? A. In the field house at
the Penitentiary.

Q. Were you there when Stidham was brought in?
A. Yes, sir.

Q. Were you there all the time? A. Yes, sir.

A398

Q. Were you there when he left? A. Yes, sir.

Q. And I will ask you if at anytime you or anyone
else made [561] any promises to Stidham to get him to sign
this statement or make it? A. No, sir.

Q. I will ask you if you or anyone else in your pres-
ence threatened Stidham in order to get him to make this
statement? A. No, sir.

Q. I will ask you if you or anyone else hit, beat,
struck Stidham with anything, hands, fists, clubs or any-
thing? A. No, sir.

Q. Did you offer him any violence whatsoever? A.
No.

Q. Did he write this statement out in his own hand-
writing? A. Yes, sir.

Q. And did you or anyone there tell him what to put
in it? A. No, sir.

Q. Prior to making this statement, did you hear
Stidham make an oral statement? A. Yes, sir.

Q. And I will ask you if you can recall anything that
Stidham said regarding Walter Lee Donnell, and confine
it to Donnell, if he made any statement regarding Walter
Lee Donnell, that isn’t in that written statement. A. He
said in his oral statement that Donnell had snitched on him
several months prior, and when they attempted another
riot, and that is why he was in Death Row.

[562] MR. HENNELLY: Same objection, if Your
Honor please.

THE COURT: Same ruling.

MR. RILEY: That is all.

Recross-Examination by Mr. Hennelly

Q. Officer, you are also out of the Central District,
downtown district in St. Louis, aren’t you? A. Yes, sir.

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A399

Q. And there is,of course a Police Department rule
against beating any prisoner, isn’t there? A. Yes, sir.

Q. And there is also, to your knowledge, there is also
a Federal Statute against beating any prisoner, isn’t there?
A. Yes, sir.

Q. All right. Now then, so let me ask you, none of
you, there was no beating done in your presence or no
beating done by you, was there? A. No, sir.

Q. Now then, I am going to ask you Officer, at the
time that Stidham first got there into that cellar, I am
sorry, into that shed, it was a shed, wasn’t it? A. It was
a field house. It wasn’t what I call a shed, no.

Q. How many rooms in that place? A. Oh, the only
room we were in was one big room.

[563] Q. All right. And can you give His Honor
and the Jury the dimensions of that room? A. Oh, about
twenty by thirty, thirty-five feet.

Q. And when he first came in there, were you all
standing or sitting around the table, or what were you all
doing? A. Standing and sitting.

Q. Isee. And he was manacled at that time, was he?
A. Yes, sir.

Q. And did he have a coat on? A. No, sir.

Q. Was he at anytime in your presence placed in a
chair, and a coat put around him? A. No, sir.

Q. Did anybody hit him with any sticks? A. No, sir.

Q. You have to answer sir, so the gentleman can
get it. A. I said no, sir.

Q. Were there any sticks in that building which could
be used for cork ball games, did you see any of those

+ around there? A. There were bats in the place.

Q. Bats? A. There was the sporting, sports office.

Q. Did anybody take any of those bats, or any of that
sporting equipment and make use, fool around with it in
front [564] of Stidham? A. No, sir.

A400

Q. Didn’t do that? A. No.

Q. When Stidham was first questioned, did he deny
having anything at all to do with the death of Walter Lee
Donnell? A. When he was first questioned.

Q. How long did he persist in that position Officer?
A. Oh, about twenty to twenty-five minutes.

Q. Now, I am going to ask you if at that time he
was taken and hung up with his hands in back of him and
suspended six or eight inches from the ground, with his
feet six or eight inches off of the ground? A. No.

Q. “That is not true? A. No, sir.

Q. All right. But in any event, nobody did anything
to him, did they? A. No, sir.

Q. But he then admitted that he had something to do
with it, is that right? A. Yes, sir.

Q. That is when he made an oral statement? A,
Yes, sir.

Q. Did anybody have to do anything at all to him in
a physical way? [565] A. Not in a physical way, no, sir.

Q. Now then, I will ask you Officer, how long did the
oral interrogation take? A. Oh, another twenty-five
minutes to half an hour.

Q. Twenty-five minutes to half an hour? A. Yes, sir,
or less maybe. I mean, I wouldn’t say for sure, but I would
say it was twenty or twenty-five minutes.

Q. Let me ask you this, have you St. Louis Officers
discussed this thing between yourselves at anytime? A.
We have discussed the case.

Q. Allright. I will ask’you this, did anybody tell the
Defendant what to write into that statement? A. No, sir.

Q. Nobody told him anything? A. No, sir.

Q. No further questions.

MR. RILEY: I believe that is all.

MR. RILEY: At this time the State offers State’s
Exhibit 16 and 16-1.

A401

MR. HENNELLY: The Defendant will object and ex-
cept to the introduction of State’s Exhibit 16 and 16-1 for
| the reason that it is hearsay, for the reason that it was
taken in violation of the Constitutional Rights of this De-
fendant, under both the State Constitution and the Fed-
eral Constitution and for the reason that at the time it
_ was taken this Defendant [566] had been in custody, both
' actual and technical custody, being an inmate of the Mis-
) souri State Penitentiary, and being manacled and being
_ handcuffed, and for the reason that a proper foundation
| has not been laid for its introduction and to introduce it
under these circumstances and with the evidence so far ad-
_ duced, would be a violation of all of the Constitutional
Rights of this Defendant.
THE COURT: The objection is overruled. Now then,
_ I suggest that the statement be read to the Jury.

MR. RILEY: Can I read it?
| THE COURT: I was going to add further, that it then
_ be shown to the Jury, but that it be read. I don’t see
- much point in letting each member of the Jury have to
read it through its entirety. I think if it is read to the Jury
at this time, and then passed to the Jury, that will be
sufficient.
| (Out of the hearing of the Jury)
: MR. RILEY: At this time, before I read the Exhibit
: to the Jury, I will ask counsel for the Defendant if he wants
| to interpose an objection to that part of the statement which
: refers to the sentence, which sentence he is now serving,
_ and the fact that he has two prior convictions.
| THE COURT: Three previous convictions is the way
it is written here.

MR. HENNELLY: I am objecting to the entire Ex-
hibit Your Honor, but I am certainly objecting to that sec-
tion. I think that it [567] is putting his character and repu-
tation of the Defendant in issue prior to the time that he

7

“

A402

takes the stand, but I am objecting to the whole statement,
and I had included that in it Your Honor.

THE COURT: Well, in view then of the objection of
that particular part as far as the introduction of Exhibit 16
and 16-1, the objection as to the Exhibit being received in |
evidence, is overruled, but as to that particular part, I
think, following the word “Penitentiary” in the fourth line, ~
the Court will strike out for the reading and exhibiting to _
the Jury, the following words, “serving a sentence of —
twenty-five years for armed robbery”, and then that
looks like a comma, “I have three previous convictions of
and then it looks like either a semi-colon or a comma, there
is some other punctuation after that now, I think that
would be the part that should not be read to the Jury.
Now in passing that to the Jury, I think possibly a piece of
paper could be cut and with scotch tape could be pasted
over that.

MR. RILEY: I believe it would be better to use a piece
of paper. The scotch tape could be taken off and the state-
ment wouldn’t be destroyed as it now is.

THE COURT: If you paste a piece of paper on it, it
would be, the possibility would be that you would never be
able to remove it.

MR. REX HENSON: I will take care of it Judge.

[568] THE COURT: I want to complete this record,
the statement, that is the part of the statement that is af-
fected by this ruling of the Court now reads, “My name is
James William Stidham. I am Twenty-five years of age.
I am from Kansas City, Missouri, I am at the present time.
an inmate of the Missouri State Penitentiary serving a
sentence of twenty-five years for armed robbery. I have
three previous convictions of Dyer Act at the time of the
riot in the Missouri State Penitentiary on September 22nd,
1954. I was confined in Cell 23 of Death Row at 6:50 ©
P.M.” €

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A403

MR. HENNELLY: That is the part you are taking out,
aren’t you Judge?

THE COURT: And then it continues on, but I am
taking out that part, the wording, “serving a sentence of
twenty-five year for armed robbery. I have three previ-
ous convictions of Dyer Act.” That is where the end of
that is.

MR. HENNELLY: You are not going to cut it out of
the statement are you?

THE COURT: No, he is going to put a piece of paper
over it and put that on there with scotch tape because you
can see through the scotch tape, to read any of the rest of
it. I think I will state to the Jury that certain parts of it

> are taken out. I don’t want to tell them any reason why

it is out or any of that kind of comment.

MR. HENNELLY: May the record show now that the
Exhibit 16 and [569] 16-1, being in its present form, with
the sections deleted which the Court stated it was order-
ing deleted, that Defendant still objects to its introduction

» for the reasons which I have heretofore stated, that it is

: hearsay, that it was taken in violation of the Constitutional

_ Rights under both the Federal and State Constitutions, and
_ that no proper foundation has been laid for its introduc-
. tion in its present form.

NT OG hi) on a OR: 5 Be TEM, MEE

THE COURT: You are not objecting to the fact we
deleted some of it, that don’t contain the full statement,
because you objected, that is the reason I sustained that
part of the objection.

MR. HENNELLY: I don’t think I can in good con-
fidence do such a thing. ;

THE COURT: The objection to the introduction as
deleted is noted and overruled. Gentlemen of the Jury,
the attorney for the State will now read to you Exhibit 16
and 16-1, and I want to mention to the Jury the fact that

, there is some scotch tape on this Exhibit and a portion of
» it has been ruled out by the Court and that accounts for

4 A404

the scotch tape that is on it. It will be, after it has been
read, it will be passed to you for your inspection, but that
part has not been received in evidence, and only such part
as you can see, and as the Prosecuting Attorney can now
read, are received in evidence for your consideration.
[570] By saying this, the Court isn’t and doesn’t intend
to give to the Exhibit any undue inference or to intimate
what the Court thinks of it. It is evidence in the case and
is received in evidence and is now for your consideration
as it now stands.

Exhibit 16 and 16-1, having been received in evidence
read in words and figures as follows:

James William Stidham September 27, 1954

My name is James William Stidham I am Twenty-five
years of age, I am from Kansas City, Missouri. I am at the
present time an inmate of the Missouri State Penitentiary.
At the time of the riot in the Missouri State Penitentiary
on September 22, 1954, I was confined in Cell 23 in Death
Row. At 6:50 P.M. on the above date I heard very loud
noises, pounding, hollering, etc., and as a result thereof
several rioting prisoners broke in Death Row, and Paul
Kenton unlocked my door whereupon I came out of the cell,
then myself and several other prisoners went to Crayton’s
cell with the purpose of attacking him but he had his door
lock blocked and we could not enter. After we left Cray-
ton’s cell I saw that Donald’s,cell had been open, and some-

one said lets get Donald, so we went in. Besides myself in —
Donald’s cell, I know that Paul Kenton, Laster, Thompson, ~

Linder, were also in the cell. I heard an exchange of words

between two guys referring to each other as Thompson and j

Linder. Kenton held Donald while Laster [571] stabbed
him several times with a ice pick, at the same time I

- slashed at him three or four times around the face and ;
neck with a knife that Kenton gave me when he opened =

——

A405

the door, when Donald fell to the floor Linder and Thomp-
son each said get Donald with the sledge and they pro-
ceeded to hit him with a sledge hammer and crow bar;
During this time someone was holding a flashlight that
| Kenton previously had. When we left the cell Donald was
- lying on his back with his head pointed toward the door.
| The knife I had was a regular kitchen knife about six or
seven inches in length, when I got back upstairs in B Hall,

I threw the knife on the floor near the west end on the
- south side of the building.
PRL. W.E. TJ.CB. RCC. E.O.

_ Exhibit 16
_ LWE
7/18/55

James William Stidham

Page 2
For the remainder of the night I just roamed around
the cell block until the riot ended.
/s/ James William Stidham
September 27, 1954
| 12:35 P.M.
Witnesses:

/s/ Lt. Walter Eitzman

/s/ P.R. Little, Mo. S.H.P.
/s/ Ptn. Elmer Overbeck

/s/ Ptn. Charles Billings

/s/ Pat’n. Thomas Jenneman
/s/ R. C. Caldwell

[572] Exhibit 16-1
LWE
7/18/55
THE COURT: Now Gentlemen, the Exhibit which
has just been read to you, which has been received in evi-

A406

dence, may now be passed among yourselves, and any
Juror that wishes to read it in its entirety may do so. I
had the Prosecuting Attorney read it so that it might save
some time. If you just want to look at it and examine it, or
make any inspection that you wish, why you may do so.

MR. HENNELLY: May the record show that I am
now asking the Court to strike all of that from the record
which counsel read, the reading of the statement, and in-
struct the Jury to disregard it, and declare a mistrial.

THE COURT: Overruled.

MR. RILEY: State rests.

MR. HENNELLY: At the close of the State’s case,
the Defendant moves the Court to instruct the Jury to re-
turn a judgment of acquittal, especially to murder in the
first degree, for the reason that under the evidence in the
case, the State has failed to show that the burden of the
proof, especially with respect to murder in the first degree.

THE COURT: Are you just dictating that into the
record?

MR. HENNELLY: I am Judge, and I am going to
make another one Your Honor, a general motion for a
judgment of acquittal. [573] Comes now the Defendant
at the close of the State’s case, and moves the Court to
instruct the Jury to return a judgment of acquittal.

THE COURT: All right, the motion for reduction of
the crime from first degree is overruled, and the motion
for acquittal is overruled, at the close of the State’s Case.
The record may note that the Defendant objects and ex-
cepts to the ruling of the Court.

And thereafter to-wit: On the same day, the follow-
ing order was entered of record:

Circuit Court Record, Butler County, Missouri (Book 62,
page 428) Tuesday, July 19th 1955, Regular July 1955 Term

A407

Now at this time, comes the defendant herein, by
- counsel and offers Motion for Acquittal of Murder in the
_ First Degree at the close of State’s Case, which is refused
and overruled. Defendant objects and excepts, and con-
tinues to object and except to the ruling of the court.

And thereafter, to-wit: On the same day, the fol-
lowing order was entered of record:
Circuit Court Record, Butler County, Missouri (Book 62,
page 428) Tuesday, July 19th, 1955, Regular July 1955
Term . >

Now comes the defendant herein, by counsel and of-
fers [574] Motion for Acquittal which is refused and over-
ruled by the Court. Defendant objects and excepts to the
ruling of the Court, and continues to object and except.

MR. HENNELLY: Let me put on the guy from the
Bureau of Vital Statistics with the Death Certificate, and
I intend to put on the woman from the hospital secondly.
At the time she gets ready to go on, if you have got some
objection to it, I will make an offer of proof, and let me
get rid of her. I take the position that it is admissible,
and that it is a Jury question, notwithstanding the fact
that I submitted it to the Court at first in order for the
Court to determine, and whatever the Court says, of
course, will be done

THE COURT: Call whoever you wish to and I will
rule on them as I come to them.

A408

CLYDE BRIDGER,
BEING SWORN, TESTIFIED:

Direct Examination by Mr. Hennelly |

Q. What is your name, please? A. Clyde A. Bridger.

Q. How do you spell your last name, sir? A.
B-r-i-d-g-e-r.

Q. Sir, what is your occupation, or profession? A.
State Registrar of Vital Statistics.

[575] Q. And how long have you been in that po-
sition, sir? A. Six years.

Q. And what are your duties in that position? A.
To file the original records, birth records, stillbirths or
death, permanent records.

Q. Have you a subpoena duces tecum which His
Honor issued to produce in His Honor’s Court the offi-
cial records with respect to the Death Certificate of one
Walter Lee Donnell? A. I have.

Q. Is it with you now at this time? A. It is.

Q. Mark it Exhibit F.

Reporter marked Exhibit F, a Death Certificate.

Q. Let me ask you this, when were you served with
a subpoena in this case? A. On the morning of July 14th.

Q. On the morning of July 14th? A. Yes, sir, that
is correct.

Q. I will hand you now what has been marked for
the purpose of identification as Defendant’s Exhibit F,
and I will ask you what that is? A. That is a standard
Certificate of Death of the original Death Certificate.

Q. Of who? A. Walter Lee Donnell.

Q. Are you the keeper of those records, sir? [576]
A. Yes, I am the keeper of that record.

Q. And it is kept in the normal course of business
and under your custody and control,.is that correct? A.
Yes, sir.

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SS ods ae ANS ea SCNT Ay RRA WATT AUER

one Juror beginning to read both exhibits. It has
eady been around. I don’t know if it would be guilty of
oramenting on the evidence or not. I might just caution

com Jury to read the front of the pages, and just for the

‘pose of comparing the handwriting.

MR. HENNELLY: I think that under these circum-
nees, with 16 and 16-1 going before the Jury, that under
star. circumstances, that it amounts to undue emphasis on
thes section of [650] the testimony, and that is the ex-
One I am afraid that under these circumstances, no mat-
hibi what the intention of anybody is, that we are going to

1 up with putting too much emphasis on Exhibits 16 and
16- Ps It is going to be in effect, a,comment on the evidence.
THE COURT: It is an =o before this Jury. I

could state to the Jury the p for which it is being

| | | \ \

A462

offered, but I don’t want to do it, because it might be a
comment on the evidence. I was merely going to call the
Jury’s attention to the fact that Exhibit 16 and 16-1 has
already been around, and that these would be together,
and only for the purpose of comparing the handwriting, so
that they would just glance at it. That would be the pur-
pose. I will tell you one thing I am going to do Gentlemen,
I want to call these exhibits back here, and they will have
to go together, and I want to call the Jury’s attention to
the fact that Exhibit 16 and 16-1 has already been intro-
duced into evidence, and has been passed before the Jury,
but I want the three exhibits to go down the line together
and not separate. Mr. Ehlers, does your record show that
all of this has taken place outside of the hearing of the
Jury?

MR. EHLERS: Yes.

THE COURT: Very well. The reason the Court
made the statement he did a while ago for the Jury, he
noticed one of the jurors was reading Exhibit 16 and 16-1,
and the Prosecuting [651] Attorney at the time the ex-
hibits were identified, said he was only offering them for
the purpose of comparison, inasmuch as Defendant will
not agree that the Court may state that to the Jury, that
it is only for the purpose of comparison of the handwrit-
ing, and the Court feels that such a statement by the
Court would be a comment on the evidence, the Court
asks that the three exhibits be brought back and then
passed around together. I guess we could have gone ahead
without passing this to the Jury at all. It would have
been a question of argument or that the Jury could see
at the time, of argument, but the Jury has a right to see
the Exhibits, and they were received in evidence, and it is
just a question of saying time. I don’t want to comment

jon the evidence, andj.I didn’t intend to comment on the
evidence. I was just, merely trying to save time, after I

A463

saw one Juror reading over again Exhibit 16 and 16-1.
That Exhibit was read to the Jury by the Prosecuting At-
torney, and then handed to the Jury, and some of the
Jurors even read it as it was handed to the Jury before,
and I didn’t see any point in wasting all of the time of
them reading it over again, and I think they thought it was
probably a new exhibit and was checking it. I don’t know
what they thought. That is why I wanted them, as they
go down the line, they can do with them whatever they
want to. They can draw from them what they want to.

[652] MR. HENNELLY: Don’t say anything fur-
ther, they might do with them what they should do.

MR. RILEY: I would like to recall the Defendant
for one more question.

THE COURT: Mr. Stidham, will you come back to
the stand?

MR. RILEY: Mr. Stidham, you testified you went to
Springfield on September 29th?

A. I believe that was the date.

Q. You recall what time you left Jefferson City? A.
It was before noon.

Q. What time did you get there? A. It was in the
late afternoon.

Q. Were you handcuffed? A. Yes, sir, I was.

Q. You had leg irons on? A. Not at the time I
went to Springfield, no.

Q I mean when you left Jefferson City on the trip
to Springfield? A. Did we have leg irons on?

Q Yes. A. No, they took the leg irons off imme-
diately after we walked out of the Court Room, after ar-
raignment.

Q. That is all,

MR. Y: That is all, come down.

;

|

A464

[653] M. E. CURTIS,
BEING SWORN, TESTIFIED:
Direct Examination by Mr. Hennelly

Q. What is your name please sir? A. M. E. Curtis.

Q. You have been previously sworn to testify in
this; case, and what is your occupation sir? A. Records
Clerk at the Medical Center of the Federal prisoners at
Springfield, Missouri.
- Q. That is the Federal Prison down there sir? A.
It iis a combination hospital and prison.
Q. And are you custodian of the records down there?

A. Iam.
Q. And do you keep the records of the people who
hawe been there in the normal course of business? A.
Those legally committed.
Q. And I will ask you sir, if pursuant to a subpoena
duces tecum issued by His Honor out of this Court, did
yow bring with you one of those records? A. I did.
Q. Is that the record of one James Stidham? A. It

is.

Q. And you are custodian of that record are you sir?
A., Yes, sir.

Q. And this is a permanent record of your institu-
tion, is that right? [654] A. Yes, sir.

Q. Now, I am going to hand you what has been—

MR. HENNELLY: (Out of the hearing of the Jury)
I tthink we are getting into a situation with respect to the
initroduction of this, aren’t we? I think Your Honor re-
ceived it for certain purposes, and then indicated. that
you would want to have me resubmit it.

THE COURT: I think for the purposes of being be-
fore the Jury, you can re-identify what this is, and it has |
previously been marked.

j
i

A465

MR. RILEY: You are going to put the doctor on
the stand?

MR. HENNELLY: Yes.

THE COURT: I think it probably should be in evi-
dence anyway. ee ee

Q. Now sir, I am going to show you what has been
marked for the purpose of identification, Defendant’s
Exhibit E-2, and I will ask you sir if that is one of the
permanent records? A. It is.

Q. And is this the record of one James Stidham?
a

Q. And I will ask you, this material which is written
in ink, you know in whose handwriting that is? A. | Dr.
F. L. Halleck.

Q. And who is Dr. Halleck? A. He was the Public
Health Doctor assigned to the Medical Center for the
Federal prisoners at Springfield, Missouri.

[655] Q. Is he still with the institution? A. He is
not.

Q. And do you have any idea who wrote this top
part? A. No, it is one of the board at the institution
made that part.

Q. One of the board? A. Guard.

Q. One of the guards? A. Yes, sir.

Q. I will ask leave to introduce E-2, Exhibit E-2.

MR. RILEY: I don’t have any objection.

THE COURT: All right, it may be received in evi-
dence.

Exhibit E-2, having been received in evidence, but

not being in the hands of the Reporter at this time, is
t copied into this record.

"a Now then sir, I want to show you what has been
ked, for the purpose of identification, as Defendant’s

r

;

A466

Exhibit E-1, is that part of the permanent records of the
case of James Stidham sir? A. It is.

Q. And are these the records which are kept in the
normal course of business at the hospital? A. Yes, sir.

Q. You are custodian of those records? A. Yes, sir.

[656] Q. And they are the permanent records, is
that correct? A. Yes, sir

Q. I am going to ask you sir, are you familiar with
that handwriting? A. I am.

Q. Whose handwriting is that? A. Dr. Hatcock’s.

Q. Who is Dr. Hatcock? A. He is the public health
physician assigned to the Medical Center for Federal
prisoners.

Q. And is he still down there? A. He is.

Q. I will ask leave to introduce this into the record.

MR. RILEY: You say Dr. Hatcock is here and is
going to testify?

MR. HENNELLY: Yes.

MR. RILEY: If that is so, I have no objection.
THE COURT: All right, it may be received in evi-
dence.

Exhibit E-1, having been received in evidence, but
not being in the hands of the Reporter at this time, same
is not copied into this record.

Q. Ihave no further questions.

Cross-Examination by Mr. Riley

Q. Will you mark this Exhibit 20?

[657] Reporter marked Exhibit 20, fingerprint record
of Stidham.

Q. Mr. Curtis, I will show you what has been marked

Exhibit No. 20, consisting of two pages, and will ask you

if tha ibit is part of the same file which you just
identified for Mr. Hennelly? A. It is a photostatic copy ,
of the fingerprint, that is part of the file which I just re- |
ferred to. | j

A467

Q. And is that a part of your permanent record there
at the Federal Prison in Springfield? A. I don’t know
just how to answer your question. The fingerprint chart
in the back is a part of the permanent record, yes, and this
here happens to be a photostatic copy of it.

Q. Have you got an original here? A. There is an
original here. I don’t see it right now.

MR. HENNELLY: I don’t see any point in encum-
bering the record, I think for the purposes of introduction
of that Exhibit Your Honor, it may be agreed that that is
a photostat of the original. I don’t mean to waive my ob-
jection to it.

THE COURT: Who prepared that sir?

A. I photostated it. |

THE COURT: Who took the fingerprints?

A. My assistant, Mr. Patana.

THE COURT: Were you present?

[658] A. I was present in the office.

THE COURT: All right.

MR. RILEY: Now, I will ask you, on the second page,
were you present when that information was taken?

A. Yes, I was.

Q. If the Court please, at this time we offer this ex-
hibit in evidence.

MR. HENNELLY: The Defendant will object to it, if
Your Honor please, for the reason that it is hearsay and

that wouldn’t tend to prove or disprove any issue in this

case.
MR. RILEY: Was the Defendant present when this
was prepared?

A. Not the photostat, no.

Q. Imean the material that is on there? A. Yes, sir,

Q. And was he there present when the information
on the second page was taken? A. Stidhan: was present.

i

Yee |

if

A468

MR. HENNELLY: Still object to it for the reason
that it contains certain hearsay testimony, and testimony,
evidence which is totally irrelevant and immaterial and
highly inflammatory, and only tends to bias and. prejudice
the minds of the Jury, and to introduce it under these cir.
cumstances would be a violation of the Constitutional
Rights of the Defendant.

MR. RILEY: I offer it for impeachment purposes.

[659] THE COURT: Mr. Curtis, did you hear the
Defendant give the information that is contained on the
second page of Exhibit 20?

A. Mr. Patana, as I remember it, interrogated Stid-
ham himself and recorded what description has been
noted on that card.

THE COURT: Were you present there?

A. I was in the office all the time that the six of them
were being processed. I didn’t do any of the interrogation.

MR. RILEY: Did you hear Mr. Stidham give these
answers?

A. Idid.

THE COURT: All right, Exhibit 20 may be received
in evidence.

Exhibit 20, having been received in evidence, the part
which can be copied into this record, reads in words and
figures as follows:

Fingerprint Record of James William Stidham.
Page 2.
Received—9-29-54-MCFP Mo. State Prisoner Trf. to MCFP
Crime—Robbery Sentence—25 yrs.
Date of Sentence—5-26-52 Sentence begins 5-26-52
tence expires—5-25-77 | |

ss time sentence expires | 5-25-71

\ |

A469

Date of Birth—2-2-1920 Occupation—Auto mechanic
Birthplace—U.S.A. Nationality—American
Age 34 Complexion—Medium Height ............

Eyes—Brown Weight .......... Hair—Lt. Brown Build—
Med. [660] Scars and marks—1. Tatt. word Frances
vertical spelling forearm outer. 1. ragged cut scar between
middle and little fingers palm side of hand.

Exhibit 20

LWE

7/20/55

This exhibit is also attached to the original of the
transcript, the fingerprint record.

MR. RILEY: Mr, Curtis, on this, what is the birth
date as shown by that exhibit of the Defendant, James
William Stidham?

A. February 2nd, 1920.

Q. February 2nd, 1920? A. Yes.

Q. And what date was that information taken from
him? A. Probably on September 30, 1954.

Q. And how old, after the question of age, what fig-
ure appears there? A. 34.

Q. And further on down in that exhibit, what scars
or marks is shown on there? A. The word tattoo abbre-
viated and the word Frances, vertical spelling forearm
outer, and that would be on the left arm. Then it says.
ragged cut scar between middle and little fingers, [661].
palm side of hand. That would be the left hand.

Q. It shows there that he had a ragged cut scar? A.
ae right.

Q. \Between the middle and the little fingers on the
so A. Yes, sir, ,
t. Now, I will show you this, does th
ts of the Defendant James will Stidham’s left
hand appear on|that? A. Yes.
|

A470

Q. Now, will you show this, do you have to have the
fingers extended straight to take the fingerprints? A.
That is right.

Q. Now, if my two fingers were like that, and
paralyzed like that, could you take the fingerprints of my
little and middle fingers?

MR. HENNELLY: Object to the form of the question
if Your Honor please.

THE COURT: Sustained.

Q. All right. If Stidham’s middle finger, and left
finger were paralyzed in a contracted position, could you
have taken that fingerprint?

MR. HENNELLY: Object to the form of that ques-
tion if Your Honor please.

THE COURT: Sustained. He may tell how he took
them.

[662] Q. Will you tell how you taken them?

THE COURT: What his condition was.

A. It depends if they were jammed up in a position
like that, it would be hard to print it, and it depends on
the amount they could be flexed outward.

THE COURT: Wait just a minute, the question was
how did you take them?

A. From this print here, it would indicate that they
were taken in a normal course of events without difficulty.

MR. HENNELLY: Object to that, and ask that it be
stricken and the Jury instructed to disregard it, and a mis-
trial declared for the reason it was not responsive and a
conclusion on the part of the witness.

THE COURT: Sustained, except for the direction of
a mistrial. The answer may be stricken, and the Jury is
instructed to disregard it. eh

THE COURT: Mr. Curtis, who do you do, what did
you do with Stidham’s hand when you took the i a |
how were} they taken, can ‘you explain to Jury
H

4
if
i

|

A471

you took the fingerprints, hold out your finger there, your
hand, and show them how you did it, with this hand?

A. You just take the one finger individually at a time,
and flex it outward and roll it on an ink pad and move it
over to the blank fingerprint chart and roll it again. All
fingers are taken in the same manner.

[663] THE COURT: And what part of the fingers
are put on the ink pad and then placed on the fingerprint

d?

7 ‘A. The terminal joint of each finger.

Q. Indicate to the Jury what you mean by that. A.
The terminal joint.

Q. Ofeachfinger? A. Yes, sir.

THE COURT: All right Mr. Riley, go ahead.

MR. RILEY: Now, you have there on that exhibit the
print of all fingers at one time, do you not?

A. No, not all at one time. They are taken simul-
taneously, not simultaneously, but one following the other.

Q. How do you take these four? A. The four im-
pressions are taken, and then the thumb.

Q. Will you show the Jury how you take this part
right here. A. You take them in that position and then
the other one afterwards.

THE COURT: Do that again.

A. Four of them taken simultaneously and then the
thumb in the next sequence.

Q. Now, I will ask you to hold that up and point to
the Jury which part of that represents Mr. Stidham’s left
hand when the four fingers were taken at the same time.
A. The lower left hand corner, the four together, and then
[664] the thumb.

Q. Now, could \you, take, those prints together unless. |
the hand was laid out flat?

MR. LLY: Object to the form of that ques- __
tion if Your Honor please. _ ‘] 4 | |
F |

\,

|

A472

THE COURT: Sustained, it would be a conclusion of
the witness. He may testify and has testified what he did
and how it was done.

Q. I will ask you if Stidham’s hand was laid out, left
hand was laid out flat when you took these fingerprints?
A. They were.

Q. That is all.

MR. HENNELLY: No further questions.

THE COURT: Can it be agreed that photostats can
be furnished the Reporter for Exhibits E-1, E-2 and E-3, in
place of the original exhibits. Those are the exhibits that
were identified by this witness.

MR. RILEY: Yes. And State’s segunenen No. 20, and
I think the record already shows—

THE COURT: The photostat of Exhibit 20 might
likewise be furnished the Reporter. You can then be ex-

DR. THOMAS A. HATCOCK,

BEING SWORN, TESTIFIED:
‘Direct Examination by Mr. Hennelly

Q. What is your name please? [665] A. Thomas
A. Hatcock.

Q. You are a physician, am I not correct Doctor? A.
Yes, sir

Q. What school or schools are you a graduate of?

MR. RILEY: We will admit the Doctor’s qualifica-
tions.

THE COURT: All right, they have been admitted.

Q. That is quite all right. Where are you presently
stationed? A. U. S. Medical Center, Federal Prison,
Springfield, Missouri.

~ U. S. Medical Center at Springfield, Missouri? A.
Yes, sir

f

A473

Q. Federal Prison? A. Yes, sir.

Q. Now Doctor, I am going to ask you, excuse me,
where are those photostatic exhibits, if you will please,
that which has been accepted into evidence as Exhibit E-
1, and I will ask you what that is Doctor? A. This is a
consultation report in my handwriting, made according to
my examination of the Defendant on September 30, 1954.

_ Q. Now Doctor, I am going to ask you, did you make
an examination of this Defendant at that time? A. I did,
insofar as his complaints were concerned at that time.

Q. Isee. A. My examination was limited to [666]
his complaints.

THE COURT: Maybe you had better turn so the
Jury can hear you. ;

A. I examined him, his left arm and hand.

Q. Doctor, let me ask you this, with respect to this
particular patient, was he put through the same ‘normal
routine that other patients would have been put through ©
down there? A. No, he was not.

Q. He wasn’t given the examination, the physical ex-
amination which was normally given, is that true? A.
That is true.

Q. For the reason that this was a special situation,
isthat right? A. Yes, sir.

Q. Now Doctor, can you tell His Honor and this
Jury what was the date that you made that—at least this
limited examination of the Defendant? A. September 30,
1954.

: Q. Now, can you tell us what your physical findings
| were Doctor? A. I think first I should mention the com-
plaints at this time.

- Q. Very well. A. At which I was asked to see him.

Q. Go ahead. A. Patient claimed an injury to [667]
his left hand as a result of being suspended by a rope
tied to his hands with his hands at his back. He com-

A474

plained of weakness of the left ring and little fingers, and
inability to forcibly flex and to extend those fingers. My
examination revealed some evidence of weakness of these
fingers, namely, the ring and little fingers of the left hand.
Although there was ability to partially flex and extend
these fingers, the function seemed to be weak and the
muscles seemed to. be weak. The patient also complained
of numbness involved in these fingers, not an actual com-
plete loss of sensation, but a numb feeling involving the
little and ring fingers. Now, on the basis of these com-
plaints, his story of his injury, and my findings which
was based on these subjective symptoms, I felt that pos-
sibly he had a contusion of the ulnar nerve which is the
nerve that supplies this particular area of the hand and
fingers that he complained of.

Q. What was this date again Doctor? A. Accord-
ing to the record, September 30th.

Q. This was 1954, and you actually found yourself
some difficulty in flexing those fingers and some weak-
ness, didn’t you? A. Well, you have to keep in mind the
fact that these symptoms are subjective and are symptoms
that may be present without showing external signs of
injury, and is based pretty much on the patient’s story.

[668] Q. Now, Doctor, independent of a patient's
story, if you wanted to determine for yourself, independent
of his story, whether or not there had been any actual
numbness or any damage to the lower extremity, or to any
of those fingers, what would be the way that you would
do that? A. Well, it is a very difficult matter, in this
particular type of case.

Q. Let me ask you this—

MR. RILEY: Let him answer the question. I would
like for the witness to answer.

Q. Iamsorry. A. You can have a very serious im-
pairment of this nerve function without having any ex-

A475

ternal evidence of it, that is any serious surface bruises
or marks, and to determine whether or not those symptoms
are bonafide symptoms, it is a pretty difficult matter. We
go through the usual type of sensory palpations and getting
the patient’s reactions and in this case, he had a disturb-
ance of the sensation in these fingers, which corresponded
to the area narrated by this particular patient, and it was
very suggestive to use. Now, aside from those findings,
except in those cases where this result might be— I mean
these findings might be the result of a remote injury,
where you would find some slinging of the muscle of these
fingers, while as I say, the diagnosis is based pretty much
on subjective findings.

[669] Q. Doctor, would you say one of the methods
in determining whether or not there is actual damage to
the hand under those circumstances, that you would use
the pinprick method? A. That is the common one used,
commonly used.

Q. And tell His Honor and this Jury how that would
be done?

MR. RILEY: Object unless he did it on this patient,

THE COURT: Sustained. 7

A. As I recall, I don’t think I used an actual pin,
but I used my hand to produce pinching and to produce
a sensation and compared that over this involved area,
supposedly involved area, with the normal area. .

Q. All right. Now Doctor, I want to ask you, assum-
ing if you will, that a man the age of this Defendant, and
the weight of this Defendant, and prior to September 22nd,
1954, had no damage of any kind to his left hand, and as-
suming that on the 27th day of September, 1954, that he
was handcuffed with his hands to his rear and handcuffed
by his feet, and that a rope was placed on the handcuffs
and that he was then lifted a distance from six to eight
inches off of the ground, that he was suspended at first
for @ period of approximately fifteen minutes, and then

A476

‘ taken down, and assume further Doctor, that he was im-
mediately thereafter put up again for a period of thirty
to thirty-five minutes, and assuming further Doctor that
there was, that he had pain in that hand, and that there
was a shrinking of the ring [670] finger and the little
finger—

MR. RILEY: If the Court please, he is including in
the question some things which aren’t in evidence. I don’t
recall any evidence of any shrinking.

Q. Withdraw that section then. I think it is in there,
but I don’t want to take the Court’s time, I withdraw that
section, and assume further that upon—

THE COURT: Eliminating the shrinking now.

Q. That is right, and assume further that on his ad-
mission to the hospital, that there was an absence of
flexion and extension in those fingers, as well as anesthesia
to pinprick and assume further that at the time you ex-
amined him on the 30th, that you still found some evi-
dence of lack of flexion and weakness, I will ask you Doc-
tor, whether or not in your medical opinion, based upon
reasonable certainty, medical certainty, the condition you
found when you examined him, could have been caused by
being lifted in the method and manner that I have de-
scribed on the 27th day of September, 1954? A. In my
opinion, it could have.

Q. Could havebeen? A. Yes, sir.

Q. Now Doctor, I want to ask you, can you tell His
Honor and this Jury just where that ulnar nerve runs,
indicating on me on the left? [671] A. The ulnar nerve
arises in the spinal cord at the neck level. It is composed of
a number of fibers coming out and going in at different
levels. -

THE COURT: A little louder Doctor.

A. And it takes its course down through the upper
arm pretty well under the muscle layers and courses
down over the inner part of the elbow, and that point be-

A477

coming rather superficial, and passing through the bony
groove, which we all know as the funny bone area, and
from there goes into the muscles of the forearm, through
the wrist and goes down to the, and supplies the muscular
and sensory sensation to the ring and little fingers.

Q. Ihave no further questions.

Cross-Examination by Mr. Riley

Q. Doctor, this nerve is commonly known as the
crazy bone, isn’t it, your elbow? A: Well, most people
think they are hitting the bone, actually they are hitting
this nerve at a superficial area, and they call it the crazy
bone.

Q. Now, if your elbow, you can hit your elbow and
damage that nerve without having any physical injury,
couldn’t you? A. That is quite true.

Q. And if you hit your elbow and damage that nerve,
why it [672] would cause the loss of flexion in those two
fingers, wouldn’t it? A. Ifthe injury is severe enough.

Q. Well, what is a contusion? A, Well, commonly
called a bruise.

Q. A bruise? A. Yes, sir.

Q. Did you see any bruise on Stidham’s left arm?
A. I recall seeing no definite bruise on his left arm.

Q. Did you look? A. Yes, sir.

Q. Well then, the information here about his ability
to flex it, you got most of that from Stidham himself, didn’t
you? A. Yes, as I pointed out a moment ago. As I noted
in the previous testimony, the diagnosis of nerve injury
in this Defendant, is dependent upon subjective findings.

Q. And then what is subjective findings? A. Symp-
toms that the patient complains of himself.

Q. And not something that you can see? A. Can’t
always be tied in with the objective evidence. In other
words, the findings on physical examination.

*

A478

Q. If you saw a contusion or a bruise, that would be
an objective findings, wouldn’t it? A. Yes, sir. |

Q: And subjective symptoms are what the patient
tells you [673] and not what you see? A. That is true.

Q. Now, your opinion in this case is based upon sub-
jective findings, isn’t it? A. To a great extent.

Q. You found no injury whatsoever? A, No signs
of any bruises as I recall, or I have no notation of any in
the original notes made at the time. ,

Q. You didn’t make any notation of the scar or large
cut? A. No, sir, I was aware of that. I recall it. I didn’t
make any notation of it: In my opinion, it played no part
in the man’s symptoms at the time.

Q. You didn’t prescribe any treatment whatsoever’
A. No, sir, I felt that it was probably a minor contusion
and didn’t call for any specific treatment and would prob-
ably clear up in passage of time.

Q. That is all.

Redirect Examination by Mr. Hennelly

Q. Doctor, is a pinprick examination to determine if
ther is lack of anesthesia, would you say that is subjective
matter or an objective matter? A. Well, your conclusions
are based on the patient’s reply to the type of sensation
that he gets from it. .

Q.* If you are standing there watching him and you
apply the [674] pinprick method, either to the lower ex-
tremity in a leg or hand, and there is no twitching or no
reaction 6f any kind, would you say that that was an ob-
jective finding on the part of the physician? A. Yes.

Q. No further questions.

Recross-Examination by Mr. Riley

Q. You didn’t use the pinprick? A. No.
Q. That is all.

A479

Redirect Examination by Mr. Hennelly

Q. It was done when he entered by one of your other
men, wasn’t it Doctor?

THE COURT: If the Doctor knows.

A. Idon’t know. .

MR. HENNELLY: Very well. I guess the record
would speak for itself. That is good enough. Thank you
very much. With that, the Defense rests Your Honor.

THE COURT: We will recess Gentlemen of the Jury,
for the noon hour. There will probably be some additional
testimony I understand from counsel, but it won’t be very
long and then the Court has to Prepare the instructions in
the case, and then there will be the argument of counsel,
and so the case [675] should be submitted to you shortly
after you return from your noon recess. During the noon
recess, remember the previous instructions of the Court, the
instructions the Court has given to you about not becom-
ing separated from each other, or allowing anyone to talk
to you about the case, or permitting anyone to talk to you
about it. I will ask that the Sheriff take charge of the
Jury then, and during the mon recess don’t get separated
and Mr. Sheriff return them to the Court Room and the
Court will be in recess until One O’clock.

And thereafter to-wit: On the same day, the follow-
ing order was enteréd of record:

Circuit Court Recoi Record, Butler County, Missouri (Book 62,
page 429) Wednesday, July 20th, 1955, Regular July 1955
Term

Now at this time, it iS ordered by the Court that this
cause be recessed for the Noon Recess. Now Noon Recess
being over, trial in this cause is resumed and progresses
in the hearing of the evidence to the conclusion thereof.

A480

BEN MARKWAY,

BEING SWORN, TESTIFIED:
Direct Examination by Mr. Riley

Q. State your name please. A. Ben Markway.

Q. Mr. Markway, what position do you hold? [676]
A. Sheriff of Cole County.

Q. And that is in Jefferson City? A. That is right.

Q. Mr. Markway, I will show you what has been
marked as Exhibit G. You just keep it there, is that your
signature on there? A. Yes, it is.

Q. Now, will you hold it up and show the Jury just
where your signature appears? A. Right here, the third
line.
Q. All right. Now Mr. Markway, are you a medical
doctor? A. No,I am not.

Q. Have you ever had—

MR. HENNELLY: I am going to object to any fur-
ther testimony on the part of this witness, for the reason
that it is improper rebuttal evidence in chief, but since this
evidence came in without objection, I don’t see how it be-
comes the basis for any rebuttal testimony. :

THE COURT: These exhibits weren’t brought into
the case until after the evidence in chief.

MR. RILEY: You brought them in.

THE COURT: They came up first upon the exhibit
that you offered, and then the one that was offered imme-

iately, or at the same time, or about the same time by the
Ss The objection will be overruled.

[677] Q. Now Mr. Markway, did you know Walter
Lee Donnell? A. I do not know him, no, sir.

Q. Had you ever seen him? A. Not that I know of,
until the night of, down at the Funeral Home.

A481

Q. Where did you see his body? A. Well, I will
take that back, I did see him, they said that was him out
at the Penitentiary that night. :

“MR. HENNELLY: Object to that, that will be hear-
say and a conclusion on the part of the witness.

THE COURT: Sustained.

Q. Where did you see the body? A. The body?

Q. Yes. A. Down at the Dulle Funeral Home.

Q. Did you examine the body? A. I did.

Q. And what examination did you make? A. ‘I just
examined it.

Q. Speak up loud. A. I examined his chest and his
body. They had it covered and took the cover off and I
examined his body and then they pulled him over on his
side and let me look at his back.

Q. Did you notice any wounds on his body? A. Yes,
sir, I did. ;

[678] Q. What condition were the wounds at the
time you examined him?

MR. HENNELLY: Now, I am going to object for the
reason that this again is improper rebuttal and certainly
it is within the Court’s discretion with respect to what
rebuttal testimony will be introduced, but this is appar-
ently an attempt to vary the terms of a written instrument,
one that was offered in evidence, and received in evidence
without objection, and I submit it is improper argument
and if anything, it is evidence in chief. ,

THE COURT: Overruled, for the reason stated.

MR. HENNELLY: Very well.

Q. What condition were the wounds in when you
examined him? A. When I examined the wounds, they
were stitched back, they had stitches through them, and
they were stabs or whatever you want to call them, in
different places.

Q. Were they sewed up? A. They were.

A482

Q. Now, did you make any further examination of
the wounds, probing them or sticking an instrument in
them? A. No, sir.

Q. Now Mr. Markway, I will ask you to look at this
exhibit regarding this part up at the top there, that type
written part, did you put that in there? A. No, I did not.

[679] Q. Did you ever type ih anybody’s name in
that certificate? A. No, I did not. The only thing that
was on there was, I wrote by longhand myself.

Q. Was that typewritten in there when that certifi-
cate was signed? A. No, it was not.

Q. Who put it in? A. Well, I am not positive, Mr.
Dulle told me—

MR. HENNELLY: Object to that, that would be
hearsay and a conclusion.

Q. If you don’t know, say you don’t know. A. I!
don’t know.

Q. Now, were you at the Penitentiary when the
other bodies were removed? A. I think I was. I was out
at the Penitentiary, but I didn’t see them being removed.
I was there when the ambulances came, that is, in and out,
and I went down and told them that the ambulances were
there, but I didn’t see them that I can recall, taking the
bodies out.

Q. When was the first time you saw this Death Cer-
tificate as it is filled in now? A. The first time I saw it,
I expect was a week ago today down at Union.

Q. That is all. A. Today a week.

[680] MR. HENNELLY: Now, under those circum-
stances, I ask that all that testimony be stricken for the
reason it is totally irrelevant, immaterial and further for
the reason that it is improper rebuttal testimoriy.

THE COURT: Overruled.

A483

Cross-Examination by Mr. Hennelly

Q. Sheriff, how long have you been Sheriff of Cole
County? A. Six and a half years. |

Q. In the course of that time Sheriff, have you had
reason and opportunity to see people who suffered from
gunshot wounds? A. What is that?

Q. Have you seen people who suffered from gunshot
wounds? A. Have I ever seen some committed? .

Q. No. Have you seen people who suffered from
gunshot wounds? A.I have seen some who committed

‘cid

Q. You have seen some people that have been shot
by themselves or by somebody else then? A. I have.

Q. Is that right? A. Yes, I have.

Q. And about how many people would you say that
you have seen? A. That have been shot?

Q. Yes. A. That would be a little hard for [681] me,
you mean shot and committed suicide?

Q. Either way, both. A. By themselves?

THE COURT: Shot, regardless of how they were
shot or who they were shot by.

A. That would be a little hard to say, I would say
fifteen or twenty.

MR. HENNELLY: Fifteen or twenty?

A. Yes, sir.

Q. Now then, this Official Death Certificate states
that the cause of disease or condition directly leading to the
death was by bullet wounds of a gun in unknown hands.
Now, is it your testimony that you did not put that in
there? A. No, I put this in there.

Q. You put that in there, is that right? A. Yes, sir.

Q. So that you sent to be put in the official record
of the State of Missouri, a statement that the body of
Walter Lee Donnell, that he had died as a result of bullet
wounds in the hands of persons unknown, is that correct?
%

A484

A. That is right.

Q. And is this your signature on both, Ben S. Mark-
way? A. Yes, sir.

Q. And this next section, removal to National Ceme-
tery at Nashville, Tennessee, is that your signature?
[682] A. I don’t think that is.

Q. When you stated that, when you signed this, that
there was something that was left blank, what was that? A.

All the typewritten in there, but Dulle said they—
, Q. Object to this section as not being responsive
and being hearsay. ;

THE COURT: Sustained. He just asked you what
part you didn’t put in there.

Q. What part—strike that. What was on there when
you signed that Sheriff, this Certificate? A. Well, all this
fine print was on there, and that is all, and when I signed
it, that other was put in later.

Q. Everything was put in later? Im other words,
you tell this Court and Jury that what you did, was you
signed a Death Certificate in blank, is that right? A. Ex-
cept that what I wrote on there.

Q. Well, you, the only thing you put down was bullet
wounds, is that right? A. That is right.

Q. And did you go and change this matter later on’?
A. I didn’t get that.

Q. Have you ever changed this certificate? A. Yes,
sir.

Q. And when did you change it? A. I changed it
I think last Friday, Thursday or Friday after [683] I came
back from Union.

Q. And was that at the direction of anyone in Cole
County? A. I asked Mr. Riley if it would be a good thing
for me to do that, and he said yes it would.

A485

Q. Bea good thing for you to do that? A. Yes, sir.
Q. That is all.

Redirect Examination by Mr. Riley

Q. You don’t know whose body it was that this death
certificate was used on, do you, did you know that this
was Donnell’s body? A. No, I did not:

MR. HENNELLY: Object to the leading and sugges-
tive question.

THE COURT: Overruled.

Q. That is all. :

THE COURT: Just one moment, let me see those
just a moment. That is all.

CLARENCE DIETZEL,
BEING RECALLED, TESTIFIED:
Redirect Examination by Mr. Riley

Q. Mr. Dietzel, going back to the night of September
22nd, and the early morning hours and the morning hours
of September 23rd, where were you, in what hall? A. I
was in B Hall.

[684] Q. Now, is that above B basement? A. It is.

Q. I will ask you if you saw the defendant Stidham
in B Hall that morning?

MR. HENNELLY: Object to that for the reason that
this is a matter which has already been covered in the mat-
ter in chief. This witness already testified to it, and not
proper rebuttal, and accumulative,

THE COURT: Just one moment.

MR. HENNELLY: Very well Your Honor.

THE COURT: On cross-examination, he testified
that he saw him the next morning in B Hall. I don’t re-
call that this is in evidence about the evening, this is the
night you are referring to, the night of September 22nd?

A486

MR. RILEY: Yes.

THE COURT: The objection will be overruled. He
may inquire, because there has been some testimony by
the Defendant as to where he spent the night.

Q. I will ask you if you saw the Defendant Stidham
in BHall? A. I did.

Q. During that night? A. I did.

Q. You know about what time it was? A. It was
toward morning, toward daylight. It would have to [685]
be a guess, exactly I couldn’t state, it was between three
and five o’clock, or about that time.

Q. Where were you? A. I was on the top walk on
the south side of B Hall.

Q. Were you in a cell or out on a walk? A. I wasin
a cell.

Q. Who was with you? A. Noble was sitting in the
door, beside of the door, and I was, they had me laying on
a bed or a cot and there was several more inmates there,
I don’t know their names.

MR. HENNELLY: Object to this, this is not proper
rebuttal, and it was specifically covered in the direct ex-
amination of this witness, and also in his cross-examina-
tion.

THE COURT: The witness has testified to some of
these matters on direct examination is my recollection.

MR. RILEY: This witness never testified after they
came upstairs.

THE COURT: All right, overruled, go ahead.

Q. Now, where did you see Stidham? A. In the cell
that I was laying in, on top, the top walk of B Hall.

Q. Is that while you were with Noble? A. Yes.

Q. Did you see Stidham? A. He was in the cell,
yes, he sat on my leg.

[686] Q. Did youseehim? A. Yes, sir.
Q. Recognizehim? A. Yes, sir.

A487

Q. Didyoutalktohim? A. Yes, sir.
Q. Ordid he talk to you? A. Yes.
Q. That is all.

Recross-Examination by Mr H ennelly

Q. Now Mr, Dietzel, when was this that you saw
him? A. The morning of the 23rd after the evening of
the 22nd.

Q. And what time of the morning was it? A. It was
toward daylight, about, I couldn’t give you the exact time.

Q. Was this after all of the Missouri State Highway
Patrol had come in and everything? A. Yes, they were
outside, because I heard them.

Q. Had they been inside of B basement or inside
anyplace in B Hall by that time? A. I don’t know.

Q. Youdon’t know? A. No,I don’t know.

Q. No further questions Mr. Dietzel.

MR. RILEY: That is all.

[687] LIEUTENANT W. S. BARTON,
BEING RECALLED, TESTIFIED:

Redirect Examination by Mr. Riley

Q. Lieutenant Barton, I will ask you if you were up
in B Hall during the night or early morning of Septem-
ber 23rd? A. Yes, sir, I was.

Q. Did you see the Defendant Stidham there? A.
I did.

Q. Who was he with? A. He was with Hoover,
Laster and DeLapp.

Q. What did you have with you when you went up
| there? A. Had a public address system.

Q. Did you have a conversation with any of the four
that you have named? A. Yes.

Q. Without saying what youdid? A. Yes.

Q. Who did you talk to? A. Talked to DeLapp.

A488

Q. Now, where was Stidham in relation to the other
three that you have named? A. Stidham was standing
with the group.

Q. Who is the group? A. Well, that was Hoover,
Laster, DeLapp and Stidham, the four of them.

Q. All right. Now then, what did they do while
they was standing [688] in this group? A. While they
was standing in this group, DeLapp came over to the lobby.

Q. Now, how far were they from you? A. Oh, they
wasn’t very far, I would say fifteen or twenty feet prob-
ably.
Q. Allright. About what time was that? A. About
three A.M.

Q. You say you had this public address system? A.
We did.

Q. Wasitused? A. It was by DeLapp.

Q. Was Stidham present when it was used? A.
Standing on the flag just off of the lobby there about fif-
teen feet away.

Q. After DeLapp used this, where did DeLapp go?
A. He went back to the group, went back on the B side.

Q. Went back to what group? A. To Laster and
Stidham and Hoover.

MR. HENNELLY: Object to that section with re
spect to back to the group Your Honor, for the reason
that that is a conclusion and an invasion of the province of
the Jury, and the proper foundation has not been laid for
such a statement Your Honor.

THE COURT: Overruled. He has named who he
meant by the group. [689] Overruled.

Q. Now, what time was this Lieutenant? A. About
three A.M.

Q. Whatdate? A. On the morning of the 23rd.

Q. All right. Now Lieutenant, did you, were you
present in the classification room on the occasion when
Stidham was questioned? A. I was.

A489

Q. What time was that? A. About eight A.M., eight
P.M., rather, on the evening of the 23rd.

Q. Who was present? A. Sergeant Nash, Sergeant
Barkley and Chaff of the Police Department, Sergeant In-
man and I believe there could have been some more, but I
do not know those.

Q. Were there fifteen officers in there? A. No, sir.

Q. Were you ever in that room with the Defendant
Stidham and questioning him at three o’clock in the
morning? A. Never was.

Q. How long was he in that room? A. Couldn't
have been in there over fifteen or twenty minutes at the
most.

Q. Do you know Olin Curtis? [690] A. Ido.

Q. Is he with the Highway Patrol? A. He is.

Q. And what is his rank? A. He is a Sergeant.

Q. Where does he work? A. He works in the office
out of Troop A, at Lee’s Summit.

Q. Is he a desk Sergeant at Lee’s Summit? A. Yes,
sir.

Q. Where is Lee’s Summit with respect to Kansas
City? A. About twelve miles east and south of Kansas
City on Highway 50.

Q. Were you in charge of the detail of the Highway
Patrol in the Missouri State Penitentiary? A. I was.

Q. Was Sergeant Olin Curtis, of the Missouri State
Highway Patrol in the Missouri State Penitentiary? A.
No, sir, never was there.

Q. Do you know him personally? A. I do.

Q. That is all.

Recross-Examination by Mr. Hennelly

Q. Lieutenant, where are you stationed? A. Kirk-
wood.

A490

[691] Q. You are stationed in Kirkwood, that is quite
some distance from the Penitentiary also, isn’t it? A. Yes,
sir.

Q. Now Lieutenant, I am going to ask you if I didn’t
specifically ask you when you were testifying before, the
next time you saw—the first time that you saw Stidham
after you had gotten to the Penitentiary that night, you
recall me asking you that? A. No, I don’t recall that.

Q. Let me ask you if it isn’t a fact that you told me
that the first time that you saw him was when he was out,
that it was the next morning? A. No.

Q. You didn’t? A. That would have been the
morning, that would have been about three A.M. I saw
him at three A.M. and I saw him at the time we took B
and C Hall.

Q. Now, had you ever seen Stidham before in your
life? A. No.

Q. That was the first time you ever saw him? A.
That is right.

Q. And how many men were up there at that time
Lieutenant? A. What do you mean, men?

Q. How many men were there when this situation
was going on? [692] A. You mean in the group, you
mean inmates?

Q. Yes. A. I don’t know.

Q. Were there a hundred of them? A. Yes, there
were several hundred in there.

Q. You had never seen Stidham in your life, but you
tell us today that you recall now having seen Stidham in
the group of several hundred, is that right? A. I didn’t
say several hundred.

Q. How many were up there at that time? A. I said
in this group of four.

A491

Q. When I asked you with respect to the number that
were there, didn’t you indicate several hundred? A. You
wanted to know how many was in that area.

Q. Yes, that is what I wanted to know. A. That

covered the entire cell block at that time.
. Q. Now, what cell block was that? A. B.

Q. Sir? A. B.

Q. That isn’t shown on State’s Exhibit 1, is it Lieuten-
ant? A. No.

Q. Is that the place above State’s Exhibit 1? A.
That is right.

Q. Would that be the first floor above it? A. That
is right.

[693] Q. And in this, in this particular section that
you refer to, were these men all in cells or were they in
the lobby, or where were they?

THE COURT: Which men are you talking about
now?

Q. The two hundred men. A. I didn’t say there was
two hundred, I said there were several. I didn’t count
them. I don’t know. I didn’t have any idea.

Q. Did you at anytime since I have been questioning
you mention two hundred men? A. I don’t recall that.

Q. You don’t recall that? A. No.

Q. Now, let me ask you this, when you were upstairs
in B Hall Lieutenant, how many men were up there alto-
gether? A. I don’t know. ;

Q. Would you say now that there were as many as
twohundred? A. It would only be a guess.

Q. Well, would you say there was that many? A.
Yes, I would say there would be that many.

Q. And those two hundred men were confined in
how big an area? A. They had the entire cell block.

A492

Q. When you say a cell block now, would that be any
bigger [694] than the front section of this Court Room?
A. Oh, yes.

Q. Would it be any bigger than the entire Court
Room? A. Yes.

Q. Would you tell us how big that section would be?
A. I don’t know how to describe the cell block to you in
size. I could give you the approximate feet probably.

Q. Please. A. I would judge that the cell block
would be about seventy-five feet wide and a hundred feet
long or better.

Q. Seventy-five feet wide and a hundred feet long?

THE COURT: Seventy-five feet wide and a hundred
feet long or better.

Q. Very well. Was that, was there some furniture in
that place also, in that cell block? A. No, it was all
thrown down in the door.

Q. Was there anything up there except those two hun-
dred men? A. What do you mean, any steps?

Q. Was there any furniture up there at all besides
that? A. Not that I recall, it was all piled up down in
front of the door.

Q. And what was the closest distance that any men
were to this position that you saw Stidham? A. Oh, they
were in the same general area, but in that one group
[695] there right off the door, there wasn’t anybody in
there.

Q. And you had never seen Stidham before in your
life, but today you remember that he was there, is that
right? A. I never will forget him.

Q. Allright. You hadn’t seen him before though, had
you Lieutenant? iA. No. He was very distinct, his fea-
tures stood out quite well.

Q. I am going to ask you Lieutenant, the last time
that we started this case in this Court Room, do you recall

A493

my questioning you with respect to whether or not you
knew a Sergeant Olin Curtis, you remember me asking you
that at that time, if you knew him? A. I don’t think you
did. If you did, I could have told you that I did, because
I knew him quite well.

Q. Well— ;

THE COURT: Just a minute—when are you talking
about?

Q. I am talking about the first time the case was
tried Your Honor.

THE COURT: All right, go ahead.

Q. Would you say you didn’t tell the Court and J ury
at that time that you didn’t know Olin Curtis, didn’t know
who he was? A. I know I didn’t tell the Jury that.

Q. You didn’t tell us that? [696] A. No, sir.

Q. Now, with respect to this time that you were in a
room in which the Defendant was questioned, I believe
that you indicated that that was in the classification room,
isthat right? A. Yes, sir.

Q. And what officers do you recall being there? A.
Sergeant Inman, Barkley, Sergeant Nash, Sergeant Chaff
of the St. Louis Police Department, and myself. There
could have been another officer or two, but I don’t recall
them. I do know those people were there.

Q. Could there have been as many as five more there?
A. No.

Q. Couldn’t have been? A. No. '

Q. There was at least five that you know of though?
A. The ones that I have named. -°

Q. Now, was the Defendant questioned at that time
with respect to this crime? A. Yes, sir, to a certain ex-
tent, not much.

Q. No further questions.

MR. RILEY: That is all.

A494

[697] OFFICER BILLINGS,
BEING RECALLED, TESTIFIED:
Redirect Examination by Mr. Riley

Q. Officer Billings, you have been sworn in this case?
A. Yes, sir.

THECOURT: Yes, previously sworn.

Q. I will ask you if you recognize State’s Exhibit No.
17? A. Yes,Ido.

Q. Is your photograph shown there? A. Yes, sir.

Q. And do you know where that place is? A. That
is in the Court Room at the Cole County, Jefferson City
Court House.

Q. And you know what day that was taken on? A.
That was on the 29th of September.

Q. Whatyear? A. 1954.

Q. Do you recall, or do you know what day Stidham
and the others were taken to Springfield? A. On the 29th.

Q. Was that photograph taken before they went to
Springfield? A. About twenty minutes before they left.

Q. And do’ you see Stidham in the photograph? A.
Yes, sir, standing next to me.

Q. At this time Your Honor, we offer State’s Exhibit
No. 17, and with the Court’s permission to cut that part of
it off.

[698] THE COURT: You offer to cut that part of it
off which shows the others, now this is outside of the hear-
ing of the Jury Mr. Ehlers, and let the record so show.
By others, you mean the other Defendants charged with
this Defendant?

MR. RILEY: Yes, those are the co-defendants, those
that have on the prison attire.

THE COURT: Now, you propose to leave the other
half in there?

——

MR. RILEY: Yes, this half here, just the part that
is showing the Défendant.

MR. HENNELLY: The Defendant will object to it
for the reason that it is hearsay and not proper rebuttal,
doesn’t tend to prove or disprove any evidence in the case.
If anything, it is evidence in chief, and the proper founda-
tion has not been laid for its introduction, and for the rea-
son that it contains certain other matters of hearsay, and
to introduce it under these circumstances would only bias
and prejudice the rights of this Defendant, and take away
from him certain of his Constitutional Rights.

THE COURT: All right, get your scissors. I want
the Reporter to mark on the back of the part that is cut
off, Exhibit 17-1. Now then, the objection—the record
may show the objection is overruled and Exhibit 17 less
Exhibit 17-1 that has been cut off, has been received in
evidence, and the part cut off is not received in evidence,
and it can be [699] handed to the Jury.

Exhibit 17, having been received in evidence, being a
photograph, is attached to the original of this transcript.

Q. Officer, for the identification for the Jury, will
you point out to the Jury where you are on that photo-
graph, hold that photograph up.

A. Right here.

Q. The uniformed officer there? A. Yes.

Q. And who is the next man there? A. To my right
is Stidham.

Q. You are standing to Stidham’s left? A. Yes, sir.

Q. That is Stidham’s left hand shown there in the

photograph? A. Yes, sir.
Q. That is all.

A495

A496

Recross-Examination by Mr. Hennelly

Q. Officer Billings, were you present when there
were some pictures taken of the Defendant and other con-
victs, when they were going down to Springfield on a
bus? A. Yes, sir.

Q. Have you seen that picture anyplace? A. No.

Q. Did you ever see a copy of that picture in the
course of [700] this investigation? A. No, sir.

Q. You don’t have a copy of it,do you? A. No.

Q. Do you know where we could get a copy of that
picture? A. I may have one if you want to go to my
house and see.

Q. Ihave no further questions.

Redirect Examination by Mr. Riley

Q. Mr. Billings, the picture you are speaking of is
the one you saw in the newspaper? A. Yes, sir.

Q. They aren’t photographs that we took, are they’?
A. No, sir, that was in the Jefferson City paper.

Q. That is all.

MR. RILEY: State rests.

MR. HENNELLY: I want to renew the two motions
that I previously made at the close of all the evidence, the
Defendant’s Motion, the Motion to the Court to instruct
the Jury to return a special judgment of acquittal. And
at the close of all the evidence, the Defendant moves the
Court to instruct the Jury to return a judgment of ac-
quittal.

THE COURT: Overruled.

And thereafter towit: On the same day, the follow-
ing order was entered of record:

[701] Circuit Court Record, Butler County, Missouri
(Book 62, page 429) Wednesday, July 20th, 1955, Regular
July 1955 Term

Now comes the defendant by counsel, and renews

two Motions for Reduction of Charge and for Acquittal,

~~

A497

at the close of the whole case, which are refused and

overruled by the Court. Defendant objects and excepts

and continues to object and except to the rulings of the

Court.

MR. HENNELLY: The Defendant objects to In-
struction No. 3 for the reason that it is too vague, indefi-
nite and speculative, and it is a comment on the evidence,
and it is incomplete and inaccurate statement of the law,
and does not purport to instruct on all of the law relative
to the law on circumstantial evidence. The last sentence
of this instr-ction beginning with, “Crime may be proven
by circumstantial evidence”, does not with sufficient
particularity indicate whether or not'the Court is refer-
ring to direct evidence or to circumstantial evidence. The
Defendant objects to Instruction No. 4, for the reason
that it is a comment on the evidence, that it does not suf-
ficiently and accurately describe and define the terms
“Felonious, wilfully, deliberately, premeditatedly and
malice and malice aforethought”. The Defendant further
objects to this instruction for the reason that. there has
been no evidence [702] in this case tying the Defendant
in with any of the persons mentioned, either Rollie Laster,
Hoover, Edward Kenton, and Jackie Lee Noble and John
William DeLapp, or Joseph Vidauri, and for the further
reason that it is too vague, indefinite, and speculative,
and gives the Jury a roving commission, and in fact ties
them down to a verdict of guilty. The Defendant further
objects for the reason that the instruction does not indi-
cate that if the Defendant did not conspire with all of
these Defendants previously mentioned, that then the
Defendant should be acquitted and for the further reason
that it does not define with sufficient particularity the
crime of murder in the first degree. The Defendant ob-
jects to Instruction No. 5 for the reason that it is incom-

plete, inaccurate, indefinite statement, is not a complete

A498

statement of the law and a comment on the evidence.
The same objection for No. 6, and add this to No. 6. The
Defendant further objects to Instruction No. 6 for the
reason that it is a shift of the burden of proof and does
not make any reference to the fact that the Jury has to be
satisfied beyond a reasonable doubt as to whether or not
this statement was voluntary. The Defendant further
objects to this instruction with particular emphasis on the
last section beginning with the statement, “The Jury must
consider such statement and you should give it such
weight as you believe it deserves in arriving at your ver-
dict.”’, for the reason that [703] that is’a comment on the
evidence, and is a direction to the Jury, not warranted by
the evidence, and in effect invalidates the rest of the in-
struction. The Defendant objects to Instruction No. 7
for the reason that that is a comment on the evidence
with emphasis.and points up to the fact that this Defend-
ant has been previously convicted and this is particularly
important in the light of the fact that two other witnesses
for the State have been previously convicted of crimes
and that the instruction fails to make any reference to
their previous convictions. The Defendant objects to In-
struction No. 8 for the reason that it is inaccurate, insuf-
ficient statement of the law and does not purport to in-
struct in all of the law relative thereto, and is a comment
on the evidence.

THE COURT: As to Instruction No. 7, previous con-
victions—

MR. HENNELLY: The Defendant will specifically
move the Court and request the Court not to give In-
struction No. 7 with respect to the previous convictions of
the Defendant.

THE COURT: And does not request it?

MR. HENNELLY: And does not request it, and
under those circumstances—

A499

THE COURT: Then the record may show Instruc-
tion No. 7 will be withdrawn and not given, and I will
mark it refused.

MR. HENNELLY: All right Judge.

THE COURT: I mean mark it withdrawn.

[704] MR. RELEY: At the request of the Defendant.

MR. HENNELLY: Yes, that is all right.

INSTRUCTIONS GIVEN
Instruction No. 1

The State of Missouri, by the Indictment in this case,
charges the defendant with a criminal offense against the
laws of the State of Missouri. He pleads not guilty,
thereby raising an issue of fact between the State of Mis-
souri and himself, which you, the jury, are to determine
from all the facts and circumstances in the case.

It is the duty of the Court to instruct you on all
questions of law arising in this case, and it is your duty
to receive such instructions as the law of the case, and
to find the defendant guilty or not guilty, according to the
law as declared by the Court and the evidence as you have
received it under the direction of the Court.

Given
7-20-55
RH.W.

Instruction No. 2

The Indictment contains the mere formal statement
of the charge, but it is not to be taken as any evidence of
defendant’s guilt.

The law presumes the defendant to be innocent, and
this [705] presumption continues until it has been over-
come by evidence which establishes his guilt to your satis-

A500

om
faction and beyond a reasonable doubt; and the burden of
proving his guilt rests with the State.

If, however, this presumption has been overcome by
the evidence and the guilt of the defendant established be.
yond a reasonable doubt, your duty is to convict.

If, upon consideration of all the evidence, you have a
reasonable doubt of the defendant’s guilt, you should ac-
quit; but a doubt to authorize an acquittal on that ground
ought to be a substantial doubt touching the defendant’s
guilt, and not a mere possibility of his innocence.

Given
7-20-55
R.H.W.

Instruction No. 3

The Court instructs the jury that evidence is of two
kinds, direct and circumstantial. Direct evidence is when
a witness testifies directly of his own knowledge of the
main fact or facts to be proven. Circumstantial evidence
is proof of certain facts and circumstances in a certain
case, from which the jury may infer other and connected
facts which usually and reasonably follow, according to
the common experience of mankind. Crime may be proven
by circumstantial evidence, as well as by direct testimony
of eye witnesses, [706] but the facts and circumstances in
evidence should be consistent with each other, and con-
sistent with the guilt of the defendant, and inconsistent
with any reasonable theory of defendant’s innocence.

Given
7-20-55
R.H.W.

A501

Instruction No. 4

“Felonious” means wickedly and against the admoni-
tion of the law.

“Wilfully” as used in these instructions, means in-
tentionally, not accidentally.

“Deliberately” means considered and reflected upon.
An act committed in the cool state of the blood, with a
conscious purpose to kill, and not under the influence of a
violent passion suddenly aroused by some lawful or just
cause of provocation, is committed deliberately.

“Premeditatedly” means thought of beforehand for
any length of time, however short the time.

“Malice”, in its legal sense, and as used in these in-
structions, does not mean mere spite, ill will, hatred or
dislike, as it is ordinarily understood, but it means that
condition of the mind which prompts a person intentionally
to take the life of another without just cause, justification
or excuse, and signifies a state of disposition that shows a
(707] heart regardless of social duty and fatally bent on
mischief.

“Malice aforethought” means malice with premedita-
tion.

Bearing in mind these definitions and those included
in the other instructions, the court instructs the jury that
if you believe and find from the evidence, beyond a reason-
able doubt, that Rollie Laster, William R. Hoover, Paul
Edward Kenton, Jackie Lee Noble, Don William DeLapp,
and Joseph M. Vidauri entered into a conspiracy and agree-
ment to act in concert and together to kill and murder
Walter Lee Donnell at the time and place and in the man-
ner by the means hereafter set forth in this instruction,
and if you believe and find from the evidence, beyond a

A502

reasonable doubt, that pursuant to such a conspiracy and
agreement those aforesaid persons, acting in concert and
together, on September 22, 1954, in Cole County, Missouri,
wilfully, deliberately, premeditatedly, and- with malice
aforethought did make an assault upon Walter Lee Don-
nell, and then and there did wilfully, deliberately, pre
meditatedly, and with malice aforethought forcibly strike
hit, stab, cut, and beat Walter Lee Donnell in and upon
his face, head, and body, with a sledge hammer, and a
knife, and another sharp instrument or dagger, if you so
find, thereby giving Walter Lee Donnell about his face,
head, and body, mortal wounds from the effects of which
he died on September 22, 1954, if you so find, and if you
further believe and find from the evidence, [708] and
beyond a reasonable doubt, that the defendant, James
William Stidham, at the time of such killing and murder-
ing, was a member of the conspiracy and agreement afore
said and theretofore had conspired and agreed with Rollie
Laster, William R. Hoover, Paul Edward Kenton, Jackie
Lee Noble, Don William DeLapp, and Joseph M. Vidauri,
to aid, abet, assist or encourage them in the killing and
murdering of Walter Lee Donnell at the time and place
and in the manner and by the means aforesaid, and if you
further believe and find from the evidence, beyond a rea-
sonable doubt, that the defendant, James William Stid-
ham, pursuant to such conspiracy and agreement, was ac-
tually present during the killing and murdering aforesaid
of Walter Lee Donnell, and that he knew of the felonious
purpose and intent of Rollie Laster, William R. Hoover,
Paul Edward Kenton, Jackie Lee Noble, Don William De-
Lapp, and Joseph Vidauri to kill and murder Walter Lee
Donnell as aforesaid, and that James William Stidham then
and there knowingly and intentionally aided, abetted, as-
sisted, or encouraged the aforesaid persons, or any of them,
in the aforesaid killing and murdering, then you should

\

A503

find the defendant, James William Stidham, guilty of
Murder in the First Degree and by your verdict so Say.

And unless you do so find the facts to be in every re-
spect as above stated, you must find the defendant, James
William Stidham, not guilty and by your verdict so say.

[709] If you find the defendant, James William Stid-
ham, guilty of Murder in the First Degree, you will assess
his punishment at death or at imprisonment in the state
Penitentiary during his natural life.

—_

Given {>
7-20-55
RH.W.

Instruction No. 5

The Court instructs the jury that, if you believe and
find from the evidence, beyond a reasonable doubt, that
the defendant, James William Stidham, and William R.
Hoover, Rollie Laster, Paul Edward Kenton, Jackie Lee
Noble, Don William DeLapp and J oseph M. Vidauri en-
tered into a conspiracy and agreement to act in concert
and together to kill and murder Walter Lee Donnell at the
time and place and in the manner and by the means set
forth in Instruction No. 4, then the act of either of them
pursuant to such conspiracy and agreement to kill and

murder Walter Lee Donnell would be in law the act of
each one so conspiring and agreeing.

The word “Conspiracy”, as used in these instructions,
means a common agreement and understanding between
two or more persons which is formed for the purpose of com-
mitting and doing by their joint efforts some criminal act.

The Court instructs the jury that all persons are prin-
cipals who are guilty of acting in concert and together
[710] in the commission of a crime. When a crime is ac-

A504

tually committed by one or more persons and another per-
son is actually present, and, knowing of the felonious pur-
pose and intent of the person or. persons committing the
crime, he knowingly and intentionally aids, abets, assists
or encourages the person or persons actually committing
the crime in the commission of the same, then such person
so knowingly and intentionally aiding, abetting, assisting
or encouraging the person or persons actually committing
the crime in the commission of the same is a principal and
he is equally guilty with the person or persons who ac-
tually commits the crime.

However, you are further instructed that the mere
presence of a person at the time and place of the commis-
sion of a crime by another or others is not alone sufficient
to justify finding him in any manner responsible for the

commission of such crime. On the contrary, before such
person can be found in any manner responsible for the
commission of such crime, the evidence in the case must
show, beyond a reasonable doubt, not only that such per-
son was actually present at the commission of such crime,
but also that such person knew of the felonious purpose
and intent on the part of the person or persons actually
committing the crime, and that he then and there was
knowingly and intentionally aiding, abetting, assisting or
encouraging the person or persons [711] committing the
crime in the commission of the same.

Given
7-20-55
R.H.W.
Instruction No. 6

The Court instructs the jury that before any alleged
statement can be valid, and before you can even consider
it, it must have been made voluntarily, that is to say, with-
out anyone having offered to the person who is claimed to

A505

have made such a statement any hope of leniency or re-
ward of any kind for making such statement, and without
anyone making any threat or doing any violence to the
person claimed to have made any such statement in order
to induce or force him to confess.

If the jury does not believe that a statement, written
or oral, and claimed to be a confession made by the defend-
ant, was voluntarily made by him as defined above, the
jury should entirely disregard such statement in arriving
at your verdict.

If, however, the jury does believe that a statement,
written or oral, and claimed to be a confession made by the
defendant, was voluntarily made by him as defined above,
the jury must consider such statement and you should give
it such weight as you believe it deserves in arriving at your
verdict.

Given
7-20-55
RH.W.

[712] - Instruction No. 8

The Court instructs the jury that you are the sole
judges of the credibility of the witnesses, and of the weight
and value to be given to their testimony.

In determining the credit you will give to a witness,
and the weight and value you will attach to his testimony,
you should take into consideration the conduct and appear-
ance of the witness upon the stand, the interest of the wit-
hess, if any, in the result of the trial; the motives actuating
the witness in testifying, if any, his relation to or feelings
for or against the defendant or the State, if any, the prob-
ability or improbability of his statements, the opportunity
he had to observe and to be informed as to the matters

A506

respecting which he gives testimony, and his inclination to
speak truthfully or otherwise as to the matters within his
knowledge. All these matters being taken into account,
with all the other facts and circumstances given in evi-
dence, it is your province to give to each witness such credit
and to his testimony such weight and value as you deem

proper.
Given

7-20-55
R.H.W.

Instruction No. 9

In this case it is essential to a verdict that the entire
jury of twelve agree upon any verdict the jury may
[713] render. Your verdict when so agreed upon must be
written on a separate sheet of paper, and not upon any
of these instructions, and must be signed by the Foreman
of the jury.

Given
7-20-55
R.H.W.

INSTRUCTIONS WITHDRAWN
Instruction No. 7

The Court instructs the jury that any evidence that
the defendant may have been previously convicted of an
offense against the laws of the State of Missouri is not evi-
dence on any issue in this case, except insofar as you may
find such evidence of prior conviction may tend to bear
upon the credibility of the defendant, and the jury should
consider such evidence only insofar as it may in the opin-
ion of the jury tend to bear upon the credibility of the de-

A507

fendant, and the jury will consider it fox no other purpose
in this case.

Withdrawn at request

of Defendant.

7-20-55

RH.W.

The above instructions were read to the Jury by the
Court. -

MR. REX HENSON: If the Court please—

THE COURT: Mr, Henson.

MR. HENSON: Gentlemen of the J ury, as the Court
has stated [714] to you, the proceedings in a case of this
type or any criminal case for that matter, is for the State
to make an opening argument. The defense counsel will
make his argument and then for the State to close with a
rebuttal, which in this instance will be presented by the
Prosecuting Attorney of Cole County, Mr. Riley. I know
you gentlemen have suffered through nearly three days of
heat and lots of testimony here and for that reason, we
will be as brief as possible, and I will try not to take too
much of your time. I feel in this case that I am in a pecu-
liar situation, because I am much in the same position as
the members of the Jury Panel are. As this testimony
came to you from the witness stand and you heard it for
the first time, I also heard it for the first time, because
I was not into this case until it came into this County, and
I came in to assist Mr. Riley, which is my duty as Prosecut-
ing Attorney of this County. “So as I discuss this case
with you, and the evidence as it came to you from the
stand, I will be discussing a lot of it, practically all of it,
from the same standpoint as you heard it, because I heard
it only one time. I would like to point this out at the be-
ginning. During the time that you heard this testimony,
and there has been a lot of it, I had to sit there and listen

A508

to it too, and try to keep notes on it, and there may be
times, as I discuss this testimony with you, that I might
misquote or misrepresent some [715] of it, and I want you
to understand at this time that it will be merely an over-
sight and will not be done intentionally. This man Stid-
ham is charged in the indictment by the Cole County
Grand Jury with Murder in the First Degree. That is the
only charge against him, and the only one you will con-
sider in this case as to whether he is guilty of Murder
in the First Degree, or whether he is not guilty, according
to the instructions given to you by the Court as you apply
the evidence as it came from the stand to that law. The
State feels, and I feel personally that everything has been
done both for the State and for the Defendant, through
his attorney, Mr. Hennelly, that could be done in a case of
this type, and that all of the evidence that could be brought
to you on both sides, has been brought and presented to you
in the best manner that it could be presented, I believe
Mr. Riley and Mr. Hennelly have done that. Now, let’s
take the evidence that the State brought to you here in
this case and discuss it briefly. When a man is charged
with murder, with taking the life of another human being,
first the State has to prove that there is a dead body. We
have done that in this case. They have to prove the iden-
tity of that dead body. They have to prove the cause of
death, that he met his death, his death was the result of
the violence, or whatever might have been done to him
by the persons charged with his murder. Now, the first
day of this trial was consumed [716] mainly by these wit-
nesses that the State brought, proving that Walter Lee
Donnell died in the State Prison in Jefferson City, in Cole
County, on September 22nd, 1954. The other testimony
showed that he died of stab wounds, some in the front,
from instruments like a knife and some in the back from
round sharp instrument, and from a blow on the head

A509

crushing the right side, inflicting a mortal wound to the
brain, and that there were other abrasions about his body.
We don’t think that there is any question of any of the
testimony in this case, but what this man was Walter Lee
Donnell. There has been no evidence put on by the de-
fense that it wasn’t Donnell, and no evidence to show that
he died from any other wounds, other than the external
violence that he received there in his cell in Death Row
on September 22nd, 1954. We think that question is set-
tled. Now, you come down to the question as to whether
this man here, this man Stidham, who stands charged here
with this crime, is one of the men who entered into this
conspiracy and went into his cell and killed this man on
the night in question. This gentleman is the sole question
and the main question in this lawsuit. The State says he
did, and he says he didn’t, There is your issue right
there. Now, what did webring to the stand, what did
the State bring to the stand in the way of evidence, to
show you that this man died at the hands of this man, and
his co-conspirators. You must realize from the [717] out-
set that this crime was committed during a riot at the
Missouri State Penitentiary, and you can call upon your
common knowledge and-your common horse sense that
the authorities in piecing the evidence together, that it
was, must necessarily be piece meal. It is not like a crime
committed down on the streets in Poplar Bluff or in some
other city. It was committed in the State Prison during
a riot. Now, they brought these witnesses to the stand,
two convicts, a guard, and these six or seven officers who
testified about this man’s confession, to show you that he
was there, that he went down there to Death Row, into the
cell at the time this murder was committed; that he was
back and forth in and out of there several times, and that
he made these threats against Donnell for being a snitch
and for being a rat and that he was going to kill him.

A510

All that fits in together. I am satisfied in my own mind
that Mr. Riley would never have come here and presented
this case—

MR. HENNELLY: I certainly object to that, and ask
that it be stricken and the Jury instructed to disregard it
and a mistrial declared for the reason it is an opinion of
counsel and outside of the record.

THE COURT: Will counsel come up here and state
to me his statement, his statement wasn’t finished. You
said you were satisfied in your own mind—

(Out of the hearing-of the Jury)

[718] MR. HENSON:: That Mr. Riley, that is as far
as I got.

THE COURT: Now, what were you intending to say?

MR. HENSON: That Mr. Riley wouldn’t have pre
sented this case if his sole testimony was furnished by
the two convicts who testified for the State.

MR. HENNELLY: That is getting pretty close.

THE COURT: Let the objection be sustained.

MR. HENSON: Now liet’s take for just a moment
Gentlemen, and go over this testimony that the State pre
sented here to you on what happened down there that
night, what was seen and what this Defendant did that
night, the night of the riot. You recall the testimony |
believe of this guard Dietzel who came here on the wit-
ness stand, who testified about the riot starting somewhere
around six-thirty on the evening of September 22nd. You
will also recall that, and I am pointing this out to you on
account of instructions by the Court, because of this con-
spiracy. You will recall the statement that Dietzel made
from the witness stand about the conversation between
DeLapp and this other group of men he testified about, who
came down there to get Stidham out of Death Row. You
will recall that he was standing there back in this direc-
tion, back in there, and I direct your attention to Exhibit 1,

A511

back here between Gate No. 2 and Gate No. 3, going into
Death Row, between this group of men headed by DeLapp,
and Stidham back here in his cell somewhere along here
[719] on this side. I forget just exactly where it was. He
was standing there where he could see and where he could
hear what was going on. This is a guard in the Missouri
State Penitentiary, and he says that DeLapp hollered back
to Stidham and there was some conversation, you will
remember exactly what it was, about getting him out of
there, and getting on with their business, or whatever it
was, and I won’t try to go over that, because I can’t re-
member it verbatim. There was never any testimony on
his part about any conversation between those men and
any other inmates along Death Row on that side. It was
all with Stidham back there, and they called him “Slick”,
“Slick” Stidham, and he knew him as “Slick” Stidham,
and these men talked to him back there and said they
would have him out of there; that they worked on that
door there first, the first door and the second door and
the third door. That it went on there for quite a time,
thirty or forty or fifty minutes, or maybe an hour or more,
that they worked on these three doors to. go back there
and get this Defendant out of Death Row, no, not the rest
of them, but this man. And then what did they do when
they got him out? Creighton told you about it back there.
Of course Creighton is a convict and he has been convicted,
but did you notice that his story dovetailed into the story
that these other witnesses have told. It fit into what they
told you. It fit in to what [720] Herman Trout told you.
It fit into what this guard Dietzel told you, his story fit;
that they came back there to his cell, and he testified
about these threats, these threats that this guard Dietzel
told you about. Herman Trout told you about going back
down there, what does the Defendant say about this. Look
at his story now. His sto

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0078%3A1. Public record. Not legal advice.