# Appendix — Swenson v. Stidham > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0078%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1973 - **Citation:** 409 U.S. 224 ## Text Warr or CenTronanri TO THE Unrrep STATES Court or APPEALS FOR THE Excura Cracorr Joun C, DanrorTH Attorney General Kenneto M. RoMInes Assistant Attorney General Supreme Court Building N Jefferson City Missouri 651 314—636-7131 Attorney for Petitioner a BL, Musrvaurmusn, Inc., 936 Cherry Strest, Kansas City, Mo. 64106, 481-8080 os eX pas INDEX Volume I Appendix A—Transcript in State v. Stidham, No. BST cscisuise char cesdasdccontacapacacsncisousbhdebsuessasasasauspsiessniniundnbdaskions Al Volume II Appendix B—Transcript in State v. Stidham, No. EG 2 ascot hid scsien ca este teenie sth veesag cays daesteceneaatadds A561 Appendix C—Transcript in Stidham v. State, No. STO teins cesseennsseestanessscetsssscensscensennsssenennssesssnnesessenuess A595 Appendix I—Order of United States District Court Dismissing Reinstated Appeal in Stidham v. Swen- a | eS. | ee ee ee 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. eisai a sess tiveness senta puas ses esta scactep ae ctgnn dae eoseabasetien A777 Al APPENDIX A—Transcript in: State v. Stidham, No. 45537 [1] IN THE CIRCUIT COURT WITHIN AND FOR THE COUNTY OF BUTLER, STATE OF MISSOURI STATE OF MISSOURI, ) Plaintiff, ) Vs. ) No. 3158 JAMES WILLIAM STIDHAM, ) Defendant. ) MURDER IN THE FIRST DEGREE APPEARANCES: For the Plaintiff: James T. Riley, Esq., Prosecuting Attorney, Cole County, Jefferson City, Missouri. Rex A. Henson, Esq., Prosecuting Attorney, Butler County, Duncan Building, Poplar Bluff, Missouri. For the Defendant: Mark Murray Hennely, Esq., At- torney at Law, Suite 1832-34 Arcade Bldg., 812 Olive Street, St. Louis 1, Missouri. {2] STATE OF MISSOURI ) ) SS. COUNTY OF COLE ) BE IT EVER REMEMBERED, That on this the 23rd day of November, 1954, at the regular September Term, 1954, at the Circuit Court of Cole County, Missouri, begun and held at the Court House in the City of Jefferson, in the County and State aforesaid, before the Honorable Sam C. Blair, Judge of the 14th Judicial Circuit of the State of Missouri and Judge of this Court, the following, among other proceedings, were had, to-wit: , A2 IN THE CIRCUIT COURT OF COLE COUNTY, MISSOURI - SEPTEMBER TERM 1954 : TUESDAY NOVEMBER 23rd, 1954 State of Missouri, ) Plaintiff, ) VS. ) No. 5259 JAMES WILLIAM STIDHAM, DON WIL- ) LIAM DE LAPP, et al., ) Defendants. ) Now at this day Grand Jury Indictment charging Mur. der is received and filed and capias warrants issued by the Clerk. (Which said Grand Jury Indictment is in writing and appearing in the following words and figures, to-wit: ) “IN THE CIRCUIT COURT OF COLE COUNTY, MISSOURI SEPTEMBER TERM, 1954 Filed Nov. 23, 1954 Guy M. Stone Clerk A3 STATE OF MISSOURI ) ) SS. COUNTY OF COLE ) 3] State of Missouri, ) Plaintiff, ) vs. ) No. 5259 William R. Hoover, Jackie Lee Noble, Paul ) Edward Kenton, James William Stidham, ) Rollie Laster, Don Wm. DeLapp, and ) Joseph M. Vidauri, ) Defendants. ) INDICTMENT The Grand Jurors of the State of Missouri, duly sum- moned from the body of the County of Cole, State of Mis- souri, and duly impaneled, sworn, and charged to inquire within and for said County, upon their oaths, present and charge that William R. Hoover, Jackie Lee Noble, Paul Ed- ward Kenton, James William Stidham, Rollie Laster, Don Wm. DeLapp, and Joseph M. Vidauri, on or about the 22nd day of September, 1954, at the County of Cole, State of Missouri, did then and there feloniously, wilfully, de- liberately, premeditatedly, on purpose and of their malice aforethought, make an assault upon one Walter Lee Don- nell and then and there with dangerous and deadly weap- ons, to-wit: a sledge hammer, and a knife, and another sharp instrument or dagger, the exact nature of which is unknown to these Grand Jurors, a wooden table leg, and other blunt instruments, the exact nature of which is un- known to these Grand Jurors, and their fists and hands and feet, the said William R. Hoover, [4] Jackie Lee Noble, Paul Edward Kenton, James William Stidham, Rollie Las- ter, Don Wm. DeLapp, and Joseph M. Vidauri, did felo- niously, wilfully, deliberately, premediatedly, on purpose, and of their malice aforethought, forcibly strike, hit, stab, A4 cut, beat, and stomp the said Walter Lee Donnell, thus ang thereby by the means aforesaid and in the manner afore. said feloniously, wilfully, deliberately, premeditatedly, on purpose, and of their malice aforethought, giving then anq there to the said Walter Lee Donnell about his face, heaq and body, mortal wounds of which mortal wounds the saiq Walter Lee Donnell on or about the 22nd day of September, 1954, at the County of Cole, State of Missouri, did die. And so the Grand Jurors, as aforesaid, upon their oaths, as aforesaid, do say that the said William R. Hoover, Jackie Lee Noble, Paul Edward Kenton, James William Stidham, Rollie Laster, Don Wm. DeLapp, and Joseph M. Vidauri, by the means aforesaid and in the manner and form aforesaid, at Cole County, State of Missouri, did fe- loniously, wilfully, deliberately, premediatedly, on pur- pose, of their malice aforethought, did kill and murder the said Walter Lee Donnell, against the peace and dignity of the State. A True Bill ° (Signed) Victor Witthaus Foreman of the Grand Jury (Signed) James T. Riley Prosecuting Attorney Cole County, Missouri [5] Witnesses for State: G. Donald Shull Thomas Pasley W.S. Barton J. J. Rouse John Bauer R. N. Eidson Walter Eitzman Hugh Waggoner P. R. Little J.C. Smith Charles Billings Clarence Dietzel R. C. Caldwell Jefferson T. Gentry Jesse Renderer Ben H. Cederburg Edw. H. Schaaf P. E. Cor] Joe Lamar Otto S. Atkinson AS Otto McDermott Oscar Carrington E. Brown Thomas Crane H. M. Fennimore William Steinhauser John F. Williams Bernard Poiry James O. Rhoads J. G. Hanchey Walter Eitzman Sylvester Dulle Elmer Oberbech James Eynard Thomas Jenneman Herman Trout E. V. Nash Richard V. Gonzales p. M. Inman James Marvin Creighton Earl E. Barkley Charles Henry Ford Ralph King William Henry Kauffman Leon Wade Harry (Woody) Miles Martin Jenson” [6] (Which said Capias Warrant as to Defendant Don Wm. DeLapp is in writing and appearing in the fol- lowing words and figures, to-wit: ) CAPIAS STATE OF MISSOURI ) ) SS. COUNTY OF COLE ) THE STATE OF MISSOURI, T@,THE SHERIFF OF COLE COUNTY,—GREETING: - YOU ARE HEREBY COMMANDED to take the body of James Wm. Stidham if he be found in your county, and him safely keep so that you have his body before the Cir- cuit Court of Cole County on the First Monday in December next, then and there to answer unto the State of Missouri on an indictment for Murder whereof he stands charged, and have you then and there this Writ, and do you certify to our said Court how you execute this writ. IN TESTIMONY WHEREOF, I, Guy M. Sone, Clerk of said County, have hereunto set my hand and seal of said scl A AGA AAT Sie SIO | oe Bey tek en tT ee eae A6 Court, at office in the City of Jefferson, this 23rd day of November, A. D. 1954. (Seal) (Signed) Guy M. Sone, Clerk SHERIFF'S RETURN I certify that on the 23rd day of November, 1954 | read the within Capias to the within named Don William DeLapp within his hearing and presence. [7] Witness my hand this 23rd day of November, 1954, in the County of Cole, State of Missouri. Ben S. Markway, Sheriff (Signed) S. H. Smith, Deputy Fee $1.00 AND THEREAFTER, to-wit, on the same day, to-wit, November 23rd, 1954, the following further proceedings . were had herein: IN THE CIRCUIT COURT OF COLE COUNTY, MISSOURI SEPTEMBER TERM 1954 TUESDAY NOVEMBER 23rd 1954 State of Missouri, ) Plaintiff, ) vs. ) No. 5259 James William Stidham, Don Wm. DeLapp, ) et al., ) Defendants. ) Now at this day comes James T. Riley, Prosecuting Attorney within and for Cole County, Missouri, and come the Defendants, William R. Hoover, Jackie Lee Noble, Paul Edward Kenton, James William Stidham, Rollie Laster, Don William DeLapp, and Joseph M. Vidauri, in open Court and all defendants duly arraigned. AT It is ordered by the Court that the Clerk of this Court be ordered to furnish each defendant with a certified copy of the indictment herein within twenty-four hours. [8] The Court finds alleged offenses and defendants are not bailable and the Court orders each defendant com- mitted to the custody of the Warden of the State Peniten- tiary- And now, come Defendants James William Stidham, Joseph M. Vidauri, Jackie Lee Noble and Rollie Laster’ and request the Court to appoint Mark Hennelly, St. Louis, Missouri, their counsel, and he is so appointed. It is further ordered by the Court that John H. Hendren be appointed to represent Defendant William R. Hoover. It is further ordered by the Court that Mark Hennelly be appointed to represent Don William DeLapp. It is ordered by the Court that defendant Paul Ed- ward Kenton be granted time to obtain counsel. It is further ordered by the Court that S. W. James, Jr. be appointed counsel for Jackie Lee Noble. It is further ordered by the Court that Russell T. Keyes be appointed counsel for Don William DeLapp. It is further ordered by the Court that Tweedie Fisher be appointed counsel for Joseph M. Vidauri. It is further ordered by the Court that H. P. Andre be appointed counsel for William R. Hoover. AND THEREAFTER, to-wit, on December 6, 1954, the following further proceedings were had herein: A8 [9] IN THE CIRCUIT COURT OF COLE COUNTY, MISSOURI DECEMBER TERM 1954 MONDAY DECEMBER 6th, 1954 State of Missouri, ) Plaintiff, ) vs. ) No. 5259 James William Stidham, Don Wm. DeLapp, ) et al., ) Defendants. ) On this 6th day of December, 1954, the Court, exer- cising the authority vested by Rule 25.06, Rules of Crimina] Procedure, adopted by the Supreme Court April 14, 1952, and effective January 1, 1953, determines and orders that all motions raising defenses and objections, or for pro- duction of documents or evidence or discovery, except where issues of fact are involved which are required by the Constitution or by the Laws of this State to be tried by jury; shall be filed in this cause on or before Decem- ber 15, 1954, and shall be presented to the Court on Law Day, December 20, 1954, or as soon thereafter as the Court can hear defendants and their counsel. AND THEREAFTER, to-wit, on the same day, Decem- ber 6th, 1954, the following further proceedings were had herein: A9 IN THE CIRCUIT COURT OF COLE COUNTY, MISSOURI DECEMBER TERM 1954 MONDAY DECEMBER 6th, 1954 (10) State of Missouri, ) Plaintiff, ) vs. ) No. 5259 James William Stidham, Don Wm. DeLapp, ) et al., ) Defendants. ) Now at this day, at his request, the Court permits Mark Hennelly to withdraw as counsel for all defendants except James William Stidham, owing to what be be- lieves to be an apparent conflict between the interests of the several defendants. AND THEREAFTER, to-wit, on the same day, De- cember 6th, 1954, the following further proceedings were had herein: IN THE CIRCUIT COURT OF COLE COUNTY, MISSOURI DECEMBER TERM 1954 MONDAY DECEMBER 6th, 1954 State of Missouri, ) Plaintiff, ) vs. ) No. 5259 James William Stidham, Don Wm. DeLapp, ) et al., ) Defendants. ) Now at this day comes James T. Riley, Prosecuting Attorney within and for Cole County, Missouri; and come Defendants William R. Hoover, Jackie Lee Noble, James Al0 William Stidham, Rollie Laster, Don William DeLapp ang Joseph M. Vidauri, [11] in their own proper person and by their attorneys and enter herein a plea of not guilty to the charge contained in the indictment, with leave to withdraw the same. AND THEREAFTER, to-wit, on the same day, Decem. ber 6th, 1954, the following further proceedings were had herein: IN THE CIRCUIT COURT OF COLE COUNTY, MISSOURI DECEMBER TERM 1954 MONDAY DECEMBER 6th, 1954 State of Missouri, ) Plaintiff, ) vs. ) No. 5259 James William Stidham, Don Wm. DeLapp, ) et al., ) Defendants. ) Now at this day it is ordered by the Court that all per- missions for withdrawal of pleas of not guilty is for the purpose of permitting defendants to file motions in com- pliance with the Court’s order of this date. AND THEREAFTER, to-wit, on December 14th, 1954, the following further proceedings were had herein: All IN THE CIRCUIT COURT OF COLE COUNTY, MISSOURI DECEMBER TERM 1954 TUESDAY DECEMBER 14, 1954 State of Missouri, ) Plaintiff, ) vs. ) No. 5259 James William Stidham, ) Defendant. ) [12] Now at this day comes defendant, James William stidham, by his attorney, and files his Motions for Pro- duction and Inspection, To Dismiss, for a Severance, for a Polygraph Examination and to Suppress. (Which said Motion for Production and Inspection is in writing and appearing in the following words and figures, to-wit: ) “In the Circuit Court of Cole County, Missouri December Term, 1954 Filed Dec. 14, 1954 Guy M. Sone Clerk. State of Missouri, ) Plaintiff, ) vs. ) No. 5259 William R. Hoover, et al., ) Defendants. ) MOTION OF DEFENDANT, JAMES WILLIAM STIDHAM FOR PRODUCTION AND INSPECTION 1. Defendant James William Stidham moves the Court for an order requiring the Prosecuting Attorney to produce ; BH, %, ; patie : ote, Al2 and to permit the defendant to inspect and copy at a time and place set by the Court before trial of this cause aj] statements claimed by the State to have been made by the defendant which the State intends to offer into eyj. dence at the trial of defendant. [13] 2. That the inspection and copying of the state. ments are necessary to enable this defendant to prepare his case for trial and that defendant cannot safely proceed to trial unless and until he has such information. (Signed ) Mark M. Hennelly Attorney for Defendant James William Stidham, 1832 Arcade Building St. Louis 1, Missouri Chestnut 1-2242.” (Which said Motion to Dismiss is in writing and ap- pearing the following words and figures, to-wit: ) “IN THE CIRCUIT COURT OF COLE COUNTY, MISSOURI DECEMBER TERM, 1954 Filed Dec. 14, 1954 Guy M. Sone Clerk State of Missouri, ) Plaintiff, ) vs. ) No. 5259 WILLIAM R. HOOVER, et al., ) Defendants. ) MOTION OF DEFENDANT, JAMES WILLIAM STIDHAM, TO DISMISS Defendant moves the Court to dismiss the Indictment for the following reason: Al3 The indictment is duplicitous for the reason that it [14] purports to charge two crimes. It purportedly charges both a homicide and an assault with intent to kill. (Signed) Mark M. Hennelly Attorney for Defendant James William Stidham 1832 Arcade Building St. Louis 1, Missouri Chestnut 1-2242.” (Which said Motion for a Severance is in writing and appearing in the following words and figures, to-wit: ) “IN THE CIRCUIT COURT OF COLE COUNTY, MISSOURI DECEMBER TERM, 1954 State of Missouri, ) Plaintiff, ) vs. ) No. 5259 William R. Hoover, et al., ) Defendants. ) MOTION OF DEFENDANT, JAMES WILLIAM STIDHAM FOR A SEVERANCE Defendant, James William Stidham, moves the Court to grant him a severance from his co-defendants. 1. He has an absolute right to a severance. 9. Evidence in this case will be introduced by the State which will be prejudicial against him and which would be inadmissible against him at a separate trial. bi Al4 3. The defendant, as well as his co-defendants, wil] [15] obtain a fairer and more impartial trial if he is trieq alone. (Signed) Mark M. Hennelly Attorney for Defendant James William Stidham 1832 Arcade Building St. Louis 1, Missouri Chestnut 1-2242.” (Which said Motion for a Polygraph Examination js in writing and appearing in the following words and figures, to-wit: ) “IN THE CIRCUIT COURT OF COLE COUNTY, MISSOURI DECEMBER TERM, 1954 Filed Dec. 14, 1954 Guy M. Sone Clerk. State of Missouri, ) Plaintiff, ) VS. ) No. 5259 William R. Hoover, et al., ) Defendants. ) MOTION OF DEFENDANT, JAMES WILLIAM STIDHAM FOR A POLYGRAPH EXAMINATION Defendant, James William Stidham, moves the Court to appoint an independent polygraph examiner or any other examiner qualified to administer any other type of “lie detector” examination described by the Court, for the pur- Al5 pose of interrogating him relative to the charges set forth in the indictment in this [16] cause at such time and in the presence of such people as the Court shall designate and as grounds for this motion states: 1. Such an examination will assist this defendant in establishing his innocence of the charge set forth in the Indictment. 9. Defendant intends to introduce into evidence the testimony of such examiner and the result of such exam- jnation. This defendant further states to the Court that he is willing to pay the costs of such examination. (Signed ) Mark M. Hennelly; Attorney for Defendant , James William Stidham 1832 Arcade Building St. Louis 1, Missouri Chestnut 1-2242.” (Which said Motion to Suppress is in writing and appearing in the following words and figures, to-wit: ) = . 4 — 9s Mt in th te Le at a SOT cise Rh sich Nie SIN CORSA BREDA ge he = % sl ta Fn Dee eb ES abe | 2 eri ch dil Acs s eSB Al6 “IN THE CIRCUIT COURT OF COLE COUNTY, MISSOURI DECEMBER TERM, 1954 Filed Dec. 14, 1954 Guy M. Sone Clerk. State of Missouri, ) Plaintiff, ) VS. ) No. 5259 William R. Hoover, et al., ) Defendants. ) [17] MOTION OF DEFENDANT, JAMES WILLIAM STIDHAM TO SUPPRESS Defendant, James William Stidham, moves the Court to Suppress as evidence any and all statements claimed to have been made by this defendant to peace officers of the State of Missouri, to guards and officers of the Missouri State Penitentiary and to other officials of the State of Missouri and as grounds for this motion states: 1. All of the aforementioned alleged statements were involuntary and as a result of physical force and threats of physcial force applied against this defendant by police officers of the City of St. Louis, guards of the Missouri State Penitentiary and officers of the Missouri Highway Patrol. 2. The use of any of the aforementioned statements against this defendant would contravene his right to due processes of law as guaranteed by the due process clause of Article I section 10 of the Missouri Constitution and Amendment 14 of the United States Constitution, and would Al7 contravene his privileges against self-incrimination and as guaranteed by Article I Section 19 of the Missouri Con- stitution. 3 This defendant was further denied the assistance of counsel by not being permitted counsel at the time of the alleged statements in violation of Article I Section 18 (a) of the Missouri Constitution. (18] (Signed ) Mark M. Hennelly Attorney for Defendant James William Stidham 1832 Arcade Building St. Louis 1, Missouri Chestnut 1-2242.” AND THEREAFTER, to-wit, on December 20th, 1954, the following further proceedings were had herein: DECEMBER TERM 1954 MONDAY DECEMBER 20, 1994 State of Missouri, ) Plaintiff, ) vs. ) No. 5259 James William Stidham, ) Defendant. ) Now at this day Motion of Defendant James William Stidham, for a severance is by the Court taken up and granted. AND THEREAFTER, to-wit, on the same day, Decem- ber 20th, 1954, the following further proceedings were had herein: RAR BARE Als IN THE CIRCUIT COURT OF COLE COUNTY, MISSOURI DECEMBER TERM 1954 MONDAY DECEMBER 20, 1954 State of Missouri, ) Plaintiff, ) vs. —) No. 5259 James William Stidham, ) Defendant. ) Now at this day Motion of Defendant James William Stidham [19] to Dismiss is by the Court taken up and after hearing argument of counsel, doth overrule said Motion to Dismiss. AND THEREAFTER, to-wit, on the same day, Decem- ber 20th, 1954, the following further proceedings were had herein: IN THE CIRCUIT COURT OF COLE COUNTY, MISSOURI DECEMBER TERM 1954 MONDAY DECEMBER 20, 1954 State of Missouri, ) Plaintiff, ) VS. ) No. 5259 James William Stidham, ) Defendant. ) Now at this day Motion for Polygraph Examination by Defendant James William Stidham is by the Court taken up and after hearing argument of counsel, doth take said motion under advisement. AND THEREAFTER, to-wit, on the same date, De- cember 20th, 1954, the following further proceedings were had herein: Al1g IN THE CIRCUIT COURT OF COLE COUNTY, MISSOURI DECEMBER TERM 1954 MONDAY DECEMBER 20th, 1954 State of Missouri, ) Plaintiff, ) v6. ) No. 5259 James William Stidham, ; ) Defendant. ) [20] Now at this day Motion to Suppress by defend- ant James William Stidham is by the Court taken up and after hearing argument of counsel, doth overrule said Mo- tion to Suppress. AND THEREAFTER, to-wit, on the same day, the 0th day of December, 1954, the following further pro- ceedings were had herein: IN THE CIRCUIT COURT OF COLE COUNTY, MISSOURI DECEMBER TERM 1954 MONDAY DECEMBER 20, 1954 State of Missouri, ) Plaintiff, ) vs. ) No. 5259 James William Stidham, ) Defendant. ) Now at this day Motion for Production of Statement on behalf of Defendant James William Stidham is by the Court taken up and after hearing argument of counsel, doth take said Motion under advisement. AND THEREAFTER, to-wit, on the same day, Decem- ber 20th, 1954, the following further proceedings werc had herein: on SabhEA ane ins 4 SRT RNA AERA RE Ae atin ass 340 Nine Tee eit A20 IN THE CIRCUIT COURT OF COLE COUNTY, MISSOURI DECEMBER TERM 1954 MONDAY DECEMBER 20, 1954 State of Missouri, ) . Plaintiff, ) [21] vs. ) No. 5259 James William Stidham, ) Defendant. ) Now at this day it is ordered by the Court that De. fendant James William Stidham be granted until Decem- ber 24th, 1954, to file brief herein. AND THEREAFTER, to-wit, on Monday, December 20th, 1954, the following further proceedings were had herein: IN THE CIRCUIT COURT OF COLE COUNTY, MISSOURI DECEMBER TERM 1954 MONDAY DECEMBER 20, 1954 State of Missouri, ) Plaintiff, ) vs. - ) No. 5259 James William Stidham, ) Defendant. ) Now at this day it is ordered by the Court that the State of Missouri be granted leave to endorse the names of additional witnesses upon the Indictment. AND THEREAFTER, to-wit, on the same day, Decem- ber 20th, 1954, the following further proceedings were had herein: 2 A21 IN THE CIRCUIT COURT OF COLE COUNTY, MISSOURI DECEMBER TERM 1954 MONDAY DECEMBER 20, 1954 (22] State of Missouri, ) Plaintiff, ) vs. ) No. 5259 James William Stidham, ) Defendant. ) Now at this day it is ordered by the Court that the case of James William Stidham be set for trial on January 96th, 1955. AND THEREAFTER, to-wit, on December 23rd, 1954, the following further proceedings were had herein: IN THE CIRCUIT COURT OF COLE COUNTY, MISSOURI DECEMBER TERM 1954 THURSDAY DECEMBER 23, 1954 State of Missouri, ) Plaintiff, ) vs. ) No. 5259 James William Stidham, ) Defendant. ) Now at this day it is ordered by the Court that all applications for Polygraph Tests are overruled as to each Defendant who has filed same. AND THEREAFTER, to-wit, on January 3rd, 1955, the following further proceedings were had herein: hires URES st Sa hie aA Pea i eT ee ee ne Te A22 IN THE CIRCUIT COURT OF COLE COUNTY, MISSOURI [23] DECEMBER TERM 1954 MONDAY JANUARY 3, 1955 State of Missouri, ) Plaintiff, ) vs. ) No. 5259 James William Stidham, et al., ) Defendants. ) Now at this day it is ordered by the Court that rulings on Motions to Produce as per opinion filed this date. (See opinion ) AND THEREAFTER, on January 13th, 1955, the fol- lowing further proceedings were had herein: IN THE CIRCUIT COURT OF COLE COUNTY, MISSOURI DECEMBER TERM 1954 THURSDAY JANUARY 13, 1955 State of Missouri, ) Plaintiff, ) vs. ) No. 5259 James William Stidham, et al., ) . Defendants. ) Now at this day comes James T. Riley, Prosecuting Attorney, and confesses motions for production, hereto- fore argued on January 12th, 1955, and volunteers to pro- duce same within twenty-four hours. And now, the Court reconsiders the Motion of Defend- ant James William Stidham, and sets aside ruling hereto- fore made [24] herein. And now, comes the Prosecuting A23 Attorney and confesses motion of Defendant James William Stidham for production and volunteers to produce same within twenty-four hours. AND THEREAFTER, to-wit, on January 24th, 1955, the following further proceedings were had herein: IN THE CIRCUIT COURT OF COLE COUNTY, MISSOURI DECEMBER TERM 1954 MONDAY JANUARY 24, 1955 State of Missouri, ) Plaintiff, ) vs. ) No. 5259 James William Stidham, ) Defendant. ) Now at this day comes the defendant, James William Stidham, by his attorneys, and files his application for con- tinuance, which is presented and by the Court granted. It is further ordered by the Court that the cause of State of Missouri vs. James William Stidham be set for 9:00 A. M. on February 15th, 1955. AND THEREAFTER, said Motion of Defendant, James William Stidham for Continuance is in writing and ap- pearing in the following words and figures, to-wit: A24 “IN THE CIRCUIT COURT OF COLE COUNTY, STATE OF MISSOURI [25] Filed 1-24-55 Sam C. Blair Judge State of Missouri, ) Plaintiff, ) vs. ) William R. Hoover, et al., ) Defendants. ) MOTION OF DEFENDANT, JAMES WILLIAM STIDHAM FOR CONTINUANCE Defendant, James William Stidham, moves the Court to grant him a continuance in the above captioned cause and as grounds for this motion states: 1. On the basis of a copy of the written statement given the police by the defendant which was during the preceding week made available to defendant and his coun- sel certain depositions of endorsed State witnesses appear necessary in order that defendant may prepare a proper defense to the charges against him. 2. Due to the fact that one of defendant’s co-defend- ants is on trial at this time the attendant publicity and notoriety surrounding this matter will serve to re-arouse the citizens of this community and will create bias and A25 prejudice to such an extent that it will be impossible for the defendant to have a fair trial. (26] (Signed) Mark M. Hennelly William B. Kelleher Attorneys for Defendant 1832 Arcade Bldg., St. Louis, Mo.” AND THEREAFTER, to-wit, on February 14th, 1955, the following further proceedings were had herein: IN THE CIRCUIT COURT OF COLE COUNTY, MISSOURI FEBRUARY TERM 1955 MONDAY FEBRUARY 14, 1955 State of Missouri, ) Plaintiff, ) . vs. ) No. 5259 James William Stidham, ) Defendant. ) Now at this day comes James T. Riley, Prosecuting Attorney, and comes the defendant James William Stid- ham, by his attorney, William B. Kelleher, and files his application for change of venue and presents same to the Court, and the Court being advised in the matter, does deny said application for change of venue on ground affi- davits state no facts and Notice given at 4:45 P.M. on this date is insufficient, this cause being set for trial at 9:00 AM., February 16th, 1959. AND THEREAFTER, to-wit, on February 15th, 1955, the [27] following further proceedings were had herein: hog bead ea kt WA.GaS SSR Reet cae a oo Nae ee bl aha A casa as A26 IN THE CIRCUIT COURT OF COLE COUNTY, MISSOURI FEBRUARY TERM 1955 TUESDAY FEBRUARY 15, 1955 State of Missouri, ) Plaintiff, ) vs. ) No. 5259 James Wm. Stidham, ) Defendant. ) Now at this day comes the Defendant, James William Stidham, by his attorney William B. Kelleher, and files his Application for Change of Venue, at 1:45 P.M. this day, accompanied by affidavits. No notice given the prosecuting Attorney of intention to file this application until 1:30 P.M. this date. And now, comes the Defendant, by his attorney, and presents his application for Change of Venue to the Court at 1:45 P.M. this date, which is considered and by the Court denied for want of reasonable notice. (Which said Application and Affidavit for Change of Venue, together with Supporting Affidavits are in writ- ing and appearing in the following words and figures, to-wit: ) A27 “IN THE CIRCUIT COURT OF COLE COUNTY, MISSOURI RE-FILED Feb. 15, 1955 Filed at 4:40 P.M. 9-15-55 Guy M. Sone Sam C. Blair Clerk Judge [28] State of Missouri, ) Plaintiff, ) vs. ) No. 5259 William R. Hoover, et al, ) Defendants. ) To: The Hon. James T. Riley, Pros. Attorney, in and for the County of Cole, Missouri: Please take notice that the defendant, James W. Stid- ham, by his attorney, William Kelleher, will file in the above entitled cause his Application and Affidavit of five disinterested citizens, residing in different neighborhoods of this county this 15th day of February, 1955. AND PLEASE TAKE FURTHER NOTICE That on the 15th day of February, 1955. at 1 ocicck in the afternoon or as soon thereafter as counsel may be heard, the undersigned attorney for the defendant, will call up for hearing before the Hon. Sam C. Blair, the above Application and Affidavit of defendant, James W. Stid- ham. (Signed) William B. Kelleher Arcade Bidg., St. Louis, Mo. Received a copy of the foregoing Notice this Febru- ary 15th, 1955, at 6:40 P.M. (Signed) James T. Riley ee | pee ee BPE Ls Mg Bs A28 [29] IN THE CIRCUIT COURT OF COLE COUNTY, MISSOURI Re-filed , Filed 2-15-55 2-15 @ 4:40 P.M. Sam C. Blair Guy M. Sone Judge Clerk State of Missouri, ) Plaintiff, ) vs. ) No. 5259 William R. Hoover, et al., ) Defendants. ) APPLICATION AND AFFIDAVIT FOR CHANGE OF VENUE Now comes James W. Stidham, defendant in the above entitled cause and states that by indictment of Novem- ber 23, 1954, charging this defendant with first degree murder of one Walter Lee Donnell, this defendant will be tried and held to answer said Indictment as provided by Law; and by this application and affidavit for change of venue states that this affiant has good reason and does believe that he cannot have a fair and impartial trial in said cause in Cole County, Missouri for the reasons that newspapers, television, radio, magazines and other man- ner and means of disseminating stories about this defend- ant have caused the minds of citizens of Cole County to be biased and prejudiced against this defendant; that the outcome and publicity arising out of the trial of State of Missouri vs. Donald DeLapp, concluded January 28th, 1955, has caused bias and prejudice in the minds of the citizens [30] of Cole County against this defendant; that the above facts have become known to this defendant, first, within the past three days preceding the filing of A29 this application and affidavit and during all of the above time this defendant has been confined and in custody at the Missouri State Penitentiary. (Signed) James W. Stidham STATE OF MISSOURI ) ) ss. COUNTY OF COLE ) James W. Stidham, being first duly sworn, on his oath, states that he has signed the above Application and Affi- davit for Change of Venue and that the facts stated therein are true to his best knowledge and belief and believes that he cannot have a fair and impartial trial because the minds of the inhabitants and citizens of Cole County, Mis- souri, are prejudiced and biased against him. (Signed) James W. Stidham Witness my hand and seal February 15th, 1955. (Signed) W. C. Sanders (Seal) Notary Public. My Com. Exps. February 15, 1958. A30 [31] “IN THE CIRCUIT- COURT OF COLE COUNTY, MISSOURI Re-filed Filed Feb. 15, ’55 2-15-55 @ 4:40 P.M. Sam C. Blair Guy M. Sone Judge Clerk STATE OF MISSOURI, a) Plaintiff, ) vs. ) No. 5259 WILLIAM R. HOOVER, et al. ) Defendants. ) ‘ AFFIDAVIT IN SUPPORT OF APPLICATION OF DEFENDANT JAMES WM. STIDHAM FOR A CHANGE OF VENUE Comes now Mrs. H. J. Schulte, a credible disinter- ested citizen residing in the Marion Township neighbor- hood of Cole County, Missouri, being duly sworn, deposes ‘ and says that she has discussed with citizens of the neigh- ; borhood in which she resides and has heard discussed by citizens in the neighborhood in which she resides the charge or charges made against defendant James William Stidham in the above captioned case and also other charges made by the State of Missouri against other in- mates of the Missouri State Penitentiary at Jefferson City, 4 Missouri, arising out of incidents and events which oc- curred at said Penitentiary on September 22 and 23, 1954, and that the comments, opinions and conclusions of citi- zens residing in the Marion Township neighborhood are unfavorable concerning the said James William Stidham and other inmates of the Missouri [32] State Penitentiary against whom criminal charges have been made for and arising out of events and incidents which occurred at said MS REET paees A31 penitentiary on the dates aforesaid; that, generally, the citizens of said neighborhood express the opinion or con- clusion that defendant James William Stidham and other inmates of said penitentiary charged by the State of Mis- souri with crimes arising out of said events and incidents are guilty of the crimes charged and should be severely punished for said crimes; and that, generally, there pre- vails among the citizens of said neighborhood hostility and bias against defendant James William Stidham and other inmates of said penitentiary charged with crimes arising out of said incidents and events, with reference to their guilt or innocence of said charges. WHEREFORE, your affiant says that he verily be- lieves that the minds of the citizens of Cole County, Mis- souri, are so prejudiced against the defendant that the defendant cannot have a fair trial in said County of the charges brought against him in the above captioned case. Your affiant says further that she is not related by blood or marriage to or of counsel for the defendant James Wil- liam Stidham. Dated this 15th day of February, 1955. /s/ Mrs. H. J. Schulte Route 5 Jefferson City, Mo. [33] STATE OF MISSOURI ) ) ay COUNTY OF COLE ) Subscribed and sworn to February 15th, 1955, before me, a Notary Public in and for Cole County, Missouri. My commission expires February 15, 1958. (Signed ) W. C. Sanders (Seal) Notary Public.” A32 “IN THE CIRCUIT COURT OF COLE COUNTY, MISSOURI Re-filed Filed Feb. 15, ’55 2-15-55 @ 4:40 P.M. Sam C. Blair Guy M. Sone Judge Clerk STATE OF MISSOURI, ) Plaintiff, ) vs. ) No. 5259 WILLIAM R. HOOVER, et al., ) Defendants. ) AFFIDAVIT IN SUPPORT OF APPLICATION OF DEFENDANT James Wm. Stidham FOR A CHANGE OF VENUE Comes now James H. Brand, a credible disinterested citizen residing in the Liberty Township neighborhood of Cole County, Missouri, being duly sworn, deposes and says that he has discussed with citizens of the neighbor- : hood in which he resides and has heard discussed by citi- 4 zens in the neighborhood in which he resides the charge 4 or charges made against defendant James William Stid- ham in the above captioned case and also [34] other charges made by the State of Missouri against other in- mates of the Missouri State Penitentiary at Jefferson City, Missouri, arising out of incidents and events which oc- curred at said penitentiary on September 22 and 23, 1954, : and that the comments, opinions and conclusions; of citi- é zens residing in the Liberty Township neighborhood are unfavorable concerning the said James William Stidham ; and other inmates of the Missouri State Penitentiary against whom criminal charges have been made for and arising out of events and incidents which occurred at said phils De i Se ora A33 penitentiary on the dates aforesaid; that, generally, the citizens of said neighborhood express the opinion or con-. clusion that defendant James William Stidham and other inmates of said penitentiary charged by the State of Mis- souri with crimes arising out of said events and incidents are guilty of the crimes charged and should be severely punished for said crimes; and that, generally, there pre- vails among the citizens of said neighborhood hostility and bias against defendant James William Stidham and other inmates of said penitentiary charged with crimes arising out of said incidents and events, with reference to their guilt or innocence of said charges. WHEREFORE, your affiant says that he verily be- lieves that the minds of the citizens of Cole County, Mis- souri, are so prejudiced against the defendant that the defendant cannot have a fair trial in said County of the charges brought against [35] him in the above captioned case. Your affiant says further that he is not related by blood or marriage to or of counsel for the defendant James William Stidham. Dated this 15th day of February, 1955. (Signed ) James H. Brand RR #3, Jefferson City, Mo. STATE OF MISSOURI ) ) SS. COUNTY OF COLE ) Subscribed and sworn to February 15th, 1955, before me, a Notary Public in and for Cole County, Missouri. My commission expires February 15, 1958. (Signed) W. C. Sanders (Seal) Notary Public.” iotebe aac RTL Maa i IRR: 7 A34 “IN THE CIRCUIT COURT OF COLE COUNTY, MISSOUR] Re-filed Filed Feb. 15, ’55 . 2-15-55 @ 4:40 P.M. Sam C. Blair Guy M. Sone Judge Clerk © STATE OF MISSOURI, ) Plaintiff, ) vs. ) No. 5259 WILLIAM R. HOOVER, ET AL ) Defendants. ) AFFIDAVIT IN SUPPORT OF APPLICATION OF DEFENDANT JAMES WM. STIDHAM FOR A CHANGE OF VENUE [36] Comes now Charles J. Kolb, a credible disinter- ested citizen residing in the Jefferson Township neigh- borhood of Cole County, Missouri, being duly sworn, deposes and says that h® has discussed with citizens of the neighborhood in which he resides and has heard dis- cussed by citizens in the neighborhood in which he resides the charge or charges made against defendant James Wil- liam Stidham in the above captioned case and also other charges made by the State of Missouri against other in- mates of the Missouri State Penitentiary at Jefferson City, Missouri, arising out of incidents and events which oc- curred at said penitentiary on September 22 and 23, 1954, and that the comments, opinions and conclusions of citi- zens residing in the Jefferson Township neighborhood are unfavorable concerning the said James William Stidham and other inmates of the Missouri State Penitentiary against whom criminal charges have been made for and arising out of events and incidents which occurred*at said A35 penitentiary on the dates aforesaid; that, generally, the citizens of said neighborhood express the opinion or con- clusion that defendant James William Stidham and other inmates of said penitentiary charged by the State of Mis- souri with crimes arising out of said events and incidents are guilty of the crimes charged and should be severely punished for said crimes; and that, generally, there pre- vails among the citizens of said neighborhood hostility and bias against defendant James William Stidham and other inmates of said penitentiary [37] charged with crimes arising out of said incidents and events, with ref- erence to their guilt or innocence of said charges. WHEREFORE, your affiant says that he verily be- lieves that the minds of the citizens of Cole County, Mis- souri, are SO prejudiced against the defendant that the defendant cannot have a fair trial in said County of the charges brought against him in the above captioned case. Your affiant says further that he is not related by blood or marriage to or of counsel for the defendant James Wil- liam Stidham. Dated this 15th day of February, 1955. (Signed) Charles J. Kolb Rt. #4 Jefferson City, Mo. STATE OF MISSOURI ) ) SS. COUNTY OF COLE ) Subscribed and sworn to February 15th, 1955, before me, a Notary Public in and for Cole County, Missouri. My commission expires February 15, 1958. (Signed ) W. C. Sanders (Seal) Notary Public.” * ¥ 4 BY ee “ie SR TAY BPs desiicercnin: Beene 4 A36 “IN THE CIRCUIT COURT OF COLE COUNTY, MISSouRI Re-filed Filed Feb. 15, ’55 2-15-55 @ 4:40 P.M. Sam C. Blair Guy M. Sone Judge Clerk [38] STATE OF MISSOURI, ) Plaintiff, ) vs. ) No. 5259 WILLIAM R. HOOVER, ET AL ) Defendants. ) AFFIDAVIT IN SUPPORT OF APPLICATION OF DEFENDANT JAMES WM. STIDHAM FOR A CHANGE OF VENUE Comes now Norbert Schellman, a credible disin- terested citizen residing in the Jefferson Township neigh- borhood of Cole County, Missouri, being duly sworn, de- poses and says that he has discussed with citizens of the neighborhood in which he resides and has heard discussed by citizens in the neighborhood in which he resides the charge or charges made against defendant James William Stidham in the above captioned case and also other charges made by the State of Missouri against other in- mates of the Missouri State Penitentiary at Jefferson City, Missouri, arising out of incidents and events which oc- curred at said penitentiary on September 22 and 23, 1954, and that the comments, opinions and conclusions of citi- zens residing in the Jefferson Township neighborhood are unfavorable concerning the said James William Stidham and other inmates of the Missouri State Penitentiary against whom criminal charges have been made for and arising out of events and incidents which occurred at said Cm) A37 penitentiary on the dates aforesaid; that, generally, the citizens of said neighborhood express the opinion or [39] conclusion that defendant James William Stidham and other inmates of said penitentiary charged by the State of Missouri with crimes arising out of said events and incidents are guilty of the crimes charged and should be severely punished for said crimes; and that, generally, there prevails among the citizens of said neighborhood hostility and bias against defendant James William Stid- ham and other inmates of said penitentiary charged with crimes arising out of said incidents and events, with reference to their guilt or innocence of said charges. WHEREFORE, your affiant says that he verily be- lieves that the minds of the citizens of Cole County, Mis- souri, are so prejudiced against the defendant that the defendant cannot have a fair trial in said County of the charges brought against him in the above captioned case. Your affiant says further that he is not related by blood or marriage to or of counsel for the defendant James Wil- liam Stidham. Dated this 15th day of February, 1955. (Signed ) Norbert J. Schellman 52314, Madison Street Jefferson City, Mo. STATE OF MISSOURI ) ) SS. COUNTY OF COLE ) Subscribed and sworn to February 15th, 1955, before me, a Notary Public in and for Cole County, Missouri. [40] My commission expires February 15, 1958. (Signed) W. C. Sanders (Seal) Notary Public.” . — A38 “IN THE CIRCUIT COURT OF COLE COUNTY, MISSOURI Re-filed Filed 4 Feb. 15, ’55 2-15-55 - ; @ 4:40 PM. Sam C. Blair 3 Guy M. Sone Judge ; Clerk ij STATE OF MISSOURI, ) 4 Plaintiff, ) : vs. ) No. 5259 5 WILLIAM R. HOOVER, ET AL, ) j Defendants. ) d AFFIDAVIT IN SUPPORT OF APPLICAT@®N OF DEFENDANT JAMES WM. STIDHAM FOR A CHANGE OF VENUE Comes now C. J. Cremer, a credible disinterested citizen residing in the Moreau Township neighborhood of Cole County, Missouri, being duly sworn, deposes and says that he has discussed with citizens of the neighbor- hood in which he resides and has heard discussed by citizens in the neighborhood in which he resides the charge or charges made against defendant James William Stidham in the above captioned case and also other charges made by the State of Missouri against other inmates of the Missouri State Penitentiary at Jefferson City, Missouri, arising out of incidents and events which occurred at said [41] penitentiary on September 22 and 23, 1954, and that the comments, opinions and conclusions of citizens re- siding ‘in the Moreau Township neighborhood are un- favorable concerning the said James William Stidham and other inmates of the Missouri State Penitentiary against whom criminal charges have been made for and arising out of events and incidents which occurred at said A39 penitentiary on the dates aforesaid; that, generally, the citizens of said neighborhood express the opinion or con- clusion that defendant James William Stidham and other inmates of said penitentiary charged by the State of Mis- souri with crimes arising out of said events and incidents are guilty of the crimes charged and should be severely pun- ished for said crimes; and that, generally, there prevails among the citizens of said neighborhood hostility and bias against defendant James William Stidham and other inmates of said penitentiary charged with crimes arising out of said incidents and events, with reference to their guilt or innocence of said charges. WHEREFORE, your affiant says that he verily be- lieves that the minds of the citizens of Cole County, Mis- souri, are so prejudiced against the defendant that the de- fendant cannot have a fair trial in said County of the charges brought against him in the above captioned case. Your affiant says further that he is not related by blood or marriage to or of counsel for the defendant James Wil- liam Stidham. [42] Dated this 15th day of February, 1955. (Signed ) C. J. Cremer Russellville, Mo. KG IM ‘yt peak ae RE er Seine SAR RUACARI AAA ree NA eS at ee A40 STATE OF MISSOURI ) ) SS. COUNTY OF COLE ) Subscribed and sworn to February 15th, 1955, before me, a notary public in and for Cole County, Missouri, My commission expires February 15, 1958. (Signed) W. C. Sanders (Seal) Notary Public.” AND THEREAFTER, to-wit, on the same day, Feb- ruary 15, 1955, the following further proceedings were had herein: IN THE CIRCUIT COURT OF COLE COUNTY, MISSOURI FEBRUARY TERM 1955 TUESDAY FEBRUARY 15, 1955 State of Missouri, ) Plaintiff, ) vs. ) No. 5259 James William Stidham, ) Defendant. ) Now at this day comes the Defendant, James William Stidham, by his attorney, and files his Affidavit for Dis- qualification of Judge, at 4:45 P.M. this date. [43] (Which said Affidavit for Disqualification of Judge is in writing and appearing in the following words and figures, to-wit: ) A41 “IN THE CIRCUIT COURT OF COLE COUNTY, MISSOURI Filed Feb. 15, 1955 @ 4:45 P.M. Guy M. Sone Clerk. State of Missouri, ) Plaintiff, ) vs. ) No. 5259 William R. Hoover, et al., ) Defendants. ) AFFIDAVIT FOR DISQUALIFICATION OF JUDGE BY JAMES W. STIDHAM Comes now James W. Stidham, and who after being " first duly ‘sworn, upon his oath, deposes and says that the Hon. Sam C. Blair, Circuit Judge of the County of Cole, Missouri, cannot conduct a fair and impartial trial | in this cause by reason of his interest or prejudice, as this affiant verily believes. . Dated this 15th day of February, 1955. (Signed) James W. Stidham, Defendant * ct — A42 \ STATE OF MISSOURI ) ) SS. COUNTY OF COLE ) Subscribed and sworn to before me by. the said James W. Stidham, this 15th. day of February, 1955. [44] (Signed) ; Marion J. Stewart 3 (Seal ) Notary Public, Cole County, Mo. My commission expires Feb. 1, 1956.” AND THEREAFTER, to-wit, on the same day, Feb- ruary 15, 1955, the following further proceedings were had herein: od Sima nt Ne 7 IN THE ; CIRCUIT COURT OF COLE COUNTY, MISSOURI FEBRUARY TERM 1955 : TUESDAY FEBRUARY 15, 1955 : State of Missouri, : ) ‘ Plaintiff, ) ‘ vs. ) No. 5259 James William Stidham, ) Defendant. ) Now at this day comes the defendant, James William Stidham, by his attorney, and refiles his Notice, Ap- i plication for Change of Venue, together with supporting ‘ affidavits. ae (Which said Notice, Application for Change of Venue and Supporting affidavits are set forth within this — script and are not re-copied) $0 3 A43 AND THEREAFTER, to-wit, on February 16th, 1955, the following further proceedings were had herein: IN THE CIRCUIT COURT OF COLE COUNTY, MISSOURI [45] FEBRUARY TERM 1955 WEDNESDAY FEBRUARY 16, 1955 State of Missouri, ) Plaintiff, ) , vs. ) No. 5259 James William Stidham, ) Defendant. ) Now at this day comes the Defendant, James William Stidham, by his attorney, and presents his application to disqualify the regular Judge of this Court and same is granted. And now, the Judge of this Court notifies the.Supreme Court and the Chief Justice thereof that the administra- tion of Justice requires transfer of a Circuit Judge to this Court to try this cause, and said cause is set for trial at 9:00 A.M.; March Ist, 1955. AND THEREAFTER, TO-WIT, ON February 22nd, 1955, the following further proceedings were had herein: : = A44 IN THE CIRCUIT COURT OF COLE COUNTY, MISSOURI FEBRUARY TERM 1955 TUESDAY FEBRUARY 22nd, 1955 4 State of Missouri, ) 4 Plaintiff, ) : vs. ) No. 5259 4 James William Stidham, ) i Defendant. ) : Now at this day Order of the Supreme Court of Mis- j souri [46] transferring Hon. George P. Adams, Regular ; Judge of the 11th Judicial Circuit, to this Court to hear j case of State of Missouri vs. James William Stidham, is j received and filed. : (Which said order is in writing and appearing in the ; following words and figures, to-wit: ) i “IN THE ; SUPREME COURT OF MISSOURI 5 EN BANC i Friday, February 18, 1955 $ j Filed } Feb. 22, 1955 Guy M. Sone, Clerk. In the Matter of the Temporary _) Transfer of Judicial Personnel ) WHEREAS, the Honorable Sam C. Blair, Judge of the 14th Judicial Circuit of Missouri, has been disqualified to sit and hear the case of State vs. James William Stidham, A45 No. 5259, now pending in the Circuit Court of Cole County, Missouri, and has requested the Temporary transfer of a Circuit Judge to said Court to hear said cause; It is therefore ordered, under Article V, Section 6, Constitution of Missouri, 1945, and Rule 11 of this Court, that Honorable George P. Adams, Judge of the 11th Ju- dicial Circuit of Missouri, be and he is hereby temporarily transferred to said 14th Judicial Circuit, to hear the case of State vs. James William Stidham, No. 5259, now pend- ing in the Circuit Court of Cole County, Missouri; and that such transfer shall [47] remain in effect for the making of any and all orders or the taking of other pro- ceedings that may be required of the trial judge in said cause heard by him. STATE OF MISSOURI—SCT: I, Marion Spicer, Clerk of the Supreme Court of Missouri, do hereby certify that the foregoing is a true copy of the order transferring judicial personnel on the 18th day of February, 1955, as fully as the same appears on file in my office. , IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said Supreme Court. Done at office in the City of Jefferson, State aforesaid, this 21st day of February, 1955. (Signed ) Marion Spicer, Clerk.” AND THEREAFTER, to-wit, on February 25th, 1955, the following further proceedings were had herein: A46 IN THE CIRCUIT COURT OF COLE COUNTY, MISSOURI FEBRUARY TERM 1955 FRIDAY FEBRUARY 25, 1955 State of Missouri, ) ‘ Plaintiff, ) vs. ) No. 5259 James William Stidham, ) Defendant. ) [48] Now at this day Hon. George P. Adams, Judge of the Eleventh Judicial Circuit of Missouri, and trans- ferred to this Court for trial of this cause, assumes the Bench. And now, comes the Defendant, James William Stid- ham, by his attorney, William Kelleher, and presents his ‘Notice, Application and Affidavit for Change of Venue, together with Affidavits in Support of Application for Change of Venue. It is ordered by the Court that change of venue be granted to the Defendant, James William Stidham, to the Circuit Court of Butler County, Missouri, returnable there on the first Monday in April, 1955, the same being the first day of the April Term, 1955, of the Circuit Court of that County. This order is made on the application of the Defendant, James William Stidham, and on the ground he asserts that the minds of the inhabitants of this County are so prejudiced against him that he cannot have a fair trial in this County and this order is made during the Regular February Term, 1955, of this Court. The Court finds that the Defendant, James William Stidham, is in confinement and the Sheriff of this County hereby is Commanded to transfer the Defendant, James A47 William, to the Butler County, Missouri, Jail, and there deliver him to the keeper of such jail, together with the warrant or process by virtue of which the defendant is held under this charge. (49| It is further ordered by the Court that the Clerk shall make out at once a complete transcript of all of the records and proceedings in this cause, including this order of removal, and the application for it, and he shall certify and transmit the same to the Clerk of the Circuit Court of Butler County, Missouri, and take his receipt therefor. IN THE CIRCUIT COURT OF COLE COUNTY, MISSOURI DECEMBER TERM 1954 TUESDAY JANUARY 18th, 1955 State of Missouri, ) Plaintiff, ) vs. ) No. 5259 James William Stidham, et al., ) Defendants. ) On this 18th day of January, 1955, it is ordered that a Special Venire issue directing the Sheriff to summon Thirty (30) additional jurors for service on the present panel and to supplement the same during the trial to take place in the above styled cause. (Signed ) Sam C. Blair, Judge of the Circuit Court of Cole County, Missouri. Ot ae seen A48 And thereafter to-wit: On the 5th day of March, 1955, the following order was entered of record: [50] Miscellaneous Record, Circuit Court, Butler County, Missouri Saturday, March 5th, 1955, In Recess, (Book 10, page 382) — Now on this 5th day of March, 1955, this cause of action is filed in this Court on a Change of Venue from the Circuit Court of Cole County, Missouri. And thereafter to-wit: On the 4th day of April, 1955, the following order was entered of record: Circuit Court Record, Butler County, Missouri (Book 62, page 268) Monday April 4th, 1955, Regular April 1955 Term Now on this day, this cause being brought to the at- tention of the Court, the Court finds the defendant having previously entered a plea of Not Guilty and now demand- ing trial therein and counsel for the State and for the de- fendant having previously indicated their preference for a setting herein, this cause is by mutual consent set for April 25th, 1955, for trial. It is ordered by the Court that a Special Venire of 25 jurors be ordered herein to provide for the panel re- quired by law. And thereafter to-wit: On the 19th day of April, 1955, the following order was entered of record: [51] \Circuit Court Record, Butler County, Missouri (Book 62, page 310) Tuesday, April 19th, 1955, Regular April 1955 Term Now on this day, comes the defendant herein, by counsel Mark Murray Hennelly, and leave of Court first had and obtained, moves the Court for Subpoena for A49 Records of Defendant, Register No. H4H relative to phy- ical examination of defendant, dated September 29 and 30, 1954, directed to the U. S. Medical Center for Federal Prisoners, Springfield, Missouri. ‘And the Court after due consideration, and being now fully advised, does make the order that said Motion be and the same is hereby sus- tained, and Subpoena Duces Tecum is ordered thereon. Now comes the defendant hetein, by counsel Mark Murray Hennelly, leave of Court first had and obtained, and files Separate Applications for Writs of Habeas Cor- pus Ad Testificandum for the following prisoners alleged to be incarcerated in the Missouri State Penitentiary: Cecil Lillybridge; William Douglas; Hugh Van Buskirk; Robert Smedley; Elvin Carroll; Jim Harris; James Black; Virgil Hacker; Bob Wilkerson; Baldy ‘Holloway; Ben Griffin; Woody Burnett; Warren Kammer; Louis Miller; Samuel Norbert Reese; Leon Wade; Donald Lyons; Jolin Reid; Marion Crabtree; Silas Varner and J. D. Brooks. Said Application being in due form, it is ordered by the court that they be sustained and Writ of Habeas Corpus Ad Testificandum ordered to issue to the Warden of Mis- souri State Penitentiary [52] for each of the above named parties, for their Production and appearance herein in this cause, as witnesses, and the Sheriff of Butler County, Missouri, is ordered to serve said Writs. And thereafter to-wit:. On the 25th day of April, 1955, the following order was entered of record: Circuit Court Record, Butler County, Missouri (Book 62, page 317) Monday, April 25th, 1955, Regular April 1955 Term : Now at this time, the Court excuses, for cause, the following jurors from the ‘panel: Ernie C. Dunn, George Gregory, William Stephens, and. J. D. Snider and L. T. Metz, Jr., before the jury is empaneled and sworn and for reasons stated into the record. A50 Now on this day, comes the parties herein, Prosecuting Attorney for the State, James T. Riley, and the defendant herein, in person, in the custody of the Sheriff of this County, and in the presence of his counsel, Mark Murray Hennelly, whereupon both defendant and his said counsel being present in open Court, defendant waives formal arraignment, and enters a plea of Not Guilty to the charge of Murder. And this cause coming on to be heard, the same being the day on which this cause has been set for trial, the said parties herein, announce ready for trial and thereupon issues being joined comes now a jury summoned herein, to-wit: Hobert Fowler; Marshall Johnson; [53] W. L. Allison; Floyd Walker; Lydle Beardon; James Hawkins; Paul Baumgardner; A. C. King, Jr.; Charles Ijames; L. C. Fuller; Robert Snider and George Williams, (12) good and lawful men of and from the body of Butler County who are duly selected, impaneled, and sworn to well and truly try the issues now joined herein and a true verdict © render to the Court in accordance with the law and the evidence in the case. Jurors, Irene Eudaley, Allen Garner, Sr., Henry Black- man, Mrs. G. R. Saracini, C. C. Cope, Ed Forrest, Roy Bagents, Glen Terry are excused upon Qualifications on the death penalty. Juror, Eldon Gourley is excused be- cause of reasons stated to the Court upon Examination. At this time, -he jury panel is continued during the Noon Recess and this cause is laid over to 1 o'clock. The Noon Recess being over, and it now being 1 o- clock, the trial in this cause umed and now comes the defendant, by counsel, and leave of Court first had and obtained, dismisses Louis Miller, Ben Griffin, Leon - Wade and Jim Harris, as witnesses and for whom Writs of Habeas Corups Ad Testificandum have previously been A51 issued and Sheriff is ordered by the Court to notify the Warden thereof and not to produce said witnesses so dis- missed therein. Whereupon, the jury is challenged, selected and sworn to try the issues herein, and trial by jury proceeds and progresses in the hearing of the evidence in this cause. Now [54] comes the Prosecuting Attorney for the State, leave of Court first had and obtained, and asks and is granted the rule on witnesses. Opening statement is made by the State. Now comes the defendant herein and waives his opening statement. Now at this time, the Court learns of newspaper being read by the jury carrying an account of the trial, during the supper recess, and upon examination of the jury by the Court, and upon the Motion of defendant, by counsel, 4 mis-trial is declared herein in this cause. It is ordered by the Court that this cause be continued for this term and is ordered set for the week of July 18th, 1955, for trial herein. Now at this time, the defendant being under sentence to the Missouri State Penitentiary on another charge and having been sentenced thereto and now being under sen- tence of confinement therein, and because the Court feels and determines for security reasons that the jail and facilities of this county are not, or may not prove to be adequate, the defendant is ordered remanded to the Mis- souri State Penitentiary, to await trial herein and upon orders of this Court for his return for trial, to this Court. It is further shown that the defendant personally requests his return to the State Penitentiary to await trial herein. And thereafter to-wit: On the 5th day of July, 1955, [55] the following order was entered of record: A52 Circuit Court Record, Butler County, Missouri (Book 62, page 389) Tuesday, July 5th, 1955, Regular July 1955 Term Now on this day, it is ordered by the Court that a Special Venire of twenty-five (25) jurors be ordered to complete the panel of jurors in this cause. 4 And thereafter to-wit: On the 14th day of July, 1955, the following order was entered of record: Miscellaneous Record, Circuit Court, Butler County, Mis- souri Thursday, July 14th, 1955, In Recess, (Book 10, page - | 458A ) 22 Shas aot Now on this 14th day of July, 1955, in vacation of Court, Petitions for Writ of Habeas Corpus Ad Testifican- dum and by the defendant for Woody Burnett, John Reid, Donald Lyons and Marvin Crabtree, same is taken up by the Court, and after due consideration by the Court, it is ordered that said petitions be sustained and writs are or- dered to issue therefor to the Warden of the State Peni- a tentiary for their production in this Court during the trial of this cause, beginning on July 18th, 1955, Boe eden Ga ah SRO = eet ST AMNERAT Subpoena Duces Tecum for Mr. Joseph Lamar, a cus- todian of Identification Section of the Missouri State Peni- tentiary to bring records of Clarence Dietzel and Joseph Lamar, including [56] days employed and employment records for October and November, 1954, all payments made and vouchers of any expense during said months and all records of Walter Lee Donnell, including personal records and classification records and his death certificate, is hereby ordered upon the application of the Défendant. Pee ee » aunts % j 4 # § Sy 4 3 F TERE See yank A53 And thereafter to-wit: On the 18th day of July, 1955, the following order was entered of record: Circuit Court Record, Butler County, Missouri (Book 62, page 426) Monday, July 18th, 1955, Regular July 1955 Term IN THE MATTER OF THE JURY: Now on this day, comes the Sheriff of Butler County, Missouri, and files his report of Special Venire in the case of State of Missouri vs James William Stidham, Case No. 3158. Now on this day, this cause is called by the Court, and comes the Prosecuting Attorney of Cole County, Mis- souri, for the State, and comes the defendant herein, in person and by his counsel, Mark Murray Hennelly, and said parties announce ready for trial. Jurors Flanigan, Cecil Hayes, Belva Hayes, Rhodes, Pigg, Anderson, Faith and Johnson are excused by the Court for failure to qualify on the death penalty. Geneva Arrington excused by the Court upon her request. Oliver Chambers excused [57] because of a hearing defect and Troy Pruitt excused because of his health. Venire of 30 Jurors is completed. Thereupon challenges are made of the jury and comes now a jury summoned herein to-wit: Orville Clark; Clarence Davidson; T. M. Walton; Eugene Barker; John Sparkman; Elvis Hinton; Sam Stilley; Clyde Crawford; James Sentell; Lloyd Surber; Connie Fredwell and Herbert Gaebler, (12) good and lawful men /from the body of Butler County who are duly sel , im- paneled, and sworn to well and truly try the issues now joined herein and a true verdict render to the Court in accordance with the Law and the evidence in the case, and trial by the jury proceeds in the hearing of the evi- dence. A54 “ [58] BE IT REMEMBERED, that on the 18th day of July, 1955, the above entitled cause came on for trial be. fore the HONORABLE RANDOLPH H. WEBER, Judge of the Circuit Court of the 33rd Judicial Circuit, Poplar Bluff, Missouri, and a Jury, and the following proceedings were had: An opening statement was made by Mr. Riley. MR. HENNELLY: The Defendant will reserve an opening statement [59] until the close of the State’s Case, THE COURT: The record may show that Defend- : ant’s opening statement is reserved until the close of the | State’s Case. Who do you have first? MR. RILEY: Call Sergeant Nash. ‘ SERGEANT E. V. NASH, | BEING SWORN, TESTIFIED: Direct Examination, by Mr. Riley Q. Will you state your name please? A. E. V. Nash. Q. By whom are you employed? A. State ad Patrol of Missouri. Q. What is your rank sir? A. ocasant. Q. Where are you stationed? A. At General Head- quarters at Jefferson City, Missouri. j Q. How long have you been on the Patrol Sergeant? _ A. Thirteen years. Q. Were you in the Penitentiary on the morning of September 23, 1954? A. Yes, sir. Q. Were you in B Basement? A. I was. Q. What was your employment prior to going on the Patrol Sergeant? {[60] MR. HENNELLY: Object to that Your Honor, that would be totally irrelevant— A55 THE COURT: What would be the purpose Mr. Riley? Q. Just to identify him, it don’t make any difference. THE COURT: All right, sustained. I thought may- be it was in connection with some discussion. Q. Will you mark this Exhibit 1? Reporter marked Exhibit 1, a plat. Q. Sergeant, I show you what has been marked as State’s Exhibit No. 1, and I will ask you to identify that. A. That is a drawing I have made of the B basement of the State Penitentiary. Q. And that correctly shows the physical setup there inthe basement? A. Yes, it does. Q. Does it show-the various windows and doors? A. ~ Shows the various doors. I eliminated the windows from the sides. Q. Is that the physical make-up of B basement on the morning of September 23, 1954? A. Yes, it does. Q. If the Court please, at this time, we offer Exhibit 1 into evidence. MR. HENNELLY: Object and except to the intro- duction of the exhibit, State’s Exhibit 1, because it is hear- say and no proper [61] foundation has been laid for its introduction at this point, and it contains certain elements of hearsay and there has been no foundation laid as to the time; place and circumstances under which it was made, and there is certain writing and indications on the exhibit which in and of themselves are hearsay, and to introduce it under this situation would be a violation of the Con- stitutional rights of this Defendant. THE COURT: I believe the exhibit should be further identified as to directions and measurements and matters conteined in these legends here and notations, so that this witness, this Court may determine whether or not this witness knows those things to be a fact, and then I will further consider the acceptance in evidence of this exhibit. : aa a : A56 Q. Did you make the measurements in the base ment? A. Yes, sir, I did. Q. And at the time you made these measurements, the physical structure was the same as it was on Septem- ber 23rd? A. Yes, sir. Q. Now, are those measurements reflected that you made, are they reflected on this chart? A. Yes, sir, they are. . Q. And you have some figures here, 17, 18 and some on up to 32, what do they represent? A.- That indicates the numbering of the cells. THE COURT: Are those the numbers they bore on that date? [62] A. Yes, sir. THE COURT: All right. MR. RILEY: And do you have notations here? A. Yes, sir. Q. Does that represent the separations between the cells? A. Yes, it does. Q. Is that correctly shown jn this writing down here? A. Yes, sir, it is. THE COURT: Does that nena the separation between all of them? A. Yes, sir. : Q. Separating the same? A. The separation is the same, yes, sir. : Q. And you have a notation here, now does this, as to cell bars, is that the same entire length? A. Yes, it is. Q. And you have a notation here as to metal screens, are they the same measurements on all cells? A. Yes, sir, they are. Q. You have a number here, No. 1, 2 and 3, are they explained here in your writing below? A. Yes, sir, they are. Rex. A57 MR. HENNELLY: Certainly object to that section as being a conclusion, if Your Honor please, and object to the form of that question, whether or not they explain it, ang it invades [63] the province of the jury, and it is hear- say. : THE COURT: May I see it please? I didn’t read what was on there. Well, I think the information ought to be testified about, rather than— He can tell whether he put that on this plat. Q. All right. Now Sergeant, as you look at this plat, in this direction, which way is that facing? A. Generally east. Q. And which way is this? A. That would be south. ) Q. Andthis? A. North. Q. Andthis? A. West. Q. Anything else? THE COURT: Yes, the, objection was made to his statement with reference to the legend which he hasn’t testified about. There are statements there as to the measurements, etc., and he hasn’t testified about those measurements, what is contained in that legend on the bottom. Q. Now, this legend down here Sergeant, did you de- termine the information contained in Item 1 on this legend? A. Yes, I have had occasion to go through each of the gates and I know it takes a different set of keys to — go through. Q. Now, on Item No. 2, did you measure the doors? A. Yes, sir, I measured them both opened and closed, and also the area that is stable, that is not movable. [64] Q. Now, on Item No. 3, did you measure the distance from the steel bar enclosure, to the entrance wall? A. Yes, sir, I did. Q. Did you measure— THE COURT: What is that distance? A58 A. That is four feet sir. Q. On Itern No. 4, did you measure the distance from the front of the cell door to the exterior wall? A. Yes, sir. Q. What is that distance? A. Nine feet and four inches. Q. And on Item No. 5, did you measure the cells? A. Yes, sir, they are nine feet deep and seven feet and three inches wide. Q. Now, is that all the information that is contained in this writing down here? A. Yes, sir, it is. MR. HENNELLY: I am renewing my objection for the reasons heretofore stated. I think it was totally un- necessary for the officer to make the writing on here that he made. I think he could have looked at the exhibit with- out this and told them what the differences was, by just giving the measurements. However, under the circum- stances, when he. put down his own conclusions, and not only with respect to the keys, but with respect to every- thing else, that is only an attempt to [65] bolster his own testimony and his writing becomes immaterial and irrele- vant to any point in the case. 4 THE COURT: Overruled, and it may be received in evidence. * Exhibit 1, being a plat, having been sennived in evi- dence, and same being too large to attach to this transcript, a photostatic copy of same-is attached to the original of this transcript. MR. RILEY: Will you mark this Exhibit 2? : Reporter marked Exhibit 2, a photograph. : Q. Sergeant, I will show you what has been marked as State’s Exhibit No. 2, and ask you if you can tell the Court what that is? A. That is the entranceway from B and C Halls down to the basement of B basement. PT Le a ee TN ee Ss Si ng AA ARENA SEA IAL EER rake A59 MR. HENNELLY: I don’t mean to interrupt you, put could you speak a little bit louder please. A. All right, sir. Q. Is that photograph a fair representation of what it portrays there? A. Yes, it is. Q. And is that, does it show the scene as it existed on September 22nd and 23rd, 1954, in the penitentiary? A. The physical structure is the same, but the debris and water that was on the floor has of course been cleared away. Q. We offer this exhibit in evidence. (66] MR. HENNELLY: May I, for the purpose of the record, and for saving time, may I ask you to hold up. introduction of them and I can make a general objection “to all of them. I will make it now, if you want me to, but I thought it would save time. Q. All right. Mark this Exhibit 3, and this Exhibit 4, and this Exhibit 5, and this Exhibit 6, and this Exhibit 7. f Reporter marked Exhibit 3, a photograph. Reporter marked Exhibit 4, a photograph. Reporter marked Exhibit 5, a photograph. Reporter marked Exhibit 6, a photograph. Reporter marked Exhibit 7, a photograph. Q. Hold it down so they can’t see what is on the back. Sergeant, I hand you what has been marked as Exhibit 3. and can you tell the Court what this is? A. Yes, that __is the main gate entrance to B basement. BS: Q. Does that photograph show, correctly show that gate? I mean as it exhibited on September 23, 1954? A. Yes, it does. Q. Sergeant, I show you what has been marked State’s Exhibit No. 4, and can you identify that? A. A60 Yes, that is the gateway leading into the Death Row side of B basement. Q. Does that correctly show that gate and all its physical features? [67] A. Yes, it does. Q. At the time of September 23, 1954? A. Yes, it does. | Q. I show you Exhibit No. 5. A. That is a pic. ture of the area outside of the barred steel cage that is surrounding the cells on Death Row side of B basement. Q. Does that ‘correctly show that area as it existed on the morning of September 23, 1954? A. Yes, sir, it does. : Q. I hand you Exhibit No. 6. A. That is the gate or the doorway leading down inside of the cells of Death Row in B basement. Q. Does that correctly show the physical features of what it portrays there? A. Yes, it does. Q. As of the time September 23, 1954? A. Yes, sir. Q. I now hand you Exhibit No. 7. A. That is a pic- ture of the area inside the steel barred cage that surrounds the cells on Death Row in B basement. Q. Does that correctly show the physical features of that area that it portrays there as it existed on the morning of September 23, 1954? A. Yes, sir, it does. [68] Q. At this time we offer in evidence, Exhibits 2, 3, 4, 5, 6 and 7, MR. HENNELLY: The defendant will object and ex- cept to the introduction of State’s Exhibits 2, 3, 4, 5, 6 and 7, for the reason that they are hearsay and a proper foundation has not been laid for their introduction and to introduce them under these circumstances would be a violation of the Constitutional rights of the defendant, particularly in the light of the testimony of the officer that they do not represent the condition as it existed on the night in question, for the reason that they fail to show A61 certain debris and things which were then present on the _ night in question. Q. The fact that the debris is not shown in the pic- tures doesn’t change the physical structure, if that is the of this. : THE COURT: The objection may be overruled and they may be received in evidence. Exhibit 2, being a photograph, having been received in evidence, is attached to the ofiginal of this transcript. Exhibit 3, being a photograph, having been received in evidence, is attached to the sae of this transcript. Exhibit 4, being a photograph, having been received in evidence, is attached to the original of this transcript. Exhibit 5, being a photograph, having been received in evidence, is attached to the original of this transcript. [69] Exhibit 6, being a photograph, having been re- ceived in evidence, is attached to the original of this tran- script. Exhibit 7, being a photograph, having been received in evidence is attached to the original of this transcript. THE COURT: Now gentlemen, are you going to hand these to the Jury now? G. You, ae. THE COURT: In looking at these exhibits here that are going to be handed to you, just a minute, the pictures, there are some legends on the back, and that is not in evidence, that information is not in evidence, so don’t turn them over, just look at the picture part of them. If there is any further objection to that, I could have those legends taped over, but the notations have nothing to do, at this particular time, with this trial, and they are only being introduced for the actual picture side. I wonder, inasmuch as Exhibit 1 is already in evidence, as you hand these ex- hibits to the Jury, if the witness might designate on the chart where the particular picture is that is being intro- A62 duced into evidence, for instance Exhibit 1 I believe js, 2 I mean, is the stairway to B basement, as it has been identified now, can you point out on this Exhibit 1, the chart over there where that stairway is that is repre sented in this picture? A. Yes, sir, I can. THE COURT: All right. [70] A. The picture that you see will be of this stair- way that is to your left and to my right, leading into B basement area. THE COURT: All right, hand that to the Jury. | believe you might identify the location of the next one. A. The next one has been described as the main door into B basement. This area is that area in which this main gate or main doorway of B basement is located. THE COURT: All right, hand that to the Jury. A. Exhibit 3, this picture that you have, will be a picture of this gateway that leads into Death Row side of B basement right here. THE COURT: All right, you may hand it to the Jury. A. The next picture is a picture of the area outside of the steel barred area, it runs the entire area of the cell block clear down to the end of the cells. It is outside of the barred area. This next picture is the gate or the cell door that permits entrance to the area inside of the barred area so that you could get to each of the individual cells on Death Row side. THE COURT: All right, you may hand it to the Jury. A. This last picture shows the area on the inside of this barred area, and it also shows a mesh hardware cloth that extends two feet out from the front of the cell into the—and the entire height of the cell block there. That is inside [71] of this barred enclosure. THE COURT: All right, you may hand it to the Jury. Be seorms 5 al abt i nie A SE ha RR MERE RRS ii CLT TENE : PPE SIE OAS is A63 MR. RILEY: Sergeant, I direct your attention to this up here on Exhibit No.1, will you tell the Jury what this line is made up of? A. This line here which is on the picture here, dots and dashes, is made up of steel bars that extend the height of the cell areas and they extend from this gate entrance the entire length of the cell block area, and to this point here where they connect onto the concrete abutment. Q. Now, on the top side or the north side of this— what are those, what is that Sergeant? A. This side of the cell block is made up of the same number of cells, six- teen cells, and on this side are segregated the negro in-» mates during the time of inncculations and until they are put out into the population of the prison. Q. Now, this whole area as is referred to as B base- ment, is it actually underground? A. No, sir, B base- ment is not underground. There is a basement under- neath B basement. Q. I believe that is all at this time. Cross-Examination by Mr. Hennelly Q. Sergeant Nash, on the night in question, the night of the riot, that you went into B. basement, when was the - last time [72] prior to that time that you had been in B basement? A. I was not in the basement the night of the riot. Q. You didn’t go down there at all the night of the riot? A. The night of the 22nd, no, sir. Q. So that you cannot testify then of your own knowledge with respect to what the conditions were on the night of the riot, can you? A. As of the night of the 22nd, no, sir. Go Ya A.. Bo, oe. Q. Did I understand you to say that the State’s Ex- hibit 1 reflected the conditions as they existed on the night Vent MARA Rani UN aa tO, Caches az Mae sabe SD REO aaa ae Beans: binphelegt ge A64 of the 22nd? A. Just the physical structures of the build- ing. Q. You weren’t there the night of the 22nd, were you? A. I was at the penitentiary, but not at B basement. Q. This State’s Exhibit is supposed to portray the conditions as they existed in B basement and you weren't , down there, is that right? A. -I was not down in B base. ment that night. Q. Under the circumstances, I am going to ask that it be withdrawn and I renew my objection for the reason that no proper foundation has been laid for its introduction. THE COURT: The witness, as I understood him to testify, said he was there on the morning of the 23rd, is that correct? ‘ A. Yes, sir. [73] THE COURT: And had you ever been in there before? A. I-have been in the penitentiary prior to the 22nd. THE COURT: InB basement before? A. Yes, sir. THE COURT: You had been in there befor2> and you were there the day after? A. Yes, sir. THE COURT: And the physical structures of B base- ment were the same on the 23rd as it was the time you were in there before? A. Yes, sir. THE COURT: In other words, the building, they didn’t tear the building down or change the walls or any- thing of that kind, did they? A. The general physical structure of the basement was the same. THE COURT: The same as it was, the same as you found it on the morning of the 23rd, and the same as it had been as you had found it once before? a A65 A. Yes, sir. THE COURT: When you were there? A. Yes, sir. THE COURT: The objection is overruled. MR. HENNELLY: When was the last time, prior to the morning of the 23rd, that you were in that basement? (74] A. Several times prior to then. I had a case to go to the penitentiary to secure records to complete our files at General Headquarters. Q. The basement Sergeant, had you been in B base- ment prior to that time? A. As to the exact date, I do not remember. Q. Had you ever been in B basement prior to that time? A. Yes, sir, I had. Q. Now then Sergeant, you indicated that this pic- ture properly reflected the conditions as they existed, at least this State’s Exhibit 1, as it existed on the morning of the23rd? A. Yes, sir. Q. I am going to call your attention to that office which is marked here “Christian Science Chapel”, was there a Christian Science Chapel office in there on the morning of the 23rd? A. That room is designated for that particular use. Q. Was it, was that what it was used for on the morn- ing of the 23rd? A. It wasn’t being used for that purpose that morning, there wasn’t any office in use that morning down there. Q. As a matter of fact, that which you have now marked as the Christian Science Chapel office was on the night of the 22nd, and the morning of the 23rd, and for sometime prior to [75] the 22nd, 1955, 1954, really a clas- sification room, wasn’t it? A. They sometimes use one office or another. I don’t know specifically which one they used all the time. BE ace ee wae A66 Q. Well now, when did you make this up? A* That picture was made up sometime prior to the Ist of June, as] remember it. Q. Sometime prior to the Ist of June, of 1955? A. Yes, sir. Q. Would you say that it was made at least six months after the night of the 23rd, 22nd rather? A. Ap- proximately. Q. Now then Sergeant, on the morning of the 23rd, what time approximately did you arrive there? A. The morning of the 23rd? : Q. Yes, sir. A. I had been there all night. Q. On the night of the 22nd, were you outside of B basement? A. Yes, sir, I was the night of the 22nd, Q. All right. Now, on the night of the 22nd, when was the first time that you arrived on the scene of the riot itself? A. Five minutes after seven. Q. Five minutes after seven, and who did you arrive there with? A, Trooper Volkmer. Q. And you at no time prior to midnight, got into B basement? [76] A: No, sir, I did not. Q. And when in the morning of the 23rd did you get into B basement? A. It was prior to noon, I would say maybe ten-thirty or eleven-thirty. Q. At that time, had all the inmates been cleared out of there? A. What do you mean by cleared out? Q. Were there any inmates in B basement at all when you first arrived on the morning of the 23rd? A. There may have been some of the trustees, most of the inmates had been put back in their proper cells. Q. Well, when you indicated that there was some difference with reference to debris and rubbage, was that all there on the morning of the 23rd? A. Yes, sir. Q. Was it still there at ten-thirty and eleven when you got there? A. Yes, sir. Q. I want to call your attention to these cells which you have marked on here, going from 17 at the rear of ae, eta A67 State’s Exhibit 1, and going to 32, which would be the cell which would be near the front door, am I not correct in stating that Sergeant? A. Yes, sir. (77] Q. I will ask you if you can tell the Court and Jury to the best of your knowledge, how many inmates were in those cells when you arrived about ten-thirty on the morning of the 23rd? A. I did not go down Death Row, that side, that morning. Q. You didn’t go down Death Row side? A. No, sir. Q. Did you go down, proceed at any point past that front door on the morning of the 23rd? A. I didn’t go past this front gate entrance here. Q. Well now then, with respect to the condition as it existed on the morning of the 23rd, in the back of this front door, you don’t know, because you weren’t back there? A. I did not go back in there. Q. Did you go back there at anytime prior to the time that you made this picture, this exhibit? A. Yes, sir, I have. Q. When was the first time that you went back there? A. Iam not certain as to how soon after the 23rd. I was in and out of there several times. I wouldn’t remember. Q. Now then, when you told the’ Court that this State’s Exhibit 1 reflected the conditions in B basement as they existed on the morning of the 23rd, that isn’t exactly accurate either, is it? A. Yes, it is to the best of my knowledge. : Q. You weren’t back there though, were you? [78] A. I was in B basement, and that is a picture of the B basement area. x Q. Were you back in anywhere past cell No. 32? A. No, sir. Q. You didn’t go back there, did you? A. No, sir. Q. So that whatever was back there on that morning, you didn’t see it, did you? A. No, sir, not in the cells. A68 Q. Your Honor, I am again going to renew that ob- jection. THE COURT: This witness has testified now two or three times that the plat that he has made which is Ex. hibit 1, is the physical characteristics of the building. Now, he has indicated on there the thickness of the walls and where the doors were and things of that kind. Those mat- ters don’t change. That is part of the building. The ob- jection is overruled. MR. HENNELLY: Save an exception. © THE COURT: Now he has testified there was debris and rubbage and things of that kind on the morning that he got down there, but this plat is being received in evi- dence and the Jury and the Court and the witnesses might better enable themselves to follow the testimony of the wit- nesses, as to directions and places that are being and will be referred to in evidence. Certainly the exhibit can’t do any- thing but be helpful in the [79] explanation and the un- derstanding of the testimony. Now the witness hasn’t tes- tified as to what condition the doors were in or what the : condition of the bars may have been or whether anything was torn up and things of that kind, but as to the physical 3 characteristics, Exhibit 1, as I understood this witness, it j actually reflects the floor plan of that building. 7 A. That is right, sir. THE COURT: Overruled. Q. Your Honor, might I say this, I certainly want the Jury to have everything that is helpful also. THE COURT: All right, proceed then. Q. On the other hand— THE COURT: I have overruled your objection Mr. Hennelly. Q. Now, when you got there on the night in question, where did you first go at the Penitentiary? A. Are you ‘referring to the night of the 22nd? pyr PE EN ee ee Re Peas te A69 Q. The night of the 22nd. A. When I first arrived at the penitentiary I stopped at the main intersection lead- ing into the penitentiary to clear the traffic way there for other cars that were approaching. After a few moments there directing traffic I placed Trooper Volkmer in charge of the traffic assignment and I went up on the wall, No. 3 gate at the penitentiary. Q. (Out of the hearing of the Jury) I am going to ask the [80] Court to strike from the record, and instruct the Jury to disregard the Court’s remarks with respect to the purpose for which Exhibit 1 was being introduced, for the reason that it may have left the Jury with the impres- sion that I was attempting to keep something from them which was going to be helpful and it puts the defendant in a bad light with the Jury and it was made certainly in good faith, and in light of the continued statements of the officer that he wasn’t back there, and my understanding was that the Exhibit must reflect the conditions as it ex- isted at the time the crime was committed, my objection was certainly made in the best of faith, and I think that the _ Court’s statement might leave the impression that I was ~ \trying to be sharp and trying to keep something from them and under those circumstances, I don’t think it should have been made in the presence and hearing of the Jury and I ask that it be stricken and the Jury instructed to disregard it, and that a mistrial be declared. » THE COURT: Well, of course Mr. Hennelly, you made your objection in the presence of the Jury, and you have made that same objection three times, and the Court was merely explaining why he was overruling your objec- tion. Any inferences in your statement as to what the Court’s intentions were, of course, without foundation, and this Court didn’t have any intention of implying to this Jury or to anybody else that there [81] were any sharp practices being used by anybody. I was merely answering . a 7 ° A70 © _your objection. I will make an explanation to the Jury at this time. Your objection and request is overruled.--Gen- tlemen of the Jury, during the trial of a lawsuit theré are many matters of evidence and procedure which come up from time to time which parties have a right to object to through their counsel, and the fact that,the Court may sus- tain or overrule an objection is not any reflection upon any one party participating in this lawsuit, and the rulings that the Court makes regarding any of these matters are not 9 to be considered by the Jury as any reflection or any in-. timidation or any reprimand or any denial of any of the rights of any of the parties. I ruled a while ago upon an objection and. attempted to explain to counsel my reasons for that ruling. and I want to state at this time that the : Jury is not to draw any inferences from the statement made by the Court. If there is any direction to the Jury, ; 7 ‘ I will call your attention to it at the time, and of course will direct the Jury in the matter of instructions at the q conclusion of the case, so with that explanation you may proceed Mr. Hennelly. Q. Now Sergeant Nash, I want you to take your little ruler. To what scale have you set that State’s Exhibit 1? A. Approximately one inch to eight feet. Q. One inch toeight feet? A. Yes, sir. > . * [82] Q. ‘Now, I want you to take that and tell the “Court and Jury what is the distance from the first door as one. comés down those steps until one gets immediately in ' _ front of the first door which would lead in? A. You have : reference to this gate here? Q. Yes. A. Taking from the stairway to the center of that first entrance way, approximately eighteen feet. Q. So that taking the shortest possible distance, one entering that front door and going to the first gate, the first place where there is a lock, would have to walk approxi- mately eighteen feet? A. That was taken from the center A7l of the stairway, not the edge, the edge would make it shorter. Q. When you say center of the stairway— A. That ‘js from this point to the center of the stairway placing the ruler there and placing it to the center of the gate. Q. Taking your answer with respect to eighteen feet, have you already come down the steps then? A. Yes, I am leaving the bottom step going to the gate, © Q. How far do you have to walk coming down the steps? A. That is approximately eleven feet. f Q. Now then, how—hold it up so the Jury. can see it Sergeant, will you show the Court and Jury, after one gets into [83] that first door, where would one have to go to to get to the second door? A. Go from No. 1 doorway to the No. 2 doorway. -Q. Now Sergeant, with respect to the method in which your exhibit is drawn, if one were standing in front of door No. 1, which direction would you be looking? A. You would be looking, if you were looking toward the cell area, you would be looking generally east.. Q. And if one were standing in front of door 2, and just looking straight ahead, in which way would one be looking? A. Standing in front of door No. 2 and looking down toward the bottom of the picture, you would he look- ing generally south. Q. Now, tell the Court and Jury the distance that one would have to go to go from door 1, to door 2? A. The center of door 1, to the center of door 2 approximately eight feet? Q. Eight feet? A. Yes, sir. Q. Now, door 1, is that opened with just a large key, or how. many locks are on door 1? A. Door 1 is opened with a large key. Q. Door2? A. Two is opened with a large key. Q. Now,thereisathird door? A. Yes, sir. ¥ S +e PEPER PI LORE ee Sm EP en Se Re aa . P i alga aah ti BPeievive SPADES LA IONS B05 SIE PODS AD : 4 A72 Q. How far would one have to walk to.go from the second door [84] to the third door? A. Distance from No. 2 to No. 3 is approximately ten feet. Q. Now, at the time that you arrived there approxi- mately 10:30 on the morning of the 23rd, where was the first place that you found an attendant of the penitentiary guarding a door, was it at door 1,2 or 3? A. The night of the 22nd? Q. You weren’t there the night of the 22nd Sergeant, the morning of the 23rd? A. The morning of the 23rd, I don’t femember ever finding an attendant from the pen- itentiary. Q. Who was with you when you got down there? A. Thege was.approximately fifty to seventy-five officers, St. Louis Police and other officers from different surround- ing places. Q. How did you get in then, did someone have a key? A. I didn’t go in past this area here. Q. Very well. Now then Sergeant, i want you to look at a point which you have marked on there as a wash basin, would you point out to the Court and Jury and tell them where that is? A. Right over here is the toilet and shower room. There is no wash basin pictured on there. Q. Do you know of your own knowledge now whether or not there was a wash basin of any kind, after one gets past either door, [85] 1,2 or3? A. Yes, there is one. Q. Point it out to the Court and Jury. A. There is a wash basin located approximately at this point, after you come inside of Gate No. 2. It is sitting right about there at the end of the rule. Q. Now, can you. give us any description of that wash basin? A. Nothing other than it is just a wash basin. : Q. Well, is there a light in there of any kind? A. T don’t remember if there is or not. A73 Q. Now then, with respect to the cells themselves, numbering from 17 to 32, are those all cells Sergeant, or is there something besides inhabitable cells there? .A. I think that they have made cell 22, as I remember, I may be wrong, but I believe that it is cell 22 that they made into a shower room. ; Q. Now, have you indicated on this picture anything about a shower room? A. No, sir, I was just drawing the general structure of the building. Q. Was there a shower room there when you were there, the last time you were there? A. Yes, sir. Q. And is it a shower room, which is the general type of shower room, with the general plumbing fixtures of ashower [86] room? A. AsI remember it, yes. Q. And I believe you indicated that that was in, to the best of your knowledge, in 23? A. 22. Q. 22,Iamsorry. A: As Iremember, yes. Q. Do you know whether or not it was in working order on the night of the 22nd, and the morning of the 93rd? A. I had no occasion to check it sir. Q. Now Sergeant, I am going to ask you with respect to your investigation of this case, when was the first time after the night of the 22nd, or the morning of the 23rd, that you saw the defendant, James Stidham? A. I think that I saw Stidham the evening of the 23rd. ° Q. Theevening of the 23rd? A. Yes, sir. Q. Where was he at that time? A. He was brought to the classification office, which is across from the Deputy Warden’s office. Q. That is not in B basement is it? A. Administra- tion Building. : Q. Administration Building proper? A. Yes, sir. Q. Did you at anytime see the body of Walter Lee Donnell? A. I did not. [87] Q. Now, when he was brought to the classifica- tion room of the Administration Building, did you bring A74 him or did one of the guards or one of your fellow officers bring him, if you recall? A. As I remember, I think that’ he was brought by prison authorities. I do not remember for sure. Q. Now, how far is the Administration Center Build- ing, if you can recall, from the B basement? A. It is approximately a hundred yards. Q. In which direction? A. East of the Administra- tion Building. Q. What was the purpose of brining him to that point, if youknow? A. We knew that he, as well— Q. This part Your Honor is going to be hearsay, | will withdraw the question. ‘The officer was going to in- corporate— THE COURT: All right. Q. Did you question him at that time? A. We talked with him. . Q. Who was with you at that time? A. There was Lieutenant Barton and myself and there may have been another officer present. Q. Was there an officer there by the name of Curtis, out of Kansas City? A. Not at the time I was talking with Mr. Stidham, no, sir. [88] Q. And do you know how long he was ques- tioned on the night of the 23rd, in that classification room? A. Fifteen or twenty minutes. Q. Was he handcuffed at that time? A. As I re member, I don’t beleve he was. I am not for sure though. Q. You know who did the questioning? A. Pxjma- ily, Lieutenant Barton. Q. And after that questioning was completed, where did you take him? A. He was turned again over to the prison authorities. Q. And you don’t know whether or not he went back to his regular cell from where he came or not? A. I don’t know where he was taken, no, sir. 5 9 te ee a it a A ede RAR aed Se A75 .Q. When was the next time after the night of the 93rd that you saw the Defendant Stidham? A. I think it was at their arraignment in Jefferson City. Q. You had nothing to do then with any subsequent questioning of this defendant, is that right? A. That is right. Q. You weren’t present at any of the subsequent questionings? A. No, sir. Q. No further questions Your Honor. THE COURT: Any further questions by the State? MR. RILEY: I think that is all. [89] MR. HENNELLY: I want to ask one more ques- tion. You recall testifying here in this case here in this court room in April of this year, you recall the last time you were on the stand here in this Court House? A. Yes, sir. Q. You recall at that time whether or not you testi- fied that you questioned him after the night of the 23rd, that you had questioned him on the 25th and 26th, do you recall whether or not you testified to that? A. I don’t remember the dates that I might have mentioned. Q. Let me ask you this, did you question him on the morning on one occasion? A. No, sir, I did not. Q. I have no further questions. Redirect Examination by Mr. Riley Q. Sergeant, do you recall Mr. Hennelly even asking you about questioning Stidham the last time you were here? - A. As I remember the question asked me on the pre- vious time, was he asked me when I had seen Mr. Stid- ham and as I remember, I testified then it was at his ar- raignment in the Cole County Court. Q. That is all. [90] Recross-Examination by Mr. Hennelly Q. I will ask you if it isn’t a fact that the last time you testified here in this case in this Court Room, that A76 you did testify No. 1, that you had. questioned him in the classification room, and that you had questioned him more than once in the classification room? A. No, sir, I do not remember making that statement. Q. Do you say today Sergeant that you did not tes- tify that you questioned him at all in the classification room? A. No, I didn’t say that. We did talk to him in aes clas- sification rcom. Q. I am sorry, do you say today that you did not testify in this Court, before this Court the last time, that I questioned you about the matter, that you questioned him in the classification room after the night of the 22nd? A. It is possible that I might have, but I don’t remember that statement. . Q. No further questions. That is all MR. RILEY: Thank you sir. LIEUTENANT W. S. BARTON, BEING SWORN, TESTIFIED: Direct Examination by Mr. Riley ; Q. Would you state your name please? A. W.S. Barton. Q. And you are a Lieutenant in the eon State ; Highway Patrol? [91] A. Yes, sir. Q. How long have you been with the Missouri State = Highway Patrol? A. Something over fifteen years now. ; Q. How old are Lieutenant? A. Forty-five. 3 Q. What was your occupation befcre— | 1 MR HENNELLY: _I object— : Q. I withdraw the question if he is going to object. THE COURT: All right. Q. I will ask you if you went to the Missouri State Penitentiary in Cole County, Missouri, on September 22nd, % 19542 A. Yes, sir, I did. _— AT7 Q. What time did you arrive there? A. Ten P.M. MR. HENNELLY: Iam sorry officer. , A. Ten P.M. . Q. Did you go to the area in the Penitentiary known as B basement? A. Yes, sir. Q. What time approximately? A. Ten-thirty. Q. What did you find? A. I found a building and the doors considerably damaged, and a lot of debris lying around and some of the cells open and some closed and some men in them, and I found a body. [92] Q. Where did you find the body? A. Cell 18. _ Q. Is that Cell 18 in Death Row? A. Yes, sir. Q. Will you mark this Exhibit 8. Reporter marked Exhibit 8, a photograph. Q. Sergeant, will you describe the body that you found there? MR. HENNELLY: I didn’t get that Mr. Riley. Q. Will you just describe the condition of the body that you found? A. I found a body, a man’s body lying in Cell 18 on the back, with the head to the north and northeast corner of that cell, feet toward the door, which would be the southwest direction. The head was con- siderably mutilated, large indentation in thé right side of the head near the temple. The eyeball was completely out of the socket. Q. Which eye was that? A. The right eye setting out on.top of the socket and the clothes were disturbed or torn or cut or something of that nature, and considerable blood all over the area, cell, the walls and the individual clothing also. I felt of the pulse to see if the subject had any life in him, and at that time it had become stiff and rigor mortis had set in, at least the body was beginning to get stiff, and I was then unable to determine any life in the subject, and so I left the cell at that time. A78 [93] Q. Did you check the serial number, and how was this subject dressed? A. All of the inmates— Q. No, how was this one dressed? A. I checked his serial number of his clothes with the serial number of the officials of the Penitentiary. MR. HENNELLY: I object to that, that will be hear- say, and ask that it be stricken and the Jury instructed to disregard it. THE COURT: As I understand this witness’ testi- mony, he is just telling what he did. Q. That is right. You say you checked— MR. HENNELLY: Your Honor is right, he hasn’t yet said what happened as a result of—I withdraw the objec- tion. A. I checked the number on his clothing with the record, the official records of the Penitentiary, and re- vealed who the subject was. That is the way they kept track of all of that. THE COURT: Go ahead and ask your next question. Q. I will ask you Lieutenant, take a look—what was the number that was on the clothing of this subject found in the cell? A. 64078. Q. And I will ask you to take a look at State’s Ex- hibit No. 8, and can you identify that? [94] MR. HENNELLY: Excuse me, I am certainly going to object to—you are only asking him to identify it? Q. Yes. MR. HENNELLY: Iam sorry, go ahead. A. Yes, this is a picture of the subject I found in Cell 18 the night of the 22nd of September. Q. Will you tell the Court that that is the same man? A. Yes, sir. Q. At this time we offer in evidence State’s Exhibit : 4 e i 2 wa deine A79 MR. HENNELLY: Object and except to the intro- duction of State’s Exhibit No. 8 for the reason that it is hearsay and no proper foundation has been laid for its in- troduction and to introduce it under these circumstances would be a violation of the Constitutional Rights of the De- fendant, and is totally immaterial and irrelevant to any int at issue in this case. THE COURT: Overruled, it may be received in evi- dence. You may hand it to the Jury. Exhibit 8, being a photograph, and not being in the hands of the Reporter at the time this transcript is being prepared, will either be attached to the transcript, if same is furnished the Reporter before the transcript is com- pleted, or else same can be had from counsel for Plaintiff. Q. Will you mark this Exhibit 9. Reporter marked Exhibit 9, a sledge hammer. Q. Lieutenant, I will ask you to look at State’s Ex- hibit 9, and [95] tell the Court and Jury, you know what that is? A. Yes, sir. Q. When was the first time you saw that? A. I found this in Cell 18 in Death Row, alongside of the body that I found down there the night of September 22nd. Q. Alongside of the body of the man you just iden- tified as being in this photograph? A. Yes, sir. Q. Now, do you know the weight of that sledge ham- mer? A. Sixteen pounds. Q. How large was the indentation on the skull of Walter Lee Donnell? A. Oh, it was, covered an area of- two or three inches in diameter, in this area here, maybe more. I would say it was larger than that. Three to four inches in area. The whole side of his face there was muti- lated. Q. Mark this Exhibit 10. Reporter marked Exhibit 10, a photograph. Q.. I hand you what has been marked Exhibit 10, and will ask you if you know what that is? A. Yes, sir. A80 ~ Q. Were you present when that photograph was taken? A. Pardon? Q. Were you present when that photograph was taken? A. Yes, sir, I was. [96] Q. It wasn’t taken in September, 1954? A. No, taken afterwards, after that date. Q. Lieutenant, can you tell the Court and Jury whether or not that photograph, what that is a photograph of? A. This is a photograph of Cell 18 in Death Row, and also shows some others, but shows a very good picture of the front part of the front door and only door rather of Cell 18. . sO Q. Now, does that show, correctly show the condi- tions as they existed at 10:30 on the night of September 22nd, 1954? A. No, sir, it does not. . Q. Now, what is the difference, show the Court if you will Lieutenant. A. The Jury? Q. No, the Court first. THE COURT: No, me. A. The partition of each cell out from the wall im- mediately in front of the cell, there is a partition with a heavy galvanized wire on it that protrudes out at the wall to keep anything from being handed from one place to the other, from one cell to the other. Now, that night there was a large hole in this screen wire and it was torn down and hanging down. That has since been removed, since this picture was taken. Q. Now,— A. Before this picture was taken. Q. Now, except for the fact that this photograph doesn’t show [97] all the screen there, and on the night of September 22nd, this photograph would have shown, had it been taken on that night, would have shown the screen in there, but torn down? A. Yes, that is right. Q. Now, is that the only thing in the physical structure there? A. Yes, I believe that about covers it, © A81 outside of the water and debris and other things laying around on the floor. Q. At this time we offer State’ s Exhibit No. 10. MR. HENNELLY: Defendant will object and except to the introduction of Exhibit 10, for the reason it is hear- say and for the reason that no proper foundation has been laid for its introduction, and for the reason that there exists on the picture a—some person who apparently is placed in a particular position, and that is leading and suggestive and is hearsay, and it may tend to confuse and mislead the Jury and under the circumstances, I object to it. THE COURT: Does this figure of a man have any particular significance in this case? There is a picture of aman on Exhibit 10. A. ‘Yes. Q. And at this particular point that man is standing infront of Cell— A. 18. ‘Q. 18? A. Yes. [98] THE COURT: All right, the objection is over- ruled, and it may be received in evidence. Exhibit 10, having been received in evidence, being a photograph, is attached to the original of this transcript. Q. Lieutenant, at the time this photograph was taken, where were you? A. I was in Cell 17. Q. Now, will you explain to the Jury, hold that photograph up, and tell the Jury how much of the screen there could you see from Cell 17? MR. HENNELLY: Object to that if Your Honor please, for the reason that that is totally irrelevant, im- material to any point in issue, and invades the province of the Jury, and is a conclusion. Q. That is af right, I will show it at a later time. THE COURT: All right. The Court would permit this witness to testify what he can see from Cell 17 if he wishes. Cfo ttle BLAS LAAT PIPER A82 Q. Allright, go ahead. A. This is Cell 17 over here. This is Cell 18 here, with the man standing directly in front of it. And by getting up next to the bars and laying your head close to the bars, you can see the back portion of this man, the back of his shoulders and his shirt and trousers, on down to his feet. Now, he is standing with his toes within twelve inches of—or fourteen inches of the door itself, into the cell. These [99] partitions that pro- trude out from the wall of the cell block there are two feet wide, which this screen wire is fastened onto. Now, if he was to move back any distance at all— THE COURT: That would bea conclusion. Q. Weask that that be withdrawn Your Honor. THE COURT: He can tell what he saw at that par- ticular place. MR. HENNELLY: Under those circumstances, I am going to ask that all that testimony be stricken and the Jury instructed to disregard it, and a mistrial be declared up to the point where Your Honor stopped him, for the reason it was a conclusion, it is hearsay, totally irrelevant and immaterial to any point in the case, and invades the province of the Jury, and don’t take into consideration a lot of other factors that was in there. THE COURT: This witness is testifying that stand- ing in the cell, just what on this particular picture he can see, and he has stated where his position was, and what he was able to see as shown on this picture, and I think he is entitled to that testimony, and that testimony is admissible in evidence, and that objection will be over- ruled. MR. RILEY: (Out of the hearing of the Jury). I want the record to show that I have refrained from asking this witness who was in Cell 18 at the time this photograph was taken. THE COURT: Cell what? A83 MR. RILEY: 18, at the time this photograph was taken, for the [100] reason that-at that time, the Defend- ant, James William Stidham was in that cell, and that he was celling in there at the time this photograph, particular photograph was taken. J will ask the witness that and make that offer of proof now. I don’t want it to go to the Jury. MR. HENNELLY: I say that don’t make any differ- ence, who the man was in that cell. That is not the part of my objection. MR. RILEY: It certainly can’t be hearsay. MR. HENNELLY: The heart of my objection is that the whole thing is totally irrelevant and immaterial. You are proving what somebody else saw. THE COURT: I don’t know what they are going to try to prove. There may be other testimony that is intro- duced. I don’t know. I presume that as testimony de- velops there will be some significance connected with this. It can’t all come in at one time. And this witness may testify and explain the matters as he has already ex- plained it, and the Court has already ruled on it, and the objection is overruled. Q. Who else did you find in Death Row that night? A. The subject of Sammy Reece, Doc Booker, and a man by the name of Eaton, and a man by the name of Ford, and a man by the name of Creighton. Q. Where was Creighton? A. He was in Cell 17, the eastern most cell of that tier of cellblocks. Q. Wiil you turn around Lieutenant to Exhibit No. 1 on that [101] chart, and point to Cell No. 17? A. Right here is Cell 17. Q. And where was Cell 18? A. Right next to it. Q. Cell 18 is where you found the body? A. That is right, sir. Q. 17 is where Creighton was? A. That is right, he was in this cell here, the end cell. A84 Q. Now, was the door to Cell 18 open or closed? A. It was open. Q. And how did you find the door to Cell 17? A. It was locked. Q. And did you finally get into Cell 17? A. Yes, sir. Q. How? A. I got the keys from a subject by the name of Ford, who was in his cell locked up, and I don’t know which one it was, but it was up in here. Q. What time, about what time was it when you got ° Creighton out? A. It must have been eleven o’clock, maybe later, that I got him out of there. I would say in the neighborhood of eleven. It took quite a little bit to get the lock undone. Q. Going back to the sledge hammer, what did you do with the sledge hammer? A.. I took the sledge hammer and locked it up in the Deputy [102] Warden’s office. | later taken it to our laboratory and turned it over to our laboratory. Q. Who did you turn it over to? A. Sergeant Rhodes. Q. And was Lieutenant Williams there at the time? A. Yes, Lieutenant Williams was there. Q. And is that sledge hammer in the same condi- tion now as it was at that time? A. Except that it doesn’t have as much blood on it as it had at that time. Q. Now, did you go through all of the cells in Death Row that night? A. Ichecked them. I didn’t go in them. Q. Did you find Rollie Laster? A. No, he wasn’t in there. Q. Did you find the Defendant, James William Stid- ham? A. No,sir, he wasn’t in there. Q. Did you find any other wounds or marks on the body, other than the injury to his skull? A. Well, I didn’t take any of his clothes off to look, no, sir. A85 ~ Q. Well, as to the parts of the body that was ex- posed? A. The part that I could see was his head.’ That didn’t have clothing on it. Q. What about his neck? [103] A. Well, I mean this part above his shirt, yes, I could see his neck. Q. Was there an injury to his throat and neck? A. Yes, his throat had been cut. Q. You will have to speak louder. A. His throat had been cut, yes, sir. Q. How large? A. Quite a gash across there. Q. Well, indicate to the Jury. A. I would say three or four inches across here. Q. Onwhich side? A. It was on this side. MR. HENNELLY: The left side? A. I believe it was this side, the right side, the best of my memory. Q. You said right, and you are pointing to the left. A. Well, I still say it was this side. MR. HENNELLY: I am going on for the purpose of clarification Your Honor, so we know which side— THE COURT: Hehas pointed to the left side. MR. HENNELLY: Pointed to the left side. Q. That is all at this time. Cross-Examination by Mr. Hennelly Q. Lieutenant, you have been in the State Highway Patrol for some years now, is that right? [104] A. A few years. Q. In the course of that time, I suppose you have had reason and opportunity to see a number of people who have suffered violent death, have you? A. Yes, sir. Q. You have seen a number of people who were de- ceased, and you have examined a number of dead bodies, have you? A. Yes, sir. Q. In the course of your vast experience with the Department? A. That is right. A86 Q. I understand that at the time you found this body, that the body was stiff and rigor mortis had set in? A. I am no specialist in that, but he had begun to get stiff, Q. He had begun to get stiff? A. Yes, sir. q Q. Based on your experience that you have had, in ’ examining other bodies, and having seen other bodies, where rigor mortis had set in, is it your opinion that rigor : mortis had set in to this body? : MR. RILEY: If the Court please, this man is not a F doctor, and for rigor mortis to set in, in some bodies takes ; longer than others. I don’t know that this man can— THE COURT: Sustained. The witness has stated that he wasn’t an expert, except that the body had — to get stiff. He didn’t know what it was. : [105] MR. RILEY: A body may begin to get stiff and : still not be rigor mortis. ; * MR. HENNELLY: -I ask that that be sisitin, if : Your Honor please. 4 y THE COURT: All right, it may be stricken. As pre- viously stated, remarks of counsel that are not connected with questions that are being asked the witness, are not testimony in the case, Gentlemen of the Jury. Q. Now then Lieutenant, I believe that you arrived there about ten o’clock that night? A. In front of the Penitentiary. Q. In front of the Penitentiary? conversations that may not be admissible, and I wouldn’t want your objection to go to matters that the Court might sustain an objection to. MR. HENNELLY: Very well. THE COURT: But I think to this general testimony, all right, but if there is anything that is out of line with what we have permitted this far— MR.HENNELLY: Very well. THE COURT: That your objection may stand. Now, you were testifying about Ncble and some others leading you and that you couldn’t look back, and the last question that was asked you was why couldn’t you see, who had hold of your left arm. A. Noble said, “Shaky, don’t look around too damn much, it isn’t healthy for you, don’t see anything, it won’t be good for you.” Q. What happened then? A. I didn’t try to look around. Q. I know, but what happened then? A. I was taken to Death Row and locked in a cell. Q. Now, you know just which cell you were put in? A. Not exactly, but it was one of these two cells here. I couldn’t say because I wasn’t allowed to look around, but it was [209] about one of those two cells. A158 Q. How long did you stay there? A. I would have to give about— Q. Your best recollection. A. Twenty or twenty- five minutes. Q. Then what happened to you? A. Noble came back to me and said, “Shaky, I am sorry we are going to have to move you again,” so they unlocked the door and taken me out and we went up the steps to B Hall, went up and we couldn’t get up the steps, so they lifted me up ahd pushed me and lifted me up over the side of the wall like this and I had to reach up and pull myself up over the top, and put me in the mop room cell in B Hall itself. Q. Now, did you ever see the Defendant Stidham in BHall? A. Yes, the next morning. Q. Well, forget about that then. MR. HENNELLY: I ask that that be stricken Your Honor. Q. I don’t want to pursue it, if it was the next morn- ing. THE COURT: Well of course the question, and the ; answer was responsive to the question that was asked, and 2 I can’t see that it makes any difference one way or the other. The objection is overruled, it need not be stricken and the objection comes a little late, and the objection should be to the question and not to the answer. Q. Now Mr. Dietzel, directing your attention— [210] MR. HENNELLY: What I was objecting to was counsel’s statement and not to— THE COURT: I didn’t hear counsel’s statement, other than he said that is too late. MR. RILEY: Too late, and I didn’t want to pursue it. MR. HENNELLY: I thought he said just forget about that. THE COURT: I understood counsel to mean, or to in- tend that he didn’t intend to pursue it further after he found out it was the next morning. Ure rea “ wei ¢ : in ae » Ry REEL PL ut Sidrcpiien Sas sg es ee er gt, ~ oe Pry a eth d. BPs ccace halt ae cel eee, ba waid BeLde a ets vies erty ero ee py ae a , pi, plete _ gagged, 6 REE ee Lae ae ies A159 MR. RILEY: That is correct. THE COURT: Go right ahead Mr. Riley. Q. Mr. Dietzel, I direct your attention back to the time you say they were beating on the door and particu- larly the conversation you related between DeLapp and Stidham that they were going to try something else. You know what they tried? A. They tried to break through the brick wall between the Identification Room and the Death Row. Q. Now, will you show the Jury on that chart where that wall is? A. I think it is marked here different than my calling. We have certain names down there. This is proper very likely, but this is the room that they entered into and this door here and this room right in here, about where they started trying to beat in with the sledge ham- mer and [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0078%3A2. Public record. Not legal advice.