State v. Stidham, 45537

• Citation: 305 S.W.2d 7
• Decision Date: 09 September 1957
• Docket Number: No. 45537,No. 2,45537,2
• Parties: STATE of Missouri, Respondent v. James William STIDHAM, Appellant
• Court: Missouri Supreme Court

Page 7

305 S.W.2d 7

STATE of Missouri, Respondent v. James William STIDHAM, Appellant.

No. 45537.

Supreme Court of Missouri, Division No. 2.

Sept. 9, 1957.

Mark M. Hennelly, St. Louis, for appellant.

John M. Dalton, Atty. Gen., Winston Cook, Sp. Asst. Atty. Gen., for respondent.

BOHLING, Commissioner.

James William Stidham appeals from a sentence of life imprisonment for the first degree murder of Walter Lee Donnell during the riot at the Missouri Penitentiary on the evening of September 22, 1954, in Cole County, Missouri, Sec. 559.010. (Statutory references are to RSMo 1949 and V.A.M.S.) The indictment charged defendant William R. Hoover, Jackie Lee Noble, Paul Edward Kenton, Rollie Laster, Don Wm. DeLapp and Joseph M. Vidauri with the commission of the offense. All were inmates of the penitentiary. Defendant's case, upon his application for change of venue, was tried in the Circuit Court of Butler County, Missouri, in July, 1955. Defendant was well represented by counsel. He has filed no brief. His motion for new trial presents many issues.

The defense was an alibi; but certain issues call for some detail of the facts.

I. There is no merit in defendant's contention that his written confession was coerced and involuntary and was admitted in evidence before the State established that it had been voluntarily given. The court conducted a full preliminary hearing on the issue, found the issue was for the jury, and later, after hearing the evidence before the jury, submitted the issue to the jury for determination. The testimony was to like effect at each hearing. Two members of the State Highway Patrol and four members of the St. Louis Metropolitan Police force, present at the time defendant claimed physical violence occurred, testified that no promises had been given, or physical violence, duress, threats or abuse was offered to defendant, categorically denying defendant's testimony. On the conflicting showing the issue of the voluntariness of the confession was for the jury. State v. Gibilterra, 342 Mo. 577, 116 S.W.2d 88, 93[3, 4]; State v. Laster, Mo., 293 S.W.2d 300, 303[1, 2]; State v. Sanford, 354 Mo. 998, 1006, 193 S.W.2d 31, 37, 38; State v. Menz, 341 Mo. 74, 106 S.W.2d 440, 448.

Defendant stated, among other things, in his confession, written in his own hand, that several prisoners broke into death row and Paul Kenton unlocked his cell door. He and several other prisoners then went to Creighton's cell to attack him but he had his lock blocked and they could not enter. They then entered Donnell's cell, and, quoting: 'Kenton held Donnell while Laster stabbed him several times with an ice pick, at the same time I slashed at him three or four times around the face and neck with a knife that Kenton gave me when he opened the door. When Donnell fell to the floor Linder and Thompson each said get Donnell with the sledge and they proceeded to hit him with a sledge hammer and a crowbar.' Defendant also orally stated that he did not like Donnell because Donnell had snitched in regard to a riot in July and caused defendant to be punished; that Donnell had snitched on some of the boys and they had received a lot of time; and that he was living his life under a different code than the officers.

The jury could find, aside from defendant's confession, the following outlined facts from the evidence.

The homicide occurred in what is known as 'death row.' Death row, consisting of thirty-two cells, was located in the basement of 'B' Hall. Three heavy steel gates or doors separated death row proper from other parts of the building. B Hall proper, above death row, housed a cell block.

The riot started about 6:30 p. m. September 22, 1954. Nine inmates, for various reasons, were confined in death row that evening. Defendant, who was known as 'Slick,' and his co-indictee Laster occupied adjoining cells, having been transferred to death row about July, 1954. Donnell, the deceased, and James M. Creighton also occupied adjoining cells in death row, some distance from defendant and Laster.

From the date defendant was placed in death row he would 'holler down' and curse and ridicule Donnell, threatened to kill Donnell if he ever got to him, said that 'when they come in here and get us out, we are going down there and kill' Donnell and Creighton; and that they should have killed Donnell over in E Hall when they broke out over there.

Clarence Dietzel was on guard duty in death row the night of the riot. He noticed the disturbance and started closing the windows to death row. Defendant and Laster demanded that the windows opposite their cells be left open.

About 7:00 or 7:30 p. m. some of the rioters tried to break into B. Basement. While the prisoners were trying to break into death row, defendant and Laster 'hollered' that they would be down to kill Donnell and Creighton as soon as they got out of their cells. Defendant said he was going to kill Donnell because Donnell took the stand against one Thompson and some others.

DeLapp, known as Curley, Kenton, Noble, Hoover, and Vidauri, were among the number trying to break in. They worked on the first door with a sledge hammer, crowbars, pick and other small tools. DeLapp called to defendant, saying: 'Slick, this is Curley DeLapp. We will be in to get you out if it takes, costs us hell and high water.' 'We are coming down to get you out. We are going to get you out.' Defendant answered: 'Hurry up, Goddamn it, I am waiting for you.' DeLapp sent Hoover and Kenton out to burn the buildings. They returned. Vidauri guarded a paint bucket containing knives, having 5 or 6 inch blades, used in the twine plant. After working on the door for a while, DeLapp called to defendant that they could not make it and were going to try something else. Defendant told DeLapp to come around to the south windows and said he might make it there. DeLapp, Noble, Hoover and Kenton went out and tried to make an entrance through the wall into death row with the sledge hammer. Defendant and Laster talked to DeLapp through the open windows and had him go back and work on the door. They again started to work on the door and DeLapp called to defendant saying: 'We are going to try again.' Then, in a short time someone produced a key and the men came into B Basement proper. DeLapp and also Kenton demanded Dietzel's keys, threatening to kill him if he refused to hand them over. Dietzel insisted he did not have the keys and did not give the keys to them. DeLapp with the help of others, then broke the lock on the second door with a sledge hammer. DeLapp, Noble, Kenton and Hoover immediately entered to where guard Dietzel was. They placed Dietzel on a small table and searched him for the keys, Kenton pulling the lining completely out of his coat. DeLapp ordered Dietzel to call the warden's office and immediately took the telephone from him. About this time the door to death row proper opened. Noble and Kenton placed Dietzel in one of the death row cells, where he remained for about twenty minutes, and was then taken up the steps and placed in the mop room in B Hall.

DeLapp, Noble, Kenton, Hoover, Vidauri and one Miller finally released defendant and Laster, as well as other prisoners who desired to be released from their cells in death row. DeLapp led them up the aisle and said to the onlookers: 'Get back men, they are coming out now'; and when they came out and stopped, DeLapp put his arm around defendant's shoulders and said: 'Gentlemen, I have brought you this far, this is your leader from here on.' Defendant answered: 'Well men, I am ready to work.' They then went into the room where Vidauri was guarding the knives and returned to death row armed with weapons. Defendant told Vidauri to go ahead but Vidauri answered, 'No, I am going with you. I am all the way with you guys.' They then went back into death row. DeLapp had the other inmates go upstairs in B Hall.

Defendant, Laster, Hoover, DeLapp, Kenton, Noble and Vidauri tried to break into Creighton's cell. They had a sledge hammer, a pole and other weapons. Creighton had jammed his lock with concrete and a comb. Defendant said he was going to settle the score with Donnell and Creighton. They broke Creighton's jaw in two places, using a pole. He got the pole away from them, and started using it on them. Defendant told Donnell they would be over to get him next. They could not get Creighton's cell door open and started working on Donnell's door. Creighton heard Donnell's door go back and saw the seven men walk up to go into Donnell's cell. He could not see through the cell walls. He heard Donnell hollering: 'I ain't no rat, I ain't no snitch. And I ain't never harmed you boys,' and he was begging them. Pretty soon Donnell was going Oh, oh, and he hollered real loud and got to kind of gurgling. The men then ran out of Donnell's cell and up the aisle. They went to a wash absin and each washed his hands. Defendant and Noble took off their undershirts and discarded them.

Donnell received a multiplicity of wounds. He had five stab wounds in the front and four stab wounds in the back on the left side in the region of the heart and lungs. Two of the front wounds passed completely through his heart and two of the back wounds penetrated his heart. His skull had sustained an egg shell type fracture, three or four inches in area, a multiple crushing type fracture of many small fragments, which could have been made by a bloody, 16-pound sledge hammer found alongside his body about 10:30 p. m. that day by an officer. He had other wounds on his body.

II. Defendant contends error resulted from the court's failure to instruct on murder in the second degree and manslaughter. The defense was an alibi. The only submissible issue of guilt under the evidence was murder in the first degree. State v. Taylor, 347 Mo. 607, 148 S.W.2d 802, 805; State v. Clymer, Mo., 159 S.W.2d 808, 812; State v. Barbata, 336 Mo. 362, 80 S.W.2d 865, 868[1, 2]. See State v. Laster, Mo., ...