Wolfe v. Nash

• Decision Date: 26 April 1962
• Docket Number: No. 13356-3.,13356-3.
• Citation: 205 F. Supp. 219
• Parties: Ronald Lee WOLFE, Petitioner, v. Elbert V. NASH, Warden, Missouri State Penitentiary, Respondent.
• Court: U.S. District Court — Western District of Missouri

205 F. Supp. 219

Ronald Lee WOLFE, Petitioner, v. Elbert V. NASH, Warden, Missouri State Penitentiary, Respondent.

No. 13356-3.

United States District Court W. D. Missouri, W. D.

April 26, 1962.

James Herd, of Deeba, Sauter & Herd, St. Louis, Mo., for plaintiff.

Ben Ely and George Drapper, Asst. Attys. Gen. of Missouri, Jefferson City, Mo., for defendant.

DUNCAN, Chief Judge.

The Petitioner was charged with statutory rape of an eight year old girl, and tried under the Habitual Criminal Act of Missouri, Section 556.280¹ RSMO 1949, V.A.M.S. He was found guilty by a jury of the offense of "rape under the statute". The death penalty was imposed by the court.

The petitioner appealed from the judgment and sentence of the court to the Supreme Court of Missouri, and there the judgment of the court was affirmed. State v. Wolfe, 343 S.W.2d 10. The petitioner exhausted all of his remedies, including certiorari to the Supreme Court of the United States, which was denied, and the matter is now before this court on a Petition for Writ of Habeas Corpus.

This court issued a show cause order, and a full and complete hearing was held upon all of the issues raised by the petitioner.

A reading of the record of the trial and of the hearing on the Petition for Writ of Habeas Corpus clearly reveal that the charges in the petition are not borne out by the evidence, and that most of the questions raised therein are not within the jurisdiction of this court.

However, in view of the seriousness of the penalty imposed by the court, I think a full and complete discussion of all the questions raised by the petitioner may be helpful in arriving at a final determination of his fate.

The facts are that the petitioner was released from the United States Penitentiary at Atlanta, Georgia, on Friday, October 16, 1959, after having served for approximately forty months. The prison authorities purchased a bus ticket for him from Atlanta, Georgia, to Montgomery, Alabama. Upon his arrival in Montgomery, he stole an automobile and drove almost continuously back to Georgia and then to Decatur, Illinois, arriving there on Saturday evening, October 17, 1959.

While at Decatur, Illinois, he contacted an individual with whom he had a prior acquaintance, and he purchased from him 20 or 21 one-quarter grain morphine tablets. He also purchased four sticks of benzedrine, each of which was cut into 8 parts. Petitioner states that at the time of the purchase of the morphine, he was given a needle for the purpose of injection, and that he acquired twelve small vials of sterilized water in a container.

Petitioner contends that he took one or two shots of morphine intravenously and some benzedrine before leaving Decatur about 1:00 on Sunday morning, October 18. He drove from there to St. Louis, where he likewise stayed a short period of time, had a sandwich and a cup of coffee and drove from there to Troy, Missouri, the scene of the offense, arriving at Troy some time around 1:00 or 2:00 on the afternoon of the 18th. He states he had taken a morphine tablet either by injection or orally and benzedrine about each four hours from the time he arrived at Decatur, Illinois, until the time of his arrival in Troy, and that he took one shot after his arrival that afternoon.

At the time of petitioner's arrival, there was a church carnival in progress, which he attended. The victim, an eight year old girl, was in attendance at the church with her parents. After the evening meal she went outside of the church and there was tempted by the petitioner with a gift of candy. He prevailed upon her to get in his automobile. She first entered the back seat of the car after he told her he would drive her around to the front of the church.

A few minutes after she had entered the back seat, he stopped and she got into the front seat. He drove several miles into the country, and some time around 7:30 p. m. he entered a side road, stopped the car and proceeded to fondle the child in various ways. He fully described his criminal actions and his failure to effect a penetration, in his statement later given to the authorities.

The child was crying and he proceeded toward a farm house approximately two and three quarter miles east of Troy. He let her out with instructions that she ask the people who lived in the house to communicate with her parents and tell them where she was. The farm home had no telephone, but the owners discovered her plight and took her in their car into town and delivered her to her parents.

She immediately reported what had happened to her and was taken to the hospital by her mother, where she was examined by a physician. She was bleeding at the time she was taken to the hospital, and there was considerable blood on her underclothing. Examination disclosed a severe tear of the vagina.

The next morning two physicians proceeded to repair the damage that had been done to her.

Immediately upon her return and reporting what had happened, an alarm was sent out for the person who answered the description of the petitioner. Such a person was seen a short distance from the town attempting to syphon gasoline out of an automobile. He immediately left and was pursued, but was lost in the chase.

Petitioner's evidence reveals that between the time of the commission of the offense and the time he was taken into custody, he had taken one additional shot of narcotics intravenously. He thought it was between Troy and Hannibal.

About 2:00 o'clock in the morning, in the town of Hannibal, approximately 60 miles from Troy, a car answering the description of that driven by the sought person was sighted by cruising officers. They immediately gave chase, at speeds ranging up to 60 or 70 miles an hour, fired a shot, and the pursuit terminated in a dead end street.

Petitioner was arrested in Hannibal about 2:00 a. m. and petitioner says that at the time of his arrest, he was standing beside a truck. The two officers who participated in the arrest said he was under a truck attempting to hide. He was booked at the police station at 2:15 a. m. He says that after the chase started, he threw away the needle and the sterilized water in the container, but that he retained the morphine tablets and the pieces of benzedrine, which were about the size of the rubber on a lead pencil, contained in a small vial in the fly of his trousers.

According to the arresting officers, immediately upon his being taken into the police station, his clothing and belongings were taken from his body for a further search. Nothing in the way of narcotics was found. The clothing was returned after the search.

The evidence further reveals that the State Highway Patrol, the FBI and the officers from Decatur, where the automobile had been stolen, were notified. The State Highway patrolman who first viewed the petitioner at the jail at Hannibal, observed blood on his pants, and asked him where it came from. His answer was that he had had intercourse the night before with a prostitute.

Some time around 9:00 o'clock in the morning, petitioner was interviewed by the local agent of the FBI. This interview was confined exclusively to the theft and transportation of cars, not only the one which he had in his possession at the time of the arrest, but others that had been stolen along the way. He gave a statement of these activities to the agent. The questioning by the agent was confined to questions involving a violation of Federal laws.

Prior to the interview by the FBI, petitioner remained in his cell, and, according to his testimony, took no further narcotics. He says that during this period of time, he was sick, had been vomiting, suffered from diarrhea, was jerky. In other words, he fully and accurately described the symptoms that would follow withdrawal of the use of narcotics from a narcotic addict.

After his interview with the FBI, petitioner's fingerprints were taken, and, according to his own testimony, he went back to the lavatory for the purpose of washing his hands; he says he needed a "fix" by that time, and that he took ¼ grain morphine and a piece of benzedrine. Shortly thereafter he was brought back into the chief's office, and the sheriff and deputy sheriff of Lincoln County, the county in which the crime had been committed, began their questioning of him.

After questioning by the officers, he gave them a statement which was written by the deputy sheriff and duly signed by the petitioner. This statement was concluded shortly after noon of October 19. This questioning period lasted about an hour and a half. He was immediately returned to Troy, and a complaint was filed against him charging him with rape, and he was duly arraigned. He did not have counsel.

His bloody clothing was taken away from him in the jail and he was given some other clothing. After his arraignment he was taken by the officers to a clinic in Troy and a doctor took a sample of his blood for purposes of analysis. (This was probably done in violation of his legal rights, but the result of the test did not in any way prejudice his rights, because the question of importance at the time was whether the blood upon his clothing and on the car seat was that of the victim.)

Several days after he was admitted to the jail, he and another prisoner escaped. He was apprehended later in Franklin, North Carolina and returned to Troy. After his return the court appointed two lawyers to represent him and he was arraigned before the Circuit Court of Lincoln County on December 28. He entered a plea of not guilty, and thereafter on January 11, 1960, pursuant to leave of the court, the prosecuting attorney filed an amended information charging the defendant under the Habitual Criminal Act, § 556.280 V.A.M.S. supra, and set out therein the convictions and the times and places thereof.

Shortly thereafter, upon the petitioner's application, a change of venue was granted to Pike County, Missouri, and the case was set for trial on February 29,...