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State v. Lee.

about four o'clock p. m., preparing to leave for Glasgow, Missouri. None of the railroad men at that time, knew of the assault, and no one in the town knew of it, except Chief of Police Harris. Just before defendant took the train for Glasgow, he had a talk with Chief Harris, and volunteered the statement that "The man who committed that crime ought to be tarred and feathered out in the middle of the street, and I think I can give you some evidence." He then said to Chief Harris that two fellows had caught the train going east and if he would wire to Glasgow he might catch them. At this time, Mrs. Dahmm was in the sanitarium at Independence, having been taken there by Chief Harris.

The defendant took the train for Glasgow, and after a more minute description of the assailant had been obtained from Mrs. Dahmm, a telegram was sent, calling for the arrest of defendant. He ran nearly six miles, fleeing from the officer, before he was arrested. After being brought back to Jackson County, when approaching Independence, he asked Chief Harris to take him on to Kansas City, as he did not want to stop at Independence. The Chief complied with his request, and placed him in the jail at Kansas City, until the following morning. When the Chief came for defendant to take him to Independence, he protested against going, and said he wanted to plead guilty. Without any threats or promises from anybody, he then told the Chief of Police and the Assistant Prosecuting Attorney, that he was guilty of the crime charged against him, and wanted to plead guilty. At his request, a written statement as to what occurred, was prepared and signed by him, ir regard to the assault, but he changed front and denied therein that he had committed the rape. Said statement was offered in evidence and is in words and figures following, to-wit:

"July 2, 1920.

"Statement of Walker Lee, made July 2, 1920, to Chief Harris and Will S. Guinotte, Ass 't Pros. Atty. at

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State v. Lee.

the office of the Prosecuting Attorney at Kansas City. "My name is Walker Lee. I am 36 years old and a single man. I have lived at Roanoke, Missouri, all my life-my mother, Mary Jane Lee, is living there now. I came to Independence, Missouri, on June 19, 1920, and was employed by the Chicago & Alton Railway as a section hand. I worked on track near Alton Ave,, which was about two blocks from Mrs. Dahmm's house. At night I slept in the boarding car with the other hands.

"I quit the job on the railroad the morning of the 28th of June, 1920. Lloyd Snoddy and Pat Casey, two colored boys who lived at Glasgow quit at the same time. We were going to Glasgow that night to get our pay. I shot 'craps' that morning and ate dinner about 12 o'clock at the boarding car. I loafed around after dinner about 2:00 o'clock I walked east on the tracks about two blocks where I passed a house that sits about 50 feet from the tracks. I walked on up the track a little ways and then came back and went down to this house to get a drink. A woman came to the door and I asked her for some matches and she said 'to come on in' and she gave them to me. There was a piece of stovewood by the door and I picked it up and held at my side. The woman asked me where I lived and what I was doing and I told her that I had been working on the railroad and was going home to Glasgow. Her head was turned away from me and I hit her over the head with the club. I do not remember how many times I hit her. I then ran out of the house and went back to the boarding car. I was passed down to Glasgow on the 5:27 train, and then to Mexico where I caught the Wabash to Moberly where I went to see my sister, Minnie Lee, who works at the Woodland Hospital. I came back to Slater Tuesday night and Tuesday morning, Wednesday morning the officers at Slater tried to arrest me. I got away and went to Galitan where I was arrested by two officers from Glasgow and taken back and confined in the jail at Glasgow, Mo. I was returned

State v. Lee.

to Independence by Chief Harris Thursday. This statement is made of my own free will and accord no threats or promises having been made by any one, but because it is the truth.

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The evidence shows that after defendant was arrested and brought to Jackson County, Mrs. Dahmm identified him as the man who assaulted and raped her.

The only testimony offered in behalf of appellant, was that given by himself, in which he testified that he was thirty-seven years of age; that on the 28th of June, 1920, after quitting his job he came back to the bunk car and went to the railroad pond to take a swim; that he found other boys in the pond and did not go in, but watched the others for about one hour; that he then came back, talked to the foreman, and, with the other railroad employees, received a pass to go to Slater; that the police officer who brought him to Kansas City, tried to get him to make a statement, by saying there was a mob waiting for him; that Chief Harris told him of the crime the day it was committed; that he did not admit to the officers, that he had ever seen the club before; that he did not go to the house of Elizabeth Dahmm on the 28tth of June, 1920; that he did not ask her for matches; that he did not have the conversation with her on said date; that there was no blood on his hat and overalls and that he did not commit this crime.

Other testimony in the case tends to corrobate the statement to the effect that defendant was the man who made the assault on Mrs. Dahmm, as heretofore stated.

The court gave five instructions covering the case, which were not objected to by defendant, and the jury thereafter returned into court the following verdict:

"We, the jury, find the defendant, Walker Lee, guilty of rape as charged in the indictment and assess his punishment at death."

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State v. Lee.

Defendant, in due time, filed motions for a new trial and in arrest of judgment. Both motions were overruled, he was thereafter sentenced and judgment entered, in accordance with the statute; and an appeal was duly granted him to this court.

I. Defendant is not represented here by counsel, although he has been convicted of one of the most atrocious crimes known to our law, that of rape. We, therefore, feel the responsibility devolving upon us, of making a thorough examination of the law and facts, to ascertain whether defendant has had a fair and impartial trial, and to determine whether he has been convicted upon substantial evidence.

While no assault has been made upon the indictment, we have examined the same and find it to be in proper form. [Sec. 3247, R. S. 1919; State

Indictment.

v. Warren, 232 Mo. 185, 199; State v. Bur.

ries, 126 Mo. 565-6-7.]

II. The court gave five instructions to the jury, which were not objected to by appellant, as to either form or substance. They clearly, properly and fairly declared the law by which the jurors were to be governed in arriving at their verdict. As no complaint was made, or objection urged, against the instructions given, we have not deemed it ne

Instructions given.

cessary to set them out.

III. It does not appear from the record, that defendant offered any instructions, aside from those given, nor does it appear that any request was made of the court, to instruct upon any other branch of the case, outside of the questions properly covered by the instruc

Failure to

Instruct.

tions given. The complaint, therefore, in defendant's motion for a new trial, that the court failed to instruct the jury upon all phases of the offense, is without merit; and especially so, as no exception was saved as to the alleged non-direction of the court, in respect to said matter. [State v. Cook,

288 Mo.-4

State v. Lee.

207 S. W. 1. c. 833; State v. Wansong, 271 Mo. 1. c. 59, 195 S. W. 1. c. 1002; State v. Pfeifer, 267 Mo. 23, 183 S. W. 337; State v. Smith, 190 S. W. 288; State v. Gifford, 186 S. W. 1. c. 1060; State v. Taylor, 267 Mo. 41, 183 S. W. 299; State v. Snyder, 263 Mo. 1. c. 668; State v. Sykes, 248 Mo. 708; State v. Chissell, 245 Mo. 1. c. 554-5; State v. Dockery, 243 Mo. 592.]

IV. Defendant, when the jury was being impaneled, objected to the statement of Mr. Curtin, assistant prosecutor, to the effect, that he was charged "with raping a white woman by the name of Elizabeth Dahmm" etc. The court sustained the objection on the theory, that

the indictment did not say Mrs. Dahmm was Remarks of a white woman, but told the prosecutor he Prosecuting Attorney. could say to the jury, that the evidence would show Mrs. Dahmm was a white woman. To our mind the objection made was without merit, as Mrs. Dahmm was present and testified in the case. The jury could see from her appearance she was a white woman. The court, however, sustained defendant's objection to said statement of the prosecutor, and no exception was saved as to the ruling of the court in respect to this matter.

V. Appellant's counsel objected to the testimony of several witnesses offered by the State, on the ground, that the names of said witnesses were not endorsed on the copy of the indictment furnished defendant. The indictment on file in the case, as shown by the record here, had the names of said witnesses endorsed thereon.

Names

of Witnesses

Not on Indictment.

The alleged copy of the indictment, which defendant had, was not produced in evidence. No motion to quash the indictment was filed by defendant, nor was a continuance of the case asked. Even if the original indictment, did not have the names of witnesses endorsed thereon, defendant was in no condition to complain of the testimony of said witnesses,

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