August Spies et.al., plaintiffs in error vs. the people of the state of Illinois, defendants in error. Error to the Criminal Court of Cook County: indictment for murder, oral argument of W. P. Black for plaintiffs in error.
Chicago: Barnard & Gunthorp, law printers, 1887.
36 p.; 23 cm.
At head of title: In the Supreme Court of Illinois, Northern Grand Division. March term, A.D. 1887.
"Delivered before the Supreme Court in session at Ottawa, Ill., March 18, 1887, in closing the argument of the case." -cover.
(CHS ICHi 31443)
August Spies et.al., plaintiffs in error vs. the people of the state of Illinois, defendants in error. Error to the Criminal Court of Cook County: indictment for murder, oral argument of W. P. Black for plaintiffs in error.
AUGUST SPIES ET AL.,
Plaintiffs in Error,
THE PEOPLE OF THE STATE OF ILLINOIS,
Defendants in Error.
ORAL ARGUMENT OF W. P. BLACK,
ATTORNEY FOR PLAINTIFFS IN ERROR.
DELIVERED BEFORE THE SUPREME COURT IN SESSION AT OTTAWA, ILL., MARCH 18, 1887, IN CLOSING THE ARGUMENT OF THE CASE.
(REPORTED BY J. A. SAWYER, STENOGRAPHER.)
CHICAGO: BARNARD & GUNTHORP, LAW PRINTERS, 44 & 46 LASALLE STREET, 1887.
AUGUST SPIES ET AL.,
Plaintiffs in Error,
THE PEOPLE OF THE STATE OF ILLINOIS,
Defendants in Error.
ARGUMENT OF W. P. BLACK,
FOR PLAINTIFFS IN ERROR.
MAY IT PLEASE THE COURT:
I say in all sincerity that the plaintiffs in error whom I represent are here asking justice. We claim that upon a fair consideration of the evidence adduced in this record, under the rules of law properly applicable thereto, these defendants, these plaintiffs in error, are shown to be innocent of the crime of which they stand charged, and of the commission of which they have been convicted.
In reference to that conviction, we claim that it was induced because, first, the case was tried before a tribunal that had prejudged it; that such a tribunal was secured because of the grave, persistent and inexcusable errors of the trial court in the rulings in reference to the qualifications of jurors. But beyond that, we claim that that conviction was induced by the introduction
of improper testimony under the application of improper rules, or supposed rules, of law; and that it was measurably contributed to by improprieties, which characterized the progress of the trial itself, alike from the judge upon the bench and the prosecuting attorney who represented the people.
The improprieties of the closing argument of the prosecuting attorney are frankly confessed here; but the claim is made that they were not material. In view of the fact that these improprieties are confessed, I shall refrain from commenting here upon them; but I shall assume that your Honors, in a matter of this gravity, will consider in the briefs that are submitted the evidence as to the character of those improprieties, with the view of determining properly whether or not they were light and trifling, or whether they were material, such as in their nature would tend to the corruption of the administration of justice.
With reference to the improprieties of the utterances, expressions and suggestions of the trial court, one need not comment upon their materiality. In a case of this character, the moment that a trial judge improperly expresses himself, manifests his bias, or indicates his desire, a wrong has been done, the materiality of which cannot be overlooked. The gentlemen upon the other side have not entered into the discussion of that branch of this case. I shall not do it either, under the circumstances, because it is an unpleasant portion of the case. But here, also, I shall ask your Honors, and I shall expect, in view of the gravity of the interests that are at stake, that your Honors will carefully consider what we have submitted in our brief, and what the record shows, as to what was said and done by the trial judge, that, as we claim, did contribute, and in the nature of things could not but contribute, to this result; and inasmuch as there were these consequences attending these actions, they also tended to the corruption of the administration of justice.
The punishment of crime in a civilized community is important. The due administration of the law is infinitely more important. The individual criminal may work individual havoc. The overthrow of the law
works the ruin of the state. The individual criminal within the circle of his personal life and activity, may work much harm; but if the confidence of the people in the due administration of the law be impaired, the repose of the people upon the institutions of our civilized state disappears, and already they await chaos.
We have been told that the question here involved is, whether or not the law is strong enough to vindicate itself. True! But the law never yet has been required to vindicate itself, except against those who have attempted to pervert its administration. I do not say consciously. The instrumentalities through which the law is administered are human. The officers of the law stand upon one side of the question, drink in the prejudices and biases of the time and public opinion that is about them, and oftentimes are led to the perversion of the law. The long line of reversals, the long line of setting aside of old precedents for the establishment of new, are but evidences of this truth. If the law is imperiled here or in this case, it is not in peril because under the law these plaintiffs in error may be adjudged entitled to a new trial, or even their liberty; but it is imperiled because the processes of the law have been perverted to bring about a result of injustice; and persistent injustice in the temple of the law is a crime! It is more important that the constitutionally-guaranteed rights of the citizen should be preserved and strictly regarded in the administration of the law, than that even one confessedly guilty should be punished. How much more important, then, when those who make their appeal to you stand here protesting and declaring their innocence of this crime, how much more important that your Honors should determine, after a careful, conscientious and earnest consideration of this record, whether or not the rights of these plaintiffs in error have been disregarded in this case!
One of the constitutional rights, than which none is more sacred, none more essential to the repose of the citizen and to the security of the state, is the right of every man accused of crime to be tried by an impartial jury. Whenever a man is brought to the bar of justice he comes panoplied about with the presumption
of innocence. That is not an idle presumption. It is a substantive presumption which the law guards. He is entitled to an impartial jury, because he is entitled to the benefit of that presumption. Whereas, if he is brought before a jury who have prejudged the case, that presumption of innocence has already in their minds been taken away, and instead of standing with that defense, he is compelled, in the first instance, to adduce proof of his innocence before the jury is ready to consent to his acquittal. The gentlemen upon the other side maintain that we had such a jury in this case. And yet one of the jurors (not a juror who sat, but in the view of the rulings which were made I cite the case), a proposed juror, said that it would take strong evidence and a clear preponderance of the evidence to make him consent to acquit the defendants; and it is said that the ruling of the court-that that man was a competent juror-was right!
I do not propose to go over again the illustrations that were read by my Brother Zeisler. I propose to call attention to a few other cases illustrating the rulings of the court; and then to review the suggestions made by my Brother Grinnell in reference to this jury.
H. N. Smith, when presented as a talesman, and examined with reference to his competency to sit as a juror, said that he had formed a quite decided opinion as to the guilt or innocence of the defendants; had read the newspapers at the time; had had frequent conversations in regard to the matter; had expressed his opinion, and still entertained it. He said he was afraid he would listen a little more intently to testimony that agreed with his opinion than to testimony on the other side. Then followed these questions and answers, taken from the record verbatim:
"Q. That is, you would be willing to have your opinion strengthened, and would hate very much to have it dissolved? A. I would. Q. Under these circumstances, do you think you could render a fair and impartial verdict? A. I don't think I could. Q. You think you would be prejudiced? A. I think I would be prejudiced, because my feeling is very bitter. * * * Q. The question is whether or not your prejudice
would in any way influence you in coming to an opinion, arriving at a verdict? A. I think it would. Q. You think it would take less testimony as a juryman to come to the conclusion which you now have than to come to the opposite conclusion? A. Yes, sir. Q. That is your best judgment now? A. Yes, sir."
Upon these questions and answers Mr. Smith was challenged. He was taken in hand by the other side. He was educated and led along by the other side and the court until he said, yes, he rather thought he could lay aside his feelings and prejudices, and render a verdict in accordance with the evidence-a fair and impartial verdict. The challenge for cause was thereupon overruled, and it was held that this man was competent; and we would have been forced to take him upon the jury had we not challenged him peremptorily!
Let me read another examination or two:
H. L. Anderson (Vol. C. of the record, p. 517), said that he had read and heard about the Haymarket affair, and formed an opinion as to the guilt or innocence of some of the defendants; that he had frequently talked the matter over with other people, and expressed his opinion as to the guilt or innocence of the defendants, which opinion he still retained, and which was based not only upon what he had read but what he heard; that he was sure he could lay aside his prejudice and grant a fair trial upon the evidence. That he was well acquainted with some of the police force who were present at the Haymarket, and they had given him their views of the matter since that meeting, and told him what occurred there in connection with the effort to disperse the crowd. That some of them were injured by the explosion of the bomb, and that he knew well one of the parties killed by the bomb. That he had formed an unqualified opinion as to the guilt or innocence of the defendants which he regarded as deepseated, a firm conviction that THESE DEFENDANTS, OR SOME OF THEM, WERE GUILTY. That as a result of the conversation that he had with the policemen present at the meeting, he reached his opinion as to the guilt or innocence of some of the defendants.
And yet this juror was held by Judge Gary to be competent, and we had to excuse him by a peremptory challenge.
Another examination, that of M. D. Flavin.
He stated that he had heard and read about the Haymarket affair, and formed an opinion as to the guilt or innocence of the defendants of the murder of Degan, which opinion still stood pretty strong, which he still entertained and had expressed to others. That one of the officers killed, Officer Flavin, was a relative, although his relationship was distant, and for this reason his feeling was perhaps different from what it would have been, and occasioned a very strong opinion as to the guilt or innocence of the defendants, or some of them. That he stated, in discussing this matter with others, that he believed what he had heard and read, not so much what he had read as what he had heard. That he believed he expressed the opinion that what he had heard was a true narrative. He was thereupon challenged for cause.
To Mr. Grinnell he stated that he read the accounts of the Haymarket, but did not believe he had ever told anybody that he believed the story that he had heard and read was a true story; did not express any opinion as to the truth of the details; but stating he believed he could give a fair and impartial verdict, challenge for cause was overruled, to which defendants excepted, and then challenged peremptorily, in order to exclude him from the panel.
The position that was taken by Judge Gary, as evidenced by these rulings, with reference to the jurors throughout, was, that if a fairly intelligent man came forward, no matter what prejudice he admitted, no matter what conviction he admitted, no matter how strongly he might confess himself already committed against the defendants in the case, still if he would say that he believed that he could render a fair and impartial verdict, that statement, under the statute, made him a competent juror. To get rid of him, we were compelled to challenge, in every such case, peremptorily.
Now, I am not going to spend much time in arguing to your Honors the utter falsity and illegality of such rulings. I am not going to insult your intelligence by arguing that a jury of such men as these whose examinations I have read, would not constitute a fair and
impartial jury to try these defendants by. No! But I am going to call your Honors' attention to just one opinion bearing directly upon such questions, and upon this general position taken by Judge Gary. That is the opinion in Stevens v. The People, 38th Mich., 742.
And right here I want to say, in passing, that I differ entirely from my brother Grinnell in his statement that the statutes of New York and Michigan are substantially the same as ours. They are not. And inasmuch as our statute was passed subsequently to these others, with a special and specific difference that before the passage of our statute had been recognized, not only by this court but by all courts before whom the question had come, I maintain that the difference between the statutes is an essential difference and one that cannot be overlooked. The difference is this: At the common law it was held that the mere formation of an opinion (and before our statute was passed, our constitutions received the construction of this court, and the constitutions of other states received the same construction, being in substance in the same terms), it was held that the mere formation of an opinion, hypothetical in its character and not fixed, based upon the assumption that what had been heard or read was perhaps true, but without any fixed opinion as to the truth of what was heard or what was read, and unaccompanied by an expression of that opinion to others, did not disqualify him, did not render a juror an incompetent and partial juror. But every authority before whom the question had come, had held that between the mere formation of such an opinion and the expression to others of that opinion there was a marked difference, growing out of the constitution of the human mind. A man who has once, and especially upon any question of great public concern, as this question was, committed himself publicly to the advocacy of any view, to any opinion, has become in that act the partisan of the opinion expressed. And I maintain that when the legislature of the State of Illinois adopted a statute in some features like the prior statutes of the State of New York and the State of Michigan, and left out that characteristic as to the expression of the opinion, it was designedly
done. It was a material omission from that statute; and the court could have no right, in the construction or application of that statute, to import into it words omitted therefrom, especially in view of the fact that those words are found in the other statutes from which presumably ours was borrowed. In other words, I maintain that if our legislature had before them, as presumably they did, the statutes of these sister states, and left out this important feature, it was done for a purpose; and it does not lie with the court to supply that which the legislature has thus omitted.
Now to this decision, and then to a few other suggestions, before I pass from this branch of the argument.
Says Justice COOLEY, delivering the opinion in the 38th Mich.:
"The constitution of this state provides that in every criminal prosecution the accused shall have the right to a speedy public trial by an impartial jury. Of course, no legislation can take this right away. In Holt v. The People, 13 Mich., 224, decided long before the act of 1873 was passed, it was decided by this court that the law did not require that a juror should be entirely unimpressed with any views as to the guilt or innocence of the person on trial, but only that he should not have an opinion of such a fixed and definite character as to leave a bias on his mind which would preclude his giving due weight to the presumption of innocence. In that case we followed what we believed to be the settled law of the country, citing in support of it, among others, the opinion of Chief Justice Marshall in Burr's case. * * * The question on this record is, whether that jury can be an impartial one whose members are already so impressed with the guilt of the accused that evidence would be required to overcome such impression. It seems to us that this question needs only to be stated; it calls for no discussion. This woman, instead of entering upon her trial supported by a presumption of innocence, was, in the minds of the jury, when they were empaneled, condemned already; and by their own statements, under oath, it is manifest that this condemnation would stand against her until removed by evidence. Under
such circumstances it is idle to inquire of jurors whether or not they can return just and impartial verdicts; the more clear and positive were their previous impressions of guilt, the more certain may they be that they can act impartially in condemning the guilty party. They go into the jury-box in a state of mind that is well calculated to give a color of guilt to all the evidence; and if the accused escapes conviction, it will not be because the evidence has established guilt beyond a reasonable doubt, but because an accused party, condemned in advance, and called upon to exculpate himself before a prejudiced tribunal, has succeeded in doing so."
Now as to the jury that actually tried this case: Nine members of that jury admitted their prejudice or their pre-judgment. Perhaps you will say to us, why did you take such jurors? And my brother Grinnell's argument lies practically along the line that we took these men, or some of them, against whom these objections were raised or existed, when we were not compelled to take them. He advanced the argument before your Honors that because when we took these men under these rulings there were still with us certain peremptory challenges unexhausted, therefore we have no occasion to complain. Our main complaint in this matter is this: Not the complaint of an isolated ruling as to an individual juror, which might be met by a peremptory challenge and somebody else entirely satisfactory put in his place, and where it might be said it was damnum absque injuria, as your Honors have said in such a case; but our complaint is, that from the time these jury examinations commenced a line of rulings was established, under which we had to face the fact that we could not get an impartial jury; that it was vain for us to make the effort; that we must content ourselves with choosing out of those who were brought to us and placed before us those who seemed the least objectionable.
Hence our action in the case of Mr. Denker, whose examination has been read. He admitted his prejudice. He admitted that he had formed and expressed an opinion upon the subject of the guilt or innocence of these defendants; he stated expressly that he believed that
opinion would prevent him from rendering a fair and impartial verdict. He was thereupon challenged for cause. The challenge was overruled. Then went on the examination which my Brother Grinnell read in your Honors' hearing, which showed apparent candor and apparent fairness, and we took the man because we were acting under this line of rulings-only to find what? That, when the sentence of death had been spoken by this jury, that man who sat upon it had publicly declared in advance that Spies and the whole damned crowd ought to be hung! Those were his words; words proved by the affidavits of two unimpeached and unimpeachable witnesses adduced in support of the motion for a new trial. True, Mr. Denker's affidavit denying that he made that statement to those men was presented. It was one affidavit against two. It was the affidavit of the juror charged against the affidavits of two disinterested parties, who were, as stated, unimpeached and unimpeachable. The trial court chose to give weight to his affidavit rather than the affidavits of the others. And yet, in that affidavit, he admitted that he had frequently expressed to others his condemnation of the accused; and, strange to say, the affidavit does not deny that he ever used the expression attributed to him by these witnesses; it only says he did not use it to them. This court has held that upon such a case made, no matter though the guilt were beyond question and perfectly apparent, the judgment must be set aside. If the guilt can be proved beyond question once by credible and proper testimony, it may be so proved again; and the interest of public justice requires that the proof should be made before a constitutionally authorized and guaranteed tribunal.
I want to ask your Honors in the consideration of this question, and especially in considering the excuse attempted to be made here by the gentlemen upon the other side, namely, that our clients must lose the benefit of this point because of the number of our challenges, and because the last forty-three of our peremptory challenges were exhausted between the securing of the eleventh and twelfth jurors; (and he asked you to make
an inquest of our motives which do not appear in the record, and to say that we were not compelled to challenge peremptorily these last forty-three); when you consider that, I want your Honors to try for a moment to put yourselves in our place, as we stood there in that court room facing a howling multitude that were crying out for the blood of these men; facing a press that in its every issue was demanding vengeance and retribution! Put yourselves under the line of rulings which Judge Gary laid down from the first. Take upon yourselves the solemn and dread responsibility of the guarding of eight lives, and ask yourselves this question: Was it not the duty of these lawyers, when these rulings became manifest as the fixed and determinate rulings of the court, from which nothing would turn him aside, so that it became obvious that the obtaining of an impartial jury was, under the circumstances disclosed in this record, impossible, was it not their duty to choose the least objectionable that were brought before them, and in the meantime to hold their peremptory challenges until the last?
Under a technical rule adopted by your Honors, which was adopted with no thought upon your Honors' part of its application to such a case, we had to exhaust all our peremptory challenges, or we could not raise these questions. We knew that, and yet we were placed in the position that we must guard these lives, and secure the best tribunal possible under the rulings that were forced upon us, and at the same time take heed that we could raise in this court the question as to the propriety of these rulings, and present to your Honors the question whether or not our constitutional rights had been invaded.
But what shall be said now, after this much is said, what shall be said now of the action of the court in reference to the conduct of the special bailiff? I am not going to dwell upon it; but with an affidavit showing that the special bailiff had gone forth into the field committed to the hanging of these men, and announcing that he would select only such men as jurors as would secure this result; upon an affidavit that this could be proved by a certain reputable witness, who would not
give his affidavit, but would appear to submit to examination, the court refused our application for an order for his examination, refused to order the issuance of a subpoena, although it was asked for instanter, refused to take any steps to bring before the court this evidence of this misconduct; misconduct that, if established, showed that the plaintiffs in error were the victims of a conspiracy as infamous as ever wrought judicial murder! Has our constitutional right to be tried by an impartial jury been observed, or disregarded?
Such was the tribunal before which we had to appear, before which we had to present our case. As Mr. Justice Cooley said in the opinion that I have read, if we could have escaped conviction before such a tribunal impaneled under such rulings, it would have been not because the evidence failed to prove our guilt beyond a resonable doubt, but because, in spite of the prejudice of the jurors, and in the face of such a public opinion as I have mentioned, with all its terrible force and power, we were able to demonstrate our innocence. Even that we might have done, we maintain, under proper rulings. Even before this tribunal thus constituted, we maintain that our conviction was in fact wrought by disregard of law.
First. In the evidence permitted to be introduced, and in the rulings in connection with that evidence.
Second. In the instructions under which the case went to the jury.
It is argued by the gentlemen upon the other side that the testimony in this record shows a universal conspiracy against the established order of society, The International. They are compelled logically, in supporting the position for which they contend, to go to the length which they have stated before your Honors (but I venture to say it is a proposition which never before found enunciation in a court) that every man throughout the world who is touched with this great discontent of labor, and has joined the International in its efforts to produce a change in existing social conditions, is guilty of this murder which was on trial last summer in Cook County. That is their position. That is the ground they have taken. And my brother Ingham spent the major part of his time in reading to your Honors certain declarations
which, it was claimed, were admissible for the purpose of showing the "great conspiracy" against organized society, which has its expression and its activity in the International Organization of Workingmen.
I have not the time, and I do not think it necessary if I had the time, to discuss the question whether or not the working people of the world have the right to unite themselves together for action to bring about a change in the conditions under which, as we know, to-day in every civilized form of government the burden of life presses hardly upon the poor and the laborer. They are discontented. They have certain ideas of reform which they have published to the world. And in this case, as against all of these parties, as a material, competent part of the evidence, upon which a conviction was demanded of the jury and is asked to be sustained in this court, there is introduced the platform of the International Workingpeople's Association, adopted in the city of Pittsburgh in the year 1883! What connection is there between that platform and the Haymarket? Take it and read it. It is a platform which speaks of the inequalities and burdens of life as they rest upon the wage workers; claims that of right these things ought not so to be, but that there ought to be a more equitable distribution of the products of the industry of the great masses of the world. Then goes on to say that experience has shown that the privileged classes never voluntarily surrender their privileges, and that the logic of events points to force as the probable solvent of this malady. We may differ from their judgment. We may think that they are wrong. But because they got together and thus formulated their views, and thus announced their ideas, are they parties to the Haymarket?
Take all this evidence together, offered for the purpose of establishing what is claimed to be this general conspiracy of discontent, extending in its ramifications throughout the world, still the question comes, as the principal question by which this case is to be decided, Were these defendants, whether members of that great organization, the International, or not, were they responsible in the eye of the law for the unfortunate and dreadful outcome of the Haymarket meeting? That is
the question which we come around to. I would that a little time were before me for the purpose of discussing somewhat more fully than I can some of these matters that arise; but I want to start now with the Haymarket. I want to work from the Haymarket meeting outward, to show where there comes a chasm between this evidence thus lugged into this case, poisoning and inflaming the minds of the jury, and the act of which the plaintiffs in error stand accused and convicted. If that chasm is unbridged, that testimony and all of it was incompetent, wrongly in this case; and tending, as it did, to the manifest prejudice and injury of the plaintiffs in error, they are entitled to relief as against it, not only under the letter of the law, but under the spirit of justice.
The Haymarket meeting was called for the night of May 4, 1886. The state introduced testimony as to how that meeting came to be called, and as to what was the purpose of that meeting. Upon the testimony of their own witnesses, and I speak here without fear of successful contradiction from the record, the Haymarket meeting was entirely outside of any general plan or conspiracy ever discussed or considered by any of the parties implicated, or attempted to be involved, by the prosecution in this case, or by any of the witnesses who spoke on behalf of the state.
On the night of Monday, May 3, 1886, at a meeting then held, the Haymarket meeting was resolved to be called. What was that Monday night meeting? Let me tell you in a word, referring your Honors to the record and to our brief for the confirmation of what I say. It was a meeting of between thirty and forty, not seventy or eighty. True, one witness for the state says about seventy or eighty, but the other three, speaking of the same meeting, put it from thirty to forty. Thirty or forty men had gathered together that night in the basement under Greiff's hall in answer to a call, published as such calls had been for a long time habitually published. When they got together, what did they do? This was the conspiracy that they entered into there, giving unto it the very utmost scope which the testimony adduced in behalf of the state will support, or even
tend to support. The prevailing discontent and the excited labor conditions then existing in the city of Chicago were briefly discussed. Then Mr. Engel arose (upon the suggestion of the president of the meeting, the state's witness, Mr. Waller, and who was one of the main and leading spirits of that meeting, according to his own testimony), and said that at a meeting of a similar group, the north-west side group, on the previous morning, the plan of action had been laid down, that in the event of conflicts between the police and the striking workingmen, if the police should unlawfully and unjustly attack these strikers, and the word should be brought to these groups, these groups should go to the assistance of the strikers thus attacked. Then certain details as to how the work was to be done were agreed upon. That was the scope of that conspiracy - no broader, no less-as the evidence of the state presented it. That was all there was of it. After the plan had been discussed, adopted and disposed of, and that purpose of the meeting brought to an end, the matter of the conduct of the police on the previous day at what was called the McCormick Reaper Works was considered, and the president of the meeting, the witness of the state, himself suggested that there ought to be called a general meeting of the workingmen to protest against that conduct. As a result of that suggestion the resolution was taken there at that meeting to call the Haymarket meeting, so-called. But this witness of the state, specially interrogated as to whether or not any plan of action for the Haymarket meeting was agreed upon, declared that none was agreed upon; declared that the armed men who were in this conspiracy were not to attend that meeting; declared that there was no expectation or idea that at that meeting there would be any police interference, or any police attack; swore that no arrangements were made either to attend that meeting or to take any action thereat. On the contrary, that it was understood and agreed that the armed men, the men who were in this conspiracy, were to keep away from the meeting on the night of May 4th.
Let me read right here for a moment from the evidence of Waller, the principal witness, as given at page
85 of our brief. And I ask your Honors upon every point where I make a statement as to what is shown by the record, when you shall be in your consultation rooms, and when with you shall rest the grave and splendid responsibility for the demonstration of justice to these men, to examine the record and see whether or or not my statements are verified.
This is what Waller said. Asked on his direct examination, after the evidence showed he had been indefinitely coached by the State, interview after interview, time after time, money paid him again and again by the representatives of the State in the police force, after all this, when asked on direct examination: "What was said, if anything, as to what should be done in case the police should attempt to disperse the Haymarket meeting?" He replied: "There was nothing said about the Haymarket. There was nothing expected that the police would get to the Haymarket." That is their own testimony. And yet, although that was the attitude of the men who called the Haymarket meeting, that was what was then and there expected according to the State's own evidence; although by this testimony it is shown that the Haymarket meeting was altogether outside of any idea of violence, or any purpose of trouble; still, these plaintiffs in error are to be hung, because they were members of the International! Where is the connection between the International and the proposal of these armed men to call a meeting for the purpose of protesting against an alleged outrage, where the testimony of the State shows that they expected no trouble and made no arrangements for any affray?
The meeting at the Haymarket was a lawful meeting we maintain upon the evidence in this record. The gentlemen admit frankly and candidly, my brother Hunt representing the people admits, that these people had a right to get together there in a quiet and peaceable manner to discuss the then condition of affairs, to petition for a redress of grievances, and to take any action consistent with the law. Now, the evidence of the State shows that that was the thing, and the only thing, contemplated in the calling of that Haymarket meeting. While in reference to even the calling of that Haymarket
meeting, the evidence shows that not a man was implicated, save only Engel and Fischer; that the other six knew nothing of the project to call it; had no part in the counsel which resolved upon its being held; while these who were there were parties to an arrangement to call a meeting at which it was expressly agreed and understood that these armed men were not to be present, and at which (the opinion was expressed) there would be no trouble; but because at the meeting, when its dispersal was attempted, some one, whom we know not, threw that fatal and terrible bomb, these men must die! Is it just? Is it law? Upon the admission of the State, if this was the purpose of the calling of that meeting by the parties who called it, and their own witnesses introduced and accredited by them so swore, then it was a lawful meeting in its purpose.
Now, what as to its character? The testimony in this record shows beyond cavil or question that the meeting was a quiet and orderly meeting. Take the testimony of Mayor Harrison. And, by the way, I could not but be astounded at the statement made by Mr. Grinnell, that, with the possible exception of one or two, every witness put upon the stand by us was an anarchist. He knew better! An examination-and in the light of that claim, I ask your Honors, when you look over this record, to look and see if I speak not by the book-an examination will show that a large proportion of the witnesses put by us upon the stand were neither socialists nor anarchists, but mere lookers on, attendants at that meeting. Mayor Harrison is not recognized as an anarchist, and he was the first witness whom we called. Barton Simonson, neither socialist nor anarchist, was the second witness whom we called; and all along the line we were constantly producing men who declared that they were neither socialists nor anarchists, but who were there that night to listen to what was to be said.
Take the testimony of all these witnesses as to the character of that meeting and this is what is disclosed, and I will state this without stopping to elaborate. The meeting at no time exceeded a thousand, including boys and strangers. That was not anything dreadful or terrible! Mayor Harrison says that it became evident to
him, from his inspection on the ground, that there were only two or three hundred that stood nearest the wagon even in sympathy with the speakers, with any extreme views advanced; and while there were responses from the crowd now and then, in large measure those responses were rather guying and chaffing, than bitter; though he says there were some bitter responses from near the wagon. The fact is further, and there is not any question or dispute about it, that when the police moved upon that meeting that night the meeting had dwindled down until it did not exceed from two to four, or at most, five hundred people all told. The speaking had gone on for an hour and a half or two hours, and not a single breach of the peace had even been hinted at. There was merely talk. Parsons had spoken for an hour, making a statistical speech; and Mr. English, the reporter of the Tribune, detailed to report the most inflammatory utterances, can give us, all told, of Parsons' hour speech only what you can read in two minutes, as even having an incendiary or inflammatory tendency.
These speeches had gone on. Fielden was approaching a conclusion to his speech. A cloud came up in the north, and Parsons himself moved an adjournment, and actually himself went away with his wife, and a lady friend who was there with them upon the scene. And yet we are told that there was a scheme that night for violence at the Haymarket! with the parties quietly separating and moving an adjournment. Fielden's response was, in effect: "I will be through in a few minutes, and then we will all go home"; and he went on and talked his special views, as your Honors have heard them. Our views concerning his talk we present in our brief more fully than we can present them here, more fully than the time will allow. But there was no suggestion of violence then or there. There was the usual enunciation that the law helped the rich and ground the poor, the usual denunciation, based, by the way, upon the authority of Congressman Foran, that the law afforded no relief or substantial hope for the poor in their struggle, and that therefore the better plan for them was to do away with such law and get rid of such law: but there was no suggestion of violence; and when
Samuel Fielden, upon the stand, simply and sincerely swore that he had no thought of violence at that time, never having heard of that meeting until nearly 9 o'clock that night, having known nothing of the purpose to call it or hold it, he told the simple truth. And yet Samuel Fielden is to die because he is an anarchist, because he is a member of the International, say the gentlemen upon the other side, and the International talk of force as the dernier resort of the downtrodden! Did that talk relate to the Haymarket? Take the speeches that were made there that night. They were quiet speeches. The meeting was going to pieces, as I said, when the police moved upon it, when that fatal and unfortunate bomb was thrown.
An attempt was made to connect by the evidence directly with the throwing of that bomb, two of the defendants, Fischer and Spies. The gentlemen abandoned that attempt in the instructions asked. They have substantially abandoned it in their argument here. Their position is, that without any proof of that kind still the conviction was right. Their argument is, and it is the argument ex necessitate-it is an argument advanced because the testimony whereby they sought to connect these parties with this crime was absolutely and overwhelmingly met and disposed of-their argument is, that though Gilmer may have wilfully lied, with all the testimony that he gave, and though Thompson may have wilfully lied, with all the testimony that he gave, yet, despite that perjured testimony in this record against these men, this conviction must be sustained. And my brother Hunt frankly says that your Honors cannot tell what the jury did find here-one point of agreement between us! Murder was charged in absolutely contradictory ways in this indictment, by absolutely contradictory methods and by absolutely diverse persons. The state introduced testimony to support one count. They here abandon that testimony; but they say, because the jury were not justified in finding upon that testimony, therefore the verdict is to be sustained, for you cannot tell what they did find! That is the English of my brother Hunt's argument.
A word or two as to what that testimony was. Gilmer
swore that that bomb was thrown out of the Crane Brothers' alley by Rudolph Schnaubelt-the only effort made by the state to identify in any manner the thrower of the bomb-and that Spies lit the fuse, while Fischer stood by. Now, I need not say again that the testimony overwhelmingly disproves that whole story. Fischer is shown by the testimony of four or five witnesses to have been then in Zepf's Hall. Schnaubelt is shown to have been a man six feet three inches high; while Gilmer says that the bomb thrower was five feet eight, nine or ten inches, and he could look over his head; while nearly a score of witnesses in this record swear, and establish beyond controversy the fact, that that bomb was thrown from a point on the sidewalk, somewhere from fifteen to thirty feet or more south from the alley. Again, there are witnesses, numbers of them, who prove to an absolute demonstration that Spies never got down off that wagon until just contemporaneously with the explosion of the bomb, when he was helped to dismount; and when, instantly after having helped him to dismount, Henry Spies was shot by a pistol in the hands of some officer standing by in citizen's clothes.
That testimony is absolutely false. There is not any getting away from this conclusion. And that effort to connect these parties, or any of them, utterly fails, because of the absolute failure of that testimony
Thompson's testimony is, if possible, even more completely exploded. He swears that before the meeting convened he was standing with his back against Crane Brothers' building, some three or four feet from the Crane Brothers' alley, and facing west himself. He swears that while in that neighborhood Schwab came down the street, he not knowing him before, and he inquired of Brazelton as to who that was, and Brazelton said it was Schwab. He swears that very soon after that, Spies rose up on this wagon, and called out, "Is Parsons here?" in a loud tone of voice; that directly after making that inquiry, Spies got down from that wagon, and that he and Schwab entered that alley, going into it about the middle, or between the middle and the north line; that they remained in that alley three minutes;
that after the interval of a minute and a half he heard a voice that he recognized as the voice of Spies, say, "pistols," "police," the last word twice, spoken in such a tone that nothing of the rest of the conversation could be caught; spoken, therefore, in a low tone. He did not look down the alley. He did not turn to see who was speaking. He had never seen Spies before, nor heard Spies speak in the world, except that loud inquiry from the wagon, "Is Parsons here?" addressed to the crowd; yet he undertakes to swear that Spies in that alley uttered those two words. He never heard Schwab speak in his life before. He swears further that after a moment's more interval, he heard this question: "Is one enough, or had we better go and get more?" That is all. He says that then after a short interval of perhaps a minute and a half more, these parties came out of the alley, proceeded to the corner of Desplaines street, west on Desplaines two blocks to Halsted, south-west crossing Halsted to the opposite corner; returned diagonally, as they had gone, to the north side of Randolph street, and then took their journey eastward. He says that on Union street on their return, which lies midway between Halsted and Desplaines, at Union street he passed them, and as he passed them he heard Schwab say: "Now, if they come, we are ready for them;" and Spies responded: "I think they are afraid and won't come," or something of that sort. He says then that he preceded them to the corner of the sidewalk, at the north-west corner of Randolph and Desplaines; there stopped and let them pass him; that they walked diagonally across the street, he walking also diagonally, but a little further to the south, reaching the sidewalk some ten feet south of them; that when they got over to this sidewalk, some other party, whom he thought he could recognize, from a photograph, as Schnaubelt, stepped out from the shade of the wall, joined Spies and Schwab, and there Spies gave something to this other party, and then they all went and got on the wagon.
Now, that is his story. The evidence of a score of witnesses demonstrates its falsity in every particular. Cosgrove, one of the officers of the police force and a
witness put upon the stand by the State, swore that he was present in the crowd around that wagon when Spies got up and said: "Is Parsons here?" That there was a suggestion that Parsons was away somewhere, and that some one would go and look for him. He then swears positively that Spies got down from the wagon, and that with a party of two or three men he proceeded southwesterly to Randolph street-here is the wagon (illustrating on diagram), there is southwesterly to Randolph street-and then he lost him. McKeough, the very next witness, a city detective, an officer, following that up, swears that he also was in that crowd when Spies got on the wagon and said: "Is Parsons here?" He also swears that Spies got down from that wagon and with a party of men moved off; and he swears that officer Myers and himself followed Spies to the corner. Now, that is the interval when, according to this man Thompson, instead of going southwesterly as Cosgrove swears, to the corner, and whither McKeough swears he followed him, Spies went almost due east into this alley, and remained there a period of three minutes, in order to have this conversation about "pistols" and "police," and "is one of them enough?"
That is not all of the testimony. We on our part offered three different witnesses, August Spies, his brother, Henry Spies, and Henry Zahl. Zahl swears he stood in this street southwest from the wagon; that he knew these parties; that Spies passed him going from the wagon directly south-west, precisely as Cosgrove swore, down to that corner, to which McKeough swears he followed him; and he says that the party consisted of August Spies, Henry Spies, Ernest Legner and Rudolph Schnaubelt-(Legner was a witness for the state-he was not produced). Henry Spies and August Spies swore that they went off in this same southwesterly direction, and traveled westward on Halsted street, somewhat as detailed by Thompson; but that nothing of the conversation detailed by him ever took place. And that it never took place is further demonstrated by the fact that Michael Schwab was at that time, as the testimony shows beyond cavil or question, on his way to Deering, where he spoke that night; and that he never met Spies at the Haymarket that night at all.
The testimony of Mr. Thompson is a fabrication from its beginning to its end, judged by every rule of evidence; shown such not only by the testimony that we offered, but by the witnesses of the State themselves. The attempt to implicate these defendants, or any of them, in any personal participation in that act, utterly fails. I do not wonder that it is a branch of the case that the gentlemen upon the other side do not care to argue. I do not wonder that they want to jump it. I do not wonder that they are here saying to your Honors that such testimony is not essential to a conviction. For if that testimony be essential to a conviction, then this conviction is monstrous, and cannot be justified for an instant. But we maintain that it is necessary, that it is essential, on the case as presented by the State, to establish that connection.
Now, right there we come to the question of accessoryship. With the authorities cited by the gentlemen upon the other side as applicable to the facts in those respective cases we have no quarrel. The trouble is that the gentlemen, in all their citation of authorities, absolutely ignore the distinction for which we contend. It is this: We claim that when it is sought to charge a party on the doctrine of accessoryship, by evidence of advice before the fact, with no pretense that he is present at the doing of the crime, that there it is necessary to so far identify the doer of the crime as to show by evidence the relationship between the alleged advice and the consummated offense; that there is a gap that cannot be jumped legally. Let me state again particularly. We do not maintain that it is necessary to show, for instance, that John Jones threw the bomb, or that Peter Smith threw the bomb, or that Rudolph Schnaubelt threw the bomb-that is to say, it was not incumbent on the State, under their indictment, to prove that in the first instance. They in fact undertook to prove it. They failed. We do claim, that having undertaken to prove it, having presented us that case, they were bound to stand by it; and that when we met and overwhelmed that case, we met this indictment successfully. But be that as it may, originally they could have elected to proceed upon the count charging that the bomb had
been thrown by an unknown party, and could have refrained from calling Gilmer and Thompson. But what is the very essence of the crime then? That that unknown party acted in pursuance of advice, encouragement, abetting, aiding, theretofore given by the accused. Our point is this: There can be no finding justified in the law that this bomb was thrown by a member of that conspiracy, or through the procurement of a member of that conspiracy, without evidence showing fairly, and such as to justify the conclusion of the jury based upon it, that THE MAN who threw that bomb had been by the accused advised, aided or encouraged to that act. In other words, it is not sufficient to show simply that certain parties at some prior time contemplated a certain thing, and then to prove that somebody, wholly and utterly unknown, and not by the evidence in any way connected with them, thereafter did that thing, a long interval intervening. That is not at all akin to a case of a lot of parties who join together in a mob, as suggested by my brother Hunt, and where some one in the mob does the act in accomplishing the purpose of the mob. There, of course, every man in the mob is held guilty as a party to the crime, when you show the purpose of the mob, and that the accused was a party to the purpose. Why? Because on the facts there shown it is beyond any question or doubt, at least it is reasonably certain, that the doer of the act, in the doing of the act, was the instrument for the accomplishment of the common purpose of the mob. But if a mob upon the street to-day rushes off in some given direction, and some one man in that mob commits a crime, and it is attempted to hold me on the ground that, at some indefinite prior time, I advised that offense, there has got to be some connection established between the man who committed the crime and myself, and that can only be done by individuating that man, by taking him out of the multitude. The crime is committed: non constat, but that it may have been committed upon the individual malice, ill-will or criminal disposition of the doer of the deed: non constat, but that in the case at bar the bomb-thrower may never have heard of the views of the plaintiffs in error, may never have entered at all into
their plans and purposes. Their plans and purposes for that night were peaceable, and the evidence discloses it!
When it is attempted to be made out that somebody in that meeting, against the then purpose and desire, against the then expressed disposition, of the parties who were there speaking, did a crime for which it is sought to hold them, despite their disclaimer and their opposition; on the ground that at some previous time they had given some advice, or entered into some plan which possibly covered this thing, we maintain that justice and the law alike require that the evidence shall individuate the doer of the crime, and shall meet, legally and conclusively, the hypothesis that the crime may have been committed by some man out of his own malice, and without any reference whatever to any plan or conspiracy of action. One man's malice or misdeed cannot create another man's guilt. And when it is sought to hold one man, on the doctrine of agency, for what is done by another, the evidence must establish the agency.
Now, upon this mob illustration that my Brother Hunt presented, I want to cite a complete answer, from our standpoint, from the books.
The case is that of Rex v. Hoyle, 9 Carrington and Payne, 437. The quotation, however, is taken from Starkie on Evidence, Vol. 2, Part 2, Edition 1842, p. 1381, Rex v. Hoyle being the authority referred to by the text writer:
"A and others were indicted for feloniously demolishing the house of B. It was proved that A and a mob of persons assembled at H. A addressed the mob in violent language, and led them in a direction towards a police office, about a mile from H, some of the mob from time to time leaving and others joining. At the police office the mob broke the windows, and then went and attacked the house of B, and set it on fire, A not being present at the attack on the house nor at the fire. It was held that on this state of facts A ought not to be convicted of the demolition, as it did not sufficiently appear what the original design of the mob at H was, nor
whether any of the mob who were at H were the persons who demolished B's house."
As applicable to this case, it must be made to appear that the man who threw the bomb was a man acting under the advice, encouragement, aiding or abetting of the plaintiffs in error. That principle of law was wholly ignored in the rulings, wholly ignored in the instructions. In support of our views upon that point, we can only refer to our brief. It is impossible to argue them or present them fully here.
There is another branch of the argument to which I wish now to call your attention, and then I have done. I have said to your Honors that this conviction was brought about by illegal evidence, by evidence which came into this case in violation of the rights of the plaintiffs in error; not only their rights under the rules of law, settled of old, but their rights as guaranteed by the constitutions alike of this state and of the United States.
We maintain that the court allowed to come into this case improper evidence, evidence which was practically wrested from the defendants.
First. Under improper cross-examination. Your Honors will find that under the pretense of cross-examination the state in this case were allowed, as against Parsons, Fielden, Schwab and Spies, to go into ground absolutely untouched in the direct examination.
Now, we know that when a man takes the stand as a witness in his own behalf in a criminal case, he makes himself a witness and subjects himself to cross-examination; yet that does not change the rules of cross-examination, but in his case as in the case of any other witness, if the cross-examiner chooses to open up a subject not touched by the direct examination, nor germain to it, he makes the witness his own. Is not that true? If he does this in the case of a defendant, and the court compels the defendant to thus become the witness of the state, and to answer questions intended to criminate him, then there has been a plain violation of that constitutional guaranty, that no defendant shall be compelled to give evidence against himself.
As the most flagrant illustration of this vice we call
attention once more to the matter of Johann Most's letter. Spies was examined by us in order to meet certain matters which had been advanced against him in connection with the Haymarket meeting, and in connection with the McCormick meeting. That was all. That was all the territory we went over with Spies. It was all we thought germain to the inquiry which was before the court. We did not follow over all this territory of speech-making in the labor agitation of the years that had preceded, for it did not seem to us that it was relevant to the issue before the jury. We examined him as to the McCormick meeting, as to the writing of the Revenge circular, as to the Haymarket meeting, and stopped. When the state went on its cross-examination, it almost abandoned that entire field; and then suddenly there was produced and offered to him this letter: Do you know the handwriting of this letter? We objected. He was compelled to answer. I do. Whose handwriting is it? We objected. He was compelled to answer, It is in the handwriting of Johann Most. Did you know Mr. Most? We objected. He was compelled to answer, I did. Did you ever carry on any correspondence with him? No. Did you ever answer this letter? No. I know that I never answered that letter. I don't remember distinctly ever having received it, but I have no doubt that I did, because it is traced to me and it is here, and it is in his handwriting; but I have no distinct recollection of the contents of that letter, or ever having received it, and I know I never answered it.
So as to a postal card. Compelled to answer all these things. And then, to crown the infamy, the postal card and the letter were offered and admitted in evidence over our objection.
Just a word as to the antecedent history of that letter and that postal card. On the morning following the Haymarket, Tuesday, the police officials went to the Arbeiter Zeitung building. They found there the force of that office quietly at work as usual; Spies and Schwab in their positions, and the whole composing force there. They bagged the whole outfit, without any warrant, without any authority of law. There was no pretense at that time that these men had been seen to do this act,
or that they were then engaged in any other criminal act. They simply took the whole of them in. As these men went away, they locked up their property. Shortly afterwards the State, by its detectives, returned and forced the doors, went in there, invading that room, and found a desk, forced the desk, and in the desk found this letter and this postal card. And that is the letter and the postal card which are in evidence here. Then, in order to make out the connection between Spies and the desk, this was resorted to. Spies having been thus arrested, without warrant, Mr. Bonfield the detective, says that he literally went through him and took off of his person everything that he had, and amongst other things, a bunch of keys. And then a witness was put upon the stand to testify that he took that bunch of keys and tried them in the desk and one fitted it. Therefore it was Spies' desk. And the bunch of keys was offered in evidence and accepted in evidence against our objection.
Now, as against the proposition that that was the forcing improperly into this case of matter illegally gotten possession of by the State, and a violation of the spirit of the constitutional amendments as declared in Boyd v. The U. S. in 116th U. S. Reports, we are met by the astounding proposition, put into plain English, that while, if there had been a law of this State which authorized the officers of the law to go and take those things out of the possession of the defendants and offer them in evidence, that law would have been unconstitutional, and the property thus taken under the sanction of legislative enactment could not have been legally admitted in evidence, (and that is the effect of this 116th U. S., admittedly,) yet it is argued that if the State had gotten possession by illegal processes, without any pretense of authority and in violation of the constitutional guaranty against unwarrantable search and seizure, whatever has thus been gathered in, can be offered and properly received.
The fallacy of that position need not be argued. It sufficiently appears in the mere statement of it. But it will further appear, in the reading of this Boyd case, that the decision there was made to turn in principle upon the proposition, that if the matter were seized unlawfully
it could not at all be gotten in evidence; and therefore the law, which attempted to legalize an improper seizure, and to make competent evidence matter thus unlawfully seized, was an unconstitutional law.
My Brother Hunt attempts to meet all that by suggesting the case of a policeman who arrests a man having just committed a murder, and finds a pistol upon him. Why, the law expressly authorizes the taking from the man of the weapon of death when he is arrested upon a charge of murder! The statute law of the state expressly authorizes it; and that is not, within the contemplation of the constitution, an unwarrantable or unlawful seizure. Nothing of the sort. The illustration does not come anywhere within reach of the case, or the position to which it is cited. This case in this 116 U. S. sustains fully the proposition to which we have cited it, and illustrates the impropriety of this line of examination.
Then, there were many other objects unlawfully seized there that were brought in in this same way; taken without warrant, taken without authority, taken in violation of the constitutionally guaranteed rights of these parties; produced and offered in evidence; and the action of the court in their admission is attempted to be supported upon the novel doctrine, that because the state unlawfully and feloniously, through its officers, obtained possession, therefore, the blind goddess must have her hands tied; and this result of crime must be made in a court of justice the foundation of a conviction.
Do I need to say more on that proposition? Can there be a moment's question that the ruling of the court in reference to cross-examination was wrong; that it was materially wrong; that it was material error, aggrieving the plaintiffs in error in this case? Need I argue further that the introduction of this matter thus obtained was illegal?
But there was another line of testimony received over our objection, embracing a vast amount of matter that we claim was improperly admitted. There was evidence admitted of things that were not shown by the testimony in any way to be in pursuance of the alleged conspiracy,
or to constitute part of the res gestae. Let me single out now one illustration which the gentlemen have conveniently omitted to remember. Let me tell you in sober earnest what occurred upon this trial toward the close of it. Some witnesses were called, and there were put upon the table in front of the jury three or four tin cans, that would hold, perhaps, a pint and a half apiece, fitted with a screw top, apparently. As preliminary to doing anything more with these cans than the parading of them around, so the jury could get a look at them, and think there was something mysterious and strange about them, there was testimony introduced that those tin cans were found under a sidewalk, out in a portion of the city about a mile away from where any of these defendants lived; more than a mile away from any of their usual meeting places; and not shown to have been within a mile of where any of these alleged conspirators, nor even any members of the International, ever resided or were even seen; found under a sidewalk, four of these cans. When? A month after the Haymarket meeting! Think of it! They proposed to offer the cans. We objected. We said to the court, There is nothing connecting those with any of these defendants, nor even showing any connection of those things with anybody that was ever connected with the defendants. Now, upon what ground do you suppose the court let those in? Upon the ground that something of that sort was described in Most's book! A book that the prosecution had been in possession of for at least a month; a book which they had gone to the labor of translating into English for the first time in its history; a book whose teachings the state has done more to disseminate than was ever done before! An infamous book! We admit it. But merely because Johann Most described a can, was such a can admissible in evidence against these men, on trial for their lives, without any testimony showing that they ever saw such a can, that they ever read such a description, that they ever touched such a can, or had anything to do with it?
What was this can, or what was its materiality? It was what may be called an inflammable bomb, put in English. This screw top was provided with a little vial.
The can was filled with benzine, or some other inflammable substance. The vial was filled with powder. The vial was stopped with a sponge, the sponge saturated with kerosene. The theory was, that one of those cans could be set down in a place, the sponge lighted, and the fellow who lighted it quietly get away some little distance, by which time it would burn to the powder, the powder would explode and burst the vial, and the benzine would ignite and set the building on fire. Here was that most vulgar of all appeals, an appeal to the property prejudices and passions of the jury, against men who were not, by the evidence, connected directly or remotely, in any manner, with such a structure-simply because Johann Most described it! Non constat, but that these cans were manufactured, and put where they were found, by detectives, after the 4th of May. There was time enough intervening. It would not take very long to make those four tin cans. You or I could go to a tinshop and have it done inside of twenty-four hours. Those cans found under that sidewalk, not traced in any way to the defendants, or any of them, a month after the Haymarket; no pretense whatever that they had ever engaged in any such manufacture; were allowed to be offered in evidence against these defendants, and all of them, in support of the theory that there was a plan here to burn the city! Now, if there was a plan to burn the city, was that competent to be proved in support of the claim that there was a plan also to kill Degan? If the introduction of these cans had any effect or tendency, it was to prove a conspiracy to burn, not necessarily to murder. They were therefore irrelevant, independently of the fact that they were not found in the defendants possession, without some other evidence than this record discloses; but when the proof showed simply that they were found under a sidewalk a month afterward, and a mile away from the residence of any of the defendants, I venture the assertion that there never before in the history of civilization was such a mockery of justice as was involved in the admission of those tin cans before that jury, in a case where the lives of seven men were at stake.
There was improperly received a vast amount of evidence
as to mere narratives and statements; and the very brief in this case, and my Brother Ingham's argument, has reference to, and is practically constructed upon, a narrative by Spies in Grand Rapids. Was it competent? The rule of law is that the acts and declarations of one conspirator, made or done in furtherance of the conspiracy, are admissible, both as against himself and his co-conspirators; but that his mere admissions are only evidence against himself. That whole Grand Rapids talk, if believed in its entirety, was an admission, and nothing but an admission. The later conversation with Wilkinson, if believed in its entirety, was an admission, and nothing but an admission. It was not a declaration in furtherance of the conspiracy. It was a narrative to a third party of what the conspiracy was. It might have been competent against Spies, if it was proper to go into the details of a general conspiracy, as an admission; but that could not make it competent against his co-defendants. And yet the court allowed all that class of testimony to go in against every man on trial, and it became a part of the whole mass of irrelevant and incompetent evidence upon which this conviction was forced in this court of justice!
Now, am I mistaken about that? Mr. Ingham read much of Moulton's testimony as to that Grand Rapids interview. Was it anything in the world but a narrative? Was it in furtherance of the conspiracy? Remember, a conspiracy to do something here in Chicago? Not at all. No pretense that it was. An admission at the most; and yet received in evidence as against every defendant.
There is another point we make. All, or at least very much, of that class of testimony was put in before there was any evidence introduced of any general conspiracy. Admissions and declarations were allowed to come in over our objection as against all the co-defendants, before there had been a suggestion introduced alleging a general conspiracy, in violation of the rule of law as old as the law of conspiracy itself; that before the acts and declarations of a conspirator, even when made in furtherance of the objects of the conspiracy, can be admitted as against his alleged co-conspirators,
there must be a prima facie case of conspiracy made out; or-here is the rare exception to the rule-there must at the time of the offer of the evidence accompany it a statement from the prosecuting officer as to what he expects to prove, in order to vindicate its competency. Nothing of that sort in this record!
Let me mention another rule of law that was disregarded. No rule in the law of conspiracy is more familiar, more absolute, than that the moment that the alleged crime in furtherance of the conspiracy occurs, there is an end of the doctrine; and no subsequent admission, subsequent declaration, or subsequent act of one of the alleged conspirators, is admissible against his co-conspirators. That rule is simple, and as settled as any rule of the law of conspiracy; yet it was totally disregarded in this case. Let me tell you how. Rudolph Schnaubelt is the man that was alleged by Gilmer to have thrown this bomb. The bomb is alleged to have been thrown on the night of the 4th of May. Rudolph Schnaubelt was not on trial. The court, against our objection, allowed the state to call a witness to prove that three days afterwards-two or three-Rudolph Schnaubelt shaved off his beard. What was the purpose of that? Rudolph Schnaubelt had been in their own hands. So had Gilmer. Why did not Gilmer recognize Schnaubelt? Oh, his beard was shaved off; he had disguised himself! If the shaving of the beard did not relate to disguise, in God's name what had it to do in the case? If it did relate to disguise, it was an attempt to show, as against these defendants, the act of an alleged co-conspirator long after the occuring of the crime, not in furtherance of the conspiracy, but tending to incriminate himself.
I am glad that the gentlemen had the decency to refrain from attempting to support or justify such conduct! Let me read just a little bit of that testimony. Let me see how it strikes your Honors. They called a man by the name of Rossbach. I read from page 199 of our brief, where we quote verbatim from the record (Vol. J, 282, 283):
"Q. What is your business? A. Machinist.
Q. Where is your place of business? A. 224 East "Washington street.
Q. Do you know Rudolph Schnaubelt? A. Yes, sir.
Q. Did he work for you? A. Yes, sir.
Q. Do you remember the night of the throwing of the bomb? A. Yes.
Q. Did you see him on Tuesday? A. Yes.
Q. On Tuesday, when you saw him, did he have a beard on? A. Yes.
Q. When did you next see him? A. I next saw him Wednesday morning.
Q. At what hour? A. He came to work at 7 o'clock.
Q. Did he have a beard on that day? (Objected to.)
Mr. GRINNELL: It is for the purpose of identification.
(Objection overruled; exception.)
Q. Did he have a beard on on Wednesday? A. Yes.
Q. Did you see him Thursday? A. Yes.
Q. Did he have a beard on then?
(Objected to; objection overruled, and exception.)
A. Thursday morning he had his beard shaved off.
Q. Did he have a mustache on? A. He had a mustache, but it was clipped off."
The authorities in our brief which show the absolute error of that evidence your Honors will observe when you come to read the brief; but it does not need authority to show that there is no rule upon which such evidence can be justified or excused.
Now, if those matters stood alone, we might not dwell upon them; but they are the indicia of the attitude of the court before whom this case was tried. And when they are woven together, as they were in this case, they explain this verdict. They might have explained it, even if we had had a jury that were unprejudiced; but when such evidence as this was allowed to go before men who confessed that they already had their opinion, based upon the reading of the reports which
they had been poring over for weeks and fully believed to be true, can it be wondered at that reason was swept from her throne, and passion uttered her cry in the Temple of Justice?
Again, the state was allowed to bring in and parade before the jury, day after day, I might almost say wagon loads of stuff created after the 4th of May. Let me explain! Under the pretense of satisfying the jury that dynamite, the dynamite that the detectives claimed to have found scattered about at various points, all of it after the 4th of May, was a very dangerous thing, the police pretended to have gone out into the woods (and I assume they did for the purposes of this argument), and there made experiments in which they bursted open beer kegs, and boxes, and various other things of that sort. And they brought the whole litter and dumped it down in the presence of the jury, and it was admitted in evidence, over our objection, to show that dynamite was explosive. We arose and admitted that dynamite was explosive. We arose and admitted that the dynamite these men found was explosive. But the court replied that the state must be admitted to put in what they pleased; that the court could not set any limits to the amount of testimony which the state might choose to adduce in support of this proposition; and he did not. Once in a while they came pretty near taxing the limits of the court room, at least the available space in it, with this litter.
Again, in order to appeal to the passions and prejudices of the jury, the state were allowed to offer in evidence a sack full of rent and bloody clothing, claimed to have been taken from officers who were wounded at the Haymarket; not from Degan; not for the purpose of illustrating how he was hurt, or how he was killed, about which there was no question. And an officer was allowed to stand up there and hold these bloody robes, and point to this hole, and that, and the other, and this stain, and that! Did it tend to elucidate the inquiry before the jury? Nay! No sane man will claim that. What was the purpose of its introduction? It was to inflame passion and overthrow judgment.
They also were allowed to give testimony concerning
the finding of a lot of alleged gas-pipe bombs six weeks or such a matter after the Haymarket, under some side-walk. There was no explanation as to how they got there. There was no evidence as to who put them there. And in his closing argument Mr. Grinnell was permitted by the court to say, that every week in the interval up to that time they had been finding bombs all over the city. There was no evidence of it; but he was permitted to assert that in the ears of the jury without reproof from the court, without checking.
I would be glad to consider briefly before your Honors the instructions, but my time will not allow it. The instructions embody the erroneous rulings which were applied to the introduction of evidence. They permit the finding of these men guilty, when for aught that appears in this record, your Honors upon your consciences will be compelled to say that bomb may have been thrown by somebody in no way connected with these defendants, directly or indirectly. It may have been done by an enemy of theirs. It may have been done by some man acting upon his own mere malice and ill-will. It was thrown outside of the purpose of the Haymarket meeting. It was thrown in disregard of the arrangement and understanding for that meeting. It was thrown to the overthrow of the labor and the effort that these men were then giving their lives to, namely, the establishment of the eight-hour day. It brought to an end their efforts. It disappointed their hopes. It was not of their devising. The record shows it.
The record fails to show who threw that bomb. And the question is, whether upon the barbaric lex talionis, that whenever a man was slain a man of the opposing faction must be slain, these seven men shall die, because seven policemen, whom they did not like as a class, and who certainly did not love them, have died? You know the barbarians never stopped to fix individual responsibility for the crime. They simply said: "One of ours is dead, and we cannot rest until one of theirs die for him!" It has been so here.
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