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Full text of "Notable American Trials. Leo Frank, Guilty or Not Guilty, 1952."

NOTABLE AMERICAN TRIALS 

GUILTY 
OR NOT GUILTY? 

An Account of the Trials of 

THE LEO FRANK CASE 
THE D. C. STEPHENSON CASE 
THE SAMUEL INSULL CASE 
THE ALGER HISS CASE 



it 



By FRANCIS X. BUSCH 



THE BOBBS-MERRILL COMPANY, INC. 
Indianapolis Publishers Nbw York 



DEDICATED TO 
THE IDEAL IN THE ADMINISTRATION OF CRIMINAL JUSTICE: 

A VERDICT COURAGEOUSLY REACHED BY A JURY 

AFTER A CONSCIENTIOUS CONSIDERATION 

OF THE LAW AND THE EVIDENCE 



FOREWORD 

The out-of-the-ordinary criminal case enlists universal in- 
terest because it is usually a threefold drama: the crime; the 
identification, apprehension and accusation of the suspect; 
and the trial and its consequence. 

But the public interest in the trial of a defendant for a 
shocking crime has something in it far more significant than 
the high drama usually involved. Courts are established 
and their procedures regulated by basic constitutions or by 
the executive or legislative branch— whichever happens to 
be dominant— of the government. The administration of 
criminal law necessarily mirrors the government of which 
it is a part. 

Crime itself through the ages has changed little or not at 
all, but the attitudes of particular societies toward persons 
accused of crime and the methods of dealing with such per- 
sons have changed, even in our own time, and are con- 
stantly changing. It has, therefore, been said with truth 
that the degree to which the ordinary citizens of a common- 
wealth are sensitive to wrongdoing and the degree to which, 
by their institutions and practices, justice is arrived at is a 
just measure of the civilization of that commonwealth. 

Trial by jury of persons defending against accusations of 
crime is essentially an Anglo-Saxon institution. The 
thirteen American colonies adopted it as their own com- 
mon law. One of the complaints in the long list of griev- 
ances against the English crown contained in the Declara- 
tion of Independence was the deprivation of what the 
colonists had come to regard as the sacred right of trial by 
jury. Today, after eight centuries of testing and despite 
occasional miscarriages of justice, it remains the most per- 
fect instrument yet devised for the protection of the in- 

vii 



Viil GUILTY OR NOT GUILTY? 

alienable individual rights of life, liberty and property. 
Americans and Englishmen alike generally subscribe to the 
oft-quoted eulogium of Blackstone: 

The founders of the English laws have with excellent 
forecast, contrived that no man should be called to answer 
to the King for any capital crime, unless upon the prepara- 
tory accusation of twelve or more of his fellow subjects, the 
grand jury: and that the truth of every accusation, whether 
preferred in the shape of indictment, information, or appeal 
should afterwards be confirmed by the unanimous suffrage 
of twelve of his equals and neighbors, indifferently chosen, 
and superior to all suspicion. - 

The four American criminal jury trials presented in the 
succeeding pages have been selected not only because their 
dramatic quality attracted nationwide attention, or be- 
cause they were major forensic battles in which great ad- 
vocates displayed their skills and wits. In each of these 
trials the scene is laid against a background peculiar to 
American life, and each trial possesses a special social sig- 
nificance. Taken together, the trials described in this book 
can be said to typify the administration of criminal justice 
in the United States of America. 

The plan followed in the work has been influenced to an 
extent by that most excellent series of seventy-five volumes 
of Notable British Trials (William Hodge & Company, 
Ltd., London, Edinburgh and Glasgow) . Each volume of 
that series is devoted to a single case. An introduction," 
which briefly describes the crime and the suspected crim- 
inal, is followed by a verbatim transcript or full abstract 
of the trial proceedings— the opening statements, the evi- 
dence, the summations, the Court's charge and the verdict. 
Because of their resulting technical character, the appeal 
of Notable British Trials is largely to the legal profession. 
In the cases treated in this work, an introduction on the 
English pattern is followed by a nontechnical condensation 



FOREWORD IX 

of the court proceedings and their consequences. The re- 
sult is a fairly brief but accurate account of four notable 
American trials, specially designed for the general reading 
public. 

The accounts of the four trials which follow are based 
either on the stenographic trial record or the printed ap- 
peal record in the particular case. 

My acknowledgments are due to the clerks of the courts 
and other officials and librarians in public and private 
libraries and newspaper offices in Chicago, Atlanta, Wash- 
ington, New York and Indianapolis for courtesies extended 
in making records available; to Mrs. Marian A. Hodgkin- 
son and Mrs. Virginia Weissman and my daughter, Mrs. 
Frances Busch Zink, for library research, copying, compar- 
ing and proofreading manuscript; and to my wife for her 
valuable suggestions, encouragement and inexhaustible 
patience. 

Francis X. Busch. 



CONTENTS 

PAGE 

The Trial of Leo Frank 

for the Murder of Mary Phagan (1913) 15 

The Trial of D. C. Stephenson 

for the Murder of Madge Oberholtzer (1925) .... 77 ' 

The Trial of Samuel Insull and Others 

for the Use of the Mails to Defraud (1934) . . . .127 

The Trials of Alger Hiss 

for Perjury (1949-195°) *97 



The Trial of 

LEO FRANK 
for the Murder of 

MARY PHAGAN 

(1913) 



I 



The Leo Frank Case 



The Significance of the Leo Frank case lies not in the 
nature of the crime, but in the publicity which was given 
to it and the extraordinary consequences of that publicity. 
The trial would probably have attracted no attention out- 
side of Fulton County, Georgia, had it not been for the ill- 
advised activities of a coterie of Frank's friends and coreli- 
gionists who raised the issue of religious prejudice. During 
the trial and the course of the case in the upper courts, this 
group made repeated public appeals, through newspaper 
advertisements and mailing circulars, for funds to aid Frank 
in his defense. The basis of the appeals was that Frank, an 
innocent man, was being persecuted because he was a Jew. 
These solicitations went to every part of the country, but 
were directed particularly to the North. The already high 
feeling against Frank in Atlanta was aggravated by these 
appeals. It was charged in the Southern press that $250,000 
had thus been raised "to make certain that the guilty Jew 
Frank escaped the gallows." 

After Frank had been convicted and sentenced to death, 
the Northern press, almost without exception, denounced 
the verdict as a travesty of justice. Some leading Northern 
papers went so far as to send detectives and well-known 
lawyers to Atlanta to "investigate" and "review" the case. 
They all reported that Frank was innocent and that his 
trial had been a farce. 

Then the case came before the Supreme Court of the 
United States; and the dissenting opinion of Justice 

15 



l6 GUILTY OR NOT GUILTY? 

Holmes and Chief Justice Hughes that— assuming the truth 
of facts alleged in a petition for a writ of habeas corpus— 
"lynch law [was] as little valid when practiced by a regu- 
larly drawn jury as when administered by one elected by 
a mob intent on death" gave the Northern press sensational 
material to work with. The majority opinion, which de- 
nied the writ on the ground that all of the points raised had 
been passed on by the Supreme Court of Georgia, was 
ignored. 

Editorial comment in the Northern press grew increas- 
ingly bitter. Georgia was denounced as a community of 
bigots; its courts were branded as incompetent and coward- 
ly. An aroused Southern press met this attack with re- 
sponses equally vitriolic. The North, it retorted, had its 
own unenviable record of crime and incompetency and cor- 
ruption in its courts; let it put its own disordered house 
in order; its characteristic intermeddling in the purely 
domestic affairs of the South was officious, gratuitous and 
unwarranted. 

The commutation of Frank's sentence to life imprison- 
ment was regarded throughout the South, and particularly 
in Georgia, as the consequence of Northern propaganda. 
In some quarters the direct charge was made that it had 
been brought about by bribery. When Frank was forcibly 
taken from the state penitentiary by a mob and hanged, the 
battle between the Northern and Southern press was in- 
tensified. The North saw in the lynching a complete vin- 
dication of its previous strictures. Although a few of the 
Southern papers condemned the lawlessness of the mob, 
many condoned it, finding in it only a justifiable execution 
by outraged citizens of the righteous judgment of its courts. 
After Frank's death the excitement gradually subsided; 
but, as Mark Sullivan says in his Our Times, the Frank 
case "fanned into a new flame for the moment the old ani- 
mosities of the North and South of fifty years before." 



THE LEO FRANK CASE 17 

Spring arrives early in Georgia. Flowers, wild and cul- 
tivated, always in profusion during the long spring 
season, are at their height in April. It was probably 
for this reason that Georgia, when it was freed of the domi- 
nation of Northern "reconstruction," designated April 26 
as a memorial day on which to honor its Confederate dead. 

In 1913 the day perhaps had a greater significance in 
Atlanta than elsewhere in the state. Many were still living 
who remembered the "March to the Sea" and its attendant 
death and destruction. Memorial Day in Atlanta was as 
much a reminder of that "unforgivable infamy" as it was a 
tribute to the fallen wearers of the gray. 

On Memorial Day stores and factories closed. Gentle 
hands placed bouquets and wreaths on cross-and-flag- 
marked cemetery mounds. There was the parade of sol- 
diers, old and young, with the dwindling line of veterans 
of the War between the States in the place of honor and, at 
the climax, the oration of the day-flaming apostrophes 
which recalled immortal sacrifices for. the "lost cause." 

In 1913 Memorial Day fell on a Saturday. Thirteen- 
year-old Mary Phagan was only one of a thousand little 
girls who wanted to see the parade. She had been employed 
at the National Pencil Company factory. Her job had been 
to fasten metal caps on the ends of lead pencils; but at the 
close of the workday on the previous Monday the supply 
of metal had run out, and she had been "laid off." For her 
work she was paid ten cents an hour, and there was one 
dollar and twenty cents due her for her twelve hours' work 
on Monday. Because of the holiday, most of the help had 
been paid off on Friday, but Saturday was the usual pay- 
day. Mary had been told by one of her fellow workers that 
there would be someone at the factory on Saturday from 
whom she could get her "envelope." She told her mother 
she would call at the factory, get her money and then go 
downtown and watch the parade. 



l8 GUILTY OR NOT GUILTY? 

She dressed for the occasion— her best dress, her blue hat 
with the ribbons and flowers and her "Sunday shoes." She 
carried the only accessories she possessed: a little varie- 
gated parasol and a mesh bag. She was a pretty child— well 
developed for her age, blond, blue-eyed and rosy-cheeked. 
Though her clothes were of the cheapest she wore them 
proudly and made a pleasing picture. 

Mary lived with her mother and stepfather in Bellwood 
—then a suburb of Atlanta— and reached the factory by 
streetcar. At 11:45 A - M - on April 26 she boarded the car 
near her home and arrived at the street intersection near- 
est the factory a few minutes after noon. It was only a 
three-minute walk from there to the factory. The conduc- 
tor and the motorman saw her leave and start to walk to- 
ward the factory. The evidence as to what happened after- 
ward is uncertain and conflicting. It is known that she 
entered the factory and while in there was brutally vio- 
lated and murdered. 

In the early morning of Sunday April 27, about three- 
thirty, central police headquarters received a telephone 
call. An excited voice reported that the dead body of a 
"colored woman" had been found in the basement of the 
pencil factory. Two police officers were immediately dis- 
patched to the scene. There they were met by one Newt 
Lee, Negro night watchman, who was the only person at 
the factory. It was Lee who had found the body and noti- 
fied the police. He told the officers he had gone to the base- 
ment to use the toilet and had then discovered the body. 
He led them to the basement. 

The only light was from a single gas jet, turned down so 
low that it afforded little illumination. One of the police- 
men turned the jet on full. On the floor in front of the 
furnace was the cold, rigid corpse of a white girl who was 
later identified as Mary Phagan. She was lying face down- 
ward. Her golden hair was matted with blood, and her 
face was swollen and black from dust and dirt. There was 



THE LEO FRANK CASE 19 

a deep cut on the back of her head and a cord, pulled 
tightly around her neck, had cut into the flesh. A strip of 
white cloth, torn from the girl's underskirt, was also 
wrapped loosely around her neck. A shoe was missing from 
one foot. It was later found some 100 or more feet away. 
The girl's hat and bloodstained handkerchief lay on a trash 
pile a short distance from the body. The little parasol, un- 
damaged, was found 1 at the bottom of the near-by elevator 
shaft. Near the girl's head the police discovered two small 
sheets of paper, one white and one yellow, on which were 
scrawled in uncertain writing 2 two separate pencil notes: 

mam that negro hire doun here did this i went to make 
water and he puch he doun that hole a long tall negro black 
that hoo it wase long sleam tall negro . . . wright while . . . 

he said he would . . . play like nigt witch did it but that 
long tall black negro did it buy hisself. 

The papers on which the notes were written had appar- 
ently come from an order pad, a number of which lay on 
a trash pile near the body. 

The body was removed to a mortuary. Later medical 
examination established that death had been due to stran- 
gulation. According to an autopsy and microscopic anal- 
ysis, there was no indication of spermatozoa on the clothing 
or body; yet the epithelium of the walls of the vagina had 
been torn and bruised. 3 The girl's drawers had been cut 
or ripped up the seam and were stained with blood and 
urine. 

As the morning wore on, more police arrived at the 
building and a thorough search was begun. Nothing fur- 
ther of significant importance was discovered. The layout 
of the building, which assumed an importance later in the 



1 The mesh bag was never found. 

2 Dots indicate where the words were illegible. 

3 This was a matter of dispute during the trial. 



20 GUILTY OR NOT GUILTY? 

trial, was noted. The building occupied by the National 
Pencil Company was a four-story brick-and-frame struc- 
ture with a basement. The factory had a frontage of seven- 
ty-five feet on South Forsyth Street and a depth of one 
hundred and fifty feet to a public alley. The main entrance 
was from Forsyth Street through a hallway on the first floor. 
Within this hallway, and some twenty-five or thirty feet 
from the entrance door, was a stairway which led to the 
upper floors of the building. 

The second floor was shut off from the stairway by a par- 
tition, and access to it was obtained by a door. This floor 
contained the company's offices. The superintendent's 
inner office was separated from the outer office by a parti- 
tion. Also on the second floor was the machine or metal 
room, also partitioned off. In this room there were numer- 
ous machines and inner, partitioned dressing and toilet 
rooms for female employees. Mary Phagan and a number 
of other young girls worked in the metal room. 

There was an enclosed elevator shaft in the outer hall 
which extended from the basement to the fourth floor. The 
elevator was operated electrically. In addition to the iron 
stairs leading from the first floor to the basement there was, 
immediately behind the elevator shaft on the first floor, an 
opening or hatchway from which a ladder extended to the 
basement. When the factory was in full operation more 
than 100 persons, mostly women and girls, were employed 
on the first, second, third and fourth floors of the building. 

Lee, the night watchman, told Police Captain Starnes, 
who was in charge of the investigation, that after he found 
the body he tried several times, but without success, to get 
in touch with Leo Frank, the superintendent of the factory, 
by telephone. The captain also put in repeated calls, but it 
was not until 7:00 a.m. that Frank answered the phone. 
Starnes asked him to come immediately to the factory. 
Frank replied that he had not had his breakfast, and asked 
where the night watchman was. Starnes told him that it 




21 



22 GUILTY OR NOT GUILTY? 

would be necessary for him to come at once and that he 
would send an automobile for him. The captain did not 
tell him what had happened, and Frank did not ask. 

When the officers called at Frank's house a few minutes 
later, Frank asked what had happened. He was told to get 
dressed, go to the factory and see for himself. He then 
asked, "Did the night watchman report anything to you?" 
This question was also ignored. The officers were later to 
testify that during this interview Frank seemed very ner- 
vous and excited. When he had got into the police car, one 
of the officers asked him if he knew a little girl by the name 
of Mary Phagan. Frank asked, "Does she work at the fac- 
tory?" The officer said he thought she did. Frank was told 
of the finding of the girl's body; then he said, "I can't tell 
whether I know her or not until I look on my payroll book. 
I know very few of the girls that work there. I pay them 
off but I seldom go into the factory and I know very few of 
them. I can look on my payroll and tell you if a girl 
named Mary Phagan works there." 

Frank was then taken to the mortuary to which the girl's 
body had been removed. He glanced at the body, said he 
didn't know the girl, but could tell whether she worked 
at the factory by looking at his payroll book. The officers 
later declared that during this attempt at identification 
Frank was "extremely nervous" and "badly shaken." 

The police next drove Frank to the factory. With them 
he went into the office on the second floor, opened the safe 
in the outer room and took out a time book. After running 
down the list of employees, he said, "Yes, Mary Phagan 
worked here. She was here yesterday to get her pay. I'll 
tell you the exact time she left here. My stenographer left 
about twelve, and a few minutes after she left, the office boy 
left, and Mary came in and got her money and left." Frank 
asked the policemen if the envelope containing her money 
had been found. According to the officers, he still seemed 
to be in a highly nervous and excited state. Frank asked to 



THE LEO FRANK CASE 2g 

see where the body had been found. He accompanied the 
officers to the basement, and the place was pointed out to 
him. Witnesses were later to testify that during this time 
also Frank showed intense agitation. 

Captain Starnes at this stage saw nothing suspicious in 
Frank's story or his actions. He ascribed Frank's agitation 
—at the mortuary and on being shown where the body was 
found— to the natural reaction of a man confronted with 
news of the murder of one of his employees and concern 
for the effect the publicity might have on the pencil com- 
pany's business. 

Lee, meanwhile, had been arrested. A shirt with blood 
spots on the front of it had been found in a trash barrel 
near his home. He denied it was his, and no evidence was 
developed to prove the contrary. Despite police abuse (he 
was manacled to a chair, which made either rest or move- 
ment difficult) and almost continuous questioning, he 
stuck to his original story. Such additional details as he 
gave were consistent with it and were verified by investiga- 
tion. 

Soon after Lee had been placed in custody the police 
officers asked Frank to talk with Lee privately to see if he 
could obtain additional information from him. Frank, 
after conversing alone with Lee for some time, reported 
that he had talked freely, but had told him nothing he had 
not already told the police. 4 

On Sunday Frank suggested to the police that they might 
do well to question Jim Conley, a Negro roustabout worker 
at the factory, and J. M. Gantt, a white man and former 
employee, who had recently been discharged because of a 
shortage in his accounts. Frank told the police that Gantt 
"had been on intimate terms with Mary Phagan." 

Gantt, who had known Mary Phagan and her family for 
several years, was arrested. He was held in custody and 



4 Lee gave a different version of this conversation at the trial. Reference 
to this will be made later. 



24 GUILTY OR NOT GUILTY? 

questioned for several days, but had comparatively little 
difficulty in convincing the police that he knew nothing of 
her murder. Conley was arrested the Thursday following 
the murder. He had a police record of convictions for a 
number of petty offenses and a generally bad reputation 
among both blacks and whites. In spite of his repeated pro- 
testations that he had been drunk all of Memorial Day and 
nowhere near the factory, the police were apparently con- 
vinced from the start that he knew something of the crime. 
They kept him in close custody and, in the language of one 
of the later witnesses, "continued to work on him/' 

It was determined almost immediately that the penciled 
notes found near Mary Phagan's body had not been writ- 
ten by her. Mary Phagan had had only two or three years' 
schooling, but specimens of her writing produced by her 
mother and friends were entirely unlike the writing in the 
notes and showed, moreover, that she capitalized properly 
and spelled and punctuated fairly well. The police quite 
logically concluded that the notes had been prepared and 
planted by someone who hoped thereby to divert suspi- 
cion from himself. 

The elimination of Gantt as a suspect, the failure of the 
police to turn up any evidence directly incriminating Lee 
or Conley, and the piecing together of what the police 
deemed peculiar circumstances shifted suspicion to Frank. 
On April 29, three days after the crime, he was arrested, 
lodged in jail and booked on a charge of suspected murder. 

Leo Frank was a natiye of Texas but had spent his boy- 
hood and early manhood in Brooklyn. He attended the 
public schools there, took some preparatory work at Pratt 
Institute and matriculated at Cornell University. He grad- 
uated from this institution in 1906 with a degree of Bach- 
elor of Engineering. His uncle had organized and estab- 
lished the National Pencil Company in Atlanta; so, after 
working for a short time in Boston, Frank went to Atlanta 
to learn, and to grow up with, the business. Starting as a 



THE LEO FRANK CASE 25 

draftsman, he became by successive promotions superin- 
tendent and vice-president. He was married but had no 
children. At the time of the Phagan murder he was twen- 
ty-nine years old. The newspapers described and pictured 
him as a slight, thin-faced, rather frail-looking individual, 
with heavy black hair, a prominent nose and "stary" eyes. 
This last feature was accentuated by the thick-lensed glasses 
he habitually wore. He was of medium height and weighed 
about 130 pounds. 

The morning after the murder Frank called in one of 
the regular attorneys for the company, a Herbert Haas, "to 
protect the pencil company's interests.' ' Ostensibly for the 
same reason, he asked the Pinkerton Detective Agency to 
make an "independent investigation" of the crime. The 
manager of the Atlanta Pinkerton office— a man named 
Scott— accepted the employment. An ordinance of the City 
of Atlanta licensed private detectives and required, as one 
of the conditions for the license, that when engaged in 
work on criminal cases they should promptly report their 
findings to the municipal police and cooperate with them 
in the apprehension and prosecution of criminals. Scott's 
relations with the Atlanta police were, extremely friendly; 
and, in accepting the pencil company's employment, he 
made it clear to Frank that he intended to "work with the 
police" to discover the murderer "regardless of who it 
might turn out to be." Frank told Scott that Detective 
Black seemed to suspect him; but he professed his complete 
satisfaction with Scott's declared intention to "get to the 
bottom of the matter." 

The police ordered the factory closed on Monday so 
they might make a more leisurely and thorough inspection 
of it. Scott participated with the officers in the inspection. 
Some stains which looked like human blood were found on 
the floor of the metal room near the dressing room. An 
attempt had apparently been made to obliterate or obscure 
the stains by rubbing some white substance over them. On 



26 GUILTY OR NOT GUILTY? 

the handle of a bench lathe near Mary's machine were 
some strands of what looked like human hair. Employees 
who operated near-by machines were questioned. All were 
certain that neither the stains nor the hair had been there 
when they had left the factory the Friday before. The 
parts of the cement floor containing the stains were chipped 
out and, together with the supposed human hair, were pre- 
served for possible future use as evidence. 

Scott took a complete statement from Frank. It was sub- 
stantially the same statement he made a few days later at 
the coroner's inquest and, except for slight modifications, 
was consistent with his longer and sworn statement made 
on his trial. Scott, however, found a number of items in 
the statement which, he later decided, convinced him that 
Frank was not telling the full or exact truth. Scott indig- 
nantly repudiated a suggestion that his reports should be 
submitted to Frank's attorney before they were shown to 
the police. This, it would appear, increased Scott's suspi- 
cion that Frank was in some way involved. Frank or Haas 
terminated the employment of the Pinkerton agency on 
Wednesday— the day before Frank's arrest— but Scott con- 
tinued to work on the case with the Atlanta police. When 
official suspicion was definitely directed toward Frank, 
Scott made no effort to allay it; on the contrary, as new 
evidence against Frank came to light, he was one of the 
first to merge suspicion into accusation. 

In their re-examination and appraisal of Frank's conduct 
the police recalled a number of circumstances which they 
now deemed suspicious: In the early morning of the twen- 
ty-seventh, following the discovery of the girl's body, Frank 
had not answered the repeated telephone calls made by Lee 
and Captain Starnes. He had balked when Starnes had said 
he should come to the factory immediately. When asked by 
the officers if he knew Mary Phagan he had answered that 
he could not tell; that he knew very few of the factory girls 
by name. These circumstances were compared with his 



THE LEO FRANK CASE 27 

statement, made immediately afterward at the office, in 
which he said: A girl named Mary Phagan worked there, 
and she had got her pay on Saturday. He could tell the 
exact time she came and left. His stenographer had left at 
twelve o'clock, and his office boy had left a few minutes 
later. Mary came in after that. 

To the conclusion which they drew from this comparison 
the police added another observation: Right on the heels 
of Frank's declaration that he did not know Mary Phagan 
he had directed suspicion to Gantt by saying that Gantt had 
been "intimate" with her. The police recalled Frank's ex- 
treme nervousness and agitation on Sunday morning when 
the officers had called at his home and had taken him to 
the mortuary to see the dead body of the girl and to the 
basement of the factory where the body had been found. 
Both Lee and Gantt had since told them of Frank's appar- 
ent fright when he had encountered Gantt at the door of 
the factory at six o'clock Saturday. 

The police now regarded it as significant that before and 
after Frank reached the factory on Sunday morning he had 
asked if they had found the girl's pay envelope. Lee had 
denied Frank's statement that Frank frequently called him 
at the factory after hours to inquire if everything was all 
right. He said that his call at seven o'clock on the twenty- 
sixth was the first such call he had made. Lee had also 
' told the police that when Frank had talked to him privately 
in his cell Frank had said, "If you keep up like this, both 
of us will go to hell." 

In later searches of the factory premises the police had 
discovered several pieces of cord identical with the cord 
which had been used to strangle the girl; some of it had 
been found in the metal room. 

The police arrested one Mineola McKnight, the Negro 
cook in the Frank home. She was detained for some time 
and questioned. Among other things, she told the officers 
that when Frank came home Saturday night he was drunk 



28 GUILTY OR NOT GUILTY? 

and that he talked wildly and threatened to kill himself. 6 
By persistent questioning, the police also obtained state- 
ments from a number of girls who worked at the factory. 
They said Frank had embarrassed and annoyed them with 
his attentions. 

On Monday April 28 the county coroner summoned and 
swore a jury to inquire into and determine the manner and 
agency by which Mary Phagan had come to her death. After 
viewing the body and the factory premises, the jury con- 
tinued the taking of testimony to May 6. On that day 
Frank, Gantt, a number of factory workers, policemen, and 
relatives and friends of Frank appeared and testified. 
Frank, represented by Luther Z. Rosser of the firm of 
Arnold & Rosser— one of the best-known criminal-trial 
lawyers in the South— took the stand and submitted pa- 
tiently to three and one-half hours of examination. 

This was Frank's story: On Saturday April 26 he arrived 
at the pencil company's office at about 8:30 a.m. He in- 
tended to work all day, because he had to get out his end- 
of-the-month financial statements. When he reached the 
factory the day watchman and an office boy were already 
there. Two carpenters were also there, changing some par- 
titions on the fourth floor. Several other employees came 
in, between 8:30 and 9:30. Between 9:30 and 9:45 he left 
the factory in the company of a man named Darley, gen- 
eral superintendent of the pencil company, and a man 
named Lyons, superintendent of a near-by factory. 

Continuing his testimony, Frank stated: He stopped at 
the near-by office of Montag Brothers, an affiliate of the 
pencil company in the same block, to see if he could get 
that company's stenographer Mattie Hall to come over to 
the pencil company and do some work for him. He spoke 
briefly with some of his friends at Montag Brothers and 



5 She later repudiated all of these statements. She said that the police had 
abused and threatened her and that she had answered "yes" to everything 
they had asked in order to escape their brutality and get out of jail. 



THE LEO FRANK CASE 29 

then returned to his office at 1 1:05 a.m. Miss Hall was al- 
ready there. A Mrs. White, wife of one of the carpenters, 
was also there. She asked and received his permission to go 
up to the fourth floor to see her husband. Between 11:05 
and 11:45 f° ur other people came into the office and left. 

Frank further stated in his testimony the following: He 
told the day watchman he could leave as soon as he got 
certain work done, and the man left about 11:45 A - M - ^ 
was ten or fifteen minutes later that the little girl, whom he 
afterward learned was Mary Phagan, came into his office 
and asked for her pay envelope. He asked her what her 
number was. She told him. He went to the cash box, iden- 
tified her envelope by number, took it out and handed it 
to her. As she started to leave she turned around and asked 
if the metal had come yet. He told her, "No." 6 He heard 
her footsteps as she went away. He did not see her again 
until he was shown her dead body in the mortuary on Sun- 
day morning. About five minutes after the girl left, one 
Lemmie Qiiinn, a foreman at the pencil factory, came in, 
and they talked for a minute or two. 7 

Frank, in his testimony in the inquest, was positive in the 
timing of his actions, At 12:45 p.m. he telephoned the cook 
at his house to inquire when lunch would be ready. Then 
he went to the fourth floor to tell the carpenters that he was 
locking up. The men said they would work through until 
he got back. Mrs. White followed him down the stairs and 
left the building at 12:50. He returned to his office, put 
away his papers, went downstairs, locked the outside factory 
door and left about 1 : 10. He reached home about 1 :2o, had 
lunch, lay down and rested for a while. Then he got up 
and telephoned his brother-in-law and told him that be- 
cause of work at the office he could not go with him to the 



6 In an earlier statement to the police and to Scott Frank said that his 
answer to her was that he didn't know; much was later to be made of this 
variation at the trial. 

7 In his earlier statements to the police and to Scott Frank made no men- 
tion of Quinn. 



30 GUILTY OR NOT GUILTY? 

ball game as previously planned. He took a streetcar back 
to the factory and arrived there shortly before 3:00. 

The carpenters had just finished their work, Frank said, 
and they left the building at 3: 10 p.m. At 4:00 Newt Lee, 
the night watchman, came in. He had told Lee the day 
before to report at that hour, because he (Frank) had ex- 
pected to go to the ball game. However, there was no work 
for Lee to do; so he told Lee to go off and amuse himself 
and come back at 6:00. After Lee left he continued to 
work until 6:00, at which time Lee returned. He closed his 
office, went to the front door of the factory and there found 
Gantt talking to Lee. Gantt wanted to go up to the fourth 
floor to get a pair of shoes he said he had left there, and he 
(Frank) told Lee it would be all right to let Gantt into 
the factory for that purpose. 

Frank said he then left the factory, performed some 
errands and arrived home about 6:25 p.m. He called Lee 
on the telephone around 7:00 to ask if Gantt had got his 
shoes and if everything was all right at the factory. Then 
he had supper and read the newspapers. Some friends came 
in and played cards with his parents-in-law, and he retired 
about 10:30. The telephone in the house, Frank explained, 
was in the dining room on the first floor, and the sleeping 
rooms were on the second floor; this accounted for the fact 
that he had not heard the early calls from Lee and Starnes. 
He said he awoke at 7:00 just in time to answer the last 
of Starnes's calls. Frank denied positively that he had ever 
spoken to Mary Phagan before the twenty-sixth when she 
came in to get her pay or that he had known her by name 
before the tragedy. 

The coroner's inquest was concluded on May 8. The 
jury returned a verdict of murder at the hands of a person 
or persons unknown. While it does not appear in the ver- 
dict, the questions and comments of the coroner and jurors 
indicated their theory: that the murder had taken place on 
one of the upper floors of the factory and that the body had 



THE LEO FRANK CASE 31 

been carried to the basement and placed in front of the 
furnace, with the intent of later burning it. There were 
suggestions, too, that the factory had been regularly used 
as a love rendezvous and that Frank had been guilty of im- 
proper relations there with some of the female employees. 

Meanwhile on May 3 a public announcement was made 
stating that Solicitor General Hugh A. Dorsey had assumed 
personal direction of the investigation to discover the mur- 
derer of Mary Phagan. On May 6 a grand jury was im- 
paneled by Judge Ellis in the Fulton County Superior 
Court. He referred to the "unsolved Phagan case" and di- 
rected, because of the revolting nature of the crime and 
the public agitation over it, that it be given top priority in 
the jury's considerations. 

Following the coroner's verdict a new and, as the event 
proved, most important witness appeared. One of the fac- 
tory girls— one Monteen Stover— made an affidavit in which 
she said that she called at Frank's office at five minutes after 
twelve on Saturday the twenty-sixth to get her pay and that 
Frank was not in his office. She said she waited for him for 
about five minutes and then left. This was a direct contra- 
diction of Frank's statement that he was continuously in 
his office from 11:05 to 12: 45« 

Another girl— one Helen Ferguson— told the police that 
on Friday the twenty-fifth, when she got her pay, she told 
Frank that Mary Phagan had asked her to get her envelope. 
Frank refused to give it to her. He said that Mary would 
have to call for her pay herself. This was balanced against 
the admitted fact that pay envelopes of employees were fre- 
quently delivered to their fellow workers or relatives. 

Apparently the solicitor general was in serious doubt as 
to whether he should ask for a true bill against Frank or 
Newt Lee. He had a form of indictment prepared and in 
hand to fit either of them, and kept both names before the 
jury until the last witness had been heard. On May 24, 
however, he determined the question by asking for a true 



32 GUILTY OR NOT GUILTY? 

bill against Frank, The jury accordingly returned a no 
bill against Lee and an indictment against Frank charging 
him with first-degree murder. 

By a strange coincidence, the Atlanta newspapers on 
the same day released a "confession" which the police had 
secured from Jim Conley. In it he charged Frank with the 
murder and confessed that at Frank's direction and with 
his assistance he had removed the body from the metal 
room on the second floor to the basement and left it in 
front of the furnace. Conley also declared that at Frank's 
dictation he wrote the notes which were found near the 
girl's body. 

The death notes were compared with admitted speci- 
mens of Conley's handwriting. A similarity was apparent. 
No expert testimony on this point was offered on the trial, 
but Albert S. Osborn of New York, the most famous ques- 
tioned-document expert in the United States, later declared 
that in his opinion there was no doubt that the notes had 
been written by Conley. 

The case of the State of Georgia against Leo N. Frank 
came for trial at Atlanta in the Fulton County Superior 
Court on July 28, 1913. Presiding was the Honorable L. S. 
Roan, a veteran jurist of wide experience—able, conscien- 
tious, impartial and kindly. Appearing for the State were 
Solicitor General Hugh A. Dorsey, Special Assistant 
Solicitor Harry Hooper and Assistant Solicitor E. A. Ste- 
phens. Frank was represented by Reuben R. Arnold, 
Luther Z. Rosser, Stiles Hopkins and Herbert Haas. Solici- 
tor General Dorsey carried the burden for the prosecution. 
He was a large, strikingly handsome man and a determined 
and forceful advocate. He was fully convinced of Frank's 
guilt, as were most of the citizens 8 of Atlanta, and con- 
ducted the trial throughout with an intensity of emotion 



8 One of the Atlanta newspapers estimated on the basis of informal polls 
that four out of five of the townspeople held this view. 



THE LEO FRANK CASE 33 

that electrified the crowds which daily jammed the court- 
room. Arnold and Rosser shared the work of Frank's de- 
fense. They were old hands at the game and, realizing the 
evidence and prejudice they had to overcome, sought by 
all legitimate means to impeach the State's witnesses and 
to build up an affirmative case for Frank of such preponder- 
ating weight that it would compel a verdict of acquittal. 

One hundred and forty-four veniremen were summoned. 
Despite the publicity given the crime— the police investi- 
gation, the inquest, the grand-jury proceedings and the ac- 
tivities of the police department and the solicitor general's 
office in the preparation of the case for trial— it took less 
than four hours to select and agree on a jury of twelve men 
who swore they had no preconceived opinions of Frank's 
guilt or innocence, and could give him a fair and impartial 
trial. Of the twelve chosen, eleven were married and five 
of them fathers. They were of widely diverse occupations: 
two salesmen, two machinists, a bank teller, a bookkeeper, 
a real-estate agent, a manufacturer, a contractor, a mail 
clerk, an optician and a railroad claim agent. 

Special Assistant Solicitor Hooper in short and dramatic 
sentences outlined the State's case against Frank: The evi- 
dence would show that thirteen-year-old Mary Phagan 
came to her death as the consequence of a premeditated 
rape of her person by the defendant. Frank had previously 
seduced and taken indecent liberties with a number of 
other young factory girls, and had made unsuccessful ad- 
vances to Mary Phagan. Frank knew she was coming to the 
factory on Saturday because one of her fellow employees 
had asked him the day before for her pay envelope, and 
Frank had said that she would have to come herself and 
get it. To aid him in his lecherous activities Frank had 
trained the Negro Conley to act as a lookout and to see 
that he was not interrupted during his immoral and per- 
verted acts. Conley had been told to report to the office 
on Saturday April 26 for another of these occasions. 



34 GUILTY OR NOT GUILTY? 

It would be the contention of the State, supported by 
evidence, said Hooper, that Mary Phagan came to Frank's 
office at 12: 10 p.m. Hooper sketched in the details of what 
then occurred: Frank was alone in his office. After he 
had given the girl her pay envelope she had asked him if 
the metal for her work had come. He had answered he 
didn't know and, ostensibly to find out, had followed her 
into the metal room. While in there he had made advances 
to her which she had repulsed. He had then knocked her 
down, rendered her unconscious and raped her. In a panic 
of terror lest she recover consciousness and accuse him of 
rape, he had strangled her to death. He had left the body 
in the metal room while he went up to the fourth floor; he 
wanted to get the people out of the building in order that 
he might dispose of the body. After he had got rid of Mrs. 
White he called Conley and told him that the little girl 
had refused him and that he "guessed he had struck her too 
hard." The two of them then dragged the body to the ele- 
vator and took it to the basement. They made plans to 
burn the corpse later. Frank gave Conley $2.50 and, later, 
$200. But almost immediately he asked for and got the 
$200 back, after promising Conley he would pay him when 
the job was finished. 

Hooper outlined briefly the remainder of the State's evi- 
dence, emphasizing particularly the expected testimony of 
Monteen Stover that Frank was not, as he had told the 
police and the coroner, in his office continuously from 
1 1 :o5 a.m. to 12:45 p.m.., but was out of his office when she 
came there looking for him at 12:05; that she had waited 
for him for five minutes; and that when, in leaving, she had 
tried the door to the metal room, she had found it locked. 

The first witness called by the State was Mary Phagan's 
mother. Mary, she said, would have been fourteen years 
old had she lived until the first of June. She was a pretty 
girl and well developed for her age. On Saturday April 26 
at 1 1:30 a.m. Mary had eaten a hearty dinner of bread and 



THE LEO FRANK CASE 35 

cabbage. About 11:45 sh e had left the house. She said she 
was going to the pencil factory to get her pay, and from 
there she was going to see the Memorial Day parade. She 
wore a lavender dress trimmed with lace, a blue hat with 
flowers in the center, and carried a little parasol and a 
German silver-mesh bag. Mary's mother identified the 
dress, underclothing, hat and parasol shown her as the 
things Mary had worn and carried when she last saw her 
alive. 

One George Epps, a fourteen-year-old boy who lived 
"right around the corner" from Mary, testified he got on 
the same streetcar with her about 1 1:50 a.m. and rode with 
her until she got off the car at Forsyth and Marietta streets. 
It was then about 12:07. 

The next witness was Newt Lee, the night watchman. 
He testified in substance as follows: His regular working 
hours were from 6:00 p.m. to 6:00 a.m., except on Satur- 
days, when he reported for work at 5:00 p.m. He got to the 
factory a few minutes before 4:00 on Saturday and found 
the outside door and the double inside doors to the up- 
stairs locked. In the previous three weeks of his employ- 
ment at the factory he had never found either of these doors 
locked when he came on duty in the afternoon. He had 
keys to the doors and opened them. As he unlocked the 
double doors Frank came "bustling out of his office," a 
thing he had never seen him do before. Frank said, "Come 
here a minute, Newt. I am sorry I had you come so soon. 
You could have been at home sleeping. I tell you what 
you do. You go downtown and have a good time." Frank 
had never let him off like that before. He then told Frank 
he would lie down in the factory's shop room. At that 
Frank said, "Oh, no. You need to have a good time. You 
go downtown and have a good time. Stay an hour and a 
half and come back at your usual time at six o'clock." He 
(Lee) then left. 

Lee continued his testimony: He returned to the factory 



36 GUILTY OR NOT GUILTY? 

a few minutes before 6:00 p.m. He was standing at the 
front door when J. M. Gantt came from across the street. 
Gantt told him he wanted to go up to the fourth floor and 
get a pair of shoes he had left there. He told Gantt that he 
was not allowed to let anyone into the factory after six 
o'clock. He was still talking to Gantt when Frank opened 
the front door and came out. When Frank saw Gantt he 
jumped back as if he was "frightened." Gantt told Frank 
he wanted to go upstairs to get his shoes. Frank said, 
"Well, I don't know." Then Frank "sort of dropped his 
head." He looked up and said to him (Lee) , "You go up- 
stairs with him and stay until he finds his shoes." He fol- 
lowed Frank's instructions. He went upstairs with Gantt, 
found the shoes, came downstairs and saw Gantt leave the 
building. At some time after seven o'clock Frank called 
him on the telephone and inquired, "Is everything all 
right?" He replied that everything was all right so far as 
he knew. It was the first time that Frank had ever called 
him on the phone. 

Lee then repeated the story he had told the police. His 
account included his discovery of the body, his calling the 
police station, his unsuccessful attempts to reach Frank by 
telephone, and of the arrival of the officers and his direct- 
ing them to the body. He testified he didn't see Frank 
after that until sometime between seven and eight o'clock, 
and then he did not speak to him. 

The next conversation Lee had with Frank was two days 
afterward, on Tuesday evening, at the police station. He 
was at that time under arrest, and the officers had brought 
Frank into his cell. This is Lee's story of their meeting: 
He was handcuffed to a chair. Frank sat down in another 
chair and "hung his head." When they were alone he said 
to Frank, "Mr. Frank, it is mighty hard for me to be hand- 
cuffed here for something I don't know nothing about." 
Frank answered, "What's the difference? They have got me 
locked up and a man guarding me." He then asked Frank, 



THE LEO FRANK CASE " -37- 

"Mr. Frank, do you believe that I committed that crime?" 
Frank said, "No, Newt, I know you didn't, but I believe 
you know something about it." In answer to Frank's state- 
ment he said, "Mr. Frank, I don't know a thing about it any 
more than finding the body." Frank then said, "We'll not 
talk about that now. We will let that go. If you keep that 
up we will both go to hell." At that time the officers came 
in and took Frank out. 

Lee's testimony was not weakened by Rosser's careful 
and exhaustive cross-examination. Some beneficial qual- 
ifications were developed: The locked double doors inside 
the entrance to the building would not have prevented any- 
one from going to the basement. The front door and the 
double doors were unlocked when Lee returned to the fac- 
tory at six o'clock. Frank had previously told Lee that 
Gantt had been discharged and that if he saw him hanging 
about the factory to watch him. Lee also said that Gantt 
was "a big fellow about seven feet tall." Gantt may have 
startled Frank. Lee in making his rounds after six o'clock 
had gone through the machine room and the ladies' dress- 
ing room every half hour and noticed nothing unusual. 
When he first saw the body he thought it was that of a Negro 
because her face was so black and dirty. When he was in the 
basement with the policemen, one of them showed him the 
notes they had found near the body. He swore he had never 
seen them before. 

Various members of the police department gave their 
testimony 9 as to their notification of the murder, their go- 
ing to the factory, their conversation with Lee, the finding 
of the body, the position and condition of the body and its 
removal to the mortuary. The notes found near the body, 
the girl's clothing and the parasol were identified and re- 
ceived in evidence. Other officers told of the telephone 
calls to Frank and their conversations with him at his 



9 In the narrative of this case the exact order in which the witnesses were 
called has been disregarded. 



38 GUILTY OR NOT GUILTY? 

home, at the undertaker's and in the factory. All agreed 
that during the entire morning Frank was in a highly ner- 
vous state— "his hands shook/' "he appeared excited/' "was 
jumpy/' "talked rapidly," at times "hung his head," and 
asked the same questions over and over again. 

Harry Scott, superintendent of the local branch of the 
Pinkerton Detective Agency, testified in substance as 
follows: He was employed by Frank to represent the Na- 
tional Pencil Company and to "endeavor to determine who 
is responsible for this matter." He questioned Frank 
closely as to his movements on Friday and Saturday. Frank 
answered all of his questions readily and told him substan- 
tially the same story that he later told at the coroner's in- 
quest. Frank, in his statement to him, declared positively 
that he was continuously at his desk in the inside office 
from the time he got back from Montag Brothers at 1 1:05 
a.m. until 12:50 p.m., at which time he went upstairs to 
the fourth floor to tell the carpenters that he was leaving 
the factory to go home to lunch. Frank was equally posi- 
tive that Gantt had paid a good deal of attention to Mary 
Phagan and had been "intimate" with her. 

Scott, continuing his testimony, stated that after Frank 
was arrested on April 29 and confined in the same police 
barracks as Lee, Detective Black suggested to Frank, in his 
(Scott's) presence, that he did not believe Lee had told all 
he knew; that Frank was his employer and ought to be able 
to get more out of him than anyone else. Then Black 
asked if Frank would talk to Lee. Frank readily consented, 
was taken to Lee's cell and left alone with Lee for about 
ten minutes. He (Scott) didn't hear all that was said, but 
he did hear Lee say, "It's awful hard for me to be hand- 
cuffed here to this chair." Later he heard Frank say, "Well, 
they have got me, too." After Frank left Lee's cell Black 
asked if Lee had told him anything and Frank replied Lee 
had not. Lee had stuck to his original story. Frank, when 
he came out of Lee's cell, appeared "extremely nervous," 



THE LEO FRANK CASE 39 

"hung his head," "shifted his position," "sighed heavily," 
"took deep swallows" and "hesitated." 

Scott and Black both testified to finding a bloodstained 
shirt in a trash barrel at Lee's house the Tuesday morning 
following the murder. The city chemist, who examined the 
shirt, refused to swear positively that the stains were human 
blood. He said the shirt showed no signs of having been 
worn since it had last been laundered. 

Two of the factory machinists, who reported as usual for 
work Monday morning, testified to finding some splotches 
which looked like blood on the floor near the ladies' dress- 
ing room in the metal department. Some "white stuff" 
which they thought might be potash or "haskoline" had 
been smeared over the spots. They found also some strands 
of what looked like hair on the handle of a bench lathe 
near the machine where Mary worked. Neither the spots 
nor the hair, 10 they said, had been there the previous Fri- 
day. 

A number of police officers and other witnesses testified 
the spots were pointed out to them and looked like blood. 
Witnesses identified pieces of cement chipped from the 
floor, which showed the stains. The city chemist had also 
examined and tested these. He testified he was unable to 
declare positively that the stains were human blood. 

Several witnesses testified there were pieces of cord in the 
machine room of the same kind as that which had been 
used to strangle the girl. They said that similar cord was 
used throughout the factory and could be found on any of 
the floors. 

Much of this testimony was uncontroverted and, with 
the exception of Lee and Scott, the cross-examinations 
were relatively brief. One of the witnesses— Darley, general 
manager of the pencil-company factory— was friendly to- 



10 It had been determined before the trial that the supposed human hair 
found near Mary Phagan's machine was not of the same color or texture as 
her hair. 



40 GUILTY OR NOT GUILTY? 

ward Frank, and both on direct and cross-examination, did 
everything he could to aid him. There was nothing sig- 
nificant, he said, about Frank's nervousness on Sunday after 
he had been told of the crime. Frank was naturally high- 
strung and became nervous and excited at any unusual 
occurrence. Darley admitted having seen the supposed 
blood spots on the metal-room floor but said he frequently 
saw blood and "white stuff' ' on the floor in and around the 
ladies' dressing room. The factory was a very dirty place, 
he added. 

The undertaker who embalmed the body, and two phy- 
sicians gave testimony as to its condition. The under- 
taker testified: When he saw the body— about 9:00 a.m. 
Sunday morning— it looked as though the girl had been 
dead for ten to fifteen hours. There was a scalp wound two 
and one-half inches long on the back of the head, but the 
skull was not fractured. The girl's hair was clotted with 
blood and around her neck there was a cord drawn so 
tightly that it cut into the flesh. He said he examined the 
girl's clothing. The right leg of her drawers had been slit 
with a knife or torn up the seam. There were stains of 
urine, some discharge and dried blood on them. 

The undertaker's testimony was corroborated in part by 
that of the county physician. He testified in substance as 
follows: The head wound had been made before death. 
The cuts on her face and the bruises and scratches on her 
right elbow and left knee had been made after death. The 
cord around the girl's neck was imbedded in the skin, and 
her tongue protruded an inch and a half through her teeth. 
There was no question that she had died of strangulation. 
Although he found blood on her private parts he found no 
evidence of violence to the girl's female organs. The hymen 
was not intact, but she had normal genital organs which 
were somewhat larger than usual for a girl of her age. This 
condition could have been produced by penetration im- 
mediately preceding death. 



THE LEO FRANK CASE 41 

On cross-examination the county physician testified that 
the blood he found might have been menstrual flow. He 
said that he discovered no "outward signs'* of rape. 

The testimony of Dr. H. F. Harris, who made a post- 
mortem examination of the body, was considerably at vari- 
ance with that of the county physician. Dr. Harris testified: 
The vagina definitely showed evidence of some kind of 
violence before death— an injury made by a finger or by 
other means. The epithelium was pulled loose from the 
inner walls and completely detached in some places. The 
violence which had produced this condition had occurred 
before death. He found evidence of internal bleeding. It 
would have taken considerable violence to tear the epithe- 
lium to such an extent that bleeding would ensue. He had 
also examined the stomach contents. The digestive process 
had ceased with her death. In his opinion the girl had 
lived for from one half to three quarters of an hour after 
she had eaten her meal of bread and cabbage. 

Helen Ferguson, who worked in the metal room with 
Mary Phagan, testified she saw Frank at seven o'clock Fri- 
day night when she got her pay. She asked him to give her 
Mary's envelope so that she might take it to Mary and save 
her a trip to the factory, but Frank said she could not have 
it. On previous occasions she had got Mary's pay envelope 
for her but not from Frank. 

J. M. Gantt gave testimony which was highly damaging 
to Frank. He testified in substance as follows: He had 
known Mary Phagan ever since she was a little girl. Frank 
knevy her too. One day she came into his (Gantt's) office 
to get her time corrected, and after she left Frank said, 
"You seem to know Mary pretty well." He had not pre- 
viously told Frank that the girl's name was Mary. He went 
to the factory Saturday afternoon to get his shoes. When 
Frank came out of the door and saw him he "jumped," 
"looked pale" and "hung his head." 

Gantt admitted on cross-examination that Frank had dis- 



42 GUILTY OR NOT GUILTY? 

charged him on the previous April 7 for an alleged shortage 
in the payroll and that when he testified at the coroner's 
inquest he had said nothing about Frank's having known 
Mary Phagan. 

Mrs. J. A. White testified: She went to the factory Satur- 
day morning about eleven-thirty to see her husband. Frank 
permitted her to go up to the fourth floor, where her hus- 
band was working, and she stayed there until 11:50. She 
then left the factory. She returned at 12:30 and again went 
up to the fourth floor. When she talked to Frank at 1 1:30 
he was in the outside office. When she went upstairs at 
12:30 he was standing in the outside office at the safe. 
Frank came up to the fourth floor at one o'clock and said 
that unless she wanted to stay until three o'clock she had 
better leave because he was going to lunch and was locking 
up the factory. She left shortly afterward, and as she passed 
Frank's office she saw him at his desk writing. 

She concluded her testimony with a statement of which 
much was to be made in later argument. She said as she 
was going out of the building she saw a Negro sitting on a 
box on the first floor, just inside the door. On cross-exami- 
nation she said she paid no particular attention to the man 
and could not identify him. 

Fourteen-year-old Monteen Stover gave damaging testi- 
mony against Frank. She repeated the story she had told 
the police. She was positive she reached the factory at 
12:05 p.m. on Saturday. She waited in Frank's office for 
five minutes. Since he was not there she concluded that 
he had gone for the day. She was sure of the time, she said, 
because she had looked at the clock. She testified further 
that she had intended to go to the ladies' dressing room, 
inside the metal room, but when she tried the door she 
found it locked. 

Albert McKnight— the husband of Mineola McKnight, 
who was the Negro cook in the house where Frank lived 
with his wife's parents— gave testimony which was directly 



THE LEO FRANK CASE 43 

contradictory to the statement Frank had made to the 
police and the testimony he had given at the inquest. Mc- 
Knight swore he was in the kitchen with his wife when 
Frank came home about 1:30 p.m. and that Frank did not 
eat any lunch. Frank, said McKnight, left the house after 
five or ten minutes. 

The State's star witness, who was one of the last called, 
was James Conley, the Negro. Conley told a long and star- 
tling story: He worked days at the factory as a general handy 
man, a roustabout. He had worked at the pencil factory 
for a little over two years. On Friday afternoon, about 
three o'clock, Frank came up to the fourth floor, where he 
was working. Frank said he wanted him to come to the 
factory Saturday morning at 8:30 because there was some 
work for him to do on the second floor. He followed 
Frank's instructions and came to the factory about 8:30 on 
the twenty-sixth and found Frank there. Frank said, "You 
are a little early for what I want you to do for me, but I 
want you to watch for me like you have been doing on the 
rest of the Saturdays." 

Conley explained Frank's order by stating that on several 
previous Saturdays and on Thanksgiving Day 1912 he had 
stayed on the first floor by the door and watched while 
Frank and "some young lady" were on the second floor 
"chatting." He and Frank had a code of signals by which 
when the right lady came along Frank would "stomp" on 
the floor and Conley would lock the door. When Frank 
"got through with the lady" he would whistle, and this 
meant that Conley should unlock the door so the lady 
could get out. Conley said that when Frank told him he 
didn't need him for a while he left. He returned to the 
factory at some time between 10:00 and 10.30 a.m. He was 
standing at the corner of the building when Frank came 
out of the factory door, passed him and said he was going 
to Montag Brothers but would be right back. Frank told 
him that he should wait right where he was. 



44 GUILTY OR NOT GUILTY? 

When Frank came back (Conley did not state the time) 
both he and Frank walked to the front door of the factory 
and stepped inside. Frank then showed him how to turn 
the catch on the knob, on the inside of the door, so that 
no one could get in from the outside. Then Frank pointed 
to a little box near a trash barrel just inside the door and 
gave him his instructions: He (Conley) should sit on the 
box, keep out of sight as much as he could and keep his eyes 
open. Later on, said Frank, there would be a young lady 
come along, and she and Frank were "going to chat a 
little." Frank said that when she came he would "stomp" 
as he had done before; then Conley should shut and lock 
the door. Later he would whistle; then Conley would 
know he was through and should unlock the door and come 
upstairs to the office. This would give the young lady time 
to get out. 

Conley said he promised Frank to do as he was directed. 
Frank then went upstairs. Conley told of seeing various 
people come into and leave the factory. After these people 
had come and gone he said he saw a girl, whom he after- 
ward found out was Mary Phagan, come to the door, enter 
the building and go upstairs. Later he heard footsteps go- 
ing toward Frank's office. After that he heard the footsteps 
of two people. It sounded as if they were walking out of the 
office toward the metal room. Shortly afterward he heard 
a lady scream, and then he didn't hear any more sounds. 
The next person he saw, according to his testimony, was 
Monteen Stover. He described what she wore. He said she 
stayed in the factory for a short while; then she came down 
the steps and left. After that he heard someone run out of 
the metal room— running as if on tiptoes— and then he 
heard somebody tiptoe back toward the metal room. 
Following this, he said, he must have "kinda dozed off to 
sleep." The next thing he knew Frank was oyer his head 
"stomping." He got up and locked the door. Then he sat 
on the box for a little while until he heard Frank whistle. 



THE LEO FRANK CASE 45 

Conley did not attempt to fix the time of these sequences. 
He said that when he heard the whistling he unlocked the 
door and went upstairs. There he saw Frank standing at 
the door of his office " shivering and trembling and rubbing 
his hands." His "face was red" and "he looked funny out 
of his eyes." In one of his hands, said Conley, Frank held a 
piece of white cord. Conley said it was "just like this here 
cord"— the one in evidence. 

Conley continued: After he got to the top of the stairs 
Frank asked him, "Did you see that little girl who passed 
here just a while ago?" Conley replied he had seen one 
girl come in and go out; and then another girl came in, 
but she didn't come down. Then Frank said, "Well, that 
one that you say didn't come back down, she came into my 
office awhile ago and wanted to know something about her 
work, and I went back there to see if the little girl's work 
had come, and I wanted to b$ with the little girl and she 
refused me, and I struck her and I guess I struck her too 
hard, and she fell and hit her head against something, and 
I don't know how bad she got hurt." To this Frank added, 
"Of course, you know I ain't built like other men." 

Conley testified that Frank asked him to go back to the 
metal room and bring her out so that they could put her 
somewhere, and to hurry; there would be money in it for 
him. Conley said that he then went back to the metal 
room and saw the girl lying on the floor with a rope 
around her neck. Another piece of cloth was around her 
head to catch the blood. He noticed the clock at that 
time; it was four minutes to one. He saw that the girl was 
dead and immediately ran back to Frank and told him so. 
Frank said, "Shh," and told him he should go back to the 
cotton box, get a piece of cloth, wrap it around her and 
bring her out. 

Conley said that he did as he was directed, but when he 
tried to lift the body he found that it was too heavy for him 
to carry. He returned to Frank and told him that he could 



46 GUILTY OR NOT GUILTY? 

not move the body alone; Frank would have to help him. 
Together they carried the girl's body to the elevator, and 
after Frank had got the key and opened the elevator door 
they put the body in the cab and ran the elevator to the base- 
ment. There they rolled the body out onto the floor and 
left it. Then they went back upstairs to Frank's office. 

Conley said they had hardly reached the office when 
Frank jumped up and said, "My God! Here is Emma Clark 
Freeman and Corinthia Hall. Come over here, Jim; I 
have got to put you in this here wardrobe." Frank put him 
into the wardrobe, and he stayed there until the women 
left— it seemed a long time to him. After the women left 
the office Frank opened the wardrobe and said, "You are in 
a tight place; you done very well." 

Conley continued his testimony: They sat down and 
Frank handed him one cigarette and then the broken pack- 
age which contained several more. Frank said "Can you 
write?" He answered, "A little bit." Frank gave him a 
lead pencil and dictated a number of notes. The first notes 
evidently did not satisfy Frank, but after four or five at- 
tempts he (Conley) wrote a note which Frank "laid on his 
desk" and "looked at smiling." Frank "pulled out a nice 
little roll of greenbacks" and said, "Here is $200." Frank 
looked at him and added, "Now, you go down in the base- 
ment and take a lot of trash and burn that 'package* that is 
in front of the furnace." He told Frank that he was afraid 
to go down there by himself. Frank asked him for the roll 
of bills, and he gave them back to Frank. 

After that, according to Conley, there was the following 
conversation: Frank said, "Why should I hang? I have 
wealthy people in Brooklyn." Conley said, "What about 
me?" Frank replied, "Don't you worry about anything; you 
just come back to work on Monday morning like you don't 
know anything and keep your mouth shut. If you get 
caught I will get you out on bond and send you away. You 
can come back this evening and do it." Conley asked if he 



THE LEO FRANK CASE 47 

was going to get any money. Frank said he was going home 
but would be back in about forty minutes and fix every- 
thing. Conley told Frank, "All right," he would be back 
in about forty minutes. 

After that, Conley said, he went across the street to the 
nearest saloon. When he went to take a cigarette out of the 
package Frank had given him he found it contained also 
two one-dollar bills and two silver quarters. He had a drink, 
went home, fell asleep and did not wake up until six-thirty 
the next morning. The next time he saw Frank was the 
following Tuesday morning on the fourth floor of the fac- 
tory. Frank passed him and said, "Keep your mouth shut. 
If you had come back here Saturday and done what I told 
you there wouldn't have been any trouble." 

Conley, when asked what Frank had meant by his state- 
ment that he was "not built like other men," testified the 
reason Frank had said that was "because he had seen him 
(Frank) in a position I haven't seen any other man that has 
got children." On two or three occasions before Thanksgiv- 
ing he had seen Frank in the office "with a lady in his office, 
and she was sitting in a chair and she had her clothes up to 
here—" indicating above his waist— "and he was down on 
his knees, and she had her hands on Mr. Frank." At an- 
other time he had seen Frank in the back room with a 
young woman lying on a table. 

Conley testified that sometimes when Frank had a woman 
with him and he (Conley) was "watching" for him a man 
by the name of Dalton was also there with a woman; that 
Frank, Dalton and the two women frequently had soft 
drinks and beer in Frank's private office. Dalton, he said, 
occasionally handed him a half dollar or a quarter after 
the parties were over. At one such time Frank gave him 
fifty cents and told him to keep his mouth shut. 

Conley was subjected to a long and grueling cross-exam- 
ination. Under pressure he said Daisy Hopkins was the 
name of one of the women who had been with Frank and 



48 GUILTY OR NOT GUILTY? 

Dalton. He told of an occasion when Frank and Dalton 
had gone into the basement with another woman whom he 
did not know. Conley said Frank once talked to him about 
watching within the hearing of another Negro employee 
who responded to the nickname "Snowball." He repeated 
his direct examination as to the persons he had seen come 
into and leave the factory Saturday morning, but he said 
he had no recollection of having seen either Mrs. White or 
the office boy, Alonzo Mann. He denied having told a Mrs. 
Carson and a Miss Fuss that "Frank was as innocent as the 
angels in Heaven' ' or of having ever admitted to anyone 
that he (Conley) had killed a girl. 

Conley admitted that he had lied to Scott in a statement 
made shortly after his arrest and that he had lied to the 
police in at least four statements prior to his alleged con- 
fession. For nearly a month after the murder he had main- 
tained, in spite of almost continuous questioning, that he 
knew nothing whatever about the murder. He said he had 
done this to protect Frank, because Frank was a white man 
and his boss and had been good to him— had not docked 
him for some of the times he had been drunk and had 
failed to punch the clock. It was brought out that Conley 
had been arrested and convicted a half-dozen times for 
drunkenness and disorderly conduct and had served several 
jail sentences. He admitted that the police had questioned 
him night and day and would not let him sleep, but he de- 
nied that they had abused or threatened him to force his 
confession. 

On redirect examination Conley testified that he had 
seen Mary's mesh bag in Frank's office and had seen Frank 
put it in his safe. He described the bag as "a wire-looking, 
whitish pocketbook." 

The impression created by a witness on the jury which 
hears and sees him cannot be read on the printed page; but 
by judging from what he reads in cold type the disinter- 
ested investigator can only conclude that Conley and his 



THE LEO FRANK CASE 49 

loose and disconnected story were wholly discredited by 
Rosser's devastating cross-examination. 

Conley's story was corroborated to a degree, however, by 
the testimony of Dalton, the man he had named as Frank's 
companion in some of his unmoral relationships. Dalton 
testified he knew Frank and Conley. He said that he and 
Frank had frequently had relations with women at the fac- 
tory and that on such occasions Conley had acted as their 
"lookout." He had given Conley a half dollar or a quarter 
probably a half-dozen times. He also said there were a 
stretcher and an old cot in the basement. The cross-exam- 
ination of Dalton was scathing. He was badly confused, 
repeatedly contradicted himself and was made to admit that 
he had been convicted and had served time for larceny in 
the state penitentiary. 

Mrs. White was recalled and asked if she could identify 
Conley as the Negro she saw sitting on the box at the foot 
of the stairs on Saturday. She was unable to do so. 

The statement Frank first made to the police and his 
testimony at the coroner's inquest, authenticated by the 
testimony of the stenographic reporters who took them, 
were offered and received in evidence. 

Two witnesses called by the State proved more helpful 
to the defense than to the prosecution. Darley, the general 
superintendent of the pencil company, testified there never 
had been a bed, cot or sofa in the factory. Halloway, the 
Negro day watchman, corroborated Frank's statement: He 
saw Frank arrive at the factory Saturday morning at eight- 
thirty and go to his office. Frank left about 10:00 a.m. to 
go to Montag Brothers. He returned a few minutes before 
11:00 and went immediately to his office on the second 
floor. Miss Hall, the stenographer, was already there. At 
Frank's suggestion he left the factory for the day about 
1 1:45. A short distance from the factory he met Mrs. Free- 
man and Corinthia Hall. One of them asked him if Frank 
was in his office, and he answered that Frank was. Hallo- 



50 GUILTY OR NOT GUILTY? 

way further testified he had frequently seen bloodstains in 
and near the entrance to the ladies' dressing room in the 
metal department and that potash and haskoline— both 
white substances— were often accidentally spilled and 
smeared on the floor. 

Both Halloway and Darley declared there was no lock on 
the metal-room door. Both also testified they saw nothing 
of Conley on Saturday. They said they saw him Monday 
morning; his furtive actions made them more suspicious 
of him than of anyone else. They had never seen Frank 
"jolly" Conley or act familiarly toward him. Halloway did 
admit, reluctantly, that Conley did not always "punch the 
clock" as the rest of them did; he did about as he pleased 
and got his pay just the same. 

The foregoing summarizes the State's case in chief. 

Frank's attorneys properly concluded that the successful 
defense of their client required (1) corroboration of the 
previous statements he had made to the police and at the 
coroner's inquest, and the statement he would later make 
to the jury; (2) testimony which would so completely dis- 
credit Conley and Dalton that the jury would be com- 
pelled to reject their evidence; (3) testimony which would 
negative the inferences to be drawn from the testimony of 
the State's witnesses, particularly that of Lee, Gantt, Helen 
Ferguson, Monteen Stover and the police officers; and (4) 
testimony which would establish Frank's general reputa- 
tion as a law-abiding citizen and his particular reputation 
for morality and uncriticizable conduct toward the female 
factory employees. 

The record reveals a thoroughness in investigation and 
pretrial preparation which resulted in the production of a 
mass of evidence— nearly 200 witnesses— to satisfy these re- 
quirements. Neither Frank nor his attorney ever contended 
that there had been any abridgment of his constitutional 
rights to summon witnesses in his own behalf and make a 
full and complete defense. 



THE LEO FRANK CASE 51 

These were Frank's contentions: He had got to the fac- 
tory on Saturday the twenty-sixth at 8:30 a.m. He was in 
his office until 9:30 or 9:40 when he left to go to Montag 
Brothers. He returned to the factory and went to his office 
at 10:55. He stayed there continuously until 12:45 or 
12:50. He left the factory shortly after 1:00 and returned 
just before 3:00. He remained there until about 6:00 when 
he left for home. He arrived at his home about 6:25, had 
dinner shortly afterward and retired at 10:30. He knew 
nothing of the crime until he heard about it the next 
morning. 

More than twenty witnesses were called to corroborate 
these place-and-time sequences. Mattie Hall, the stenog- 
rapher borrowed from Montag Brothers, Robert Schiff, 
the assistant superintendent of the pencil factory, Corinthia 
Hall, Emma Clark Freeman and the office boy Alonzo 
Mann swore that Frank was in his office on the second floor 
from eleven o'clock until noon and that during that hour 
he talked to several people. Lemmie Quinn, one of the 
factory foremen, testified he saw Frank in his office about 
12:20 p.m. White and Denham, the carpenters, testified 
Frank came up to the fourth floor about one o'clock and told 
them he was locking up to go to lunch. One Helen Kerns, 
an employee of Montag Brothers, testified she saw Frank 
at Alabama and Whitehall streets, a short distance from 
the pencil factory, at 1:10. A Mrs. Levy, who lived across 
the street from Frank's home, testified she saw him get off 
a streetcar between one and two o'clock and cross the 
street to his home. Frank's father-in-law and mother-in-law 
testified Frank came in at 1:20, ate his lunch and left about 
2:00. 

Three witnesses corroborated Frank's statement that he 
called his brother-in-law, Ursenbach, on the telephone at 
1:30 or 1:40 p.m. to say that he could not go to the ball 
game. Six witnesses swore they saw Frank at two o'clock. 
Two of them testified they saw him get on a streetcar which 
was traveling in the general direction of the pencil factory. 



52 GUILTY OR NOT GUILTY? i 

A forelady at the factory and her mother testified they saw 
Frank looking at the parade in downtown Atlanta between 
2:30 and 2:35. Denham and White testified they saw him 
at 2:50 when he returned to the factory. 

Frank's father-in-law and mother-in-law testified Frank 
came home for dinner about 6:30 p.m. Dinner was served 
at seven o'clock. About eight o'clock some friends of theirs 
came in to play cards. Frank did not play but read the 
newspapers and retired at 10:30. The four persons identi- 
fied by Frank's parents-in-law as the persons who came in 
to play cards testified they arrived at the Frank home about 
eight o'clock and saw Frank there. According to their 
recollections, however, Frank excused himself about nine 
o'clock and went upstairs. 

Twelve of the fifteen witnesses who saw Frank after one 
o'clock testified they were close to him and noticed no 
bruises or scratches on his face or hands, and he appeared 
and acted as usual. 

With the exception of Quinn the testimony of none of 
these witnesses was weakened by the solicitor general's 
cross-examination. As bearing on the interest of the sev- 
eral witnesses, it was developed that all who were not em- 
ployees of Montag Brothers or the pencil company were 
relatives by marriage or close friends of Frank. Quinn, 
under a slashing cross-examination, failed to stand up to 
his declaration made on direct examination that he had 
seen Frank in his office at 12:20 p.m. Quinn was bitterly 
denounced in the State's closing arguments as a perjurer. 

Mineola McKnight, the Negro cook in the Frank house- 
hold, contradicted the testimony of her husband, who had 
been a State's witness. She swore that her husband was not 
at the Frank residence at any time on Saturday. Frank, she 
said, came home to lunch about 1:20 p.m. and left about 
2:00. She next saw him when he ate dinner with the family 
at night. She said the police tried to get her to say that 
Frank would not allow his wife to sleep the night of the 



THE LEO FRANK CASE 53 

twenty-sixth and wanted to get a gun and shoot himself; 
that that was not true; that the police took her to the station 
house in a patrol wagon and locked her up, and she then 
told the police anything they wanted her to say so they 
would let her out of jail; that any statement she might have 
made to them was untrue. She denied that Mrs. Selig, 
Frank's mother-in-law, had raised her wages or given her 
any extra money since Frank's arrest. Mrs. Selig corrobo- 
rated this statement. 

Emil Selig, Frank's father-in-law, testified in refutation 
of Newt Lee's testimony that he had frequently heard 
Frank call up the night watchman at the factory from his 
home at night. 

To account for Frank's presence at the factory on Satur- 
day afternoon three witnesses testified to the volume of end- 
of-the-month work Frank had to do. They said that it 
would have taken a diligent and skilled bookkeeper from 
three and one-fourth to three and one-half hours to com- 
plete it. The stenographer Miss Hall, in addition to her 
testimony corroborative of Frank's story, testified that Frank 
asked her to stay and help him with his work Saturday after- 
noon. She told him she could not do so on account of a 
previous engagement. 

Magnolia Kennedy, one of the factory workers, testified 
that when the girls lined up for their pay on Friday she was 
right behind Helen Ferguson. Helen Ferguson did not ask 
for Mary's pay envelope; moreover, although Frank some- 
times "paid off" he had not paid the employees on Friday 
the twenty-fifth. Schiff, the assistant superintendent, testi- 
fied that he, not Frank, paid the employees on Friday April 
25. He said that Helen Ferguson did not ask for Mary's pay 
and that one employee could not get the pay envelope of 
another without a written order. 

W. M. Matthews and W. T. Hollis, motorman and con- 
ductor of the English Avenue streetcar, testified that Mary 
Phagan was a passenger on their car on April 26 and that 



54 GUILTY OR NOT GUILTY? 

she got off at Hunter and Broad streets, about a block from 
the pencil factory. They said their scheduled arrival time 
was 12:07^ p.m. 11 and that the car was on time on April 
26. A superintendent of the streetcar company corroborated 
their testimony as to the schedule and running time be- 
tween various points. The testimony of the conductor and 
motorman, so far as it was designed to establish the exact 
time Mary Phagan got off the car, was considerably weak- 
ened by the cross-examination of the superintendent, who 
testified that the English Avenue schedule was a difficult 
one to maintain and that the company frequently had oc- 
casion to suspend trainmen for "running ahead of sched- 
ule," 

Two civil engineers were called to testify they made ac- 
curate measurements of the distances between the front 
door of the factory and certain street intersections and of 
the length of time it would take, walking at a fair pace, to 
cover those distances. The distance from the pencil factory 
to Marietta and Forsyth streets was 1,016 feet, and it took 
them four and one-half minutes to walk that distance. The 
distance from the factory to Whitehall and Alabama streets 
was 831 feet, and it took them three and one-half minutes 
to cover that distance. The distance from Broad and 
Hunter streets was 333 feet, and to cover that distance it 
took them one and three-quarters minutes. 

More than a dozen of the witnesses called gave testimony 
either to impeach Conley or discredit his story. Nine wit- 
nesses swore that his general reputation for truth and ve- 
racity was bad and that they would not believe him under 
oath. Eight defense witnesses testified they were at the fac- 
tory at various times Saturday morning and at no time did 



11 Much was made of the exact time Mary Phagan left the streetcar at 
Broad and Hunter, or Broad and Marietta, streets. If the time of the arrival 
of the car was 12:07^ p-m. and it took three or four minutes to reach the 
factory, Monteen Stover, according to her own positive testimony, would 
have left the factory before Mary Phagan arrived, and Frank's absence from 
his office between 12:05 and 12:10 would lose its significance. 



THE LEO FRANK CASE 55 

they see Conley. A Mrs. Carson and her daughter testified 
they saw Conley at the factory on Monday morning. He 
told them he had been so drunk all day Saturday he could 
not remember where he was or what he did. Conley told 
them that "Frank was as innocent as a child." Another 
factory worker, a Miss Fuss, testified she talked to Conley 
on the Wednesday following the murder, and he said that 
"Frank was as innocent as the angels in Heaven." These 
and other witnesses who saw Conley on Monday, Tuesday 
and Wednesday following the murder testified that he was 
nervous, avoided answering questions and acted suspi- 
ciously. 

Several witnesses swore that Conley could read and write. 
One of the girls testified that on Monday he borrowed 
some money from her to buy newspapers and that he was 
so excited he bought two copies of the same edition. 

A reporter for one of the Atlanta papers testified he 
talked with Conley on May 31— after Conley had made his 
confession— and Conley told him he finished his work and 
left the factory at 1:30 p.m. on April 26 and that he had 
never seen any mesh bag. 

Some of the factory help testified they were regularly or 
frequently at the plant on Saturday afternoons and at no 
time saw Conley there. Witnesses did testify that Con- 
ley was at the factory on Thanksgiving Day 1912, sweeping 
up and doing his regular work, but they said Frank left the 
building shortly after twelve o'clock on that day and did 
not return. They also testified that Frank usually worked 
Saturday afternoons, but there were never any women in 
his office, nor was there any drinking there. None of them 
had ever seen Dalton in the factory on Saturday after- 
noons. They all testified that to their knowledge none of 
the outside or inner doors of the factory were ever locked 
on Saturdays, that Frank's office was always open and that 
the blinds and shades in his office were never drawn. 

Daisy Hopkins, named by Conley as one of the girls Dal- 



56 GUILTY OR NOT GUILTY? 

ton brought to the factory for the Saturday-afternoon as- 
signations, swore that she had never been at the factory 
with Dalton or anyone else, that she did not know where 
the basement was and that she had never spoken to Frank. 
She admitted on cross-examination that she had been ar- 
rested and charged with fornication but had never been 
tried. Two other women who had been suggested in the 
State's case as companions of Dalton at the factory took the 
stand; one denied that she had known either Dalton or 
Frank, the other denied that she had ever been at the fac- 
tory with Dalton. Eight witnesses were called who declared 
that Dalton's reputation for truth and veracity was bad 
and that they would not believe him under oath. 

Gordon Bailey, the Negro worker at the factory known 
as "Snowball," denied that he had ever seen Frank and 
Conley talking together or heard Frank say anything to 
Conley about "watching" for him. 

Four factory employees testified that when the elevator 
ran it made a very loud noise and jarred the floor when it 
stopped. Denman and White, the carpenters who were 
working on the fourth floor of the factory all day Saturday 
up to three o'clock, corroborated this testimony and also 
testified that from where they were they could have seen 
the wheels in the upper part of the elevator shaft turn and 
that those wheels did not turn at any time Saturday while 
they were there. 

A Dr. Owens testified he conducted a series of experi- 
ments to determine how long it would have taken Conley 
and Frank to do what Conley said they did after twelve 
o'clock Saturday noon. He said, the actions described could 
not have been performed in less than thirty-six and one-half 
minutes and that was not allowing any time for the dic- 
tation and writing of the notes as testified to by Conley. He 
said from twelve to sixteen minutes would have to be added 
for that action. 

A number of factory employees testified they frequently 



THE LEO FRANK CASE 57 

saw splotches of blood on the second floor in the metal 
room and in and around the ladies' dressing room. The 
operators often got their fingers cut or crushed in the ma- 
chines and bled. The floors were never kept clean and 
white substances— potash and "haskoline"— which were 
used in the factory were frequently spread on the floor to 
cover the blood spots. One witness, a machinist, testified to 
two specific instances when employees working around the 
machinery had been quite badly injured and suffered a 
serious loss of blood. Lemmie Quinn, the metal-depart- 
ment foreman, testified the girls "fixed their hair" in the 
metal room, and many times their combings were scat- 
tered around the room. 

The defense called three physicians— one of them was a 
professor of physiology and physiological chemistry at the 
Atlanta College of Physicians and Surgeons— who testified 
it might take as long as four and one-half hours for cabbage 
to digest and pass from the stomach into the intestines. It 
all depended, they said, on mastication, and from an exami- 
nation of the stomach contents one could not tell within 
two and one-half hours how long the digestive process had 
been going on before death. 

Three other physicians testified they had examined 
Frank and that he was a sexually normal person. They also 
testified there was nothing significant in the post-mortem 
finding that the epithelium had apparently been torn loose 
from the walls of the dead girl's vagina. Such a condition, 
they said, could have been due to the embalming of the 
body and did not indicate violence to the vagina before 
death. 

Fifty-six witnesses— associates of Frank at Cornell. Uni- 
versity and in Brooklyn and Atlanta— testified that his gen- 
eral reputation as an upright, law-abiding citizen was good. 
Forty-nine of the women employees at the pencil factory 
testified that not only was his general reputation good but 
also that his reputation for moral rectitude was good. Spe- 



58 GUILTY OR NOT GUILTY? 

cifically they said that they had never heard of his being 
otherwise than a gentleman where women were concerned 
or of his ever "having done anything wrong." The testi- 
mony of one of these witnesses did not stand up too well on 
cross-examination. She testified that on two or three occa- 
sions she had heard "remarks" about Frank's coming into 
the women's dressing room and staring at the girls and that 
she herself was in the dressing room on one such occasion 
when he came in. 

The defense was concluded with Frank's statement. 12 
While it was very lengthy— eighty pages of typewritten rec- 
ord—it added very little beyond details to the statements he 
had previously made. The only significant variation was 
his attempt to avoid a direct clash with Monteen Stover, 
who, it will be remembered, testified in the State's case 
that when she went to Frank's office at 12:05 p.m. he was 
not there and that she waited until 12: 10 and when he did 
not appear concluded he was not in the factory and left. 
In Frank's statement to the jury he said that to the best of 
his recollection from the time the twelve-o'clock whistle 
blew 13 until 12:45 when he went upstairs to talk to the 
carpenters he did not leave his inner office. "But it is pos- 
sible," said Frank, "that to answer a call of nature or to 
urinate I may have gone to the toilet. Those are things a 
man does unconsciously and cannot tell how many times 
nor when." 

The defense had made a strong case. It was destined, 
however, to be badly riddled by rebuttal. Under the law 
the State could not attack the general or specific reputation 
of the defendant until the defendant first put his reputation 
in issue. Frank had done that. He had produced more than 
100 character witnesses. The State had a score of witnesses 



12 Under Georgia practice a defendant in a criminal case is not a com- 
petent witness in his own behalf. He may, however, if he desires, make a 
sworn or unsworn statement, but he is not subject to cross-examination. 

13 This was a slip on Frank's part, and he was to hear from it in the 
solicitor general's summation. April 26 was a holiday. The factory was 
closed, and the whistle did not blow that day. 



THE LEO FRANK CASE 59 

in readiness to meet this mass of negative testimony with 
positive testimony of the most damaging character. 

The State called more than seventy witnesses in rebuttal. 

Gantt testified he knew exactly how long the work Frank 
had to do for the end-of-the-month records would take; 
that he had seen Frank do the entire job in an hour and a 
half. 

One R. L. Craven, a friend of Mineola McKnight's hus- 
band, swore he went to the police station with McKnight 
to see if they could have her released from police custody. 
He was present, he said, when she made and signed a state- 
ment to the police. In that statement she said that when 
Frank came home on Saturday evening he showed signs 
that he had been drinking; that after he went to bed he 
did not rest well, made his wife get out of bed and wanted 
her to get a pistol so he could shoot himself. Craven's 
testimony was corroborated by George Gordon, a lawyer, 
who said he went to the police station with a writ of habeas 
corpus to get Mineola McKnight out of jail, and she told 
him she had made a complete and true statement to the 
police of everything she knew. Another witness who worked 
for the same company as Albert McKnight testified he went 
to the station with McKnight to see Mrs. McKnight, who 
told him that Mrs. Frank and Mrs. Selig had given her 
a lot of extra money and cautioned her not to talk. 

Two men, Tillander and Graham, who had gone to the 
factory Saturday morning to get their sons' money, testified 
they arrived there about 1 1 140 a.m. Frank, they said, was in 
his inner office. The stenographer was in the outside office. 
They had a few minutes' conversation with Frank, got their 
boys' pay envelopes and left. Both said that as they entered 
the factory from the street they saw a Negro in the dark 
passageway. They asked him where Frank's office was. 
Neither would identify Conley as the man they saw, but 
both said he was about the same size as Conley. 

Another witness testified he saw Conley at the corner of 



60 GUILTY OR NOT GUILTY? 

Forsyth and Hunter streets between one and two o'clock 
on Saturday April 26, and so far as he could observe Con- 
ley was not drunk. 

One of the male factory workers testified he frequently 
saw Conley at the office when he came there on Saturday 
afternoons around two o'clock. 

Eight witnesses testified that Daisy Hopkins' reputation 
for truth and veracity was bad. One of them said he had 
seen her at the factory talking to Frank. Another testified 
to having had an assignation with her at 8:30 p.m. on a 
Saturday, and she told him she had been at the pencil fac- 
tory during the afternoon. 

Fourteen witnesses testified that Dalton's reputation for 
truth and veracity was good. Another witness swore he had 
seen Dalton come into the factory with a woman in July 
1912 on a Saturday afternoon between one and two o'clock. 

Six employees of the Atlanta Streetcar Company testi- 
fied. The consensus of their testimony was that the English 
Avenue car was scheduled to arrive at Broad and Marietta 
streets at 12:07, not 12:07^ p.m., and that it frequently ar- 
rived ahead of schedule as much as four or five minutes 
because the trainmen wanted that additional time for din- 
ner and a layover. One witness testified he was at the cor- 
ner of Forsyth and Marietta streets on Saturday April 26 
when the English Avenue car operated by Matthews and 
Hollis arrived at 12:03. Another witness, one McCoy, testi- 
fied he saw Mary Phagan in front of Number 12 Forsyth 
Street. She was walking toward the pencil factory, and it 
was not later than "three or four minutes after twelve." 

L. T. Kendrick, a factory employee, testified there was 
no unusual noise in the operation of the elevator, and he 
did not believe one could have heard the elevator running 
if one were hammering on one of the floors some distance 
away from the shaft. 

One of the witnesses referred to in the defense testimony 
as having been hurt by one of the machines in the metal 



THE LEO FRANK CASE 6l 

room testified that the blood from his wound dripped on 
the floor alongside the machine where he was working. 
None of it was anywhere near the ladies' dressing room, he 
said. 

Three witnesses, employees or former employees of the 
pencil company, testified they had frequently seen Frank 
talk to Mary Phagan and that he called her by her first 
name. One of them said that during her employment in 
March 1913 these conversations occurred two or three times 
a day, and that she had seen Frank "standing pretty close" 
to Mary, "leaning over her face" and "have his hand on her 
shoulder." Another witness told of an occasion in the mid- 
dle of March 1913. Mary, this witness said, was going to 
work and Frank stopped her. Mary told him she had her 
work to do, but Frank said he was the superintendent of the 
factory and wanted to talk to her. Mary "kind of backed 
off," but Frank kept following her, still talking to her. 

Twenty girls, former employees of the pencil company, 
testified that Frank's reputation for lascivious conduct was 
bad. None of these was cross-examined, a significant cir- 
cumstance of which much was made later in the State's 
arguments. One of these witnesses testified to an occasion 
when she was in the dressing room with another one of 
the women employees. While they were undressing "Frank 
stuck his head inside the door and stood there and 
laughed." Another testified that on one occasion Frank 
went into the dressing room with one of the factory girls 
and stayed for some time. 

Three physicians who had not previously appeared in 
the case were called. Two of them were recognized stomach 
specialists. They refuted the testimony of the defense wit- 
nesses, declaring it was possible from an examination of the 
stomach's contents after death to tell at what stage digestion 
had been arrested and that the process of the digestion of 
the cabbage in Mary Phagan's stomach had ceased an hour 
after she had eaten it. The third physician, who had also 



62 GUILTY OR NOT GUILTY? 

participated in the post-mortem examination, testified that 
in his opinion the epithelium had been torn loose from the 
walls of the vagina before death. 

There was very little surrebuttal. Frank made a supple- 
mental statement denying the testimony that he had forced 
his conversation upon Mary Phagan and that she had 
backed away from him. It was possible, he said, that on 
some occasion he might have passed through the metal 
room and talked to the girl about her work, but he never 
called her by her first name because he did not know it. He 
positively denied the testimony of the two factory girls by 
saying that he had never looked or gone into the ladies' 
dressing room. 

Four witnesses were called by the defense to testify that 
George Kendley, a streetcar-company employee and one of 
the rebuttal witnesses, had publicly expressed himself as 
violently antagonistic to Frank— that "he was nothing but 
a damned Jew and should be taken out and hung," that he 
was as "guilty as a snake" and that "ninety per cent of the 
best people in the state think he is guilty and ought to 
hang." It was on this note— a most unfortunate one— that 
the evidence closed. 

Special Assistant Solicitor Hooper commenced the sum- 
mations for the State. He spoke for over two hours. He 
carefully reviewed the prosecution's testimony. That testi- 
mony, he said, was consistent and plausible. The murder 
had occurred in the metal room sometime between 12:05 
and 12:20 p.m. Frank had made indecent proposals to Mary 
Phagan or had attacked her, and when she repulsed him he 
had struck her and knocked her down. In falling she had 
hit her head against something which had rendered her 
unconscious. Then Frank, in a panic of fear lest she re- 
cover consciousness and accuse him of having attempted to 
rape her, strangled her to death with a piece of cord which 
he picked up in the metal room. Frank, fearing discovery 
and not knowing what to do with the body, left the metal 



THE LEO FRANK CASE 63 

room, locked the door and returned to his office. At 12:30 
he might possibly have been seen by Mrs. White or Lemmie 
Quinn. After Quinn had left, Frank tried to get everybody 
out of the building and that was the reason for his trip to 
the fourth floor at 12:45. It was after this he called Conley, 
and between 12:50 and 1:20 they removed the body to the 
basement. 

Hooper argued that Conley had told the truth; Conley 
had no motive for doing otherwise. Hooper laid great 
stress on the fact that defense counsel had not cross-exam- 
ined any of the twenty young women, called by the State, 
who had sworn that Frank's reputation for lewd, lascivious 
conduct was bad. The prosecutor supplied the reason: 

The conduct of counsel in this case ... in refusing to 
cross-examine these twenty young ladies refutes effectively 
and absolutely [the testimony] that Frank had a good char- 
acter. ... If this man had a good character no power on 
earth would have kept him and his counsel from asking 
these girls where they got their information and why it was 
they said the defendant was a man of bad character. . . . 
I have already shown you that under the law they had a right 
to go into that character, but you saw that on cross-exam- 
ination they dared not do it. And their failure [to cross- 
examine] ... is a circumstance against them. . . . You know, 
as twelve honest men seeking to get at the truth, that the 
reason these able gentlemen did not ask "those harebrained 
fanatics," as Mr. Arnold called them before they ever went 
on the witness stand— those girls whose appearance is as 
good as any they brought, those girls that you know by their 
manner are telling the truth, those girls who were unim- 
peached and unimpeachable— you know the reason they did 
not cross-examine them. They did not dare to do so! 

Hooper closed with the declaration that the guilt of 
Frank was as clear as the noonday sun and demanded a ver- 
dict of death as the only penalty that would "fit this horrible 
crime." 

Both Arnold and Rosser argued at length for the de- 
fendant. Their combined arguments lasted better than 



64 GUILTY OR NOT GUILTY? 

a day. In blistering terms Rosser scored Conley, Dalton, 
Scott and the police officers. They were perjurers and sub- 
orners of perjury bent only on the destruction of Frank. 
Arnold followed much the same line. His attack on Conley 
was savage. "My brother Hooper," declared Arnold, "says 
that Conley had nothing to hold him on the stand but the 
truth. My God! He had the desire to save his own neck. 
What stronger motive could a man have on the stand? The 
whole case against Frank is based on Jim Conley's testi- 
mony. If the prosecution can't hobble to a conviction on 
that broken crutch, then they know they will fail. Before 
I get through I am going to show you there was never such 
a frame-up against a man since God made the world as that 
which has been concocted against this defendant/' 

Arnold faced the question of religious prejudice square- 
ly. "Leo Frank," he said, "comes from a race of people who 
have made money and that has made some people envious. 
I tell everybody, all within the hearing of my voice, that if 
Frank had not been a Jew he never would have been in- 
dicted. That nigger Conley has been brought into court to 
tell his long tale; not corroborated but prompted. I am 
asking my kind of people to give this man fair play. . . . 
This is a case that has been brought about by the story of 
a monstrous perjurer by the name of Conley, and they ask 
you to believe this nigger against Frank." Arnold then 
dwelt at length on the 100 or more witnesses who had come 
to testify to Frank's good character; no man with such testi- 
monials could be guilty of the fiendish crime which had 
been charged against him, said Arnold. 

Dorsey concluded the summations. The solicitor gen- 
eral attempted no detailed defense of Conley, nor did he 
reply to Arnold's repeated characterizations of him as "a 
lousy nigger," "a dirty, black nigger" and "a lying nigger 
scoundrel." Instead he countered with an argument well 
calculated to appeal to the white Georgians on the jury: 
The job of the police and the prosecution would have been 
infinitely easier had they been able to unearth evidence 



THE LEO FRANK CASE 65 

to fasten the crime on Conley. Conley was a "nigger"— 
shiftless, penniless, friendless— with a chain-gang record. 
Frank was a white man with powerful and influential rela- 
tives and friends who were prepared to spend and had spent 
thousands of dollars in his defense. 

Dorsey repudiated the suggestion that Frank's religion 
had had anything to do with his indictment or prosecution. 
He outdid Arnold in his tributes to the Jewish people and 
in citing their contributions through the ages to the ad- 
vance of civilization. He argued, with great eloquence and 
persuasiveness, the testimony of Lee, Gantt, Monteen 
Stover, the police and the witnesses who testified to 
Frank's relations with women and declared that that evi- 
dence, even without the testimony of Conley, established 
Frank's guilt. 

Frank's defense, declared Dorsey, was negative— over 
100 witnesses testified that he bore a good reputation and 
that they had never heard anything against him. In the 
face of positive evidence of criminal conduct such testi- 
mony, said Dorsey, was utterly worthless. He recalled the 
cases of Oscar Wilde, "an Irish knight, a scholar, a literary 
man, brilliant, the author of works that will live through 
the ages," of Abe Ruef, "a Jew, the boss of San Francisco, 
respected and honored," of McCue of Charlottesville, "a 
man of such reputation that his fellow citizens had ele- 
vated him to the head of their municipality, and yet he 
tired of his wife and shot her to death in a bath tub," of 
Richeson, "the Boston preacher who had seduced a poor 
servant girl," of Beatty of Richmond, "a man of good repu- 
tation from one of the oldest and finest families" who had 
murdered his wife, of Crippen, "an eminent physician of 
England," who had murdered his wife that he might elope 
with his secretary. All of these, said Dorsey, had good repu- 
tations, yet all were proved to have committed despicable 
crimes, and their good reputations did not avail to save 
them from the consequences. 

Dorsey closed with a stirring plea to the jurors to base 



66 GUILTY OR NOT GUILTY? 

their verdict on the evidence of what had happened in the 
pencil factory on Saturday April 26, 1913. That evidence, 
he said, pointed unmistakably to Frank as the defiler and 
murderer of Mary Phagan. 

At the conclusion of the summations and before Judge 
Roan began his charge, Defense Counsel Arnold asked that 
the jury be excused. The jury was withdrawn and the de- 
fense formally moved the Court to declare a mistrial. In 
that motion it was charged that the conduct of the spec- 
tators throughout the trial had been ' 'disgraceful/ ' They 
had frequently applauded statements of the solicitor gen- 
eral and rulings of the Court which were adverse to Frank. 
Repeated pleas of the defense to clear the courtroom had 
been denied. Large crowds, unable to get into the court- 
room, had gathered daily in front of the courthouse and, in 
the hearing of the jury, had loudly cheered Solicitor Gen- 
eral Dorsey whenever he entered and left the building. 
These demonstrations were designed and tended to intim- 
idate the jury and influence its verdict. The Court over- 
ruled the motion, declaring that the crowds and the noise 
were inseparable from any trial in which the public inter- 
est and curiosity had been aroused. Judge Roan did, how- 
ever, clear the courtroom on the last day of the trial. 

The summations were concluded about noon on Aug- 
ust 25. Although the courtroom had been cleared hun- 
dreds of persons stood in the streets outside the courthouse 
awaiting the outcome of the case. There was no disturb- 
ance; rather, an ominous quiet. Before Judge Roan com- 
menced his charge to the jury he summoned counsel into 
private conference and suggested the possibility of danger 
to the prisoner and his counsel if the jury should dis- 
agree or return a verdict of not guilty. He asked, in the 
interest of avoiding possible trouble, that counsel agree 
that the prisoner need not be present when the verdict was 
received and the jury polled. In the absence of, and with- 
out the knowledge of, the defendant both sides consented. 



THE LEO FRANK CASE 67 

The judge then proceeded with his charge to the jury. 
It was a simply worded, dispassionate statement of the law 
of the case; its impartiality was attested by the fact that 
very few of the numerous assignments of error on appeal 
attacked the charge and such of them as were argued were 
clearly shown to have been without merit. 

The jury was out for a little more than two hours. Nei- 
ther Frank nor his counsel was present in the courtroom 
when the verdict was received. When the verdict— guilty 
of murder in the first degree— was pronounced, and before 
more than one juror could be polled, there was such a roar 
of applause from the crowd outside that the polling could 
not go on. A semblance of order was restored, but even 
then the continuing noise was such that it was difficult for 
the Court to hear the answers of the jurors although he was 
only ten feet away from them. 

Thus ended the longest and most celebrated trial in the 
history of Georgia. 

Defendant's counsel urged over 100 different grounds 
for a new trial. Judge Roan held the motion under advise- 
ment for more than two months. When he handed down 
his ruling on October 31 he declared the case had troubled 
him more than any case he had ever tried. He said that 
while personally he was not thoroughly convinced of 
Frank's guilt the jury had undoubtedly been so convinced; 
that, after all, the jury, under the law, was the judge of the 
facts, and he felt it to be his duty to overrule the motion. 
Frank was sentenced to death by hanging. 

Aftermath 

And now commenced Frank's long fight through the up- 
per courts. Exhaustive and able briefs were filed in the Su- 
preme Court of Georgia. That Court, on February 17, 
1914, handed down its decision affirming the judgment of 
the lower Court. Two of the six justices dissented. 14 The 



14 141 Ga. 243. 



68 GUILTY OR NOT GUILTY? 

date for the execution of the sentence, which had been 
postponed on appeal, was fixed for April 17. 

On April 16 an extraordinary motion in the nature of a 
petition for a new trial was presented to the Supreme Court 
of Georgia. It was taken under advisement, and the date 
of execution again postponed. On November 14 the Court 
denied the motion. Another motion in the nature of a 
writ of error, which, if allowed, would have nullified the 
judgment of the lower Court, was immediately filed. This, 
too, was overruled. 

.«. All of the approaches to the state courts having been 
closed, resort was now had to the Federal courts. Applica- 
tions for writs of error were successively presented to Su- 
preme Court Justices Lamar and Holmes and lastly to the 
full bench of the Supreme Court of the United States. All 
were denied. One last hope remained— a petition for a writ 
of habeas corpus based on the ground that errors in the 
conduct of the trial in the state court amounted to a depri- 
vation of the defendant's liberty without the "due process 
of law" guaranteed by the Fourteenth Amendment to the 
Constitution of the United States. Such a petition was 
filed in the United States District Court of Georgia. It was 
heard by District Judge W. T. Newman and denied De- 
cember 21, 1914. On application made, Supreme Court 
Justice Lamar granted a certificate of importance so that 
the matter could be reviewed by the Supreme Court of the 
United States. 

On April 19, 1915, the Supreme Court of the United 
States handed down its decision affirming the judgment of 
the lower Federal Court denying the writ. 15 Two of the 
justices dissented. The opinion of the majority held that 
Frank had been formally accused of a crime cognizable 
solely by the courts of the State of Georgia. He had been 
afforded a fair trial by a court of competent jurisdiction 



15 237 U. S. 309. 



THE LEO FRANK CASE 69 

in that state. He had been found guilty and sentence 
had been pronounced pursuant to the laws of that state. 
By three different proceedings his case had been reviewed 
or considered by the Supreme Court of Georgia, and every 
ground urged in his present petition for habeas corpus 
had been urged and adversely passed on by Georgia's court 
of last resort. It was their final conclusion that Frank was 
"not shown to have been deprived of any right guaranteed 
to him by the Fourteenth Amendment or any other pro- 
vision of the Constitution or law of the United States. ..." 
The dissenting opinion was written by Justice Olives 
Wendell Holmes and concurred in by Chief Justice 
Hughes. Basing their view on the theory that the allega- 
tions of the petition were untested, the dissenters felt that 
the defendant should be permitted to make proof of his con- 
tentions that the atmosphere of prejudice and hostility 
which surrounded him had infected the jury and made a 
fair trial impossible. If the allegations were found to be 
true, it was clear, said the dissenting justices, that Frank 
had been deprived of his liberty and was about to be de- 
prived of his life without due process of law and in viola- 
tion of the Fourteenth Amendment. Justice Holmes, as 
was his wont, used vigorous language in expressing this 
view, which was quite generally misinterpreted by the press 
and the lay public as a statement by him of the undisputed 
facts of the case. The contrary is clearly shown by the opin- 
ion itself. Justice Holmes said: 



The single question in our minds is whether a petition 
alleging that the trial took place in the midst of a mob 
savagely and manifestly intent on a single result, is shown 
on its face. . . . This is not a matter for polite presumptions; 
we must look facts in the face. Any judge who has sat with 
juries knows that in spite of forms they are extremely likely 
to be impregnated by the environing atmosphere. And 
when we find the judgment of the expert on the spot, of 
the judge whose business it was to preserve not only form 



70 GUILTY OR NOT GUILTY? 

but substance, to have held that if one juryman yielded to 
the reasonable doubt that he himself later expressed in 
court as the result of most anxious deliberation, neither 
prisoner nor counsel would be safe from the rage of the 
crowd, we think the presumption overwhelming that the 
jury responded to the passions of the mob. Of course, we 
are speaking only of the case made by the petition, and 
whether it ought to be heard. 

Upon allegations of this gravity in our opinion it ought 
to be heard, whatever the decision of the state court may 
have been. ... It may be that on a hearing a different com- 
plexion would be given to the judge's alleged request and 
expression of fear. But supposing the alleged facts to be 
true, we are of opinion that if they were before the Su- 
preme Court [of Georgia] it sanctioned a situation upon 
which the Courts of the United States should act, and if 
for any reason they were not before the Supreme Court, it 
is our duty to act upon them now and to declare lynch law 
as little valid when practiced by a regularly drawn jury as 
when administered by one elected by a mob intent on 
death. 16 

Even before the decision of the Supreme Court of the 
United States was handed down another desperate attempt 
was made to secure a new trial through a motion to that 
end in the Circuit Court of Fulton County. It was heard 
on April %% by Judge B. H. Hill, who had succeeded Judge 
Roan, and denied. Frank was resentenced— execution to 
take place on April 25. 

The possibilities of judicial review being now exhausted, 
an appeal was made to the governor and to the state's 
Prison Commission for a pardon or commutation of sen- 
tence. 

Execution of sentence was again postponed, pending in- 
vestigation and report of the state's Prison Commission. 
On June 9 that body, by a vote of two to one; denied 



16 The above is quoted at length because of the impression created at the 
time by the publicity given to the great jurist's dissent (which was out of 
all proportion to that accorded the majority opinion) that Frank had from 
the outset been the marked victim of mob terrorism. 



THE LEO FRANK CASE fl 

Frank's plea for clemency. The dissenter argued: Frank 
and Conley had equal motive and opportunity to commit 
the crime. There was possibly more of a motive for Con- 
ley— robbery, in addition to rape. It was undisputed that 
Conley had written the notes. The trial judge who heard 
the evidence expressed a doubt as to Frank's guilt. There 
were what amounted to the opinions of two judges of the 
Supreme Court of the United States that Frank had not had 
a fair and impartial trial. 

Governor Slaton was not satisfied and announced he 
i would make a personal investigation. He visited the fac- 
tory and went over the premises. He read and studied the 
record of the testimony, the briefs and arguments of coun- 
sel and the Courts' decisions in the various appeals. He 
announced he would hold public hearings at which any 
person with anything to offer for or against Frank might 
appear and be heard. A number of such hearings were 
held. More than 100 persons appeared and made state- 
ments, among them Solicitor General Dorsey and his assist- 
ant prosecutors. The proceedings were stenographically 
reported and published in full in the daily press. Judge 
Roan from his deathbed had written to the governor, urg- 
ing clemency for Frank. 

On July 21 Governor Slaton commuted Frank's sen- 
tence to life imprisonment. His statement, accompanying 
the official order, merits quotation. After an accurate and 
dispassionate summary of the evidence, the governor said: 

In any event, the performance of my duty under the 
Constitution is a matter of my conscience. My responsi- 
bility rests where the power is reposed. Judge Roan, with 
that awful sense of responsibility which probably came 
over him as he thought of that Judge before Whom he 
would shortly appear, calls to me from another world to 
request that I do what he should have done. I can endure 
misconstruction, abuse and condemnation, but I cannot 
stand the constant companionship of an accusing con- 
cience which would remind me that I, as governor of 



^2 GUILTY OR NOT GUILTY? 

Georgia, failed to do what I thought to be right. There is 
a territory beyond a reasonable doubt and absolute cer- 
tainty for which the law provides in allowing life imprison- 
ment instead of execution. This case has been marked 
by doubt. The trial judge doubted. Two judges of the Su- 
preme Court of Georgia doubted. Two judges of the 
Supreme Court of the United States doubted. One of the 
three prison commissioners doubted. In my judgment, in 
granting a commutation in this case I am sustaining the 
jury, the judge and the appeals tribunals and at the same 
time I am discharging that duty which is placed upon me 
by the constitution' of the state. Acting, therefore, in ac- 
cordance with what I believe to be my duty under the cir- 
cumstances in this case, it is ordered that the sentence in 
the case of Leo M. Frank is commuted from the death pen- 
alty to imprisonment for life. 



The governor's action aroused a storm. There were 
anti-Frank demonstrations throughout the state. A regi- 
ment of the state militia was called out to guard the exec- 
utive mansion. The Southern press generally denounced 
the action or remained silent. A few of the more respon- 
sible and influential papers, following the lead of the At- 
lanta Journal, called the governor's act one of high cour- 
age. 

Despite the threatening signs no actual trouble eventu- 
ated, and Frank was safely removed to the state peniten- 
tiary at Milledgeville. 

The case was now thought to be closed, but within a 
month and in circumstances never fully explained Frank 
was attacked while he slept by a fellow convict who cut 
a seven-inch gash in Frank's throat with a butcher knife 
and severed the jugular vein. Had the alarm not been 
instantly sounded and medical aid rushed to him, Frank 
would undoubtedly have bled to death. As it was he hov- 
ered for days between life and death. 

Four weeks went by. Frank was still convalescing from 
his wound when a mob of probably not more than forty 



THE LEO FRANK CASE 73 

unmasked men forced their way into the prison, held the 
guards at bay with guns and dragged Frank from his bed. 
Handcuffed and with a rope tied around his ankles Frank 
was thrown into the rear of an automobile and, escorted by 
three other loaded cars, driven to Marietta, 17 the birth 
and burial place of Mary Phagan. There in the early morn- 
ing of August 16, 1915, he was hanged from a pine tree not 
far from her grave. 

Governor Harris, who had succeeded Governor Slaton, 
denounced the lynching and promised a "thorough inves- 
tigation." Three days later he issued a statement that the 
mobsters were unknown. They had cut all telephone and 
telegraph lines in and out of Milledgeville, said the gover- 
nor, and entered the prison with drawn revolvers in such 
overwhelming numbers that resistance would have been 
foolhardy. He concluded the prison authorities were "ab- 
solutely blameless." 

The Northern press condemned the lynching as the 
"work of lawless fanatics" and consistent with the lawless- 
ness which had characterized the case from the beginning. 
Mariettas local newspaper declared it was not the act of 
lawless fanatics but of "a body of law-abiding citizens who 
had simply carried out a righteous sentence, the execution 
of which had been postponed by the unjustified and il- 
legal interference of a misguided retiring governor." The 
Atlanta Journal and other leading dailies in the South de- 
nounced the lynching as "mob murder" which had "out- 
raged and endangered a commonwealth" and "assassinated 
the character of a law-abiding state." 

Was Frank guilty? After one has read the record and all 
of the available literature on the case, the most one can say 
is: He may have been guilty, and he may have been inno- 
cent. One simply cannot, with evidence supporting reason, 
declare unequivocally that he was guilty or that he was not 



17 About 150 miles from Milledgeville. 



74 GUILTY OR NOT GUILTY? 

guilty. There is evidence and reasonable probability to 
support either conclusion. 

It may be significant, as has been argued in support of 
the jury's verdict, that in the passage of nearly forty years 
since Frank's brutal execution not a single additional fact 
pointing to his innocence has come to light. Nevertheless, 
from the present perspective a conscientious reader of the 
record puts it down with the uncertain and troubled feel- 
ing that Frank's guilt was not proved beyond a reasonable 
doubt and that he may have been the victim of one of the 
most flagrant miscarriages of justice recorded in American 
criminal annals. 



II 



The Trial of 

D. C. STEPHENSON 

for the Murder of 

MADGE OBERHOLTZER 

(1925) 



2 

The D. C. Stephenson Case 



The significance of this case lies in the fact that the defen- 
dant David C. Stephenson, before he was charged with the 
murder of Madge Oberholtzer, typified the growing polit- 
ical importance, in the North as well as the South, of a new 
legion of racial and religious intolerance and hate which 
styled itself, after a more ancient and moribund organiza- 
tion, the Ku Klux Klan. Although Stephenson had recent- 
ly broken with the national organization, the accusation, 
trial and conviction of the erstwhile Grand Dragon and 
most influential Klansman in the North of what the press 
throughout the country called the "unspeakable crime"— 
murder resulting from a brutal attempt at rape accom- 
panied by the most revolting perversions— created such a 
revulsion of feeling against the Klan, its hypocrisies and its 
sinister potentialities that as an influence it withered and 
died. This was true not only in Indiana but throughout 
the United States. It was surely no mere coincidence that 
within three years after Stephenson's conviction the Klan, 
which had boasted a membership of ten million, was re- 
duced to a few, scattered, impotent thousands. 

The case has its special interest to lawyers. The murder 
was not of the usual type: the natural consequence of a de- 
liberate act. The charge on which Stephenson's conviction 
was obtained and sustained was that the victim, as the re- 
sult of a criminal assault, became mentally deranged and 
while in that condition took poison which ended her life; 
and that because of the "causal connection" between the 

11 



78 GUILTY OR NOT GUILTY? 

assault and the ensuing suicide, the defendant was guilty 
of murder. Such a charge necessarily involved the exten- 
sive use as witnesses of expert physicians and toxicolo gists. 
The experts called by the State were men of outstanding 
professional attainments; both sides were ably represented; 
and the record of the trial— in the archives of the clerk of 
the Supreme Court of Indiana— constitutes for the student 
of forensic medicine a source of invaluable material. 

Had the defendant in this case been plain Jim 
Doakes, the case would probably never have been 
heard of outside the county where the crime was 
committed. Jim would have been speedily tried, convicted, 
sentenced and forgotten. But because the defendant was 
David C. Stephenson and because David C. Stephenson was 
what he was, the case became Indiana's most famous cause 
celibre and claimed front-page space in practically every 
daily newspaper in the United States for more than six 
months. 

Who was David C. Stephenson? 

David Curtis Stephenson was born in Texas in 1891. He 
received a grade-school education— the early part of it in a 
Catholic parochial institution. His early employments, 
which began when he was sixteen years old, seem to have 
been principally in various printing shops and newspaper 
offices in Texas, Oklahoma and Iowa. He first worked as 
an apprentice and later as proofreader and linotype oper- 
ator. In Oklahoma he joined the Socialist party and wrote 
some articles and made a number of speeches in behalf of 
its principles and candidates. 

In 1915 he married and, according to later divorce-court 
records, deserted his wife in the same year, shortly before 
their only child was born. 

In July 1917 he joined the Iowa National Guard and 
soon after entered an officers' training camp at Fort Snell- 
ing, Minnesota. In November he was commissioned a sec- 



THE D. C. STEPHENSON. CASE 79 

ond lieutenant and assigned to active duty. Although he 
and some of his friends later boasted that he had been a 
fighting major of infantry at Belleau Wood, the record is 
clear that he never got closer to France than Camp Devens, 
Massachusetts. 

After his honorable discharge from the service in Febru- 
ary 1919 he married again. He lived with his second wife 
less than a year. In 1924 she divorced him. 

Stephenson's first appearance in Indiana seems to have 
been in Evansville in 1920. According to one account he 
worked there for a brief period as a printer. It is known 
that he sold securities in a coal-mining company in which, 
in some way not disclosed, he had obtained an interest. 
About this time he left the Socialist party and registered as 
a Democrat. 

Just when Stephenson's association with the Ku Klux 
Klan 1 commenced is uncertain— probably in 1921 or 1922. 



1 "The original Ku Klux Klan was organized by the ex-Confederate ele- 
ment to oppose the Reconstruction policies of the radical Republican Con- 
gress and to maintain 'white supremacy.' After the Civil War, when local 
government in the South was weak or nonexistent and there were fears of 
Negro outrages and even of an insurrection, there was formed in almost all 
communities informal vigilante organizations or armed patrols. These were 
linked together in societies. . . . The Ku Klux Klan was the best known of 
these, and as it spread it absorbed many of the smaller organizations. It was 
organized at Pulaski, Tenn., in Dec, 1865. ... A general organization of the 
local Klans was effected in April, 1867, at Nashville, Tenn. General N. B. 
Forrest, the famous Confederate cavalry leader, was made Grand Wizard of 
the Empire. . . . General Forrest, in Jan., 1869, seemingly under some appre- 
hension as to the use of its power, ordered the abandonment of the Klan and 
resigned as Grand Wizard. Local organizations continued, some of them for 
many years. . . . The second Ku Klux Klan was founded by William J. 
Simmons, an ex-minister and promoter of fraternal orders, in 1915; its first 
meeting was held on Stone Mt., Ga. The new Klan had a wider program 
than its forerunner, for it added to *white supremacy* an intense nativism 
and anti-Catholicism (it was also anti-Semitic) closely related to that of the 
Know-Nothing movement of the middle 19th cent. Consequently its appeal 
was not sectional, and, aided after 1920 by the activities of Elizabeth Tyler 
and Edward Y. Clarke, professional promoters, it spread rapidly throughout 
the North. . . . Professing itself nonpolitical, the Klan nevertheless controlled 
politics in many communities and in 1922, 1924, and 1926 elected many state 
officials and a number of Congressmen. Texas, Oklahoma, Indiana, Oregon, 
and Maine were particularly under its influence." The Columbia Encyclo- 
pedia, ed. William Bridgwater and Elizabeth J. Sherwood (2nd ed.; New 
York: Columbia University Press, 1950) . Quoted by permission of the pub- 
lisher. 



80 GUILTY OR NOT GUILTY? 

His rise in the organization was meteoric. He was well 
equipped for the role he elected to play. He had read 
widely and had participated extensively in political and 
other public discussions. Though not a particularly im- 
pressive physical figure he was alert, friendly, ingratiating, 
well poised and confident. He was a tireless worker with a 
real genius for organization and executive direction. In 
addition he possessed a native wit, a gift of phrase and an 
oratorical ability which aroused and persuaded audiences. 
In 1922 he was appointed by Hiram W. Evans, Imperial 
Wizard and dictator of the Klan, King Kleagle 2 of the 
Realm of Indiana. His amazing job of proselyting and or- 
ganizing enrolled, in less than two years, over 300,000 
robed and hooded fanatics. 

July 4, 1923, at a grand conclave at Kokomo a tremen- 
dous crowd 3 gathered at the fairgrounds to witness the in- 
stallation of Stephenson as the Grand Dragon 4 of the 
Realm of Indiana. Stephenson excelled in showmanship, 
and it was here he put on his bravest act. The arrival of 
celebrities at public gatherings by automobile had become 
commonplace. Stephenson's arrival was not commonplace. 
At the appointed hour, by prearrangement with trusties 
scattered through the crowd, a great shout went up. Fingers 
pointed to a brilliant object in the sky. Sailing majestically 
over the heads of the crowd was an airplane of gleaming 
gold. It circled the field a dozen times, bearing ever closer 
to the ground, before it landed. When the door of the plane 
opened a figure clad from head to foot in royal purple 
stepped out. It was Stephenson. Enveloped and sur- 
rounded by these imperial trappings, the Grand Dragon of 
the Realm of Indiana made his acceptance speech. It was 
a carefully prepared speech in the best Klan tradition, and 



2 A title given the head of a realm not yet chartered. 

3 Varying accounts place the number of the crowd at anywhere from 20,000 
to 200,000. 

4 The title given to the supreme head of a chartered realm. 



THE D. C. STEPHENSON CASE 8l 

it was magnificently delivered. The vast audience was 
awed, thrilled and satisfied. 

This was honor, but honor alone would not satisfy Ste- 
phenson. He saw to it that there were other rewards— mate- 
rial ones. He secured a contract from the Klan by which 
he became its supreme organizer in nineteen other North- 
ern states. Out of every ten-dollar initiation fee— "dona- 
tion' ' in Klan parlance— he retained four dollars. The Klan 
regalia sold at six dollars a set. Stephenson had these sets 
manufactured at a cost to him of one dollar and seventy- 
five cents. The difference went into his pocket. According 
to the circulated stories, which may have been exaggerated, 
Stephenson's "take" in eighteen months aggregated over 
$2,000,000. The outward signs of his prosperity were 
not wanting. He purchased a palatial home in a spacious 
setting of oaks and maples in Irvington, a suburb of Indi- 
anapolis. For a time he maintained an expensive yacht on 
which he entertained United States senators, governors, 
mayors of cities and lesser dignitaries. He had a well-ap- 
pointed suite of offices in the city's most pretentious sky- 
scraper. A "fleet of Cadillacs" served the Grand Dragon 
and his host of hangers-on. 

The entente between Grand Dragon Stephenson and 
Imperial Wizard Evans was short-lived. Both were bent on 
absolute, undivided power, and both were utterly ruthless 
and unscrupulous in the choice of methods to obtain it. 
Evans had ousted his predecessor, Simmons, from the lead- 
ership of the Klan through deceit and trickery. Stephenson 
set out, by whatever means might come to hand, to supplant 
Evans or, failing in that, to split off and rule the Northern 
and more profitable segment of the organization. 

The points of friction between them were immediate 
and many. There was the Northern voice of the Klan— 
The Fiery Crow— a weekly Klan organ with a circulation 
of nearly 500,000. Stephenson succeeded for a time in con- 
trolling it and making it a sounding board for his campaign 



82 GUILTY OR NOT GUILTY? 

against Evans. Stephenson's contract with the Klan pro- 
vided that Klan regalia should be purchased from Atlanta 
and that the profit between the manufacturer's price and 
the retail price would go into the treasury of the parent 
body. Stephenson, as we have seen, handled this business 
for his own account. Control through auxiliary organiza- 
tions of the women relatives of Klansmen was another bone 
of contention. Evans had such an auxiliary, "The Women 
of the Ku Klux Klan." Stephenson had one, "The Queens 
of the Golden Mask." Simmons, struggling to regain his 
lost power, had another, "The Kamelia." Stephenson con- 
ceived the idea of taking over the financially sick Valpa- 
raiso University and converting it into a school for the 
children of Klansmen. He sought a contribution of South- 
ern funds. Evans refused his aid and opposed the project. 
Stephenson wanted more "Northern representation"— 
which, translated into reality, meant more of his hench- 
men—on the Imperial Kloncillium, or grand council, of 
the Klan. Evans, the thought of self-preservation upper- 
most in his mind, rejected the suggestion. 

The fight increased in bitterness. The Fiery Cross pulled 
no punches. The Southern Klansmen were characterized 
as "ignoramuses," "rebels" and "thieves." Evans person- 
ally was accused of the mishandling of Klan funds. 
Through the medium of other Klan publications which did 
his bidding Evans retaliated in kind. The climax was 
reached when Evans succeeded regaining control of The 
Fiery Cross and defeated Stephenson's cherished plan to 
take over Valparaiso University. 

In November 1923 Stephenson seceded from the national 
organization. Henceforth, he announced, with the assured 
help of Providence, he would guide the Indiana faithful 
to their appointed destiny. With his ever-present consider- 
ation for things material he included a direction to all 
Klaverns 5 to hold all funds in their treasuries "until the 

5 The name given to local Klan organizations. 



THE D. C. STEPHENSON CASE 8g 

millions that have been taken from the Hoosiers have been 
accounted for." Most of the Indiana Klansmen seemed 
disposed to follow him. 

Although the Klan was not avowedly political Stephen- 
son manipulated his dupes to nominate and elect candi- 
dates of his choice. Great as his influence, supplemented by 
liberal campaign contributions, undoubtedly was he exag- 
gerated it into a repeated, loud-voiced claim that he and he 
alone "delivered the Klan vote." Most of the politically 
ambitious believed him. 

It would appear that Stephenson was not without per- 
sonal political ambitions. He had unsuccessfully attempted 
in 1920 to obtain a Democratic nomination for Congress. 
After his defeat he switched his talents and pinned his hopes 
to the Republican party. In the 1924 primary campaign he 
repeatedly declared to his friends that he would seek nom- 
ination to the United States Senate at the first opportunity. 
To some of his intimates he is said to have confided his 
most cherished ambition-^that in the not-too-distant future 
he might lay aside the easy-to-be-won toga and don the 
mantle of the chief executive. 

In the spring of 1924 hundreds of avowed and promi- 
nent Klansmen were nominated on the Republican ticket 
for the legislature and various county and municipal offices 
throughout Indiana. Many other successful nominees, not 
openly professing Klan allegiance, owed their nominations 
to Klan support. Among these was the Republican candi- 
date for governor, "Ed" Jackson, a close friend of Stephen- 
son. The Grand Dragon boasted he had spent $120,000 to 
insure Jackson's nomination. 

In the fall of 1924 the Republicans swept the state. Jack- 
son was elected governor. A majority of the elected mem- 
bers of the state's House of Representatives were beholden 
to the Klan for their nomination and election. Stephenson 
noisily took credit for all of these victories. He epitomized 
his fancied eminence in the oft-repeated declaration: "I am 
the law in Indiana." While there was a large element of 



84 GUILTY OR NOT GUILTY? 

braggadocio in all this, it is undeniable that Stephenson 
wielded a tremendous influence with the new administra- 
tion. He participated in the dispensation of patronage. He 
sponsored bills, good and bad, which passed; he killed 
other bills which he considered obnoxious to his plans— 
of that much the record is clear. 

As it turned out, however, this was only a surface indica- 
tion. The foundations beneath him, never too solid, were 
being slowly but surely undermined. Evans was a powerful 
and resourceful enemy. Many of the details of Stephenson's 
disgraceful private life must have been known to Evans. So 
long as Stephenson was useful to him and so long as his 
lecheries and debaucheries did not become too notorious, 
they could be tolerated. 

Hypocrisy among the higher-ups in the Klan was a mask 
they wore as comfortably as their hoods. When, however, 
it suited Evans* purposes to strip aside the mask and strike 
at Stephenson the setup was perfect. The Klan, with its 
program of discrimination, intolerance and hate, and per- 
secution of Negroes, Catholics and Jews, had an associated 
program which preached virtue, the curse of alcoholism 
and the sanctity of womanhood. This begat in the rank 
and file a delusion of knight-errantry which expressed it- 
self in stern reprisals against notorious offenders. In the 
dead of night prostitutes were taken from their beds and 
flogged; whoremongers and notorious habitual drunkards 
were tarred and feathered. And so when stories, cleverly 
planted by Evans, began to circulate that Stephenson, the 
bumptious ex-Dragon of the North, was a secret lecher and 
drunkard some of the more pious of the brethren took ac- 
tion. 

Evidence of Stephenson's immoralities was not hard to 
obtain. He had been initiated and held membership in 
the Evansville Klavern. Whether it acted on its own initia- 
tive or at the express direction of Evans is obscure, but in 
January 1924 Stephenson was formally charged by that 



THE D. C. STEPHENSON CASE 85 

body with "gross derelictions"— specifically, that he had at- 
tempted to seduce a virtuous young woman of Evansville 
and had committed numerous "immoralities" in Colum- 
bus, Ohio, Columbus, Indiana, Atlanta, Georgia, and "on 
trains and boats." He was secretly tried, found guilty and 
"banished" from Klan association. 

Such was Stephenson and such was his position in Indiana 
when he met Madge Oberholtzer. 

Madge Oberholtzer at this time was twenty-eight years 
old. She was unmarried and lived with her parents in a 
modest two-story house in Irvington, some two or three 
blocks away from the Stephenson mansion. Her parents 
were honest, respected people in moderate circumstances. 
The father had been employed for many years as a clerk 
and inspector in the post office. The mother took in room- 
ers to supplement the family income. 

Though Madge Oberholtzer was not the outstanding 
beauty that some of the more imaginative newspaper re- 
porters made her out to be, she was not bad-looking. She 
was well-mannered, dressed smartly and possessed a better- 
than-average education. After leaving public high school 
she had attended Butler College— which was then located in 
Irvington— and had taken a secretarial course in an Indi- 
anapolis business college. She taught in the public schools 
for part of a term and then worked as a clerk in the offices of 
two of the larger commercial firms in Indianapolis. When 
she met Stephenson she was employed in the Indiana State 
Department of Public Instruction as manager of one of the 
state's public-welfare activities. 

According to the later evidence, Madge Oberholtzer was 
introduced to Stephenson in January of 1925 at a banquet 
and ball given in honor of Governor-elect Jackson. They 
danced together several times and, in the incidental con- 
versation, Stephenson learned where she worked and where 
she lived. On two or three later occasions she had dinner 
with him in the public dining room of one of Indianapolis' 



86 GUILTY OR NOT GUILTY? 

prominent hotels. At these times he made previous ap- 
pointments with her by telephone, called for her in his 
chauffeured car at her parents' home and returned her to 
her home at an early hour. On one occasion she accepted 
his invitation to attend a dinner party at his house. It was 
a large party. In addition to Miss Oberholtzer, the guests 
included a number of prominent officials and businessmen 
and their wives. On all these occasions, according to the 
girl's later story, Stephenson acted as the perfect gentle- 
man. 

The next time she heard from Stephenson was on Sunday 
March 15. She had spent the afternoon and evening with 
some young people of her acquaintance and returned home 
shortly before ten o'clock in the evening. Her mother told 
her that during her absence Stephenson had called her sev- 
eral times and had left a message for her to call him at 
Irvington 0492; that he had said it concerned a matter im- 
portant to her. 

Miss Oberholtzer made the call. Stephenson answered 
the phone and said he wanted her to come to his house im- 
mediately; ,that it was about something important to her; 
that he was leaving for Chicago and had to see her before 
he left. He added that he would send an escort for her, and 
she said she would come. Stephenson had previously in- 
terested himself in a bill which would have affected her 
status as a state employee, and it is altogether probable 
that Miss Oberholtzer thought Stephenson's call had some- 
thing to do with her employment. She evidently expected 
to be gone for only a short time because she left without 
her purse and wore no hat. 

In a few minutes a man she had never seen before— but 
who was afterward identified as Earl Gentry— called for her 
and together they left for Stephenson's house* Miss Ober- 
holtzer did not return home that night. Her parents had 
retired early and were not aware of her continued absence 
until the following morning. Mrs. Oberholtzer was natur 



THE D. C. STEPHENSON CASE 87 

rally much disturbed, but about eight o'clock she received a 
telegram, dated from Hammond, Indiana, signed "Madge," 
which read: "We are driving through to Chicago. Will be 
home on night train." 

Mrs. Oberholtzer met the night train, but Madge was not 
on it. With a friend and with a lawyer whom Mrs. Ober- 
holtzer had consulted about the girl's disappearance, Mrs. 
Oberholtzer went to the Stephenson home to inquire of 
Stephenson about her daughter. They were told that nei- 
ther Stephenson nor Miss Oberholtzer was there. 

Between eleven and twelve o'clock Tuesday morning an 
automobile drove up to the Oberholtzer home and a man- 
afterward identified as Earl Klinck— got out. He opened 
the door, lifted Miss Oberholtzer out of the car and carried 
her into the house. She was moaning and seemed to be in 
great distress. The only person in the Oberholtzer home 
at the time was a roomer, Mrs. Schultz. The man, who gave 
his name as "Johnson" and said he was from Kokomo, told 
her the girl had been in an automobile accident. At Mrs. 
Schultz's direction he carried Miss Oberholtzer to an up- 
stairs bedroom and laid her on the bed. Mrs. Schultz would 
have questioned him further, but he said he was in a great 
hurry and left immediately. 

Madge Oberholtzer was conscious and asked that a phy- 
sician— Dr. Kingsbury— be called. Both he and Miss Ober- 
holtzer's mother arrived shortly afterward. To them, be- 
tween her sobs and groans, the girl told a terrible story. It 
was the same story which she recited later in a formal, 
signed statement. Most of it, as her dying declaration, was 
to become the core of the State's case against Stephenson. 

After the door of Stephenson's house closed behind her 
on Sunday March 15, Gentry hurried her to the kitchen at 
the rear of the house. There she saw Stephenson. He was 
quite drunk. His chauffeur, called "Shorty," was with him. 
Miss Oberholtzer knew Shorty from having previously rid- 
den in the Stephenson car with him. Almost immediately 



88 GUILTY OR NOT GUILTY? 

another man, who was later to be identified as Earl Klinck 
and whom Miss Oberholtzer had not previously known, 
came in. 

The girl by this time realized that Stephenson's house- 
keeper was not there. She became frightened and said she 
was going home. Stephenson had in his hand a small glass 
containing some kind of liquid, which he held out to her. 
He said she should drink it. When she refused he and the 
others, according to her story, compelled her to drink it. 
They refilled the glass twice and made her drain the con- 
tents. She said she became ill almost immediately, vomited 
profusely, became confused and could scarcely move. She 
told Stephenson she wanted to go home and he replied, 
"No, you can't go home; you are going with me to Chi- 
cago; I love you more than any woman I have ever known." 
She tried to reach the telephone but one of the men pre- 
vented her. 

Stephenson then went upstairs. The men with him 
forced the girl to follow him. Stephenson pulled a drawer 
out of one of the dressers. It was full of revolvers. He took 
a pearl-handled one for himself and had Shorty load it. 
Each of the other men took one. The girl said she was 
terrified. 

She remembered that Gentry called the Washington 
Hotel in Indianapolis and talked about reserving a draw- 
ing room. She was half carried out of the rear door into 
the back yard and pushed into one of Stephenson's auto- 
mobiles which was parked there. Stephenson and Gentry 
followed her. Shorty drove. Klinck remained behind. 

The girl begged her captors to drive past her home that 
she might get her hat, believing, as she said, that once in- 
side her own home she would be safe from them. They 
ignored her pleas and drove on to the Washington Hotel. 
The chauffeur got out, presumably to pick up the railroad 
tickets. Stephenson and Gentry remained in the car. Miss 
Oberholtzer said she made an effort to get out of the car, 



THE D. C. STEPHENSON CASE 89 

but they held her back. She said she was dazed and was 
terrified that her life would be taken. She remembered 
Stephenson saying to Gentry how smart he had been to 
have got hold of her. 

When they reached the railroad station they helped her 
out of the automobile and walked her through the gates to 
^he train and to the Pullman car in which the reservation 
had been made. There they pushed her ahead of them, up 
the steps and through the car to the drawing room. She 
said that during this time she was so weak she could hardly 
stand and so dazed that she could barely understand what 
was happening. She could not tell all that occurred after- 
ward. She did remember that the upper and lower berths 
were made up, that Gentry climbed up into the upper 
berth and immediately after that Stephenson attacked her. 

In her dying declaration she said: "He took hold of the 
bottom of my dress and pulled it up over my head. I tried to 
fight but was weak and unsteady. Stephenson took hold of 
my two hands and held them. I had not the strength to 
move. What I had drunk was affecting me. Stephenson 
took all my clothes off and pushed me into the lower berth. 
After the train had started Stephenson got in with me and 
attacked me. He held me so I couldn't breathe. I don't 
know and don't remember all that happened. He chewed 
me all over my body, particularly my neck and face, chewed 
my tongue, chewed my breasts until they bled, my back, 
my legs, my ankles, and mutilated me all over." 

She lost consciousness and had no memory of the rest of 
the night. She remembered hearing a buzzer early in the 
morning and the porter telling them to get ready to get off 
at Hammond. Gentry shook her and said it was time for 
her to get up. Things, she said, became a little clearer after 
that. She remembered Stephenson flourishing his revolver. 
He held it against her side and threatened to shoot her. 
When she begged him to do it he put the gun back in his 
grip. Stephenson and Gentry then helped her to dress. 



go GUILTY OR NOT GUILTY? 

They also helped her get off the train. She was able to 
walk with them to the Indiana Hotel, about a block away. 
It was now 6:30 a.m. Stephenson registered under an as- 
sumed name, Gentry registered for himself, and two rooms 
—rooms 416 and 417— were assigned to them. The girl had 
repeatedly begged Stephenson to send her mother a tele- 
gram, and when they reached the rooms she asked the bell- 
boy for a telegraph blank. He gave her one, and Stephen- 
son made her write a message as he dictated it. Gentry took 
it and said that he would send it right away. 

The girl was in intense pain, and Gentry put hot towels 
soaked with witch hazel on her head and bathed the 
wounds on her body. Stephenson ordered a substantial 
breakfast and ate heartily. The girl drank some coffee but 
ate nothing. About this time Shorty, the chauffeur, ap- 
peared on the scene. He had driven up from Indianapolis 
in one of Stephenson's cars. 

Miss Oberholtzer said she told Stephenson she had to 
have a hat but had no money. At Stephenson's direction 
Shorty gave her fifteen dollars and left the hotel with her. 
They drove to a near-by store where, in Shorty's presence, 
she selected and paid for a hat. She had some change left 
and asked Shorty to drive her to a drugstore that she might 
get some rouge. Shorty got out of the car at the drugstore 
but evidently did not stay close enough to her to see what 
she bought. While at the counter she purchased a box of 
bichloride-of-mercury tablets and put them in the pocket 
of her coat. 

Shorty drove her back to the hotel and took her up to 
room 416. Stephenson and Gentry were there. Both had 
been drinking. Stephenson was lying on the bed. When 
he appeared to be asleep she went into room 417, laid out 
eighteen of the bichloride-of-mercury tablets and at once 
took six of them. "I only took six," she stated in her dec- 
laration, "because they burned so." While Gentry was out 
sending the telegram, she said, she considered seizing Ste- 



THE D. C. STEPHENSON CASE Ql 

phenson's revolver and killing herself in his presence, but 
then she decided to try to get poison and take it in order 
to save her mother from disgrace. 

It was about ten o'clock in the morning when she took 
the poison. Almost immediately she became violently ill. 
Her pain was intense and, to use her own language, she 
"vomited blood all day." Shorty came into her room about 
four o'clock in the afternoon. She told him what she had 
done and begged him not to tell the others. Shorty, how- 
ever, lost no time in notifying Stephenson and, in a few 
minutes, Stephenson, Gentry and Shorty, all very much ex- 
cited, entered her room. 

Stephenson sent out for a bottle of milk and made her 
drink it. He suggested driving her to a hospital and regis- 
tering her as his wife so that the poison could be pumped 
out of her system. The girl refused. He then suggested 
that they drive to Crown Point and be married. Again she 
refused. Stephenson then said he would drive her home. 
He ordered Shorty to pack the grips. This the chauffeur 
did and checked out for the party. Stephenson and Gentry, 
meanwhile, got the girl to her feet, out of the hotel and 
into the back seat of the automobile. Stephenson and Gen- 
try got in beside her; Shorty did the driving. It was about 
five o'clock in the afternoon when the 175-mile return ride 
to Indianapolis began. To avoid identification Stephenson 
ordered the license plates removed from the car. If they 
were questioned, their agreed story was that the plates had 
just been stolen. 

The girl's statement continued: "All the way back to 
Indianapolis I suffered great pain and agony and screamed 
for a doctor. I said I wanted a hypodermic to ease the pain 
but they refused to stop. I said to Stephenson to leave me 
along the road some place, that someone would stop and 
take care of me if he wouldn't. I said to him that I felt he 
was more cruel to me than he had been the night before. 
He said he would stop at the next town but he never did. 



92 GUILTY OR NOT GUILTY? 

Just before reaching a town, he would say to Shorty, 'Drive 
fast but don't get pinched/ I vomited in the car, all over 
the back seat and grips. Stephenson didn't try to make me 
comfortable in any way. He said he thought I was dying at 
one time and said to Gentry, 'This takes guts to do this, 
Gentry. She is dying.' I heard him say also that he had 
been in worse messes than this before and he would get out 
of it. Stephenson and Gentry drank liquor during the 
entire trip., I remember Stephenson having said that he had 
power that he was the law." 

They reached Indianapolis about an hour before mid- 
night and drove directly to the Stephenson garage. As they 
reached it Miss Oberholtzer heard Stephenson say, "There 
is someone at the front door of the house." He told Shorty 
to go and see who it was. Shorty jumped out of the car and 
disappeared in the darkness. He came back almost imme- 
diately and said, "It is her mother." 

Together the men carried the girl to the loft above the 
garage. She remembered Stephenson telling her that she 
was staying right there until she married him and that she 
should say she had been in an automobile accident. He 
also told her, "What's done has been done . . . you must for- 
get this ... I am the law and the power." After that she 
said she remembered nothing until the next morning 
(Tuesday) , when Klinck awakened her and said she had to 
go home. He helped her to dress and carried her down- 
stairs and put her in the rear seat of the Cadillac. Then he 
drove her home, carried her into the house and upstairs to 
her bedroom. 

Such was Madge Oberholtzer's story. 

Dr. Kingsbury at once instituted the recognized treat- 
ment for the elimination of the poison from her system. In 
the course of the ensuing ten days all of the numerous 
wounds and bruises on her body yielded to the usual medi- 
cation with the exception of an incised wound in one of 
her breasts, which became infected. Her general condition, 



THE D. C. STEPHENSON CASE 93 

however, did not improve. She began to run a tempera- 
ture, and other physicians were called into consultation. 
They pronounced the case hopeless. The girl was told of 
her extremity on March 28, and with the realization that 
her end was near she, in the presence of Dr. Kingsbury, two 
lawyers and a girl friend, made her dying declaration. She 
died on April 14, 1925. 

When Stephenson boasted that he had got out of worse 
jams before and would get out of this one, he failed to ap- 
prehend the determination of two important individuals- 
George Oberholtzer, the father of the girl; and William H. 
Remy, the honest and fearless prosecuting attorney of Mar- 
ion County, who owed no allegiance to the Klan and who 
was not paralyzed at the thought of encountering the sup- 
posed power and influence of the erstwhile Grand Dragon 
and his self-styled "law in Indiana." 

On April 2 the girl's father filed a sworn criminal com- 
plaint against Stephenson, Gentry and Klinck. On the fol- 
lowing day the prosecuting attorney laid the case before a 
Marion County grand jury sitting at Indianapolis. The in- 
quisitors promptly returned an indictment against the 
three for assault and battery with intent to commit a crim- 
inal attack, malicious mayhem, kidnaping and conspiracy 
to kidnap. Stephenson's bail was fixed at $25,000. He was 
arrested, furnished the required bail immediately and was 
released. The arrest of Gentry and Klinck followed shortly. 
Their bonds were fixed at $5,000, and with sureties pro- 
vided by Stephenson they, too, were promptly released. 

Attorneys acting for the father instituted a civil suit on 
behalf of the girl for $150,000 damages. Stephenson 
promptly engaged the best legal talent available and loudly 
declared he was being made the victim of a "frame-up" 
and "shakedown" and would fight to the finish. 

Immediately following the girl's death the father filed a 
new criminal complaint charging Stephenson, Gentry and 
Klinck with murder. The prosecuting attorney promptly 



94 GUILTY OR NOT GUILTY? 

presented the evidence to the grand jury, and on the 
eighteenth of April that body returned a true bill formally 
charging the three with murder. All were arrested, lodged 
in the county jail and held without bail. 

And now commenced one of the longest and bitterest 
contests in the history of criminal prosecutions— a contest 
that even as this is written is still raging. 

The immediate strategy of Stephenson's attorneys was to 
avail themselves of every technical procedure known to 
Indiana practice to prevent or delay the trial and, that fail- 
ing, to limit to the utmost the proof available to the prose- 
cution. Pleas in abatement impugning the validity of the 
evidence submitted to the grand jury, motions to quash the 
indictment on the asserted ground that it stated no crimi- 
nal offense and was "ambiguous, duplicitous, indefinite and 
vague," and motions to strike portions of the indictments 
for irrelevancy and surplusage were successively made, ar- 
gued and overruled. A motion to admit the defendants to 
bail was denied. 

The defendants next moved for a change of venue from 
Marion County, alleging that the general excitement and 
prejudice of its citizens precluded the possibility of obtain- 
ing a fair and impartial trial in that jurisdiction. It was not 
difficult to sustain this charge. Seven days after Madge 
Oberholtzer's death, over 500 aroused citizens of Irvington 
in a mass meeting passed resolutions demanding the imme- 
diate prosecution and punishment of the girl's murderers. 
A flood of similar resolutions followed— from the women's 
clubs, churches and church organizations, and fraternities 
and sororities of Butler College. Marion County Klavern 
Number Three, a lodge of the Ku Klux Klan, gave wide 
publicity to its repudiation and denunciation of Stephen- 
son. The newspapers, somewhat chary at first, soon sensed 
the direction of the wind and joined in the general hue and 
cry. 

The judge of the Marion County Circuit Court, after a 



THE D. C. STEPHENSON CASE 95 

comparatively brief hearing, ordered the case transferred 
to Hamilton County. Noblesville, the county seat, was 
some thirty miles removed from Indianapolis. The elected 
judge of the Hamilton County Circuit Court was the Hon- 
orable Fred E. Hines, a fair-minded man of unimpeachable 
integrity. The defendants, however, promptly challenged 
his competency by a motion for a change of venue in which 
it was averred that he was personally prejudiced against 
the defendants. Following Indiana practice, Judge Hines 
presented the defense with a list of three alternate judges. 
From this list the State struck one and the defense one. 
The name remaining was that of the Honorable Will M. 
Sparks, 6 the elected circuit judge of Rush County. 

The filibustering was over. The case came on for trial 
at Noblesville, in Hamilton County, on October 12, 1925, 
Judge Sparks presiding. Appearing for the State were 
William H. Remy, prosecuting attorney for Marion Coun- 
ty, Justin A. Roberts, prosecuting attorney for Hamilton 
County, Charles E. Cox, Ralph Kane and Thomas Kane. 
For the defense: "Eph" Inman, Ira W. Holmes, Floyd 
Christian, Ralph Waltz, Alfred F. Corwin, Ralph E. John- 
son and John Kiplinger. Remy, Cox and Ralph Kane pre- 
sented the case for the State; Inman, Christian and Holmes 
carried the burden for the defense. 

Remy, although a comparatively young man, had had 
several years experience as chief deputy prosecutor before 
becoming prosecutor. He was in many respects the ideal 
type of prosecutor: a man of cultural background and splen- 
did education, holding rigid views of right moral conduct, 
solemn-visaged and serious-minded. He was meticulous in 
the preparation of his cases and presented them dispassion- 
ately but with convincing sincerity. 



6 Judge Sparks was later appointed to the United States Circuit Court of 
Appeals for the Seventh Circuit and served there with great distinction until 
shortly before his death in 1950. 



96 GUILTY OR NOT GUILTY? 

Judge Cox was a sixty-five-year-old man and a veteran 
practitioner. For six years before his admissioii to the bar 
in 1889 he had served as librarian of the Supreme Court of 
Indiana. He had been successively chief deputy prosecutor 
of Marion County, judge of a city court of Indianapolis and 
a justice of the Supreme Court of Indiana. He was a fine 
legal scholar, painstaking in his assembling of facts, and a 
skillful direct and cross-examiner. He was charged with 
the preparation and presentation of the medical evidence 
for the prosecution, and he cross-examined the experts 
called by the defense. 

Ralph Kane, although an Indianapolis practitioner at 
the time of the trial, had been born and raised in Hamilton 
County and had formerly practiced there. He was the 
"thirteenth juror" type of trial lawyer— knowledgeable, un- 
pretentious, ingratiating, likable— speaking and arguing as 
a native of farm and crossroads. 

"Eph" Inman, who led for the defense, was one of the 
best-known criminal-trial lawyers in Indiana. His impres- 
sive figure— he was well over six feet tall— matched his assur- 
ance of manner engendered by many successes. His wide 
and varied experience, his shrewd judgment of human na- 
ture, his resourcefulness and his flair for exploiting dra- 
matic possibilities made him an opponent to be respected 
and feared. 

Floyd Christian was a highly esteemed citizen of Nobles- 
ville and an experienced and successful trial lawyer. 

Ira W. Holmes, who presented the evidence in behalf of 
the defendant Klinck, was an Indianapolis practitioner. His 
experience in both civil and criminal cases had been wide 
and varied, and he was accounted a clever and able trial 
lawyer. 

Eleven days were spent in selecting and agreeing on a 
jury. Counsel were permitted an unusually wide latitude 
in the interrogation of the 400 veniremen called— search- 
ing, intimate inquiry into their personal histories, their 



THE D. C. STEPHENSON CASE 97 

business and social connections, their prejudices and scru- 
ples, their knowledge of the case and the parties and their 
opinions or impressions formed from newspaper or other 
comment. 

The twelve men finally chosen, mostly farmers, were rep- 
resentative of the community. Challenges, for cause assigned 
or peremptory, had eliminated every one called who had 
been suspected of affiliation with or sympathy for the Klan. 
While all of them had heard of Stephenson, none of them 
knew him personally or held a fixed opinion as to his guilt 
or innocence. Each of them declared that he could and 
would give the defendants a fair and impartial trial accord- 
ing to the evidence and the law. On the twenty-eighth of 
October 1925 the jury was formally sworn to try the case. 

Judge Cox, for the prosecution, made an impressive 
opening statement of what the State expected to prove. The 
defense waived its right to make a statement in reply, and 
the first of the State's twenty-eight witnesses took the stand. 

The facts as to Stephenson's telephone calls, the girl's 
leaving in Gentry's company for Stephenson's house, the 
receipt by her mother of the telegram on Monday morning, 
the fruitless inquiry at the Stephenson home on Monday 
night and the return of the girl in one of Stephenson's cars 
at noon Tuesday were readily established by the girl's par- 
ents, a roomer at the Oberholtzer home and friends of the 
missing girl who accompanied Mrs. Oberholtzer when she 
called at the Stephenson home late Monday night. 

Mr. and Mrs. Oberholtzer, a nurse who was immediately 
brought into attendance and other witnesses corroborated 
the testimony of Dr. Kingsbury, the family physician, as to 
the condition of the girl and the wounds and bruises on 
her person after she was brought home. She was, accord- 
ing to this evidence, in a state of profound shock. Her body 
was blue and cold, her temperature subnormal and her 
pulse rapid. There were cuts and bruises on her face and 
mouth. Her tongue was swollen. There were abrasions 



98 GUILTY OR NOT GUILTY? 

and lacerations on her breasts, one quite deep, a wound 
such as might have been made by teeth. The lower part of 
her abdomen was bruised. The inner lips of the vulva were 
bruised and swollen. Her legs down to her ankles were 
covered with bruises, and there was a particularly large dis- 
coloration on her left buttock. 

Dr. Kingsbury testified that from the time she was 
brought home until her death, twenty-eight days later, the 
girl repeatedly declared she was going to die. He told the 
jury the story she told him of what had happened to her be- 
tween the time she left home Sunday evening and the fol- 
lowing Tuesday morning. Her statement to the doctor did 
not vary in any essential detail from what she said later in 
her dying declaration. 

Asa J. Smith, an able and highly regarded Indianapolis 
lawyer, had been consulted by the father of the girl on 
Monday March 16 when it was discovered that the girl had 
not returned home the previous evening. When it became 
apparent that Miss Oberholtzer was not going to recover, 
Smith set about preserving her testimony in a statement 
which would be admissible evidence in the event of a later 
prosecution of Stephenson and others for causing her death. 

From notes made of his previous conversations with her 
Smith prepared a typewritten statement, and on the eve- 
ning of March 28 four solemn-faced persons gathered at the 
girl's bedside. Dr. Kingsbury, having conferred earlier 
with other physicians called into consultation, told her that 
she had no chance to recover. She replied that she knew it 
and was ready to die. Smith then explained to her the pur- 
pose of the proposed declaration. Dr. Kingsbury, Asa 
Smith, an attorney associated with Smith, and a young 
lady who was probably the dying girl's closest friend were 
present. 

Smith's testimony, corroborated by the others, was that 
he read the typewritten statement to the girl clearly and 
slowly. At the end of each sentence he paused and asked 



THE D. C. STEPHENSON CASE 99 

her if that was correct. If she answered in the affirmative, 
he passed on to the next sentence. If she suggested any 
corrections, he made them with pen and ink and then re- 
read to her the sentence as amended. When he had finished 
reading and had corrected the statement, she declared that 
it expressed the truth and signed it in the presence of the 
four witnesses. 

The statement was offered in evidence. A vigorous gen- 
eral objection to its admissibility was overruled, but on par- 
ticular objections certain specific statements were deleted. 
These, for the most part, were recitals of events which pre- 
ceded March 15. The girl's story of her abduction and as- 
sault and of her taking the poison to end her life and save 
her mother from disgrace went to the jury. 

Witnesses were called to corroborate, wherever possible, 
the facts recited in Madge Oberholtzer's dying declaration. 

The manager of the local telephone company serving 
Indianapolis testified that the D. C. Stephenson residence 
telephone number was Irvington 0492. 

A night clerk at the Hotel Washington in Indianapolis 
testified that he received a call the evening of March 15 to 
reserve a drawing room for Stephenson on the Monon 
night train for Chicago. Later in the evening, the clerk 
said, someone picked up the reservation and three railroad 
tickets. 

The Pullman conductor on the Monon train which left 
Indianapolis for Chicago at 1 : 00 a.m. on Monday identified 
Stephenson and Gentry as two men who, accompanied by 
a girl with no hat on, had given him tickets for and occu- 
pied a drawing room in one of the cars on the train. 

The Pullman porter on the car made a similar identifica- 
tion. He testified that while he was making up the upper 
and lower berths Stephenson showed him his revolver, and 
he heard the girl tell Stephenson to put it up because she 
was afraid of it. Later, he testified, he heard her vomiting. 

The hotel clerk who was on duty at the Indiana Hotel at 



lOO GUILTY OR NOT GUILTY? 

Hammond in the early morning of March 16 identified 
Stephenson and Gentry as two men who had, in company 
with a woman who was "pale, with no make-up on and no 
hat," entered the hotel about 6:30 a.m. and asked for 
rooms. He testified further that Stephenson registered for 
"Mr. and Mrs. W. B. Morgan," that Gentry registered as 
Earl Gentry, and that the three were assigned to rooms 416 
and 417. 

The hotel clerk who was on duty in the afternoon testi- 
fied to the arrival of Shorty in a "big, closed car" and to 
his inquiry for Gentry. He further testified that later three 
people came down and got into the car, that one of the men 
held the woman's arm to support her and that he thought 
she was intoxicated but trying to act as if she were sober. 

The hotel maid in charge of rooms 416 and 417 testified 
that a man, whom she identified as Stephenson, called for 
more towels, saying that they had used up all they had for 
hot towels. She said she cleaned up the rooms after the 
parties had vacated them. In room 416 she found five or 
six "bullets" (pistol cartridges) in one of the dresser draw- 
ers. She also found and picked up a partially filled whisky 
bottle, an empty milk bottle, some witch hazel and some 
oranges. The bed in room 417, she said, was "all tore up 
. . . one of the pillow slips was wet and bloodstained" and 
"the cuspidor looked like it was full of sour, milk." 

The porter at the hotel identified Stephenson and Gen- 
try. The woman with them, he testified, "looked awful 
bad, walked slow and kind of staggered . . . one man got on 
each side of her . . . she didn't seem to be quite herself," 
and "she was pale and had a red place on her cheek." 

A superintendent of the Western Union Telegraph 
Company at Indianapolis identified a telegram received at 
the Indianapolis office on March 18 at 8:00 a.m., which 
read: "We are driving through to Chicago. Will take train 
back tonight." It was signed "Madge." 

A housewife whose home was about 300 feet away from 



THE D. C. STEPHENSON CASE 101 

the Stephenson residence testified that near midnight on 
Monday March 16 she was awakened by a terrible scream 
which came from the direction of Stephenson's garage and 
that Stephenson's three police dogs, which he kept near 
the garage, barked furiously all the rest of the night. 

Another neighbor testified that on the morning of 
March 17 she observed Shorty washing one of the Stephen- 
son automobiles in front of his garage and that all of the 
cushions had been washed and laid out to dry. She also 
testified that between eight and nine o'clock she saw Gen- 
try carrying a tray from the house to the garage. 

It is in no sense critical of the defense to record that the 
cross-examination of these witnesses yielded nothing to dis- 
credit their several testimonies or to impeach their authors. 
The stories told by these witnesses, most of whom were 
entirely disinterested, were unquestionably true. Even the 
belligerent, rapid, searching cross-fire of Stephenson's chief 
counsel, "Eph" Inman, produced only minor discrepancies 
which failed to weaken the force of the evidence. Efforts 
to impeach two or three of the witnesses by showing alleged 
variations between their versions on the stand and previous 
answers on the "bail hearing" and to show, as to one other, 
an attempt to extort money from Stephenson to compound 
his alleged crimes failed utterly. The bases on which to 
conduct successful cross-examinations simply did not exist. 

The remainder of the State's case was medical testimony 7 
—testimony as to the nature and effect of the internal ad- 
ministration of bichloride of mercury, its proper treatment, 
the chances of recovery following such treatment, the na- 



7 Stephenson, in his later numerous appeals for a retrial and parole, made 
much of the claim that the State had not established his guilt beyond a rea- 
sonable doubt by its failure to call as its witnesses the millinery saleswoman 
in Hammond who had sold Miss Oberholtzer the hat and the druggist's clerk 
from whom she had purchased the poison tablets. If the testimony of these 
witnesses would have impeached the girl's dying declaration, Stephenson 
could have summoned them as his witnesses. It is difficult to follow Ste- 
phenson's argument that failure to corroborate these details in the girl's 
statement reacted to his prejudice. 



lOZ GUILTY OR NOT GUILTY? 

ture and consequences of the physical injuries inflicted 
upon Madge Oberholtzer by Stephenson and the cause or 
causes of her death. 

The trained nurse in attendance from the time the girl 
returned home until her death testified from her hour-to- 
hour bedside record to the girl's temperature, pulse, respi- 
ration, complaints of pain, the stomach washings, adminis- 
trations of narcotics and sedatives, foods taken and stool 
and urine elimination. 

The State's chief medical expert was a professor of path- 
ology at the Indiana University School of Medicine and 
was a highly qualified physician, surgeon and toxicologist. 
He had previously performed over 900 autopsies. At the 
request of the Marion County coroner and in the presence 
of Dr. Kingsbury and three other physicians (all of whom 
were witnesses for the State) , he conducted a post-mortem 
examination of the body of Madge Oberholtzer. 

He testified that he found an acute nephritis, a marked 
irritation of the intestinal tract and some degeneration of 
the liver and heart tissues— all, in his opinion, due to 
bichloride-of-mercury poisoning. He also testified to find- 
ing evidences of numerous healed lacerations and that one 
of these in one of the girl's breasts showed evidence of hav- 
ing suppurated before it healed over. He added that there 
was an abscess in the lung below it. This abscess, he said, 
Vas in the outer portion of the lung adjacent to the pleura 
and contained pus and staphylococci germs. The kidneys, 
he found, were infected with the same bacteria. 

A biochemist, also a professor in the Indiana University 
School of Medicine, testified that a microscopic examina- 
tion of portions of the girl's vital organs which were turned 
over to him by the post-mortem surgeon revealed the pres- 
ence of bichloride of mercury in the liver and kidney 
tissues. 

There was complete agreement among the State's medi- 
cal experts as to the effect of bichloride of mercury taken 



THE D. C. STEPHENSON CASE IO3 

into the human system internally and the proper treatment 
of a patient suffering from such poisoning. Two or three 
grains may constitute a fatal dose, but ensuing death would 
depend on whether the poison was eliminated or absorbed. 
The poison in powder form is absorbed more readily than 
that which is in tablet form. The rapidity of the absorp- 
tion depends on the promptness with which suitable meas- 
ures are instituted to cause vomiting and purging. 

With prompt and appropriate treatment, recoveries have 
been known in cases where as much as 40 to 100 grains have 
been taken. If a lethal dose is taken and there is an absence 
of treatment, or if the patient does not respond to the usual 
medical procedures, death generally ensues in from a few 
hours to twelve days. In rare cases death may be longer 
postponed. The most extreme case known to the State's 
experts was one where the poisoned patient lived twenty- 
five days. 

If death occurs within the first four days, it is because of 
the corrosive action of the poison on the stomach and 
bowels; if after five but within twelve days, it is the result 
of the action of the poison on the kidneys causing an acute 
nephritis. After the twelfth day nature begins a process of 
absorption of the dead kidney tissue and replacement of it 
with new tissue. Thereafter, in the absence of new compli- 
cations, the prospects of recovery improve with each pass- 
ing day. 

The autopsy revealed that the initial injury to the kid- 
neys from the poison had almost entirely healed and that 
the replacement of the destroyed tissue by new tissue was 
almost complete. 

One of the State's experts, an experienced pathologist, 
gave testimony based on blood and urine examinations 
which he made on various days between March 21 and 
April 10. A secondary infection, he said, in the girl's kid- 
neys, ureter tubes or bladder, superimposed on the ne- 
phritis, caused her death. 



104 GUILTY OR NOT GUILTY? 

All of the State's medical witnesses gave it as their def- 
inite opinion that the twenty-four-hour delay in institut- 
ing proper treatment to eliminate the poison from the girl's 
system tended to lessen her chances of recovery and to 
shorten her life. 

Judge Cox, the learned special prosecutor, concluded the 
direct examination of three of the State's experts with a 
long hypothetical question. It accurately summarized the 
facts recounted in the girl's dying declaration, epitomized 
the testimony of the various witnesses as to the girl's condi- 
tion when she was brought home and to the wounds and 
bruises on her body, the findings of the attending and con- 
sulting physicians, the findings on the post-mortem exam- 
ination and asked the opinion of the witnesses as to the 
cause of death. All three of the State's medical experts an- 
swered that in their opinion death resulted from the com- 
plication of a secondary blood-stream infection, with pus- 
forming bacteria, superimposed on the nephritis which was 
the direct result of bichloride-of-mercury poisoning. Such 
an infection, they said, might have been and very probably 
had been introduced into the blood stream by a human 
bite causing the laceration in the breast which later be- 
came infected with the pus-forming bacteria; and, in view 
of the fact that the girl lived twenty-nine days after taking 
the poison and that the restorative processes in the kidneys 
were far advanced, she in all probability would have recov- 
ered except for this secondary infection. 

The probative force of this latter testimony is obvious: 
The secondary staphylococci infection which manifested 
itself in the lung abscess and the kidneys was advanced as 
the direct result of a bite which Stephenson in the course 
of his assault had inflicted on the girl's breast. On this evi- 
dence the jury could find Stephenson guilty of murder 
even if it found that the assault had not put the girl in a 
state of irresponsible mental distraction in which she took 
the poison. 



THE D. C. STEPHENSON CASE IO5 

Defense Counsel Inman cross-examined all of the State's 
medical witnesses. He had made a thorough study of the 
properties of bichloride of mercury, the effects of the 
poison on the human body and the recognized medical 
treatment for its elimination. His cross-examinations took 
two directions: (1) to discredit the witnesses by showing 
their lack of knowledge of the subject matter, and (2) to 
elicit additional facts which would corroborate and sup- 
port the contentions and theories to be advanced later by 
his own medical experts. The State's witnesses, however, 
were all men of outstanding professional attainments— un- 
doubtedly the best to be found in Indiana. They knew 
their subject, and they were not to be confused. The cross- 
examinations— skillful and persistent as they were— failed 
utterly to discredit or weaken the direct examinations. 

The cross-examiner's efforts to develop new matter in 
aid of his expected defense were more successful. By 
adroitly worded direct questions, which compelled cate- 
gorical answers, he brought out that bichloride of mercury 
is one of the quickest-acting and most deadly of poisons. 
When taken by mouth it burns and inflames the tongue 
and sets up a severe irritation of the mucous membranes 
of the lips, mouth, larynx, esophagus and alimentary canal. 
Its particular effect on the stomach would vary depending 
on the presence or absence of recently eaten food. If taken 
on an empty stomach, or by a patient whose only food over 
a long previous period had been a cup of coffee, the absorp- 
tion of the poison would be more rapid than if taken on a 
full stomach and the effect on the stomach tissues, the en- 
try of the poison into the blood stream and the attack on 
the other organs of the body more devastating. 

Inman's cross-examinations compelled further admis- 
sions: If vomiting occurred immediately after taking the 
poison, the subsequent effects would depend on how much 
of the poison remained in the system. Milk was a proper 
agent to induce vomiting. When bichloride of mercury is 



106 GUILTY OR NOT GUILTY? 

taken into the stomach, part of it is immediately absorbed 
and can be found in the blood stream. If a lethal dose so 
take$ is not entirely eliminated through vomiting within 
six hours, the unexpelled poison would be absorbed into the 
blood stream. When the poison gets into the blood stream 
it exercises an affinity for certain tissues, particularly those 
of the kidneys and lower bowel, and blood will be found 
in the intestines and in the stool. 

Bichloride of mercury, the State's experts conceded, 
could be taken into the system through the skin as well as 
by mouth and cause death. A bichloride douche, suffi- 
ciently concentrated, would inflame the mucous mem- 
branes of the vagina; and if brought in contact with the 
skin, would burn it. It was also developed that an abscess 
of the lung may follow pneumonia and that an attack of 
influenza, if severe enough to cause death, would cause 
some degeneration of the kidneys, heart and lungs; that 
various bacteria, and particularly staphylococci, are com- 
monly found in all of the human organs. 

The suggestion that the poison might have been injected 
into the system other than by mouth was greatly weakened 
by an answer of the State's chief medical expert, given on 
cross-examination, that if it had been so taken, it would 
not have produced immediate and repeated vomiting of 
blood. The cross-examination was further weakened by a 
sharply conducted redirect examination which brought out 
clearly that the wounds and bruises on the girl's body were 
such that they could not have been produced by the exter- 
nal application of a bichloride-of-mercury solution, and 
that the post-mortem examination disclosed no pneumo- 
cocci bacteria in either of the lungs. 

Its medical testimony concluded, the State rested its case, 
and the submission of evidence on behalf of Stephenson 
and his codefendants commenced. 

The lead-off witness for the defense was a resident phy- 
sician of Indianapolis who professed to have had an exten- 



THE D. C. STEPHENSON CASE IO7 

sive experience in cases of mercurial poisoning. His direct 
examination was extended and established a pattern which 
was largely followed in the examinations of the six other 
physicians who were called to testify in behalf of Stephen- 
son and his codefendants. He agreed that bichloride of 
mercury was a deadly poison and that three or more grains 
taken internally could be a fatal dose. He supported the 
contentions suggested in the cross-examinations of the 
State's experts. 

He testified further that if after taking bichloride of mer- 
cury the patient vomited and the expelled vomit struck the 
breast, abdomen and other parts of the human body and re- 
mained there for some time, it would have a very marked 
tendency to inflame and corrode those surfaces. Mercurial 
poisoning, he testified, is readily absorbed from any of the 
bodily surfaces, and it is quite common to find that women 
have been poisoned by using concentrated solutions of bi- 
chloride of mercury as a vaginal douche; that a seven-and- 
one-half-grain tablet, dissolved in a small quantity of water, 
would produce a solution which, if applied to a mucous 
surface, would have a very pronounced burning effect and 
by sloughing would create a general condition as bad as if 
the poison had been taken by mouth. He said he had 
known of cases where the frequent use of such concentra- 
tions of bichloride of mercury in vaginal douches had re- 
sulted in death. 

The girl's father had testified that a few months before 
her death she had had a slight attack of flu from which she 
had apparently fully recovered. Seizing upon this, the doc- 
tor, under Inman's examination, testified that all sorts of 
complications could follow an attack of flu— affections of 
the bronchial tubes, tuberculosis, pyemia with pus in the 
lungs, nephritis and heart disease. He added that the sta- 
phylococci bacteria are the most common of the germs; 
they are everywhere— in the mouth, the throat and die ali- 
mentary canal, and they might get into the system as the 
result of a blood transfusion or a catheterization; that if 



108 GUILTY OR NOT GUILTY? 

a person had an abscess on the lung infected with staphy- 
lococci, there was no way of determining where the infec- 
tion came from. It could have resulted, he said, from a pre- 
vious flu or from any one of a number of other causes. 

Two long hypothetical questions were put to the witness. 
The first omitted all reference to the assault. It assumed 
the previous attack of flu but made no reference to the evi- 
dence that it was slight and that there had been a complete 
recovery. It assumed and stressed that bichloride-of-mer- 
cury tablets had been dissolved in water and taken on an 
empty stomach and that the girl told no one of her action 
for six hours; also, that she had then been given milk to 
drink and had vomited. The question in further assump- 
tions fairly stated the evidence as to the 175-mile ride in the 
automobile from Hammond to Indianapolis, the confine- 
ment in the garage until Tuesday morning and the return 
of the girl to her home, the attending doctor's discovery of 
the symptoms of bichloride-of-mercury poisoning and sub- 
sequent treatment. The evidence as to the condition of the 
girl when she was brought home and the nature and extent 
of the wounds and bruises on her body was minimized by 
the assumption that she had "some discoloration and small 
abrasions on various parts of her body" and that "one such 
abrasion on the chest had suppurated but healed/ ' The 
question further assumed and emphasized that while the 
autopsy revealed an abscess in one of the lungs there was 
none in the kidneys and that bichloride of mercury had 
been found in the liver and kidneys. The recitals con- 
cluded with an inquiry for the doctor's opinion as to the 
cause of death. He answered, "Bichloride of mercury." 

The second hypothetical question added to the first an 
assumption of the examiner's toned-down version of the 
assault. The witness was asked if the facts additionally as- 
sumed would change his previously expressed opinion. He 
answered they would not. The witness also gave it as his 
opinion that, after a six-hour delay in instituting treat- 



THE D. C. STEPHENSON CASE 109 

merit to eliminate the poison, no subsequent medical treat- 
ment could have saved the girl's life. 

Judge Cox's handling of the cross-examinations of the 
defense's medical experts was, from the standpoint of advo- 
cacy, the most brilliant feature of the trial. He brought 
out first that the witness knew Stephenson and had "pre- 
scribed" for him on three or four occasions. This was fol- 
lowed by inquiries into the doctor's experience in bichlo- 
ride-of-mercury poisoning. Of his twenty patients who took 
the poison orally, all but two or three had died. The wit- 
ness had never seen or treated Madge Oberholtzer and had 
not seen the autopsy findings. All he knew of the case was 
what was stated in the hypothetical questions, and his opin- 
ions were based solely on the assumptions contained in 
those questions. He was then tested as to his knowledge of 
the authoritative literature on toxicology. He professed to 
have read Blair, Solomon, Woods, Clark, Landers and Milt. 
He was examined particularly regarding his knowledge of 
Blair. He admitted that his readings in the field of toxi- 
cology had begun about six weeks before the trial. 

After the defense had called three other medical experts, 
whose testimony followed closely the above line, Judge Cox 
asked that the defense's first expert be recalled for further 
cross-examination. The witness restated the authorities on 
toxicology with which he was acquainted and on which he 
relied, again mentioning particularly Blair's book. Upon 
further specific questioning he was forced to admit that the 
book with which he professed such intimate acquaintance 
was by Blythe and not Blair and that he didn't own a copy 
but had borrowed one from a doctor friend of his within 
the preceding week or ten days. On his further cross-ex- 
amination it developed that Milt's work on toxicology 
about which he had previously testified was a work on 
veterinary practice. This was followed by short, rapid-fire 
questions which elicited the facts that the witness had 
taught toxicology in a veterinary college and had associated 



HO GUILTY OR NOT GUILTY? 

himself with a veterinarian in a patent-medicine company 
which advertised and sold veterinary remedies. The cross- 
examination was concluded with additional questions con- 
cerning the doctor's relations with Stephenson. After re- 
peated hedgings the witness was compelled to admit that he 
had treated Stephenson for alcoholism, with the unmistak- 
able suggestion that the condition had bordered upon de- 
lirium tremens. 

The other defense witnesses, called as medical experts, 
underwent vigorous and searching cross-examinations. 
None was of the caliber of the State's expert witnesses and, 
under Judge Cox's skillful questioning, all were made to 
admit many of the contentions of the State. The results of 
these cross-examinations, coupled with the blow which had 
completely shattered the testimony of the first witness, left 
the State's medical case practically intact. 

One obvious purpose of the defense was to convince the 
jurors— or at least raise in their minds a reasonable doubt- 
that the previous relationship between Stephenson and the 
dead girl had been much more intimate than was to be in- 
ferred from her dying declaration, that her trip with him 
to Hammond had been voluntary, and that there had been 
no occasion to assault or rape her. It was to this end that 
there had been brought into the medical testimony the 
suggestion that bichloride of mercury could be introduced 
into the system otherwise than by drinking it. In an effort to 
show that Miss Oberholtzer was not the innocent victim of 
Stephenson's lust, the defense called an even dozen wit- 
nesses. Some of these testified that they had frequently seen 
Stephenson and Madge Oberholtzer together in Stephen- 
son's office and elsewhere. Others swore they had seen Ste- 
phenson and the girl drinking gin together; still others that 
they had heard her address Stephenson familiarly as 
"Stevie" and "dear." These witnesses were all intimate 
friends of Stephenson. A number of them had been asso- 
ciated with him in the activities of the Ku Klux Klan. 



THE D. C. STEPHENSON CASE 111 

Railway employees at the Monon depot testified to the 
location of entrances and exits, waiting rooms, passage- 
ways, gates through which passengers passed to the tracks 
and waiting trains and the procedure for identifying and 
collecting tickets. A plat showing the station layout with 
relevant measurements was identified and received in evi- 
dence. The inferences to be drawn from this testimony was 
that the girl, had she been under the restraint she claimed, 
could have called for help and been freed from her alleged 
captors. 

Two newspaper reporters testified they had seen the 
naked body of Madge Oberholtzer during the post-mortem 
examination and there were no marks on it other than a 
"faint bruise . . . about the size of a penny" under the left 
collarbone. 

This was all the testimony offered in Stephenson's be- 
half. 

An attempt was made to establish an alibi for Klinck. 
Four deputy sheriffs, associates of Klinck, 8 testified to hav- 
ing seen him during practically all of March 16 and the 
morning of the seventeenth. One of them testified to hav- 
ing been with him on the sixteenth when he made an ar- 
rest and on the seventeenth when the persons arrested were 
brought before a justice of the peace. Two of the others 
testified that on the morning of the seventeenth Klinck de- 
livered a batch of prisoners to the Indiana State Peniten- 
tiary Farm by automobile, and papers showing the receipt 
of certain named persons were offered as corroboration. 

Neither Stephenson, Klinck, Gentry nor Stephenson's 
chauffeur, Shorty, took the stand. Shorty, whose real name 
was DeFriese, had fled the jurisdiction shortly after the in- 
dictment. 

In rebuttal the State called two officials of the state peni- 
tentiary and four of the prisoners named in the receipts. 



8 Both Klinck and Gentry were on the Marion County payroll as deputy 
sheriffs. 



112 GUILTY OR NOT GUILTY? 

All testified that the prisoners were received at the state 
penitentiary farm on Tuesday morning March 17 but that 
Klinck was not in the automobile which delivered them 
there. 

The secretary of the committee on arrangements for the 
governor's ball on January 12, 1925, testified that he was 
well acquainted with Miss Oberholtzer and on that eve- 
ning introduced her to Stephenson. This testimony, if it 
was believed, completely destroyed the testimony of the 
witnesses for the defense who had sworn they had seen 
Madge Oberholtzer and Stephenson together before Janu- 
ary 1925. 

The State called two of its medical experts to refute some 
of the suggestions made by the defense doctors and again 
rested. Some unimportant surrebuttal followed and the 
evidence was closed. 

The Court limited the summations to eight hours for 
each side. 

Remy, prosecutor for Marion County, opened for the 
State. His argument was a brief but telling r£sum£ of the 
State's evidence. He denounced the asserted defenses as 
subterfuges and perjuries. "Madge Oberholtzer is dead," 
declared the prosecutor. "She would be alive today were it 
not for the unlawful act of these three men. They have de- 
stroyed her body, they tried to destroy her soul, and in the 
last few days they have tried to dishonor her character." In 
his peroration he cried, waving the dying declaration be- 
fore the jury, "Madge Oberholtzer' s story still stands un- 
tarnished. Her dying declaration is before you again with 
corroborating and supporting evidence from witness after 
witness, credible witnesses. It stands not only with the 
solemnity of the declaration of a person who faces certain 
death, it still stands, after all the evidence is in, most of it 
not even denied." 

Holmes, Christian and Inman argued for the defense. 
The principal argument was made by Inman. Experienced 



THE D. C. STEPHENSON CASE llg 

and shrewd, Inman realized the atmosphere of prejudice in 
which the trial was being conducted and tried his best to 
get the jury to rise above it. 

"Gentlemen of the jury," Inman began, "in all my con- 
nection with this remarkable case I have been conscious of 
the weight of responsibility which rested upon us all. It 
has not been a responsibility of law or of fact, but it has 
been a responsibility which an implacable element of pub- 
lic sentiment, without knowing or being concerned with 
the facts, has cast upon us. I have never for a single instant 
feared for the safety of our clients under the law. I have 
not feared for their safety under the facts. That these men 
should have been indicted for murder is a shame to the 
jurisprudence of Indiana, and to the law of this state, and 
I sincerely believe that such an indictment would not have 
been returned except that the state's attorney and those 
privately employed to reap the vengeance of hate, deter- 
mined to respond to the wishes of the unreasoning element 
of hostility which aims to bring Stephenson to destruc- 
tion." 

Continuing, Inman put his heavy emphasis on the single 
proposition that offered a hope for acquittal. "The sole 
question presented here," said Inman, "is: Can suicide be 
murder? Can suicide be homicide? . . . This so-called dying 
declaration— this lawyer-made declaration designed as poi- 
sonous propaganda to be used in an effort to gain money— 
if it declares anything it is a dying declaration of suicide 
and not homicide. She, by her own concealment of taking 
the poison for six hours, made medical aid of no avail. She, 
by her own willful act of conduct, made it impossible for 
these men to save her life. The dying declaration was made 
by the girl for the justification of herself, to free herself 
from fault and place the blame on others, to put her right 
with her family and friends." Inman's plea was powerful— 
the strongest that could have been made under the law and 
the state of evidence. 

Judge Cox and Ralph Kane closed for the State. Judge 



114 GUILTY OR NOT GUILTY? 

Cox's arraignment of the defense was bitter. He declared 
that all of the witnesses called by the defense were per- 
jurers— "the slime of the serpent of perjury is over all of 
them." Directing his argument to a reply to Inman, he 
demanded, "Are you going to permit this unparalleled, this 
unequaled painter of words, this man of stately bearing and 
melodious voice, are you going to allow him to take the 
brush of scandal and write the scarlet letter on Madge 
Oberholtzer's tomb?" He declared that at his advanced age 
he had been reluctant to enter upon such a long trial and 
had done so only because he felt that the brutal murder of 
an innocent girl should be avenged by the law. In a voice 
choked with emotion, he concluded: "In the name of the 
law, in the name of virtuous womanhood, in the name of 
justice, I call upon you to write your verdict in a way that 
will put a stop to tragedies like this one." 

The final and most convincing argument for the pros- 
ecution was made by Ralph Kane. It was aimed down to 
the level of the jury and presented in language they could 
understand. 

"The theory of the law," Kane began, "maintained by 
the State in this case has been the law of England for more 
than 500 years, and it has been the law of this country ever 
since the English common law was brought to this coun- 
try. I don't care anything about germs. When these de- 
fendants unlawfully abducted Madge Oberholtzer, at- 
tacked her and dragged her to Hammond, they made them- 
selves criminals, and by that very act drove that poor girl, 
honored and respected in her community, loved by all, 
drove her into a position where she had lost all, where she 
was bereft of all she cherished, and forced her to take the 
poison of death. By those acts D. C. Stephenson and his 
cohorts became murderers just the same as if they had 
plunged a dagger into her throbbing heart. . . . What is 
the story, gentlemen? Why, it is the most scurrilous story 
in the history of the ages Don't let the defense befuddle 



THE D. C. STEPHENSON CASE 115 

you about this story. Madge Oberholtzer told you a co- 
herent story. She was drugged, of course. She didn't know 
the exact route she took through the Union Station. But 
the Pullman conductor identified Gentry and Stephenson. 
So did the porter. They registered at the hotel. We didn't 
have to call a handwriting expert, as Mr. Inman suggested, 
to identify the writer of 'W. B. Morgan and wife/ We have 
the man who held the pen. There he isl" cried Kane, 
pointing his finger at Stephenson. 

He took up the dying declaration. "These gentlemen," 
he said quietly, "don't like Asa Smith. Asa Smith was born 
in Hamilton County. His mother sleeps in the churchyard 
in Tomlinson neighborhood. He is one of the nation's 
heroes. He came back from the battle of the Argonne, ter- 
ribly wounded. He's no Stephenson. He's no Klinck. He's 
no Gentry." Smith deserved credit, said Kane, for his fore- 
sight and care in taking Madge Oberholtzer's dying declar- 
ation. 

"When the dread news came from the sick room," Kane 
went on, "that the poor girl could not recover, and that 
any evidence would have to be as a dying declaration, Smith 
wrote it down, God bless himl He brought the evidence 
into this courtroom which clinches this case and will send 
these men to the place where they belong." 

One after another, Kane raised barriers the defense 
could never hope to hurdle. "There are some things that 
you and I know," said Kane. "If Madge Oberholtzer had 
gone willingly with Stephenson that night she would have 
done it by prearrangement, and she would have worn a hat. 
If I understand anything at all about women, when they 
start on a 250-mile Pullman ride they take along their 
clothes, their hats, their cosmetics, their lingerie and other 
things. 

"Another thing," continued Kane, "do you think she 
would ever have had big, pug-nosed Gentry in the same 
compartment if she had been conscious of what was hap- 



1 16 GUILTY OR NOT GUILTY? 

pening? If she was a willing companion, why bring her 
home looking like she had been in a fight?' ' Here he seized 
a copy of the testimony of the girl's nurse and read: "Her 
left cheek was bruised; the lower half of her abdomen, the 
inside of her thighs and her legs down to her ankles— all 
were bruised." And then, with withering sarcasm, Kane 
said, "A willing victim, eh? Oh, gentlemen, she wasn't 
hurt. Oh, no. She just went along with Stephenson be- 
cause she loved him." Glaring now at Inman, he thun- 
dered, "And that able, touted, newspaper-boomed criminal 
attorney Inman— if he had half as much sense as any one of 
you jurymen he wouldn't have the nerve to make such a 
flimsy argument." 

He concluded with a slashing reply to Inman's attack 
upon the special prosecutors (Cox and himself), his charge 
that "blood money jingled in their pockets." Kane said, 
"Our reward is in the consciousness of having performed 
a duty. Can you honestly say that, Mr. Inman?" And then 
to the jury he solemnly added, "These fellows are guilty of 
murder, staphylococci or no staphylococci. I want you to 
demonstrate to Stephenson, to Gentry, to Klinck, and to 
Inman and Christian, if it can be done, that in Indiana the 
law is supreme. Put them away so others can be safe." 

The ringing tones of Kane's impassioned plea had 
scarcely died away when Judge Sparks commenced the read- 
ing of his charge. He gave the jury fifty-seven separate 
written instructions. Eighteen of these were tendered by 
the State; twenty-seven were prepared by the Court. The 
defense tendered 161 separate instructions of which the 
Court gave twelve. Taken as a whole, the instructions- 
according to the later decision of the Supreme Court of 
Indiana— declared the law of the case accurately and fully. 

Specifically, the Court charged the jury that under Indi- 
ana law it might, from the evidence, return any one of 
three verdicts: i.e., murder in the first degree, for which the 



THE D. C. STEPHENSON CASE 117 

punishment could be death or life imprisonment; murder 
in the second degree, for which the specified punishment 
was life imprisonment; or manslaughter, for which the 
punishment could be imprisonment for not less than two 
nor more than twenty-one years. 

Murder in the first degree was defined as the killing of a 
human being purposely and with premeditated malice, or 
in the perpetration of or an attempt to perpetrate a rape, 
arson, robbery or burglary; murder in the second degree as 
the killing of a human being purposely and maliciously 
but without premeditation; and manslaughter as the killing 
of a human being without malice, express or implied, or 
unlawfully upon a sudden heat, or involuntarily in the 
commission of some unlawful act. 

The case went to the jury shortly before noon on Novem- 
ber 14. The jury was out slightly less than six hours. By its 
verdict it found Stephenson guilty of murder in the second 
degree and that he should be imprisoned in the Indiana 
State Prison for and during the term of his natural life. 
Gentry and Klinck were found not guilty. 

Judgment was entered on the verdict on November 16, 
and on November 21, 1925, the gates of the Michigan City 
penitentiary closed behind David Curtis Stephenson, erst- 
while Grand Dragon of the Ku Klux Klan and, at the time 
of his indictment, the most powerful political figure in the 
State of Indiana. 

Aftermath 

Stephenson appealed his case to the Supreme Court of 
Indiana. Every adverse ruling of the Courts of Marion and 
Hamilton counties was assigned as error. It was argued 
with earnestness and great ability that Stephenson was 
prejudiced by remarks made by the trial Court in its rulings 
on the evidence; that incompetent evidence had been ad- 
mitted; that the Court's instructions were erroneous and 



1 18 GUILTY OR NOT GUILTY? 

insufficient; and that the verdict of the jury was not sup- 
ported by the evidence. A majority of the court (three out 
of five) ruled against Stephenson on every, contention. 9 
One of the others, while agreeing that the verdict was fully 
warranted by the evidence, considered there was prejudicial 
and reversible error in some of the lower Court's instruc- 
tions. The second dissenter held that the admissible evi- 
dence in the case was insufficient to justify a verdict of 
second-degree murder. 

This was, however, only the beginning of Stephenson's 
fight to set ^side the judgment of the lower Court, to obtain 
a new trial or to secure a pardon or release on parole. In 
all, he is said to have instituted more than forty separate 
proceedings directed to these ends. It is perhaps significant 
that, speaking generally, a completely new set of lawyers 
appeared on each successive occasion. The allegations made 
in one of these proceedings— an original petition in the 
Supreme Court of Indiana for the ancient common-law 
writ of coram nobis to compel a setting aside of his con- 
viction 10 — is fairly typical of Stephenson's oft-repeated con- 
tentions. 

He claimed that he was "framed" by Hiram Evans, Im- 
perial Wizard, and other high officers of the Ku Klux Klan 
because of his opposition to the official Klan following his 
"resignation." These powerful and unscrupulous conspir- 
ators had used Madge Oberholtzer as a lure to ruin him. 
The attorney Asa J. Smith had been paid a huge bribe to 
compose the alleged dying declaration and obtain her sig- 
nature to it. Stephenson, his attorneys said, did not take 
the stand in his own behalf for fear of being shot 11 ; that 
had he taken the stand, he would have shown that someone 
else (one of the "conspirators" against him) committed the 
murder for which he was convicted. 

Stephenson's final complaint was that because of fear and 



9 Stephenson v. State, 205 Ind. 141; 179 N. E. 633. 

10 Stephenson v. State, 186 N. E. 293. 

11 Outside of Stephenson's statement there is not the slightest testimony to 
support this claim. 



THE D. C. STEPHENSON CASE 119 

threats (undescribed) he had signed his motion in the 
lower court for a new trial without reading it and before 
he had had an opportunity to acquaint his attorneys with 
the facts which he desired to have set up in that motion. 
The supreme court held it had no jurisdiction of the peti- 
tion but remarked that Stephenson's allegedly insufficient 
motion for a new trial had contained 294 assigned grounds, 
"all of which were asserted vigorously and fearlessly by re- 
sourceful and intelligent counsel. ,, 

In May of 1927 Stephenson presented a petition to Gov- 
ernor Jackson for parole. On this he had built high hopes. 
He claimed, and with some truth, that more than any one 
man, he had been responsible for Jackson's election. The 
governor, before Stephenson's conviction, had recognized 
his importance in the distribution of patronage and other 
political perquisites. But a new day had dawned. The 
Klan had ceased to exist as a political factor. To a calcu- 
lating politician, which Jackson was, a Klan connection was 
no longer an asset but a taint. So, forgetting past associa- 
tions, the governor lined up with "the outraged citizenry" 
and promptly denied Stephenson's application. 

The application for parole was repeatedly renewed. In 
connection with one such application, a well-known psy- 
chiatrist made an examination of Stephenson. His diagnosis 
and report to the parole board (September 10, 1942) was 
that Stephenson was a paranoiac and should be committed 
to a state institution for the insane. 

In March 1950 Stephenson's persistence was rewarded. 
On the recommendation of the board of paroles he was re- 
leased by Governor Schricker and paroled to his daughter, 
a resident of Tulsa, Oklahoma. He was later given permis- 
sion by the board to reside in Carbondale, Illinois. On 
August 30 he disappeared. Newspaper accounts suggested 
that he might have met with foul play, but on November 15 
he was discovered at work in a small printing shop in a 
Minneapolis suburb. 

Stephenson had violated his parole by failing to report in 



120 GUILTY OR NOT GUILTY? 

September, October and November. He was immediately 
arrested and the Indiana authorities were notified. At their 
request the governor of Minnesota signed a warrant for his 
extradition, but his immediate return to Indiana was 
thwarted by the issuance of a writ of habeas corpus. A rul- 
ing adverse to him in the lower Court was followed by an 
appeal to the Supreme Court of Minnesota. Here Stephen- 
son again lost, and in December 1951 he was returned to 
the Indiana State Prison. 

In passing, it may be remarked that the troubles of Klinck 
and Gentry did not end with their acquittal on the charge 
of participation in the murder of Madge Oberholtzer. 
Stephenson's house in Irvington was later burned. Investi- 
gation disclosed that the fire was probably of incendiary 
origin. Klinck, Gentry and one other were suspected and 
indicted for conspiracy to commit arson. The case, how- 
ever, was later dismissed for want of evidence. 

Gentry, after the collapse of his clay-footed idol and his 
own release from the toils of Indiana law, sought new and 
greener fields. He moved to Wisconsin, where his genius for 
getting into trouble continued to flower. In 1931 he was 
accused of stabbing a Fort Atkinson tavern keeper in a 
drunken brawl. He seems to have escaped trial on this 
charge, but Nemesis caught up with him three years later 
when he got on the wrong side of a love triangle and was 
shot to death by a jealous rival. His murderer— who 
pleaded guilty and was given a life sentence— enlarged the 
court record with an attempted justification of his act, 
which carried with it an estimate of Gentry from which 
there can be but little dissent: "I am not in the least sorry 
for the act I committed, as I feel I did a good deed for society 
when I killed Earl Gentry." 

When Stephenson realized that he had been abandoned 
by Governor Jackson and when his other fair-weather po- 
litical associates fell away, his disappointment and resent- 
ment may be imagined. He sulked for a while and then 



THE D. C. STEPHENSON CASE 121 

struck back. To one of the Indiana newspapers, which he 
considered had been fairer to him than the general run of 
the press, he wrote a letter telling of the existence of "two 
black boxes" in which, through the previous years, he had 
kept records, receipts and other papers which he said would 
reveal wholesale corruption in high places. Grand-jury 
investigations followed. Stephenson was released from 
prison under custody so he could procure the boxes and 
disclose their contents. 

From the papers the boxes contained and leads the pa- 
pers furnished, indictments were returned against the 
mayor of Indianapolis for violation of the State's corrupt- 
practices act and against six of the city's aldermen for ac- 
cepting bribes. Governor Jackson and "Captain" George 
V. Coffin, Republican political boss, were indicted on 
Stephenson's charge that they had offered Jackson's prede- 
cessor in office, Governor McCray, a bribe of $10,000 to 
appoint a henchman of the Klan group as prosecuting at- 
torney of Marion County. The mayor was convicted, sen- 
tenced to thirty days in jail and forced to resign. The alder- 
men paid small fines and resigned. Governor Jackson and 
Coffin evaded trial by a plea of the statute of limitations. 

While the result of these disclosures and prosecutions 
suggests more smoke than fire, the larger consequence 
should not be lost sight of. By them the Klan was com- 
pletely stripped of its pretense to superior political virtue 
and revealed for what it was: an evil thing, dominated for 
the most part by selfish, conscienceless hypocrites who 
preached a gospel of racial and religious hate to delude and 
organize a multitude in whose name and by whose help 
they might gain and wield supreme political power. Steph- 
enson's conviction and its aftermath killed the Ku Klux 
Klan. 

Was Madge Oberholtzer's story true? 

The question is put because the persistent cry of Steph- 
enson through the twenty-five years of his incarceration 



122 GUILTY OR NOT GUILTY?' 

that he was "framed" by the Southern branch of the Ku 
Klux Klan and his political enemies seems to have lodged 
doubt in many uninformed minds. Stephenson, a mas- 
ter psychologist, evidently believed in the Hitlerian theory 
that if you harp long enough on the same theme— true or 
false— the mob will ultimately be brought to believe it. 

Of the correct answer to the question, there can be no 
doubt. Miss Oberholtzer's story, told to the family phy- 
sician immediately after her return and told as her dying 
declaration when she knew she was soon to face her Maker, 
was accepted by twelve impartial jurors. Their verdict was 
approved by the trial judge— a man of recognized integrity, 
legal ability and fairness— and his judgment was affirmed by 
the Supreme Court of Indiana. While there were two dis- 
senting opinions, none of the supreme-court judges ques- 
tioned the truth of the girl's declaration. 

Her story was fully corroborated— by railway employees 
at Indianapolis, by hotel employees at Hammond, and by 
the wounds and bruises on her body for which her story 
of the assault offered the only explanation. 

Finally, the most conclusive circumstance in support of 
her story is the fact that neither Stephenson, Gentry, Klinck 
nor Shorty, the chauffeur, took the witness stand to deny 
any part of it. 

Was Stephenson proved guilty of murder? 

This question is not so easily disposed of. Out of the 
maze of legal charges and denials the jury found that 
Stephenson drugged the girl and then forced her against 
her will to accompany him to the train and into the draw- 
ing room; that he not only criminally assaulted her but 
subjected her to almost unbelievably cruel and inhuman 
treatment; that, as a direct consequence of his criminal 
acts, she became distracted to the point that she took the 
poison which ended her life. 

The instructions of the Court specifically authorized the 
jury to return a verdict of guilty of murder on such find- 
ings. 



THE D. C. STEPHENSON CASE 12$ 

The question of whether the girl's suicide was the direct 
(proximate) result of Stephenson's acts was argued vigor- 
ously but unsuccessfully by Stephenson's able counsel as 
one of their major contentions in support of his motion for 
a new trial. It was again argued by another set of able 
lawyers appearing in Stephenson's behalf in the Supreme 
Court of Indiana. Four out of the five judges in that court 
held that the evidence justified the verdict of murder 
found by the jury. 

Of course it can be argued, as Stephenson and his law- 
yers have argued it in more than a score of legal proceed- 
ings, that after the assault had taken place the girl was able 
to leave the train at Hammond and walk a block to the 
hotel, to drink a cup of coffee, to worry that she had no 
hat, to accompany Stephenson's chauffeur to a millinery 
shop to buy one, to get in and out of the automobile and 
to return to the hotel. It is further arguable that from the 
time she left the train she was a free agent and could at any 
time have summoned help or escaped from Stephenson and 
his agents; that she took the poison without his knowledge 
and outside of his presence; and that, in summary, her ac- 
tions subsequent to the assault and before the taking of the 
poison showed a complete absence of fear of further bodily 
harm, irrationality or hysteria, and, therefore, the essential 
"causal connection" between the assault and the suicide 
was lacking. 

Nowhere was this contention more vigorously asserted 
than in the appeal to the Supreme Court of Indiana. That 
Court, in its majority opinion, answered with equal vigor, 
supported by unimpeachable legal authority, that "When 
suicide follows a wound inflicted by a defendant, his act is 
homicidal, if deceased was rendered irresponsible by the 
wound and as the natural result of it." 

"We should think," said the Court, "the same rule would 
apply if a defendant engaged in the commission of a felony 
such as rape or attempted rape . . . inflicts upon his victim 
both physical and mental injuries, the natural and probable 



124 GUILTY OR NOT GUILTY? 

result of which would render the deceased mentally irre- 
sponsible and suicide followed." The learned judges 
added that they saw no difference in law if, instead of the 
girl's actions as shown by the evidence, she had secured 
possession of the revolver and shot herself or had thrown 
herself out of the window of the car. 

"The same forces," said the Court, "the same impulses, 
that would impel her to shoot herself during the actual 
attack or throw herself out of the car window after the at- 
tack had ceased, were pressing and overwhelming her at 
the time she swallowed the poison. . . . To say that there is 
no causal connection between the acts of appellant and the 
death of Madge Oberholtzer, and that the treatment ac- 
corded her by appellant had no causal connection with the 
death of Madge Oberholtzer would be a travesty on 
justice." 

The Court concluded, "The evidence was sufficient and 
justified the jury in finding that appellant by his acts and 
conduct rendered the deceased distracted and mentally ir- 
responsible, and that such was the natural and probable 
consequence of such unlawful and criminal treatment, and 
that the appellant was guilty of murder in the second de- 
gree as charged in the first count of the indictment." 

The Court's opinion, which was widely publicized, met 
general but not universal approval. The dissent came not 
only from Stephenson's few remaining friends but also from 
well-meaning persons who, while they could recognize 
murder when the act of killing and death were in immedi- 
ate relation, could not recognize it where there had been 
an intervening act of suicide. This is probably the reason 
why today you can find in Indianapolis people who fol- 
lowed the evidence in the Stephenson case and are ready to 
argue that, while undoubtedly Stephenson was guilty of a 
bestial criminal assault and deserved the extreme penalty 
for that crime, he was not guilty of murder. 



Ill 



The Trial of 

SAMUEL INSULL 

and 

OTHERS 

for the Use of the 

MAILS TO DEFRAUD 

0934) 



3 
The Samuel Insull Case 



The significance of the Insull case, as one of the out- 
standing causes c£l£bres of the last half century, lies not so 
much in its particular facts as in its revelation of the com- 
mercial practices of the time which sanctioned or tolerated 
most, if not all, of the acts which the government charged 
against the defendants as crimes. Even more significant is 
the fact that long before the echoes of the resounding crash 
of the Insull enterprises had died away there was legislation 
on the statute books regulating the issuance of securities, 
outlawing holding companies, governing stock exchanges 
and, in general, giving assurance to the shorn lambs and the 
lambs yet unborn that the same instruments would not be 
employed to fleece them again. It is not an exaggeration to 
say that the beneficent Federal Securities and Exchange 
Act was reared on the ashes of the Insull empire. 

October of 1929 marked the beginning of the end of 
an era in American life— an era in which the pur- 
suit of false concepts had built the illusion that the 
United States of America was a nation set apart to enjoy 
perpetual prosperity and a constantly improving standard 
of well-being— ' 'a car in every garage; a chicken in every 
pot." Business, undisciplined and unregulated, would go 
on to new frontiers and undreamed-of destinies, carrying 
with it to affluence all who possessed the wit or the luck to 
buy shares in the right enterprises. 

127 



128 GUILTY OR NOT GUILTY? 

Samuel Insull was for thousands the sun-crowned 
prophet of this incredible age. For Chicago he was, to bor- 
row a phrase, "Aladdin reincarnated." 1 This was the man 
who in forty short years had taken a conglomeration of 
small, inefficient electricity-generating plants and, by ab- 
sorbing all of his competitors, developed the $200,000,000 
Commonwealth Edison Company. Here was the man who 
had taught the world the secret of more and cheaper elec- 
tric current— 100,000-kilowatt turbines instead of 500-kilo- 
watt generating plants; transmission lines that would carry 
light and power in terms of miles rather than feet. Here 
was the man who had taken over and rehabilitated the all- 
but-moribund Peoples Gas Light & Coke Company. Here 
was the man who supplied the power which ran the street- 
cars; who controlled the Chicago elevated lines and the 
electric interurbans entering the city from the north, south 
and west. Here was the man who had just completed a 
$20,000,000 setting for the Chicago Civic Opera. Here was 
the colossus whose restless energy and indomitable will 
brooked no bounds; whose ever-expanding Public Service 
Company of Northern Illinois, Midland United Company 
and Middle West Utilities Company already operated in 
thirty-nine of the forty-eight states of the Union and bade 
fair to monopolize the electric-power industry in America. 

In the winter of 1928 Insull had organized the first of his 
two giant investment companies— Insull Utility Invest- 
ments, Inc. Its stock in eight months went from $30.00 to 
$147.00 a share. In September of 1929 the second invest- 
ment company— Corporation Securities Company of Chi- 
cago—was launched. The stocks of Corporation Securities 
Company had been taken at their offering prices and over- 
subscribed. Within a year there were over $100,000,000 of 
its securities in the hands of a trustful public. Even No- 
vember's "Black Friday" and the wiping out of billions of 



1 Lloyd Lewis and Henry Justin Smith, Chicago— The History of Its Rep- 
utation (New York: Harcourt, Brace & Co., 1929) . 



THE SAMUEL INSULL CASE 12<J 

paper values on the stock exchanges had not weakened the 
potent magic of the name "Insull." 

The story of Insull's struggle to beat the depression was. 
told at his trial. It was valiant but it failed. The end came 
in 1932. Corporation Securities Company, Insull Utility 
Investments, Middle West Utilities Company and Midland 
United Company went into the hands of receivers. Bank- 
ruptcy petitions followed. Only the three great operating 
companies— Commonwealth Edison Company, Peoples Gas 
Light & Coke Company and Public Service Company of 
Northern Illinois— escaped. Insull continued as their head 
and as one of the receivers of Middle West Utilities Com- 
pany until June 6, when it was given out that he had re- 
signed because of his advanced age and ill health. A few 
days afterward he sailed for Europe. There was at this time 
no charge or suggestion of misconduct. 

By the end of June the depression had deepened. Every 
day brought its new batch of failures of old enterprises 
hitherto considered sound. In Chicago the Foreman 
National Bank, the twelve "Bain" and a score of other 
"neighborhood" banks, with deposits aggregating over half 
a billion dollars, closed never to reopen. The Chicago ele- 
vated lines and the Chicago, Aurora & Elgin interurban 
went into receivership. Companies like Atchison, To- 
peka & Santa Fe Railroad passed dividends after records of 
from twenty-five to fifty years of uninterrupted payments- 
Stocks reached new all-time lows. 

America's supposedly indestructible business structure 
had collapsed. The inevitable investigations followed— 
investigations to fix on someone the blame for the shatter- 
ing of a dream of an economic Utopia. Grand juries 
throughout the nation probed into the affairs of defunct 
banks to fasten a liability on officers or directors for shady 
investments, misappropriations of funds or the receiving 
of deposits while insolvent. A committee of the United 



130 GUILTY OR NOT GUILTY? 

States Senate held public hearings and subpoenaed before 
it officials of the stock exchanges, economists and unem- 
ployed brokers and customers' men to tell of "pools," 
"pegged prices," "wash sales" and other stock-market ma- 
nipulations and how far they had contributed to the de- 
bacle. 

While there were as yet no specific charges against Insull, 
there was mounting criticism and plenty of gossip. Former 
employees who had invested complained that the "invita- 
tions" to them to buy the Insull stocks had really been 
commands— "buy or else." Erstwhile beneficiaries of the 
deposed monarch's bounty revealed that their annual con- 
tributions to the perennial Chicago Civic Opera deficits 
had actually been drafts they had to honor if they wanted 
to continue in royal favor. The financial editor of a Chi- 
cago daily, who in the halcyon days had praised and blessed 
everything that was Insull, suddenly discovered that hold- 
ing companies, such as the one Insull had held out to the 
public as a bank for their savings, while not illegal, were 
none the less evil snares. 

"A holding company," this editor wrote, "can do almost 
anything short of murder and keep within the law. It can 
elect its own officers and directors to high-salaried positions 
in the operating subsidiary. It can milk the latter for divi- 
dends that no prudent management would continue to pay. 
It can use the common stock of the operating company with 
its inflated and uncertain dividend as a supposedly solid 
foundation for its own bond issues. It can then use its own 
common stock still further removed from actuality as the 
foundation for a bond issue of a still higher holding com- 
pany. It can take profits on financing deals and on engi- 
neering deals that the subsidiary might well do without. . . . 
This may be making a mountain out of a molehill to some 
financial minds but to us it is a basic matter of principle to 
any community that expects to make honesty its touch- 
stone. It is not so much the damage done in the first in- 



THE SAMUEL INSULL CASE 131 

stance, although that was enough to wreck thousands of 
lives, as the fact that when such things are done by men 
high in the life of the city they make it impossible to deal 
properly with the smaller fry who are more culpable only 
in degree." 

The actual investigations of Insull's affairs began to take 
form in September. The receivers of Middle West Utilities 
Company and the two investment companies had engaged 
a well-known firm of public-utility accountants to examine 
the books and records of those companies so they might re- 
port their true condition to the Court. Specific items of 
information leaked out in advance of the formal report: 
The losses of Middle West Utilities security holders would 
run to over $700,000,000; those of Corporation Securities 
Company to $85,000,000. There had been a "cross loan- 
ing" of collateral between the Insull companies, and illegal 
preferences had been given to favored creditors. Millions 
had been taken out of the assets to pay questionable brok- 
erage fees. There had been "secret syndicate lists" and 
huge secret profits to as many as 1,600 favored partici- 
pants. Payrolls had been padded and loaded with relatives 
and friends of Insull. 

Nineteen thirty-two was an election year. Franklin D. 
Roosevelt was the Democratic candidate for President. 
Among his other numerous pre-election pledges, he prom- 
ised drastic new curbs on corporations— particularly hold- 
ing companies— new legislation to insure full publicity as 
to the exact nature of security issues and regulation of the 
stock exchanges. In Chicago, John Swanson, the state's at- 
torney of Cook County, was a candidate for re-election. 
He was quick to take advantage of the hue and cry against 
Insull and share in the front-page publicity. He appointed 
a staff of assistants to co-operate with the receivers in their 
investigations and to study the applicability of existing 
state criminal laws to the anticipated evidence of wrong- 
doing. There had possibly, declared Swanson, been viola- 



132 GUILTY OR NOT GUILTY? 

tions of the Illinois "Blue Sky" law; it was not impossible 
that the completed investigations would show huge em- 
bezzlements. The evidence in due time would be presented 
to a grand jury. 

On September 23 the receivers disclosed the much pub- 
licized "secret syndicate list." It made the headlines. Insull 
had allowed his friends— social and political— to "get in" on 
Insull Utility Investments common stock at $12.00. It 
opened on the exchange at $30.00 and went on up to 
nearly $150.00. Two hundred and fifty thousand shares 
had been thus distributed. Selling at the opening price, 
the favored ones would have "cleaned up" $4,500,000. 
Among the favorites was one of Insull's old friends who had 
been appointed a receiver for Insull Utility Investments, 
and another who held a similar appointment in the Corpo- 
ration Securities Company receivership. Both were re- 
moved by the Court. 

On September 25 United States Attorney Green an- 
nounced that the Federal Department of Justice had com- 
menced a full-scale investigation into the affairs of the 
Insull companies. 

On October 4, 1932, a Cook County grand jury returned 
indictments against Samuel Insull and Martin Insull (Sam- 
uel Insull's brother), charging them with embezzlements 
from Middle West Utilities Company and Mississippi Val- 
ley Utilities Investment Company. 

On February 27, 1933, a Federal grand jury at Chicago 
returned an indictment against Samuel Insull and sixteen 
others, charging them jointly with a violation of Section 
338 2 of the United States Criminal Code (using the United 
States mails to further a scheme to defraud) . Included with 
Insull as codefendants were his son, Samuel Insull, Jr., Har- 
old L. Stuart, eight others who had been either directors, 
officers or employees of Halsey, Stuart & Company or Cor- 



2 Section 338 provides a penalty for its violation of a fine of one thousand 
dollars or imprisonment for not more than five years, or both. 



THE SAMUEL INSULL CASE 133 ' 

poration Securities Company of Chicago, four who had 
been officers or employees of Utility Securities Company 
(an Insull security-selling organization) , and an attorney 
and a certified public accountant who had approved the 
stock-offering circulars and annual reports of Corporation 
Securities Company. 

A second indictment was returned on June 1, 1933, 
against Samuel Insull, Samuel Insull, Jr., and Harold L. 
Stuart, charging them with having, in contemplation of 
bankruptcy, illegally transferred property of Corporation 
Securities Company with intent to defeat the purpose of 
the National Bankruptcy Act and to prefer selected credi- 
tors in the distribution of the assets of the anticipated 
bankrupt. 8 

Insull, with his wife, was living quietly and inexpen- 
sively in Paris when he learned of the investigations and 
the efforts that were being made to indict him. Some Chi- 
cago attorneys, with whom he had long been associated, 
advised him to establish a domicile in Greece, which they 
said had no extradition treaty with the United States. Un- 
willing, as he later testified, to be crucified in a political 
campaign, Insull followed this advice, going first to Turin, 
Italy, and then to Athens. 

He successfully resisted extradition proceedings and, 
despite the ever-increasing pressure of the United States 
upon the Greek government, remained unmolested and at 
liberty until December 5, 1933. On that date he was per- 
emptorily ordered to leave the country not later than Janu- 
ary 1, 1934. By successive modifications the date of the or- 
der of expulsion was extended, because of Insult's ill health, 
to March 15. On that day Insull disappeared. 

The Greek government had not anticipated a secret de- 
parture and at once set afoot an inquiry to discover the 



3 Section 29 (b) , Clause 6, National Bankruptcy Act, as amended (Title 
11, Sec. 52 [b], Clause 6, U.S.C.A.) . The penalty prescribed for violation of 
the section was a fine of not more than five thousand dollars or imprison- 
ment for not more than five years, or both. 



134 GUILTY OR NOT GUILTY? 

fugitive's whereabouts. All vessels which had sailed from 
Greek ports on the fourteenth and fifteenth were radioed 
to report a list of their passengers.' Promptly the proprie- 
tors of a small Greek steamship line reported that Insull 
was a passenger aboard one of their ships— the Maiotis— 
bound for Egypt; that his papers were in order; and that 
he had left without notifying the authorities to avoid un- 
necessary publicity. The captain was ordered to return to 
port (Piraeus) . He immediately complied. The ship's and 
Insull's papers were examined and found to be in order, and 
after six hours' detention the Maiotis with its passengers was 
permitted to resume its voyage. 

The press flashed daily rumors of wireless negotiations 
between Insull and the Mediterranean countries— Egypt, 
French Somaliland, Ethiopia, Yugoslavia, Albania, Ru- 
mania and Turkey— for permission to land and establish 
residence. On March 22— a week after Insull's departure 
from Greece— the State Department had rushed a bill 
through both houses of Congress giving the United States 
government the right to arrest Insull in any country in 
which by treaty it had extraterritorial rights. 

On March 29 the Maiotis put into Istanbul harbor for 
provisions. The United States ambassador, on direct or- 
ders from the State Department, demanded of the Turkish 
government that it arrest Insull. Although the extradition 
treaty with Turkey, adopted by the United States February 
21, 1933, had not yet been ratified by the Turkish govern- 
ment, the latter promptly acceded to the demand and or- 
dered Insull taken into custody. Extradition proceedings 
were hastily instituted. After a hearing lasting less than 
twenty minutes, Insull's extradition was ordered. The trial 
Court ruled that its order was unappealable, and on April 
11 Insull, under heavy guard, was put aboard a Turkish 
ship from which he was shortly transferred to the American 
Export liner, the S.S. Exilona, bound for New York. 

The Exilona docked at New York on May 8. Insull was 



THE SAMUEL INSULL CASE 135 

rushed to a Chicago-bound train and twenty hours later 
was a prisoner in the Cook County jail. His bail on the 
Federal charges was fixed at $200,000; on the state charges, 
at $50,000. Sureties for the required amounts were pro- 
cured, and on May 12 he was released. 

Before entering St. Luke's Hospital for needed medical 
treatment Insull made a brief statement to the press which 
foreshadowed his defense to the accumulated charges 
against him. He said: "I have erred but my greatest error 
was in underestimating the effects of the financial panic 
on American securities and particularly on the companies 
I was trying to build. I worked with all of my energy to 
save those companies. I made mistakes, but they were hon- 
est mistakes. They were errors in judgment and not dis- 
honest manipulations." 

The case of the United States of America v. Samuel In- 
sull, et al., for using the United States mails to defraud, 
came on for trial October 2, 1934, before the Honorable 
James H. Wilkerson. Judge Wilkerson's exceptional expe- 
rience made him the ideal judge for this particular case. 
He had served a term as United States attorney. In practice 
he had defended some important criminal cases. Four years 
as chairman of the Illinois Commerce Commission had 
given him detailed practical knowledge of corporate organ- 
ization, financing and management. In fourteen years' pre- 
vious service on the Federal district bench he had tried 
many important civil and criminal cases and acquired an 
enviable reputation for integrity, ability, judicial poise and 
impartiality. 

Appearing for the Government were Leslie Salter and 
Forest A. Harness, special assistants to the Attorney General 
of the United States; the Honorable Dwight H. Green, 
United States attorney for the northern district of Illinois; 
and his first assistant, Leo J. Hassenauer. Salter and Har- 
ness had tried many cases for the government, among them 



136 GUILTY OR NOT GUILTY? 

some prosecutions for violation of the Mail Fraud Statute. 

The defendants, Samuel Insull and Samuel Insull, Jr., 
were represented by Floyd E. Thompson. Judge Thomp- 
son had completed a nine-year term as a justice of the Su- 
preme Court of Illinois in 1928, when he retired to enter 
private practice. Earlier he had served for seven years as 
state's attorney of Rock Island County, Illinois. He spe- 
cialized in trial work and was a sincere, able and effective 
advocate. His representation of the two principal defen- 
dants naturally threw on his shoulders the burden of the 
defense. 

Appearing for the other defendants were Harry S. Ditch- 
burne and Charles E. Lounsbury, John J. Healy, Freder- 
ick Burnham, James J. Condon, J. Fred Reeve and William 
H. Haight. Ditchburne and Lounsbury, who represented 
the defendants Harold L. and Charles B. Stuart, were able 
and experienced lawyers with extensive previous experi- 
ence in the trial of criminal cases. Healy, Burnham, Con- 
don, Reeve and Haight were all conscientious, alert and 
competent advocates. 

A jury of twelve with two alternates was promptly se- 
lected. In residence they were about equally divided be- 
tween Cook County (the Chicago metropolitan area) and 
the adjacent counties in the northern Federal district. Five 
were salesmen; two, retail grain dealers; one, a grocer; one, 
a farmer; one, a garage proprietor; one, a bookbinder; and 
one, a heating engineer. Two were unemployed. 

The United States attorney for the northern district of 
Illinois, the Honorable Dwight H. Green, opened for the 
prosecution. The defendants, he said, were charged with 
an unlawful use of the United States mails— unlawful be- 
cause the use was for the purpose of perpetrating a fraud. 

Green read at length from the fifty-page, twenty-five- 
count indictment. Stripped of its repetitious verbiage, it 
charged that the defendants had devised a fraudulent 
scheme whereby, through false pretenses, representations 



THE SAMUEL INSULL CASE 137 

and promises, they intended to and did defraud divers per- 
sons of their money and property by inducing them to buy 
at inflated prices the common stock of Corporations Secur- 
ities Company of Chicago, an Illinois corporation, or- 
ganized and controlled by the Insulls and Halsey, Stuart & 
Company. The scheme, it was alleged, contemplated a 
nationwide sales campaign through the medium of circu- 
lars, letters, telegrams, booklets, bulletins and oral repre- 
sentations, to be put out by the Insull-dominated Utility 
Securities Company, Corporation Syndicates, Insull, Son & 
Company, and selling and distributing groups named and 
organized by Utility Securities Company. 

It was also charged that as part of their scheme to mislead 
and deceive prospective purchasers as to the true value of 
the common stock and to maintain a fictitious market for 
it, the defendants bought and sold large quantities of it on 
the Chicago Stock Exchange at inflated and fictitious prices 
and, for that purpose, used the funds of Corporation Securi- 
ties Company of Chicago, Utility Securities Company, Mid- 
dle West Utilities Company, and other Insull-controlled 
companies. The concluding charge was that, having devised 
this fraudulent scheme, the defendants, for the purpose of 
executing it, had used the United States mails to send letters 
and circulars to the persons whose money and property they 
proposed to obtain through their false pretenses, misrepre- 
sentations and promises. The twenty-five counts of the in- 
dictment were identical except for the allegations as to the 
matter mailed and the recipient. 

Green then proceeded for the remainder of two hours to 
outline the specific evidence the Government expected to 
produce. He led the jurors through a bewildering maze of 
corporate names— operating companies, holding companies, 
investment companies, investment trusts, selling com- 
panies, syndicates, participating groups, stock-transfer 
agents, dividend disbursing agents, voting trustees— and a 
jumble of boxcar figures— a million shares of stock that 



ig8 GUILTY OR NOT GUILTY? 

went to Insull, a million more that went to H. L. Stuart, 
fifty million dollars here and fifty million dollars there- 
with market quotations, book values, estimates of liquidat- 
ing value, bank loans of more millions, etc. 

When Green had finished this confusing recital, the 
twelve good men and true had probably, because of its con- 
stant reiteration, grasped at least the Government's central 
theme— that some thousands of persons, among them 
schoolteachers, stenographers, clerks, janitors, elevatormen, 
and other "little people"— had been swindled out of over 
a hundred million dollars by the criminal machinations of 
a crowd of rapacious and ruthless stock-manipulating buc- 
caneers, who had prostituted the United States mails for 
the accomplishment of their nefarious designs. 

Over the protest of Special Assistant Attorney General 
Salter, who practically took over the prosecution of the 
case from this point, the defendants were permitted to re- 
serve their opening statements until after the conclusion of 
the Government's evidence. 

In rapid succession the Government called some eighty 
witnesses— receivers, receivers' employees, former employees 
of the bankrupt Insull companies, present and former em- 
ployees of Halsey, Stuart & Company, representatives of 
Chicago and New York banks and brokerage houses— to 
identify books, records and correspondence deemed per- 
tinent to establish its charges. These, when authenticated 
and received in evidence, became the basis for the testi- 
mony of a half-dozen expert accountants in the Bureau of 
Investigation of the Department of Justice that they had 
spent upward of two years fine-tooth-combing the docu- 
ments so that they might produce and present to the jury 
summaries and charts to prove the guilt of the defendants. 

Fifty or more witnesses, summoned from all parts of the 
United States, appeared and testified to their solicitation 
by agents of Halsey, Stuart & Company, Corporation Se- 
curities Compaily of Chicago, Utility Securities Company 



THE SAMUEL INSULL CASE 139 

and others to buy the stock of Corporation Securities Com- 
pany of Chicago, of their receipt of circulars, bulletins and 
letters, and of their reliance on these and oral represen- 
tations made to them, which induced them to exchange 
their money for the engraved stock certificates which most 
of them still held. 

Most of the basic facts produced by the Government— 
those going to the alleged existence of a scheme to defraud 
—were indisputable. They rested on public and corporate 
records and reports, circulars, contracts, letters and memor- 
anda in the files of banks, brokerage houses, Halsey, Stuart 
& Company and the various Insull companies. The conflict 
between the Government and the defendants arose out of 
the constructions properly to be placed on those basic facts. 

It will simplify this account to disregard the actual order 
of proof and present first these indisputable basic facts. 

Samuel Insull for many years prior to June 6, 1932, had 
been the directing head of Commonwealth Edison Com- 
pany and Peoples Gas Light & Coke Company, public util- 
ities supplying electricity and gas to the city of Chicago, and 
Public Service Company of Northern Illinois, which sup- 
plied both electricity and gas to numerous municipalities 
and industries in the northern half of Illinois outside Chi- 
cago. He was chairman of the board of directors and a 
heavy stockholder in each of these corporations. All of the 
companies enjoyed complete monopolies in the territories 
they served and, through Insull's industry and admitted 
genius as a utility operator, had long before the great de- 
pression been developed into highly efficient organizations 
with premier credit, outstanding records of good customer 
and employee relations, and regular and liberal dividends 
to stockholders. 

In the early part of the century, Insull also acquired sole 
or controlling interests in a number of small gas and elec- 
tric properties in southern Indiana. As time went on, nu- 
merous other out-of-Chicago properties were purchased. 



THE "INSULL EMPIRE"* 



CHICAGO OPERATING COMPANIES 



Commonwealth Edison Co. 



<i 

si 



Peoples Gas Light 
& Coke Co. 



Public Service Co. 

of 
Northern Illinois 



«o| 

pa i 

3 



Chicago District 
Generating Co. 



Utilities Securities Company 

(A Stock -Selling Company) 



I 



All stock owned by Common- • 
wealth Edison Co., Peoples Gas J 
Light & Coke Co. and Public J 
Service Co. of Northern Illinois | 



Middle West Utilities Co, 
(A Holding Company) 



Insull Utility Investments, Inc. 



li 

Insull, Son & Co. 






S^ wj 




j ^^ s ■ 


<r <\ 


h i 


o 




V) 1 


03 I 


3 1 


to 1 


1 



J Numerous operating companies 
i in Illinois, Indiana, Wisconsin, 
J Kentucky and other states 



HOLDING COMPANIES 



Insull, Son & Co., Ltd. (England) 



Corporation Securities 
Company of Chicago 

~~ii — 



Corporation Syndicates, Inc., 
(Stock-Selling Company) 



STOCK 

SELLING 

COMPANIES 



* Chart does not include numerous other cor- 
porations which did not figure in the trial. 



140 



THE SAMUEL INSULL CASE - 141 

While separately managed, all of these were directed and a 
common policy was determined by Insull himself. The 
new uses and increasing demands for electrical power ne- 
cessitated an almost continuous flow of new capital for the 
enlargement of these plants. According to Insull's later 
testimony, it was to meet this demand and acquire and de- 
velop other desirable properties that in 1912 he organized 
Middle West Utilities Company as a holding company in 
which to centralize these scattered properties. The expan- 
sion of Middle West Utilities Company during the ensuing 
twenty years was astonishing. By 1931 it served over 1,800,- 
000 customers in some 5,300 communities in thirty-nine 
out of the forty-eight states of the Union. 

Shortly after the World War I armistice, Insull formu- 
lated plans for selling the stock of the three operating com- 
panies under his direct management (Commonwealth 
Edison Company, Peoples Gas Light & Coke Company and 
Public Service Company of Northern Illinois) to their cus- 
tomers and employees. The reason, according to his uncon- 
tradicted testimony, was to create a bulwark of popular 
opposition to a mounting sentiment for municipal and gov- 
ernment ownership of public utilities. 

The first step was the organization of a stock-sales depart- 
ment in Public Service Company of Northern Illinois. 
That company purchased its stock on the market and 
offered it for sale for cash or on easy installment terms. 
Regular employees of the company acted as solicitors and 
salesmen. The plan was soon extended to Peoples Gas 
Light & Coke Company and Commonwealth Edison Com- 
pany. 

In 1922 it was determined to remove these activities from 
the operating companies and concentrate them in a central 
agency, and Utility Securities Company was organized. All 
of the stock in this company was originally owned by Com- 
monwealth Edison Company, Peoples Gas Light & Coke 
Company and Public Service Company of Northern Mi- 



142 GUILTY OR NOT GUILTY? 

nois. There were no individual stockholders, but the al- 
leged activities of the officers of Utility Securities Company 
(several of whom were codefendants) loomed large in the 
Government's case. 

In December of 1928 Insull organized Insull Utility 
Investments, Inc. Upon its organization, the Insull fam- 
ily—Samuel, Mrs. Samuel, Samuel, Jr., and Martin— turned 
over to it securities of Insull operating companies on which 
they placed a value— which was market value— of $9,765,000 
and received in exchange 764,000 shares of the common 
and 40,000 shares of the preferred stock of Insull Utility 
Investments. Coincident with the exchange, Samuel Insull 
obtained an option to purchase 200,000 additional shares 
of the common stock at fifteen dollars a share. (This op- 
tion was later exercised to his profit). Halsey, Stuart fe 
Company exchanged at the same ratio Insull operating 
companies' securities (which it acquired from the Insull 
family for cash at its market value— approximately $4,500,- 
000) for common and preferred stock of Insull Utility In- 
vestments. 

The Government made much of the fact that the Insull 
family's entire accumulation of Insull operating stocks rep- 
resented a cost to it of $5,400,000; that when the family sold 
part of that accumulation to Halsey, Stuart fe Company for 
$4,500,000 cash, it left its investment in the remainder some- 
thing less than $1,000,000, which made the cost of the 764,- 
000 shares of Insull Utility Investments common which they 
received about thirteen cents a share. 

Although at organization Insull Utility Investments 
common had a book value of $7.54, it sold on the Chicago 
Stock Exchange when listed for $30.00 a share. While its 
book value steadily increased through additional acquisi- 
tions and the market increase of the securities in its port- 
folio, the market on Insull Utility Investments consistently 
outran its book value. On August 2, 1929, it reached an all- 
time high of $147.00 a share. On October 4, 1929, when 



THE SAMUEL INSULL CASE 143 

Corporation Securities Company of Chicago was organized, 
it was selling on the Chicago Stock Exchange at $100.00 a 
share. 

In the summer of 1929 Insull and Harold L. Stuart of 
Halsey, Stuart & Company conceived the idea of organiz- 
ing still another investment company. The Government 
contended strenuously from first to last that the object of 
this second investment company was to provide a "dump- 
ing ground* ' for Middle West Utilities Company secur- 
ities. That company, it contended, was proving a "white 
elephant/' It was not earning enough to continue the pay- 
ment of cash dividends on its common stock. Some of its 
senior securities bore excessively high rates of interest— six, 
seven and eight per cent. A reorganization was imperative 
and a controlled outlet for its stock necessary. 

While these claims were denied by the defendants, the 
fact was undisputed that in June of 1929 Halsey, Stuart & 
Company, for the joint account of itself and Insull, com- 
menced the accumulation through market purchases of a 
large quantity of Middle West Utilities Company stock. 

The Government linked the reorganization of Middle 
West Utilities Company with these purchases by Halsey, 
Stuart & Company and Insull of Middle West Utilities 
stock and the later formation of Corporation Securities 
Company of Chicago in this wise: The Middle West Util- 
ities Company's plan of reorganization, put forth in the 
summer of 1929, provided for the issuance of "rights" to the 
holders of the old common shares to subscribe to a new 
common stock at $200.00 a share. The outstanding notes 
and bonds bearing high interest rates were to be retired. 
New senior securities were to be issued at much lower rates. 
The new common stock (to be immediately split ten shares 
for one) was to be put on a regular stock-dividend basis so 
as to insure the retention by the company of its earnings to 
meet the constantly demanded improvement and extension 
of the company's properties. When the reorganization plan 



144 GUILTY OR NOT GUILTY? 

was published the old common stock was selling on the mar- 
ket for around $170.00 a share. 

According to the Government's contention, stockholders 
could not under such a circumstance be expected to buy 
the new stock at $200.00 a share and Insull and his prin- 
cipal codefendants knew it. And so, said the Government, 
to make the new stock attractive and insure the success of 
the reorganization, Insull and Stuart began the accumula- 
tion of Middle West Utilities Company common to "run 
up the price." The price did go up— from $170.00 to 
$310.00 at the end of July when they had accumulated 
nearly $13,000,000 of the stock and ceased buying. Even 
then it didn't stop. On September 27, 1929, it reached 
$505.00. 

There was an additional incident to the reorganization 
of Middle West Utilities of which the Government at- 
tempted to make much. This was a so-called "secret" or 
"preferred" syndicate list. The undisputed facts were that 
on August 17, 1929, about a month prior to the formal pub- 
lication of the recapitalization proposal of Middle West 
Utilities Company, that company entered into an agree- 
ment with Insull, Son & Company (the stock of which was 
wholly owned by Insull Utility Investments, Inc.) by which 
Insull, Son & Company, for a consideration of $1,875,000, 
agreed to underwrite the subscription and payment of all 
of the new stock to be offered. Insull Utility Investments, 
Inc., guaranteed Insull, Son & Company's performance. 

Insull, Son & Company thereafter entered into a so-called 
"Middle West Preferred and Common Stock Syndicate 
Agreement" with some 300 persons to participate in spe- 
cific amounts and share proportionately in the risk and 
profit, if any, that might result from such underwriting. 
Insull's agreed participation was $2,600,000; Halsey, Stuart 
& Company's was $2,500,000; Samuel Insull, Jr., subscribed 
for something over $1,000,000. Other defendants were 
subscribers for smaller amounts. 



THE SAMUEL INSULL CASE 145 

The syndicate participants were called on to pay in cash 
six per cent of their respective subscriptions. The stock 
which remained unsold (not taken up by the common 
stockholders or sold to the public), amounting to $18,600,- 
000, was later sold, one half to Insull Utility Investments, 
Inc., and one half to Corporation Securities Company of 
Chicago, the new investment company. When the syndi- 
cate 4 was wound up in January of 1930, each of the syndicate 
subscribers was returned the amount he had advanced on 
his subscription, together with a "profit" of approximately 
twenty-five per cent of that sum. That profit to Samuel 
Insull, Sr., and Halsey, Stuart & Company was about 
$35,000 each. 

Corporation Securities Company of Chicago, organized 
October 4, 1929, was a consolidation of two corporations: 
Corporation Securities Company (a more or less dormant 
corporation, all of the stock of which was owned by Halsey, 
Stuart fe Company) and Western Securities Company (a re- 
cently organized company, all of the stock of which was 
owned by Samuel Insull, his wife, son and brother Martin). 
Halsey, Stuart fe Company turned in to Corporation 
Securities Company (referred to in the testimony as Old 
Corp.) 152,270 shares of stock of Insull Utility Investments, 
Inc., for which it had paid approximately $3,400,000. 
Simultaneously, Old Corp. borrowed $3,500,000 from a 
Chicago bank on a note guaranteed by Halsey, Stuart & 
Company, and paid Halsey, Stuart fe Company $3,400,000 
for the Insull Utility Investments stock which it had re- 
ceived from it. 

The Insulls had turned in to Western Securities Com- 
pany in exchange for its stock 152,270 shares of stock 
of Insull Utility Investments. In the consolidation all out- 
standing shares of Old Corp. and Western Securities Com- 



4 This is to be distinguished from the Insull Utility Investments syndicate 
earlier referred to. The Government offered no evidence with respect to that 
syndicate. 



146 GUILTY OR NOT GUILTY? 

pany were surrendered to Corporation Securities Company 
of Chicago (referred to in the testimony as New Corp.) 
and canceled. New Corp. after the consolidation thus had 
as assets 304,540 shares of Insull Utility Investments com- 
mon stock. It assumed the total liabilities of the old cor- 
porations, amounting to some $3,510,000. 

Of the 7,000,000 shares of authorized common stock of 
the new corporation, 1,000,000 shares were issued to Hal- 
sey, Stuart & Company and 1,045,436 shares to the Insulls. 
The Insulls also received 45,436 shares of so-called three- 
dollar optional preferred stock. The greater number of 
shares issued to the Insulls was to balance the $3,400,000 
paid out of the bank loan to Halsey, Stuart & Company, the 
intent being that the investments of the Insulls and Halsey, 
Stuart & Company in the new corporation should be equal. 
With the object of insuring continuing control of the new 
corporation, 1,000,000 shares of its common stock owned 
by the Insulls and a similar amount owned by Halsey, 
Stuart & Company interests were placed in a voting trust 
of which Samuel Insull, Samuel Insull, Jr., Martin J. In- 
sull and Harold L. Stuart were trustees. 

When the organization of Corporation Securities Com- 
pany of Chicago was completed, Halsey, Stuart & Company 
had on hand some 557,000 shares of the new common stock 
of Middle West Utilities Company which it had acquired 
for the joint account of itself and the Insulls at a cost of 
$12,700,000. On October 14, 1929, ten days after its or- 
ganization, Corporation Securities Company of Chicago 
recorded on its books the purchase from Halsey, Stuart & 
Company of this stock and accrued rights for $13,444,000, 
and its liability to pay Halsey, Stuart & Company that 
amount. The stock thus acquired was given a value on the 
new company's books of approximately $23,000,000, which 
represented its market value on October 14, 1929. 

The Insull Utility Investments stock in the new com- 
pany's portfolio, acquired from the Insulls and from Hal- 



THE SAMUEL INSULL CASE 147 

sey, Stuart & Company, was given a value on its books of 
$30,000,000, which represented its market value on Oc- 
tober 4, 1929. 

In addition to being chairman of the board of directors 
of Commonwealth Edison Company, Peoples Gas Light & 
Coke Company and Public Service Company of Northern 
Illinois, Samuel Insull was ,an officer or director (or both) 
of Middle West Utilities Company, Insull Utility Invest- 
ments, Inc., and Corporation Securities Company of Chi- 
cago. The affairs of Insull Utility Investments were di- 
rected by a small finance committee, those of Corporation 
Securities Company of Chicago by a small executive com- 
mittee, and Insull was the chairman of both committees. 
Through the offices he held, or through his nominees, In- 
sull also dominated Utility Securities Company, Insull, 
Son & Company and Corporation Syndicates, Inc. (to which 
reference will later be made). It was the Government's 
contention that the numerous intercompany dealings of 
which it complained were made possible solely by this in- 
terlocking of the Insull interests. 

The Government's expert accountants testified and at- 
tempted to demonstrate by exhibits that, by the manipula- 
tions it described, Halsey, Stuart & Company and the Insulls 
got two million shares of the common stock of Corporation 
Securities Company of Chicago for practically nothing; 
that Corporation Securities Company of Chicago, through 
Insull and Stuart, later sold similar common shares to the 
public at twenty-five dollars a share; and had their scheme 
not miscarried, Halsey, Stuart & Company and the Insulls 
would have reaped a profit on their common stock of 
$50,000,000. 

The object of Corporation Securities Company of Chi- 
cago, according to the defendants' later testimony, was the 
acquisition for their income and appreciation of sufficient 
quantities of the stocks and securities of the Insull operat- 
ing companies to insure their continued control by the In- 



X 



148 GUILTY OR NOT GUILTY? 

sull interests. In the Government's view the object was to 
provide a receptacle for and to protect the market on Mid- 
dle West Utilities Company stock. The accomplishment of 
either object required money— vast amounts of it. The 
company immediately set about to raise that money. With- 
in a year following its organization it offered and sold ap- 
proximately 635,000 participation certificates or units (one 
share of preferred and one share of common stock), 1,250,- 
000 additional shares of common stock and $30,000,000 of 
interest-bearing "serial gold notes/' The proceeds of these 
sales aggregated something over $110,000,000. It was the 
sale of the units and common stock which the Government 
contended was induced by fraudulent representations and 
concealments of the true financial condition of Corpora- 
tion Securities Company of Chicago. 

Pursuant to the recommendation of its executive com- 
mittee Corporation Securities Company of Chicago, on 
October 19, 1929, announced the offering of 7oo,ooo 5 par- 
ticipation certificates or units at seventy-five dollars per 
unit. The preferred stock, while without par value, was 
given a preference in assets upon liquidation of fifty dol- 
lars a share. This gave the common stock an assumed value 
of twenty-five dollars a share. The preferred stock was des- 
ignated a "three dollar optional preferred" because the 
holder had the option, if he cared to exercise it, of taking 
in lieu of cash a specific amount of common stock as a 
stock dividend. 

While protesting that it was not selling the units and was 
not interested in their sale (its traditional business being 
the underwriting and sale of municipal and corporate 
bonds and notes) Halsey, Stuart & Company practically 
turned over its gigantic sales organization to Corporation 
Securities Company of Chicago. The two companies at the 



5 Approximately 65,000 of these either went to the Insulls in the original 
organization of Corporation Securities Company of Chicago or were pur- 
chased by officers and employees of Halsey. Stuart & Company. 



THE SAMUEL INSULL CASE 149 

time occupied the same offices. The sales branches of Hal- 
sey, Stuart & Company in the various cities of the United 
States were asked to furnish lists of former customers of 
Halsey, Stuart & Company who might be interested in the 
purchase of the units. 

On October 19 and October 21 Halsey, Stuart & Com- 
pany distributed bulletins to its salesmen, advising them 
that letters had been mailed to the persons whose names 
had been suggested inviting their subscription to Corpo- 
ration Securities Company of Chicago units, and enclosing 
a circular which described the nature and purpose of the 
new offering. The bulletins directed the salesmen to get 
in touch with the selected customers and tell them that 
they might, due to Halsey, Stuart & Company's suggestion, 
receive an invitation to subscribe to the units; that Halsey, 
Stuart & Company made no recommendation and had no 
interest in whether they bought or not but wanted to let 
them know that the new corporation was jointly controlled 
by Halsey, Stuart & Company and the Insulls, and that Hal- 
sey, Stuart & Company had a major interest in the enter- 
prise. It was stressed that subscriptions should be sent 
directly to Corporation Securities Company of Chicago. 

Coincident with the above offering and mailings, and 
continuing until November 4 when the issue had been fully 
subscribed, Corporation Securities Company of Chicago, 
through the defendant Harold L. Stuart, bought and sold 
on the open-market exchanges approximately 62,000 of the 
units, which constituted eighty-three per cent of all of the 
open trading in them. The market price range during the 
period was from $65.00 to $100.00. The Government con- 
tended this was "market rigging" designed as part of the 
scheme to deceive and defraud investors. 

Halsey, Stuart & Company's salesmen promptly got in 
touch with their customers to whom the offering literature 
had been sent. The Government produced many of these 
customers as witnesses who testified that these salesmen 



150 GUILTY OR NOT GUILTY? 

went far beyond the injunctions contained in the Halsey, 
Stuart & Company bulletins. According to their testimony 
this is what they were told by the salesmen: Get your sub- 
scriptions in while there is still time. The units are selling 
on the exchange at ten, fifteen or twenty points above the 
subscription price. The issue is bound to be oversub- 
scribed, and if you want twenty-five shares you had better 
subscribe for a hundred. Everything Insull has ever 
touched has turned to gold. Halsey, Stuart & Company 
are in this and they would not be in it if it wasn't good. 
These units are "a fine," "a good," "a safe," "a sound" and 
"an interest-paying" investment. One witness, a former 
Halsey, Stuart & Company salesman, testified that he was 
told by one of his superiors in Chicago that the securities 
held and to be held by the Corporation Securities Company 
constituted "the jewels of the Insull empire." 

The issue was oversubscribed by 125,000 units. Corpo- 
ration Securities Company received approximately $46,- 
000,000 as the proceeds of the sale. Halsey, Stuart & Com- 
pany received for its services in aid of the sale one per cent 
of the issue, or 7,000 units. 

The Government next directed its proof to establish that 
the sale of the units was effected through the fraudulent 
representations and concealments of the defendants. The 
circular that was mailed out by Halsey, Stuart & Company 
in connection with the subscription invitation came in for 
particular attack. The Government's witnesses claimed 
that the statement in the circular that the company would 
commence business with assets of $80,000,000— $30,000,000 
cash and $50,000,000 in marketable investments at current 
market prices— was false and deceptive; that the company 
had been organized and commenced business on October 
4, 1929 (which was nowhere stated) and at that time had 
nothing except 304,000 shares of Insull Utility Investments 
that had cost it $7,000,000 and a liability on an outstanding 
bank loan of $3,500,000. 



THE SAMUEL INSULL CASE 151 

In order to get its figure of $80,000,000, the accountants 
for the prosecution pointed out, the company had writ- 
ten up those 304,000 shares on the company's books to 
$30,400,000 and had written up the value of the 557,000 
shares of Middle West Utilities Company stock from the 
$13,000,000, at which it had contracted to purchase it, to 
$23,000,000, and had figured as cash the amount it expected 
to receive from the sale of the units. The circular, the wit- 
nesses said, concealed the fact that the vast bulk of the Mid- 
dle West Utilities stock which the company had committed 
itself to purchase was common stock which paid a stock 
rather than a cash dividend. 

The Government's witnesses testified that the statements 
that Corporation Securities Company had $50,000,000 of 
marketable securities of companies whose resources were 
directly or indirectly in the public-utility industry were 
false because neither Insull Utility Investments nor Middle 
West Utilities Company shares fell truthfully within such 
a classification. They also contended that the statement in 
the circular that 2,000,000 of the 2,700,000 shares of com- 
mon stock outstanding would be owned by members of the 
board of directors or institutions with which they were con- 
nected, and placed in a voting trust, was deceptive because 
by it the prospective investor was led to believe that the 
organizers of Corporation Securities Company of Chicago 
had contributed $50,000,000 to the company, whereas the 
concealed fact was that the stock had cost them practically 
nothing. 

The oral representations made by the Halsey, Stuart & 
Company salesmen, for which the Government claimed the 
defendants were responsible, that an investment in the 
units was "good/' "safe," "sound" and "interest-paying" 
were, the Government's accountants said, palpably false: 
With 700,000 shares of prior preferred outstanding, which 
required an annual cash outlay of $2,100,000 to pay its 
dividend, and a portfolio heavily loaded and to be more 



152 GUILTY OR NOT GUILTY? 

heavily loaded with Middle West Utilities common stock 
which paid no cash dividends, Corporation Securities Com- 
pany's common stock was anything but a good, safe, sound 
and interest-paying investment. 

The effect of the Government's direct testimony as to the 
alleged misrepresentations in the circular was seriously 
impaired by the skillful cross-examination of its principal 
witness by Lounsbury, one of the counsel for the Halsey, 
Stuart & Company officers who were defendants. Through 
clearly stated leading questions requiring categorical an- 
swers, it was developed that the "write-up" of the Insull 
Utility Investments stock which went into the portfolio of 
the new company was at its current market price; similarly, 
that on October 14, 1929, when the company entered into 
the contract with Halsey, Stuart & Company to purchase 
the 557,000 shares of Middle West Utilities Company 
stock which had been accumulated the previous summer, 
it too was charged on the books at a figure exactly the 
equivalent to the aggregate per-share price quoted on the 
open market. 

The witness was also compelled to admit that in prevail- 
ing commercial practice it was customary, in the case of 
new stock offerings, to issue circulars which represented the 
financial status of the offering company as of the date of the 
completion of the proposed financing, and in the case of 
Corporation Securities Company after the units had been 
sold and the company actually commenced doing business, 
it would and did have more than $30,000,000 cash in hand 
and something over $50,000,000 in listed securities figured 
at their market value. It was also brought out in the cross- 
examination that all of the officers of Halsey, Stuart & 
Company who were defendants had voluntarily made siz- 
able purchases of the units at their offered price because 
they believed they were a sound investment, and had held 
the stock to the end and taken large losses. 

As against the defendant Samuel Insull, the Government 



THE SAMUEL INSULL CASE 153 

produced testimony that in December 1929 he exercised the 
option he had previously taken to buy 200,000 shares of 
Insull Utility Investments common at fifteen dollars a 
share, and within a week sold 42,000 of them to Corpora- 
tion Securities Company at forty dollars a share, thus real- 
izing a profit on the partial sale of over one million dollars. 

The Government presented a great deal of testimony 
respecting Corporation Securities Company's first annual 
report— the three months' operations ending December 31, 
1929. It stressed the fact that there were eight drafts of it 
made before it met with the approval of the officers and 
directors and went to the printer in its final form. It was 
shown that the first draft disclosed a net loss for the three 
months' operations of $174,000, and the final draft repre- 
sented that there was a net profit of $630,000. To arrive 
at this alleged profit the company had in the final draft 
erroneously taken and considered as cash earnings the stock 
dividends it had received or which had been declared on 
Middle West Utilities Company common stock in its port- 
folio at the market value of the stock. Only nineteen per 
cent of the securities in the company's portfolio paid cash 
dividends. The company had also, according to the Govern- 
ment's testimony, charged to earned surplus rather than 
against current earnings an "organization expense," and 
the report nowhere disclosed the fact that this reorganiza- 
tion expense was nearly one million dollars. It was the 
Government's contention, supported by highly competent 
expert testimony, that under proper and generally accepted 
accounting practice, stock dividends, until sold and realized 
on, were in no sense income. 

As to "organization expense," it was the Government's 
contention that under proper and generally accepted ac- 
counting practice, it should be charged against the income 
or earned surplus account to the extent of the capacity of 
those accounts to absorb the charge and the excess charged 
against capital surplus. It was the Government's claim that 



154 GUILTY OR NOT GUILTY? 

with the stock dividends eliminated as current receipts, and 
"organization expense" included with current expenses, 
the result of the first three months of Corporation Secur- 
ities Company's operations was a deficit of $500,000 or 
$600,000. 

The Government produced testimony to support its con- 
tention that the 1929 annual report was false and deceptive 
in other respects. The report stated: "... so far, however, 
the activities of Corporation Securities Company of Chi- 
cago have been confined to the purchase for investment of 
substantial blocks of stock in the following companies: 
Middle West Utilities Company, Insull Utility Invest- 
ments, Commonwealth Edison Company, Peoples Gas 
Light & Coke Company and Public Service Company of 
Northern Illinois." This the Government said was decep- 
tive because ninety per cent of the stocks it held were Mid- 
dle West Utilities Company and Insull Utility Investments, 
and the remaining ten per cent of its holdings, divided 
among Commonwealth Edison Company, Peoples Gas 
Light & Coke Company and Public Service Company of 
Northern Illinois, did not justify the use of the adjective 
"substantial" as applied to these companies. 

As was the case with the offering circular, this direct tes- 
timony was shaken by intelligent and skillful cross-exami- 
nation. This time the examining advocate was Judge 
Thompson, counsel for the Insulls. One of the Govern- 
ment's principal witnesses was compelled to admit that rec- 
ognized authorities on accounting, one of whom was a 
professor of accounting at the University of Michigan and 
author of a widely used text book and manual on account- 
ing practice, considered organization expense as an intan- 
gible asset of a permanent character, which might have 
substantial value. The witness also admitted that the Fed- 
eral government, for income-tax purposes, treated organi- 
zation expense not as a charge against current revenue or 
current loss, but as a permanent asset. 



THE SAMUEL INSULL CASE 155 

From another of the Government's witnesses came the 
reluctant admission, which went both to the question of 
the proper treatment of stock dividends and organization 
expense, that while he believed his testimony as to the 
proper accounting practices accorded with the weight of 
opinion held by reputable accountants, he recognized that 
contrary views were held by others and the questions were 
controversial. The way was thus cleared for later affirma- 
tive defense to these two vital elements of the Govern- 
ment's case. 

The Government's evidence showed that on March 31, 
1930, Corporation Securities Company, by resolution of 
its board of directors, who were defendants, authorized the 
offering to the public of 1,250,000 shares of its common 
stock. On the same day it accepted the written proposal of 
Insull, Son & Company and Corporation Syndicates, Inc. 
(a wholly owned subsidiary of Corporation Securities Com- 
pany) to purchase the 1,250,000 shares at $25.00 a share. 
The offer was conditioned on Corporation Securities Com- 
pany listing the stock on the Chicago Stock Exchange. Also, 
on the same day, Insull, Son & Company and Corporation 
Syndicates, Inc., entered into a contract with Utility Secur- 
ities Company by which they agreed to sell and Utility 
Securities Company agreed, subject to the above condition, 
to buy the 1,250,000 shares at $25.50 a share. Utility Secur- 
ities Company further agreed to "maintain a market' ' on 
the common stock between $27.00 and $28.00, and on the 
units between $69.50 and $70.00. It was the Government's 
claim that these simultaneously executed deals gave Insull, 
Son & Company an unearned profit at the expense of Cor- 
poration Securities Company of $300,000. 

Utility Securities Company immediately entered into 
participation agreements with other stock-selling houses to 
underwrite parts of the 1,250,000-share offering. There 
were 398 such participants with main or branch offices in 
the principal cities of twenty-one different states. The 



156 GUILTY OR NOT GUILTY? 

stock was listed on the Chicago Stock Exchange, pursuant 
to Corporation Securities Company's undertaking, on April 
3 and trading in it commenced the following day. 

An offering circular and a number of form letters 
were prepared by Corporation Securities Company and 
Utility Securities Company and distributed to salesmen 
and prospective investors. The Government's proof was 
directed to showing that these were fraudulent and decep- 
tive because of their misrepresentations and concealments. 
Particularly it was contended that the circular, which con- 
tained an estimate of 1930 earnings, misrepresented the 
company's anticipated income as $7,100,000, of which 
$2,200,000 would be required for dividends on the out- 
standing preferred stock, leaving $4,900,000, or $1.42 as net 
earnings per share for the common stock. The truth, said 
one of the Government's witnesses, was the company would 
not have had an income of $7,100,000 because $6,000,000 of 
that figure represented not cash but stock dividends on 
Middle West Utilities Company and Insull Utility Invest- 
ments common stock; and, while the circular did state that 
stock dividends were taken as income at market, it nowhere 
stated that these dividends constituted six sevenths of the 
company's estimated income and that the company was 
operating and would continue to operate at a cash loss. 

Other form and individual letters issued by Utility Secur- 
ities Company in what the Government styled a "high pres- 
sure" stock-selling campaign contained much that was 
claimed to be false and deceptive: Statements that Corpo- 
ration Securities Company held substantial blocks of Mid- 
dle West Utilities Company, Insull Utility Investments, 
Commonwealth Edison Company, Peoples Gas Light & 
Coke Company and Public Service Company of Northern 
Illinois stocks; that the stock of Corporation Securities 
Company offered the investor a means of diversifying his 
investments and sharing in the growth and prosperity of 
the nation's largest group of public utilities, again mention- 



THE SAMUEL INSULL CASE 157 

ing, together with Middle West Utilities Company and 
Instill Utility Investments, the three well-known operating 
companies; that stockholders "were kept constantly in- 
formed"; and that "earnings were expanding rapidly." 

It was shown by the evidence that Utility Securities Com- 
pany did high-pressure its salesmen. One of the Govern- 
ment's exhibits was a letter from one of the officers of that 
company to the manager of its San Francisco office, com- 
plaining of the poor showing made by that office. "Surely," 
read the letter, "there must be some clerk, stenographer, 
small merchant or janitor who could be interested to buy 
stock on the installment plan. Concentrate on this . . . 
our success has been in getting the small fellow to buy. . . . 
They are not like the big buyers who sell out at the least 
turn of the market." 

The Government called two score of witnesses to testify 
that certain salesmen for the Utility Securities Company 
and its participating associates needed no such urging. 
According to these witnesses, the representations made 
were many, rose-colored and positive— "wonderful invest- 
ment," "good, safe investment," "would pay six per cent," 
"could be relied upon to pay dividends," "anything Insull 
is good," "you can't go wrong," "you will always have some- 
thing coming," "it will jump like a race horse." One pros- 
pect who hesitated because all of the money he had was 
what he had saved up to pay a debt shortly coming due was 
told to buy the stock because it would make him enough to 
pay the debt before it was due. A Chicago schoolteacher 
had no money; she was being paid in promissory "script." 
Utility Securities Company sold her the stock and accepted 
the script as payment. (When the receiver for Corporation 
Securities Company took over, it had in its assets $32,000 
of this script.) 

According to the Government, the efforts of Utility 
Securities Company and its salesmen were ably abetted by 
the performance of the stock market. The range of the 



158 GUILTY OR NOT GUILTY? 

common stock between April 4 and May 7 was between 
twenty-seven and twenty-eight dollars, and the units held 
steadily at around seventy dollars. But this, said the Gov- 
ernment's witnesses, was all on the surface. Here is what 
went on about which the sheared sheep knew nothing: In 
April sixty per cent of all the transactions on the Chicago 
Stock Exchange in the common stock were made by Utility 
Securities Company, Insull, Son & Company, Middle West 
Utilities Company or Insull Utility Investments. In May 
the same companies figured in ninety-nine per cent of all of 
the transactions in the stock on the exchange. Of the units 
traded in, seventy per cent of all the trades in April repre- 
sented purchases or sales by the Insull companies. In May 
that percentage rose to ninety-five per cent. 

The offering was a huge success. The issue was over- 
subscribed by 104,000 shares. On May 7, 1930, Corpora- 
tion Securities Company wrote a letter to Insull, Son fe 
Company, acknowledging receipt from Utility Securities 
Company of $31,875,000 payment in full of the 1,250,000 
shares of its common stock, and included a check payable 
to Insull, Son fe Company for $299,748.50. This repre- 
sented, so the letter said, one half of the "profit* ' on the 
transaction. The so-called profit had resulted from the sale 
of the stock by Corporation Securities Company to Insull, 
Son fe Company and Corporation Syndicates, Inc., at $25.00 
a share and the resale of it by those companies to Utility 
Securities Company at $25.50 a share. 

During the first half of 1930, the securities of Corpora- 
tion Securities Company and Insull Utility Investments 
held up well. This was due in part to general market con- 
ditions, but also, the Government claimed, to a continued 
rigging of the market by the defendants which created an 
illusion of activity in the issues and kept up their prices. 
Witnesses testified that in a volume of something over a 
million shares of Corporation Securities Company's stocks 
traded in on the Chicago Stock Exchange, transactions by 



THE SAMUEL INSULL CASE 159 

and for Utility Securities Company, Middle West Utilities 
Company and other Insull companies accounted for over 
seventy per cent. 

There was evidence, too, of what the Government wit- 
nesses called "wash" .or "matched" sales— transactions in the 
names of "dummies" in which Utility Securities Company 
bought and sold the same number of shares on the same day 
for the same price, and there was no actual change of own- 
ership. A broker employed by Insull and the Utility Secur- 
ities Company to buy and sell Corporation Securities 
Company's common stock and units, testified that in mid- 
summer, when the market commenced to slip, he called up 
one of the officers of Utility Securities Company and told 
him he did not see how the price could be held up unless 
they were prepared to "buy the company"; that he was 
likely to have a "bushel basket of the stuff" if he kept on 
buying. He said he was told to go ahead and buy— "there 
was nothing else to do"; "the price had to be maintained." 

The Government also produced evidence that the cash 
assets of Corporation Securities Company were used to fur- 
ther these manipulations. One of its exhibits was an ex- 
cerpt from the company's corporate minutes for September 
8, 1930. It recited that Utility Securities Company had sus- 
tained a loss of over $250,000 in protecting the market, and 
the syndicate which it had formed to sell the stock had sus- 
tained a loss of an equal amount because of the slump in 
the market, and that Corporation Securities Company was 
sharing these losses by contributing $250,000 to Utility 
Securities Company. Another item of evidence was a cor- 
porate resolution showing that Corporation Securities 
Company gave its note to Insull, Son & Company for 
$6,585,000 for some 90,000-odd shares of Insull Utility In- 
vestments stocks which Insull, Son & Company had accumu- 
lated in its efforts to support the market on those issues. 

For some time, before June of 1930, Samuel Insull had 
been negotiating with Cyrus Eaton, head of Continental 



l6o GUILTY OR NOT GUILTY? 

Shares, a large investment trust, for the purchase of a block 
of 160,000 shares of Commonwealth Edison Company, 
Peoples Gas Light & Coke Company and Public Service 
Company of Northern Illinois stock owned by the trust. 
The Government contended that Insull's interest was 
motivated by the consideration that possession by "out- 
siders" of such a large number of the shares of the under- 
lying operating companies was a threat to their continued 
Insull domination. 

The average market for the shares was about $300.00. 
Eaton started by asking $400.00 a share. Negotiation 
brought about an agreement for the sale of the stock at 
$350.00 a share, or $56,000,000: $48,000,000 payable in 
cash within three months and the balance in the common 
stock of Insull Utility Investments at $65.00 a share and 
the common stock of Corporation Securities Company at 
$25.00 a share. A deal was consummated on that basis on 
June 3, 1930. The Government made no claim of fraud or 
irregularity in this transaction, other than that Insull and 
his associates purchased this stock at an excessive price 
when they knew the corporation was "on dangerous 
ground" and did it solely for the selfish purpose of pro- 
tecting their own interests. 

The stock acquired from Eaton was allotted equally to 
Corporation Securities Company and Insull Utility Invest- 
ments, each assuming one half of the purchase obligation. 
To assist in financing Corporation Securities Company's 
part of the commitment, it issued and sold to Halsey, Stuart 
& Company $40,000,000 of "serial gold notes" at $95.50 per 
$100.00 of face value and thereby obtained $38,200,000. 
In December 1930 it bought back 10,000,000 of these notes 
at the same price. 

Despite its receipt of the proceeds of the sale of its serial 
gold notes and a continuing sale of its common stock, the 
bank loans of Corporation Securities Company steadily in- 
creased. 



THE SAMUEL INSULL CASE l6l 

The Government produced its expert accountants and 
chartists who testified that at the end of the year 1930 the 
common stock of Corporation Securities Company had a 
liquidating value, which they held was its actual worth, of 
only $1.06 a share. These witnesses arrived at this figure 
by adding to the company's outstanding liabilities (prin- 
cipally bank and other loans) the face value of the pre- 
ferred stock (138,000,000), deducting that total from the 
market value of its assets and dividing the remainder by the 
number of outstanding common shares. Despite this so- 
called liquidating or actual value, the stock, the Govern- 
ment contended, through the defendants' deceptive market 
manipulations was selling on the Chicago Stock Exchange 
for $15.00 a share. 

The evidence of the Government with respect to Corpo- 
ration Securities Company's annual report for the year 
ending December 31, 1930, was substantially the same as 
that which was directed to the 1929 report: The income 
and expense were misrepresented; the company showed its 
income as $9,685,000— the Government's witnesses said it 
should have been shown as $2,877,000— the difference being 
accounted for because stock dividends were taken into the 
income account at market price and treated as cash. The 
company showed its expenses as $1,678,000, and the Govern- 
ment said they were actually $3,422,000— the difference 
being principally made up of items aggregating $2,800,000 
representing losses on the sale of securities, which the Gov- 
ernment said was a charge against income but which the 
company charged to a capital account. The result, said the 
Government, was that the company instead of having a 
profit for the year of $6,800,000 had actually sustained a 
loss of $550,000. 

The so-called support of the market for the Corporation 
Securities Company's units and common stock continued 
through 1931. Government witnesses testified that during 
the year, of the 617,000 shares of Corporation Securities 



1 62 GUILTY OR NOT GUILTY? 

Company stocks traded in on the Chicago Stock Exchange, 
Utility Securities Company and Middle West Utilities 
Company participated in sixty-five per cent of them; also, 
that there were many wash or matched sales— specifically, 
that from April 1931 to January 1932 there were 33,800 
such transactions where there was no change of ownership 
in stock ostensibly bought and sold. 

Throughout 1931 Utility Securities Company continued 
to push the sales of Corporation Securities Company com- 
mon stock to individual investors. The stock was offered at 
progressively decreasing prices for cash or on a contract for 
a down payment and monthly installments. In addition to 
the representations which had accompanied previous offer- 
ings, a new form letter unqualifiedly recommended Corpo- 
ration Securities Company common stock as a "sound 
security." This, the Government claimed, was palpable 
fraud: Corporation Securities Company at this time was 
not a sound security; on the contrary, on the basis of 
liquidating value it was absolutely worthless. 

Early in 1931 there was a sequel to the Eaton purchase. 
As the Government contended, either because of an im- 
plied or actual threat that he was going to throw his large 
blocks of Insull Utility Investments and Corporation Secur- 
ities Company stock on the market, those companies 
bought for cash, at market prices, the securities which 
Eaton had taken as part payment in the June 3, 1930, 
transaction. The claim of the Government was that this 
purchase, in view of the company's financial condition, was 
an unjustified depletion of its meager cash reserves, made 
solely to serve the selfish objects of the defendants. 

On August 19, 193 1, $8,000,000 of the serial gold notes 
fell due. The Government called witnesses to testify from 
Corporation Securities Company's books and records that 
on August 17 it sold to Halsey, Stuart & Company $1,500,- 
000 of like notes of a later maturity, and on September 30, 
1931, sold an additional $535,000 to Chicago District Elec- 



THE SAMUEL INSULL CASE 163 

trie Generating Corporation— a corporation controlled by 
Insull operating companies. 6 To make up the difference, 
Insull, on his personal signature, borrowed $5,000,000 
from the National City Bank of New York and collateral- 
ized his note with securities which Corporation Securities 
Company lent him from its portfolio. 

Regular stock dividends were paid on Corporation Secur- 
ities Company common stock throughout 1931. The seven- 
ty-five-cent quarterly cash dividend on the optional pre- 
ferred stock was paid in regular course in February, May 
and August, but a question arose among the directors as to 
the propriety or wisdom of paying the last quarterly divi- 
dend in November. The Government produced evidence 
to show that Insull argued for payment on the ground that 
to omit the dividend would collapse the market on both the 
preferred and the common stock. His view prevailed and 
the dividend, which required a cash outlay of $558,000, was 
paid. On October 10, 1931, Corporation Securities Com- 
pany borrowed $500,000 from Insull Utility Investments 
on its demand note. The Government claimed this money 
was used to pay the November 1 dividend on Corporation 
Securities Company preferred. 

By December 31, 1931, Corporation Securities Company 
was in desperate straits. As the market tumbled all of the 
banks clamored for more collateral. The National City 
Bank of New York demanded that its loan be reduced, and 
Insull satisfied it briefly by giving it $1,000,000 which he 
succeeded in borrowing from General Electric Company. 
He signed the note to that company personally, and Corpo- 
ration Securities Company secured it with $1,250,000 of 
collateral from its portfolio. While it lasted the calls of the 
other banks for additional collateral were met. When some 
of the banks objected to the stocks and other securities of 
Insull Utility Investments and Corporation Securities Com- 



6 This left $24,033,000 of these notes outstanding, a condition which con- 
tinued until the receivership. 



164 GUILTY OR NOT GUILTY? 

pany, trades were made with Insull Utility Investments, 
Middle West Utilities Company and Insull, Son & Com- 
pany to get the stocks of Commonwealth Edison Company, 
Peoples Gas Light & Coke Company and Public Service 
Company of Northern Illinois. 

Day after day the market and liquidating value of the 
collateral sagged. Depreciation from book value at the end 
of the year was over $53,000,000. At the end of December, 
Corporation Securities Company common was selling on 
the market for $2.25 a share; its liquidating value was less 
than nothing. 

Early in 1932 the company issued its annual report for 
1931. The Government claimed it was fraudulent and de- 
ceptive. The company showed its income as $5,416,000. 
Most of that figure was made up of stock dividends taken 
into income at market value. The Government's witnesses 
testified that with these dividends eliminated and proper 
adjustments made for losses in the sale of securities— which 
the company had charged to a capital account— the com- 
pany's actual income was $1,333,000. The company 
claimed its expenses had been $2,847,000. The Govern- 
ment's witnesses said that, because of the company's failure 
to charge as expense the discount it had taken on the sale 
of the serial gold notes, the expenses were $583,000 more 
than that. The company had charged this item to a capital 
account. The net of it, said the Government, was that Cor- 
poration Securities Company had misrepresented its net 
income or year's profit as $2,569,000, whereas, in fact, it had 
sustained a loss of over $2,000,000. 

In 1932 the dividends on Middle West Utilities Com- 
pany, Insull Utility Investments and Corporation Secur- 
ities Company were passed. The effect was to all but run 
the stocks off the board. There was no market at all for 
the stocks of Corporation Securities Company. Insull Util- 
ity Investments common went to five dollars and eighty- 
seven cents a share; Middle West common to twenty-five 



THE SAMUEL INSULL CASE 165 

cents a share. Insull and his companies no longer sup- 
ported the market. There was nothing left anywhere to 
support it with. Utility Securities Company had no capi- 
tal with which to finance installment sales and practically 
ceased doing business. Middle West Utilities Company had 
ten million dollars of notes coming due June 1. There was 
no hope they could be paid or refinanced. 

On April 16 a "friendly creditor" of Middle West Util- 
ities Company filed a petition in the United States District 
Court for a receiver. Two days later similar petitions were 
filed against Insull Utility Investments and Corporation 
Securities Company. When the receivers for Corporation 
Securities Company took over its affairs they found no cash. 
What they did find were miscellaneous securities of an ap- 
proximate value of $50,000 and $32,000 of script which the 
Board of Education of Chicago had issued to its unpaid 
schoolteachers in lieu of cash. There was no equity in the 
stocks which Corporation Securities Company had up as 
collateral to its loans with the Chicago and New York banks. 
Their market value was far less than the amount of the 
notes which the banks held. 

The Government closed its case with proof of the spe- 
cific mailings charged in the different counts of the indict- 
ment. Each of the twenty-five persons named appeared and 
testified they had received the enclosures described— letters, 
offering circulars, annual reports, etc.— through the United 
States mails. 

On October 27, 1934, the Government "rested." It had 
made a strong prima-facie case— a stronger case, indeed, 
than many of the so-called mail-fraud cases to be found in 
the Federal reports in which convictions have been sus- 
tained. 

Separate motions on behalf of all the defendants except 
the Insulls to direct the jury to return a verdict of not 
guilty were made, argued at length and denied by the 



l66 GUILTY OR NOT GUILTY? 

Court. Statements by the various defense counsel of their 
expected proof followed, and Samuel Insull took the stand 
not only as a witness in his own defense but for everyone 
who had been indicted with him. 

The calling of Insull as the first witness was sound trial 
strategy. He was the principal defendant. It was he the jury 
wanted most to hear. It was his "industrial empire" or 
"house of cards" (depending on the point of view) which 
had collapsed and caught in its ruins the thousands of little 
people for whom the Government's prosecutors had mani- 
fested so much concern. If Insull could not satisfy the jury 
of his innocence all his codefendants were in jeopardy. 
Each had played his role— major or minor— in the Insull 
tragedy. If, on the other hand, Insull could convince the 
jury there had been no crooked scheme and no intent to 
defraud anyone, but that he, like so many others, had been 
a victim of the most devastating economic debacle in 
American history, all the other defendants were in the 
clear. 

The old man (he was seventy-five) took the witness 
stand, calm and assured. To the oath impressively pro- 
nounced by the clerk, "Do you solemnly swear . . . " he re- 
plied with a ringing "I do." He faced the jury and, under 
the skillful direct examination of his able counsel, told his 
story— one of the most remarkable ever heard in an Ameri- 
can courtroom. 

He was born in England in 1859. His father had been a 
dairyman and nonconformist preacher. Insull's education, 
while limited, had been sound; he had attended a good pri- 
vate school and had been well grounded in the fundamen- 
tals. He became, and throughout his life continued to be, 
an avid and purposeful reader. At fourteen he had gone 
to work as a junior clerk for a firm of London auctioneers 
and real-estate agents. His starting wage was five shillings 
a week— the American equivalent of one dollar and twenty- 
five cents. In four years he rose to the position of office 



THE SAMUEL INSULL CASE 167 

manager. Under the tutelage of the head clerk, he had 
learned shorthand and how to run a typewriter. 

When Insull was sixten he obtained an extra job— in the 
evening— as stenographer and secretary to the publisher of 
a magazine devoted largely to financial and political news 
and comment. When he was eighteen he obtained a posi- 
tion as secretary to a Colonel Gourard. This was the turn- 
ing point in Insult's career. Gourard was the London rep- 
resentative of the great American inventor, Thomas A. 
Edison. This new position brought Insull into direct con- 
tact with the leading financiers, industrialists and states- 
men of Britain. A more important contact, however, was a 
man named Edward H. Johnson, one of Edison's principal 
technical assistants, who visited London on some of the 
inventor's business. Impressed with Insult's intelligence, 
ability and industry, Johnson suggested him to Edison as 
a private secretary. 

On February 28, 1881, Insull, aged twenty-one, became 
private secretary to Thomas A. Edison. He served Edison 
in that and other capacities for eleven years. At the end of 
the period he was Edison's most trusted adviser, held Edi- 
son's general power of attorney and, at his own discretion, 
handled all of the great man's financial affairs. 

Edison's cash income was always uncertain and irregular; 
his expenditures in new ventures were tremendous. Insull, 
with amazing perspicacity, arranged to take most of his 
compensation for services in small interests in Edison's 
various enterprises. One of the enterprises in which Edison 
was interested was a machine works at Schenectady, New 
York, operated under the name of Edison General Electric 
Company. The company was not doing well. Its produc- 
tion techniques were bad and its output slow and meager. 
It was losing money. Edison requested Insull to represent 
him and, so far as it was possible considering other interests 
in the company, to take charge. His commission to Insull, 
which the latter told with evident pride, strikes a reader 



l68 GUILTY OR NOT GUILTY? 

of the record as indicative of Insull's guiding business prin- 
ciple throughout his long and colorful life. Edison's part- 
ing word to him, testified Insull, was: "Now, you go back 
up there and run the institution. And whatever you do, 
Sammy . . . make either a brilliant success of it or a brilliant 
failure. Just do something." Insull, in an aside to the 
jury, said, " 'Sammy'— that was my nickname with Edison." 

This, according to Insull, was his "first real independent 
opportunity in life." He made the most of it, which was a 
great deal. When he took over the job, the plant employed 
200 men; when he left a few years later, there were 6,000 on 
its payroll. Insull was vice-president in charge of manufac- 
turing and sales. The company had prospered and Insull's 
salary—commensurate with his accomplishments— was $36,- 
000 a year. 

Through various consolidations Edison General Electric 
Company became the General Electric Company. Insull's 
place in the new setup was not to his liking. He had long 
since turned his face westward. He had formed some strong 
friendships with prominent and influential Chicago busi- 
nessmen and, in 1892, moved to Chicago to become presi- 
dent of Chicago Edison Company. Insull's confidence in 
the development of a demand for electric power in Chicago 
and the Middle West, and in himself, was evidenced by 
his willingness to accept as president a salary of $12,000 a 
year, and by his investing all of his earnings, together with 
$250,000 he borrowed from Marshall Field, in the stock of 
the budding company. 

Chicago Edison Company was an amalgamation of nu- 
merous small electricity-generating plants and served a 
relatively small segment of the city. There were many 
other disassociated generating units serving restricted terri- 
tories. One of these— Commonwealth Electric Company- 
was at least as large as Chicago Edison Company. Insull 
envisioned the consolidation of all these companies into 
one electricity generating and distributing company which 
should serve all Chicago. 



THE SAMUEL INSULL CASE 169 

One by one the plants were acquired, until in 1907 they 
were all encompassed in Commonwealth Edison Company, 
to which the City of Chicago granted a forty-year exclusive 
franchise to distribute electric power within the present or 
future limits of the municipality. All of these acquisitions 
were financed through the sale of bonds secured by an 
open-end mortgage on the properties of Chicago Edison 
Company or Commonwealth Edison Company. Insull de- 
clared with pride that no investor in any of these, or any 
later securities issued by Commonwealth Edison Company 
—and these ran into the hundreds of millions— had ever 
lost a dollar. 

Commencing in the late nineties, Insull began acquiring 
small electric properties outside Chicago— in Cook, Lake, 
DuPage, Kane and Will counties. In 1902 these were 
merged into Public Service Company of Northern Illinois. 
Thereafter, other independent electricity generating and 
distributing units were purchased until, in 1934, the com- 
pany had expanded to serve a territory of over 6,000 square 
miles in the northern half of Illinois. As was the case with 
Commonwealth Edison Company, these properties were 
acquired and developed through issues of bonds and stocks 
on which there had never been a default in either principal 
or interest. 

To serve Commonwealth Edison Company, Public Serv- 
ice Company of Northern Illinois and other electric- 
utility properties in which he had become interested, In- 
sull, again with money raised by bond issues or other secur- 
ities, constructed huge generating plants— larger than any 
hitherto built in the world— to serve through long trans- 
mission lines the various distributing stations of these com- 
panies. This, said Insull, meant lower production costs, 
lower rates to consumers, more efficient service and in- 
creased profits. He told of the much-discussed and general- 
ly abused "power pool," an interrelation of these gigantic 
generating plants designed to provide an adequate, depend- 
able and uninterrupted flow of electric current to distrib- 



l^O GUILTY OR NOT GUILTY? 

uting stations anywhere in Chicago and northern and 
central Illinois. He took credit and accepted full respon- 
sibility for the idea and its fulfillment and declared that, 
"It has contributed more to the wealth of this part of the 
Mississippi Valley— again and again— than all of the losses 
ever made in any of the securities I have issued which are 
not good today." 

Insull told how he had become associated with Peoples 
Gas Light & Coke Company. While he personally had but 
a small financial interest in the company, he was induced in 
1913 by some of his friends who were more heavily inter- 
ested to become the chairman of its board of directors. The 
pre-emption of practically all of his time for the perform- 
ance of his duties as chairman of the Illinois State Council 
of Defense prevented any active participation in its man- 
agement during the period of World War I. The armistice 
found the affairs of the company in a desperate plight— to 
use the language of the witness, it was "within about two 
jumps of the sheriff." Bills for supplies were long overdue. 
It was in default for more than a million dollars in real 
and personal-property taxes. There was no money for 
needed rehabilitation and extensions of service. The com- 
pany had no credit. Receivership was seriously contem- 
plated. A separate By-Products Corporation, for which he 
was able to raise the money, was organized, and gas was 
manufactured and supplied to the company much more 
cheaply than had been the case before. By an aggregate of 
small loans— many of them from interested individuals— the 
pressing obligations were met and the company gradually 
worked its way back to solvency. 

Again with pride the old man testified that the stock 
then rose from a low of $20.00 to over $400.00 a share at the 
crest of the big bull market, and while the company was un- 
der his management no creditor or investor in its securities 
had lost a dollar of principal or promised interest. Nor, 
he added, for that matter had there been, prior to the fatal 



THE SAMUEL INSULL CASE 171 

depression year of 1932, a default in either principal or in- 
terest in Middle West Utilities Company, Insull Utility 
Investments, Midland United Company or any of the hun- 
dreds of millions of securities with which his name had 
been associated. 

Insull told of the education and preparation of his only 
son, Samuel, Jr., to enter into and carry on after him the 
great enterprises which he had created or developed. The 
younger Insull had taken the Sheffield scientific course at 
Yale and had graduated with degrees of Bachelor of Science 
and Mechanical Engineering. He had spent better than a 
year abroad studying the equipment and operations of 
utility properties in Britain and western Europe. After his 
return to the United States in 1920 he served an appren- 
ticeship of "general drudgery" in many different capacities 
until he had become thoroughly familiar with the engineer- 
ing and operating departments of Commonwealth Edison 
Company, Peoples Gas Light & Coke Company and Public 
Service Company of Northern Illinois. "In short," con- 
cluded the elder Insull, "if I might speak as an expert 
rather than as a father, he is, to my mind, one of the most 
remarkably informed young men of his age engaged in the 
utility business today." It was not until early 1929 that 
Insull, Jr., was brought into close contact with the inter- 
related organizational and financial problems of the Insull 
properties. 

Insull revealed that in 1926 he had declined an offered 
appointment by Prime Minister Stanley Baldwin of Eng- 
land to become chairman of a royal commission to study 
and advise on the development of electric power in Great 
Britain. He was, he said, sorely tempted. He was sixty- 
seven years of age. He could have sold out, rich, and re- 
turned to his native land and to a position of great dignity 
and comparative ease. He had not done it. He was an 
American citizen, naturalized in 1896, and felt a sense of 
obligation to the city which had given him his opportun- 



1^2 GUILTY OR NOT GUILTY? 

ity, to his stockholders who had trusted him and to the men 
around him who through forty years of struggle had 
brought his enterprises to their present fame. 

Insull told of his knowledge of and association with the 
other defendants. He made no attempt to evade or shift 
responsibility. On the contrary, even when actions had 
been taken without his particular knowledge, he declared 
they had been properly taken to carry out his previously 
outlined plans or general policies. In a reference to two 
or three of the defendants who had been connected by the 
Government's proof only as secretaries or amanuenses, he 
declared, with some emotion, "Gentlemen, if I feel some 
embarrassment sitting here in this chair, I feel it infinitely 
greater for these young men who had no responsibility in 
this situation, and for whose welfare I have almost as much 
concern as for the defendant who bears my name." 

His association with the defendant Harold L. Stuart, he 
testified, dated back to 1907, when Halsey, Stuart & Com- 
pany had undertaken the sale of a large issue of Common- 
wealth Edison Company securities which, because of their 
then unseasoned character, other Chicago banking institu- 
tions had declined to handle. Since that time, he had 
placed most of his financing— running in total to over two 
billion dollars— with Halsey, Stuart & Company. He stated 
emphatically that rumors that he had ever been financially 
interested in this company were baseless; he had never 
owned or controlled a dollar's worth of its stock. 

Insull told of the organization of Insull Utility Invest- 
ments, Inc. As an incident to the big bull market of 1926— 
1929, there was a perfect rash of new investment trusts or- 
ganized for the declared purpose of acquiring and holding 
the common stocks of Class A operating companies, and 
the thousands of shares of Commonwealth Edison Com- 
pany, Peoples Gas Light & Coke Company, Public Service 
Company of Northern Illinois and Middle West Utilities 
Company acquired and being acquired by these investment 



THE SAMUEL INSULL CASE 173 

trusts offered a serious threat to their present Insull con- 
trol. To meet that threat, so testified Insull, he organized 
Insull Utility Investments, Inc., as an "investment com- 
pany* ' which he and representatives of Halsey, Stuart & 
Company would control. The company, through its own 
issues of securities, would buy and hold for income and 
appreciation sufficient of the stocks and other securities of 
the so-called operating companies to insure continued 
Insull domination. 

He stressed that in the exchange of the stocks of Com- 
monwealth Edison Company, Peoples Gas Light & Coke 
Company, Public Service Company of Northern Illinois 
and Middle West Utilities Company for Insull Utility In- 
vestments stocks he had not received a dollar of cash. He 
further declared that when Insull Utility Investments com- 
mon stock, in its first open sales after listing, sold on the 
Chicago Stock Exchange for thirty dollars a share he did 
nothing to boost the price but, on the contrary, stated pub- 
licly that it was too high. This, he said, had the opposite 
effect to what he had intended— it was taken by the specula- 
tion-mad public as an indication that Insull, for ulterior 
purposes, was belittling the real value of the stock. In the 
general market boom the stock went to $147.00, but in 
October, when it was exchanged for Corporation Securities 
Company common, had eased off to $100.00. 

Insull told of the option he had taken at the organization 
of Insull Utility Investments to buy 200,000 of its common 
shares at fifteen dollars a share. He exercised the option in 
December of 1929 and sold part of the shares to Corpora- 
tion Securities Company of Chicago at a profit. The market 
price per share was then sixty-five dollars; he sold it to 
Corporation Securities Company at forty dollars. The 
effect, he said, was to divide his market profit with the com- 
pany. The balance, which was the bulk of the purchase 
option, he held "to the end." 

He testified to the accumulation of Middle West Utilities 



174 GUILTY OR NOT GUILTY? 

Company stocks during the summer of 1929 and the pur- 
pose of it. Again it was a question of insuring continuation 
of control. The stock was discussed and considered as suit- 
able for the portfolio of a new investment company, should 
it be decided later to form one. It was acquired as quietly 
as possible so as not to run up the price. From the start it 
was understood that the purchases were for the joint ac- 
count of Halsey, Stuart fe Company and Insull, and, if a 
new investment company was not formed, each would take 
and pay for half of the stock. Furthermore, testified Insull, 
the stock was bought because of the firm confidence he, his 
brother, his son and Halsey, Stuart & Company all had in 
its present and potential value— a confidence he still re- 
tained. 

There was nothing sinister, declared the witness, in the 
reorganization of Middle West Utilities Company. Its fixed 
interest charges were high— above the current market. The 
prior-lien preferred stock, which was callable, could be 
refunded at much lower rates of interest. The division of 
the stock— ten shares of new for one of old— was in line with 
prevailing corporate practice to split high-priced shares and 
bring them down to a point where they would be attrac- 
tive to more investors. Stock, rather than cash, dividends 
were not unusual; the cash earnings of the company were 
thus conserved for continuously required expansion, and 
those earnings "plowed back" into the business represented 
increased equity value which could and should be evi- 
denced by new dividend stock. 

Insull told of the formation of Corporation Securities 
Company of Chicago. The purpose of putting a majority 
of the shares in a voting trust was to "insure control of the 
company resting with the people who formed it." He re- 
ceived stock for the securities he turned in— not a cent of 
cash. The Middle West Utilities Company stock which he 
and Stuart had acquired was turned over to the new com- 
pany at cost, notwithstanding the fact that the market price 



THE SAMUEL INSULL CASE 175 

had almost doubled. There was no ' 'profit* ' either to him- 
self or to Stuart. 

As to the much-discussed offering circular of the "units," 
Insull testified that while he had no hand in its preparation 
he had approved it, and every statement in it was correct. 
The statement of its assets had been based on the condition 
after completion of the new financing which was strictly in 
accordance with usual market practice. 

The witness declared that "the tremendous and unex- 
pected break in the stock market" within five days after the 
offering was not believed by him, any more than by John D. 
Rockefeller and President Hoover, to presage a general 
business collapse. On November 24, 1929, he had attended 
a conference of the nation's leading business executives at 
the White House where the view was expressed that the 
fall in stock prices was merely a temporary market condi- 
tion, and the President urged on all those in attendance 
that they should "go home and conduct their businesses as 
usual, and proceed with their expansion plans just as if 
nothing had happened." 

Insull testified that he knew all about the first annual 
report. While he had not prepared it, he had gone over 
it carefully. He had approved the charging of organization 
expense to paid-in surplus rather than against income be- 
cause that in his opinion was in accordance with sound 
accounting procedure. The treatment of stock dividends 
as income was "supported by a very large number of ac- 
counting people, ... by the legislative branch of the gov- 
ernment, and . . . can be absolutely justified. . . . 

"Providing the method of charging [the stock dividends] 
is clearly stated," said Insull, "I can see no reason why it 
should not be charged at the market price if you want to 
charge it that way or at the price [shown on the books] of 
the issuing company if you want to charge it that way." He 
added that the reorganization of Middle West Utilities 
Company contemplated from the beginning that dividends 



176 GUILTY OR NOT GUILTY? 

on the common stock should be paid in additional common 
stock. 

There was never at any time, said Insull, any criticism by 
bankers who were lending money to Corporation Securities 
Company, or by insurance companies who were investing 
in the securities of that company, of the accounting meth- 
ods that were used in stating the financial condition of the 
company. There were never, at any time, any representa- 
tions made that dividends on the common stock of Corpora- 
tion Securities Company would be paid otherwise than in 
additional common stock; no other plan was ever con- 
sidered. 

The reorganization of Middle West Utilities Company, 
declared Insull, was a gigantic undertaking— the largest in 
his experience. It was necessary and in accordance with 
current practice to form an underwriting group or syn- 
dicate. The one formed in the case of Middle West Utili- 
ties Company was international in scope: There were 
participants in Canada, Great Britain and Europe. It was 
contemplated the syndicate participants would make a 
profit. The compensation they actually received was small 
in proportion to the risks assumed and the vast amount of 
money involved. 

When the issue of 1,250,000 shares of Corporation Se- 
curities Company's common stock was put out in March of 
*930, business conditions, said Insull, were reasonably 
good. The market had made a strong recovery. Electric- 
power consumption (one of the recognized indices of busi- 
ness conditions) was steady. The predictions of bankers, 
investment houses and economists were "buoyant." Insull 
shared these beliefs. Every statement in the offering cir- 
cular, he declared, was true. He had never, he said, author- 
ized anyone in connection with the sale of the stock to say 
that Corporation Securities Company's portfolio contained 
"the jewels of the Insull empire" or that the stock was the 
best buy on the market. 



THE SAMUEL INSULL CASE 177 

He told of the Eaton purchase. He admitted the pur- 
pose which the Government had ascribed to it. Such a 
quantity of stock in outside hands was "a menace to the 
Insull management. " The purchase price was admittedly 
high, but at the time he thought it was justified. Events 
proved he was mistaken. Others made the same mistake 
and suffered for it— none more than he had. "Hindsight is 
always better than foresight/ ' 

The $40,000,000 serial-gold-notes issue, Insull testified, 
was arranged while he was in Europe, but he approved it. 

Insull told of market conditions in late 1930 and early 
1931— how the market slumped in December and the de- 
preciation in the Corporation Securities Company's port- 
folio exceeded $45,000,000; how it rallied in the first forty- 
one days of the new year and there was an appreciation in 
the same portfolio of $86,000,000. Everybody, declared 
the witness, then thought the depression had run its course. 

It was recognized as customary, said the witness, to "sup- 
port the market* ' on new issues of securities. After the ini- 
tial offerings he and his associates felt the market prices did 
not reflect the intrinsic value of the stocks and that "a large 
number of people [who had bought the stock at higher 
prices] might be seriously affected ... by the market 
drop . . . and it was necessary to help them." He added 
that the demoralizing effect of a continued drop in the in- 
vestment stocks, which reflected a relative drop in the 
stocks of the operating companies, meant serious interfer- 
ence with his ability and that of his associates to finance 
either the investment companies or the operating com- 
panies. They, therefore, gave protection to the market— 
"stood between it and its extreme demoralization.' ' 

There was nothing unusual in this, said Insull. Private 
interests responsible for large investments do it. The 
United States government did it on government bonds. 
As to the Government's evidence of what it called "wash" 
or "matched" sales, or transactions in stocks where there 



1^8 GUILTY OR NOT GUILTY? 

had been no actual change of ownership, he knew nothing 
about them; he had heard about them for the first time in 
the courtroom. As to trades that had been made in the 
names of nominees or "dummies," Insull declared that was 
a common practice "then and now" on both the Chicago 
and New York stock exchanges, indulged in for perfectly 
legitimate reasons, one of which was to prevent the circu- 
lation of rumors that the stock was either being system- 
atically boosted or raided by some organized interest. 

In a similar effort to try, against the downward trend, to 
sustain the prices of Corporation Securities Company 
stocks, Insull said he approved the payment of the No- 
vember 1 cash dividend on the preferred. To have passed 
the dividend would have further demoralized the market. 
The amounts received by any of the defendants who owned 
preferred were incidental and infinitesimal. 

By the winter of 1931 the financial skies, admitted Insull, 
were pretty black. There were increasing evidences that 
the panic was worldwide. Economic conditions in all the 
European countries were bad. Trouble was brewing in 
Germany. The drain on the Bank of England for gold had 
forced Britain to go off the gold standard— an event that 
shook the business world to its foundations. Insull had 
borrowed on his personal credit from the National City 
Bank of New York five million dollars which he turned in 
to the treasury of Corporation Securities Company. In De- 
cember he had borrowed another million from General 
Electric Company, which was used to reduce the National 
City Bank loan. 

By mid-December the company had no further collateral 
with which to continue margining its loans. An arrange- 
ment, called a "stand-still agreement," was worked out with 
most of the banks, by which they agreed to take no action 
on their claims before June 1. This, in the hope that a 
rise in the market after the first of the year (such as had 
occurred in 1930 and 1931) would give the collateral al- 



THE SAMUEL INSULL CASE 179 

ready pledged a requisite security value. The turn of the 
year brought no relief; on the contrary, stocks plunged to 
lower depths. "Blue chips" such as General Electric, Gen- 
eral Motors and United States Steel sold for one tenth of 
their 1929 highs. 

Insull said he continued the hopeless struggle until April 
of 1932. He had exhausted his resources and his credit. 
First, Middle West Utilities Company and then Corpora- 
tion Securities Company and Insull Utility Investments 
went into receivership. He avoided personal bankruptcy 
by turning over to his creditors everything he had— a rem- 
nant of securities, $1,000,000 life insurance (against which 
$500,000 had been borrowed) and his 4,000-acre Lake 
County estate. Mrs. Insull had signed away her dower 
rights in the latter. 

Contrary to his own wish Insull had been named as one 
of the three receivers for Middle West Utilities Company. 
Things ran along until June, when he resigned as chair- 
man of the board of the three operating companies and as 
joint receiver of Middle West Utilities Company. He was 
tired, sick and discouraged. On June 14, 1932, with no 
protest from any quarter, he sailed from Quebec for Eu- 
rope. 

Insull testified the first information he had that there 
were any investigations of his conduct afoot was in Septem- 
ber, when he read of it in a Paris edition of a Chicago 
paper. Later he had received a telegram from John Swan- 
son, state's attorney of Cook County, asking him to return 
to Chicago. He had ignored it, he said, because of a con- 
viction that Swanson was trying to make capital out of his 
misfortunes, and he didn't propose to be crucified in a 
political campaign. For this same reason he left Paris, 
going first to Turin, Italy, and then to Athens. 

There was no secrecy, he testified, about any of it. He 
and his wife registered and traveled under their own 
names. When he arrived in Greece he had less than four 



l8o GUILTY OR NOT GUILTY? 

thousand dollars. While there he learned he had been 
indicted by a grand jury in Cook County. The Greek 
authorities refused to extradite him. There was never an 
attempt made to extradite under the Federal indictment 
for the crime for which he was now being tried. He had 
repeatedly, he said, declared his intention of returning to 
Chicago and facing his accusers after the 1932 elections 
were over. At the present time he had no property of any 
kind and no income; he was dependent entirely on his son 
for food and shelter. He had paid his counsel no fees. His 
defense had been provided by friends whose names he did 
not even know. 

An effective cross-examination of Insull would have 
taxed the resources of a much cleverer man than Special 
Assistant Attorney General Salter. As with many cross- 
examinations of intelligent and resourceful witnesses, the 
cross-examination of Insull, when finished, left a doubt as 
to whether it should have been undertaken at all. 

Salter inquired as to the annual salaries Insull received 
from the various companies he served. They aggregated 
nearly $500,000. Insull readily admitted the figures and 
added, "Yes, and I was worth every penny of it; the laborer 
is worthy of his hire." He added, however, that he had con- 
tributed a large part of it to the Chicago Civic Opera Asso- 
ciation and other charitable and cultural enterprises in 
which he was interested. The alleged profit he and Stuart 
got out of the issuance to themselves of two million shares 
of Corporation Securities Company of Chicago stock was a 
"paper profit ,, ; they had held it to the end and realized noth- 
ing. So, also, with his Insull Utility Investments and other 
stocks. They represented the reward of a lifetime of hard 
work. He had retained them all. Now they were all worth- 
less. 

He was questioned about specific statements in the of- 
fering circulars and annual reports. He reiterated his 
direct testimony. Every statement in them was correct. No 
one but a jaundiced-eyed prosecutor could read into the 



THE SAMUEL INSULL CASE l8l 

statement that two million common shares of Corporation 
Securities Company owned by the directors had been 
placed in a voting trust the implication that they had 
paid $50,000,000 for them. It had not been necessary to 
fasten a stock dividend on the common stock in order to 
sell it. The condition of the market and public confidence 
in any Insull enterprise were such that the stock could have 
been sold without any promise of dividends. For similar 
reasons, he could have sold the stocks of Corporation Secur- 
ities Company had it been represented that the entire port- 
folio was to consist of Middle West Utilities Company se- 
curities. He admitted he had put on stock-selling campaigns 
among his employees— "even the coal passers participated." 
But it was all voluntary, said Insull, because they had made 
money out of their previous purchases of Insull stocks; they 
did it because they wanted to and because they had con- 
fidence in the new issues and in him. 

Insull had made a remarkable witness. John Healy, at- 
torney for one of the codefendants, a former state's attorney 
and a lawyer of sincerity and outstanding ability, summed 
up the general impression when he declared in his argu- 
ment: "I have sat in the prosecutor's chair, and I have sat 
on the defendant's side of the table, and in my almost fifty 
years of experience I have never seen a more remarkable 
exhibition on the witness stand than you gentlemen wit- 
nessed when Samuel Insull was upon that stand. This old 
man, now on the rim of the dying day, with the courage of 
a lion, fought for the only thing he has left— his honor and 
his good name. And I say to you, gentlemen of the jury, 
that he could not have given that exhibition if there had 
not been in his heart a consciousness of innocence. No 
crook, no scoundrel could have withstood the withering 
cross-examination of my friend Salter if there had been any 
falsehood in his make-up." 

The defense's evidence which followed Insull's testimony 
was anticlimactic. All the defendants, except three or four 
that Insull's testimony had completely relieved of all re- 



l82 GUILTY OR NOT GUILTY? 

sponsibility for the acts charged by the Government, took 
the stand in their own defense. None of them contra- 
dicted Insull in any respect. Some of them, notably Harold 
L. Stuart and Clarence T. MacNeille, corroborated him 
completely. Others sought to minimize their connections 
with the acts charged or their responsibility for them. 

Salter's cross-examination of MacNeille served to high- 
light the controversy between the Government and the 
defense as to proper accounting methods in the treatment 
of organization expense, stock dividends, losses on sales of 
securities and portfolio depreciation. The net result was 
not damaging to the defense. What it had sought to get 
over to the jury all through the trial was that there were 
alternative theories for the treatment of these items, and 
the defendants could not be validly charged with crime 
because they had selected those which made the best-look- 
ing balance sheet. A number of certified public account- 
ants—partners and employees of well-regarded firms— sup- 
ported the defendants in their claims that, so long as all 
the facts were disclosed, there was nothing reprehensible 
in the way in which the particular charges had been made. 

Samuel Insull, Jr., was one of the last witnesses. He was 
thirty-four years old, the only son of Samuel Insull. He was 
a widower (his wife had died the previous March) and had 
one child, a boy three years of age. His counsel, appre- 
hending the prosecution, showed what he had received 
from the various Insull companies as salary. He had never 
received any payment for services rendered Corporation 
Securities Company or Insull Utility Investments. The 
total he had drawn from all other companies in 1929 was 
$67,000. That amount, he said, was fixed in contemplation 
of the demands made on him for civic and charitable con- 
tributions, which consumed more than half of it. Inci- 
dentally, the jury was told that Grace of the Bethlehem 
Steel Company received an annual salary of over $1,500,- 
000, and Avery of Montgomery, Ward over $400,000. 



THE SAMUEL INSULL CASE l8g 

Young Insull told of the organization and purpose of 
Insull, Son & Company. It was a complement to an English 
company of the same name, engaged in the selling of In- 
sull securities abroad. The American company owned all 
the stock of the English company, and the American com- 
pany, in turn, was wholly owned by Insull Utility Invest- 
ments. 

He paralleled his father's testimony as to the various of- 
fering circulars and annual reports— they were all factually 
accurate. The market during the unprecedented situation 
following the big break in 1929 had to be supported; other- 
wise "it would have gone through the floor." Corporation 
Securities Company had not been organized as a "dumping 
ground" for Middle West securities. Middle West Util- 
ities Company was a great property; its possibilities for 
development and appreciation were unlimited. He thought 
so before the crash in 1929; he still thought so. He had 
profited by participation in the Middle West Utilities syn- 
dicate in 1929, but he had lost over $16,000 by his partici- 
pation in a similar syndicate which underwrote an Insull 
Utility Investments offering in 1930, and, incidentally, he 
had paid this loss in cash. The failure of Corporation Secur- 
ities Company and Insull Utility Investments had been 
due solely to the market collapse. 

He presented a chart to show by well-known and recog- 
nized formulas for determining worth by a multiple of net 
or gross earnings that Commonwealth Edison Company, 
Peoples Gas Light & Coke Company and Public Service 
Company of Northern Illinois (which were the under- 
pinning of Corporation Securities Company and Insull 
Utility Investments) were intrinsically worth between 
$250.00 and $300.00 a share in 1931; by the same calcula- 
tions Middle West Utilities Company common was worth 
$20.00 a share. Could their portfolios have been given 
these values in 1931 and 1932, both Corporation Securities 
Company and Insull Utility Investments would have been 



184 GUILTY OR NOT GUILTY? 

solvent. He added, for illustrative emphasis, that the mar- 
ket value of the combined Chicago Loop banks in 1929 was 
$1,250,000,000; in October of 1931 it was around $300,- 
000,000. Yet all of these banks, he said, save one, weathered 
the storm and were operating and thriving today. 

Salter's cross-examination of the junior Insull, while 
vigorous, searching and at times sarcastic, did not weaken 
the direct testimony. Like his father, the son made an 
excellent witness. 

Some of the defendants supported their clefense with 
character witnesses— men who had known them in their 
business, civic and charitable activities, and who testified 
their reputations for honesty, integrity and as law-abiding 
citizens were good. One such witness, so testifying for the 
defendant Harold L. Stuart, was George Cardinal Munde- 
lein, who added that His Holiness the Pope had awarded 
Stuart the highest decoration the Catholic Church could 
bestow on a layman. George Craig Stuart, Bishop of the 
Episcopal Church for the Diocese of Chicago, Robert May- 
nard Hutchins, chancellor of the University of Chicago, 
and Joel D. Hunter, head of the United Charities of Chi- 
cago, testified in behalf of young Insull. Newspaper pub- 
lishers, civic leaders, lawyers and prominent businessmen 
appeared for various other defendants. Significantly, Sam- 
uel Insull called no such witnesses— a circumstance which 
won for him one of the rare plaudits bestowed on any of the 
defendants by the Government prosecutors. 

On November 16, 1932, the defendants "rested." There 
was a brief and, so far as it added anything to what had 
gone before, an unimportant rebuttal, and the Government 
closed. Renewed motions for directed verdicts were argued 
and overruled, and on the nineteenth the closing argu- 
ments were begun. 

Harness made the opening summation for the Govern- 
ment. It was a carefully prepared, well-arranged r£sum£ 



THE SAMUEL INSULL CASE 185 

of the Government's evidence, clearly and effectively 
stated. Counsel for the several defendants followed. Judge 
Thompson, in behalf of the two Insulls, completed the 
summing up for the defense. His argument, which held 
closely to the record, faced courageously every damaging 
fact in the Government's case. Every charge and every item 
of proof offered to sustain it he contended had been met and 
answered by the testimony of Samuel Insull and the cor- 
robation supplied by other witnesses and documents. 

Thompson reviewed Insull's career— from his humble 
beginnings in London as an auctioneer's clerk at a wage of 
one dollar and twenty-five cents a week to head of the 
greatest aggregation of public-service ultilities in the 
world— an accomplishment not the result of luck or in- 
trigue, but of forty years of hard work, organizing genius 
and conscientious direction. He reminded the jurors of 
Insull's many civic and charitable contributions— his lead- 
ership of the Illinois State Council of Defense during 
World War I, his gifts of time and money to the Chicago 
Civic Opera, the Century of Progress, to hospitals and 
charities. "Why," declared Thompson, "during the forty 
years that intervened between the World's Columbian 
Exposition and the Century of Progress, Samuel Insull was 
as much a part of Chicago as Lake Michigan I" 

A crime, declared the advocate, was made up of two 
elements: the act, and the intent with which the act was 
done. Homicide with intent to kill was murder; homicide 
through accident or in self-defense was not a crime. So 
here, people had invested their money— large sums of it— 
in an enterprise put forward by Insull and his associates. 
But had the whole undertaking been organized and pro- 
jected as a scheme to defraud? That was the question be- 
fore them. 

The facts— the positives and the negatives— were mar- 
shaled to give the jurors the answer. Thompson posed and 
answered a series of vital questions: Had the twelve men 



l86 GUILTY OR NOT GUILTY? 

ever heard of a scheme to defraud where the central idea 
of it had not been to get somebody's money and put it in 
the pockets of the schemers? Here there was no evidence 
that any of the defendants personally received or profited 
to the extent -of a dollar. Had they ever heard of such a 
scheme where the schemers had not tried in every way to 
cover up their tracks? Here there was no such attempt. 

Everything they did, continued Thompson, was spread 
on the record. Every book, every letter, every scrap of pa- 
per had been made available to the Government's agents 
in their long, two-year investigation. Why, if this had been 
a scheme to defraud, did not Insull and Stuart and the 
other defendants who served Corporation Securities Com- 
pany milk its treasury for fat salaries? None of them had 
ever drawn a dollar. Why, if this had been a crooked 
scheme, had not Insull and Stuart unloaded their own 
holdings of Corporation Securities Company stock when it 
was riding high in the market? They did not unload it; 
they held it through to the end. Why did many of these 
other defendants, the close associates of Insull and Stuart, 
invest their own money in the units and common stock of 
Corporation Securities Company at the offering prices? 

Thompson said there could be but one answer: With the 
full knowledge they (the defendants) had of all the facts, 
they believed they were good investments. If Insull and 
Stuart were solely interested in making money, why, in 
October, after they had a profit of over $10,000,000 on the 
Middle West Utilities Company stock they had bought the 
previous summer, had they not abandoned any idea of a 
new investment company, unloaded the stock and divided 
the profit? The answer had been given by both Insull and 
Stuart: The idea of Corporation Securities Company was 
not primarily to make money for them, but to insure their 
continued operating control of Middle West Utilities and 
the other Insull companies. 

Through forty years, declared Judge Thompson, Insull 



THE SAMUEL INSULL CASE 187 

had given everything of the genius, ability and industry he 
possessed to the building up of these great Chicago and 
Middle West properties. Hundreds of millions of dollars 
had gone into the enterprises. Thousands of people had 
invested their money in them. Management of the busi- 
nesses had involved thousands of transactions and required 
the effort and co-operation of thousands of employees. And 
yet, in all that time, there had never been a default on a 
single obligation; never the slightest suggestion of irregu- 
larity or wrongdoing. Do crooks build up that sort of rec- 
ord, asked Thompson? Do the masters of such enterprises, 
if they have chicanery and trickery in their minds and 
hearts, associate with themselves the Fields, the Byron 
Smiths and the Louis Fergusons, who stand for everything 
that is honorable and worthy in the business life of Chi- 
cago? 

Why had the Government brought this charge against 
Insull? Thompson's answer was that the very greatness of 
the man was responsible. Insull's name had become a 
symbol— the symbol of an era, a tragic era in which people 
had gone speculation wild and money mad, in which mil- 
lions of dollars had been risked and lost. Something, fig- 
ured the Government, had to be wrong somewhere. Of the 
many failures in the depression, this one of Insull's was the 
worst because it was the biggest. There must be someone 
to blame. So the Government had indicted Insull and six- 
teen of his associates and, for the past two years, had de- 
voted all the tremendous resources of the Department of 
Justice to an effort to discover evidence of a scheme to 
defraud. 

The effort, said Thompson, had signally failed. The 
Government had not only not proved its case beyond a 
reasonable doubt, but its own evidence and that of the de- 
fendants had demonstrated the innocence of the accused. 
There had been no misrepresentations. There had been 
no concealments. There had been no misappropriations 



l88 GUILTY OR NOT GUILTY? 

of money. There had been no unlawful rigging of the 
market. Money had been lost, yes. Who had got it? The 
greatest economic cataclysm in modern times— "Old Man 
Depression"— had got it. And it had got Insull and every- 
thing he had. 

Judge Thompson reviewed the Government's evidence 
which had been particularly directed against Insull, Jr., and 
declared that he had completely cleared himself of every 
charge or suggestion of wrongdoing. He told of the place 
which young Insull had already made for himself in the 
business, civic and cultural life of Chicago— his aid and 
work for the United Charities, the Rosenwald Museum, 
Loyola University, the Children's Memorial Hospital; how, 
even in 1932, after the crash of the Insull fortunes, he had 
been honored by the Chicago Junior Association of Com- 
merce as their 1931 selection of the outstanding young 
business and civic leader of Chicago. 

Judge Thompson summed up the entire defense in a 
brief but telling conclusion: "Gentlemen, you saw this old 
man on the stand; you saw this young man on the stand. 
You have heard their testimony telling you the story of 
this tragic period in their lives and in the lives of other 
people in this country. You have had a description here of 
an age in American history which we hope never will be 
repeated. I say we are trying that age. The test is whether 
or not these men shall be made a horrible example; 
whether they shall be convicted because of a situation in 

which they lived These men have suffered. They have 

already paid the price of bad judgment in 1929— foolishness 
if you want to call it that— but there is no proof here of 
dishonesty. Whatever juggling the Government's witnesses 
may want to do with the figures, there is no proof here that 
anyone had any wrongful intention or motive. There is 
proof that these men believed implicitly in the business 
venture in which they were engaged, and they poured their 
own fortunes and their own good names into it." 



THE SAMUEL INSULL CASE 189 

Special Assistant Attorney General Salter and United 
States Attorney Green made the final summations for the 
Government. It is quite obvious from the record that the 
Government underestimated the effect of both the evidence 
offered by the defendants and the arguments which their 
very able counsel had based on it. There was little or no 
attempt on the part of the prosecutors to analyze or answer 
the contentions put forth by the defendants in answer to 
the Government's charges. Both Salter's and Green's argu- 
ments were, rather, restatements of the charges and the 
Government's evidence, interspersed with numerous well- 
adjectived characterizations of some of the defendants. 

Salter devoted a considerable amount of his allotted time 
to a discussion of the "good character" testimony produced 
by certain of the defendants. Ordinarily, a prosecutor re- 
gards such testimony as more or less expected routine and, 
outside of a general observation on the ease with which 
such testimony can be obtained, says little about it. For 
some unapparent reason, the special assistant attorney gen- 
eral saw fit to castigate the defendants who had called such 
witnesses. In view of the high positions of the defendants 
in the business and professional world, and the exceptional 
standing of some of the witnesses called to attest to their 
reputation, the wisdom of such a course would seem open 
to question. 

Insull, Sr., had called no such witnesses, a circumstance 
which prompted Salter to declare: "I want to say just one 
word in fairness to Mr. Insull. He sits here and takes it on 
the chin. I have to admire him for it. Don't you think for 
a minute that he could not have marshaled as many and as 
influential friends as these other defendants, and if he 
wanted to embarrass them he could have brought such 
people here to testify to his good reputation. But he didn't 
do it, and I have got to pay him a tribute for not doing it." 
If jurors pay any attention to the evidence of the commu- 
nity as to the regard in which accused persons are held— and 



1QO GUILTY OR NOT GUILTY? 

the persistence with which such evidence is resorted to 
would indicate that they do— the admission by the Govern- 
ment that Samuel Insull, Sr., could match the character 
witnesses produced by his codefendants could scarcely have 
done him any harm. 

Salter concluded his' argument with a plea to the jury to 
enforce the mail-fraud statute. "Remember this, Gentle- 
men," he said, "you are passing upon a state of facts here 
based upon the most wonderful act of Congress that has 
ever been passed for the protection of the public, the pro- 
tection of investors from exploitation. This is a wonderful 
statute. ... It is the only statute in all the statute books of 
federal law that would in any way fit the facts in this case. 
But wonderful as this law is, Gentlemen, it isn't worth the 
paper it is written on if you men, as citizens called into the 
jury box, do not enforce it by a verdict of guilty if you be- 
lieve the evidence warrants it. You must breathe the breath 
of life into that law or it is worthless. . . . And so, I say to 
you, Gentlemen, this case presents to you a challenge to 
your integrity, ... a challenge to your honesty, ... a chal- 
lenge to your devotion to the duty of a public trust." 

It was one o'clock in the afternoon of Saturday Novem- 
ber 24, 1934, when Judge Wilkerson began his long charge 
to the jury. It was a masterpiece of impartial statement. 
He analyzed the indictment and set its issues plainly before 
the jury. The indictment itself, he said, was only the Gov- 
ernment's accusation; it was not evidence. Without indica- 
tive emphasis, he described and defined the presumption 
of innocence and the law's requirement that the Govern- 
ment's proof to warrant conviction had to exclude a rea- 
sonable doubt. 

Proof of a criminal intent, he charged, was an essential 
part of the Government's case. That intent or the lack of 
it could be proved either by direct or circumstantial evi- 
dence. The fact the defendants had risked and lost their 
own money in the enterprise charged as fraudulent was no 



THE SAMUEL INSULL CASE 191 

defense, but might properly be considered in determining 
their intent. Dispassionately, and with proper reservation 
that all the facts in the case were for the jury and it only to 
decide, he reviewed the evidence— the various items 
claimed by the Government to constitute false representa- 
tions, the testimony of the various defendants respecting 
them and their participation in them. The defendants, he 
charged, should be convicted if they knowingly conceived 
and attempted to execute a scheme to defraud; they could 
not, however, be convicted for honest mistakes or bad 
judgment. 

He summarized the conflicting evidence as to the proper 
methods of accounting for organization expense, stock divi- 
dends and depreciation. The defendants, he said, could 
not be convicted for selecting an unapproved or wrong 
theory of accounting, provided the method used and the 
facts stated did not misrepresent or conceal the true finan- 
cial condition of the company, and were not made for that 
purpose. The test was: Was there an intent to deceive? 
The defendants had been charged with wrongful market 
operations. Here, too, the question was one of intent. Such 
transactions by or on behalf of the company as had been 
for the purpose of protecting investors against losses which 
they might otherwise have sustained through fluctuation in 
market prices were legitimate and proper. To that end a 
company might purchase its own stock. If, on the other 
hand, the jury found the purpose of the market purchases 
had been to create an inflated price for the stock in order 
that it might be held out to prospective purchasers as a 
price which had been paid on the exchange in a bona-fide 
transaction and the purchasers were thereby deceived, then 
that fact was to be considered with all of the other evidence 
in the case in determining the ultimate fact— whether the 
defendants had conceived and attempted, by use of the 
United States mails, to execute a scheme to defraud. 

When the Court had concluded its charge both prosecu- 



1Q2 GUILTY OR NOT GUILTY? 

tion and defense counsel openly expressed their complete 
approval and acceptance of it— an unusual and deserved 
tribute to a conscientious and able judge. 

It was 2:30 p.m. when the jury retired. In a little over 
two hours it returned with a verdict of not guilty as to all 
of the defendants. The jurors on a poll affirmed the verdict 
and were discharged. The Government's "big case" was 
over. 

Aftermath 

The troubles of Samuel Insull and his son were not 
ended with the verdict of acquittal in the mail-fraud case. 

On March 12, 1935, the old gentleman and his brother 
Martin were put on trial in the Criminal Court of Cook 
County on the charge that they had embezzled $66,000 
from Middle West Utilities Company. There was no sub- 
stantial evidence to sustain the charge and, after a brief 
trial, a jury returned a verdict of not guilty as to both de- 
fendants. A week later the Cook County prosecutor dis- 
missed the remaining state indictment. 

Meanwhile, the Federal government had determined on 
one more serious attempt to fasten criminal guilt on Insull, 
his son and Harold L. Stuart. On June 1 1, 1935, it brought 
to trial in the Federal district court in Chicago the indict- 
ment which charged that these three had, in contemplation 
of the bankruptcy of Corporation Securities Company of 
Chicago, illegally transferred its property with intent to 
prefer selected creditors and defeat the purpose of the 
Bankruptcy Act. 

There was a new set of prosecutors. The Honorable 
D wight H. Green had been succeeded as United States at- 
torney by the Honorable Michael L. Igoe. 7 Three special 
assistants to the attorney general— S. E. Whitaker, David V. 



7 Now a judge of the United States District Court for the Northern Dis- 
trict of Illinois. 



THE SAMUEL INSULL CASE 193 

Cahill and Forest A. Harness— took over the presentation of 
the Government's evidence. 

The Honorable John C. Knox of the United States Dis- 
trict Court for the Southern District of New York had been 
specially assigned to hear the case. Floyd E. Thompson 
again appeared for the Insulls, and Ditchburne and Louns- 
bury for the defendant Stuart. 

Specifically, the Government's contentions were: The 
Corporation Securities Company had gone into bankruptcy 
on April 18, 1932. The payment on November 1, 1931, of 
a dividend aggregating $558,000 on its preferred stock, the 
transfers out of its portfolio during November and Decem- 
ber of large amounts of securities as additional collateral 
for its outstanding bank loans, its borrowing on December 
22, 1931, of $1,000,000 from General Electric Company 
and delivering to that company $1,250,000 of securities as 
collateral, and its transfers in January of 1932 of various 
amounts of cash from one bank creditor to another were 
all illegal ' 'preferences' ' made in contemplation of bank- 
ruptcy. The victims of these preferences, said the Govern- 
ment, were the holders of the $24,000,000 of outstanding 
serial gold notes, to secure which no proportionate, or any, 
amount of collateral was ever deposited. 

The defense did not dispute the facts as to the dividend 
and the transfers of collateral and cash. It did dispute, and 
vigorously, the Government's contention that the actions 
were taken in contemplation of bankruptcy. On the con- 
trary, it was contended that in a developing panic— which 
proved to be the worst in American history— the defendants 
had sought by every means at their disposal to avoid bank- 
ruptcy and save the company for the benefit of its creditors 
and stockholders. The bankruptcy proceeding had not 
been a voluntary one, but had been forced upon them by 
conditions over which they had no control. 

At the close of the Government's case, defense counsel 
moved the Court for a directed verdict. Judge Knox, after 



1Q4 GUILTY OR NOT GUILTY? 

a full argument, advised the jury that "the proof offered 
by the Government is not of a quality which would, if the 
case were submitted to you, enable you to find the defen- 
dants guilty beyond a reasonable doubt," and directed it to 
return a verdict of not guilty. Such a verdict was returned 
and formally read and entered of record. 

Insull's troubles in the criminal courts were finally over, 
but civil litigation to which he was a party continued to 
harass him until shortly before his death in 1938. 

All of Insull's codefendants in the government cases re- 
turned to their respective niches in the community life of 
Chicago, unharmed either by the prosecutions or the pub- 
licity ballyhoo which accompanied them. As this is writ- 
ten, only seventeen years later, the parts they played in the 
Insull tragedy have been well-nigh forgotten, and memory's 
view of Samuel Insull, like that of many another who for a 
brief moment has occupied one of the seats of the mighty, 
grows dimmer in time's lengthening shadows. 

There are some who cannot forget their losses in the util- 
ity magnate's last gigantic financing effort, and to these the 
name Insull is still an anathema. Others, who remember 
and acknowledge the consequences of his business genius 
in the upbuilding of the Chicago metropolitan area, his 
unselfish and masterful leadership during World War I as 
chairman of the Illinois State Council of Defense, and his 
many contributions to Chicago's cultural development, are 
inclined to set these against his sole misadventure, and 
strike a final balance in his favor. 



IV 



The Trials of 

ALGER HISS 

. •» 

for 

PERJURY 

(1949-1950) 



4 
The Alger Hiss Case 

It may require a more remote perspective than is now 
available to evaluate properly the full significance of the 
Alger Hiss case. The history of the rise and spread of com- 
munism establishes that it flourishes best in the barren 
soils of destitution, discontent and hopelessness. It was 
not, therefore, surprising in the early 1930s, when the 
United States was suffering from the most devastating 
economic collapse in its history, that communism as an 
economic theory made considerable headway among the 
more unfortunate victims of the apparent failure of the 
free-enterprise system. The solid citizenry of the country 
was not particularly disturbed either by the noisy ranting 
of soapbox agitators, the Red parades, or the open discus- 
sions on public platforms and in college classrooms of the 
theory of communism and its current application in Rus- 
sia. Free speech and free assembly were constitutional 
rights— parts of the democratic process. There was general 
confidence that our tested American institutions were in no 
danger from this or any other foreign ideology. 

The Second World War intervened. Russia, the dis- 
carded partner of the Axis, became the ally of Britain and 
America. She contributed gloriously to the defeat of Naz- 
ism. The United Nations was born. The era of enforced 
perpetual peace was at hand. Our armies demobilized. 
Almost before it could be realized, the picture changed. 
With the collapse of Germany the mask of the Muscovite 
was dropped. Russia, by its repeated acts of duplicity, 
ruthlessness and aggression, stood revealed as the enemy of 

*97 



198 GUILTY OR NOT GUILTY? 

the free nations—a totalitarian state bent on subjecting the 
entire world (by infiltration and the fomenting of revolu- 
tion, if possible; by external force, if necessary) to its dom- 
ination under a communistic form of government. America 
suddenly awoke to the realization that her very existence 
as a democratic state was threatened by a powerful, mil- 
itant and utterly unscrupulous enemy. 

Then in 194J and 1948 came the series of revelations 
that climaxed in the Hiss case, and American complacency 
was shocked as it had not been since the treason trial of 
Aaron Burr. If women like Elizabeth Bentley (American- 
born Vassar graduate) and men like Harry Dexter White 
(former Assistant Secretary of the Treasury and coauthor 
of the Bretton Woods Monetary Plan), Henry Julian Wad- 
leigh (American Oxford scholar and trusted official of the 
State Department), and Alger Hiss (Johns Hopkins cum 
laude, Harvard Law School magna cum laude, and State 
Department official who had risen to be a Presidential 
adviser at the Yalta Conference and secretary-general of 
the San Francisco Conference to formulate the charter of 
the United Nations)— if people such as these, beneficiaries in 
the fullest measure of American democracy and the Amer- 
ican way of life, had become dedicated Communists and 
spies for Soviet Russia, how far had the American body 
politic already been infected and corrupted by commu- 
nism? The question is still being asked. 

The verdict of a jury of his peers branded Hiss as a per- 
jurer. American public opinion has overlaid that scar with 
a brand more sinister— traitor! 

The specific charge against Alger Hiss was that he 
had committed perjury in testimony given before a 
Federal grand jury in 1948. The case, however, held 
far greater implications than the usual prosecution for per- 
jury in an ordinary civil or criminal proceeding; for, if Hiss 
was guilty of the perjury charged, he was ipso facto guilty 



THE ALGER HISS CASE 199 

of espionage— specifically the delivery ten years earlier of 
secret and restricted documents of State to a foreign power. 
The bar of the statute of limitations had precluded his in- 
dictment for the more serious offense. 

The first scene of the Hiss tragedy, for such indeed it is, 
was the Washington hearing room of a congressional com- 
mittee—the House Committee on Un-American Activities. 
The date of the action was August 3, 1948. The commit- 
tee had been aroused from a long period of relative inac- 
tivity by the widely publicized disclosures of one Elizabeth 
Bentley, a confessed former Soviet agent, made after a Fed- 
eral grand jury, on the strength of her testimony and 
others', had returned an indictment against the twelve 
members of the directing board of the American Com- 
munist party, charging them with a violation of the so- 
called Smith Act (teaching and advocating the overthrow 
of the government of the United States by force and vio- 
lence). 

Miss Bentley had appeared before the House committee 
on July 31 and in sworn testimony had implicated as at- 
tached or unattached members of Communist "spy rings" 
more than a score of persons presently or formerly em- 
ployed in various departments of the government. Such of 
these as could be reached were summoned to appear before 
the committee. As other names were disclosed, more sub- 
poenas were issued. 

On August 2 a subpoena was issued and served on one 
Whittaker Chambers. The following day he appeared be- 
fore the committee, and the oath was administered to him. 
He gave his full name as David Whittaker Chambers and 
his business as a senior editor of Time magazine. He stated 
calmly that from 1924 to 1937 he had been a paid agent of 
the Communist party. He asked, in order that his motives 
in joining and later breaking with the party might be made 
clear, that he be allowed to read a prepared statement. 
This statement touched the fuse which, burning its length 



200 GUILTY OR NOT GUILTY? 

with an ever-increasing intensity, finally exploded into one 
of the most sensational trials of modern times. 1 

Chambers' statement was that he had joined the Com- 
munist party in 1924. He had not been, he said, "recruited" 
but had "become convinced that the society in which we 
live, Western civilization, had reached a crisis of which the 
First World War was the military expression, and that it 
was doomed to collapse or revert to barbarism"; that he 
felt as an intelligent man that he must do something. "In 
the writings of Karl Marx," read the statement, "I thought 
I had found the explanation of the historical and economic 
causes. In the writings of Lenin I thought I had found the 
answer to the question, What to do?" 

The statement proceeded: 

In 1937 2 I repudiated Marx's doctrines and Lenin's tac- 
tics. Experience and the record had convinced me that 
communism is a form of totalitarianism, that its triumph 
means slavery to men wherever they fall under its sway, 
and spiritual night to the human mind and soul. I resolved 
to break with the Communist party at whatever risk to my 
life or other tragedy to myself or my family. 

Describing his activities, Chambers declared that two 
days after the Hitler-Stalin pact he went to Washington 
and reported to the authorities what he knew about the 
infiltration of Communists into the United States govern- 
ment. He added: 

The heart of my report to the United States government 
consisted of a description of the apparatus to which I was 
attached. It was an underground organization of the United 
States Communist party developed, to the best of my knowl- 
edge, by Harold Ware, one of the sons of the Communist 
leader known as "Mother Bloor." I knew it at its top level, 
a group of seven or so men, from among whom in later 



1 Alistair Cooke has given to his complete and splendid analysis of the Hiss 
case the major title, A Generation on Trial. (A Generation on Trial: U. S. A. 
v. Alger Hiss. New York: Alfred A. Knopf, 1950.) 

2 Chambers afterward corrected this to 1938. 



THE ALGER HISS CASE 201 

years certain members of Miss Bentley's organization were 
apparently recruited. The head of the underground group 
at the time I knew it was Nathan Witt, an attorney for the 
National Labor Relations Board. Later, John Abt became 
the leader. Leo Pressman was also a member of this group, 
as was Alger Hiss, who, as a member of the State Depart- 
ment, later organized the conferences at Dumbarton Oaks, 
San Francisco, and the United States side of the Yalta con- 
ference. 

While all the persons named as members of the Soviet 
"apparatus' ' or underground were well-known figures in 
Washington officialdom, Alger Hiss was by far the most 
important. Chambers had done little more than identify 
him. 

Hiss was born in Baltimore, Maryland, in 1904. His 
father was a respected, well-to-do merchant. Alger Hiss ob- 
tained his early education in the Baltimore public schools, 
Baltimore City College and the Powder Point Military 
Academy at Duxbury, Massachusetts. He matriculated at 
Johns Hopkins University and graduated with high honors. 
He entered Harvard Law School, where his scholarship 
record was conspicuously brilliant. He was elected to the 
coveted membership on the editorial board of the Harvard 
Law Review and was graduated cum laude. On the recom- 
mendation of Professor (later United States Supreme Court 
Justice) Frankfurter, he became secretary to Supreme 
Court Justice Oliver Wendell Holmes. 

In 1929 he married Priscilla Fansler Hobson, who had 
been previously married and divorced. Mrs. Hiss was a 
graduate of Bryn Mawr and had taken postgraduate work 
at Yale. 

When Hiss's year with Justice Holmes was up, he en- 
gaged for a brief period in private law practice. In 1933 at 
the solicitation of his old Harvard schoolmate Lee Press- 
man, then assistant to Judge Jerome Frank in the newly 
organized Agricultural Adjustment Administration, Hiss 
came to Washington and became a member of the law de- 
partment of the agency. 



202 GUILTY OR NOT GUILTY? 

In 1934 Hiss was appointed legal assistant to the Senate 
Munitions Investigating Committee, of which Senator Ger- 
ald P. Nye was chairman. The appointment was generally 
credited to Pressman's influence. Hiss's record in this en- 
gagement was highly creditable. He was, according to his 
superior, a painstaking, indefatigable investigator of the 
facts and an implacable cross-examiner. 

Hiss had been "loaned" by the AAA to the Nye Commit-: 
tee, but shortly after his work there had been finished he 
entered the office of Solicitor General Stanley Reed (later a 
justice of the United States Supreme Court) as an assistant. 

In 1936, at the request of one of his former Harvard law 
professors, Francis P. Sayre, then Assistant Secretary of 
State, Hiss entered the State Department, to work under 
Sayre in the Trade Agreements Section. In 1940 he was 
named assistant to Stanley Hornbeck (also a former Har- 
vard professor), then head of the State Department's Far 
Eastern Division. In 1942 he became a special assistant in 
the Public Relations Division of the State Department. 

Early in 1944 Hiss was named deputy director of the 
newly created Office of Special Political Affairs and, within 
the year, succeeded to the directorship of that agency. In 
August of the same year he served the Dumbarton Oaks 
Conference as executive secretary and worked with Secre- 
tary of State Hull, Harry Hopkins and others on the first 
draft of the United Nations Charter. 

When Cordell Hull resigned as Secretary of State and 
was succeeded by Edward Stettinius, Hiss at the latter's 
suggestion was appointed a Presidential adviser. It was in 
that capacity he attended the Yalta Conference. His im- 
portance in this association is evidenced by the fact that he 
was one of the thirteen signatories to the so-called Yalta 
Agreement. The impression created by Hiss on his top- 
level contacts at Yalta secured his designation in 1945 as 
secretary general of the San Francisco Conference to form 
the United Nations. 

In January of 1946 Hiss attended the London session of 



THE ALGER HISS CASE 203 

the United Nations General Assembly as principal adviser 
to the American delegation. Here he came into association 
with John Foster Dulles (later United States Senator from 
New York), who was chairman of the board of trustees of 
the Carnegie Endowment for International Peace, and it 
was on Dulles' nomination that in December of 1946 Hiss 
was elected president of that institution at an annual salary 
of $20,000. The position was one of high responsibility and 
honor. Hiss's immediate predecessor in the presidency had 
been Nicholas Murray Butler, long-time president of Co- 
lumbia University. Butler had succeeded the endowment's 
first president, the Honorable Elihu Root, a distinguished 
former Secretary of State. 

Newspaper reporters lost no time in advising Hiss of 
Chambers' accusation. Hiss acted with equal promptness. 
He at once dispatched a telegram to the chairman of the 
House committee in which he demanded the opportunity 
to appear immediately before the committee and deny 
Chambers' charges under oath. 

Hiss appeared before the committee in its open session 
two days later. After being sworn he read a prepared state- 
ment in which he declared: 

I am not and never have been a member of the Com- 
munist party. I do not and never have adhered to the 
tenets of the Communist party. I am not and never have 
been a member of any Communist-front organization. I 
have never followed the Communist party line directly or 
indirectly. To the best of my knowledge none of my 
friends is a Communist. . . . To the best of my knowledge 
I never heard of Whittaker Chambers until in 1947, when 
two representatives of the Federal Bureau of Investigation 
asked me if I knew him. ... I said I did not know Cham- 
bers. So far as I know I have never laid eyes on him, and 
I sfrould like to have the opportunity to do so. 

He admitted knowing Henry Collins, Lee Pressman, 
Nathan Witt, John Abt and Charles Kramer (all men- 
tioned by Chambers as Communist associates of Hiss), but 



204 GUILTY OR NOT GUILTY? 

he declared his associations with any of them since he had 
left the Department of Agriculture in 1935 had been occa- 
sional and infrequent. With the exceptions indicated, he 
branded Chambers' statements as "complete fabrications" 
and called on his record in government service to speak for 
itself. 

Following the reading of his prepared statement, Hiss 
was rather extensively, but deferentially, questioned by 
members of the committee. He was asked as to his educa- 
tion, his various official employments, his associates and 
associations. He was shown a newspaper picture of Cham- 
bers. After looking at it closely Hiss said he would not 
want to swear that he had never seen the man, and would 
very much like to see Chambers face to face. 

He admitted that in 1947 he had been visited by two 
FBI agents who put questions to him not unlike those 
which would be suggested by Chambers' testimony. He 
also admitted that when he returned from the London 
meeting of the United Nations General Assembly, James 
Byrnes, then Secretary of State, told him that he (Byrnes) 
had heard that Hiss was suspected by some members of 
Congress of being a Communist. Byrnes added that the 
situation was serious and he thought Hiss should immedi- 
ately take the matter up with J. Edgar Hoover, director of 
the Federal Bureau of Investigation, and offer himself for 
questioning. 

Hiss continued: He had gone to the bureau, as Secretary 
Byrnes directed, and in the absence of Hoover had given 
Hoover's principal assistant full information as to all of his 
past and present associations and organization connections. 

Several members of the committee openly expressed 
their satisfaction with Hiss for his prompt appearance be- 
fore them and his "forthright statements," and it is quite 
apparent from a reading of the record that a substantial 
majority felt that he had cleared himself of Chambers' 
charges. One member of the committee, however, was not 



THE ALGER HISS CASE 205 

wholly satisfied. The Doubting Thomas was Congressman 
(now Senator) Nixon of California. 

The committee did not, as Hiss apparently expected, ar- 
range at once for a confrontation of Hiss and Chambers. 
Instead, on the seventh of August, its subcommittee 3 sum- 
moned Chambers to appear before it, this time in private 
session, in a room in the Federal courthouse in New York 
City. Under questioning, mostly by Nixon, Chambers was 
led to add many details to his previous testimony. He 
readily and positively identified newspaper photographs of 
Hiss as the Alger Hiss he had known and previously re- 
ferred to. He elaborated upon Hiss's connection with the 
Communist party— that as a member of the underground 
neither Hiss nor his wife had a party card, but both paid 
promptly their party dues to Chambers, and Chambers in 
turn handed them over to one J. Peters, the "head of the 
entire underground ... in the United States." 

Chambers was then questioned with great particularity 
as to the Hisses and his associations with them— their vari- 
ous residences in which he had visited them, their house 
furnishings, their family life, habits and hobbies as he had 
observed them, and items of personal and family history 
which they had told him. Under this examination Cham- 
bers supplied the subcommittee with a mass of particulars, 
among them that Mrs. Hiss's maiden name was Priscilla 
Fansler and that she came of a Quaker family from Great 
Valley, near Paoli, in Pennsylvania. Once while they were 
driving beyond Paoli Mrs. Hiss showed him the road down 
which her old home lay. Hiss called his wife by the nick- 
names "Dilly" and "Pross," and she usually referred to her 
husband as "Hilly." Mrs. Hiss's son by her former marriage 
was named Timothy Hobson and was usually called "Tim- 
mie." 

Chambers told the committee that at one of their resi- 



3 Congressmen Mundt, Nixon, Hebert, McDowell, Vail and Rankin. 



206 GUILTY OR NOT GUILTY? 

dences the Hisses had a cocker spaniel, and when they took 
vacations they sometimes boarded the dog at a kennel on 
Wisconsin Avenue. He had known the Hisses when they 
lived on 28th Street at a location and in a house which he 
described. Later they moved to a house on P Street where 
the Chamberses stayed with them several nights. He said 
that one of the Hisses' hobbies was ornithology; that they 
would get up early in the morning and go to Glen Echo 
to watch the birds, and once they saw to their great ex- 
citement a "prothonotary warbler." Chambers said Hiss 
once told him that when he was a small boy in Baltimore 
he used to take his little express wagon and walk to Druid 
Hill Park, some considerable distance out of the city, where 
he filled up bottles with spring water, which he brought 
back and sold to their neighbors in Baltimore. 

Chambers further told the committee that Hiss had an 
old, dilapidated Ford roadster, which he (Chambers) once 
drove, and he remembered that the windshield wiper 
would not work, and you had to operate it by hand. As he 
remembered it, the Hisses got a new car— a Plymouth— in 
1936, and Hiss told him he wanted to give the old car to 
"some poor organizer." With Chambers' and J. Peters' per- 
mission Hiss had delivered it to a motor sales agency, the 
proprietor of which was a trusted Communist. Chambers 
gave, as nearly as he could remember it, the location of the 
agency. Chambers was finally asked if he would be willing 
to submit to a lie-detector test. He replied promptly that 
he would. 

The wealth of detail given by Chambers lent credence to 
his charges. As Congressman Nixon said later, it showed 
either that Chambers had known the Hisses intimately or 
that he had without apparent motive made a remarkably 
thorough investigation of Hiss's life for the purpose of 
testifying against him. 

The next meeting of the committee, called for the pur- 
pose of further interrogating Alger Hiss, was also a private 



THE ALGER HISS CASE 207 

one. It was held August 16 in the old House Office Build- 
ing in Washington. In the nine days which had intervened 
since its last meeting the committee had not been idle. 
Wherever it had been possible the committee's investiga- 
tors had checked the details of Chambers' testimony. They 
had found corroboration for many of the items. 

An entirely different atmosphere prevailed at the meet- 
ing of August 16 from that which had surrounded Hiss on 
his first appearance. The committee had been definitely 
impressed by the new Chambers disclosures and felt it was 
called on to subject Hiss to considerable further interroga- 
tion. The newspapers had carried stories of the "secret 
session" at which Chambers had been privately examined 
by the subcommittee. Hiss, in his turn, had become re- 
sentful and suspicious. 

The session opened with a mildly phrased understate- 
ment by Congressman Nixon that the conflicting testimony 
of Hiss and Chambers had forced on the committee the re- 
sponsibility of "resolving" the question of which of the 
two was telling the truth. It was for that reason, said Nixon, 
that the committee desired "to go into a number of items" 
which had a "direct bearing" on that problem. 

In his answers to a barrage of ensuing questions, Hiss 
declared he could not recall anyone by the name of Cham- 
bers or Carl 4 with whom he had ever been connected. He 
was shown two other newspaper pictures of Chambers and 
asked if he could identify the person shown. 

Hiss reiterated his former testimony: "The face has a 
certain familiarity." Then he added, "It is not ... a very 
distinctive or unusual face. ... I am not prepared to say I 
have never seen the man. ... I cannot recall any person 
with distinctness or definiteness whose picture this is, but it 
is not completely unfamiliar." 



4 Chambers had told the subcommittee that the only name he had ever 
given Hiss was Carl; that it was not customary for Communist agents to give 
their last names to fellow workers. 



208 GUILTY OR NOT GUILTY? 

One of the committeemen asked, "Would your answer 
be any different if the individual had stayed overnight in 
your house on several occasions?" 

Hiss answered, "I would find it very difficult to believe 
that that individual could have stayed in my house when 
I was there on several occasions overnight, and his face not 
be any more familiar to me than it is." 

To specific questions Hiss answered that he had two 
children— his stepson, Timothy Hobson, aged 22, and his 
son, Anthony Hiss, aged 7. His wife's maiden name had 
been Priscilla Fansler, and she was first married to a man 
named Hobson. She had been born in Evanston, Illinois, 
but had spent most of her early life just outside Philadel- 
phia not far from Paoli. 

When Hiss was asked to give the names of his house serv- 
ants during the period 1934 to 1937 he countered with the 
statement, made rather contentiously, that the question 
before the committee was the determination of credibility 
as beween him and a confessed former Communist, that 
Chambers either could not or would not tell the truth, and 
that he had a feeling the details of his personal life which 
he gave honestly could be used to his disadvantage "by 
Chambers then ex post facto knowing the facts." He said 
he did not wish "to make it easier for anyone who, for 
whatever motive I cannot understand, is endeavoring to 
destroy me." 

Congressman Nixon replied to the ex-post-facto con- 
tention by reminding Hiss that Chambers had already testi- 
fied, that he had given many details which could be cor- 
roborated by third parties, and that the questions asked 
and to be asked of Hiss related to matters which Chambers 
had already placed on the record. Despite the obvious 
cogency of Congressman Nixon's statement, Hiss repeated 
throughout the hearing that he was being prejudiced by 
being asked for details which would aid Chambers in build- 
ing up his case against him. That this attitude of Hiss's 
did him no good is apparent from a reading of the record. 



THE ALGER HISS CASE 209 

Members of the committee other than Nixon, hitherto 
silent, commenced to take a hand in the questioning, and 
their inquiries took on a definite cast of unfriendly skepti- 
cism. 

Pressed by questions as to how it would be possible for 
a man to have stayed in his house on several occasions over- 
night and he not remember him, Hiss adhered to his previ- 
ous answer that he was not prepared to base an identifica- 
tion on a photograph, but would want to see the man and 
hear his voice. Then, without any prompting question, he 
introduced a new angle. 

"I have written," said Hiss, "a name on this pad in front 
of me of a person whom I knew in 1933 and 1934, who 
not only spent some time in my house, but sublet my apart- 
ment. That man spent certainly more than a week, not 
while I was in the same apartment. I do not recognize the 
photographs as possibly being this man. If I hadn't seen 
the morning papers with an account of statements that he 
knew the inside of my house, I don't think I would even 
have thought of this name. I want to see Chambers face to 
face and see if he can be this individual. I do not want and 
I don't think I ought to be asked to testify now that man's 
name and everything I can remember about him. I have 
written the name on this piece of paper." 

Hiss added that the man was not named Carl or Whit- 
taker Chambers; that he could not state definitely the ad- 
dress of the apartment he leased, but it was the apartment 
he lived in from June 1934 until September 1935. 

Under further questioning Hiss testified that the name 
of the man he had written down was George Crosley. He 
described him as a shortish man, not noticeably heavy, 
with blondish hair, very bad teeth and a voice of "low and 
rather dramatic roundness." Hiss said this man was a free- 
lance writer of magazine articles. He met him while he 
(Hiss) was engaged with the Nye Committee and had seen 
and talked to Crosley as he had seen and talked to dozens of 
other representatives of the press. -As he remembered it, 



210 GUILTY OR NOT GUILTY? 

after they had taken the apartment on P Street, Crosley one 
day mentioned to him that he was thinking of bringing 
his wife and baby to Washington, and Hiss offered to let 
him have the apartment he was living in on 28th Street. 
Crosley and his wife and baby had spent two, three or four 
consecutive nights in the P Street house with the Hisses, 
because the arrival of Crosley's furniture was delayed. 

Hiss was asked what kind of an automobile this Crosley 
had. Hiss answered that he had none, but that (Hiss) had 
sold him an automobile. 

"I had an old Ford/' Hiss said, "and I threw it in with 
the apartment. . . . He wanted a way to get around and I 
said, Tine, ... I have another car/ and ... I let him have it 
along with the rent. I think I charged him exactly what I 
was paying for the rent, and threw the car in in addition." 

Hiss's recollection was that he did not give Crosley a bill 
of sale for the car but turned over to him the District of 
Columbia certificate of title which he had. He was asked 
if the Ford had a windshield wiper. He gave as his best 
recollection that it had one which you had to operate your- 
self. The new car which they had when they turned over 
the old Ford to Crosley was, according to Hiss's recollec- 
tion, a two-door Plymouth. 

In reply to questions put by Congressman Nixon, Hiss 
testified that by way of nicknames his wife called him 
"Hill" or "Hilly" and that he called her "Prossy." He de- 
nied that he ever called her "Dilly." He said that he and 
his wife spent their vacations during two summers with a 
friend just outside of Chestertown, Maryland. He admitted 
having owned a brown cocker spaniel which they some- 
times boarded at kennels while they were away. 

He was asked as to his hobbies, and promptly answered, 
"Tennis and amateur ornithology." 

Congressman McDowell asked him if he had ever seen 
a prothonotary warbler. 

Hiss replied quickly and brightly, "I have, right here on 
the Potomac. Do you know that place? . . . They come back 



THE ALGER HISS CASE 2 1 1 

and nest in those swamps. Beautiful yellow head, a gor- 
geous bird. . . . " He would have continued, but Congress- 
man Nixon directed him into other channels. Hiss had at 
least definitely confirmed Chambers' report of his enthu- 
siasm for prothonotary warblers. 

Hiss told of his boyhood venture in collecting spring 
water at Druid Hill Park and selling it in Baltimore. He 
did not remember ever driving Crosley to Pennsylvania, 
but he did remember driving him to New York City once. 
He could not remember if Mrs. Hiss was along, but if she 
had been they would have gone by way of Paoli. 

Crosley, testified Hiss, remained in the 28th Street apart- 
ment until the lease expired in September of 1935. He saw 
him several times after that and made him a couple of small 
loans. Crosley never repaid the loans or paid any rent. He 
did bring over a rug which he said some wealthy patron 
had given him, and he gave it to Hiss as a payment on ac- 
count. Hiss said he did not press Crosley for the money, 
that he concluded he was a dead beat and had played him 
(Hiss) for a "sucker." Then, according to Hiss, Crosley 
faded out of the picture and out of his mind. 

At the conclusion of the hearing Congressman Nixon 
asked Hiss if, in view of the existing situation, with him 
and Chambers giving positive and diametrically opposed 
testimony, he would be willing to submit to a lie-detector 
test. He added that the same question had been put to 
Chambers, who had agreed to it. Hiss hedged. Should he 
answer now? The scientific value of the lie detector was 
open to question. Would the committee want to rely on 
something that was not scientific? Who would administer 
it? When Congressman Nixon answered that the commit- 
tee had got in touch with Professor Leonarde Keeler, "prob- 
ably the outstanding man in the country," Hiss still hesi- 
tated. He wanted time to consider. He would take the 
matter under advisement. 5 



5 The test was never given, but Hiss's refusal was to be weighed and 
counted against him in the second of his trials. 



212 GUILTY OR NOT GUILTY? 

The committee now concluded that it had accomplished 
all that was possible through the separate questioning of 
Chambers and Hiss and decided on their immediate con- 
frontation. On the evening of August 16 both were noti- 
fied by telegram to appear before the committee in secret 
session the next afternoon at a designated suite in the 
Commodore Hotel in New York City. 

The committee was called to order about 5:30 p.m. The 
hotel suite consisted of a living room and a bedroom. 
Chambers had arrived first and had been ushered into the 
bedroom. Hiss, when he arrived, was admitted to the liv- 
ing room. Congressman Nixon directed one of the com- 
mittee's investigators to bring in Chambers. Chambers was 
brought into the living room. Both men were asked to 
stand. 

"Mr. Hiss," said Nixon, "the man standing here is Mr. 
Whittaker Chambers. I ask you now if you have ever 
known that man before." 

Chambers, at Hiss's suggestion, was asked to open his 
mouth, to speak, to read something. At one point Hiss said, 
"I think he is George Crosley, but I would like to hear him 
talk a little longer." Chambers continued his reading. 

"The voice," Hiss said, "sounds a little less resonant than 
the voice of the man I knew as George Crosley, the teeth 
look to me as though either they have been improved upon 
or that there has been considerable dental work done since 
I knew George Crosley, which was some years ago. I believe 
I am not prepared without further checking to take an ab- 
solute oath that he must be George Crosley." 

Chambers was then asked by Congressman Nixon if he 
had had any dental work of a substantial nature since 1934. 
Chambers replied that he had and, at Hiss's suggestion, 
gave the name and address of his dentist. Still Hiss was not 
willing to make a positive identification of Chambers as 
the George Crosley he said he had known. He asked the 
privilege of personally questioning Chambers, which was 



THE ALGER HISS CASE 213 

granted. Under Hiss's examination Chambers declared 
that he had never gone under the name George Crosley 
and had not sublet an apartment from Hiss on 28th Street, 
but that with his wife and child he had spent some time in 
the Hisses' former apartment on 28th Street after the Hisses 
moved to P Street.. 

Hiss thought he saw an inconsistency in Chambers' an- 
swers and asked him to reconcile them. 

Chambers calmly replied, "As I have testified before, I 
came to Washington as a Communist functionary, a func- 
tionary of the American Communist party. I was con- 
nected with the underground of which Mr. Hiss was a 
member. Mr. Hiss and I became friends. To the best of my 
knowledge Mr. Hiss himself suggested that I go there [to 
the 28th Street apartment] and I accepted gratefully." He 
added in answer to further questions that he stayed there 
about three weeks and brought no furniture to the place. 

After this positive declaration, Hiss interrupted. "I 
don't need to ask Mr. Whittaker Chambers any more ques- 
tions," said Hiss. "I am now perfectly prepared to identify 
this man as George Crosley." 

Hiss was asked to name three persons whom the commit- 
tee could subpoena who could identify Chambers as 
George Crosley. After some hesitation, Hiss named three. 
(Subsequent investigation disclosed that one of these three 
was dead, another could not be located, and the third de- 
clared that he had no recollection of a man named Cros- 

ley.) 

In answer to further questions Hiss added that his iden- 
tification of Chambers was "positive" and "complete." 
Chambers, in answer to the direct question, said that he 
positively identified Hiss as a member of the Communist 
party at whose home he stayed. 

At this point Hiss, in a definitely hostile manner, arose 
and approached Chambers. "May I say," Hiss said, "for the 
record at this point that I would like to invite Mr. Whit- 



214 GUILTY OR NOT GUILTY? 

taker Chambers to make those same statements out of the 
presence of this committee without their being privileged 
for suit for libel?" Turning to Chambers, he added, "I chal- 
lenge you to do it and I hope you will do it damned 
quickly." 

It looked as thought a disturbance was threatened. The 
chairman declared a short recess. 

When the committee resumed, Hiss asked the chairman 
"to be good enough to ask Mr. Chambers for the record his 
response to the challenge I have just made to him." Acting 
Chairman McDowell replied that the inquiry in his opin- 
ion was not pertinent to the matter under investigation. 
Hiss rejoined, "I thought the committee was interested in 
ascertaining truth." 

This aroused the ire of the committee, and Congressman 
Nixon and the chief investigator for the committee com- 
menced a bombardment of Hiss that from that time on 
lacked all the usual amenities of an official hearing. Hiss 
was virtually accused of deliberately misleading the public 
by his original declaration that so far as he knew he had 
never set eyes on Whittaker Chambers. 

Hiss repudiated any such intention and repeated that he 
had never known Chambers under the name of Chambers 
or Carl. He denied he had ever paid Communist party 
dues to Chambers, or J. Peters, or Henry Collins. He ad- 
mitted that Chambers— known to him as Crosley— was the 
man to whom he gave the Ford car; that he had eaten sev- 
eral meals in Chambers' house, and that possibly he had 
had lunch with him at other places. 

The committee set August 25 as the date of the public 
hearing for the confrontation of Hiss and Chambers. The 
forthcoming session was widely publicized. One of the 
larger assembly halls in the old House Office Building had 
been assigned for the hearing. Long before the convening 
hour it was filled to suffocation with press representatives, 
officeholders, and such of the public as were important or 
fortunate enough to gain admission. 



THE ALGER HISS CASE 215 

The chairman of the committee, Congressman J. Parnell 
Thomas, called the meeting to order. Chambers and Hiss 
were both present— the latter with his lawyer. It was ob- 
vious from the start that it was Hiss and not Chambers who 
was under fire. The questions of Congressman Nixon and 
Chief Investigator Stripling, with which the hearing led 
off, were directed to Hiss and unmistakably hostile. 

Whether by prearrangement or instinctively, Hiss's an- 
swers were cautious and repeatedly hedged about with 
those well-known escapements from a subsequent perjury 
charge: "so far as I can remember/ ' "according to my best 
recollection," "I would not be sure, but I think/' and so 
forth. With one of these limitations, he identified Cham- 
bers as a George Crosley he had met in 1934 and had last 
seen in 1935 or 1936. Confronted with old leases and util- 
ity-company records, Hiss had to admit that his previous 
recollection of the date of the expiration of the 28th Street 
apartment lease was faulty; it was the end of June 1935, 
rather than the last of September 1934 or 1935. 

He was made to repeat his testimony concerning the old 
Ford car: that he had given it to Chambers in May or June 
of 1935 after he had purchased the new Plymouth. He was 
faced with records of the local traffic bureau which showed 
that he had purchased the Plymouth September 7, 1935. 
Nixon pressed him for a positive answer that he had given 
Chambers the Ford. Sensing some sort of a trap, Hiss re- 
plied that "to the best of his recollection' ' he definitely gave 
Crosley the use of the car. He was reminded of his previous 
testimony that he had given Crosley the car. Hiss quib- 
bled: If that was in the record, that was what he said. After 
dozens of pages of the record had been read back, Hiss 
made a further amendment: "He gave Crosley the use of 
the car," but whether he "gave him the car outright," or 
"whether the car came back," he did not know. Even these 
last amendments were prefaced with the protective "to the 
best of my recollection." 

The next shot was of larger caliber. Hiss was shown a 



2 l6 GUILTY OR NOT GUILTY? 

photostatic copy of a bill of sale of a 1929 Ford, dated July 
23, 1936, from one Alger Hiss to the Cherner Motor Com- 
pany, and confronted with the motor company's record 
that on the same day it had transferred and delivered the 
car to one William Rosen. The photostatic copy not only 
bore the signature "Alger Hiss" but purported to have 
been signed and sworn to by him before a notary public. 
Hiss was asked if the signature was his. Again he hedged. 
He disliked the idea of swearing to a signature on a photo- 
stat; he would prefer to see the original. The notary was 
produced. He was an employee in the State Department. 
Hiss recognized him and conceded the signature was his. 
He was then asked if, with his memory refreshed, he could 
now recall the transaction which resulted in the transfer of 
the Ford. His back against the wall, Hiss could only falter, 
"I have no present recollection of the disposition of the 
Ford." One outspoken member of the committee was 
prompted to exclaim, "You are a remarkable and agile 
young man, Mr. Hiss!" 

When the committee ended the examination, Hiss at- 
tempted to shift the spotlight and heat to Chambers. He 
presented the committee with a memorandum of questions 
he wanted the committee to propound to Chambers. He 
wanted to know the present and past addresses of Cham- 
bers, his various aliases, and he wanted a catalogue of 
Chambers' various employments with the Communist 
party, a list of his writings, whether he had ever been con- 
victed of a crime, and if so, the particulars— "where, when 
and for what"— whether he had ever been treated for men- 
tal disease, where, when^and to whom he had been mar- 
ried, how many children he had, and where his wife pres- 
ently resided. 

Hiss also wanted the committee to inquire as to the cir- 
cumstances under which Chambers had come in contact 
with the committee and to make public all memoranda 
which he might have handed to any representative of the 
committee. Hiss's concluding request was that the com- 



THE ALGER HISS CASE 2 1 7 

mittee put it up to Chambers whether he was willing to 
xepeat the statements he had made before the committee 
under conditions where they would not be privileged so 
that Hiss might test his veracity in a suit for slander or libel. 

Chambers under oath answered without hesitation or 
reservation all of Hiss's questions which the committee put 
to him. He gave the details of his family life and all of his 
former addresses. He withheld, with the committee's per- 
mission, his present address for reasons, he said, of his own 
and his family's security. He told of his activities and em- 
ployments with the Communist party, of his Communist 
associates, including Hiss, and of the books and articles he 
had written. He denied that he had ever been convicted of 
any crime or had ever been treated for mental illness. He 
declared that he had not volunteered his testimony; he had 
appeared before the committee in response to a subpoena. 
He was not asked to nor did he answer Hiss's challenge to 
repeat his testimony under conditions where he could not 
claim immunity on account of privilege. 

On the twenty-eighth the committee made public what 
it termed an interim report of its espionage hearings. As to 
the Hiss-Chambers imbroglio, it reported that the verifi- 
able portions of Chambers' testimony had "stood up 
strongly"; that the verifiable portiohs of Hiss's testimony 
had been "shaken badly"; that Hiss's vague and evasive tes- 
timony as to the Ford car raised a doubt as to the other por- 
tions of his testimony; "that on 198 occasions Hiss qualified 
his answers to questions by the phrase 'to the best of my 
recollection' or similar qualifying phrases," and that the 
confrontation of the two men and the attendant testimony 
of both witnesses had definitely shifted the burden of proof 
as to which was telling the truth from Chambers to Hiss. 

On August 27 Chambers appeared and participated in a 
nationwide radio program, "Meet the Press." In answer to 
the direct question of one of the interlocutors, he declared, 
"Alger Hiss was a Communist and may be now." Hiss had 



1 18 GUILTY OR NOT GUILTY? 

invited the attack and Chambers had thrown down % the 
gage. The charge had now been made, openly and to a 
nationwide audience. There was no question of privilege. 
The only possible defense to an action for slander or libel, 
if one should be brought, was that the charge was true and 
was published for good motives and justifiable ends. 

Days went by and Hiss did not bring suit. The news- 
papers kept the thing alive. Was Hiss going to sue? What 
was he waiting for? A Washington paper put it pointedly: 
Hiss had brought the situation upon himself; it was up to 
him "to put up or shut up." 

Finally on September 27° Hiss filed an action against 
Chambers in the Federal court in Baltimore for defamation 
of character; damages claimed, $50,ooo. 7 Hiss's lawyers 
proceeded vigorously to prepare the case for trial. Avail- 
ing themselves of the liberal Federal Rules of Procedure, 
the lawyers had Chambers summoned to a pretrial hearing 
in Baltimore. Only the principals, their lawyers and ste- 
nographers were present. The press knew nothing about it. 
Under the unrestricted questioning of Hiss's lawyers, 
prompted by suggestions from information in hand, Cham- 
bers was taken through every year of his life since boyhood. 
Every fact or incident, discreditable or embarrassing (and 
there were many such facts) was put on the record. Cham- 
bers was shaken. As he later declared, it looked as though 
Hiss was determined to destroy him. 8 

Chambers, however, had what is spoken of in the vernac- 
ular as "an ace in the hole." Back in 1938 he had left for 
"safekeeping" with a nephew in Brooklyn a batch of in- 
criminating documents— copies of secret State papers— 
which he had secured from his inside connections in the 
State Department but had not turned over to his outside 
Soviet contacts. Following a recess in the pretrial hearing 



6 Hiss explained the delay: His lawyer had been in Europe and had just 
returned on September 14. 

7 Increased by later amendment to $75,000. 

8 Before the commencement of the first trial both Chambers and Hiss had 
resigned from their important and lucrative employments. 



THE ALGER HISS CASE 21Q 

Chambers went to Brooklyn and retrieved the package. It 
contained forty-seven typewritten copies of State Depart- 
ment documents, five rolls of microfilm, four memoranda 
sheets in Hiss's handwriting and several papers in the hand- 
writing of Harry Dexter White. 

When the pretrial examination was renewed Chambers 
bided his time until he was asked directly if he possessed 
any documentary proof to support his charge that Hiss was 
a Communist. Then, with a pretense of nonchalance, he 
produced the package which contained all of the material 
he had reclaimed from his nephew Levine, except the five 
rolls of microfilm and the memoranda in the handwriting 
of Harry Dexter White. There was no blinking the devas- 
tating character of the exhibits. At the suggestion of Hiss 
and his lawyers, Judge W. Calvin Chestnut— before whom 
the civil action was pending— was called into consultation. 
There was general agreement that the pretrial hearing 
should be suspended and the exhibits turned over to the 
Federal Department of Justice. Representatives of the de- 
partment sealed the documents and pledged the principals, 
lawyers and court reporters to secrecy pending future 
action. 

The secret was kept until the first of December, when a 
news article appeared in one of the Washington papers that 
some startling information had been developed in the pre- 
trial hearings and that the matter was now under consider- 
ation by the Department of Justice. That was enough to 
galvanize the newspaper bird dogs into action. Hiss, Cham- 
bers, the lawyers, Judge Chestnut and Justice Department 
officials were bombarded with questions. Although all of 
these refused extended comment, a word here and a word 
there prompted one reporter to wireless Congressman Nix- 
on (in the Caribbean on a vacation cruise to South Amer- 
ica) that important new evidence had been produced by 
Chambers in the Hiss-Chambers slander suit— and what 
was his committee going to do about it? Nixon replied, 
asking that Stripling, the committee's chief investigator, be 



220 GUILTY OR NOT GUILTY? 

directed to investigate and report to him at once; commit- 
tee hearings, added Nixon, would be reopened, if necessary. 

Stripling moved in a straight line. He at once got in 
touch with Chambers and asked him if he had withheld any 
evidence from the committee. Chambers admitted he had, 
but he declined to give further information for fear that 
he might subject himself to a proceeding for contempt of 
the Baltimore court. Congressman Nixon was advised. He 
made immediate arrangements to return by air to Washing- 
ton. 

Without waiting for Nixon's arrival, the committee 
acted. Chambers was served with a subpoena duces tecum 
to produce any documents or material still in his possession. 
At his request two of the committee's investigators accom- 
panied him to his Maryland farm. Chambers piloted them 
to his back porch on which lay a number of squashes and a 
pumpkin. A section of the pumpkin had been neatly re- 
moved, the seed and loose tissues had been scraped out and 
the plug replaced in the shell. In the presence of the inves- 
tigators Chambers removed the plug and from the interior 
produced the five rolls of microfilm. These were imme- 
diately christened by the newspapers the "pumpkin 
papers." 

With the dramatic disclosure of the "pumpkin papers" 
the Hiss-Chambers controversy again took the front pages 
of the press. There were suggestions, probably emanating 
from the House committee, that the Department of Justice, 
under administrative direction, was not anxious to air the 
matter. 9 Whatever the fact, with the House committee 



9 A brief collateral note is here necessary. The Eightieth Congress (1946- 
1948) was Republican. The composition of the House Un-American Activi- 
ties Committee, while made up of members of both parties, was predomi- 
nantly Republican. The Republicans had made Communist and "fellow 
traveler" infiltration into government offices and the allegedly "soft" attitude 
of the administration toward them a campaign issue in the 1948 Presidential 
election. The House Un-American Activities Committee was undoubtedly 
used as a sounding board for this theme. The Democrats, in opposition, 
branded the charges of communistic influence in the government as ridicu- 
lous and insincere— to use the much quoted phrase of President Truman, a 
"campaign red herring" to obscure the real issues. 



THE ALGER HISS CASE 221 

clamoring for the production of all documents, the depart- 
ment was forced to choose between surrendering them to 
the committee or keeping them under its control through 
a grand-jury investigation. Accordingly, on December 4 
the New York special grand jury, idle since the preceding 
October, was reconvened. Hiss and Chambers and their 
wives were called before it and subjected to lengthy exam- 
ination. So were numerous other witnesses. 

The House committee held numerous sessions, but with 
the so-called Baltimore evidence impounded with the 
grand jury its scope was limited. It made the most of the 
evidence and information it had. Undersecretary of State 
Welles and Assistant Secretaries Sayre and Peurifoy were 
called before it. Both positively declared that in no cir- 
cumstance could any documents be removed from the State 
Department. The release of the microfilmed information 
in 1938 would have been in the highest degree prejudicial 
to the national interest. The documents filmed were ' 're- 
stricted* ' and extremely confidential, some of them so much 
so that even now, ten years later, they could not with safety 
be made public. To have delivered them to a foreign 
power would have meant putting such a power in posses- 
sion of means whereby it could break the government's 
most secret codes. There was no excuse, they said, for copy- 
ing State Department documents or preparing handwritten 
memoranda concerning them, even for interdepartmental 
use, much less for passing them outside the department. 

Meanwhile the Federal Bureau of Investigation had been 
working frantically to link Hiss to the typewriter on which 
the copies produced by Chambers had been typed. It was 
readily determined that the documents had been written 
on an old-model Woodstock typewriter. There had been 
no Woodstocks in the section of the State Department 
where Hiss was employed. It was ascertained that Hiss at 
one time had had a Woodstock. The Hisses were asked to 
supply specimens of the typing that had been done on this 
machine. They declared that after the lapse of ten years 



222 GUILTY OR NOT GUILTY? 

they were unable to find any. However, from leads devel- 
oped in questioning the Hisses, the FBI agents did turn up 
two such specimens— one, a letter from Hiss to his insurance 
company, and the other, a letter from Mrs. Hiss to the 
headmaster of the private school which her son "Timmie" 
Hobson then attended. Expert comparison of the speci- 
mens with the grand-jury exhibits demonstrated conclu- 
sively that all had been written on the same machine. 

On the fifteenth of December Hiss was again summoned 
before the grand jury. He was examined by United States 
Attorney John F. X. McGohey: 

Mr. McGohey: Mr. Hiss, you have probably been asked 
this question before, but I should like to ask the question 
again: At any time did you, or Mrs. Hiss in your presence, 
turn any documents of the State Department or of any 
other government organization, or copies of any other gov- 
ernment organization, over to Whittaker Chambers? 

Mr. Hiss: Never; excepting, I assume, the title of cer- 
tificate to the Ford. 

Q. In order to clarify it, would that be the only excep- 
tion.? 

A. The only exception. 

A Juror: To nobody else did you turn over any docu- 
ments, to any other person? 

A. And to no other unauthorized person. I certainly 
could have to other officials. 

Mr. McGohey: Now, Mr. Hiss, Mr. Chambers says he 
obtained typewritten copies of official State documents 
from you. 

Mr. Hiss: I know he has. 

Q. Did you ever see Mr. Chambers after you entered 
into the State Department? 

A. I do not believe I did. I cannot swear that I did not 
see him sometime, say, in the fall of '36. And I entered the 
State Department September 1, 1936. 

Q. Now you say possibly in the fall of '36? 

A. That would be possible. 

Q. Can you say definitely with reference to the winter 
of '36? I mean, say, December '36? 



THE ALGER HISS CASE 223 

A. Yes, I think I can say definitely I did not see him. 
Q. Can you say definitely that you did not see him after 
January 1, 1937? 

A. Yes, I think I can definitely say that. 

After this testimony Hiss was confronted with the type- 
writer evidence and asked to explain how the documents 
had been copied on his typewriter. He professed complete 
amazement. "Until the day I die," said he, "I shall wonder 
how Whittaker Chambers got into my house to use my 
typewriter." 

The grand jurors' reaction was of a different character. 
They promptly returned an indictment against Hiss charg- 
ing him with willful perjury. 

On December 16 Hiss appeared before a Federal district 
judge and was arraigned. He pleaded not guilty. Pending 
trial he was released on a $5,000 bail bond. 

The First Trial 

The case of the United States of America versus Alger 
Hiss was called for trial May 31, 1949, five and a half 
months after the indictment. Appearing for the govern- 
ment were John F. X. McGohey, by Thomas F. Murphy, 
Assistant United States Attorney, and Thomas J. Donegan, 
special assistant to the attorney general. Hiss was repre- 
sented by Lloyd Paul Stryker and Edward C. McLean and 
their associates Harold Rosenwald and Harold Shapero. 
District Judge Samuel H. Kaufman presided. 

Murphy, a six-foot-four, solidly built, determined, and 
serious-looking man, was the veteran of many Federal crim- 
inal trials; none, however, of the importance of the one for 
which he had now been made responsible. Donegan had 
taken a leading part in the grand-jury proceedings which 
had resulted in the indictment against Hiss. 

Now that Max Steuer had passed on and Samuel Liebo- 
witz had been elevated to the bench, Lloyd Paul Stryker 



224 GUILTY OR NOT GUILTY? 

was probably the best-known criminal lawyer at the New 
York bar. He had a flair, perhaps a little overdone, for the 
dramatic, but he was indefatigable in the preparation of 
his cases; he was a thorough and, when the occasion de- 
manded, ruthless cross-examiner and an orator of no mean 
ability. 

McLean had taken an active part in the investigation of 
the collateral aspects of Chambers' testimony. Rosenwald, 
a classmate of Hiss's, had participated in the taking of the 
pretrial depositions of the Chamberses in the libel suit and 
was intimately familiar with that record. 

Judge Kaufman was a comparatively recent appointee to 
the Federal bench. His previous experience, both as prac- 
titioner and judge, had run in the direction of civil rather 
than criminal cases. The Hiss trial was his first really 
major assignment. 

The business of selecting a jury proceeded with unusual 
dispatch. Within two and a half hours some forty or more 
veniremen had been called and examined. All had read or 
heard of the case. Many had formed fixed opinions which 
made them vulnerable to challenges for cause. Others, not 
wanted by one side or the other, were eliminated through 
peremptory challenges. The ten men and two women 
finally chosen declared themselves without preconceived 
ideas or prejudices, and were sworn to make a true deliver- 
ance between the Government and the prisoner at the bar. 

Murphy's and Stryker's opposed positions of prosecution 
and defense were detailed in their opening statements. Re- 
duced to the barest outline, the prosecution's promised evi- 
dence was that (1) Hiss had twice perjured himself before 
the grand jury— once, when he swore that he had never 
given any secret documents to Whittaker Chambers and, 
again, when he swore that he had never seen Chambers 
after January 1, 1937; (2) the fact that Hiss had lied would 
be proved by the testimony of Whittaker Chambers that he 
had seen Hiss in 1938 and that Hiss had then given him 



THE ALGER HISS CASE 225 

secret documents of State; and (3) Chambers' testimony 
would be corroborated by the production of four memor- 
anda in Hiss's handwriting and typewritten copies of forty- 
seven original secret State documents, all dated in the first 
three months of 1938, forty-six of which copies it would be 
conclusively shown had been typed on a Woodstock type- 
writer owned by Mr. or Mrs. Hiss. Mindful of the legal re- 
quirement that one cannot be convicted of perjury except 
by the testimony of two witnesses or by one witness and cor- 
roborating facts or circumstances, Murphy concluded his 
opening with the bald statement, "When you have heard 
all of this testimony ... if you don't believe Chambers, we 
have no case under the Federal perjury rule." 

Stryker in his opening pounced on Murphy's closing 
admission and rang the changes on it. Murphy was right, 
declared Stryker. The entire case depended on Chambers. 
If the jury did not believe him, that was the end of the 
matter. And the defense, continued Stryker, would estab- 
lish beyond peradventure that Chambers and not Hiss was 
the liar. This it would do by (1) exhibiting to the jury the 
honorable and notable career of Hiss, (2) showing his ster- 
ling reputation for truth and loyalty, as certified to by the 
most trustworthy people in America, (3) Hiss's unqualified 
denial of all of the charges made against him by Chambers, 
and (4) proving that Chambers— the man of many aliases, 
the confessed Communist, spy and traitor to his country- 
was an infidel, a perjurer, a cheat and a moral leper, "un- 
clean" and utterly unworthy of belief. 

Murphy, presenting the Government's case, was the ideal 
prosecuting attorney: assured but unpretentious, deliberate 
but not hesitant, methodical, quiet-spoken, courteous. The 
first few witnesses were as to more-or-less formal matters: 
literal proof of the allegations of the indictment as to the 
answers of Hiss before the grand jury which were charged 
as perjury, and the records of utility companies which fixed 
with definiteness the exact locations and dates of the vari- 



22>6 GUILTY OR NOT GUILTY? 

ous Washington residences of the Hisses from June of 1934 
to November of 1943. Murphy then called his star witness, 
Whittaker Chambers, to the stand. 

Chambers' appearance was not particularly prepossess- 
ing or inspiring. He was ill-groomed, leaden-faced and ap- 
parently indifferent to the effect of his testimony on the 
jury. It was this latter quality, further manifested by the 
unemotional and frank confessions of his many previous 
derelictions and the simple account of his repudiation of 
communism and his remarkable effort to rehabilitate him- 
self as a man and a loyal citizen, that lent credence to his 
equally unemotional recital of the facts which wove the 
tangled web around Alger Hiss. 

Chambers testified he was born in Philadelphia in 1901 
but moved to Long Island, New York, while still a child. 
He attended the Lynbrook Grammar and Rockville High 
schools, but his schoolwork was interrupted with short 
terms of employment. He had very little parental super- 
vision and practically no religious upbringing. When he 
was seventeen he ran away from home and for two years 
lived a precarious existence, much of the time in highly 
discreditable surroundings. When he was nineteen he 
returned to New York and enrolled for a liberal-arts course 
in Columbia University. 

In his junior year at Columbia he got into difficulty over 
writing and publishing in a campus magazine a playlet en- 
titled "Play for Puppets," which was deemed by the faculty 
blasphemous and immoral. He left Columbia in his junior 
year, drifted around the country for a while and in the 
summer of 1923, with two student companions, worked his 
passage to Europe and traveled for several months in Ger- 
many, France and Belgium. 

On his return to America he re-entered Columbia (by 
misrepresentation in his application, it was later to appear). 
He had for some time been studying Fabian socialism and 
in 1924 joined the Communist party. As his first party 



THE ALGER HISS CASE 227 ' 

activity he got a job with the Daily Worker— collecting un- 
sold copies of the publication from the newsstands— and 
eked out a shabby living with what he got from the paper 
and what he earned as a night attendant in the New York 
Public Library. 

He began to write articles for the Daily Worker as early 
as 1924. In 1926 his work was interrupted because of the 
suicide of his brother. This, according to Chambers, para- 
lyzed all his efforts for several months. He not only aban- 
doned his job with the paper but ceased active association 
with the party. In 1927, however, he returned to the Daily 
Worker ', first as the paid editor of "Workers' Correspond- 
ence" and later as foreign editor. He described the latter 
job as rewriting the foreign cables as they appeared in the 
metropolitan dailies so as to give them a "class slant." By 
self-study and his European travel he had acquired a pro- 
ficiency in German and had done a number of highly 
praised literary translations, among them Felix Salten's 
Bambi. 

Following a clash with some of his associates in 1929, 
Chambers left the Daily Worker for good and became a 
free-lance writer. Several of his stories, all with a definite 
communistic tinge, were published in New Masses and 
were widely commented on for their literary quality. In 
1932 Chambers, aided by Communist influence, became the 
editor of New Masses, a position he held until 1934, when 
he resigned to become an active member of the Commun- 
ist underground. 

Continuing his direct-examination testimony, Chambers 
described the various party underground "units" or "cells," 
their locations, membership and activities. He first met 
Hiss, he testified, in the spring or summer of 1934. He 
identified him in the courtroom— "sitting over there beside 
his wife, Priscilla." The place of the meeting was a Wash- 
ington restaurant, and Hiss was introduced to him by Har- 
old Ware and J. Peters— both Communists. Hiss was then, 



228 GUILTY OR NOT GUILTY? 

according to Chambers' recollection, in the law department 
of the Agricultural Adjustment Administration. After that, 
by party direction, he saw Hiss every two or three weeks— 
always at his home, never at his office. Hiss lived at that 
time at 2831 28th Street. He told of moving his family 
from Baltimore to Washington and of their occupying the 
Hisses' 28th Street apartment (without payment of, or 
agreement to pay, rent) from some time in May until the 
lease expired at the end of June 1935. The Hisses had 
in that interim moved to 2905 P Street N.W. and Hiss had 
become one of the counsel for the Nye Munitions Com- 
mittee. 

According to Chambers, it was at this time that Hiss 
commenced to secure secret and restricted documents from 
the State Department. These were specified papers re- 
quested by him in the name of the Nye Committee which 
dealt with munitions and the munitions trade. Hiss gave 
them to Chambers who photographed them and turned 
over the developed films to J. Peters. The originals were 
then returned to Hiss and, by him, to the State Department. 

In January or February of 1937, so testified Chambers, 
he introduced Hiss to Colonel Bykov, the "head of the 
underground apparatus with which I was then connected 
and with which Alger Hiss would also be connected." The 
Russian colonel spoke German but no English. Chambers, 
speaking German fluently, acted as interpreter between the 
colonel and Hiss. Soviet Russia, said Bykov, was gravely 
threatened by the rising tide of Fascism; documents from 
the United States State Department would be of great help 
to the Soviets; they were particularly interested in informa- 
tion from diplomatic sources affecting Germany, Italy, the 
Far East and Japan. Would Hiss undertake to procure this 
information? Hiss, according to Chambers, gave ready 
assent. 

The transmission of documents, further testified Cham- 
bers, commenced soon afterward. He described how Hiss 
brought the papers home every night, how copies of them 



THE ALGER HISS CASE 229 

were made on the Hiss typewriter, how both the originals 
and copies were photographed, how the originals were re- 
turned to Hiss, and how the typed copies and photographic 
negatives were turned over to Chambers and by Chambers 
to Bykov. This arrangement continued, swore Chambers, 
until April 1938, when he ceased to work with the Com- 
munist party. 

Shortly after he broke with the party, Chambers said, he 
delivered an envelope containing typewritten copies of a 
number of State Department secret documents, several 
microfilms, and some memoranda in Hiss's and Harry Dex- 
ter White's handwriting to his wife's nephew Nathan Le- 
vine, a New York attorney, for safekeeping. He said he re- 
trieved them intact in November of 1948 for production 
at the pretrial hearing in the defamation suit. Forty-seven 
cellophane-wrapped, typewritten copies of documents, four 
handwritten memoranda and two strips of microfilm were 
produced by Murphy and identified by Chambers as hav- 
ing been contained in that envelope. 

So much for Chambers' main story. The balance of his 
direct examination was directed to corroborating details. 
Chambers described Hiss's various Washington residences 
and their interiors and furnishings. He repeated the tes- 
timony he had given before the House Un-American Ac- 
tivities Committee about Hiss's disposition of his old 1929 
Ford, but by the Court's ruling he was not permitted to 
tell his entire conversation with Hiss concerning the trans- 
action. He described a trip he took in the summer of 1937 
with Mr. and Mrs. Hiss to Peterboro, New Hampshire, to 
see Harry Dexter White— the incident was impressed on 
his memory because they stayed overnight there at a tourist 
home called Bleak House and saw a local stock company 
perform Goldsmith's She Stoops to Conquer. 

Chambers further testified that at about the beginning 
of the year 1937 Hiss received, through him, an Oriental 
nine-by-twelve Bokhara rug as "a present from the Soviet 
people in gratitude for the work of American Commu- 



23O GUILTY OR NOT GUILTY? 

nists." In the fall of 1937, said Chambers, Hiss gave him 
$400 in cash with which to buy a new automobile. 

It was Christmas 1938, declared Chambers, when he saw 
Hiss and his wife for the last time. It was at their home 
at 3415 Volta Place N.W. He told Hiss he had definitely 
broken with the Communist party and urged Hiss and his 
wife to do likewise. Hiss refused and said it was a pity 
Chambers was quitting because he had been informed that 
a new and important post was about to be offered him. 

After his break with the party, said Chambers, he con- 
cealed himself "through fear of assassination or kidnaping 
at the hands of Soviet agents." He spent some time in 
Florida. In 1939 he secured a position with Time magazine 
as a book reviewer. In this organization he rose rapidly 
until, at the time of his first appearance before the House 
Un-American Activities Committee, he was a senior editor. 
When he resigned in 1948 he was getting $30,000 a year. 

After he resigned his position with Time he retired to 
his dairy farm in Westminster, Maryland, which he had 
purchased in 1940. It was in that year that he had suffered 
a nervous breakdown which incapacitated him for several 
months. Subsequently he embraced Christianity— first as 
an Episcopalian and later as a Quaker. 

Repeating his testimony before the House Un-American 
Activities Committee, Chambers testified to his having in 
1939 got in touch with Adolf A. Berle, one of the Presi- 
dential advisers then in charge of State Department secur- 
ity, and disclosed to him his knowledge of the Soviet 
underground cells in Washington. In this interview, he 
said, he named six persons as members of the Soviet under- 
ground, among them Alger Hiss and Donald Hiss (Alger's 
brother). 

The cross-examination of Chambers was aptly character- 
ized by some of the press as "ruthless" and, in certain in- 
stances, as "brutal." But if the belligerent Stryker had 
counted on terrorizing or paralyzing Chambers by loud- 



THE ALGER HISS CASE 23 1 

voiced questions, freighted with charges of disgraceful con- 
duct and embellished with insulting and provocative 
characterizations, he must have found the result disappoint- 
ing. The ex-Communist seemed utterly emotionless. He 
admitted calmly, and usually with no attempt at justifica- 
tion, that while a Communist, and later, he had perjured 
himself and that he had stolen, cheated and otherwise 
breached the moral code. However, on the vitals of his 
story— Hiss's treachery and perjury— he was unshakable. 

The ordeal lasted for the better part of four days. The 
examination can be only broadly sketched. Chambers was 
asked if he knew what an oath was and to define it. No 
lexicographer could have found fault with his definition. 
Wasn't he, during his service with the Communist party, 
an underhanded enemy of his country, bent on its destruc- 
tion? He admitted, without hesitation, that he was. When, 
in October 1937, he secured a job with the Federal Na- 
tional Research Project, had he not taken an oath to sup- 
port and defend the Constitution of the United States? He 
had. Had he not then perjured himself and taken the oath 
merely to get the job? "Of course," replied the imperturb- 
able Chambers. Had he not been an atheist and while at 
Columbia written a "Play for Puppets" which blasphemed 
Christ and held up Christianity as "a sadistic religion"? 
Perfectly true, said Chambers. Had he not stolen books 
from the public library? He had not, but he had taken some 
books from Columbia University Library which he had 
failed to return. Had he not lived in a "wretched dive" in 
New Orleans, with a prostitute known as "one-eyed 
Annie"? He replied that he had indeed lived in a wretched 
dive and that one of the inmates was a prostitute known 
as "one-eyed Annie," but he had never "lived with her." 
(Chambers at this time was seventeen years of age.) Had he 
not lived with a prostitute named Ida Dales and had he not 
taken her to his mother's home? All of that, said Chambers, 
was correct, except that Ida Dales was not a prostitute. He 
admitted Communists regarded marriage as a "bourgeois, 



232 GUILTY OR NOT GUILTY? 

middle-class institution" and for their own purposes pre- 
ferred to have party members outside the marriage rela- 
tion. 

Chambers, under further cross-examination, admitted 
having translated and written several pieces of porno- 
graphic literature, identifying among others a poem con- 
tributed to a "slightly erotic magazine/' 

Chambers acknowledged without hesitation that he had 
gone under many aliases— among them J. Charles Adams, 
Charles Whittaker, Arthur W. Dwyer, Lloyd Cantwell, 
Breen and Carl. Asked specifically if he had ever used the 
name "Crosley" he answered that he did not remember 
ever having done so but that it was possible; that he did not 
believe either Mr. or Mrs. Hiss had ever known him by 
that name or any other name than "Carl." 

Stryker brought out the fact that in 1940 Chambers had 
deliberately left a typewriter (a Remington) on an elevated 
or subway train to "get rid of it"— the suggestion (con- 
firmed on redirect examination) being that it had reminded 
him of his discreditable past. 

The cross-examination further developed that Chambers' 
maternal grandmother had died insane, after having been 
committed, and that his brother, after trying to get him to 
enter into a "suicide pact" and after several threats to do 
so, had killed himself by inhaling illuminating gas, and 
that Chambers had been "immobile" for several months 
after that event. 

Stryker spent a great deal of time in going over the 
shorthand and stenotyped transcripts of Chambers' previ- 
ous testimonies before the House Un-American Activities 
Committee, the New York grand jury and representatives 
of the FBI. He developed six or seven instances of indubi- 
table contradictions of Chambers' direct testimony. 

Chambers admitted, without embarrassment, that in 
these respects he had lied or had withheld part of the truth. 
He admitted that in 1939 when he told Berle of his and 
other Communists' connections with the so-called under- 



THE ALGER HISS CASE 233 

ground "cells," he had not told him about Colonel Bykov 
or that he (Chambers) had conspired with Hiss to abstract 
secret papers from the State Department; and, further, that 
he had not told the truth when he swore before the House 
Un-American Activities Committee that he had told Berle 
all he knew. He admitted also that he had perjured himself 
when he testified before the grand jury in October 1948 
that he had no knowledge of espionage. 

Stryker examined Chambers in great detail about his 
concealment of the typewritten copies, memoranda and 
microfilms with his nephew and their subsequent produc- 
tion. By showing that Chambers was alone in the Levine 
kitchen for a matter of several minutes, he attempted to 
raise the inference that the envelope left with Levine in 
November 1938 had not contained the papers; that the 
papers had been secured long after 1938 and slipped into 
the envelope by Chambers. 

Stryker ridiculed the idea that when Chambers broke 
with the Communists he was in fear of his life. He made 
Chambers admit that, while he was presumably afraid of 
foul play when he last visited the Hisses to beg them to 
follow his example and leave the Communist party, he 
nevertheless remained to supper and nothing happened to 
him. Also, that while professing to hide from these would- 
be assassins and protecting himself with an ever-ready 
loaded revolver, he had, unarmed and alone, made several 
trips to Baltimore and New York. 

Asked on redirect examination the reasons for his admit- 
ted perjuries in withholding information on espionage 
from the House Un-American Activities Committee and 
the New York grand jury, Chambers said there were two 
reasons: He had wanted to disclose in part and paralyze the 
Communist conspiracy and, at the same time and so far as 
he could, protect the persons involved with him in that 
conspiracy. 

"Any revelation involves injury," said Chambers, "but 



234 ' GUILTY OR NOT GUILTY? 

there are degrees of injury and I sought to keep them from 
the ultimate consequences of what they had done. I was 
particularly anxious not to injure Mr. Hiss any more than 
necessary because of past friendship and because, by com- 
mon consent, he had been a very able man. Rather than 
reveal the extent of his activities, I chose to jeopardize my- 
self." 

Murphy developed that Chambers had five official 
sources from which he secured confidential and restricted 
information: Hiss, Henry Julian Wadleigh, 10 Ward Pig- 
man, 11 Vincent Reno, 12 and Harry Dexter White, de- 
ceased. 13 He repeated that all of the documents and micro- 
films which he had identified on his direct examination 
came from Hiss and from no other source. 

On recross Stryker, in an examination teeming with sar- 
casm, ridiculed Chambers' testimony that he had perjured 
himself to avoid injuring Hiss. Chambers stoutly main- 
tained that it was much less harmful to Hiss to charge him 
with having been a Communist than to charge him with 
having been a Soviet spy. 

At the end of seven days of grueling examination Cham- 
bers left the stand "as serenely unperturbed," to quote a 
phrase from one newspaper, "as when he had answered to 
his name in response to Mr. Murphy's first question." 

Murphy proceeded next to offer proof of "facts or cir- 
cumstances" to corroborate Chambers' story of his rela- 
tionship with Hiss. 14 



10 Later called by the Government as a witness. 

11 Chemist in the United States Bureau of Standards. He denied before 
the grand jury that he had ever known Chambers. 

12 Mathematical expert at the United States Proving Ground at Aberdeen, 
Maryland. 

13 Former Assistant Secretary of the United States Treasury and coauthor 
of the Bretton Woods Monetary Plan. Shortly after Chambers testified, White 
appeared before the House Un-American Activities Committee and denied 
the charges of Chambers and Elizabeth Bentley that he was or had ever been 
a Communist. He succumbed to a heart attack a few days after his appear- 
ance before the committee. 

14 The order in which the witnesses were called following Chambers has 
been disregarded. 



THE ALGER HISS CASE 235 

To lay the foundation for expert opinion that the type- 
written copies of documents produced and identified by 
Chambers had been written on the Hiss typewriter, four 
witnesses appeared to identify letters and papers which had 
been written on the Hiss machine. A record keeper at the 
University of Maryland produced a letter of inquiry writ- 
ten by Mrs. Hiss in April 1937 concerning her enrollment 
for a course in inorganic chemistry. The headmaster of a 
Washington school identified a letter written by the Hisses 
in September of 1936 regarding their son Timothy's ad- 
mission. A former classmate of Mrs. Hiss at Bryn Mawr 
identified a three-page typewritten report from Mrs. Hiss, 
dated May 18, 1937, concerning her administration during 
the year 1937-1938 of the presidency of the Washington 
Bryn Mawr Alumnae Association. A representative of an 
insurance company produced a typewritten letter he had 
received from Alger Hiss in 1933. All of these were re- 
ceived in evidence as standards of comparison with the 
typewritten copies produced by Chambers. 

A custodian of records at Columbia University produced 
the school's records to show that in 1927 Mrs. Hiss had 
taken an English and typewriting course and had satisfac- 
torily passed the school's proficiency test. 

An employee of the Eastman Kodak Company testified 
that one of the microfilms produced by Chambers had been 
manufactured by that company in the last half of 1937. A 
representative of the Dupont Company swore that the other 
microfilm had been made by that company either in 1936 
or 1944. A laboratory technician from the Federal Bureau 
of Investigation testified that the photographs of the docu- 
ments produced by Chambers had been made on a Leica 
camera owned by a man named Felix Inslerman of Balti- 
more. Inslerman had been previously identified by Cham- 
bers as a trusted Communist who did most of the secret 
photography for the underground. 

Mrs. Chambers' nephew Nathan L. Levine took the stand 
to corroborate Chambers' testimony that in 1938 he had 



236 GUILTY OR NOT GUILTY? 

turned over to him for safekeeping a large, brown, sealed 
envelope. He testified that he had put it in back of a closet 
in a dumb-waiter shaft in his mother's home in Brooklyn, 
and it was still there, sealed and covered with dust, on 
November 14, 1948, when Chambers called for it and he 
returned it to him. He also testified that while he cleared 
up the dust in the bathroom, Chambers had the envelope 
and was alone in the kitchen— a point of which Stryker at- 
tempted to make much in his later argument. 

On June 15 Murphy commenced the tedious process of 
identifying as copies of official State documents the type- 
written papers which had been produced by Chambers* 
Two witnesses were used for this purpose: Eunice Lin- 
coln, Assistant Secretary of State Sayre's private secretary 
and an employee of the State Department for more than 
thirty years, and Walter H. Anderson, chief of the State 
Department's Records Branch. Miss Lincoln testified she 
thought the four handwritten memoranda which had been 
produced by Chambers were in Hiss's handwriting. 

Murphy had followed a prosecutor's approved technique 
for presenting a mass of documentary evidence. To capture 
and hold the jurors' attention, the Chambers copies had 
been "blown up" into photographic enlargements five feet 
high and four feet wide, and placed on an easel of even 
larger dimensions. Beginning with the enlargement at the 
top of the pile, the witness was handed a document identi- 
fied as an original from the State Department files and 
asked to read it aloud so the twelve jurors could follow and 
compare it with the enlarged copy on the easel. This course 
was pursued until all the Chambers copies had been com- 
pared. It took the better part of a day and a half to demon- 
strate that the papers produced by Chambers were sub- 
stantially exact copies of the government's original secret 
files. One of the documents, by consent of all parties, was 
withheld from the jury and the public "for reasons of na- 
tional security." 



THE ALGER HISS CASE 237 

The documents were, for the most part, cables from top- 
level State Department officials in European and Asiatic 
capitals recording pre- World War II diplomatic maneuvers 
by the United States and foreign nations in those areas and 
exchanges of highly confidential information concerning 
foreign policy between high-ranking officials in the diplo- 
matic service. 

However much the defense had belittled or would at- 
tempt to minimize the importance of these documents, a 
jury of twelve ordinary men and women could not but be 
awed by their recital. Regardless of whether the damage 
done by their release had been great or small, they were 
after all secret documents stolen from the government's 
files by the agents of Soviet Russia. It was proved beyond 
all doubt that the documents were confidential and re- 
stricted. The witness Anderson identified the code mark- 
ings on each one to establish that fact beyond cavil. 

McLean conducted the cross-examination of Anderson. 
The examination was intelligent and yielded one valuable 
nugget for the defense: Security regulations in the State 
Department were not nearly so strict in 1938 as they were 
in 1948; copies of the so-called secret documents were dis- 
tributed to at least fifteen different agencies of the gov- 
ernment, where a total of 236 persons might have had access 
to them; other copies remained in the code room in un- 
locked files for several days before they were destroyed; and 
no check was maintained to see that all copies made were 
either returned to the cabinets or destroyed. 

To climax the evidence on the documents an experi- 
enced questioned-document examiner from the Federal 
Bureau of Investigation was called to state his opinion, with 
supporting reasons, that the four handwritten memoranda 
were in Alger Hiss's handwriting and that all the Chambers 
copies but one had been typed on the same Woodstock 
typewriter on which the specimens traced to the Hisses had 
been written. Before the expert could state his opinion as 



238 GUILTY OR NOT GUILTY? 

to the four handwritten notes, Stryker was on his feet to 
admit that they had been written by Hiss. The witness 
then proceeded to demonstrate by photographic and sec- 
tional enlargements the unquestioned similarity of type and 
impression peculiarities in forty-six of the forty-seven 
Chambers copies and the exemplars— positive identities, 
among others, of misalignments, bruised letters, battered 
serifs (the "tails" on the ends of some letters), letters off 
footing and off-spacing between letters. 

To corroborate Chambers' testimony that in the fall of 
1937 Hiss had given him $400 cash with which to buy a 
new automobile the prosecution called a vice-president of 
the First National Bank of Washington, who testified that 
on November 19, 1937, Mrs. Hiss had withdrawn $400 from 
her and her husband's joint account and after the with- 
drawal there was only $40.46 left on deposit. He was fol- 
lowed by an official of a Randallsville, Maryland, motor 
company, who swore that his concern sold and delivered a 
Ford sedan to Mrs. Chambers on November 23, 1937. The 
price paid was $486.75 and an older Ford was traded to 
make up the full purchase price. 

To corroborate Chambers' testimony about the Soviet 
gift to Hiss of the Oriental rug about the first of the year 
^QSly a well-known New York rug dealer took the stand 
and testified that on December 29, 1936, an interior decor- 
ator named Schoen bought four such rugs and on his order 
they had been delivered to Dr. Meyer Shapiro, an associate 
professor of fine arts at Columbia University. The price 
paid for the four rugs was $1,476.71. Professor Shapiro 
followed Schoen in the witness box and testified that in 
December of 1936 Chambers had asked him to advance him 
the money with which to buy four Oriental rugs. He had 
advanced the money and commissioned Schoen to buy 
them. When he received them, he turned them over to 
Chambers. Chambers, the witness testified, repaid the loan. 
If this transaction appeared unusual, it was explained by 



THE ALGER HISS CASE 239 

the further testimony of Dr. Shapiro that he and Chambers 
were close friends; they had been classmates at Columbia 
and Shapiro had accompanied Chambers on his jaunt to 
Germany and Belgium in 1923. 

To corroborate Chambers' testimony of his having made 
a trip with the Hisses to Peterboro, New Hampshire, in 
August of 1937 to visit Harry Dexter White and his having 
seen there a performance ol She Stoops to Conquer, an Edith 
Stearns testified that she had been the managing director of 
the Peterboro players and that play had been produced by 
the company in Peterboro between August 10 and 15, 1937. 
She was followed by a State Department employee who 
produced records showing that Hiss was on vacation leave 
from August 2 to August 14. 

A representative of the Federal Bureau of Investigation 
testified he had accompanied Chambers on a tour of Wash- 
ington and that Chambers had located and readily identi- 
fied the various Hiss residences which had figured in his 
testimony. Photographs of the places had been taken and 
identified by Chambers' signature. They were received in 
evidence. 

The twenty-seventh witness called by the Government 
was Esther Chambers. She was a little woman, dark-com- 
plexioned, spectacled, plainly dressed and without make-up. 
She was visibly nervous throughout her examination and 
spoke so low at times that she could scarcely be heard. She 
told of her early life and education, her study of painting, 
her employments and her marriage in 1931 to Whittaker 
Chambers. She and her husband now worked on their 
dairy farm in Maryland, and, among other chores, she said 
she milked eighteen cows and took care of forty head of 
cattle. 

She admitted knowing of Chambers' membership and 
activities in the Communist party. She had never been a 
party member herself, but she had been sympathetic to the 
cause. She had seen Mr. and Mrs. Hiss on many occasions. 



24O GUILTY OR NOT GUILTY? 

She identified them in the courtroom. The Hisses and the 
Chamberses, she said, had been very close friends. They 
had made excursion trips and celebrated holidays and an- 
niversaries together. In the summer of 1935 they had spent 
ten days in one another's company in a cottage at Smithtown 
on the Delaware River. Mrs. Hiss had taken care of the 
Chamberses* baby while Mrs. Chambers painted. She had 
painted a portrait of Mrs. Hiss's son Timothy and given it 
to her for a present. She had also, Mrs. Chambers said, given 
her one or two other paintings. 

Under Murphy's easy questioning she detailed the fur- 
nishings in the various Hiss homes— the pattern and color 
of the wallpaper, a chintz bedspread bought by Mrs. Hiss 
at a sale, the purple window draperies and the various ar- 
ticles of furniture. Mrs. Hiss, said the witness, called her 
husband "Hilly" and he called her "Pross." The Hisses 
called her "Lisa" and her husband "Carl." She added, "We 
never had a last name." 

Mrs. Chambers testified they had gone under various 
names— Cantwell, Dwyer and Breen— but never under the 
name of Crosley. 

Stryker's cross-examination of Mrs. Chambers was as 
ruthless as his examination of Chambers had been. Prac- 
tically every question carried an accusation. Before her 
marriage hadn't she been associated with the Garment 
Workers' Union? Hadn't she participated in street riots 
and been a disturber of the peace? Didn't she know that 
her husband, as a Communist, was dedicated to the over- 
throw of the government of the United States by violent 
means? Hadn't she masqueraded under false names and 
deceived and abused the confidence of decent people? 

Mrs. Chambers followed her husband's technique: She 
admitted without hesitation or explanation the facts 
charged. 

Stryker did succeed in hopelessly confusing her on the 
dates of the various occurrences about which she testified. 



THE ALGER HISS CASE 24 1 

She accounted for her contradictions by the simple state- 
ment that she never had been very good at remembering 
dates. 

With good trial strategy Murphy closed the Govern- 
ment's case with his best witness, excepting Chambers. This 
was Henry Julian Wadleigh. Named in various accusa- 
tions, Wadleigh had been summoned before the House 
Un-American Activities Committee to answer whether he 
was or had ever been a Communist and to tell what he 
knew of Soviet espionage. There he had asserted his con- 
stitutional privilege against self-incrimination. This in 
itself had been one of the sensational highlights in the 
committee's hearings. 

Under Murphy's quiet interrogation, Wadleigh testified 
he was a native American, the son of an Episcopalian min- 
ister and a graduate of Oxford and London universities. In 
the early 1920s he had returned to America and taken post- 
graduate work at the University of Chicago. He obtained 
a government position, first with the Federal Farm Bureau, 
then in the Agricultural Department; and, in March of 

1936, he had entered the Department of State. He said 
that, while he "collaborated with the Communists for a 
certain period," he was never a party member. He ad- 
mitted, however, that shortly after he entered the State 
Department, he commenced to select what looked like im- 
portant diplomatic correspondence ("rich finds" was his 
expression) and to turn it over to two Soviet agents known 
to him as "Carpenter" and "Zimmerman." Zimmerman 
was identified as a copywriter on the Daily Worker. It was 
Carpenter, testified Wadleigh, who introduced him to 
Chambers, to whom he also gave secret and restricted docu- 
ments. Wadleigh would have testified that Chambers, in 

1937, gave him an Oriental rug as a token of Soviet appre- 
ciation, but Stryker's vehement objection was sustained by 
the Court. 

Outside of perhaps showing that Wadleigh was some- 



242 GUILTY OR NOT GUILTY? 

thing of a "smart aleck," Stryker's cross-examination ac- 
complished nothing. 

Wadleigh's testimony was a serious blow to the defense. 
He was the only witness to corroborate Chambers on the 
existence of a spy ring and an organized Soviet plot to ob- 
tain access to secret documents of State. His admission that 
he abstracted the papers from his department and gave 
them to Chambers not only corroborated the latter's story 
that Wadleigh was one of the Soviet's sources of informa- 
tion, but lent credence to the rest of Chambers' story. Per- 
haps of greater significance, in view of Hiss's announced de- 
fense, was the fact that here was a man who, while he had 
not attained to the eminence of Hiss, had a comparable 
background of breeding and education and was not above 
lending himself to the treacherous practices which were 
charged against Hiss. 

Two more relatively unimportant witnesses testified 
briefly on minor points, and the Government rested its case. 

The defense was introduced with a parade of "character 
witnesses"— men who had known Hiss and were familiar, 
before the date of the indictment, with his reputation for 
integrity, veracity and "loyalty to his government." The 
impressive array included Dr. Harry Hawkins, former chief 
of the State Department's Trade Agreements Section; 
Charles Darlington, an ex-assistant chief of the same sec- 
tion; John W. Davis, famous New York lawyer and, in 
1924, the Democratic candidate for the Presidency; Charles 
Fahy, an ex-Solicitor General of the United States; retired 
Admiral Arthur Hepburn, naval delegate to the San Fran- 
cisco Conference of the United Nations; Felix Frankfurter 
and Stanley Reed, associate justices of the Supreme Court 
of the United States; Calvert Magruder, a judge of the 
United States Court of Appeals of Massachusetts; Charles 
E. Wyzanski, a Federal district judge in Massachusetts; Dr. 
Stanley Hornbeck, former head of the Far Eastern Division 



THE ALGER HISS CASE 243 

of the State Department; and Gerard Swope, General Coun- 
sel of the International General Electric Corporation. 
United States Ambassador at Large Philip Jessup and Gov- 
ernor Adlai Stevenson of Illinois gave their testimony by 
deposition. With varying emphasizing adjectives, each of 
these testified that Hiss's reputation in the respects indi- 
cated was good. 

To meet the prosecution's testimony that Chambers had 
taken a trip with the Hisses to Peterboro in August of 
1937, the defense called a director of a summer camp at 
Chestertown, Maryland, who testified that Timothy Hob- 
son and Ruth Fansler (a niece of Mrs. Hiss) enrolled for 
the camp about July 1, 1937; that while they were there the 
boy met with an accident in which he broke his leg, and 
during the first half of August both Mr. and Mrs. Hiss lived 
in a near-by apartment and went to the camp frequently to 
see Timothy and help teach him to use his crutches. 

A prim, elderly lady from Hancock, New Hampshire, 
testified that she operated Bleak House, a tourist home in 
Peterboro, at the time Chambers testified he was there with 
the Hisses and that she had never seen either Mr. or Mrs. 
Hiss before she met them in Stryker's office the evening be- 
fore. 

A man named Boucot testified that in 1935 he rented a 
cottage at Smithtown on the Delaware River to the Cham- 
berses, under the name of Breen, and the only woman he 
ever saw in the cottage after that was Mrs. Chambers. 

A next-door neighbor of the Hisses (when they lived on 
30th Street) testified that he dropped in on them frequently 
at almost any hour of the day or night and had never en- 
countered either Mr. or Mrs. Chambers. He also testified 
that he visited the Hisses a number of times after they 
moved to Volta Place and on these visits never met either 
of the Chamberses. 

A Washington building contractor testified to exterior 
alterations he had made in the 30th Street and Volta Place 



244 GUILTY OR NOT GUILTY? 

residences of the Hisses in 1946. This testimony was to 
establish that Chambers had misdescribed the houses as 
they appeared in the 1930s. 

One of the more important witnesses for the defense was 
Claudia Catlett, a Negro woman, who had been the Hisses' 
maid while they lived at the P Street and 30th Street resi- 
dences and during part of the time they were at Volta Place. 
Under McLean's questioning she testified she had seen 
Whittaker Chambers on one occasion, when he called at the 
P Street apartment and announced himself as "Crosby." 
She swore she had never seen Mrs. Chambers. The next 
time she saw Chambers, she said, was in the spring of 1949 
when he was with some FBI men. Chambers then asked 
her about the furniture and rugs the Hisses had, where the 
kitchen was and where "Timmie" slept. Her most startling 
testimony concerned the Hiss typewriter. Either when the 
Hisses moved from P Street to 30th Street, or when they 
moved from 30th Street to Volta Place, Mrs. Hiss, she said, 
had given her an old typewriter for the children to play 
with, and her daughter Burnetta had later used it in her 
schoolwork. 

On cross-examination she said she could not tell what 
kind of a typewriter it was. She admitted some FBI men 
had come to see her early in 1949, and she had told them 
she did not remember anything about any typewriter. She 
said that at that time she didn't remember; that she first 
remembered about the typewriter sometime later in 1949 
when one of her sons told her they had got a typewriter from 
the Hisses. 

The testimony of Mrs. Catlett was followed by that of her 
two sons, Raymond and Perry. Raymond Catlett (who was 
more often called "Mike") testified that he had done house 
and yard work at the Hiss residences and had never at any 
time seen Mr. and Mrs. Chambers. He swore that "one 
time" when the Hisses moved they gave him some old 
clothes and a typewriter; it was a Woodstock and "it was 
broke"— the keys were jammed, a wheel was broken off, the 



THE ALGER HISS CASE 245 

ribbon would not work and "it wouldn't type good." A 
Woodstock typewriter was produced by the examiner and 
Catlett testified it was the typewriter he had been talking 
about. He said that when the typewriter had been given to 
him he took it to the place where the Catletts lived on P 
Street; his sister-in-law had it for a while, and then his 
sister Burnetta "got hold of it." He also told how he as- 
sisted McLean to find the typewriter; how he talked with 
many people about it and finally located it in the possession 
of an expressman named Lockey. 

On cross-examination Murphy pressed Catlett for de- 
tails. Despite all his efforts he could not get him to fix 
even approximately the date when he got the typewriter. 
He admitted that in May of 1949 he had been visited by 
some FBI men who asked him about the typewriter. He 
said he told them nothing, but reported to Donald Hiss that 
the "government" men had been inquiring about the type- 
writer. Donald Hiss, he said, had given him forty dollars 
to use in trying to find the typewriter. 

On redirect it was brought out that after the typewriter 
had been found Catlett was again interviewed by agents 
from the Federal Bureau of Investigation. They questioned 
him, he said, from four-thirty until nine o'clock, and one of 
the agents, a man named Jones, told him the typewriter was 
worth $200 and they would give him that if he would get 
it for them. 

Perry Catlett testified that he also had worked for the 
Hisses off and on as a handy man. He corroborated his 
mother's and brother's statements that the Hisses had given 
them a typewriter. He fixed the time: It was when the 
Hisses moved from 30th Street to Volta Place (this would 
have been December 1937). He said the machine was in 
"pretty bad condition" and he took it to a repair shop on 
the corner of K Street and Connecticut Avenue to have it 
repaired. 

Ira Lockey, in whose possession the typewriter was fi- 
nally found, was the next witness called. He testified he 



246 GUILTY OR NOT GUILTY? 

had got the typewriter from a woman named Marlow, in 
payment of a moving job he had done for her. He wanted 
it for his daughter so that she could type some of her home- 
work on it. On April 16, 1949, he testified, he sold the 
typewriter to Counsel McLean for fifteen dollars. 

One Edward E. Edstrom, a resident of Valley Stream, 
Long Island, testified he had gone to school with Cham- 
bers in Rockville, Long Island, when they were boys. 
Chambers had always been untidy in his dress and careless 
of his person. He always needed a haircut. He did peculiar 
things such, for instance, as walking in the creek with his 
shoes on, to cool his feet. Chambers, he said, had passed off 
an obscene composition as his own, and it later turned out 
it was stolen from the earlier work of a French writer. He 
had written a class prophecy which was rejected by the 
school authorities as unfit. He wrote a second one which 
was deemed acceptable, but when he came to deliver it he 
had maliciously substituted the first one. 

On June 23 Alger Hiss took the stand in his own defense. 

The commencement of his examination was dramatic. 
To a series of questions, voiced by Stryker in his most im- 
pressive manner, the former diplomat answered with equal 
impressiveness that he was not and never had been a mem- 
ber of the Communist party, a fellow traveler or a Com- 
munist sympathizer. He denied that he had ever "fur- 
nished, transmitted or delivered" any "restricted, secret or 
confidential documents of the State Department of any 
kind, character or description whatever* ' to Whittaker 
Chambers or any other unauthorized person. 

Stryker then took the witness in great detail through his 
school and later career— his confidential association, as sec- 
retary, with Supreme Court Justice Oliver Wendell 
Holmes, the confidential nature of his later assignments to 
the Agricultural Adjustment Administration, the Nye Com- 
mittee, the Solicitor General's office, the State Department, 
as executive secretary of the Dumbarton Oaks Conference, 
as an adviser to the President of the United States at Yalta 



THE ALGER HISS CASE 247 

and, finally, as secretary-general of the San Francisco Con- 
ference on International Organization, which led to the 
formation of the United Nations. 

Under further direct examination Hiss told of his first 
meeting and subsequent relations with Chambers. It was a 
repetition of the testimony given before the House Un- 
American Activities Committee. He denied Chambers' 
testimony of his having met Bykov and of Chambers there- 
after visiting him regularly every week or two to pick up 
copies of State papers for transmittal to Bykov. 

Hiss flatly contradicted the testimony of Chambers that 
he and his wife had made a trip with him to Peterboro, 
New Hampshire, during the first half of August 1937; they 
had been continuously at Chestertown during all of that 
period. He further denied that he or Mrs. Hiss had ever 
visited the Chamberses at Smithtown or had ever cele- 
brated any holidays or anniversaries with them. 

He slid over the 1929 Ford incident with the statement 
that from inquiries he made he found the car had a trade-in 
value of only twenty-five dollars; that he had intended to 
get a new car in the spring and told Chambers he could 
have the use of the old car. 

He admitted that while the Chamberses visited at the 
P Street house or lived in the 28th Street apartment Mrs. 
Chambers painted a picture of "Timmie." About the Ori- 
ental rug, he declared Chambers gave it to him sometime in 
the spring of 1936, while the Hisses were living on P Street; 
that Chambers said it had been given to him by a wealthy 
patron. 

Hiss denied Chambers' testimony that he had given or 
lent him $400 in November of 1937 with which to buy an 
automobile. He admitted Mrs. Hiss withdrew $400 from 
their joint bank account on November 19, 1937, but said 
she took the money out of the bank and used it in cash 
purchases for additional furniture which they needed in 
the Volta Place house. 

He admitted the initials "A. H." on two of the Govern* 



248 GUILTY OR NOT GUILTY? 

ment exhibits produced by Chambers were in his hand- 
writing; also, that the specimens of typewriting identified 
by the Government as standards of comparison had been 
written either by him or Mrs. Hiss on the Woodstock type- 
writer. 

Hiss told of his first learning of the charge made against 
him by Chambers before the House Un-American Activi- 
ties Committee and of his prompt demand on the commit- 
tee to be heard in denial, and he added that neither then 
nor at any later time before the committee or the grand 
jury had he refused to answer any question put to him on 
the ground of possible self-incrimination. He gave his 
version of what he had testified to before the committee 
during his confrontation of Chambers. 

He testified further that when Chambers, in response to 
his challenge, publicly repeated his charge that Hiss was a 
Communist, he instituted a civil action for defamation and 
proceeded promptly to force the case to a determination by 
a pretrial examination of Chambers; that when Chambers 
produced the typewritten copies and memoranda, he in- 
sisted they be immediately turned over to the Department 
of Justice. 

He had testified, he said, before the grand jury that he 
was under the impression he had the Woodstock type- 
writer while they lived on P Street and for a part of the 
time they lived on Volta Place, but that impression had 
now been changed by the information discovered by his 
counsel with respect to the Catletts. 

He concluded his testimony with the emphatic statement 
that he had entered a plea of not guilty to the indictment 
against him and was "in truth and in fact" not guilty. 

In marked contrast to Stryker's "hammer and tongs" 
technique, Murphy went about the cross-examination of 
Hiss quietly but with an unmistakable air of confidence 
and determination. 



THE ALGER HISS CASE 249 

Hiss was led by Murphy's questions to admit that he had 
seen and talked to Chambers on fifteen different occasions. 
He admitted they might have become sufficiently familiar 
to call each other by their first names. What had they 
talked about on these numerous occasions? Always, said 
Hiss, about the activities of the Nye Committee, or art or 
literature, the subleasing of the 28th Street apartment, or 
casual incidentals; never anything about State Department 
papers, Communists or communism. 

Throughout his long cross-examination Murphy kept 
probing the weak spots in Hiss's story— the old 1929 Ford, 
the Woodstock typewriter, and the suspicions and rumors 
of Hiss's Communist connections before Chambers had 
made his charge. The cross-examination was deliberately 
disorderly and, therefore, disconcerting--a series of ques- 
tions which seemingly exhausted a particular subject, then 
a shift to an entirely different topic, and then, sometimes 
hours later, a return to the first subject from an entirely 
new approach. 

About the old Ford, Chambers, said Hiss, had told him 
he had no means of getting about and Hiss had lent him 
the car once or twice while he occupied the 28th Street 
apartment. In the fall of 1935, with Hiss's permission, he 
used it continuously for about two months. Chambers re- 
turned the old car and with it the keys. Meanwhile Hiss 
had bought a new car. Then, several months later— May or 
June 1936— Chambers called on Hiss and reminded him of 
a previous promise he had made to give Chambers the old 
car when he got a new one. Hiss then turned over the 
Ford to him, together with the keys and a District of Co- 
lumbia certificate of title. This, according to Hiss, was the 
last time he saw Chambers before the confrontation in the 
Commodore Hotel in 1948. 

With deadly persistence Murphy brought out the im- 
probabilities in the story. Hiss was made to admit that 
he had given Chambers the car,, despite the fact that Cham- 



25O GUILTY OR NOT GUILTY? 

bers had then defaulted in the payment of the rent of the 
apartment, that Chambers owed him a balance of twenty 
dollars for cash advances, and he had come to regard Cham- 
bers as an undesirable associate and a "dead beat." Al- 
though Chambers may have considered the gift of the 
Oriental rug a discharge of his obligations, Hiss said he had 
not regarded it as a "satisfactory equivalent" of what Cham- 
bers owed him. 

Hiss denied ever having said to Chambers that he wanted 
to give the old car to some deserving organizer or that he 
ever assigned the title of it to a man named Rosen. Con- 
fronted with the assignment on the reverse side of the cer- 
tificate of title to the Cherner Motor Company, dated July 
23, 1936, purportedly signed "Alger Hiss" and acknowl- 
edged before one W. Marion Smith, a notary public, Hiss 
remembered that someone brought the assignment into his 
office in the Department of Justice and told him he had 
disposed of the car some time before but had not completed 
the formal assignment of it; that he thereupon signed the 
paper and acknowledged his signature before the notary. 

All of this, as Murphy then proceeded to show, was 
widely at variance with Hiss's sworn testimony before the 
House Un-American Activities Committee. 

Hiss's handling of the troublesome Woodstock type- 
writer was not much better. He remembered the old Wood- 
stock. It was an office machine given to Mrs. Hiss by her 
father. He admitted after some hedging that he had testi- 
fied before the grand jury he had a "visual recollection" of 
the typewriter at Volta Place and had told the FBI agents 
that Mrs. Hiss had disposed of the typewriter to the Salva- 
tion Army or some junk dealer in 1938. Now, however, he 
testified, he was positive, in view of the Catletts* testimony, 
that the typewriter had been given to the Catletts in Decem- 
ber of 1937 when the Hisses moved from P Street to Volta 
Place. Confronted with more of his testimony before the 
grand jury, Hiss was compelled to admit that he had made 



THE ALGER HISS CASE 25 1 

no mention there of the gift of the typewriter to the Catletts 
and, when asked the names of his former house servants, 
had not mentioned "Clytie" Catlett. He said he thought 
she was dead. 

Hiss was questioned at length about his conversation 
with Secretary of State Byrnes in March 1946, concerning a 
rumor which had come to the secretary that Hiss had Com- 
munist affiliations. Hiss said he had been called into 
Byrnes's office and the secretary had told him that he had 
been informed two or three members of Congress were go- 
ing to make speeches on the floor of the House to the effect 
that there were a number of Communists in the State De- 
partment and that they had named Hiss as one of them. 
That afternoon, said Hiss, he went to Ladd of the Federal 
Bureau of Investigation and told him of his conversation 
with Secretary Byrnes and said he wanted to submit himself 
to any interrogation the bureau might propose. He said 
that at that time he answered frankly and fully all questions 
put to him concerning his membership in various societies 
and his previous associations with Lee Pressman and others. 

Hiss admitted that shortly before he was elected to the 
presidency of the Carnegie Foundation, he had had a talk 
with John Foster Dulles, one of the trustees, in which they 
discussed rumors which had reached Dulles that Hiss was 
a Communist. Hiss said he then told Dulles of his previous 
talk with Secretary Byrnes and his subsequent interview 
with representatives of the Federal Bureau of Investigation, 
and he had "checked with Secretary Byrnes specifically" as 
to whether the issue had been laid to rest. He was told it 
had been. On further cross-examination it appeared that 
the "specific checking" had not been with Secretary Byrnes 
personally but with Assistant Secretary Dean Acheson. Hiss 
also testified that he had two later talks with Dulles about 
the rumors or charges that he had been a Communist: the 
first, in March of 1947, after he had assumed the presidency 
of the Carnegie Foundation and had appeared before the 



252 GUILTY OR NOT GUILTY? 

grand jury, and the second, in the summer of 1948, after 
the congressional-committee hearing had started. He denied 
that on the latter occasion Dulles suggested to him that out 
of consideration for the endowment he should resign as 
president. 

Under further cross-examination Hiss testified that the 
first time he heard the name Whittaker Chambers was in 
May 1947, when some FBI agents called at his office in the 
Carnegie Endowment Building and asked him what he 
knew -about some forty or fifty persons whose names they 
mentioned, and the name Whittaker Chambers was in the 
list. It was next mentioned to him by a personal. friend in 
March or April of 1948. He said he heard it a third time 
on August 2, 1948, when he was called on the telephone by 
a number of different newspapermen, who told him they 
understood from "someone close to the committee" that a 
man named Whittaker Chambers was going to appear be- 
fore the committee the next day and say that he (Hiss) was 
a Communist. He added that before August 3, 1948, he 
made no attempt to find out who Whittaker Chambers was. 

Hiss admitted knowing Noel Field 15 well enough to 
have entertained him at dinner at his house. He denied 
ever having discussed the subject of Field's services for the 
Communist party with a woman known as Hede Eisler, 
Hede Gumpertz or Hede Massing, or that he had ever 
known a woman under any of those names. 

For the alleged purpose of impeaching Hiss's direct tes- 
timony, Murphy read practically the entire transcript of 
the House committee's proceedings in the confrontation of 
Hiss and Chambers in the Commodore Hotel. 

Mrs. Hiss followed her husband on the stand. Her testi- 
mony paralleled his— sometimes literally. She had never 
known the Chamberses under any name but Crosley. She 
had never called them by their first names, and they had 
never called her by her first name. The Chamberses, she 



15 Field was well known as a Communist at the time of the trial. 



THE ALGER HISS CASE 253 

said, had spent two nights with them at the P Street house, 
while they awaited the delivery of their own furniture to 
the 28th Street apartment. She denied Mrs. Chambers' 
testimony as to the furniture in their various residences 
and its arrangement. She admitted that Mrs. Chambers 
had painted and given her a picture of her son "Timmie." 
She denied they had ever celebrated any anniversaries or 
holidays with the Chamberses or that she ever visited the 
Chamberses at any of their various addresses or tended the 
baby while Mrs. Chambers painted. 

Mrs. Hiss said she had never taken a trip with either of 
the Chamberses to Peterboro, Smithtown or anywhere else. 
She testified, as her husband had done, that she had spent 
the entire time during the first half of August 1937 at 
Chestertown or at Baltimore where she was taking a sum- 
mer course in college. She told of her withdrawal of $400 
from the Washington bank. The Volta Place house, she 
said, was much larger than the 30th Street apartment and 
required considerable additional furniture. She told of the 
things she bought with the money— a new bed, a mattress, 
a bureau, a chair, a rug, lamps, candlesticks, curtains and 
a workbench for "Timmie." She denied most emphatically 
that she had ever made any typewritten copies of State De- 
partment papers or that she had ever handed any such 
documents— original or copies— to Chambers. 

Murphy's cross-examination was quiet and gentle. He 
covered her history before her marriage to Hiss. When she 
lived on Central Park West, above 96th Street in New York, 
she had been a member of the Socialist party, hadn't she? 
She didn't think so. Confronted with the election register 
for 1932, which showed her registered as a Socialist, she ad- 
mitted she voted that year for Norman Thomas. She de- 
nied knowledge that she was shown as a Socialist on the 
records of the Morningside branch of the Socialist party. 
She admitted typing the Bryn Mawr alumnae report and 
the letter to the University of Maryland. The typewriter, 
she said, was in bad order; the ribbon puckered and the 



254 GUILTY OR NOT GUILTY? 

keys did not always fall down. She now knew she had given 
the typewriter to the Catletts in 1937 because of what Mc- 
Lean had told her and the testimony of the "Catlett chil- 
dren:' 

Murphy developed numerous inconsistencies between 
her testimony on the trial and what she had sworn to before 
the grand jury six months before, particularly as to when 
first and on how many different occasions she had seen the 
Chamberses and with respect to the typewriter. Hadn't she 
told the grand jury she had seen the typewriter at Volta 
Place? Hadn't she told the grand jury she could recall no 
defects such as broken letters or keys jamming? Hadn't she 
told them she had no idea when she got rid of the old 
Woodstock? To all of these inquiries, she answered, "Yes"; 
but that was her recollection then, not now. 

The last witness called by the defense was Dr. Carl A. L. 
Binger. He had sat in the courtroom taking notes through- 
out all of Chambers' testimony. Prosecutor Murphy, aware 
that Dr. Binger, a psychiatrist, was prepared to testify that 
Chambers' life history and erratic conduct indicated a men- 
tal condition which destroyed his credibility as a witness, 
insisted that the proposed testimony be stated for the record 
but out of the presence of the jury, as an "offer of proof." 
Under this procedure the Court could have ruled on the 
admissibility of the testimony before any questions were 
put to the doctor in the hearing of the jury. Although in a 
preliminary discussion the Court had expressed its doubts 
as to the admissibility of the evidence, it overruled the 
objection, rejected the proposed offer of proof and per- 
mitted the examination to proceed. 

Dr. Binger was qualified as a physician who had been 
thirty-five years in practice and had latterly specialized in 
general psychiatry. He had read and studied Chambers' 
various writings and translations and had observed him on 
the witness stand. Stryker then proceeded for exactly forty- 
five minutes to propound a hypothesis reciting with well- 
placed emphasis every incident, discreditable or considered 



^ 



THE ALGER HISS CASE 255 

suggestive of abnormality, developed in his long cross- 
examination of Chambers— the insanity of his grandmother, 
the suicide of his brother, Chambers' expressed reaction to 
that suicide, his youthful habits and idiosyncracies, his 
having run away from home when he was sixteen and lived 
in New Orleans among drunkards and prostitutes, his early 
atheistic views, his career at Columbia, the stealing of books 
from the library, the writing of a blasphemous play which 
caused his expulsion, the lying to the dean to obtain rein- 
statement, his writing of an erotic poem, his translations 
of pornographic literature, his living with a woman not his 
wife whom he brought to his mother's home, his becoming 
a Communist, his expressed reasons for joining the party, 
his use of many aliases, his readiness to lie, cheat and steal 
for the party and his statement as to why he broke with it, 
his pretended fears for his safety, his perjury in his appli- 
cation and oath made to obtain employment with the 
WPA, his deliberate leaving of an old typewriter on a 
streetcar because it reminded him of his past, his hiding of 
the secret papers, his charges against Hiss, his admitted 
perjuries before the House Un-American Activities Com- 
mittee and the grand jury, his recovery and production of 
the papers after his pretrial examination in the libel suit, 
his withholding of some of them and secreting them in the 
pumpkin, and his nervous breakdown while working for 
Time magazine. 
The long hypothesis was followed by the question: 

Now, Dr. Binger, assuming the facts as stated in the ques- 
tion to be true, and taking into account your observation 
of Chambers on the witness stand, and your knowledge of 
his writings and translations, have you, as a psychiatrist, an 
opinion, within the bounds of reasonable certainty, as to 
the mental condition of Whittaker Chambers? 

Mr. Murphy was immediately on his feet, objecting to 
the question on the ground it was argumentative and that 
it did not correctly or completely represent the evidence 



256 GUILTY OR NOT GUILTY? 

and that it usurped the function of the jury. Judge Kauf- 
man declared that on the basis of briefs previously sub- 
mitted he had about decided to admit the testimony, but on 
second thought he had concluded to exclude it; that the 
question of the credibility of Chambers was "one of the cru- 
cial elements" in the case and "the record was sufficiently 
clear for the jury, using its experience in life," to appraise 
the testimony of all the witnesses. 

Although the hypothetical question had not been an- 
swered, Stryker had every reason for gratification. He had 
drawn his picture of Chambers for the jury. Every venire- 
man had a general idea of what Dr. Binger's answer would 
have been. He had not been cross-examined and his un- 
uttered but apprehended answer had gone unchallenged. 
As an old trial lawyer Stryker was not too much concerned 
with the Court's direction to the jury to disregard the ques- 
tion. He knew from experience that this was like telling an 
unprotected man in a rainstorm he should not consider that 
the water falling on him was wet. 

The Government's rebuttal case, while relatively brief, 
punctured a number of holes in the not-too-solid defense, 
Burnetta Fisher, daughter of "Clytie" Catlett and sister of 
the Catlett boys, took the stand to testify that she got the 
Woodstock typewriter when she was a high-school student 
and used it to type her homework. She did not have it 
fixed before she used it. 

A daughter of Ira Lockey, the man from whom McLean 
had bought the typewriter, testified she also used the type- 
writer in her schoolwork, that she did not have it fixed, and 
that she used it until she moved to New York in 1948. 
While the keys sometimes stuck, she said, she was able to 
type on it— she would "just pull the keys back." 

To rebut the testimony of Perry Catlett that after the 
Catletts got the typewriter he took it to a repair shop at the 
corner of K Street and Connecticut Avenue to have it re- 



THE ALGER HISS CASE 257 

paired, the Government called a real-estate man who testi- 
fied from his records that the Woodstock Typewriter Com- 
pany rented space in the building at the corner of K Street 
and Connecticut Avenue for two years succeeding Septem- 
ber 15, 1938. (It was the Government's evidence that the 
secret papers were typed in February and March of 1938.) 
McLean, in an attempt to avoid the effect of this evidence, 
suggested that the previous location of the Woodstock Com- 
pany was also on K Street, just a block away. To meet this 
the Government later in the trial produced another real- 
estate man who testified that the previous occupancy of the 
Woodstock Company commenced May 1, 1938; that the 
lease had contained a ninety-day right-of -cancellation clause 
which had been exercised, and the premises were vacated in 
September of 1938. 

The next witness, and an important one, was John Fos- 
ter Dulles, chairman of the board of the Carnegie Endow- 
ment for International Peace. He testified that shortly 
before Hiss assumed the presidency of the endowment on 
January 1, 1947, he had questioned him about rumors that 
he had Communist affiliations. Hiss told him, he said, that 
he had voluntarily gone to the Federal Bureau of Investi- 
gation and submitted himself to its interrogation, and he 
had thought those rumors had been laid to rest. Dulles con- 
tinued that in March of 1938 he again heard reports that 
Hiss had Communist affiliations; this time from a more 
responsible source than on the first occasion. He again 
questioned Hiss and Hiss told him that he had just ap- 
peared before the grand jury and had been asked about a 
number of persons. Hiss said he had known some of them 
and told the jury what he knew about them; others he had 
known and had so told the jurors. The witness next talked 
with Hiss on the subject of Hiss's Communist connections 
on the eighteenth of August, 1948, while the House Un- 
American Activities Committee's hearings were in progress. 
At that time, said Dulles, he told Hiss the situation had 



258 GUILTY OR NOT GUILTY? 

posed a rather serious and embarrassing problem for the 
trustees; that he had no doubt that Hiss was considering 
what his duty was as president of the foundation and it 
would be well for him to come to a conclusion that, regard- 
less of whether the charges were true or false, his ability to 
discharge the duties of president had been somewhat im- 
paired by the publicity which had been given to the testi- 
mony of Chambers and his denial of it. In response to that, 
said the witness, Hiss suggested that he (Hiss) was conscious 
of his duty and had given the matter considerable thought 
and had in mind a resignation at an early date, probably 
in September. 

Under cross-examination by Stryker, the witness testified 
he wouldn't say Hiss had made a "definite, flat, binding 
promise to resign in September/ ' Stryker seized the oppor- 
tunity to show that the inquiries made regarding Hiss be- 
fore his appointment to the presidency of the foundation 
and the laudatory character of his recommendations had all 
been presented to the trustees. 

Murphy next advised the Court of his intentions to call 
three witnesses: Hede Massing, ex-wife of the notorious 
Gerhart Eisler, by whom he expected to corroborate Cham- 
bers' testimony that Hiss had been a member of the Wash- 
ington Communist underground; an official of the Cherner 
Motor Company, of Washington, by whom he expected to 
prove that Hiss had transferred his 1929 Ford to that com- 
pany, which had in turn signed it over to one William 
Rosen; and William Rosen, whom he expected would testi- 
fy that he had received the car. On Stryker' s objection all 
three witnesses were excluded from the stand on the ground 
that their suggested testimony was not proper rebuttal. 

One of the last witnesses to take the stand was Courtland 
Jones, Washington FBI agent, who denied emphatically 
that he had ever offered Mike Catlett $200 for the recovery 
of the Hiss typewriter. 

In surrebuttal the defense called four witnesses, A keep- 
er of the medical records of the Delavan Hospital in Wash- 



THE ALGER HISS CASE 259 

ington, where Mrs. Hiss said she had taken a sick relative in 
the summer of 1937, testified that the hospital records listed 
Mrs. Hiss's addresses as "care of Mrs. Wickes, Chester town, 
Maryland." Miss Stafford, assistant registrar of the Univer- 
sity of Maryland, who had previously appeared as a Govern- 
ment witness, testified Mrs. Hiss enrolled for a summer 
course in inorganic chemistry in June of 1937, and her 
grades were mailed to her at Chestertown, Maryland,, on 
August 5, 1937. Norman Grieg, a camp counselor, testified 
Mrs, Hiss frequently visited her son Timothy at the Ches- 
tertown Camp during the summer of 1937, and he once 
saw Hiss when he visited the Hiss apartment in Chester- 
town. The last piece of evidence was the deposition of Mrs* 
Wickes, the Chestertown landlady, who deponed that the 
Hisses had been subtenants of one of her apartments dur- 
ing July and part of August in both 1936 and 1937. 
This concluded the evidence. 

Stryker began his argument to the jury on July 6, 1949, 
with the experienced criminal lawyer's stereotyped ap- 
proach—the mantle thrown by a merciful rule around any 
defendant, that he is presumed innocent until proved 
guilty beyond a reasonable doubt. More concretely, the 
Government was required to prove beyond such a reason- 
able doubt that Hiss gave the secret documents to Cham- 
bers. Chambers was the only one in the long array of wit- 
nesses who had so testified; and if the jury didn't believe 
beyond a reasonable doubt that Chambers was telling the 
truth, it must acquit the defendant. Murphy himself had 
said it, declared Stryker, and said it better than he could: 
"If you don't believe Chambers, we have no case." 

Stryker then proceeded to exhaust his extensive and pic- 
turesque vocabulary in a castigation of Chambers. His 
whole career, he charged, was "marked by trickery and de- 
ceit. . . . Roguery, deception and criminality have marked 
this man Chambers as if with a hot iron." Referring to 
Chambers' testimony that he withheld as long as he could 



26o GUILTY OR NOT GUILTY? 

his knowledge of Hiss's espionage activities because he did 
not want to injure him any more than was necessary, Stry- 
ker shouted in tones of mingled emotion and irony that 
Chambers was "not only a traitor, a thief, a liar, a perjurer, 
an enemy of his country, but a hypocrite !" Chambers 
hadn't wanted to injure Hiss! Oh, no! All he did was to 
testify under oath that "Hiss represented the concealed 
enemy against which we are all fighting. 

"Believe Chambers!" cried Stryker. "I would not be- 
lieve him on a stack of Bibles if the FBI stacked them as 
high as this building. He believes in nothing: not God, not 
man, not in the sanctity of marriage or motherhood, not 
even in himself." 

Stryker tried to supply what the evidence clearly lacked 
—a motive for Chambers* charges against Hiss. "This man 
was ambitious," said Stryker. "In a Presidential compaign 
he thought he could deliver a fast sideswipe at Alger Hiss- 
Dumbarton Oaks— Yalta— Communism! Great stuff for a 
political campaign to take the public's mind off the Eight- 
ieth Congress. . . . Chambers," he declared in another con- 
nection, "concocted this story to get out of the $75,000 libel 
suit which Hiss has filed against him." 

Chambers was not the only target of Stryker's wrathful 
invective. The Federal Bureau of Investigation came in for 
a full share. It had gone to every possible length to bolster 
Chambers and discredit Hiss. It had oppressed the Catlett 
boys; one of them it had tried to bribe with an offer to pay 
$200 for the Woodstock typewriter. The House Un-Amer- 
ican Activities Committee received special attention. Stry- 
ker likened it to the French Revolutionary Tribunal, 
where the mere identification of a suspect, and the inevi- 
table mob yell of "guilty," hustled the victim into the tum- 
brel and started him on his way to the guillotine. "For 
eleven months," shouted Stryker, "Alger Hiss has suffered 
under the travail of that committee's work." 

Leaving the offensive for the defensive, Stryker argued 
that Wadleigh— "that miserable, abject specimen of human- 



THE ALGER HISS CASE 26 1 

ity"— could have obtained the four handwritten memor- 
anda by taking them off Hiss's desk or out of his wastebas- 
ket. 

As to the typewritten copies of the State Department 
documents, the evidence showed the Woodstock typewriter 
had been given away by the Hisses before the papers could 
have been typed on it. "Clytie" Catlett, who had testified 
about the typewriter, was "a lovely Christian character . . . 
whose testimony was at least as credible as that of a man 
who had spent twelve years of his life trying to tear down 
his country." "Pat" and "Mike" Catlett were "undoubted- 
ly very ignorant colored boys, but honest." 

Stryker played up the character witnesses. No one but a 
paragon of virtue and loyalty could have summoned such 
a distinguished array of witnesses to his defense. Hiss, in 
contrast to Chambers, had led a "pure, wholesome, sound, 
clean, decent, fine life." 

In his peroration, Stryker apologized for his zeal and his 
shortcomings, but he begged the jury to charge them to 
him, not to hold them against Hiss. "This is not a case," he 
thundered, "but an outrage— the long culmination of the 
job that was done by the House Un-American Activities 
Committee— an Un-American Committee, the way they 
handled the job." Lowering his voice and in his sweetest 
tones he said, "Ladies and gentlemen, the case will be in 
your hands. I beg you, I pray you, to search your con- 
sciences, and I have no fear, Tea, though I have walked 
through the valley of the shadow of death/ " And turning 
to the pale, drawn face of his client, he ended, "Alger Hiss, 
this long nightmare is drawing to a close. Rest well. Your 
case, your life, your liberty are in good hands." 

It was a splendid effort. No one could justly accuse Lloyd 
Paul Stryker of not having given Hiss a full defense and an 
advocate's "full measure of devotion." 

Murphy's summation was a deliberate, calm, assured re- 
view and analysis of the evidence, largely free from dis- 
creditable characterizations or strong invective, but punc- 



262 GUILTY OR NOT GUILTY? 

tuated throughout with sarcasm and ridicule. Step by step 
he went over the Government's case. There were, he said, 
"three solid witnesses" to the essential facts: the typewriter, 
the original State documents and the documents Cham- 
bers had in his possession. There was no contradiction of 
the fact that Chambers had indubitable copies of the orig- 
inal secret, confidential State documents, all of them dated 
in the first three months of 1938. The proof was positive 
that all but one of them had been written on the Hisses' 
Woodstock typewriter. From those undisputed and indis- 
putable facts, the jury could draw but one conclusion: 
that "that smart, intelligent, American-born man gave them 
to Chambers." 

It was true, conceded Murphy, that in a trial in a Federal 
court for perjury the law required proof by two witnesses 
or by one witness and corroborating circumstances. Here, 
he declared, they had the direct testimony of Chambers 
that he got the documents from Hiss and that the copies he 
produced had been typed by Mrs. Hiss on the Woodstock 
typewriter. That was the testimony of one witness. The 
copies themselves (replicas of original State papers) and the 
telltale typewriter were the corroborating circumstances. 
He disposed of Hiss's denial by repeating an illustration he 
had used in his opening statement: The small boy might 
deny that he had raided his mother's pantry and helped 
himself from the jam pot, but the denial availed little if 
the boy's face was covered with jam. "The typewriter and 
the copies are the jam on Hiss's face," he said. 

But the documents and the typewriter were not the only 
corroborating circumstances, said Murphy. There was the 
testimony of Chambers and his wife as to their intimate 
knowledge of the Hisses, of their homes— those on 30th 
Street and Voita Place, as well as those on P Street and 28th 
Street— and their furnishings, and of their habits and hob- 
bies. Referring to Mrs. Chambers' detailed description of 
the Volta Street home, Murphy put it bluntly to the jury: 
"She was either there or she is psychic. Consider that, when 



THE ALGER HISS CASE 263 

you decide who was lying." What about the $400 which 
Chambers says Hiss gave him in November of 1937 with 
which to buy a new car? Well, the uncontradicted evidence 
showed Mrs- Hiss withdrew $400 from their joint bank ac- 
count on November 19, 1937, an d ^^ Mrs. Chambers 
bought a new car with something over $400 in cash on No- 
vember 23, 1937. "J ust how psychic do you have to get?" 
asked Murphy. 

The government prosecutor reviewed Hiss's confused 
and implausible version concerning the old 1929 Ford and 
the Oriental rug. He ridiculed Hiss's "absurd perform- 
ance" to make certain of his identification of Chambers 
when they confronted each other at the House committee's 
session in the Commodore Hotel. 

As to the attempt of the defense to show that the Hisses 
had disposed of the Woodstock before January 1, 1938, all 
of the facts, declared Murphy, proved the contrary. Hiss 
before the belated discovery of the machine by the Catletts 
had had a 'Visual recollection" of the typewriter at the 
Volta Place house. Mrs. Hiss had been quite sure that after 
they moved to the Volta Place house she had given the ma- 
chine to the Salvation Army or some Georgetown junk 
dealer. The Hisses hadn't mentioned the Catletts in their 
testimony before the grand jury. They had thought "Cly- 
tie" Catlett was dead. Then the defense lawyers turned up 
the three Catletts and the Hisses developed a new recollec- 
tion. And the testimony of the Catletts, said Murphy, had 
been completely discredited. 

The prosecutor gave the jury his idea of the real facts 
concerning the Catletts and the disposition of the type- 
writer. The Hisses knew the Woodstock had been used to 
copy the secret State documents. When Chambers told Hiss 
he had broken with the Communist party, Hiss realized the 
danger to him of that typewriter— the "immutable witness" 
against him. How best to get rid of it? Not by a regular 
open sale, because then there would be a record of it. So 
they gave it to the Catletts, hoping it would just disappear— 



264 GUILTY OR NOT GUILTY? 

"end up in the ash can." Hiss had not mentioned the Cat- 
letts to the FBI because he hoped the government would 
never trace the Catletts. But the FBI did trace the Catletts. 
And what happened? The Catletts ran to Donald Hiss and 
told him the FBI men had been asking about the type- 
writer. Why Donald Hiss? Probably because Alger had 
told them to go to Donald and tell him if the government 
men got hold of them. And when did the Catletts get the 
typewriter? Not in 1937, but in 1938. What did Perry Cat- 
lett remember about it? He took it to a Woodstock repair 
shop on the northwest corner of Connecticut Avenue and 
K Street, but not in 1938— probably in 1939. 

The evidence of the real-estate men, said Murphy, called 
by the Government showed that the Woodstock shop had 
not come to the Connecticut Avenue and K Street address 
until September of 1938, and if the defense wanted to con- 
tend that Perry really meant that he took it to the former 
address of the shop a block away, that wouldn't help them 
any because the shop hadn't come to that address until 
May of 1938. Furthermore, the Catletts testified they took 
the typewriter to their own house on P Street and the evi- 
dence showed conclusively that the Catletts did not move 
into that house until January 17, 1938. That, summarized 
Murphy, pretty well disposed of the Catletts and their tes- 
timony. 

The most dramatic part of Murphy's summation was his 
treatment of the defense's character witnesses. Stryker, he 
said, had called some fifteen or more such witnesses— two 
justices of the Supreme Court of the United States among 
them. Maybe the jury would want to think for itself 
"whether two judges of the United States Supreme Court 
could with propriety come into this courtroom. . . . Just 
how important," said the prosecutor, "is a person's reputa- 
tion? ... I dare say Judas Iscariot had a fairly good reputa- 
tion He was next to God, one of the Twelve, and what 

did he do? Brutus, Caesar's friend, I dare say he had a good 
reputation. He got so close to his boss that he stabbed him. 



THE ALGER HISS CASE 265 

And Major General Benedict Arnold? He came from a fine 
family— what happened? ... He sold out West Point. He 
wasn't caught, but if he had been, couldn't he have called 
George Washington as a reputation witness? . . . And take 
the devil, Lucifer himself was one of the fallen angels. He 
traveled in the sight of God. Now he had a reputation, I 
dare say, and what happened to him? 

"All window dressing," cried Murphy. "Those"— he 
pointed to the typewriter and the Government's exhibits— 
"those are the facts." Murphy concluded his argument 
with a flower of speech which, if it failed to match the ex- 
alted and picturesque figures of Stryker, had its own pecu- 
liar fragrance: "Someone has said that roses that fester stink 
worse than weeds, and I say that a brilliant man like this 
man who betrays his trust stinks, and under that smiling 
face his heart is black and cancerous. He is a traitor." 

The arguments were concluded on the seventh of July, 
and on the afternoon of that day Judge Kaufman delivered 
his oral charge to the jury. 

When it is considered that the trial had lasted twenty- 
seven days and that upward of seventy-five witnesses had 
testified and piled up a record of more than four thousand 
pages, the Court's instructions were surprisingly brief. 

The Court instructed that the Government had estab- 
lished that Hiss had given the testimony alleged in the 
indictment and that the statements made by him were 
material to an investigation into espionage then being con- 
ducted by the grand jury. The Court explained that the 
essential charge of the indictment was that Hiss had testi- 
fied falsely when he swore that he had not turned over se- 
cret and confidential State papers to Chambers. The issue 
for the jury to determine was, therefore, a narrow one: 
Did Hiss deliver secret and confidential papers to Cham- 
bers in February and March of 1938? If he hadn't, he could 
not be found guilty. If he had, the jury might find him 
guilty. 

The Court further instructed that the law in a charge 



266 GUILTY OR NOT GUILTY? 

of perjury required proof by two witnesses or one witness 
and corroborating circumstances. The only witness who 
had testified that Hiss gave secret and confidential papers 
to Chambers was Chambers himself. Therefore, Chambers' 
testimony was to be considered seriously. Murphy had 
been correct in his opening statement that if the jury did 
not believe Chambers, the Government had no case. Cham- 
bers, the Court declared, was an interested witness, first, 
because he had made a charge against Hiss and would natu- 
rally want to sustain it and, second, because of the pendency 
of the civil damage suit against him. In determining Cham- 
bers' credibility, the jury should consider that it had been 
proved that Chambers had previously made false and incon- 
sistent statements, that he had failed earlier to disclose the 
existence of the papers and denied that he had such papers, 
that he had been a member of the Communist party, and it 
should take into account all of the evidence concerning his 
life and actions. If, after such considerations, it did not be- 
lieve Chambers beyond a reasonable doubt, its verdict must 
• be not guilty. If, on the other hand, it did believe Cham- 
bers, it must further find that his testimony was corrobo- 
rated by proof of supporting circumstances. Such proof, said 
the Court, was what is called "circumstantial evidence," 
and such evidence must not only be consistent with the 
guilt of the defendant, it must be inconsistent with any 
reasonable hypothesis of innocence. It was for the jury to 
say whether Chambers' testimony had been so corrobo- 
rated. 

As to the defendant Hiss, the Court charged that the jury 
should consider "his life, education and standing in the 
community," his later conduct when he learned of Cham- 
bers' charge against him, his challenge to Chambers to re- 
peat his charge in circumstances where there would be no 
protecting privilege against an action of libel, and the in- 
stitution of such an action by Hiss when Chambers made 
his charge publicly*. It should consider, too, Hiss's expla- 
nation of the Government's exhibits and the typewriting. 



THE ALGER HISS CASE 267 

The defendant had called character witnesses— "prominent 
persons"— who had testified to his previous good reputation 
for integrity, loyalty and veracity. Such evidence was com- 
petent to be considered in connection with all the other 
evidence in the case. 

If, said the Court, the jury believed Hiss as against 
Chambers, its verdict should be not guilty. If, on the other 
hand, it believed Chambers and that his testimony as to 
the documents had been corroborated, its verdict might be 
guilty. In order to arrive at a verdict, all twelve of the 
jurors must come to an agreement; in other words, the ver- 
dict had to be unanimous. 

Certainly the charge was, as the charge in every criminal 
case should be, eminently fair to the defendant. Neither 
side objected to it. 

At 4:20 p.m. the jurors retired. Seven different times 
during the ensuing nineteen hours, they communicated 
with the Court. Once it was to ask for a copy of the indict- 
ment, the bill of particulars and the exhibits; twice it was 
to have portions of the judge's charge reread to them; and 
on four occasions it was to advise the Court that they could 
not agree. 

It later appeared that from the outset of their deliber- 
ations they stood deadlocked— eight for conviction, four 
for acquittal. At nine o'clock on the evening of the eighth, 
it was apparent that a unanimous verdict was out of the 
question. With no objection from either the prosecution 
or the defense, the Court discharged the jury. 

The Second Trial 

The second trial was begun on November 17, 1949. 
There were important changes in the old line-up. Judge 
Kaufman had been supplanted by Judge Henry W. God- 
dard. District Attorney McGohey had been succeeded by 
Irving H. Saypol. Lloyd Paul Stryker, for some unex- 
plained reason, had been dropped. Claude B. Cross ap- 



2 68 GUILTY OR NOT GUILTY? 

peared with McLean as counsel for Hiss. Robert von 
Mehren had taken the place of Harold Shapero as an 
assistant attorney for the defense. Murphy and Donegan 
were again on hand to shoulder the burden for the prose- 
cution. 

Seventy-four-year-old Judge Goddard was the senior Fed- 
eral judge of the district. He had served for over twenty- 
three years, and he enjoyed the esteem and confidence of 
the bar and the public. Cross was a highly regarded, schol- 
arly lawyer, known and respected for his industry and thor- 
oughness in the preparation of his cases. He had not, 
however, had any considerable experience in the trial of 
criminal cases. He was as unlike Stryker as it was possible 
for a man to be. His trial method was the mild, com- 
posed and persuasion-inducing type rather than the force- 
ful, bellicose and persuasion-compelling type of Stryker. 

A jury was obtained even more rapidly than on the first 
trial. As finally passed it held four men and eight women. 
Seven of the women were housewives; one was gainfully 
employed. Of the four men, one was an office man, one an 
optician, one a plant manager and one a retired manufac- 
turer. 

From the outset it was apparent that Judge Goddard's 
disposition was to discourage technical objections and af- 
ford each side the widest permissible latitude within which 
to get all relevant facts before the jury. 

Murphy's opening statement took a line quite different 
from that which he had followed in the first trial. Instead 
of emphasizing the testimony of Chambers with the decla- 
ration, "If you don't believe Chambers, we have no case," 
he stressed as of primary importance the "immutable" evi- 
dence of the documents and that they were in Hiss's hand- 
writing or had been copied on Hiss's typewriter. He faced 
frankly the many weaknesses of Chambers as a witness. All 
of these, he said, were immaterial if the jury believed Hiss 
gave the secret documents to Chambers. 



THE ALGER HISS CASE 269 

Chambers, Murphy declared, had had an unguided and 
unfortunate boyhood. He had become a Communist, a se- 
cret agent. He had cheated, lied and stolen for the party. 
Because of his sincere belief in communism as a philosophy 
of government, he had thought at the time he was doing 
what was right. The day came when he was disillusioned. 
He broke with the party. He repented of his errors. He 
attempted to redeem himself and succeeded. Then sudden- 
ly he was summoned before a committee of the Congress of 
the United States and put upon his oath. He testified be- 
fore that committee because he felt it was his conscientious 
duty to do so. He had not produced the documents which 
had so hopelessly entangled Hiss until he had been forced 
to do so by Hiss's libel action. Chambers' testimony, con- 
cluded Murphy, would be corroborated not only by the 
documents but by a wealth of supporting detail and the 
testimony of other credible witnesses. 

Cross's opening followed closely the pattern which had 
been set by Stryker— Hiss's magnificent record and reputa- 
tion and Chambers' utter worthlessness as an accusing wit- 
ness. He imported some new discreditable details from 
Chambers' past and promised the jury the evidence would 
show that Chambers got the secret documents from some- 
one other than Hiss. 

The evidence for the Government followed pretty close- 
ly the lines set in the first trial. There were, however, 
several new witnesses and important additional facts de- 
veloped in the examination of some of the previous wit- 
nesses. 

Chambers was much more assured in facing Cross than 
he had been when confronted with Stryker. There were 
several additions to his former testimony. In 1937, he said, 
he had bought a farm in Maryland (not far from the one he 
presently owned) which he and Hiss had located a year or 
two earlier. Hiss had liked it so well that he made a down 
payment on it, but he had later changed his mind and 



270 GUILTY OR NOT GUILTY? 

withdrawn it. Chambers had then bought the farm. This 
was confirmed by the later testimony of the real-estate 
broker who produced the correspondence he had had with 
Hiss in the transaction. 

Chambers also told of having once met Hiss in a res- 
taurant and of Hiss's having introduced him there to a 
woman named Plum Fountain. The peculiarity of the 
name stuck in his memory. He recalled another auto- 
mobile trip he had taken with Hiss, this one to Erwinna, 
Pennsylvania, in 1935. He could not recall what the occa- 
sion for the trip was. He was permitted over defense objec- 
tion to tell what Hiss had said to him in disposing of his 
old 1929 Ford— that he wanted to pass it along to some de- 
serving organizer who lacked means for needed transporta- 
tion, and that the Cherner Motor Company was used as a 
conduit for that purpose. 

Cross's cross-examination of Chambers, judged by the 
record, was quite as effective as Stryker's had been. He 
brought out all of Chambers' previous delinquencies and 
added others. He compelled Chambers to admit again the 
many contradictions and inconsistencies between his direct 
examination and the testimony he had given before the 
House Un-American Activities Committee and the New 
York grand jury. 

The examination of Mrs. Chambers covered the same 
ground as in the first trial. While she appeared much more 
at ease than on the former occasion, Cross had little diffi- 
culty in developing many inconsistencies between her pres- 
ent testimony and her answers on the previous trial and in 
the Baltimore pretrial hearings of the civil suit. These 
concerned mostly dates when she said she had seen Mr. and 
Mrs. Hiss. 

As on the first trial, copies of the secret documents which 
Chambers said he had received from Alger Hiss were 
compared with the originals and received in evidence. The 
one document which had previously been withheld was 



THE ALGER HISS CASE 27 1 

now offered. It was part of a cable from Paris, dated Janu- 
ary 25, 1938, from United States Ambassador Bullitt to the 
State Department— a highly confidential communication 
regarding French, German-Russian relations and the atti- 
tude of England toward Mussolini and Italy. 

McLean's cross-examination of the witness Anderson, a 
State Department official, with respect to the secret docu- 
ments was even more extensive and effective than his pre- 
vious cross-examination of this witness had been. He went 
into a detailed examination of each paper and made the 
witness admit from the markings on a number of them it 
could not be told with certainty that they had ever gone 
through Sayre's office. 

The cross-examination of Wadleigh was likewise much 
more thorough than on the first trial. Cross's cross-exami- 
nation, however, failed to establish, as he had promised in 
his opening statement, that Chambers had got the secret 
documents from Wadleigh or someone other than Hiss. 
The stubborn fact that all but one of them had been writ- 
ten on the Hiss typewriter stood in the way. 

As additional witnesses the Government called a vice- 
president of the Cherner Motor Company, who identified 
a bill of sale, dated July 23, 1936, by which Hiss trans- 
ferred his 1929 Ford to that company. On the same day it 
was reassigned to a William Rosen. 

William Rosen was called to the stand. He denied know- 
ing either Hiss or J. Peters. He declined to answer any 
further questions on the ground his answers might incrim- 
inate him. 

Hede Massing, former Viennese actress and ex-wife of 
Gerhart Eisler, took the stand. She testified she had been 
a Communist and had known Hiss as one. Specifically, she 
recalled a conversation she had had with Hiss in the sum- 
mer or fall of 1935 regarding the services of Noel Field, 
another Communist. 

The woman who had rented the Volta Place house to the 



272 " GUILTY OR NOT GUILTY? 

Hisses corroborated Mrs. Chambers' description of the 
draperies and wallpaper there. 

Cross did not succeed by his cross-examination in weak- 
ening substantially the testimony of any of these witnesses. 

The Government put in evidence a memorandum made 
by Adolf Berle, Presidential adviser in charge of State De- 
partment security, after his interview with Chambers in 
1939. It was captioned "Underground Espionage Agent" 
and listed as members of the Soviet underground, among 
others, Alger Hiss, Donald Hiss and Priscilla Hiss. 

Practically all of the witnesses who had testified for the 
defense in the first trial appeared in the second. The line- 
up of the character witnesses was changed somewhat. Jus- 
tices Frankfurter and Reed did not appear. Dr. Jessup, 
who had given his deposition on the former trial, appeared 
in person. Some additional witnesses were called. Francis 
B. Sayre, former Assistant Secretary of State, described Hiss 
as "a man of utter integrity and reliability, who had never 
in any way tried to influence American policy.' ' Murphy, 
on cross-examination, however, got him to adriiit that he 
did not recall that Hiss had ever made for him any memor- 
anda of the type of the four memoranda that had been pro- 
duced by Chambers; also, that Hiss had recommended 
Noel Field to him as a prospective assistant. 

Murphy forced the admission from Dr. Hornbeck that in 
1939 he and Ambassador Bullitt had discussed a rumor that 
Alger Hiss was a Communist. He also got this witness to 
admit that the four Government exhibits in Hiss's hand- 
writing were not of the kind ordinarily prepared by Hiss 
in the course of his employment. 

The testimony of Mr. and Mrs. Hiss was not substan- 
tially different from that they had given on the first trial. 
Hiss denied ever having gone with Chambers to see a 
Maryland farm which Chambers afterward bought. He 
admitted he had looked at the farm and had considered 
purchasing it. The fact that Chambers had later bought it 



THE ALGER HISS CASE 273 

was a mere coincidence. He also denied Chambers' new 
testimony that he had made a trip with him to Erwinna, 
Pennsylvania, or that he had ever introduced him to a 
woman named Plum Fountain. He, however, admitted 
knowing a woman of that name. 

Hiss denied again that he had ever met Mrs. Massing or 
talked to her about Noel Field. In his cross-examination 
Murphy produced a letter which Hiss had written to Noel 
Field in May of 1948. It was addressed "Dear Noel." Hiss 
again admitted he had known Field and that the Hisses and 
Fields exchanged social visits. Murphy also brought out in 
his cross-examination of Hiss that Hiss's father and sister 
had committed suicide (important to offset the testimony of 
suicide and insanity in the Chambers family) and that Hiss 
had dodged the lie-detector test when it was suggested by 
members of the House Un-American Activities Committee. 

Murphy's cross-examination of Mike Catlett pretty well 
destroyed his testimony. His statement that the Catletts 
got the typewriter when the Hisses moved from P Street to 
30th Street (July 1, 1936) was clearly absurd. One of the 
typewritten exemplars (the inquiry to the University of 
Maryland) written by Mrs. Hiss was dated May 25, 1937. 
His testimony that his family moved into their house on P 
Street in 1936 was disproved by the rental agent's record 
that the Catletts actually moved there on January 17, 1938. 
Mrs. Hiss had testified that the Catlett boys took the type- 
writer away in their little express wagon. Mike Catlett had 
said Mrs. Hiss delivered it to the Catlett home from her 
automobile. 

Donald Hiss took the stand to deny that he had ever had 
any Communist connections, that he had ever given his 
brother any State papers, or that he had ever seen or known 
of Chambers. 

In further refutation of Chambers' testimony that he had 
driven to Peterboro, New Hampshire, with the Hisses 
sometime during the first half of August 4937, an( ^ * n cor " 



274 GUILTY OR NOT GUILTY? 

roboration of their claim that during that period they were 
at Chestertown, Maryland, the records o£ a Chestertown 
bank were introduced to show a deposit in a Hiss bank 
account there on August 10, 1937* 

The most startling variation in the two trials was the 
admission in the second of the co-called expert psychiatric 
testimony. After hearing argument Judge Goddard Tuled 
that while the admissibility of such testimony had not 
theretofore been passed on by any Federal court, such tes- 
timony had been admitted by a number of state courts and 
its use had been advocated by leading authorities on the 
law of evidence, and he would admit it. 

Dr. Binger was called to the stand. His direct question- 
ing followed rather literally that of Stryker in the first trial. 
The hypothetical question had been embellished with 
some further details and its reading time extended to seven- 
ty minutes. Dr. Binger's answer was impressive. Cham- 
bers, he declared, was in his opinion "suffering from a con- 
dition known as a psychopathic personality, a disorder of 
character, the outstanding features of which are amoral and 
asocial behavior." By "amoral" he meant that it was behav- 
ior against established convention. By "asocial" he meant 
that Chambers had no regard for the good of society or 
individuals. He said he based his answer on what he found 
in the hypothetical question and in Chambers' writings: 
evidence of repetitive lying, stealing, withholding truth, in- 
sensitivity, play-acting, bizarre behavior, vagabondage, pan- 
handling, inability to form stable attachments, abnormal 
emotionality, paranoid thinking and pathological associa- 
tions. It could all be summed up as "a defect in the forma- 
tion of conscience." 

The doctor went on at some length to tie up particular 
recitals in the hypothetical question or excerpts from 
Chambers' writings to the stated symptoms and character- 
istics of the abnormal type of personality he had described. 

Dr. Binger was a large, heavy-featured, deep-voiced man 
who spoke slowly and punctuated his testimony with tell- 



THE ALGER HISS CASE 275 

ing emphasis and well-timed gestures. If his direct exami- 
nation had not convinced the jury of Chambers' unreli- 
ability as a witness, it was fair to assume it had, at least, 
raised a disturbing doubt. The situation demanded an ef- 
fective cross-examination. Prosecutor Murphy rose to the 
occasion magnificently. He had, of course, known since the 
first trial that the defense would renew its effort to get this 
testimony before the jury and was fully prepared to meet it. 

Murphy first attacked the doctor's qualifications and in- 
terest. He had graduated from medical school some thirty- 
five years before but had been certified as a psychiatrist for 
less than three years. His wife was acquainted with Mrs. 
Hiss— they had been associated in some educational work. 
He was donating his services. 

The prosecutor then undertook to isolate the different 
symptoms which the doctor had aggregated as the basis of 
his opinion. You cannot pick out "specific parcels of infor- 
mation" like that and make each one the basis for a conclu- 
sion, said the psychiatrist; "you must consider the totality 
of the picture." He was asked to point out the particular 
facts assumed in the hypothetical question on which he 
based his conclusion that Chambers was a "panhandler." 
He fumbled and finally admitted that he could not do it. 
Similarly, about the conclusion of "vagabondage" his an- 
swer was unconvincing— the evidence that Chambers had 
wandered about the country for a year or two after he had 
run away from home and his later jaunt to Europe, both 
before he was twenty-three years old. Did the fact that he 
had been married and had lived with one woman for more 
than eighteen years evidence instability in his attachments? 
asked Murphy. No, admitted the doctor, that one fact 
would not. 

The doctor had concluded among other things that 
Chambers was a "repetitive liar." How many lies, asked 
Murphy, had the doctor counted in the hypothetical re- 
cital? Possibly ten, the witness replied. That was over a 
period of thirty-three years, pursued Murphy. Yes, an- 



2^6 GUILTY OR NOT GUILTY? 

swered the witness, but he was not basing his opinion on 
any "statistical count of lies. ,, "What's par?" concluded 
Murphy, amid the audible chuckles of the jury and the 
spectators. 

The doctor professed to have read everything Chambers 
had written, but under the prosecutor's searching cross- 
examination it developed he had read nothing but what 
had been handed to him. He had not read any of the wide- 
ly commended articles that had appeared during the last 
ten years in Time magazine. In Chambers' translation of 
Franz Werfel's Class Reunion, the doctor professed to find 
the inspiration for some of Chambers' conduct. The cen- 
tral character's name was "Adler," quite similar, said the 
doctor, to "Alger." In the Werfel story Adler had been un- 
justly accused by his friend Gregory. There was a suicide 
pact, the same as had been suggested between Chambers 
and his brother. These and other incidents impressed the 
doctor as "extraordinary analogies." Sarcastically, Murphy 
asked him if he found any such analogies in Chambers' 
translation of the innocuous children's book Bambi. Of 
course not, said the expert. 

The prosecutor took up the doctor's inclusion as one of 
the bases for his opinion that Chambers was a "psycho- 
pathic personality" the assumption of his youthful untidi- 
ness and carelessness of dress. "Well," said Murphy, "Will 
Rogers and Bing Crosby were rather casual in their dress, 
weren't they? Were they psychopathic personalities?" 

"Oh, they were quite different," said the doctor. 

The witness had attached an importance to Chambers' 
having secreted the papers and microfilms in the pumpkin. 

"Well," said Murphy, "how about the concealment of 
the Connecticut charter in the Hartford Oak? Were our 
colonial forefathers all psychopathic personalities?" 

"That, too, was quite different," replied the harassed 
witness. 

Dr. Binger, according to his direct testimony, had been 
particularly impressed by the fact that Chambers so fre- 



THE ALGER HISS CASE 277 

quently qualified his answers. How many times had Cham- 
bers qualified his answers? inquired Murphy. The doctor 
didn't know, exactly. "Well," said Murphy, "I will tell 
you: ten times in 700 pages of transcript. ,, The doctor did 
not dispute the prosecutor's count. "Now," pursued Mur- 
phy, "do you know how many times Hiss qualified his an- 
swers?" The doctor didn't know. Again Murphy acted as 
statistician. "One hundred and fifty-eight times out of 
550 pages," cried the cross-examiner. 

Another of Chambers' abnormalities, according to psy- 
chiatrist Binger, was his constant gazing at the ceiling dur- 
ing his examination. Here Murphy made a "ten-strike." 
"Doctor," said Murphy, "I have made a count of the num- 
ber of times you looked at the ceiling. During the first ten 
minutes you looked at the ceiling nineteen times; in the 
next fifteen minutes you looked up ten times; for the next 
fifteen minutes, ten times; for the next fifteen minutes, ten 
times; and for the last fifteen minutes ten times more. I 
counted a total of fifty-nine times you looked at the ceiling 
in fifty minutes. Now I was wondering whether that was 
any symptom of a psychopathic personality?" The doctor 
shifted uneasily in his chair, and, without much enthusi- 
asm, managed to reply, "Not alone." 

Murphy, in an effort to bring the professional jargon of 
the alleged expert to the level of the ordinary layman, 
asked the doctor for a simpler definition of the high- 
sounding phrase, "psychopathic personality." Would he 
explain for the benefit of uninformed laymen like himself 
and the jurors just what the term meant? As is so often the 
case with assured phrasemongers, the explanations simply 
begat the need for further explanations, with an end result 
of increased confusion. Murphy finally summed it up, evi- 
dently much to the doctor's relief, for he acquiesced in it by 
suggesting it was a sort of a "wastebasket classification" in 
which you could conveniently dump a lot of unrelated and 
otherwise unclassifiable symptoms. 

To support the testimony of Dr. Binger, the defense 



2^8 GUILTY OR NOT GUILTY? 

called Dr. Henry Murray, former director of the Harvard 
Psychological Clinic, who qualified as having made a spe- 
cialty of analyzing psychopathic personalities by studying 
their writings. He testified, although he had never seen 
Chambers before he entered the courtroom, that he was 
competent to express an opinion as to Chambers' dominant 
characteristics and traits of mind solely from a study of his 
writings. He declared unhesitatingly that the writings 
showed Chambers to be a psychopathic personality; that 
they contained "a higher proportion of images of disin- 
tegration and destruction, filth and dirt, decay and decom- 
position and death than any writings' ' he had ever ex- 
amined. He answered the long hypothetical question and 
corroborated Dr. Binger that Chambers was a psychopathic 
personality and that the outstanding characteristics of such 
an individual were instability, disregard of social relation- 
ships, intrigue, deceit, fantastic falsehoods and false accu- 
sations. 

Dr. Murray, who styled himself a psychologist rather 
than a psychiatrist, possessed a more solid background of 
knowledge and experience than Dr. Binger and proved on 
cross-examination to be a more resourceful witness. Em- 
boldened with his success with Dr. Binger, Murphy took 
the Harvard psychologist over much the same ground. The 
results were not wholly disappointing. If Dr. Murray's 
answers were sharper than Dr. Binger's, as most of them 
were, they did not much advantage the defense, for they 
served not only to remind the jurors of Dr. Binger's in- 
adequacy but also emphasized Murphy's suggestion that 
doctors, by whatever name they were called, frequently 
disagreed and were often wrong. 

Murphy's bull's-eye came as the result of a week-end ad- 
journment. Dr. Murray was still under cross-examination 
when court recessed on a Friday evening, to reconvene the 
following Monday. In the interim the ever-alert FBI un- 
earthed a new witness, a former writer on Time magazine, 



THE ALGER HISS CASE 279 

who informed them that during the preceding November 
Dr. Murray had got in touch with him and inquired as to 
Chambers' history and habits; moreover, that the doctor 
had got into quite an altercation with the newsman when 
the latter had resented the doctor's referring to Chambers 
as a "pathological liar." 

On Monday, when Dr. Murray resumed the stand, he 
was led to repeat, under Murphy's deceptive gentleness, his 
previous statement that he knew nothing of Chambers per- 
sonally and had based his opinion solely on an examination 
he had made of his writings and the recitals in the hypo- 
thetical question; and that he had not formulated that 
opinion until Christmas. His talk with the Time represen- 
tative was then "sprung" on him. When he left the stand 
it was quite obvious to disinterested observers that the at- 
tempt of the defense to induce the jurors to substitute pro- 
fessional psychiatric opinion for their own observation and 
judgment had not been conspicuously successful. 

The so-called psychiatric testimony, on which the defense 
so heavily counted and which, it is apparent, caused the 
Government's lawyers no little concern, had proved a 
"dud." The jury, after Murphy's cross-examinations, was 
quite prepared to accept and act on his argument that, so 
far as its attempted application to Chambers was con- 
cerned, the "psychiatric stuff" was pure buncombe. This 
inclination was aided by the later specific instruction of the 
Court that this testimony, like all expert testimony, was 
purely advisory and the jury might reject the doctors' opin- 
ions entirely if it found either that "the hypothetical situ- 
ation presented to it in the question was incomplete or in- 
correct" or "the reasons [given in support of the opinions] 
unsound or not convincing"; that "the jurors had seen and 
heard Mr. Chambers for several days while he was on the 
witness stand," and it was for them to say "how much 
weight, if any," they would give to the testimony of the ex- 
perts. 



28o GUILTY OR NOT GUILTY? 

The rebuttal of the Government was brief. 

All the witnesses who had been permitted to testify in 
rebuttal on the previous trial were recalled and repeated 
their earlier testimony. 

Since the first trial, the Federal Bureau of Investigation 
had located Edith Murray, a Negro woman who had 
worked as a maid for the Chamberses at two of their resi- 
dences in Baltimore. She remembered having seen Mrs. 
Hiss at the Chamberses' homes on four different occasions 
and that once she stayed overnight. She had seen Mr. Hiss 
on one occasion. She readily identified both of them in the 
courtroom. 

An ex-secretary of the Social Democratic Federation, who 
had been an organizer for the Socialist party in 1932, pro- 
duced a membership card of Priscilla Hiss, dated March 23, 

1932. 

From the Aleutian Islands the Government had brought 
an Army sergeant named Roulhac, who testified that he 
signed as a surety the agreement by which the Catletts were 
enabled to rent their house on P Street in January of 1938. 
He said he remembered seeing an old typewriter in the 
hallway, but not until about three months after the Cat- 
letts moved in. 

To demonstrate that the old Woodstock typewriter was 
even now not in such bad condition, Murphy produced a 
typist from the Federal Bureau of Investigation who, in the 
presence of the jury, struck off a copy of one of the Govern- 
ment's exhibits. It was a good performance. None of the 
keys stuck or jammed. 

Cross spoke for just four minutes less than five hours. 
Throughout his long summation his manner was quiet and 
his tone conversational. One of the attendant reporters 
described his argument as a "folksy sort of talk" to good 
neighbors. 

There was, Cross declared, but a single issue: Who was 



THE ALGER HISS CASE ?8l 

to be believed, Hiss or Chambers? Meticulously and some- 
what tiresomely, he went over Chambers' entire testimony. 
He contrasted his "Godless upbringing" with the Christian 
rearing of Hiss. He compared their early careers. He 
pointed out the many contradictions, inconsistencies and 
improbabilities in Chambers' story— the repeated occasions 
when he had glibly and shamelessly confessed perjury and 
the withholding of facts. You could not rationalize his ac- 
tions. The psychiatrists supplied the only answer: Cham- 
bers was a psychopathic personality, indifferent alike to his 
obligations to society or individuals, given to the making of 
baseless charges and utterly incapable of telling the truth. 
Hiss, on the other hand, had a spotless record. Nineteen 
witnesses, some of them the most distinguished people in 
America, had vouched for him; his reputation for integrity, 
veracity and loyalty was of the highest. 

Cross attempted an explanation for every item of damag- 
ing testimony. As to the typewriter, he argued that Cham- 
bers got it through a confederate after the Hisses had given 
it to the Catletts. "Anyone clever enough to secure secret 
documents through a confederate could easily have traced 
it to the servants' children and could have obtained pos- 
session of it and made copies of the documents." He ex- 
plained the contradictions between Dulles and Hiss on the 
ground that Dulles was a "very busy man" and could not 
be expected to keep clearly in mind the details of long-past 
conversations with Hiss. Edith Murray's testimony had 
been influenced by the "wicked" Chambers. Hede Mas- 
sing was not to be believed because she had given three 
different dates as the time of her marriage to Gerhart Eis- 
ler. 

With a bad case, Cross did the best he could. There 
were simply too many items in the Government's case 
which could not be explained away. 

United States Attorney Murphy faced the jury with su- 
preme confidence. He had made a much stronger case on 



282 GUILTY OR NOT GUILTY? 

this than on the first trial. This second trial had extended 
over nine weeks. The jury was tired and anxious to get 
down to the business of deciding the case. Murphy sensed 
the situation and concluded his argument in less than half 
the time that had been taken by Cross. 

Answering the defense counsel's contention that Hiss 
had shown himself as a more credible witness than Cham- 
bers, Murphy replied that the jury had seen both men. 
"Hiss," declared the prosecutor, "was continually smiling, 
equivocating and fencing." Chambers, on the other hand, 
"for seven days on the witness stand displayed dignity and 
decorum. He was sincere, unhesitating and never evasive." 

What sinister motive had been shown for Chambers* act? 
asked Murphy. Except that he had been summoned before 
the congressional committee and felt it his duty to lay bare 
his past and expose the Communist spy rings which were 
threatening the security of the United States, why should 
he throw away a $3o,ooo-a-year job as the senior editor of 
Time magazine to accuse Hiss falsely? He scornfully dis- 
missed the "psychiatric and psychological testimony." It 
had been thoroughly discredited— shown to be absolutely 
worthless. It represented mere opinions based on the as- 
sumption of a vague assortment of selected, unrelated and 
insignificant facts. Neither of the so-called experts had ever 
examined Chambers; indeed, one of them had never seen 
him before he testified. 

Murphy repeated the effective argument he had made on 
the first trial as to the probative value of character wit- 
nesses. 

The prosecutor's definite flair for the effective use of sar- 
casm found a fair target when he came to answer Cross's 
explanation of how the documents came to be copied on 
the Hiss typewriter. "What probably happened," chuck- 
led Murphy, "is that somebody, not Chambers— he's too 
smart— one of his conspirators . . . went up to the Volta 
Place house and asked innocent Clytie Catlett: 'I'm the re- 



THE ALGER HISS CASE 283 

pair man. Where's the machine?' I can just see it now. 
It's terrific. You can have this guy coming with a Wood- 
stock hat on— 'Woodstock Repair'— saying, 'I am the repair- 
man to fix the typewriter.' Then Clytie says, 'Well, which 
one do you want? The Remington, the Royal, the L. G. 
Smith?' . . . 'No, we want the Woodstock.' 'Oh, that's over 
in my boy's house, over at P Street.' And then the next 
scene: It is in the middle of one of these dances. [It had 
been brought out that there were frequent revels at the 
Catlett P Street home.] And you see Chambers sneaking 
in at night, mingling with the dancers, and then typing, 
typing the stuff, holding the State Department document in 
one hand." Turning to the defense counsel, he concluded, 
"Oh, Mr. Cross, you've got to do better than that." 

The prosecutor made a telling point of Chambers' testi- 
mony, which Hiss denied, that Hiss had introduced him to 
a woman named Plum Fountain. There was such a person, 
declared Murphy; she appeared as a witness and testified 
"Plum Fountain" was one of the names she was known by. 
How could Chambers, how could anyone, he inquired, 
"think up a name like that?" 

Speaking seriously, Murphy referred time and again to 
the "immutable witnesses"— the four memoranda in the 
handwriting of Alger Hiss, the forty-six copies of secret 
State papers and the microfilms. The real offense of Hiss, 
declared the prosecutor— the stealing of restricted and con- 
fidential papers of the Department of State— was serious 
indeed. The "siphoning" of the State documents had given 
Soviet agents secret coded information, intended exclusive- 
ly for State Department officials, which permitted Russia 
to break the highly secret American diplomatic codes. 

Murphy's closing appeal to the jurors was brief and stir- 
ring—a call to do their duty fearlessly, considering naught 
but the law and the evidence; if they did that, there was but 
one verdict they could return— guilty. 

Judge Goddard's charge covered substantially the 



284 GUILTY OR NOT GUILTY? 

ground which had been traversed by Judge Kaufman in the 
first trial. While balanced and scrupulously fair, it lacked 
the "defense cast" apparent in the earlier instructions. 

Balancing the "respective interests" of the parties, he 
charged: 

The defendant Hiss has a great interest in this case. Mr. 
Chambers also has a deep interest in the result. It was Mr. 
Hiss's denial of Mr. Chambers' testimony before the grand 
jury which led to the defendant's indictment for perjury, so 
that naturally they would both wish to have their state- 
ments sustained. Mr. Hiss has commenced a suit against 
Mr. Chambers for libel, and the result here may affect that 
suit. Their wives also have an interest in the outcome. 

He instructed the jury generally as to the probative value 
of expert testimony and made a particular reference, as pre- 
viously indicated, to the testimony of Binger and Murray. 

In the final paragraph of his charge, Judge Goddard, hav- 
ing in mind the previous disagreement, sought by a plain 
statement of jurors' duties to prevent a similar result in this 
second trial. He said: 

The jury is composed of twelve citizens and your verdict 
must represent the decision of each individual juror. The 
object of the jury system is to secure a unanimous verdict 
through an exchange of views, reasons, and arguments 
among the several jurors. And, as you confer in the jury 
room, opinions may be exchanged or changed. Although 
the verdict should represent the considered judgment of 
each juror, a juror should not refuse to listen to the argu- 
ments of other jurors equally intelligent and equally ear- 
nest in the effort to mete out justice. 

His final word was addressed to their ultimate duty as 
jurors: 

Now, ladies and gentlemen, if you find that the evidence 
respecting the defendant is as consistent with innocence as 



THE ALGER HISS CASE 285 

with guilt, the defendant should be acquitted. If you find 
that the law has not been violated, you should not hesitate 
for any reason to render a verdict of acquittal. But, on the 
other hand, if you find that the law has been violated as 
charged, you should not hesitate because of sympathy or 
for any other reason to render a verdict of guilty, as a clear 
warning to all that a crime such as charged may not be com- 
mitted with impunity. The people of this country are en- 
titled to be assured of this. I submit the case to you with 
confidence that you will faithfully endeavor to render a 
verdict. 

At 3:10 p.m. on Friday, January 20, 1950, the jurors re- 
tired. It was almost twenty-four hours before they an- 
nounced they had reached an agreement. 

The forewoman of the jury announced the verdict: 
Guilty on the first count and guilty on the second count. 

The following Wednesday morning Judge Goddard 
heard and overruled the defendant's motion for a new 
trial. Hiss was asked if he had anything to say before the 
Court passed sentence upon him. Hiss, after thanking the 
Court for the opportunity of again denying the charge 
made against him, added the remarkable statement: "I only 
want to add that in the future the full facts of how Whit- 
taker Chambers was able to carry out forgery by typewriter 
will be disclosed." 

The Court then pronounced its sentence: five years' im- 
prisonment in the penitentiary on each of the two counts, 
the terms to run concurrently. 

Aftermath 

Hiss promptly appealed his case to the Federal Court of 
Appeals for the Second Circuit. On December 7, 1950, that 
Court (Justices Chase, Augustus Hand and Swan) handed 
down its unanimous opinion, affirming the judgment of 
the district Court. 16 



16 185 F. (2d) 822. 



*86 GUILTY OR NOT GUILTY? 

After restating the law that to convict of perjury there 
must be the testimony of two witnesses or one witness cor- 
roborated by facts or circumstances, the Court said: 



Chambers testified in great detail concerning his rela- 
tions with Hiss in Washington. . . . Indeed, it is perfectly 
plain that his testimony, believed as it evidently was by the 
jury, is of such breadth and scope that if it was adequately 
substantiated by other evidence, as the law requires, there 
was enough to support the verdict. 



After commenting that the jury might well have believed 
that Hiss "had been less than frank in his belated recog- 
nition of Mr. Chambers as the man he had known as Cros- 
ley," the Court concluded: 



The jury had ample evidence other than the testimony 
of Chambers on which to find, as it evidently did, that the 
documents of which Mr. Chambers produced copies were 
all available to Mr. Hiss at the State Department, and that 
finding, coupled with the fact that they were copied on a 
typewriter which the jury could well believe was used for 
that purpose when in the possession of Mr. Hiss in his 
home, supplied the circumstances which strongly corrobo- 
rated the testimony of Mr. Chambers. Indeed, such known 
circumstances tend to fill out a normal pattern of probabil- 
ity when so interpreted, while in attempting to reconcile 
them with appellant's denial of association with the delivery 
of State Department documents or their copies to Mr. 
Chambers one approaches the realm of sheer speculation. 



The alleged procedural errors were shortly disposed of 
as insufficient support for the claim that Hiss had not had a 
fair and impartial trial. 

The carefully considered, vigorously worded, unanimous 
opinion of the Court of Appeals made practically certain 
the failure of Hiss's final effort to escape the consequences 



THE ALGER HISS CASE 287 

of the jury's verdict. On March 12, 1951, the Supreme 
Court of the United States denied his petition for further 
review. Ten days later he surrendered to the United States 
marshal and commenced the serving of his five-year sen- 
tence. As the doors of the Federal penitentiary at Lewisburg, 
Pennsylvania, closed behind him, he was still protesting his 
innocence and confidence in his ultimate vindication.