The transition back to living with the others didn't go well. There was another fist fight and Nelson and Stewart left the apartment shortly after Touhy's return. Nelson went to Minneapolis where his mother turned him in to the FBI just hours after he arrived. Within minutes after his arrest, Nelson told the agents everything he knew about the escapees and by nightfall, a small army of agents was slowly and carefully moving in around the gang's apartments.
J. Edgar Hoover arrived on the scene to personally supervise the raid because he felt that Touhy had sullied the Bureau's reputation when he escaped conviction from the Hamm kidnapping case built by Special Agent Purvis back in 1933. To Hoover, the FBI's capture of Touhy would justify the Bureau's original campaign to put him behind bars. Legally, Touhy and the others hadn't done anything wrong. Incredibly there was no law in the state of Illinois against escaping from prison nor would there be one until 1949. Even if there were such a law, as a federal agency, the FBI still had no grounds to enter the case. Hoover needed a reason to lock Touhy up so his brain trust created one. It was decided that Touhy and the others had violated the federal law which required all men of military age to notify their draft boards when they had changed addresses. The fact
that Roger was well over draft age and had already served his country and that the others as convicted felons weren't required to register were only facts that clogged the theory.
The FBI's Chicago office had the entire arrest procedure planned out days in advance of Hoover's arrival. Agents and snipers already surrounded the building and undercover agents had rented several apartments in the building.
When O'Connor and Mclnerney came home, six agents, guns drawn, leaped out from behind a hallway door.
"Put your hands up! We're federal officers!"
O'Connor turned, and according to agents' reports, fired his .45 caliber automatic twice, with the bullets ending up in the stair rail. Mclnerney never got to reach for his .38 caliber; the agents returned fire and pumped at least thirty-five shells into the two convicts.
Roger and Banghart arrived back at the apartment about an hour later. Recalling the incident Touhy wrote, "We went to the Kenmore flat and up the back stairway after I had parked the car a block away...the joint felt creepy to me, and I prowled around uneasy as an alley tomcat at midnight mating time and peered out the windows."
At zero hour, powerful search lights were turned on to the windows of Touhy's apartment and then a loud speaker cracked the silence of the night with "Roger Touhy and the other escaped convicts! The building is surrounded. We are about to throw tear gas in the building. Surrender now and you will not be killed."
Banghart wanted to shoot it out, but Roger negated this move. They debated over what to do for the next ten minutes before Banghart shouted out the window "We're coming out!"
"Then come out backward with your hands high in the air! Banghart, you come out first."
Banghart, wearing only his pants, appeared at the front door, his back to the agents. Roger, clad in fire-engine-red pajamas, followed him.
The agents leaped on each of them as they came out of the building and knocked them to the freezing cold pavement and handcuffed them.
A dozen agents rushed into the apartment and found five pistols, three sawed off shotguns, a .30.30 rifle and $13,523 in cash which they handed over to Tubbo Gilbert who was still the Chief Investigator for the States Attorney's Office.
When Gilbert returned the cash to the prisoners at Stateville prison, he said that he had only been given $800 by the FBI.
After Touhy and Banghart were handcuffed, J. Edgar Hoover, surrounded by a dozen agents and a dozen more newspaper reporters, strolled up to Banghart and said "Well, Banghart, you're a trapped rat."
Banghart burst out into a huge smile. "You're J. Edgar Hoover aren't you?" he asked.
'Yes," Hoover beamed, "I am."
Banghart nodded his head and said, 'You're a lot fatter in person than you are on the radio."
Although they may not have had a headquarters, the Touhy gang did have their own priest, Father Joseph Weber, who Roger had met back in 1923 when Weber was an Indiana State Prison chaplain while Tommy Touhy was serving time for his role in an Indianapolis department store burglary. Roger and his brother Eddie asked Weber to use his influence to get a parole hearing for Tommy. Weber agreed, and by the end of the year Tommy was paroled and the Touhys were indebted to a priest who ran one of the poorest parishes in Indianapolis. Later, after the brothers were established in the bootlegging business, they donated 10 percent of their business profits to Weber's parish. '1 was," said Roger, "God's bagman."
The brothers benefitted the priest in other ways. Weber had always been politically active in Indianapolis and argued vehemently for the city's growing black population. Weber claimed that the Klu Klux Klan, which had its regional headquarters in Indianapolis, included some of the city's and state's leading families and politicians. As a result, Weber said, the black citizens of Indianapolis were denied even the most basic of city services.
One day as a passing part of a conversation, Weber mentioned to Tommy Touhy that if he had the Klan's secret membership files, he could confirm his suspicions and break their power. A few days later, on April 1, 1923, a moonlit Easter Sunday, a burglar broke into the Klan's headquarters and stole the organization's state membership list, some 12,208 names, which included some of the most powerful and well respected people in the Midwest. The next day, parts of the list were published in the Catholic newspaper Tolerance under the headlines "Who's Who in Indianapolis."
"The Klan offered me $25,000 for the records, which I turned down," Roger wrote.
Weber didn't always stay above the fray himself. John Sambo was a small time beer hall operator who managed Sambo's Place, a Capone saloon next to the Big Oaks Golf Course on the extreme northwest edge of Chicago. The problem was that the place bordered on Roger Touhy's territory. Tommy Touhy paid Sambo a visit and he changed to Touhy's brand.
Sambo reported to the FBI that one sunny afternoon, Roger Touhy and several of his men, including Father Weber, entered the saloon at mid-day and drank until the sun went down. That night a young Negro boy came into the bar room to shine shoes and the drunken Touhys pulled out their weapons and fired shots at the boy's feet to make him dance.
Several months later, Sambo fell out of favor with the Touhys when he stopped selling their beer and switched to Capone's brand. An FBI report on Sambo states, "[On] one occasion Roger Touhy, George Wilke and Leroy Marshalk came into his place of business and took him down to the basement, stating that they had information that he was selling other beer. Sambo stated at that time that he believed that Touhy would have killed him, but that Marshalk, whom Sambo had known for some time, stopped him."
The saga of the Terrible Touhys was over, everyone thought. .
Everyone, that is, but Roger.
Like many another long- termer, Roger Touhy became what the inmates call a jail-house lawyer, studying law books and the possibilities of winning a new hearing that would prove his innocence. He had been framed by the Cap one mob. he was sure.
First, he decided, he would need new witnesses and new statements from the witnesses who had testified. He employed several lawyers and a private in- vestigator. Their progress was slow, but the private detective, Morris Green, came up with an impressive dossier of sworn statements tending to disprove Touhy s guilt:
He found fifteen people in Tennessee who swore that Ike Costner and Basil Banghart had been in that state on June 30 and for several days afterward and could not have participated in the Factor case.
Kator and Sharer made independent statements that the kidnaping had been framed by Jake Factor, that they and Willie Sharkey and others had been hired to stage the fake abduction and that they had split the $70,000 ransom, which had been agreed upon in advance.
Kator and Shafer said the motive was to keep Factor in the United States so that he wouldn't have to face the British courts. They swore that Roger Touhy was not in on the plot.
Several of the prosecution's witnesses changed their stories. In fact, the prosecution's case was thoroughly repudiated.
And it did no good at all. Effort after effort to bring the case into court was turned down. Both the Illinois Appellate Court and the United States Supreme Court made the same ruling: "Denied without a hearing."
THE years went by. Strangely no fellow convicts made any attempt to kill Touhy. But his hope was dwindling until it had all but disappeared.
And then, on October 9, 1942, Roger the Terrible Touhy broke out of jail.
Seven men, including Touhy and Banghart, cowed an elderly guard and his son, escaped over the wall and got away in the guard's car. They evaded detection and abandoned the guard's car near Chicago. An immediate nation-wide manhunt was instituted, with the FBI taking part. .
Newspaper accounts attributed a remark to Roger Touhy (now referred to as Black Roger and Roger the Terrible) and it was widely quoted :
"The first thing I'm going to do is get Jake Factor." Touhy later repeatedly denied this. Jake Factor had become involved in another swindle. In September, 1942, Factor and nine associates were arrested
and charged with a swindle that government attorneys said had brought them more than a million dollars. The ten men were indicted in Cedar Rapids, Iowa, and trial was scheduled in federal court for November,
Following the escape of Roger Touhy, Factor pleaded guilty in Cedar Rapids, and Judge Bell set February 1, 1943, as the date for sentencing. Pending this. Factor was free on bail. He asked the prosecuting attorney for protection.
Touhy and his companions in the jail- break were free for 82 days. Then an informant tipped the FBI that they were living in a, Chicago apartment on Kenmore Avenue. The federal officers raided this place on December 29, 1942. Touhy and Banghart were unarmed and surrendered without resistance. Two of
the escapees were killed and the others were captured.
Under a little-used Illinois law, Touhy and Banghart were indicted for aiding and abetting the escape of one of the others, Eddie Darlak. If con- victed, they could be given the same sentence as Darlak. Touhy was con- victed but the federal government took possession of Banghart and sent him to Alcatraz. Darlak had been sentenced to 199 years: the same term was imposed on Roger Touhy.
On February 1, 1943, John Factor appeared before Judge Bell in Cedar Rapids and begged the court to allow him to change his plea to not guilty.
"I have had no chance to refute the charges made by the prosecution," he said, his voice trembling with emotion. "I pleaded guilty last November be-cause my life and the lives of my family were threatened. I was threatened I would be killed in this courtroom by Roger Touhy."
THE judge denied his plea and Factor* was given ten years in the penitentiary and a fine of $10,000.
More years passed and Factor was out of prison again when there was another flurry in the case of Roger Touhy. In 1948 a Chicago lawyer, Robert Johnstone, became convinced of Touhy's innocence and devoted his full time to the case.
He went to Leavenworth and talked to Ike Costner.
Without hesitation Costner said hewould talk. A deposition was taken. Costner said that he had been in Ten- nessee on June 30, 1933, and for several days afterward and that all he knewabout the Factor case was what he read in the papers. In fact, Costner swore, all of his testimony at the Touhy trial was perjured.
He said that after he and Banghart were arrested in Baltimore on February 11, 1934, on the Charlotte mail-robbery charge, Jake Factor came to see him. Later, Costner said, he had many con versations with Factor and was told what he was to say. He said that Captain Gilbert was present during some of these talks, although he did not im-plicate Gilbert in the perjury plot.
After his arrival in Chicago, Costnersaid, policemen took him around to various places connected with the case and Factor explained what they were and how they fitted into the testimony. "Was any one person responsible for the story you told on the stand?" Cost- ner was asked.
"Well, I would say Factor was more responsible than any other person."
"He suggested most of the things?" "He promised he would get me out of my trouble and get me a legitimate job in Chicago where I could earn a living."
Costner's deposition was long, but the substance of it was that he knew none of the facts of Factor's disappearance and all his testimony at the trial had been false.
Armed with this and the depositionTommy, the first of the Touhys to be called The Terrible, was i
he went to court in a wheelchair to be sentenced for mail robbery ir yet 1936 Did Capone's vengeance reach his old enemy from beyond the grave?
already obtained by the private detec- tive and others. Attorney Johnstone asked Federal District Judge John P. Barnes of Chicago for a hearing. Judge Barnes agreed. On September 8. 1953, all available
witnesses were called to appear in per- son before Judge Barnes end those not available were heard by deposition.Jake Factor took the stand and re- peated his account of the kidnaping.
So did many others. Altogether, over aperiod of 36 days, Judge Barnes heard the testimony of 57 witnesses. Then he took the case under advisement and said he would render his decision after a thorough study of the evidence.
Roger Touhy went back to prison to await Judge Barnes' ruling.
MEANWHILE, there had been many changes in Chicago and Cook County. Remnants of the Touhy gang had died or disappeared. Tommy Touhy had been charged with mail robbery in 1936; suffering from an illness, he had to be carried into court to hear a federal judge sentence him to 23 years. He hassince been paroled. -
The Capone Syndicate, with all major competition out of the way, flourished. Vice and narcotics rackets were operated where and when conditions permitted. Gambling, often transient when reform campaigns put on the heat, continued to be the bread and butter of the strictly' criminal element.
Gang murders continued but on a greatly reduced scale. There was no more warfare between gangs; the remnants of the smaller mobs had been swallowed up into the big Syndicate.
Talking too much was the cardinal sin; the man who was disposed to say the wrong thing or too much was quickly eliminated, his body dumped beside a lonely country road or stuffed into the trunk of his own car.
The big campaign to invade private business was quietly and successfully carried on. Many thriving businesses — taverns, night clubs, restaurants, cleaning plants — either were taken over entirely or the mob became a silent partner. New and phenomenally successful neighborhood shopping centers, backed by Syndicate money, were built.
Almost a year passed before Judge Barnes rendered his decision. Finally, on August 9, 1954. Touhy was brought to federal court in Chicago.
Judge Barnes ascended the bench, glanced at Touhy and plunged into his decision.
?'The court finds that John Factor was not kidnaped for ransom, or othewise, on the night of June thirtieth, or July first, nineteen thirty-three, though he was taken as a result of his own connivance," the judge said. "The court finds that Roger Touhy did not kidnap John Factor and, in fact, had no part in the alleged kidnaping of John Factor."
The opinion was more than 60.000 words. In effect. Judge Barnes said he believed that Factor had arranged the kidnaping to avoid going back to England to face trial for swindling, that the evidence of the 57 witnesses indicated it was a frame-up in which some members of the Touhy gang participated, that Touhy himself had no part of it and that Touhy was framed because he had incurred the enmity of the Capone mob.
Judge Barnes ordered Touhy released and he walked out of court with his family.
The prosecution took an immediate appeal to the United States Court of Appeals. Forty-eight hours after he was freed. Touhy was arrested again. The appeals court, while making no ruling on the merits of Judge Barnes' opinion, overruled his decision on the ground that Touhy had not exhausted all possible remedies in the state courts and therefore the federal court was without jurisdiction. Touhy was ordered returned to Statesville.
Had it all been in vain? Was this the mob's vengeance — life in prison for Roger Touhy?
Attorney Johnstone tried a new series of legal maneuvers but they soon bogged down on crowded court calendars. Touhy then appealed to Governor William G. Stratton for executive clemency. The case was referred to the Pardon and Parole Board.
And the board agreed to a hearing in 1957. Touhy told his story. Then the board heard a voluntary witness — Cook County State's Attorney Benjamin S Adamowski, whose first assistant Frank Ferlic. had at one time tried tc win freedom for Touhy. Adamowski urged the baard to give favorable consideration to the Touhy plea.
The hearing ended and the board took the case under advisement. Alsc considered was the case of Gloomy Gus Shafer, who had done his time quietly A few months later the board recommended clemency for both Shafer and Touhy. Shafer's term was commuted and he was released on parole. The governor commuted both of Touhy's sentences: the 199-year prison-escape stretch was reduced to three years, the 99 years for kidnaping to 72. Touhy was eligible for parole November 23, 1959.
On that date Roger Touhy at last shook hands with Warden Ragen of Statesville and walked through the iron gates, on parole but otherwise a free He had won the most difficult battle of his life — partial exoneration of the kidnap charges and release from prison.
What about his other battles? Was the mob satisfied now?
Roger Touhy didn't think so. For on hand to greet him was a bodyguard he had hired, a former Chicago police sergeant named Walter Miller.
And on hand to watch him and shadow him wherever he went was a man with a shotgun.
Roger Touhy's death had been ordered. He was out of prison but he wouldn't live long. Why? What astounding facts did police uncover as they looked again into Touhy's violent past? What was Touhy's own story, revealed after his death, about the Chicago mayor, the attempt on President-Elect Roosevelt's life, the time Tovh lf forces and the Chicago police fatnea ic do oafile with Capone? The next in- stalment of this revealing insight into gangland will be in the May issue of Official Detective Stories, on sale Thursday, March 31.
This photo of Factor was taken on the day he walked was found walking down a street by Officer Bernard Gerard.Factor said he had been tortured for several days and was bound and gagged as well. But as officer Gerard testified, Factors suit was freshly pressed, he was clean and wearing Cologne.
In thirty years of research, I've never seen this photo before. That's Tommy Touhy in the wheelchair, brother of Roger Touhy, gangster. It was Tommy who actually formed and ran the Touhy gang. He was fearless and probably insane as well. He had a great fondness for dynamite,Nitroglycerin and machine guns. He's in the wheelchair in some part due to Parkinsons, all the brothers had it, and partially due to machine gun bullets he took to the legs in 1933 in a day light shoot out with a Capone gang mad man named Fur Sammons.Both were armed with machine guns and fired from the running boards of their cars cars. Tommy died in Arizona in the late 1960s under the name Turner.