Stanley Knox Feinberg, age 90, prominent Chicago attorney , beloved husband for 63 years of the late Lois, nee Simon; devoted son of the late Anne and Judge Michael Feinberg; loving brother of Eileen (Bernard) Burdman and the late Betty (late George) Epstein; adored uncle of Michael (LaDina) Epstein, Barbara (Richard) MacArthur, Nancy Katz and the late Alan (Bebe) Epstein; proud great-uncle of Mark (Karen), Jay (Julie), Craig (Joy), Ryan and Julie Epstein, Jessica and Aaron Katz, Jeffery Gill, Timothy and Adam MacArthur; and greatgreat-uncle of five. Private Cryptside service Wednesday. Contributions may be made to Friedman Place, 5527 N. Maplewood, Chicago, IL 60625. Info, The Goldman Funeral Group, 847-478-1600.
When gangsters hit a mail truck on the Queen City’s peaceful streets, they had no idea whose territory they had invaded.
It didn’t take a genius to figure out what had happened. Only days earlier, a tip came into the police department that something big was about to go down in Charlotte.
As Frank Littlejohn surveyed the scene and listened to eyewitnesses, the chief of detectives knew this was the something big.
The mail truck was heading away from the railroad depot on Third Street when a car darted out of an alley and slammed on brakes in front of it. In swift, sure movements, four men, at least one brandishing a machine gun, jumped out of the car and swarmed the truck.
The gunman shoved the tommy gun into the truck’s cab and disarmed the driver. At the same time, two men walked to the back, cleanly clipped the lock on the rear doors with a pair of wire cutters, forced the mail clerk out of the truck, and grabbed several sacks.
In less than two minutes, the thieves, loot in hand, retreated to their car, and, in a cloud of dust, they — and more than $100,000 in cash and bank notes — were gone.
Littlejohn had no doubt that this crime, well executed and committed in broad daylight on a clear morning, was a mob hit. He was right.
The year was 1933. The day, November 15. In Chicago, Illinois, Al Capone was battling Roger “The Terrible” Touhy for control of illegal beer and liquor sales in that city’s northwest suburbs. Five months earlier, Capone’s agents framed Touhy for the kidnapping of Jake Factor, a known gangster (and brother of the famed makeup artist Max Factor). Touhy was awaiting trial when four of his henchmen headed south to “raise” money for his defense.
Charlotte in the 1930s had few if any connections to organized crime. Cotton fields surrounded it, and textile mills filled it. As in many towns at the height of Prohibition, staunching the flow of bootleg liquor was one of law enforcement’s primary occupations. But Charlotte, already with a population of roughly 80,000, was on its way to becoming a financial center.
“There were multiple skyscrapers and fancy department stores and the new offices of the Federal Reserve, which opened in 1927,” says Dr. Tom Hanchett, staff historian at the Levine Museum of the New South. “Money flowed in and out of Charlotte.”
Touhy’s men probably thought targeting deposits on their way to the Federal Reserve in the so-called sleepy South seemed like an easy mark. They were wrong.
‘Finest detective in America’
What Touhy didn’t know was that he had sent his men to commit a headline crime in a city patrolled by a man who J. Edgar Hoover would describe as “the finest detective in America.” The ruthless gangster soon learned why.
According to It Happened in North Carolina, Scotti Kent’s 2000 book detailing several little-known episodes in the state’s history, Littlejohn came to Charlotte from South Carolina in 1917 to run a shoe store. Sometime in the 1920s, he went to work as an undercover federal agent investigating Ku Klux Klan activities. In 1927, the Charlotte City Council hired him to rid uptown Charlotte of prostitution. That position, originally temporary, was the start of a 30-year career with the Charlotte Police Department.
By the time of the mail truck robbery, Littlejohn had risen through the ranks to become chief of detectives. He was a tall, lanky man. He smoked cigars, and even today, people who knew him talk about his big nose. Some say his ego was bigger.
“He was not very humble,” says Ryan Sumner, the historian who curated “Beneath the Badge,” the exhibit on policing in Mecklenburg County at the Charlotte Museum of History. “He had a reputation for being good, and he knew it.”
He was good.
“He was no fool,” says Johnnie Helms, 79, a retired officer who went to work for the department in the 1950s when Littlejohn was chief of police. “He was thinking next week while I was thinking today.”
Helms remembers Littlejohn as a tough but fair man who knew his city and who had strong ideas of how its police department should be run. He didn’t like to be told what to do; he had more than one clash with the City Council throughout the years and ultimately was fired 15 days before his scheduled retirement for publicly criticizing a council action.
And as a story in the book Charlotte Police Department 1866-1991 shows, he wasn’t one to let convention get in the way of closing a case. Evidence told Littlejohn that a murder in the Myers Park neighborhood was likely the result of a homeowner walking in on a burglar. Experience with Charlotte’s more unsavory characters told him who his likely suspects were.
Rather than interrogating the suspects, Littlejohn called their wives and girlfriends into his office. With the lights down low, he peered into a crystal ball and began chanting a voodoo spell he remembered from childhood. According to Charlotte Police Department, “One of the women began swooning and screamed that the killer was her husband.”
Hot on the trail
When Touhy’s men hit the mail truck, all Littlejohn and his men needed was a single clue to get the investigation rolling. They got it when the car used in the robbery was discovered within hours of the crime just outside the city limits. It was a brand new black Plymouth sedan that was stolen from a home on East Morehead Street two weeks earlier. Maintenance records indicated that since its last service, the car had been driven only nine miles — almost the exact distance between the robbery and where the car was abandoned.
“If it hadn’t any more than nine miles on it, it had to have been hidden somewhere all that time,” Littlejohn explained in a Charlotte Observer article published toward the end of his career. So he put a detective in a car and told him to drive along every route leading to the holdup scene. At the same time, he had postal carriers asking residents on those same routes if anyone had rented a garage. “This was a mail robbery, you see, and the postal inspectors were on it. … We rang every doorbell,” he said.
They found a woman on 10th Street who had rented a room to two men. At first, they didn’t want to take it, she said, because it didn’t come with a garage. She arranged for them to use her neighbor’s. But, she added, every time the two men left the house, they headed west, on foot.
That information, combined with the fact that there were still two robbers unaccounted for, sparked a search for a second hideout.
A tip about an unfamiliar Packard spotted near where the Plymouth was stolen sent Littlejohn to the second location. “I went tearing out,” he said. “I came up to the door and heard my own police calls blaring out.”
Whoever had been in the room left in a hurry. They didn’t bother turning off the radio they had tuned to the police channel. Detectives found a suitcase full of clothes, three steaks in the refrigerator, and, on the table, a newspaper with the story of how Littlejohn found the car used in the robbery. Littlejohn ordered his men to take every item, including the garbage, to headquarters. There, he sorted out 27 bits of torn-up paper that, when pieced together, formed a Chicago rent receipt.
“For 60 hours there, I didn’t have my shoes off,” Littlejohn said. “I left here at 6 p.m. that evening and was in Chicago the next morning.”
The landlady at the rental property gave Littlejohn descriptions that matched eyewitness accounts in Charlotte.
“The landlady said one of the men carried a violin all the time,” Littlejohn said in the 1957 interview. “That was no violin. That was a machine gun case!”
Between the descriptions and fingerprints lifted from beer bottles found in the second hideout, investigators nailed the robbers’ identities. The ringleader was Basil “The Owl” Banghart, a notorious thief in the Chicago area and Touhy’s right-hand man. His suspected partners in the heist were Ludwig “Dutch” Schmidt, Isaac A. Costner, and Charles “Ice” Connors. All four had long histories on the wrong side of the law.
Within two weeks of the robbery, three of the suspects were behind bars; one was dead. Investigators tracked down Banghart in Baltimore. He was arrested and, six months after the holdup, stood trial in federal court in Asheville. He was sentenced to 36 years for his role in the robbery. Costner testified against his cronies but still got 30 years. And Schmidt pulled almost 30 years.
Ice Connors never made it to trial. According to The Charlotte Observer article, he “was found dead in a Chicago suburb, his body riddled with machine gun bullets and trussed with barbed wire, his dead fist clenched around a penny.”
Littlejohn explained in the 1957 article: “That’s the underworld sign for betrayal. Maybe Ice was just dumb, but he put the police on the mob’s trail and that was enough to kill him.”
For his role in solving the crime and helping to put Touhy’s top associates behind bars, Littlejohn received a letter from J. Edgar Hoover in which the legendary FBI director praised him “as the finest detective in America.” The framed letter adorned Littlejohn’s office throughout his career with the Charlotte Police Department, which included 12 years as chief of police.
Say the name Littlejohn to anyone who knew him or is familiar with his history, and you get the same reaction: He was a no-nonsense character, a poster boy for hard-line law enforcement. Helms, who walked an uptown beat in his early days on the force, remembers the chief as a man who spent little time at his desk and who knew everything about his city.
As the voodoo story demonstrates, Littlejohn wasn’t above using questionable measures to solve a crime. Yet, Charlotte Police Department 1866-1991 credits him with setting the police department on a course toward more professional law enforcement. He established Charlotte’s first police academy; before that, new recruits were handed a gun and a badge and put on the streets. He sent commanding officers to the FBI National Academy and the Southern Police Institute. He set up the first youth bureau in the state to address juvenile delinquency, and the police department established its first firing range under his reign.
Littlejohn had high expectations for his officers, Helms says, but he had the respect of his men and of the townspeople.
Persistence and perception
Even with those accomplishments, Charlotte’s “crime of the century” and his role in solving it remained a highlight of Littlejohn’s career. It shows up in most references to the chief.
Littlejohn enjoyed the recognition and recounting the drama, no doubt. But apparently, the way he saw it, putting together the pieces of the puzzle was just a part of the job.
“People have an exaggerated idea of the acumen and brains a case like this takes,” he said in 1957. “Mostly, it’s persistence … persistence and perception, which is different from observation.”
United States Court of Appeals Sixth Circuit. - 271 F.2d 261
Oct. 22, 1959
Robert I. Doggett, Cincinnati, Ohio, for appellant.
Russell E. Ake, U.S. Atty., argued by James Sennett, Jr., Asst. U.S. Atty., Cleveland, Ohio, for appellee.
Appellant and one Barney Majjesie were charged in the District Court in a three-count indictment with (1) possession of a 300-gallon still which had not been registered according to law, (2) engaging in the business of a distillery without having given the required bond and (3) fermenting 275 gallons of mash fit for distillation in violation of Title 26, 5174(a), 5606 and 5216, respectively, of United States Code.
Majjesie entered a plea of guilty.
Appellant waived a jury and was tried by the Court. He was convicted on all three counts of the indictment. He was sentenced to two years imprisonment on the first and second counts, to be served concurrently, and one year and five months on the third count, to be served consecutively after the sentences on counts one and two had been served.
Appellant was represented by counsel of his own choosing in the District Court and in this Court by counsel assigned by the Court. He filed his own brief in this Court
Twelve questions were presented here by the appellant, many of which have no bearing on the issues in this case.
The principal error relied on in argument was that the judgment of conviction was not sustained by sufficient evidence.
A motion for judgment of acquittal was made by appellant at the close of the Government's evidence. It was not renewed at the close of all the evidence.
Under the circumstances this Court was not required to review the evidence. Picciurro v. United States, 8 Cir., 250 F.2d 585. While not obliged to do so, we have, nevertheless, examined the record and find no merit in appellant's contention as there was ample evidence to support each and every element of the several offenses.
The District Court had before it eyewitnesses who saw appellant purchase quantities of sugar and grain at different stores. He also purchased a pressure tank, still parts and half-gallon jars which he transported to the site where he constructed and operated the still. His own partner in the venture, Barney Majjesie, testified against him. A Government chemist determined that the mash had an alcoholic content of 3.4% by volume.
Appellant also testified as a witness in his own behalf and denied the material charges in the indictment.
He did not recall buying as much sugar as was claimed, but did admit purchasing some supplies for Majjesie, including sugar sweepings. He was arrested on the scene by Government agents who had a search warrant.
It was for the trial judge to determine who to believe under the circumstances and we cannot say from this record that he was wrong.
Appellant next contends that only one offense was committed and that the sentence on the third count should have been made to run concurrently with the sentences on counts one and two. In our judgment, different evidence was required to establish count three. It was, therefore, a separate offense. Bozza v. United States, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818; Newman v. United States, 6 Cir., 212 F.2d 450; United States v. White, D.C., 156 F.Supp. 37.
Appellant further contends that his sentences were excessive. This was a matter solely within the province of the District Judge and with which we have no right to interfere so long as they were within the statutory limit. Hunter v. United States, 6 Cir., 149 F.2d 710 certiorari denied 326 U.S. 787, 66 S.Ct. 472, 90 L.Ed. 478. The Court had the right to take into account appellant's past criminal record which included two violations of the National Prohibiton Act and one robbery of the mails for which he received a sentence of 25 years in 1934. He has admitted violating his conditional release.
We have considered the other errors charged and find them to be without substance.
The judgment of the District Court is affirmed.
The Stolen Years
By Roger Touhy
with Ray Brennan
with Ray Brennan
Copyright 1959, by Pennington Press, Inc., Cleveland, Ohio
All rights reserved, including the right to reproduce this book,
or parts thereof, in any form.
Library of Congress Number: 59-13425
Printed by Merrick Lithograph Company, Cleveland, Ohio, U.S.A.
To innocent men and women in prison, or otherwise deprived of their liberties, this book is dedicated. Roger Touhy
To Robert B. Johnstone, a brilliant and resourceful lawyer, my deepest thanks. He sacrificed a law practice and impaired his health in my behalf.
To Governor William G. Stratton and the members of the Illinois Pardon and Parole Board, I give thanks for their mercy and understanding. To the many lawyers who believed in me and fought for me, including: Daniel C. Ahern, Homer Atkins, Howard Bryant, Frank Ferlic, Frank J. Gagen, Jr., Kevin J. Gillogly, Joseph Harrington, Thomas Marshall, Thomas McMeekin and Charles P. Megan.
To the newspaper, radio and television people who brought the truth about me to the public when truth was what I needed desperately. They include: Earl Aykroid, Julian Bentley, Ray Brennan, Elgar Brown, Tom Duggan, Gladys Erickson, William Gorman, Jim Hurlbut, James P. Lally, Clem Lane, Robert T. Loughran, John J. Madigan, Milton Mayer, John J. McPhaul, Len O'Connor and Karin Walsh.
A number of police officers assisted me. Among them were Bernard Gerard, Thomas Maloney and Walter Miller. Without the diligence of Morris Green, my innocence might never have been established. To State's Attorney Benjamin S. Adamowski, my special thanks for telling the Pardon and Parole Board that he believed I should be freed.
“The court is of the opinion and finds and holds that the writ issued out of the Criminal Court of Cook County, Illinois, whereunder Relator Roger Touhy is held for the period of ninety-nine years for the crime of kidnapping for ransom is void because issued on a judgment of that court which is void because the proceedings in that court antecedent to said judgment and said judgment were violative of the Due Process of Law Clause of the Fourteenth Amendment of the Constitution of the United States in that said judgment was procured by means of the use of testimony known by the prosecuting officers to be perjured and because the Relator was deprived in a capital case of the effective assistance of counsel devoted exclusively to protection of Relator's interests and compelled against his will and over his protests to accept the services of counsel who was compelled to serve adverse interests.”
Judge John P. Barnes
United States District Court
Northern District of Illinois
August 9, 1954
1. The Sharpest Thief in Stateville 19
2. Over the Wall 34
3. 82 Days AWOL 50
4. My Father Was a Cop 75
5. My Beer Was Bootleg-But Good 95
6. Al Capone Didn't Like Me 104
7. The Labor Skates and I 120
8. Jake the Barber Was Kidnaped??? 140
9. Nobody Questioned Me 155
10. Gone Fishing 170
11. Fiasco at St. Paul 192
12. Washington Gets Into the Act 206
13. What Jake the Barber Said 216
14. Alice in Factorland 225
15. A Hung Jury -- and Hope For Me 233
16. The Witness Who Wasn't There 246
17. I Get 99 Years 257
18. My Stolen Years in Prison 266
19. Enter Johnstone — and Hope Again 280
20. My Vindication in Court 291
21. A Great Judge's Opinion 302
1. The Sharpest Thief in Stateville 19
2. Over the Wall 34
3. 82 Days AWOL 50
4. My Father Was a Cop 75
5. My Beer Was Bootleg-But Good 95
6. Al Capone Didn't Like Me 104
7. The Labor Skates and I 120
8. Jake the Barber Was Kidnaped??? 140
9. Nobody Questioned Me 155
10. Gone Fishing 170
11. Fiasco at St. Paul 192
12. Washington Gets Into the Act 206
13. What Jake the Barber Said 216
14. Alice in Factorland 225
15. A Hung Jury -- and Hope For Me 233
16. The Witness Who Wasn't There 246
17. I Get 99 Years 257
18. My Stolen Years in Prison 266
19. Enter Johnstone — and Hope Again 280
20. My Vindication in Court 291
21. A Great Judge's Opinion 302
The Sharpest Thief in Stateville
The best thief I ever knew, in or out of prison, was Gene O'Connor. He was doing his stealing when I first knew him in Illinois' biggest and toughest penitentiary, Stateville, near Joliet. A wheelbarrow was all the thievery equipment he had; that, and a lot of good will.
O'Connor was a little man—smaller than I am, which is five feet six inches. He had an engaging grin and a disarming manner, and he was thinking all the time. Escaping was what he thought about mostly.
He was on a prison yard detail, which gave him the run of the joint. He buzzed in and out of the storerooms, the shops, the kitchen and the cell houses like a fly through a window with the screen left out.
I was working in the kitchen as a steward and clerk, and he would come around to mooch a cup of coffee, an apple, a handful of raisins or whatever he could glom. He hinted about escaping, but I didn't pay much heed. There were 3,000 cons in Stateville, and all of them had crazy ideas about going over the wall.
"You're too busy stealing in here to take time to escape," I told O'Connor. "You're doing better in stir than you could on the outside."
Two or three times a week I would see him pushing his wheelbarrow across the yard toward one or another of the guard towers. He would be trundling a quarter of beef, steaks, slabs of bacon, a 100-pound sack of sugar, or bags of coffee.
He stole the stuff out of the storehouses and peddled it to the guards in the towers. Those towers are perched on top of the prison wall, which is 33 feet high, of solid concrete and steel, and nine feet thick at the base. Each guard up there has a cubicle to sit in, with windows looking down on the yard and a catwalk for exercise along the top of the wall.
The only square way to reach a tower is by an enclosed stairway on the outside of the wall with a solid door kept locked at the bottom. When O'Connor reached the inside base of the wall at one of the towers, he would call up to the man on duty.
The screw would lower a rope and Gene would tie on the loot for the trip. Up would go beef, coffee, bacon or sugar. The tower screws dropped a dollar or two for Gene now and then, or mailed letters to his outside connections for him. But mostly he was making friends and building up good will.
The year was 1942 and the guards were old parties brought in to replace younger men who left for the armed services or for big-paying jobs in war plants. They probably never understood what a hell of a chance they were taking with O'Connor. The damnedest prison break that ever happened at Stateville was in the making.
Gene kept giving me reports about the jolly, larcenous friends he was making in the towers, and the "influence" he was building up. Wartime rationing was on and the guards were getting big money—considering the starvation wages paid in all prisons—by selling O'Connor's meats and groceries in the Joliet and Chicago black markets.
First and foremost, I was under a sentence of 99 years. I would have to serve a third of it, or 33 years, before even being allowed to apply for parole. I had a minimum of 25 years left to go before parole, and I didn't want to stay alive that long in prison—even if I could. So what did I have to lose by going over the wall—or getting killed trying?
Also, "One old character up there is treating me like a son,"' O'Connor told me. "I said to him this morning that I was coming up to visit him some day. He told me to come right ahead and bring my friends. He said he never shot anybody in his life and he wasn't aiming to start now."
I didn't want to know about such things and I told O'Connor so. Convicts have a saying that goes: "If three guys know a secret, that makes four, counting the warden." I didn't relish getting a rap as one of the three guys who got word to the fourth.
Anyway, O'Connor kept on stealing everything that wasn't nailed down, and some things that were. He got away with it because we had a dull warden and a lot of new guards. And he kept needling me to throw in with him on the escape. I was a good candidate for a break, by his standards.
First and foremost, I was under a sentence of 99 years. I would have to serve a third of it, or 33 years, before even being allowed to apply for parole. I had a minimum of 25 years left to go before parole, and I didn’t want to stay alive that long in prison—even if I could. So, what did I have to lose by going over the wall—or getting killed trying?
I had been railroaded to prison. I was innocent. I had been convicted of a fake kidnapping that never happened. I had been sworn into prison on false testimony. I was a fall guy for the Chicago Capone mob. I was rotting in prison on the falsified testimony of a swindler and ex-convict, John “Jake the Barber” Factor.
A distinguished former Federal judge, the late John P. Barnes, subsequently ruled that the kidnapping was a hoax. I had been railroaded to prison under an unjust conviction. Even so, I should have continued to be deaf when Gene O'Connor talked to me. Instead, I was dumb--stupid dumb.
He came to me one day in early summer, and he was grinning with good news. I was in the kitchen and he was pushing that silly wheelbarrow. It was half full of sand. They were drilling a well in the yard and some of the sand from the hole was going into the bottoms of decorative tanks of goldfish in the big dining hall. O'Connor sidled up to me and whispered: "We got two guns into the joint last night, Rog. Old Percy Campbell carried 'em in wrapped up in the flag."
I was shocked and scared. Guns in a prison are like a firebug in a high octane gasoline refinery. I backed off from Gene and told him to keep the hell away from me. There was no reason for me to be thinking seriously about a break at that time. I had something going for me, and I wasn’t hopeless. Not even desperate. I figured I had some percentage on my side.
John P. Lally, a Chicago Daily News writer, had made up his mind that I was innocent. He was one of the first of many to realize the truth. He worked day and night on my case, digging up evidence. He had visited me a few months before with this message: “Rog, you never will spend another Christmas in this place."
One of Lally's Daily News co-workers, William Gorman, had written a long magazine story on my case. I had read the story. It was a good one, and it showed my innocence. When it was published, Gorman and I figured, public opinion wouldn't allow me to remain in prison any longer. I had the greatest possible confidence in the article.
After O'Connor dropped the word about the guns and left me, I stood in the kitchen doorway for quite a while. It was the first really fine day of early summer. Acres and acres of flowers were blooming in the prison yard, where Warden Joseph E. Ragen had had them planted before the politicians got rid of him, temporarily —and I, Roger Touhy, got him back. In Joliet, down the road a piece, the pretty girls would be out in their sleeveless, summer dresses. It was the kind of day when convicts, all 3,000 of us in Stateville, began to get restless. Nature makes guys that way in the spring, I guess.
I was thinking of my wife, Clara, the little brunette I had courted by telegraph when we were both youngsters working opposite ends of a Morse wire for Western Union in Chicago. Our two sons now were high-school age. They weren't having it easy, I knew. This was my eighth year away from them; a hell of a long eternity when you measure it on a penitentiary calendar.
As I stood there in the doorway, birds were singing from every direction, from the flower beds, the shrubbery, and from trees in the yard. There were thousands of birds in Stateville, and more every year because the cons fed and protected them. We envied them, too, and sometimes our feelings got pretty close to hatred. A bird can go over those 33-footwalls faster than a tower screw's rifle can follow and be miles away in minutes. The cons protected the birds, and any hungry cat caught sneaking up on a robin or a bluejay could expect a kick in the tail in Stateville. Still—with the temptations of birds, family, spring time and all—I had no thought of joining Gene O'Connor. I had faith in Gorman and his magazine story. I remembered the promise that I'd be out by Christmas.
All through the hot summer and into the fall, O'Connor needled me. The two guns were hidden somewhere in the prison, he kept saying. The break couldn't miss. Basil Banghart was going along. The old tower screw wouldn't shoot.
Gene's news bulletin about Banghart impressed me. Basil was a shrewd, fast-thinking con. Everybody called him "The Owl" for two reasons. He had big, slow-blinking eyes, and he was wise. He wouldn't go on a break unless the gamble was a good one. I had met him for the first time in Stateville.
The Owl had been sentenced to 99 years for the Factor kidnap fake, as I had. He was a resourceful and courageous man. He could run a locomotive or fly an airplane, and he was better than a green hand at opening up an armored mail truck or persuading a bank guard not to step on the robbery alarm button.
O'Connor was no slouch, either. He had beat Stateville twice on breaks. Once he got into the powerhouse at night, pulled a switch that doused every light in the prison, got a ladder from the carpenters' shop, and whisked over the wall in darkness. Another time he had himself nailed inside a furniture crate being shipped to Joliet, and rode through the gates in a truck.
"This is going to be a high-class break, with no dummies allowed in the group," O'Connor assured me. Sometimes he talked like those Ivy League Madison Avenue boys who started getting into Stateville after they lowered the entrance requirements to include Phi Beta Kappa men. He also explained the exact way in which the two guns had been smuggled in.
Percy Campbell was an old trusty who pottered around outside the main gate, tending the flower beds, watering the grass, sweeping the walks and tidying up the visitors' parking area. He also had the job of carrying in the American flag at sundown every day.
The guns were left at the base of the flagpole one night and Percy carried them in next evening, wrapped up in Old Glory. He got a grand total of thirty bucks for this errand. Whatever his other talents might have been, Campbell was an amateur at collective bargaining. I guess Percy did it mainly for meanness. He had put in 17 years on a one-to-life term, and he should have been paroled long before.
I was an unwilling listener while Gene talked, but that was all. O'Connor wanted me along so bad that his urging got to be a nuisance. I had friends and political connections on the outside. I could raise money and arrange for hideouts, he figured. I just shook my head "no" and grinned.
And then the bad news began hitting me. First it was Lally, of the Chicago Daily News. He died of cancer of the throat. Not only had I lost a good friend, but one of my last two legal chances to get out of Stateville was gone. I had some outside people send flowers to John's funeral. That was all I could do.
John died without ever telling anybody what evidence he had found: why he was so certain I never would spend another Christmas in prison. He wanted his story to be exclusive and, like any good newspaperman, he kept buttoned up.
Chance No. 2 blew up when Gorman came to see me. I knew at once that something had gone wrong. He was carrying a large brown envelope, and his face was long. "I'd rather be kicked all the way back to Chicago than tell you this, Rog," he said. He dumped the contents of the envelope in front of me. Magazine rejection slips, dozens of them.
"No magazine will take the story," Gorman said. I read a few of the slips. Some of the editors wrote that they were interested only in articles with a war angle. Others said that the story of my doublecross was too fantastic, that readers wouldn't believe it. One editor commented coldly that all prison inmates claimed to be innocent and that most of them were trying to get their alibis into print.
I mumbled my thanks to Gorman for all of his wasted work. I stumbled back to my cell. I was seeing through a sort of haze. My last hope was gone. The United States Supreme Court earlier had turned me down for a hearing. I wasn't a man any more. I was a dead thing. I stayed awake until dawn in my cell, thinking. I was without hope. I was buried alive in prison and I would die there. I couldn't see a light ahead anywhere. Nothing but darkness and loneliness and desperation. The world had forgotten me, after eight years. I was a nothing.
Well, there was one way I could focus public attention on my misery. I could escape. I would be caught, of course, but the break would show my terrible situation.
What cockeyed thinking that was. The only thing I could do by going over the wall would be to destroy almost every chance I might have for decent justice at some future time. But a man in my spot isn't reasonable, of course.
My mental attitude was a mess, I later came to realize. I hadn't seen my wife, Clara, for four years, but I couldn't forget her last visit. It had been an ordeal rather than the usual delight. She had worn a white hat and gloves and a dark tailored suit, I remembered. It might be a long time before I saw her again, and maybe never.
At that time, in 1938, I had been disconsolate. I had figured that I couldn't be a drag on Clara and our two sons for all of their lives. So I had given her a direct order for the first time in our 18 years of marriage: "Take all the money you can raise and go to Florida. Change your name. Take the kids with you, of course. Start them out in a new school down there under new names. This is something you must do. "I'll be in prison for a long time. I want you to make a fresh start for all of us in Florida."
I gave her the names of a couple of people she could trust completely in Chicago and in Miami. They would help her get started in this new life. I would send word to her and the boys through the contacts, and get messages from her.
Her eyes filled with tears, but she didn't cry and she didn't ask a lot of questions, either. Giving her that order was the most difficult thing I ever did. But it had to be done, I thought. She had only one question to ask as she sat across the long table in the visiting room, forbidden by the rules to so much as reach across and touch my hand for a goodbye.
"When should the boys and I leave for Florida?" she wanted to know. I told her right away, the next day, if it was possible. The visit was over, and when I looked back from the door, she was staring at me. I think she was crying, but somehow she put on a smile.
Anyway, after my last hope collapsed in 1942, I decided to throw in on the escape. I was thankful then that Clara and the boys were out of the way, living in obscurity under the name of Turner in the Florida town of Deland.
Once I was over the wall, or killed trying to get there, the publicity would be monstrous, with newspaper headlines the size of boxcars. I didn't want my wife and kids hounded by the police or the FBI; I wouldn
't be able to see my family, anyway. They would be watched, if the law could, find them. Their mail and telephone would be checked. I would have to avoid them like yellow fever wherever they were—Chicago or Florida or the other side of the world.
After making up my mind to go AWOL, I passed Gene O'Connor in the yard and told him: "I'm going with you."
He didn't seem a bit surprised then, or later, in the kitchen, when he gave me a rundown on the program. He pointed to one of the guard towers and said that was where we would go over the wall. He set the time for one P.M. on October sixth.
"The screw up there is the old guy who says he won't shoot anybody," Gene said. "I'll promise him the day before the break to bring him some meat and groceries. That way he'll be sure to have his car beside the wall outside, to take home the stuff. We're using his car."
O'Connor explained exactly what I had to do, and it didn't sound too tough. But not easy, either. October sixth was three days away, the longest three days I ever lived. I ate and pretended to sleep and acted like I was interested in the radio broadcasts. And all the time the only thing on my mind was how a rifle bullet from one of the guard towers would feel drilling into my back.
Then, with only ten minutes’ notice, O'Connor called everything off for another three days. The new date, October ninth, was the one he had in mind all along. I had jittered for three days for nothing.
I asked him the reason for the fake date and time, and he explained. It had been a pretty clever idea, at that—he had been testing the security of the plan. "Suppose somebody had stooled to the warden that the break was coming off on the sixth," he said. "The warden would have cancelled all days off for the screws, and I would know he was wise. Then I could have nosed around, found out who talked too much, dealt him out of the break and made a scheme to use the guns later in some other way."
Gene could have been a great commanding general or an international spy, if he hadn't preferred being a thief.
I asked him then for the first time who was going on the break and he told me—Banghart, Eddie Darlak, Martlick Nelson, Ed Stewart and St. Clair Mclnerney, plus the two of us. Ours were names that were to hit the headlines for nearly three months.
Eddie Darlak was a Chicago man doing 199 years for murder in a cop-killing conviction. I knew him slightly. He had to go with us, Gene said, because his brother had delivered the guns to the flagpole. That sounded okay; 23and I was in favor of "The Owl" being with us, of course.
Nelson, Stewart and Mclnerney meant nothing to me, but I might have seen them around Stateville. It was impossible to know 3,000 men, all dressed the same way, and without identifying marks such as mustaches or preferences in neckties.
A short time after lunch on the big day, I was standing at the back door of the kitchen, following out Gene's plan. A truck came rolling along on the daily round, picking up garbage to be hauled to the prison hog farm outside the wall. I was trembling like a kid on the way to the woodshed for a whipping.
I walked up beside the driver and asked him for the truck keys. He looked at me like I was crazy—and he wasn't far wrong. "Give me the goddamn keys," I told him, and it surprised me to hear my voice and realize I was yelling. He pointed to the truck's instrument panel; the keys were hanging from the ignition switch. I pushed and pulled him out of the cab.
The driver said later that I waved a big scissors from the tailor shop at him. That wasn't true, but I didn't blame him for saying it. He might have got hooked on a phony aiding-and-abetting-to-escape charge if he hadn't told a real good story.
I drove the truck along, slowly and carefully, getting the feel of driving after eight years. There was a steel mesh cyclone fence running across that part of the yard and I had to get through a gate where a con was on duty.
After about 75 yards, I approached the gate and beeped the horn. The gate swung open at once. The inmate waved me on and closed the gate. To him, this was just the garbage truck making a routine run.
I stepped on the gas a little. Straight ahead of me was the mechanical store, a building with a vehicle ramp leading down under it. The prison coal supply and a lot of equipment were there. I made a U-turn and backed the truck down the ramp.
O'Connor, Banghart, Darlak and the other three were waiting for me. So, it seemed to me at first, was about half the rest of Stateville's population, although there really were only about 300 cons crowded around.
Two of our guys—Darlak and Banghart, I think—were holding guns, and they had a complication. A guard and a staff lieutenant were down in that passageway under the building. They were standing with their hands at their sides and their faces were white. We were no more scared than they were, really, and for good reason: many a guard held as a hostage has been killed in a prison break.
Somebody handed me one of the guns, a .45. The others loaded a heavy ladder in two extension sections onto the back of the truck. We put the lieutenant and the guard on top to act as ballast and hold down the ladders. I climbed up with them.
Stewart was behind the wheel of the truck and I heard the starter grind a couple of times. The engine didn't start. I jumped off the back of the truck and took Stewart's place. It still wouldn't turn over and I hollered: "The goddam thing is stuck on center! Push it, you guys."
Those convicts down there with us grabbed the truck in every place there was a handhold. They pushed it and rocked it, anxious to help. The motor came off dead center and started at last with a roar.
I drove up the runway and aimed the truck at the tower where the old father-and-son screw was on duty. It seemed to me that we were going 90 miles an hour, bucketing across the yard. The convicts who had helped start the truck cheered and waved to us. Two 50-gallon oil drums, for garbage, were on the truck. I hit a big bump and those drums shot out across the yard like depth charges from a Navy destroyer. It was a crazy trip, and things were going to get crazier.
Over the Wall
I skidded the truck to a stop near the wall tower. We unloaded the ladder, and then things went comical. Nobody knew how to fit the two extension lengths together. Each guy tried to do it in a different way at the same time, with everybody swearing at each other.
Another guard lieutenant came ambling up. He seemed upset, but not much. "You sonsabitches," he said, "don't you know them tower windows ain't supposed to be washed from the inside?"
I started laughing so hard I could hardly hold the .45 on him.
He finally saw the gun. His mouth fell open and he went over and stood with the other lieutenant and guard. One of the screws kept saying, over and over: "Let 'em go. Don't interfere. They'll kill us for sure."
The three of them were helpless against us. Guards and officers went unarmed, except for blackjacks and clubs, inside Stateville. They used to have weapons, but the state lost too many guns that way, with the cons taking them away from the screws. But the old lad up in the tower had plenty of firepower, 26and I got to thinking about him. The way we were flubbing around with the ladder might give him brave ideas.
He might get hurt and so might we, which I didn't want. He was standing over to one side of the tower at the end of the walkway, doing nothing. He wasn't holding a gun, but he didn't have far to reach for one.
I decided a little noise might make things safer for everybody, including him. So I fired two shots and knocked out the glass of a window at the opposite end of the tower. He raised his hands and hollered that he was going to behave.
We got the ladder in place, at last, and I scrambled up with the .45. The other six men in the escape party followed, with the two lieutenants and the guard spaced in between us. With the screws along, we had less danger of drawing fire, although maybe that precaution wasn't needed.
Not a shot came from any other tower. Either the screws weren't looking, or else they were remembering all those meats and groceries from O'Connor's wheelbarrows. It was pretty crowded when all of us got to the tower house, which was only a cubicle. The guard handed over his keys to his sonny boy, Gene, and croaked at him: "Please don't take me with you. I'm an old man." A couple of other guys got his weapons—a 30.30 rifle and an automatic handgun. On the floor of the tower were packages of meat and other stolen stuff that O'Connor had delivered a few hours before. The tower man's Ford sedan was standing on the roadway outside the wall waiting to haul the loot home—but now the script was changed. It was going to carry us far, far away, if our luck held.
The grandpappy guard had a scratch on his face, from flying glass, I guess. He sure as hell wasn't shot, as some people tried to claim later. The next thing that happened all but panicked me.
Gene gave the ladder a kick and it clattered down to the ground inside the wall. I started to yell that now we were trapped in the tower. Without the ladder, we could break our legs or necks dropping those 33 feet to the outside. Sure, there was a stairway leading down, but the door 27at the bottom would be locked, and there was a keyhole only on the outside. But O'Connor had covered that angle, too. "Thorough" was his middle name that day.
He dropped his grocery delivery rope over the side and somebody—Nelson, as I remember—shinnied down it. Then O'Connor dropped him a key, taken from the old guard, to the door below.
Some one of the guys tore the tower telephone out by the roots. That would delay the alarm getting to the warden's office and from there to the Illinois Highway Patrol. Then we tumbled down the stairs, locked the door behind us and piled into the guard's Ford.
I looked at my watch. It had been just 17 minutes since I took the garbage truck away from the driver—but it seemed like it'd been some time back in my childhood.
Banghart gunned our getaway car, and I looked back. The two lieutenants and two guards were gazing after us from the wall. They couldn't do a thing except yell for help. We had the tower arsenal, plus the two pistols that Darlak's brother had delivered to the flagpole.
We were on Highway 66 for a while, but mostly we hit the country side roads. After a while we pulled into a patch of woods to talk things over.
"Where do we go from here?" I asked. "Where's the hideout?"
There was a long silence. I began feeling silly, then alarmed and finally, downright mad. The situation was obvious—and awful.
We didn't have any place to go. There wasn't any hide-out. O'Connor, the master mind, hadn't set up even one single goddam contact to help us. We were in a mess. We had just pulled off one of the slickest prison breaks in history. And now we were as unprotected as a stranger turned loose at noon without clothes in downtown Chicago.
Seven of us were jammed into a small car. All of us were wearing prison uniforms. We had guns, but what good would they be against the army of cops who soon would be looking for us? What a fugitive needs is a place to hide, not firepower.
I had taken it for granted that O'Connor had made arrangements, at least for a few days, on the outside. He hadn't. Well, there was no sense in bellyaching. We took stock. Together we had $120, mostly money that Gene had picked up from his meat-and-grocery route.
What we needed was darkness, and it was hours away. In the meantime, we had to keep moving. The news would be on the radio soon, and every farmer or small town rube in Illinois would be phoning the cops upon seeing a parked car with a lot of guys in it.
So we drove. We kept to the dirt and gravel roads, driving carefully and slowly. When we met a car, some of us crouched down so we wouldn't seem to be so overcrowded. The car had no radio so we couldn't hear the news about ourselves. But one thing was good. The Ford had a full gas tank, so we didn't need a filling station stop. Nature's demands we handled in the trees and bushes. Everything was aimless. I remember noticing that we passed through one village four times. The name of the place was Barkley, and I got mighty weary of it.
When darkness hit, we pulled into a Forest Preserve grove near Lombard, a suburb to the west of Chicago. We had driven more than 150 miles and we still weren't anyplace. We did some scrounging and one of the guys got into a garage at the rear of a house. He came back with a tattered suit jacket and an old raincoat. The clothes fit Banghart pretty well, so he wore them into a grocery store to shop.
We ate bread, cheese and cold meat, washed down with milk. It felt fine to eat without a gun pointed at you from a dining-hall tower. "You should have brought a side of prison beef along," Darlak told O'Connor, "and we could have had a barbecue."
We had to have help, but where to try for it was a terrible problem.
The prison had complete lists, with addresses, of our relatives, of visitors we had had at Stateville, of people we had corresponded with. They would be watched, with taps on their telephones. Former cell mates and friends on parole would be covered like a floor with wall-to-wall carpeting. Anybody who did help us could be prosecuted for harboring criminal fugitives.
There was one possibility among all the hundreds of people I knew in Chicago. He was a legitimate businessman and he had been my friend since we were boys. He never had been in trouble with the law, and there was nothing kinky in his background. But, most important, we never had communicated when I was in Stateville, so the prison had no line on him. I felt sure he would help us if we could get to him.
The Owl, wearing the tattered jacket and old raincoat, rode a bus into Chicago. I gave him instructions on how to telephone the man I had in mind. I couldn't make the trip because the clothes from the garage were acres too big for me.
The rest of us waited through the night. It was bitter cold, even for October in the Chicago area. We couldn't take a chance on lighting a fire. "If Banghart doesn't score," Mclnerney said, "we might as well go back to the main gate at Stateville and apply for re-admittance."
But The Owl didn't fail us, and neither did my friend.
Soon after dawn Banghart was back. He was driving a car and carrying $500, both loaned to him for me by the Chicago businessman. And in the car were pants, jackets, shirts and neckties—nobody ever expects to see a necktie on a con—enough so we all got a good enough fit.
We dressed and were ready to take off for Chicago in the borrowed car. But Gene got to feeling sorry for the old tower guard and his Ford sedan. If we left the Ford in the grove, O'Connor said, it might not be found for a long time. What would the screw do for transportation?
"I'll drive the car up on the main drag of Lombard and park it there," our master-mind said. "That way it will be spotted in a couple of days. You follow me and pick me up."
In a couple of days, it would be spotted, he said! Less than a couple of minutes! The license numbers of that Ford had been going out over the police radio every ten minutes all night long. Every cop in the Midwest was looking for it, slavering frothily for a reward and dreaming of becoming a hero. That car was hotter than a jet plane's after-burner.
We had no more than turned the corner after O'Connor parked the guard's heap and rejoined us when there came the big "w-o-o-o—woooo" of a police car siren. A suburban squad had spotted the license. But by that time we were out of sight.
I turned on the radio in the new car and got the police wavelength. The broadcasts made us feel real good. We had been reported seen in St. Louis, Indianapolis, Kansas City, Peoria, and 14 different places in Chicago. The cops had us pinpointed just about every place in the Midwest except where we really were.
All the way into Chicago we didn't see so much as one police car. If the police had us blocked off, as the radio kept on saying, then somebody had left a great big hole in the roadblock.
"I got more good news for you," Banghart said, as we turned in on Ogden Avenue, the diagonal street leading from Joliet and the Chicago Midway Airport into the Loop. "Rog's friend has lined us up for an apartment. We can move in right away."
We went there, and what a miserable dump it was. A basement flat near 13th and Damen.
I knew the neighborhood like a penitentiary screw knows his stool pigeons. I had played stickball in the streets out there as a kid, pestered the hurdy-gurdy man, and opened the fire hydrants for cooling off on those 100-degree August days.
We went into the apartment. Warden Ragen wouldn't allow a pig from the Stateville farm to set one cloven hoof in the place. The walls were sweating with dampness. The kitchen crackled everywhere we stepped. Roaches were a carpet on the floor.
And the rats! They were as big as tiger cubs and twice as nasty. Banghart claimed that one of them—a stallion rat, he said—stood up on his hind legs, doubled up one fist, pulled a switchblade knife in the other and told him, with the authority of a Stateville guard captain: "Get outa here, you bastard, and take your friends with you. I've been boss of this cellar for 20 years and you ain't going to muscle in”.
I believed The Owl. And the rat, too. But we had nowhere else to go. We stayed after Banghart said: "We'll plug up the holes in the floors and the walls with steel wool, and let the goddam rats tear out their claws and teeth trying to burrow through." A great strategist, Banghart was—except when it came to staying out of prison.
The landlord of the building was an elderly man who lived in a cottage at the rear. We told him we were from downstate Illinois, in Chicago to go to work in a war plant. He took $65 for a month's rent and told us where we could buy cheap furniture in a second-hand store somewhere on Madison Street.
We got in some groceries and, for the first time, we saw the newspapers, all editions of them since the previous afternoon. Our escape was the biggest news anywhere in the world, so far as Chicago was concerned. We had pushed the war off page one. The big, screaming headlines would make you think we had murdered half the guards in Stateville.
The Owl and I got the biggest play because we had been in the headlines for our conviction in the fake Jake the Barber Factor kidnapping. Our pictures were plastered all over the papers, but they were eight years old or more and we had aged a lot in prison. O'Connor killed my optimism along that line by saying: "Sure, you guys are older, but you're just as homely, if not more so. Any cop could recognize you from the photos, and don't forget there'll be rewards out for all of us soon."
In its very first story of the break, one of the papers had dug up the tag of "Terrible" Touhy for me. That fitted me like calling Calvin Coolidge an anarchist. The only conviction I ever had in my life, up to the time of the Factor frame-up, was for parking my car too close to a fireplug. And now, the papers were speculating on how soon I would lead my "mob of terrorists" into robbing a bank or kidnapping somebody.
Out in California, on a fancy estate built out of swindling people, Jake the Barber was bleating like a lost lamb and trying to look twice as innocent. He was scared as hell that Banghart and I would kill him, he said, and the FBI was guarding him. Huh! I wouldn't spit in his direction, much less touch him.
Factor then was under indictment, but on bond, for swindling Catholic priests in another of his fancy con games. He later served a prison term in the case, too. My silly idea of bringing my case before the public for justice was rebounding in the newspapers like a screw's club off a convict's head. Instead of getting fair treatment, I was being crucified. There wasn't one mention in any of the papers that day that I might be innocent—although there were plenty of working reporters, even then, who believed in me.
Later there was a story by Bill Gorman in the Daily News, saying there probably had been no kidnapping, but nobody seemed to pay much heed.
I gave up reading and went for a walk. It was my first jaunt around Chicago since getting free. I looked at the show window displays, dropped in at a couple of joints for a beer and saw a movie. The thing I enjoyed most was looking at the people, free people. Heading back toward the apartment, I went into a Pixley & Ehler's Restaurant, one of a cafeteria chain specializing in baked beans. I got a crock of beans, Boston brown bread and coffee at the counter, went to a table, and started to eat. But I didn't relish the beans for long.
In the door came three of the biggest, toughest-looking coppers I ever saw. I froze. There wasn't any back door. I was like a mouse in the wainscoting with a cat plunked at the only exit.
The cops picked out their food and brought it to the table next to mine. One of them sat sipping coffee and looking at the Chicago Times, a tabloid. My picture covered practically all the front page. He squinted at the photo for a while.
"This guy Touhy would be a fine pinch," he said, and lit into his grub. He could have reached out and grabbed me almost as easily as he picked up his coffee cup. I finished my food, paid my check and left. A fine sense of well-being hit me. I wasn't scared any- more and I wouldn't be again. The experience had shaken the hell out of me; but, at the same time, it had given me back my courage.
Now, I knew I really was free. Nobody knows freedom, of course, if he has fear but I never thought of that before. Back at the apartment, things weren't good. Mclnerney, Nelson and Stewart had brought in whiskey and they were getting drunk and noisy. They were talking about going out to look for women. I told them to quiet down and act careful.
Mclnerney got mean and sneering. "Big shot, eh? Think you're going to run everything, do you?"
I put it on the line for them -- noise, whiskey and women would bring trouble, not only for them but for me, too, if I was living with them.
It was my money, part of the $500 I had borrowed, that they were drinking up. I wasn't being tough, but unless they stopped behaving like reform-school sophomores I was moving out.
I went to bed after that, but the next day I gave our situation a lot of thought. I wasn't going to gamble on going back to Stateville on a drunk-and-disorderly pickup. Anyway, living with six other convicts in a small apartment was too much like prison for me. I wanted solitude: a life of my own without unnecessary danger. For another thing, the men who escaped with me still had the guns we brought from the penitentiary. Suppose a cop came nosing around the apartment and one of the guys let loose with a pistol. A lot of people could get killed, and I might be one of them.
So I set up a life for myself. I was going to stay outside the wall just as long as I could. I would enjoy my freedom in my own way. I wouldn't carry a gun and, when the time came -- as it must for every fugitive -- I would give up.
I wasn't going to have anything to do with any shooting. I found a furnished flat behind a bank building at Madison and Ogden on the West Side. It was small, and the toilet-bath was a share-it proposition down the hall. But, the joint had two exits, which was essential to sound sleep for me, and the location gave me a boot. My, how those bankers would have shook if they knew "Terrible" Touhy was living only a few feet from their building!
When I got back to the basement apartment that evening, a drunken argument was going on. Mclnerney wanted to fight. I jollied him along and then said in a nice way that I was leaving for a place of my own. It was only fair to them that I move out, I told them.
The newspapers were running pictures of me every day. I was hot as a depot stove. If I got caught, so would the rest of them if they were living with me. I didn't really believe that guff, but it got me out of the basement without a fight. I made a deal with Banghart for contacts. To hell with the rest of them.
For a couple of days, I just sat around my new place, admiring the loneliness. It was terrific not to have- some con snoring or whimpering or yelling in his sleep in the same cell, or the next one. And no guard peering through the door with a stool pigeon pencil in his hand. The greatest pleasure in life is to be unregimented, your own boss. Prison teaches you that—though it isn't the easiest way to learn it.
I needed a substantial bankroll, just in case I had to pay off a bribe or get out of Chicago. My best source was my brother, Eddie. He owned a roadhouse, Eddie's Wonder Bar, near the State Fair Grounds outside of Madison, Wisconsin.
I had put up the money for the place, and Eddie would come up with any reasonable amount I needed. But making a meet with him was almost as tricky as getting out of Stateville. The FBI would be sticking as close to him as hogs to a swill barrel. His phones would be tapped. If he got caught with me, it would be a harboring rap for him.
(Editor’s Note: Other brothers included James Jr. who was killed during a mail robbery in 1917; John, who was accidently shot by one of his own men in 1927; Joe, who was killed in 1929 and Tommy. When Eddie died, ownership of The Wonder Bar went to Touhy’s sister.)
So, I called my friend, the businessman who had loaned me the car and the $500. We met in mid-afternoon at the Morrison Hotel bar and had a drink at a quiet table.
I explained what I wanted and he set me up with a guy. I'll call him Simpson, but that wasn't his name. Simpson was an ex-convict, and eager to pick up a quick buck. I explained what I wanted and even drew a map for him.
He drove up across the state line to Wisconsin, parked his car in downtown Madison so his license wouldn't get spotted and took a bus out to my brother Eddie's place. I figured I needed $1,500, but Eddie said to make it $2,500. He would get it from the bank the next day and send it by messenger to Chicago. Simpson came back to Chicago and he was itchy about the set-up in Wisconsin.
"There are a lot of guys acting like surveyors around your brother's club," he said. "They got spyglasses set up on tripods so as to get a fix if you try sneaking up to the joint across the fields or through the fairgrounds. They're FBI men. They hang around Eddie's bar and peek through the windows of his living quarters at night. I told him to have your messenger make damn sure he isn't tailed when he comes to Chicago."
I got the $2,500 the next day. An ex-convict working at the Wisconsin Fair Grounds brought it to me at my apartment, and he wouldn't take a dime for his trouble. Eddie was paying him, he said. He also brought word that Eddie wanted to fix me up with a hideout in Arizona. To hell with that, I said. I wasn't going to bury myself in some hole in the desert. I was staying in Chicago. I had plenty of money now and things should go better. But a lot of problems and troubles were ahead.
(Editor Note: Eddie Touhy died of natural causes in 1945. In 1917, he was sought in questioning relating to a $20,000 mail robbery with Spike O’Connell and Tommy Touhy.)
82 Days AWOL
82 Days AWOL
A convict on the lam absolutely must have a set of identification papers. A Social Security card. A driver's license. And, back in 1942 when I was loose—a draft card. With such papers, a man usually can talk himself out of a routine arrest. Without them, he is up against a trip to a police station—with identification by fingerprinting—for any trifling thing the cops may ask about.
I was living in a semi-Skid Row section of Chicago, losing myself among thousands of men trying to be forgotten for reasons of wife-trouble, personal disgrace, a permanent knockout by booze, or just plain shiftlessness.
This jungle of men gave me a fine protective coloring, but there were drawbacks. The cops might collar a man —me, for instance—at any time for a few questions. The FBI was looking for draft dodgers and the military authorities for wartime deserters. Also, I needed a car to get around, and passing a traffic sign could mean a return ticket to Stateville unless I had a driver's license.
I hit on the deal that a pickpocket could fix me up, and I knew where to find one. He was a skinny little guy, and I had seen him get run out of a Monroe Street joint by a saloonkeeper who hollered at him: "Get out of here, Slim, and stay out. You've lifted your last wallet off my customers."
I watched for this character and saw him about a week later as he waited for a streetcar. When I asked for a word with him, he held his arms out from his sides and said: "Okay, officer, give me the frisk. I'm clean. Haven't made a touch in months."
It took a little talking to persuade him that I wasn't a detective, and then we went into a little restaurant for coffee. I told him a tale—one he obviously didn't swallow —that I had walked out on my wife and that I needed driver's license, Social Security and draft registration cards. He wanted to know how much, and I offered $100 if the cards fit me on age and general description. He wanted $500 and we settled at $200. "Okay, meet me here Friday at the same time," he said, and skittered out to the street.
I met him that Friday and he had a set of cards that came close to me on description. But I wasn't quite satisfied, and he aimed to please. Before we finished dickering I had examined 18 sets—and, finally, I had myself a tailor-made fit.
My name was Jackson. I was five feet six inches tall, weighed 160, had gray eyes and wavy hair. I was 4-F in the draft for physical reasons and I had a job in a war plant. My new papers said so, and who was I to argue?
As more camouflage, I bought a round tin badge in a novelty store. It said "Inspector" and looked like the identity discs issued to some war workers. I wore this thing pinned to my shirt.
Cons in Stateville, the screws and some of my visitors often asked me later how I dodged the law on the outside. The truth is that I didn't dodge. I lived like hundreds of other men, only they were working stiffs and I was a fugitive.
I wore good enough clothes, but nothing gaudy. My hat came down well on my forehead. I wore glasses, issued to roe in prison, and the old photographs of me in the paper showed me without them. If that adds up to a disguise, I'm Mary Margaret McBride in a cell.
My new papers made it easy for me to buy a cheap used car. I drove around Chicago and out into the country through the Forest Preserves. I saw movies, dozens of them. I drank nothing more than a beer or two now and then, but a few bartenders became friendly.
Coming out of the Tivoli Theater late one afternoon, I had one of my biggest starts. Under the bright lights of the marquee, I met two ex-cons from Stateville. They whooped at me, shook my hand, clapped me on the back and wanted me to go on a celebration.
I got away from there fast. They were good guys, but one of them might take a pinch some day or get picked up for parole violating. It might be too much of a temptation for him to talk himself out of trouble by telling where Roger Touhy was.
About six weeks passed and I never saw any of the guys who went over the wall with me. The Owl was the only one who knew where I lived. One evening he came calling. With him were Stewart and Nelson, and that didn't sit well with me. I didn't want those trouble makers to know where I was.
"Thanksgiving is coming up, Rog, and we all ought to be together," Banghart said. "We got two nice apartments out near Broadway and Wilson. Come out and stay with us, at least for the holiday."
It didn't sound too bad. Living like a hermit was getting dreary. There wasn't much point in it any longer, now that Stewart and Nelson knew my address. I packed up, went with them and moved into one of the apartments with Banghart and O'Conner.
No dice. On the second night, all seven of us were drinking beer and playing cards when a rumble started. Darlak wanted to move into the apartment where I was. I said no, that it was crowded enough with three of us. I insisted on a room by myself.
Nelson was a little drunk and got mean. I tried pacifying him and Stewart, who was pretty soggy, jumped in. I gave him a slap in the mouth and left. I had the telephone number of the flat, and I told Gene and The Owl: "I'll keep in touch with you, but if you ever again tell those other three bastards where I am, I'm through with all of you."
My next stop was a room with an old lady on Wood off Madison, back near the Skid Row belt again. I had a line on her because she had a son who did time in Stateville and now was in the can in another state up north. She didn't know me from the name on my Social Security card, but she took me in when I mentioned the son.
"Terrible" Touhy still made headlines in the papers. An armored car carrying a $20,000 candy company payroll got robbed out in the suburbs, and they blamed me and my gang of "escaped terrorists" for that one. In the next edition there was a story saying I had bribed my way to South America ten days earlier. I was reported seen all over Chicago —at times, in two places simultaneously.
The FBI was making things tighter for me all the time. I learned that when I went out to suburban Des Plaines one evening to look at the house with swimming pool, where I had lived with my wife and sons so many years ago.
I was feeling sloppy sentimental and I remembered that I had an old friend, a square, in the village of Cumberland nearby. I drove over there and rang his bell. He opened the door, looked at me, winked and did an acting job that would have won laurels on Broadway. "Yes, sir?" he said, in the tone people have for door-to-door salesmen. "What can I do for you?"
I looked past him into the living room. Two young guys in bankers' gray suits and Arrow collars were sitting there with briefcases beside their chairs. FBI agents, sure as J. Edgar Hoover has jowls.
It was my cue, and I blabbered something about hearing he was in the market for a good used car. My friend said, "No, thank you," and shut the door in my face. I got out to the street and around the corner to where my car was parked.
The Federals took a couple of minutes to get the polite looks off their faces, and then took out after me. I was long gone, threading my car through alleys and side-streets, but I had learned something. The FBI was everywhere.
Another time, I pulled into a filling station at North and Damen Avenues for gas. A car was at the next pump and the driver—a city cop in uniform and wearing a gun—was standing beside it.
He came walking toward me, and I was sort of mesmerized. He didn't reach for his gun, but I was willing to give up. He leaned in the open window of my car. He grinned and I flinched. Then came the goddamnedest one-way conversation I ever heard: "Hello, Mr. Touhy. I was wondering if I'd run into you. I'd like to repay a big favor. When you were running beer, back in '29, I was in an accident and laid up in the hospital. Things were tough for my wife and kids, until you put me on your payroll. Can I help you now? Need any money?"
I couldn't speak, but I managed to shake my head. He reached out a big paw and shook my hand. The station attendant finished filling my tank, and the policeman paid him for me—which made the attendant almost as dumfounded as I was. Quite a few Chicago cops collect easy; but, they usually pay under protest I had learned years before. It was all I could do to squeak out a "thanks" to my benefactor. He told me to phone him any time I needed anything, and gave me the number of his district station. I drove away.
I sat in my room that night and wondered. If that copper had arrested me, I wouldn't have given him a bit of trouble. I didn't have a gun and I wouldn't have resisted. Pinching me would have gotten him a promotion and the award of hero cop of the year, probably. But he had remembered a favor. And I hadn't even remembered the guy, say nothing of the favor!
The time was getting close for capture. The friendly cop and those FBI men in my friend's home in Cumberland village proved that. I was covered too tight to stay on the streets for long. But what was the difference? Capture had to be sometime.
I had made my big protest against false imprisonment. My escape should get a lot of people wondering whether I really might be innocent. No longer would I be a man buried alive. After my capture, the newspapers would print my side of the story. That was the silliest hope I ever had!
When the law moved in on me, I would come out with my hands up. I would go back to prison, but I wouldn't betray the people who had helped me and I wouldn't squeal on the other six who went over the wall with me. I had telephoned Banghart a few times in their hideaway, but that didn't seem smart. Someday the FBI might be there, waiting for the phone to ring after catching or killing the others. They would trace my call and I would be next.
So, I set up a meet with Banghart—a strange meet for two of the most wanted men in America. It was St. Charles Roman Catholic Church at 12th and Cypress, where I had received my first communion.
Every Tuesday evening at six o'clock, the bell tolled in the steeple at St. Charles. It was a call to confession for people of the parish, an unusual custom for that day of the week, I guess. I would be walking up the steps as the bell started clanging.
In the church would be women with shawls over their heads. People were too poor in that neighborhood for the womenfolk to buy hats. They would be praying and going to confession in order to take communion the next day for their dead or for sons, sweethearts or husbands in the war. I had strayed away from religion a long, long time ago, but the holiness of the place still got me.
I would sit in a vacant pew. Banghart would slip in beside me and we would whisper, exchanging word on whether any of us needed help. Then we would leave, separately. If The Owl was more than five minutes late, I would leave.
Banghart, O'Connor, Darlak, Mclnerney, Nelson and Stewart were getting along okay. They hadn't committed any crimes, The Owl said. All of them were getting help from relatives or friends. They were being discreet about women and liquor. Sometimes they worked at odd jobs for walking-around money.
"I don't think they'll ever catch us," The Owl said. But I didn't agree. Pitch a needle into the biggest haystack in the world, and it'll be found if enough people look for it long enough, I told him.
The Christmas season came along and I spent hours walking on State Street, looking in the windows. Christmas is always a lonely business in prison, but it was worse for me that year on the outside. I did manage to get a message through to my wife and kids in Florida, with a few gifts. I thought of visiting them, but that would be nuts. Even if I got away with it, which was unlikely, the tear of parting would be too much.
My old landlady had me in her living room on Christmas Eve to look at her tree. It was scrawny, with the lights flickering on and off, and she was sniffling about her son in prison. I got out of there.
Almost everybody knows the gag about "lonely as a whorehouse on Christmas Eve." Well, I lived it—in a side street saloon, that is, listening to the Christmas carols on the radio and drinking beer for beer with a white-haired bartender.
The next day I went to the Empire Room in the Palmer House, got a table in a corner and ate a big dinner.
I was halfway through the meal before I began to realize that the turkey didn't taste much better than it had at Stateville. Freedom was beginning to pall on me, I guess. When I got home that evening, there was a holiday-wrapped package on my bureau. It was a necktie, a gift from the landlady. I had put a box of candy under her scrawny tree, and now she was paying off.
Every day I left my room early in the morning and took my car out of a garage on Adams Street. I would drive around or go to a movie or take long walks in the Forest Preserves. In the late afternoon, I would be back, like a working man finishing his day. The tin "inspector" badge on my shirt helped that fakery along.
And then, I felt the roof creaking, as a hunted man gets to sense. It was going to fall in on me unless I moved fast. I came home on a Tuesday afternoon and started for my room. The old lady heard me and called to me from the living room. She had three or four guests in there, having coffee and cake. I went in and she introduced me by my phony name. "This man is a friend of my son," she said. "I want him to have refreshments with us. He gave me such a nice box of chocolates for Christmas."
The lights were bright. Across the room I saw a dried-up looking guy peering at me. I knew he had me made. He was almost drooling at the chops over his fat reward in the near future. I went around the room, deadpan as Buster Keaton, shaking hands. The character I suspected had a moist, hot hand. Excitement? Anticipation? Greed for reward? Anxiety to become a hero by stooling on "Terrible" Touhy? I got the hell out of there fast, after mumbling excuses. In my room, I packed up and used a towel to wipe every surface that might hold a fingerprint. The old lady—she was probably 75—didn't deserve a harboring rap. Then, I back-doored the joint. My hunch was right, too. A Chicago copper, John Nolan, told me after my capture that a telephone stoolie had called the police, left his name, and squealed that Roger Touhy was hanging around Wood and Madison, where I had been living. He wanted a reward, the stoolie said. But I foxed him.
Leaving the old lady's house, I ran to my garage on Adams, tossed my suitcase into my car and headed for St. Charles Church. I dashed up the steps—almost falling on the ice—and got inside. The bell stopped tolling just as I pulled open the heavy doors. Banghart was sitting in a pew. The candlelight flickering on his widow's peak, his big eyes and his beakish nose made him look more like an owl than usual. I got next to him and whispered: "Basil, they got me made. I'm in bad trouble. No place to go." "Never mind," Banghart said. "I got things all fixed up. Come on."
We left the church and sat in my car. The Owl explained. He and Darlak had a big apartment out on Kenmore Avenue, near Lawrence Avenue. Everything was as quiet and well behaved as an 82-year-old spinster with a displaced cervical vertebra.
"Move in with us," he invited. "We don't have any guns, liquor or women around the place. Any playing we do, we get away from the neighborhood. O'Connor and Mclnerney have an apartment a few blocks from us."
Nelson and Stewart, he went on, had broken away from them. Probably left town, he said, and that news didn't exactly make a weeping ruin out of me. Those two guys were no assets to any of us.
We went out to the Kenmore flat and up the back stairway after I had parked about a block away. Darlak, always a good enough mope, was there. But the joint felt creepy to me, and I prowled around, uneasy as an alley tomcat at midnight mating time, and peered out the windows. I saw a man stop briefly and talk with another man. He walked a half block and stopped to chat with a second fellow. That was it! Men don't hold sidewalk conversations with other men at night—with girls, yes, but not with men. These men must be cops. I told Banghart and Darlak that we ought to clear out of there.
The Owl laughed at me. "It's that kind of a neighborhood," he said. "Dope addicts and peddlers. They meet on the streets to make deals." I accepted that explanation and decided to stay. It was the lousiest goddam decision I ever made—aside from joining the break in the first place. This is what happened . . .
I was sleeping like dead when a hoarse, bellowing voice awakened me. I thought at first that Banghart or Darlak had turned on the radio. It was that kind of voice. Then the room lit up, brighter than the sunniest day you ever saw, with a pure white light. It stung my eyes, and I started to yell for somebody to turn it off. But the light wasn't in the apartment. It was blasting through the windows.
The voice came on again and now I knew what it was. Somebody was talking over a loudspeaker from the street outside. It was the voice of doom—the reveille bugle calling us back to Stateville.
"Touhy! Banghart! Darlak!" the voice said, with an ungodly tone that must have been heard a half mile away.
"Touhy! Banghart! Darlak!
"This is the Federal Bureau of Investigation. You are surrounded. You cannot escape. Come out with your hands up—immediately. If you resist, you will be killed."
There was a minute or so of silence while the spotlights played against our windows. Then the voice resumed: "You, Banghart, come out first. Hold your hands over your head and walk backwards down the stairs."
The game was up. We all knew it. Banghart looked at me, with those big owl eyes blinking. Then he opened the door and, without a word, backed out through it. Darlak followed him, and then I did. Half way down the stairs there was a gun in my back, and then the handcuffs were on. Just like old times, it was.
Our next stop was the FBI headquarters on the 19th floor of the Bankers Building in downtown Chicago.
They questioned us separately, in pairs, and all three together. We didn't chirp about anyone who had harbored us, of course. And we soon got the pitch on how the law had caught up with us.
Nelson had turned himself in to the FBI in St. Paul, Minnesota and Stewart had been picked up in a fleabag hotel on State Street in Chicago. They had squealed on us. During all the questioning in those early hours, nobody asked about O'Connor and Mclnerney, I noticed. There was an astounding lack of curiosity about them. I began to scent, in a vague sort of way, the attar of embalming fluid. An FBI man confirmed it for me.
"We killed O'Connor and Mclnerney," he said. "They opened fire and we had to shoot them." The news of the death of O'Connor, particularly, shook me up. Mclnerney never had meant much to me, except for wondering why his parents hung the first name of St. Clair on him.
All I said was that I hoped Gene would have that wheelbarrow and rope with him, wherever he was. The FBI kids looked at me blankly—a habit of theirs. That was it. The big escape was all done. The date was December 29th. We had been free for 82 days. Two of us were dead and, although we weren't aware of it yet, the other five were in a hell of a fix.
The FBI and the Chicago police yammered at us for most of two days. They tried to get us to rat on people who had helped us, but we dummied up. As for blaming the $20,000 candy company payroll job on me, that was strictly police guff. I had had nothing to do with any robberies or other crimes, and there was no evidence of any kind against any of us.
The time had come to go home -- home to prison. I glanced toward a doorway in the FBI suite and there stood a man I knew well. He was Joseph E. Ragen, one of the most widely known prison wardens in America. He was my boss, and a stern disciplinarian. There was an ironical story behind my association as a convict with Ragen, the warden.
Back in 1941, Ragen had resigned as warden of Stateville because of a political upheaval in Illinois. My escape, with Banghart and our five companions, had created the most whopping prison scandal of its kind in Illinois penitentiary history. The politicians had gone whining to Ragen, begging him to return and take charge.
He had agreed, but only after being guaranteed absolute freedom from politics. My escape had made him, in effect, the most independent state prison warden in the United States. I looked at him as we met again and said: "Well, Warden, I see I got your job back for you." The warden looked a bit startled, then chuckled and said: "Yes, Touhy, you did." They tell me Warden Ragen told that story hundreds of times in the years that followed.
We rode back to Stateville in style, with a bigger police escort than they give to the St. Patrick's Day parade. I spent New Year's Eve getting dressed back into prison, but I didn't feel too unhappy about it. I had made my big protest as an innocent man. What had it cost me personally? Not too much, I thought.
Illinois law, strangely enough, provided no prosecution or penalty at that time for inmates who broke out of prison. That sounds cockeyed, I know, but it wasn't a crime then to escape from custody, provided you didn't kill or hurt somebody in doing so. It wasn't until 1949 that the Illinois General Assembly passed a law making it a felony to bust out of a jail or a penitentiary.
All I could lose, personally, I thought at the time I went over the wall was time off earned for good behavior. And, that was a damnably insignificant item against 99 years. It was much more important, I had convinced myself, to make a big public protest against false imprisonment.
A Chicago lawyer, Joseph Harrington, came to see me a few days after I was back in Stateville. My family had retained him. I asked him if I was correct in believing they couldn't prosecute me for escaping. Oh, yes, he said, I was right. Absolutely right. But, hiding away in the pubic bushes of the law was a little angle that I had overlooked. There was a clause saying that a person who aids or abets another in escaping can be prosecuted and, if found guilty, be sentenced to the same number of years which the escapee had been serving. It is an archaic law, and judges time and again had called it unfair and barbaric.
"In your case," Harrington said, "I have a hunch they're going to try to pin Darlak's 199 years on you."
I recalled, as Harrington spoke, that Captain Daniel A. "Tubbo" Gilbert—often called "the world's richest cop"—had been lurking around after the FBI had picked me up in Chicago. Gilbert had been a central figure in my being sent to prison.
It would be a terrible injustice to hook me with Darlak's time, of course. I hadn't aided or abetted anybody to escape. Darlak's brother had smuggled the guns and the whole caper had been planned for months before I talked myself—with Gene O'Connor's persuasion—into going along.
But, I strongly suspected that Gilbert would be delighted if the law saddled me with Darlak's 199 years. Tubbo had helped send me to prison for the Factor sham in the first place, as Judge Barnes later ruled. To bury me in prison forever might be Gilbert's idea of personal triumph.
To understand the case of Dan Gilbert vs. Roger Touhy, it is necessary to go back a lot of years. I had known him for a long time, back to the days when my truck drivers were running beer through his Chicago district.
My Father was a Cop
My Father was a Cop
My father was a Chicago policeman. An honest one. Otherwise, he would have had a hell of a lot less trouble getting up the grocery and rent money. And I might have managed to get farther in school than to squeak through the eighth grade.
I was born in 1898, although the prison records say '97, in a house at 822 South Robie Street, (The US Veteran’s Hospital sits on the site today) not far from one of the places where I hid out while on the lam in 1942.
There were seven of us kids, two girls and five boys. We lived in an area of working people, big families and low incomes. My father's pay as a policeman wasn't enough to keep the wolf off the front porch but, at least, he never made it in to eat the potatoes and meat—when we had meat, that is—off the table.
Some of Chicago's most notorious gangsters came out of that part of the city. So did business leaders, college professors, clergymen and a couple of mayors. I was doing all right myself until the big Factor frame-up came along.
My mother died when I was ten. She was fatally burned when a kitchen stove exploded. After that, my father, my two sisters and I moved to Downers Grove, a suburb. The older boys stayed in Chicago, living with relatives and friends. I graduated from the St. Joseph’s Roman Catholic Parochial School in Downers Grove when I was thirteen.
It was a good enough boyhood. I played baseball and raised the usual amount of the devil and got teased because my hair was curly. If I had anything to gripe about, I didn't realize it, because other boys didn't have any more than I did, generally speaking.
I often thought in prison of the priest in charge of the school, a Father (Eneas B.) Goodwin. My family couldn't afford to pay tuition for me, so I was a sort of handyman around the school and the church. I mowed the lawns, served mass as an altar boy, tended the furnace, ran errands and did a little janitor work. It was fun.
Once or twice a week, Father Goodwin rented a horse and buggy from a livery and went calling on his parishioners. I was his driver. At whatever house we stopped, there would be refreshments—apple pies, lemonade, thick sandwiches, salads, pickles, ice cream. Father waved the food away, but I ate fit to bust a gut.
(Editor’s Note: Father Eneas B. Goodwin was born in Chicago in 1876 and died there in 1949. After organizing St. Joseph’s Church in Downers Grove, he returned to Chicago and formed the Department of Political Science at Mundelein College. He was a fellow of the Royal Economics Society of England. He retired from the Economics Department at Loyola.)
In the church there was a big oil painting, a copy of The Last Supper. Father Goodwin explained it to me, saying that a man called Judas had betrayed Jesus Christ for thirty pieces of silver. A thing like that can have a remarkable influence on a kid.
I began thinking of Judas as a stool pigeon, a word I knew, as did all youngsters. While sweeping up the church and dusting the pews, I would stop and look for a long time at the painting. I picked out the face of a man I figured was Judas, and I would stand there hating him.
I thought of cutting the face of the man I concluded to be Judas out of the picture, but that would have ruined the painting and Father Goodwin would have been unhappy. So I just went on despising Judas—something which I never told the "bug doctors," which is what psychologists and psychiatrists are called in prison.
My contempt for informers grew on me as the years passed. When I later got into the labor union movement, I despised the company finks. After a few years in prison, I got to distrust everybody around me, except for a few convicts. Too many inmates are stoolies; the bug doctors can call my attitude antisocial if they want to.
My feeling about informers can be summed up by an anecdote which seems very, very apt to me. Funny, too. I once knew a confidence man called Yiddles Miller. He spoke with a Weber and Fields Dutch accent, but he was a shrewd operator. Con men are, I learned in prison, the elite of all lawbreakers, in the opinion of other felons. They never tattle on each other.
Well, Yiddles and another bunco expert, Gus London, were sharing a twin-bed hotel room in Pittsburgh. Each of them folded his pants across the back of the chair near his single bed. Each fell asleep, but in the middle of the night Yiddles, a light sleeper, was awakened by a prowler in the room. London slept on, snoring a bit.
The thief took London's pants from a chair at the bed nearest the door. He then moved toward the second chair. Yiddles, feigning sleep, stirred and pretended to be awakening. The burglar left, taking only London's pants, with $3,000 in the pockets. Yiddles got out of bed, double-locked the door, propped the back of a chair under the doorknob for added security and went back to sleep.
In the morning London awakened, demanded to know whether his pants had walked away with his $3,000, and was told by Yiddles: "A burglar came in and stole your trousers." London was indignant, demanding to know why Yiddles hadn't awakened him, summoned the hotel house officer, or called the police.
Yiddles propped himself up on an elbow, stared in astonishment at his comrade in larceny and demanded: "What do you think I am, a stool pigeon?"
London thought over the questionable ethics involved, agreed that Yiddles was right, and apologized for having suggested calling in the law.
Whatever the moral, or immoral, angles of the story may be, I always have despised stoolies, and I always will. The only thing worse is a perjurer. I have had more than my share of troubles from both.
When I got out of the eighth grade, it was hunt-a-job for me. Only rich kids went to high school back then, and I didn't qualify. I had a little edge on other youngsters, because my hobby was ham radio, or wireless as it was called. I had built my own set at home, and I knew the International code.
I tried for a job as a wireless operator, but there wasn't a chance at my age. Too young for responsibility, I was told. So I ran my feet down halfway to my ankles as an office and stockroom boy for a few months and then hooked on with Western Union. They made me manager of a little residential section branch office. A real big dealer, I was.
Salary: $12 a week. I lied about my age to get the job, but it was easy to get by. My hair was gray at the sides of my head —maybe I worried as an infant—before I got out of knee pants, and every day I would have a five o'clock shadow by lunch time.
Western Union gave me a chance to learn the Morse code which wasn't too difficult because I already knew the International. They moved me to the main office downtown and I was an operator.
My father went into retirement about that time, and he liked to play the horses. He would bet fifty cents, or one or two bucks on a race, and only one race a day, when he had the cash to spare. And now I was in a position to be his personal tout.
The stable owners, trainers and jockeys would send messages on the chances of their horses over the wires. I tipped off my father. He had nine winners, mostly long shots, in a row. He would have broken half the bookies in Chicago if he had started with ten bucks and parlayed it. But no, he never risked more than two.
But the really important thing that happened to me—back then in 1915—was that a dark-haired Irish girl went to work for Western Union in the company's branch office in Chicago's finest hotel, the Blackstone.
She was sixteen, and fresh out of telegraph school. From the main office, I sent the Blackstone's messages to her and received the ones she transmitted. She sent better than she copied, but she wasn't so good at either. I tried to help her.
Since she worked from four P.M. to midnight, I could drop in and see her evenings after my day shift ended. The first time I called only to help her with telegraphy. After that I courted her by the Western Union's wires between the main office and the Blackstone. And in person, too. I'd take her home now and then when she finished work at midnight, but she always had a chaperon. Another pretty girl, Emily Ivins, was night telephone operator at the hotel and she made certain that everything was proper on those late-at-night-ride-home dates.
Miss Ivins, incidentally, was to be an important witness in trying, many years later, to keep me out of prison on the Jake the Barber hoax. She was to tell the truth, but it wasn't good enough against the screen of lies behind which Factor and his friends stood grinning.
I would have been a telegrapher for the rest of my life but, odd as it sounds, I was too damn honest. The Commercial Telegraphers Union of America was trying to organize Western Union and the Postal Telegraph Company. I didn't know anything about unionization and I wasn't interested, but I knew some of the operators in the office had joined.
Every hour, the operators got a ten-minute "short," or relief, and we would go into the men's lounge for a smoke. One of the CTU boys scattered organization pamphlets around the room. I picked up one and, like a dummy, read it right out in the open. A company fink saw me and within an hour I was on the pad in the superintendent's office. He had a lot of questions to ask.
Did I belong to their union? No. Did I know any men who did belong? Yes, I did. Would I give him their names? No, I would not. Did I have any plans for joining the union? "Well," I said, "if I decide the union is a good thing, 1 probably will take out a card."
Whammo! I was fired and out on the street. A company guard escorted me to the door and told me never to come back. Now, I'm not rapping Western Union after all these years. Every employer fought the unions then, and the National Labor Relations Act was nearly 20 years in the future as the bosses' nightmare. I would have been fired anywhere for giving the same answers about unionization.
I should have lied to the superintendent, of course. Honesty was my downfall. A CTU organizer came to visit me at home that evening. He brought along an armful of union literature and a paid-up card in the union for six months.
"You're all through as a telegrapher, Touhy," he said. "By this time, your name is on the blackball list. No telegraph company or brokerage office will hire you. But if you want a job with us as a union organizer, we'll hire you."
I didn't believe him about the blackball, but he was right. Nobody would accept an application from me, much less give me a job. The hiring boss at the Associated Press needed operators, but he turned pale and looked ready to climb the wall when he heard my name. I could have been a bearded Bolshevik with a bomb under my coat. I read the union literature and got impressed with the rights of the working man. I took the job as an organizer, which was a lot of hard work and a smattering of prankish fun. We would call up Western Union and Postal, dictate long telegrams to fake addresses in distant cities and send them collect. We kept the companies' messenger services jumping with requests to pick up telegrams from vacant lots.
One of the union men telephoned the non-union Associated Press, posed as the AP's reporter at Rockford, Illinois, and turned in a long, fake story about a hotel fire that had killed twenty people. The story would have got on the wires, too, but some smartie called Rockford to check it.
It wasn't too difficult to sign up telegraphers in the union. The working hours were long, the pay was skinflint and the bosses were nasty. The trouble was that as soon as a key-pounder signed a secret union application card he was fired. I figured we had a stool pigeon in the CTU offices and I suspected one of our office secretaries.
So we forged the names of ten Western Union finks to application blanks and gave them to the secretary. Sure enough, all ten of the informers were fired, including the one who had squealed on me. We got rid of the girl we suspected and things went better. Unions didn't have big enough treasuries to hire meeting halls, so we usually met in saloons. I got to know the big, tough, two-fisted pioneers of unionism.
There were Pete Shaunnessey of the bricklayers, Tom Reynolds and Tom Malloy of the movie projection operators, Steve Sumner of the milk wagon drivers, Umbrella Mike Boyle of the electricians, Big Tim Lynch, Con Shea and Paddy Burrell of the teamsters, Bill Rooney of the flat janitors, and Art Wallace of the painters.
Those men were to figure, innocently, in my being railroaded to prison. Their names will crop up later in this story. Some of them were honest enough to get murdered and others were so crooked they could sleep comfortably only on a circular stairway. Their faces were scar tissued from fighting hired strikebreakers on picket lines. Their skulls were permanently creased from bumping their heads on the tops of police Paddy wagon doorways. Their knuckles, sometimes, were driven halfway up to their wrists from past impacts. I admired their courage and I made lifelong friendships with them—short as some of their lives were.
Con Shea was an erudite character who delighted in using fancy words. I recall his saying to me one night at the bar at the Ansonia Saloon: "Roger, a divided or deviated septum is an occupational hazard of the profession of union organization." I nodded wisely, not wanting to appear dumb. When I got to a dictionary, I learned that he was talking about a busted nose.
Union organizing was fascinating, but there didn't seem to be a secure future in it. Anyway, I liked telegraphy. I joined the Order of Railroad Telegraphers, went west and wangled a job from the Denver & Rio Grande Railroad. The pay was magnificent—$185 a month.
Everywhere the Denver & Rio Grande went, it seemed to parallel streams alive with big, fighting mountain trout. I learned about game fishing there. Also, I became acquainted with ranching, horseback riding and financial security. I worked in small towns where living costs were low, and I sent half my pay home to help out the family.
I wrote long letters and sent small gifts to Clara, the girl telegrapher back in Chicago who was going to be my wife. I was sure of that even then, although I never had proposed to her.
I worked in the depots, with their round-bellied wood-burning stoves in Buena Vista, Glenwood Springs and Eagle, Colorado.
In Eagle, I got my first warning of western bad-man danger when a local merchant told me: "You won't be here long, sonny. We got a rancher, Clyde Nottingham, who runs depot agents out of town. He carries a gun. Guess he don't like you depot agent dudes."
It was cold that first night in Eagle and I had the stove red hot as I jiggled the telegraph key, handling freight car, stock car and personal messages. The waiting room door opened and in came a big man in cowboy clothes and a sheepskin coat. He spat on the potbellied stove. Sizzle, sizzle, the stove went.
I walked to the ticket window, looked out and saw the caller was carrying a .45. He didn't look pleasant, but damned if he was going to run me out of town.
"Mr. Nottingham?" I asked. He nodded and I said: "Mr. Nottingham, any time you want to spit on the stove, go right ahead. But come back next day after the stove cools, and polish it. I ain't going to do it."
He stared at me for a long time. My proposition was reasonable to him, I guess. He came to my window, reached into an inner pocket and handed me a half dozen letters. He asked me if I would put them in- the slot of the mail car on the late train.
I made another proposition: "I put your letters on the train and you stop spitting on the stove? Right?"
"That's the idea, young fellow," he said. "Only reason I been running depot agents out of town is they don't want to mail my letters for me."
A fine friendship started right away. He invited me out to his ranch. He had a ten-year-old daughter called "Toots," and I always get along well with kids. The three of us went fishing and hunting and horseback riding together.
(Editor’s Note: “Toots” was Lolo Nottingham. She was born in 1903 and would have been 15 years old when Roger knew her. Clyde Nottingham died in California in 1942 at age 67.)
Meeting Nottingham taught me a lot, as a young fellow away from home. I learned from the incident in the depot that the town bad man—or later, the rioting con in prison—pretty often isn't bad at all. His trouble is that he can't make himself understood to the depot agent, or the yard screw, or to his family—and he gets sore at people as a result.
Being with Nottingham and his kid gave me a sense of belonging, of being liked and being part of something. Second to my own wife and sons, I thought a lot about the Nottingham’s at night in Stateville. But nothing could be permanent back then. A war was going on in Europe, and then the United States stepped in and it was World War 1.
I got patriotic and headed back for Chicago to enlist in the Navy. The Nottingham’s saw me off at the station and I tried to make Toots stop crying by promising to bring her back half of Kaiser Bill's waxed mustache.
I didn't win the war, or have any active part in it, but the war did something for me. It gave grounds for me, a boy from the eighth grade, to say honestly to cops, bootleggers, convicts, prison screws and interviewers: "I've been to Harvard." It was the truth, too. I taught telegraphy at Harvard to classes of enlisted men and officers.
After my discharge from the Navy, I spent a couple of weeks with my father, living in Franklin Park, a Chicago suburb. I saw that cute little girl telegrapher a few times, but I had a job of getting back on my financial feet before becoming serious about marriage.
I drifted out to a small Iowa town near Des Moines, on a telegraphing job for the Rock Island Lines, then to Kansas City, figuring I might go back to Colorado. But I met one of my Morse code students from Harvard. He was a bright young man, a lawyer, although I hadn't been able to pound telegraphy into his head. He just didn't have an ear for Morse signals. I'll call him Collins, for the good reason that he had a different name.
Collins was heading for Cushing, Oklahoma, where his brother had an interest in a hotel. The two brothers also had a tire shop in Oklahoma, and I wound up as manager of the store. There wasn't enough money in that job, but it was a stopgap.
The oil business was boiling and busting and gushing in Oklahoma. A guy could make a million overnight. That was the line for me, particularly when I thought of my little Irish telegrapher back in Chicago. Marriage was on my mind.
I didn't know any more about the oil business than a mink knows of sex hygiene, but I could learn. For a bottle of bootleg corn, I got an oil field engineer to give me a couple of hours of instruction in engineering. Now, all I can remember of what he taught me is: "Don't bump your skull against an overhead valve and smash your goddam brains out."
I went to a field at Drummond, Oklahoma, told the superintendent I was an engineer, and went to work. I was short on technical skill, but long on bluff. And I knew where to buy corn whiskey to give the mechanics for doing my work when something went wrong with the pumps or engines wildcat wells. Raymond would study those things, look over the terrain and decide whether any of the land was worth leasing from the owners, who were mostly Indians and cattle ranchers.
I had about $1,000 saved, and there was nothing against my buying leases that Raymond recommended. I took a gamble on 150 acres at two dollars an acre in Jefferson County. Three oil companies were bidding on my lease within a month, and I made $2,000 on the deal. I bought and sold about 20 leases, and never lost on any of them.
The money was good, but I was a guy who liked the city. And my mind was on the girl at the telegraph key in the Blackstone in Chicago. I went back home with $25,000 in cash, a fortune in 1920, and it had taken me less than a year to earn it.
Clara and I were married on April 22nd, 1922. I had figured on returning to the west, but Chicago looked too good to me, and there was a lot of money around. Everybody was buying cars and trucks and that was the business for me.
A boyhood friend, John Powell, had an auto sales agency on Madison Street. He was a politician, and later he became an Illinois state legislator and went blind. But at that time he was a real rouser. Powell was a six-footer, and he had a black bear that was just as tall when it stood on its hind legs. When Powell went night clubbing, the bear went along, and both of them would drink bourbon with beer chasers. It was a race between them as to who got drunk first.
I went to work for him (Powell, not the bear) as a car and truck salesman, at no pay. My idea was to learn how to buy and sell, and then go into business for myself. My wife and I were living in an apartment in Oak Park, a sedate suburb where every man was a municipal disgrace if he wasn't a deacon, or at least a pillar of a church. To get away from that mad social gaiety, and to keep my bankroll intact, I bought a taxicab and drove it nights in Chicago. I learned things in the cab I never heard at Harvard.
In a few months, I opened my own garage and auto sales place, with a capacity of 15 cars, and did pretty well. I sold it and moved to a bigger place on North Avenue. I was becoming a tycoon, in a minor league way, in the auto business. I should have stayed in that league.
My brother, Tommy, and I bought our father a two-flat building at California and Warren, where he could be independent and make a small bet now and then. He died in 1926 on a trip to California, the same year Clara's and my first son was born. That's nature's way of evening things up, I guess; like when one guy goes into the penitentiary and another guy gets paroled to make room for him.
My wife and I moved from Oak Park to another suburb, Des Plaines. I bought a place that some of the newspapers later called a "mansion" or a "gang fortress." It was a six-room bungalow and later I put a 60-foot swimming pool in the back. The only gang I ever had around there was a guard with a shotgun after the Capone mob tried to kidnap my kids.
A bargain in trucks got me into the prohibition beer business by chance. I bought eight of them, sold six, and wound up with two sitting around my garage, using up space and showing no profit.
It happened that I knew most of the bootleggers and saloon owners in my area. Why not? They were the guys who had money to buy fancy cars. If Chicago's best stores catered to them and their wives, why shouldn't Roger Touhy?
I called on a few saloonkeepers and then made a deal with two young lads who would work hard to make a buck or two. Also, I fixed it to buy beer from two breweries which turned out legal one-half of one per cent prohibition beer—and sneaked good brew out the back door.
My trucks hauled the beer, the drivers made a profit of twenty dollars a barrel, they paid me a percentage on the purchase price of the trucks and everybody was happy. The police generally expected a payoff of $5 a barrel for beer being run into any given district. I didn't pay it and neither did my drivers. Our operation was too small for the law to bother much with us.
And then Tubbo Gilbert stepped into the picture. I had known him for a long time, first as a labor skate and later as a ward politician. We never got along well and, later on, he swore that he couldn't remember having seen me until July 19th, 1933, an important date in my life.
Anyway, Tubbo, a sergeant at the time, stopped one of my beer trucks, carrying three barrels of beer, arrested the driver and took the beer to his stationhouse.
The payoff was that the beer in the^ barrels was legal stuff—a half of one per cent. It was no more illegal than lollypops or baby Pablum, and it carried about the same kick. He had to release the driver, the beer and the truck, of course.
I circulated the story around Chicago and the back of Tubbo's neck turned red as a gobbler turkey's wattles in mating season.
Gilbert liked me even less after that. It took him a long time to get even with me, but he finally did—99 years of even. One of my friends at the time of Tubbo's near-beer humiliation was Matt Kolb, a bootleg beer distributor with a saloon on California Avenue, not far from my garage. He was a fat, gentle old gent who weighed about 220 pounds, beer belly and all. Anybody who thought all bootleggers were gangsters with machines guns and gun molls had only to meet Matt. He would run away from a ten-year-old kid armed with a flyswatter.
I sold Kolb a car, giving him a good deal and splitting the commission with him, a thing all dealers did then to promote sales. Matt came to me a few months later with a proposition. He had a partner, but they weren't getting along. I could buy out the partner for $10,000. Kolb once had been tied up with the Capone mob, but violence had scared him away.
My automobile business then was bringing me in from $50,000 to $60,000 a year. But the big money was in alcoholic beverages. Everybody in the racket was getting rich. How could the bootleggers miss, with a short ounce of gagging moonshine selling for $1.25, or an eight-ounce glass of nauseating beer going at 75 cents? I drew $10,000 from the bank, handed it to Kolb and said: "You got a new partner."
My next on-the-job training in oil was as a telegrapher for the Empire Pipe Line Company at Ardmore, Oklahoma, and there I learned the big words about petroleum—plus a few names to drop.
The Sinclair Oil people, in a moment of laxity, hired me as a scout. The experience I had had in that line was confined to watching silent western movies in which Army scouts killed Indians. But what the hell, I was an oil field engineer, wasn't I? And I could talk as good a gusher as the original Carbon Petroleum Dubbs.
Word came to me that a famous New York geologist, Dick Raymond, needed a helper. He had located oil fields all over the world. I went after the job and got it. It put me in the big money.
Raymond and I drove all through southwest Oklahoma. At each county seat town, we would get a plat, or diagram, on oil leases, along with figures on production of wildcat wells. Raymond would study those things, look over the terrain and decide whether any of the land was worth leasing from the owners, who were mostly Indians and cattle ranchers.
I had about $1,000 saved, and there was nothing against my buying leases that Raymond recommended. I took a gamble on 150 acres at two dollars an acre in Jefferson County. Three oil companies were bidding on my lease within a month, and I made $2,000 on the deal. I bought and sold about 20 leases, and never lost on any of them. The money was good, but I was a guy who liked the city. And my mind was on the girl at the telegraph key in the Blackstone in Chicago. I went back home with $25,000 in cash, a fortune in 1920, and it had taken me less than a year to earn it.
Clara and I were married on April 22nd, 1922. I had figured on returning to the west, but Chicago looked too good to me, and there was a lot of money around. Everybody was buying cars and trucks and that was the business for me.
A boyhood friend, John Powell, had an auto sales agency on Madison Street. He was a politician, and later he became an Illinois state legislator and went blind. But at that time he was a real rouser. Powell was a six-footer, and he had a black bear that was just as tall when it stood on its hind legs. When Powell went night clubbing, the bear went along, and both of them would drink bourbon with beer chasers. It was a race between them as to who got drunk first.
I went to work for him (Powell, not the bear) as a car and truck salesman, at no pay. My idea was to learn how to buy and sell, and then go into business for myself.
My wife and I were living in an apartment in Oak Park, a sedate suburb where every man was a municipal disgrace if he wasn't a deacon, or at least a pillar of a church.
To get away from that mad social gaiety, and to keep my bankroll intact, I bought a taxicab and drove it nights in Chicago. I learned things in the cab I never heard at Harvard.
In a few months, I opened my own garage and auto sales place, with a capacity of 15 cars, and did pretty well. I sold it and moved to a bigger place on North Avenue. I was becoming a tycoon, in a minor league way, in the auto business. I should have stayed in that league.
My brother, Tommy, and I bought our father a two-flat building at California and Warren, where he could be independent and make a small bet now and then. He died in 1926 on a trip to California, the same year Clara's and my first son was born. That's nature's way of evening things up, I guess; like when one guy goes into the penitentiary and another guy gets paroled to make room for him.
My wife and I moved from Oak Park to another suburb, Des Plaines. I bought a place that some of the newspapers later called a "mansion" or a "gang fortress." It
was a six-room bungalow and later I put a 60-foot swimming pool in the back. The only gang I ever had around there was a guard with a shotgun after the Capone mob tried to kidnap my kids.
A bargain in trucks got me into the prohibition beer business by chance. I bought eight of them, sold six, and wound up with two sitting around my garage, using up space and showing no profit.
It happened that I knew most of the bootleggers and saloon owners in my area. Why not? They were the guys who had money to buy fancy cars. If Chicago's best stores catered to them and their wives, why shouldn't Roger Touhy.
I called on a few saloonkeepers and then made a deal with two young lads who would work hard to make a buck or two. Also, I fixed it to buy beer from two breweries which turned out legal one-half of one per cent prohibition beer—and sneaked good brew out the back door.
My trucks hauled the beer, the drivers made a profit of twenty dollars a barrel, they paid me a percentage on the purchase price of the trucks and everybody was happy. The police generally expected a payoff of $5 a barrel for beer being run into any given district. I didn't pay it and neither did my drivers. Our operation was too small for the law to bother much with us.
And then Tubbo Gilbert stepped into the picture. I had known him for a long time, first as a labor skate and later as a ward politician. We never got along well and, later on, he swore that he couldn't remember having seen me until July 19th, 1933, an important date in my life.
Anyway, Tubbo, a sergeant at the time, stopped one of my beer trucks, carrying three barrels of beer, arrested the driver and took the beer to his stationhouse. The payoff was that the beer in the barrels was legal stuff—a half of one per cent. It was no more illegal than lollypops or baby Pablum, and it carried about the same kick. He had to release the driver, the beer and the truck, of course.
I circulated the story around Chicago and the back of Tubbo's neck turned red as a gobbler turkey's wattles in mating season.
Gilbert liked me even less after that. It took him a long time to get even with me, but he finally did—99 years of even.
One of my friends at the time of Tubbo's near-beer humiliation was Matt Kolb, a bootleg beer distributor with a saloon on California Avenue, not far from my garage. He was a fat, gentle old gent who weighed about 220 pounds, beer belly and all. Anybody who thought all bootleggers were gangsters with machines guns and gun molls had only to meet Matt. He would run away from a ten-year-old kid armed with a flyswatter.
I sold Kolb a car, giving him a good deal and splitting the commission with him, a thing all dealers did then to promote sales. Matt came to me a few months later with a proposition. He had a partner, but they weren't getting along. I could buy out the partner for $10,000. Kolb once had been tied up with the Capone mob, but violence had
scared him away.
My automobile business then was bringing me in from $50,000 to $60,000 a year. But the big money was in alcoholic beverages. Everybody in the racket was getting
rich. How could the bootleggers miss, with a short ounce of gagging moonshine selling for $1.25, or an eight-ounce glass of nauseating beer going at 75 cents?
I drew $10,000 from the bank, handed it to Kolb and said: "You got a new partner."
My Beer Was Bootleg-But Good
Charlie Wilson said that the way to be a success was to make a superior product. He made a giant out of General Motors that way. Henry Ford said it before Wilson, and his business became pretty gigantic, too. I had the same idea when I went into the bootleg beer business. I didn't become a giant in the racket, but you might say I was one of the biggest midgets who ever scoffed at the Volstead Law.
Matt Kolb's beer was awful. One time it would be as flat as pond water with a green scum on it, and the next batch would have enough gas to blow up the Empire State. It could be as bitter as biting into a green persimmon, or as sweet as the smell of a Greek candy kitchen. In only one characteristic was it consistent. All of it was bad—nasty bad, usually.
(Editor’s note: At first Touhy bought his beer from the Valley Gang then under the leadership of Druggan and Lake.)
I set out to make a superior product, and the first person I consulted was a chemist who worked for the City of Chicago, counting the germs in test tubes of sewage water and such delicate tasks. I asked him how to make good beer and, after giving me a lot of long words about enzymes and such, he said: "Good water, you want first of all. Fine pure water. Water is the big thing in all good beverages, from soda pop on up."
I told him to go find the right kind of water, and he did. He tested water all over northern Illinois. Samples from my home town of Des Plaines were pretty good. There was better stuff in a creek out at St. Charles. But the elixir of all beer-base water was from an artesian well near Roselle, he said.
I built a wort plant out there and put my brother Eddie, who years later came through with the $2,500 while I was on the loose, in charge. Wort was an entirely legal product. It is used for making rye bread. Before I was through, I was producing enough wort for all the bread baked in a dozen states. It was a big enterprise, and I paid fifteen cents tax on every gallon I made.
Into the wort I persuaded Matt to put the finest malt, white flakes of corn, rice and hops, domestic and imported, that we could buy. And I went to the American Brewmasters' Institute and hired the best man they could recommend.
"Matt, we're not going to need any salesmen," I told my partner. "We're going to put out the best beer in America. The saloonkeepers will come to us begging to buy it."
To make beer, all we needed was to put the wort into vats, under proper temperature control, add brewer's yeast and water. What happened then was like introducing a pretty, eager girl to a handsome lad and handing them the key to a motel room. Nature took care of the rest.
The mixture stood in open vats for twelve days to ferment while the brewmaster pottered around sniffing, sipping and testing the stuff. If it didn't come up to the highest standards, he dumped it. That was my order. We never peddled a poor-quality barrel of beer.
After twelve days, the brewmaster dropped the temperature to thirty degrees and let the brew mellow. The last step was putting it into barrels, with carbolic gas carbonation added as it went in. Chill it, tap it and fill up a foaming glass—my, my, it was fine beer!
This was an illegal operation, in violation of a Federal law which everyone regarded with the same fondness as a swift kick with a Number 11 boot. Clergymen, bankers, mayors, U.S. senators, newspaper publishers, blue-nose reformers and the guy in the corner grocery all drank our beer. They enjoyed it, and I was proud.
In addition to being outside the law, our enterprise was a big one. At peak production, we had ten fermenting plants, each one a small brewery in itself. It was too big a gamble to have the complete works in one place, which the Federal prohibition agents might raid and chop to ruins with axes.
Each little brewery had to have refrigeration and an ice-making machine for proper temperature control. Every vat and other piece of equipment had to be laboratory-clean or else the beer would be rancid nasty. I had $50,000 tied up in the business before the first stein of beer gushed out of a tap.
It was an efficient, well-run business – not a matter of messing around in basements or bathtubs to run up a few gallons or one-hundred gallons of sickening stuff.
Barrels were a big trouble, with leaks springing to release the carbonation and, sometimes, the beer itself. So we set up our own cooperage in Schiller Park, hiring all union-labor craftsmen to handle that end. It paid off big, because saloonkeepers who bought from us weren't carping about "leakers" from our deliveries.
I bought a half dozen tank trucks, and had them painted like those used by the Texaco Oil Company, to haul bulk beer. The trucks could load 100 gallons a minute, with the engine throttled down and operating a pump from a six-inch feed.
At the top of the season—beer really was a six-months-a-year proposition, with many people turning to rotgut whiskey during cold weather—we peddled 1,000 barrels a week. The price was $55 a barrel to the saloon owners, and it doesn't take much arithmetic to figure our weekly gross. As for net profit, the brew cost us $4.50 a barrel to produce, using the finest ingredients, plus wort tax and delivery expense. Water is cheap, and there's a lot of it in beer.
We sold beer to about 200 roadhouses, night clubs and saloons, all outside of Chicago, to the west and northwest of the city. Our boundaries were from the city line west to Elgin and from North Avenue to the Lake County, Illinois line. We could have expanded, but Matt and I never were hogs for money.
One question always comes up when people talk with me about bootlegging. How much graft did we pay? How many policemen and politicians did we have to bribe, or put on our payroll? The payoff, surprisingly, wasn't big. First and foremost, Matt and I were working the suburbs and Cook County towns. We didn't have to fill the pockets of money-hungry Chicago cops. The small-town police were happy with a ham, a turkey or a $20 bill at Christmas time.
Our business was scattered over a lot of mileage. A barrel here and a barrel there. Nobody realized that Matt and I were grossing about $1,000,000 a year from beer alone. That's right, a million dollars. So the politicians and the fuzz didn't expect big handouts.
The Federal agents stuck pretty well to big towns like Chicago, and our local law was mostly the Cook County Highway Patrol. I figured out an angle to keep the roads open for us, with top priority for our beer trucks. Whenever we had a job open as truck driver or what not, I hired a cop away from the highway patrol to fill it. The arrangement was a splendid one.
We paid no man less than $100 a week, which was more than triple what the patrol guys got for longer hours. There soon was a waiting list of applicant cops to drive our trucks. A cop looking for a good-paying job wouldn’t interfere with us any more than he would pinch a former fellow-cop working for us.
As for the politicians, the payoff for them was largely in beer. A small town mayor or justice of the peace would be as happy as a juvenile delinquent with a pile of rocks and an empty greenhouse for a target if we rolled a barrel of brew up on his back porch every few months. The big-time boys at the trough wanted more, to be sure.
Tony Cermak was an example. He was then chairman of the Cook County Board of Commissioners which made him a powerhouse in the county outside of Chicago, where our beer trucks rolled. Later he became mayor of Chicago, and was killed by a bullet fired by a nut as he stood beside Franklin D. Roosevelt in Miami.
Tony put on a big picnic, to raise political campaign funds, every summer in the Forest Preserves. My contribution would be 100 barrels of beer. The cost of the beer didn't lose me any sleep, but Tony's boys made a good thing by selling it at a buck a mug.
I built up good will that way, like Gene O'Connor with his wheelbarrow at Stateville. Beer bought you more sunshine friends than money did, I realized, so we set up a bottling plant, and it wasn't cheap. The bottle washer alone cost $4,500, I recall, and the pasteurizer was even more expensive. We bottled 750 cases, or 18,000 bottles, of brew a week.
That was all the pasteurizer would handle. And, we never sold so much as one bottle of that beer. It all went for friendship, jolly friendship. A case of that stuff, and it was good, meant more to some pols and cops than a $500 bill.
"Try a bottle of this," the guy lucky enough to have some of it would say to his big shot friends on a Saturday night. "Finest beer in America. Roger Touhy sent it along as a token of his friendship. Fine fellow, Rog."
I lived quietly with my family during those big money years. I put a workshop, office and bar in my basement. There was a playhouse for the kids in the backyard. My wife got along well with our neighbors. There wasn't any stigma to selling beer. It was a great public service, most people thought—and the U.S. government finally agreed, you'll recall.
My hobby was making fishing rods from split bamboo in my shop, along with lures and baits. Fishing, from my days along the Denver & Rio Grande as a telegrapher, was my sport. Northern Wisconsin, Minnesota, Canada, Florida, and Montauk Point, Long Island, for weakfish and blue- fish, were my vacation spots. I hunted, too, and was a good shot. Which reminds me. . . .
One afternoon in a Wisconsin lake, I hooked a thirty-pound muskie. I tried working him up to the boat, but he fought like Jack Dempsey in the last round of a tough bout. The fish pulled away, broke water, danced on his tail and shook his head. My reel jammed and left me with only one thing to do.
I took a .25 revolver from my pocket, kept there for the purpose, and shot the muskie through the head. In the boat with me was an Indian guide, Joe St. Germaine, who was better than a green hand with a gun. He was amazed when I boated the fish and showed him the bullet hole. "Nobody can shoot that good," he said. "You were lucky."
We had drunk a dozen bottles of beer in the boat, and now he started throwing the empties out on the choppy waves twenty-five or thirty feet away. I sat there in the rocking boat and smashed all twelve bottles with thirteen shots. Which brings up, to me, an important point: If I had been aiming to hit, would I have missed that old guard in the Stateville tower, from a range of thirty-three feet, on the day of the escape? Nonsense! He was a lot bigger target than a muskie or a beer bottle, the range was shorter and the firing conditions were ideal. But those two shots through the tower window had a big part, back in a ridiculous trial in 1943, in getting me tagged for an additional 199 years for aiding and abetting. . . .
Getting back to the late '20s, Matt and I had another bonanza going, in addition to beer. Ah, those lovely slot machines!
They were against the law, technically, but they stood openly and invitingly in practically every roadhouse, drug store, saloon, gas station and grocery in outlying Cook County. The only places you wouldn't find them were in churches, schools, hospitals, post offices and public libraries. My partner and I had 225 of them in choice locations, and the only way to make money faster is to have a license to counterfeit the stuff.
The businessman in whose place the machine was set up got forty per cent of the coins. Matt and I split the remaining sixty per cent. My cut would add up to about twenty dollars a week for each machine, or $4,500 weekly, and the costs of upkeep and replacement of machines were far from high.
I met Al Capone about a half dozen times back then, mostly in Florida on fishing trips. He offered to let me use his yacht or stay in his big house, surrounded by a wall about as thick as Stateville's, on Palm Island in Biscayne Bay, between Miami and Miami Beach. I didn't accept.
Capone wasn't my kind of person. People around him—or against him—were all the time getting murdered. He surrounded himself with gunsels. That wasn't right in my let-everybody-make-a-living way of thinking. I never carried a gun, except on my hunting or muskie-fishing trips. And I had a rule that none of my employees could tote arms.
Back in about 1927, I had two business deals with Capone. The prohibs had knocked off a couple of his Chicago breweries and he had trouble getting enough beer for his Chicago and suburban Cicero speakeasies. His brother, Ralph, was in charge of beer for the syndicate, but Al himself telephoned me and asked me to sell him five hundred barrels.
We had a surplus at the time, so I agreed. I told him to send his trucks, with five hundred empties, out to our Schiller Park cooperage. We exchanged five hundred barrels of good beer—a lot better than he ever made—for his empties. I gave him a discount price of $37.50 a barrel because of the big order.
The brew must have sold well. He called me a few days later and asked for three hundred more. I said okay and told him that Tuesday—the day I collected from all my customers and paid off my help—would be the day I wanted my money.
On Monday, he called me with a beef. "Fifty of those barrels were leakers," he said. "I'll pay you for 750. Okay?"
I laughed at him. I knew there couldn't be so much as one leaker. Not with the crew of craftsmen I had in the cooperage. They tested every barrel under powerful air pressure before it was filled. Al was trying to chisel me out of fifty barrels, and I let him know that I knew what his pitch was.
"You owe me for eight hundred," I said, "and I expect to get paid for eight hundred."
His voice was a little lame as he replied: "Well, the boys told me there were fifty leakers. I'll check on it."
Check on it? Pfui! He knew what he owed me and he paid it—$30,000 in cash. He could afford to have paid three times as much, with the prices his speakeasy clip joints were getting in Chicago. If there had been even one leaker among those eight hundred barrels, I would have gotten a new crew in the cooperage.
He called me again in a week or so and asked to buy another five hundred barrels. I told him no, that my regular customers were taking all my output. That wasn't exactly true, but what was the use of needling him by saying I didn't do business with weasels?
Al Capone Didn't Like Me
Even when the Chicago syndicate murdered Matt in1931, my name wasn't mentioned prominently in the papers. Capone envied me my anonymity and he begrudged me my income. He wanted to open up the suburbs for brothels and big-money gambling. He sent his torpedoes out to see me, and among the first were Frank Rio and Willie Heeney.
Capone made the appointment by telephone and I set up the meeting at a roadhouse I owned, The Arch, in Schiller Park. When the Capone tough guys arrived, I was in a setting that looked like a grade Z gangster program on television. On the walls of the office in the joint I hung hunting rifles, shotguns and target pistols from my gun collection. A friend on the county highway police had borrowed two machine guns for me. I didn't know how to load or fire them, and I wasn't planning to learn. I just stashed them in an open closet for window dressing.
I owned a gas station on the property and the attendant could see me plainly in the office through the windows. I arranged signals with the attendant. Every time I scratched my head, blew my nose or stood up from my chair, he was to telephone the office from the pay phone in the station. "Don't pay any attention to what I tell you when you call," I told him. "I'm only playing a joke on some friends." Rio and Heeney came in swaggering, but they got sedate when they saw the weapons on the walls. They were downright meek after they looked through the open doorway of the closet and saw the two choppers.
Heeney was the spokesman. He said that Capone wanted to open the county for brothels, taxi-dance halls, alcohol stills and a punchboard racket to rob school kids of their lunch money. "Al wants you to go along on this deal, and he means business," Heeney said, sort of blusteringly. I pulled out my handkerchief, blew my nose, and in a minute or two the telephone rang. I pretended to listen, put on a scowl like a silent-movie villain and barked an order: "Send some of the boys over there and take care of it. Nobody can hijack our slots."
After I had apologized for the interruption, Heeney went on: "Al says this is virgin territory out here for whore-houses." I started to laugh politely at the remark, but my callers seemed to see nothing funny about it. They showed me a map of Cook County, with the locations pinpointed where brothels would be located. I coughed loudly and, on signal, one of my "deviated septum" boys—a former county cop—came striding into the office from the bar.
He grabbed the machine guns out of the closet and said to me: "Louie and I are going over to give those bastards a good scare—or maybe worse, boss." I told him: "Do what you think best, Joe, but don't let them bluff you." He walked out, taking the guns back to the police arsenal from where they had been borrowed.
I apologized again to my visitors and told them that prostitution in the county was impossible. "The suburbanites and the farmers out here won't hold still for bawdy houses," I said. "Beer and slots are okay, but not girls." Which was true.
They kept talking. The telephone rang constantly, and I made gangster-type remarks into the mouthpiece. I acted like a one-man Murder Incorporated, and Heeney and Rio got a little pale around their noses and mouths. They said they would go back and report to Capone. I waved them cheerily on their way.
In the weeks that followed, I had a parade of Capone mob proposition guys. Two of them were Louis Campagna, called "Short Pants" or "Little New York," and "Machine-gun Jack" McGurn, both killers. Campagna gave me a sales talk along this line: "Snorky [a code name for Capone] is in trouble. The 'G' [Federal prohibition agents] is knocking off his breweries and stills before the beer can be barreled or the alcohol put in the delivery cans. He wants to expand a little out in the country, but he doesn't plan to compete with you."
As Campagna talked, I kept scratching, blowing my nose, rising from my chair, answering the telephone and making like Little Caesar. It was a lot of nonsense, of
course. In my years of beer peddling and slot machine operating, I never had a man involved in a shooting, or had a brewery raided, or a beer truck confiscated, either. I kept stalling Capone's messengers, telling them the local people were dead set against prostitution or casinos.
Of course, I knew I would be put out of business soon after the Chicago mob got a foot in the door. I went to the local chiefs of police and explained frankly that I wanted to stay in business, but added: "If the Capone mob gets into your towns, there will be no law left. The mobsters will be killing each other on your streets. You'll have a cathouse in every block. I'm trying to bring up two sons out here in a decent way, and you law enforcement people have families, too. We must protect ourselves."
The argument was valid, even coming from me, a beer runner. I had a pretty good standing in the community. I lived quietly, paid my taxes, contributed liberally to charities and was a leader in the Des Plaines Elks Club and other organizations. A group of businessmen had at one time even tried to get me to run for mayor.
The word passed along through the suburbs, and my advice was followed. As a starter, Capone's agents tried to install punchboards in the stores and shops. The effort was a complete failure. The merchants wouldn't buy the boards. Capone must have known I was monkey-wrenching his machine. I was making a powerful enemy—and I was going to pay for it.
The Chicago hoods kept pressuring me. Three of them—Rio, Frank Diamond, a brother-in-law of Capone, and Sam Hunt, called "Golf Bag," because of the way he carried machine guns and shotguns—were at The Arch one afternoon. The ex-cops and brawny farmers on my payroll clomped in and out of the place.
"You got a big organization, huh, Rog?" Rio said. "Lotta good guys, I guess." I shrugged casually. "There are two hundred guys out here from every penitentiary in the United States and some from Canada" I said. As an afterthought, I told him: "Say, we're having a big party tonight. Most of my best guys will be here. Why don't you come out and bring Al and some of the other boys?"
Rio said he'd relay the invitation. I figured what was going to happen, and it did. Six squads of Chicago police, with a couple of deputy sheriffs from the other end of the county, raided The Arch that night. Remarkable coincidence, wasn't it? But the raid was a flop.
I had closed down the joint for the night. The prop guns were long gone, and there wasn't an ounce of anything alcoholic on the premises. An 80-year-old Chinese cook, saving money on room rent, had sneaked into the kitchen to sleep, but he—a true blue employee of mine—couldn't speak a word of English after they disarmed him of a meat cleaver.
Capone next sent two real hotshots—Murray "The Camel" Humphreys and James "Red" Fawcett—to sweet-talk me. I met them at my basement bar. Fawcett and I had bottled beer, while Hump sipped some of the delicious wine my father-in-law made. Murray, who claims to be a college graduate—a diploma-mill man, I would say—made his pitch.
He and Fawcett had a 16-cylinder limousine parked outside. They wanted me to go with them to Cicero and have a talk with Frank Nitti, the killer they called "The Enforcer"
—a man who put a bullet in his own brain later when things got too tough. Nitti would resolve all of our differences, Humphreys said, talking with the sincerity of a pimp trying to lead the entire graduating class of Vassar into lives of sin.
I might have been chump enough to go with them, at that—which would have been my death—but the telephone on the wall rang, and I recognized the caller's voice. He was a Capone man for whom I once had done a favor. There was a terrible note of urgency in his voice as he said: "Don't go to Cicero. Don't do it. You won't come back if you do."
No, I told the Hump, I wouldn't go to Cicero. To hell with that. If Nitti wanted to see me, he could come out to my area. I would give him safe conduct. I went over to the wall and fingered a shotgun—a purely ornamental piece, no longer usable—but Humphreys didn't know the difference. He glanced cautiously around the oak-paneled room. He tried a threat: "You know, Touhy, we can take care of you any time we want to." I grinned at him, and his hand shook when he lifted his wine glass. He was good and scared. His next remark amazed me: "Touhy, I've got a swell car parked outside. If you drive me back inside the Chicago city limits, I'll give you the car. I want to get home alive." He pleaded with me, with the courage of a steer field mouse, to escort him back to Chicago. Fawcett looked on with a smirk contemptuous of his superior. "Go on back to Chicago, both of you," I told them. "You won't get hurt."
They left, but Fawcett came back into the bar alone. "Listen, Touhy" he said, "for $5,000 I'll kill that sonofabitch Humphreys on the way to the city, and for another five grand I'll go to Cicero and knock off Nitti, too." I sent him on his way, along with Humphreys.
The finest belly laugh I had on Al came soon after that, when Capone sent a man named Summers—Tom Summers, as I recall—to see me. Summers gave me the usual waltz-me-around-again-Willie about importing girls, gambling and stills into the suburbs. I danced a few turns with him and introduced him to two friends of mine—no pantywaists, either of them. They were strangers to Chicago from out of town.
I tossed them a couple of $100 bills, after having a few words with them in private, and said: "Take Mr. Summers out and show him the sights. Cicero is a lively place, I hear. I'd go along, but I'm a family man."
Summers got drunk and very palsy with my friends. They ended up at the Cotton Club, a gambling joint with a floor show which Al had opened up for his brother, Ralph, to run.
It had cost $40,000 to remodel and decorate the dump, and it was Capone's biggest money maker. My lads needled Summers into a fight with Ralph. Then they pitched in, pasted Ralph a few and took a gun away from him. Two other mugs came in on management's side, and they lost their guns, too. My friends took Summers, whooping and hollering happily, into Chicago and dropped him at Al's Metropole Hotel. That's where he wanted to go.
He didn't comprehend what the hell he had done, never having seen Ralph before. When my two friends reported back to me, I sent them right away to their homes in a southwest city and waited for a beef from Al. It came within twelve hours, and he was oily polite, asking for my health and welfare. "Rog," he said at last, "who were those two guys with Summers at the Cotton Club last night?"
I acted dumb. "What guys?" "Two big, dark men. Very tough, I hear. I won't hurt them, but I want them to return a couple of guns. It's very important." Capone was sounding most sincere, and I matched him. "Oh, those fellows. Summers brought them with him when he came to see me. He said they were New York buddies, but I can't recall their names. Sorry I can't help you, Al." Al said again that it was most important that he contact the two men. He just had to have the guns.
"If I see them again, Al," I lied, "I'll get in touch with you. Why don't you ask Summers? They're his friends." Capone hesitated, said Summers wasn't around just now, and hung up the phone. But he kept calling me and asking me if I had seen anything of "those friends of Summers'."
I gave him the same answers. I was sorry about Summers' missing friends and the missing guns, but I couldn't help. I finally got the level pitch on the thing. The two scrappers who had lost their guns in helping Ralph were Federal prohibition agents, drinking incognito in the Cotton Club. If Al didn't return the guns, the feds were going to padlock the Cotton Club—$40,000 investment and all.
They did it, too. Capone couldn't come up with the guns, so the Federals raided the club and closed it for liquor law violations. I read about it in the morning paper at breakfast, and laughed so hard I could have split my abdominal wall.
I stopped laughing later when I learned that before his first call to me about the lost guns, Al had had his plug-uglies beat Summers to death with baseball bats and fling him into the Chicago River. This kind of death was a routine matter for Capone associates, whether friends or enemies. Then I laughed again—out the other side of my face. Capone decided to get back his $40,000 investment loss, with $10,000 interest. His mobsters kidnapped Matt Kolb—all 220 fat pounds of him. I got a telephone call from Capone two days after Matt vanished. He was as apologetic as a waiter caught with both thumbs in a customer's soup.
"Rog," he said, "some people have got Matt."
It would cost $50,000 in fives, tens and twenties to get him loose. Capone, the fine, generous character that he was, would be happy to act as intermediary. All I had to do was bring the money to him, and he would make the pay-off. I agreed to do it. What else?
I went to the Proviso State Bank in suburban Maywood, where Matt and I had about $140,000 in a joint account.
I explained to the president, Anthony Busher, that my partner and I needed a lot of cash. He sent to downtown Chicago for the small bills. I wrapped the ransom up in a newspaper—it made quite a bundle—and drove downtown to the Metropole Hotel.
I rode up in the elevator to the fifth floor, as Capone had directed. Five or six toughs were sitting around in a foyer and all of them were cleaning and oiling .38s. A warning, I guess. I saw Murray Humphreys and Red Fawcett there.
(Editor’s Note: James “Red” Fawcett was murdered in a tavern at 2462 East 75th Street on May 25, 1945 with the same shotgun that killed James Ragen. Fawcett was probably killed in relation to the “Bookie Wars” of the 1940s.)
Capone, wearing a red dressing gown, was behind a big desk in a private room with a half dozen telephones in front of him. Big business executive. Ugh! I dropped my
package in front of him. He tore off the newspaper wrapping and riffled through the bills. "Now, Rog, I want you to know I had nothing to do with this," he said, looking at me with his big cow eyes. "I like Matt. I'm trying to help him."
I was mad-to-boiling over the indignity of paying off the fat slob, but I kept under control. I said only two words to him: "Where's Matt?" He told me to drive around the block of the New Southern Hotel, at 13th Street and Michigan Avenue, another syndicate hangout.
I followed directions, and, on my second circle, there was Matt, waddling along the sidewalk. He got into my car, cheerful as a hog in a cool spring wallow on a 100 degree August afternoon. "Now, Roger, my lad," he said. "I know I was careless in getting kidnapped and I'm sorry. Don't scold me."
What can you do with a nice old guy like that? I never saw Capone again after paying the ransom except, perhaps, from a distance at the races or the fights. Clara, our sons and I spent most of the winters in Florida. Many of my roadhouse customers closed up shop during the cold months, and the bottom would fall out of my business until spring.
Capone was at his fancy estate on Palm Island, in Biscayne Bay, early in 1931. He sent invitations for me and my family to visit him and fish from his yacht, but I
stalled. Clara would have slugged me if I suggested taking her and the kids to Palm Island. The Miami area police finally gave Capone to understand that he wasn't welcome. He went back to Chicago, where income tax troubles were piling up for him.
I kept away from all hoodlums and spent considerable time with my labor skate friends from my days of organizing the telegraphers. Eddie McFadden, an old timer with the Teamsters' Union, was one of them. We went fishing together a lot.
One evening, Eddie and I were driving through a small town near Miami when a car, coming from a side road like it was jet-propelled, hit my Chrysler. The driver was a U.S. Army major, and he was loop-legged drunk. He begged us not to bring charges against him, or it would mean the end of his military carter. We felt sorry for him.
A police car pulled up, and I explained that the accident was all my fault. The Major wasn't drunk, I maintained, but only dazed and shocked from the crash. McFadden and I promised the cops to take him to a hospital—but, instead, we drove him home to his wife. The Major had little or no money, but he insisted on paying for the damages to my car. He sent me twenty dollars a month for four months, as I recall it.
Years later, after my return to Stateville from my break with Gene O'Connor, Banghart and the others, I sometimes saw the Major's name in the World War II dispatches
from the Pacific. He had considerable more rank by that time and he was quite a hero.
Maybe I contributed something to World War II in a backhanded, years-ago way, eh? I thought of Yiddles Miller's "What am I, a stool pigeon?" gag, and I was happy that McFadden and I had fronted for the Major in Florida.
(Editor’s Note: In 1946, South sider David “Yiddles” Miller, who was known for his meanness and quick temper and had once been shot in the belly by Dion O’Banion, was indicted for murdering James M. Ragen, in a killing that shocked America. The case was dropped.)
That night McFadden had some disquieting news for me. The Capone mob was moving in on my labor union friends in Chicago. A number of union officials had been murdered. The syndicate was out to grab the union treasuries, some of which ran into millions of dollars. The racketeers were stealing the working stiffs' dues and selling them out to certain unscrupulous employers.
That figured, of course, and I had heard many rumbles about it. Everybody knew that Prohibition, the Noble Experiment, as President Herbert Hoover called it, was headed for the drain. The Capone mob had to tap a new source of money. Labor organizations, unprotected by the government and despised by many employers at that time, were vulnerable.
I had no worries about the end of Prohibition. I could dig up a few hundred thousand dollars. My customers in the roadhouses and suburban speakeasies had promised to stick with me when Repeal hit. I had trucks to handle deliveries. Matt and I had negotiated to become agents for two legitimate brands of beer after repeal. We probably would do better than we had during Prohibition.
When I got back to Chicago at the opening of the beer-drinking season in the spring of 1931, Matt greeted me a little shamefacedly. Al Capone had shaken him down for $25,000 from our bank account. Matt had paid off.
I wasn't too severe with Matt, but I told him that we never again would give a dime to the Chicago mob. He agreed that I was right, but maybe it turned out that my policy was wrong.
On November 18, 1931, Matt was in a speakeasy he owned, the Morton Inn, in suburban Morton Grove, when two gunmen walked into the dump and killed him. Capone telephoned my brother, Tommy, the next day and sounded as penitent as all hell.
"I'm terribly sorry," Al said. "There was a drunken caper and Matt got killed. I couldn't feel worse. I always liked Matt. I'm sending a $100 wreath to his funeral."
The pressure from the big Chicago mob really was on now, full force. Any day a machine gun might go chug-chug-chug behind me. The bad thing for me was that I wouldn't hear it. I'd be dead. All I could do was to give Matt a decent burial—and carry Capone's $100 horseshoe floral piece out behind the funeral home, where kicked the bejesus out of it on the garbage dump. The Chicago syndicate had erased Matt Kolb and, I figured, they would be out to eliminate me next.
(Editor’s Note: Kolb was murdered on October 18, 1931 at 1:45 AM.)
The Labor Skates and I
The Labor Skates and I
Back in 1932, I began getting a two-way squeeze. On one side were my friends in labor unionism. On the other was the Chicago mob. The Federal government put Capone into prison for income tax cheating, but The Enforcer, Nitti, stepped into his place. And Nitti was looking around hungrily for fresh money.
Repeal was on the way, and the syndicate's big profits from gagging whiskey and watery beer soon would be ended. The great depression was settling down for a long stay. People didn't have the money for gambling. Business in the Capone brothels fell off, even after the price was cut to one buck in some of the dives, with the girl getting forty cents and the house taking the rest.
Banks closed. The Insull utilities empire fell apart. Insurance companies went bust. Brokers jumped out of their skyscraper windows so often that somebody suggested paving Chicago's La Salle Street with rubber.
In the late 20s and early 30s the biggest and most solvent treasuries in the world were in the labor unions. Some of the old-time labor skates didn't trust banks. They socked the unions' cash away in safe deposit boxes or invested in U.S. Government bonds. The top American Federation of Labor unions in the Chicago area had about $10,000,000 in their treasuries.
Chicago gangsters long had been nibbling at the unions around the edges. For years Al Capone was in the business of providing thugs and scabs to break strikes for employers. In breaking a strike, Capone would weaken the union involved and then put his own thieving men into the organization.
Public opinion was against unionism, generally, and the labor men could expect a minimum of protection, if any, from the cops and politicians.
To a union trying to build up its membership, the racketeers had a novel approach. One of them would call on the local officers with a pitch like this: "Let us put one of our men in your office. We'll help you get members. All we want is a job for one of our boys." A union that fell for this sucker bait was through. Once a mobster got any authority, he took over the local, emptied the treasury and stole the monthly dues.
In the late 1920s, my friends from my days of organizing telegraphers came calling on me. They were getting steamroller pressure from the syndicate. Three or four of them wound up murdered or kidnapped. They were afraid to live in Chicago with their families. A couple of their homes were bombed. They wanted to move into my quiet area.
I gave them the okay. What else? They were my friends, and they were safe in the suburbs. The suburban police and town officials wouldn't hold still for any gangster killings or other violence.
Patrick "Paddy" Burrell, a Teamsters' Union International vice president, settled down in Park Ridge and some other union bosses followed him. One of Burrell's business agents, Edward McFadden, was a sort of real estate agent for the labor skates—renting houses for them under assumed names, buying furniture, putting in supplies of groceries and hiring housekeepers.
I had known McFadden, an elderly character with long, white hair, since my boyhood. He was called "Chicken" because he once had been connected with a union of poultry pluckers in Chicago.
All of the union officials brought their bodyguards with them to the country to live, and it made quite a collection. The bodyguards carried guns, as their profession required, and they represented the alumni groups of about every penitentiary in America. Things were lively around our quiet suburban saloons for a while. I sent word, through McFadden, that the bodyguards were asking for trouble with the local law, and the rowdiness eased off.
In 1929, the syndicate had offered to cut my brother Tommy and me in on a multimillion-dollar union racket. Out to Tommy's home in suburban Oak Park came Marcus "Studdy" Looney, a Capone pimp who had graduated into labor muscling. The big dealers of the syndicate had sent Looney.
(Editor’s Note: Marcus Looney was born December 4, 1878 and died December 27, 1948. His parents, Jeremiah Looney and Ellen Walsh, were born in Ireland. )
Tommy, who was just out of the Indiana State Penitentiary at the time, telephoned me to join them. Now, I'm not going to pull any punches in telling about Tommy. I'm his brother, and I'll still do everything I can for him. But he did get into a lot of trouble. He did time for burglary and mail robbery. The sensational newspapers got to calling him "Terrible Tommy" Touhy, and I inherited the nickname after the Factor hoax.
Tommy paid a heavy price for the things he did and he never complained. He was partly paralyzed back in 1929, and years later he became an almost helpless, hopeless invalid. He finally went to one of the western states to live out his days.
Studdy could hardly read or write, but he was a whiz at arithmetic, particularly at subtracting—subtracting money from people. He brought a list of Chicago area unions with him to Tommy's house with the amounts of money in their treasuries. It added up to about $10,000,000, as I have said.
One top prize to be stolen was the union of Chicago milk wagon drivers, with a bankroll of $1,300,000 and an income of about $250,000 a year in dues. The boss of that local was tough Robert L. "Old Doc" Fitchie, then in about his 65th year. He had been a friend of my father and he had been fighting union racketeers all of his life.
Other labor skates and their unions on Looney's list included Art Wallace of the painters, Johnny Rooney of the circular distributors, Mike Boyle of the electricians, Tom Reynolds of the movie projection booth operators and Mike Norris, a teamsters' man. Many of them were to be murdered or to knuckle under to the syndicate in the years that followed.
Looney brought word that the Teamsters' International, of which Burrell was a vice president, had about $8,000,000 in strike funds in Indianapolis and Cincinnati. The Chicago mob planned to knock off the teamsters' locals one by one and, finally, to grab the treasuries. At that time, Jimmy Hoffa was still in knee pants and Dave Beck was slugging it out on strike picket lines.
After dangling the prospect of big money in front of us, Looney made his proposition to Tommy and me: "You guys can each have a union, the boss says. Which ones do you want?"
His meaning was plain. If we would double-cross the labor leaders, some of whom had been our friends for years, we would get rich quick. I could be a lot of help in the swindle, because the labor leaders trusted me. I would be able to persuade them to put some Judases—to be picked by the syndicate, of course—into the locals. Tommy and I told Studdy that we wanted no part of the scheme. We were polite about refusing, but firm.
Looney did some blustering, warned us to keep our mouths shut about the mob's plans, and left. He wasn't a block away before Tommy and I were on the telephone, warning our friends in the labor movement. I was building up a houseful of bad will from the syndicate.
Paddy Burrell called a meeting of unionists in his Park Ridge home and invited us. Tommy went, but I stayed away. After the conference, Tommy and Jerry Horan came to my house. I was working on my fishing tackle in the basement rumpus room.
Note: Jeremiah J. Horan, May 1886-April 28, 1937, was more of a gangster than a union organizer. On paper, Horan was the President of the remarkably corrupt Building Service Employees International Union from 1927 until his death in 1937. He was involved in bribery, kickback extortion, intimidation, and was named in several murders. His power came from the rough house tactics of gangster George Scalise (who was also Horan’s successor) The Horan-Scalise team robbed locals of at least $3 million dollars in member’s dues.
Horan slapped a cow-choker sheaf of money on the bar and explained: "We union guys have started a war chest to protect ourselves. Burrell put up $75,000 for the teamsters. I kicked in $50,000. We want you to be treasurer. When money is needed, we'll draw it from this bankroll."
I never liked the idea of holding anybody else's money, and I said so. Horan insisted. They didn't want to put the cash in a bank because they wanted it ready at hand, nights or days or holidays. I agreed, at last, but I tacked on a few reverse conditions: "I'll keep the money for you, but I'm not going to pass it out to any slob who comes asking. You name one man who is eligible to draw from the fund. I'll give the cash to him, and he'll have to sign a receipt for every dollar he takes. Okay?"
Horan said that was all right and we agreed that Burrell's man, Eddie McFadden, would make all withdrawals. I put the money in a fireproof safe behind a sliding panel in the basement. Then we had a bottle or two of my special beer.
The Chicago mobsters learned soon, of course, that I was handling the labor skates' bankroll. The syndicate had stool pigeons everywhere. Another black mark had been checked up against me, and the syndicate never forgot. As the months passed, I began hearing rumbles that my family and I might get hit by a bomb in our home.
I hired two guards -- Walter "Buck" Henrichsen, a former county highway cop, and Eddie Schwabauer. Both of them were good shots and, it developed later, they were even better at lying under oath.
(Editor’s Note: Henrichsen may have been a cop but he was actually already working for the Touhy’s as a driver for $100 a week, very good money for the time. Touhy reduced his pay to $40 a week when he put him on guard duty, probably because guard duty was safer than beer truck driving.)
One or another of the guards sat in our back yard playhouse with a shotgun while the kids, Tommy and Roger, were at the swimming pool. Clara drove the youngsters to and from parochial school, about two miles away, or else I did. I kept a man on duty outside the house all night.
We never let the boys know of any possible danger. When we discussed anything like that, we remembered our old Western Union days together. We would hold hands and signal each other with Morse code by pressure of our fingers.
On a sunny spring afternoon, I was in the basement making ready for a fishing trip to the Wisconsin lake country. The time came to pick up Roger and Tommy at the school. Clara called down the stairway that she was leaving on the errand. The telephone rang in fifteen or twenty minutes. It was one of the boys' teachers, and she was screaming with hysteria.
Two men in a car had tried to grab Tommy and Roger as they left school. The boys had jumped into the car with Clara and she had driven away, toward home. "Mr. Touhy, those men are following," the teacher yelled. "I'm terribly frightened." I grabbed a deer rifle off the wall and loaded it as I ran to one of our other cars. I rolled along the highway toward the school at ninety miles an hour. I met a couple of cars, but not the one Clara was driving.
A dozen teachers were on the school grounds, some of them crying. They waved frantically and pointed back the way from which I had come. I drove back, slowly this time, but cursing and raging. I thought for sure that the syndicate had snatched my family.
Halfway home, a car I recognized came out of a driveway ahead of me. In it were Clara and the boys. She had stopped off to buy fresh eggs and milk from a farmer, a by-chance thing that had saved them all.
Clara hadn't noticed anything, but the teachers said two men had jumped out of their car as the boys came out of school. They ducked back when Tommy and Roger ran
toward Clara's car, parked at the curb in the direction of home. She got away because the men had to make a U-turn to follow her.
I increased the guards around the house and on the kids. I assigned Henrichsen, the former county cop, to watch the school to be certain that the boys didn't get grabbed at recess or lunch time. And I made sure that anybody who tried it wouldn't live long.
A friend loaned me a laundry truck, one of those panel body jobs with a rack to hold bags of wash on the top. I put peepholes in one side of the body and then hinged it so the panel would drop down. I parked the truck—with myself and three other guys in the back—across the street from the school. All of us had guns.
From inside the truck, we could watch the school through the peepholes. If Murray Humphreys sent his gorillas out again to snatch Tommy and Roger, we would lower the side of the truck. The ex-cops and farmers in the truck with me would start shooting, and so would I.
Things were quiet around Des Plaines and the other suburbs after that, but not in Chicago. Murray Humphreys kidnapped Old Doc Fitchie and collected $50,000 in union money ransom for him.
Years later, incidentally, Humphreys was forced to pay income taxes on the ransom, but he never served a day in prison for it. The $50,000 item showed up on a Humphreys tax return made public by a Senate Committee.
Paddy Burrell and his bodyguard, Willie Marks, went to Wisconsin on a vacation. Capone-style gunmen murdered them both. Bill Rooney, of the sheet metal workers, was cut down by bullets at his Chicago home.
It caused the biggest stink of all Chicago gang killings, except for the St. Valentine's Day massacre, when the Capone mob lined up five Bugs Moran gangsters, along with two bystanders, and shot them down in a garage. One of the Chicago newspapers carried an editorial that started out: "Prohibition is ebbing away on a floodtide of human blood."
The union war chest in my basement safe also flowed away. Some of the labor skates gave in to syndicate pressures, but others kept fighting. Fitchie made a steel and bulletproof glass fortress of his headquarters in Chicago— and held out successfully after his kidnapping.
The unionists in the suburbs around me lined up armies of bodyguards. One of the hired gunfighters was Lester Gillis. He built up quite a reputation as "Baby Face Nelson," a John Dillinger torpedo who murdered two FBI agents, only to be killed himself. I never met Gillis, as far as I know.
Charles Connors also was around. He was called "Ice Wagon," because a getaway car he drove after a bank robbery hit an ice delivery truck. One of Connors' pals, Ludwig "Dutch" Schmidt, a career robber and thief, and Jimmy Tribbles, a stir-crazy ex-convict, were in the area, too, as was Frank "Porky" Dillon, another hale and hearty eye-gouging type.
(Editor’s Note: Jimmy Tribble worked directly for the Touhys inside their organization and probably played some part in the gang’s mail robberies as well as the Factor kidnapping. He was shot to death on September 7, 1933 during a Touhy gang raid on the Chicago Teamsters Union office at 639 South Ashland Blvd.)
Now, I never have put myself forward as a candidate for sainthood. I'll admit that I did a lot of things in my life that I shouldn't have done. But I didn't kidnap anybody, including Jake the Barber. I never killed anybody. I never robbed or stole. And, I never associated knowingly with Gillis or such killers.
I'll admit that I did accept them around the community as unavoidable evils in connection with my union friends and their fight against the Chicago mob.
Meanwhile, the time drew near for what Judge Barnes called “the Factor kidnapping that never happened”.
In the election of 1932, Franklin D. Roosevelt whomped the Republican Party with the ease of a bulldozer knocking over a sapling. The massacre of the G.O.P. and the Democrats' victory meant for sure that beer and booze were going to be legalized. I was eager for repeal. It would make me legal. Maybe, the next time they wanted to run me for Mayor of Des Plaines, I might accept.
I had been a Republican, mainly because many of the Cook County officials, as well as the suburban and township people with whom I dealt, were Republicans. Tony Cermak, a Democrat, had been president of the Cook County Board, a powerful job, but I managed to get along with him, too.
One of the many Democrats who coasted into office on the Roosevelt landslide was Thomas J. Courtney, as state's attorney for Cook County. Courtney was a handsome, six-foot Irishman with wavy hair, dimples and flashing eyes. As state's attorney, he had one of the most powerful prosecuting offices in America. He was one of the men who was to help put me in prison for 99 years for a kidnapping that never happened.
Courtney, before his Roosevelt-landslide election as state's attorney, was without practical experience in criminal law. During the twelve years that he was state's attorney, he never prosecuted a case.
Courtney had been practically unknown to the voters before his 1932 campaign. The betting odds, almost up to election day, had been against him but the general
public welcomed his victory. He had promised to clean up Chicago and Cook County—and he had a great opportunity to come through.
(John William Tuohy Note: Touhy later testified that Courtney had been a bookie while the Sergeant At Arms in the City Council and that he later ran a handbook on Halsted and 43rd . )
The people had their bellies full of the Capone syndicate. Al had been convicted of income tax cheating, but Nitti, Humphreys, Hunt, Campagna, Paul "The Waiter"
Ricca and the rest of the murdering thieves were doing business in the same old way. Murder was commonplace, 100-girl whorehouses were going and the bookie joints
were as wide open as the grocery stores. Chicago had the reputation of being the Crime Capital of the World and the people didn't like it.
Courtney had promised to crush organized crime and to crack down on what was then the most popular crime target—kidnapping. The kidnapping of the Lindbergh baby in March, 1932, had inflamed the public.
And the flames were going to char me, Roger Touhy.
Religious, civic, business and other groups in Cook County were solidly behind Courtney. There were predictions that he could be President of the United States if he brought decency to Chicago. He didn't make it.
The second most important man in the prosecutor's office was the chief investigator, and in that job Courtney put Dan Gilbert, a Chicago police captain. Gilbert had earlier been an official of a strong and violent Teamsters Union local. The police had questioned him about the shooting and wounding of a rival for power in the union, but he was exonerated. After the shooting, Gilbert was boss of the union. He was always active in politics, and promotions came to him rapidly after he became a policeman.
As chief investigator, Gilbert had charge of gathering evidence for criminal prosecutions of murder, robbery, kidnapping, rape, burglary, arson and other felonies. He had a staff of investigators, mostly policemen on leave from the Chicago force—as was Gilbert himself. He was a strict, harsh disciplinarian.
Gilbert's potential power in that office is easy to see. The man in his job could cinch a case by digging up the proper evidence or he could ruin it by overlooking a few things. And there was no tight, direct supervision to stop the chief investigator, if he saw fit, from manufacturing, faking or planting evidence, either.
The Number-Three man appointed by Courtney was First Assistant State's Attorney Wilbert F. Crowley. He was young, ambitious, vigorous and relentless. He had a mop of reddish hair, a good appearance and a fine knowledge of the law.
He was one hell of a prosecutor. Believe me, I know. Crowley, unlike Courtney and Gilbert, was no politician. He had made his reputation as an assistant public defender, handling cases for poor bums who showed up in court without money to hire lawyers. He beat the prosecution so many times that he had to be hired away from the defense. Crowley simply took the cases assigned to him by Courtney and prosecuted on the evidence provided by Chief Investigator Gilbert.
The strong man in the office was, of course, Gilbert. He had years of experience as a policeman. He wasn't a lawyer, but he knew the laws of evidence. Courtney, lacking in criminal law experience and police investigative procedure, had to rely heavily on Gilbert's advice.
And now it is time for a look at Gilbert's record.
During twelve years as chief investigator under Courtney, Gilbert never came up with the evidence to send one Capone mobster—not one!—to jail or prison for so much as one day, as Judge Barnes found. Sure, he put me in the penitentiary, and tried his best to make it the electric chair —but I was an enemy of the syndicate.
The Federal government convicted Capone gangsters of extortion, fraud and income-tax violations. The mob hatched a plot in Chicago to bleed $3,000,000 out of the Hollywood movie industry, but local authorities seemed to have been unaware of it. It took Uncle Sam to put Short Pants Campagna, Paul The Waiter Ricca and other Chicago hooligans away for ten-year terms.
True, Gilbert got a mess of Capone plug-uglies indicted for muscling in on the Chicago Bartenders' Union. But, when the trial came up the only real witness—a union skate who had been guarded by a police escort—refused to testify and the case went out the window. The syndicate won again.
Courtney left office in 1944, but Gilbert stayed on for six years. Did he get the evidence after Courtney's departure to convict any Chicago syndicate mobster? He did not. During much of the twelve years of Courtney and Gilbert, the Capone outfit—through the operations of two sure thing characters, Bill Johnson and Bill Skidmore—made a gambling bonanza out of Chicago and parts of Cook County. They had as many as nineteen illegal casinos operating.
My word doesn't have to be taken for it. The court records of the income tax trials of Johnson and Skidmore prove it, as solid as the walls of Stateville. While Gilbert
was chief investigator, the state never convicted, or even attempted to prosecute Johnson and Skidmore. Syndicate joints were immune most of the time, except for token raids.
Gilbert was chief investigator for eighteen years. Then, in 1950, he ran for sheriff of Cook County! I was astounded, in Stateville, when I heard that he had the Democratic nomination. He looked like a gut sure winner, too, with the powerful Democratic organization behind him.
But he was far from home free. The Chicago Sun-Times pressured the Senate crime investigating committee into calling Gilbert as a witness. Senator Estes Kefauver, of Tennessee, the committee chairman and a loyal Democrat, heard Gilbert's testimony in secret and refused to make it public. The strategy didn't work.
A Sun-Times reporter fast-talked the stenographic transcript of Gilbert's testimony out of the committee files. Gilbert's own testimony showed that he had admitted having a fortune of $650,000—built up from a legal income that never passed $10,000 a year, he said.
He said he had made the 650 grand from gambling and market speculation. "I have been a gambler at heart," he testified. He said he made the money against the house odds of professional gamblers and on the grain and stock markets.
The Sun-Times printed about twenty columns of Gilbert's testimony. The reporter who took the document spent two years squirming out of going to prison for fraud and impersonation, until the government decided at last there was no criminal intent, freeing him on that ground. Gilbert," the favorite to win, was clobbered by nearly 400,000 votes when the ballots were counted.
I was happy in Stateville, where Tubbo and Jake the Barber had put me, when I heard of Gilbert's defeat. He had campaigned under the slogan: "I put Roger Touhy in prison." If he had become sheriff, he would have been in a politically powerful position to keep me there. Also, his election would have affirmed, in effect, my conviction as a scummy kidnapper.
Jake the Barber Was Kidnapped???
The night of June 30-July 1, of 1933, will remain fresh in my memory forever. It was a warm night. The scent of roses and other flowers around our Des Plaines home was heavy, like in a funeral parlor on the last night of a wake. Crickets—millions of them, it seemed—were chirping in the distance.
I drove to the Oak Park Hospital. My brother, Tommy, was there for treatment and "Chicken" McFadden, the old union character who rented houses for labor skates, was getting over a prostate operation.
I had picked up two of Tommy's daughters and taken them along. I gassed with my brother and McFadden for a while and told Chicken: "Hurry and get out of here, old timer. Clara and the kids and I are going fishing in Wisconsin in a few days. We want you to come along." Eddie said he'd do his best. I left and drove home.
We had a house guest that night. She was Emily Ivins, the girl who had been our chaperon when I first had courted Clara more than fifteen years before. Emily had the blues. The depression had knocked her out of her job in Chicago, and Clara and I tried to cheer her up. Legal beer—3.2 percent variety, if you could call it beer—had already returned. Strong beers and wines, ales and liquors could not be far behind. I told Emily about a happening in Touhy-country on the night before 3.2 was legalized.
From my breweries and storage places, my trucks had hauled every drop of illegal brew to the speakeasies in the suburbs and along the highways. I had given it away. Two big, brawny policemen in one of the suburbs had stood drinking the free beer at a bar. They gulped it down from 12-ounce schooners.
They agreed maudlinly that Touhy beer was the best beer ever brewed. They said tearfully that the new 3.2 was hogwash. Then they turned and fired their revolvers—shooting holes into twelve barrels of legal Bismarck and Gambrinius beer which I had had delivered in advance.
The pressurized beer shot all over the place and made a lake on the floor. The two cops holstered their weapons and returned to drinking Touhy beer. They had made their protest.
Clara, Emily and I sat on the front porch in semidarkness. The kids were sleeping. A guard—more about him later—was on duty around the grounds. Jim Wagner's saloon, a neighborhood place down the road, seemed to be doing a good business, with cars arriving or leaving now and then.
Emily knew she could stay in our home as long as she wanted. Clara had put her in a spare room. We said we'd be glad to take her with the boys, McFadden and us
on the Wisconsin fishing jaunt. But she was anxious to find a job and get working again. She would rest with us for a few days, she said, and then go back to Chicago.
I was hungry and asked about something to eat. There were cold meats in the refrigerator. Clara and Emily nixed me. It was Friday and they wouldn't take meat until after midnight, which would make it Saturday and Roman Catholic legitimate. After the deadline passed, we had sandwiches, salad, sliced pickles and coffee.
During this time, Jake the Barber had been kidnapped, he later said. Kidnapped by me and my men, he claimed. Clara, Emily and I sat gabbing until about 4 A.M. What was unusual about that? We were old friends and we had a lot of reminiscing to do. None of us had anything special to occupy us on Saturday.
At seven o'clock on the morning of July first, a knock on the door awakened me. A Chicago police lieutenant was calling. He showed me his badge and said his name was Carroll. I invited him in for coffee. He was a nice-looking open-faced man in a blue suit. What he said surprised me—because I couldn't imagine why he was bringing the problem to me.
Jake the Barber Factor had been kidnapped about one A.M., the lieutenant said, from near The Dells, a Capone syndicate night club and gambling joint near Morton Grove.
The Dells Nightclub. It was burned down in 1934 and the owner was murdered.
Factor presumably was being held for ransom. The Dells was a widely-known roadhouse where such headliners as Joe E. Lewis had played.
I asked the lieutenant, as I sat in pajamas and sipped my coffee, what the hell this had to do with me. "Go ask the syndicate," I said. "They own the joint. I've never even been in it." He said that, well, I was widely acquainted out in this section of the county and that I might want to help. Factor might be held in one of the suburbs, he said.
The reputation of Jake the Barber didn't smell like any hyacinth to me. I had read in the papers that he was wanted for swindling $7,000,000 out of widows, clergymen and other unfortunate chumps in England. The British Crown was trying its damnedest to extradite Jake back to England. Also, the papers had been full of stories a few weeks before that Jake Factor's son had been snatched by kidnappers.
Still, regardless of what Factor might have been, I detested kidnappers. A dozen or more businessmen, women and children of rich families—including the Lindbergh child—had been snatched for ransom, with some of the victims being mistreated or killed.
There was a national hysteria, and rightly so, against the crime of kidnapping. Clergymen ranted against it from their pulpits and so did editorial writers in their columns. The noisier politicians in Washington tried to outshout each other in being against a crime that everybody loathed.
In November of 1933, a San Jose California lunch mob fought their way into a jail and hung two kidnappers.
A California mob hanged two kidnappers from a bridge and Westbrook Pegler, in his nationally syndicated newspaper column, wrote an article praising the lynching. A lot of people seemed to agree with him.
The FBI set up and trained special crews of experts to fly to any section of the country upon a report of a ransom kidnapping. U. S. Attorney General Homer Cummings appointed a special aide, Joseph B. Keenan, to supervise the prosecution of kidnappers. No effort was to be spared, or money either, to put an end to kidnapping.
No kidnapper ever had been captured, prosecuted and convicted during the wave of abductions. Every police officer and prosecutor in America wanted to solve a kidnapping. Any one of them who put a kidnapper in prison or in the electric chair would be a hero. I, Roger Touhy, and two co-defendants were going to have the murky distinction of being the first men convicted.
I remarked to the police lieutenant in my home that kidnappers seemed to be giving the Factor family an unusually bad time; that the Factor boy had been snatched for ransom just a short time ago. That was right, my caller said, but the son, Jerome, 19 years old, had come home unhurt and without payment of a cent of ransom.
Since I liked kidnappers even less than I did swindlers, I told the lieutenant I'd see what information I could pick up. He left after getting my unlisted phone number and telling me he would call me. I drove around that day, visiting with saloonkeeper friends, seeing how my 3.2 beer was going, taking orders and asking questions.
The beer sales were encouraging and all my customers were staying loyal to me, but rumbles on the Factor snatch were nil. There were a lot of gossip and speculation, but nobody knew anything. I ran into a few of the labor skates' bodyguards, and they knew nothing, either. One of them was Tribbles, the stir-buggy ex-con.
Tribbles was what he himself called "an engaging eccentric." He was stir-crazy from too many trips to the pen, but he was one of the most courteous men I ever knew. He once went into a Chicago combination bookie-saloon and asked a bartender politely: "Please, sir, where is the gentlemen's retiring room?" He liked to use formal, long words.
The barman replied to Tribbles profanely using an uncouth term to designate the john. Jimmy made use of the facilities, pondered over the bartender's coarseness and decided to teach him a lesson. He washed his hands, straightened his tie, returned to the main room, produced a .38 automatic from a shoulder holster and robbed the joint of about $12,000.
"If you had greeted me civilly, instead of outrageously, I would not have felt impelled to commit this depredation," he told the crass employee.
Another anecdote about Tribbles was that he burglarized a department store, strolled into the book department, started reading a dictionary under a night light and still was memorizing long words when the clerks came to work next morning and grabbed him.
Stir-crazy or not, Jimmy gave me some good advice on that first day when I learned of the Factor mess. "Mr. Touhy, sir," he told me, "I think you should not concern yourself about this Barber person. I feel certain that his abduction is a preposterous hoax." Out of the mouths of babes and stir buggy ex-cons. . . .
That night I went to the neighborhood of The Dells, but I didn't enter the premises. If I did, and something bad happened there as long as five years afterward, the mob would blame me for it, I knew. Instead, I stopped in at Murphy's Roadhouse, across the street from The Dells.
I learned there that Buck Henrichsen, the ex-cop I had hired as a guard for my children, had been in the place the evening before with his former wife. I didn't put any importance on that—not until much later.
My next call was Bam's Place. When I asked Bam if he had seen anything unusual around the time of the reported kidnapping, he sneered at me and said: "What are you doing, Touhy, police work?" implying that I was a stool pigeon. I thought of the Yiddles Miller story and of the Judas in the Last Supper painting of my childhood. I hit Bam on the jaw and knocked him as cold as an alderman's heart.
I didn't learn anything about the possible whereabouts of Jake Factor or the names of anybody who might have embezzled him. But, by reading the papers and checking with some people who knew, I got a pretty straight line on what had happened—presumably.
The Barber had gone to The Dells with his cute, youthful wife, Rella; Jerome, his son by a previous marriage; a friend, Al Epstein; Epstein's wife, and others whose names don't matter right now.
They had dinner and a few drinks, and watched the floor show. After that, Factor shot craps in the gambling room. I heard he lost $20,000, but those things always were exaggerated. Jake gambled on credit, since he didn't like to carry much cash for fear of robbers, and he signed the dinner check. Those things show how chummy he was with the syndicate.
On leaving at about one A.M., the Factor people got into the three cars they were using. Jake, Jerome and Epstein were in one limousine. Factor took charge of seating arrangements, it later developed, and he insisted that the womenfolk ride in the other cars. He presumably didn't want them to be needlessly frightened. They might have interfered with the script by screaming for help or going into hysteria. Jake's car was the second of the three to pull out of The Dells. On the highway the limousine was curbed, or forced off to the shoulder, by a sedan occupied by men
carrying machine guns and other weapons. The machine gunners got rid of Epstein and Jerome; drove off with Jake the Barber.
The papers quoted Jerome and Epstein as saying they had been unable to see any of the gunmen clearly. It had been too dark. I want to state right here, incidentally, that I have nothing to say against Mrs. Rella Factor, Jerome Factor, Al Epstein or any of the others in the party at The Dells that night. I understand that Jerome Factor became a businessman with a fine family and a reputation for integrity and honesty.
After the hassle at Bam's Place, I went home and did some thinking—and some telephoning. I learned things that made me as skittish as a saloonkeeper with a WCTU delegation on his doorstep.
The man who had introduced himself to me at seven A.M. as "Lieutenant Carroll" was really, I discovered, Lieutenant Leo Carr, on leave of absence from the Chicago Police Department. He was working as a paid bodyguard for Jake the Barber. He therefore had come to me on behalf of Factor, and not the Chicago police. On leave, he presumably had no more police stature than any other civilian. Things were smelling very, very dead rat, but the aroma got worse. Phew!
I found that Factor had rented the roof bungalow and several suites at the Morrison Hotel in downtown Chicago. His hotel bills came to $ 1,000 a week. With him much of the time was The Camel Humphreys, the Capone hooligan who had offered me a gift car to guarantee him safe conduct from my home to Chicago.
My reports were that Jake the Barber and Humphreys had been associated previously. I began wondering a little, right about then, whether the Chicago mob might be setting me up as a patsy for a kidnapping rap. But the idea seemed ridiculous. I put it aside in my mind, which was a mistake, like turning your back on a Capone torpedo.
How could I be clay-pigeoned in the case? I had an alibi from the people in the hospital, including Tommy, his two daughters, McFadden, the doctors, the nurses and others. At the time of the alleged, purported kidnapping, I had been sitting on my porch with Clara and Emily Ivins.
Anyway, why would a man in my situation stoop to what was cursed as the dirtiest crime on the books? Kidnapping, that is. I was a rich man, comparatively speaking. With 3.2 beer back and the complete end of prohibition in sight, I had a future of prosperity. I had standing in my community—even if they never did elect me mayor, which Clara and I used to joke about.
I fell asleep and had a good night of rest, except for a couple of telephone calls from the man who called himself "Lieutenant Carroll." I played along with him, not tipping him that I knew his true connection as a bodyguard for Factor. He rang off after being told by me that I had learned nothing of importance.
On the following morning, July second, we had strawberries and cream for breakfast, with the usual scrambled eggs, bacon and toast, of course. The kids were plenty excited. The Fourth of July was coming up and I had a big box of fireworks—legal at that time—stored in a closet.
Clara got the boys out to the swimming pool and I looked at the papers. There was interesting news of the Factor case. The stories had a between-the-lines, don't-believe-all-you-hear attitude about it. Some of the writers referred pointedly to the fact that Jake was up against the wall on the British extradition matter. It would be most convenient for him to be snatched at that time, since he was in danger of a 22 to 24-year term in prison for swindling.
A representative of the British Crown in Chicago charged flatly that the kidnapping was a fake, engineered by Factor to beat extradition. Attorney General Cummings' kidnap expert, Keenan, subsequently referred to the hoax as "the alleged Factor kidnapping." Jimmy Tribbles, the stir-bugs ex-con, seemed to have had a point, I thought. But, against those anti-Factor angles, there was a disquieting element for me. Tubbo Gilbert, the most powerful law enforcement officer in Cook County, muscled into the picture with a newspaper blast. He announced, flatly and firmly, that the kidnapping was legit and that the "Touhy gang" had kidnapped Jake the Barber. He didn't qualify the accusation. He simply said that Roger Touhy was the man to get for the crime.
Now, wasn't that a remarkable deduction? Gilbert hadn't questioned me. He hadn't asked me whether I had an alibi. So far as I know, he hadn't even inquired about whether I might have been dead or out of the country at the time of the presumed kidnapping. He didn't even know for sure at that time whether there had been a kidnapping, but he blamed me.
I didn't pay a hell of a lot of attention. Some of the Chicago newspapers were pretty irresponsible at that time. Anything for a headline seemed to be the papers' philosophy. I did make up my mind, however, that I would be available at any time the law wanted to question me. I stayed close to home.
I kept up with my paper work in my basement office and saw most of my customers there. I took all of my meals at home. I wasn't away from the place for more than an hour at a time during the time Jake was among the lost, strayed or stolen.
Emily Ivins stayed with us through the Fourth of July and for a couple of days afterward. Mrs. Margaret Morgan, sister of my wife's mother, and her husband, a retired Chicago city fireman, were guests in our house for either five or six days during the period.
Miss Ivins and the Morgans were available to testify that I hadn't been away from home, kidnapping Jake the Barber or guarding him or making ransom arrangements. It was a sensible precaution to take, after Gilbert had blasted me in the papers. We had our Fourth of July party in the back yard near the swimming pool. Clara served hamburgers and lemonade and homemade ice cream. The place was jumping with kids. One of our boys—Roger, I think—burned his hand on a sparkler. He wasn't hurt badly, but the thing sticks in my mind.
A Chicago Evening American reporter came out to interview me. He seemed a mite nervous; probably he expected to find me surrounded by gangsters. I was in my shirtsleeves beside the pool, with the kids splashing in the shallow end. I was staying at home, so there was no need for a bodyguard.
I tried to make the reporter feel at home, but still he was uneasy, so I told him: "You came out here to ask me if I kidnapped Factor, didn't you? Well, ask it." He did and I told him the answer was no. I told him about having been at the hospital on the night Factor went away and of sitting on the porch with Clara and Emily Ivins until four A.M.
I hadn't been away from my house since the first day, Saturday, for more than a few minutes at a time to take care of urgent business or to do household errands.
The reporter seemed surprised when I told him that no police, except for a lieutenant on leave of absence, had talked to me. I said I was entirely willing to make a statement. I invited the police to search my home and other properties if they had any hope of finding any Factor evidence. Pointing to Roger and Tommy, I told my visitor: "I want to be cleared of this thing. I don't want those children to grow up with the stink of suspicion of kidnapping on their father. I hope you'll print that in your paper."
I walked with him to his car and he said that, for his money, Factor hadn't been kidnapped at all. There were reports that Jake's relatives and friends were negotiating to pay ransom—$200,000 was one figure mentioned—but, that was to be expected in any case. The reporter said he would do the best he could for me in his story. I suppose he did, but most of my quotes got lost somewhere.
The question comes up at this point as to why I didn't give myself up to the law. Well, why should I have? There was no warrant out for my arrest, no charge filed against me. My name had been mentioned in the case by one, and only one, police officer—Tubbo Gilbert. If I went sashaying into a police station to surrender, they probably would have kicked me out on my can. I wasn't wanted for anything. If the police wanted to find me, they could. Just as easily as the Chicago reporter had. I telephoned my lawyer, William Scott Stewart. Brother Tommy had introduced me to Stewart a couple of years earlier. Stewart told me I was doing the correct thing.
Nobody Questioned Me
My privately-listed home telephone rang day and night. I couldn't have been more popular if I was the only bookie in Cook County and all the horse race betting chumps had my number.
Lieutenant Carr was pushing me for information, which I didn't have. He wanted to know if I knew certain gangsters whose names meant nothing to me, if there had been any unusual activity in the suburbs. I told him I didn't know a thing and that I didn't expect to hear anything.
The annoyance of those calls was broken when I picked up the phone and heard the
voice of a fine friend, Father Joseph Weber, a Roman Catholic priest in Indianapolis. I had first met Father Weber when my brother, Tommy, had been in burglary trouble in Indianapolis. I had gone there, retained a lawyer and did my best to see that Tommy had a fair trial.
(John Willaim Tuohy note: Roger Touhy’s friend, Father Joseph Weber was part of the wealthy Cincinnati brewing family. According to Touhy, the family disowned Weber when he became a Catholic, not an uncommon thing to happen in those days. The original family name was Webben and started in business as the Marhofer and Webben Brewery, one of the many German families that dominated the business in the Midwest, particularly in Cincinnati.The brewery, eventually known as the Western Brewery, was located on what is now Central Avenue (Then 572 Western Avenue) from 1865 until 1856. Frank Weber later opened the Frank Weber Brewery at 648 Main near Schiller Street from 1859 to 1860 and Louis Weber operated the Louis Weber Brewery located at the northwest corner of Busch and Wheeler Streets in Covington, KY for one year, 1872. In 1873, George Weber gained control of the Jackson Brewery after the death of the Kleiner Brothers and operated it until 1884. On July 4, 1887, the brewery was destroyed by fire when a Roman candle accidentally ignited the malt house and the brewery burned to the ground. George Weber declared bankruptcy later that year and sold the brewery. In 1887, the George Weber Brewery was purchased by Leo A. Brigel, E. W. Kittredge, and Lawrence Maxwell and reincorporated as the Jackson Brewing Company until it was closed in 1919 due to Prohibition.)
Tommy got a two- to 14-year sentence and I remember his telling me after the verdict: "Rog, I'll give you seven to five that I never live to serve it." He was suffering from incurable Parkinson's disease, but he would have lost the bet. He lived out the term, won a parole and, as this story is written 34 years later, he is still alive.
Father Weber had done his deeply sympathetic best for me and other members of the family back in 1925. He was a peppery, wiry, white-haired man of about seventy. He was against sin; but, like the Master in whose footsteps he tried to follow, he believed in forgiving the sinner, if properly penitent. I admired him a great deal.
His parish was the poorest in Indianapolis. His people were too poverty-ridden to buy ice during the summer, too poor to supply their big families with milk. I contributed ice and milk funds over the years to his parish. My labor skate friends did the same. He was a convert and his wealthy family—owners of a brewery in Cincinnati—had disowned him when he turned to Catholicism.
The anti-Catholic, anti-Jewish, anti-Negro Ku Klux Klan was active in Indiana when I first had known Father Weber. He was almost rabid against those bigots, who had headquarters in Indianapolis. It was one of his biggest ambitions to get the KKK records, in order to expose some of the business leaders and politicians who were secret members of it. Somebody broke into the headquarters, blew a safe and stole the records, which wound up in Father Weber's hand. I had nothing to do with it, but I got the blame—or credit. A Klan official offered me $250,000 to give back the documents. I didn't have them, but I wouldn't have taken his money if I had.
(John William Tuohy Note: In the late 1920s, Roger Touhy or, more likely, his brother Tommy, burglarized the KKK headquarters office in Indianapolis, blew the safe and released the names of the membership to Father Joseph Weber. Touhy was offered $25,000 to return the list but turned in down.)
I thought upon hearing Father Weber's voice that he was telephoning from Indianapolis. But, no, he was in the La Salle Hotel in Chicago and he wanted to see me. I invited him to come at once and stay as long as he could. He would be able to say his required daily masses in the Des Plaines church. I sent a car into Chicago for him.
When he arrived at my home, I saw that he was deeply worried. He had come to Chicago at the request of Lieutenant Carr, working through an Indianapolis connection, Michael Hanrahan. Hanrahan came into my house with Father Weber. I was curious, and I let them do the talking. Father Weber wanted to know if I had kidnapped Factor, and I told him that I hadn't. He asked if I would swear upon the lives of my two sons that I was innocent. I said I would swear, and I did. Then he made an outrageous proposition on behalf of Carr: Would I take $150,000 in cash, make a deal with the kidnappers, pay the ransom and keep any money that was left over?
I was astounded first upon hearing his words. Then I was deeply hurt. The implication was that Father Weber, my friend, had been talked into believing that I had snatched Jake the Barber. It was horrifying to me. He was asking me, in effect, to take the money—as Al Capone had taken $50,000 from me for Matt Kolb's release—turn Factor loose and, presumably, live with my conscience thereafter.
Now, I don't mean to imply that Father Weber had any part of such a conspiracy. He was an old man, naive in the ways of politicians and policemen, and he undoubtedly thought he was doing the right thing. I was hurt, more than angry with him. I said: "Father, when you are ready to go back to Chicago, the car will be outside. I don't want to talk about this matter anymore." I went to another room. I heard the car pull away. My visitors were gone.
The old priest and I later became fine friends again. I suspected that $150,000 proposal was a gimmick thought up to frame me, but I was confident that Father Weber had nothing to do with it. Anyway, the risk of being railroaded seemed to be pretty remote at that time. Practically nobody was taking the Factor thing seriously.
Franklin R. Overmeyer, a distinguished lawyer representing the British crown, gave an interview charging flatly that there was no kidnapping, that Jake the Barber again was flimflamming the public. The story was a banner headline in the Chicago Tribune. Overmeyer summed up his evidence and gave a step-by-step history of the swindle case.
In May, 1931, more than two years before the reported kidnapping, Factor had been arrested in Chicago on a warrant charging he was guilty in England of "receiving property knowing it to have been fraudulently obtained", which amounted to an accusation of swindling. Overmeyer placed the amount of money taken at $8,000,000. Factor hired the best lawyers and politicians he could find, including two former United States senators, to fight the case.
On December 28, 1931, the United States Commissioner in Chicago ruled after a hearing that Factor should be extradited to England, where he faced a prison term of up to 24 years. Jake, as the case dragged along, paid off $1,300,000 to British investors who claimed he had cheated them of their money. Clergymen, widows, working people and others unable to afford to lose were among the complaining witnesses.
Two office employees who had worked in Factor's London bucket shop were arrested, summarily convicted and sentenced to prison. The prospect for Jake the Barber in London was far from pleasing.
He appealed the Chicago U. S. Commissioner's ruling. His high-priced lawyers said that "receiving property knowing it to have been fraudulently obtained" was not pinpointed as a specific crime under a cloudy Illinois law. Subsequently, he claimed to have settled all the claims, which had him saying, in effect: "I didn't steal the money and, anyway, I paid it back."
Factor's appeal went to Judge George A. Carpenter of The United States District Court who, finding some sort of merit in Jake's pleas, overruled the commissioner and dismissed the extradition case. The government appealed Carpenter's ruling and the U. S. Court of Appeals said Carpenter was wrong.
Judge George Albert Carpenter, whose ruling allowed Jake Factor to avoid being deported to England. He was also the Judge in the District Court case in which professional boxer Jack Johnson was convicted of violation of the Mann Act.
Such ring-around-the-rosies seem to go on forever in the courts, as I well know. Factor now appealed to the United States Supreme Court to stop his removal to England. He had been free for most of the time on $50,000 bond. He lived like a multimillionaire, which he was, and he hobnobbed with “The Camel” Humphreys and other Capone mobsters.
On April 18, 1933, Attorney Overmeyer was in Washington, D. C, waiting to argue before the Supreme Court. The newspapers carried stories stating that Jerome Factor had been kidnapped. Jake the Barber had skipped his Supreme Court appointment in Washington, which he had a good reason for doing. If he had appeared in the District of Columbia, he would have been in Federal jurisdiction—without the protection of the foggy Illinois law which was keeping him in the United States.
In Washington, he might have been arrested and summarily shipped to Merrie Olde England. With his son reported kidnapped, he had an excellent alibi for failing to appear in Washington, of course. Nobody would expect a father to leave home in the midst of such an emergency.
On May 29th, 1933, after Jerome had returned home, the Supreme Court again assigned the Factor extradition case for a hearing. John Bull once more was jangling the handcuffs eagerly in anticipation of snapping them on Jake's wrists.
But The Barber wasn't going to be had easily. Just about seven weeks after Jerome had been reported snatched, his father vanished, presumably into kidnapdom. What a coincidence! Or, as Jimmy Tribbles might say after a session with a stolen dictionary: How propitious!
And what a hell of a mess it was going to leave Roger Touhy in!
During the days while Jake the Barber was reported missing, and while I was being interviewed by Lieutenant Carr, Father Weber and the Chicago Evening American reporter, I did some research on the Jerome Factor incident. It was pretty engrossing stuff.
Now I don't say there was anything kinky about the case. And if it was a frame-up, I honestly don't believe Jerome had any part of such a conspiracy. I'll just tell the facts—or such facts as were made public—and let the reader judge.
Young Factor was a brilliant but quiet student at Northwestern University's School of Speech. He stood five feet four inches tall and weighed only 110 pounds.
He was living at the home of his mother, Mrs. Leonard Marcus, married again after being divorced from Factor, at 1215 Lunt Avenue, on Chicago's North Side.
The Barber's current wife, Rella, was in California with their six-year-old son, Alvin. Their expensive apartment in Chicago's Pearson Hotel was unoccupied, as were Jake's roof bungalow and suites at the Morrison—except probably for “The Camel” Humphreys and some of his pals. Jerome was reported to have been kidnapped from in front of his mother's home at about 11 P.M. on April 12. He had been out with a friend in his father's fancy Deusenberg car. Mrs. Marcus thought she heard a call for help, looked out a window, saw nobody and concluded she had been mistaken.
Jake the Barber came up with more heroics than Alan Ladd, Errol Flynn and other Hollywood bravados could have put on film in a lifetime. With a voice of righteous wrath, he said he was going to rescue his boy from the filthy kidnappers. He talked with the police—and then he darted over to his friends in the Capone mob for help. He acted the role of a mystery man, as well as that of an outraged father.
The mobster he picked to dicker with the kidnappers was “The Camel” Humphreys, which might have been considered to be an unusual choice. After all, Humphreys was
himself a kidnapper. He had snatched Old Doc Fitchie, the aging boss of the milk wagon drivers. Humphrey's name was high on every public enemy list put out by Chicago authorities.
Chicago police hadn't been overjoyed at being dealt out of the investigation by Jake. They raided a suite in the Congress Hotel and arrested Humphreys, Golf Bag Sam Hunt, Frank Rio and Tony Accardo, Al Capone's eventual successor. Humphreys stated that he and the other mobsters were working to get Jerome Factor freed.
Jake announced that he had received a ransom note demanding $50,000, with a threat that if he didn't pay his son would be sent home to him "in pieces." Jake later admitted, with amazing candor, that he had written the note to himself. His explanation went like this: "The kidnappers were asking for $200,000. I released the $50,000 note to the press for a good reason. It got the kidnappers to thinking some one of them was double-crossing the others. Dissension arose among them and I got my boy back without paying anything."
The Barber added, with modesty befitting a hero, that he and a carload of armed men—presumably Capone gangsters—all but captured the kidnappers on Chicago's West Side. "We had them spotted in their car," he said, "but some policemen came along in a squad car and the criminals sped away."
Jerome came home safe and sound, eight days after his disappearance. He said he had been kept blindfolded all the time, and that he would be unable to identify any of the people who held him.
I don't know what was behind the kidnapping of Jerome. It may have been a real kidnapping—but, if so, the kidnappers seemed to have been bunglers or amateurs. Whatever the circumstances, however, the incident gave Factor a gratifying respite in his fight against being removed to England. No democratic government could be so cruel as to send a man away to prison in a foreign land when his son was in the hands of vile kidnappers.
If Jake could keep on stalling, the statute of limitations would run out on the extradition effort. He then would be able to thumb his nose at the British Government for the rest of his life. The case would be dead forever, and Factor could live happily with his swindled millions.
On the night of July 12, twelve days after he vanished from the Dells, Jake came back into public view. He showed up in the suburb of LaGrange, walking along Burlington Avenue. A car was parked at the curb. Jake went to it, identified himself and asked to be taken to a telephone.
In the car was a policeman, Bernard F. Gerard, from nearby River Forest. He took Factor to the LaGrange police station. Gerard was a shrewd, observing policeman. He noticed a great many things for which, later, I was to be thankful.
Jake's black hair was long, but neatly combed. He had grown a full beard. He wore a clean white suit which appeared to have been freshly pressed except for a slight wrinkling at the knees and elbows. His white shirt was unwrinkled and unsoiled, and his necktie was neatly in place. He had a manicure, his face and hands were clean and his shoes had a high gloss polish. There were no bruises or other marks in sight.
All of these things Policeman Gerard noted and filed away in his memory, as a good investigator should. He was to relate them later under oath—and damn near lose his job, as a result, at the instigation of Tubbo Gilbert. Within an hour, the police station was mobbed with policemen, newspaper reporters and photographers. Gilbert was there, and he took charge. Jake gave a brief interview before Gilbert hurried him away to the Factor apartment in the Pearson Hotel.
Factor said that he had, indeed, been kidnapped. He had been held for 12 days in a basement of a house within an hour's drive of Chicago, and he had suffered terribly. The kidnappers had refused to let him bathe, change his clothing, shave or take off his shoes. He had been blindfolded constantly except for a very few minutes when the kidnappers had him write a ransom note.
Policeman Gerard duly noted those statements. He also managed to stand close to Jake the Barber and sniff delicately. If a person in the heat of a Chicago summer goes without a bath or a change of clothing for 12 days, anybody with a nose will know it. But Gerard could detect no noisome aroma.
The important, burning question of the interview was whether Jake had recognized any of the kidnappers. The Barber answered fully and decisively. He said he hadn't so much as glimpsed any of his captors. He would be unable to tell any one of them from a load of hay. He had been blindfolded all of the time, except for the note-writing interval.
A reporter mentioned that Tubbo Gilbert had blamed Roger Touhy for the kidnapping and asked for comment.
I never have seen Roger Touhy in my life, so far as I know," Factor replied. "Anyway, if he was one of the kidnappers, I wouldn't know it. As I have told you, I didn't see any of them."
Jake was to repeat those statements again and again and again. A story, under Factor's name as author, appeared in the Chicago Evening American. In the story he said that about 20 men were in the kidnap gang, and that he hadn't seen any of them.
His beautiful wife, Rella, had dug up $70,000 ransom for him, Jake told the reporters. A family friend had delivered the payoff on a lonely country road. The friend, it developed later, could identify nobody.
In answer to final questions, Factor said his blindfold had been taken off and he had been pushed into the darkness out of the kidnappers' car only a few minutes before he had encountered policeman Gerard. With that, he headed for Chicago, saying he wanted to be with his family.
Policeman Gerard had some questions in mind. Nobody else seemed to be interested, but he wondered about such things as:
1. If Factor had slept, eaten and lived in the same clothing for 12 days in a basement, how come his suit, shirt and tie were unsoiled, unstained by perspiration and virtually unwrinkled?
2. If his blindfold had been removed so recently, why hadn't he been blinded by the bright lights in the police station?
3. If he had been blindfolded all the time, how had he managed to manicure his nails? Or had, perhaps, the kidnap gang included a manicurist?
4. Factor claimed that his shoes hadn't been off for 12 days. If so, his feet should have been so swollen and sore that he would hardly be able to step on them. But he wasn't even limping.
5. If he hadn't bathed for nearly two weeks, why didn't he have a gamey attar about him?
6. Who had polished Jake's shoes?
All of those significant points went unnoticed, except by Gerard, during the hysteria over Factor's return. Newspapers printed columns of material, with dozen of pictures—including one of Factor with necktie askew, as posed by one of the Cecil B. DeMilles among the news cameramen.
Everybody concerned, including Factor's wife, was interviewed. Factor retold his story, adding a few horrendous details, such as being threatened with a blowtorch unless he wrote the ransom note. Jake the Barber, swindler, became a hero to the press and public.
Newspaper editorial writers raised an outcry for the capture of the kidnappers. The FBI already was in on the case, with Melvin Purvis, who later became a headliner by directing the killing of John Dillinger, in charge. Factor kept on saying that he saw none of the so-called kidnappers and that he could identify nobody.
I read the newspapers carefully about the Factor case, although I usually started at the back and stopped after the comics and the sports pages. My name cropped up in the stories, with mentions that Tubbo had put the blame on me. But there were no fresh blasts against me by Gilbert or anyone else.
A few sane voices were raised. The British Crown lawyer, Overmeyer, repeated his accusation that Factor had faked the kidnapping. Attorney General Cummings' expert, Keenan, kept referring to Jake the Barber's case as an "alleged kidnapping."
A significant thing brought out was a point that no record was made of serial numbers of the bills withdrawn from a bank by Mrs. Factor to pay the $70,000 ransom. Not even that precaution had been taken. Whoever had the money was free to spend it.
I loafed around my home for two days after Factor's return. Nobody came to see me; not Tubbo Gilbert or Melvin Purvis or anybody else.
The law seemed to be uninterested in me. I did get a phone call from Father Weber, and we made up our differences. He was at the Morrison Hotel, headquarters for Factor, Lieutenant Carr and The Camel Humphreys.
"Mr. Factor and Lieutenant Carr would like to meet you, Roger," the priest said. I said that would be okay with me, but that I would have to know the meeting place in advance and give my approval of it. I figured that Humphreys might have some idea of drygulching me, and I was taking no chances. The Chicago mob still had reasons to want me out of the way.
Father Weber left the telephone for a minute or two, returned and said to forget about the meeting. That was fine with me; I was sick unto death of the Factor nonsense. I wanted to forget it.
All that spring and early summer, I had been itching to go fishing with my family in the Wisconsin northwoods. Business matters had held me up for a while, and then it was brother Tommy's hospitalization. After Gilbert accused me of kidnapping Jake the Barber, I had to stick around or, probably, be accused of taking a runout powder.
With Factor back with his Schweppes-man beard and saying he couldn't identify anybody, I figured I was free to be on my way. I telephoned my lawyer, Stewart, and he said he didn't see why not, so long as the law wasn't showing any interest in me.
Clara had planned on going with me and taking the boys, but now she had misgivings. The weather had turned hot, and it would be a long, uncomfortable drive. There was a great danger of polio in those pre-Salk shot days. Roger and Tommy might be better off paddling in the pool at home.
Old "Chicken" McFadden made up Clara's mind for her. He had been staying in our home after getting out of the Oak Park Hospital, where he had been on the night of the Factor happening at The Dells. He wanted me to make good on my invitation for fishing, and he had some friends who would like to go along. Clara dealt herself and the boys out of the trip. McFadden and I got in my big Chrysler and headed north. With us were two of the labor movement's divided septum bodyguards.
One of them was a lanky redhead out of California, using the name of Gus Schafer. He called next to me at Stateville for a lot of years as Peter Stevens, but that wasn't his
name, either. I'll call him Stevens for the purposes of this book. He had a record for armed robbery, I later learned. Stevens was a serious, seldom-smiling guy. A big guffaw or belly laugh for him was a slight twitch at the corners of the lips. But he had a terrific sense of humor and his dead-pan jokes were fine. The newspapers later hung the tag of "Gloomy Gus" on him. He never had a rap against him while at Stateville, and Warden Ragen called him the best behaved con in the joint. Everybody was happy for him when he was paroled in 1959.
Another of McFadden's pals was Willie Sharkey, a short, dark man with a pot-belly. Willie had two talents—getting into jail and buying clothes that didn't fit him. He drank too much and he wasn't too smart, but he had a good heart and I liked him.
(Editor’s Note: In all probability Touhy knew Sharkey prior to the arrest. Sharkey was suspected in several killings ordered by the Touhy gang. Sharkey’s first arrest, on suspicion of robbery murder came in 1916 when he was 17 years old.)
All of my companions had guns under their coats or in their luggage, I assumed. What professional bodyguard travels without a gun? I took along a .22 target pistol for banging away at tin cans in the woods, or, maybe, shooting a muskie in the head.
I didn't suspect it at the time, but Stevens and Sharkey knew a whole lot more about the fake Factor snatch than I did. I only suspected that the kidnapping was a hoax; but they knew it was. I would have blown my stack if I had known what they had been doing.
They were, unintentionally, helping along the kidnap frame that was building up against me—and them. We went to Rhorbacker's Resort, one of my favorite vacation spots, in the Lake Flambeau Indian Reservation, and the fishing was terrific. It was a secluded place, with no newspapers and not even a radio or telephone in our quarters. I would be out in a boat soon after dawn and spend most of the day fishing for big, fighting muskies, the greatest of fresh-water game fish.
McFadden and Stevens went fishing a couple of times, but Sharkey stayed ashore, saying that boats made him seasick. The three of them spent most of their time carousing in local taverns.
Willie got a supply of bootleg booze and seemed to be trying to get every Indian in Wisconsin loop-legged drunk. He organized, and led, war dances all over the
place. It was against Federal law to give liquor to an Indian, but Sharkey was casual about all laws.
He also had an eye on a coppery Indian maiden with a shape to fit a 38 bra, only she didn't have a bra, and he was trying to get into her tepee out in the woods. Her regular sweetie was a six-foot brave, and I didn't want to see Willie's scalp dangling from the brave's belt. I decided it would be smart to head for home. And we did.
At the little town of Elkhorn, Wisconsin, a light mist was falling and I skidded off the road. I hit a wooden telephone pole with a solid thump. My heavy car was undamaged and nobody was hurt, but the pole broke off at the base and crashed to the ground. From the back seat, Sharkey hollered: "T-i-m-b-e-r!"
I waited until a policeman, or maybe it was a deputy sheriff, came along. He said it would cost $22.50 to replace the pole and I said I was willing to pay. I went with him to settle up. McFadden, Stevens and Sharkey spotted a tavern down the street and went there to wait for me.
While we were away, another cop searched the car, recognized the name of Roger Touhy on some papers, saw my target pistol and the bodyguards' guns, and raised a rumpus. Into jail went McFadden, Stevens, Sharkey and I, Nobody would explain why we had been sneezed.
I had plenty of money and offered to put up bond, but blank stares were all I got from the law. What I didn't know was that while I was in the northwoods, Tubbo Gilbert had issued a statement to the press saying that he had the evidence to prove me guilty beyond doubt of kidnapping Factor. I had been without news or a phone at the lodge.
The Elkhorn jail was belly-deep with cops before dawn. Gilbert was there, and so was FBI-man Purvis.
Newspaper reporters and photographers were on hand by the dozens, it seemed. The guns from my car, along with a partly used roll of adhesive tape from a first aid kit and a tow rope, were laid out on a table. The camera men made pictures and the photographs showed up in the Chicago papers as "the Touhy gang's arsenal."
The rope, it was presumed, had been used for binding kidnap victims and the tape for fastening blindfolds in place.
(It was the first time I had heard that Jake claimed to have had his blindfold pasted on with adhesive. If that had been true, wouldn't the removal of the tape have pulled out some of his eyebrows or hair? Or wouldn't the gummy stuff from the tape have been left in his hair or beard on his unwashed skin? As anyone knows, a piece of tape over the flesh for any length of time leaves a clearly defined marking. The pictures made of Jake in the LaGrange police station showed no such traces.)
FBI Agent Melvin Purvis finally got around to telling me that I was being held for the Hamm kidnapping. I was perplexed. Having limited my newspaper reading mostly to the comics and the sports pages up until the time of the Factor case, I didn't know what he was talking about. I tried a feeble joke: "What do you mean by ham, Mr. Purvis—a ham sandwich? Or did I kidnap a ham steak?"
Purvis looked pained at the pun—for which I don't blame him.
He gave me a brief rundown. William Hamm, Jr., a millionaire brewer of St. Paul, Minnesota, had been kidnapped from outside his place of business on June 15.
That had been 15 days before Factor's reported snatch. Hamm had been released four days later after $100,000 ransom had been paid. The rap now was being charged up to McFadden, Stevens, Sharkey and me.
That was, indeed, a doozie. I knew no more than Little Lord Fauntleroy about Hamm. I recalled that I had a solid alibi for June 15. I told Purvis so, adding that I was innocent of the Cock Robin killing, too. He looked at me with the tight-lipped, gimlet-eyed way that FBI men had—and which detective-actors on television have plagiarized.
"Mr. Purvis, I know you are very, very anxious to convict a kidnapper, and I don't blame you," I said. "I don't like kidnappers any better than you do. But you're making a big mistake in accusing me of the Hamm crime. I haven't been in Minnesota in two years."
He didn't answer me, but within a few hours, I had handcuffs on my wrists for the first time.
The cuffs were attached to an escape-proof safety belt around my waist, and a policeman held me on a chain like a dog on a leash. McFadden, Stevens, Sharkey and I went to Chicago that way.
The removal was an absolute violation of our constitutional rights. We were taken across a state line without a court appearance, without an extradition warrant, without our consent and without a charge against us. We were not taken before a judge or magistrate within a reasonable time, as the law provides. I demanded to see a lawyer, but I was ignored.
All of those privileges, the rights of any person under the U.S. Constitution and the Bill of Rights, were thrown in the ash can. A suspected kidnapper, no matter how false or skimpy the evidence against him might be, had no rights in those times.
In Chicago, McFadden, Stevens, Sharkey and I were fingerprinted and photographed in the Bankers' Building FBI offices. Each of us stood in turn before a door with a full- length, one-way vision glass in it. A person on the other side of the glass panel could see us, but we couldn't see him.
Among those who looked at me and the others through the Judas glass was Jake the Barber. But I never saw him. I asked many times to use a telephone to call a lawyer, and the FBI agents gave me those vague, 2,000-yards-in-the-distance stares.
They brought us bottles of ice cold beer—delicious!—and I noticed that the glass was smeared with some sort of sticky stuff. I guessed that the stickum would hold fingerprints and that the bottles might be planted in a house where Hamm had been held by kidnappers. That would be evidence against us. I whispered an explanation to the others, and we wiped off the bottles with our handkerchiefs—except for Sharkey: he had no handkerchief, so he used his shirt tail.
From the FBI offices, we were taken to Chicago Police Headquarters. In charge of the detective bureau there were two tough, but almost unbelievably honest police officers.
They were Chief of Detectives William Schoemaker and his second in command, Lieutenant William V. Blaul. Schoemaker, called "Shoes," spent his nights off kicking in the doors of whorehouses and booting pimps around. He and Blaul had so much integrity that a good many policemen didn't want to work with them.
"We're going to give you a square show-up," Schoemaker said. McFadden, Stevens, Sharkey and I stood handcuffed to each other on a raised platform with bright white lights shining down. Out in front of us in a darkened auditorium were victims of various crimes. They could see us, but we couldn't see them.
A police officer with a microphone had us turn this way and that to show us both in profile and full face. We answered questions so the witnesses could try to recognize our voices. It was a spooky experience. When it was over, Chief Schoemaker told me: "You men are clean so far as we're concerned. Nobody fingered you at the show-up." He added that Factor had been in the audience. They chained us up again, put us in cars and took us back to Elkhorn. Stevens remarked glumly: "They're going to a lot of trouble to get $22.50 for that telephone pole."
Leroy Marschalk, who was probably with Touhy in Elkhorn and escaped arrest, was a Touhy gang enforcer and Touhy’s bodyguard.
In Elkhorn, FBI Agent Purvis read us warrants charging us with kidnapping Hamm. It was a Federal offense, he said, because the evidence was that Hamm had been taken across a state line from Minnesota to Wisconsin. We were liable to life terms in prison under the Lindbergh anti-kidnap law, if we could be convicted in St. Paul.
It was nonsense to accuse us of the Hamm job. We knew no more about it than our grandmothers did. I had a solid alibi for the time of the snatch. There was absolutely no honest evidence against us. Our innocence was to be proved beyond doubt two years later—when the real kidnappers were caught and convicted, with guilty pleas by some of them.
Against that situation, Purvis said in Chicago that there was an "iron-clad case" against us. Special Attorney General Keenan predicted that all of us would be given life.
Still, after thinking things over, I figured we weren't in such bad shape. I hadn't been anywhere near Minnesota during the Hamm crime. There was no possible evidence against me.
McFadden, Stevens and Sharkey said that the same held true for them. Hamm was a legitimate businessman, and a prominent citizen. He certainly wouldn't swear us falsely
Also it appeared that Gilbert's original big balloon of talk about my guilt in the Factor mess had been punctured. There were these angles to be considered:
1. Jake the Barber had viewed us in the FBI offices and at the police showup in Chicago. Chief Schoemaker had told us that we were clean; that nobody had fingered us.
2. If Factor had identified us, would Gilbert and Courtney have allowed us to be taken away to another state on the Hamm case? Certainly they would not. Gilbert and Courtney were just as eager to get the honor and glory of a kidnap conviction as was every other police officer and prosecutor in America.
3. Would Factor, if he really had recognized any of us, have stayed mum and allowed us to be taken out of Illinois ? Hardly! considering the zeal with which he lied against us later.
I reasoned that we were home safe on the Factor fake and soon would be cleared in St. Paul. In a few months— even weeks—our troubles would be ended. An optimist, eh? I was going to get 298 years of trouble!
The government took us in chains from Elkhorn to the County Jail at Milwaukee. Weeks of hell followed. We were maximum-security prisoners, in separate cells. No visitors; no consultations with lawyers; no visits by families; no radio broadcasts; no newspapers.
I went into the jail in excellent physical shape. When I came out, I was 25 pounds lighter, three vertebrae in my upper spine were fractured and seven of my teeth had been knocked out. Part of the FBI's rehabilitation-of-prisoners system, I supposed. All of the men who gave me the treatment were strangers to me.
They questioned me day and night, abused me, beat me up and demanded that I confess the Hamm kidnapping. Never was I allowed to rest for more than half an hour. If I was asleep when a team of interrogators arrived at my cell, they would slug me around and bang me against the wall. I trained myself to sleep for 20 minutes, and be on my feet for the questioners.
I couldn't have confessed if I had wanted to. I didn't know what Hamm looked like, how the ransom was paid, where he was held, or anything else. Neither did McFadden, Stevens or Sharkey. But that seemingly made no difference.
On August 13, a Federal grand jury in St. Paul indicted all of us for kidnapping. Jangle, jangle, jangle, we went in our chains to the Ramsey County Jail in St. Paul. The beatings stopped, but not the maximum security. We were allowed no visitors, including lawyers. Our trial date was approaching, and we were totally unprepared.
Fiasco at St. Paul
Fiasco at St. Paul
Poor Willie Sharkey all but fell apart during those weeks of horror. He never was a strong-willed fellow and he couldn't endure being beaten. He had a childish fear of solitude, too. His mind was gone by the time we reached St. Paul. I was shocked when I saw him.
There were times when Willie didn't seem to know where he was. He mumbled about our fishing trip to Wisconsin, the last freedom he ever was to know on this earth, and about the Indian maiden on the reservation. His mind seemed to refuse to accept the fact that he was up against a kidnapping rap, and maybe two. He screamed in his sleep at night and sometimes he tried to fight the guards.
I had lost track of time, in jail, and then I had a visitor. He was a round-faced, pleasant man—Thomas McMeekin, former Ramsey County prosecutor at St. Paul, and an able lawyer. He explained that Stevens' family had retained him about a California matter. That was why he happened to be in the jail.
After offering me a cigarette, he said: "Stevens asked me to see you, so I'm here. He says you and your co-defendants need a lawyer in the Hamm case. Well, I'm not applying for the job—in fact I wouldn't take it if you offered it to me—but I'll get word to the lawyer of your choice, if you like."
McMeekin impressed me right from the first minute. He was quiet, with none of the dramatic ham of some shysters. He wasn't looking for a fee; only trying to help a prisoner who needed it. I asked him to get in touch with William Scott Stewart in Chicago, and he said: "Sure, I'll do that. Stewart is a good man."
Touhy’s lawyers in the Hamm case, Thomas McMeekin and William S. Stewart
As he turned away, I appealed to him. I knew we would need a local lawyer, in addition to Stewart. I had a feeling that McMeekin was the man. He inspired confidence. But when I asked him to come into the defense, he shook his head and said: "Sorry, Touhy. Bill Hamm is a good friend of mine."
I begged him. I swore I was innocent. I said I had an alibi that couldn't be beaten. I spoke of my family and background. He seemed a little surprised when he heard
that I had no previous criminal record. He leaned against a wall, puffed a cigarette and looked at me sidewise now and then as I spieled like an auctioneer.
At last he said: "I'm not convinced, but you've got me thinking. I'll look around a little and then we'll see what Stewart says. I promise you nothing." He handed me the rest of his pack of cigarettes, walked away and left me feeling better than I had in weeks.
Stewart came to see McFadden, Stevens, Sharkey and me. McMeekin paved the way for the visit with the authorities, I believe. I asked Stewart to take in McMeekin as co-defense lawyer, and he agreed. Stewart wanted me to give him my alibi defense and the alibis of McFadden, Stevens and Sharkey. I didn't do it—for an excellent reason.
Two FBI men stood in the room, listening to every word and making notes. I didn't want them to hear the names of my witnesses. Why tip off the prosecution in advance? Especially when you know that you're being framed. I had an inspiration, and I brushed away Stewart's questions.
"Send my wife up here to see me," I said. "I have some very important things to tell her about this case. She'll understand what to do. I don't recall the names of some of my witnesses, but she will remember." Stewart said he would try to arrange a visit by my wife.
Well, sir, Clara didn't have a bit of trouble getting to see me in the jail. They brought her in and sat her down across a table from me. Two FBI men, each with pencil poised above a pad of paper sat at the ends of the table. I smiled at them apologetically and said that I hadn't seen my wife for a long time and did they mind very much if I held her hand.
They nodded agreeably. Clara and I clasped hands and began telegraphing to each other. A short pressure of a finger was a dot and a long pressure a dash. We had practiced it often when talking secretly in front of our sons. Vocally, I talked inanely about our neighbors and such, at the same time telegraphing instructions to her. She pressured back: "O.K. Papa, I understand." I rambled along about nothing much at all in conversation, and our listeners looked at me as if I might be in as bad shape as Willie Sharkey.
In Morse code, I told her to get in touch with Edward J. Meany, a suburban real estate dealer, a man I had known for most of my life. I had recalled that Meany had come to our home on June 15th and invited me to his daughter's graduation exercises that evening, the date of the Hamm kidnapping.
I also telegraphed Clara a reminder that I had gone by chartered airplane from Chicago to Indianapolis on about June 18, during the time when brewer Hamm was missing. I asked her to check with the pilot and with the Claypool Hotel in Indianapolis, where I had stayed overnight. Father Weber, too, I thought, probably would remember seeing me on that date.
At the end of our conversation, we coded each other the messages of "30" and "73," which meant "that's all" and "best regards". The listening FBI men gaped at us.
They hadn't heard enough to merit putting pencil to paper. But my wife and I had done a lot of communicating.
The St. Paul trial was a farce, a fiasco, but the government tried its damnedest.
Special Assistant U. S. Attorney General Keenan, the government's anti-kidnap specialist, bossed the prosecution. With him was U. S. District Attorney George F. Sullivan, of St. Paul.
Special Attorney General Joseph Berry Keenan who tried Touhy for the Hamm kidnapping. Keenan later became a war criminals judge.
On the opening trial day, newsboys were peddling the St. Paul and Minneapolis newspapers in front of the courthouse. The banner headlines said that McFadden, Stevens, Sharkey and I had been indicted in Chicago for kidnapping Jake the Barber Factor. The prospective jurors, reporting for duty at the trial, couldn't help but see the headlines.
The stories said that we were mobsters, murderers, bank robbers and thieves. The people on the jury panel undoubtedly had read those articles at breakfast.
(We had been indicted in state court in Illinois because, unlike the Hamm case, there was no evidence of the victim having been taken across a state line.)
There were mobs of spectators in the streets around the courthouse. We were manacled and chained when taken from jail to court. Police with riot guns and machine guns were everywhere. Observers, including the jurors, must have been mightily impressed—and prejudiced. Selection of a jury, with U. S. District Judge M. M. Joyce presiding, began.
Stevens nudged me and whispered: "Take a look over your shoulder, Rog. You got friends in court." I sneaked a glance. There, in front row seats, were Tubbo Gilbert and Jake the Barber, side by side. I knew Gilbert, of course, but I had never seen Factor before. I recognized him from newspaper photos. He was a small, perfectly-groomed man with an olive complexion and a round face. His hair was dark and it glistened with oil. His eyes met mine for a fraction of a second and then darted away.
Now, why in the world were Factor and Gilbert in St. Paul? They could have no part in the Hamm prosecution, because they knew nothing about it. They could not testify. They were present because their pictures were in the Twin City papers and they were a constant reminder to the jurors that another kidnap indictment was pending against us in Chicago. The prosecution was ignoring no bets.
The Barber gave an interview to St. Paul and Minneapolis newsmen. It was the most prejudicial piece of vicious propaganda I ever read. Factor can't repudiate this, because it was carried by the Associated Press and printed in newspapers from coast to coast and abroad. He never denied it. What he said was: "I wouldn't hurt a fly, but I could take that guy's [Roger Touhy’s] throat and twist it until the blood came out. And I could drink the blood, the way they tortured me.
The Hamm trial had a sort of let's-pretend-we're-all-nuts tone. Hamm told of being kidnapped from in front of his brewery in broad daylight. He was trying to tell the absolute truth, I am sure, but he conceded that he had been under a great deal of pressure from the police and the FBI. A business associate told of dumping a $100,000 ransom payment on a highway near Wyoming, a Minnesota town. Hamm said a man resembling Chicken McFadden had taken him by the hand and led him into the kidnap car.
Our lawyers got him to admit that he once had identified a photograph of Verne Sankey, a notorious bank robber, as the man who had him by the hand. Under cross-examination, Hamm, an honorable man, said that he didn't know whether McFadden was among the kidnappers. He added that he never had seen Stevens, Sharkey or me as far as he knew
That ended Hamm's testimony. It proved nothing. A farmer from near Wyoming testified that he saw some men in a big black car near his place on the day Hamm was turned loose. His testimony was pretty vague. Special Assistant U. S. Attorney General Keenan next sprang a surprise witness on us. He was a printer from Chicago, and he gave all of us a gasp at the defense table. The witness said he was in St. Paul looking for a job on June 15, hadn't found one and had gone out to the Hamm Brewery. He always was interested in breweries, he said.
After hanging around the brewery for a while, the witness swore, he went to a store, bought a package of cigarettes and returned in time to see Hamm kidnapped. He identified McFadden, Stevens and Sharkey as being among the kidnappers and, by implication, that meant I was the fourth one. "I thought they were just drunks, and I paid little attention," he said.
The printer said he had gone to Chicago that night, read of the Hamm kidnapping, written a letter to the U. S. Attorney in St. Paul and carried it around in his pocket for three or four weeks without mailing it. After having read of our arrest at Elkhorn, he went on, he had sent a telegram to the authorities at St. Paul. Who could believe that story?
I told Attorneys McMeekin and Stewart to get in touch with the Dannenberg Detective Agency in Chicago for a check. Within 48 hours, the answer came through. The witness had been working as a printer in Chicago at the time he claimed to have witnessed the kidnapping in St. Paul. The payroll records proved beyond question that he was a liar.
Was he ever charged with perjury? He was not. Clara had a private detective check the Indianapolis hotel where I had stayed. An assistant manager told the gum-shoe that a man with a Federal badge of some kind had taken my registration card, so there was no proof that I had been at the hotel. It looked like destruction of defense evidence, but I couldn't prove anything.
The pilot who had flown me from Chicago to Indianapolis was reported to be on vacation. I wondered who paid his holiday expenses. We thought about calling Father Weber, but it didn't seem worthwhile.
My real estate dealer friend, Meany, did get to the stand. He swore that on June 15 he had invited me at my home to attend his daughter's graduation exercise. The prosecution gave him a savage cross-examination, but he wouldn't budge an inch.
He testified that a Chicago FBI man came to him with this warning: "If you go to St. Paul to testify for Touhy, you'll be sorry, and maybe you won't come back." The St. Paul jurors returned a not-guilty verdict for the four of us. There was nothing else they could do.
But the people of St. Paul didn't understand. They had been indoctrinated too well by the press. They seemed to regard the phony witness as a hero. There was a howling mob in the streets around the jail that night. I figured we were going to be lynched, all of us. Attorney McMeekin appealed for police protection at his home when a mob formed there.
We, the acquitted defendants, sat in our cells through that long night. Our next trial would be in Chicago, for the Factor case. I figured that Jake the Barber now would identify us for sure, although he had said repeatedly that he didn't recognize any of his supposed kidnappers.
The mob's howls ring in my memory today. I wonder how those self-appointed vigilantes felt, two years later, when Arthur "Doc" Barker, Alvin "Creepy" Karpis and other Dillinger mobsters were convicted of—or pleaded guilty to—the Hamm kidnapping. Were they relieved then, that they hadn't lynched Roger Touhy and his innocent co-defendants?
Of one thing I had convinced myself during the Hamm trial. I wasn't going to let Willie Sharkey go through any more of his personal hell. I had had to hold him down in his seat during some of the Hamm case. He wasn't responsible, I knew, although I couldn't get a mental expert to examine him. Willie should be committed to an institution, I felt, and I was going to do something about it. I was too late. Willie hanged himself with his necktie in the Ramsey County Jail. I wept. Willie's life might not have amounted to much, but he shouldn't have been driven to ending it.
I thanked McMeekin for all he had done. He gave me a rueful smile, and I understood. Right at that time, he was as popular in St. Paul as an acute case of leprosy. He was paying for having defended a gang of dirty kidnappers. McFadden, Stevens and I went back to Chicago, jangling our chains. In the Cook County Jail, things were a little better. We had newspapers and radio programs and we could send out for some decent food now and then. The prosecution ran in a substitute for Sharkey—Albert Kator, who had driven a beer truck for me.
"I don't know why I was grabbed," Kator told me. "But I think Factor might have fingered me. “ I figured that theory was right. If Factor hadn't falsely identified all of us, we wouldn't have been indicted. I was a little worried but our attorney, Stewart, reassured me.
He said that no jury in the world would believe Factor because of his bad reputation. "You’ll never go on trial," Steward said. "The case surely will be dropped." I believed him.
I couldn't understand why Chicken McFadden had been indicted with us. He had been in the Oak Park Hospital during the entire period that Jake the Barber claimed to have been in the hands of kidnappers. Chicken couldn't possibly have had anything to do with the Factor snatch— which hadn't happened, anyway.
I didn't remember, which I should have, that I had given the use of my name as a reference when Chicken had rented a house at Fir and Elm Streets in the suburb
of Glenview, about five miles from my home.
The stories in the Chicago papers irked me a little. The news stories now were calling me "Black Roger" and "Terrible Touhy." I discovered that I was a machine gunner, a bomber, a probable murderer, and a few other things I hadn't known about myself.
My co-defendants had brand new nicknames, too. Chicken McFadden had become "Father Tom." It was certain to make readers and prospective jurors think of the St. Valentine's Day massacre, when a couple of Capone's killers masqueraded in black gowns and round collars as Roman Catholic priests. A nice touch of poisoning the public mind, that was.
Kator was called "Polly Nose" in the press. He happened to be of the Jewish faith, and an appeal to anti-Semites was in the nickname. Stevens, indicted under a phony name, was called "Gloomy Gus," but it fit his appearance so well that I couldn't complain, and neither could he, really. Stevens never was one to let his real wit shine forth. But the thing that really astounded me was the plush, red-carpet treatment now being given to Factor in the Chicago press.
At the time of Jake's extradition troubles and during the time of the so-called kidnapping, reporters had written of him freely as "Jake the Barber, International swindler."
But now, with our trial coming up, he wasn't Jake the Barber, swindler, any more. He became "John Factor, international speculator," in the press. It was comical, in a way, that every Chicago paper used exactly the same wording—"international speculator"—in describing Jake.
The top editors of the papers and the bosses at the Associated Press, United Press and International News Service apparently felt that, for the first time, there was a
chance in America to convict a vicious kidnap gang. At any rate, Factor got a whitewash, presumably in the interest of real justice, and to end the kidnap evil.
Courtney may have believed at the time that McFadden, Stevens, Kator and I really were guilty. He was a political office holder, almost totally inexperienced in prosecuting and investigative work. In his position, he had to rely on what Gilbert told him.
And the editors probably can't be criticized too severely for giving the prosecutor's office a slanted assist, either. Courtney was publicly committed to a conviction, and the glitter and glamour hadn't worn off the handsome, boyish, dimpled State's Attorney. To hundreds of thousands of Chicagoans, he was the shining knight who was going to cleanse their city of the Capone stink. It was the popular thing, as well, to be against kidnappers.
Modern Chicago newspapers would never play mumble-de-peg with records in such a way, I am sure. In fact, if Jake the Barber or one of his ilk tried to fake a kidnapping in Chicago today, the dirty work undoubtedly would be exposed within 24 hours. If the police missed, the newspapers, with their staffs of reporter-investigators, would do the job.
In the late years of my imprisonment, as doubt increased about my guilt, the Chicago papers were almost solidly behind me all the way. But, in 1933, the publicity against us was as staggering as a right to the jaw by Joe Louis. We were mad dogs, and Factor was being almost beatified, considering his past. I remember recoiling a little in jail when I picked up a newspaper with a big, black headline: "STATE TO SEEK DEATH FOR TOUHY GANGSTERS!"
Stevens saw it, too. He gave me what passed for a smile and said: "Well, Rog, maybe you can get Tubbo to hold your hand when you sit down on the chair and they turn on the juice. That would be nice." Stevens' sense of mirth had a touch of Edgar Allen Poe at times.
They took us from the jail to the Criminal Courts building through an underground passage that has been called "the tunnel of hopeless men." We rode up a special elevator that landed us in a bullpen, or cage, at the rear of a courtroom. Photographers took our pictures, and we looked like public enemy’s number-one through -four, with our stubble of jail beard and wrinkled clothing. More pictorial propaganda for the prosecution.
We pleaded not guilty. On that day, or subsequently, the trial was assigned to Judge Michael Feinberg. We went back to jail, and attorney Stewart said farewell for a while. He was going to Cuba for a vacation. He sent me a box of cigars for Christmas. I didn't smoke cigars, but it was a nice thought.
On that joyous Yuletide, the papers announced, every jail inmate would be served a turkey dinner. On that basis, I told Clara not to send us any special food for the holiday, since we would be feasting on drumsticks and white meat, with cranberry sauce, sage dressing, giblet gravy, two kinds of potatoes, hot rolls, celery and mincemeat pie. That's what the menu in the papers said.
About 20 years later, in Stateville, we got an inmate who had been an Air Force pilot. He used to sing a song that went: "I wanted wings until I got the goddam things, and now I don't want them anymore."
Wings! Turkey wings! That's what we got for Christmas dinner in the jail. The luxury hotels didn't serve wings to their guests, so the poultry merchants lopped them off and sold them to the politicians who bought the food for the jail.
Stevens poked a fork at his wing, floating on a sea of grease, and said: "If I had this many feathers, I'd fly over the wall."
It was an unmerry Christmas, and the prosecution was preparing an unhappy New Year for us.
Washington Gets into the Act
Washington Gets into the Act
In December, 1933, the United States Supreme Court ruled, as had been expected generally, that Jake the Barber had to go back to London. England's extradition case against him was bonafide, the justices ruled. The decision meant curtains for Factor. He could appeal for a rehearing, but his lawyers told him that he wouldn't get it. The Supreme Court seldom changes its mind.
Off to Washington went State's Attorney Courtney. He had a conference with President Roosevelt, telling him that Jake was needed in America to convict a gang of the nation's most vicious kidnappers, including Roger Touhy.
Courtney has conceded under oath that he did so. Special Assistant Attorney General Keenan backed up Courtney. Keenan, after failing to convict me for the St. Paul frame-up, no longer was referring to the Factor fake as "an alleged kidnapping." He had thrown in with Courtney in an endeavor to put me in the electric chair in Chicago.
F.D.R. undoubtedly did what he did in good faith. He had no way of hearing my side of the story. Anyway, he telephoned Secretary of State Cordell Hull and asked him to tell the British Embassy that Factor's removal to England was being held up indefinitely. Hull agreed. Factor now had put over the biggest flimflam of his life. He had hoodwinked the President of the United States. He had tweaked the British Lion's tail and managed to let go in time.
Courtney announced that his prize witness would remain in the United States until such time as the kidnap charges against me and my codefendants were settled finally. Upon receiving the news, Jake put on a victory celebration, with champagne. Whoopee! As for McFadden, Stevens, Kator and I, we didn't feel so good in our jail cells.
Over the years, I have become a student of Factor. I have listened to him testify for hours, I have read about him and I have talked to many people who knew him, including his cell mates in prison.
He has given his birthplace, at various times, as Dunzska, Russia; Lodz, Poland; Hull, England, and Chicago. He reported the year of his birth variously as 1890 and 1892, which would make him either 41 or 43 when he said he was kidnapped in 1933.
His father, an itinerant rabbi, brought him to the United States at about the turn of the century. Jake took out his first papers, but he did not become a United States citizen. The records show that he registered for the World War I draft in 1917 but never spent a day in service. He was married by that time, and a father.
Jake first had appeared in Chicago as a boy bootblack, shining shoes in a West Side barbershop. The price of a shine was two cents, but, the story goes, Jake made a good thing out of it. Many of his customers were unwary fanners, called "greenhorns," in the city to sell vegetables at the produce markets.
To one of them, Jake would say: "You want a steamboat shine, Mister? Only one cent." If the chump agreed, young Factor would shine one shoe until it glowed like one of the big diamonds in the pawnshop window down the street. The lad then would step back and say: "There's your steamboat shine, Mister. For a dime, I'll shine the other shoe."
If the customer beefed, Jake would pass it off as a joke and finish the shine. But, more often than not, the outwitted patron gave him the dime. He also worked as a hat-check boy and men's washroom attendant in Chicago restaurants.
Jake graduated from clipping shoeshine customers to clipping hair. He became a barber. A shave was a dime and a haircut 15 cents, but he found a way to keep on fleecing the greenhorns. When one of them got into his chair he would get a sales talk like this: "Mister, we have a special today. I'd like to have you try it. You just relax and I'll do the work."
Factor then would go into a routine of funny stories and fast patter. The chump, diverted, would get a shave, haircut, facial massage, sure-thing mange cure, hair singe, blackhead eradication, scalp rejuvenation, dandruff treatment, eyebrow trim, removal of wax from the ears and a closing essay on his greatly improved appearance.
When the conversation-bewildered customer stepped out of the chair, he would get a big smile from Factor and a bill for $4.50. If the complaint was noisy, Factor would settle for half, and still be money ahead. Sometimes he got the full price.
Stock-market craziness was sweeping the country, with politicians and financial page columnists feeding the public such slogans as "Don't Sell America Short" and "Big Business Is Your Best Bet." Illegal bucket shops, and legitimate brokerages, too, sold stocks on the installment plan. The U.S.A. was a con man's paradise.
Factor got into the stock-market through the back door. He became a collector of monthly installments on sold-on- time shares. He had gone to school only three months in all his life, but he trained himself to speak well. He could figure the odds of horse-race betting and dice; and stock market percentages were just another step in the same direction. He switched from collecting to selling stocks on commission, and soon he was the wonder boy of the brokerages.
He could sell anything—probably including home heating plants for summer use in Havana, Cuba. Sales commissions on the stocks peddled in those days ran as high as 75 percent, and the shares made lovely wallpaper.
Jake's pockets bulged with money, and he spent it as if the stuff were going out of style. The gambling joints got a lot of his cash and he lived like a teller with a key to the bank's night lock. He would be broke at breakfast time some days and rich before sundown. When the Florida land boom was raging, Jake got in on it and became a multimillionaire. He was indicted in one of the Florida deals, but the case was dropped.
Factor has been required to testify at various times that he went to England and set himself up, under at least three names, as the Broadstreet Press, Ltd., and other enter-
prises. He became what the British called a "stock pusher." Jake stayed in the back room, mostly, and hired stooges to stick their necks out.
Britishers—mostly pensioners, widows with a bit of insurance money, clergymen, keepers of small shops and tram conductors with a few pounds tucked away in post
office savings—began getting copies of a weekly stock-market information newspaper.
The paper advised the free-list subscribers to buy certain legitimate, conservative-type stocks listed on the London Exchange. The shares went up in price. Factor made
sure they did by investing heavily in them with his own money. Everybody made profits—on paper.
The thing snowballed, as Jake knew it would. The people who made profits talked their friends into investing. The demand for the stocks increased and the prices spiraled ever upward.
The Barber nursed his chumps along for two years. Some of them mortgaged their homes or borrowed from loan sharks to buy more stocks. Jake wrote a weekly column of stock market advice for the paper under the alias of Norman D. Spencer. The stocks recommended in the column always went up in price. The investors wrote letters of glowing praise to the paper.
Factor spent nearly $1,000,000 on his bait. He published the newspaper at considerable expense and he operated brokerage offices where the customers could buy their stocks. Everything was legal.
And then came the switcheroo. Norman D. Spencer advised his followers to sell their blue-chip shares and invest their every shilling in new securities. The profits were certain to be big and quick, wrote the infallible Norman D. The newly recommended stocks were not listed on the exchange, but soon would be, Spencer promised.
The suckers all but broke down the doors of Jake's bucket shops to buy shares in such never-were companies as Asbestos & Holding Trust, Ltd., Vulcan Copper Mines and Rhodesia Border Mining Corp., Ltd. Jake was printing the stock certificates on the same presses that put out his newspaper.
In seven months, from March to October of 1930, Factor rooked his trusting boobs of 1,619,726 pounds, or more than $7,000,000 in American money at the rate of
exchange of the time. It was one of the biggest swindles of its kind in history.
The individual losses were mostly small. Some of the chumps lost only a few hundred dollars, but there were thousands of them—practically all victims who could not afford to lose. Factor had bled them white. The London press reported a number of suicides at the time.
In October, 1930, the investors in Jake the Barber's fake stocks got printed notices in the mail. Good old Norman D., the infallible, had a touch of the pip. He was going to the country for a rest and the paper was suspending temporarily. But Norman D. would be back of course, to guide his dearly beloved friends into even bigger profits. Factor's offices were flooded with sympathy letters and "get well soon" messages. An 82-year-old widow, with her husband's life insurance money trustingly invested in Vulcan Copper, called at Factor's Broadstreet Press offices with a noggin of calfs-foot jelly for the invalid Norman D. The door was locked and the blinds were drawn.
Jake had most of his $7,000,000 cabled, mailed or sent by courier back to the United States. He sailed to France and went on a gambling jamboree that made headlines in the French press. He beat one of Europe's Royalty big-wigs out of $625,000 in one night at chemin de fer, according to the press reports.
The squawks from the British chumps, meanwhile, were all but deafening. Factor, in the manner to which he was accustomed, said in France that he would pay them off—at 20 cents on the dollar, approximately. Many of the victims accepted—but not the Reverend Arthur Travis Faber, an Anglican clergyman in the city of Leeds, England.
The Reverend Faber didn't aim to accept 20 per cent. Or 90 per cent, either. He had invested his daughter's dowry with Factor, and he wanted every farthing repaid, with compound interest. Factor, annoyed at what he deemed impertinence, had one of his stooges deliver a crude message to the parson. "Tell him," Jake said, "that I will see him in hell before I ever give him a penny."
That was a bad, bad mistake. Jake should have known better than to consign a righteous man of the cloth to fire and brimstone. The Reverend Faber journeyed from Leeds to London, saw a lawyer, plunked down 100 pounds and said: "This American bounder, Factor, should be brought back to England and prosecuted. Please arrange to do so."
In Chicago, Attorney Thomas C. McConnell's law firm received a letter from the London solicitors, explaining that Jake the Barber had barbered Britons for more than $7,000,000. Would McConnell be interested in undertaking a legal action to recover, on a percentage basis? There was a 100 pound retainer available.
McConnell read the letter with no enthusiastic cries of joy. The retainer was skimpy. It was probable that Factor, in common with all swindlers, had hidden away his loot so carefully that it could never be found, so recovery would be next to impossible. Still, a fat percentage of $7,000,000 would be a lovely thing.
McConnell was dummy at a bridge game a few nights later, but he wasn't dumb. He overheard a banker say that Factor had deposited $1,000,000 in each of two Chicago banks. The news was music for any shrewd lawyer.
McConnell's firm snapped up the 100 pounds and set out ambitiously to collect the percentage. Now that some of Factor's boodle had been located, recovery was far from impossible.
The Chicago lawyer and his associates got back $1,800,000 for rooked Britishers who joined with the Reverend Faber in a suit. What percentage the Chicago law firm received was not revealed, but it certainly was not small. The Reverend Faber, incidentally, got back his every shilling with interest.
Back home in Chicago, Factor left a trail of $100 bills wherever he went. A star sapphire twinkled from a ring on his finger. His lovely wife, Rella, was with him in Paris gowns at the Chez Paree, the Empire Room, the Marine Dining Room and other fancy spots of Chicago night life.
He hit The Dells and other Capone gambling joints, where he had a credit of $50,000 at the tables. His Deusenberg car, with liveried chauffeur, was known everywhere in Chicago. In suburban Des Plaines, I heard gossip about him as the biggest spender since Diamond Jim Brady. With Factor at the finest Chicago restaurants and night clubs were politicians, Capone mobsters and police captains. Jake was drunk with money.
The British government didn't like this vulgar display. Jake was indicted in London and an extradition warrant was sent to the State Department in Washington. Two of Factor's stooges, Harry Geen and Arthur J. Klein, were convicted in London and imprisoned. Jake, as the brains of the swindle, could expect no mercy in the British courts. While his underlings took his raps for him, Factor opposed extradition with the best lawyers that money could retain. Then came what seemed to be a series of remarkable coincidences.
Son Jerome was reported kidnapped—and once again I want to state in all fairness that I have no reason to believe that Jerome was involved in any fakery in the matter. Nevertheless, the alleged abduction came at a crucial time in his father's extradition fight. Coincidental, wasn't it?
After that came Jake's own vanishing act, his reappearance, his statements that he had seen none of his purported kidnappers, his grandstanding with Tubbo Gilbert in court at my trial in St. Paul, his appearance before a county grand jury in Chicago that indicted Stevens, McFadden, Kator and me.
(Incidentally, Factor must have been relieved—as were Sharkey, McFadden, Stevens and I—when we were found not guilty in St. Paul. If we had been convicted and sentenced to life for the Hamm job, there would have been no excuse to keep Jake in the United States. He would have been on his way to England.)
After State's Attorney Courtney went to President Roosevelt in December, 1933, Factor could feel fairly secure. He could remain in the United States indefinitely. He testified against me and my codefendants—and subsequent chapters of this book will show that he lied, again and again. His lies show up, without dispute, in his sworn testimony. Factor has admitted that he lied, and that Dan Gilbert, at least, knew he lied.
After Factor had perjured me and my codefendants into prison for 99 years each, he beat the extradition rap for all time. The government locked him up in the county jail at Sycamore, Illinois, for 60 days. During that time, the State Department made no move to honor the British government's extradition warrant.
When the 60 days were up, Factor went free, under the law. The cheated British chumps didn't even have a chance to testify against him. He never could be prosecuted for the London swindle—unless he made the mistake of stepping on British soil, from which no extradition would be needed to put him on trial. He was smart enough to remain in the United States, of course, but he didn't stay out of crime.
He pleaded guilty at Cedar Rapids, Iowa, in 1943, in connection with a plot to swindle $1,000,000 from Roman Catholic priests and other victims in a fake deal involving whiskey warehouse receipts. He served from August, 1943, to February, 1948, in the Federal Penitentiary at Sandstone, Minnesota. Also, Jake tried to go into the whiskey business in Chicago. He had a Federal Alcohol Tax Commission hearing on an application for a permit to deal in alcoholic beverages. A hearing commissioner turned him down, with the comment: "John Factor is a person who cannot be believed under oath."
So, Jake was too big a liar to get a legal permit to peddle booze. But he was believed so trustingly in the Cook County Criminal Court that he was able to lie me and my codefendants into 99-year prison terms. Could there be any greater mockery of justice?
Courtney and Gilbert since have claimed that they had witnesses to back up Factor's testimony. Judge Barnes later agreed with them, and so do I, The fact is, however, that the corroborative witnesses were as big liars as Factor was. The sworn stenographic record will bear me out.
What Jake The Barber Said
What Jake The Barber Said
Our lawyer, Stewart, came back from his tropical vacation early in January, 1934, and things didn't look too rosy. The Factor case was assigned to Judge Michael J. Feinberg and he wanted a trial right now—or sooner, if possible. There would be no delays, which left us little time to locate witnesses or prepare a defense.
An emissary came to me in the jail with a proposition. A message had been sent to him that McFadden, Stevens, Kator and I would go free for a pay-off of $25,000 to a politician. I said to hell with it. I was innocent, and no politician was going to get fat off me. We would beat them in court, just as we had beat the Hamm frame-up.
My wife, Clara, visited me and begged me to pay the $25,000 bribe. We had plenty of money. Legal expenses had eaten at my bankroll and my business, without my attention, had gone to pot. But still I could have made the pay-off without scrimping myself, if I wanted to. I wouldn't do it.
There was danger in going to trial, and I knew it. Jake the Barber had had more than five months to manufacture evidence, buy off witnesses and weave a pattern of lies.
If he convicted us, he was a cinch to stay in the United States for two or three years while we appealed to the higher courts. By that time the case against him in England probably would be dead. He had reason to want a guilty verdict desperately.
Clara, one visiting day, brought me the front pages of the two Chicago morning papers of the previous July 8th. Factor had been reported to be in the hands of kidnappers at that time.
The headlines of the two newspapers were almost identical.
The Chicago Tribune read: "FACTOR CASE BRANDED HOAX."
The Herald and Examiner. "BRAND FACTOR CASE HOAX".
The Tribune's story began: "Convinced that the kidnapping of John 'Jake the Barber' Factor was a hoax arranged by connivance of the millionaire speculator and his friends to enable him to escape extradition to England, Lewis Bernays, British consul here, served a demand yesterday on Federal authorities to capture Factor and jail him."
My wife looked at me warningly and said: "The papers have changed their attitude in the last few months, Rog. They believe Factor now. Maybe the people on the jury will believe him, too." She was right. Jake the Barber had a "Mr. Factor" standing in the papers now and I was "Black Roger" or "Terrible Touhy." The bad publicity had me in a box.
Judge Feinberg banged his gavel for order at 10 A.M. on January 11, and away we went. Every seat in the courtroom was filled, and spectators were standing around the walls. People lined up for hours for a glimpse of "Terrible Touhy" and his arch-criminals. It was the Hamm trial all over again, but Assistant State's Attorney Crowley added a gimmick by asking a new question of a prospective juror being qualified for duty: "Have you any religious or conscientious scruples against the infliction of the death penalty in a proper case?"
He made it sound like a commonplace inquiry as: "How do you like your eggs for breakfast?" or "Milk or lemon with your tea?" Over and over, day after day, I heard that question asked as the jury was being picked. It haunted me, and it still does.
It gives you a lousy feeling, believe me, to hear yourself referred to as a miserable, lowlife, vicious criminal—good only for meat to be fried in the electric chair. I realized for the first time the bottomless shame of being so low as to be sent to your death by your fellow men. I hoped that, if they sent me, my sons never would know.
When 12 men—no women, at that time—were in the jury box and sworn to be good and true, Crowley scorched them with a fiery opening address. He stressed the fiendishness of the crime of kidnapping. He promised to prove beyond a reasonable doubt that we were guilty. Stewart replied that the case against us was a frame-up by Factor and the Capone mob. During a recess, Stevens pointed out to me that two Roman Catholics were on the jury. He didn't like it.
Stevens told me to take note that Crowley and his trial assistant, Marshall Kearney, both were wearing insignia pins of the Catholic order of the Knights of Columbus in in their lapels. I asked Stewart about it and he explained that he had accepted the two jurors as good strategy. "Don't forget that your friend Father Weber is going to be an important witness for us," Stewart said.
After giving me that message Stewart said: "Rog, there's an old Chinese saying that goes: 'Man who tries to be own lawyer has fool for a client'." I knew what Stewart meant. He was running the law suit and I was to keep my mouth zippered up. I did—for a while.
It is impossible to use in this book all the testimony given at the trial and at subsequent proceedings. To do so would fill 100 books twice as long as Gone with the Wind. This book will, however, cover all testimony that had any lasting effect on my case.
A half-dozen witnesses told of being at the "kidnap scene" near The Dells. They related that a band of men with machine guns and other weapons took Jake the Barber away in a car. A couple of them identified a photograph of dead Willie Sharkey as that of one of the gunmen. Those people told the truth—as they saw it. They had no way of knowing the real situation—the fact that Factor had hired the men to fake a kidnapping so realistically that they would have no suspicions.
Factor's wife, Rella, testified that she rounded up $70,000, as directed in Jake's note, and Dr. Soloway told of delivering a package to a gang of strangers on a dark, lonely country road. The doctor said he assumed the packet was money, but that he didn't know how much. "It could have been old calendars for all I know," he said.
And then Factor went to the witness chair. I braced myself, sensing that the lies were going to start. Prosecutor Crowley led him along skillfully through his life story, building him up as a "self-made broker."
Jake's answers came in a clear, firm voice. I listened, and I soon realized why Jake had been such a successful operator. His manner was bland and his big, dark eyes were trusting. He had a sincere, little-boy look of utmost confidence in being believed. Factor was a great actor. He was embarked on the most important swindle of his life—the swindling of a judge and 12 jurors.
When he reached the incident near The Dells, Jake identified the photo of Willie Sharkey as that of one of the men with guns. Also, the witness said he got a good look at
another man who had walked in front of the glare of a car's headlights. That man was Stevens, Factor said. He fingered Stevens in court.
After being put in the "kidnappers", car, Factor said, he was driven for about 20 minutes. During that time, he went on, one of the kidnappers asked him: "How soon can you get $500,000?" Factor said that he pleaded poverty, saying he didn't have that kind of money.
Soon after being snatched, Jake testified, he was blindfolded with his own handkerchief. At the end of a short ride, he continued, the car turned into a driveway and stopped. He said that he was taken down a flight of seven steps and that one of his captors told him: "This is what we call putting them into the basement, Jack." (Factor generally referred to himself as Jack rather than Jake.)
The prosecution then brought into court a big diagram, or plat, of the basement of a house. The place was identified as the cellar of a house at Fir and Elm Streets in Glenview. Something like an electric shock ran through me. I had given my name as a reference when Chicken McFadden had rented that house.
I looked over my shoulder at McFadden, sitting at the counsel table behind me. He shook his head slightly, indicating that he didn't know what this was all about. What the hell, he had been hospitalized all the time that Factor claimed he had been kidnapped.
Jake the Barber went on to say that he had visited the basement on July 28, 1933, at a time when I was in jail in Milwaukee.
Factor said he went to the house with an F.B.I, man and a private detective guard. He swore that he had no advance knowledge that McFadden had any connection with the place or that I had been a reference for the rental.
Crowley interrogated Jake closely about the July 28 visit to the Glenview place. Almost every material reply made by Factor was a lie. It has been proved that Factor lied. He has admitted it. Judge Barnes affirmed it.
"I opened the door and I went down to this basement and I immediately recognized that that was the basement where I was held," Factor testified.
(Factor lied when he gave that answer. He never was in the basement—or anywhere else in the Glenview house—at any time during his pretended kidnapping.) Crowley continued with the interrogation:
Q. How many stairs did you walk down, approximately, on the night you were taken, July 1?
A. Six or seven.
Q. And how many stairs did you walk down the day you were out there [July 28] with the government men?
A. Six or seven.
Factor identified the basement diagram, saying it was clear to him. He pointed out the john, a stairway, the location of a place where he said he sat, a supporting post shown on a photo of the basement and other incidentals.
Q. All right, on the night that you were taken down to the basement, did you have occasion to use the lavatory?
A. Yes, sir.
Q. The plat is clear in your mind now?
A. Yes, it is. I went this way and sort of over to the right and then to the left.
Q. And how many times while you were in that basement did you go to the lavatory?
A. Very often, that night.
Crowley paused for effect and McFadden interpreted the technique later when he said: "The prosecution was trying to get across the idea that Jake had the shit scared out of
him." Crowley continued his questioning:
Q. Is there anything else by which you can recognize that basement?
A. The sound of the stairs.
Q. Will you describe the sound of the stairs in the basement in which you were held the first time, on July 1?
A. There are two different sounds to these stairs. As you go up, I couldn't understand the sound. But, as I was out there I had one of the men walk down and walk up again and as you get up to the top of the first floor, in order to go up from the basement, there is two different stairs and one of them is very thin wood and the other one is heavy, so the sound is quite different.
Jake the Barber's lies went on and on:
Q. Do you remember anything about any shrubbery?
A. Coming out, as you open the door, I remember when I was brought in there, there was shrubberies sort of brushing me. I was brushing them or they were brushing
me when I was going in and out, and those same shrubs were there over the door or very close to the door. . . .
Q. Did you hear anything else?
A. I heard train whistles, lots of trains going by.
Q. When you were out there on July 1?
A. On July 1, yes, sir.
Q. And when you were out there on July 28?
A. The same whistles.
The whistling trains were a deft touch. Glenview is served by suburban trains to and from Chicago. Those trains do have signal whistles of distinctive sound. The reason for McFadden's being on trial now was obvious. Because of his hospitalization at the time, he could no more have been convicted of kidnapping Factor than could Shirley Temple. Chicken was a defendant because, through him, I could be connected with the Glenview house.
His kidnappers asked him that night for the names of ransom contacts, Factor testified, and he suggested Sam Hare, known as part-owner of The Dells, and a couple of other persons. Nothing was settled, Jake said. He was left with two men, later to be known as the "good man" and the "bad man." The bad man searched his pockets, found only $10 or $11, Factor said, and told him angrily: "I'm going to cut off your ear and send it to your wife as a souvenir." The fellow then got a pair of scissors and clacked them near his ears, Factor said. A couple of the jurors gazed at him sympathetically.
Throughout, Factor had the attitude as he lied of a humble—but dignified and brave—citizen, doing his duty. He smiled apologetically at the jury when he quoted his captors as using swear words. It was a great performance.
The good man was kind to him through the long, frightening night, talking to him to help pass the hours, Factor said. When he complained of pain from the hand-
kerchief blindfold, tied tightly about his head, the man removed the binding, tore it into strips and pasted it back over his eyes with adhesive tape, the witness said.
While his eyes were uncovered, Factor testified, he looked up briefly and saw a man. Could he identify that man? Crowley asked. Yes, replied Jake, and fingered Kator. Kator was the bad man, Factor said.
The good man brought him toast and coffee in the morning, Factor testified, and three or four of the snatchers came to the basement. They wanted $200,000, so Jake said he told them he could raise money only by writing a letter to his wife. He quoted one of the kidnappers as replying: "That is out. We will have nothing to do with the G." apparently meaning that they were afraid of using the mails.
There was steak with mashed potatoes for supper, Factor went on, after which the bad man put handcuffs on his wrists and told him: "You are going for a ride." The words, in gangster talk, meant that he was going to be murdered, and Jake testified, with a sympathy-begging quaver in his voice, that he had wept.
Instead of being killed, however, he said he was driven in a car for 40 or 50 minutes and ended up in a second- floor bedroom of a house. Jake said he had no idea of the location of the house. That was another lie.
The good man read the newspapers to him on Sunday, including the stories of his disappearance, Jake said, and another kidnapper told him ransom negotiations had begun. Jake said he suggested Dr. Soloway as a contact and gave the man his watch, a Ten Commandment token and a ring as identification.
At one time, the witness testified almost tearfully, he was kicked in the stomach and, another time, a kidnapper told him: "If there is any monkey business ... we are going to bring out a torch tomorrow and burn your feet."
When he was terrified for his life, Factor said, he began to pray, only to be told by a callous kidnapper: "Why are you praying to God? Your life belongs to me."
As the negotiations dragged, Factor said, he told the kidnappers: "Maybe they [his family and friends] think I am dead. Let me write a letter. You can throw it into a
friend of mine's office and my wife would get it. You would not be using the mails.
"The kidnappers agreed, Factor said. The letter, introduced as evidence, showed that he had instructed Rella to get $55,000 from his broker, along with other money. The kidnappers lifted the blindfold to allow him to write the letter, Jake said, and as they did so he looked up and saw—guess who? Roger Touhy, of course. He said another man and I were standing before him and holding a blanket up to the level of our chins.
The story couldn't have been true. The defense later proved by scientific testimony that it was a lie. The letter writing took place on Thursday—after Jake, by his own sworn testimony, had been blindfolded constantly for five days and nights. An eye doctor testified that he couldn't have seen anything when the bandage was first removed. The light would have blinded him just as fully as the blindfold had. A man he could not see stood behind him with a machine-gun muzzle pressed against the back of his neck, ordering him to keep his head down as he wrote, Factor said. How Jake the Barber knew it was a machine gun, and not a revolver, rifle or shotgun, was a puzzle to me, since I could observe no eyes in the back of his head. After Jake fingered me in court, he testified that he also had identified me and recognized my voice in a Chicago show-up soon after the Wisconsin telephone pole incident.
On Tuesday, July 11, Factor swore, a voice he recognized as mine told him: "Well, Jack, how much money can you raise if we let you out of here? . . . We spoke [by telephone] to your wife today. You have got a good wife. . . . She has raised $70,000. How soon could you raise $50,000 if we let you go?"
Factor said he replied that he probably would need a week or so for this delayed-action ransom payoff. He testified that the kind kidnapper then spoke up, saying he would come to Jake's office and get the additional money. The good man was quoted as saying that he would telephone Jake, telling him: "I will say, 'This is the coffee man—the man who brought you coffee.'"
After that conversation in the kidnap house, Jake testified, the good man removed the blindfold by soaking the adhesive tape with alcohol. The blindfold was replaced by a handkerchief and the kidnappers drove him in a car for an hour and a half, dumping him at LaGrange, Factor said. The kidnap tale was ended.
Alice in Factorland
The atmosphere of the trial, for me, was saturated with an Alice in Wonderland feeling. I had heard so many lies that I couldn't keep track of them all. If the Mad Hatter and the March Hare had jumped up on the judge's bench and started talking jabberwocky, I would have taken it almost as a matter of course.
After Jake the Barber had identified Stevens, Kator and me in court, the newspaper reporters battered him with questions in the corridor. Why, they wanted to know, had he lied to them? Why had he told them—hundreds of times—that he had seen none of his kidnappers? Factor had a ready answer, as might be expected: Tubbo Gilbert and the F.B.I people had instructed him to lie to the newsmen, Jake said.
The explanation was ridiculous, of course. The reader need not take my word for it. Here are the words used years later by Judge Barnes: "Captain Gilbert and Factor have sought to explain Factor's many statements ... by saying that the F.B.I. agents and Captain Gilbert instructed him to lie. So far as the F.B.I. agents are concerned, this statement is impossible to be believed.
The F.B.I, agents are thoroughly trained investigators. ... It is difficult to believe that any one of them would ever tell a prospective witness ... to deny ability to identify . . . and thereby to lay himself open to successful impeachment.
So far as Captain Gilbert is concerned the statement is so difficult to believe that it seems highly improbable ....lawyers and investigators almost invariably advise
witnesses not to talk, but good lawyers and good investigators never advise witnesses to lie."
After his time out for newspaper interviews, Factor resumed his story at the trial.
On July 24, twelve days after he showed up at LaGrange, he said, he got a telephone call from the good kidnapper—the "coffee man." Factor said the caller wanted to know when he would be ready to pay off the added ransom.
Jake testified that he told the "coffee man" he needed more time, and that another man called him back on August 11. Jake said he stalled some more. Gilbert and Purvis now were in on the thing, according to the witness, and an F.B.I. secretary made notes at an extension telephone.
There were more phone calls and Jake said he finally agreed to send $15,000 by Western Union messenger in a Checker taxicab out into the country. A dummy package of $500, padded out with paper, was sent to the meeting place. One police officer was driving the cab and another rode along, wearing a messenger's suit.
One of the nutty things about it was that the cops put their weapons, including a machine gun, under a seat cushion of the taxi! After they delivered the dummy bundle, they had to get out of the cab, remove the cushion and get the guns. Airplanes were flying overhead with F.B.I. agents in them and the area swarmed with policemen, but the ransom collectors got away clean.
One of them ran to a farmhouse, said he had been caught with a married woman by her husband in a secluded picnic area and paid $10 for a ride to Oak Park. Another adventure in Wonderland was ended.
Now, isn't it silly to believe that any kidnapper would try to collect more money from Factor after he had been released? Factor had been in close contact with the F.B.I., the Chicago police and Gilbert. The newspapers had reported that Factor and members of his family were closely guarded against harm.
Under those circumstances, why should a kidnapper believe that Jake would come up with another $50,000—or $15,000, or even 15 cents? He wouldn't, of course. A much more sensible theory—later upheld by Judge Barnes—is that Jake was afraid his original kidnap story wouldn't be well enough believed to stop his extradition to England. He had, therefore, dreamed up the idea of the added-ransom story in a desperate effort to bolster his flimsy case.
Stewart tried to take Factor through a blistering, whiplashing cross-examination. He wanted to show that the kidnapping had been faked for a double motive:
1. To keep Factor safe in the United States;
2. To get me out of the way so the Capone mob could take over the labor unions.
It also was important to the defense to show that Jake the Barber was someone who couldn't be believed under oath. Prosecutors Crowley and Kearney objected to every question asked of Factor except those directly concerned with the kidnapping charges. Judge Feinberg upheld the prosecution most of the time.
Stewart did manage to get across, however, that Factor was wanted in England for swindling and that he had been an associate of Humphreys and other Capone mobsters. In spite of the judge's limitations on the questioning, Stewart had Jake sweating and faltering at times. I was fairly confident that the jurors would have some doubts about Factor. My codefendants agreed with me.
Two other prosecution witnesses of importance were Eddie Schwabauer-- a character who drank too much and never held a job for long--and his mother, Mrs. Clara Sczech, a poor, middle-aged, bedeviled, bewildered woman who had toiled at cooking and scrubbing all of her life. They told so many different stories as time went on that I had trouble keeping them straight.
Schwabauer was a former employee of mine. I fired him in June, about three weeks before Factor "disappeared" through Alice's Looking Glass. I had hired Eddie to guard my home nights after the attempted kidnapping of my boys. I wasn't taking any chances on a bomb being tossed through one of my windows.
Eddie said he had gone on duty at my home between 9 and 10 P.M. on June 30, which was his first untruth. He was no longer in my employ. I had replaced him with another guard.
Except for about 20 minutes when he went to Wagner's saloon down the road for a drink or two, Schwabauer said, he was on my property until 2:30 A.M. Nope, Eddie went on, he hadn't seen a living soul around my home all night —no lights were on in the house and nobody was on the front porch.
He said that he never went back to work for me and that he never got his final pay. The implication to the jury was that he had taken a runout after learning that I had kidnapped the Barber.
Mrs. Sczech was an unwilling witness, but Crowley got testimony from her that she worked at the Glenview place, which McFadden had rented, for 14 days-- from June 17 to June 30. Buck Hennchsen, who worked days on my property as a guard, got her the job, she said . A "Mr. Burns" was her employer, and she fingered McFadden as the same Mr. Burns.
She saw a lot of men around the Glenview house, she said, but mostly she didn't know their names. She identified a police photograph of a character she knew as "Larry Green" or "Larry the Aviator." That was Basil "The Owl" Banghart.
Mrs. Sczech said she sort of thought I had been in the Glenview house. She semi-fingered me, saying: "I am not sure whether I seen him there or not. This here fellow [me] looks quite a lot like him, still there is not quite so much resemblance". That was the way she testified. I had never been in the house, and haven't been to this day.
In questioning Mrs. Sczech, Crowley revealed that she made two contradictory statements to him, in writing, before the trial. I don't believe that even Crowley could have known when she was telling the truth and when she wasn't. At the trial, she testified that she finished her duties in the Glenview house about 6:30 P.M. on Saturday, July 1st, had a talk with Eddie and decided not to return to work at the place again.
The implication from the mother-and-son testimony was that they had read of the Factor vanishing act in the newspapers, that they suspected he was being held in the Glenview basement and that they dumped their jobs to keep out of possible trouble. Jobs were too scarce to be quit without good reason in those depression times.
Oh, well, Schwabauer and his mother were to change their stories again and again. But I didn't expect Buck Henrichsen to shove a knife between my ribs and twist it. I had never done anything but good for him. When he was broke and out of work, I gave him a job. In February, 1933, he came crying to me that a credit company was going to repossess his house-hold furniture for nonpayment of installments. I gave him $200 or $300 and I paid his grocery bills. His wife, Helen, had sent me a thank-you note.
Weeks before we went on trial in Chicago, my friends told me they believed Buck had sold out to the state's attorney's office. He was living at the Oak Park Arms Hotel and the Palmer House, eating steaks at the prosecution's expense. I couldn't believe it.
"What the hell," I told Stevens in the jail, "Buck would be lost in any hotel that cost more than $1.25 a night." I was wrong. Gilbert had given Buck expensive tastes. Henrichsen couldn't meet my eyes when Crowley called him to the witness stand. He was ashamed, but he went right along with the play to put me, Stevens and Kator in the electric chair for a crime that never was committed. Buck testified that I had instructed him to look up a house to be rented in McFadden's name. That was the
Glenview place, of course, but Buck's claim was news to me. Except when I signed as a rental reference, I had never heard of the damn house before the trial.
On June 30, the evening before Jake the Barber had had himself snatched, Henrichsen was in Jim Wagner's saloon during the early evening, he said. He told of seeing me there, along with Stevens, Banghart, Sharkey, Kator, Tribbles and other divided septums.
Following that, Buck said, he hadn't seen me until I sent word to him to meet me at Porky Dillon's home on July 5. He testified that he did and that he found me with
Dillon, Stevens, Kator, Sharkey and, probably, Ice Wagon Connors.
Q. [By Crowley] And what was the conversation you had between you and Roger?
A. [By Henrichsen] I was told to go to The Dells to pick up a man there at 9 o'clock.
Q. Who told you to do that?
Q. And, did you go to The Dells?
Q. Whom did you pick up?
A. Joe Silvers.
Silvers was one of the managers of The Dells and, the evidence showed, he was in the place on the night Factor disappeared. Silvers' name was brought into the trial, obviously, to indicate that he had put the finger on Factor for me to kidnap.
We never were able to find Silvers to use as a defense witness, incidentally. He went to Florida and vanished—vanished like a guy who was murdered, put in a concrete
shroud, taken out in a Capone-mob yacht and dumped into the Atlantic Ocean. That was what happened to him, according to the rumbles I later got in prison.
Another of the managers at The Dells was named Silversmith. He also figured in Henrichsen's testimony.
After picking up Silvers at The Dells on July 5, Buck testified, he took him to the Commercial Club at Golf Road and Milwaukee Avenue, where I was waiting with
Stevens, Kator and Sharkey. Buck said I had talked with Silvers for an hour. Two days later, Buck went on, he picked up both Silvers and Silversmith at The Dells and took them to the Commercial Club for another hour-long conference with me.
Q. Did you carry a gun with you?
A. There was a machine gun in my car.
Q. Whose gun was that?
In about mid-July, Buck testified, I gave him $1,000 and told him to buy a car. The innuendo to the jury was that the money came from Jake the Barber ransom.
That just about wound up the prosecution's case. There had been positive identification of Stevens, Kator and me by Factor, but he wasn't a person to be readily believed, to put it kindly.
Schwabauer, Mrs. Sczech and, especially, Henrichsen had dirtied us up, but nobody except Jake had accused us directly of kidnapping.
Why did Henrichsen lie against me? It will be shown later that he was rewarded by the Capone mob. As for Schwabauer and his mother, Judge Barnes was to rule on the evidence that they were impressed by Factor's money and awed by Gilbert's power.
A Hung Jury-and Hope for Me
When the prosecution rested its case, Prosecutor Crowley asked the court to dismiss all charges against McFadden. Judge Feinberg granted the motion. Old Chicken jumped out of his chair and went out of the courtroom with the speed of a cannonball. He'd had a bellyful of being tried for kidnappings about which he knew nothing.
Stevens said in the jail that night, with the trace of a grin: "Chicken really left us with a burst of speed. His coattails were sticking out so far behind him that four people could have played pinochle on them."
McFadden no longer was needed by Gilbert, Courtney and Crowley. His presence as a defendant had served its purpose. He had been used to tie me up with the Glenview house. His usefulness was ended.
The defense now went to bat. Our witnesses were good, I thought. Anyway, they told the truth and the jurors certainly seemed to pay close attention to them. Emily Ivins testified to sitting on the front porch with Clara and me until shortly before dawn on July 1. She was positive, explicit and unshaken by Crowley's cross-examination.
We had a couple of surprise witnesses, too. One of them was Policeman Gerard, of River Forest, of whom bearded Jake had asked help on the night of July 12 in LaGrange. Gerard was a real, honest-to-God, stand-up witness.
Gerard testified that Factor hadn't blinked at the police station lights as might be expected of a man who had been blindfolded almost constantly for 12 days. He described Jake's shined shoes, his clean hands and face, his manicured nails, his almost-immaculate suit, his seemingly-freshly-laundered shirt, his neatly combed hair.
A couple of jurors smiled, I noticed, when Gerard testified that a news photographer in the LaGrange station had pulled Jake's necktie askew, for purposes of kidnap realism, before shooting pictures.
Policeman Gerard, on cross-examination by Crowley, went through an ordeal that might have driven the usual man into an insane rage. Crowley hinted that Gerard lied and that he wasn't fit to be a police officer.
When Gerard left the courtroom, Gilbert's policemen grabbed him outside the door. They took him to Tubbo's headquarters on the second floor of the Criminal Courts building where, sworn testimony showed later, Gilbert called him a liar, told him he would be fired and said he had no right to testify as a defense witness without notifying the State's Attorney's office in advance.
While he was being denounced and berated by Gilbert, Policeman Gerard later testified, Jake the Barber walked into the room and told him in effect: "I will break you if it is the last thing I ever do and if it takes every cent I have."
For months thereafter, Gerard's life was made a hell. He was tried before the River Forest Civil Service Commission—on charges most probably pushed by Gilbert. Efforts were made to fire him from his job. He said that he had told only the truth, and the commission exonerated him. Gerard later became chief of police in River Forest, one of Chicago's finest suburbs.
Stewart bore down hard on Jake the Barber's testimony that he saw me standing behind the blanket immediately when his blindfold was lifted for writing of the ransom note. One of our witnesses was an eye specialist who said it couldn't have happened the way Jake said it had.
The human eye takes at least four or five minutes to adjust itself to the point of being able to see a face under such circumstances, the specialist said, and the prosecution couldn't budge him on cross-examination. Crowley seemed to me a little worried at that point.
Probably the best of my witnesses was Father Weber, a testy, peppery, white-haired, skinny, somewhat shrunken old man. As he testified, I glanced at the two Roman Catholic men Stewart had welcomed to the jury. They were as full of belief of Father Weber, I thought, as a couple of devouts approaching the rail for Holy Communion.
Father Weber testified that he had been with me in my home on July 8 and that he was convinced I had nothing to do with Jake the Barber's vanishing act. He said he believed I was being framed.
Father Weber came back with a cutie when Crowley asked him with a Christ-like air whether he didn't realize that Roger Touhy was a law-violator, a bootlegger. Father took a long, meaningful look at the jury box and at the crowded courtroom and then replied along this line: "I knew that Roger Touhy sold beer, and I also knew a lot of good people who drank it."
The good father got across the idea, discreetly, that he sometimes enjoyed a tall and frosty glass himself.
If I had had the Twelve Apostles to testify for me, they couldn't have given better evidence than Father Weber. He reported, truthfully, that I had knelt in prayer with him for the safety of Jake Factor and that I had sworn on the lives of my two boys that I had nothing to do with any kidnapping.
Another witness I had wanted to testify was Clara's aunt, Mrs. Margaret Morgan, who had visited with us during the time Factor claimed to have been snatched. Mrs. Morgan was available, but Stewart didn't call her. I don't know why.
As the trial moved toward a close, I was fed up to the Adam's apple with our lawyer. So were Kator and Stevens. Stewart wasn't any too happy with us, either.
Somebody told me that Stewart had gone to lunch with Crowley and that he chatted with Tubbo during court recesses. I asked Stewart about it and he advised me, again, to act like a defendant and not like a fool trying to be his own lawyer, as the Chinese saying went.
I wanted to go to the witness stand, tell my story and deny guilt. Stewart strongly advised me against such a move. If I testified, Stewart said, he would have to call Stevens and Kator as witnesses because he represented them as well as me. They had records for felony convictions, of course, and he couldn't take a chance of subjecting them to cross-examination, which would bring out their pasts and dirty up everybody concerned.
Touhy, with handkerchief over his face -- he had vomited after hearing the guilty verdict; Schafer and Albert Kator.
I talked over the situation with Kator and Stevens in the jail. They said for me to go ahead and testify. Their idea was that if I—maligned as "Black Roger" and "Terrible Touhy”—could prove my innocence by testifying, they wouldn't be convicted either. I was the Number One defendant and if the jury acquitted me, Kator and Stevens certainly would go free with me.
Stewart, although he knew I was innocent, wouldn't listen to me. His record in defending criminal cases shows that he seldom put a defendant in the witness chair. I threatened to stand up in court and demand of the judge that I be heard. If I did that, Stewart said, he would walk out of the court. The squabbling between us was endless.
When the last word by the last witness, including those called to rebut other witnesses, had gone into the record, it was time for the oratory. Stewart and Crowley spoke for hours—wheedling, pleading, cajoling.
Stewart concentrated in his summation on showing that Jake was a liar and a swindler, impossible of belief. He pointed out that Factor had lied to the press and he hammered at the eye specialist's testimony to show that Jake had lied in court.
He challenged the jury to believe Schwabauer's testimony against Miss Ivins' sworn statements that she had been with me and Clara through the crucial hours on the front porch.
The testimony by Father Weber and Policeman Gerard got a thorough review. Stewart screamed frame-up by Jake the Barber and the Capone outfit. He went over my protection of the labor skates from the mob, the effort to kidnap my children and everything else he had been able to get on the record through direct testimony or cross-examination.
Stewart told a couple of feeble jokes, too, and that gave Crowley the cue for his opening remarks. The prosecutor bounded to his feet, slapped fist against open palm and began: "Men, this is serious business—m-i-g-h-t-y- s-e-r-i-o-u-s business."
That set the tone for Crowley's finale to the jury. He went through every form of oratory from a muted whisper to a mighty roar. Kidnapping, he said, was the dirtiest crime on the books. He talked about motherhood and the sanctity of the home.
Crowley closed with the recommendation that the jury send all of us to the electric chair.
Came now the time for Judge Feinberg's instructions to the jury on the law in the case. He expounded at great length. He went over some of the testimony. He explained to the jurors that if they had a reasonable doubt—but not a silly, ridiculous or dubious doubt—as to the defendants' guilt, then the verdict should be "not guilty”. If there was no reasonable doubt, then a conviction was in order.
He explained that in Illinois a jury, in addition to deciding guilt or innocence, sets the penalty in a capital case—a case in which the death penalty is a possibility. The judge
pronounces the sentence, but the jury decides it. Judge Feinberg explained that, in case of a guilty verdict, the jury could sentence us to:
1. Life in prison (Under such a term, we would be eligible to apply for parole after 20 years, under an Illinois Supreme Court decision.)
2. Any number of years in prison, from five to 199. (We would be eligible to ask for parole after serving one-third of the set term—after 10 years on a 30-year term, for example.)
The jurors returned to their room to deliberate. Stevens, Kator and I sat around in the prisoners' bullpen off a corridor at the rear of the courtroom for a few hours. Then,
they took us back to the jail, offered us food, which none of us could eat, and locked us in our cells.
The big danger, as the hours dragged, was that the Factor jurors had found us guilty but were unable to agree on the penalty. Maybe they were 11 to 1 for the death penalty, with the lone holdout demanding 199 years instead of the chair. On the other hand, they might be 11 to1 for acquittal, with one character holding out for the five-year minimum.
After 24 hours, the guards and bailiffs handcuffed us and took us back to court. We asked if there was a verdict and one of the guards tipped us off: "Naw, the jury seems to be deadlocked. The judge is calling them in to inquire. Keep calm."
The jurors filed into the box and I gazed at the all-too-familiar faces. I had looked at them a lot in more than three weeks. The trial had started on January 11 and it now was February 2. Several of them looked at me sympathetically as they now returned to the box, and I felt heartened.
Maybe, just maybe, the jurors believed us by 11 to 1 and we would be free in a few hours after the twelfth was won over.
Judge Feinberg inquired of the jurors if they had selected a foreman. They had. The foreman stood up. The judge asked if a verdict had been reached. "Not yet," the foreman replied. The answer seemed to me to mean that there was hope for agreement and that the jury would be sent back to deliberate some more. I was quite hopeful therefor a second or two.
Bang! Down came Feinberg's gavel. He discharged the jury. Stewart tried to protest, but he got no attention. His Honor had spoken. The trial was ended. But there would be a new, long, expensive trial.
I looked around the courtroom and saw my two worst enemies. Tubbo Gilbert was rubbing his undershot chin. Jake the Barber was showing his big, white teeth in a beaming smile. Judge Feinberg's ruling meant that he could remain a fugitive from England for the duration of the second trial, and for our appeals, in case we were convicted.
Immediately after the first trial, I fired Stewart, in a nice way. "Scott, we're not getting along, and I want a new lawyer," I said. Well, maybe I didn't exactly fire him. He quit at the same time. He didn't want any more part of me, either. I was an uncooperative client: I had made up my mind, come fire or disaster, I was going to testify at the second trial and Stewart wouldn't hold still for that.
I signed a sworn affidavit in the Cook County Jail saying that I didn't want to be represented by Stewart anymore. Stewart signed an affidavit saying he was through with me, too. It was mutual.
Now, one of the firm principles of criminal jurisprudence is that a defendant must have a lawyer of his own choice. He cannot be required to go on trial with a lawyer he does not want. Hundreds of court decisions have affirmed that proposition.
Clara visited me, and I told her to get a new lawyer. I gave her the names of two Chicago attorneys and of Thomas McMeekin, the St. Paul lawyer who had been with our defense at the Hamm fiasco. Any one of the three would be okay with Stevens, Kator and me.
As she left the jail, Clara collapsed and was hospitalized. She underwent major surgery, but she managed to get word to McMeekin and the other two lawyers that I wanted to see them. They came to the jail—but they didn't get in. The warden had orders from the Criminal Court that I could be visited only by the lawyer listed as representing me—Stewart, that was.
When Stewart went to Judge Feinberg and tried to pull out of the case, the judge refused. Furthermore, Feinberg threatened to put Stewart in jail unless he continued to represent us. The judge also ordered Stewart to be ready for the re-trial on February 13, only 11 days after the first jury had been discharged. Stewart then asked for a change of venue, for a transfer to another judge. Feinberg refused. He also ignored my demand for a new lawyer.
Stewart, disgusted, decided he wouldn't show up in court. That didn't work either. Judge Feinberg had his personal bailiff deliver a letter by hand to Stewart telling him to handle the defense—or else. He had to obey. Away we went again. For the upcoming trial, I had a lawyer I didn't want before a judge who, I believed, hadn't given me a fair trial in the first place. It was unconstitutional. My codefendants, Stevens and Kator agreed with me. So did Stewart. But, anyway, we went on trial for the second time on February 13, 1934.
The lies against us at the second trial were astronomical. Witnesses—including Factor—changed their stories at will. Judge Feinberg didn't question the obvious perjury. And Factor and Gilbert had the biggest liar of all stashed away for Round Two.
The Witness Who Wasn't There
The Witness Who Wasn't There
Nobody gave a hoot, this time, how many Roman Catholics were on the jury, and there was a reason why. Father Weber had sent word to us that he would be unable to testify. His superiors had told him that he would be shipped off to a monastery if he attempted to speak up for us again.
Jake the Barber went to the witness stand and told the same, now somewhat frayed-at-the-edges, story of how he said he was kidnapped against his will from the Dells. When he reached the proper point in going through his testimony again, I expected the bailiffs to trundle out the plat, or diagram, of the Glenview house basement. They didn't. In fact, the house vanished from Jake's second-trial testimony. Crowley didn't bring it up and Factor didn't once mention it on direct examination.
He said nothing about the train whistles, nothing about the stairway with the tread that resounded strangely to a footfall, nothing about the six or seven steps, nothing about the shrubbery near the door, nothing about the location of the bathroom which he had told earlier of visiting so often during his travail.
When Jake came to the part about having identified me behind the blanket, he hedged cagily. He now indicated that his blindfold hadn't been too tight, after all; that some light came through to his eyes. And, it now appeared, he may not have seen me immediately after the bandage was removed from his eyes.
Jake ducked away from a glaring error which the defense had caught in the first trial. There was no sense in Stewart calling our eye specialist again. His testimony would have been pointless. Jake's switch took an important time-at-bat away from the defense.
On cross-examination, Stewart asked him if he hadn't positively identified the Glenview basement at the first trial. "Yes," Factor replied blandly. On the matter of identifying me, he insisted that he was telling the same tale about the lifting of the blindfold that he had told at the first trial. Judge Feinberg listened and didn't so much as reprimand him.
Under a screwball Illinois law, since changed, Jake was practically immune from conviction for perjury, no matter what he said. The law stated that a witness could testify at one time and later tell an exactly opposite, completely contradictory story under oath. Unless the state could prove which time he lied—and that often was impossible—he couldn't be convicted.
I had been warning my codefendants to watch out for another phony witness to come prevaricating along, a la the Hamm trial in St. Paul. Factor and Gilbert came through as I had expected. It happened when our trial was well under way. But first, a little background is necessary.
On November 15, 1933, a mail truck had been robbed of $105,000 at Charlotte, North Carolina. Blamed for the job—and guilty as a bank cashier with a credit rating in a gambling house—were Isaac "Ike" Costner, a Tennessee mountain whiskey moonshiner, and Basil "The Owl" Banghart, mentioned at the first trial as Larry Green or Larry the Aviator.
Ice Wagon Connors probably was in on the Charlotte deal, too, but somebody tied him up with baling wire, shot him as full of holes as a Swiss cheese and deposited him in a muddy ditch outside of Chicago before anything could be proved. Someday, in that Great Beyond they talk about, I hope to sit down for a quiet talk with Ice Wagon. I think I know who had him dry-gulched and I sure as hell would like to be sure.
Anyway, as the February winds blew into the Windy City of Chicago, Banghart and Costner got themselves arrested in Baltimore. They practically were asking for it, by boozing with women in their Baltimore apartment. The neighbors complained, the police moved in and the place was sprinkled like confetti with bank wrappers from the stolen money.
Banghart and Costner had been stupid, as are all thieves. Even the smart ones, like Willie Sutton was supposed to be, spend most of their lives in prison. I knew
hundreds of them in Stateville and few of them could make an honest living at anything more intellectual than digging ditches or cleaning out cesspools.
Organized gangsters with million-dollar bankrolls, the best lawyers and political power—such as the Capone mobsters—are the only ones who get away with crime consistently. And even they get nailed now and then by the Federal government for income tax dodges or deportable offenses.
Upon learning of the arrests in Baltimore, Tubbo Gilbert hastened there, taking Jake the Barber along. Joining them was Joe Keenan, the special assistant U.S. Attorney
General who had been appointed to bring an end to the scourge of kidnapping in the United States. It must have been a jolly gathering, with reminiscences about the Hamm fiasco at St. Paul.
Banghart had no reason for any interest in turning state's evidence against Stevens, Kator and me. He was under charges of robbery more times than most people go to the grocery store during a lifetime. He had escaped from the County Jail at South Bend, Indiana, after throwing pepper in a turnkey's eyes and he had beaten the wall of the Federal pen at Atlanta, Georgia.
No matter what he said or did, the law was going to throw the key away on Banghart. Costner, on the other hand, was vulnerable to a proposition from Factor. Only the North Carolina postal-truck thing and a moonshine rap were hanging over Ike. He might be able to squeak by with only a few years behind bars if he made a deal.
Jake the Barber and Gilbert spent two days with Banghart and Costner in Baltimore. Keenan got into the spirit of the thing. He allowed Tubbo to take Costner and Banghart back to Chicago—rather than send them to North Carolina for the postal-truck robbery! It was highly unusual for the government to relinquish custody of prisoners to a state when a Federal conviction was a cinch.
Evidence later developed that Ike Costner was promised he would be let off with five years for the robbery and freed of prosecution in the Factor case if he would testify against Stevens, Kator, Banghart and me. It was a questionable deal—but anything went to nail a kidnapper in those times.
After their tete-a-tete with the prisoners in Baltimore, Factor and Gilbert rode back by train with Costner and Banghart to Chicago. Tubbo boasted of that ride in an interview with the late Elgar Brown, famous Chicago American writer and war correspondent. Gilbert said in the interview that he sat on the train most of the time with Banghart. Jake the Barber concentrated on Costner. How would you expect a guy, smart enough to swindle $7,000,000 out of British investors, to make out against a Tennessee moonshiner?
Factor could be expected to win, of course. And apparently he did.
On the day that Factor and Gilbert brought the two witnesses back from Baltimore, or the day after, I was walking in the corridor leading from Judge Feinberg's courtroom to the prisoners' elevator during a recess. Ahead of me, I spotted Dan Gilbert and a man I never had seen before. I figured it might be another fake finger, so I hunched down my head, and hid my face with my coat collar. I heard Tubbo say—sotto voce, as the British write in those long, frequently boring novels in the Stateville library: "The guy in the light suit—that's Touhy". Gilbert was fingering me, I found later, for Ike Costner.
In my cell, I got the hell out of the light suit and put on a dark blue one. When I got back to court, Costner was the first witness. I didn't know what he was going to say, but my blue serge felt real snug and comfortable on me.
After some preliminary questions, Prosecutor Crowley asked Ike if he could identify Roger Touhy anywhere in the courtroom. Costner stared wildly around the room. He looked at the spectators, the bailiffs, the jurors and even the judge. He was searching, apparently, for a man in a light suit. I wanted to laugh, but I kept a straight face. Ike seemed to be bewildered.
The charm was broken suddenly. Our lawyer tapped me on the shoulder and said: "Stand up, Roger." There was nothing I could do but obey. I stood, and Costner fingered me, blue suit and all. I figured right then that Stevens, Kator and I were ticketed to sit down on 22,000 volts or else to go into dry rot in prison.
I always have been bitter and always will be about Stewart's making me a clay pigeon for Costner to shoot down. It wouldn't have happened, probably, if I had been on speaking terms with my lawyer. But I wasn't. I hadn't told Stewart about the fingering, and my switch from the light suit to the dark blue.
Stewart said he regarded it as psychologically important with the jury to have a defendant admit his identity at once, rather than wait to be pointed out. Maybe so, but I don't believe Costner could have identified me without my own lawyer's help.
Ike testified he had known Banghart for four or five years and that Basil The Owl had visited him in Knoxville, Tennessee, during mid-June. My brother, Tommy, Kator,
Ice Wagon Connors, Willie Sharkey, Jimmy Tribbles and others also came a-calling, Costner testified. That must have been a jolly group, too.
Now, the rules of evidence provide that a witness at a trial may not repeat any conversations which took place outside the presence of the defendants. The prosecution didn't dare try to put Stevens and me in Tennessee because we were supposed to have been in St. Paul, kidnapping William Hamm, at the time.
Therefore, Costner couldn't come right out and say that my brother, Kator, Banghart and the others had recruited him to help snatch Jake the Barber. Crowley, by adroit questioning of Ike, got the idea across to the jury, however. Costner said he drove to the Chicago area alone between June 25 and 28, went to Park Ridge and stayed at The Owl's apartment. He knew why he was in Illinois and what was going to be done, Costner indicated.
Why a tough Chicago-area gang should take the trouble to go all the way to Tennessee to persuade a hillbilly to join in kidnapping Factor was material for a comedy skit. Costner was a moonshiner and chicken thief, with no hotshot reputation for crime up until the Charlotte mail job. He conceded that he was a stranger to all of the purported kidnappers except Banghart. Why would they trust or want him? His story was ridiculous.
Ike said he was introduced to Stevens and me in Jim Wagner's bar. He said he slept at various houses, but that he couldn't identify the Glenview house, which had been so important for the prosecution at the first trial. He didn't even know the names of the towns out there, the witness said, and he was always getting lost on the streets and highways. As stupid a kidnapper as could have been recruited: that was Ike.
At about 11 o'clock on the night of June 30, he was sleeping in one of the houses and somebody—maybe Ice Connors—awakened him, Costner went on. He told of seeing Stevens, Kator, Banghart and me, adding that Banghart said—in our presence—"We are going to grab Factor." Ike said he got dressed and joined the group. I was driving his car, he said.
There was a wait of an hour or two by the kidnappers in several cars near The Dells, according to Ike. He said that a man presumed to be Silvers, one of the managers, twice came out of The Dells and talked with the kidnappers, describing Factor's Deusenberg and his clothing. Silvers was the character who reportedly ended up in the Atlantic Ocean in a concrete coffin.
Costner's story of the alleged kidnapping was about the same as Factor's. Ike said he had carried a shotgun and that he saw machine guns and other weapons. He testified that Factor was taken in his car and that I, Roger Touhy, was in the back seat with Jake.
He drove for quite some distance, Ike said, following directions from me, and stopped at a house into which Jake the Barber was hustled. No, Ike said, he didn't know the location of the house, he couldn't recognize it again because of the darkness and he hadn't gone inside the house that night.
Ike spoke in a low voice, with a deep southern accent. The jury of twelve Yankees had trouble understanding him. He tried to be a believable, straightforward witness, but he had handicaps. His biggest stumbling block was his ignorance of Cook County geography. He didn't know the names or locations of towns, railroads, landmarks or houses. When such points came up, he said in a whining voice, over and over again: "Ah cain't remember." As a liar, Ike was lacking in Jake's finesse.
Throughout his testimony, Costner tried to set himself up as the kidnapper described by Jake as "the good man" or "the coffee man." It was obvious at this point of Ike's story that somebody was lying. Factor had testified that the good kidnapper sat with him all of that first night, comforted him with conversation, brought him toast and coffee in the morning. But Ike said under oath that he hadn't been with Jake at all that night. Costner said, instead, that he stayed at another house, the location of which he couldn't remember, with people whose names he couldn't recall. He went back to the purported kidnap house the following night, Ike said, and drove in a motorcade that took Jake to a farmhouse about 50 or 60 miles away. No, no, he didn't remember where the new place was. Maybe he might recognize it if he saw it again.
Ike said he stayed in the place during all the time Jake the Barber reputedly was held captive there, or for 11 days. He said he went out on the lawn now and then but that he couldn't recall anything about the surroundings. He said—and stuck to it—that he didn't even know what color the house was painted. "Ah cain't remember," he said. The witness's tricky memory, or lack of rehearsal, tripped him on a number of points.
Jake said that he saw me and another man partly hidden by a blanket when he wrote the ransom note. Ike testified that there was a blanket in the room—over a window. It seemed apparent that he was not aware of the significance of the questions about the blanket. Jake had sworn that there was a lamp on the table on which he wrote the note. Ike said the light came from a ceiling fixture. Also, Costner said he never had seen Factor look up at me, or anybody else, while writing his note.
Those items, taken separately, may seem insignificant, but there were hundreds of other contradicted prosecution points throughout the trial. Added up, they became important in a monstrous pattern of perjury. When asked about Factor's physical condition, Ike said that it had been bad, very bad. He testified that Jake had been very sick, very weak, unable to eat heartily, very nervous, “shaking like a leaf” as he reclined on a bed in the second house. It was tear-jerking stuff, but it didn't fit well with Policeman Gerard's description of Jake when he showed up at LaGrange.
On the night of July 12, Costner said, he soaked the adhesive away from Jake's face with alcohol, put a new blindfold on him and drove the car that took the victim to LaGrange. Stevens and Banghart were with him, Ike testified.
I noticed that Basil The Owl was being dirtied up wherever possible. He had refused to turn state's evidence. He was a bad man. Costner, conversely, was being presented as "the good kidnapper," an approach that might make him more acceptable to the jury. It had audience appeal.
On the day after delivering Jake the Barber to freedom, Ike said, he went to Banghart's Park Ridge apartment and Banghart gave him $2,400. "I understood the money was my share of the ransom," Ike stated, adding that he carried the cash, in $20 bills, for a week and then put it in a bank.
The truth was that Ike hadn't been within several hundred miles of Chicago on the date Factor claimed to have been kidnapped, or during the following 12 days or at the time Jake told of being released. Costner was in Tennessee during all of that period. Ike went on in his testimony with the silliness story of making telephone calls to Jake, as "the coffee man," to collect another $50,000. He made all the arrangements, Ike said, but went to New York by plane on August 14, the day before the comedy over the phony bundle of boodle in the country.
As we defendants went back to jail in our handcuffs and chains after hearing Costner's lies, Stevens had a comment. "Magnificent," he said. "Magnificent." I asked him what the hell he was talking about, and he replied: "A magnificent frame-up, of course."
I yammered to Stewart to send some investigators down to Tennessee and check up on Costner. It was a fine idea, but there wasn't time. Ike had been a surprise witness, and there had been no opportunity for defense to investigate him in advance. It would take days, or weeks, to run down Costner's story in Tennessee. By that time the verdict would be in and it would be a bad one, I felt certain.
I Get 99 Years
I Get 99 Years
Steward slammed at Costner on cross-examination like a mad-at-the-world workman attacking a paved street with an air hammer in a "quiet please" zone. He showed that
Ike was a worthless bum, a faker, a thief, a mail robber and a stool pigeon.
The effort accomplished little. The prosecution already had conceded that Ike was seven different kinds of a scoundrel. Costner insisted that this time—just this once—he was telling the honest-to-God truth.
Stewart demanded to know whether Ike hadn't made a deal with Factor in Baltimore and on the train, whether he didn't hope to get a pass in North Carolina in exchange
for lying against Stevens, Kator, Banghart, me and others. "W-a-a-," the Tennessean drawled, he sure hoped he would get a break.
On his story of taking part in the fake kidnapping, Ike stumbled a few times, but he never fell down completely. His "Ah cain't remember" got him out of many a tricky spot and he didn't contradict himself too badly. Stewart couldn't break him. I sneaked a look at the jurors now and then, and I sensed that they were believing Ike. Maybe they thought his story was too fantastic for anybody to have made up.
As Costner left the witness stand, I recalled a favorite saying of my father: "The rabbit turned around and shot the hunter." Ike had won. He had been a powerful witness. Buck Henrichsen repeated his fabrications of bringing Silvers and Silversmith to see me at my request while Factor was away growing his beard. But, at the second trial, he added that he went along on the collection of $70,000 "ransom" from Dr. Soloway.
He was in a car with Willie Sharkey and Jimmy Tribbles when the payoff was made on the highway, Henrichsen said. They took the money in a suitcase to the Glenview house, Buck went on, and there he saw Stevens, Kator, Banghart, Connors and Porky Dillon.
Stewart got Buck to concede that he hadn't mentioned the ransom collection trip at the first trial. "I was trying to protect myself," he said.
Jake's testimony was only about one-fourth as long as at the original prosecution. The big gun at the second go around had been the moonshiner, not the swindler.
The absence of Father Weber from the second trial was a deep loss to us. He wrote to my wife that he was praying for us. But the lies of Factor, Costner, Henrichsen and others were getting through to the jury better than were the Hail Marys of the good priest. Sin was winning again. Policeman Gerard came back and repeated his testimony that the bearded Factor had looked well and smelled not badly at the LaGrange police station. Emily Ivins returned, too, and so did the other faithful.
(Editor’s Note: Officer Gerard died in 1979. He served as Police Chief of River Forest. )
It wasn't enough, and I told Stewart so. Stevens, Kator and I were going to be convicted, and probably put in the electric chair, unless we did something. I demanded that I be allowed to testify. Stevens and Kator wanted to take the stand, too. It was our only chance.
Our lawyer haggled with us. He wouldn't gamble on Crowley's cross-examination of my codefendants with their past records in crime. Crowley would tear them apart, he said. And if he called me as a witness, he would have to call Stevens and Kator, or leave them as sitting ducks alone, he said.
That was our lawyer's logic. It didn't make sense to me. Costner had identified all three of us positively as his accomplices in the kidnapping. Were we such gutless wonders that we wouldn't get on the stand and call him a liar? Factor's testimony had been bad enough, but Costner's was damning.
I told Stewart that I was going to stand up and demand of the judge that I be heard. "You can walk out of court if you want to," I said to Stewart. "I don't care three howls in hell what you do. I didn't want you at the start of the trial, and I don't want you now."
Stewart stalled a while, and then he had a brainstorm. He would call Basil The Owl Banghart as a witness. It sounded idiotic to me. Banghart was, in a sense, as much a defendant in the Factor case as were Stevens, Kator and I. He hadn't been indicted, but he had been accused by both Jake and Ike. Banghart had a worse, longer criminal record than either Stevens or Kator.
If The Owl had the courage to testify for the defense, what about us? Wouldn't the jury regard our silence as a sure sign of guilt? What were we—100 per cent cowards? Stewart mollified us. He had talked with Banghart and he promised us that The Owl's testimony would wreck Costner as a witness.
We consented to go along with the plan, since Stewart was a lawyer, and we didn't know a tort from a tart. Banghart went to the witness chair and swore to tell no lies. With his widow's peak hairline, his bony beak and his slowly blinking eyes beneath highly arched brows, his resemblance to an owl was remarkable. His manner was assured, his answers glib, his expression serious. He was an experienced witness.
He testified that he had known Costner for about six years and that Ike came to his Park Ridge home on July 19, the date I was jailed at Elkhorn, by a coincidence. The Owl denied that he had any part in kidnapping Jake the Barber or in collecting $70,000 ransom. After that, Stewart, with a triumphant expression, turned Banghart over to the prosecution for examination.
Chaos followed. If we had had the chance of a snowflake at a bonfire before, Banghart ruined it. It wasn't his fault. He was trying to help us, but he wasn't equal to it. Crowley got him to admit that he had given the state's attorney's office a statement saying he didn't know Kator, Stevens and me. Banghart now reversed himself and said
he knew all three of us. He thus was established as a liar at the outset.
Part of Basil's testimony seemed almost comical as I read over the transcript years later. Crowley brought out that Banghart hadn't worked for a living in 1932, '33 or '34. The Owl said with a trace of pride that he had a steady job in '31, however.
Q. Where did you work in the year 1931?
A. In the cotton-duck mill in the U.S. Penitentiary at Atlanta, Georgia.
The Owl said that he "left the prison without permission," or escaped, and was at large for more than eight months. Crowley brought out that Banghart currently also was wanted for breaking jail after blinding a guard with pepper at South Bend, Indiana.
Crowley asked Banghart to give his current occupation, and he got a silly answer. "I am a fugitive," the witness replied solemnly.
Q. Fugitive from where?
A. From justice.
Q. From what kind of justice?
A. The courts of Indiana, South Bend.
Q. They wanted you for what?
A. Automobile banditry.
Q. Anything else?
A. No—well, you might say breaking jail.
Q. At the time you broke jail, what did you do? Did you have a machine gun when you broke jail?
Q. Did it go off?
Q. Did anyone get hurt?
A. An officer.
"Too bad," said Crowley, glancing at the jury. He now had set up our witness as a prison escaper and a desperado who shot down a law enforcement officer. Basil wasn't doing well.
Crowley tried to get him to confess the $105,000 North Carolina mail heist. Banghart dodged the issue, saying it had no connection with the Factor case.
The dialogue got ludicrous again when Crowley asked him if he knew Ludwig "Dutch" Schmidt, later convicted for the mail robbery. Banghart said he did, having been in stir with Schmidt.
Ludwig "Dutch" Schmidt
Q. You were down in Charlotte with him, weren't you?
Q. [Incredulously] What?
A. That has not got anything to do with this [case].
Q. You mean Charlotte has not?
Judge Feinberg [alertly]: Are you talking about a girl or a town?
Crowley: Charlotte, South Carolina.
Stewart: North Carolina.
Crowley: I just got the states mixed up.
Amid such Abbott and Costello badinage, The Owl told the story which Stewart had said would wreck Costner. Ouch, what a boomerang!
Banghart said he had met me about a dozen times and that he believed I was with him in Wagner's place on the night of June 30. That was a lie. It hurt my case. I hadn't known The Owl from a truck load of jack-o-lanterns. After his falsehood about knowing me, Banghart gave testimony which since has been shown to be the absolute truth, although the jury didn't believe it.
The Owl said that Costner came to him with a proposition for getting some money from Jake the Barber. The newspapers had carried stories quoting Jake as saying that he had agreed to pay an additional $50,000. Banghart testified that he told Costner the deal looked too dangerous, but that Ike urged him for a week. He said that the Tennessean finally told him: "Now, this fellow Factor is willing to pay off and there won't be any trouble at all. Would you be convinced if I had you talk to him?" Factor and Costner already had discussed the deal, apparently.
On August 9, The Owl went on, he and Costner met Factor on 12th Street in the Chicago suburb of Maywood. He was introduced to Jake by Ike, and Jake said his kidnapping story was doubted by certain Federal people and by lawyers for the British government, Banghart recalled.
Jake said he was willing to pay $50,000 to make the snatch look completely legitimate, according to Banghart. The proposition would seem reasonable, of course, in that $50,000 would be pennies as against Factor's $7,000,000 British swindle—and nothing as against the prospect of many years in prison if the kidnap hoax collapsed.
Q. What else was said out there [in Maywood]?
A. Well, he [Factor] said there was a lot of fellows he could get for a lot less money, but he couldn't depend on them, and he explained to me what he wanted done.
Q. What did he want done?
A. He wanted us to call him and build up a story. He said the wire would be tapped and so on and that he had a couple of friends to deliver this money to us that would not be armed.
Q. What else was said?
A. I objected. I said: "Well, I don't want to. . .get shot in the head," and I said: "I don't want to harm any of those fellows who have been arrested with Touhy. You know and I know that they did not kidnap you."
[At the time of this conversation in Maywood, Stevens, McFadden and I were under arrest in Milwaukee, charged with the Hamm kidnapping.]
Banghart continued with his story of the conference with Jake Factor: "Well, I told him I wouldn't do it if it was going to harm these men that had been arrested and he said: 'Why, I never will identify anybody. . .'I told him: 'You know, I don't know if you were ever kidnapped or if you was not' and he didn't want to talk about it at all. He said: That has not got anything to do with our transaction.'"
Banghart said he assumed the $50,000 would be delivered by law enforcement officers, presumably government men.
Q. [Crowley] And you, a fugitive from justice, were going to accept money from government men?
Q. Go ahead.
A. But he assured me that there would be no guns. . .and there wouldn't be any shooting. Of course, there would be a little chase and an effort of some kind made.
Q. It was going to be an act?
A. That is it.
On the street in Maywood, Banghart testified, Jake the Barber slipped a roll of $5,000 cash to Costner as a down payment. The remaining $45,000 was to be split equally between himself, Costner and Ice Wagon Connors, The Owl said. He told of joining with Costner in making telephone calls to Jake. He knew that law enforcement officials were listening in on the calls, Banghart said. It was part of the act.
Q. So that you were fooling Captain Gilbert and all the rest of us. This was all in fun?
A. I think Mr. Factor was the one who was fooling him [Captain Gilbert].
Crowley said he was curious as to why Factor selected Banghart to be one of the persons to take part in the $50,000 ransom collection, and The Owl gave a reasonable answer: "Well, the reason he said [in Maywood] that he preferred me is that Costner had told him I was a fugitive." That made sense. Banghart, a wanted jail breaker, was in no position to squeal on Factor. Factor could put a hammerlock on Basil any time he wanted to apply it. It was a criminal's way of doing things—of taking out insurance against a double-cross.
The Owl said that he and Ice Wagon Connors tried to make the collection on August 15, after Costner had gone to New York. The Owl didn't get the $500 in the fake parcel, he said, and he didn't know whether Ice Wagon managed to retrieve it.
I watched the jurors while Banghart was testifying. All of them smiled and a couple of them laughed aloud. The judge held a handkerchief over his mouth, obviously to conceal mirth. The Owl had done his best—but it was no good.
Banghart's testimony was anticlimactic. It seemed to be contrived—a last, desperate effort by the defense to make a bum out of Costner. The humor in the situation was unfortunate for Stevens, Kator and me. I had a sinking feeling that the jurors believed we had put a comedian on the stand to amuse and divert them—to sidetrack them from real issues.
Stevens, Kator and I were hooked. We couldn't beat Factor and Costner. Not with the added burden of Banghart's testimony on our backs. We gave up any idea of
testifying on our own behalf. It was too late.
We listened to the usual roars of oratory by the lawyers. Crowley called Banghart a liar. Stewart said that Factor, Costner and Henrichsen were liars. It didn't mean a damn thing. The jurors already had made up their minds. In his closing remarks, Stewart pounded at the fact that no record was kept of the serial numbers of denominations of the ransom bills.
He also talked scornfully about the fact that no statement in writing by Factor, after he showed up at LaGrange, was produced at the trial. Such a statement must have been taken. It was police routine in all such cases. My theory was that Jake signed a statement saying that he recognized no kidnappers. If so, it would have been powerful defense evidence.
Crowley's final words were a dramatic demand for the death penalty. The jury reached a quick decision. The verdict: Guilty. The sentence: 99 years in prison for each of us. Some of the people in the audience cheered. I didn't get a look at Tubbo or Jake the Barber, but they must have been smiling. As the bailiffs led us out of court into the corridor leading to the bullpen and the County Jail elevators, I threw up. Kay Hall, a girl reporter for the Chicago Times, was near me. I'm sorry that I messed up her shoes. I couldn't help it.
My Stolen Years in Prison
My Stolen Years in Prison
A prison, no matter how modern and progressive, strips the last shred of dignity from a man. I learned that when they had me take off my clothing in the prison diagnostic depot at Joliet. They gave me a short haircut, clipped the hair from the rest of my body and put me through delousing.
An inmate in a maximum-security prison is always under a gun. There is a gun ready to drill him dead if he makes a wrong move as he walks across the prison yard, as he sits in his cell, as he hunches in silence over his plate of food on a stone-topped table in the dining room at Stateville.
The cells are six feet wide, 12 feet long and 14 feet high. In most of those tiny cubicles are caged two or three men. An open toilet bowl, without screen, stands in one corner. I've often thought during my quarter century of confinement that having a bowel movement in private would be the world's finest luxury.
Maximum security requires that every man be in his cell from before dusk until after dawn. In Stateville, that meant at least 14 hours every day. Fourteen hours with the same man, or men. It is a marvel that they don't kill each other.
A man is nobody, a number. I became 8711. After I went over the wall and came back, they added an "E", for escapee, to it. Also, the color of the identification shingle above my cell door was changed from white to red—red for danger.
I'm not meaning to beef about Stateville, in particular. I have no basis for comparison, since I was never in any other prison. Convicts who have made the circuit of pens told me Stateville isn't a bad place, comparatively.
Many convicts learn to do what is called "easy time" in prison. The day comes, after months or years, when they lose their mental anguish, get rid of their bitter resentments, shrug off the daily indignities. They learn to live placidly behind bars, to make use of the advantages that modern penology offers.
It never happened to me. I never made a good adjustment. I tried to obey the rules and I did my work as long as I had a job assignment. But the thought nagged me constantly that I was innocent, that I had been framed.
My souvenirs from the F.B.I, boys—spinal injuries—gave me hell. The prison doctors made X-rays and sent the plates to Chicago to be read by experts. Back came the word. Medical science could do nothing for me but "a warm, dry climate might help the patient's condition." A joke, eh? I had 99 years—stolen years—ahead of me in Stateville. Because of my physical condition, I was taken off all work details. I listened to radio news broadcasts and I read the newspapers, but I didn't have the energy or ambition to go to prison school. It seemed that I couldn't focus on anything. There were no more than a dozen inmates with whom I was friendly during all of my prison time.
There is humor in prison, and I got to appreciate it. Gambling—without money—is one of the funniest things. One convict will say to another, "I'll bet you 16 glasses" on a prize-fight or a ball game. The loser must drink 16 brim-full glasses of water within a time limit of, say, 20 minutes. Or the pay-off may be touching the toes with the fingers 100 times without bending the knees. I heard of a pickpocket who paid a bet by using his left hand only in the dining hall for six months. When the guy left stir, he could pick pockets equally well with either hand, they said.
Nights are the worst time in prison. Cons yell in their sleep. Some of them weep and call out for their mothers. The sense of shame for the present and remorse for the past rides them constantly.
My point is that any prison is hell. Stool pigeons are everywhere and homosexuality festers. Boredom and regimentation are constant. Men go no place in prison; they are herded. Herded at meal times, herded at recreation, herded at work, even herded at chapel.
The next time you read of convicts being babied or mollycoddled in prison, don't believe it—at least so far as Illinois is concerned. Torture chambers aren't needed to make penitentiary life a constant punishment. Confinement—the segregation that means you are unfit to associate with your fellow men in the free world—is enough.
Warden Joseph E. Ragen of Stateville never was a buddy of mine. He has no pals among inmates. But he has one idea with which I heartily agree. Every inmate should be celled alone in prison. Decency demands it.
Soon after I was outfitted "convict-style," the psychologists examined me—"bugged" is the verb used by cons—at the diagnostic center. I kept telling everybody I was innocent, which is what every incoming con says. One of the head-shrinkers told me: "Settle down, Touhy. Learn to do your time the easy way, a day at a time. Don't throw your money away on legal appeals."
The chief shrinker asked me if I would take a lie test, and I jumped at the chance. Leonarde Keeler, the perfector of the polygraph, came to see me from Chicago and said the test would be made the following Friday. He said it would be okay if I had an outside observer present and I picked Tom Reynolds, the labor skate with the movie operators' union.
Full of hope, I wrote to my sister, Ethel, and arranged for her to bring Reynolds to the diagnostic depot on the designated date. It didn't work out. On the day before the scheduled interview I was shipped from the depot to Stateville, about 10 miles away. I beefed about being beaten out of the chance to show my innocence under the polygraph and one of the shrinkers told me: "You're too anxious, Touhy."
At Stateville, I was confused, bewildered for days. I tried to figure out what the hell had jinxed me. Under Illinois laws, it would be 33 years, or a third of my 99-year term, before I could even ask for a parole. I tried to think out what had happened to me and I finally hit on a reasonable theory. It turned out to be exactly right.
Jake had gone to the Capone mob for help in faking a kidnapping in order to beat extradition. He was close to Murray Humphreys, Sam Hunt and the others.
The syndicate big-shots would have no part of actually pulling a kidnap job not even a hoax. Jake was advised to talk things over with Sam Hare or Joe Silvers or Louis Silversmith, or all three, who ran the Dells.
Buck Henrichsen formerly had hung out at the Dells. He once was chauffeur for a politician who gambled at the place. Buck was an ideal man to set up the hoax. He
had rented houses for the labor skates, and he would have no trouble providing hideouts for Factor. Also, he could provide men with guns who would make the kidnapping look legit.
Henrichsen had brought in Sharkey, Stevens, Kator, Tribbles, Connors and some of the other deviated septums. They carefully kept the stunt secret from me because I would have put a stop to it. Factor had paid the $70,000 to vanish for 12 days. After appearing with his beard at LaGrange, he told the story of the demand for another $50,000—as an ace in the hole if he needed it. He did need it, when the British bulldog kept nipping at his heels. He used the $50,000 gimmick to build up his story.
Through Henrichsen, probably, Ike Costner and The Owl Banghart were engaged to collect the belated pay-off.
They hadn't been in on the kidnap fake and, if caught, they would be unable to expose the details of the hoax, such as Jake's hiding places. Ike and The Owl were former prison pals of Ice Wagon Connors. They had brought Connors in on the deal, probably without Factor's knowledge. Jake had crossed them up by sending a dummy package of $500, instead of the big pay-off.
I can't say for sure whether the original conspiracy included a frame-up for me. It is possible that I was an added starter in the thing. It must be remembered, how-
ever, that within a few hours after Jake the Barber vanished, Gilbert accused the "Touhy gang" of responsibility.
The only loose end left hanging around was Ice Wagon Connors, and he had been murdered. I certainly am looking forward to that chat on a cloud with Connors.
The ridiculous spectacle of my trial at St. Paul for the Hamm snatch had allowed plenty of time for Jake's identifications to be arranged. The testimony of Henrichsen, Eddie Schwabauer and Mrs. Sczech—all later proven to be liars—was obtained in advance. The Glenview house became an added tidbit to entrap me. Stevens, Kator and I became the patsies. Banghart was thrown into the pot after he refused to "cooperate" in giving false evidence.
All of that theorizing made sense, but I couldn't substantiate it. Stevens and Kator never had admitted a word to me about helping fake the Factor snatch. I couldn't communicate with them after I reached Stateville because Stevens was sent to the old prison in Joliet and Kator to the downstate Menard penitentiary at Chester.
Attorney Stewart came to visit me with my two sisters. He said he was filing an appeal with the Illinois Supreme Court. I tried not to be bitter toward him, but I said: "No, you're not, Scott. We're through. I want no part of you." He made the appeal anyway, basing it on the fact that my constitutional rights were violated because I was denied a lawyer of my choice at the second trial, and on other grounds. The appeal was turned down after a brief hearing —and it was the last time that the merits of the case were heard for nearly 20 years. After that, my petitions invariably were denied without a hearing.
That phrase—"denied without a hearing"—was to become poison to me. No court in Illinois would listen to me after the original turn-down. Neither would the United States Supreme Court.
Banghart went on trial before Judge Walter P. Steffen in Chicago on charges of kidnapping Factor. Costner's sister, Ella, came up from Tennessee and testified that Ike and The Owl had been in and around Knoxville and Gatlinburg during all of the so-called Factor kidnap period.
She had affidavits from 15 other Tennessee people saying the same thing and the defense offered to bring all of them as witnesses. The judge refused to allow a delay in the trial to round up the 15. The Owl was found guilty and sentenced to 99 years. Then they took him to Charlotte and tacked on 36 years for the North Carolina mail heist. He wound up at Menard with Kator.
Costner got the dirty end of the stick from the Federal government, and I couldn't feel too sorry for him. A judge at Charlotte socked him with 30 years. Ike screamed in protest that the Department of Justice had promised, to let him off with five years in a trade for his testimony in the Factor case. The judge wouldn't listen and the D. O. J., as far as I know, didn't lift a finger to help Ike. Dutch Schmidt, another of the Charlotte heisters, got 32 years. He and Costner went to the Federal pen at Leavenworth, Kansas. Dutch was to become important to me years later.
What about Jake the Barber? A-a-a-h, he wound up with a sweet deal. Even after the convictions of Stevens, Kator, Banghart and me, the Cook County authorities claimed they still needed to keep Factor in Illinois. It might be necessary for him to testify against us on appeal, it was explained.
The government sent Jake to the county jail at Sycamore, Illinois. He stayed there for two months, technically in custody. Buck Henrichsen went to visit him and got "loans". Eddie Schwabauer was a visitor, too. Those two characters weren't letting loose of a good thing.
At the end of 60 days, the government had not honored England's extradition warrant for Factor. Jake went free. Under the law, he never could be collared again for return to the British Isles. He had it beat for all time. He was free to go forth and swindle people again—which he did, and for which he later went to prison.
Another incident in Jake's strange life took place in 1940 when he applied in Chicago for a permit as a whiskey distributor. Among his character witnesses—to put him on a pedestal as a lovely, honest, patriotic, sweet-smelling citizen—was listed Tubbo Gilbert. The hearing commissioner turned Factor down on grounds that he could not be believed under oath.
Ironic, wasn't it? Jake the Barber was too big a liar to be allowed to peddle booze, but he was believable enough to swear four men—Stevens, Kator, Banghart and me—into prison for a total of 396 years!
As the months and years trudged by in Stateville, I became, as many long-termers do, a cell-house lawyer. I studied law books. I got transcripts of the testimony at my trials. I became a sort of expert on the writ of habeas corpus, one of the most precious rights Americans have, although few understand it.
It is the citizens' protection against unlawful detention—against a person being held by police for days of third-degree questioning, against an illegally convicted defendant being buried in prison for life without recourse to justice. On a writ of habeas corpus, a person in custody can obtain a hearing before a court of law.
That was what I needed—a hearing. On every appeal I made, the answer was the same: denied without a hearing . . . denied without a hearing . . . denied without a hearing. How could I get justice if no court would listen to me? I was nailed in a box and I had no hammer to batter my way out. Thousands of Illinois convicts were in the same fix.
Ella Costner's testimony at the trial of The Owl was terrifically important for Stevens, Kator, Banghart and me. If she, and 15 other witnesses, would testify that Costner and Banghart had been in Tennessee from June 30 to July 12, 1933, it meant that Ike Costner, star witness, had lied in the second Factor trial.
My trouble was that I couldn't get into court to have such evidence heard.
In 1935, Banghart tried a brand new escape caper at Menard. He got into a big, heavy truck on the prison grounds, aimed it at an iron gate that led to freedom and stepped on the gas. Wham! Bang! Crash!
The truck was ruined when it hit the iron gate. The Owl damn near killed himself. But, the gate won. It wasn't even dented badly. They put Basil back together again in the prison hospital and sent him to Stateville.
The maximum security at Menard wasn't maximum enough for Banghart. It wasn't maximum enough at Stateville, either, as things turned out.
I met him for the first time in the yard at Stateville. The only time I had seen him before was when he had given that well-meaning—but gawd-awful—testimony at the second trial in Chicago. I asked him why he had said those things, and he replied: "I understood you guys needed an alibi. I had never seen you before but I tried to help you. I had nothing to lose." That was why he had testified that he knew me and had seen me on the night of June 30 at Wagner's bar. He had thought the testimony would alibi me for the Jake the Barber snatch.
The Owl said it was true that he and Costner had been together in Tennessee during the time Factor had been growing his beard. He told of going to wrestling matches, of celebrating the Fourth of July and of dating Tennessee belles while Ike was along.
At about that time, my wife, Clara, got a long distance call from a Knoxville lawyer, Homer Atkins. He wanted her to meet him in Washington, D. C. and she went there, taking Tommy and Roger, Jr., with her. They stayed at the Ambassador Hotel, and the kids were entranced. Clara and I had taken them to the same hotel on a Washington sightseeing trip and they remembered it. They didn't know I was in prison, and they kept asking such questions as: "When will we see Daddy again, Mommy? Will Daddy come here? Will he take us to Hall's and the Occidental to eat? Will we see the Capitol and the Supreme Court and the White House again?" If Clara's heart hadn't been broken already, it would have been then. She had to tell the boys that they wouldn't be seeing me in Washington.
Attorney Atkins said he had absolute proof that Ike Costner had been in Tennessee at the time of the alleged kidnapping. Atkins and my wife went to Attorney General Cummings and told him of the new evidence. Cummings said he would look into the matter but he never did, so far as the record shows.
Atkins came to see me in Stateville. "Touhy, you'll be out of here in a few months," the Tennessee lawyer said. He thought he was telling me the truth, and I believed him. That was before I had been completely disillusioned by the "denied without a hearing" responses to my appeals to the courts.
When stories of my appeals showed up in the papers, I was called "Black Roger" or "Terrible Touhy" or referred to as a notorious gangster. No judge would stick his neck
out to do anything for me under those circumstances. The collective mind of America had been poisoned against me.
In about 1936, Clara retained Thomas Marshall, a fine Chicago lawyer. He was convinced from the start that I was innocent, but we needed to convince another person —a judge. I told Marshall that I thought it was senseless to go to bat on another appeal until we had put a mass of evidence together. "We need to have a solid, substantial case of innocence," I said. "The evidence has to be somewhere, if only it can be found."
Marshall agreed, but he was a busy lawyer with a top-drawer list of clients. It wasn't his job to go digging up evidence. So he got approval from the prison authorities for Morris Green, a private detective who once had been a lawyer, to visit me. Green turned out to be a jewel, a really rich prize.
Morris seemed a bit cynical when he first came to see me. He sat across the visitors' table from me in the long, narrow room where 50 or more convicts can talk with their lawyers or with their relatives on approved visiting days. I could see that Green wasn't impressed with his mission. He knew—and so did I—that convicts always are screaming "bum rap."
"Okay, Touhy," he said. "What do you want me to do? Get you out of here the day before yesterday, I suppose." I explained quietly that I didn't expect any miracles. What I wanted was a thorough, painstaking investigation. I told him about Ella Costner's testimony and of the word from the Knoxville lawyer, Homer Atkins. Morris eyed me narrowly and I was glad that he did. If I could convince him of my innocence, it should be a cinch to persuade a judge. I suggested that he get in touch with Stevens, Kator, Buck Henrichsen, Mrs. Sczech and her son, Eddie Schwabauer.
Green jotted down the names, grunted, said goodbye and left. He didn't seem to have been impressed, but in two weeks or so he was back. This time his attitude was different. He had a smile. He was almost jubilant as he sat across the table from me.
"Hi, Touhy," he said. "Hi! Say, you really are innocent, aren't you? I've been talking to some of those people you told me to see. This case was a stinking frame-up. I have the facts to prove it."
My blood temperature went up a few degrees, I guess, when I heard those words. I figured now—at last—that I had Factor, Gilbert, Courtney, Costner, Henrichsen,
Schwabauer, Mrs. Sczech and all the rest of them beat. I was happy. I had convinced a private eye, and they are among the most doubting of all people.
Morrie turned out not to be really a cynic. He was a kind, considerate, conscientious man with a deep hatred of injustice. There had been bitter disappointments in his life, and he had understanding for unfortunates like me. People expect to be bled white by private detectives and I was in no position to object to being gypped. Although my legal expenses had been enormous, I still had about $50,000 which my family had salvaged from my ruined beer business. But, Green charged only reasonable fees and he didn't pad his expense accounts.
One of the people Morrie had interviewed was Buck Henrichsen, at Bill Skidmore's Chicago junkyard near 26th Street and Kedzie Avenue. The junkyard later was shown in Federal court testimony to be a pay-off spot for pimps, bookies and other gambling racketeers, receivers of stolen property and assorted thieves.
Buck had a soft job at the Bon Aire Country Club, a fancy gambling joint with swimming pool and golf course near the Chicago suburb of Wheeling. It was one of the mob casinos that Gilbert never raided during his 18 years as chief investigator. Wasn't that a coincidence?
Henrichsen died in 1942, but his widow, Helen, signed a sworn statement on my behalf. She said Buck gave her to understand that Gilbert interceded to get him the job.
Why would Gilbert do a favor for Henrichsen and why would the mob find a payroll spot for Buck? Judge Barnes decided that it was a pay-off for Buck's testimony against me.
Green said he told Henrichsen that they both knew I was innocent and that Henrichsen ought to do the decent thing by telling the truth. Green continued in sworn testimony before Judge Barnes: "He [Henrichsen] told me that he has got a wife and three or four kids—I don't remember [which]—and that he has got a job, that he owes a duty to his wife and family, and he couldn't jeopardize his job or antagonize Gilbert."
Green, under interrogation by one of my lawyers, Frank Ferlic, also quoted Buck as saying some other interesting things:
Q. Did he [Buck] at any time tell you about having gone down to the Sycamore jail to see Factor?
A. He says he used to go there and get money and he used to meet him [Factor] on the stairway.
Q. Did he say anything about anyone else going down there with him?
A. Yes, Eddie Schwabauer.
Q. Schwabauer got money, too?
A. That I couldn't say.
Q. Did you ever have any conversation with Henrichsen about his testimony in the Touhy case?
A. He said he had to testify the way he did.
Q. You wanted to get a sworn affidavit from him, didn't you?
A. That is right. He said he had the choice of being a defendant or testify the way he did and eat steaks. [Buck was referring to his luxury life in the Palmer House and the Oak Park Arms Hotel while in "protective custody" as a prosecution witness.]
Q. Did he [Henrichsen] tell you who gave him that advice?
A. Gilbert and Wilbert Crowley.
Q. He [Henrichsen] made it clear, did he, that they were the ones who gave him this advice?
A. They told him he would be indicted for the same crime and be a defendant right along with . . . Roger Touhy and the other fellows.
Gilbert and Crowley denied Henrichsen's statements, as quoted by Green. Nevertheless, Green's testimony had a powerful effect on Judge Barnes' decision that I was innocent. The judge said so.
Anyway, what Morrie Green learned from Henrichsen was only a tiny part of the private eye's contribution to my case. The job he did on Schwabauer and Mrs. Sczech was truly remarkable. Morrie was a great detective, a truth-seeker who would not be denied.
Enter Johnstone-and Hope Again
Enter Johnstone-and Hope Again
Morris was extra-jubilant when he told me of having interviewed the mother and son. He was grinning like a lifer with a full pardon in his pocket. Both Mrs. Sczech and Schwabauer had admitted to Green that they had lied at my trials. They had told the truth at last.
"I didn't have much trouble with them," Morrie said. "I told them that I had the proof of your innocence. They admitted almost right away that they were perjurers."
Within an hour after the kidnap fakery at the Dells, Mrs. Sczech said, Factor had arrived as a voluntary guest at her Des Plaines home. Two or three of the divided septums had been with Jake, she recalled, and he hadn't been blindfolded or bound. Factor had remained in the house from about 2 A.M. until after evening darkness of that day, Saturday, July 1, 1933. He had been free to come and go and to use the telephone. Nobody had restrained him in any way, the mother and son said.
Green now had positive proof that Jake the Barber had not been kidnapped. He hurried to Attorney Marshall with the new data.
Mrs. Sczech and her son were willing to sign sworn statements, they said, but they were edgy, for obvious reasons, about doing so in Chicago. They wanted to get out of town.
Marshall drove Eddie, his mother and Green to South Bend, Indiana. There was a conference in the office of a lawyer friend of Marshall. The lawyer was a member of the United States Congress. The mother and son made signed, sworn affidavits.
Schwabauer stated that Henrichsen called him to Wagner's saloon about 11 P.M. on June 30 and told him that a rich man was in trouble and wanted to disappear for a while. Could the man hide out in Mrs. Sczech's house for a few days? There would be money in the deal. Eddie said he okayed the proposition. Henrichsen did not mention Factor's name, Eddie added, and went on: "He [Buck] told me not to say anything to Roger Touhy about it."
Mrs. Sczech signed an affidavit stating that a man arrived at her home, by prearrangement with Henrichsen, in the early morning hours of that July day. She fixed a bed for the stranger in a second floor room and he retired, Mrs. Sczech stated.
(Editor Note: Walter “Buck” Henrichsen, age 43, died on December 29, 1942 of a heart attack while working at his war time job as an electrical contractor. It is unknown if he died of stress related to Roger’s escape from prison. Henrichsen, who was working under the name Bill Henrichsen, and his wife and three children had been under police protection since Touhy’s escape. He was living at 7323 Osceola Avenue at the time.)
She, her husband and their teen-age son were in the house alone with Jake the Barber until Eddie came home and went to bed about 5 A.M. Factor had slept in an unlocked room, without a guard.
Mrs. Sczech had gone shopping in the morning. She picked up a newspaper with a banner headline saying that Jake had been kidnapped. There was a picture of Factor on Page 1, and she recognized it. She went home, according to her affidavit, awakened her son and told him: "Tell Buck Henrichsen to get that man out of my house. I won't have any part of it."
All of this happened, it should be emphasized, in Mrs. Sczech's Des Plaines home, and not in the Glenview house, where Jake the Barber had testified so glibly to being confined, to visiting the toilet, to hearing the train whistles, to brushing against the shrubbery, to being threatened with ear-clipping, to hearing the strange-sounding footfalls on the stair tread.
The Glenview house was about five miles from Mrs. Sczech's home in Des Plaines. Buck came to her place that afternoon, Mrs. Sczech said, and there had been a conference between him, Factor, Willie Sharkey and Ice Wagon Connors. Buck told her, she testified in the affidavit, that Factor would be taken away after dark.
Eddie stated in his affidavit that Henrichsen returned again between 8 and 9 P.M. with Connors and that another man may have been in a car outside. Jake the Barber—unfettered, unblindfolded and seemingly unconcerned—had walked out of the house and been driven away, Eddie said. His mother had been in the house somewhere, he added. Green testified later in court that Mrs. Sczech gave her affidavit freely but that she seemed to be apprehensive.
Q. What was she afraid of?
A. Bodily harm.
Q. From whom?
A. From the syndicate and the State's Attorney's office.
Q. Did she tell you she was afraid of bodily harm?
A. That is why we took the statements out of town.
Q. What about Ed Schwabauer?
A. The same goes for him.
Green explained that Mrs. Sczech and her son wanted to be protected until after their affidavits were filed in Washington. That was a sensible precaution. Few, if any, terrorists have the courage to harm or murder witnesses in United States Supreme Court cases.
Morrie tried to take Eddie and his mother to Canada for safety, by way of Detroit. Their car was turned back because they had no proper papers, or a valid reason to visit the Dominion. Green drove them back to Kankakee, Illinois and, finally, to Chicago.
Green now had proved me innocent, for all practical purposes—but he was far from finished. He interviewed Stevens and Kator in prison. I wasn't surprised, but I was a little hurt, by what Morrie learned from them. They had, in fact, been in on the Factor hoax. Buck Henrichsen had brought them into the deal. They had shared in the $70,-
"We were afraid to let you know," Kator told me later. "Anyway, what in the bejesus good would it have done? We were hooked, especially after Ike Costner testified.
For Green, Kator pinpointed the house where Jake the Barber had spent his 12 beard-growing days to beat the British government. It was a place at Bangs Lake, Wauconda, Illinois, about an hour's drive from Des Plaines.
The owner of the house and an employee, according to Green's sworn testimony, said that Factor had been a free-to-come-and-go guest at Bangs Lake. After dark, they reported, Jake the Barber had taken walks around the town for exercise. He had played cards with his "captors," the witnesses told Green, and there never had been a blindfold on him.
For this restful vacation enjoyed by a swindler, I was serving 99 years, as were Stevens, Kator and Banghart. Costner, the Judas witness, never had been tried for the Factor snatch, which was understandable.
But Morrie Green's biggest accomplishment came when he located two men who billed themselves in Chicago taverns as "The Two Little Tailors." Fast patter, jokes and funny songs. They were Harry Geils and Frankie Brown. The depression had knocked them out of their regular jobs back in 1933, and they had made themselves into entertainers.
Buck Henrichsen had come to them with a proposition that they go out in the country to entertain a wealthy man, they said. In the basement of the Wauconda house, they had met Jake the Barber, bearded but happy. There had been no blindfold, no bonds, no guns in sight. Factor had given them money, drunk Johnnie Walker whiskey and played cards. They had visited him several times.
With the evidence that Green now had dug up, any jury in the land would have acquitted me. I felt certain that any judge would turn me loose if the facts now could be presented in court. But, Morrie wasn't finished. He wanted more, and I told him to go ahead.
Among the many Chicago people he contacted were Sergeant Walter Miller and Lieutenant Thomas J. Maloney, who had been Chicago police officers during the summer of 1933. They had been detailed to guard Jake the Barber after his unshaven return to his customary life of luxury. They quoted Factor as telling them—as police of-
ficers—that he could recognize none of the "kidnappers."
Miller, who had accompanied Jake to the Hamm trial at St. Paul, had the most important testimony.
Miller testified that in the fall of 1933, before my first Factor trial, an informant tipped him off on the Bangs Lake, Wauconda house as the place where Factor really had been. Miller said he took Jake the Barber there and that Jake told him: "This is it." In about five minutes, Miller went on, Factor reneged by saying: "I am not sure, I don't think it is."
Miller said he felt positive that the house was the real hide-out and that he telephoned the information to Gilbert. How did Tubbo react? Here is the answer, from Miller's sworn testimony: "Captain Gilbert told me to leave the house alone and to stay away from it ... to forget about it."
Detective Green next went to Tennessee and picked up a few sworn statements. The affidavits proved that Ike Costner had not been in the Chicago area during late June or early July of 1933. He had been in Tennessee and so had Banghart.
One of the witnesses was Mrs. Ruth Mullinux, a resident of Knoxville for 23 years. She swore that on the night of June 30, 1933—the eve of Jake the Barber's alleged "kidnapping"—she and a woman friend had been with Costner and Banghart at wrestling matches in Knoxville's Lyric Theater. She was positive of it. Green, an eager searcher for verification, checked the back newspaper files and learned that, indeed, the Lyric had presented a wrestling show on the night in question.
On the Fourth of July, the forthright Mrs. Mullinux said, she and two women friends had gone with Banghart, Costner and Costner's brother, Rufus, to Gatlinburg. They stayed for three or four days, the witness continued, enjoying themselves with fishing and dancing. Another Knoxville witness, Marie Flinchum, said she was on the Independence Day outing with Mrs. Mullinux, the Costner brothers, and Basil the Owl.
On July 1, Marie added, she and a friend went on a long drive with Ike Costner and Banghart, visiting several roadhouses. Other witnesses who placed Ike and The Owl in Tennessee at the time of the Factor vanishing act included Walter Flanagan, a former Knoxville fireman; his sister, Grace Birmingham, a rooming-house operator; and Buford Roberts, a Knoxville resident for 49 years.
There were additional Tennessee witnesses, but the ones I have covered are sufficient. They proved that Ike Costner had been a spurious witness after he made his train trip to Chicago from Baltimore with Gilbert and the persuasive Jake the Barber.
Now, I do not contend, even today, that any one of the witnesses dug up by
Morrie Green proved my innocence. But, taken collectively, those witnesses did deny my guilt and the guilt of Stevens, Kator and Banghart.
Let us sum up a little:
1. Mrs. Sczech and her son, Schwabauer, had shown in their sworn statements that Factor had not been kidnapped.
2. Brown and Geils, the entertainers, likewise had testified that Jake the Barber was no kidnap victim.
3. Kator and Stevens had admitted under oath that they were involved in the kidnap fakery.
4. The Tennessee witnesses—backed up by Banghart—had proved that Costner had been hundreds of miles away at the time during which he fingered me as a kidnapper.
5. The Chicago police officers, Miller and Maloney, had quoted Factor as saying he was unable to identify anybody. And, Miller had sworn that he told Gilbert about the
Bangs Lake house.
6. Buck Henrichsen had been shown to be an employee of Skidmore and Johnson, operators of Capone-mob gambling casinos.
7. My codefendants and I had been denied our constitutional rights by being forced to accept Stewart, a lawyer we didn't want and who didn't want us, at our second trial.
I was positive that Green's findings were more than enough to get me a hearing in court. So were Green and Attorney Marshall.
Among the Chicago newspaper reporters who believed me innocent was the late John Patrick Lally of the Chicago Daily News, a fine and courageous man. He had visited me often over the years and now he began cooperating with Green.
A secretive man, as are many detectives and lawyers, Morrie didn't tell Lally everything he knew. He was afraid of premature publicity. We wanted to hold some things back to surprise the Illinois Attorney General's office, which certainly would oppose any appeal I might make. Prosecuting agencies are built that way.
At that time, which was 1938, bad luck began hitting me in batches. The Illinois Supreme Court turned down Attorney Marshall's appeal. It was the same old story: "Denied without a hearing." Marshall wasn't discouraged. He tried the U.S. Supreme Court. Again: "Denied without a hearing."
I was now as dead, legally speaking, as the old broken-down cons who get a $27 funeral at the state's expense, in a prison-made burial suit, out of Stateville. The only difference was that I hadn't been embalmed. The proof of my innocence had been gathered, but no judge would hear it. Still, I continued to hope.
Lally kept telling me that he had the proof to get me out of prison—that I never would spend another Christmas in Stateville. I believed him and I still think he had something big, although I never learned what it was. I know he wouldn't have built up false hopes in me. That would have been a wicked thing, and Lally was a decent, honest man.
Death by cancer took Lally out of my corner. He had been one of the great newspaper writers of his time. His death saddened and shocked me—partly for selfish reasons, I'll candidly admit.
But I wasn't hopeless. Not yet. I still had the magazine story, written by Lally's colleague, William Gorman, going for me. It was a good article and I had a warehouse full of optimism about it. Came the day when Gorman showed me the rejection slips. The bottom fell out of the world for me. I went over the wall with Gene O'Connor, Basil the Owl, Eddie Darlak and the others.
Back in Stateville, after the killing of O'Connor and McInerney and the taking in custody of the rest of us, I did my punishment in the detention cells—the hole. It wasn't pleasant—but I didn't bellyache then and I won't now.
Attorney Harrington warned me of danger ahead, and he was right. A grand jury in the Will County Circuit Court at Joliet indicted me for aiding and abetting the escape of the 199-year-term policeman-killer, Darlak. They convicted me, too, in one of the rawest pieces of injustice since the burning of the witches at Salem, Massachusetts.
I, the last man in on the break, hadn't aided or abetted anybody. The real culprit in the escape had been Darlak's brother, Casimir. He had aided and abetted all seven of us escapees by delivering the guns at the flagpole. So what happened to Casimir? He turned state's evidence—and got his reward. He was convicted of aiding and abetting Nelson and he picked up Nelson's one-to-twenty-year bit. No effort was made at Casimir's trial to prove that he had helped his 199-year brother to make the break. Casimir served 30 months and went free on parole.
My sentence was unconstitutional, as well as unfair, according to Judge Barnes, because the law requires that like punishment be inflicted for like offenses. My punishment had been immeasurably more stern than that of the main offender, Casimir Darlak.
The Owl also was indicted for aiding and abetting, but Illinois didn't keep him around long enough to try him. He had already made good on escapes from Atlanta, South Bend and Stateville. And, he had ruined a truck on a try at Menard.
The Federal government sent Banghart to Alcatraz, on the island in San Francisco Bay, to serve his time for the Charlotte mail robbery. Security was 100 per cent for him there, unless he could steal a boat or a pair of water wings. Despite all his accomplishments, including flying airplanes, The Owl never had learned to swim.
My Vindication in Court
I added up 99 plus 199 a lot of times for the next few months and the answer always came out the same—298 years in prison was what it meant for me. It would be 99 years and eight months, or long after my death, before I could even apply for parole.
The prospect of unending, drab, defeated years in prison left me dazed and numb at first. And then I came to realize that the extra 199 years didn't mean any more than kicking a dead dog.
My reasoning was that I still had Morrie Green's proof of my innocence in the Factor frame. If I could get the evidence before a reasonable judge, I could expect to be rid of the 99 years.
After that, the courts certainly would look favorably upon letting me out from under the aiding and abetting rap. Looking at it that way, I wasn't so much worse off than I had been before my escape, I thought.
Two lawyers, Charles P. Meghan and Howard Bryant, told me I was right in my theory. They filed petitions 12 times for writs of habeas corpus to get me into a court on the Factor conviction. The answer always was the same: "Denied without a hearing."
And then, in 1948, I got my biggest break since entering prison. A Chicago lawyer, Robert B. Johnstone, came to see me. Attorney Bryant had interested him in my case. Bob Johnstone and I hit it off together from the very start. He was only a year or two past forty, and he looked younger. He was dynamic and aggressive. He had vision, resourcefulness and daring.
We talked together for four hours that first day in the visitors' room. Johnstone was no starry-eyed dreamer. He was a practical lawyer with a streak of toughness.
He questioned and cross-questioned me about my story, trying to catch me in a contradiction or a lie. He couldn't because I was telling the truth. At the end, he gazed at me in silence for two or three minutes and then burst forth with the hoarse voice he used at times of stress or strong emotion: "I'm a damn fool, Touhy, but I'll take your case if you want me to." I told him that I'd be glad if he gave it a try. He warned me that it would be a long pull and that I should expect no miracles. Then he reached for his briefcase and left.
I watched him as he strode the length of the long, narrow room and climbed a short flight of steps at the end. He was a big man and he leaned forward a little as he walked. His mop of black hair could have used some grooming and his blue suit looked as if it might have been fitted to him by a tailor with astigmatism.
I had confidence in the guy. I knew somehow that he would do his damnedest for me. I was back in my cell before I realized that he hadn't mentioned a fee. I would pay him what I could, of course, but it was heartening to know that his first concern wasn't money.
His secretary and associates must have thought that Johnstone had flipped his lid when he reached his Chicago office the following day. I heard the story much later. He pulled open his desk drawers and filing cabinets. He threw copies of lawsuits, petitions, writs and other documents helter-skelter on a table. "I'm referring all of that stuff to other lawyers," he told his secretary. "I'll give you a list of the lawyers and dictate letters to the clients. I can't be bothered with those things. I'm going to be busy on the Roger Touhy case."
Within a few minutes, he kicked away a law practice that it had taken him years to build. The cases which he sent to other lawyers would have earned him tens of thousands of dollars in fees. He didn't give a damn. He not only wrecked his career but he also messed up his health working for me. What can I say about him? Only that he is the best friend a convict ever had.
Being Roger Touhy’s lawyer was no social or professional asset. When his name showed up in the papers in connection with my case, his friends and associates would say in shocked tones: "Bob, why are you tied up with that terrible gangster? Why don't you represent decent people in court?" He tried for a while to explain that he was trying to right an injustice, but he soon gave up.
Johnstone is a determined—sometimes obstinate and irascible—man. Nobody could convince him that the second-division Chicago Cubs weren't going to win the National League pennant next year—or, anyway, the year after. He is strong-willed about many things, both important and trivial.
He and I had our first go-around on his third or fourth visit with me at Stateville. He opened up briskly: "Well, Rog, it's time for you to bring your wife and sons back from Florida. They should be with you at this time. I'll make arrangements through your sisters."
I told him that he wouldn't do any such damn thing. Clara had managed to set up a life for herself and the boys. Roger and Tommy were of college age. I wasn't going to mess up their futures.
“Don't be a blockhead”, Bob said. "You're innocent. You have nothing to be ashamed of, and neither has your family. Clara and the boys want to see you. They want to show that they have faith in you. They have that right."
I wouldn't give in, but he foxed me. I was in my cell on April 22nd, 1948. I was feeling low as cons do on special days. It was the 26th anniversary of my marriage to Clara. I kept thinking about how pretty she looked at the wedding and wondering why I hadn't stayed out of beer peddling.
A convict messenger came to the cell house with a ticket, or pass, for me to go to the administration building. It meant I had a visitor. I took the slip of paper and started the long walk. My route took me through the mess hall, where 1,500 men could sit at a serving. The cons on duty were cleaning and disinfecting the place with jets of live steam. The tables had stone tops two inches thick and I recalled a warning given to me by a long-termer when I first arrived at Stateville: "If there's ever another riot in the mess hall, Touhy, duck under a table. The guards' bullets won't go through those stone slabs." There've been no riots while I've been in the joint, luckily, but I always kept the advice in mind.
From the mess hall, I went along a canopied sidewalk and smelled the fresh grass of spring and the newly turned earth in the yard. Hundreds of cons, each assigned to a plot for growing flowers, were out with spades and trowels. My progress was slow. Each time a person passes through a gate in Stateville, he must wait until the gate is closed and locked before the next gate ahead can be opened. And there are many, many gates and doors. I was in no hurry, of course—not with 298 years in sentences. I reached the visiting room on the inmates' side and looked through the door. My heart did a flip-flop. My knees turned rubbery. There they were—Clara and our two fine sons. They were
looking up at me, and smiling.
I went down the stairs slowly, feeling as if I had been put in a trance. I sat opposite them, and I realized that I was wearing a silly grin. I was never happier. Bob Johnstone had been right. It was ten years since I had seen Clara. There were lines in her face and gray in her hair, but she was pretty. She wore a tailored suit of the style I always admired on her. Her lips trembled a little as she said: "I hope it's all right, Roger. Mr. Johnstone told us to come back."
All right? It was wonderful!
I thought our sons were handsome. That's a father's privilege, but they probably won't thank me for saying so. We talked for an hour. They were moving to Chicago permanently. My sisters, who had visited me so loyally over the years, were making arrangements for them. I asked the boys how it felt to visit their father in prison and Roger answered: "Mother told us, as soon as we were old enough to understand, what had happened. She told us that you were innocent. We never were ashamed. We prayed for you every day."
I felt grand as I walked through the yard back to my cell. I was a family man again. I would ask for a spade or a trowel next day, by God, and go out and plant some flowers. I would try to bring a little beauty into the world, even if it was within a prison wall.
The next time I saw Johnstone, he didn't mention Clara and the boys. I tried to thank him, but he brushed aside my words. He was off on a new tack. He was determined to get Ike Costner into my corner, and I had an idea that might help.
An ex-con from Leavenworth had hit Stateville a few weeks before. He was celled not far from me and he brought word from Dutch Schmidt, one of Ike's partners in the North Carolina mail robbery. Dutch had sent his best regards and asked me to give him the word if there ever was anything he could do for me.
"The thing for you to do is to go to Leavenworth," I told Bob. "See Schmidt first, before you go to Costner. I have a hunch that Dutch will help us persuade Ike to come through with the truth."
When Johnstone arrived at the big Kansas Federal pen, Schmidt wasn't in the least astonished to see him. Word had passed along through the prison-system grapevine that I wanted help from Costner.
"I was expecting you," Dutch told my lawyer. "I had a talk with Ike and you won't have any trouble with him. He wants to get a load off his mind. He says he had no part in any kidnapping of Factor and that he lied Touhy and the others."
Costner came through like a champion. He gave Johnstone a signed, sworn affidavit that he had perjured himself all over the place at the second Factor trial. Jake the Barber and Gilbert had persuaded him to do it, Ike said. The ground now was solid for my petition for a writ.
My luck held for me when Judge Barnes agreed to hear it. Barnes, who wore a full beard because he considered shaving to be a waste of time, was generally regarded as one of the most brilliant men in the history of the American bar. He was stern at times, but he had a deep well of courage, understanding and sympathy. He had a personal understanding of tragedy and loss, for two of his sons had been killed in combat during World War II. Judge Barnes hated injustice and he despised influence peddlers. . . .
A former United States Senator once was interested in a case on Barnes' docket. The senator, a politically powerful character, waited for the judge at the doorway to his courtroom, flagged him down and told him: "Judge, I'd like to have a few words with you about an upcoming case."
The judge glared at him angrily and said: "Senator, if you so much as mention the name of the case to me, I will send you to jail for a year. You will go to jail, too, and you will serve every day of the term."
The hearing before Barnes was set for June 1949. I was brought from Stateville to the Cook County Jail for the duration.
I was optimistic and, at the same time, anxious about Bob Johnstone. He was as tense as a spring that had been coiled to the breaking point. He was edgy, so full of the Touhy case and so outraged by injustice that he seemed ready to explode at any time. I tried to warn him to relax a little. The only result was that he lost his temper. Bob opened the hearing by saying that I was being illegally detained in prison. I had been improperly convicted by perjured testimony—with the knowledge of the prosecution—in the Jake the Barber frame-up, Johnstone said. The conviction on the aiding and abetting rap was unconstitutional, he added. He asked the judge to order me freed at once.
Ben Schwartz, an assistant Illinois attorney general, made his opposition opening strictly along legalistic lines. I had been convicted in the state courts, he said, and I must exhaust all state court remedies before going into Federal jurisdiction. He contended that I had not used up all my Illinois State appeals and that Judge Barnes, therefore, had no right to handle my case.
The hearing went along for five days, with Johnstone calling our preliminary witnesses. Everything was going along fine, I thought. On the sixth day, there was a commotion in the corridor. Johnstone had collapsed. He was in a coma.
I saw them carry him away on a stretcher and I thought he was dying. His condition was critical, the doctors said. Judge Barnes continued the case until October 19. I don't think I've ever felt worse than I did as they took me back to Stateville.
What was I—a jinx to everybody? Bob had two young sons. If handling my case had killed their father or ruined his health permanently, there would be a lot of remorse in my future.
When the October 19 continuance date arrived, Johnstone was ready to go ahead, but Schwartz obtained some legal delays. It was not until September 8, 1953, that we got back before Judge Barnes again. From the stand came the stories of 57 witnesses, both by deposition and in person, over a period of 36 days.
I had a chance to tell the full true story of my stolen years for the first time in any court. Schwartz tried his best to overcome my testimony, but he couldn't. I was speaking the truth, just as I had told it to Bob Johnstone.
Morrie Green was there to tell how he had proven me innocent. So were Miller and Maloney, the police officers who quoted Factor as saying that he couldn't identify me. Out came the true stories of Stevens, Kator, Banghart and, of utmost importance, Costner. Ditto for the testimony of Mrs. Mullinux and the other Tennessee witnesses.
Gilbert, Courtney and Crowley testified, denying that they knew anything about a frame-up against me. Johnstone gave Jake the Barber an unhappy time on the witness stand, prodding into his background. Jake had served a stretch since he last testified against me, and he didn't like to talk about prison life. He had to admit, however, that he had lied about the Glenview house. And, he conceded that the prosecution had known his testimony was false.
We also had some surprise testimony for Jake. It came from men who had served time with him in Federal prison after he was tagged for swindling. They swore that Jake had told them remorsefully that he never was kidnapped. Factor called them liars.
The two witnesses who really gave me a jolt were Mrs. Sczech and Eddie Schwabauer. They told Johnstone they didn't want to testify, and when he got them on the witness stand they reneged on the affidavits they had made for Green in Indiana in 1938. Both now denied their previous sworn statements that they saw Factor unbound, unblindfolded and seemingly unconcerned in Mrs. Sczech's home on July 1, 1933.
It was a complete switch. Mrs. Sczech said she never met Factor in her life until she rode with him on a train to the Hamm trial at St. Paul. Neither, Mrs. Sczech testified before Judge Barnes, had she ever seen me.
Eddie's new story was that when he arrived home early on the morning of the Dells incident he saw Kator and Sharkey in the basement. They had Factor with them and he was blindfolded, Schwabauer now swore. He added that he told Kator and Sharkey to get Factor away from his mother's property. He, Mrs. Sczech and other members of the family drove to the summer resort area near Fox Lake, Illinois for the week end and Factor was gone when they returned, Eddie added.
That testimony shook me up, but Johnstone told me not to worry. He was right. Judge Barnes refused to believe the mother and son. He said in his finding that they undoubtedly told the truth in the Indiana affidavits, which showed that Jake really had never been snatched.
Johnstone had managed to obtain by subpoena from the State's Attorney's office all of the available records on the Factor case. But the documents he got didn't include a statement by Jake the Barber to the authorities in the days immediately following his bearded return in 1933. Bob was certain that such a statement must have been taken—and that Factor in it had said he was unable to identify anybody.
As a witness, we called George R. McSwain, acting agent in charge of the Chicago F.B.I. offices. Judge Barnes ordered him to produce all FBI records of the case, including a statement by Factor, if any, and he refused. The judge sentenced him to jail for contempt and the Department of Justice appealed the case to the United States Supreme Court.
The high court reversed Judge Barnes, saying in effect that the F.B.I. files had to be kept sacredly confidential for the protection of informants. We never did obtain the Factor statement, if there was one.
After hearing all of the evidence we could produce, Judge Barnes took my appeal under advisement. On the day of decision, August 9, 1954, Johnstone was standing nearby as my guards took off my handcuffs in a corridor of the United States Courthouse. "Rog, I don't think you'll ever be wearing those things again," he said. For all of his effort to seem confident, Bob was trembling. So was I.
The members of my family were in court, some of them sitting in the jury box. Clara waved to me and so did our sons. My newspaper friends smiled at me, but Schwartz didn't look so happy.
There wasn't a murmur of sound as Judge Barnes seated himself behind his big, elevated desk. I was listening so intently that the traffic noises from the street below cut off automatically for me. The bearded old gentleman's eye caught mine, and I thought I saw a twinkle.
The judge had a fine sense of timing and dramatics. He expressed his gratitude to the lawyers in the case. He voiced concern for Johnstone's health. He explained that his ruling was extraordinarily long, because the case was an involved one. Then he stroked his beard and began reading:
“The court finds that John Factor was not kidnapped for ransom, or otherwise, on the night of June 30th or July 1st, 1933, though he was taken as a result of his own connivance . . . "The court finds that Roger Touhy did not kidnap John Factor and, in fact, had no part in the alleged kidnapping of John Factor."
Vindication had come to me at last. I had been exonerated. My stolen years were coming to an end. The judge went on to rule that the aiding and abetting conviction was unconstitutional. I was shed of the 199 years, too.
When the judge left the bench, there was a stampede. Reporters went out of court on a dead run, heading for telephones being held open for them to their offices. People slapped me on the back. I finally got away with Johnstone and a couple of friendly reporters who had no immediate deadlines to make.
We had coffee. I made a couple of half-blind stabs for the sugar bowl, got it and then dropped it. The bowl broke and sugar cubes were all over the table. A waitress cleaned up the mess, gave me a smile and said: "I recognize you from your pictures in the papers and I just heard a radio broadcast. Don't you worry, Mr. Touhy. You can smash every sugar bowl in the place and everybody will understand."
The name of Roger Touhy was in the headlines, but there was no stink attached this time. The newspapers were friendly, sympathetic toward me. The stories also carried stinging, bitter words by Judge Barnes against my prosecution and the witnesses who had lied against me. My repudiation was 100 per cent. My happiness was complete, but it wasn't going to last.
Even as I had dinner with my family that evening, the law took steps to slam me back into prison again. The fickle finger of fate was going to give me another jab between the ribs.
Before going into the shattering experience of returning to prison, after having been declared innocent, it is essential to deal with Judge Barnes' ruling. It is the most important —and, certainly, the best written—part of this book.
A Great Judge's Opinion
John P. Barnes, if he hadn't decided to become a lawyer and a judge, would have been a fine, compelling, honest author, I believe. He had all the talents—a sense of timing, comedy, suspense, understanding and zest. His vocabulary was superb and his integrity was beyond question.
Convicts read hundreds of books in prison, and some of them become better than green hands as literary critics. Many of the men in my cellhouse studied Judge Barnes' written decision in my case. It kept them entranced for hours.
The opinion ran about 60,000 words, the length of the average book. It covered every facet of the Factor frame-up, including many long and involved legal precedents to back up his decision. Presented here will be Judge Barnes' words on the facts of my case and the personalities concerned.
The judge, a moderate man, refrained from bad names in summing up Jake the Barber. Instead, he used this scholarly, but piercing, language: "John Factor has an extraordinarily agile mind—certainly the most agile mind of anyone the court has observed in connection with this case. He has learned all that a boy and man can learn as a bootblack, wash-room attendant, newsboy, barber, high-pressure stock salesman, Florida land salesman, bucket-shop operator and confidence man—except to be honest. "So far as the so-called business morals are concerned, he is completely amoral"
Another section on Factor in the opinion read: "John Factor's appearance and demeanor on the stand and about the court room, and the testimony of all witnesses who dealt with him, all indicated that Factor was eminently well qualified by character, ingenuity, mental resourcefulness and experience to devise and perpetrate a kidnapping hoax.
"Furthermore, he had money which he was willing to spend. Finally he had a motive. He was in real trouble. He faced a long prison sentence when he went back to England."
After blistering Factor, Judge Barnes took care of another poisonous trial witness against me:
"The court is of the opinion that Isaac Costner was not in Illinois on June 30th, 1933, and did not come to this state until August, 1933; that aside from making telephone calls to Factor . . . Costner had nothing to do with the Touhy case until John Factor and Captain Gilbert contacted him in the Baltimore jail . . . and bribed him with the promise of a five-year sentence for robbery in North Carolina, to testify against Touhy.
"It is true the government did not keep the promise made to Costner, but that is not the point. The promise made by Factor and Gilbert was the payment for his perjury." [Author's Italics]
In commenting on me, the judge made no effort to mold me into a plaster saint. He pointed out that I was "in the business of violating the prohibition law" by peddling beer and running slot machines, but he gave me an even break:
"He had never been convicted of a felony. He was a family man, having a wife and two sons of whom he was very proud. He had a brother Tommy who had a criminal record with whom, in the public mind, Roger was sometimes confused."
The judge then went into the motive for railroading me:
"He [Touhy] had incurred the dislike of Captain Gilbert and the enmity of the Capone mob . . . principally because of his aiding labor union officials in their fight against the taking over of their unions by the Capone mob."
Judge Barnes reviewed the situation in the State's Attorney's office under Tom Courtney during my two trials. He stated that Courtney and Crowley were men of "relatively little experience," while Tubbo Gilbert had a long background as a labor unionist and a police officer.
"In 1933 and 1934, of the three men, Captain Gilbert, because of his age and experience in life, would be expected to be the dominant personality", the bearded judge observed.
Judge Barnes used gentle language when he dealt with Mrs. Sczech, but it was impossible for him to be gallant. Not with the fabric of lies she had woven on her busy loom. The judge remarked:
"As has been noted, Mrs. Sczech does not always tell the truth. The court is convinced that Factor went to her home [and not to the Glenview house] on the night of June 30th-July 1st, 1933, and remained there until the night of July 1st.
"Buck Henrichsen arranged for Factor to stay there, but did not tell Mrs. Sczech who Factor was. . . . Factor was not under restraint. He was free to use the telephone and come and go at will."
When Mrs. Sczech learned Jake the Barber's identity from newspapers, she insisted to her son, Eddie Schwabauer, that Factor be taken from her Des Plaines home, the judge stated, and it was done.
Regarding the testimony of Mrs. Sczech and Schwabauer, Judge Barnes said:"In the court's opinion, they only told the truth when they felt free of the State's Attorney's power and Factor's money. The court thinks that Mrs. Sczech and Schwabauer told the truth only in the affidavits which they made [at South Bend] in 1938."
In evaluating the testimony of the mother and son in his court, Barnes said:
"...there is an obvious explanation for their conduct on the stand here—fear of reprisals from Captain Gilbert and the State's Attorney's office, and the influence of Factor's money."
Reviewing the sworn statements made by Stevens and Kator in 1938, Judge Barnes said he believed them. Both Kator and Stevens had sworn that Jake never was under restraint or, in fact, kidnapped-- the judge remarked, adding: “Roger Touhy knew nothing about the meeting on the proposed kidnapping of Factor.”
Of the so-called ransom money, Judge Barnes expressed this opinion: "That some financial institution or other responsible agency did not keep a record of the amount of money paid, the denominations of the bills and the [serial] numbers of the bills strikes the court as an extraordinary characteristic of this case."
The judge pointed out that Gilbert, immediately after the reported kidnapping, charged that the "Touhy gang" was responsible. It was rather extraordinary, the judge found, that none of my associates and I were arrested, questioned or charged until 19 days later, when Sharkey hollered "t-i-m-b-e-r" as the pole went down at Elkhorn, Wisconsin.
"The court is of the opinion that the incident of June 30 and July 1, 1933 was a hoax planned by, and executed under the direction of, John Factor in order to avoid extradition to England", Judge Barnes said.
As for who was responsible for Jake the Barber's success in beating removal to England, the distinguished Federal jurist pointed out: "The purpose of the hoax—the keeping of Factor in this country—was accomplished. The responsibility of State's Attorney Courtney for its accomplishment was admitted by Mr. Courtney, who testified that he went to Washington and talked to the President [Roosevelt]. "Factor is in this country today because of that intercession [by Courtney]."
Judge Barnes found that Factor had lied in his stories of having seen me partly concealed behind a blanket: "The court is of the opinion and finds that the only
reasonable inference is that the statement contained material unfavorable to the State's theory of the case. Every item of evidence that was produced on the question of identification by Factor (other than Factor's testimony of visual identification) tends to establish Factor's utter inability to identify Touhy and the prosecution's knowledge of this inability. Taken together these items are overwhelming, and establish to a certainty that Factor could not identify Touhy, and that the State knew he could not. The court is of the opinion and finds that Factor's testimony, elicited by the prosecution, of a visual identification was false and was known to be false, and a case of material subornation of
perjury has been made out."
He also dwelt upon the statements made by Jake the Barber to newspaper men, police officers and others in July that he could identify none of the purported "kidnappers:"
"Captain Gilbert and Factor have sought to explain Factor's many statements prior to the Touhy trial that he could not identify any of his alleged captors by saying the F.B.I. agents and Captain Gilbert told him to deny that he could identify any of his alleged captors.
"So far as the F.B.I. agents are concerned, this statement is impossible to be believed. The F.B.I, agents are thoroughly trained investigators and it is difficult to believe that any of them would ever tell a prospective witness upon whom they were going to have to rely to identify another person, to deny ability to identify that other person and thereby to lay himself open to successful impeachment."
"Captain Gilbert had 16 years of experience as a thief catcher and investigator when, according to Mr. Factor's story, he is supposed to have told Factor to lie in response to questions as to whether he could identify his captors and thereby to lay himself open to successful impeachment when he testified otherwise.
"Lawyers and investigators almost invariably advise witnesses not to talk, but good lawyers and good investigators never advise witnesses to lie."
Judge Barnes stated flatly that the State's Attorney's office knew in advance that testimony against me and my codefendants was false:
"The court finds that both with respect to Factor's identification testimony and Costner's entire testimony, guilty knowledge on the part of the prosecution was established ....The state is directly chargeable with knowledge that Factor actually stayed at the Wauconda, Bangs Lake house. Captain Gilbert suppressed important evidence on this point by directing Officer Miller to ‘forget the place, leave it alone’. . .
"The state is charged with knowledge that the actual place where Factor stayed the first night was in Schwabauer's [and Mrs. Sczech's] house in Des Plaines, not in Glenview, and with failing to disclose this information to the court and the defense."
In pointing out the changes in Factor's testimony in the second trial as against the first—on such important matters as the Glenview house basement and the lifting of the blindfold—Judge Barnes said:
"First Assistant State's Attorney Wilbert F. Crowley's methods of handling the evidence in the second trial demonstrates the state's own awareness of the deficiencies in Factor's testimony both in the matter of identification and location."
"Under ordinary circumstances, no favorable inference could be raised from a prosecutor's change in the method of presenting the state's case in a second trial."
"Here the changes were so marked and so obviously designed and calculated to bolster a thin case on identification, that it having been otherwise shown that the identification was designedly false, the prosecution's awareness and knowledge of the falsity of such testimony appears.
Judge Barnes punched another hole in the cloth of my conviction when he wrote:
"One of the strongest single factors pointing to the inability of Factor to identify Touhy in July was the fact that he [Touhy] was not kept in Chicago. He was returned to Wisconsin . . . and later was sent to trial in St. Paul on what the government knew was 'a very weak case'."
Before Judge Barnes, Johnstone introduced scores of July, 1933 Chicago newspapers, quoting Jake the Barber as saying that he could recognize none of his "kidnappers." Also, there were quotes in the papers by lawyers for the British Crown that the kidnapping was a sham.
Prior to June 30-July 1, there had been headlines on the efforts to extradite Factor to England and about the disappearance of Jerome Factor. In this connection, the judge commented on testimony by Tom Courtney, indicating a belief that Courtney had been less than candid, at least:
"State's Attorney Courtney denied ever having heard about Factor before the date of the alleged kidnapping, but his later testimony, when asked about the incident involving Factor's son, indicated the contrary.
"In the 1949 hearings, Judge Courtney admitted he read the papers every day. In the 1952 hearings, he said first he didn't follow the case in the papers but later admitted that he did."
Judge Barnes dealt with Johnstone's charges that I was convicted as a result of a conspiracy by state and Federal authorities. The judge said: "With respect to the state's attorney's office, this has been abundantly shown . . . State's Attorney Courtney admitted that he was the motivating factor in getting the State Department to withhold execution of the extradition warrant and permit it to lapse . . .
"Secondly, the prosecution was appraised at all times of Factor's predicament, of the gaping holes in his story with respect to identification and location, and of the existence of the plot involving the 'railroading' of Touhy, both from the British authorities and from Father Weber . . .
"Finally, the state . . . indulged in numerous stratagems and artifices . . . consistent only with a design to bring about the conviction of Touhy at any and all costs . . ."
The proof of conspiracy by the Federal government was not so conclusive, Judge Barnes said, adding:
"However, the fact is that the Department [of Justice] did evince an astounding disregard for Touhy's rights and indulged in practices which . . . cannot be condoned. . . Keenan's assistance was indispensable in enabling the state to administer the death blow in the second trial through the use of the spurious witness Costner."
Judge Barnes ruled, therefore, that Factor, the State's Attorney's office and the Department of Justice "worked and acted in concert to convict Touhy of something, regardless of his guilt or innocence . . ."
One of the sternest criticisms of Captain Gilbert came in a section of the ruling which said: "Once Touhy was introduced as an actor in the drama, sinister motives of Captain Gilbert and the politico-criminal syndicate for wanting to remove him permanently from the scene of action, seemed to intensify the state's efforts to pin a conviction on him."
Regarding Jake's chumminess with Tubbo, the judge said: "With respect to Factor, all the evidence establishes that the relationship between him and the prosecution was far more than the ordinary relationship between prosecuting
witness and prosecutor. This will be more fully developed hereafter, but standing alone, it would justify charging the state with Factor's own guilty knowledge and improper motive in the case."
Pointing out that Courtney and Gilbert knew Jake the Barber's finesse as a swindler and liar, Judge Barnes said further:
"The state cannot deny knowledge of Factor's capability as an inventor and narrator of untrue stories and of his capacity for deceit and trickery."
The "timeliness" of kidnappings in the Factor family came in for discussion by the judge:
"The supposed kidnapping in his case was the second to occur in the family of the victim within a relatively short period of time, two and a half months.
"The supposed kidnapping of Jerome Factor took place at a time when the sympathy of the public for the victim of the supposed kidnapping and his family might be expected to be helpful to a member of that family in his enterprises.
"John Factor had given a bond for his appearance before the Supreme Court of the United States.
"It is certainly not a violent presumption that he did not want to appear in a jurisdiction [the District of Columbia] where the crime with which he was charged in England might be more clearly spelled out than it was in the statutes of Illinois."
Judge Barnes remarked: "The supposed kidnapping of his son furnished an excuse for his not going to Washington."
Of Factor's personal kidnapping story, the ruling stated:
"The Supreme Court of the United States, by its order of May 29th, 1933, foreshadowed the final order that it did render." [The final order was that Jake be sent back to England, although the order never was carried out.]
"Within five weeks after the order of May 29th, 1933, John Factor was himself supposedly kidnapped. This supposed kidnapping furnished an excuse for his not going back to England." [Author's italics]
The judge said he thought it unusual that Factor, soon after the presumed kidnapping of his son, would visit the Dells, "known to be run by members of the so-called Capone syndicate, located outside of the city of Chicago ... along a lonely road ..."
Judge Barnes remarked that the Capone mob operated gambling and other rackets in Cook County, and commented:
"The relationship between the State's Attorney's office, under Courtney and Gilbert, was such that during the entire period that Courtney was in office no syndicate man ever was convicted of a major crime ..."
"To put it mildly, Roger Touhy was not an acceptable person to Captain Gilbert. Touhy and the opposition with which he was identified was an obstacle in the drive of the politico-criminal Capone syndicate to control and dominate the labor unions . . .
"That criminal syndicate could not operate without the approval of the prosecutor's office . . . They did continue to operate and thrive without interference from Courtney
or Gilbert . . .
"That the arrangement between Gilbert and the syndicate was closer than a mere tolerance is evident from his function as a go-between in the Horan and Wallace surrenders and from the fact that his men were put in key posts in the Capone-dominated unions, as well as from his ability to place Henricksen with the Skidmore-Johnson outfit."
The opinion pointed out that the F.B.I. or the State's Attorney's office obtained signed statements from Factor's wife, from F.B.I. agents, from employees of the Dells and
from other witnesses. Certainly, the judge commented, a statement was taken promptly from the most important witness—Factor, himself. Barnes went on:
"That the F.B.I. had a complete statement of Factor's testimony is clear from Factor's testimony. . . . The relator [Roger Touhy] and the court did everything possible to secure production of this statement in this case without success ..."
"The question persists, why wasn't any statement of Factor ever produced by the
"The court is of the opinion and finds that the only reasonable inference is that the statement contained material unfavorable to the state's theory of the case."
In other words, Judge Barnes deduced that a statement was taken from Factor sometime soon after July 12, 1933 —and that it was held out because Jake the Barber said officially, perhaps under oath, that he could describe or recognize no kidnappers. Such a statement would have had much more weight in my behalf, of course, than did quotes by Factor in the newspapers.
An element of humor entered the ruling when Judge Barnes recalled a deposition by Herman Becker, a convict who had driven a garbage truck in the Federal prison at Sandstone, Minnesota. Jake the Barber was a helper on the odorous, untidy truck. The judge reviewed Becker's sworn statement with these words: Becker said that a lot of fellows over there [in Sandstone] wouldn't talk to him and when he inquired they said they didn't like him because he was hanging around with that rat, meaning Jake, who framed Touhy . . .
"At the incinerator, Becker asked Factor whether he was the guy they called Factor and Factor said: 'Roger Touhy, I ain't worried about him, let him and his family take care of him; to tell you the truth, the man ain't guilty.'. . .
"Becker then said: 'What did you put him in for?' and Factor said: 'Well, if I didn't go along with the [attorney] general, the lawyer, the state's attorney—otherwise I would be deported back to England because me and my friends took $5,000,000 over there'. . .
"And Becker said: 'Why put another man in jail?' and Factor said: 'Well, I am looking out for my own skull, I have got two sons and a wife on the outside'."
It seemed pretty wonderful to me that multimillionaire Jake—welcome in the finest hotels and flossiest night clubs—would be shunned as an outcast in prison.
Judge Barnes made a few remarks that were genuinely pleasing to me and to my family about the testimony of my wife's girlhood friend, Emily Ivins. Said the distinguished judge of Miss Ivins:
"She testifies unequivocally that Roger Touhy was at home with his family [on the front porch] at the time of the alleged kidnapping. If what she said is true, Roger Touhy could not have been guilty of kidnapping John Factor.
"Emily Ivins seems like a responsible person and one who would not intentionally tell an untruth. The court believes she is worthy of belief and does believe her."
The judge said he also believed testimony by our aunt, Mrs. Morgan, and by my wife and two sons. All of them said I was at home practically all of the time when Jake the Barber claimed I was negotiating with him for ransom.
The testimony of Mrs. Ruth Mullinux and other Knoxville witnesses proved beyond doubt, of course, that Costner and Banghart had been in Tennessee during the period of Jake the Barber's Alice-in-Wonderland caperings, Judge Barnes found.
I sort of think the judge was grinning in his beard when he commented on the adventures of Basil the Owl and Ice Wagon in trying to collect the additional $50,000 on the deal with Jake to make his kidnap story look good. The judge said:
"That when the two police officers . . . drove out in the country ... to deliver the supposed 'supplemental ransom' their firearms were stored underneath the seat of the cab so that they had to stop the cab, remove the seat and reassemble the parts of the machine gun before they could go into action, strikes the court as being a rather extraordinary thing." [The judge kept using the words "rather extraordinary thing" for what I would call just plain damn foolishness. But he had a better vocabulary than I.]
The judge evidently placed full credence in Harry Geils' testimony of having entertained Jake in the Bangs Lake house in Wauconda. His Honor's comment was: "Geils saw Factor . . . Factor was sitting at a table in the basement ... he had dark glasses on. They were drinking down there. Factor was not tied in any way. Witness [Geils] did not see him under restraint. Witness did not see any guns there. He was in Factor's presence for about half an hour. There were no guards at the doors, there was no unpleasantness of any sort while the witness was there, everybody was happy, laughing, kidding, and telling stories, there was a quart of Johnny Walker whiskey on the table and there was some beer in cases."
Discussing an appearance of William Scott Stewart before him, the judge wrote in the opinion: "Mr. Stewart's testimony makes it clear that serious differences had arisen between him and Roger Touhy and that he did not want to represent Roger Touhy in his second trial and that Roger Touhy did not want Stewart to represent him.
"Mr. Stewart's testimony also makes it clear that Roger Touhy desired to testify in his own behalf but that Stewart forbade his testifying."
In his summing up, Judge Barnes pointed out that no one bit of proven perjury by Gilbert's witnesses, and no single piece of evidence uncovered by Morrie Green and Bob Johnstone could absolve me of guilt and establish the Factor kidnap story as a hoax. As the judge commented:
"No one of the foregoing facts, or supposed facts, nor all of them together, without other facts and circumstances . . . would warrant the court in overturning the work of the state courts, but all of the foregoing facts, or supposed facts, are in the background of the case at bar and help to make the climate of the case."
The eclat with which the Federal government accused me of having kidnapped William Hamm, Jr., at St. Paul also came in for some discussion:
"That Touhy was indicted at all on the Hamm matter is something for which the Department of Justice should answer. They knew it was a very weak case. The only identification witness was . . . completely spurious. . . . The state has admitted that Alvin Karpis was guilty of this particular crime."
Of the public officials who tried their best to put me in prison or sit me down in the electric chair, Judge Barnes had some kind remarks for Wilbert F. Crowley:
"Mr. Crowley, who tried the two Touhy cases, twice testified in this court in this case. He was and he is still a highly respected judge of the Superior Court of Cook County, Illinois. He made an excellent impression as a witness. He was frank and told the truth as he remembered it. "
When he slammed into a resume of the Factor frame-up, Judge Barnes left no possible doubt of my innocence:
“In the opinion of the court, Costner was a completely spurious witness. He was in Tennessee during the entire kidnaping period of June 30th, 1933 to July 13th, 1933 ...”)
"The court finds that Touhy was at home after midnight of June 30th, 1933, which is when the kidnapping is supposed to have occurred ...."
An overly dramatic Jake Factor surrounds himself with a small army of guards.
"The court finds that John Factor was not kidnapped for ransom or otherwise on the night of June 30th and July 1st, 1933, although he was taken as a result of his own connivance ...."
"Roger Touhy did not kidnap John Factor and, in fact, had no part in the alleged kidnapping of John Factor."
Then came the clincher of the ruling, on a point which Bob Johnstone had stressed throughout the Barnes hearings: "Perjured testimony was knowingly used by the prosecutor to bring about Touhy's conviction—this being the case, his conviction cannot stand, regardless of the motive [of the prosecution]."
Thus did Judge Barnes knock out every vestige of legality in my conviction in the Factor sham. His words proved me innocent, over and over again. He next attacked my conviction and sentence of 199 years for aiding and abetting the escape of Darlak.
He stated that my constitutional rights had been violated all to hell when I got 199 years and Darlak's brother—the real aider and a better—was let off with only three years. It was a violation of the sound, sacred principle of law that offenders must receive like punishment for like offenses. Out the window, therefore, went the second conviction and the 199-year term. Judge Barnes ordered me freed—and it was done. But I knew freedom for only 47 hours.
Assistant Attorney General Schwartz appealed Barnes' finding to the U.S. Court of Appeals. Schwartz didn't deny that I was innocent of kidnapping Jake the Barber—in fact, he later admitted that perjured testimony had been used against me. He didn't really contradict Barnes' ruling that the 199-year sentence was unconstitutional. But he insisted that I hadn't exhausted state court remedies before taking the aiding and abetting conviction to Federal court. The Appeals Court agreed with him. The technicalities of the law, no matter what hardships might be inflicted, must be met. I was ordered back to prison, pending a review of the case.
Johnstone telephoned me the bad news. I got a cab and went at once to the U.S. Courthouse. What a reception awaited me there! Sheriff John Babb was waiting for me. He had lined up a dozen squads of deputies and city police. On went the handcuffs, along with chains and an escape-proof belt.
I went back to Stateville with the effects of a desperate criminal captured in a gun battle, rather than as a man who had surrendered voluntarily on a court order. I didn't care much, since I was optimistic for an early release. My optimism was as ill-advised as the hope of a man condemned to the electric chair that electricity might go out of style. The U.S. Court of Appeals reviewed my case —but the decision was against me. The finger of fate was leaving me bruised all over.
There was no question involved about my innocence of the Factor charges. The 199-year term for the escape was the hitch-bitch. The Court of Appeals agreed with Schwartz that I hadn't used up my sources of remedy in the Illinois courts.
In order for me now to go free on a court order, I would have to carry the 199-year conviction all the way through the state courts, probably getting turned down, and return to Federal jurisdiction. It would take years, not because Judge Barnes was incorrect, but because I had to unwind the red tape of the law.
Bob Johnstone and others filed appeals for me in both state and Federal courts. Johnstone was joined by Frank Gagen, Jr., Daniel C. Ahem and Kevin J. Gillogly, all capable, hard-working lawyers.
Legal technicalities blocked me at every door to freedom. Judges, in their zeal to follow the letter of the law, seemed to forget that the evidence showed I was innocent. My best bet was to appeal to Illinois' Governor William G. Stratton and to the Illinois Pardon and Parole Board.
The board granted me a hearing in 1957. I was allowed to tell my story, and I thought the board members were sympathetic. The hearing room in Stateville was crowded with newspaper people and many of them held up two fingers in a hopeful V-for-Victory signal for me.
Camera flashbulbs flashed. I answered the board's questions and then sat down, thinking it was all over. And then a dark, youngish, compactly-built man stood
up in the audience and asked to be heard.
I recognized him from his newspaper photographs. My hopes sank. He was Benjamin S. Adamowski, State's Attorney of Cook County, in the job Tom Courtney had held. His words could condemn me.
Adamowski spoke softly, but firmly. I jittered. He said he did not know the minute details of the Touhy-Factor case, but that he had consulted with people who did. He did not believe, he said, that I was guilty of kidnapping Factor. The prosecutor paused for a moment, said he would have no objection to my release from prison and added quietly: "In fact, I would urge it."
(John William Tuohy Note: Thomas J. Courtney, who was also the son of a Chicago cop, died in December of 1971 of natural causes. He never varied from his belief that Roger Touhy was guilty of kidnapping Factor.)
A great feeling of relief surged through me. At last, for the first time, an important Illinois state official had come over to my side. My happiness was almost as great as when I heard Judge Barnes' decision or when I saw Clara and the boys in the visiting room after ten years.
The board recommended to Governor Stratton that he commute my sentences. He agreed—cutting the kidnap term from 99 years to 72 years, making me eligible for parole on that one, since I had served 24 years, or one third of the sentence. He reduced the 199-year term to three years.
The upshot was that I became eligible for release late in 1959. By that time, I would have spent more than a quarter of a century in prison for a crime that never happened. This is the end of my story.
I am thankful for the opportunity of telling it—for the sake of my family and, also, to set the record straight. It was my privilege, thank God, under the American way of life, to tell my story.
I have no bitterness, no enmity toward anyone. Instead, I have the deepest sense of gratitude toward the many people who have befriended me. My hope is to live out the few years remaining to me in peace and quiet—and freedom—with those I love and respect.