After three weeks of testimony, the jury retired.

Jake the Barber

   After three weeks of testimony, the jury retired. After only one day's deliberation the trial was dismissed by Judge Feinberg as deadlocked. A second trial was to begin in eleven days.
   The second trial was almost a duplicate of the first. The only exception was the testimony of Ike Costner and Basil Banghart whom Factor called to build up his story.
   Costner's testimony was part of a deal he made following his arrest in Baltimore in February of 1933 along with Basil Banghart for their part in a $105,000 mail truck robbery in Charlotte, North Carolina.
   Upon learning of Costner and Banghart's arrest, Tubbo Gilbert, Jake Factor and six deputies traveled by train to Maryland. Also joining them was Joseph P. Keenan, the Special U.S. Attorney charged by the Attorney General with stopping the rash of kidnappings that were plaguing the country. With Keenan's help, Costner and Banghart were released in Gilbert's custody and somewhere along the train ride back to Chicago, Ike Costner agreed to lie on the witness stand in return for a lighter sentence in the mail robbery case.
   "On the day that Factor and Gilbert brought the two witnesses back from Baltimore," Touhy wrote, "I was walking in the corridor leading from Judge Feinberg's courtroom to the prisoner's elevator during a recess. Ahead of me, I spotted Tubbo 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 'The guy in the light suit, that's Touhy' my cell, I got the hell out of that light suit and put on a dark blue one. When I got back to the court, Costner was the first witness."
   Crowley asked Costner "And did you know Roger Touhy?"
   Costner went blank and didn't answer. Crowley asked again and Costner mumbled "Yes."
   "Please point to Mr. Touhy. He is present in the courtroom."
   Costner looked around the room desperately. He didn't have a clue as to what Roger Touhy looked like.
   Ray Brennan, who covered parts of the trial for the Associated Press, later said that Costner looked over at the defense table and stared at one of the Cook County deputies guarding the Touhys and was about to point to him as the man he suspected of being Roger when Stewart said very loudly, "Stand up, Roger."
   Touhy was mortified but stood up, expressionless.
   'Yeah, that's him," said a relieved Costner.
   "Did you know Gus Schafer?" Crowley continued.
   Again Costner went blank and again, remarkably, Stewart shouted "Stand up Gus," and Schafer stood up, a look of complete disbelief on his face.
   "Did you know Kator? Albert Kator?" Crowley asked.
   Stewart told Kator to stand which he did.
   Crowley asked Costner if he saw all three men at the apartment house and Costner said he had seen them there.
   "I have always been bitter," Roger wrote, "and always will be about Stewart's making me a clay pigeon for Costner to shoot down....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."
   Costner testified that he had come to Chicago at Basil Banghart's request because Banghart was eager to get money for Touhy's defense in St. Paul against the Hamm kidnapping charges.
   Stewart leaped to his feet and shouted "What! What lawyer?"
   "I don't remember, Banghart never told me his name."
   Costner said that it was Touhy's enforcer James Tribbles who pulled him into the Factor kidnapping in the first place.
   It was safe to accuse Tribbles because he was dead. They found him almost the same way they found Teddy Newberry, tied with chicken wire, beaten to a purple pulp and shot in the head and dumped alongside a ditch. Everybody blamed Tommy Touhy for the murder, but by then Tommy's legs had given out and he was confined to bed in a log cabin hidden away on Joe Saltis' estate in rural Wisconsin.
   Costner said that on the night Factor was kidnapped, Tribbles took him to a lonely, rural side road near The Dells where Roger Touhy, Kator, Schafer and Banghart were waiting. When Factor pulled out of The Dells' parking lot, Costner said that the club owner, Joe Silvers "put the finger on Factor."
   Costner went on to admit that he was "the good man" that Factor had spoken of during his testimony.
   When called to the witness stand again to face a grilling by William Scott Stewart, Costner was made to look like the liar that he was. His eyes darted from left to right and he rubbed his hands together and perspired profusely.
   Stewart asked Costner for the address of the apartment house in which he lived but he said he couldn't remember what it was.
   "Ok, can you tell us what city or town place it was in?"
   "No, I forget."
   "So you don't know the address, or street name or city name of the place where you lived for eighteen months, is that correct?"
   "I think it is." Costner said.
   To the rest of Stewart's questions Costner's replies were similar. His refrain was "I don't know," and "I don't recall right at this moment."
   When Basil Banghart was called to the stand, Crowley asked,
"What is your occupation, Mr. Banghart?" "Thief."
The jury laughed but Crowley was confused. "What?"
"I'm a thief. I steal...that's how I make my living." "And you're proud of that?"
   "Why not? You're a lawyer, lots of people say you people steal, I don't hear you apologizing to nobody." "I am not on trial here, sir."
   "Well, neither am I, son."
   "What was the last place of your residence?"
   "601 McDonough Boulevard South East, Atlanta, Georgia, but it wasn't permanent."
   Later in the day Crowley found out that 601 McDonough was the address for the Atlanta Federal prison and called Banghart back to the witness stand to explain himself.
   "Why didn't you tell us," Crowley demanded, "that you were in prison?"
   "Four walls and iron bars," Banghart replied, "do not a prison make."
   Crowley said, "So you escaped from prison, isn't that correct?"
   Banghart answered, "No. The warden says I escaped from prison."
   "And," Crowley asked, "What do you say?"
   "I say," replied Banghart, "that I left without permission."
   "The point is, Mr. Banghart, is that you are a fugitive, are you not?"
   'Yes I am. I am a fugitive."
   "From where?"
   "From justice."