The saga of the Terrible Touhys was over, everyone thought. .
Everyone, that is, but Roger.
Like many another long- termer, Roger Touhy became what the inmates call a jail-house lawyer, studying law books and the possibilities of winning a new hearing that would prove his innocence. He had been framed by the Cap one mob. he was sure.
First, he decided, he would need new witnesses and new statements from the witnesses who had testified. He employed several lawyers and a private in- vestigator. Their progress was slow, but the private detective, Morris Green, came up with an impressive dossier of sworn statements tending to disprove Touhy s guilt:
He found fifteen people in Tennessee who swore that Ike Costner and Basil Banghart had been in that state on June 30 and for several days afterward and could not have participated in the Factor case.
Kator and Sharer made independent statements that the kidnaping had been framed by Jake Factor, that they and Willie Sharkey and others had been hired to stage the fake abduction and that they had split the $70,000 ransom, which had been agreed upon in advance.
Kator and Shafer said the motive was to keep Factor in the United States so that he wouldn't have to face the British courts. They swore that Roger Touhy was not in on the plot.
Several of the prosecution's witnesses changed their stories. In fact, the prosecution's case was thoroughly repudiated.
And it did no good at all. Effort after effort to bring the case into court was turned down. Both the Illinois Appellate Court and the United States Supreme Court made the same ruling: "Denied without a hearing."
THE years went by. Strangely no fellow convicts made any attempt to kill Touhy. But his hope was dwindling until it had all but disappeared.
And then, on October 9, 1942, Roger the Terrible Touhy broke out of jail.
Seven men, including Touhy and Banghart, cowed an elderly guard and his son, escaped over the wall and got away in the guard's car. They evaded detection and abandoned the guard's car near Chicago. An immediate nation-wide manhunt was instituted, with the FBI taking part. .
Newspaper accounts attributed a remark to Roger Touhy (now referred to as Black Roger and Roger the Terrible) and it was widely quoted :
"The first thing I'm going to do is get Jake Factor." Touhy later repeatedly denied this. Jake Factor had become involved in another swindle. In September, 1942, Factor and nine associates were arrested
and charged with a swindle that government attorneys said had brought them more than a million dollars. The ten men were indicted in Cedar Rapids, Iowa, and trial was scheduled in federal court for November,
Following the escape of Roger Touhy, Factor pleaded guilty in Cedar Rapids, and Judge Bell set February 1, 1943, as the date for sentencing. Pending this. Factor was free on bail. He asked the prosecuting attorney for protection.
Touhy and his companions in the jail- break were free for 82 days. Then an informant tipped the FBI that they were living in a, Chicago apartment on Kenmore Avenue. The federal officers raided this place on December 29, 1942. Touhy and Banghart were unarmed and surrendered without resistance. Two of
the escapees were killed and the others were captured.
Under a little-used Illinois law, Touhy and Banghart were indicted for aiding and abetting the escape of one of the others, Eddie Darlak. If con- victed, they could be given the same sentence as Darlak. Touhy was con- victed but the federal government took possession of Banghart and sent him to Alcatraz. Darlak had been sentenced to 199 years: the same term was imposed on Roger Touhy.
On February 1, 1943, John Factor appeared before Judge Bell in Cedar Rapids and begged the court to allow him to change his plea to not guilty.
"I have had no chance to refute the charges made by the prosecution," he said, his voice trembling with emotion. "I pleaded guilty last November be-cause my life and the lives of my family were threatened. I was threatened I would be killed in this courtroom by Roger Touhy."
THE judge denied his plea and Factor* was given ten years in the penitentiary and a fine of $10,000.
More years passed and Factor was out of prison again when there was another flurry in the case of Roger Touhy. In 1948 a Chicago lawyer, Robert Johnstone, became convinced of Touhy's innocence and devoted his full time to the case.
He went to Leavenworth and talked to Ike Costner.
Without hesitation Costner said hewould talk. A deposition was taken. Costner said that he had been in Ten- nessee on June 30, 1933, and for several days afterward and that all he knewabout the Factor case was what he read in the papers. In fact, Costner swore, all of his testimony at the Touhy trial was perjured.
He said that after he and Banghart were arrested in Baltimore on February 11, 1934, on the Charlotte mail-robbery charge, Jake Factor came to see him. Later, Costner said, he had many con versations with Factor and was told what he was to say. He said that Captain Gilbert was present during some of these talks, although he did not im-plicate Gilbert in the perjury plot.
After his arrival in Chicago, Costnersaid, policemen took him around to various places connected with the case and Factor explained what they were and how they fitted into the testimony. "Was any one person responsible for the story you told on the stand?" Cost- ner was asked.
"Well, I would say Factor was more responsible than any other person."
"He suggested most of the things?" "He promised he would get me out of my trouble and get me a legitimate job in Chicago where I could earn a living."
Costner's deposition was long, but the substance of it was that he knew none of the facts of Factor's disappearance and all his testimony at the trial had been false.
Armed with this and the depositionTommy, the first of the Touhys to be called The Terrible, was i
he went to court in a wheelchair to be sentenced for mail robbery ir yet 1936 Did Capone's vengeance reach his old enemy from beyond the grave?
already obtained by the private detec- tive and others. Attorney Johnstone asked Federal District Judge John P. Barnes of Chicago for a hearing. Judge Barnes agreed. On September 8. 1953, all available
witnesses were called to appear in per- son before Judge Barnes end those not available were heard by deposition.Jake Factor took the stand and re- peated his account of the kidnaping.
So did many others. Altogether, over aperiod of 36 days, Judge Barnes heard the testimony of 57 witnesses. Then he took the case under advisement and said he would render his decision after a thorough study of the evidence.
Roger Touhy went back to prison to await Judge Barnes' ruling.
MEANWHILE, there had been many changes in Chicago and Cook County. Remnants of the Touhy gang had died or disappeared. Tommy Touhy had been charged with mail robbery in 1936; suffering from an illness, he had to be carried into court to hear a federal judge sentence him to 23 years. He hassince been paroled. -
The Capone Syndicate, with all major competition out of the way, flourished. Vice and narcotics rackets were operated where and when conditions permitted. Gambling, often transient when reform campaigns put on the heat, continued to be the bread and butter of the strictly' criminal element.
Gang murders continued but on a greatly reduced scale. There was no more warfare between gangs; the remnants of the smaller mobs had been swallowed up into the big Syndicate.
Talking too much was the cardinal sin; the man who was disposed to say the wrong thing or too much was quickly eliminated, his body dumped beside a lonely country road or stuffed into the trunk of his own car.
The big campaign to invade private business was quietly and successfully carried on. Many thriving businesses — taverns, night clubs, restaurants, cleaning plants — either were taken over entirely or the mob became a silent partner. New and phenomenally successful neighborhood shopping centers, backed by Syndicate money, were built.
Almost a year passed before Judge Barnes rendered his decision. Finally, on August 9, 1954. Touhy was brought to federal court in Chicago.
Judge Barnes ascended the bench, glanced at Touhy and plunged into his decision.
?'The court finds that John Factor was not kidnaped for ransom, or othewise, on the night of June thirtieth, or July first, nineteen thirty-three, though he was taken as a result of his own connivance," the judge said. "The court finds that Roger Touhy did not kidnap John Factor and, in fact, had no part in the alleged kidnaping of John Factor."
The opinion was more than 60.000 words. In effect. Judge Barnes said he believed that Factor had arranged the kidnaping to avoid going back to England to face trial for swindling, that the evidence of the 57 witnesses indicated it was a frame-up in which some members of the Touhy gang participated, that Touhy himself had no part of it and that Touhy was framed because he had incurred the enmity of the Capone mob.
Judge Barnes ordered Touhy released and he walked out of court with his family.
The prosecution took an immediate appeal to the United States Court of Appeals. Forty-eight hours after he was freed. Touhy was arrested again. The appeals court, while making no ruling on the merits of Judge Barnes' opinion, overruled his decision on the ground that Touhy had not exhausted all possible remedies in the state courts and therefore the federal court was without jurisdiction. Touhy was ordered returned to Statesville.
Had it all been in vain? Was this the mob's vengeance — life in prison for Roger Touhy?
Attorney Johnstone tried a new series of legal maneuvers but they soon bogged down on crowded court calendars. Touhy then appealed to Governor William G. Stratton for executive clemency. The case was referred to the Pardon and Parole Board.
And the board agreed to a hearing in 1957. Touhy told his story. Then the board heard a voluntary witness — Cook County State's Attorney Benjamin S Adamowski, whose first assistant Frank Ferlic. had at one time tried tc win freedom for Touhy. Adamowski urged the baard to give favorable consideration to the Touhy plea.
The hearing ended and the board took the case under advisement. Alsc considered was the case of Gloomy Gus Shafer, who had done his time quietly A few months later the board recommended clemency for both Shafer and Touhy. Shafer's term was commuted and he was released on parole. The governor commuted both of Touhy's sentences: the 199-year prison-escape stretch was reduced to three years, the 99 years for kidnaping to 72. Touhy was eligible for parole November 23, 1959.
On that date Roger Touhy at last shook hands with Warden Ragen of Statesville and walked through the iron gates, on parole but otherwise a free He had won the most difficult battle of his life — partial exoneration of the kidnap charges and release from prison.
What about his other battles? Was the mob satisfied now?
Roger Touhy didn't think so. For on hand to greet him was a bodyguard he had hired, a former Chicago police sergeant named Walter Miller.
And on hand to watch him and shadow him wherever he went was a man with a shotgun.
Roger Touhy's death had been ordered. He was out of prison but he wouldn't live long. Why? What astounding facts did police uncover as they looked again into Touhy's violent past? What was Touhy's own story, revealed after his death, about the Chicago mayor, the attempt on President-Elect Roosevelt's life, the time Tovh lf forces and the Chicago police fatnea ic do oafile with Capone? The next in- stalment of this revealing insight into gangland will be in the May issue of Official Detective Stories, on sale Thursday, March 31.