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.