NAWSA SUBJECT FILE Mooneg, Tom JUSTICE RAPED IN CALIFORNIA TOM MOONEY. Sentenced to be hanged at San Quentin Prison, Cal., although proven to be the innocent victim of the Oxman perjury plot. WARREN K. BILLINGS. Sentenced to Folsom Penitentiary for life on the perjuries of the Edeau women, Estelle Smith the prostitute, and John McDonald a drug fiend. Story of So-Called Bomb Trials in San Francisco FOURTH EDITION of "The Frame-Up System" series by Robert Minor, revised and enlarged to 48 pages, with 62 illustrations. The former title fails to convey all the facts contained in this pamphlet, therefore the change of title. PRICE 10 CENTS Special Rates to Dealers Published by the TOM MOONEY MOLDERS DEFENSE COMMITTEE P. O. Box 894, San Francisco, Cal. Justice -- California Style "IF I KNEW THAT EVERY SINGLE WITNESS THAT TESTIFIED AGAINST MOONEY HAD PERJURED HIMSELF IN HIS TESTIMONY I WOULDN'T LIFT A FINGER TO GET HIM A NEW TRIAL." "IF THE THING WERE DONE THAT OUGHT TO BE DONE, THE WHOLE DITRY LOW-DOWN BUNCH WOULD BE TAKEN OUT AND STRUNG UP WITHOUT CEREMONY." - Edward A. Cunha, Assistant District Attorney, who was caught in the perjury plot to hang Tom Mooney. - "The Survey." RESOLUTIONS OF PROTEST Adopted by SAN FRANCISCO LABOR COUNCIL, JULY 27, 1917 WHEREAS, The verdict of acquittal in the Rena Mooney case establishes beyond a reasonable doubt the contention of the San Francisco Labor Council since the first trial in the bomb cases that the evidence of the State did not warrant the prosecution, let alone the conviction of the defendants at bar; and WHEREAS, The attempt of District Attorney Fickert, according to press reports, to again try Mrs. Mooney is a rank disregard of the constitutional right of any person not to be twice put in jeopardy; and WHEREAS, Israel Weinberg has been kept in jail for a year solely on the Edeau's identification testimony, which has been overwhelmingly impeached by the Oakland police records and the verdict of the Rena Mooney jury of twelve; and WHEREAS, One year has sufficed to so break down and cloud with suspicion the State's whole case that the convictions of Billings and Mooney, which were secured on testimony which the last trial of Mrs. Mooney has positively demonstrated to have been deliberate perjury, should be immediately reversed; now, therefore, be it RESOLVED, That this Council demands the immediate release of Mrs. Mooney and Israel Weinberg, and again demands that the Attorney-General accede to the request of the trial judge, Hon. Franklin A. Griffin, relative to a new trial. Attest: JNO. A. O'CONNELL, Secretary. 2 Justice Raped in California MRS. RENA MOONEY has been acquitted! Despite the most inhuman frauds practised up to the last minute, the Chamber of Commerce, spending perhaps $50,000, hiring a lawyer to help prosecute her, and three big detective agencies to terrorize witnesses, a jury of twelve men (mostly of the business class) has pronounced Mrs. Mooney not guilty. BUT THE CHAMBER OF COMMERCE, THROUGH ITS TOOL, FICKERT, DECLARES IT WILL HANG MRS. MOONEY IN SPITE OF THE VERDICT OF NOT GUILTY! RENA MOONEY AND TWO OF HER MUSIC PUPILS WHO TESTIFIED. Mrs. Mooney, third defendant to be tried, was acquitted. She is still in jail and denied bail. The Chamber of Commerce wants her tried on another indictment. They hope to be able to hang her yet. Mrs. Mooney was immediately thrown back into prison, and District Attorney Fickert, backed by the Chamber of Commerce million dollar anti-Union fund, declares he will try her again and again for the same crime until he gets a conviction! This is on a rank technicality of the law, there being eight indictments against Mrs. Mooney for one crime. The Chamber of Commerce refuses to accept the verdict of the jury. Assistant District Attorney Cunha has publicly advocated lynching the defendants without a trial. THE exposure of letters written by Frank C. Oxman, the cattleman who was hired by Fickert to hang Tom Mooney by perjury, has forced the Attorney General to ask a new trial for Mooney. If the Supreme Court grants the new trial, Mooney will be thrust back into the hands of the same prosecutors who before hired the perjury to hang him. If they did it once, they will do it again. All of the Labor prisoners of San Francisco are still in danger of death. Warren K. Billings is to remain in prison for life, although every important witness against him has been proven a perjurer, and the twelve men who tried Mrs. Mooney have declared that the State's witnesses were not to be believed. Fickert admitted that his chief witness, Estelle Smith, "might have been" a prostitute. Fickert's assistant, Louis Ferrari, admitted that Samuel Samuels, on whose testimony he tried to hang Mrs. Mooney, lied on the witness stand. During the closing days of Mrs. Mooney's trial, Mrs. Charles M. Fickert brought her knitting to court, where she sat with a happy party of friends to watch Mrs. Mooney's struggle between life and death. 3 THE prosecutors made every imaginable effort to break down the Mooneys' alibi witnesses. Detectives were sent to visit each witness with coercive measures to make them give statements that it was 2:30 o'clock when the Mooneys reached the roof of their house. Thomas Straub, an attorney for the Pacific Gas and Electric Co., happening to be a friend of Mr. and Mrs. Hammerberg, carried a message from Fickert to Mrs. Hammerberg. It was a plain offer to allow Mrs. Mooney to live on condition that her sister, Mrs. Hammerberg would commit perjury, thereby allowing Tom Mooney to be hanged. Attorney Straub is not to be blamed. He simply carried a message not knowing that the testimony that Fickert wanted would have been rank perjury. But as for Fickert himself, at the time that he sent Mrs. Hammerberg the offer for her to swear that the Mooneys reached the roof at 2:30, he had locked in his safe photographic films proving that the Mooneys were on the roof before 2 o'clock. The following version of the message from Fickert is authorized by Attorney Straub. Straub visited Mrs. Hammerberg, as requested, and said: "I have a message for you from the district attorney. I will give it to you as he gave it to me, and you can do as you like. "If you will change your story as to the time you got to the roof of the Eilers building, they will let Rena go free." Mrs. Hammerberg replied: "I have told the truth. If they hang Tom they will have to hang Rena, too." Straub answered, "Belle, I've always thought you would tell the truth; I'll take your answer back." "Straub then took my hand," said Mrs. Hammerberg. "There were tears in his eyes. I knew by his manner he believed I was telling the truth." WE will show you in the handwriting of the conspirator, Oxman, the plain admission of a plot to hang Tom Mooney upon bought perjury. We will tell you the names of the conspirators, THE AMOUNTS OF MONEY they were promised for their crime and how they were drilled and rehearsed in their perjury by certain officers of the law of San Francisco. We will tell you here how Charles M. Fickert, district attorney, planned to become Governor of the State of California by the hired murder upon the gallows of Tom Mooney, and how Edward A. Cunha, his assistant, planned by the same means to become district attorney. Fickert admitted that Ed Nolan was indicted without any evidence, upon his personal request. Captain of Detectives Matheson, Chief of the Bomb Bureau, has declared that Nolan was held under a murder charge for nine months ,without any justification whatever. Nolan is released on $2,500 cash bail. The only evidence against Nolan is a box of Epsom salts, which detectives first swore was saltpetre. When caught in this lie, the prosecutor had a "powder expert" swear that Epsom salts could be used in a high explosive. Nolan will be tried for murder on such evidence. Cunha admitted, as here shown, that "the matter of Tom Mooney's jury troubled his conscience" more than the proof of the hiring of Oxman's perjury. It is now known that the foreman of Mooney's jury, Wm. V. MacNevin, is a close personal friend of Cunha, although he swore that he did not know Cunha, in order to get on the jury as a plant. It is now known that the jury foreman, MacNevin, visited a certain lawyer's office every night during Mooney's trial, to exchange messages with Assistant Prosecutor Cunha. MacNevin reported progress in winning the jury over to a hanging, and Cunha sent messages to various jurymen telling them many false stories of Mooney's alleged activities in strikes in order to inflame them against the labor organizer. MacNevin "talked contracts" (he being a real estate man) to several of the jurors, to win them over. MacNevin himself was promised reinstatement on the Real Estate Board, from which he had been expelled for an alleged fraud, as his compensation for his "work" on the jury. Nearly all of the jurors who condemned Billings and Mooney received life jobs as professional jurors, from the day of conviction. Then came the Oxman exposure, involving Fickert, Cunha, and the police lieutenant, "Frame-Up Steve" Bunner. Fickert and Cunha at first begged for mercy and a chance to save themselves. The Chamber of Commerce came to the rescue and had a Grand Jury of their tools stage a whitewash for Fickert, Cunha and Oxman. 4 THIS Grand Jury brazenly refused to hear some of the most damning evidence against Oxman. District Attorney Fickert himself hired an attorney to defend Oxman and keep him from confessing on the "Higher Ups" (the Chamber of Commerce paying the bill). Oxman has fought through the Police Court, the Appellate Court and the Supreme Court to avoid facing a jury, but Chief Justice Angellotti of the California Supreme Court declared the evidence against him was overwhelming and he must be prosecuted for the perjury crime. Estelle Smith, the star witness who was discarded in favor of Oxman's story, became jealous of the cattleman's notoriety and reward and revealed in an affidavit that Oxman had offered her a bribe of "five figures" to include Weinberg in her perjury. Three days later her uncle was released from San Quentin Penitentiary, and Estelle Smith ceased to "talk." The Grand Jury in whitewashing Oxman refused to give time for Estelle Smith to testify against him. THIS edition of the booklet tells of the breakdown and confession of the two Edeau women witnesses that they lied on the witness stand under the influence of the Frame-Up Ring. These women were two of the strongest witnesses against both Mooney and Billings. But in spite of their exposures, these two women took the stand again and fought hard to convict Mrs. Mooney. They were impeached by five witnesses, including the Chief of Police of Oakland, a police inspector and three other witnesses. The jury trying Mrs. Mooney refused to believe them and acquitted Mrs. Mooney. But Tom Mooney and Billings are left on the scaffold and in prison by these women's perjury. From this you must realize the powerful influences that are determined upon the slaughter of the five Labor prisoners regardless of these glaring exposures of fraud. Superior Judge Franklin A. Griffin, before whom Tom Mooney was tried, sent a letter to State's Attorney General Webb, asking him to confess error before the Supreme Court in the Money case, and have it remanded back for re-trial. The San Francisco Labor and Building Trades Councils, the California State Federation of Labor, and the State Building Trades Council sent a joint committee to see the Attorney General in person on the matter. The date for Mooney's execution was set for the 17th day of may, 1917, but since the criminals were caught by the exposures here published, the date of the hanging was allowed to pass unheeded. This, however, is on a technicality because of Mooney's appeal, which automatically stays the execution. The Frame-Up ring has gained courage from the open support of the Chamber of Commerce's millions, and not only will Mooney be hanged, but Mrs. Mooney, Weinberg and Nolan will swing from the same gallows unless powerful action of American Labor comes soon enough to prevent it. Mooney, for fifteen years a m ember in good standing of the International Molders' Union, trustee of Molder's Union No. 1164 and delegate to the Labor Council in 1912, and to the International Molders' Convention in Milwaukee, became organizer for the amalgamated Association of Street and Electric Railway Employees of America. On June 5, 1917, although under death sentence, Tom Mooney's own Local No. 164 gave him a vote of confidence by electing him overwhelmingly as a delegate to the twenty-fifth convention of the International Molders' Union, to be held in Rochester, N.Y., September 10, 1917. Ed Nolan and his wife, Ada, photographed as he left the County Jail, where he was incarcerated for nine months on eight murder charges without any evidence against him. 5 WARREN K. BILLINGS has been sentenced to life imprisonment in Folsom penitentiary for refusing to sell Mooney, by perjury, for $5,000. Billings is past president of the Shoe Workers, and had been a delegate to the San Francisco Labor Council. He has been active in Labor Unions for years, although he is but 23 years of age. In the shoe strike of 1912, Billings was shot in a scuffle when attacked by a gunman in the employ of the Merchants and Manufacturers' Association. Mooney was also active in this shoe strike and had his leg broken by being run down by an automobile loaded with strike breakers. EDWARD D. NOLAN stands to be tried for his life on the charge of constructing a bomb in San Francisco at the time that he was in Baltimore, three thousand miles away, as a delegate from Lodge No. 68 to the National Convention of the International Association of Machinists. In 1904-10-11-12 he was a delegate to the Los Angeles Labor Council, in 1913-14 to the San Francisco Labor Council, and in 1914 to the San Francisco Iron Trades Council. He was captain of pickets in the Los Angeles Metal Trades strike in 1910. Nolan had returned from the Machinists' National Convention less than four days before the Preparedness parade. He immediately joined the strike then on, as captain of pickets. Nolan, like the other defendants, has a perfect alibi. ISRAEL WEINBERG, jitney bus driver, is still in danger of being tried and executed because he twice refused a $5,000 bribe to testify against Mooney in the street car strike and later refused to accept his liberty and $5,000 to perjure away Mooney's life. Weinberg is a member of the United Brotherhood of Carpenters and Joiners. No. 483; he is the man who organized the Jewish Carpenters' Union in Cleveland in 1902. He is also an Executive-Board member of the Jitney Bus Operators' Union, a live organization which has competed with the United Railroads street cars very successfully, taking in large amounts in 5 cent fares, the loss of which income caused the United Railroads to totter on the brink of receivership. Only a few days before, Weinberg had become really acquainted with Mooney through his son, Earnest, twelve years old, taking music lessons from Mrs. Mooney. Because of remarkable talent in the boy Mrs. Mooney was giving him more than the regular instruction without additional charge. In gratitude for this favor, Weinberg gave Mooney and his wife an occasional lift in his jitney bus. He accepted an invitation to attend Mooney's union meeting. It was through this connection that Weinberg was chosen as a convenient means of "getting" Mooney - and upon his refusal was charged with murder. Weinberg had never even met Billings or Nolan until he was introduced to them in jail as his "fellow conspirators." MRS. MOONEY MRS. RENA HERMANN MOONEY is a music teacher of very excellent standing in California. Her pupils have attained high honors, some of them playing at the Panama-Pacific International Exposition with a day of the Exposition set aside in their honor. Mrs. Mooney is the idol of her many music pupils, and has no other interest in life, except a sincere love of justice that caused her to give her assistance to her husband in Labor organization work. Because of this woman's indefatigable work as a strike organizer, she has called upon herself the utmost hatred of the System. SOME HISTORY OF THE CALIFORNIA FRAME-UP RING A clear understanding of the so-called bomb trials in San Francisco, the motive for the arrest of these five particular trade unionists, and their persecution, can only 6 IMAGE: ISRAEL WEINBERG Is also doomed to die because he twice refused to perjure Tom Mooney's life away for $5,000. he had by knowing some of California's recent history of organized labor struggles to protect itself against the criminal plotting employers' anti-union organizations. IT is the custom on the Pacific Coast for corporations to fight strikes by sending Labor organizers to prison. An army of private detectives, gunmen and professional witnesses has been necessarily formed. Behind the System are the corporations which, with their strike troubles, have built up the System to a point even greater than they themselves probably realized. The System has become known as the "Frame-Up" System. Its working force is composed mostly of private detectives, a sprinkling of regular policemen, and a loose galaxy of petty and great criminals who sell their services with the revolver and slung-shot in the strike line and trade their oaths for cash on the witness stand in "labor trials." The "Frame-Up" System is unconsciously supported by many well-meaning men who are imposed upon by false stories of detectives simply because they do not know what dark crimes are committed in the name of "Law and Order." Perjury is the System's most dangerous weapon. The wages that are paid to the hirelings on the witness stand are usually covered by the respectable name of "Reward"; but cash is cash to the System, by any name. The System works through spies, through violence instigated by detectives themselves. Its regular work is to "plant" evidence and frame-up crime. THE STOCKTON "FRAME-UP" IN 1914, the Merchants, Manufacturers and Employers' Association undertook to exterminate the Labor Unions of Stockton, California, by forcing a lock-out. The Unions resisted so capably that the employers could not win by the so- called legitimate methods. J. P. Emerson, a private detective working under the direction of H. C. Brokaw of the Employers' Association, haunted the scene of the Labor dispute for several weeks in the clumsy disguise of a tramp. IMAGE: Ernest Weinberg, son of Israel Weinberg, and music pupil of Rena Mooney. The M. and M. office compiled certain fake reports of supposed activities of Labor Union officials and sent them to Emerson, who copied them and mailed them back to the office in which they originated, pretending they were reports of his own activities and discoveries. In these spurious reports, which were afterwards to be used as a record for criminal prosecutions of high labor officials, a minute recital was made of alleged movements of the Unionists and their handling of explosives. Emerson, the gunman, was assigned to the duties of "making the reports true." For instance: A letter to the Employers' Association signed by Emerson stated that a car was broken into in the Santa Fe yards at Bay Point and some dynamite stolen. Before sending in the report, Emerson himself broke open the freight car and stole the dynamite, as he afterwards confessed. One hundred and fifty pounds of dynamite was found in two sacks concealed in the tules near Bay Point. Constable Ahearn went out to investigate. Upon the Constable's arrival at the Santa Fe station he noticed a stranger set down a wicker-ware suitcase and walk away from it. The Constable arrested the stranger who proved to be J. P. Emerson. "You'd better get your suitcase and bring it along," said the Constable. "That suitcase doesn't belong to me," said Emerson. Having seen Emerson with the suitcase in his hand the Constable opened the bag and found that it contained dynamite stamped with the same markings as that which was found in the barley sacks in the tules. Emerson was taken to the jail in Martinez. IMMEDIATELY Superintendent Cowell of a cement works in Contra Costa County, prominent in the M. and M., appeared on the scene and demanded Emerson's release. Emerson dropped dark hints about the man named Mooney, who they were going to prove was a dynamiter. Very quickly the machinery of the Employers' Association was gotten into action and Emerson was mysteriously released, six hours after his arrest without even being charged with having committed two crimes, that of stealing and having high explosives illegally in his possession. Four more sacks of dynamite of the same kind and markings as that in Emerson's suitcase were found underneath a railroad trestle west of Bay Point. The suspicion was too great to permit the scandal to be covered up. 7 EDWARD D. NOLAN and Tom Mooney were active in getting Emerson back to jail. Upon his rearrest, thinking he was doubled-crossed by the M. and M., he confessed to the whole dark plot of how the M. and M. had hired him to "frame-up" on union officials to discredit Organized Labor. Sheriff Veale got hold of the original framed-up "reports" and refused to give them up for use as evidence. Veale announced that the large collection of written evidence proving the Employers' Association's connections were "confidential communications." RENA HERMANN MOONEY'S CHARMING STUDIO. Fickert, "The Scoundrel," called it a "Den." J. P. EMERSON was tried on the charge of having high explosives in his possession but connivance of authorities resulted in his case being dismissed. He repudiated his confession and protected the Employers' Association. Rena Mooney attended the farce of a trial which was staged merely to free Emerson and prevent his "squealing" and she made notes upon the testimony. It is rather ironical that Emerson, who had confessed, was freed and these same notes on the testimony proving Emerson to be a confessed planter of dynamite for the Employers' Association, were used in 1916 to inflame public opinion in San Francisco by the announcement that the notes related to dynamiting "done by" Rena Mooney herself. Hans Le Jeune was at the same time in the employ of the Merchants, Manufacturers and Employers' Association, and engaged in the same work as Emerson. Anton Johannsen, organizer for the Brotherhood of Carpenters, saw Le Jeune sneaking to the door of his hotel room and picked up a revolver, which he held in his hand as he invited Mr. Le Jeune to come in and close the door. The gunman took a seat, lost his nerve and proceeded to tell all about it. According to Le Jeune's confession, it was the intention of the Employers' Association men to utilize the quarter of a ton of dynamite that they had stolen from the freight car in this fashion: He was to hide a suitcase full of it in Johannsen's room. At the same time Emerson was to check his suitcase of the explosives in the Southern Pacific parcel check room and then manage to slip the parcel check into the pocket of Olaf A. Tveitmoe, Secretary-Treasurer of the California Building Trades Council. A FLAT bottom motor boat was to be purchased in the name of Tom Mooney, loaded with more of the dynamite, together with fuses and fulminating caps, and left in the Stockton slough, where it could then be "discovered." Emerson was to be a star witness and to testify in verification of the reports that he was supposed to have turned in. Some of the dynamite was to be planted in the Sperry Flour Mill and an Iron Foundry, and the charge was to be made that these and several other places were to 8 have been blown up by the Unionists, who would then receive a long sentence in the penitentiary. The rearrest of Emerson and the confession of Le Jeune alone prevented the fulfillment of this criminal plan. While a strike was in progress against the Pacific Gas and Electric Company, involving fifteen hundred union electrical workers, machinists, boilermakers, and gas and water workers, a few months previous to this occurrence an effort had been made to fasten a dynamite crime upon Mooney by means of depositing in a boat a large quantity of fuse and fulminating caps. Tom Mooney was tried (four times) and acquitted. A "FRAME-UP" DETECTIVE, EMPLOYED BY THE MERCHANTS & MANUFACTURERS' ASSOCIATION. J.P. Emerson, who was caught red-handed in a conspiracy to send Tom Mooney, O. A. Tveitmoe, Sec'y Cal. Bldg. Trades, and Anton Johannsen, Organizer Brotherhood of Carpenters, to prison on a dynamite frame-up. SAN FRANCISCO CHAMBER OF COMMERCE THE "SCAB BOOK" THE war between Capital and Labor in San Francisco is marked by the Chamber of Commerce issuing an expensive book insolently entitled "A Beginning." The book is better known in Labor Union circles as the "Scab Book." It eloquently marks the spirit of warfare actuating the most vicious element of reactionary employers. Commencing with a viciously false version of the Waterfront and Culinary Workers' Strikes, excusing with contemptuous lies the murders of two Union pickets, Olson of San Francisco, and Morey of Oakland, after Capt. Robert Dollar of their Law and Order Committee had publicly said "Break the strike by filling the hospitals with union men"- this book goes down the line of all recent labor struggles, branding as criminals all the brave men and women who have sacrificed everything to take their stand on the fighting line of Labor. Not a word does the book have to say of the numerous crimes perpetrated by hired thugs of the Chamber of Commerce; not a word have they to say of the quarter of a ton of dynamite that has been taken from employees of their own labor-fighting machines; not a word have they to say of the confessions of criminal plots by their hirelings. They ignore "Captain" Jack Thomas's confession in open court that sluggers for the Chamber of Commerce were committing crimes of violence in the Culinary strike under Thomas's own direction, paid for by Chamber of Commerce money, and that Thomas got sick of his work and confessed that he and his men caused all the violence in the Culinary strike. Nor do they speak of their being caught hiring detectives to put "odor bombs" in their own non-union restaurants to create sentiment for the anti- picketing ordinance. The "Scab Book" is a declaration of ruthless warfare upon Labor Unions. With a brazen abandon to falsehood, the "Law and Order Committee" winds up with a claim that the Preparedness parade bomb explosion was the direct culmination of the Labor Union activities in San Francisco. The absurdity of the charge is clearly seen when it is known that both the central Labor bodies of San Francisco took every possible means of officially warning all Labor Unionists to avoid any activities that might be construed as interference with the Preparedness parade. When it is seen that at the time of the Preparedness parade a United States army was in occupation of a part of Mexico and that war was threatened with another foreign power; that some foreigners felt bitterly that the Preparedness program was directed against their countries; and, above all, when we note that the tools of this Law and Order Committee were the first to destroy evidence and conceal all possible information as to the explosion, thus letting its real perpetrators escape without arrest, then it could be readily seen, even did we not here give the proof, that the fastening of the crime upon their Labor enemies by means of deliberately manufactured evidence is a criminal conspiracy. But the Chamber of Commerce, connected in a nation-wide plan to crush Unionism in favor of the open shop, hired Attorney Chas. W. Cobb to actively assist in hanging Mrs. Mooney, and put up the money. THE UNITED RAILROADS ONE of the corporations that has had most need for the dark and devious services of the Frame-Up System is the United Railroads of San Francisco. Corrupt to the 9 SAN FRANCISCO'S UNCROWNED TYRANT "A GENTLEMAN THUG" Fred'k Koster lives in San Mateo, Cal. Millionaire barrel manufacturer, one time Commander-in-Chief of California Militia, and President of the Chamber of Commerce, also their "Law & Order" Committee of 100 "Vigilantes" and Chief Spokesman for all assaults on Organized Labor, Koster, addressing the National Association of Manufacturers' Convention in New York, May, 1917, spoke on "Law and Order in San Francisco," and the Chamber of Commerce's effort to cast off the stigma of being a "Labor Union ridden city," by "fighting for the Open Shop." He urged his hearers to do likewise in their respective localities. "No matter what we do in California and San Francisco, we find that we are confronted by a tremendously powerful national organization, which has become the dominant thing in the life of this nation, not only in politics, but in all departments," he said. "We haven't anything as yet that is fit to cope with such an organization as the American Federation of Labor. AND IT MUST BE CREATED. ———————— ANOTHER "GENTLEMAN THUG." One of Organized Labor's bitterest enemies. Speaking at the Chamber of Commerce Open Shop meeting, he said the way to settle the Longshoremen's strike is to send ambulance loads of strikers to the hospitals. Shortly after two union Longshoremen were killed by the Koster-Dollar Chamber of Commerce hired murderers. Then shortly after that Capt. Dollar endowed a Theological Seminary with $50,000 to teach the workers more about the hereafter. CAPT. ROBT. DOLLAR, Millionaire Steamship Owner. ———————— Chief Gunman for the Chamber of Commerce, now their private Chief of all Gunmen, Strikebreakers and Frame-Up Gum-Shoemen, used against the Labor Unions. Ex-Chief of Police Wittman, in 1901, during the Teamsters and Iron Trades Union Strikes, used the entire police department in an effort to defeat these strikes and destroy the unions, but without success. 10 last cent in its treasury, this company had been in much trouble with criminal courts. The whole world knows the history of that graft scandal, involving the officials of the United Railroads for debauching the government and bribing city officials to gain illegal franchises to run scab manned street cars in San Francisco. This corporation succeeded in completely annihilating the Carmen's Union in 1907. Eight different attempts to reorganize the carmen have been made by the ablest organizers and international offices of the Amalgamated Association of Street and Electric Railway Employees of America, without success. ———————— LONGSHOREMEN'S STRIKE SCENE Three San Francisco Cossacks following and guarding two Chamber of Commerce Gunmen on truck leaving the dock. ———————— Never did the "Frame-Up System" have dirtier work to do that for the United Railroads. Francis J. Heney, prosecuting the grafters, was shot down in open court, and a dynamiter was hired to blow up the home of a witness, "Big Jim" Gallagher, to save United Railroads officials from the penitentiary. The sum of $200,000 was offered to a prominent San Francisco lawyer to accept the position of district attorney for the purpose of dismissing the indictments against the United Railroads officials. The lawyer replied to the offer: "You are mistaken in your man." THEN Charles M. Fickert, a big hulking fellow, looking less like a lawyer than a prizefighter, was chosen as the United Railroads candidate for the office of district attorney. Fickert himself had been a strikebreaker in the San Francisco teamsters' strike of 1901. It is said that the street car company spent one hundred thousand dollars in his election alone. Fickert's charm was not that of ability. An able man was not needed—simply a messenger boy to run an errand for the United Railroads. All that the new district attorney had to do as to appear in court and say with voice now clothed with authority: "I move that indictments be dismissed." Fickert showed himself a servant so perfectly pliable that he was kept as district attorney for future dirty work for his masters. One such job is now on: Fickert undertook THE HANGING OF FOUR MEN AND A WOMAN FOR TRYING TO ORGANIZE STREET CAR EMPLOYEES, expecting to get as his reward the governorship of California. IT IS a custom of the United Railroads to discharge any man caught joining a Labor Union. In the eyes of this corporation, membership in a Labor organization is a crime; and it must be remembered that man of the tools of the United Railroads proceed more or less conscientiously, upon the theory that a Labor organizer is a criminal. Corporation detectives have a "morality" of their own. It is that "It takes a crime to trap a crime"; and they do not hesitate to commit any lawlessness for the purpose of sending to the penitentiary or gallows any man regarded by them as a criminal. This "morality" extends to some policemen. It was therefore necessary for Mooney, in calling a meeting of street car men, to try to keep the affair secret and save the men from being discharged from their jobs; but "stool pigeons" posed as car men and were invited to the meeting. These "stool pigeons" informed the employers of the meeting on the day it was to occur, so an army of gunmen appeared at the meeting hall and lined up outside the building. A notice as posted in the car-barns on the day of the meeting, declaring that any man who joined the Union would be discharged, and denouncing Tom Mooney as a "dynamiter." Note that we say that this notice was posted One of the Koster-Dollar Chamber of Commerce hired murderers. He killed olsen, striking Longshoreman. Homer Waters, ex-convict, pimp, gambler, gunman and strikebreaker, plead guilty to shooting Olson, defended by the Chamber of Commerce Chief Counsel, was paid $12 every week in County Jail by Chamber of Commerce, found guilty of manslaughter, sentenced to ten years, with inexperienced prosecutor and foreign Judge conducting case. 11 before the meeting. Also, arrangements were made in advance with the Pacific Gas & Electric Co. to borrow electric power for the United Railroads, "in case of accident." In the course of the street car men's meeting, Mooney had occasion to walk from the main hall to the ante-room for a conference. One of the detectives who had sneaked into the meeting leaped from the window at this moment and ran to give the signal that Mooney had left the building. At 4 o'clock in the morning an explosion destroyed a few hundred dollars' worth of high-power towers of the United Railroads. The time of the explosion was calculated, apparently, as being an hour late enough for Mooney to have traveled by automobile the distance of fifteen miles to the scene of the explosion. The destruction of the towers was only spectacular, doing very little damage; not a street car paused in its way, nor was even the Pacific Gas & Electric Co. power needed. But the System had made a slip! The towers were blown up at an hour when it would have been impossible for Mooney to get to the scene, for Mooney did not leave the hall at the time the detectives claimed he did, and had a hundred witnesses to prove it. A victim of hired murder in the guise of "Law and Order," and paid for by the Koster-Dollar gang of "Gentlemen Thugs." Brother Olsen, striking union Longshoreman, father of thirteen children, killed by a gunman hired by the Chamber of Commerce "Law and Order" Committee while he was trying to secure a better existence for his wife and children. Dynamite having failed, the United Railroads detectives fell back upon their old reliance, Gold. THE street car was broken by the treachery of spies in the union ranks. The actual strike (July 14) endured but about one hour, when the cars were tied up on the main street and an enormous crowd gathered. A police captain was overheard in the crowd to inform a patrolman that "We are not going to get Mooney now; we will do it later." Tom and Rena Mooney prepared to go, for the wife's benefit, on a vacation to a neighboring summer resort. MONEY FOR EVIDENCE ON the 17th day of July Martin Swanson, ex-Pinkerton and chief detective for certain corporations, including the United Railroads, sought out Warren K. Billings, whom he knew to be acquainted with Mooney, and offered him $5,000 to sell Mooney into his hands. Billings was first offered a job, and then offered the money. Three helpless victims of so- called "Law and Order." Three more of Brother Olsen's children. "The Gentlemen Thugs" robbed these kiddies of their father and their bread winner. Upon Swanson's offering Billings the $5,000 bribe, Billings' first thought was to get word to Mooney. Swanson shadowed Billings to keep him from having the opportunity, but Billings met George Speed, Secretary of the I. W. W., at the corner of Fourth and Market Streets, and told him that a Pinkerton had just offered him money to frame-up Mooney, and asked Speed to take a note to Mooney's studio. Speed carried the note. (Billings was afterwards accused of having sent in this note by George Speed a message to Mooney to meet him for the purpose of planning to dynamite the Preparedness parade. The court would not allow Billings to explain what the contents of this note were.) For refusing to sell Mooney for $5,000, Billings is now under sentence of life imprisonment in Folsom Penitentiary upon the pretense that he caused the Preparedness parade explosion. Swanson also found Israel Weinberg on the same 17th day of July, and rode in Weinberg's jitney bus as an excuse for conversation. The $5,000 bribe was offered to Weinberg, who indignantly refused it. Two days later, Swanson again hailed the jitney bus and repeated his offer to Weinberg, assuring him that not much evidence was needed and that he could make the $5,000 dead easy, and then go east and set himself up in business under another name. Weinberg wrathfully declined. Swanson 12 The slimiest one of them all, and one who has not accounted for his movements on the parade day, "The King of Framers." Martin Swanson, Ex- Pinkerton Detective, now private detective for United Railroads, Gas & Electric Co., and the Chamber of Commerce. He twice offered $5,000 to Billings and Wienberg one week before the explosion to perjure away Tom Mooney's life. He now works out of Fickert's office for the U. R. R. jumped out of the automobile, snarling: "I'll get you for that!" (A week later, when Swanson arrested Weinberg on the murder charge, he growled into Weinberg's ear, "Didn't I tell you I'd get you?") THE PREPAREDNESS PARADE IN THE midst of these labor troubles, the Preparedness parade was planned. The Chamber of Commerce backed the parade and insisted that all employees in San Francisco must march in it. The Labor Unions did not like to take orders of this kind, and officially refused to have anything to do with the employers' Preparedness parade. The hatred of trade-unionism, nursed in the breast of the Chamber of Commerce, was expressed in a meeting of business men who, in fifteen minutes, subscribed three hundred thousand dollars (twenty-five thousand coming from Rockefeller's Bank of California), for the avowed purpose of establishing the open shop and death to labor unions in San Francisco. This fund quickly grew to a total of one million dollars, which is now being openly used to hang Tom Mooney, Mrs. Mooney, Weinberg and Nolan - with Billings already sent to the penitentiary for life. The so- called Law and Order Committee of the Chamber of Commerce has published big advertisements in the daily papers, announcing their deliberate determination to defend Fickert in the perjury conspiracy affair and his effort to go ahead with the hanging of the labor prisoners. The Labor Unions' opposition to the preparedness parade was largely due to the blatant command of this labor-hating organization that every union man must march in the parade, or be discharged from work. San Francisco is a thoroughly Union town, and not an organized man marched. Only 22,000 employers and non-union employees, led by a body of society women, formed the parade - it having been cut down by the labor union action from an estimated 150,000. Organized Labor was perfectly satisfied with the victory, and entirely through with the affair before th day of the parade. The campaign for military preparedness had been so hotly waged that somewhere in the city a man or men became so bitter as to conceive the idea of throwing a bomb. Or perhaps it was not an anti-militarist, but a corporation detective who conceived the diabolical scheme. We do not know - we can only say that it was the employers alone who profited by the deed - the same organizations, in effect, which fathered the dynamite frame-ups of Stockton and elsewhere. Hundreds of warning letters were mailed to the leaders of the preparedness movement; the police and leaders of the parade and the newspapers all received many post-cards and letters declaring that a bomb would be thrown. Street Car Strike scene at Third and Market Streets, showing complete tie-up of all cars in business section of city. Insert showing Rena Mooney being arrested for pinning Union Button on car man during the tie-up, July 14th, eight days before parade. A newspaper reporter tipped off Labor officials, and the Unions immediately issued their warning to all Union men to remain silently inactive in order to give no possible chance for the blame to be put on Organized Labor. The inceptors of the Preparedness parade did their best to keep these warnings from becoming public for fear that the rank and file would refuse to march. As the parade was about to commence, Mrs. William Hinkley Taylor, a society woman, leader of the woman's division of the parade, was handed a note by a small dark foreigner, warning her of the impending disaster. The man vanished into the crowd before the note was read. Mrs. Taylor gave his description to the police. But Martin Swanson had other plans, and so the note lies now, unused and unwanted evidence of the crime. 13 THE BOMB STEUART STREET was filled with paraders waiting for the signal to march. One of these was Dr. J. Mora Moss, a prominent physician. As he wheeled about, marching out of Steuart into Market street, he happened to raise his eyes and saw a large black cylinder crash down into the crowd from above. Immediately there was a tremendous explosion, and when the smoke drifted away, there lay ten men, women and children dead or mortally wounded, whilst half a hundred others were severely hurt. Mrs. Janie K. Compton from her window in the Terminal Hotel saw a man climb onto the roof and walk to a spot immediately above the explosion. The man leaned over the sidewalk and ran away as the explosion occurred. Mrs. Fanny Dahl, a white haired woman, stood facing the scene and saw the bomb drop into the crowd. Crashing slivers of iron and broken glass wounded her. Charles F. Hollfelder also was standing near and saw the bomb flash past. Louis Eris was another eye-witness to the bomb throwing. Mrs. Maude Masterson was crossing Steuart street the moment of the explosion, and saw the object falling towards the heads of the crowd. As the bomb exploded, Mrs. Masterson fainted. Upon recovering from her faint, she rushed up Sutter street, where she met Policeman Clarence Bormouth. She was in the act of telling him of seeing the bomb fall, when District Attorney Fickert and Frederick H. Colburn, President of the Bankers' Exchange and manager of the Clearing House, came by and were also told what Mrs. Masterson had seen. Policeman Bormouth took her name and address in his note book. Most of these six eye-witnesses to the throwing of the bomb reported immediately to the police, but all of them were told that they were not wanted. WHEN Mooney came to trial, his lawyers demanded the name and address of Mrs. Masterson. Officer Bormouth said he had lost the note book in which he had placed the address. Then he changed his mind and said, "Ask Fickert." District Attorney Fickert stubbornly refused to give the information, claiming that he did not possess it. Toward the end of the Mooney trial, so much heated argument took place in court to obtain the address of the witness that Fickert finally surrendered it. The defense investigators rushed to the address given. Mrs. Masterson had moved away a few hours before the District Attorney gave up her address and had gone to a secluded residence across the bay, One more union man of the Koster-Dollar Chamber of Commerce hired murderers assassinated. Lewis A. Morey, killed by Chas. Berg, one of the "Law and Order" Committee's strikebreaking murderers. "The Gentlemen Thugs" commend this kind of "Law and Order." Another one of the "Law and Order" Committee's hired assassins, who did his dastardly work to suit the hearts' content of Koster and Dollar and the rest of their lik, "The Gentlemen Thugs." Chas. Berg, gunman, strikebreaker, who shot and killed Lewis A. Morey, striking Longshoreman. Berg was defended by able counsel hired and paid for by the Chamber of Commerce "Law and Order" "Vigilantes." He was acquitted. They need his services to murder a few more good union men, in the name of "Law and Order." Dr. J. Mora Moss, prominent physician who testified at the Mooneys' and Billings' trials, is showing with roll of paper how he saw the bomb fall. He marched in the parade. 14 without giving her new address. She was finally discovered by accident, and testified for the defense. Thus the bomb was proven to have been thrown from above, by the testimony of six eye-witnesses, to say nothing of Dr. Stafford, autopsy physician, the very first witness for the State, who said that the bomb, in his opinion, "must have exploded before it reached the ground." FRAUDS PERPETRATED TO BUILD THE FRAME-UP STRUCTURE STEPHEN V. BUNNER, Lieutenant of Police, has a record. He was one of the two policemen who were the only witnesses in the famous case of the frame-up of Dowdall. Dowdall was a poor fellow in whose tent policemen "planted" a stolen overcoat in order to get a conviction and save the police department from a shake-up at a time of crime epidemic. Dowdall spent years in prison on a fifty-year sentence, losing his sanity; whereupon the real hold-up man who had stolen the overcoat confessed. It was Bunner who had charge of the scene of the crime of July 22nd. Colburn, Fickert's friend, got a sledge-hammer and beat a large hole in the sidewalk where there had originally been a slight abrasion from the exploding bomb. Someone else, while the place was in Bunner's charge, dug out the brick wall with a crowbar. Then photographs were taken of the holes dug by the sledge-hammer and crowbar, which were kept as the record of the effect of the bomb, until six months later, when the defense of the labor men discovered a true photograph taken by a bystander immediately after the explosion. (See both photographs, on pages 15 and 16.) This fraud was done to make it appear that the bomb was placed in a suitcase and thereby get rid of the real witnesses. BEFORE sundown, Fickert called in Martin Swanson, who had, as said before, on the preceding Wednesday, offered Warren K. Billings $5,000 to frame-up Mooney, and had made the same proposition twice to Israel Weinberg. Arthur Silkwood, union electrical worker, was three times offered $5,000 in this same week to frame-up Mooney. This sinister detective quietly wrote out the names of the street car strike leader, his wife, and the two men who had refused to sell the strike organizer into his hands. Fickert told the U. R. R. detective to proceed as he saw fit. Fickert was ambitious. Every incident seemed to point to a spectacular trial with certain victory and glory for the district attorney. Fickert confided to friends, and, indiscreetly, to acquaintances, that he expected to become Governor of the State, by means of the glory won. So was the plot formed to murder upon the gallows five human beings. Little by little, the black waters of perjury got deeper, until Fickert, not sufficiently intelligent to save himself, was at last engulfed. FAKE DRY CELL BATTERY PART "PLANTED" TWO days after the explosion, someone (Martin Swanson in charge) dropped a little green insulated coil of wire at the scene of the explosion, and someone else obligingly came along and "found" it. This was dramatically shown to the Mooney jury as a dry-cell battery coil to prove to the jury that the explosion was caused by a stationary bomb, until the fraud was exposed in court, that it was a retarding coil from a telephone switchboard, chosen by the "framer" by mistake. The parts of two clocks were introduced in over-enthusiasm as proof that one clock has been used in the bomb! Many fragments of metal were introduced as missiles from the bomb and fragments of its container. The strange part of it is, however, that everything which tended to show a stationary bomb with a time device was found, not immediately after the explosion, but days afterwards--after Martin Swanson had concocted his theory of Mooney and the suitcase. Mrs. Fannie Dahl saw the bomb fall into the crowd. She was wounded by the bomb. Mrs. Janie K. Compton, who saw man throw bomb from roof of building. Fickert concealed this witness. Mrs. Maude Masterson saw bomb come through the air. As it exploded she fainted. She reported to Fickert immediately. He concealed this witness, and did everything to prevent the defense from securing her as a witness. 15 Colonel Arthur Isert, a veteran of the United States Army and ex-colonel and explosive expert in the Mexican Army, made two duplicates of the bomb that the prosecution's experts swore was placed in a suitcase at Steuart and Market streets. These bombs were taken and placed in suitcases on a hillside back of the town of Berkeley, the locations being pointed out by the Chief of Police of Berkeley as being safe, and the explosives were detonated. By this experiment it was proven that such an explosion could not possibly take place without leaving many fragments of the suitcase, many parts of the clocks (which the State contends were used) as well as large portions of the dry-cell batteries. Colonel Isert demonstrated to the jury by this means that the whole theory of the United Railroads detective of a suitcase bomb was impossible, the State having not one single thing to honestly indicate any suitcase, clock or dry-cell battery. The suitcase theory is the pure product of a long newspaper campaign of falsehood conducted by Fickert to "get" Mooney, whom he had to admit could not have been present to throw the bomb. A "FRAME-UP" BOMB? THE theory is advanced by many that the detectives of the Frame-Up System themselves made the bomb. If they did not make it, there is at least as much reason to believe that they did as there is to believe that they did not. To those who find it hard to think such a thing possible, we wish to call to mind the Stockton frame-up, and the many, many other cases in which the criminal gang that lives upon corporation money in fighting Labor, has deliberately committed the most fiendish crimes for the purpose of trapping and convicting Labor men by "Frame-Ups" for the commission of those crimes. We want to remind you again that Martin Swanson, the detective for the utility corporations, had been desperately trying, up to the very moment of the parade, to trap Tom Mooney. We call attention to the innumerable frauds that were perpetrated to fasten the blame upon these defendants after the crime was committed, and to the bribes that were offered for Mooney's conviction during the seven days preceding the explosion by this same man who was the hidden power behind Steve Bunner when the evidence was deliberately destroyed and a fake set of evidence built up with crowbar and sledge-hammer, false photographs and a "planted" imitation drycell battery part. ON "Preparedness day," Mrs. Mooney's cousin, Mrs. Timberlake, and Mrs. Hammerberg, sister of Mrs. Mooney, arrived at the music studio about noon to view the parade from its windows, which overlook Market street. An enormous flag, however, had been draped over the front of the building, which effectually covered all of the front windows of the studio, and the party decided to go to the roof. Several pupils of Mrs. Mooney dropped into the studio to bid her good-bye for vacation time. Employees of the building passed in and out of the studio, fixing the large flag. Several street car men called and talked with Mooney. All of these persons proved an unbroken alibi for the Mooneys for every minute of the time they were supposed to be committing murder a mile and a half away. About 12 minutes to 2 o'clock, the music of the parade was heard, and Tom Mooney, Rena Mooney, Mrs. Timberlake and Mrs. Hammerberg went to the roof of the building to see the parade. From this time on, he and his wife are proven to have stayed on the roof until late in the afternoon. IMAGE: BEFORE the "Frame-Up" Gang worked on the scene of explosion with sledge-hammer and crowbar destroying real and manufacturing false evidence. AS IT WAS. The true scene of the explosion, introduced into evidence by the defense. As the head of the procession approached, a young man on the roof of the adjoining building, by the name of Wade Hamilton, took out a Brownie camera to snap the approaching procession. (Wade Hamilton had never known any of the Mooney family.) In leaning over the edge of the wall to catch a view of the coming parade, many persons on the roof happened to appear in these photographs, including both Tom and Rena Mooney. Only their backs show, but their identity is easily recognized and not disputed. Four times young Hamilton snapped the coming parade. In three of these pictures Tom Mooney appeared, and in all of them Rena Mooney was shown. The first picture was snapped at 1:58; the second at 2:01; the third at 2:04. (The bomb explosion occurred at 2:06.) 16 As the parade approached, about two o'clock, a spectator asked a friend: "Who is that leading the procession?" Tom Mooney turned and replied: "That is the Mayor." This incident, testified to by the man who asked the question, fixed the fact that Mooney was on the roof at ten minutes to two. Tom and Rena Mooney took a train on Monday morning, two days after the parade, to go on their vacation to Camp Montessano, the resort having been recommended by one of Mrs. Mooney's music pupils. This vacation had been talked of by the Mooneys to their friends for some time, and many postcards signed by their full names were mailed from the resort. Nevertheless Tom Mooney was sentenced to death on the theory that he and his wife were there in hiding. At Montessano, while rowing in a boat, Mrs. Mooney noticed in the San Francisco Examiner the announcement that Thomas J. Mooney was wanted for the bomb explosion and was "a fugitive from justice." Immediately the couple returned to the camp, dressed, and caught the first train for San Francisco. Before leaving, Mooney sent the following telegram: "Chief of Police White, San Francisco: Wife and I left San Francisco last Monday, 8:45 a. m., for week vacation at Montessano. See by papers I am wanted by San Francisco police. My movements are and have been an open book. Will return by next train to San Francisco. I consider this attempt to incriminate me in connection with the bomb outrage one of the most dastardly pieces of work ever attempted. "TOM MOONEY." The same telegram was sent to the San Francisco Bulletin. On the train bound for San Francisco, detectives arrested Tom and Rena Mooney and took their tickets away from them. The prisoners were taken off the train at the town of Guerneville, were held some time, put in an automobile, and carried on a long, roundabout trip, while the newspapers fed the public mind upon exciting stories of the efforts of the Mooneys "to escape." By means of the indirect route of the automobile, the regular ferry boat was missed and a special boat chartered to carry the prisoners across the bay. With much melodramatic acting, the detectives turned Mooney and his wife over to newspaper photographers at the ferry landing as their captured prize. The Mooneys showed their checks, proving that their tickets were for San Francisco (these checks are in the possession of the attorneys for the defense), but the district attorney gave out the mendacious stories just the same. BATHROOM JAIL FOR WOMEN RENA MOONEY was kept in a bathroom two days and nights, the prosecutor kindly allowing her a pallet of rags under the shower bath and toilet seat, for a bed. After forty-eight hours of this, the newspaper men were called in to be shown that Mrs. Mooney was "nervous and excited, just like a guilty woman." EVEN THE DEFENSE LAWYERS WERE OFFERED MONEY ASSISTANT DISTRICT ATTORNEY JAMES BRENNAN met John G. Lawlor, attorney for Billings, in the corridor of the fourth floor of the Hall of Justice, and said: "Jack, you're a big leaguer. If you'll get this fellow (Billings) to come through, WE'LL GIVE YOU $15,000, and you can give him five or ten thousand, as you please, and we'll get him out of the country. Billings was arrested by Martin Swanson at the Lane Hospital, where he was regularly enrolled as a patient for eczema. Before being allowed to see anyone, Billings told the Chief of Police the com- 17 plete story of his movements, which tallied exactly with his testimony on the witness stand, as proven by the Chief of Police. Billings also drew a map of his movements. On the afternoon of the day of tragedy, Billings overheard a conversation by a prominent business man, Bert Wertheimer, and a friend, concerning the parade, as well as the acquaintances during that part of the afternoon, Billings was forced to rely for his alibi upon such incidents, which were afterwards proven by Wertheimer and the girls in the parade to be precisely as stated and formed an indisputable alibi. But Billings was nevertheless convicted. The judge would not even allow him to tell of his movements before noon on that day, the jury being incited by the prosecutor to believe he was arranging for a bomb. ON Preparedness day, Israel Weinberg drove his jitney bus over his regular route, the Fillmore-Sutter line, until 12:45 p.m. At about 1:30 o'clock a jitney bus driver named Simon Steller saw him on Golden Gate avenue, and so testified. At 1:40 o'clock Weinberg quit his route and went to the clothing store of Mrs. Esther Kaplan, to tell her of a letter received from his wife, who was at the bedside of her dying brother in Cleveland. It is proven that he was in Mrs. Kaplan's shop at about twenty minutes to two o'clock. At fifteen minutes to two, Weinberg left the shop and met David Smith, a law student, who asked about his brother-in-law's health, and introduced him to Leon Carrasso, an insurance agent. Carrasso and Smith both testified at Mooney's trial that this occurred at 1:45, the exact time that Weinberg is supposed to have been driving the "dynamite car" at Steuart and Market streets, two miles away. IMAGE: A self-confessed low degenerate, who pleaded guilty to a heinous crime. John Crowley, star witness against Billings. Defense exposed his past bad record. Fickert dropped him for Oxman. WHEN Weinberg was arrested, the news was given out that immediately after the explosion one of the dynamiters had run into the back door of the Jitney Bus Operators' Union - (which has no back door). Martin Swanson took Weinberg to his home for the purpose of a search. With a grin this detective hissed in Weinberg's ear, "Didn't I tell you I'd get you?" Weinberg had been given a long and torturing third degree by the police upon his arrest in the effort to get from him some confused statements. Weinberg first gave an open and frank statement to Detective Mike Burke. Then he was awakened from a sound sleep and a brilliant electric light was flashed into his face, while half a dozen detectives shouted and annoyed him to no avail. A slight confusion of speech in the statement made under the third degree torture was attempted to be used against Weinberg in Mrs. Mooney's trial, but the jury refused to take it seriously and demanded to know what sort of torture Weinberg was undergoing at the time of the statement. The defense demanded the other statement given by Weinberg while not under duress. The prosecution pretended to have lost the statement, saying that the last they heard of it, it was in the possession of Detective Mike Burke. Mike Burke was demanded to be sworn to tell the defense where that statement was. Mike Burke was not found to be and that statement therefore was not producing during the trial. We learned afterwards that Mike Burke was seen running away from the courtroom at the time he was being called to the stand. In the Billings trial, Steve Bunner testified that Martin Swanson was present at the searching of Billings' house. The prosecutor quickly asked him: "Mr. Bunner, isn't it possible that you are mistaken about Swanson being there?" Bunner looked hard at Fickert's face and obediently swore: "Yes, I might be mistaken; in fact, I am sure that Swanson was not there." Thus every effort is made to protect the foul tool of the corporations from being involved and showing the corporation vengeance in its true colors. (Before Attorney McNutt took the defense, Swanson had met him on the street and said: "Don't you think that if we can keep the private detectives and special prosecutors out of it and make the public think that the regular officers of the law have worked up this case, we can hang Billings and then get Mooney, the man we want?") EDWARD D. NOLAN was arrested as he left the Machinists' Union hall after making his report from the National convention. It was in the basement of his home that Tom Mooney kept his motorcycle, which motorcycles had been used to trail automobiles carrying scabs, in order to find their residences and request them to join the union. 18 His home was searched. A box of Epsom Salts and a quantity of molder's clay were discovered in his home and passed off to the Grand Jury as explosives. Upon such evidence the Grand Jury indicted Nolan, as well as the other defendants. The famous box of Epsom salts was passed off to Mrs. Mooney's jury as saltpetre, until the prosecutors were caught in the lie. Then they had an expert swear that "Epsom salts could be used in a bomb." Nolan also has an absolutely proven alibi. District Attorney Fickert has since admitted: "I can handle the Grand Jury. They indicted Nolan without any evidence, at my request." "PLANTING" DYNAMITE AS EVIDENCE TO HANG MEN THE police raided a cabin on the Russian River, which was owned by a man named Nolan. They "discovered dynamite" in the cabin, or, to use the language of the Frame-Up System, they "found" dynamite there. A man was left to guard the house. A stranger arrived; the guard asked the stranger who he was. "I am Nolan," said he. The place belonged to William Nolan, an engineer in the government service at Mare Island - no connection or relation of Edward D. Nolan, the machinist. Quickly word was gotten to the authorities that it was a mistake, and the "found" dynamite was promptly lost and never again heard of! Not one word of this rankly criminal episode was allowed to creep into court. IMAGE: A FORMER PROSTITUTE. Estelle Smith, alias Moore, alias Starr, who was arrested for complicity in a murder for which her uncle was convicted. She was arrested several times as a prostitute. She said "Men Higher Up" than Fickert sent Oxman to offer her not less than $10,000 to testify against Weinberg. AS soon as the papers announced that a big money reward would be paid for the identification of the bomb throwers, hundreds of people came forward eager to identify the suspects and to swear they had seen them in guilty acts. (Why not? The district attorney said they were guilty, didn't he?) THREE policemen and one social worker of Los Angeles told the jury in the trial of Mrs. Mooney, that they knew "Estelle Moore's" reputation in Los Angeles to be bad. One policeman had to comply with the judge's command and avoid saying that his acquaintance with Estelle began when he arrested her on a murder charge. Another police officer, who arrested Estelle on a prostitution charge, hemmed and hawed about and said that he last saw Estelle coming out of a "rooming house." The real story of Estelle, freed from the restrictions of the law court, rises to the plane where truth rivals fiction. This gorgeously dressed "janitress out of a job," who is now living in a fine apartment on the north side, paid for from funds supplied to Fickert by the Chamber of Commerce, originated somewhere in the South. She has been in many cities, though probably with but one occupation. The same occupation which caused her arrest in a bawdy house in Los Angeles by one of the officers who testified, appears to have been her occupation in Jacksonville, Florida; New Orleans; El Paso, Texas, and Chicago, Ill. In 1913, Estelle Smith, then known as Estelle Moore, was reputed to be living as the common-law wife of her half-brother Morris Bohannon. Morris appears to have become entangled with another girl by the name of Irene Smith, very much to the rage of Estelle. Estelle got her uncle, J. L. Murphy, to go with her to demand that Irene Smith give up her effort to marry Morris Bohannon. Irene refused. Estelle become enraged, a fight ensued, a shot was fired, and Irene fell dead. Both Estelle and her uncle, Murphy, were indicted for the murder. Estelle on all public appearances affected the dress of a child with her hair down her back. During the trial of her uncle, she feigned hysteria on the witness stand and complained, just as she did four years later in the trial of Mrs. Mooney, that "people were pulling faces at her." Estelle was the daughter of Murphy's sister and he had been accustomed to protect her. Only he and Estelle had been present when the shot was fired. One of them must be held responsible. Murphy did not have very much to say. Estelle had many words and many tears, a pretty face and childish airs. Murphy went to San Quentin prison on a twelve-year sentence. Estelle "saw the District Attorney" and was released. 19 While she was in the jail, the other women who were there thoroughly despised Estelle. The reason they gave was that in the loose living in which they had been steeped, at least they had never included their own brothers. Estelle's reputed way of living was the horror of the jail. One of the women in the prison, an adventuress, was the principal person in whom Estelle confided. When first brought to the prison Estelle could neither sleep nor rest. After long hours of sobbing and raving Estelle was told by the older adventuress that if she would unburden what she knew, she could sleep better. The two women had a conversation, after which Estelle dropped off to peaceful slumber. The other woman said that what Estelle told her was that she herself had fired the shot. After the conviction of Murphy Estelle was released and the talk of the underworld was "Murphy took the fall for her." About this time Estelle's step-father, J. D. Kidwell, was convicted of forgery and sent to Folsom penitentiary. Morris Bohannon left and Mrs. Kidwell and Estelle came to San Francisco. The two women went to live in the rooms back of a dental office at 721 Market street, "the dentist giving us the rooms free," as Estelle put it. Estelle and the Dentist, together with Mrs. Kidwell and a friend, Louis Rominger, who keeps her company while her legal husband is in the penitentiary, were happily installed in this establishment at the time of the preparedness parade. A reward of $17,000 was offered for the arrest and conviction of the perpetrators of the bomb crime. Rumors were rife of suitcases having been seen mysteriously about the railroad and ferry station where the crime occurred. A photographer had climbed to the roof of the dental office on parade day with a large camera in a case. Estelle was quoted in the newspapers as having seen a bomb thrower come to the roof with a bomb in a camera case, which he started to throw but changed his mind. Estelle gave many interviews. It appears that Estelle's mother, a godly woman, according to the press, was very reluctant to let her gentle daughter go out into the rough world of policemen and labor agitators to tell what she knew; but Mrs. Kidwell wrestled with her conscience and finally told her daughter, so said the papers, to "commune with God and go forth to testify." At that time the reward stood at $8,000. Estelle communed with Assistant District Attorney James Brennan, and came forth to testify to a story entirely different from what she had told to newspaper reporters. Billings was convinced upon her testimony predominantly. Mrs. Kidwell was also to testify. District Attorney Fickert promised to get her husband released from the penitentiary on that consideration, and Mrs. Kidwell wrote to the convict husband of the agreement. The letter fell into the possession of the defense, and Mrs. Kidwell could not be used, the Edeau women taking her place. Louis Rominger went to see Billings and declared that Billings was not the man whom he had helped to the roof with the camera case. Then Rominger returned to the dental office and Estelle - his "daughter" as he called her - communed with him a while and he communed with Jim Brennan and he finally said "I see they will be sore at me if I don't identify this fellow" - and thereafter Rominger was a witness who swore that Billings came to the roof with a suitcase. The conviction of Billings was raw. In fact it was so raw that it stank from San Francisco to the Atlantic Ocean and it did not look safe to try to repeat it. Especially because Estelle Smith's fairy tale of Billings at the dental office was flatly contradictory of other testimony of is being at the scene of the crime many blocks away at the same time. So Estelle, the petulant, the dramatic, the proud, who had seen her photograph in the papers many times and been promised $8000, was dropped from the list of witnesses, and one Frank C. Oxman (about whom we'll tell you more later) was obtained as a sort of "omnibus" witness to take the place of Estelle Smith and several other witnesses whose records had been discovered and necessitated their discharge. Estelle was furious. True, she had been living well, comfortably located in a house on Van Ness avenue, the rent paid by the police, and with Louis Rominger commissioned as a special policeman to "guard Mrs. Kidwell," but actual large sums of cash Estelle had not yet seen according to her expectations. So when Frank C. Oxman was caught in the most astonishing perjury fraud that ever graced American history, Estelle had a lot of spleen to vent. She rushed into print with a voluntary affidavit that Oxman had offered her a large bribe for perjury. She said that Oman had mentioned "men higher-up" who were to pay the bribe. The Chamber of Commerce was paying for the prosecution of the labor unionists who had been active in calling the street-car strike. The men in control of the Chamber of Commerce are the "men higher-up" in these prosecutions. Estelle communed with some sort of powers or politicians, played sick and did not appear as a witness. Her Uncle Murphy was immediately released from the penitentiary. Estelle was promised to be restored to the job of star witness and reward-winner, and she told the attorneys for the defense, over the telephone, "I'm sorry, but I can't see you any more." After Billings was convicted and sentenced to life in the penitentiary, Police Officer Billy Harrison told Defense Attorney McNutt that he was present when Rominger looked Billings over to see if he was the man he had helped to the roof of the dental office at 721 Market street, July 22nd. Rominger said Billings was not the man as 20 he was too small. Harrison refused to testify to this fact in court, because the "Frame-Up System" would get his job; as he put it, "I have one of the softest snaps in the Department." The prosecutor did not dare use Rominger in the cases of Tom and Rena Mooney. WHEN the golden call for witnesses went out, one Crockett, strike-breaking gunman and detective for the United Railroads, and the Pacific Gas & Electric Co., announced that he had seen Billings on the roof of the Ferry Building about the time of the explosion. Crockett was engaged in herding a horde of thugs from Paterson, N.J., and Ludlow, Colo., and the slums of New York for the breaking of the Longshoremen's at the time of the bomb explosion. (The thugs under his command disappeared almost immediately after the explosion.) Crockett was to be a witness against Billings, but before his time to testify arrived, he decided that a dollar in hand was worth two in prospect and walked away with the Chamber of Commerce "Law and Order" Committee's week's payroll for the gunmen under his charge. Crockett's job was then turned over to a detective named Patterson. IMAGE: Enlargement of the street clock dial in same picture shows nine minutes to 2 o'clock. Estelle Smith, waving towel at Mayor Rolph. X MAYOR ROLPH Mayor Rolph in parade passing dental office at 721 Market Street. Arrowing indicating Estelle Smith waving towel at the Mayor. Note clock dial enlargement showing nine minutes to two o'clock. Small arrow marked (X) indicates camera man on roof identified as Billings by Louis Rominger and Estelle Smith. Later pictures show him on this roof as late as four o'clock. This photograph was introduced in evidence by the defense. WHILE Patterson took Crockett's job as detective, one John Crowley was selected as his successor to the witness job. Crowley was gotten in this way; being a relative of a former police officer, he was leniently dealt with when arrested for two crimes. Crowley first got in trouble by marrying a seventeen-year- old girl and giving her the syphilis. The police helped him out of this trouble by getting him paroled from the two- year sentence. Crowley then stole a watch. The authorities had him picked up on a charge of petty larceny, instead of burglary, for this theft, and let him out on probation. So, upon Crockett skipping out, Crowley was informed that he must take the job as witness to corroborate John McDonald; whereupon Crowley swore that he had seen Warren K. Billings near the scene of the crime in the act of "insulting the flag." The prosecutor made great effect upon the jury by waving the flag that Crowley said Billings insulted. Crowley has recently been living in a San Francisco house with five men known as "female impersonators," who were women's clothes and had other men come to spend the night in their apartments. Another watch- stealing took place in their apartments with a 21 strange man visitor as the victim. The "female impersonators" were ejected from the house and Crowley went with them. Pardon the frankness of this story, but, when the scum of society is used to work with corporation tools in hanging innocent men, the truth must be told, be it ever so disagreeable. WITNESSES SWORE BILLINGS WAS IN THREE PLACES AT ONE TIME THE conviction of Warren K. Billings was accomplished by the testimony of Estelle Smith, who said that he was at 721 Market street after nine minutes to two o'clock; the testimony of John McDonald, alias McDaniels, who said that he was at Steuart and Market streets, a mile away from 721 Market street, at eight minutes of two o'clock until four minutes after two o'clock, and the testimony of John Crowley that he was a block away from Steuart and Market streets, and walking in the opposite direction, at five minutes before two o'clock, "positive sure." IMAGE: House of prostitution, 300 1/2 South Los Angeles Street, Los Angeles, Cal., in which Estelle Smith was arrested as an inmate. A negro customer was arrested with her. ESTELLE SMITH has from the start been Fickert's chief reliance for dishonest testimony. He has tried to palm her off on the public as a "Southern belle" of very gentle and timid respectability - while he was frantically covering up her prostitution record in Los Angeles. Is it not a remarkable thing that NO HUMAN BEING except prostitutes or criminals should have seen the defendants in any suspicious place or act? Why is it that Fickert has had to cover up something ugly in the record of EVERY witness of material importance? IMAGE: Estelle Smith's uncle. She was jointly charged with him for complicity in this murder. Jas. L. Murphy, convicted of murder, sentenced to 12 years. Underworld rumor says he "Took the Fall" for her. Murphy's sentence was commuted to time served, 3 years 6 months 17 days. He was released from San Quentin Prison three days after Estelle Smith made an affidavit that "Higher Ups" had Oxman offer her not less than $10,000 to give perjury against Weinberg. The answer comes in one word: "Reward." Every witness has been recruited by means of offering MONEY for a certain kind of testimony and no other. John McDonald boasted of the bribe he expected to receive. Estelle Smith, in Mrs. Mooney's trial, admitted that she had been discussing the money she might receive for her oath. She referred to "my share of the reward," claiming that she would "give it to the orphans" - although she apparently lives like a millionaire, without any visible means of support except "her share" of the blood money. "NEVER MIND THE TIME," SAYS FICKERT BEFORE the Grand Jury, Estelle Smith swore that Billings was a mile away from Steuart and Market streets, at 721 Market street, for the purpose of throwing the bomb from the roof, although they claimed that it was detonated by a clock and thus could not be exploded by throwing. This is her testimony: "Well, when my mother called me and said that the parade was starting I waited for about fifteen minutes, I should say, - I can't say exactly the time. * * * Then as Mayor Rolph passed in the parade (which was nine minutes to two o'clock), I was watching the parade. I told mama to call me when the Mayor passes. My mother called me that part of the parade. I took a towel and waved it out the window. I said, 'Hello, Mayor Rolph,' as loud as I could. The doctor says to me, 'Gracious me, you have such a mouth-' " "Q. (Int'g.) Never mind what the doctor said. "A. After the doctor said that I had such a mouth-" "Q. Doctor Shane says, 'You have such a mouth. Don't holler so loud.' When I walked from the front window to the reception room this gentlemen, Mr. Billings, I had let on the roof-" "Q. (Int'g.) Did he take his case on the roof with him? "A. Yes, sir. We helped him on the roof with the case. He was coming down." As it is proven by the parade photograph on page 21 that Mayor Rolph passed that point at nine minutes to two o'clock, Estelle Smith's story would show that Billings was at that point about eight minutes to two, exactly when McDonald said he was a mile away. 22 IMAGE: Enlargement of clock dial of street clock in this photo shows five minutes after two. Allie Kidwell waving flag at soldiers. Note small flag above larger one. Al. De Cacia also identified as Billings. X Through the mass of contradictions imposed upon Estelle Smith by the district attorney's changing theories there appears a clear statement. "I NEVER SEEN MR. BILLINGS BEFORE THE MAYOR PASSED. I explained that to the police when I gave the statement to them." (After serving to convict Billings, Estelle Smith was dropped as a witness before the Mooney trial, for the reason that she placed him at 721 Market street at nine minutes to two o'clock, whereas a later witness, Oxman, swore that the defendants arrived at Steuart and Market streets - a mile away - at fifteen or twenty minutes to two, after leaving 721 Market street.) Allie Kidwell, Estelle Smith's mother, had Billings along with Mrs. Mooney at 721 Market street, as late as five minutes past two. John McDonald testified before the Grand Jury five days after Billings' arrest that Billings appeared at Steuart and Market streets with a suitcase about three minutes after two o'clock. ALLIE KIDWELL testified before the Grand Jury as follows: "Q. (Fickert) You say you saw Mrs. Mooney waving to somebody on the roof? "A. (Mrs. Kidwell) Yes, sir. "Q. That was before this man came down off the roof? "A. Yes, sir. "Q. Did they speak after he came down off the roof? "A. They spoke, but I didn't pay no attention to them - just for a minute or two. I KEPT WATCHING THE PARADE, and he went on." Thus Mrs. Kidwell swore that Mr. and Mrs. Mooney and Billings were in front of 721 Market street until five minutes past two. This covers the entire period during which they were all supposed to be a mile away, placing the bomb. (For this reason, as well as another, Mrs. Kidwell was not used in any of the actual trials.) A grand juror, noticing the absurd contradiction as to time, asked Mrs. Kidwell: "Was the parade passing when this man who was supposed to be Billings came downstairs with the suitcase, was the parade passing then?" IMAGE: Soldiers in parade passing dental office at 721 Market Street, at five minutes after two o'clock (the only time soldiers passed there that day). Allie Kidwell is waving a small flag at the soldiers from window of dental office. Note enlargement of street clock dial in same picture showing five minutes after two o'clock. Arrow marked (X) indicates Alphonse De Caccia, also Identified as Billings by reward-hungry witnesses. Allie Kidwell testified that Billings, Tom and Rena Mooney were in front of 721 Market Street when the soldiers were passing. This photograph was introduced into evidence by the defense. 23 BEFORE THE "FRAME-UP"CREW WORKED ON THIS PICTURE. Tom Mooney with his wife on the roof of their home. The street clock in the small picture here enlarged by Theodore Kytka, world famous expert on hand writing and photography, shows ONE MINUTE PART TWO, the exact time that Mooney is accused by a drug fiend of being at scene of crime, a mile and a quarter away. RENA MOONEY TOM MOONEY THE FRAUD OF THE ALIBI PHOTOGRAPHS. On the left is a true copy of the photograph which was confiscated along with the original films by the district attorney and locked in his safe until after Billings' conviction. The picture would have proven Billings innocent. When the true copy was obtained, the prosecutors dropped some of their underworld witnesses and had the others change their testimony for Tom Mooney's trial. Wade Hamilton of the Y. M. C. A. and his camera, with which he made the now famous alibi photographs. AFTER THE "FRAME-UP" CREW WORKED ON THE SAME PICTURE This is the fraudulent copy of the same photograph turned over to Billings' attorneys by District Attorney Fickert. Note enlargement of clock dial, on which the time could not be seen. RENA MOONEY TOM MOONEY Hamilton photographed the parade four times from the roof of the Eilers Music Co. Building, where he was employed. He did not know Tom or Rena Mooney. Rena Mooney's music studio has been located in this same building for eight years. Upon discovering that Hamilton made photographs that showed Tom and Rena Mooney on the roof, the defense made several attempts to persuade Hamilton to let the defense see the one set of pictures he kept himself and each time he refused. Finally he said he destroyed his set. His employer is a member of the Chamber of Commerce, and he rooms at the Y.M.C.A. with an employee of the Pacific Gas and Electric Co., for which Swanson works. The original film, from which the true photograph shown on the right was made, was obtained on a written court order, after several other legal attempts to secure them failed. _____ One of Estelle Smith's police court records of prostitution that was suppressed by District Attorney Fickert going to Los Angeles for that purpose. This is a public record and was denied to attorneys for Tom Mooney when they asked to see it. Note the only customer arrested from the house of prostitution with Estelle was one H. C. Wilson, a negro. This house was largely patronized by Japanese, Chinese, and negroes. POLICE COURT RECORD, LOS ANGELES, CAL. Saturday, May 30, 1914. 4133 Smith, Mrs. Estella, Age: 25; Offense: Vagrancy; Time: 11:05; Location: 300½ So. L.A. St.; By Whom: Kirby & McAfee; Remarks: $100; Cash on Person: $10.00; Race: American; Occupation: Housewife; Place of Birth: Kentucky; Length Time: 4 4 425; Court: Fredks.; Released 4134 Jones, Mrs. Maud; Age: 22; Offense: Vagrancy; Time: 11:05; Location: 300½ So. L.A. St.: By Whom: Kirby & McAfee; Remarks: $100; Cash on Person: $16.48; Race: American; Occupation: Chambermaid; Place of birth: Wisconsin; Length Time: 2 2 22; Court: Fredks.; Released 4135 Helmirck Mrs. Minnie: Age: 23; Offense: 26540; Time: 11:05; Location: 300½ So. L.A. St.; By Whom: Kirby & McAfee; Remarks: $100; Cash on Person: $10.27; Race: American; Occupation: Chambermaid; Place of Birth: Texas; Length Time: 1½ 1½ 23; Court: Fredks. Released 4136 Morgan, Miss Alma; Age: 23; Offense: 26540: Time: 11.05: Location: 300½ So. L.A. St.; By Whom: Kirby & McAfee; Remarks: $100; Cash on Person: $1.00; Race: American; Occupation: Dressmaker; Place of Birth: Tenn.; Length Time: 9 9 23; Court: Fredks; Released 4137 Wilson, H.C.; Age: 27; Offense: Vagrancy; Time: 11.05; Location: 300½ So. L.A. St.; By Whom: Kirby & McAfee; Remarks: $10; Cash on Person: $4.70; Race: Negro; Occupation: Waiter; Place of Birth: Louisiana; Length Time: 1 1 27; Court Fredks; Bail Forfeited 24 25 "A. It was just commencing; there was some soldiers had passed, some few men. I think it just commenced. "Q. (Fickert) The parade was passing 721 Market street when Billings and the man supposed to be Mooney and Mrs. Mooney had this conference? "A. I think it just commenced because I know I seen some of the soldiers, and I waved my flag at them." (See parade photograph on page 23.) But Mr. Fickert very carefully coached Mrs. Kidwell into the inference that the parade had not yet started, the soldiers merely passing at that time down Market street to join the parade instead of up. "Q. (Fickert) In other words, they might have been going to form in the parade?" Mrs. Kidwell, for the moment, agreed to this. The whole rotten case has been steered and coached with testimony put into the mouths of witnesses, the prosecutors asking them: "In other words," etc. However, it has been ascertained that no soldiers at any time during the day passed that point on Market street except in the parade formation. A grand juror asked: "Q. That was before the parade proper began? "A. Before it commenced to go. "Q. (Fickert, breaking in to coach) Before Mayor Rolph came along? Mayor Rolph came along quite awhile after that, didn't he? Do you remember when Mayor Rolph came along? "A. Yes sir, my daughter hollered out the window at him. "Q. That was some time after you saw the men down on the sidewalk standing there? "A. Oh, those men had been there quite awhile before that. This Mexican-looking fellow - When I went into that office I seen those two standing there." (But poor Mrs. Kidwell failed to comply with the hint to get the Mooneys away from there before the parade started.) "IT WAS QUITE AWHILE AFTER THAT MR. MOONEY CAME UP." EVEN THE WITNESSES STRIKE ON THE U. R. R.! AT ONE time Mrs. Kidwell went on strike against the witness job and left the city, going to Shasta, California. She went to work in a hotel with Louis Rominger, her affinity while her husband was serving a sentence for forgery in Folsom Penitentiary. The authorities sent after Mrs. Kidwell and arrested her, bringing her back. Mrs. Kidwell made some sort of threat as to what she would do if the authorities didn't treat her a certain way; whereupon Mrs. Kidwell was paid money by detectives in the presence of a number of people at number 3525 Van Ness Avenue. Mrs. Kidwell told the detectives that "ON ACCOUNT OF THE HIGH COST OF LIVING THIS IS NOT ENOUGH AND I GOT TO HAVE MORE MONEY." The detectives replied: "We will see about it." Mrs. Kidwell said: "IF THEY DON'T DO BETTER BY ME THAN THEY HAVE, I WON'T KNOW NOTHING AT THE TRIAL." Louis Rominger spoke up, saying: "Yes, by heck, they had better do better by me, too, or I won't know nothing either." The "family" was placated by Louis Rominger being appointed a special policeman and paid $3.00 a day to guard Mrs. Kidwell; and the family settled down to happiness unbroken except by the news that Mr. Fickert could not get her husband or brother out of the penitentiary because Mrs. Kidwell had been so indiscreet as to write the following letter, which fell into the possession of the defense: "San Francisco, Sept. 2. "D. J. Kidwell, Folsom Prison, Calif.: "My dear hubby: I arrived here this a. m. The officers subpoenaed me for the trial and sent for me. I am very tired. Now, sweetheart, as soon as you read this put your name on the calendar; do it right away. The authorities are going to get you out - maybe in a few days - and maybe by the 16th; have got work for you in the Union Iron Works anyway at $4.00 a day - maybe more. Captain Matterson and the District Attorney went to see two of the board this a.m. and will see the others at Sacramento. * * * I KNOW I AM NEEDED AS A WITNESS, AND THEY ARE HELPING ME BY GETTING YOU OUT; they told me to write this to you and you put your name on the calendar just as soon as you get this and you will be home in a few days. Now, sweetheart, I want you to do this at once. With love and kisses. "I will soon have my darling man. "Address 2551 Van Ness Ave. Do not delay for we expect to have a private meeting to get you out. Ge, Ge, my darling, I'm so glad. "Your wife, "ALLIE KIDWELL." "And Mr. Fickert says to me, 'Mrs. Kidwell, if you can be quite sure you seen Tom Mooney, you get a pardon for your husband.' " 26 ESTELLE WANTS $8,000 ESTELLE SMITH and Mrs. Kidwell quarreled over the amount of money they were to receive for hanging "them agitators." Estelle demanded $8,000 as her share. Estelle told the wife of her half-brother, Morris Bohanon, who is now in the Coast Artillery, that she would buy Morris out of the army when she got her part of the reward money. The way in which the prosecutors got hold of persons who had seen nothing and persuaded them that they had seen everything, is one of the most remarkable psychological studies. A photographer climbed to the roof of 721 Market street with a large camera case. A patient, Dan D. Donaldson, came to the same office to be treated by the dentist, bringing a traveling bag, which was placed in the waiting room. Donaldson proves his visit by a receipt signed by Estelle Smith under date of July 22nd. The prosecutors persuaded Estelle that the two incidents were one and the same; and under promise of great financial reward she was induced to identify Warren K. Billings as having performed both acts. Note, also, how two other women, weak of character and in extreme poverty, were caused to change an original tale of being at the scene of the crime, into an altogether different happening. The power of men in official positions to reconcile weak persons' consciences to false testimony is shown below in startling light. Allie Kidwell's husband and Estelle Smith step-father, now out of prison. Daniel J. Kidwell, forger, who was to be paroled from Folsom Prison if Mrs. Kidwell could be "quite sure you seen Tom Mooney." But the Parole Board refused, because he had a previous prison record in Colorado. (See letter on page 26.) THE EDEAU WOMEN MRS. MELLIE EDEAU was working as a seamstress in the store of Foreman & Clark of Oakland. When the announcements were published promising many thousands of dollars rewards, Mrs. Edeau told Thomas Stout, William H. Burgess and Mrs. Muriel Stewart, all employed in the same store, and who afterwards swore to these facts, that she, Mrs. Edeau, was at the corner of Steuart and Market streets just before the disaster and there saw to old men carrying a black suitcase. Mrs. Edeau said that her attention was attracted to them by their extreme age and the heaviness of the suitcase. But in the excitement attendant upon the explosion, nearly every person in the neighborhood at the time could recollect having seen men with suitcases and many reported such fact to the police. Mrs. Edeau read in the newspapers of some of the rumors of persons with suitcases and rushed to San Francisco from Oakland, escorted by Inspector of Police Wm. H. Smith, to tell her story in the hope of reward. She was informed by the prosecutor's office that her testimony about old men with a black suitcase was not wanted. Mrs. Edeau went to look at the defendants in jail. Officer Smith declares that Mrs. Edeau immediately said, "Those are not the men. I cannot identify them." The official diary and reports of the officer are on hand to prove this. The Oakland Police Department requires all officers to keep a diary. Police Inspector Smith returned to Oakland and made his official report from his diary, which reads as follows: "July 28, '16. "Took Mrs. Sadie Edeau of 4106 Bayo street to San Francisco to see if she could identify Tom Mooney and Warren K. Billings as men she saw with suitcase at Market and Steuart streets. She failed to identify them." Chief of Police Peterson of Oakland verified in detail all of these facts. Mrs. Edeau returned to Oakland and told Stout, Burgess and Mrs. Stewart that she had seen the Labor prisoners and they did not look anything like the men with the suitcase. "Those are young boys over there in jail, nothing like the fellows I saw." The newspapers announced from day to day ever-increasing golden reward for testimony against the defendants, and Estelle A DOCUMENT SHOWING THE EDEAUS' PERJURY. Copy of one page of Police Inspector (Oakland, Cal.) Smith's daily Diary. Fickert told him to KEEP HIS MOUTH SHUT. 27 Smith was hailed as the star witness who would receive the glittering compensation for "hanging the agitators" - Estelle Smith, who said she saw them at 721 Market street. Mrs. Edeau was brought back to San Francisco, and, after consultation with District Attorney Fickert and Policeman Draper Hand, reconstructed her story entirely. It was decided that Mrs. Edeau would swear not that she was at the scene of the crime, as she had first reported, but that she would help out Estelle Smith's testimony by swearing that she was a mile further up Market street, in front of the dental office, and there saw not two old feeble men with a black suitcase, but Warren K. Billings with a brown suitcase. In this way Mrs. Edeau mended a break in the case by taking the place of Mrs. Kidwell, who had been caught telling of compensation she was to receive for her testimony. It became doubly necessary to have Mrs. Edeau change her location and swear that she was in front of the dental office, because Officer Earl Moore's testimony had also been destroyed by Thomas Doidge, who proved to be the man to whom Officer Moore had spoken, claiming later that it was Billings. TWO BLOOD-HUNTING VULTURES. Mellie Edeau and Sadie Edeau, self-confessed perjurers. When asked why they swore innocent lives away so recklessly, they said, "What difference does it make so long as you get paid for it? They are only working people. There are too many working people now," and "My soul told me they were guilty." FOR good measure, Mrs. Edeau's daughter Sadie came along with her as corroborating witness and progressively testified to whatever was wanted, increasing her story whenever a new need developed. Before seeing any of the prisoners she made a written and sworn statement to Martin Swanson and Fickert, declaring that she had seen and identified the defendants. She admitted this on the stand and explained that she did it because "Mama told her." Policeman Hand showed the women a parade photograph of the front of the dental office and pointed out two indistinct figures which they were to identify as themselves. Mrs. Edeau returned to the store and intimated to her fellow employees that she intended to testify. Stout said: "I think you would like to be a witness." Mrs. Edeau replied: "I seen a good deal and I think would be a good witness. I have already sent three men to the penitentiary." "Don't you think it kind of mean to identify people unless you are positive of the identification?" asked Stout. "What difference does it make?" said Mrs. Edeau. "They are only workingmen. Besides, there are too many working people in the world." "I think you would hang a man for fifty cents," said Stout. "Well," said Mrs. Edeau, "what difference does it make so long as you get paid for it?" Fickert then sent for Police Inspector Smith, and asked him to corroborate Mrs. Edeau's testimony. Smith refused point blank, and told Fickert that if the Edeau women were to take the stand to tell such a story, they would be perjuring themselves. He informed Fickert that Mrs. Edeau had been unable to identify the defendants and had said plainly that they were not the men she had seen. Furthermore that Mrs. Edeau told him she was not in front of the dental office, but down at the corner of Steuart and Market streets at the scene of the explosion - a mile away - and that the men she saw were very old, feeble fellows, carrying a black suitcase. To which information Fickert replied: "You keep your mouth shut! You would be a good witness for the defense!" The Edeau women both took the stand with braggadocio, eagerly declaring that they had seen the defendants, and grinning with delight as they point out their victims for the gallows. Attorney Cockran suddenly held before the face of Mrs. Edeau newspaper headlines in big red type announcing the reward for the conviction. Mrs. Edeau trembled and paled and declared that she didn't "want no blood money"; that she told her story first to "an elder of her church." Mrs. Edeau let her imagination ramble to the point of practically swearing that she saw Mrs. Mooney sitting on a 28 suitcase of dynamite to watch the parade that she intended to blow up with the suitcase - and the clock supposed to be ticking away inside within a few minutes of the time it was set to go off. IN the Billings case the Edeau women told one story, and in each successive case they told another. Sadie Edeau smiled, smirked and grinned on the witness stand as she swore away three lives, and claimed to have seen a great many things for evidence in each new case that she had not mentioned before. She "hadn't time to tell the detective [the new version of the tale] because it was so near church time when they called." This new perjury was carefully arranged to fit a new story and avoid the alibi clocks. The Edeau women "identified" Weinberg, Billings and Tom Mooney in the same manner as Mrs. Mooney. They were brought into the County Jail and seated. The four prisoners were brought out and stood up against the wall. Officer Hand stood in a position just opposite the Edeau women, who were seated on a bench at a distance of about fifteen feet away from the prisoners. Hand beckoned and called out, "Weinberg, come over here." Weinberg approached the Edeaus alone. The policeman reached up and took Weinberg's hat off, saying, "Where's your cap, Weinberg?" Each of the other prisoners were called by their name in the same manner in the presence and hearing of the Edeau women, with the knowledge that the two women who had been sitting listening to the calling of their names and memorizing their faces, were later to take the stand to swear their lives away, on the claim of having recognized them. A deputy sheriff, who witnessed this disgracefully fraudulent "identification," commented, "Talk about Russia! I've never seen anything like that pulled off here before!" And even before this fraudulent "identification," Sadie Edeau had already taken oath that she had identified the prisoners! It will be noted later in this story that without a single exception every prosecution witness identified the prisoners in the same way and never once did any witness honestly identify them as men they had seen in connection with the crime. BREAKING A WEAK LINK IN THE FRAME-UP CHAIN AFTER Mooney had been put into the shadow of the gallows, his attorneys learned from Inspector Smith and Chief Peterson of the Oakland Police Department, that Mrs. Edeau had been juggling different versions of her story, and decided to ask Mrs. Edeau personally about it. Together with the police chief, an inspector, and a newspaper editor, the attorneys went to Mrs. Edeau's residence. The woman's first answer to questions was to take a revolver and try to kill Attorney Tom O'Connor. After being calmed by Police Chief Peterson, Mrs. Edeau admitted the whole story. Astonished at the frankness of the woman's confession, the attorneys asked her why she had done such a thing as to swear away lives in such reckless fashion. Mrs. Edeau mumbled that "her soul told her" that the men were guilty. "When I saw the brown eyes of my dear, dead husband looking at me," said Mrs. Edeau, and then lapsed into incoherent mumbling as the attorneys and policemen left. As most of the proof of perjury applied technically to Mrs. Edeau only, the prosecutors simply switched her daughter onto the stand in her place, to testify to what her "mama told her." Then Mrs. Edeau had to be put on the stand and was impeached. He went to prison a third time in preference to perjuring Tom Mooney's life away. He was also promised part of that $17,000. Chas. Organ, who confessed that he was to be paid to frame-up Mooney. A GHASTLY ATTEMPT TO PROCURE PERJURY CHARLES ORGAN, a colored man who had been convicted three times of forgery, was heralded as a witness to prove that Tom Mooney gave him $500 "to blow up the Liberty Bell." Organ, despite his three convictions for forgery, has a spark of honesty in him, and he became ashamed of the despicable work. Despite the efforts of detectives who stole his letters, Organ succeeded in communicating to an attorney for Mooney the following confession: "When I was arrested in Los Angeles two detectives came to me and asked if I knew Mooney. I said 'No.' They said, 'Oh, yes, you do; he's the preparedness parade bomb man.' They then dictated the Liberty Bell story - how Mooney had given me $500 to blow up the relic, how I had got scared, dumped me the explosives out of a suitcase at the beach and left the suitcase in Market street filled with bricks. The detectives told me they'd see I got off light on the check charge if I stuck to the bell story, and they said I'd get a piece of the $17,000 reward in the 29 bomb case. In San Francisco I refused to identify Mooney. I'd never seen him. They brought him out alone, and detectives prompted me, but I wouldn't identify him." TRAFFIC POLICEMAN EARL R. MOORE (strikebreaker for the United Railroads) swore to the Grand Jury that he saw a Ford automobile which looked like Israel Weinberg's jitney bus, although he did not notice the number, in front of 721 Market street "up to about 1:45," when he had a conversation with Thomas Doidge, whom he identified as Warren K. Billings. Later, in the Billings trial, Moore testified: "When I was talking to Billings (Doidge) while this automobile was standing before the dental office, the parade had reached the point about Montgomery street," which definitely fixes the automobile at the dental office (721 Market street) at exactly the time that witness Oxman swore it was far away, at the scene of the crime. THE witnesses who caused the indictment of the defendants testified to things exactly opposite and contradictory to the testimony which was finally used to convict them. The State simply reconstructs its case at will, changing everything about to a new set of "facts" whenever the need requires. For instance: Mrs. Kidwell swore to the Grand Jury: "Q. HE (BILLINGS) CAME DOWN TOWARD THE FERRY? "A. YES, SIR." "Q. THE MOONEYS WENT THE OTHER DIRECTION? "A. YES, SIR." Mrs. Edeau and her daughter testified to the opposite effect in the Mooney trial that Billings and Mr. and Mrs. Mooney ALL THREE LEFT TOGETHER GOING TOWARD THE FERRY. All these poor and crippled relics of humanity who can be induced by bribery and fear of prosecution for their own crimes to testify against a Labor man are held secretly under guard so that they cannot be approached by anyone desiring to get them to retract their falsehoods and tell the truth. It is possible that many of them would, like Charles Organ and the two Edeau women, confess to the Frame-Up if they could only be communicated with. Mayor James Rolph, Jr., has been pressed by public opinion into ordering an investigation of the recruiting of perjurers by the police. The vigorous prosecution of the guilty parties is promised. That looks very well, but - Chief of Police White ordered the investigation put into the hands of Police Captain Duncan Mathewson! In other words the investigation will be made by the very persons to be investigated! To show Duncan Mathewson's attitude in the matter, we will remind you that he has already played into the hands of the Frame-Up Ring by helping to conceal an admission of the Chamber of Commerce's detective, Peterson, that he had been framed by Fickert as a witness against Mooney. Mathewson has already shown his zeal in running down perjury crimes by keeping a dark secret the sensational fact that Estelle Smith admitted that Frank C. Oxman offered her an enormous bribe for perjury against Israel Weinberg. Mathewson tried to evade prosecution of Oxman by stating that he had positive information that Rigall would not testify unless he was paid $30,000. The absurdity of this childish lie indicates the desperate measures which will be taken to prevent the truth being known. When he heard of Mathewson's charge, Rigall immediately wired to San Francisco: "I will come and testify as before. Require only expenses for myself and my attorney, Claude O. Ellis, when wanted." It is very clear that there will be no justice done unless the public rises in its might to insist upon a genuine overthrow of the Perjury Ring. OF THE many suitcases in the neighborhood upon that afternoon, at least one seems to have been placed on the sidewalk so close to the scene of the explosion as to be destroyed. It was assumed, upon the insistence of Swanson, the one of these suitcases contained the bomb. An old, one-legged sailor by the name of William H. Taylor reported on the spot that he had seen a suitcase placed there. Taylor gave an accurate description of the man who left the suitcase, having had a conversation with him. Taylor was sent out to the Richmond Street Police Station to identify Warren K. Billings as the man who had placed the suitcase. He promptly said that it was not Billings; so Taylor was put on a boat and shipped away to Stockton by the police. JOHN McDONALD, DOPE VICTIM, WANTS TO "GO EAST ON CUSHIONS" AMONG the thousands of persons who came to the police and the district attorney was John McDonald, alias John McDaniels, a victim of the drug habit, who called himself a waiter. He said that he had seen a suitcase placed at the corner of Steuart and Market streets. Upon being shown Mooney and Earl Moore, Traffic Police Officer, formerly a United Railroads scab, another one of the "Frame-Up" crew. 30 A DRUG FIEND Who "Seen 'em as in a dream." John McDonald, alias McDaniels, who swore to one story before the Grand Jury, a different story at Billings' trial, and still a different story at Tom Mooney's trial. He has not worked one day since becoming a witness. The State has been keeping him for the past year. Billings, John McDonald agreed to swear that he had seen them with the suitcase at that corner a few seconds before the explosion and had seen them walk away from the scene across Market street through the parade in different directions. Then McDonald went out and talked to friends. Four witnesses swore that McDonald had boasted to them that "the Chief said, 'Mac, if you stick to this story, you can go back to Baltimore on the cushions with a nice piece of change in your pockets,' " and like stories. He bragged repeatedly that he was "getting paid for his work" as star witness and that he "would get a large portion of the reward." He also told one man that "it seems like a dream, I saw a man walk out and set down a suitcase." He declared that he would "get his divvy" as soon as the men are convicted, and go away. All of the other principal witnesses and nine photographs of the parade contradict McDonald in a manner to leave no room for doubt. McDonald voted from a false address in the last primary election, which is a felony under California law. But he is not prosecuted. The prosecution did not offer any testimony to disprove that its sole "eye-witness" was testifying for money reward. McDONALD swore that he saw Mooney and Billings at Steuart and Market streets, the scene of the crime, a mile away from 721 Market street, at exactly the same moment that Estelle Smith placed Billings at 721 Market street and that Mooney was proven to have been on top of the Eilers Building. At the Billings trial, McDonald swore that he saw first saw Billings at eight or ten minutes to two at that corner, and that thereafter he saw Billings and Mooney at that corner until within a few seconds of the explosion, which occurred at six minutes after two. The State's case was thrown into great confusion by the discovery of Wade Hamilton's photographs of the parade, which showed Mooney and Mrs. Mooney on the roof of their home, a mile and a quarter away, at two minutes to two o'clock, one minute past two, and four minutes past two, during all of which time he is supposed to be at the scene of the crime. Oh, well, what's the difference? The district attorney merely confiscated the photographs. WHEN the existence of the photographs was discovered, the prosecutor turned over to the court FADED COPIES so that the time could not be seen on the street clocks. Billing was convicted by the fading out of the photographs. Assistant District Attorney Brennan, seeing the whole thing in the ghastly light of truth, at the last minute asked the jury not to hang Billings, but to give him a life sentence in prison. This probably saved the life of Billings, for the "professional jury" always in a labor case brings in any verdict the prosecutors ask for, regardless of evidence. Mysteriously, Brennan then resigned. Whenever the falsification of the time was discovered, Fickert decided to get someone to swear that it all occurred fifteen minutes earlier and that the men left in an automobile, and McDonald had to change his testimony to fit! McDonald's first testimony had been: "Billings took a cut right through the parade towards the other side of Market street as though he was going down to the Ferry Building. * * * Then Mooney took a cut across the street this way through the parade as though he was going across to Drumm street - I think it is Drumm - it is over on this side. Then I lost sight of him when he went across the street." Note that this star witness, on whose word one man has been sent to the penitentiary for life and another condemned to be hanged, first swore clearly and maintained under long examination: That he saw the two men, Mooney and Billings, at the crime scene at a certain time and positively SAW THEM LEAVE SEPARATELY ON FOOT, BREAKING THEIR 31 THE KING OF PERJURERS - LANDED IN JAIL FOR "FRAMING" TOM MOONEY FOR THE GALLOWS. Frank C. Oxman, "Honest Cattleman" from Durkee, Ore., formerly of Grayville, Ill., land fraud fame. He is here shown entering his cell in the city prison. Chamber of Commerce ("Law and Order") interests bailed him out in fifteen minutes for $1,000, and hired one of the ablest attorneys in San Francisco to defend him for the neat sum of $10,000. WAY THROUGH THE PARADE, AND THAT HE SAW THEM ON THE OPPOSITE SIDE OF THE STREET AFTER THEY HAD CROSSED. When photographs were forced from the district attorney's possession which showed Mooney a mile and a half away at this time, McDonald not only changed his testimony as to the time it happened, but - HE SWORE THAT MOONEY AND BILLINGS DID NOT CROSS THE STREET THROUGH THE PARADE. McDONALD swore to the Grand Jury that he first saw Billings at about two o'clock. He swore in the Billings case that he first saw Billings at about eight or ten minutes to two. He swore in Tom Mooney's trial that he first saw Billings shortly after twenty minutes to 2 o'clock. Later, in Mrs. Mooney's trial, he swore that it was sometime still earlier. But McDonald, changing his testimony and already impeached by many witnesses, was not enough. Fickert and Cunha still saw, overshadowing their political ambitions, the positive proof of the falsity of their case against Mooney. Having failed to keep the photographs secret, and having been detected in what amounted to the forgery of the faded copies, they saw that the photographs promised their undoing unless they could get another set of testimony that would fit the time facts as thus revealed. FICKERT heard of a cattleman who had been the principal in two notorious land fraud deals in Princeton, Ind., in 1901, and was indicted by the Grand Jury. He had left Grayville, Ill., his home, deserting his wife and children, going to Durkee, Ore., where, according to his boast, he remarried before obtaining a divorce. This man would probably be willing to perjure himself in any way instructed. WHO PRODUCED OXMAN? HOW Oxman was procured is an unsolved mystery. Fickert first claimed that the perjurer was delivered to him by the Burns Detective Agency. Afterward, he said it was the station agent at Durkee, Oregon. Cunha said that a prominent business man supplied the cattleman. The conspirators have told many conflicting stories in their confusion to save themselves. But it was Steve Bunner who was chosen to go to Durkee, Oregon, to bring Oxman to San Francisco. Closeted with Fickert and Cunha, Oxman was bluntly told what he was to testify, and carefully rehearsed in his lines. It was decided to have Oxman swear to everything required and to drop Crowley, whose crime record had been discovered by the defense. But a witness in a hanging case should be corroborated, and John McDonald was unreliable, due to his drug habit and the fact that he would have to admit that he had formerly lied in order to change his story and get around the alibi photographs. "Can't you get some friend or other who could say that he was in town that day 32 FASCIMILE OF OXMAN'S LETTER TO RIGALL'S MOTHER, AS AN "EXTRY" WITNESS TO HELP IN THE HANGING OF TOM MOONEY. and saw you on that corner?" asked Fickert. Oxman thought it over and wrote to a young man in Grayville, Illinois (where Oxman formerly lived and where his deserted family still resides). The young man's name was F. E. Rigall. Oxman wrote: Mr. Ed Rigall Grayville Ill Dear Ed has ben a Long time sence I hurd from you I have a chance for you to cum to San Frico as a Expurt Wittness in a very important case you will only hafto anseur 3 & 4 questiones and I will Post you on them you will get milegage and all that a witness can draw Proply 100 in the clearr so if you will come ans me quick in care of this Hotel and I will mange the Balance it is all ok but I need a wittness Let me no if you can come Jan 3 is the dait set for trile Pleas keep this confidential Answer hear Yours Truly F. C. OXMAN (See facsimile of the above letter on page 34.) RIGALL had known him as "Cliff" Oxman, and when he received a letter signed "F. C. Oxman," thought it was written by Oxman's son Frank, whose record is not so replete with fraud as that of the father. Rigall telegraphed his willingness to come. Under the direction of Fickert, Oxman sent transportation expenses to Rigall and a telegram urging him to come, which telegram was sent at the expense of Fickert and was endorsed, "Charge to District Attorney Fickert. Edward A. Cunha, Ass't District Attorney." Dec 18, 1916 Mr. F. E. Rigall Grayville Il Dear Ed Your Telegram Recived I will wire you Transportation in Plenty of time allso Expce money will Route you by Chicago Omaha U. P. Ogden S P. to San Frico I thought you can make the Trip and see California and save a letle money As you will Be alowed to collect 10c Per mile from the state which will Be about 200 Besids I can get your Expences and you will only hafto Say you seen me on July 22 in San Frisco and that will Be Easey dun. I will try and meet you on the wa out and Tolk it over the state of California will Pay you but I will attend to the Expces The case wont come up untill Jan 3 or 4 1917 so start about 29 off this month you know that the silent Road is the one and say nuthing to any Body the fewer People no it the Better when you ariv Registure as Evansville Ind little more milege. Yours Truly F. C. OXMAN Will you want to Return by Los Angles can Route you that way (See facsimile of this letter also on page 34.) 33 Facsimile of Oxman's first letter (on right) and second letter suborning perjury with which to hang Tom Mooney. 34 To make his testimony as damning as possible, Oxman conceived the brilliant idea of also having Rigall's mother, Mrs. J. D. Rigall, come to clinch the proof. He wrote to Mrs. Rigall: 12-25-1916 Mrs. J. D. Riggal Grayville Dear Mrs Rigal As I am sending Ed Transpertation to morrow 26 it might be that I can use you allso about the 10. if so I can obtain you a ticket that you can see California if you would like the Trip Adrees me care this Hotell tell F. E. to see nuthing untill he see me can probly use a Extry witness Been a long time I dont see you Yours Truly F. C. OXMAN (See facsimile of the above letter on page 33.) Facsimiles of the letters are here reproduced in Oxman's handwriting. Rigall arrived in the city and registered at the Terminal Hotel under the name of L. O. Charles, as per instructions. Oxman visited him in his room and told Rigall that he was expected to swear to a lie for the purpose of hanging a man for money reward. Rigall was so astonished by the colossal significance of it that he had decided to go through with the thing to the point of disclosing the whole affair. As he says, he would "string 'em along a while." Oxman introduced Rigall to Bunner, Fickert and Cunha, and the four of them went down to the corner of Steuart and Market streets. Fickert pointed out to Rigall a spot where they told him he must swear he saw an automobile which they would let him examine later. He was carefully instructed that the automobile came down Market street, stopped at the corner for a few minutes, that two men (who would be shown to him later so he could identify them) got out of the automobile and compared their watches with the Ferry clock. THEN Bunner, Cunha and Ficket disputed for quite a while, in the presence of Rigall and Oxman, as to what time they wanted the two witnesses to swear that this all happened. It was finally decided that they would put it at fifteen or twenty minutes to two o'clock, make McDonald change his testimony enough to fit, and drop Estelle Smith, Crowley, and such other witnesses as had sworn Billings to be elsewhere at that time. So Rigall was instructed to make it fifteen or twenty minutes to two o'clock. Rigall complained that he was unwilling to go under a false name, so Fickert had the hotel proprietor change the register. Oxman asked Rigall to get a man to swear he saw the defendants drive from Steuart street up Mission street towards Mooney's home. "He would be worth $5,000," said Oxman. Rigall said he knew someone in Chicago who might do so, but the fellow was a union painter. "He won't do," said Oxman. Oxman was taken to see the prisoners and "identified them," so he said. This is the way in which it was done: Detective Sergeant Wm. Proll took the cattleman to the corridor of the jail and asked a jailer which was the number of Tom Mooney's cell; they were told that it was number 29, and shown the register hanging on the wall in the jail corridor with this inscription upon it: "T.J. Mooney, No. 29." THEN Oxman walked down the tier of cells, glanced casually into Mooney's cell, as he testified, and walked on, writing upon an envelope: "Cell No. 29." It was in the same manner that Oxman identified Mrs. Mooney, Weinberg and Billings, later to take the stand and swear that he positively knew their identity from having taken in their faces in one glance six months before. Rigall and Oxman were instructed by Cunha to sit in the court room while the jurors were being examined and memorize the faces of the prisoners. They were taken by Steve Bunner to see Israel Weinberg's jitney bus. Rigall was told to sit down on a box and look at the jitney bus at his leisure, to memorize its every detail. The number plate had been taken off the car; Bunner asked for it, and it was brought out and shown to Oxman. It is believed that at this moment oxman wrote upon a telegraph envelope the number of Weinberg's jitney, as is here shown: 35 HOWEVER, it is not certain that Bunner did not take a memorandum of the number with him to Oregon and have Oxman make the notation there. There followed many gay nights: joy rides, wine suppers and general rejoicing were on the program constantly, with only the slight duty of daily rehearsals of testimony. According to Rigall's later testimony in Police Court, when asked whether he became intoxicated, they did drink too much on several occasions, and he himself "got just about as drunk as District Attorney Fickert did." Rigall was playing a game; having gotten started, he didn't know when to stop. In a spirit of sport, Rigall pretended to forget and in repeating his lines would make it the wrong corner on Market street and say "twenty minutes past three" instead of "twenty minutes to two." Cunha would become very angry and carefully instruct him again, explaining how important it was to get it right. Telegram envelope with notation of Weinberg's automobile number, which Oxman claims to have written in July. But apparently he started to write "January" and then changed to "Janly." RIGALL heard Oxman one day ask Fickert: "If all of the witnesses are framed up, what will the people think about it when you get through with this?" Fickert replied: "The people will be glad to get rid of Mooney at any cost." "This will make Fickert governor and put me into a high State office," said Cunha. The subject of money was carefully explained to the two future witnesses. They were assured that $16,000 would be split between Oxman, Rigall, Estelle Smith and "the man from Honolulu." Rigall was promised "three or four thousand dollars, according to the value of his testimony." Rigall at one time said: "Don't forget, Oxman, that the American Federation of Labor is behind these men. They'll get us when we 'frame-up' on them." "The State will take care of all its witnesses. They'll protect us," replied Oxman. Toward the end Rigall became so disgusted with the affair that he could not pretend any longer. Oxman thought he was weakening, and assured him that he would give him $250 out of his own pocket. MOONEY was put on trial with a great hullabaloo in the newspapers about how very respectable the State's new witnesses were. "A millionaire cattleman and a prominent business man" were going to hang Mooney. Oxman even carried his acting so far as to interrupt the court proceedings to tell the judge how much he loved his "poor sick wife in Oregon." At this very time Oxman was writing letters to his wife at a Chicago address. Oxman more than fulfilled his orders. Even Fickert and Cunha seem not to have known that he was going to bring out the telegraph envelope notation, it being apparently a little secret between "Frame-Up Steve" and the cattleman. OXMAN swore that Tom Mooney came down Market street while the parade was in full swing and the whole city looking on, brushing aside the parade in violation of police orders - Tom Mooney sitting on the front seat of the automobile with a suitcase of dynamite on the running board! Every policeman (lined up one every hundred feet) on that main street knew Tom Mooney as the leader of the car strike of a week before. And nobody saw him dislocate the procession but one drunken cattleman from Oregon! Oxman's story was the most ridiculously impossible thing that could have been introduced. But it was "believed" by the business man jury that wanted to believe anything on earth to hang the Labor agitator. Oxman was contradicted by twenty-six witnesses and nine photographs, but his story, nevertheless, settled Mooney's conviction. RIGALL was to have testified the next day. Instead, he refused and quietly took a train back to Grayville, Illinois, where he told the whole amazing story to his attorney, Claude Ellis, delivering to him the letters and telegrams that were exchanged between himself, Oxman and Claudia. As Oxman sat in the court room for the purpose of familiarizing himself with the faces of the prisoners so that he could dramatically "identify" them from the 36 witness stand, he was seen and recognized by a young woman from Portland, Oregon, a city close to Oxman's home, Durkee, Oregon. This woman was Mrs. Charlotte La Posee. OXMAN took the stand, and, to her surprise, testified that he stood at the corner of Steuart and Market streets at 1:40 while the parade was passing. Her surprise was caused by the fact that she herself had seen Oxman and stood by his side and Oxman had lifted her little boy to see the parade, at a point fully a mile away at 1:45 on that afternoon. Mrs. La Posee went home to wait, thinking that no jury on earth would believe Oxman's story; but the "business man" jury would believe anything to justify its hanging the "labor agitator," and so the verdict was "guilty." But Mrs. La Posee's husband's employer promised that he would not lose his position for her telling the truth; and then she made affidavit that Oxman stood a mile away from the scene of the crime at the specified time. WHEN this affidavit was filed the court was considering a motion for new trial for Mooney. The assistant district attorney, Cunha, announced that if a new trial were given, he would have a prominent business man named "Regal" to corroborate Oxman's testimony. This was after Rigall had flatly refused to perjure himself and left the city. Cunha admits now that he knew perfectly well at the time he made this announcement that Rigall could not honestly corroborate Oxman. Mrs. Charlotte La Posee and her baby that Oxman held up to see the parade at a point one mile away from the scene of the explosion, and at the exact time that he claims he saw Billings, Tom and Rena Mooney, Israel Weinberg and his auto at the crime scene. When caught in this contradiction, Fickert and Cunha both stated that Rigall was a scoundrel who wanted to perjure himself for the money there was in it, and that they knew it all the time (including the time that they said they would put him on the stand). DURING the time that Fickert claims he knew that Rigall was a would-be perjurer, Rigall was the feted guest of Fickert at the luxurious Olympic Club, as is proven by the guest's card, of which we here reproduce a photograph. Confronted with this evidence, Fickert's answer is complete silence. (See facsimile of guest card on page 42.) But developments prove that Rigall is an honest man, whose courage in facing danger of death is all that gave five innocent persons a chance for life. Mrs. La Posee also swore that the way she came to know Oxman was this: Working as a salesman in a Portland cloak and suit store, she had had occasion to sell a dress to a woman who brought Oxman into the store to pay for the dress with his money. The woman winked at Mrs. La Posee and asked her to bring out the best she had, for Oxman was a "live one" and she wanted to get all the money out of him that she could. Later, Mrs. La Posee and her husband, while dining one evening in a cafe in Portland, noticed a man, who proved to be Oxman, hailing a female entertainer by holding up five fingers twice. The amount being satisfactory to the female entertainer, Oxman and she left together. Mrs. La Posee remarked to her husband, "There is the 'live one' again; the one who paid for the dress that I got an extra dollar for selling." THE MOONEY VERDICT AT nine o'clock in the evening the court room was packed with friends and relatives of Tom Mooney waiting for the verdict. His old mother sat near the prisoners' dock, swaying back and forth, eyes closed, and moaning; Rena Mooney's sister sat upright, silently crying; across the room Jim Brennan was lolling in a juryman's chair; detectives who had worked on the case and attaches of the district attorney's office gathered about with smiles upon their faces. All got their first news of what the verdict was from Brennan's laugh and Fickert's grin. From some channel the prosecution had the news before the jury announced it. Judge and attorneys filed into the room. The jurymen entered. 37 William V. McNevin, real estate man, foreman of the jury, rose and said: "We, the jury, find the defendant, Thomas J. Mooney, guilty of murder in the first degree." An instant of silence, and then a terrible shriek from Annie Mooney: "Oh, my brother, my brother; Tom, Tom!" Mrs. Weinberg arose, swaying, and fell to the floor. Old Mrs. Mooney threw back her head and gasped, then shrieked: "My boy, my boy!" The only calm man in the room was Tom Mooney. He stood eyeing the jurymen for thirty seconds, and then smiled scornfully at them. Then he turned and said: "Don't cry, sis. It's all right. Don't cry, mother." Tom patted his mother's hand, was handcuffed and led away. The judge left the bench. Instantly a charge was made upon the crowd by twenty detectives and plain-clothes policemen. Fickert shouted: "Get them all out of here!" Mrs. Mooney, Annie Mooney and Mrs. Weinberg were dragged from the court room, their shrinks echoing through the corridors and dying out in the distance as William McNevin, the real estate man, rose and posed for his picture before a newspaper camera. Roughly the crowd was thrown from the court room; even the lawyers for the defense were roughly handled. There was no disorder but that of the police. CHARLES M. FICKERT laughed in the face of the mother of Tom Mooney when he heard that Mooney was condemned to die; and the next morning Fickert announced in the newspapers that seventy-two other crimes were now discovered to be blamable upon Mooney; that there was a nation-wide criminal conspiracy in which the defendants were involved; that plots to do a thousand impossible absurdities were soon to be turned up. Shortly afterward he got more enthusiastic and announced that "now ninety-four crimes were discovered to be laid at the door of Mooney" - amongst other things, that a conspiracy to capture San Francisco had been hatched by Mooney, and that the night after the explosion of the parade bomb a truckload of rifles was seen to be hauled through the streets by the criminal gang. Mother and Sister of Tom Mooney. W. BOURKE COCKRAN, the famous orator and statesman who defended Mooney, wrote after the conviction: "En Route, Overland Limited, Feb. 11, 1916. "Mr. Thomas J. Mooney, County Jail, San Francisco, Cal." "My Dear Mooney: I have pondered carefully what you said during our last interview and with the result that I accept your view unreservedly. "Refreshed with a long sleep and with all my intellectual faculties restored to normal conditions, I have reached the deliberate conclusion that the appalling judicial crime committed against you will never be allowed to reach the consummation which induced its perpetrators to plan it. "I think it can be shown clearly to all reasonable men that we are in the presence of another Dreyfuss case. The only difference being that the object of the French perversion of legal procedure to perpetration of the very crimes which courts are organized to prevent, was exclusion (by force and threats of force) of Jews from the army, while the object of your prosecution for a crime repugnant to every element of your nature, is to drive laborers from organizing by killing a man who has had the temerity to urge some of his fellows to form unions for their own protection. "If we can succeed in making this clear to the public mind I have no doubt that the popular conscience of America will prove itself as capable and as eager to override the plans of the men who are conspiring to encompass the destruction of your life, as the conscience of France showed itself to defeat the men, who adjuding Dreyfuss guilty of treason had succeeded in perverting to destruction of liberty and character the very agencies organized to defend them. "Depressed as I was when met by a sense of utter helplessness to avert a calamity 38 FAMOUS NEW YORK ATTORNEY, CHIEF COUNSEL FOR TOM MOONEY. Hon. W. Bourke Cockran, many times Congressman, conspicuous as an orator in National life, and great battler for Irish freedom, volunteered his services free to come from New York City to defend Tom Mooney because he was convinced the whole case was a "Frame-Up." which threatens not merely your life, but the whole fabric of civilization (for the whole purpose of civilization is protection of life, which the agencies of civilization are here conspiring to destroy I probably failed to appreciate the force of your suggestion when it was made yesterday but now I am convinced that the justice which appears to have fled from the California courts will be found to have taken refuge in the bosoms of the men and women who constitute the masses of our population and their decision will be enforced against the officials who have foresworn their oaths to satisfy the malice and cupidity of corporation employers. "I was anxious to let you know the result of my first reflections on your case. "So be of good cheer; your conviction may yet prove to be source of such judicial reforms as will prevent forever repetition of the conspiracies which have had you for their object, but which have not yet succeeded (and please God they never will succeed) in making you their victim. "Pray give my cordial regards to your companions in persecution and also to the splendid woman, whose devotion and self-renunciation have given men new and higher regard for our common humanity. "Yours faithfully, "W. BOURKE COCKRAN." WHAT THE JURYMEN GET FOR THEIR WORK BY MEANS of agitation in the city, the public had been aroused because of the vicious conviction of Billings before a "professional jury." The professional jury has long been an institution in San Francisco. One man has served on 500 juries in eleven years, and he has no other occupation. The twelve who tried Billings were almost as bad. They delayed their verdict two hours in order to get a free meal at the expense of the country. They have no other occupation than serving upon juries at $2.00 per day, and bringing in such verdicts as please the district attorney, who controls their livelihood. The hideous injustice of this manner of "convicting" Billings was so apparent that when Mooney came to trail the jury system was slightly changed. Instead of a professional jury, the prosecution obtained a jury of business men. The prosecution was caught actually trying to "plant" a strikebreaker on the jury. Billings recognized the fellow as a gunman from the Machinists' strike, and he was thrown off the jury. William V. McNevin was the foreman of the jury. He had been brought before the Grand Jury for a real estate deal some years ago, in which an old woman claimed to have been defrauded. As a result of this McNevin had been expelled from the Real Estate Board. McNevin answered every question in a manner to please the defense attorneys, and was accepted as a juryman. When the trial was over, McNevin was congratulated on all sides by his business friends for having "helped hang the agitator." The day following the verdict of the death penalty, McNevin was in a saloon on Montgomery street when a friend cordially shook his hand, saying: "Mac, good for you; you done your duty; we will get you back on the Real Estate Board." Later McNevin was heard to say, apparently referring to the subject of his reinstatement on the Real Estate Board: "Well, I don't know whether I will make as much money out of it as I have lost by serving on the jury." A juror in Tom Mooney's case, John W. Miller, hardware man, told John P. Lofthouse, President of Millmen's Union No. 42: "I don't know whether Mooney is guilty or not; but he was found guilty on his alleged past." (As a militant strike leader.) Judge that sentenced Billings to life in prison. When Billings was convicted, the professional jury system was exposed. This judge announced that in the future he would get his jurors from the Chamber of Commerce. JUDGE FRANK DUNN. Upon the complete exposure of Oxman and Edeau women by the defense, he waxed bitter about the "Frame- Up" pamphlet. Said Bob Minor was crazy, and scurrilously denounced the defense lawyers, calling one of them a jackal, another a street corner shouter, and should be disbarred from practice. 39 Lofthouse asked Miller how he knew about Mooney's Labor record, as there was no evidence of it in the trial. "Oh, Fickert TOLD US ABOUT IT," he answered. PROSECUTOR SIGNALS ANSWERS TO WITNESSES ON STAND JOHN McDONALD and the two Edeau women had a difficult role to play in changing their testimony. Their testimony was given in the most cautious manner. Sadie Edeau particularly kept her eyes fastened upon the face of Prosecutor Cunha at all times. Whenever Cunha wanted her to say "yes," he nodded his head vigorously in the affirmative; when he wanted her to say "no," he held his head rigid. Throughout the examination of all the principal witnesses for the prosecution, Cunha used this code: nodding boldly and openly to signal the required answers to the witnesses. ANOTHER instance of the cold-blooded dishonesty of this murderous frame-up is supplied by the testimony of one "Professor" Wade of Honolulu. This fellow was willing to swear to the identity of Billings for the purpose of hanging him ($17,000 reward), from one look at Billings' back as Billings, so he said, passed him at the entrance of 721 Market street. One look at the boy's back, and many days later he was willing to stand up and swear the boy's life away! ($17,000 reward.) One Peter Vidovich, from Fairbanks, Alaska, corroborated Wade by saying that he saw Billings go up the same stairway three-quarters of an hour earlier, and that Billings was at the time five inches taller than he now is. Vidovich is known in Alaska as "Ten Per Cent Pete," having made much money as a loan shark in Dawson, lending at the rate of 10 per cent per month. At a time when "Ten Per Cent Pete" held a mortgage for $85,000 on the Fairbanks Block, the biggest building in Fairbanks, he went to Mrs. Card's restaurant to buy stale bread (as was his habit) at half price. As Vidovich walked out of the restaurant the cook missed several cans of clams and ran after Pete to catch him. The cans were found in Vidovich's pockets and he was arrested for larceny, convicted and sent to jail. Vidovich became proprietor of a notorious gambling house in Fairbanks, where he cleaned up enough money to classify himself as a "retired mining man." WEINBERG had made a statement to the police upon his arrest. In cross-examining him, Prosecutor Cunha took out the statement and pretended to read it. Cunha's version of it read, "My jitney bus was standing at the curb all the time; I was standing around my jitney bus," - to prove that Weinberg was not inside the hall as he had sworn. Attorney Cockran angrily arose and demanded to see the statement from which the prosecutor pretended to be reading. Cunha would not surrender the statement until forced to do so, and it was proven that Cunha had been falsely reading it. For the statement really read: "My automobile was at the curb. I was inside the hall all the time; I was standing around WATCHING my automobile." (Through the window.) CERTAIN complimentary tickets to a picnic were found in the house of Weinberg. These tickets announced an "International" picnic to celebrate the 4th of July, and that "twenty volumes of Nietzsche" would be given as a prize. One of the points upon which Mooney was condemned was that Weinberg "insulted the flag by attending an INTERNATIONAL PICNIC on our national holiday, the 4th of July," and that a dangerous explosive, the name of which the prosecutor could not pronounce but which was spelled N-i-e-t-z-s-c-h-e, was to be given as a prize. Attorney Cockran interrupted to say: "Nietzsche is the name of a book. The district attorney thinks Nietzsche is a bomb." Later District Attorney Ficker looked in an encyclopedia and explained to the jury that Mooney ought to hang anyway because "Nietzsche, the writer, was a bad man who associated with Richard Wagner" - (the great opera composer). OXMAN OFFERS BRIBE TO ESTELLE SMITH OXMAN was introduced to Estelle Smith in Fickert's office by Fickert, and insisted on making a date. He went to Estelle's home and met her, telling her that he came to offer her "a sum of five figures" if she would swear that she saw Weinberg at 721 Market street. "Did Mr. Fickert send you to me?" she asked. "No," said Oxman. "The men higher up [Chamber of Commerce] than Fickert sent me to you." Estelle Smith made an affidavit to this effect, and three days later her uncle serving twelve years for murder, was released from prison. Estelle then ceased to talk. She was jointly charged with complicity in this same murder and underworld rumors say the uncle "took the fall" for Estelle. She is repaying the debt by getting him out of prison. 40 Frank Edward Rigali, of Grayville, Ill., whose refusal to commit perjury resulted in the detection of the biggest criminal conspiracy of American history, conducted by public officials to hang upon the gallows five innocent trade unionists. Oxman said to Rigall, "You will only have to say you saw me in San Francisco July 22," Rigall told Oxman he was in Niagara Falls on July 22. Oxman said, "Hell, you were there as much as I was." WHEN Ed Rigall read of Mooney's conviction, he sent the following telegram to Cunha: "Congratulations on your victory. I believe my testimony will secure Mooney a new trial. "F.E. RIGALL." Cunha was worried. He knew that Rigall had letters from Oxman, and that he (Cunha) would never be safe until he got the letters into his hands. He carefully worded a telegram for the purpose of getting possession of the correspondence that would mean his destruction if revealed. Cleverly he made the effort to get the evidence that would save Mooney's life turned over, not to Mooney's attorneys, but to him, Cunha, of the gang that had already destroyed all possible evidence and ordered witnesses to keep silent with the truth that would save human life. WHILE Oxman was at the Terminal Hotel, a bell boy became interested in the affair and saw there was something dishonest about it. Hanging about when Oxman wrote letters, the bell boy managed to get every scrap of the witness' writing that was thrown into the waste-basket. Through these scraps of paper, which he brought to Attorney Maxwell McNutt, the defense began to solve the terrible mystery. Shortly after the death sentence, the bell boy appeared at the office of McNutt and said: "Take it from me, this guy Oxman is a framed witness; I don't know anything about this case, but I got a line on Oxman from that man Rigall." Desperate in the shadows of the gallows, the defense determined to run down every possible clue. This man Rigall, who had been announced as a witness - why didn't he testify? At this time an anonymous letter was received by Attorney McNutt, in which a woman said that she did not know whether Mooney was guilty and did not want to help him, if he was, but that she knew Oxman was a scoundrel not to be believed under any circumstances and that he had deserted a wife and family in Grayville, Illinois, and later came to Oregon and married again, before he was legally divorced from his first wife. THE defense immediately wired to Ed. Nockels, Secretary of the Chicago Federation of Labor. Nockels sent a representative to Grayville to investigate Oxman's past. This representative found Claude Ellis, ex-mayor of Grayville, who had been Oxman's attorney to defend him in the land fraud case. Mr. Ellis informed the labor man of Ed. Rigall's refusal to perjure himself against Mooney and Oxman's offer of bribe. Mr. Ellis remarked that he had had the letters in which Oxman had written the bribery proposal. Telegrams were exchanged between Ed. Nockels and Ed. Nolan, which mentioned the letters being in the possession of Claude Ellis in Grayville. The spy system of the frame-up ring is so complete that they get copies of telegrams sent by their opponents. In this way apparently the prosecution learned of Attorney Ellis' possession of the incriminating letters. Within a few hours of the dispatch of this information over the wire, Claude Ellis' office in Grayville was burglarized. The letters happened to be in a safe deposit vault and were saved. Ed. Nolan wired Frank C. Mulholland of Toledo, Ohio, chief counsel for the International Association of Machinists, who went to Grayville and found Rigall, who explained that he did not testify for the reason that the case was "too rotten for him." DISCOVERY OF THE CONSPIRACY EDWIN V. McKENZIE, attorney and member of the Law and Legislative Committee of the San Francisco Building Trades Council, hastened to Chicago and conferred with Nockels, Mulholland, Rigall and Ellis. The letters and telegrams were obtained by the defense. On April 11th the San Francisco Bulletin printed an extra at ten o'clock announcing the uncovering of the colossal perjury plot. The following day photographs of the letters were published. Captain Duncan Matheson, chief of the Bomb Bureau, and Chief of Detectives, issued the following statement: "I WENT TO DISTRICT ATTORNEY FICKERT AND WARNED HIM THAT IF ANYTHING CROOKED WAS BEING HATCHED UP, I WOULD HAVE NOTHING TO DO WITH IT. FICKERT LISTENED TO WHAT I SAID, BUT SAID NOTHING IN REPLY. 41 "IF THE CHARGES AGAINST OXMAN BE TRUE AND THAT NOT ALONE DID HE PERJURE HIMSELF, BUT THAT HE ALSO PROCURED OTHER PERJURED TESTIMONY AGAINST MOONEY, THEN NONE OF THE DEFENDANTS SHOULD BE BROUGHT TO TRIAL. ALL OF THEM SHOULD BE DISCHARGED FROM CUSTODY." ED. D. NOLAN was brought into court on a motion for bail, and Captain Matheson testified that there was not sufficient evidence to hold him and had never been any during all of the nine months that his home has been broken up and he has been lying in jail under eight murder charges. District Attorney Fickert and his assistant, Cunha, desperate to cover up, declared their faith that Oxman was an honest cattleman who wouldn't lie and that he could explain the letters. Oxman has merely explained himself into jail. But an unknown agent of the Frame-Up System tried the next afternoon to rob the safe deposit vault in the Crocker Bank, where the letters were kept! Cunha hastened to declare that he and Fickert knew all along that Rigall was "the bunk" and that they never had intended to use him as a witness. Whereupon they were confronted with the "guest's card," extending the courtesies of the Olympic Club to Mr. F. E. Rigall at the request of Mr. Charles M. Fickert, thereby branding the prosecutors with their lie. YOU will note that the card is dated January 17th, which was eleven days after the date on which Cunha and Fickert claimed to have discovered that Rigall was a fraud. Thus the prosecutors are put in the position of having entertained Rigall as their guest in a most luxurious club eleven days after they claim that they discovered "that he was willing to perjury away a man's life for money." This proves that Rigall told the truth and that Fickert and Cunha were lying to save their faces. And seventeen days after Cunha claimed that Rigall had confessed to him that he had not been in San Francisco on the day of the explosion, the prosecution published the statement that they were going to use Rigall as a witness against Mooney if Mooney obtained a new trial. District Attorney Fickert's guest card, extending all privileges of the luxurious Olympic Club to F. E. Rigall when he knew Rigall was not in San Francisco July 22, and could not be a witness without committing perjury. "SAVE OURSELVES, THROW OXMAN TO THE DOGS" FRANK C. OXMAN had been persuaded to come to San Francisco on the assurance of Fickert that he would be protected. Oxman arrived, and, dodging the police who were looking for him, had a secret conference with Fickert. Frantic to save themselves, Fickert and Cunha "played double" with Oxman, promising to protect him from harm until they got a statement from Oxman which they claim exonerates them from blame in the perjury conspiracy. Then, to use the words of Cunha, they intended to "throw Oxman to the dogs" and take to cover themselves. Under the published accusation of subornation of perjury, District Attorney Fickert struggled to obtain immunity. He and Cunha had a conference with the defendants' attorneys and agreed to confess error and grant Mooney a new trial which would result, as they admitted, in an acquittal, and that they would then release all of the defendants as innocent. Fickert and Cunha solemnly agreed that they would not appear before the Grand Jury, which would give them a chance to whitewash themselves. Taking their promise for it, the defense attorneys were caught off their guard, and Fickert appeared flushed and excited before the Grand Jury after midnight to ask that they allow him "who knew all the facts to conduct an investigation against Oxman." The Grand Jury dared not let this chief conspirator conduct his own examination and thereby whitewash himself. The Attorney General had to appoint his deputy, Judge Robert M. Clark, to conduct the Grand Jury proceedings as prosecutor. 42 Millionaire Banker and Clubman, another one of the Chamber of Commerce "Law and Order Gentlemen Thugs." Jack Spreckels, Jr., active member of Chamber of Commerce, Foreman of GRAND JURY that whitewashed Oxman, Fickert, Cunha and Bunner. His personal attorney is defending Oxman. OXMAN was called and given an opportunity to explain the letters. He first said that there was a page missing from between the two pages of the first letter which were on exhibit, and that on the missing page he had written, "Don't come unless you were in San Francisco on July 22nd." This explanation seemed about to satisfy the Grand Jury of Fickert's own political allies, but one of them commented that there could not be any page missing from between the two on hand, because they were connected in the middle of a sentence. Oxman was given a second chance to explain and this time he said, "Oh, well, you see it was not a page from between that was missing; it was a separate sheet on which I had written a 'P.S,'," which contradicted this palpable solicitation of perjury, contained in the letter. All but four of the Grand Jury men were contented to let this idiotic lie serve as a whitewash for Oxman and he was allowed to go. THE next day the newspapers called attention to the fact that there was a large blank space below Oxman's signature on the last page of the letter and that Oxman could easily have written the "P.S." in that space, if he had written it at all. Being brought under fire in this way for their shameless whitewashing of the perjurer, the Grand Jury called Oxman back and gave him a third opportunity to explain. In this instance Oxman said, "Yes," but that he did not know how much spaced his "P.S." would take, and so he had gotten a separate sheet to write it on, and that after he had finished it he discovered, " 'by Jo!' that there would have been plenty of room." DEPUTY ATTORNEY GENERAL ROBERT M. CLARKE pleaded with the Grand Jury to indict Oxman on this clear evidence, or at least to wait until they could hear the testimony of Estelle Smith, who had made affidavit that Oxman offered her a bribe for perjury. Judge Clarke stated to the Grand Jury, and later to the press, that there was ample evidence to indict Oxman, even when the Grand Jury refused to hear the Smith testimony. The Chamber of Commerce's Grand Jury were eminently satisfied with his highly intellectual explanation and happily exonerated Oxman, only four of them being ashamed of the farce and refusing to join in it. The Grand Jury then hastened to douse Fickert with their whitewash, and issued a statement of their intention to protect him from prosecution. BUT while such things can go on in the secret chambers of the Grand Jury of big business men, who are only too glad to hang labor men without any evidence and exonerate perjurers who lend a hand in the hanging - such things are harder to stage in court where the public is looking on, complaint was made to Police Judge Mathew Brady, and Oxman was arrested and brought in for preliminary hearing. The evidence was unanswerable and Judge Brady held the cattleman to answer the felony charge. Meanwhile District Attorney Fickert, instead of prosecuting Oxman, hired a very expensive lawyer to defend him, the Chamber of Commerce paying the bills. Fickert's private secretary, Lydon, brought messages to Oxman's at- Hon. Robt. M. Clarke, Past Superior Judge, now Chief Assistant State's Attorney General, who was deputized to conduct the Oxman perjury mater before the Grand Jury. He said the evidence warranted an indictment, and asked the Grand Jury to file an information charging Oxman with subornation of perjury, which they refused to do in spite of Clark's request. 43 A FEARLESS JUDGE Judge Mathew Brady held Oxman to answer in the Superior Court for trial for a felony, to-wit: Subornation of perjury, in face of every sinister influence of the Chamber of Commerce "Law and Order Gentlemen Thugs" to have him do as did their Grand Jury of tools. torney in court, and the assistant prosecutors did their very best to fail in the prosecution. The rich cattleman struggled desperately on a writ of habeas corpus, carrying his appeal to the Appellate Court and thence to the Supreme Court of California, but lost in both cases, and now is booked for trial in the Superior Court for feloniously attempting to procure perjury. BEFORE the Grand Jury met the defense attorneys applied for a warrant for Oxman; the district attorney secretly attempted to prevent the warrants being served, but failed. Oxman was arrested, taken to jail and released on bond. On Friday, April 13th, Cunha called up Fremont Older, Editor of the Bulletin, and made an engagement. The next day Cunha, O'Connor, McKenzie and Older met. McKenzie refused to shake hands with Cunha, saying, "I won't shake hands with you because you knowingly, by perjured testimony, attempted to hang an innocent man." Cunha denied any such intention; and after some discussion, said that he was willing to give Mooney a new trial and would get Fickert to consent to it and that Mooney would again be tried, and if he was acquitted, which Cunha said was a certainty, he would agree to dismiss all of the other cases, including that of Warren K. Billings. CUNHA ADMITS THERE WAS SOMETHING CROOKED ABOUT THE JURY CUNHA told McKenzie that the Rigall-Oxman incident did not worry him nearly as much as the "jury situation in Tom Mooney's case." Cunha said that that situation was "the thing that troubled his conscience." THE same afternoon, Cunha and McKenzie met again in O'Connor's office, and Cunha explained that there was only one drawback to keeping his agreement; that he was afraid of Oxman; that he wanted public announcement withheld until he could obtain from Oxman a statement freeing the district attorney's office from any knowledge or blame, and that he would then "throw Oxman to the dogs." Cunha said that during the trial of Mooney he didn't know that Oxman was a perjurer, though he was suspicious of him at the time he used him as a witness to hang Mooney. Fickert and Cunha met Older, O'Connor and McKenzie at the Olympic Club, and Fickert agreed to give a statement to the morning papers that night to the following effect: "That he had waited the coming of Oxman to explain the letters; that Oxman had admitted writing the letters, but had failed and refused to offer any explanation therefor; that if he (Fickert) sat as a trial judge with the matter as it then stood before him, with a motion for a new trial pending before him, that he would grant a new trial, and that in fairness to the defendant, Thomas Mooney, he would request the Attorney-General to confess error and grant Mooney a new trial." Cunha, in great distress, said: "I know I am in the dump heap for the rest of my life, but if you think you are going to get me in jail you are mistaken." Fremont Older replied: "Cunha, I don't want to get anybody; my position is just this: Here is the evidence that these men were the victims of a perjury conspiracy; all I want to see is that they get a square deal." Fickert assured the defense attorneys that he could easily manage to get whatever he wanted out of the Grand Jury, for "I got 'em to indict Nolan upon my personal request without any evidence." After Fickert left the conference room, Cunha, grateful for what seemed to be, he said, a way out of his situation, extended his hand to Fremont Older and with tears in his eyes said: "Mr. Older, you are a great big fine fellow; you are the biggest man in San Francisco, and you are doing a generous, kindly and decent act for us." FICKERT BETRAYS AFTER making the solemn agreement, Fickert went into a long seance with Frank Drew, chief attorney for the Chamber of Commerce. The two had a long discussion of the struggle between Capital and Labor on the Pacific Coast and decided that at any cost the Labor men must suffer the penalty and the moral effect of the exposure wiped out. Fickert regained his courage and issued a statement late at night to a 44 morning paper in which he made the most frenzied attacks upon Fremont Older, editor of The Bulletin, for the exposure of the perjury plot. In view of this breach of confidence, Older felt justified in exposing the whole affair, and did so. Now there can be no leniency with Fickert, who must reap the result of his despicable act. Instead of prosecuting Oxman, the District Attorney hired a noted lawyer to defend him. Samuel Shortridge is the lawyer. Attorney Shortridge immediately got busy to save Oxman at Fickert's request. Oxman boasted to newspaper men that he had paid Shortridge $10,000. After a few days Shortridge ventured to ask the supposed millionaire cattleman "What about my fee?" Oxman, knowing that Fickert and the Law and Order committee of the Chamber of Commerce were caught in a tight place and couldn't let him be convicted, refused point- blank to pay one cent for the expenses of his defense. "Oh, I can go to jail any time; that's all right," said Oxman with a grin. Shortridge worked harder than ever at the defense and Oxman paid not one cent! The final farce was staged when Fickert APPOINTED HIS BROTHER-IN-LAW, BIANCHI, to "prosecute" Fickert's accomplice, Oxman, and had the case set before JUDGE FRANK DUNNE! Dunne is the man who was barred from trying Mrs. Mooney by his violent expression of hatred and prejudice, and who has already declared virtually that Oxman is innocent, despite the proof of his guilt. With Organized Labor from the State of California to the interior of Europe attacking Fickert for his murderous scheme and contributing funds to save the Labor prisoners, Fickert made one last desperate effort to scare the Labor Unions away from the defense. It was by the indictment of Alexander Berkman. In the belief that the fact that Berkman is known as an anarchist would cause the Unions to drop the case, Berkman was indicted WITHOUT EVIDENCE. Fickert merely called the treasurer of the Defense League as a witness before his puppet grand jury and made a vicious attack upon the character of THE WIVES OF THE DEFENDANTS and presented a few checks for money that Berkman had collected from THE KOSTER-DOLLAR-FICKERT CHAMBER OF COMMERCE "LAW AND ORDER" COMMITTEE'S GANG OF PERJURERS FROM THE UNDERWORLD Gazing on "their" reward. $5,000 was contributed by the Chamber of Commerce "Law and Order Gentlemen Thugs." No. 1, Frank Oxman; No. 2, Mellie Edeau; No. 3, John McDonald; No. 4, Louis Rominger; No. 5, Estelle Smith; No. 6, Said Edeau; No. 7, Huburd Wade; No. 8, John Crowley; No. 9, Allie Kidwell. 45 Unions to send to the defense; and the grand jury thereupon helped Fickert out by indicting the new victim. After a disgusting orgie of the vilest of filthy jokes and insinuations against the wife of one of the unionists who has angered him by refusing a bribe to commit perjury against Mooney, Fickert resorts to this attempt to SCARE LABOR OFF FROM THE FIGHT. But Labor will not drop this fight. It shall be won. Berkman will receive the same defense in the struggle to escape the Frame-Up System as any of the other Labor defendants. But Fickert knew full well that the chance is very slight that he can ever extradite Berkman without any evidence whatever. THERE is great danger that the public may get the impression that these exposures have saved the Labor prisoners. Such an idea can only come from ignorance of the intensity of the struggle. The chances are that all of the five defendants will be hanged. The Chamber of Commerce has hired one of the ablest attorneys to act as a special prosecutor against Rena Mooney. This ought to be sufficient to convince any person of what is going on in California in the name of "Law and Order." District Attorney Fickert and his assistant, Cunha, the biggest scoundrels outside of a prison, are also taking an active part in prosecuting Mrs. Mooney after being caught red-handed in a conspiracy to hang Tom Mooney by perjury. It is true that Judge Griffin, before whom Mooney was convicted, has demanded that the crime of fraudulent conviction be undone by District Attorney Fickert arranging for a confession of error in Mooney's appeal. Fickert has brazenly refused. The matter was then brought up to Attorney General Webb, first by Judge Griffin, who angrily demands that murder by perjury be not consummated through his court. The San Francisco Labor and Building Trades Councils, the California State Federation of Labor, the Chicago Federation of Labor, and the United Mine Workers of America have appealed to the governor and to the attorney general to undo the wrong. IMAGE: Hon. Judge Franklin K. Griffin, after testing her qualifications to serve as a witness, is here shown swearing Rea Kirsch (eight years old) as a witness in Tom Mooney's trial. She said she saw Tom Mooney and talked with Mrs. Mooney in a vacant office adjoining Mrs. Mooney's studio that her father formerly occupied. It was about 1:20 in the afternoon of the parade. Judge Griffin wrote a letter to Attorney General Webb, asking him to confess error in Tom Mooney's case before the Supreme Court, and have it remanded back for retrial, after the Oxman exposure of perjury. The attorney general only consented to ask a new trial after Mrs. Mooney's acquittal. He says there is no "error" in the record. Oxman did not commit error, he simply committed perjury, and attempted to get at least three others to do the same. THE letter from Judge Franklin K. Griffin, who presided at the Mooney trial, to State Attorney General U. S. Webb, is one of the greatest and most remarkable documents in the history of California. It reads: "April 25, 1917. "HONORABLE U.S. WEBB, "Attorney General of the State of California, San Francisco, Cal. "My dear General: On the 9th day of February, 1917, in the case of "The People vs. Thomas J. Mooney' then pending in my department of the Superior Court, there was rendered against the defendant Mooney a verdict of guilty of murder of the first degree without recommendation. Subsequently a motion for new trial was made by the defendant which was, in due time, denied; judgment was thereupon pronounced, and from such judgment and the order denying defendant's motion for a new trial an appeal to the Supreme Court has been taken and is now pending. It seems unnecessary to tell you that Mooney is one of those indicted for participation in the bomb outrage of July 22, 1916. "In the trial of Mooney, there was called as a witness by the People one Frank C. Oxman, whose testimony was most damaging and of the utmost consequence to the defendant. Indeed, in my opinion, the testimony of this witness was 46 by far the most important adduced by the People at the trial of Mooney. In confirmation of these statements, I would respectfully all your attention to the transcript filed on the appeal. "Within the past week there have been brought to my attention certain letters written by Oxman prior to his having been called to testify, which have come to the knowledge and into the possession of defendant's counsel since the determination of the motion for new trial. The authorship and authenticity of these letters, photographic copies of which I transmit herewith, are undenied and undisputed. As you will at once see, they bear directly upon the credibility of the witness and go to the very foundation of the truth of the story told by Oxman on the witness stand. Had they been before me at the time of the hearing of the motion for new trial, I would unhesitatingly have granted it. Unfortunately the matter is now out of my hands jurisdictionally, and I am, therefore, addressing you, as the representative of such action on your part as will result in returning the case to this court for retrial. "The letters of Oxman undoubtedly require explanation, and, so far as Mooney is concerned, unquestionably the explanation should be heard by a jury which passes upon the question of his guilt or innocence. "I fully appreciate the unusual character of such a request coming from the trial court in any case and I know of no precedent therefor. In the circumstances of this case, I believe that all of us who were participants in the trail concur that right and justice demand that a new trial of Mooney should be had in order that no possible mistake shall be made in a case where a human life is at stake. "Respectfully yours, FRANKLIN K. GRIFFIN." Organize mass protest meetings and demonstrations. Demand of the daily and weekly papers in your city that they publish all of the facts about this case. Write your protest to your Congressmen, Governor Stephens at Sacramento, Cal., and Chief Justice Angellotti of the California Supreme Court, Wells Fargo Bldg., San Francisco, Cal. Have your organization write a protest to these officials demanding the release of the Labor Prisoners. This pamphlet is a recital of the way the "Gentlemen Thugs" of the San Francisco Chamber of Commerce administer their own "Law and Order" by raping Justice with wholesale perjury. EVERY ORGANIZATION SHOULD BUY A COPY OF THIS BOOKLET FOR EACH OF ITS MEMBERS. IT IS YOUR DUTY TO BRING THIS MATTER BEFORE THE ORGANIZATION OF WHICH YOU ARE A MEMBER. WHEN YOU HAVE FINISHED READING THIS PAMPHLET, PASS IT ON TO A FRIEND OR FELLOW UNION MAN OR WOMAN. KEEP IT IN CIRCULATION. All orders for this edition can only be filled by the Tom Mooney Molders Defense Committee, P. O. Box 894, San Francisco, Cal. THE END 47 C. M. FICKERT District Attorney, elected by U. R. R., and is in the full confidence of the Chamber of Commerce. Fickert is now playing the double role of prosecuting and defending his accomplice, Oxman, of the perjury plot. E. A. CUNHA Assistant District Attorney. While he was rehearsing Rigall in the perjury he was to give in Tom Mooney's trial: "Your testimony (perjury) will hang Tom Mooney and make Fickert Governor and me a high State official." "IF I KNEW THAT EVERY SINGLE WITNESS THAT TESTIFIED AGAINST MOONEY PERJURED HIMSELF IN HIS TESTIMONY, I WOULD NOT LIFT A FINGER TO GET HIM A NEW TRIAL." -Assistant District Attorney Edward A. Cunha, of San Francisco. 203 Keep this for reference or pass it on The Scandal of Mooney and Billings The decisions of The California Supreme Court The Advisory Pardon Board Governor Young denying pardons to Mooney and Billings All the facts up to date. Use the coupon on the back page. Published by the NATIONAL MOONEY-BILLINGS COMMITTEE (Organized by the American Civil Liberties Union) ROOM 1403, 100 FIFTH AVENUE NEW YORK CITY 15 cents March, 1931 438 CONTENTS Events at a glance PAGE 3 The essential facts 6 The Supreme Court decision on Billings' pardon (July 2, 1930) 10 The Advisory Pardon Board on Mooney's pardon (July 7, 1930) 18 Governor Young's decision on Mooney's pardon (July 8m 1930) 23 From the Supreme Court's examination of Warren K. Billings at Folsom Prison (Aug. 14, 1930) 27 Second report of the California Supreme Court to Gov. Young on Billings' pardon (Dec. 1, 1930) 39 Dissenting opinion of Justice Langdon 53 McDonald's Repudiation 56 Judge Griffin's appeal to the Governor 59 Financial reports 61 Events at a Glance Up to 1916. Mooney and Billings active in strikes as militants. Mooney tried and acquitted on charge of having unlawful possession of dynamite. Billings convicted of carrying explosives on a street car and sent to prison for two years. Martin Swanson, a Pinkerton detective, active in both cases. July, 1916. Mooney and Billings active in organizing employees of United Railroads. Swanson, employed by United Railroads, shadows Mooney. Swanson, employed by United Railroads, shadows Mooney. Swanson attempts to bribe Billings to implicate Mooney in dynamiting electric towers. July 22, 1916. Bomb explodes among spectators of Preparedness Day Parade, killing 10 and wounding 40 persons. Swanson and District Attorney Fickert direct investigation toward Mooney and Billings. July 26-27, 1916. Mooney, Billings, Mrs. Mooney, Israel Weinberg, a taxi driver, and Edward Nolan, president-elect of Machinists' Lodge 68, arrested and charged with the crime. Sept., 1916. Billings tried, found guilty of murder in the second degree, and sentenced to life imprisonment. Motion for new trial denied. Jan.-Feb., 1917. Mooney tried, convicted of murder in the first degree, and sentenced to hang. Motion for new trial denied. Appealed to State Supreme Court. April, 1917. Oxman, star witness against Mooney, exposed as "suborner of perjury" while Mooney's appeal is before State Supreme Court. Trial judge requests Attorney General to have case returned for re-trial. Attorney General consents and so stipulates to State Supreme Court. Nolan released after nine months in jail; never brought to trial. May, 1917. Oxman brought back to San Francisco, tried and acquitted after Fickert employs attorney for his defense. Also white- washed by Grand Jury which Fickert controls. Summer, 1917. World-wide labor agitation with Mooney facing death culminates in demonstration before U.S. Embassy in Russia. President Wilson appoints Mediation Commission to investigate. 3 MOONEY AND BILLINGS July, 1917. Mrs. Mooney tried and acquitted. October, 1917. Weinberg tried and acquitted. October 30, 1917 Mooney asks Governor Stephens for pardon. January, 1918. Wilson's Mediation Commission reports Mooney did not have a fair trial. The President urges Stephen's to grant Mooney a new trial. March 1, 1918. California Supreme Court affirms Mooney's conviction, ruling it cannot review perjury disclosed after the trial. Sept.-Oct, 1918. J. B. Densmore, U.S. Director General of Employment, secretly investigates case. Nov. 18, 1918. U.S. Supreme Court refuses to review Mooney case. Nov. 28, 1918. Wilson sends two telegrams to Stephen's urging him to act in Mooney case. Governor commutes Mooney's sentence to life imprisonment and denies him pardon. Feb. 7, 1921. John McDonald, star witness against both Mooney and Billings confesses perjury. Oct. 22, 1926. Mooney applies in vain for pardon to Governor Richardson. Dec. 13, 1927. Mooney applies to Governor C. C. Young for pardon. Aug. 29, 1928. Frank P. Walsh, New York attorney, counsel for Mooney, pleads with Young to review Mooney's petition. Young promises to do so. Nov. 7, 1929. Billings, indirectly urged by the Governor, makes application to the Supreme Court for recommendation to the Governor for pardon. Nov. 21, 1929. Governor, after studying the application of Tom Mooney, announces his inability to come to any conclusion as July 2, 1930. The Supreme Court of California by majority vote (Justice Langdon not concurring) declines to recommend a pardon for Warren K. Billings. Among other points, the Court stresses the repudiation of testimony by John McDonald as unconvincing. 4 MOONEY AND BILLINGS July 7, 1930. The Advisory Pardon Board turns down Mooney's application. July 8, 1930. The Governor announces his decision against Mooney's application for pardon, regarding the Supreme Court's finding in the Billings case as "conclusive." He too, stresses the need of checking up on McDonald's testimony. July 10, 1930. The Scripps-Howard newspapers offer a reward of $500 to any one locating John McDonald. July 12, 1930. John McDonald is found in Baltimore and is taken to California at once to testify. July-August, 1930. The Supreme Court reopens Billings' case, hears McDonald and other witnesses and examines Billings in prison. Dec. 1, 1930. The Supreme Court of the second time, by a vote of six to one, Justice Langdon dissenting, refuses to recommend a pardon for Billings. Justice Langdon scores the majority report as indefensible. Feb., 1931. Mooney submits a new pardon petition to Governor James Rolph, Jr. MOONEY AND BILLINGS The Essential Facts MOONEY and Billings are serving life sentences in California prisons for their alleged part in placing a bomb at the corner of Steuart and Market Streets, San Francisco, during a Preparedness Day parade on July 22, 1916. A bomb exploded at the corner of those streets at 2:01 o'clock in the afternoon, killing 10 people and wounding 40. Mooney and Billings, together with three others, were arrested for the crime; only Mooney and Billings were convicted. Both were convicted chiefly on the testimony of two men, - the only two who alleged that they saw Mooney and Billings at the scene of the crime. These two men were Frank C. Oxman, an Oregon cattle dealer, and John McDonald, an itinerant waiter. Oxman's testimony was destroyed by revelations which came out shortly after the convictions. He was shown by his own letters to have tried to bribe a witness to corroborate his story. Governor Young and the Supreme Court, in their examination of the case, completely discredited Oxman's testimony. John McDonald, the other eye witness, testified at both trials that he saw Mooney and Billings at the scene of the crime, - that he saw Billings place a suitcase on the sidewalk. It was alleged by the prosecution that the bomb was in this suitcase. McDonald repudiated his testimony in 1921. Both the Governor and the Supreme Court, in reexamining the case, expressed their great doubts as to McDonald's repudiation. He was thereupon produced and the Supreme Court examined him at length. He stuck to his repudiation, alleging that San Francisco officials had engineered his identifications of the men. Both the Governor and the Supreme Court chose to believe McDonald's original testimony rather than his repudiation, thus justifying keeping Mooney and Billings in prison. The decisions of the Supreme Court, Governor Young, and the Advisory Pardon Board given here, turn largely on the testimony of McDonald. Other parts of the decisions reveal the amazing state of mind which justifies keeping men in prison because of their alleged bad reputations and strike activities. Note the final paragraph in the Supreme Court decision of July 2, 1930, in which they say, in effect, 6 MOONEY AND BILLINGS that if Mooney and Billings did not commit this crime, they at least know who did, and ought therefore to be in prison! We have omitted large portions of the Supreme Court's decision which do not throw any light on the essential points, and which, as Justice Langdon says in his dissenting report, merely reflect "passion and prejudice." We do not quote the portions of the report giving the long histories of Mooney and Billings in the labor movement. We believe our selection from these decisions gives a fair picture of the minds of both Governor Young and the Supreme Court, and the considerations which moved them to refuse pardons to these men. Most revealing of all the documents is the dissenting opinion of Justice Langdon, not just because we agree with it, but because it gives the factual grounds for destroying the case made out by the majority of the court and by Governor Young. The extracts from the long examination of Billings at Folsom Prison are included because they throw light on the attitude of the court towards Billings' opinions. They also reveal Billings' present state of mind and his past activities in the labor movement, - particularly what he was doing on Preparedness Day. 7 Mooney and Billings Thomas J. Mooney 8 Mooney and Billings Warren K. Billings MOONEY AND BILLINGS The Supreme Court Decision on Billings' Pardon Application, July 2, 1930 The following are the portions of the decision which strike us as most important. Omitted portions are not indicated The sub-headings and bold face type are ours Billings' Trial Fair This is the defendant's first application for pardon, after serving upon his sentence in said institution for a period of about thirteen years. The complete record of the defendant's trial and conviction and of the proceedings upon his appeal is before us. It affirmatively appears from said record that the defendant was accorded a fair and impartial trial before the court and jury in said court. Upon the argument in the course of the trial the defendant's counsel expressly stated in the presence of both Judge and jury that the defendant had been accorded a fair and impartial trial. Upon said trial the defendant was represented during all its stages, as well as upon appeal, by astute and able counsel, particularly learned and experienced in all the arts of criminal procedure; and in this connection it is to be noted that while respective counsel in the course of the defendant's trial indulged in the quite customary passages at arms and animadversions upon each other and upon the testimony of the various witnesses, there nowhere appears, either upon said trial or upon appeal, to have been presented the specific charge against the public officials, through whose efforts this defendant has been arrested and brought to trial, that such arrest and trial were the result of a "frame-up," or, in other words, of a conspiracy, either among said officials or between them and other persons, to place a charge against or secure the conviction of an innocent man. Charge of "Frame-Up" Dismissed Upon the entire record before us we acquit the then officials of San Francisco who were charged with the duty of discovering and 10 MOONEY AND BILLINGS bringing to trial and conviction the authors of this crime, of the charge that in so doing they were actuated by improper motives, or made use of wrongful or improper methods in procuring the arrest and conviction of the defendant for his part, if any, in the commission of this inhuman crime. Neither upon motion for new trial nor upon appeal was any such charge seriously presented nor sought to be shown by any semblance. Billings Near Scene We are, nowever, fairly satisfied that the evidence, taken as a whole, presented at the defendant's trial sufficiently shows that the defendant Billings was seen upon Market street in the city of San Francisco within a few blocks of the scene of the explosion and within a short time before it occurred carrying a suitcase of the general dimensions and color of that which contained the time-bomb which exploded at said time and place. This conclusion destroys all of that portion of the attempted alibi of the defendant which relates to his conduct and whereabouts during the hour which preceded the explosion. His testimony in that regard that he had no suitcase and that he was not at or near the place where these witnesses placed him during that time we are sufficiently satisfied is false. The case against Warren K. Billings at his aforesaid trial did not rest wholly for its support upon the testimony of the eye-witness, John McDonald, to the placing of the suitcase at the place of its explosion. Aside from the testimony of that witness, to which we shall presently recur, there was and is sufficient evidence in this record to create at least a strong probability that Warren K. Billings was one of those who placed, prepared for and finally perpetrated this unspeakably infamous and inhuman crime. Basis of the Court's Review In this connection it is to be remembered that the presumption of innocence which attended the defendant at all stages of his trial and up to the moment of verdict and judgment, ceased with such judgment. Upon motion for a new trial, upon appeal, and also we are satisfied upon this instant proceeding, the presumption of the integrity and correctedness of such verdict and judgment prevails and in so doing places upon the defendant and applicant herein the burden of 11 MOONEY AND BILLINGS making such showing as shall convince our reason that he is entitled to a recommendation for pardon, either because he was and is an innocent man wrongfully convicted through false and perjured testimony, or because, though guilty, he has so far reformed and repented of his crimes and of the evil courses and criminal motives which led to their commission as to be entitled to our merciful consideration, or because by his punishment thus far imposed he has sufficiently expiated his offense. The only one of those three alternatives upon which the applicant urges our recommendations for a pardon is that his conviction was brought about by the false and perjured testimony of certain witnesses, and chiefly by that of the witness, John McDonald, who was the only eye-witness to the defendant's immediate part in placing the suitcase containing the time-bomb at the place of its present explosion. With the foregoing background, we address ourselves to a consideration of the testimony of John McDonald presented at the defendant's trial and to his subsequent attempt, as embodied in his ex parte affidavit, to retract certain portions of his said testimony. Believe McDonald's First Statements We are satisfied that, placing his two conflicting statements together and considering each in the light of the circumstances under which it was made, the original testimony of John McDonald as given with so much of circumstance and detail upon the trials of each of these men, within a short time after the occurrence of the tragedy for the causation of which they were being tried, bears the stamp of truth, while, on the other hand, this belated affidavit, wherein he undertakes with so much of intermingled untruth to cast discredit upon his former testimony, bears the stamp of falsity, and that the substance and effect of this affiant's former positive and damning identification of both of these men as the perpetrators of this foul crime has not thereby been overthrown. McDonald's Motives Reading the McDonald affidavit as a whole, and in the light of the foregoing consideration of its essential content, it would seem upon its face to have been inspired by McDonald's reiterated sense of injury and complaint against the police and public officials of San 12 MOONEY AND BILLINGS Francisco because he failed to receive the reward which he claims to have been promised by them or certain of them, but which promise he claims have been violated. This seems to constitute the main gravamen of McDonald's affidavit and, so far as its face discloses, his chief motive in having made it at the time he did. What other motives or influences may have inspired him to travel from his home in Maryland to the offices of the legal counsel for one of these defendants in New York we may not even attempt to surmise. McDonald Disappears It may be stated, however, that upon the receipt of this application the members of this court felt that some effort should be made to locate John McDonald with a view to such farther questions as might serve to shed light upon the circumstances and motives attending and animating the making of the affidavit in question; only to find that McDonald had apparently disappeared. We have, as has been seen, arrived at the conclusion that sufficient doubt has not been thus cast upon the regularity of the conviction of Warren K. Billings of the crime for which he is now undergoing punishment to justify a recommendation that he be granted a present pardon. Billings' Record We might well let the matter rest here, but in view of the widespread public interest which by various means and methods has been aroused in this and its companion case we deem it our duty to direct attention to the fact that the applicant herein has made no attempt to offer anything in the way of an affirmative showing that with respect to the crime in question he is in truth and in fact an innocent man. We are brought to the conclusion that the applicant was bound to tender some such showing as a basis for his application for a pardon, in view of his prior conviction of a cognate crime and of the other facts and circumstances which, as we have heretofore stated, point gravely, even if not conclusively, to his participation in the later crime. The record sufficiently shows that prior to and at the time of his conviction of his former offense he was the friend and associate of an organized group of persons, men and women, who were actively engaged in plotting, attempting and even executing crimes of violence against both property and persons not only during labor disputes but 13 MOONEY AND BILLINGS generally as a means of uttering their protest against both the political and industrial forms and movements of modern society. Billings' Associates The evidence further discloses that between the commission of the first and second crimes this fellowship on the part of Billings continued to exist, with the fair inference at least and with no showing to the contrary that the opinions, motives, purposes, and passions which had moved him to commit his first crime still continued to rule his life. There is sufficient in the record before us to show that the deliberated and fiendishly prepared-for crime of Preparedness day in all human probability conceived and carried forward to its execution by the same group of evilly-disposed individuals, whose friend and associate Billings for several years had been and into the inner councils of which he was wont to come and go. It is a matter of public history that for several weeks prior to the Preparedness Day parade there had been going forth from the inner councils of this group of persons a rabid opposition to the holding of said parade, coupled with all sorts of suggestions by public speaking and newspaper propaganda as to how this patriotic demonstration could be discouraged or prevented, even to the extent of the advocacy of violence as a means to those ends. Guilt by Inference It is fairly inferable from his past and present affiliations that Warren K. Billings was familiar with the plot and plans of this group of his most intimate associates, and this being so it is an almost irresistible conclusion that if Warren K. Billings did not himself prepare and plant the deadly time bomb of the Preparedness Day disaster, he and his intimate associates and co-defendant, Mooney, know and have always, both before and since the occurrences of that tragedy, known who did prepare and plant that bomb, and the deadly purpose for which it was prepared and planted. Yet there has never come from the lips of either of these defendants, or from out the inner circle of their associates, the slightest tangible hint or aid to the public officials as to any one else which might lead to a discovery of the real perpetrators of this revolting crime, if these two defendants were not the guilty one; nor has there 14 MOONEY AND BILLINGS ever come to public notice during all the years which have elapsed since the commission of the Preparedness Day crime the slightest clue or trace which might serve to point public official inquiry to any persons or group of persons other than these defendants and their associates who might reasonably be suspected or charged with the disposition to conceive or commit such a crime. From the foregoing considerations and from the inferences which we think are fairly deducible therefrom as to the actual or probable guilt of this applicant, we are unable to recommend to your excellency a consideration of the application of Warren K. Billings for pardon. WILLIAM H. WASTE, Chief Justice JOHN E. RICHARDS, Associate Justice EMMET SEAWELL, Associate Justice JESSE W. CURTIS, Associate Justice Three of the seven justices filed separate reports. Justice Shenk and Preston agreed substantially with the majority of the court. Justice Langdon dissented. Justice Shenk said in part: The application is addressed to the individual conscience and discretion of each member, to be acted upon not strictly as a court matter, but as one to be considered with the same latitude exercisable by the chief executive, who has the right, I take it, to employ any and all proper means in an endeavor to arrive at the truth and in so doing is not limited to the affirmative showing made on the application. . . . The important thing is to arrive at the truth of the matter and in order to do so we should have the power to employ any appropriate means to satisfy ourselves of the truth or falsity of the repudiation of McDonald's testimony, especially in the absence of any statute or rule governing the procedure in the premises. If we should exercise that power it might be that the truth would be satisfactorily brought to light, either for or against the application. On that showing now made by the applicant I do not entertain a sufficient doubt of the justness of his conviction to warrant a recommendation for pardon. 15 MOONEY AND BILLINGS Justice Preston wrote to the Governor as follows: The crime committed on July 22, 1916, was a direct assault upon organized government. Those killed or maimed by this explosion were no more the objects of this fiendish plot than other members of society. They were victims only because they happened to be within the range of the deadly missile. The state could be expected to remain supinely inactive in the face of this outrage. It has within its keeping the liberty and rights of its citizens. It acted in this matter by bringing the petitioner to trial. Concededly the trial was a fair and impartial one. Indeed, the trial court excluded evidence tending to show a conspiracy between the petitioner and others, which might well have been admitted. No evidence whatsoever is present to show any misfeasance or oppression by any officer connected with the prosecution of the case. Some of the general aspects of the case are: The petitioner has been previously convicted of a crime which showed a distinct leaning toward sabotage and sabotage is akin to anarchy. His associations, as well as other actions, showed a like tendency. The record, speaking in a legal sense, was ample to warrant the conviction of petitioner. In the same sense it is equally true that nothing has subsequently occurred which would overthrow this record. The data submitted is not in form, sufficiency or authenticity to permit its introduction as legal evidence. Ex parte affidavits are not ordinarily admitted because no opportunity has been given to test the truth of the one-sided statements made therin. Moreover, an affidavit taken in 1921, some five years after date of conviction, and held some eight years more before actual use thereof is made, loses much of its value . . . Moreover, the petitioner rests his claim for a pardon upon his innocence. This does not follow as a certainty from the showing he makes. The most that could be claimed for it is that a doubt has arisen as to the sufficiency of his identification. He does not come forward with any showing that points to the perpetration of the deed by another, thus proving his own innocence, is offered. Fourteen years have elapsed and nothing has been revealed to show that the perpetrator was some other person . . . . 16 MOONEY AND BILLINGS I cannot concur in any such view of the case; hence I am joining with the majority in withholding at this time a recommendation for his pardon. Justice Langdon, dissenting, said: I do not concur in the majority report. The Constitution of the state of California provides that "neither the governor nor the legislature shall have power to grant pardons or commutations of sentences in any case where the convict has been twice convicted of a felony, unless upon the written recommendation of a majority of the judges of the supreme court." A majority of the judges of the Supreme Court have refused such recommendation. There is no provision in the law for a minority recommendation, and such a recommendation is wholly ineffectual for any purpose, as also is a statement of the minority's views. It seems to me sufficient to state that upon the record now before us, I am not so free from doubt of petitioner's guilt as to withhold a recommendation for executive clemency and thus preclude the governor from taking such action upon the application as in his judgment he may deem proper. 17 MOONEY AND BILLINGS Report of the Advisory Pardon Board on Mooney's Pardon, July 7, 1930 The members of the Governor's advisory pardon board were Lieutenant Governor Carnahan; Attorney General Webb; James A. Johnston, director of the State Department of Penology and former San Quentin warden, and Wardens Holohan and Smith of San Quentin and Folsom. "There is no claim by Mooney in his petition application that the trial court was unfair to him in the selection of the jury by which he was tried, in the reception or rejection of evidence, in its instruction to the jury, or otherwise in any ruling at his trial. "His application is based exclusively upon his claim that it now appears that the evidence tending to prove his guilt was false, and that, notwithstanding the verdict, he is innocent. "Before proceeding with consideration of such evidence it should be observed that, by a verdict of guilty against him, a defendant is no longer clothed with the presumption of innocence that protects him throughout his trial. Presumed Guilty "Therefore, upon an application for executive clemency, as upon appeal to an Appellate Court from the judgment against him, he is presumed to be guilty as found by the jury, and the burden of establishing the contrary is shifted to him. This necessarily is so if there is to be an end to criminal trials and investigations and if due proceedings in courts of justice are to be sustained. "It is also to be observed that the power to extend clemency given by the constitution to the Governor is a grave responsibility to be exercised with great care and should not be used by him as a substitute for trials by jury in the duly constituted courts of the State, and that the Governor should not interfere with verdicts of juries or judgments of the courts, excepting only in cases where notwithstanding the presumption of verity that attaches to them it clearly appears to his satisfaction that through error injustice has been done." "If it should be subsequently appear that a portion of the testimony against a defendant at a trial was false, it does not necessarily result from this fact that a defendant is entitled to a pardon. 18 MOONEY AND BILLINGS "If disregarding such false testimony there still remains sufficient evidence to establish the guilt of a defendant, a pardon must be denied. "At the trial Frank C. Oxman was a witness for the prosecution. Subsequently this witness was so far discredited that his entire testimony should be disregarded. For like reason we have disregarded also the testimony of Mellie and Sadie Edeau. The evidence remaining after such eliminations definitely established petitioner's guilt. "Upon the trial of Billings and again at the trial of Mooney as well as before the Grand Jury, McDonald, with the utmost positiveness, identified Billings as the man who carried the suitcase and Mooney as the man that Billings met. McDonald was recognized as the most important witness for the State in each case and he was subjected to skillful and detailed cross-examination by the defendants' attorneys. McDonald Trustworthy "Nevertheless nothing was developed upon his examination, either by the District Attorney or the defendants' counsel, to suggest that his testimony was not trustworthy in every particular. "Excepting only the denials of the defendants themselves that they were at Steuart and Market streets, there is no evidence substantially in conflict with this evidence." The board next takes up post-trial developments: "February 7, 1921, four years after his testimony in the Mooney case, McDonald made an ex parte affidavit in New York city in the office and in the presence of Frank P. Walsh, a lawyer whose employment has been sought as legal counsel for Mooney at his trial. Reiterates Testimony "In this affidavit he reiterates his prior testimony that on the day of the parade he was standing on Steuart street, about twenty feet from Market street, that he was looking across the street and saw a man lay down a suitcase alongside the building about twenty feet from the corner of Steuart street, that after he laid the suitcase down he walked away from it and went to the door of the saloon, that another man came up and spoke to him and that they both looked up the street. 19 MOONEY AND BILLINGS "He says in it that he paid little attention to the man and that he told the District Attorney that he could not identify them; that he was taken to the cell of Mooney in the City Prison where he was told that the occupant was Mooney and where Mooney was called to in a loud tone of voice: 'Mooney, here is a man who wants to take a peek at you.' "That afterward he was taken to the Park Police Station, where Billings was confined and was told they were going to show Billings to him; that Billings was called by name from his cell and told to walk down the corridor, and that he did not remember having seen Billings or Mooney before and could not have identified them if they had not been shown to him in the way he relates." The board refers to the fact that McDonald's identifications, though all-important, were not successfully attacked at the trial and then disposes of this phase of the case as follows: "It is significant that McDonald afterward, when in San Francisco, should refuse to be questioned under oath before the Grand Jury respecting these statements. "Under all these circumstances McDonald's attempted repudiation of his prior positive identifications of Mooney and Billings is utterly unworthy of belief and obviously is false. The effect of McDonald's testimony is therefore not substantially impaired in any respect by his subsequent effort. "With this evidence thus establishing petitioner's guilt, it is our opinion, and we advise, that the power vested in you to pardon his offense should not be exercised." 20 MOONEY AND BILLINGS IMAGE: EX-GOVERNOR C. C. YOUNG 21 MOONEY AND BILLINGS IMAGE: GOVERNOR JAMES ROLPH, JR. 22 MOONEY AND BILLINGS Governor Young's Decision on Mooney's Pardon Application, July 8, 1930 The sub-headings and bold face type are ours I have before me an application for pardon in the case of Thomas J. Mooney, now undergoing life imprisonment in San Quentin Prison, together with a communication from the State Supreme Court in which six of its seven members refused to recommend a pardon to Warren K. Billings, convicted of the same crime, though at a separate trial. Mooney was tried during January and February of 1917 and convicted of participation in a bomb explosion on July 22, 1916 - an explosion which took a toll of ten lives and maimed and wounded many more. Unbiased Study The original sentence of death imposed upon the defendant a year and a half later was commuted to imprisonment for life. Although two previous governors had refused to pardon Mooney, I have nevertheless given his application most thorough and exceedingly careful consideration. I have been in receipt of many hundreds of communications from all portions of the world, most of them evidently a sincere belief in the prisoner's innocence and urging his pardon, though in practically every instance with no first-hand knowledge of the case except what they have been told by others, or have read either in the press or in literature sent out by the Mooney defense committee. There has been no propaganda or pressure of any kind directed to the keeping of Mooney in prison. No Prejudice! In making my study of the case I have done so with absolutely no prejudice against Tom Mooney or any social theories he may hold, or for any other crimes with which he may have been charged or may have been capable of committing. If he was innocent of this particular crime, to keep him in prison would be an ineffaceable blot upon the good name of the State. 23 MOONEY AND BILLINGS On the other hand, if he was not innocent he was guilty of one of the most uncalled for and atrocious crimes ever committed - the wanton murder of unsuspecting men, women and children gathered upon a public street to witness a patriotic demonstration of San Francisco citizens. Coupled with the case of Mooney was the parallel case of Warren K. Billings, who several months before had been convicted of participation in the same crime, and who had already served a term. Unable to Reach Conclusion In order to secure all possible assistance and advice as to the case of Mooney, I referred it to the Advisory Pardon Board, which is regularly constituted by law to assist in investigating applications for executive clemency. Although I have spent many months studying these cases, and have carefully read the transcripts of the trials as well as thousands of pages of briefs, petitions, affidavits and other documents filed with me, as continuously stated during my investigation, I have not been able to convince myself of the innocence of the prisoners; but I have been convinced that innocence or guilt of the one implied corresponding innocence or guilt of the other; that whatever treatment was accorded the one should, in all fairness, apply to the other. Supreme Court's Inquiry Conclusive Accordingly, it was with much satisfaction I learned that Billings had applied to the justices of the Supreme Court for a pardon recommendation; for I realized that this would mean an independent and unbiased study by the highest judicial body of the state, composed of men of specialized training and outstanding ability; and I sincerely welcomed this assistance in a case which I had found exceedingly difficult and baffling. Knew Nothing of Decision I have consistently stated that the justices' decision after their independent and unbiased study would of necessity be conclusive; and in order to insure independent study, I have scrupulously refrained from discussing the matter with members of the court. In fact, until their communication of July 2 was sent to me, I had not received the slightest indication as to what their recommendation would be. 24 MOONEY AND BILLINGS John McDonald's Testimony In denying Billings' application for a favorable recommendation, the Justices laid particular stress upon the witness, John McDonald, who identified both Mooney and Billings as the men who placed the bomb which caused the loss of life. Both Billings and Mooney now contend that McDonald's original testimony was wiped out by an affidavit made four years later in New York City, in which he repudiated his original testimony. The question naturally arises as to how this repudiation was secured and on what basis it is entitled to more credit than the testimony given on oath at the trial - testimony which might easily have led to a death sentence for both defendants. For various reasons, which are set forth at length, the justices distrusted this affidavit. But in order to give Billings the benefit of the doubt, determined: "Some effort should be made to locate John McDonald, with a view to such further light on circumstances and motives attending and animating the making of the affidavit." This was the wisest and fairest action members of the court could have taken, for if it could be shown that such witnesses as John McDonald had issued false affidavits through improper motives, obviously no pardon or commutation could be recommended; while if it could be shown that the repudiating affidavits were true and dependable, the case against Billings would be materially weakened. Oxman and McDonald In the case of Mooney there were two witnesses who testified to seeing Billings and Mooney at the scene of the explosion. One of these was McDonald, who also testified in the Billings case, and the other was the cattle dealer, F. C. Oxman, who did not testify in that case. I have made a special study of Oxman's testimony and desire to say that I thoroughly discredit it. I have personally and at great length interviewed both Mr. and Mrs. Hatcher of Woodland, where Oxman visited on the morning of July 22, and am convinced that he did not arrive in San Francisco until hours after the explosion took place. I believe that Oxman was nothing more or less than a publicity seeking romancer, though I do not believe that his connection with 25 MOONEY AND BILLINGS the case was through any connivance or conspiracy with the prosecuting officials. I cannot agree, however, that the case against Mooney falls with the discrediting of Oxman, for the testimony of John McDonald is as strong in that case as in the case of Billings. In view of Justice Shenk's observation in this regard, I would most respectfully suggest to members of the Supreme Court that, should McDonald or any other material witness who has repudiated his former testimony appear before them for the purpose of proving that such repudiations are trustworthy, and that their former testimony was perjured, it may be only just and right to consider the propriety of giving a hearing to such witnesses in the case of Billings, just as I would desire to do in the case of Mooney. Until the truth of the repudiation affidavits can be definitely established, no one can question the decision of the Supreme Court or the reasoning of the advisory pardon board, for there are certainly some portions of McDonald's affidavit which appear patently untrustworthy. Must Refuse Pardon In view of what has been said above, and in view of the fact that from the very first I have considered the case of Billings and Mooney as parallel and in common with all others have recognized that both must be guilty or both innocent, until some further light is shed upon the case which I do not now possess, I manifestly must accept the conclusions of the Supreme Court and the Advisory Pardon Board, and accordingly must at this time deny a pardon to Thomas J. Mooney. 26 MOONEY AND BILLINGS From the Examination of Warren K. Billings at Folsom Prison, August 14, 1930 The Justices of the Supreme Court sitting as a Commission. Justice Preston examining Billings, with Mr. McKenzie, San Francisco attorney, representing Billings Justice Preston Probes Radicalism and Class Conflict Q. Have you touched any works on socialism or communism? A. No, I have not. Q. Have you any well settled principles with reference to what you think government ought to be? A. Well, no others than are held by the average American citizen, I don't believe. Q. Are you attached to the principles of the Government of the United States? A. I am, yes sir. Q. You are not in favor of the overthrow of our Government by any system of force? A. No, sir. Q. However applied? A. No, sir. Q. And this is the first application you have ever made for a pardon, isn't it? A. Yes, sir. Q. Why haven't you applied for a pardon earlier? A. Well, because of the fact that the Mooney case was being prepared and being presented to the Governor, and that because of the fact that Tom Mooney was a first-timer, and that I had sustained a prior conviction of a felony, it was my opinion that it would be better to allow the Mooney case to go to the Governor rather than for me to trouble the Supreme Court with my case at a time when it would be a very simple matter to present the Mooney case to the Governor and have it tried without bringing it to the Supreme Court. Q. In other words, you have rested for nearly fourteen years, or more than thirteen years on a conviction that you deem unjust without a whimper until this petition was filed, is that right? A. Well, I would hardly say it was without - Q. Well, without effort, then. A. It had been without any great effort on my part, but that was usually due to advice that was given me. 27 MOONEY AND BILLINGS Q. That is just what I am trying to get at, are you staying in prison and refusing a parole because you are attempting to aid any particular class of our citizens? A. No, sir. Q. Are you trying to promote any particular moral, social or other purpose by remaining in prison without applying for a parole? A. No, sir. Q. Well, you understand, as well, if not better than any one in the world, what strife has arisen out of the conviction of yourself and Mooney? A. Yes, sir. Q. You realize the agitation that is now going on all over the world, practically, do you? A. Well, I see a little about it in some of the papers that I receive. Q. Well, anyway, you have a fair conception, have you not, of the conditions that have arisen because of the efforts that have been made in your behalf and in behalf of Mr. Mooney? A. I have, yes. Q. Well, are you willing to help that condition clear up? A. I do not quite understand you. Q. Well, I mean, are you willing to bare your breast as it were, for the purpose of clearing that up? A. I am willing for any purpose, or for no purpose other than tell the truth. The Beginning of a Long Examination of Billings' Life and Activities Q. Well, I will ask you this question: You have not led a proper life heretofore, have you? A. I admit that I have not. Q. Almost from the inception of your adult age you have been running counter to the law, have you not? A. No, I wouldn't say that. Q. Well, when did you begin? When is the first thing that is conscious in your mind that was a violation of the law? A. I can't remember violating any laws prior to the time I was 17 years old. Unionism Brings Mooney and Billings Together Q. How did you come in contact with Tom Mooney? A. I was introduced to him by Hooper and Salner. Q. At what place? A. At his home. Q. At Mooney's home? A. Yes, sir. 28 MOONEY AND BILLINGS Q. Under what circumstances? A. They took me there to meet Mr. Mooney and introduced me to him so that arrangements could be made so that I could appear there before them and before him to report to them the information that they wished me to obtain while I was working in this shoe factory. Billings' Attitude Toward the Preparedness Campaign Q. Well, now, pacifism and neutrality is one thing, but talking against preparation is another thing. Which one were you opposed to, both of them or just one of them? A. No, sir, I had never been against preparation or preparedness as you call it; in fact I believe in preparedness, I believe in preparing for every emergency that we can see in the offing. Q. You believed in this demonstration that was had in San Francisco, did you? A. Well, I was not sufficiently interested in it to have any great sentiment either one way or the other. Q. You knew it was coming off? A. Yes, sir. Q. You attended this meeting? A. Yes, sir. Q. Who did you hear speak against it out there? A. Rabbi Nieto and William McDavitt. Q. Who else? A. Those are the only two speakers - Q. Did Tom Mooney make a speech there? A. No, sir, he did not. Toward Revolution Q. Did you know anything about revolution? A. Well, the American revolution, yes, sir. Q. Come up 140 or 150 years, had you heard any revolutionary talk in 1916 by this crowd of people that I have just mentioned? A. I may have heard the word "revolution" mentioned or some discussion of revolution, or overthrow of government, or something of the kind, but I do not remember. Q. Don't you know that this bunch of people, whose names you have heard me mention, and whose acquaintance you have admitted, were engaged in the avowed and exclusive purpose of provoking and promoting a revolution in this country? A. I did not know it at that time, no, sir. 29 MOONEY AND BILLINGS Q. Well, are you not now truer to some particular sentiments that you have got as to what you can do as against organized government when you get out of here? A. No, sir. Billings' Plans if Released Q. Have you made up your mind what you intend to do if you were released? A. Well, no, not thoroughly, no, sir. Q. Isn't it your intention to get on the lecture platform and try to tell about how you were framed and corrupt officials prosecuted you and all that sort of stuff? A. No, sir. Q. You have not engaged under any particular contract to do that thing? A. Not to do that thing, no, sir. Q. Anything like that? A. I have accepted an invitation from the Chicago Federation of Labor to be their - Q. I am not interested in that; I am glad to hear that, if true, but I am not talking about that. A. I haven't made any contracts other than that. Q. I thought you had already engaged for some kind of a bureau, radio broadcast and so on and so forth? Now, have you? Is that true? A. Not unless that is included in the program - in the Labor day program of the Chicago Federation in Labor. Q. You haven't in mind, then, which official you are going to accuse, if anybody, is that right? A. I am not going to accuse any official. Q. I am just asking you now: Do you feel that some corrupt arm of the Government has reached out and taken you and put you unjustly behind these bars? A. No, sir. Q. How do you account for the fact that you were arrested for this charge, if you are not guilty? A. Well, I account for it now by thinking that those who have been induced to participate in my trial and conviction were under mistaken opinions as to what the facts were. Q. Have you been told the result of the hearing that this court has been conducting? A. No, sir. The Motives for Billings' Labor Activities Q. What were your principles, what were you trying to do? A. To help Tom Mooney, I guess. 30 MOONEY AND BILLINGS Q. The United Railroads or the Municipal Railway had done nothing to you, had they? A. Had not done anything to me particularly, no. Q. You had no grievance against them? A. No, sir. Q. Well, tell me what you were driving at; what was the driving power of your mind if you used it at that time? A. Sympathy for employees - strikers. Q. They did not want to strike themselves, did they, any considerable number of them? A. The ones that did want to strike or the ones that I came in contact with represented to me that they did want to strike. Q. Do you think it was safe for a man of your ideas at that time to be at large? A. At that time, no. Q. You admit that, you ought not to be at large, is that right? A. Probably that is true. Q. What day of June or July was this, this was about July the what, about the 13th or 14th? A. Yes, sir. Q. That is about eight days before the Preparedness Day parade, was it? A. Yes, sir. Q. What did you do between that time and the time you were arrested? A. Well, part of the time I was active in connection with the automobile strike. Q. We have gone on another strike now, have we? A. It is the same automobile strike that had been in force before. Q. Oh, that Machinists' Union? A. The machinists' strike, yes sir. Q. That strike was a holdover, was it? A. It was still continuing. Q. And tying up this street car was simply a side issue with you? A. Yes, sir. Q. You already had a program you were working at? A. No, I had no real program. Q. How could they do without your services for ten days on so important a matter as this strike? A. My services, as it appears to me, were not very important. Q. Oh, they were not? A. I do not think so, no. 31 MOONEY AND BILLINGS Sabotage in the Automobile Strike Q. Let us have this episode of your employment following this street car tieup? A. Well, after the street car tieup I was unemployed for a while, had no employment, and then following that, just in the neighborhood of July 21 and 22, I again entered the Union, or went to work with the strike committee of the Machinists' Union in connection with the sabotage. Q. Had that job ever been suggested to you before? A. No, I don't believe it had. Q. It had not occurred to you nor had been mentioned to you, either? A. No, sir, I believe that the idea of sabotage on automobiles occurred to Nolan and myself about the 20th and 21st of July. Q. It was an original idea of yours, was it not? A. I believe it was. Q. You don't want to lay that on Mr. Nolan? A. I am not positive whether it was an original idea of mine or an original idea of Mr. Nolan's. Q. Let us get your best judgment on it. Is it your best judgment that you are the boy that hatched it up? A. I imagine I suggested it. Q. You were gloating over your victory in tying up street cars at that time, were you not? A. I never gloated over any such thing as that. Q. You were satisfied that you were doing things and getting away with them, were you not? A. I was satisfied about it, did not have any particular feeling of satisfaction. Q. You were having perfect success in your work, were you not? A. The attempt to stop the street car in the proper place was entirely successful, yes, sir. Q. Every other thing that you had been employed on was a success, too, was it not? A. Successful at times, yes. Billings had explained to the court that during the Preparedness Day parade he was engaged in applying paint remover to certain automobiles as an act of sabotage in the strike. Q. And you were in full realization of that fact when you undertook this sabotage job you told us about? A. I presume so. Q. Did you arm yourself for this project? A. No, sir. Q. You did not carry a gun? A. No, sir. 32 MOONEY AND BILLINGS Q. What did you arm yourself with? A. With a 35-cent can of paint remover and a rubber syringe. Q. Is that all? A. Yes, sir. Q. How many syringes were in the can? A. I could not say. Q. About how many, sixteen or three? A. Probably a large number; I never used all of the paint remover. Q. How big was the can? A. Pint can. Q. How much demolition or destruction did you do on the car when you tackled it or made a frontal attack on it? Mr. McKenzie: Side attack. Mr. Justice Preston: Side attack, yes. A. I spread the paint remover on the side of several automobiles. Q. Why don't you come out and say what it was, what kind of paint remover? A. Varnish remover is all I know; I bought a 35-cent can of varnish remover. Q. You carried a syringeful and no can around with you, did you? A. I poured part of the contents into a half-pint flask and carried the flask in my pocket and went into various saloons to fill the bulb. Q. How many times did you fill the bulb? A. On the day of July 22 I filled the bulb four or five or six times, I don't remember. Q. How many bulbs full, one to each car - or, rather, would a bulbful fix up more than one car? A. Well, it would depend, of course, on how thoroughly I sprayed the car; whether I completely emptied the bulb on one car or not; by going along, walking along past the car, spraying the paint remover on the cars as I would go by, it was not necessary to entirely empty the bulb, so that there would still be some remaining in the bulb. Q. In other words, some cars got a full dose and some cars got a broken dose, is that right? A. I imagine some cars got a good deal more than others, yes, sir. Why Billings Did Not Reveal His Activities at His Trial Q. Why didn't you tell about this syringe story at your trial, if it is true? A. Well, because I did not think that it was necessary for me to prove anything against myself which would obviously be so prejudicial to a court as the commission of a crime of this nature. 33 MOONEY AND BILLINGS Q. Do you consider you lied, or did you not lie in leaving that out? A. I considered I avoided the truth which, of course, is a form of lying. Q. A refined form of lying, isn't it? A. Considered so, I believe. Q. Is there anything in your story as you recall it, you say you have read your testimony, I haven't read it lately; but is there anything in your story as you recall it, as you gave it to the jury on your trial, that is inconsistent with the varnish removing-spraying story. A. No, sir. Q. All consistent except you didn't admit it? A. Yes, sir. Q. Did you tell your attorney about it at the time? A. No, sir. Q. You did not? What about repenting of that? A. What do you mean? Q. Well, a man that will suppress from his attorney and from the court and from the jury, valuable information of that kind - A. Well, I thought, in my opinion, that I was entitled to reserve that information in as much as it would be used against me. Q. Did you have that cigarette book with the numbers of the automobiles in it? A. Yes, sir. Q. Did you have that when you were on trial? A. No, sir. Q. You had it when you were arrested. A. Yes, sir. Q. You could have preserved it for your trial? A. I could have I presume. Q. And that would have pointed out every car that you sprayed, wouldn't it? A. I suppose it would. Q. And it would have located you at every point where you sprayed them, wouldn't it? A. I presume so, yes. Q. And that would have put up for an alibi, if you were innocent, that would have been unimpeachable, wouldn't it? A. I imagine now it would. Q. So you are here in the penitentiary and have been here for fourteen years when you had within your own power the absolute proof that would have acquitted you, isn't that right? A. I wouldn't say documentary proof. Q. I call it documentary proof. I am calling this book you kept documentary proof. All you would have to do would be to go to see one of those cars and find out whether it had been sprayed by this 34 MOONEY AND BILLINGS acid or whatever it was, find out the location of it from the owner, and you would have had the whole thing perfect, wouldn't you, an alibi that would have been unimpeachable and unassailable? A. Some of the cars may have been sprayed while they were in motion or while they were passing by, and it might not have been possible to tell where they were located when they were sprayed. Q. You had some of them located, didn't you? A. I did. Q. You could have located them still inside of that week, couldn't you? A. I could. Q. Enough of them to keep your trail blazed all over the city during that period, could you not? A. If I had any such intention of establishing an alibi in that manner, I could have, I presume. I had no knowledge of any bomb or no knowledge of any explosion or anything of the kind, and had no reason for establishing an alibi. I was performing an illegal act, and naturally afterward tried to hide it, tried to keep it from becoming known. Q. You were getting out of the frying pan and getting into the fire? A. Well, because I thought the mere fact alone that I was absolutely innocent of this crime would be sufficient enough for me to prove my innocence; consequently the other crime did not need to be brought forth. Billings Restates His Innocence Q. You don't know of anything that we can hang our hat on tonight that will show us that you did not do it, do you? A. Did not do what? Q. Did not commit that crime that you are charged with an are right here for? A. Well, this information regarding this paint remover, my original statement to Chief White where I was and what I saw, and what occurred there. You have that before you. Q. Do you want us to believe that, sitting here under these unusual surroundings tonight, that you have now told us the whole truth about your relations with Mooney and your employment on the 22nd day of July, 1916? A. As far as I am able to recall the incidents, yes, sir. Q. You do that without reservation? A. Yes, sir. Q. You can look the world in the face, can you and make that statement? A. I feel that I can. 35 MOONEY AND BILLINGS Q. Did you have some kind of package or suitcase or some other form of grip on that day? A. No, sir, I did not. Nothing except the bottle in my pocket. Q. How do you account for these disinterested people recognizing you at 721 Market Street? A. I don't account for it. Q. You don't account for it? A. I don't see any way to account for it, unless they might have been mistaken in one way or another. Their descriptions, as far as I remember the record, seem to have varied greatly, there seem to be considerable discrepancies between the descriptions given by the different witnesses. Parade Day Good for Sabotage Q. Didn't you say the parade day would be a bad day for this sprinkling of cars? A. No, I believe I told Nolan that the parade day would be a good day for it; I believe that I suggested that it would be a good opportunity on parade day, the automobiles would be stationed along the side streets and side lines away from the parade while the people were viewing the parade. Q. While the country was preparing to protect itself you were destroying their property? A. I seem to have admitted that here. Billings' Motives Q. Were you doing it for pure love and affection? A. Sympathy, I imagine. Q. You were just simply "agin" the Government, it doesn't make any difference what it was doing; isn't that really true? A. Not against the Government. Q. Well, against law and order or against business of most every kind, weren't you? A. Against capitalism; my ideas were against capitalism. Q. How do you stand on that now? A. Well, I have no- Q. What is capitalism? You have got as good clothes as a ny man in the room, haven't you? A. They might appear so at a distance; they wouldn't appear so under closer inspection. Q. How about capitalism now? A. A whole lot depends on the definition of our words, your honor. If we consider capitalism as an individual proposition or as a system it makes a lot of difference. 36 MOONEY AND BILLINGS Capitalism can be good and bad, like everything else; it can be benevolent or it can be despotic. His Political Program Q. If you had it in your power tonight to reform the Government, what would you do first? A. What would I do first? Q. Abolish the Supreme Court, I guess, would you? A. No, sir. I think the first thing I would do would be to elect a Democratic Governor, a Democratic President, and a Democratic Senator. Q. By Democratic, what do you mean? Mr. McKenzie: He is the last remaining Democrat, Judge, in this State. The Chief Justice: There are four Democrats on the court. Mr. Justice Curtis: For their benefit I would like to have that answer read, please. Mr. Justice Preston: I think you will find he doesn't mean the word in the sense you mean it. Mr. McKenzie: Yes, he did. Mr. Justice Preston: Is that all right? Is that admissible evidence? Mr. McKenzie: If there are that many members of the court that are Democrats, that is the best statement he had made. Mr. Justice Preston: I wasn't talking so much about that as I was about the principles of government, and of order. Would you have a King or President - A. No, sir. Q. Would you abolish property rights? A. No, sir. Q. Would you establish a soviet like Russia has? A. No, sir. Q. You are not in sympathy with that any more, if you ever were? A. I never was in sympathy with communism. Q. What were your theories of government prior to the time you were arrested upon this charge? A. Well, my theories and sympathies and politics have always been with the Democratic party. Q. They are not throwing acid on automobiles, are they? A. No, sir, that is aside from my politics. Q. I am not asking you about politics; I am asking you about what was your idea of the way the government was being carried on. Of course, if you are against the trusts, and that is all you mean to say I will be glad to hear that. A. Well, that is a part of it. I am 37 MOONEY AND BILLINGS against a great many other things besides the trusts that are not any more legitimate in reality than my own activities. Billings' Strike Sympathies Q. Did you get a measure of consolation out of that when you were doing what you were doing? A. At the time that I was doing the things that we have had under discussion, I had very little interest in politics or in any subject so broad even as economics. I had little information or little knowledge of those subjects. In my ignorance I imagined that what I was doing was important work. 38 MOONEY AND BILLINGS Second Report of the California Supreme Court to Governor Young on Billings' Pardon Application, December 1, 1930 The justices submitted six communications to the Governor. One general letter signed by six of the seven judges conveys and endorses the individual findings of four of the justices against a pardon. Justice Langdon, dissenting, wrote a separate report. Following is the general letter to the Governor signed by six of the judges. Dear Sir: The Justices of the Supreme Court have concluded their consideration of the petition of Warren K. Billings for a pardon, and report herewith the result of their investigations. Public Hearing Held Having granted the petition of Billings for a reconsideration of his application, following the report made to you in this matter on July 2 of this year, it was decided to conduct a public hearing. That was done, and the hearing extended over the greater part of a month, and included a visit by the Justices to the State Prison at Folsom for the purpose of taking a personal statement of the applicant. Burden of Proof on Billings This entire proceeding appears to have been regarded by a considerable portion of the public and the press as a new trial of the petitioner, during which he should at all times have been accorded the presumption of innocence. We have not, and do not, regard it in that light. On the contrary, petitioner comes here, after his conviction in our constitutionally established courts by a jury, in a trial at which he was accorded every opportunity to establish his innocence. He is not now entitled to the presumption of innocence, but stands here with the burden resting on him to satisfy the pardoning power that he is entitled to executive clemency. 39 MOONEY AND BILLINGS Many Witnesses Heard Many witnesses were examined and much documentary evidence was received during the public hearing, and upon its conclusion, the matter was kept open in order that both the petitioner and those representing the people might present any further evidence and make any further showing relevant to the cause. There have accordingly been filed a number of affidavits, and due and careful consideration has, in the meantime, been given to the evidence produced before us. The testimony taken at the hearing has been written up, and a transcript is transmitted to you herewith. Certain members of the court have prepared and submitted separate analyses of the evidence taken by the Justices, and their individual conclusions. Mr. Associate Justice John E. Richards, who was a member of the District Court of Appeals which considered the Billings appeal following his conviction, has prepared a summary of the cause and his conclusions in connection with the present hearing. Mr. Associate Justice John W. Preston, who conducted the major examination of the petitioner and the witnesses at the present hearing, has prepared a critical analysis of the testimony, and has announced his individual conclusion. Mr. Associate Justice John W. Shenk and Mr. Associate Justice Emmet Seawell have written their individual conclusions. Mr. Associate Justice William H. Langdon has also prepared a statement of his own conclusions and analysis of the evidence, from which he is unable to agree with the majority of the Justices. These documents are transmitted to you herewith. As a result of our deliberation, the undersigned Justices share in the main conclusions of Mr. Justice Richards, Mr. Justice Shenk, Mr. Justice Seawell and Mr. Justice Preston, and in their analyses of the testimony taken. We are, therefore, of the view that the petitioner, Warren K. Billings, has not made out a case for the granting of a pardon, and we are, accordingly, unable to recommend that such action be taken. Mr. Justice Langdon recommends that executive clemency be granted. 40 MOONEY AND BILLINGS From the Opinion of Justice Shenk The applicant has endeavored to prove that he was convicted by the perjured testimony of witnesses who appeared against him at the trial. From time immemorial it has been the law of the land that such perjury must be met at the trial. But in our consideration of the application we have swept aside that rule of law and have fully and freely heard testimony the effect of which is claimed to prove that certain witnesses at the trial were false to their oaths or were honestly mistaken. The showing in this regard consists in the main of affidavits signed by witnesses purporting to repudiate their former testimony. On the prior hearing of this matter we were foreclosed from any information as to the circumstances under which those affidavits were made. We now have that information which discloses that they were obtained on behalf of the petitioner under influences and by means which entirely destroyed their credibility. The circumstances attending their execution are set forth more at length in other reports submitted to you. There is no evidence before us sufficient upon which to base a conclusion that the witnesses who made those affidavits were subjected to any improper influences or suggestions or that they were honestly mistaken at the time they testified at the trial. In my judgment an impartial consideration of all of the evidence before the Justices, tested by the rules universally applied to the ascertainment of facts, compels the conclusion that the applicant has fallen far short of the burden assumed by him to overthrow or discredit the record of his conviction or to establish that he is otherwise entitled to a pardon. I must, therefore, join in withholding a favorable recommendation. From the Opinion of Justice Seawell At this remote period it is claimed that practically all of the witnesses upon whom the State relied, in whole or part, who connected the petitioner with the Preparedness Day bomb explosion, were either wicked perjurers, or that their stories were but figments of the mind, or that their senses of perception distortedly recorded the things which they claimed to relate. 41 MOONEY AND BILLINGS Witness McDonald, who went through the vehemence of four or five gruelling trials, told and retold his story that remained unshaken in the main, which was sufficient in its convincing force to have gained the credibility of Judges and juries, now comes forth from his uncanny abode, influenced by some motive or purpose to repudiate the identification he formerly made of the petitioner and his alleged associate in the crime. His efforts to impeach his former testimony and many of the statements corroborative of its truthfulness at times, in places and in circumstances, which would seem to wring the truth from the most wretched of mankind, bears the palpable fabrications of a man who had succumbed to a long siege made upon his honor, rather than the triumph of a long-burdened soul in casting off its perfidious load. If the rules which ordinarily govern human action are to be regarded in consideration of this matter, it is less difficult to credit McDonald's former testimony than it is to reconcile his belated repudiations thereof with an honest desire to undo, as far as he may, the immedicable wrong. Neither his weird story nor cringing manner carried conviction to the mind. This being so, should it be said that the things that have destroyed the most sacred attribute of man should be given retroactive effect to blacken and destroy all of life that has gone before? It was the duty of former courts to determine what manner of man McDonald was in the circumstances of the situation as then presented, and their finding as to his credibility in the issue then presented preponderates over anything that has been presented in the instant proceeding which tends to his undoing. This being so, we would not be justified in vitiating the judgment regularly recorded against petitioner after full investigation of his connection with the crime charged against him. Petitioner was brought before us and interrogated over a period of approximately three hours. It does seem that he did not exhibit the frankness and open-mindedness that might be expected of a man who had no connection with the commission of a crime of which he stands wrongfully convicted. The suggestion that his failure to account satisfactorily for his whereabouts on the day of the explosion was prompted by the fact that it would have required him to reveal his activities in the commission of other offenses of a most despicable 42 MOONEY AND BILLINGS character is not persuasive, in view of the great disparity as to penalties existing between the crime he actually committed and the crime he was suspected to have committed. The latter carried with it a possible death penalty. The testimony has been reviewed quite extensively and has been fully considered by this court in its many conferences. Before I feel justified in joining in an order recommending a pardon and thereby annulling the judgment of the several courts who have considered the petitioner's case there are a number of incriminatory circumstances and considerable evidence that must be explained away. No satisfactory explanation has yet been made. This being so, I cannot find myself able to recommend that a pardon be granted petitioner. From the Opinion of Justice Preston We have entertained the application of petitioner in a most serious and painstaking fashion. We are not unmindful of the public interest in the question of his guilt or innocence of the charge of which he stands convicted. By reason of this public interest, we have conducted this proceeding largely as an open public hearing. While we have a vast amount of evidence before us not reviewed at the open hearing, yet in a real sense the record of conviction of petitioner and a large amount of the evidence upon which it was based has been publicly reexamined. And for this purpose we have sat the better part of one month, during which we also visited Folsom Prison. We realize that the conviction of petitioner and one Thomas J. Mooney, for planting and exploding, on July 22, 1916, a deadly bomb in a patriotic parade, has arrested the attention of people in all parts of the world. We also know that growing out of their conviction has been a widespread propaganda against the efficiency and fairness of our courts, even against the objects and purposes underlying our institutions. More than this, their conviction has been made the basis for fomenting strife between the different classes of people. No Frame Up! If nothing more has been accomplished by this public hearing, it can now truly be said that all just reason to inveigh against our courts 43 MOONEY AND BILLINGS or against the other established ordinance of our Government has been removed. By this statement we allude to the fact that it has abundantly appeared and was frankly and freely conceded on behalf of petitioner himself that he received a fair and impartial trial before a fair and impartial court and jury and was prosecuted by officials who acted fairly and in good faith. It is also impliedly, if not expressly, admitted that the evidence as it appeared at the time of such trial was sufficient to warrant conviction and that the appellate courts were well warranted in approving and sustaining it. It must also be noted that those persons largely responsible for the wide-spread propaganda to the effect that petitioner and said Mooney had been convicted by illegitimate and oppressive, if not corrupt means now freely admit that this poisonous doctrine was founded in falsehood and was known to be such when it was put in circulation. What Basis for Review? From these preliminary observations we may now approach more closely the rules which are to guide us in the consideration of the application presented. What are the principles which should control our action here? Is the petitioner to be clothed with the time-honored presumption of innocence in the face of the concession of a fair and impartial trial upon evidence then conceded sufficient and upon which the petitioner rested for some thirteen years before asking for a pardon? Do we sit de novo as a jury to reweigh the testimony in the light of this presumption? May the petitioner, whose behalf certain of the State's material witnesses, after years of espionage, by the use of money and wiles of other kinds, have been induced to recant their testimony, be heard to say: "Now that I have reached and sapped the moral fiber of witnesses against me, as a reward for such conduct I demand a pardon?" Suppose that by such illegal methods and practices the witnesses are so discredited that were the trial to be had anew, the evidence would be insufficient to convict, would that alone entitle the petitioner to a pardon? Must Prove Innocence My own view is that the petitioner must be required to make a much stronger showing than this. It is not sufficient for him to say, "I 44 MOONEY AND BILLINGS must be pardoned because by illegal and illegitimate influences I have destroyed the credibility of the witnesses who testified against me"; on the contrary, it is my view that he should be required to establish his innocence and this may be done either by showing that in truth he did not commit the crime, or by an out and out showing of innocence by proving an alibi, or by identifying the perpetrator. He has chosen to rest his defense upon an alibi, coupled with the contention that the witnesses of the prosecution are unworthy of belief. Has petitioner met the above test? We are now to examine the record in search of a showing of his innocence. In the examination of this question we are not confined to the limits prescribed by the ordinary rules of evidence; we may look to all the facts and circumstances appearing in the record . . . Agreed on Action They both entertained the sentiment that some "direct action" should be taken to stop the patriotic demonstration then about to take place. The petitioner, with daredevil abandon, stood ready to become the puppet of Mooney or any other anarchist who might essay to interfere with the parade. The public mind, even to the marchers in the parade, was prepared to expect a crime of some kind against the demonstration. Older was in his office fearing it. Berkman and Goldman were in the office of the Blast, doubtless awaiting it. Petitioner was the easily procured and servile agent for this purpose, who, out of his own mouth, admits a state of mind at the time of his arrest which should have prevented him from being at large. He had the suitcase and he placed it at the scene of the explosion as a willful act of bravado and vandalism. So far from demonstrating his innocence to us, he has left us with an abiding conviction of his guilt. An investigation of this application, covering the better part of two months, convinces us of a few propositions, among which are: That no ground whatever exists for this case being the actuating cause of class strife or prejudice; that petitioner's conviction does not represent to any extent the influence or the weight of so-called capi- 45 MOONEY AND BILLINGS talism, but was an honest and careful application of law against crime, nor does it betray the slightest discrimination in favor of or against any class of our citizens; furthermore, that to foster and perpetuate strife among the classes is the concealed but plain object of petitioner in refusing to apply for a parole. He accepted one under his conviction of a cognate crime in 1914. A man who has admittedly led a continuous life of crime should not by false claims undertake to circumvent the law, but should be content to prove his right to a pardon by applying for parole, and, if received, justify its issuance by a life of rectitude and virtue. If, on the showing here made, convictions could be upset by false propaganda and illegitimate means, such as were used by certain influences in behalf of petitioner, the enforcement of law would soon deteriorate into a mere farcical proceeding. From the Opinion of Justice Richards There were certain important factual conclusions deduced by us upon our former consideration of this matter from the rather incomplete showing there made, but which upon rehearing have been established beyond the realm of possible doubt. No Frame-Up The first of these relates to the integrity and propriety of procedure and conduct on the part of the Police Department of San Francisco, and of each and all of its members, and also on the part of each and all of the prosecuting officers thereof during the entire course of the investigation, as to the possible perpetrators of the Preparedness Day crime, and as to the identification, arrest, trial and conviction of the defendant Billings, charged with others, with its commission. The affirmative proof placed before us upon this later hearing was such as to satisfy every reasonable mind as to the truth of the foregoing statement and of our former finding thereon. Upon this hearing, however, this assurance was made doubly sure and was, in fact, removed from all peradventures of doubt by the frank, open and unqualified admission as to its truth by the counsel for the applicant himself. 46 MOONEY AND BILLINGS We, therefore, declare the foregoing statement of our former conclusion to have been absolutely and unqualifiedly established and affirmatively conceded upon the recent hearing. Billings' Identification The second conclusion announced in our earlier findings, which to our minds became fully and finally established upon the recent hearing, was as to the fact that on the date of the crime, and within a half hour, or even less of its commission, Warren K. Billings was seen and positively identified by several witnesses as being at the premises consisting of a low, two-story building, known as 721 Market street in said city. . . . Billings Linked to Suitcase The second conclusion to which in reason we are forced by the finality of the foregoing facts is that since Warren K. Billings has been sufficiently proven to have been at 721 Market street with such a suit case as might well have concealed the deadly bomb only a short while before its explosion, and since he has also been sufficiently proven to have been at Steuart and Mission streets without a suit case a few moments after the explosion, and since his alibis as to his whereabouts in the intervening time have disappeared, it was incumbent upon Warren K. Billings upon the present hearing to offer some affirmative showing that he did not in fact commit the crime of which, upon his former fair, full and impartial trial, he was convicted. Corroborate Main Testimony The importance of the testimony of the several witnesses who testified to having seen such suit case shortly before the explosion standing upon the sidewalk at the precise point where, as shown by the indentations in the sidewalk, the explosion actually occurred, consists chiefly in the fact that this evidence supplies a strong corroboration to the testimony of the main and only witness who came forward to testify as to the actual placing of the suitcase at the indicated spot. That witness was and still is John McDonald. That John McDonald was at or near the corner of Steuart and Market streets at the time when the suitcase was placed at the spot of its subsequent explosion has never been seriously or successfully disputed. 47 MOONEY AND BILLINGS Saw Suitcase Deposited In his recent appearance and testimony before the members of this court during the month of August of the present year he has uniformly and repeatedly reasseverated that he was present at Steuart and Market streets at the time when the suitcase was placed at the spot of its explosion, and that he witnessed such placement. Within a very few days after John McDonald had made his foregoing positive identification of Warren K. Billings as the person who had placed the suitcase at the spot of its explosion, he was called to testify before the Grand Jury. He did in fact so testify on August 1, 1916. First Story Rang True His testimony as given before that body is quite instructive. He therefore the first time told his story under oath and without question and answer. He told it with detail and circumstance which in common experience is not the way of a witness who is lying, unless he has been coached, of which there is not the slightest proof. He related minor incidents which only bear collaterally upon the main story, but which an unskilled perjurer would not be likely to invent. Test of McDonald's Word In undertaking now and upon this hearing to weigh and determine the truth as to the testimony of McDonald as given upon the Billings' trial, we are bound primarily to submit that evidence to precisely the same tests as the jury upon that trial were instructed to do. In other words, leaving out for the moment McDonald's subsequent attempted repudiations of certain vital portions of his former testimony, we are bound in the first instance to apply to such former testimony of McDonald, as given before the Grand Jury, upon the Billings trial, and upon each of the subsequent trails of his codefendants, the records in which are before us, the same legal tests which the jury or several juries were directed to apply. Early Testimony Convincing In so doing we are bound to declare that McDonald's testimony given upon each and every one of said occasions bore every appearance of sincerity, consistency and truth; that it withstood suc- 48 MOONEY AND BILLINGS cessfully every assault upon it made during repeated and extended cross examinations by the most skillful criminal lawyers in the entire country, and that except for its latter attempted repudiation on the part of McDonald himself it was and still remains sufficient, with the other evidence offered, to support the finding and conclusion that Warren K. Billings was and was properly found to be guilty of the heinous crime for which he was sentenced to imprisonment for life, and that he is not now entitled to a recommendation that he receive a pardon for such crime . . McDonald's Repudiation False We turn from this sordid story to consider the content of the affidavit which McDonald subscribed on February 7, 1921. It contains approximately sixteen pages of typewritten matter. We do not need to deal with this affidavit in detail further than to say that it consists, as to at least fourteen pages thereof, in a mass of ridiculous and unbelievable falsehoods, mainly devoted to charging the police officials and members of the District Attorney's office of the city of San Francisco with having concocted, and with McDonald's reluctant aid carried into execution, a frameup, having for its purpose the conviction of Billings, Mooney and certain other persons of having conceived and carried into fatal effect the Preparedness Day explosion, upon evidence which they sufficiently knew to be false. Measured by the same legal standards which, as we have seen, were applied by the court and jury to his former testimony, and which we also have rightly applied thereto, this affidavit of John McDonald fails in every respect to carry conviction as to its truth. Does Later Perjury Destroy Original Story? It is argued to us, however, that we should disregard the evidence of John McDonald given in 1916 for the reason that he has shown himself to have been a willing, corrupt and shameless perjurer in 1921 and again in 1930. We know of no such rule to be applied to the testimony of a witness which, as first given, is marked by every appearance of voluntariness, sincerity and truth, which withstands assault upon cross- examination, and which wins belief from both court and jury to the extent of procuring a verdict of conviction and the denial of a motion for a new trial. 49 MOONEY AND BILLINGS If testimony of this character is to be overthrown by a subsequent repudiation thereof by the witness giving it, but which repudiation not only bears upon its face the manifest proofs of falsity, but it is subjected to the gravest suspicion of having been produced by methods savoring of subornation of perjury, no verdict or judgment of a court of justice would ever be safe from similar assaults. McDonald's Appearance Before the Court It is, therefore, the personal appearance of McDonald before us which constitutes the chiefly significant fact or circumstance arising out of the more recent developments of this remarkable case. In due course John McDonald appeared as a witness before us. In advance of whatever regard we are to give to his testimony it may be said that a more abject spectacle of debased and degenerated manhood was never before presented to any body of judicial or quasi quadicial investigators. It is needless to describe him to those who saw him or attempt to depict him to those who heard him testify. Had the John McDonald of 1916 been, in outward appearance or manner of testifying, the John McDonald of 1930, as he appeared before this body, it is inconceivable that any appreciable amount of credence would have been accorded him or his evidence before a court or jury, and it is particularly beyond belief that the court and jury which were occupied in the trial of this applicant should have been so far impressed with the sincerity, consistency and truth of his testimony as there given as to have based the conviction of this or any other defendant thereon. The testimony of John McDonald as given before us upon the instant hearing, occupied with his direct and cross-examination, many days. Without attempting to detail the same, it is sufficient to say that at every point wherein he sought to reiterate the content of his affidavits of 1921 and 1930 or to cast discredit upon his testimony of 1916, or upon the manner of its production, he was abundantly and repeatedly shown to be an unmitigated and shameless perjurer. When confronted, as he frequently was, with his manifest perjuries and with proofs of the truth of his former testimony he betook himself to such broken utterances as "all lies, all lies," or covered his face with his handkerchief in a simulation of wretchedness and weeping, during which, however, it was observed that no tears fell. In short, 50 MOONEY AND BILLINGS a more hypocritical, evasive, unbelievable witness could hardly be conceived. Long before his examination and several cross-examinations were completed, practically every portion of the content of his several affidavits contradicting his evidence as given upon the several trials of Billings and his co-defendants had been indisputably shown to be false. Summary To sum this matter up it may be stated as our deliberate conclusion that the effect upon our minds of the production of John McDonald as a witness before us had been but to reinforce our former conclusion that his attempted repudiation of the testimony which he gave before the court and jury in the Billings and succeeding cases was so abundantly shown to be false, if not, as we believe corruptly inspired, as to be utterly valueless for that purpose, and hence that the testimony of John McDonald as given upon the Billings trial in 1916 and the truth thereof have not been successfully assailed or overthrown; that there can be no question as to the sufficiency of that evidence to justify the conviction of Warren K. Billings for his participation in the crime of the Preparedness Day explosion; and that nothing has been presented before us upon this hearing sufficient to convince our minds that Warren K. Billings is now entitled to a recommendation for pardon at our hands. 51 The Dissenting Opinion of Justice Langdon Considered either as an argument of an advocate or as a judicial review of the evidence, the consolidated majority report is unsound and indefensible. It is unsound because its conclusions are not founded upon established facts. Suspicions, conjectures, unwarranted inferences, irreconcilable inconsistencies, and admitted perjuries are treated as facts. It is indefensible because it appeals to passion and prejudice. One-fourth of the report is devoted to anarchistic propaganda and the bad character of the petitioner. The trial court properly held these matters were not admissible. It is manifestly improper to inject them into this inquiry. It may be admitted that Billings was a most undesirable citizen. He says so himself. To some people this may appear to be abundant reason to leave him where he is. A judicial officer, bound by oath to secure for any person accused of crime a fair trial, must be immune from any such suggestion. Our duty is to determine, uninfluenced by passion or prejudice, whether Billings has been proved guilty of the crime with which he is charged. I do not know whether Billings is guilty or innocent of the crime with which he is charged. I do know that there has been a failure of proof to such an extent that there is now not even the semblance of a case against him. Upon the record now before us a recommendation for executive clemency cannot justly be withheld. In that record the indispensable witness is John McDonald. Irrespective of what influences caused McDonald to testify as he did in the original trial, his testimony must now be discarded as a factor JUSTICE WILLIAM H. LANGDON 52 MOONEY AND BILLINGS in the case, for McDonald is so thoroughly discredited as to be absolutely unworthy for credence. His word is worthless for any purpose. I am supported in this view by Captain Goff. In a letter recommending a pardon for Mooney he referred to Oxman and McDonald as "the two vital witnesses" and he said: "If I were a juror sitting in the case I would not in my present frame of mind consider their testimony for a single minute when a human life was being weighed in the balance." As in the Mooney case, so in the Billings case the testimony of McDonald is of vital importance. With him discredited, the chain of proof is broken, and the case against the petitioner fails. It was this elimination of McDonald as a credible witness that prompted Captain Matheson and former Deputy District Attorney Brennan, who prosecuted Billings, to recommend a pardon for him. It was for this same reason that such recommendations were made by trial jurors. The opinions of these men on the effect of McDonald's testimony are entitled to great weight. They know more about the conduct and the merits of the case than we can ever learn from our reading of the record. I deem their statements of the highest importance, and I cannot understand the failure of the majority to give them their proper consideration. This case hinges on the identification of Billings. McDonald is the identifying witness. The first identification made by McDonald was in his statement to the police. In that statement he gave a detailed description of the man whom he claimed to have seen at Steuart and Market Streets. It is absolutely impossible to recognize Mooney or Billings in either description. No officer could have arrested them and no district attorney could have prosecuted them in reliance upon that statement. Its production would have challenged any subsequent identification. Tested by this statement, the incidents of the "Rogues' Gallery" book and the trip through the jail lose their importance. For the more positive his later identification appears, the less credence can be given it in view of his earlier statement. That statement nullifies his testimony. When fairly considered, the bottom drops out of the case against Billings. McDonald's testimony, moreover, cannot be reconciled with the established fact that Mooney was on the Eilers' Building from 1:58 p.m. to 2:04 p.m., as shown by the photographs of the building and the street clocks. According to McDonald's testimony, Mooney and 53 MOONEY AND BILLINGS Billings were together at 8 or 10 minutes before 2 p.m. at Steuart and Market Streets and left about 2 p.m., Billings crossing Market Street and proceeding in the direction of the Embarcadero and Mooney going in a northwesterly direction. The Justices of this court, since the hearing, on their own initiative, conducted an exhaustive investigation of the photographs relied upon by the defense, in order to determine whether they had been tampered with. The report of the experts, who checked the time shown on the clocks pictured therein against calculations based upon the lines of certain shadows on the building, definitely establishes the authenticity of these pictures with respect to the time indicated. The majority opinion has absolutely failed, as have all witnesses and officials connected with the case, to reconcile McDonald's testimony with the evidence of the clocks. It cannot be reconciled, and for this reason McDonald's testimony cannot be true. No other witness connects Billings with the crime. The only other persons who place him near the scene of the explosion are Crowley and Oxman. Crowley has Billings and another man at 1:55 p.m. on Steuart and Mission Streets, headed south toward Howard Street. Oxman has Billings, Mooney, Mrs. Mooney and Weinberg coming to the scene in an automobile, placing the suitcase, and leaving in the automobile. Disregarding for the moment the charge that Oxman was a perjurer and suborner of perjury, and that Crowley has a criminal record, and taking their testimony at its face value, what is it worth? Nothing at all. If Crowley told the truth, McDonald lied; if McDonald told the truth, Crowley lied; and if Oxman told the truth, both of the others lied. If any doubt exists as to the value of Crowley as a witness, it is dispelled by the action of the prosecution in abandoning him after the Billings trial. I might stop with this consideration of the evidence were it not for the exaggerated importance which has been given to the testimony of Estelle Smith. Without delving into the police record of this irresponsible woman, it is sufficient to point out first, that she repudiated her original testimony in an affidavit signed on March 19, 1929. At the hearing before us she was contradicted on material matters by the witnesses Fickert, Brennan, Matheson, Goff, and Older. I can well understand why she, too, was abandoned by the prosecution as a witness in the trials subsequent to the Billings case. No district attorney, discovering her true character, would use her as a witness. 54 MOONEY AND BILLINGS Her credibility is as completely destroyed as that of McDonald. All of the other witnesses at 721 Market Street have either repudiated their testimony or have been challenged by contradictory evidence or have, as in the case of McDonald, been discredited when their testimony was considered in connection with established facts. The requirement of the majority that the petitioner prove his innocence, either by establishing an alibi or by identifying the perpetrator of the crime, is unreasonable and unwarranted. A perfectly innocent person may be unable to prove an alibi. And it is preposterous to demand of the accused that he place his finger upon the real culprit in order to exculpate himself. Although Billings has presented an alibi, it is unnecessary for us to consider it. When the chain of proof is destroyed, he needs none. Nor am I interested in the charge of frame-up. It has been eliminated from the issues, and it would be improper to discuss it. This charge rests largely upon the statements of Estelle Smith and John McDonald, and there is doubtless no more reason to believe their accusations against officers of the laws than their testimony against the petitioner. I am equally unconcerned with the activities of those individuals and organizations that have interested themselves in the release of Mooney and Billings. Whether their actions are subject to the criticism made in the majority report is a matter which does not affect the guilt or innocence of Billings. McDonald stands discredited by his own first statement to the police and by the evidence of the photographs, and it is unnecessary to rely upon his repudiation. The Justices of this court are given no pardoning power by the constitution or statutes of this State. That power rests with the Governor, and may be exercised by him for reasons of his own. Proof of innocence has never been an essential requirement for its exercise. It cannot be required as a condition to a recommendation which is itself not final. If we find that there has been a failure of proof of guilt, it is proper for us to make the recommendation on that ground. Our task is then ended. The Governor is then free to act as he may desire. The majority report leaves the hands of the Governor tied. Unless and until the constitution of the State is amended, or three Justices of this court change their views, the Governor is powerless to consider petitioner's application irrespective of his own views of its merits. 55 MOONEY AND BILLINGS McDonald's Repudiation The essential parts of the affidavit made in 1921, containing the story of perjury which the Governor and Supreme Court refused to believe I am the same John MacDonald who testified in San Francisco, Cal., in the case of Warren K. Billings, Thomas J. Mooney, Mrs. Rena Mooney and Israel Weinberg. There were present at the time, Charles M. Fickert, District Attorney, and Captain Duncan Matheson and Lieut. Charles Goff. Fickert did most of the talking. As soon as I told them that I saw a man set the suitcase against the building, Fickert said, "Do you know Tom Mooney?" I said, "No." Fickert said, "Well, he is a man with heavy dark eyebrows, he weighs about one hundred and ninety pounds. He is about five feet eleven inches in height." I had never heard of Tom Mooney before Fickert said this to me. Fickert then said, "He is the son of a bitch we want." Fickert said, "Are you sure you don't know Tom Mooney?" And I said, "Yes I am sure, I never saw the man in my life." Fickert asked me if I thought I could identify the two men I saw, and I told him the same as I told Hextrom, that I didn't pay much attention to it at the same time, and had no idea that it had anything to do with the explosion, and that I could not identify the men. Then Fickert said, "It was Tom Mooney, all right, that did it. When I get through with the son of a bitch there will be nothing left of him." Fickert said to me, "Now, the Lieutenant will take you up and show you Mooney." When we got to the City Prison, Goff walked right up to the door of Mooney's cell. There was only one man in the cell. I had no recollection of ever having seen the man before, and of course could not have identified if Goff had not turned around to me when he stood by the cell door, and said, in a low voice, "This is your man; this is Mooney." Then he said, in a loud tone of voice, "Mooney, here is a man who wants me to take a look at you." When I got downstairs Fickert said to me, "Well, you saw Mooney; that is undoubtedly the man; isn't it?" He said, "That is MOONEY AND BILLINGS the man we want." I didn't make any answer to him, because I already told them on the first day that I did not know Mooney, and could not identify him, and I could not have told them that was Mooney had Lieut. Goff not pointed him out to me in the cell. After we got in the Park Police Station Fickert said to me, "We are going to show you Billings." "Come out here, Billings." The young man came out, and he said, "Walk down the corridor there," and Billings walked down the corridor. Billings walked up the corridor, then came back to the cell, and Goff then said, "Go on back, Billings." I did not know Billings and did not remember ever having seen him before, and could not identify him, had Lieutenant Goff not brought me to the cell and told me who he was. Fickert said, "Now, those are the two fellows you saw, and those are the sons of bitches that I am going to put away." He then said, "Now, Mac, we'll take good care of you; we'll pay your hotel expenses." He said, "I will see the Chief about getting you a little money once in a while." Then Fickert said to Lieutenant Goff, "Take him to the Alpine Hotel and get a room for him, and tell the manager to make out the bill every week and send it to the Detective Bureau." I talked every day to Fickert for weeks about the case. He kept saying to me every time I came, always using hard names against Mooney and Billings: "Those are the men you saw there that day." I never told Fickert that I could have identified these men if they had not been pointed out to me, and I could not do so. Sometime before the trial of Billings, I was in the private office with Fickert, and he said, "Now, there is a reward of $17,500 for the conviction of these people; and when I put them away I will see that you get the biggest slice of the reward." He asked me if I thought I could identify Rena Mooney and Weinberg, I told him no, I didn't want to undertake any such things at all. Before I went before the Grand Jury I was coached by Fickert himself about my testimony. He told me to make the identification of Mooney and Billings positive. I was only before the Grand Jury a very short time, and I made the identification just as Fickert told me to do it. In the Billings trial I testified that I saw the man put the suitcase 57 MOONEY AND BILLINGS there at 1:50 P.M. That was my recollection of the time, and I was and am very sure that was the time I saw the suitcase placed there. About a week before the trial of Thomas J. Mooney, Assistant District Attorney Ed. Cunha said to me, "You had better make the time that you saw the man set the suitcase at 1:30 instead of 1:50." "You see, if the suitcase was set at 1:30 that would give them time to get back up Mission Street, on top of the Eilers Building," which was about a mile away from the place of the explosion. Before the trial of Tom Mooney, Fickert told me that Cunha was going to try the case, and that I should go through with Cunha, and act under his instructions; that perhaps there would have to be some small changes in my testimony, but that they had a man now who was worth over a $100,000 and that he would back up everything I said. After I left the witness stand and was in the District Attorney's Office I heard one of the clerks say Oxman was on the witness stand. Before the Weinberg case came up Cunha read over my testimony to me and said if they ask you if you saw an automobile at Steuart and Market Streets at that time you say, "yes, I think I did," and if they ask you what kind of a machine it was say, "I think it was a Ford." After I left the witness stand in the Weinberg trial Cunha said to me, "Why in hell didn't you say you saw a machine? It would have been all right." JOHN MACDONALD 58 MOONEY AND BILLINGS Judge Griffin's Appeal to the Governor San Francisco, Calif., November 14, 1928 Hon. C. C. Young, Governor of California, Sacramento, California My Dear Governor - When you discussed the Mooney case some weeks ago with a group of citizens at Berkeley, you told us that until then you had believed Mooney and Billings guilty of the Preparedness crime. Some days afterwards, when you sent a message to the State Federation of Labor at Sacramento, you said again that you believed them guilty. I believe that you are as anxious as any other citizen of California to see justice done to these two men, and will give serious attention to the documents in behalf of their pardon. Because I believe that, Governor Young I am asking you - before you make your final decision - to let me know what evidence has led you to believe that Mooney and Billings really committed the crime for which they were tried and convicted and are now in prison. The thing that happened on Preparedness Day twelve years ago was a terrible crime, but I am sure that you will also consider it a terrible crime to keep in prison two human beings who were most unfairly, even criminally, convicted - and that you will wish to give those who believe there has been a miscarriage of justice every opportunity to meet any doubt of their innocence that you may have. Any fair-minded man who reads only the transcripts of the trials of Mooney and Billings who would believe them guilty. If the testimony in these cases was honest and true then their guilt was conclusive. But subsequent revelations damned every witness who testified before me against them as perjurors or mistaken. Estelle Smith has admitted her testimony was false. The Edeaus were completely discredited. Oxman is completely out of the case, as a perjurer who also tried to suborn perjury in another witness. John McDonald has since sworn to an affidavit that he knew nothing about the crime. The transcript evidence, upon which Mooney and Billings were convicted, no longer exists. And because it does not exist, the trial judge (myself), the fore- 59 MOONEY AND BILLINGS man of the Mooney jury, eleven members of the jury, the present District Attorney, Captain Matheson, who had charge of the case, and every other official - except Former District Attorney Fickert - now believe the convicted men innocent and are earnest advocates of their pardon. About these facts, Governor Young, there can be no two opinins, and I believe you must base your belief in the guilt of Mooney and Billings upon other evidence, not know to me. At your earliest convenience will you let me know what that evidence is? I would like the privilege of considering it because I feel a deep sense of responsibility in this case, and I may help in this profoundly important matter. I urgently request you to give me whatever added information you may have in an early reply, I am, Very truly yours, FRANKLIN A. GRIFFIN, Judge, Superior Court, Department No. 5 I have asked these citizens who attended the Berkeley meeting as well as a number of others who are intensely interested in the Mooney case to sign this letter with me. Their names follow: EDWARD J. HANNA, Archbishop of San Francisco EDWARD I. PARSONS, Episcopal Bishop of California JACOB NIETO Rabbi of Temple Sherith Israel FREMONT OLDER, Editor, San Francisco Call WM. V. McNEVIN, Foreman of the Mooney Jury W. N. BURKHARDT, Editor, The News MAX STERN FRANKLIN HICHBORN DR. FRED. W. CLAMPETT MILDRED J. POLLOCK MOONEY AND BILLINGS Herewith are given the financial reports of all moneys collected and spent for the Mooney-Billings case during the past two years. Tom Mooney Molders Defense Committee RECEIPTS AND DISBURSEMENTS FOR TWO YEARS AND THREE MONTHS, SEPTEMBER 1928 TO DECEMBER, 1930. Receipts: Contributions $35,263.13 Interest on bank funds 234.10 $35,497.23 Note: From the total contributions should be deducted a sum estimated at about $1,000 received from the sale of pamphlets. Disbursements: Salaries, publicity agents, secretary, office $12,895.72 Printing 10,013.91 Postage and freight 2,122.20 Traveling 1,562.41 Affadavits and transcripts of testimony 1,111.00 Advertising 1,109.04 Rent 1,442.91 Prisoners' fund 662.61 Telephone 647.97 Rent of halls for meetings 397.13 Legal fees 300.00 Unclassified expenses 2,672.62 $34,937.52 Cash in bank 559.71 Of the total above approximately $4,000 was spent in connection with the hearing of Billings' application for pardon before the Supreme Court. Of the total receipts slightly over $10,000 was received from trade unions throughout the country, the rest from individual contributors. Above taken from the report of A. Shapiro, Certified Public Accountant, under date of January 9, 1930. 61 Mooney And Billings National Mooney-Billings Committee Receipts and Disbursements For Two Years and Four Months, September, 1928, TO February 1, 1931 By agreement with the Mooney Molders Defense Committee, this Committee did not publicly solicit funds in order to avoid confusion. The contributions came through private solicitation. Receipts: Contributions (with small amount from pamphlet sales) $1,949.90 American Fund for Public Service 1,500.00 $3,449.90 Expenditures: Printing pamphlets and stationery $1,102.33 Clerical work 407.08 Clippings 365.64 Secretarial service 351.00 Postage 343.59 Payment for book on case by Henry T. Hunt 250.00 Telegrams 206.15 Reprint of articles 191.36 Reprint of Senator Nye's speech 139.06 Express on books and pamphlets 123.78 Preparing publicity material 30.00 Expenses of meetings 16.80 $3,526.79 Deficit 76.89 62 NATIONAL MOONEY-BILLINGS COMMITTEE Henry T. Hunt Chairman Lemuel F. Parton, Vice-Chairman Roger N. Baldwin Secretary Harry Elmer Barnes Alice Stone Blackwell John Rogers Commons Clarence Darrow Jerome Davis Edward T. Devine John Dewey Robert L. Duffus Morris L. Ernst Sara Bard Field Glenn Frank Gilson Gardner Elisabeth Gilman Norman Hapgood Max S. Hayes Arthur Garfield Hays Morris Hillquit Fannie Hurst Inez Haynes Irwin Philip La Follette Sinclair Lewis Walter W. Liggett Owen R. Lovejoy Robert Morss Lovett James H. Maurer Alexander Meiklejohn H. L. Mencken Wesley C. Mitchell Fremont Older George D. Pratt, Jr. Roger William Riis John A. Ryan Alva W. Taylor John Nevin Sayre B. C. Vladeck Stephen S. Wise W. E. Woodward National Mooney-Billings Committee 100 Fifth Avenue, New York City 1. Put me on your mailing list for further information as to when and how to help in the campaign for the pardon of Mooney and Billings. 2. I will contribute $ payable 3. Others likely to be interested: (Signed) Address City State All contributions received go solely to national publicity on the case (no overhead, rent or salaries) or to the committees in San Francisco representing the prisoners THE WASHINGTON POST SECTION III EDITORIALS Special Articles Books NEWS REVIEW Poll Of Public Opinion SECTION III B WASHINGTON: SUNDAY, JANUARY 30, 1938 Tom Mooney Should Be Pardoned, Say 64% of Voters in National Poll Prisoner's Fate Goes To Supreme Court Case of Labor Organizer Accused of Preparedness Day Bombing Has Rocked California for 21 Years - 53% Now Believe Him'Not Guilty.' By Dr. George Gallup. Director, American Institute of Public Opinion [photograph of George Gallup] NEW YORK, JAN 29. - At noon Monday, when the justices of the United States Supreme Court file into their seats in Washington, one of the appeals lying on their desks will be that of Tom Mooney, the California labor organizer who was convicted 21 years ago of bombing the Preparedness Parade in San Francisco. For 21 years the case of the State of California vs. Tom Mooney has rocked its way from court to court and from governor to governor. Today Mooney's future probably depends on the Supreme Court, for California Governors have repeatedly shown themselves unwilling to pardon the man whose arrest and conviction stirred up one of the deepest judicial controversies of modern times. Is Mooney Guilty? Has he received justice from the courts? These are questions for the high court itself. But the Mooney case has long belonged to the public, too. A Nation-wide sampling referendum reported for the first time today shows that the case is familiar to ordinary Americans in every State in the Union. Some Americans say they believe Mooney innocent. They rank his ease with France's famous Dreyfus case of a generation ago. Others are not sure of his guilt or innocence, but believe the time has come to set him free. Still others believe Mooney "guilty as hell" and say, "Keep him where he is." "Do You Think Mooney Guilty?" Institute Asks What does the typical American think about Tom Mooney? Today's survey by the American Institute of Public Opinion shows why the agitation over Mooney does not cease, for it shows that the typical American has at least a "reasonable doubt" that Mooney was ever guilty. Two facts about the public's attitude stand out: 1. Of the persons having an opinion on the Mooney case, slightly more than half believe he was innocent. 2. Nearly two-thirds of those having an opinion on the case believe that Mooney should now be pardoned and given release. To obtain views of the public on the Mooney case, the Institute sent its staff of more than 600 field reporters this month into a scientifically defined cross-section of American homes. Institute reporters asked three brief questions on Mooney and wrote down what representative United States voters had to say. The first question was this: Are you familiar with the Tom Mooney case? The question was purposely asked to weed out those who were unfamiliar with the case of without an opinion about Tom Mooney. A little more than half the voters voluntarily disqualified themselves. As a Southern tobacco farmer put it: "I've heard about it, but it all seems pretty far away to me. I'd rather not say." TOM MOONEY, The California labor organizer, who was convicted of bombing a Preparedness Parade in San Francisco in 1916, looks to the Supreme Court to decide his future. California governors have repeatedly refused to pardon him and his appeal now lies before the country's highest tribunal. more than half believe he was innocent. 2. Nearly two-thirds of those having an opinion on the case believe that Mooney should now be pardoned and given his release. To obtain the views of the public on the Mooney case, the Institute sent its staff of more than 600 field reporters this month into a scientifically defined cross-section of American homes. Institute reporters asked three brief questions on Mooney and wrote down what representative United States voters had to say. The first question was this: Are you familiar with the Tom Mooney case? The question was purposely asked to week out those who were unfamiliar with the case or without an opinion about Tom Mooney. A little more than half of the voters voluntarily disqualified themselves. As a Southern tobacco farmer put it: "I've heard about it but it all seems pretty far away to me. I'd rather not say." Nevertheless, the Institute found wide familiarity with Mooney's case throughout the United States, especially in the metropolitan East and in the Far West. To such voters, wherever they were found, the Institute put the following questions: Do you think Tom Mooney was guilty? Should he be pardoned and released from prison? The answers give a good picture of the way Mooney has divided U.S. public opinion. Fifty-three per cent say they believe him innocent. Forty-seven per cent hold him guilty. In California itself the Institute found this narrow verdict almost exactly reversed, with 52 per cent holding him guilty and 48 per cent, not guilty. Republican Majority Votes "Guilty." The five Governors who have refused to pardon Tom Mooney all happen to be Republicans, and it is interesting therefore that Republicans and Democrats divide sharply on the question of Mooney's guilt. Throughout the country 64 per cent of the Republicans questioned say they think Mooney is guilty; 58 per cent of the Democrats, on the other hand, say he is innocent. Other groups of persons voting "guilty" in the survey are: Farmers (65 per cent); small town dwellers (53 per cent); business men (60 per cent), and professional people (53 per cent.) Groups voting "not guilty" are: City dwellers (57 per cent); skilled laborers (55 per cent); unskilled laborers (65 per cent), and white-collar wage-earners (57 per cent.) United States labor is far from united in Mooney's defense, the surgery indicates, even though the bulk of contributions for his prolonged fight has come from union members. It is also notable that the youngest generation of voters is much more sympathetic to Mooney than their elders. "Pardon Him," Majority Say What will the Supreme Court do with the Mooney case, dumped into its lap this week by the persevering Mooney? Friends of the prisoner hope that the words of Chief Justice Hughes contained a clew [clue] to the Court's attitude when he intimated in a decision three years ago that the Mooney conviction had been "contrived" by the use of false evidence. If the Court does eventually direct Mooney's release, the average American will probably feel that justice has been done, today's survey indicates. Sixty-four persons out of 100, on the average, say that Mooney should be pardoned and released. Only 36 persons out of 100 say "Keep him there." "He's been punished enough." "Maybe he was guilty," an Iowa woman suggests, "but they've kept him there longer than a lot of gangsters." Even California Votes for Pardon. Highest sentiment for Mooney's release comes from the Middle Atlantic States (77 per cent with their concentrated laboring groups. California voters favor pardon by a much closer vote - 55 per cent. Again the question divides Democrats and Republicans, with 71 per cent of the Democrats saying "pardon him" and 51 per cent of the Republicans saying "keep him there." Whichever way the courts and the law decide the case of Tom Mooney, history can write it down as one of the sharpest issues that ever divided American public opinion. [photograph] Underwood and Underwood Photo. Opinions of Poll Voters On Tom Money Case Public opinion on Tom Mooney has probably changed since the original trial, back in 1917, but it is impossible to say how much. Even then there were two sharp sides to the question. Mooney was charged with setting off a dynamite bomb that killed ten persons during San Francisco's "Preparedness Day" parade in 1916. He was convicted and sentenced to be hanged. But Mooney charged that persons in California were out to "get him," and labor organizations from all parts of the country demanded an investigation by President Wilson. The special investigation committee which Wilson dispatched to California came back with the report that the evidence against Mooney was "discredited." Wilson finally succeeded in having California's Gov. Stephens commute the sentence to life imprisonment. But many undoubtedly considered Mooney guilty. Still others declared that whether Mooney was guilty of the bombing or not, he was a dangerous radical and probably guilty of other things. Contemporary Americans use the same arguments in today's Institute survey. A typical verdict comes from a Southern California fruit grower who says the evidence against Mooney was "all phoney." "He's as innocent as you or me, and they're just keeping him there for political reasons." RESULTS OF MOONEY POLL By Institute of Public Opinion. New York, Jan. 29. - The following results are from a nation-wide survey of public opinion on the Mooney case, as conducted by the American Institute of Public Opinion for leading newspapers from coast to coast: DO YOU THINK TOM MOONEY WAS GUILTY? United States 47% Guilty 53% Not Guilty Sections New England States 51% Guilty 49% Not Guilty Middle Atlantic States 31 Guilty 69 Not Guilty East Central States 54 Guilty 46 Not Guilty West Central States 52 Guilty 48 Not Guilty Southern States 69 Guilty 31 Not Guilty Rocky Mountain States 48 Guilty 52 Not Guilty Pacific Coast States 52 Guilty 48 Not Guilty California 52 Guilty 48 Not Guilty SHOULD HE BE PARDONED AND RELEASED FROM PRISON? United States 64% Yes 36% No New England States 66% Yes 34% No Middle Atlantic States 77 Yes 23 No East Central States 58 Yes 42 No West Central States 57 Yes 43 No Southern States 52 Yes 48 No Rocky Mountain States 65 Yes 35 No Pacific Coast States 55 Yes 45 No California 55 Yes 45 No NOTE: The above is from the Washington Post for Sunday, January 30, 1938. Post this on your Bulletin Board in Union Halls and Offices and Workers' Headquarters. This Poster can be obtained from the TOM MOONEY MOLDERS' DEFENSE COMMITTEE, P.O. Bos 1475, San Francisco, Calif., at 10¢ per copy. STATEMENT IN RE THOMAS MOONEY, ET AL. For more than a year Thomas Mooney, Rena Mooney, Edward D. Nolan, Warren K. Billings and Israel Weisberg have been held in the Courts of San Francisco charged with murder in the first degree. The charge arises in connection with the preparedness parade held in the city of San Francisco on the 22nd day of July, 1916 and in which ten persons were killed by the explosion of a bomb. It is generally believed among organized workers and other large sections of the community that the five defendants are entirely innocent of the crime and that they are victims of a deliberate "frame-up" staged by the Chamber of Commerce of San Francisco as a part of an embittered warfare which it has been waging against organized labor for some years. Long before the preparedness parade the Chamber of Commerce and the United Railway Company of San Francisco were reported to have raised one million dollars to destroy organized labor in California. They were looking for a pretext for a war of extermination, and such pretext was furnished by the murder committed in connection with the preparedness parade. Who threw the fatal bomb and why, will perhaps forever remain a mystery, but it seems quite clear that the five persons charged with the crime were singled out for no reason other than the fact that they were known to be among the most active and uncompromising labor leaders on the Pacific coast. Thomas Mooney was tried, convicted and sentenced to be hanged on the 17th day of May, 1917; Warren K. Billings was likewise found guilty upon trial and sentenced to life imprisonment. The conviction of both men -2- was secured largely by the testimony of one Oxman, who testified as an eye witness to the crime. His testimony seemed to convince the Jury, although the defendants proof of an alibi was practically conclusive. A short time after the trial it was definitely established that Oxman was an unscrupulous perjured; that he had not even been present at the bomb explosion in San Francisco at the date of the preparedness parade and that he had endeavored to secure other persons and particularly a man by the name of Rigall to perjure themselves in his corroboration. The revelation created a stir all over the country. The Judge who tried the case directed the Attorney General to consent to a new trial for Mooney and Billings, and Oxman was indicted for perjury. He has not yet been tried on the charge. In the meantime Mrs. Rena Mooney was put on trial, likewise on the charge of murder in the first degree, although the prosecution was permitted to submit a mass of highly irrelevant and prejudicial testimony, she was acquitted by the Jury. The District Attorney thereupon had her immediately reindicted on the same charge basing the indictment on the death of one of the other ten persons killed in the preparedness parade. In spite of the Constitutional provision that no person is to be put twice in jeopardy for the same crime, the District Attorney has openly boasted that he would try her on separate indictments for the death of every one of the ten persons killed until he would secure a jury ready to hang her. In the last week of Mrs. Mooney's trial an indictment was suddenly found against a noted Anarchist, Alexander Berkman, charging him with the same crime. The indictment of Berkman was clearly an after thought. It was secured on the flimsiest of evidence or practically on no evidence. The object of the new move was evidently a two-fold one: First, to prejudice the public against the defendants by linking them with a well known Anarchist, and second, to wreck revenge on Alexander Berkman, who had been very active in exposing the plot against Mooney and the others, and in raising funds for their defense. -3- With the peculiar situation in San Francisco, created by the reckless activities of the Chamber of Commerce and the local press which has been systematically inflaming the public mind, Berkman would probably be convicted of any crime charged against him without any evidence, if put on trial at this time, and a conviction of Berkman would largely serve to offset the effect of the Oxman revelation and would prejudice the cases of the Mooneys and the the three defendants. Berkman is at this time not within the jurisdiction of the California Courts. He is in New York under sentence by the Federal Courts for an alleged offense against the Conscription Act. He is expected to be shortly released on bail pending an appeal from his conviction to the United States Supreme Court. Ordinarily a person under such circumstances would not be extradited to another State as the rule is definitely established that if a Court once acquires custody of a person charged with a criminal offense it will retain such custody until his case has been fully disposed of and the prison sentence, if any, fully served. But there seems to be apprehension that in the case of Alexander Berkman this rule may be disregarded and that he may be extradited to the Courts of California with the results above alluded to. Organized labor everywhere seems to be fully aroused to the class character of the San Francisco cases and to the fact that the move for the extradition of Berkman at this time is a deliberate blow aimed at their cause. Numerous Labor Unions have adopted resolutions of protest against the proceeding and have pledged themselves to support Berkman morally and materially in his fight against extradition. Mooney TOM MOONEY DEFENSE CONFERENCE OF GREATER BOSTON 1241 LITTLE BUILDING BOSTON, MASSACHUSETTS OPEN AIR MASS MEETING, BOSTON COMMON SUNDAY, OCTOBER 11, 1931 AT 2 P.M. Dear Friend: This letter is sent to you and others who are known as upholders of truth and justice and helpers of the wronged. It pleads for your co-operation in quickening public interest in the case of Tom Mooney. Fifteen years Tom Mooney has been imprisoned, convicted on perjured testimony, "the victim," says Senator Wheeler, of Montana, speaking in the Senate, "of one of the coolest conspiracies ever perpetrated in this country." Senator Hiram Johnson, of California, declares his belief that "Mooney is absolutely innocent." The judge who tried Mooney and all the jurors still living who found him guilty, now believe him innocent and ask for his release. Fifteen years in jail, that would have been the best years of Mooney's life! Our efforts to set him free must not falter. What can we do? 1. Write a personal letter to the Governor of California, Hon. James Rolph, demanding that he right the wrong and remove the shame now on his State. 2. Attend the meeting at the Parkman bandstand, on Boston Common, next Sunday, Oct. 11, at 2 P.M., when well informed and considered addresses will be made by Alfred Baker Lewis, Robert Fechner, Leonard Craig and William A. Needham, a noted lawyer of Providence, R.I. Dan Doherty, Chairman. Speakers at a Mooney meeting in San Francisco will be heard by radio from the bandstand at 4 P.M. through a nationwide broadcast over N.B.C. Tell others about this, that they may listen in their homes. 3. Help to advertise a meeting at Twentieth Century Club, 3 Joy St., Boston on Friday, Oct. 16, at 7:30 P.M., to be addressed by United States Senator David I. Walsh and by Dean A. J. Must, of Brookwood Labor College. John S. Colman, Chairman. 4. Share the expense of these meetings for Tom Mooney's release. As you believe in justice, payable to Conrad Hobbs, Treasurer, Tom Mooney Defense Conference, 1241 Little Bldg., Boston, Mass. Sincerely yours, LEONARD CRAIG, Sec'y Por Tem. Sponsors: Joseph F. Barry Miss Alice Stone Blackwell X Dan S. Callahan Mrs. E. A. Colman John S. Codman Dr. George W. Coleman James Crowley Rev. Albert C. Dieffenbach Dan Doherty Robert Fechner Albino Felicani Michael J. Flaherty Dr. Sheldon Glueck Creighton J. Hill Conrad Hobbs Catherine S. Huntington Mrs. Cerice C. Jack Gardner Jackson John J. Kearney Alfred Baker Lewis Reuben L. Lurie John F. Moors James T. Moriarty J. Arthur Moriarty David K. Niles Rev. George L. Paine Arthur C. Parker Abraham Pearlstein Rev. Henry W. Pinkham George E. Roewer Rev. E. Tallmadge Root Mrs. Helen Rotch Mrs. Ida S. Ripley Prof. A. M. Schlesinger Mrs. Mary Thompson Mrs. Gertrude Winslow 74 Tom Mooney Corr GET TOM MOONEY OUT! The Most Shocking Judicial Crime of the Century Keeps An Innocent Man In Jail. Outraged Public Opinion At Last Demands Tom Mooney's Release. BEFORE THE FRAME-UP AFTER FIFTEEN YEARS A Mass Meeting ON BOSTON COMMON (PARKMAN BANDSTAND) SUNDAY AFTERNOON, OCTOBER 11, 2 P.M. Will be addressed by the following speakers: ALFRED BAKER LEWIS Secretary, Socialist Party of Massachusetts ROBERT FECHNER Vice-President International Assoc. of Machinists WILLIAM A. NEEDHAM Prominent Providence Attorney LEONARD CRAIG of San Francisco, representing the Tom Mooney Defense Committee DAN DOHERTY President of Central Council Irish Societies, will act as chairman "The Mooney case is one of the dirtiest jobs ever put over and I resent the fact that my court was used for such a contemptible piece of work." --Hon. Franklin A. Griffin, Mooney's Trial Judge 74 AUSPICES TOM MOONEY DEFENSE CONFERENCE OF BOSTON County Jail Branch No. 1, San Francisco, California November 23, 1935. To Friends and Contributors to My Fight for Freedom: Greetings: We have made a great showing in the present hearing on my application for a writ of habeas corpus, in fact so much so to the evident embarrassment of the powers that be in the State of California in the eyes of the civilized world. There is a persistent rumor afloat underground and word comes from a man who claims to have reliable information that the Mooney sentence is liable to be commuted to time served at any moment to save the California State Supreme Court the very difficult embarrassment of passing upon the issues that are so clearly demonstrated in the present hearing, to wit; that perjury was committed against Thomas J. Mooney; that public officials in the person of the Police Department and the District Attorney's office did have knowledge of that perjury; that the District Attorney's office and the Police Department did wilfully conceal and suppress vital evidence that would have been of inestimable value in the determining of justice in this case. There can be just one purpose in such a move at this time, and that purpose would be to seal forever the infamous frameup against the lives of two innocent loyal and devoted militant trade unionists. One San Francisco newspaper for years has chronically resisted any efforts for the freedom of Mooney and Billings. They have editorialized time and again during the past nineteen years to this effect,- that if Mooney did not do the crime, he knows who did, and therefore should be kept in prison. The day the United States Supreme Court issued an order compelling the State of California to show cause why the writ of habeas corpus should not issue in the United States Supreme Court for Thomas J. Mooney, that paper for the first time came out openly editorially and advocated the commutation of the sentence of Tom Mooney to time served. A dastardly thing! An action that would forever prevent Tom Mooney from securing vindication of the great wrong that was done him in this foul conspiracy. It would brand him forever as a convicted murderer who had served his sentence. With credits allowed for the time that I have actually been incarcerated, the period of nineteen years and four months with credits allowed for such a period of time actually served in the penitentiary is thirty-two years and two months actual prison sentence. The commutation would brand me a felon for the rest of my life, forever I would be referred to as an ex-convict. This part of the frameup is more dastardly that the original foul conspiracy itself. My resentment against such a solution of this case at this time is far greater than it was on Thanksgiving night in 1918 when my death sentence was commuted to life imprisonment, and in reply thereto I gave the following statement to the Warden of the San Quentin Prison for the press: "Thanksgiving Day. November 28, 1918. "Governor Stephens: "It is my life you are dealing with. I demand that you revoke you commutation of my death sentence to a living death! I prefer a glorious death at the hands of my traducers to that of a living grave! I am innocent, and I demand a new and fair trial, or my unconditional liberty through pardon. "If I were guilty of the crime for which I have been unjustly convicted, hanging would be too good for me. Then why -2- "commute my sentence to life. I say to you tonight as I stated the night the Chamber of Commerce jury returned a death verdict against me, that my hope, as well as the hope of Billings, Nolan, Weinberg, and Mrs. Mooney was in the solidarity of organized labor. I shall never depart from the statement, it has been my privilege to choose between the honorable and the dishonorable course, if I cared to spare my life, I choose the only course, - the honorable course. I prefer death in honor, in defense of my principles rather than living as a cowardly traitor to them. "That same course has been offered to all of the defendants in this case and even the relatives of the defendants, and they have all spurned that offer. I would rather hang a thousand times, than as much as even entertain a single dishonorable thought of accepting a tainted liberty. I refuse to accept the commutation. I demand that you revoke it immediately. I now appeal to organized labor again as I did that night that the Chamber of Commerce verdict sealed my doom, to act immediately in defense of their symbolic interest as represented in the issues involved in my own case. "(Signed) Tom Mooney, 31921." I call upon the editors of every newspaper in the country that claims the right to be a free press to publish this statement and to join with me in an appeal to permit my present hearing before the California State Supreme Court to be fully and absolutely completed, even to the extent of being finally passed upon to the United States Supreme Court, if that be necessary, before any action on the part of the Governor of California would further defile justice in this case. Those people who framed me nineteens years ago have made many foolish moves, but this would be one further similar foolish move, which I hope they will not entertain. I call upon my friends everywhere to join me in vociferously protesting against any such attempt to further smear the black infamy that is the Mooney case. Telegrams, letters and resolutions of protest should pour in to the Governor of California demanding that this case be permitted to take its logical course through the courts of this country before he attempts to act in the matter. That means be devised by the labor movement to raise the necessary additional funds to enable me to take full advantage of the tremendous opportunities afforded me in this present hearing for regaining my freedom. To my Friends and Supporters everywhere, and to all lovers of justice and fair play, I send you warm greetings and well wishes with my sincere appreciation for the splendid manner in which you have contributed and aided me in my long desperate struggle for freedom, I am, Very sincerely, [*Tom Mooney 31921*] Tom Mooney - 31921. November 23, 1935. FOR IMMEDIATE RELEASE TOM MOONEY MOLDERS DEFENSE COMMITTEE PO BOX 1475 SAN FRANCISCO CALIFORNIA * * * * * * * * When the Mooney hearings reconvened after nearly three weeks' adjournment, it seemed as if most of the petitioner's testimony were in and the state would soon begin to present its witnesses. But the past week has brought more startling testimony to light concerning the frame-up than the nearly two months previous. Two prominent figures appeared as witnesses early in the week - Judge Franklin A. Griffin and ex-Senator Samuel Shortridge. But the real excitement started when Edwin V. McKenzie was recalled to the stand. For two and a half days McKenzie testified, giving as good as he got in a grilling cross-examination, and at one point accusing the respondent itself of perjury in claiming that Oxman was not a perjurer. Repeated efforts were made by Assistant Attorney General Cleary to have McKenzie's evidence, as well as that of the two following witnesses stricken from the records. His attitude was that it did not matter what proof was brought of any other crimes against justice committed by Fickert or Cunha; if it did not involve connivance with perjury or suppression of evidence it was outside the issues of the petition. Mr. Finerty's reply was that a man capable of doing one of these actions might legitimately be expected of Zindars and Denton, Referee Shaw sustained Cleary's objection, and the testimony was offered as proof, subject to being stricken out if the Supreme Court later decides against it. Briefly, this testimony was as follows: McKenzie told of four meetings with Cunha, after the securing of Oxman's damning letters to Rigall. Cunha was scared, said the letters were "rotten," that he had suspected Oxman of perjury though he claimed not to have known it surely, said he knew that this disclosure would "put him in the ash can for life", though what chiefly worried him was the "jury situation in the Mooney trial." Then he said he would get Fickert to agree to try to get the attorney general to confess an error of fact, so that they could get Mooney a new trial, upon acquittal in which all other indictments (including that against Billings) would be voided; all they wanted was first to get Oxman "sewed up" to a story exonerating the district attorney and his staff and the police, when they would gladly "throw Oxman to the dogs." At the last meeting, Fickert himself was present; all arrangements were made for his announcement of this new move to the press, only he wanted a delay until it was too late for the morning papers to have editorials against his action. He left he conference, ostensibly to make this announcement, and instead went to the Grand Jury, arranged for Oxman's whitewashing, and gave out an exactly contrary statement to the press. What Cunha had meant by "the jury situation in the Mooney trial" was shown by McKenzie in telling of accusations he had made to Cunha, which the latter did not deny. These accusations were better exemplified in the testimony of the next witness, J. B. Zindars, an attorney, and best of all in the next one, Jesse G. Denton, McNevin's brother-in-law. Zindars testified that in 1917 McNevin told him that he had consulted with Cunha throughout the course of the trial and kept him in touch with the jury's attitude. McNevin later denied this and threatened Zindars, but Zindars stuck to his statement. But Denton's story was even more startling, and has never been told before. His sister was McNevin's wife, and they were very friendly. Just before the Mooney trial, McNevin told him that he was to be on the jury. Fickert and Cunha had arranged it; his name was on a ballot fastened by an elastic band to the top of the ballot box, so he could not be missed, and he would pretend to be so favorable to the defense that they would not challenge him. The object was to convict Mooney; after that victory, Fickert would be elected Governor, Cunha, District Attorney, and McNevin would be made President of the San Francisco Police Commission; besides, he was to get $5000. and $250 a month while Mooney was in jail. Denton asked how he knew Mooney was guilty, and he said Swanson had -2- November 23, 1935. told Fickert if he got Mooney he would get the man who threw the bomb; by a process of deduction he was "the only person in the community who could have done it." Nevertheless Denton said he would inform the judge and the defense attorneys of McNevin's statements; whereupon McNevin said if he did the authorities would bring him before the lunacy commission and have him railroaded to the Napa Insane Asylum. Moreover, Denton was then under financial obligations to McNevin, and besides his mother and sister begged him to keep out of it, so he kept silent. During the trial, he was at dinner in McNevin's house when Cunha called, and McNevin talked to him for fifteen minutes in a taxicab outside. He said, "Ed got a great kick out of the way the big honest cattleman (Oxman) went over with the jury." Subsequent meetings, Mrs. McNevin told Denton, were held at the home of Frank Murphy, McNevin's personal attorney and Cunha's friend. Throughout the years, Denton kept trying to get McNevin to do something to undo the wrong he had done Mooney. The McNevins were divorced in 1926, but Denton remained friendly with his brother-in-law. In 1930, in Fresno, where Denton now lives, he met McNevin on the street, and he told Denton he had at last signed a plea for Mooney's pardon. It was this effort of McNevin belatedly to help Mooney that kept defense attorneys and Fremont Older from pressing the stories of McNevin's dealings with Cunha which McKenzie and Zindars told them and which Mrs. McNevin herself mentioned in her divorce complaint. Denton will be cross-examined by Cleary next week. His story was first given to Mr. Davis last September. McNevin himself is no longer living. From the letters from friends and sympathizers which are coming into the Mooney Defense League's offices, in response to the appeal for funds to carry on this crucial effort to procure Tom Mooney's vindication and freedom, a few stand out as evidence that those who love justice and will sacrifice for it are not all dead. Here is a letter from an invalid, 73 years old, who sends $2.00 "long and slowly" saved for new shoes. Two sisters, nearly 80, send $6.00 which they had been given to buy winter clothes. And a woman who had invested in Pacific Gas and Electric Co. stock before she knew the role of the P.G. and E. in the frame-up, sends her dividend check, and states that she will continue to do so as long a s Mooney is in prison, hoping that the company will notice the endorsement when the check is returned to them. It is because of the staunch loyalty and generosity of such people as these that Tom Mooney was not hanged in 1917 and that he still has a chance to obtain justice. Tom Mooney Transcribed and reviewed by contributors participating in the By The People project at crowd.loc.gov.