Haymarket Affair Digital Collection

Illinois vs. August Spies et al. trial transcript no. 1.
Court discussion regarding the defense's objection to the admission of certain pieces of evidence, 1886 July 16.

Volume I, 75-95, 21 p.
Court discussion.

Objection to the admission of certain evidence by Mr. Foster on behalf of the defense.

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MR. FOSTER: This is the first objection that I have to insist on, and I would like the court to hear my ideas. I suppose that the strongest testimony that could be claimed from the prosecution would be that he received a bomb from some of these defendants, or manufactured by them. Suppose that is true. Has that got anything to do with this particular

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case? Suppose that a question was asked whether or not I was furnished with a revolver by any particular person, provided some of my friends had used a different revolver and committed a crime of murder by its use. I undertake to say that it cannot in any aspect of the case, as I view it, possibly be material in considering whether or not the defendants are liable for this particular bomb, unless the gentlemen will say that they propose to follow it up by showing and tracing this particular bomb into the hands of the man who threw it at the Haymarket meeting. I say it would be outrageous. This is not a frivolous case, as your Honor has had occasion to remark once already during the trial. It is a serious case. It is an important case. Now, then, how can it affect this case except in the nature of a prejudice, to show that this man may have himself received a bomb from some man and that it was never in fact used anywhere or under any circumstances? Will your Honor hold that that kind of testimony is material here for any purpose, or that it ought to be admitted for the purpose of prejudicing the jury against the defendants either singly or as a whole? Unless the gentlemen will say that they propose to show that some of the defendants gave to this man a bomb and that they propose to trace that missile of death into the hands of the man who threw it at the Haymarket? Then I will say that it is competent, and they ought to be able to do it. There are bombs I presume, all

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over this country. There is dynamite; there is giant powder. There are revolvers. There are bowie knives. There are pistols. There is every missile of death that is resorted to or used either by the police or any of the persons composing the meeting before it was attempted to be dispelled by the police. In fact, I am not sure but what I have, and perhaps the counsel on both sides of this case have an article which might produce death, in our own possession, although perhaps not on our individual persons at this time. Is that kind of evidence to take away the lives of eight men without a pretense or claim from any source that they attemp to trace that missile of death into the hands of the agent of this destruction? It is outrageous if that kind of testimony is to be introduced.

Where is the connection. I don't care if Louis Lingg has been a manufacturer of bombs from the cradle down to the present time. Unless he was a part of the conspiracy to throw the bomb at this meeting---either threw it or participated in it---he is innocent of the offense for which these defendants are now indicted. Can there be any question about that? Suppose that he had been a murderer from his cradle until the evening of the fourth day of May; is that a circumstance to show that he is guilty of the offense under which he is now indicted? Every lawyer and every court everywhere, in every civilized country, knows that no such testimony as

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that is competent, and none of that character can ever be introduced. A man may be engaged in the crime of horse stealing from the time that he was a boy; he may have committed five hundred offenses, and yet if he stands before your Honor accused of the crime of larceny, in the theft of a horse, because he has stolen one yesterday, or the day before, or the week before or every week for the last ten years, it can never be shown for the purpose of establishing the crime of his stealing one today.

Now, your Honor knows that and the gentlemen know that. What, then, is the object of showing that he had a missile of death in his possession, conceding---which I do not admit exists---that Louis Lingg manufactured it? Conceding that he carried it to him and gave it to him? If that is all there is to it, unless the gentlemen can follow it up, as I said, in what respect can it possibly be material? It is true in the case that I put of a man who had been convicted over and over again of horse stealing, that it would be almost a fruitless effort for any man to attempt his defense successfully, provided the court would admit all of the acts which constituted a record of crime. There, under those circumstances, is where men are convicted by prejudice and upon prejudice exclusively and entirely, contrary to every provision of our law and the practice of our courts of justice. If the gentlemen insist upon that here, if

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that is the idea and the object---simply to create a prejudice---then I say it cannot be material under any circumstances, or under any form in which they may suggest it.

Suppose now, as this witness has stated, there was a conspiracy entered into on the night of the third (Mon), that bombs should be manufactured, that bombs should go into the hands of the members of this organization, the name of which I do not remember and cannot speak (Lehr und Wehr Verein)---suppose in pursuance of that the bombs were placed in the hands of the president of that meeting, the man who now is attempting to clear his own skirts by casting accusations upon his associates---suppose that all the members of that organization met at the different parks and different squares ready to be summoned provided they were called, and then suppose again that they never were called, that there never was a conflict under which they were to act and they never acted; what is their offense? Conspiracy, perhaps, but not murder. Conspiracy, perhaps, but no offense which is covered by this indictment, and that is what we have got to guard against from the beginning to the end; and knowing the condition of the public sentiment as your Honor knows it from the examination of the jurors here, I believe that it is the duty of the Court to put your Honor's foot upon any attempt upon the part of the prosecution to extort a verdict

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of guilty in this case under the presumption that they may be possibly guilty of some minor or inferior offense for which they are not indicted, or at least for which they are not now on trial. I say this witness from his own mouth has precluded the possibility of these defendants---the men that were present at the Haymarket meeting---having conspired to do the thing which is charged in this indictment. What is it they agreed to do? They agreed that they would meet at parks, they agreed that they would arm themselves with bombs, and they agreed that when notified they would blow up the police stations, and then they would attack all forces that came against them. Did they meet at the squares? If so, did they blow up the stations? Were there runners notifying them that their attention was demanded at any particular place? Was the agreement entered into in that meeting which was the foundation of that conspiracy, that they were to meet the next night at the Haymarket meeting and there they were to throw a bomb? The witness himself, the chairman of the meeting and perhaps the man who organized the scheme, the greatest conspirator of the lot---because it is always the greatest conspirator that turns State's evdence in any case---he from his own mouth has declared that not a word, and not a syllable was uttered at that meeting with reference to the throwing of the bomb in question or

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any bomb at the Haymarket meeting, and not a word was said, pro or con, with reference to an attack upon the police at the meeting at the Haymarket Square. So then the gentlemen, I say, have assumed to prove from this witness, and others perhaps that they will call after he is through---to establish the guilt of these defendants upon testimony showing that they contemplated the commission of something else under entirely different circumstances. We object to it, your Honor. We think we have a right to object to it. We demand that if the lives of these eight men are taken away it shall be upon legitimate evidence and testimony given in court entitles to consideration and belief, and which is properly received in this court, as in a court of justice it must be. And I repeat, there is not a circumstance, there is not an explanation---nowhere under any circumstance can it be made competent or material, unless the gentlemen will say that they will follow that bomb up to its explosion in the midst of the ranks of the police force on the evening of the fourth of May.

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MR. INGHAM: I don't propose to make any argument as to the weight of the testimony. The gentleman has stated all that he has said for the purpose of influencing the jury.

It is true that organized government itself is at stake in this trial, and when counsel for the defense says that the State bases its case entirely, and has its foundation upon this meeting, he shows that he does not understand our theory of this case.

Our theory of this case is this: That for one, two or three years, right here in this City of Chicago, right under the wing and cover almost of this very court, a gigantic conspiracy has been in operation, a conspiracy of which these eight men now on trial were the leaders, and in which the conspiracy of Monday night, as to which we have given the evidence today, is merely one step in the proceeding.

We expect to show, by way of establishing that conspiracy, first, that these men out of their own mouths for months and months, until the months lengethened into years, have by day and night preached this doctrine of open revolt and the use of arms. We expect to show that some of them have said definitely, in so many words, as distinctly and powerfully as human language can put it, that these revolutionists--- for that is the term which they apply to themselves---should begin a revolution about the first day of May in this City, that they were armed and prepared for it. Now, we expect

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to show, in addition to that, that these men not only at the time of this bomb was thrown, but for weeks and months previous to that time were preparing for that revolution. We expect to show and bring into the presence of this jury---bring it here filled with dynamite, it may be, in order that they may see the strength of this case and the terror of it---dynamite bombs by the dozens and until the dozens run up into the barrels full.

Now it seems to me, your Honor, that the arguments made by the counsel for the defense has no bearing whatever on this question. A man may have a revolver for honest purposes; he may carry it to protect himself against thefts, or he may use it unlawfully; but in this case we expect to show that no one of the bombs of any nature which we shall trace to these defendants can have any possible legitimate purpose. We shall show by testimony of men who know, that there is not a possible thing for which the dynamite manufactured by these men can be used. The only purpose for which they ever have been or will be used is for cowardly, horrible and atrocious murder.

It seems to me, Your Honor, that if we can show that these men have not only been preaching these doctrines, but that they have been preparing themselves by arming; if we can show that some of their dupes---some of the men who were their accomplices and connected with them---threw this bomb as a result of this general conspiracy, which we shall show by circumstantial evidence, it seems to be that one of the

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most powerful links in the chain of circumstantial evidence is the fact that these men have at all times not only had in their own possession but have been distributing to others of their accomplices these dynamite bombs. We cannot show that these bombs were in the possession of this man about the time the bomb was thrown which resulted in the death of the officers; it was some weeks or months before that; but we do offer to show that this man had in his possession a number of bombs filled with dynamite, which he obtained from the defendant Fischer, and we do it for the purpose of showing that Fischer along about last Thanksgiving day was himself arming men with dynamite bombs for the purpose of destroying the capitalists and for the purpose of overthrowing society and this community and enabling himself and his own comrades to feast upon the community.

MR. FOSTER: Allow me to ask a question. Suppose that all you say is true; yet without the authority, and without the knowledge of any of the defendants, and without their consent, and without their approval, some man throws a bomb into the ranks of the police and Mr. Degan is killed; are they guilty of murder? Do you say that they are guilty of murder?

MR. INGHAM: Under the law of the State of Illinois

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they are guilty of murder. The law of the State of Illinois, settled as long ago as the Brennan case, reaffirmed in the Lamb case, is to the effect that where men conspire to do an illegal act which in its tendency naturally tends to injure the persons or the lives of men, and death results from that conspiracy, all are guilty of murder; and the only reason that the Supreme Court reversed the Lamb case was simply because the conspiracy in that case was to dispose of stolen property--an offense which the Supreme Court said was not in its nature calculated to cause violence.

We can show in this case beyond all question that every one of these men was a party to this general conspiracy to interfere with the public authorities, to annihilate the police force, to annihilate the banks of the town and all of the public offices, to destroy the fire department; that as a result of that conspiracy this bomb was thrown; and now certainly these men cannot stand here after the crime has been done, after the law has been outraged, and smile and sneer in the face of the law, and look upon the law, as their great leader, Herr Most, has said, as a farce.

The law of the State of Illinois is strong enough to hang every one of these men, because the law of the State of Illinois says and always has said, that if men engage in a conspiracy to do an illegal act, and that that illegal act results in violence---results in death---that every party to

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that conspiracy is himself guilty of murder.

Now, we expect to show this general conspiracy to which all of these parties are a part. We expect in addition to that to show this particular conspiracy---to call this meeting on that night for the purpose of raising a disturbance betweem the police and the socialists themselves, and for the purpose of annihilating the police force at that spot. We can prove this out of the mouths of many witnesses. We are not bound to prove it by one fact; we can prove it by many facts and circumstances, all weaving themselves into one great cable.

It seems to me, your Honor, that the only question is as to the materiality of this testimony, and I submit to your Honor that there can be no question that it is material to show in this case that any one of these defendants at any time since they have been preaching this doctrine has been arming himself and preparing for just such an affray as this, and not only arming and preparing himself but distributing this missile of death to others.

MR. FOSTER: I have been at a loss ever since I have been engaged in this case to know why editorials in the Arbeiter Zeitung, why speeches made on the lake front have anything to do with the case, which in my judgment-- -although it

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seems from the argument of my brother Ingham I must be mistaken---are involved in this controversy. Because a principle was contended for by Mr. Spies, because an argumetn was uttered br Mr. Parsons or by Mr. Fielden months and months ago, I failed to discover, and I yet fail to discover wherein legitimately that can be used under any pretext whatever upon the trail of the issues here involved.

I object in the consideration of this case to going into a general conspiracy to do that which has never been performed. If we do that and a conviction is asked and obtained upon the ground of a general conspiracy, then the conviction rests upon general principles and not upon legitimate evidence.

Now, let us look at it, if your Honor please, as it stands before us today. What is the charge? We are not to look to the arguments of counsel. We are not to take the words of skilled and able attorneys. We are to look to the charge, to which these defendants have plead not guilty, and the charge is simple---are they guilty of the murder of Matthias J. Degan on the 4th of May last? The issues is not, as it has been reiterated and reiterated again for the last four weeks in this court room, one as to the practicability or the feasibility or the justness of the principles of socialism, communism or anarchism: it is not

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as to whether the principles declared in the editorials by Mr. Spies are correct principles or whether they are false and pernicious principles; the issue is not as to whether or not Lingg has a right to manufacture bombs, or as to whether any of the defendants have a right to declare favorably or unfavorably the difficulties that have arisen between the laboring classes and their employers. These are not the issues. The law of the Supreme Court of the State of Illinois amounts to this, and my brother Ingham must confess it---it amounts to this and only this, that where two or more persons embark in an enterprise which is criminal in its nature and character, for the purpose of doing an unlawful act, or doing a lawful act by unlawful means, or doing anything which is not justified, and when one steps too far and commits a crime, by reason of their all being engaged in the general scheme they are all guilty. I will admit that. If my associates here and myself should agree that we would take Mr. Ingham's pocketbook away from him tonight on the road home, and if it was understood that Salomon should take him by the neck and Zeisler by one arm and Mr. Black by the other, and that we should take his wallet---all engaged in an unlawful attempt to deprive him of his property---and if in taking him by his neck my brother Salomon goes beyond what he was authorized to do and chokes him to death, we are all guilty of murder, and that is all that the Supreme Court of the

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State of Illinois have declared; it is all that the gentlemen can claim from the propositions of law existing in this State or in any other State under the sun in any civilized country. But to say that because we formed a conspiracy to rob brother Ingham, and because somebody else about that time of night assaults brother Ingham with a deadly weapon and destroys his life---because we are engaged in a general conspiracy therefore we are to be hanged by the neck for the murder of Mr. Ingham! Why, it is foolish, absurd, preposterous and ridiculous! In the nature of things, it cannot be so. Your Honor has been sitting too long and your reputation is too good, not only as a just but as an intelligent judge, to not know that all of these matters which may constitute a conspiracy which was never consummated has nothing under the sun to do with the murder of Matthias J. Degan. If these men formed a conspiracy, indict them for a conspiracy, try them for a conspiracy and convict them for a conspiracy; but as long as we have courts of justice do not convict them of a murder and destroy their lives when they are liable and amenable under the law simply to a crime which will incarcerate them for a few years in the penitentiary perhaps. There is no evidence and there can be no evidence that any conspiracy was consummated. Because they were favorable to the doctrine of socialism, and because a bomb was thrown,

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therefore you should not hang them by the necks and destroy their lives and break down every principle which is sacred to American institutions. I do most earnestly protest against that, if your Honor please---protest against speeches on the lake front, newspaper articles, arguments in halls which had no relation to the meeting at the Haymarket Square and which have no relation to the throwing of the bomb and which have no relation to the destruction of the life which was destroyed. We shall always be heard to rprotest against that and object upon the ground that upon no recognized principle of evidence can it ever be received in this case.

THE COURT: If the fact be that a larger number of men concurred with each other in preparing to use force for the destruction of human life upon occasions which were not yet foreseen, but upon some principles which they substantially agreed upon, as, for example, taking the words of this witness, if a large number of men agreed together to kill the police if they were found in conflict with the strikers---I believe in the phrase---leaving it to the agents of violence to determine whether the time and occasion had come for the use of violence, then if the time and occasion do come when the violence is used, are not all parties who agreed beforehand in preparing the means of death, and agreed in the use of them upon the time and occasion, equally liable? Suppose the State are prepared to prove that there was a general

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combination and agreement that weapons of death should be prepared to use against the police if they came in conflict with the workingmen's or strikers' meetings---that is, if the police undertook to enforce the laws of the State and prevent breaches of the peace and destruction of property, that then they would assault and kill the police, but the time and occasion at which the assault was to be were not foreseen, but were to be determined by the parties who were to use the force when, in their judgment, the time and occasion had come, and then when the police are found attempting to preserve the peace some one or more of the persons who have been parties to this combination and agreement do kill, are not all who entered into the combination and agreement equally liable?

MR. FOSTER: I can imagine a case where they would be, if that was the arrangment---that whenever we or any of us, according to our judgment or opinion, believe that the time has come for an attack, it shall be made, and in pursuance of that agreement it is made by one of the conspirators, then I will admit that your Honor's reasoning will be good; but it has no more application to the facts of this case as they are developed now than day has application to night.

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THE COURT: We havn't begun on the evidence as to what the facts are.

MR. FOSTER: There is a rule with reference to the admission of evidence where the charge is conspiracy---the court will refuse to allow testimony of a general character as against all of the defendants until, in the opinion of the court, a conspiracy has been established; that is always within the discretion of the court, and it is sometimes a very doubtful question for the court to decide. That has not been shown here. There is no evidence of such a conspiracy as your Honor suggests that has been shown.

THE COURT: Unless the State is permitted to prove step by step, piece by piece, what did occur, it never can be proved although it may have existed. The only way in which it can be made to appear, if it did exist, is by introducing, piece by piece, what did occur.

MR FOSTER: Your Honor, I suppose, recognizes the rule that although there might have been a conspiracy formed to kill the police, before the defendants can be held as co-conspirators it must be established that the attack was by some one connected with the conspiracy.

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THE COURT: If there was a general combination and agreement among a great number of individuals to kill policemen if they came in conflict with the parties who they were the friends of---meetings of workingmen and strikers---if there was a combination and agreement to kill the police if they were attempting to preserve the peace---if there was such a combination and agreement among a great number of men, the object of which was something beyond mere local disturbance, it don't make any difference whether their object was to create a new form of civil society or not---if there was this combination and agreement among a great number of people, and preperation for it, to assault and kill the police upon some occasion which might occur in the future, and whether the proper occasion had occurred was left to the parties who used the violence at that time, and then that violence was used and resulted in the death of the police, everybody who is a party to that combination and agreement is guilty of the results.

MR. FOSTER: Provided the force was used by some one connected with the conspiracy.

THE COURT: If the time and occasion were left to the different conspirators, or to the different parties to the

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agreement, and then when the time did come, in the judgment of some one of those, and he did use the force and kill, then they are all liable. Whether that is the case here or not is for this jury to determine after they shall have heard all of the evidence that there is bearing on that question. I havn't a particle of doubt in my own mind that it is entirely competent for the State to show, if they can, that these several defendants have advocated the use of deathly missiles against the police upon occasions which they anticipated might arise in the future---that it is competent for them to show that they intended that that use should be made, not by an agreement beforehand as to the specific occasion when they should be used, but that they should be used when in the judgment of the person using them the time had come. They have a right to go on and prove what they can upon that subject---all that these parties have said and done and all preparations that they have made in contemplation of an attack upon the civil authorities.

MR. FOSTER: They have proved one kind of conspiracy, and your Honor is suggesting the admission of testimony upon an imagined conspiracy which is entirely different.

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THE COURT: A general plan of that sort would be composed of a great multitude of people; there would be a great many incidents; there would be a great many different times and occasions, if it lasted long enough, in which some portion of what they contemplated doing would be done. Now, any one of those instances or occasions, any small portion of the whole which they contemplated, when it became the subject of an investigation would involve the showing of that whole combination and agreement from beginning to end, so as to show in fact that it was a small portion of that great whole---that it was in fact an incident of the great plan which they had.

I think it is admissible.

Exception by defendants.

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