Illinois vs. August Spies et al. trial transcript no. 1 Affidavit presented and signed by the defendants stating that Otis S. Favor heard special bailiff Henry L. Ryce say in substance and in effect that he was managing the case against the defendants and that they would hang as certain as death. Affidavit of E. A. Stevens affirms the affidavit of the defendants and states that he too heard Otis S. Favor describe the statement attributed to Henry L. Ryce. Court discourse follows in which Captain Black asks the court to pursue a formal affidavit from Otis S. Favor as Favor is unwilling to swear one voluntarily. The court declines.
Affidavits of the defendants and E. A. Stevens: court discourse, 1886 Sept. 28-1886 Oct. 7.
Volume O, 56-73, 18 p.
Stevens, E. A.
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Illinois vs. August Spies et al. trial transcript no. 1
Affidavit presented and signed by the defendants stating that Otis S. Favor heard special bailiff Henry L. Ryce say in substance and in effect that he was managing the case against the defendants and that they would hang as certain as death. Affidavit of E. A. Stevens affirms the affidavit of the defendants and states that he too heard Otis S. Favor describe the statement attributed to Henry L. Ryce. Court discourse follows in which Captain Black asks the court to pursue a formal affidavit from Otis S. Favor as Favor is unwilling to swear one voluntarily. The court declines.
IN THE CRIMINAL COURT OF COOK COUNTY.
August Spies, et al.
Indictment for the murder of Matthias J. Degan.
And now come the said defendants in their proper persons, and by their attorneys,and moves the court herein for leave to examine Otis S.Favor in open court, touching certain matters referred to in the affidavit of the defendants filed herein, and also in the affidavit of E. A. Stevens for the reasons particularly set forth in said affidavits, to which reference is hereby made.
By Wm. P. Black,
Salomon & Zeisler, and
Wm. A. Foster.
CAPTAIN BLACK: The affidavit of the defendants is as follows:
In the Criminal Court of Cook Country.
The Peoples. etc.,
August Spies et al.
Indictment for the murder of Matthias J. Degan.
State of Illinois, Cook County. ss.
The defendants, August Spies, Michael Schwab, Albert R.Parsons, Samuel Fielden, Adolph Fischer, Louis Lingg, George Engel and Oscar Neebe, being affirmed according to law, each for himself, says that he is informed and verily believes it to be true that the special bailiff, Henry L.Ryce, who was appointed to serve most of the special venires issued in the above entitledcause, deliberately and wilfully, and with the avowed intention of making sure the conviction of these affiants upon said trial instead of summoning as jurors under said special venires fair and impartial men from the body of the county, as required by law, selected the parties summoned by him from men having prejudice in said cause, and having fixed beliefs as to the supposed guilt of these affiants; and that as a result of this action upon the part of said bailiff, these affiants were compelled to receive as jurors in said case, as to nearly all of those who were accepted to try the same, men entertaining prejudices against those affiants, and having fixed opinions upon the question of their supposed guilt. And these affiant further say that they are informed and verily believe that the above facts can be shown by the tstimony of Otis S. Favor, to whom, as these affiants and informed and believe, and charge, the said Ryce made statements in substance and to the effect
that he was managing the case against these affiants, and knew what he was about; that these affiants would hang as certain as death; that he was summoning as jurors men whom these affianst would be compelled to challenge, whereby the challenges of these affiants would be exhausted, and they would be compelled to receive as jurors such men as were satisfactory to the prosecution herein. That these affiants had no knowledge or intimation of the making by said Ryce of the statements above referred to until long after the verdict in this cause, and until within a vfew days past. These affiants are further advised and believe that the said Favor will not make any affidavit substantiating the matters above set forth, because of the popular prejudice which is believed to be entertained against these affiants, and the present inflamatory condition of public opinion; that they are advised and believe that if he is required herein as a witness to testify, he will substantiate the matter above setforth touching the expressed purpose and design of said Ryce in the summoning of jurors in this cause. And thses affiants further state that since the verdict in this cause they have for the first time learned of the matters above stated concerning the utterances and conduct of said Ryce. These defendants thereupon ask that the said Otis S. Favor be required to testify herein, touching the matters above referred to with in his knowledge, that such testimony when given may be considered in support of the motion for a new trial herein, and that a new trial may be granted them.
That said remarks of said Ryce were made, as affiant are informed and believe, almost immediately after the appearance in one
of the leading papers in this City, of an editorial or editorials advising substantially such a course to be pursued in the selection by the bailiff of jurors for the special venires.
Albert R. Parsons,
Subscribed and affirmed before me this first day of October A. D. 1886.
CAPTAIN BLACK: The affidavit of E. A. Stevens, which is referred to, is as follows:
In the Criminal Court of Cook County.
The People etc.
August Spies et al.
Indictment for the murder of Matthias J. Degan.
State of Illinois County of Cook ss
E. A. Stevens, being duly sworn, on oath deposes and says, that he is a resident of Cook County, and a Citizen of the United States and the State of Illinois. That he is well acquainted with Otis S. Favor, who is also a citizen of the State of Illinois, as affiant is informed and believes, and who is a merchant of standing and repute in said City, doing business at Nos. 6 and 8 Wabash Avenue. That he personally know that said Otis is intimately acquainted with Henry L. Ryce of Cook County, Illinois, who acted as special bailiff in summoning jurors in the above entitled cause. That affiant has heard said Fabor state that said Ryce had said to him, Favor, and to others in his presence, while the said Ryce was so engaged summoning jurors in said cause as aforesaid, in substance and effect as follows, to wit: I, (meaning said Ryce) am managing this case, (referring to the case of the people against Spies et al) and know what I am about; those fellows (meaning the defendants, Spies et al) are going to be hanged as certain as death I am calling such men as the defense will have to peremptorily challenge and waste their time and challenges; then they will have to take such men as the prosecution wants--- that affiant has requested said Favor to make an affidavit in this cause, setting
forth the above statements of said Ryce to said Favor, to be used in connection with the motion for a new trial; but the said Favor has refused so to do, stating that he would not take any action in favor of the defendants in said cause, but that if called as a witness and compelled to testify, he might state the facts as to what was said by said Ryce substantially as above stated. That affiant verily believes if the said Favor should be required to testify in this case, he will testify that the said Ryce on one or more occasions while engaged summoning special jurors in this cause, and for the trial thereof, stated in substance and to the effect that he was managing the matter of obtaining jurors for said case, and knew what he was about, and that said defendants would hang as certain as death, and that he was engaged in summoning such jurors as the defendants would be compelled to challenge peremptorily, and after exhausting their peremptory challenges they would be compelled to take such jurors as were acceptable to the prosecution in said cause. And further affiant saith not.
E. A. Stevens.
Subscribed and affirmed before me, this 28th day of September A. D. 1886.
(Seal) Notary Public.
CAPTAIN BLACK: I may state in addition to the affidavits which are here, that I did personally endeavor to procure the affidavit of Mr. Favor; that in a conversation, which I had personally with him, Mr. Favor did not deny at all the making of the statements alleged, but took the position that he would not give any affidavit in the case, nor speak of the matter, unless required to do so under some order of the court. For that reason I have brought this matter in this way before your honor; believing that it is a case where that power which is unquestionable within your Honor's discretion, of requiring parties to appear and speak to a matter germain to a motion of this character, where their ex parte affidavit cannot be compelled, should be exercised; and that in the interest of justice, the due and proper and decent administration of justice, and in the interest of the cleanness of our courts,and our proceedings, this rule requiring Mr. Favor to appear and testify, and say whether or not these things are so, should be entered. Mr. Favor's place of business is close by, and I therefore ask you Honor order the issuance of a subpoena for Mr. Favor's attendance, and that we have an opportunity to examine him in support of these averments.
MR. GRINNELL: This is a preliminary motion as I understand it?
Mr. BLACK: Yes, sir.
Mr. GRINNELL: This is the first intimation that the State has had and it would have been more in furtherance with justice, an honest furtherance of justice, if copies of these affidavits had been courteously furnished to me or my assistants, before this morning. This is the first intimation that I have had of this matter. I have rumors, heard rumors of this and have asked gentlemen
upon the other side daily for the last week, if there were any affidavits to be filed other than those of which I had copies. I have been assured by them that there was nothing of that character. These affidavits, as put in here, might possibly, for the purpose of exoneration of Mr. Ryce, require his affidavit, or counter-affidavit and also something from Mr. Favor. I do not know what the position will be so, far as the court is concerned. This is the first intimation I have had of it. There is nothing in these affidavits, if the court please, which shows at all that any one of the jurors, summoned or taken, who finally tried the case, received that intimation, or those instructions, assuming that it was said by Mr. Ryce.
CAPTAIN BLACK: With reference to the furnishing of copies the agreement and understanding that I had with the States Attorney, was that we would furnish him with copies of all affidavits proposed to be filed in support of the motion for a new trial. That is not usual, but it has been done. This is a preliminary motion. The reasons for not disclosing this matter, I can state if required. I understand that so far as affidavits have been furnished, it has in every single instance been followed by an almost immediate practical assault upon our affiants, in almost every instance, with the purpose of trying to constrain or pursuade them to change their position. That is the reason why, in a case of this kind, one hesitates to disclose one's case, any further than is required under the rules. I think I have observed the rules. I think I have also observed the agreement which I made. If Mr. Grinnell had an intimation that a movement of this sort would be made, as he frankly admits, I do, not know where he got his information
or intimation. It is inmaterial. It is evident that this matter cannot operate as a surprise. This is simply an application for leave to examine a reputable businessman, touching certain matters which it is claimed are within his knowledge, but which he refuses to furnish us an affidavit of. If Mr. Favor had consented to make an affidavit my brother Crinnell would certainly have been furnished with a copy of it, pursuant to the agreement and understanding that I had with him. Because he refuses to make that affidavit, I am compelled to make this application; and as I said, it is not a matter of surprise because when Mr. Favor comes upon the stand, if Your Honor shall so direct, as I trust Your Honor will in the furtherance of justice, there will an ample opportunity for cross-examination and for sifting this matter precisely as if he were a witness.
Mr. GRINNELL: So far as Mr. Favor is concerned, I do not know what the attitude is, I do not know what the position is. It is a motion to examine him. It might have been done a month ago if wanted.
CAPTAIN BLACK: It could not have been done if it was not known.
THE COURT: What is the date of Steven's affidavit?
CAPTAIN BLACK: Steven's affidavit is dated the 28th day of September.
THE COURT: There is nothing showing when this information from Stevens came to either of the defendants or any of their attorneys.
CAPTAIN BLACK: The defendants state that they did not get it until after the acceptance of the jurors and until after the trial.
THE COURT: I know, but this verdict was rendered upon the 20th of
MR. GRINNELL: Yes,sir.
CAPTAIN BLACK: I can make affidavit if necessary, as to when the information was first received, and say to your Honor, that I spent considerable time immediately after getting it, in efforts to procure an affidavit in the ordinary course.
THE COURT: We all of us remember that a week ago to-day the States Attorney had given you notice before that, that a week ago to-day he would call the case up for disposition and it was called up, and then by agreement it was postponed until today with a sort of bargain between you, here in court, that in consideration of postponing it until today you would furnish him by Tuesday morning with all that you would have to move upon.
CAPTAIN BLACK: No, that was not the agreement. The agreement distinctly and specifically was that copies of the affidavits in support of the motion for a new trial should be furnished. I was then not without hope, that I would succeed still in getting this affidavit from Mr. Favor. It was not until after that time, as I now remember, that the effort finally failed and I found I would be compelled to resort to this proceeding. But this does not operate as a delay. I was asking for an order instanter.
THE COURT: Where is there any precedent for calling a man in to testify orally upon a motion of this sort?
CAPTAIN BLACK: I do not know that there is any precedent. There is, it seems to me the power in your Honor, and the question is whether that power should not be exercised in a case of this gravity in furtherance of justice where we are asking no delay.
THE COURT. I doubt that I have any such power.
CAPTAIN BLACK: It is a very singular condition of our judicial machinery.
THE COURT: In a common law court all issues of fact, before a jury are tried upon oral evidence. But all action of the court based upon matters of fact, the matters of fact are presented to it by affidavit.
CAPTAIN BLACK: That is the rule I concede, but when you have got a case as in this case where the parties testimony cannot be had by any of the known processes of law, that is, any processes of law known to me, except by an appeal to the court itself, then is it not a case where the court in furherance of justice, in the investigation of truth, should exercise its power of requiring the witness to attend? I know of no means by which I can compel an ex parte statement or affidavit.
THE COURT: Have you searched---
CAPTAIN BLACK: I have.
THE COURT: ---for what proceedings can be taken?
CAPTAIN BLACK: I have examined carefully the statutes of the State, which point out the manner of taking testimony and they do not cover the case.
THE COURT: The books of practice upon what courts may and may not do. I have never known of an instance of this being done.
CAPTAIN VBLACK: It is not often, of course, that a motion of this kind does arise or can arise. It is not often that a case presenting the peculiar features that are here, can come up, and I have therefore no precedent. Of course there is this analogy, that
where there is a doubt or question in the mind of the court as to the proper shaping of a bill of exceptions, which not unfrequently arises, where the testimony has not been taken down stenographically, it is a very frequent custom then, for courts to send for the witnesses and examine them-- at least it is done. That is the settled practice in a case of that kind, to send for the witnesses and to examine them again, if there is any dispute and the court is uncertain as to what the witnesses testified to. So that the power to call any witness at any time, touching any inquiry which is properly before the court, it seems to be cannot be doubted. Precedents have to be made, if your honor please, in the first instance. There has to be a start with them.
THE COURT: If there was any such authority, the occasions for its exercise must have been so frequent that it would be easy to find precedents of the exercise of authority. It cannot be that this is the first instance. Hundreds, thousands, of such incidents have occurred. This cannot be the first instance. I have never known the thing to be done in upwards of forty years.
CAPTAIN BLACK: If your honor hesitates simply upon the question of your honor's power---
THE COURT: I do not think it would be of any consequence if Favor were here, for the reason that it is a matter perfectly well known to everybody who was present at the trial, that the last fifty of your peremptory challenges you exhausted simply for the purpose of exhausting them.
CAPTAIN BLACK: What difference does that make if your honor please?
THE COURT: Your complaint there is, that by the action of Ryce you
are compelled to exhaust your peremptory challenges.
CAPTAIN BLACK: Yes, sir; that is our position.
THE COURT: Well, it is perfectly well known to everybody who was present at the trial, that the last fifty you exhausted without at all referring to the character of the men that were being examined.
CAPTAIN BLACK: Now, if your Honor please, with reference to that: From the rulings which were adopted by your honor in the beginning of this case, there was left to us upon our side, simply a choice among prejudiced men. That is all. Your honor declared from your position upon the bench, a hundred times in the progress of the trial, that the previous opinion formed and expressed by a juror had nothing whatever to do with the question of his competency to serve.
THE COURT: My rulings upon the competency of jurors do not depend upon the actions of Ryce. If they were wrong, the Supreme Court can correct me.
CAPTAIN BLACK: In the light of such suggestions counsel who were appearing for the defendant recognized the fact, that they were compelled to choose simply among men of admitted prejudice. That is all that is left to them, unless the bailiff fairly exercising the power which is in his hands, goes out and makes an honest venire and brings in fair-minded and dispassionate men if he can find them. If a bailiff with such a suggestion from the court in his ears, goes out and selects jurors, where are we placed? If a bailiff, knowing in advance from your honor's repeated statements, that your honor will not allow a challenge simply on account of the previous formation of an opinion, and knowing that was the rule that your
honor adopted here, goes out and says "I am running this case, these men have got to hang certain as death, I am going to get such men," is it prejudicial to us? Have we a fair show? Assume now, that that is true. Has justice been served in her temple? Have we been served as your honor would desire one dear to yourself, under the stress of possible adverse circumstances, to be served? Have we had such a trial before such jurors, or jurors so secured? If this is true, as is here stated, is there not here that which would be a disgrace to the administration of justice if allowed to go uncorrected?
THE COURT: I shall overrule the motion. There should have been no delay this morning, upon such a ground as that.
CAPTAIN BLACK: There is no proposition for delay if your honor please.
THE COURT: There has been abundant time, if there had been any power in the court to call Favor here, there has been abundant time to have had him called here, without postponing the hearing of this motion, which a week ago today was peremptorily set for this morning.
CAPTAIN BLACK: We are asking no delay, if your honor please. We understand that the witness is here, his place of business is within about a quarter of a mile of this court. He can be brought here. We ask no delay whatever. We simply ask for leave to bring Mr. Favor into this court and require him to testify upon this inquiry. I understand your honor overrules this motion?
THE COURT: Yes, I overrule the motion.
CAPTAIN BLACK: To which we except.
Mr. GRINNELL: Did you attempt to serve a subpoena upon him?
CAPTAIN BLACK: No, I seriously contemplated that, but I concluded I would bring the whole matter before the court and ask the court's leave to issue a subpoena. That is included in my motion, not in form, but in the oral presentation of it in Court--- for an order for a subpoena to bring him into court.
THE COURT: Proceed with the motion.
MR.BLACK: (to the clerk) File this affidavit please, and note the exception.
CAPTAIN BLACK: Now, if your honor please, one other matter. We shall ask a postponement at this juncture of the motion, in order to enable us to examine and if so advised to reply to the counter-affidavits which are filed this morning. We have furnished to the States Attorney all the affidavits which we propose to file. We are this morning, after coming into this room, furnished with a volume, small sized, of what purport to be counter-affidavits that we have had as yet no opportunity even to look over. We want a reasonable opportunity to examine these affidavits. We shall ask for no considerable delay, but a reasonable opportunity to examine these affidavits, and if so advised to rebut them.
THE COURT: That will come later after we have seen what the affidavits on both sides are.
Mr. GRINNELL: Let me make one statement please.
THE COURT: If there is any new matter material in those affidavit of course you have an opportunity to reply to it.
Mr. GRINNELL: I suppose he is referring really to only one point, the Love and Blossom affidavits.
CAPTAIN BLACK: I have not seen any of them.
Mr. GRINNELL: Your associates have. The original affidavits were handed to me on Wednesday night. They were left in my office about five o'clock on Wednesday. Handed to Mr. Walker.
MR.WALKER: Handed to me in the court room. I had to wait until I got through with a trial of a case before I could take them to you.
Mr. GRINNELL: Mr. Walker brought them to my house that eveming. I drew the other affidavits as quick as I could, the contents of which you knew last night.
THE COIRT: Proceed with the affidavits. If there should be anything which should require time for you to answer, time can then be given.
CAPTAIN BLACK: I will say simply in regard to the Love and Blossom affidavits, that they were not executed until the afternoon of day before yesterday, and Mr. Grinnell was furnished copies of them just as soon as we could get them around, those that were sent to his office.
Mr. GRINNELL: Executed about half past ten.
CAPTAIN BLACK: We offer first then, if your honor please, in support of the motion, for a new trial, the affidavits of the defendants themselves. By the way though, perhaps it would be in better order to call attention to the motion, or the grounds for the new trial, as your honor will then see the special relevancy as we proceed, of the affidavits.