Haymarket Affair Digital Collection

Illinois vs. August Spies et al. trial transcript no. 1
Court discussion regarding previously introduced affidavits, 1886 Oct. 1-1886 Oct. 7.

Volume O, 128-143, 16 p.

Discussion between the court, prosecution and defense regarding the carriage rides referred to in the Affidavit of Thomas Currier, and the desire by the defense to introduce affidavits in regards to Michael Cull's reputation. The defense argues for more time to prepare reply affidavits for those presented by Love and Blossom.

Closing statement to the document that a motion for a new trial was argued and that on October 7, 1886, the motion was overruled by the court, and a new trial was denied.

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Mr. GRINNELL: With the suggestion, that the record be put in shape about this bill and the account for those carriges, that is all I have.

THE COURT: It must be within the remembrance of the counsel of the defendants, that when it was proposed that the jury should have rides and carriages, I said in a jocular way, "Well, I will audit the bill, whether the County will ever pay it or not."

Mr. GRINNELL: Let me suggest right there that Captain Black at the same time said, he would be very glad to add that much additional to the amount of his taxes.

THE COIRT: Yes, I remember that remark. A man is more apt to remember what he himself says, than he is what other people say but I now recollect that Captain Black said he would very cheerfully, or something to that effect, have his portion of that bill added to his taxes.

CAPTAIN BLACK: I remember I said that, still if it was error--

THE COURT: Yes, but it is absurd to say the jury were expected to pay for the carriages themselves.

CAPTAIN BLACK: I do not say that.

MR. FOSTER: I know in that connection, I proposed to take one man out with me as I had room for one. I was willing to donate that.

CAPTAIN BLACK: That is all of your afidavits.

Mr. GRINNELL: Yes, sir.

CAPTAIN BLACK: We want a reasonable time to prepare reply affidavits.

THE COURT: There is but one thing, Cull's reputation.

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CAPTAIN BLACK:: That is what I was going to call your Honor's attention to. It seems to me, also however, that it might be a proper matter for us to have an affidavit of the notary public, as to whether or not these parties swore to these affidabits.

THE COURT: Suppose they did, and swore to them understandingly.

CAPTAIN BLACK: They do not deny but what they understood perfectly well all that was in the affidavit.

THE COURT: And now say they are not true.

CAPTAIN BLACK: Now, suppose that we should find out, in the course of a little investigation that these lst affidavits were extorted by fear, or procured by fear.

THE COURT: The result would be, that you could not tell whether you could believe anything the man said or not.

CAPTAIN BLACK: I am perfectly aware of that fact, but at the same time it might be a proper matter for us to show on the record if we can. As to the other matter,as to the reputation of Cull, which they have brought in, that is certainly new, and we have a right to be heard on that subject.

THE COURT: Suppose Cull's reputation were of the best and he says that Adams says he said this and Adams says he never did, and it stands there and nothing more?

CAPTAIN BLACK: Then it would be one of the many things of consideration by the court. Of course the court might take either view or the court might say so long as there was a serious question raised by credible testimony that it was a proper case for relief. What the court would do of course I do not propose at this juncture to forestall or attempt to forestall. I simply

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submit to your honor that is proper matter upon which to allow us to be heard.

MR. FOSTER: There is something more than that. If this case should be appealed we want a record to present. Your Honor might decide what your honor would hold, but we want a record.

THE COURT: Yes, but it would not be for this purpose necessary that there should be any delay, because it might be agreed that any affidavits in regard to Cull's reputation should be inserted.

Mr. GRINNELL: The copy of the affidavit of Cull was handed to me. The first intimation I had about it was at one o'clock yesterday. I did not get it until about two.

CAPTAIN BLACK:: The first we knew about it was yesterday morning at six or about half past six. The first we knew of Mr. Cull, the first we knew that Mr. Cull had this information within his knowledge was about six o'clock yesterday morning.

THE COURT: Now, the extrinsic matters that you have here is the affidavit of Cull as to Adams, denied by Adams. I do not know what Adams said in his examination as a juror, here, whether he said that he had or had not expressed an opinion in regard to the Haymarket matter at all.

Mr. Salomon: He said he had not..

Captain Black: My recollection is that he testified that he had not expresed any opinion.

THE COURT: I have a sort of a vague remembrance that he was out of the city for some time.

CAPTAIN BLACK: I cannot answer certain as to that. We have got his examination, if your Honor please, written out.

THE COURT: I see that Denker in his affidavit says that he did

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say on his examination something in regard to wbat opinions he had formed.

CAPTAIN BLACK: Yes, he admitted that he had formed and expresed an opinion. He did not say what. We challenged him for cause and your honor overruled our challenge.

THE COURT: He was not asked to say what that opinion was.

CAPTAIN BLACK: Of course not. That I take it would not have been proper.

THE COIRT: He answered so far as he was questioned.

CAPTAIN BLACK: I understand we would not have been allowed to ask him what the opinion was. That I understand was not allowable

Mr. GRINNELL: He has not expressed it yet.

CAPTAIN BLACK: I am talking about Mr. Denker. The point is that he made that he denied these particular expressions. There is another thing that I want to suggest there. He says that Thomas S. Morgan is only thirteen years old. I understand he is very much older than that. He is working in the pattern maker's shop of the Illinois Central. I have seen the young man and he looks to be nineteen or twenty years of age.

THE COURT: That is only that he has been so informed.

CAPTAIN BLACK: Yes, but if it is material to put in the affidavit, I think we have a right to meet it. It is put in there with the intention of discrediting the affidavit and to bring out the idea that he is a mere lad, swearing to what his father said.

THE COURT: I do not know why a boy of thirteen would not be as apt to swear as correctly as a boy of eighteen.

MR FOSTER: He is more under the influence of his father.

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CAPTAIN BLACK: We would not be able to dispose this afternoon this motion. I have a number of authorities to which I in good faith desire to call your Honor's attention, bearing upon several of these points that are raised. I feel that I owe that alike to the court and to my clients.

THE COURT: We can go on this afternoon and finish it afterwards.

CAPTAIN BLACK. That would be true as a matter ofcourse, but I would like to have the matter go over until some day early next week in order to enable us to reply to these affidavits. The reply affidavits will necessarily be short and then we can have a day before us and can dispose of it. I suggest that because your honor has said that to-morrow would be taken up and we have other matters that would engage us. My brother Zeisler suggests that in view of these affidavits presented by Love &c.,for the purpose of the record he desires to make an affidavit himself. There are some things there that in the way in which they are left seem to at least possibly reflect upon Messrs. SAlomon and Zeisler and leave the impression that they were paying for testimony. They have a right so far as this record is concerned to meet that.

THE COURT: If it were simply as to the effect upon Salomon and Zeisler personally it would have no place in this record.

CAPTAIN BLACK: Of course not. It does relate also to their clients' interests so far as the record is concerned.

MR. GRINNELL: I would like to have some limit put to this affidavit business. It is not fair to the prosecution,the peculiar facilities for obtaining affidavits and then at the last minute we

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know something about them. For instance, there is Cull, handed us yesterday at two o'clock. They say they knew nothing about it until that morning. Salomon was out there at half past five in the morning. I do not know where he got the information, that there is nothing in the record to show. I do know.

MR. SALOMON: I can tell you if you don't know.

MR. GRINNELL: You got it from Miller, who has spent most of his time in jail for the last year and a half.

MR. SALOMON: I don't care where he has spent it.

CAPTAIN BLACK: The States Attorney has a great advantage over us in this matter of getting affidavits.

MR. GRINNELL: We have all sorts of proof and all sorts of affidavits and there will be no end to it. We have no chance to ascertain the character of the individuals employed to get proof. They have a right to ask a man to get proof, and we have a right to know sometime before their proof is presented what it is that they have got and what it is they are presenting.

THE COURT: I won't make any order this forenoon. I will come back here at two o'clock.


2 P. M.

CAPTAIN BLACK: Does your Honor overrule our application for an extension of time to get reply affidavits?

THE COURT: I see no reason for it,because the only thing which you could want would be something in relation to Cull's reputation and as to the age of this younger Morgan.

MR. ZEISLER: There are affidavits of ours contradicting certain

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statements of Love.

THE COURT: Whatever may be done about that the utmost that could happen about Love and Blossom's affidavits would be simply that they would not be taken into account at all.

CAPTAIN BLACK: I would like to have the record show, if Your Honor please, that we applied for time to file reply affidavits.

THE COURT: As to Cull's affidavit, suppose you get affidavits sustaining his reputation, then it will come to this, that he says that Adams said something which Adams denies that he said.

CAPTAIN BLACK: Granted, but we have a right as his reutation is attacked, to sustain it for the record.

THE COURT: The affidavit in regard to Cull's reputation may come in after as though it were now filed.

CAPTAIN BLACK: We make our motion, which your honor sees fit to deny, in reference to that matter, and of course we desire an exception.

MR. GRINNELL: If the court please, the affidavit in regard to Cull's reputation I stated was correct about the matter. I got that affidavit at two o'clock yesterday. Some business in the office to perform and we could not get in contact with anybody until last evening. If the gentlemen desire to file an affidavit or more as to that particular point, if it does not delay in the matter, if I can have the privilege of filing other affidavits, because two or three individuals who were summoned as jurors in this court come from Evanston-- he is a brother-in-law of Captain Hatheway who can be called. There is another brother-in-law near by if it makes any difference.

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THE COURT: As to Cull's reputation there may be time to file affidavits upon that subject but suppose his reputation is sustained, then it comes to this, that a man of good reputation says that another man of good reputation did say what that other man of good reputation denies that he said.

MR. FOSTER: Yes, but the court is making suggestions just as though this was a court of final resort in this case.

THE COURT: I say you may have time to put in these affidavits upon that subject and consider them when put in, as though they were presented now.

CAPTAIN BLACK: We simply want the record to show our application and its denial. Of course Your Honor can put in any suggestion that Your Honor pleases and we may or may not act upon it hereafter.

THE COURT: If you do not want to adopt that suggestion then of course I would deny the application blankly without any terms about it.

MR. SALOMON: We want to put in affidavit to all matters that we think are material as rebutting the statements made in the affidavits filed by the prosecution.

CAPTAIN BLACK: Our application of course, if your honor pleases, is to put in reply affidavits to the matters which seem to us to be material. Your Honor might hold that they were not material but there are certain matters that seem to us to be material and would properly be made by reply affidavits. Out aplication now is simply that we have a reasonable time, to be fixed by your honor, to file reply affidavits. I do not think your honor can meet that by saying to us that we may put in the reply afidavits to Cull I do not think that answers our question at all.

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THE COURT: I do not know that there is any objection to your putting in whatever explanations you please about Love and Blossom, and of course on this matter of Morgan all that you want to put in is merely an affidavit as to the young man's age.

CAPTAIN BLACK: Yes, that would be true so far as Morgan is concerned

THE COURT: Then as to Cull affidavit sustaining his reputation.

CAPTAIN BLACK: That I understand to be true.

THE COURT: I see no objection to your having leave to file these affidavits nunc pro tunc, all of them.

Mr. GRINNELL: That is all right, but I do not understand what the court says about Love and Blossom.

THE COURT: They want to put in some expanation of what took place at the time they gave their original statements as you call them.

MR. SALOMON: There may be other matters.

Mr. ZEISLER: There are other matters. For instance if we could show that these men, after having made their affidavits were threatened to be sent to the penitentiary if they would not take back their statements, would not Your Honor deem that to be material


MR. ZEISLER: If we can show that these statements which they made- I mean that these afiants were sworn to these statements. Now, they come and make affidavits that they were never sworn to them. If we can show by the notary public, that they really were sworn, then that shows that the second statement they made to the States Attorney is not true, but the first is true.

THE COURT: Any affidavits with regard to Love and Blossom, either the circumstances under which they made their original statements

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as they call them, which purport to be affidavits here, or any affidavits that they choose to make about why they made this second affidavit, I see no reason why they may not be filed nunc pro tunc because the rule is perfectly well established that a new trial is never granted for the purpose of introducing impeaching testimony. Testimony merely to impeach a particulsr witness on the formal trial is never a ground for a new trial.

MR. ZEISLER: This would not be impeaching evidence, if your honor please. This would be contradictory evidence. If what these men say is true then Gilman never was on the Haymarket on the night of May 4th. This is not impeaching testimony.

THE COURT: What Love says would take him away from there, but what Blossom says would not.

MR. ZEISLER: These two affidavits go together.

MR. GRINNELL: I cannot mention all my objections. I understand that an attempt has been made-- my information is indefinite and may be incorrect-- an attempt has been made to get and affidavit from one Hunt, out of the State. I have been seeking since last Sunday to ascertain the whereabouts of any man by the name of Hunt who might possibly make an affidavit. To day within the last ten minutes I have learned that the individual who started to get Hunt's affidavit has arrived in town, and I want a chance to get at that affidavit. I understand that Mr. Ike Hartman was in some way employed. I cannot go all summer about finding out about affidavits.

CAPTAIN BLACK: Can't you let the matter go over until Tuesday

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MR. GRINNELL: No, sir.

CAPTAIN BLACK: All right. Our right is to have the record show our motion, the Court's ruling and our exception.

MR. ZEISLER: I do not really understand what your honor means by saying we might file the affidavits nunc pro tunc. Do I understand your honor has determined to overrule this motion for a new trial and we should file them afterwards?

THE COURT: I have not determined what I will do with the motion for a new trial.

MR. ZEISLER: Then your honor will allow us to file these affidavits before we proceed any further.

THE COURT: No, sir. Suppose you file an affidavit sustaining Cull's character, then it comes that Cull's says Adams says something that he says he did not say. If you get Love and Blossom to make a lot more contradictory affidavits, you will show that we cannot believe anything they say.

MR. ZEISLER: We will show that they told the truth in the first instance and were led by the States Attorney to make an affidavit out of fear.

MR. GRINNELL: The remark that some of you gentlemen made in our office is a correct solution of that. It don't make any difference whether he did it for fear or reward, in either case he lied.

THE COURT: Affidavits on both sides as to the reputation of Cull, as many nore affidavits as either side may choose to, have from Love and Blossom as to why they have done things, and then the age of Morgan. That is all there is of it.

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MR. ZEISLER: We do not intend to put in any more affidavits from Love and Blossom. We want affidavits in regard to the matter.

THE COURT: No others would be admissible.

MR. ZEISLER: I do not see why I should not be allowed to make an affidavit in regard to matters that Love and Blossom spoke of in their statements made to the States Attorney.

THE COURT: Suppose they lied about that, then the effect of it is that it makes them a little more uncredible than they are now.

Mr. ZEISLER: Oh, no.

MR. SALOMON: Suppose we show that Love, as a matter of fact was acquainted with Gilmer and has known him for the length of time he has stated in his affidavit which we have produced.

THE COURT: You cannot go into that from other persons.

MR. SA:OMON: I think that is a proper mode of proof as showing that the second affidavit is untrue and that the first one is true.

THE COURT: It might show that you could not tell what affidavits he made upon any subject were true but it would not prove that any of them were true. It is like the case of Blake against Blake in the Supreme Court where a new trial was asked for upon newly discovered evidence, where the affidavits of the parties themselves showed that they had undertaken to blackmail; and the Supreme Court says that the witnesses whose evidence newly discovered was proposed to be used, showed themselves so unreliable that no new trial should be granted. Now, if Love and Blossom make one affidavit for you and another for them contradicting each other, then nothing which they say afterwards in any affidavit can be relied upon, and so it will be no ground for the court to act upon.

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MR. ZEISLER: Unless it could be shown that the second affidavit which they made was made under duress in the same room where Mr. Jim Bonfield was sitting, which of itself is a constant threat.

MR. GRINNELL: You did not seem to be afraid of him last night when you were there and heard all this story.

CAPTAIN BLACK: I will say to Your Honor simply that we except to your ruling. I will state, of course I think it is proper to be entirely frank with the court, that our motion being a motion to continue for the purpose of putting in reply affidavits I see no reason why Your Honor's suggestion that we may do that should be accompanied with the suggestion that the States Attorney may continue to put in impeaching affidavits as to Cull. We have put in Cull's affidavit and they have put in an affidavit to, impeach him. We insist that we have a right to answer that. Your honor says we have that right. Your honor days you won't allow us to exercise the right now but will allow us to exercise it some other time and give us the benefit of it.

THE COURT: This is the condition of things, that a week ago today the motion was set for today with what I understood to be an agreement that all affidavits which should be used upon the motion should be presented to the States Attorney by Tuesday morning. Now, when did this affidavit about Adams--

CAPTAIN BLACK: The States Attorney will admit that at that time in this room before your honor I said to him that there were affidavits which we might not be able to get by that time; That so far as I could get the affidavits he should have copies of them but as to others where I might be unavoidably delayed I should furnish

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him with copies just as quick as I could.

THE COURT: When did you furnish copies of the affidavits?

CAPTAIN BLACK: He furnished Cull's affidavit to him or a copy of it to him on the same day we got it. We got it at six o'clock in the morning and furnished it to him before twelve.

MR. GRINNELL: Two o'clock.

THE COIRT: Of what day?

CAPTAIN BLACK: Yesterday. If the State will agree that it shall go over they may put in as many more impeaching affidavits as they want to, giving us the copies of impeaching affidavits and then allowing us to answer. They have necessarily the impeachment

MR. GRINNELL: I don't care about the impeachment.

CAPTAIN BLACK: Of course you don't.

MR. GRINNE L: The court has said that you may put in affidavits if you want to.

CAPTAIN BLACK: Yes, coupled with the order that you may put in impeaching affidavits.

MR. GRINNELL: I suppose the court wants to get at the man's character if it is material. I do not see that it is material.

CAPTAIN BLACK: Then there should be a reasonable opportunity afforded for it.

THE COURT: I won't make any terms at all unless it is agreed to, but there is really no reason for contimuing the motion for any affidavits because affidavits sustaining Cull if they did sustain him would leave so far as Adams is concerned, one good man says that another good man said something which he denies saying.

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CAPTAIN BLACK: That does not in the leeast as your honor admitted affect the question that we have a right to have the question considered by the court of review. That is we have a right to have it in the record.

THE COURT: Each court acts with reference to its own proceedings. I am not sowing for another harvest.

CAPTAIN BLACK: If your honor pleases we have our right, and when an affidavit is attacked by an attack upon the character of our witness it is precisely as if an impeachment were attempted upon the trial. We would have a right to reply and your honor cannot cut off that right.

THE CORT: If he is sustained it don't make any difference.

CAPTAIN BLACK: It does not make any difference whether he is sustained or not. The right to reply to an impeachment is a right which your honor cannot abridge.

THE COIRT: Then as to Love and Blossom, any affidavits which they may make will be merely superfluous. As to Morgan whether he is thirteen or nineteen years of age does not cut any figure.

CAPTAIN BLACK: We understand you honor overrules our motion and we except. Our motion is and we ask leave to put it in writing, for a reasonable time to prepare and file affidavits.


CAPTAIN BLACK: To the affidavits--- (to Mr. Salomon) will you prepare the motion and put it in writing so that it may be gotten properly into the record. Your honor overrules that motion and we except. Now, shall I proceed if your honor please.

THE COURT: Yes, sir.

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And thereupon said motion for a new trial came on for argument and the argument thereof was continued.

And afterwards, to wit, on the seventh day of October, 1886, said motion was overruled by the court, and a new trial was denied.

To which action of the court said defendants then and there respectively excepted.

And thereupon the court called upon the defendants severally and respectively to state whether they had anything to say why judgment should not be pronounced pursuant to said verdict, and after hearing from said defendants fully, the court afterwards, to wit, on the ninth day of October, 1886, proceeded to enter judgment on said verdict as follows:

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