THOMAS H. TRACY
Harry Parker and C. C. England told of injuries sustained on the Verona, and John Riely stated there was absolutely no shooting from the cabin windows, that being impossible because the men on the boat had crowded the entire rail at that side.
Jerry L. Finch, former deputy prosecuting attorney of King County, gave impeaching testimony against Wm. Kenneth and Charles Tucker. Cooley asked this witness about his interviews with the different state's witnesses:
"If you talked with all of them, you would probably have something on all of them?"
The judge would not let Finch answer the question, but there is no doubt that Cooley had the correct idea about the character of the witnesses on his side of the case.
In detailing certain arrests Sheriff McRae had claimed that men taken from the shingleweavers' picket line were members of the I. W. W. B. Said was one of the men so mentioned. Said took the witness stand and testified that he was a member of the longshoremen's union and was not and had not been a member of the I. W. W.
J. G. Brown, president of the International Shingleweavers' Union, testified that the various men arrested on the picket line in Everett were either members of the shingle weavers' union or else were longshoremen from Seattle, none of the men named by McRae being members of the I. W. W. The testimony of Brown was also of such a nature as to be impeaching of the statements of Mayor Merrill on the witness stand.
Charles Gray, Robert Adams, and Joe Ghilezano, I. W. W. men on the Verona, then testified, Adams telling of having been shot thru the elbow, and Ghilezano giving the details of the way in which his kneecap had been shot off and other injuries received.
The murderous intentions of the deputies were further shown by the testimony of Nels Bruseth, who ran down to the shore to launch a boat andrescue the men in the water. He was stopped in this errand of mercy by the deputies.
Civil Engineer F. Whitwith, Jr., of the firm of Rutherford and Whitwith, surveyed the dock and the steamer Verona and made a report in court of his findings. His evidence clearly showed that there was rifle, shotgun and revolver fire of a wild character from the interior of the warehouses and from many points on the dock. He stated that there were one hundred and seventy-three rifle or revolver bullet marks, exclusive of the B-B and buckshot markings which were too numerous to count, on the Verona, these having come from the dock, the shore, and the Improvement Dock to the south. There were sixteen marks on the boat that appeared as tho they might have been from revolver fire proceeding from the boat itself. There were also small triangular shaped gouges in the planking of the dock, the apex of the triangles indicating that bullets had struck there and proceeded onward from the Klatawa slip to the open space on the dock where deputies had been stationed. The physical facts thus introduced were incontrovertible.
Defendant J. D. Houlihan gave positive testimony to the effect that he had not spoken privately with "Red" Doran in the I. W. W. hall on the morning of November 5th, that he had received no gun from Doran or anyone else, that he did not have the conversation which Auspos imputed to him, that he had no talk with Auspos on the return trip. All efforts to confuse this witness failed of their purpose.
In verification of the testimony about deputies firing on the Verona from the Improvement Company Dock the defense brought Percy Walker upon the stand. Walker had been cruising around the bay in a little gasoline launch and saw men armed with long guns, probably rifles or shotguns, leaning over a breastwork of steel pipes and firing in the direction of the Verona.
Lawrence Manning, Harston Peters, and Ed. J. Shapeero, defendants, told their simple straightforward stories of the "battle." Peters stated thatas he lay under cover and heard the shots coming from the dock he "wished to Christ that he did have a gun." Shapeero told of the wounds he had received and of the way the uninjured men cared for the wounded persons on the boat.
Mrs. Joyce Peters testified that she had gone to Everett on the morning of November 5th in company with Mrs. Lorna Mahler. The reason she did not go on the Verona was because the trip by water had made Mrs. Mahler ill on previous occasions. She saw Mrs. Frennette in Everett only when they were on the same interurban car leaving for Seattle after the tragedy.
Albert Doninger, W. B. Montgomery and Japheth Banfield, I. W. W. men who were on the Verona, all placed the first shot as having come from the dock immediately after the sheriff had cried out "You can't land here."
N. Inscho, Chief of Police of Wenatchee, testified that during the time the I. W. W. carried on their successful fight for free speech in his city there were no incendiary fires, no property destroyed, no assaults or acts of violence committed, and no resistance to arrest.
H. W. Mullinger, lodging house proprietor, John M. Hogan, road construction contractor, Edward Case, railroad grading contractor, William Kincaid, alfalfa farmer, and John Egan, teamster, all of North Yakima and vicinity, were called as character witnesses for Tracy, the defendant having worked with or for them for a number of years.
The defense followed these witnesses with Oscar Carlson, the passenger on the Verona who had been fairly riddled with bullets. Carlson testified that he was not and never had been a member of the I. W. W., that he had gone to Everett with his working partner, Nordstrom, as a sort of an excursion trip, that he had purchased a one way ticket which was taken up by the captain after the boat had left Seattle, that he intended returning by way of the Interurban, and that the men on the boat were orderly and well behaved. He told of having gone to thevery front of the boat as it pulled into Everett from which point he heard the first shot, which was fired from the dock. He fell immediately and while prostrate was struck with bullet after bullet. He then told of having entered suit against the Vashon Navigation Company for $50,000.00 on account of injuries received. Robert C. Saunders, of the law firm of Saunders and Nelson, then testified that he was handling the case for Carlson and had made out the affidavit of complaint himself and was responsible for the portion that alleged that a lawless mob were on the boat, Carlson having made no such statement to him at any time.
Charles Ashleigh was recalled to the stand to testify to having telephoned to the Seattle newspapers on November 4th, requesting them to send reporters to Everett the next day. He was followed on the stand by John T. Doran, familiarly known as "Red" on account of the color of his hair. Doran stated that he was the author of the handbill distributed in Everett prior to the attempted meeting of November 5th. He positively denied having given a gun to Houlihan or anyone else on November 5th. Upon cross-examination he said that he was in charge of the work of checking the number of men who went on the Verona to Everett, and had paid the transportation of the men in a lump sum.
As the next to the last witness on its side of the long-drawn out case the defense placed on the stand the defendant, Thomas H. Tracy. The witness told of having been one of a working class family, too large to be properly cared for and having to leave home and make his own way in the world before he was eleven years old. From that time on he had followed farming, teaming and construction work in all parts of the west, his bronzed appearance above the prison pallor giving evidence of his outdoor life.
Tracy told of having been secretary of the I. W. W. in Everett for a short time, that being the only official position he had ever held in the organization. He explained his position on the boat at the timeit docked, stating that the first shot apparently came from the dock and struck close to where he was sitting. Immediately the boat listed and threw him away from the window, after which he sought a place of safety behind the smokestack. He denied having been in any way a party to a conspiracy to commit an act of violence, or to kill anyone.
"You are charged here, Mr. Tracy," said Vanderveer, "with having aided and abetted an unknown man in killing Jefferson Beard. Are you guilty or not guilty?"
"I am not guilty," replied Tracy without a trace of emotion.
The cross-questioning of the defendant in this momentous case was conducted by citizen-deputy Cooley. His questions to the man whom he and his fellow conspirators on the dock had not succeeded in murdering were of the most trivial nature, clearly proving that arch-sleuth McLaren had been unable to discover or to manufacture anything that would make Tracy's record other than that of a plain, unassuming, migratory worker.
"Where did you vote last?" asked Cooley.
"I never voted," responded Tracy.
"Never voted in your life?" queried Cooley.
"No!" replied the defendant who for the time represented the entire migratory class. "I was never in one place long enough!"
Then, acting on the class theory that it is an honor to be a "globe-trotter" but a disgrace to be a "blanket-stiff," the prosecutor brought out Tracy's travels in minute detail. This examination of the railroad construction worker brought home to the listeners the truth of the little verse:
"He built the road;With others of his class he built the road;Now o'er its weary length he packs his load,Chasing a Job, spurred on by Hunger's goad,He walks and walks and walks and walks,And wonders why in Hell he built the road!"
"He built the road;With others of his class he built the road;Now o'er its weary length he packs his load,Chasing a Job, spurred on by Hunger's goad,He walks and walks and walks and walks,And wonders why in Hell he built the road!"
"He built the road;
With others of his class he built the road;
Now o'er its weary length he packs his load,
Chasing a Job, spurred on by Hunger's goad,
He walks and walks and walks and walks,
And wonders why in Hell he built the road!"
Then there hobbled into the court room on crutches a stripling with an empty trouser leg, his facedrawn with suffering, and who was able to get into the witness chair only by obviously painful efforts with the assistance of Vanderveer and Judge Ronald. This was Harry Golden, whose entire left leg had been amputated after having been shattered by a high-power rifle bullet fired by a "law and order" deputy.
Golden stated that he had been born in Poland twenty-two years before, and had come to the United States at the age of sixteen. He was asked:
"Why did you come to this country?"
"I came to the United States," said the witness, "because it is supposed to be a free country."
"We object to that as immaterial!" cried prosecutor Veitch.
The witness described the firing of the first shot and told of his attempts to find a place of safety. He said he was wounded in the hand as he attempted to climb into a life boat. He remained on the starboard side of the starboard life boat until the Verona had backed out into the bay. Then just as he was starting to raise up a rifle bullet struck his leg, taking a course thru the limb and emerging at the knee.
"That is on your left—?"
"On my left, yes, which I ain't got; I lost it!" said the witness.
"Did I understand you to say you stood up to see something before you were shot?" asked Veitch.
"Why, sure!" replied Golden contemptuously. "I had my two legs then."
Veitch wished to learn the exact location of the witness at the time he was shot and to that end referred to the model with the remark:
"Look here. Here is the boat as it was at the dock."
"I don't like to look at it!" said Golden heatedly. "I lost my leg on that boat!"
Everett from the water. To the left G. N. Depot from where bystanders viewed battle.
The witness was in evident pain during the examination, having just had a hospital treatment applied to his raw stump, and was rather irritable as a consequence. He answered several questionsrather sharply and proceeded to explain his answers. At one of these interruptions Judge Ronald exclaimed to the witness angrily:
"When he asks you a question answer yes or no! If you want to live in this country try and live like an American!"
"I take an exception to Your Honor's remarks!" said Moore emphatically.
The judge grudgingly allowed an exception to his uncalled for statement.
In concluding his examination Veitch asked the witness:
"What is your name in Polish?"
"I am not Polish; I am a Jew," replied Golden. "Well, what is your family name in Poland?" asked the prosecutor.
"Goldenhaul, or something like that. Now I call myself Golden. When we come to this country—."
"Never mind," interposed Veitch hurriedly.
"When we come to this country for good luck we always change the name, you know," finished Golden, and added bitterly, "I sure did have good luck!"
This ended the case in chief for the defense, the marshalling of such a mass of testimony from a host of disinterested witnesses, men, women and children, putting it on an entirely different footing from the prejudiced testimony brought forward by the prosecution.
In rebuttal of testimony produced by the defense the prosecution introduced a series of witnesses. As in their case in chief every one of the parties who testified were in some way concerned in the case as deputies, jailers, police officers, dance hall habitues, detectives, and the like. The witnesses were W. P. Bell, Dr. F. R. Hedges, E. E. Murphy, Charles Hall, Rudolph Weidaur, W. J. Britt, Percy Ames, Harry Blackburn, Reuben Westover, Harry Groger, W. M. Maloney, Albert Burke, W. R. Conner, A. E. Andrews, David D. Young, Howard Hathaway, George Leonard Mickel, Paul Hill, E. C. Mony, B. H. Bryan, all of whom were deputies, D. C. Pearson, W. H.Bridge, and "Honest" John Hogan, all three jailers and deputies, Robert C. Hickey, city jailer, David Daniels and Adolph Miller, police officers, Charles Manning and J. T. Rogers, personal friends of McRae, Oscar Moline, dance hall musician, Albert McKay, of the Ocean Food Products Company located on the Everett Improvement Dock, T. J. McKinnon, employe of McKay, R. B. Williams, contractor, John Flynn, agent Everett Improvement Dock, W. W. Blain and F. S. Ruble, secretary and bookkeeper respectively of the Commercial Club and also deputies, A. E. Ballew, Great Northern depot agent, H. G. Keith, Great Northern detective, Charles Auspos, who was shown to be in receipt of favors as state's witness, and George Reese, Pinkerton informer and "stool pigeon."
One deputy, H. S. Groger, stated on cross-examination that he continuously fired at a man on the boat who appeared to be trying to untie the spring line. Outside of this evidence of a desire for wholesale slaughter nothing developed of sufficient importance to warrant the production of sur-rebuttal witnesses, except in the testimony of Auspos and Reese.
Auspos testified that defendant Billings in the presence of John Rawlings had stated in the Everett County jail that he had a gun that made a noise like a cannon. This was intended to controvert the testimony of Billings.
Reese related a conversation that Tracy was alleged to have carried on in his presence on the Verona as it was bound for Everett. He stated that a launch was seen approaching and someone remarked that it was probably coming to head them off, to which Tracy replied "Let them come; they will find we are ready for them, and we will give them something they are not looking for." This was intended as impeachment of Tracy.
Cross-examination of this informer brought out the fact that he was a Pinkerton agent at the time he was holding the office of delegate to the Central Labor Council of the American Federation of Labor.Reese stated that he was employed on the waterfront during the longshoremen's strike with instructions to "look for everybody who was pulling the rough stuff, such as threatening to burn or attempting to burn warehouses, and shooting up non-union workers, and beating them up and so forth." He had been in the employ of the Pinkerton Agency for six weeks this last time before he was ordered to go down and join the I. W. W. He stated in answer to a question by Vanderveer:
"I was instructed to go down there and find out who these fellows were that was handling this phosphorus and pulling off this sabotage and the only way I could find out was to get a card and get in and get acquainted with them."
Attorney Moore in the absence of the jury offered to prove that Reese had practically manufactured this job for himself by promoting the very things he was supposed to discover. Moore stated some of the things he would prove if permitted by the court:
"That on or about August 1st Reese went to one J. M. Wilson, an official of the longshoremen's union, and endeavored to get $10.00 with which to buy dynamite to blow up a certain city dock; that on September 20th the witness gave Percy May, a member of the longshoremen's union, a bottle of phosphorus with instructions to start a fire at Pier 5; that in the month of July the witness opposed a settlement of the longshoremen's strike and when members of the union argued that they could remain out no longer as they had no money, Reese clapped his pockets and said, 'you fellows wouldn't be starving if you had the nerve that I have got. Why don't you go out and get it, take it off the scabs the way I do;' that in September Feinberg had to make Reese leave the speaker's stand in Everett because he was talking on matters harmful to industrial union propaganda; that on November 4th the witness went to the place where Feinberg was employed and left a suit of clothes to be pressed, saying to Feinberg, after he had ascertained that Feinberg was thinking of going to Everett on the following day,"mark the bill 'paid' so I will have a receipt if you don't come back;" that on August 16th, the day before the big dock fire in Seattle, Reese went to the down-town office of the same dye works in which Walker C. Smith was manager and in charge of the purchase of chemicals and tried to get Smith to purchase for him some carbon disulphide to be used in connection with phosphorus; that in the month of November in the Labor Temple, in the presence of Sam Sadler, Reese had said to Albert Brilliant that if the longshoremen had any guts they would go out with guns and clean up the scabs on the waterfront; and that Reese tried to get other men to co-operate with him in a scheme to capture a Government boat lying in the Sound during the progress of the longshoremen's strike."
The court refused to allow the defense to go into these matters so the only showing of the true character of Reese was confined to examination as to the perjury he had committed in his initial sworn statement to the defense.
The sur-rebuttal of the defense occupied but a few minutes. It was admitted that Mr. Garver, the court reporter, would swear that Reese had made an initial statement to the defense counsel and that the same had been taken down stenographically and sworn to. Charles Tennant, captain of the detective force of the Seattle police department, testified to having telephoned to the sheriff's office in Everett on November 5th to give the information that a boatload of I. W. W. men had left for Everett. He did not describe the body of men in any way and had not said that they were armed. This was for the purpose of showing that somewhere between the time that Jefferson Beard received the message and the time it was transmitted to the deputies some one had inserted the statement that the men on the boat were heavily armed. John Rawlings, defendant, testified that no such conversation as that related by Auspos had occurred in the presence of defendant Billings. Thomas H. Tracy denied making thethreats ascribed to him by Reese, and this closed the hearing of evidence in the case.
Outside the courtroom on the day the last of the evidence was introduced there was in progress one of the largest demonstrations of Labor ever held in the Pacific Northwest. The date was May first, and International Labor Day was celebrated by the united radicals of the entire city and surrounding district. Meeting at the I. W. W. hall at 10:30 in the morning, thousands of men and women fell into a marching line of fours, a committee pinning a red rose or carnation on each marcher. Fifteen solid blocks of these marchers, headed by Wagner's Band, then wended their way thru the streets to Mount Pleasant Cemetery and grouped themselves around the graves of Baran, Gerlot and Looney—Labor's martyred dead.
There, upon the hillside, in accordance with his final wishes, the ashes of Joe Hill were scattered to the breeze, and with them were cast upon the air and on the graves beneath, the ashes of Jessie Lloyd and Patrick Brennan, two loyal fighters in the class struggle who had died during the year just passed.
A fitting song service, with a few simple words by speakers in English, Russian, Swedish, Hungarian and Italian, in commemoration of those who had passed away, completed the tribute to the dead.
Nor were the living forgotten! The great crowd drifted from the graveside, but hundreds of them reassembled almost automatically and marched to the King County jail. Standing there, just outside of the very heart of the great city, the crowd, led by the I. W. W. choir, sang song after song from the revolutionary hymnal—the little red song book, each song being answered by one from the free speech prisoners confined in the jail. The service lasted until late in the day and, to complete the one labor day that is as broad as the world itself, a meeting was held in one of the largest halls of the city. At this meeting the final collection for the Everett Prisoners' Defense was taken and at therequest of the imprisoned men one half of the proceeds was sent to aid in the liberation of Tom Mooney and his fellow victims of the Merchants' and Manufacturers' Association in San Francisco.
There remained but the reading of the instructions of the court and the addresses by the counsel for either side to complete this epoch making case and place it in the hands of the jury for their final verdict.
The instructions of the court, carefully prepared by Judge J. T. Ronald, required sixty-five minutes in the reading. These instructions were divided into twenty-three sections, each section representing a different phase of the case. Herewith is presented the first section in its entirety and a summary of the remaining portion:
"Ladies and Gentlemen of the Jury:
"My responsibility is to decide all questions of law in this case; yours to decide one question of fact. With these instructions my responsibility practically ends, your commences. You have taken a solemn oath that 'you will well and truly try and true delivery make between the State of Washington and the prisoner at the bar, whom you have in charge, according to the evidence.'
"There is no escape from the responsibility which has come to you, save in the faithful effort to render a true verdict. Any verdict other than one based upon pure conscience will be an injustice. An honest juror yields to no friendship, nor bears any enmity. He is moved by no sympathy, nor influenced by any prejudice. He seeks the approval of no one, nor fears the condemnation of anyone—save that one unerring, silent monitor, his own conscience. Disregard this whispering voice in yourself and you may fool the public, you may fool the defendant, you may, hereafter, with some effort, even close your own soul to her whispering reproaches and enjoy the ill-earned plaudits of the selfish or biased friend or interest whom you sought to please, but be assured you will not change the truth, you will not deceive justice which, at some time, and in some way, will collectfrom you the penalty which is always sooner or later exacted from those who betray the truth.
"So let me urge that in deciding the issue of facts which is now your responsibility you be guided by these instructions which you have sworn to follow, and by their conscientious application to the evidence in this case.
"Do not permit yourselves to be swayed by sympathy, influenced by prejudice, or moved in the least by a consideration of what might or might not meet the approval or the condemnation of any person or class of persons, or of interest whatever. To do so will be an act alike dishonest, violative of your oath, substituting for a fair and impartial trial an unfair and a partial one. This is an epoch in your lives to which you will ever look back. Be sure that when you do you may face the smiling approval of your conscience rather than its stinging reproach.
"The guilt or innocence of this defendant is a single question of fact to be determined by the evidence alone. If this evidence shows defendant to be guilty, then no sympathy, no desire for approval, no fear of condemnation, can make him innocent; if the evidence fails to show him guilty, then no prejudice, no desire for approval, no fear of condemnation, can make him guilty. The issue is a momentous one, not only to the defendant, who, if innocent, deserves the deepest sympathy, for the accusation made against him is a serious one; but likewise to the public and to society at large, and the tranquility and security of our different communities.
"A false verdict against the defendant conflicts with the purpose and the laws of the State as effectively as a false verdict in his favor. The State has no higher duty or interest than to preserve all its citizens from suffering under unfounded accusations. If, on the other hand, the guilt of the defendant has been shown, a false verdict of acquittal would not only be a breach of your oaths, but it would inflict a grievous wrong upon the State. If a true verdict calls for conviction, the misfortune to the defendant is not inthe verdict, nor in the penalty, but in the fact it was his conduct which makes the verdict true. You alone of all the world, and who now possess all the facts, are therefore responsible for the verdict in this case. The law is not concerned about conviction merely—but it is concerned, deeply concerned, that juries shall conscientiously and fearlessly declare the truth. Whether it be conviction, or whether it be acquittal, a true verdict is justice—a false is injustice."
Judge Ronald followed this lecture on civic righteousness and personal duty with more specific instructions to the jury, of which the following are excerpts.
"In this case you must answer the question—Is this defendant guilty or innocent? * * * Keep constantly in mind this issue and do not go astray to discuss any other of the many issues that may be suggested by or may lay hidden among the great mass of evidence in this case. Whether the Industrial Workers of the World shall or shall not speak at a certain place in the City of Everett is not an issue here. * * * Whether the open or the closed shop shall prevail is not a subject for your consideration.
"Every defendant in a criminal case is presumed to be innocent. * * * You must be satisfied beyond a reasonable doubt of the facts necessary to show guilt before you can convict. * * * You should give the phrase 'proof beyond a reasonable doubt' its full meaning and weight as explained and defined to you in these instructions. On the other hand, you should not magnify nor exaggerate its force and fail to return a verdict of guilty simply because the evidence does not satisfy you of guilt to an absolute certainty. No crime can be proved to an absolute certainty.
"It does not follow because every one of the facts which are disputed between the parties may not be established beyond a reasonable doubt, that there cannot be a conviction. At the same time you will bear carefully in mind that all facts which arenecessary to establish the conclusion of guilt must be proved beyond a reasonable doubt.
"There are two facts necessary to convict this defendant:
(1) That some person on the boat unlawfully killed Jefferson Beard.
(2) That this defendant aided, incited or encouraged such shooting.
"If you are satisfied beyond a reasonable doubt of these two facts, then you must convict, no matter what may be your belief concerning any other question in dispute in this case; if you have a reasonable doubt as to either of these two facts, then you must acquit."
The instructions then went into detail as to the rights of the workers to organize, to bargain in regard to compensation, hours of labor and conditions of work generally, to go on strike, to persuade or entice their fellow workers by peaceful means from taking the positions which they have left, to assemble at public places where such meetings are not prohibited by law and ordinance, and "no person, either private citizen or public official, has any right to deny, abridge or in any manner interfere with the full and free enjoyment of those privileges and any person who attempts to do so is himself guilty of an unlawful act."
After reciting such acts attributed to the workers in this case as were in violation of law, the instructions went on to state that "a sheriff has no authority to arrest any person without a warrant except upon probable cause for believing such person has violated a law of the state; nor has he authority after making such arrest to hold his prisoner in custody for a longer time than is reasonably necessary to cause proper complaint to be filed, and an opportunity given for bail. * * * A sheriff has no right or authority to interfere with or prevent any person from violating a city ordinance, nor has he the right or authority to arrest for violations of city ordinances" unless "the act threatened, or the act done,in violation of such ordinance be at the same time violation of a state law."
The instructions then outlined the scope of criminal conspiracy, stating that it was unnecessary for one conspirator to know all of the other conspirators but that common design is the essence of the charge of conspiracy. The acts of one conspirator become the acts of any and all conspirators. In the eyes of the law the sheriff and the deputies also constituted in this case but one personality, the sheriff being bound by the acts of his deputies and the deputies being authorized by the powers of the sheriff. Also the ordinance dated September 21st, 1916, was held to be a valid one.
"Now whether any of the Industrial Workers of the World have been, prior to November 5, 1916, guilty of encouraging disrespect for law, or of unlawful assemblage, or of riot, is not the question on trial here. They could all be guilty of all the acts or offenses heretofore mentioned, and still this defendant be innocent of this particular crime charged on November 5th, or they could all be innocent of all the acts mentioned, and defendant still be guilty of the main charge here.
"Again, whether the sheriff or any of his assistants have been guilty of any of the acts charged against them is not on trial here. They could all be guilty of all the acts charged and still be the victims of unjustifiable shooting from that boat, or they could all be innocent of any offense, and still be the aggressors and cause of that shooting on the dock wherein Jefferson Beard lost his life.
"One of the questions in this case is the question—Which side was the aggressor on that occasion?
Victims at Morgue. John Looney Hugo Gerlot, Felix Baran Abe Rabinowitz
"In determining who was the aggressor it is your duty to consider all the facts and circumstances surrounding the situation, the relations of the parties to each other, their intentions toward each other, and all the things they did. You will also consider the past conduct of all the parties, any acts of violence or other assaults that may have beencommitted, and any threats that may have been made, and the character as known and understood by each other.
"Therefore, simplify your deliberations and determine first the question: Did somebody on the boat unlawfully kill Jefferson Beard? If somebody on the boat did not kill Beard, then of course Tracy could not be guilty of aiding John Doe to do something which John Doe did not do. But if the State has satisfied you beyond a reasonable doubt that Beard was killed by a shot fired by somebody on the boat, then such killing is either unlawful, in which case John Doe would be guilty of one of three degrees of unlawful or felonious homicide, viz., murder in the first degree, murder in the second degree, or manslaughter; or it is justifiable in which case John Doe would not be guilty. Hence you will render one of four verdicts in this case—
1. Guilty of murder in the first degree, or
2. Guilty of murder in the second degree, or
3. Guilty of manslaughter, or
4. Not guilty.
"It is very desirable that you reach a verdict in this case. The law requires that your conclusion shall be unanimous. It is not required that any one of you should surrender his individual freedom of judgement, but it is well that each of you should have in mind that your true verdict cannot ordinarily be reached except by mutual consideration and discussion of all the different views that may suggest themselves to any of your number. The jury room is no place for pride of opinion. A verdict which is the result of real harmony, or that growing out of open-minded discussion between jurors, and a willingness to be convinced, with a proper regard for the opinions of others, and with a reasonable distrust of individual views not shared by their fellows, is a fair yielding of one reason to a stronger one; such, having in mind the great desirability of unanimity, is not open to criticism. The law contemplates that jurors shall, by their discussions, harmonize their views if possible, but not that they shall compromiseand yield for the mere purpose of agreement. One should not surrender his conscientious convictions.
"And now, ladies and gentlemen of the jury, I commit the case to your hands. Listen to the arguments. Regardless of what may be counsel's recollection of testimony, you must take and follow your own recollection. You are not required to adopt any view which counsel may suggest in argument, but you should give close attention to all they say. Take up your task fearlessly, with but one single aim—to discharge the obligations of your oaths. You have no class to satisfy—simply the dictates of your own conscience."
Taken as a whole the instructions were distinctly unfavorable to the defendant, not because of any particular bias of the judge whose political ambitions might have made him desirous of establishing a record for fairness, but by reason of the fact that the law itself on the question of criminal conspiracy is archaic and absurd, being based upon precedents established when the use of electricity and steam power were unknown, when the stage coach was the fastest means of locomotion and the tallow dip the principal form of illumination. This law, like all other statute law, was created thru the desire of the ruling class to protect property, therefore it contained no element of justice when applied to the modern proletariat, the twentieth century worker stripped of everything but his power to labor.
Following the reading of the court's instructions prosecutor Black made his argument, Vanderveer and Moore for the defense addressing the jury in turn, and Cooley making the concluding plea for the state. This arrangement gave Veitch no chance to turn loose his oratorical fireworks, much to the chagrin of the gentleman who had been so kindly loaned to the prosecution by the Merchants' and Manufacturers' Association.
Black's lengthy address was a whine for pity because of his youth and a prayer for relief from the dire straits and legal bankruptcy into whichSnohomish County had fallen. It is summarized in the following:
"We are at the close of a great trial. A great deal of evidence has been introduced; practically two million five hundred words. From the standpoint of the attorneys who have tried this case the evidence has been very complicated because it had in it a great mass of evidence that was only remotely connected with the real issue at bar. You as jurors have a very simple question to decide in this case.
"Thomas H. Tracy is charged with the crime of murder in the first degree, not that he himself killed Jefferson Beard, but that he, Thomas H. Tracy, aided, incited and encouraged some unknown one to kill Jefferson Beard of Everett, on last November 5th.
"I repeat first that some person on the boat unlawfully killed Jefferson Beard; secondly that this defendant, aided, incited and encouraged such shooting.
"I come before you as the prosecuting attorney of Snohomish County. Owing to the exigencies of politics I was elected to office a few days after November 5th, the time of this catastrophe. Two months and a few days after, I took office and found a man charged with a crime that I did not have the power of prosecution over up to that time. Mr. Webb, then prosecuting attorney, who had started the action and initiated and seen fit to collect some of the evidence, was not able to complete the prosecution on account of the size of the trial.
"I am a young man without the experience that any man ought to have in the prosecuting of a case like this, a case the size of which has never been experienced in the State of Washington, and in many ways an absolutely pioneer case in criminal trials the world over.
"So the State has been hampered in that at the outset a young man, a new prosecuting attorney, has come into office and to him there has come a case that no man could read up concerning, and a large piece of battle—it is the State's contention, a battlebetween hundreds of men on the boat and a large number of deputies on the dock, a battle absolutely and surely initiated by firing from the boat, but still a battle;—a case without parallel in the criminal history of this State or of the United States.
"It happens that fortunately the State has had assistance in this case. The State of Washington, thru its county commissioners, requested the assistance in this case of Mr. Cooley, whom you have all grown to know, a man who formerly for four years was prosecuting attorney of Snohomish County, and who since that time has been associated as assistant counsel in practically all the criminal prosecutions of Snohomish County that have required assistance.
"And in addition to this the State has been fortunate in having, at the request of the county commissioners, the assistance of Mr. Veitch, a young man it is true, but one who thru years of service in the district attorney's office in Los Angeles County had experience in criminal trials, and especially because of his connection with what are known as the conspiracy murder trials in Los Angeles County, and also in assisting the federal prosecution at Indianapolis. It has been necessary in this kind of a case for the State to have assistance.
"Now I told you my friends that I came here as prosecuting attorney of Snohomish County. I am also a deputy prosecuting attorney of King County under Mr. Lundin. After I was appointed I was very unpleasantly surprised by one statement. A little phrase, 'without pay,' so that I don't know whether really I am a deputy prosecuting attorney or not, because I found that in public office a man always likes to see the warrant come at the end of the month!
"You are a jury in this case from King County because the defendant and the other defendants filed an affidavit to the effect that they didn't expect that a jury selected in Snohomish County would give the defendant a fair trial. The State is happy in your selection and knows that you will follow the dictates of your conscience and is likewise confident that youcannot help but believe that Jefferson Beard was killed by someone shooting from the Verona, and that Thomas H. Tracy, alias George Martin, incited, aided and encouraged in that shooting.
"Now, the witnesses on the dock are men of Everett, men of family, men who are laborers, but with families; men who are clerks, with interests in Snohomish County; men who hold some important positions, as lawyers; people with families, people who by residence have established reputation for truth and veracity; men who have established themselves, have made themselves successful, sometimes in merely that they have established a small home, or who have lived in Everett and have made friends and acquaintances. That is the class of men that were on the dock.
"There are only two classes of people who know anything about the shooting. The people on the dock are one set, and the people on the boat are the other.
"The people on the boat, with but one or two exceptions, are men who have established no reputation for truth and veracity, have been successful in the world in no way, even from the standpoint of stable friends, living here and there, unfortunately; perchance, with some of them it is due to unfortunate circumstances and environments, and they have been unlucky, but still they haven't established stable friends in any community.
"Then there are the three boatmen on the boat—and those three men, unprejudiced, unbiased, not deputies and not Commercial Club members, but merely laborers, they know where the first shot came from, and they tell, and their testimony absolutely and entirely contradicts the testimony of the defense in this case from start to finish.
"And when you look at that red face and red hair and that honest expression of big Jack Hogan John Hogan here, and his honest blue eyes, it doesn't seem to me that you can have any more doubt than I have that Jack Hogan saw Tracy.
"Now, these men that come on the stand allconfess they had a common design. Their common design they say, was that about two o'clock in Everett they were going to speak at the corner of Wetmore and Hewitt Avenues, that is their common design.
"The court tells you that the purpose that they admit was unlawful, so Tracy, by the testimony adduced in his favor, was one of the men having a common design for an unlawful purpose. Tracy, regardless of his location, regardless of whether he fired or not, is guilty.
"The sheriff and his deputies could have been guilty of everything claimed against them previous to this and the defendant still be guilty of helping and encouraging someone else to unjustifiably kill Jefferson Beard.
"Under the Court's instructions there were acts done at Beverly Park that were unlawful. There is no question about that. Instead of this being a weakness on the State's part, it seems to me that it is an added strength. Because the I. W. W. used Beverly Park for what purpose? They jumped on it with desire, deeming it a fortunate circumstance because they wanted to inflame men to invade Everett. They jumped on this, the men at the head of the conspiracy, they jumped on Beverly Park because they could use it to inflame their members. How do we know? Their own statements! Their telegrams! 'Advertise conditions and send volunteers.' Volunteers for what? Volunteers for what? When a man represents things and so helps to make men mad he wants these men up there as volunteers for retaliation. And the Court has instructed you that if these men went up there with the purpose of retaliating, they are guilty. Tracy having been one of a common design makes it central, vital, in good conscience as citizens, that you return your verdict asked by the state.
"Any time a murder is committed it is important that prosecution be had and conviction secured. That is always vital from the standpoint of protection to society. The police, the sheriff's office, and the officials of all cities and states of the UnitedStates sometimes forget themselves, I take it, sometimes do things they shouldn't do, sometimes do things they should be censured for, but the fact that they had is no reason that murder is to be excused or justified, because if you did, we would have no society. That is true in an ordinary murder case. That is overwhelmingly true in this case.
"The I. W. W. is an organization that realizes the great truth in combating government. They have stumbled upon an overwhelmingly successful instrument in fighting society. What is that? To commit a violation of the law in numbers, to violate the law by so many people that only a few can be prosecuted and even if they are convicted, the great majority go scott free. They built better than they knew when they stumbled upon the great secret that the violation of a law in great numbers would protect practically all of the violators. And this trial itself is proof of that.
"Snohomish County can ill afford the expense of this one trial; can ill afford the expense of two or three trials after this; would be overwhelmed with debt to convict all the men who are in this conspiracy, if there were a conspiracy it can't do it; most of them are safe from prosecution and they know it; and the only protection that Snohomish County has, and King County has, and the State of Washington has, and the United States has, is that when something happens like this a conviction be secured against a man who is guilty, not because you are convicting all, because you can't, you are helpless—but because that at least is the voice of warning to the men that if you lead an attempt you may be the one of the great number that will be caught. It is important from the standpoint of citizens of the State of Washington to establish the principle that crimes cannot be committed by numbers with impunity, that while it is fairly safe, it won't be absolutely safe. We have no protection. That is the vital part of this case. We have no protection.