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CHAPTER XX.
The Denouement
Clifford Tried For His Life – Alibi Testimony – Attorneys Erwin and Anderson Win New Laurels – "Not Guilty" – Hugh O'Donnell at the Bar – The Homestead Leader as a Reporter and Peacemaker – Weak Testimony for the Prosecution – Major Montooth Ridicules the District Attorney's Substitute – O'Donnell Acquitted – The Carnegie Lawyers Abandon the Field – Berkman's Accomplices Disposed Of
ON February 2, 1893, Jack Clifford was put on trial before Judge Stowe, on an indictment charging him, jointly with Hugh Ross, Hugh O'Donnell, Burgess McLuckie and others, with the murder of Detective T. J. Connors. The counsel on both sides were the same that appeared in the Critchlow case, with the exception that W. S. Anderson, an eminent criminal lawyer of Youngstown, Ohio, was added to the side of the defense. The jury selected was as follows: John Erichson, J. L. Hammitt, Andrew Hepp, Jr., W. G. Bigham, Henry Lloyd, H. A. Price, John Stauffer, D. C. Mayer, Andrew Donnelly, T. C. Rafferty, John M. Hamilton and Patrick Kearney.
Early in the proceedings, Judge Stowe served notice on the defense that he would not permit any line of argument or cross-examination tending to justify the killing of the Pinkertons. No matter who the invaders were or what their purpose, the court held, the killing was not justified. Mr. Erwin engaged in a tilt with the court over this ruling, citing the mode of procedure in the Critchlow case as precedent, but was summarily silenced.
The testimony offered by the prosecution differed little from that given against Critchlow. Pinkerton detectives identified Clifford and swore to having seen him in the forefront of the crowd that gathered to prevent the landing of the Pinkerton forces in the mill yard. Clifford was armed with a pistol, they said, and was active in building barricades and later in arranging the surrender. It was he that waved the white flag from the river bank and, in company with O'Donnell and others, guaranteed protection to the Pinkertons, if they would lay down their arms and come on shore. He had also aided in caring for the wounded and getting them off the barges.
George L. Johnson, a mill-worker, testified to having seen Clifford carry what appeared to him to be a powder canister in the direction of the brass cannon which was mounted in the gas house. Witness admitted that he had been employed by the Carnegie Company and had gone out on strike, but returned to work at his old job on July 5. He took no part in the fight with the Pinkertons, but was merely a spectator. This colloquy followed:
Mr. Brennen. – "You made no effort to stop it?"
"No, sir."
"You were there considerable time and did not attempt to spike the cannon?
"No, sir; I did not."
An objection to such cross-examination was raised by the prosecution and sustained by the court.
Mr. Erwin. – "Your honor, I think if this witness did not withdraw from the scene of the disturbance he too was a rioter and an accomplice, and as such his evidence would have to be corroborated?"
The Court. – "No, it would have been unhealthy for him to have interfered and the objection is overruled."
Robert Pollock swore that he saw Clifford at the pump house throwing bottles filled with ignited oil at the barges, and also at the fire engine pumping oil through hose while other men were throwing lighted waste in the stream of oil flowing towards the barges.
C. S. Capehart, a clerk, had seen Clifford throwing dynamite, and William J. Henderson had seen him distributing stick dynamite to men who walked to the bank and threw the missiles at the barges.
As in the Critchlow trial, the defense set up for Clifford rested entirely on alibi testimony, his counsel undertaking to show that he was asleep and knew nothing of the fight until after Connors was shot, and that his part in the trouble of July 6 was confined to an attempt to save the Pinkertons at the risk of his own life.
Captain O. C. Coon, Charles Mansfield, of the Homestead Local News, Andrew Soulier and others, stated that they had witnessed the opening of the conflict between the Pinkertons and the workmen and that Clifford was not among the combatants.
Mrs. Annie Malloy, a widow residing in Mifflin township about two miles from the scene of the disturbance, swore that Clifford slept at her house on the night before July 6, and that she did not waken him until about 11.15 A. M. on that day. Her statements were corroborated by her daughters Maggie and Dora, the former of whom was said to be Clifford's sweetheart. Additional evidence sustaining the alibi was given by Mrs. Riley, with whom Clifford boarded, Constable Charles Stewart, President Garland, of the Amalgamated Association and P. H. McEvey, Vice-President of the Association.
Determined efforts were made by Attorney Erwin to show by witnesses that the crowd which gathered on the river bank to meet the Pinkertons was there for a peaceable purpose and that the Pinkertons were the actual rioters, but the prosecution objected to testimony of this character and its objections were sustained.
The closing speeches for the defense, delivered by Messrs. Erwin and Anderson, were masterpieces of forensic eloquence, and they were heard by a gathering such as has rarely assembled in a Pennsylvania court room. Legal practitioners, young and old, were there to watch the climax in this struggle of legal giants. Labor leaders sat side by side with capitalists. The classes and the masses were alike represented, and observed with equally keen interest the closing scene of the drama which, for all they knew, was to end in a tragedy. The prisoner himself was perhaps the coolest person in the throng. His nerve remained unshaken to the last.
After Mr. Robb had made his address for the prosecution, in the course of which he characterized the battle at Homestead as "the most fanatical piece of barbarity ever witnessed," Mr. Erwin spoke. He said, in part:
"At this time a grave responsibility rests upon me, for it now becomes my duty to address your conscience. It is a serious duty, your honor, (turning to the bench) to judge your fellow men's conscience. I am a stranger among you, but I do not fear your crowd, your array of lawyers or your judge, but I do fear my God. I am an officer of the court. I must obey it. I will obey it. I will walk in the line which it sets. We are here to try a citizen of Pennsylvania, born here, for taking the life of a man who, twenty-four hours after landing on your soil, was carried wounded from the boat with his smoking rifle in his hands. Your citizens ask me to ask you if you will believe these men who shot down McCoy and others of your citizens, or those self-confessed red-handed murderers. I stand here, and by the spirits of your dead citizens shot from your mills, I appeal to you for justice. I stand before a jury of Pennsylvania kings; there are no kings in Pennsylvania but the jury. There is no just adjudication but the jury box. It was the discovery of ages – to find some body wherein the conscience should be free.
*****
"Now the duty of the commonwealth is plain in this case. It must convince your minds and your consciences that the defendant is guilty. Who says this Pennsylvania boy killed Connors? Nobody. They want to say and want you to say a great riot was in progress. I deny it. A riot is some act done by several persons unlawful in its character. I deny that there was any riot on the shore that day; the state does not prove that the defendant had a gun in his hand that day. They do try to prove by one witness that he had a revolver in his hand. The doctor testified that the wound that killed Connors was a rifle bullet. Then how can they accuse the defendant of the crime? They first (the state) must prove to you that there was a riot there that day and that Clifford was there, participating in that riotous proceeding, either aiding or abetting. They offer us Pinkertons – Pinkertons to a Pennsylvania jury, gentlemen – who came into this state with guns, who are murderers of your citizens, making their children orphans. One of the attorneys for the prosecution, in his fervid manner, stigmatized that gathering of Homestead people as anarchy. I say that invasion of the Pinkertons was the highest evidence of anarchy. You saw these little Carnegie clerks come here and testify that they had gone behind these barricades spying around, while bullets, as they say, were flying fast and furious. That is simply absurd. It would have been the highest act of bravery. It might be so, but it is not reasonable and I would stigmatize it as a lie. It is a tenet of the law that it is better that ninety-nine guilty persons should escape than that one innocent man should suffer. Will you believe the sheriff who would try to pull the wool over your eyes and endeavor to launch this defendant into eternity? Will you believe the testimony of the defendant or this red-handed Pinkerton? No, this is not a question between labor and capital, and it amused me to have the learned counsel on the other side assert it. It is claimed by the prosecution that Clifford was at the landing firing at these men when they landed; that there was a cessation for four hours after. I deny this, for witness after witness for the prosecution went upon the stand and swore to the contrary. What is the purpose of this move by the prosecution? It is simply a trick; a pure trick of the law to show that there was a cessation of firing which would permit the people of Homestead to withdraw. There was no cessation, but these Pinks poured out a continuous fire upon these defenseless people on the hillside from port-holes cut in the barges. Self-defense is a cardinal principle not depending upon the law of the state, but upon God. It does not depend upon man. Oh! how weak is that attempt of man to try to prove wrong that which God has implanted in every man. That old doctrine that a man must retreat from a man with a sword or a stone in order to preserve the peace, has been swept away by the introduction of the Winchester rifle. Can you show me a man who can retreat from a fire of 300 rifles? Just so long as you can show me that there is no possibility for them to escape from that deadly fire, just so long do I contend they had a right to return that fire. There is another point of the prosecution to prove as an evidence of riot the fact that these people were on the Carnegie property and were using vile language. I deny that this can be shown as riot."
Attorney Burleigh – We don't attempt to show it.
Mr. Erwin – I don't know what you don't attempt to show.
Attorney Erwin then read the law in definition of riot.
Continuing he said: "There is no proof here that they were assembled as riotors; not the least scintilla of such a gathering. But on the other side I will show a riotous gathering."
Mr. Burleigh – We object. Your honor has already ruled against such proceedings.
Court – Yes.
Mr. Erwin – I know your honor has, and I therefore offer an exception that you will not permit me to speak of it. I will not speak of it. As I understand, Justice is represented blindfolded, with a scale in her hand equally weighing in both pans and with a sword in her hand. It is a sad thing that one of her exponents should —
Court – Stop that. I won't allow any such line of argument.
Mr. Erwin – I am limited by the court and can't discuss the material necessary to be introduced in this case, but I will say that, through the objections of the district attorney, we have been denied a fair trial for our client.
Attorney Anderson followed Mr. Erwin. After outlining the case in a few graphic words, he said:
"Mr. Robb has attempted to tell you while he depicted that horrible act of the people on the bank that there was another side to that story. He forgot to tell you that a man from a foreign state raised and leveled his rifle and in spite of earnest pleadings shot a young man down. He forgot to tell you that not a shot was fired from the river bank until that young man lay weltering in his life blood. I will try to show you that the trouble did not come from the men on the shore, but from the men in the barges sent there. I want to see, and so do you, what the commonwealth of Pennsylvania wants to prove. It does not claim, because there is no evidence to prove it, that Jack Clifford fired that shot that killed Connors. Because Clifford was there they want to hold him responsible for an act committed by another party. Before they do it they must prove that he was acting and assisting those men to acts of violence. It matters not what was done after 12 o'clock. It matters not if he threw that dynamite or the can of powder. Because before that you must be convinced that Jack Clifford was there when Connors was shot. You might wonder at that; that it is not a crime to throw burning oil or dynamite, but the prosecution specifies a particular charge against Jack Clifford. They claim that he was on the bank of the river in the forenoon when Connors was killed. How have they proved it. Let us look at the forenoon. They prove it by three detectives and three persons residing around Homestead – but six witnesses; purely identification. Three of these men saw Clifford before that morning. It is well for the jury to consider these men and the prisoner. Men gathered from the slums of the cities of New York, Chicago and Philadelphia; men without employment, men without character, men who can be impeached by their testimony. Suppose a difficulty arose in Chicago and a person came here to employ a body of men to go there and suppress it, what sort of men would go there? Would a lawyer have the cinch? Oh, no. Would the banker leave his duties? Oh, no. Would the business man? Oh, no. But the idlers – the scrub of your city – would be the ones who would go. Then I say to you is this not sufficient to show the character of these people who invaded your state and are attempting to swear away the life of Jack Clifford? Upon whose testimony is this crime to be fixed upon Clifford? By three Pinkertons who, in the excitement of that battle and having never seen him before, swear that they saw him there. How do they prove it? By, as they say, a pink shirt on Clifford. Think of it, looking out in a crowd of 500 people and picking out a man with his coat buttoned up, could they be so collected in their thoughts as to distinguish him by a small portion of a pink shirt visible? I say they never did identify him there. But they did not fix this point of identification until brave Jack Clifford, in spite of the hail of bullets, went down and saved these men's lives. It was then, if at all, this pink shirt identification was fixed in their minds. These brave, true, honest men of your community with as keen perceptions as these Pinkertons, were in that boat, and yet they come on the stand and swear they did not see Clifford there. Captain Coon, who knew Clifford for years and was standing at the gangway watching what was going on, swears that Jack Clifford was not there. Then again, there is the old man Gray, a watchman at that mill, with an eye as keen as any Pinkerton's, who swears that Jack Clifford was not there that morning. Then, I say, is it just in this commonwealth where a man is on trial for his liberty and his life, that the testimony of reputable witnesses of your state is of no more weight than that of the Pinkertons? I know not what effect the testimony of these employees may have upon you; but I do know that the employer has held the lash over his employees and forced them to testify in their interest. I do not know whether it has been done in this case."
Here the speaker discussed at length the testimony offered to establish an alibi for the prisoner and begged the jury to weigh carefully in the balance the statements of the opposing witnesses bearing on the subject.
In conclusion he said:
"The life and liberty of Jack Clifford are as dear to him as yours are to you. There may be some one who looks to him with an interest. There may be a gray-haired mother depending upon him, and there is no love like a mother's. That mother is waiting for your verdict. It is better that ninety-nine guilty escape than one innocent shall suffer. I ask at your hands justice for Jack Clifford. I ask it upon the oath you have sworn faithfully to fulfill and I ask it in the tears of his mother. Gentlemen, I leave Jack Clifford in your hands."
Judge Stowe's charge was a plain statement of the law in the case, without the least tincture of bias one way or the other.
The jury occupied less than two hours in deliberation and brought in a verdict of acquittal. Clifford was then remanded to jail to await trial on the other indictments found against him.
The import of the verdict was unmistakable. It meant that, for the second time, the people of Allegheny County, speaking through their representatives in the jury box, refused to be governed by the letter of the law in the matter of punishing the men of Homestead as rioters and murderers, and that the continuance of the prosecutions would be a waste of time, energy and money. Such was the construction generally put upon it, and most probably the Carnegie Company and its counsel formed the same judgment. Nevertheless, the district attorney announced that every one of the Homestead cases would be brought to trial and as an earnest of sincerity, Hugh O'Donnell was brought forward to face a jury of his peers on February 13, the fifth day after Clifford's safe deliverance.
The young leader looked pale and thin as a result of his imprisonment, but his eye was as clear and his voice as firm as on the day when he marshaled the fighting men at the barricades, and there was no sign of flinching in his demeanor as he stood up to enter his plea of "not guilty."
The attorneys engaged in the case were the same that served in the preceding trials, excepting that Major E. A. Montooth and Mr. John F. Cox relieved the counsel who had previously taken the most active part for the defense. The following jurors were selected: Fred Vogel, William Richardson, Charles Beuchler, John Sproul, M. J. Byrne, Henry Brooker, A. C. Flood, Henry Eisenhauer, John McGann, John Geisler, Peter Stragen and William Dramble.
The case for the prosecution differed little from that advanced against Clifford and Critchlow. Pinkerton detectives, sheriff's deputies, mill clerks and reporters repeated the old, old story of the events of July 6, while Mr. D. F. Patterson, who conducted the direct examination as a substitute for the district attorney, elicited from each statements showing O'Donnell's ostensible participation in the battle.
The line of cross-examination pursued by the defense showed that the intention was to prove that O'Donnell was present at the battle as a newspaper correspondent, and that, when he interfered actively, it was in the capacity of a peacemaker. Several newspaper men testified that the defendant was known as a correspondent of the Tri-State News Bureau and of various daily papers, and that, in a spirit of professional fraternity, he had taken care of the reporters during the fight and secured for them a convenient headquarters of observation in the cupola of the mill. Only one out of a dozen reporters examined specifically incriminated O'Donnell, and the evidence of that one was vitiated by the knowledge that he had sold out to the Carnegie Company at the beginning of the Homestead trouble and had acted throughout as a spy.
The prosecution could not have made a weaker showing, all things considered, and the work of the other side was, therefore, comparatively easy.
Captain O. C. Coon, who accompanied O'Donnell to the river bank on the morning of July 6, was the star witness for the defense. O'Donnell, he said, went to the scene of the trouble for the express purpose of preventing bloodshed, and used every effort to check the combatants even to the extent of pushing angry men back from the water's edge after the firing had started. The witness had also seen O'Donnell, on the day after the surrender, rescue from the hands of a mob of strikers a poor wretch who was supposed to be a straggler from the Pinkerton forces.
Dr. John Purman testified in the same strain. He swore that O'Donnell came to his office with three wounded men on the morning of July 6. A crowd gathered on the street without, and O'Donnell exhorted them to go peaceably to their homes and avoid going to the mill-yard. Later in the day, witness met O'Donnell on the street. A crowd surrounded the young leader, cursing him, and some one said, "You are a – of a leader, staying away from the mill." O'Donnell answered, "There are no leaders; everyone acts for himself. If you want to do me a favor you will stop this and go to your homes."
Numerous other witnesses gave testimony corroborative of the assumption that the defendant had taken no part in the riot other than as a law-abiding citizen anxious to preserve the peace. O'Donnell's wife was placed on the stand, but her evidence was unimportant.
After the attorneys for the defense had practically won their case, it was decided to let O'Donnell testify in his own behalf. There was some doubt about the prudence of this move, and that it was not without foundation was shown by the difficulty which O'Donnell experienced in escaping damaging admissions.
In his direct examination by Mr. Brennen, O'Donnell told a straightforward and impressive story. He told of his residence of seven or eight years in Homestead, his newspaper correspondence and other personal matters, and then went on to describe, in graphic terms, his doings on the day of the riot. On that eventful morning, he said he had gone to the river bank, arriving just when the gang-plank was being run out from the barges. He begged the Pinkertons not to land and not to shoot, reminding them of the presence of women and children and the certainty of wholesale loss of life if violence should be resorted to. After the first skirmish, he had gone to the Postal Telegraph offices and notified the Mercy and South Side Hospitals to send ambulances. If he had had only a few minutes more time to gain the bow of the barges before the fighting began, not a shot would have been fired. In no manner had he aided or abetted the trouble which occurred that day, nor did he at any time encourage the use of violence in preventing the introduction of non-union men into the Homestead mill.
Mr. Patterson, in his cross-examination, tried to extract from O'Donnell the admission that the workmen maintained an armed military organization, but was unsuccessful. He managed, however to force the defendant to name some of the men who were among the combatants on the river bank.
Attorney Robb closed for the prosecution, in an address which was mainly devoted to picturing the trouble at Homestead as a revolution conducted by a band of assassins, thirsting for Pinkerton blood. He referred to Hugh O'Donnell as having been summoned by a whistle signal to "marshal his standing army and begin a battle to the death."
Major Montooth closed for the defense. He contended that the substitution of Mr. Patterson, the attorney hired by the Carnegie Company, in the place of the public prosecutor was sufficient reason why Hugh O'Donnell should be acquitted. Mr. Robb interrupted to ask the court if this was good law. Judge Stowe answered in the negative. Nevertheless, the shaft had been too well aimed to miss its mark because of this interference, and the point made by Major Montooth was undoubtedly appreciated by the jury.
Judge Stowe charged the jury briefly and to the same effect as in the Clifford case. The jurors stayed out from 7 o'clock in the evening until 9:30 o'clock on the next morning. When they filed into court there was nothing in their faces to indicate whether they brought good or bad news for the defendant. O'Donnell was quite cool and collected, nodding pleasantly to his wife and niece when he was brought in from the jail, and betraying no sign of emotion except a slight heaving of the chest at the moment when the foreman of the jury drew the sealed verdict from his pocket. "We find the prisoner not guilty," were the words that rang out upon the death-like stillness of the court-room – welcome words to almost everybody present. A murmur of approval was heard, but was hushed when the court officials rapped for order. The jury was dismissed without comment. Then O'Donnell, with tears of joy coursing down his cheeks, turned to his faithful wife and embraced her tenderly, while friends thronged around to proffer their congratulations. O'Donnell was recommitted to jail, pending a hearing on the remaining charges against him, but was shortly afterward released on bail. His was the last of the Homestead cases brought to trial. Realizing that it was impossible to obtain the conviction of any of the Homestead men, the attorneys for the Carnegie Company made overtures to their opponents which resulted in the dropping of all prosecutions on both sides. Ex-Burgess McLuckie protested vigorously against abandoning the case against H. C. Frick, in which he himself was the principal prosecutor, but his protest was overruled and, aside from the trials of Dempsey and Beatty, Homestead was heard of no more in the criminal court.
The anarchists, Carl Knold and Henry Bauer, whose arrest in connection with Berkman's attempt on the life of Mr. Frick was mentioned in an earlier chapter, were brought to trial a few days before Hugh O'Donnell on indictments charging them with conspiracy and with being accessories to Berkman's crime. It was shown that Berkman was harbored by Knold at the residence of Paul Eckert, in Allegheny City, a rendezvous for anarchists; that the anarchist circulars distributed at Homestead were printed at Eckert's and taken to Homestead by Bauer and Knold, and that the two defendants had counseled and guided Berkman in his assault on the Carnegie chairman. Berkman was brought in from the penitentiary to testify, but proved a recalcitrant witness. The solitary sensational feature of the trial was a speech delivered by Colonel W. D. Moore, counsel for the defense, in which he lauded the doctrine of anarchy and traced its origin back to the Redeemer of Mankind. Judge Slagle, in his charge to the jury, expressed profound regret at the enunciation of such objectionable views by a member of the legal profession. Bauer and Knold were found guilty on both indictments and sentenced five years to the penitentiary. At the same time the rioters arrested at Duquesne during the strike at that place were sentenced to the work-house for terms ranging from two to six months.
