With the great amount of work this court has to do and does do, it is almost impossible to avoid error occasionally, even as to the evidence in the case and what it proves. I feel very sure that the court is under a misapprehension as to what the evidence in this case really proves on the question whether or not force was used to compel the defendants to make the confessions attributed to them at the State's attorney's office on the afternoon and evening of June 9 and the early morning of June 10. I therefore feel it my duty to file a dissenting opinion, in which I shall consider just two questions which. I consider very material and decisive. The questions are, first, Did the court err in the admission of the alleged confession of Steuben before attorney George F. Barrett against him? Second, did the court err in admitting *Page 626 such confession, or any portion thereof, against the defendant Fox?
The evidence on the question as to how the confession of Fox was obtained was heard before the court out of the presence of the jury and just after the jury had been empaneled and sworn and before the opening statements of counsel had been made to them. W.A. Rittenhouse, representing the People, stated at the close of that evidence that he had doubts as to the competency of Fox's confession made to Barrett, for the reason that it was shown that Fox thought when Barrett, a former judge of Cook county, was examining him that he was in the presence of the court in a judicial proceeding. The court arrived at the same conclusion, and stated that no evidence of what transpired between Barrett and Fox would be permitted to go to the jury as evidence. As soon as it was determined that the alleged confession of Fox would be excluded and that the court would not then hear the evidence and pass on the admission of Steuben's alleged confession until that question arose on the trial, counsel for Fox made his motion for a separate trial to avoid the possibility of Fox being prejudiced by the evidence of a confession by Steuben, which motion was overruled. The jury were then returned, and after the opening statements were made a number of witnesses were examined, including Barrett, who was examined as to occurrences leading up to the alleged confession of Steuben. The jury again retired, and the evidence as to the admissibility of Steuben's confession to Barrett was heard by the court, which was limited by the court to the sole question whether or not the confession was compelled or induced by threats, abuse and violence permitted by the attorneys representing the People, and by the police of Chicago who were operating with them, or by either of them. Rittenhouse, for the People, again positively stated to the court that they were not going to offer the confession of Fox that was made to Barrett, thereby conceding that his confession was inadmissible *Page 627 because Fox was caused to believe he was testifying to a court making a judicial investigation. The examination then proceeded to determine the question whether or not Steuben's confession was induced by the use of threats and violence, the court holding that if the testimony on that question was conflicting it should be submitted to the jury as a question of fact, and that the court could not pass on the question "unless the evidence was so overwhelming" as to make it a question of law. The court had already held that the People were only required to make a prima facie case that no force or violence was used in obtaining Steuben's confession, and the State used only Barrett to make the prima facie case, and it appears quite clear from the evidence that Barrett had no opportunity to know whether Steuben was beaten by the police after each of several examinations by Barrett because he would not testify as they and Barrett wanted him to testify.
The undisputed evidence upon this inquiry shows that very early in the morning of June 9, just a few hours after the murder with which they were charged was committed, the defendants were arrested on suspicion, without warrant, and were a little later taken to the State's attorney's office in Chicago and were there subjected to repeated separate examinations by Barrett and others, and that at the conclusion of each examination in which they failed to confess Barrett would throw up his hands and with a gesticulation exclaim, with an apparent look of disappointment or disgust, "Take him out for a while." This continued with Fox until about three o'clock A. M. of June 10, when he made his confession, and until about five A. M. of the same day, when Steuben confessed. Repeatedly, after about the second examination, each defendant was taken through the corridor that led from the room in which Barrett was examining them and other witnesses to the library room and from thence into a room next to the toilet, which is described as a room 10 by 18 feet, and is designated in the record as the "dark *Page 628 room," "Miss Heffernan's room," and as "the room next to the toilet." According to one of the State's witnesses, Stewart B. Moss, a police officer, when Barrett again wanted to examine one of the defendants, either Stewart (another attorney assisting in the examination) or Barrett would call for him, and he would then be taken back from the dark room by some one of the police officers and again further examined until the final examinations were made that elicited the confessions. This same police officer, Moss, who was the officer who took Fox back and forth from before Barrett to the dark room and from thence back to Barrett, states that he took Fox into the dark room first about nine P. M. of June 9, and that there was nobody at that time with him and Fox, and that he at first turned the light on and shortly after he got into the room he turned the light off; that it was dark on the outside, and that on each of four occasions when he came back to that room he left the lights out "so nobody would see us there, — so nobody would see him," and that he did not want anybody to know he (Fox) was there. According to the testimony of Steuben and Fox this dark room was the preparation room for their final examinations, which resulted in confessions to Barrett. It was in this room that Fox and Steuben were maltreated, threatened and beaten by the police and told to "come across and tell the truth," according to their testimony. After they had confessed and when the grand jury had convened, about nine A. M. of the same morning, the defendants were taken by the police before the grand jury and instructed to give testimony before that body.
Barrett's testimony, which was submitted as the State'sprima facie case to show that Steuben was not maltreated or beaten at all in his presence, in no way contradicts the evidence of Steuben, as Steuben made no statement or claim that he was beaten or maltreated by the police before or in the presence of Barrett, but that all that was done was in the dark room, to which Barrett distinctly testifies he did *Page 629 not go and did not know what was done there. In addition to Barrett's testimony as to the obtaining of the confessions recited in the decision of the court, it appears from his evidence that he examined Steuben three different times between one A. M. and five A. M. on June 10, and that he may have examined him as early as ten o'clock on the night of the 9th, and admits that he may have said to Steuben that he was lying and that his testimony was moonshine when he denied knowledge of the killing and asked him if he expected to get away with that; that he did not tell him he had the right to refuse to answer his questions, that he was not informed that what he should there state might be used against him as evidence, and that it was not a matter of concern to him whether or not Steuben knew his constitutional rights. He really corroborates in the main all of Steuben's evidence as to what occurred when Steuben was being examined by Barrett, who was a former judge of Cook county and had resigned about five months before such examinations.
Both Fox and Steuben testified that they were repeatedly returned to the dark room after their examinations and were there beaten, kicked and vilified, and threatened with further violence if they did not confess. One police officer whom Fox did not know, asked him if he knew Barrett, who was then just passing while they were in the corridor on a bench, and when Fox said he did not know him and had never seen him before, the officer stated to him that it was Judge Barrett, who was going to cross-examine him, and that he had better come clean. It appears also that when Fox would answer Barrett's questions he would frequently address him, "Your honor;" that Barrett talked to him awhile in the Jewish language, which Fox understood, and told him he had better come clean, because he would have to anyway; that Barrett continually told him he was a liar when he denied knowledge of the killing; and that during the fourth examination policeman Bernacchi or *Page 630 policeman Davern slapped him in the face in the presence of Barrett, and that Barrett said to the officer: "Cut it out; none of that stuff; cut it out." Barrett at no time contradicted Fox in these charges. Fox stated that Davern and Bernacchi were two of the police officers that beat him up in the dark room; that Bernacchi bent down with his knees in Fox's stomach and said to him, "Come clean, you little son-of-a-bitch, or I'll throw you out of the window," and kept him on the floor five minutes, and that Davern kicked him on the shins, and that he was struck from behind by someone else; that he was then taken before Barrett, who began to examine him by asking him, "Do you know anything about it now?" and that he answered that he did not, but said he would say anything Barrett wanted him to say, and then made his statement to him about three A. M. After testifying before the grand jury he went before Judge Wilson in the habeas corpus proceeding and exhibited the wounds and bruises on his head and face and was later sent to jail. He also relates the incident of a reporter handing him a comb, in the presence of Barrett, to comb his hair, which had been very much disheveled by the mistreatment of the officers in the dark room. He further testifies that about five police officers, including Bernacchi and Davern, came into and out of the dark room at the time they "mussed" his hair; that at the time Bernacchi and Davern entered the room he did not see their faces because it was dark but recognized them by their voices, they having spoken to him before they went in there; that he saw at the State's attorney's office twenty or twenty-five police officers between eleven o'clock on June 9 and two o'clock on the morning of the 10th; that while he was in jail he was examined by three doctors, — Drs. Omens and Martusson and one who he learned was the jail doctor, — and in two or three days was transferred to hospital "A" and was there for some time. *Page 631
Steuben testified that they took him to the State's attorney's rooms about 11:30 and he was questioned there for about two hours by Barrett, William Scott Stewart and Ben Samuels and was then taken to the detective bureau and kept until about eight or nine o'clock that evening, where he was not questioned; that he was taken from there to the State's attorney's office, sat on a bench in the corridor for about fifteen minutes and was then taken before Barrett and again questioned about the killing, and not giving satisfactory answers was asked why he did not tell the truth and cut out the "moonshine;" that then he was taken to the library for about fifteen minutes and then taken to the dark room adjoining the toilet by Bernacchi, who questioned him and told him he was lying and that he would be better off if he told the truth, and on replying that he was, Bernacchi also beat him and kicked him and re-questioned him and beat him; that they continued to take him from Barrett's room to the dark room and from there to Barrett's room, where they continued to question him and to beat and maltreat him until three o'clock A. M., and then Barrett told him he already had the truth from Fox and that he might as well come clean. He still persisted in his denials until about five A. M.; that they then brought Fox in, and, seeing that he was beaten up and had a puffed lip and face, he told them what they wanted. He was also taken down on the street to the Winton car and there questioned by Barrett. Afer he had testified before the grand jury he was taken before Judge David on a writ of habeas corpus, and on being given his choice by Judge David of returning to the State's attorney's office or to jail he chose the latter place. His experience in the dark room was similar to that of Fox, and it was so dark in there he could not recognize faces and is not sure who of the four or five men in there, besides Bernacchi, beat and kicked him. He was not beaten or abused in the room where Barrett was, and Steuben did not tell them there what they were doing to him in the dark *Page 632 room, because he thought they knew it. He did not tell the grand jurors that he was beaten up, and was told by an officer in the State's attorney's office he had better not do so. Barrett, when questioning him, would get disgusted because witness would not state what Barrett wanted him to state, and would say at the end of an examination, "Take him out." Steuben testified that he was also examined in jail by the city doctor and the two doctors who examined Fox and was later transferred to hospital "A."
Fox and Steuben were corroborated by Drs. Martusson and Omens as to the fact that they had been severely beaten and maltreated. Martusson is senior member of the staff at Jackson Park Hospital, and testified that he found Fox in a highly nervous condition and appeared like a man who had been terrorized. He had him take off all his clothing and gave him a very careful physical examination. He found a hematoma, or blood-clot, on the top of his head, with a raised swelling about as high and half as large as a small egg; an abrasion behind the left ear and another on the skull on the same side; bruises on the neck below his left ear and bruises on the right shoulder; a swelling and bruises on the left arm; and bruises, abrasions or little cuts in the skin and anterior aspect of the tibia or shin-bone. There were also abrasions and cuts on the mucous membrane on the inside of his mouth and cuts on the upper lip. "The bruises were discernible, and you could easily see one side was bruised though not much swollen yet cut a good deal more than the other side." There was some swelling on the jaw and some discoloration. Steuben, generally speaking, was in better condition than Fox and did not have the extreme nervousness that Fox had. He had bruises on the anterior aspect of both shin-bones and the same kind of marks Fox had, with cuts and bruises on both shin-bones and deep bruises, with swelling, over the right deltoid muscles that round out the shoulders; and on the right side of the chest, at the edge of the ribs, he found *Page 633 a long discoloration or deep bruise. He also had a loose tooth — upper incisor. Dr. Omens corroborated Dr. Martusson in these examinations, but states that he was pretty sure that Steuben's tooth was knocked out or extremely loose and that his lip was lacerated under the tooth, on the inside. Steuben asked him to examine the tooth the morning he testified, which he identifies as the one spoken of. These examinations took place on July 10, and they also examined the defendants on the 11th. The wounds were recently made.
Elvert M. Allen, a court reporter, corroborates Fox as to the mussed-up condition of his hair at one of his examinations before Barrett, by testifying that his hair was disheveled and that witness is the one who gave Fox the comb. He also stated, on cross-examination, that he did not see Bernacchi strike Fox, but he was not asked if he was looking or in a position to see it. Barrett, who was the one who told either Bernacchi or Davern to "cut it out," was not even examined by the State on this question, and it is not denied by the witness that Barrett used these words to Bernacchi or Davern.
George T. Dillon, a newspaper reporter for the Chicago DailyNews, was present at the time of the habeas corpus proceeding before Judge Wilson, and testified that Judge Wilson asked Fox to show him where he had been struck, and that Fox exhibited the high, swollen blood-clot on his head and a cut on his lip, which witness saw, and that Fox's attorney, Joseph T. Herrington, pointed out several bruises. Herrington testified in corroboration of Dillon, and stated that he saw the blood-clot on Fox's head; that Fox had a puffed mark on his right cheek and that his lip was puffed like it had been bruised; that the right side of his face was swollen like he might have received a blow, about the corner of his mouth. He also testified that he thought that Judge Wilson was informed by Dr. Mahoney about the condition of Fox, and that the judge suggested to the State's *Page 634 attorney or his representative that they had better get a physician and have Fox examined. Barrett was present, but he has given no evidence as to Fox's condition or as to other incidents positively testified to by Fox as having taken place in his presence, and neither has any physician testified for the State as to either Fox's or Steuben's condition.
Police officer William Davern testified in rebuttal that he did not at any time strike Fox in the jaw in the presence of Barrett or Samuels; that he was not with Fox on that night and did not strike Steuben at any time; that he did not at any time go into the dark room and does not know what officer was in charge of Fox; that he did not see any marks on Fox's face and did not pay much attention to him.
Five other persons, apparently all police officers, testified for the People. Hugo R. Grate, George S. Horner, Stewart Moss, Thomas J. Mangan and Patrick Knox, none of whom were specifically charged with striking or beating either Fox or Steuben, testified that they did not strike or beat, or see anyone else strike or beat, either of the defendants. Only one of them (Moss) testified that he was in the dark room during the proceedings at the State's attorney's office at the times the defendants testified they were beaten. Knox at one time took Fox into the dark room but was not with him there except for a few minutes, and no one else except he and Fox were in there at that time. Moss was not in the dark room but once, except to take Fox in there, and at that time he and Fox were alone in there for a few minutes. He took him there four other times but did not stop there with him. He does not deny that during the four times he mentions that he took him there three or four other policemen were with Fox, as Fox claims. His denial that he saw no one strike or beat Fox in that room is simply a denial of that which he had no opportunity to see; and that is also the case with the other four officers. Moss and the other four deny striking Fox *Page 635 or Steuben. They are not charged with it. Moss does state that Bernacchi did not go into the dark room and hit Fox while the witness was there and says that Bernacchi was never in the room, but Bernacchi never did deny being in there, but testified that he was "hanging around this room part of the time" but did not strike or beat Fox or Steuben. All five of these witnesses testify that they saw no bruises or wounds on Fox or Steuben, but some of them say that they did not pay close attention to their appearance. Bernacchi also testified, and denied the charge that he hit, struck or maltreated Fox or Steuben at any time or that he saw anyone else do so. No others of the twenty or twenty-five policemen that were there that night, nor Samuels or any other attorney or assistant State's attorney, testified.
The evidence of the defendants that they were beaten by Davern and Bernacchi in the dark room in the presence of two or three others is not specifically denied by any witness for the State except Bernacchi and Davern. No one denies that there were with the defendants in this room four or more persons at the times they testified they were beaten. The State simply makes a poor attempt at proving that the defendants were not beaten up by some of the police there, and it is clear that the defendants, their two doctors, Herrington and the Chicago DailyNews reporter have committed deliberate perjury if the defendants did not show physical evidence that they were beaten up by someone. The State has had ample opportunity to disprove these facts by another doctor who was certainly friendly to the prosecution, and has failed to do so or to show that no third doctor examined the defendants.
Both of these confessions were excluded on a former trial before Judge Kersten and there was no verdict on that trial. The trial court in this case should have passed on the admissibility of these confessions and did not do so but submitted this question to the jury, which was error. The *Page 636 confessions should both have been suppressed and excluded under the evidence in the record, and it was reversible error to refuse to do so. It is true that in passing upon the evidence in this case the interest of the defendants in the result of the suit should be considered, but they are not the only ones who are charged with criminal conduct. The defendants were literally kidnapped by the police and forcibly taken to the State's attorney's office and there held, and were compelled to submit to examinations and to threats, abuses and assaults by the police of the most contemptible character to compel them to confess, if the defendants' evidence is true, without the aid or advice of friendly counsel. No State's attorney has any lawful authority or right to engage in any such proceeding. It is not only a violation of the ethics of his profession, but if such a proceeding is indulged in for the illegal purpose of extorting or forcing a confession from the defendants it is a willful and deliberate violation of his constitutional oath as an attorney at law and as a State's attorney, which he was compelled to take before he could be licensed to practice law or be installed into his office of State's attorney, as well as a violation of the constitutional rights of the defendants. This is also true of every assistant who willfully and knowingly participates in such an unlawful proceeding, and is equally true of every licensed lawyer who participates therein willfully and knowingly, when applied to him as a lawyer. The constitutional oath in this country is still as binding upon the lawyer and public officer as it ever has been, in a legal and constitutional sense, and no officer or attorney should disregard his oath and adopt the theory of the faddists or supposed reformers, who preach that the way to convict criminals is to commit crime in trying them and to disregard utterly the law and the constitution in criminal trials.
The police officers who participated in the beating and maltreating of these prisoners, if they did so, were guilty of the most cowardly assault and battery that it is possible *Page 637 to commit. It is the criminal assault and battery upon a helpless and disarmed prisoner whom it was their duty to treat humanely and have promptly committed to jail pending the investigation by a grand jury or coroner's jury or some other legal body, and the defendants had the right to a speedy and legal investigation, and to the advice of legal counsel if indicted by a grand jury for crime. Every person who knowingly aids, assists, advises or abets such criminal assault is equally guilty with the police who actually committed the same. The police officers, if guilty, are guilty of a willful and deliberate violation of their oath of office, which includes the constitutional oath, if such assaults were committed to compel confessions.
The court should have passed on the legal evidence before it bearing on these alleged confessions, and in doing so should have considered the interest of all parties who testified on the question and have suppressed the confessions under the evidence submitted. The People have not made the proper effort to obtain a real and true investigation of the question whether or not the confessions were voluntarily made. This record shows that such is the case, and the judgment should be reversed and the cause remanded for another trial, with leave to the People to make a further showing on the motion to suppress the confessions, if they shall be so advised. In view of the evidence in the record, every person connected with the transactions leading up to these confessions ought to welcome a full opportunity to show that the charges of the defendants are not true, if that is the fact. It has not been done, as shown by the evidence now in the record.
The confession of Steuben before Barrett in the State's attorney's office was not introduced in evidence against Fox, but Barrett, at the conclusion of Steuben's confession there, had both of the defendants taken down on the street to the Winton car, in which Steuben confessed that he and the other parties implicated with him had ridden on the night *Page 638 of the murder, and there further examined Steuben in the presence of Fox. In this examination Steuben testified that that was the car in which they had ridden, and Barrett had him get into the car and sit in it, and then asked him, in substance, if it did not fit him in the same manner as it did when the shooting took place. Other questions were asked him concerning the car and the incidents of the shooting, and this part of the examination was offered and given in evidence against Fox also, the court holding that while the examination in the State's attorney's room was not competent, the testimony at the car was. This was after Fox had made his confession and while he was under the same influence of fear and impressed with the full belief that the examination was still a judicial examination. No part of this examination was admissible against Fox.
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