On the night of December 11, 1926, Birger, Newman, and Ritter called him and his brother into a room at Shady Rest and closed the door.
“We’ve got a job for you two boys and it’s got to be done tomorrow,” the gang leader announced.
Art Newman asked Harry if he had ever killed anyone.
“No,” the boy answered, “I never had enough against anyone to kill them.”
Birger broke in. “You are the boys to kill Joe Adams. He don’t know you and the law won’t suspect you. What I want you to do is this. Go to West City and leave your car about a block from Joe Adams’s house. Then go up to the front door and knock. If Carl Shelton, Joe Adams, or Ray Walker come to the door, shoot, and don’t stop to ask questions. If anybody else comes to the door, ask for Joe. If they say he’s not there, stick around in the neighborhood and watch the house.”
They sent for Ray Hyland. “Jew,” Birger said, “we want you to drive a car tomorrow.”
“Why, that Jew ain’t got guts enough to kill anybody,” Newman taunted. “He wouldn’t even drive the Chrysler that bombed Joe Adams’s house.”
“What do you say, Jew?” Birger asked.
Hyland laughed. “I don’t know, Charlie. I’ll think it over.”
Harry wanted to go home that night. Birger objected, but finally allowed him to go to Benton, where he stayed with Pearl Phelps.
The following morning, Thomasson continued, Elmo and Hyland came after him and the three drove to Shady Rest. He described, as Rone had, the poisoning of the bullets and the writing of the decoy note. In the remainder of his testimony, he repeated, substantially, the confession he had made in April.
As Thomasson left the stand, after a futile effort by the defense to shake his testimony, Hyland smiled. Newman’s face was expressionless. Birger yawned, but those close to him heard him mutter, “Damn,” and saw that beads of sweat stood out on his forehead.
On the morning after Thomasson’s appearance the state completed its case and the judge declared a recess until afternoon. Attorneys for the defendants used the time for a conference. Again Newman showed the depth of his animosity toward his former friends. He would have nothing to do with his codefendants, he announced, and he would not confer with their attorneys for the purpose of making a joint defense.
Although upset by Newman’s attitude, the lawyers for the defense proceeded, after the recess, to make their opening statements prior to putting the defendants on the stand in their own behalf. R. E. Smith, representing Birger, asserted that his client had not stopped at Shady Rest on the night of December 11, and that his peregrinations on the following day, when Adams was killed, were for the sole purpose of tracking down Carl Shelton. Hyland had driven the car for the Thomasson brothers, his lawyer admitted, but had not even an intimation that they planned to commit murder. Newman, according to W. F. Dillon, whom he had retained, was implicated only because he had met the killers after they had done their work. The meeting, he asserted, was accidental—Newman had run into them by chance while he was delivering gin to one of Birger’s customers.
At the conclusion of the opening statements, Newman told his attorney that he wanted to speak to him in private. The two men retired. Dillon soon emerged, obviously perturbed, and called a conference of his colleagues. He related what Newman had just revealed to him—that the little gangster intended to take the stand and tell the full story of the Adams killing. Newman had added that his testimony would be corroborated by a confession that he had made to John T. Rogers on the way back from California—a confession that Rogers, by agreement, had kept secret.
One of Birger’s lawyers immediately filed a motion for a continuance, contending that the gang chief’s counsel should have time to prepare to meet the statement that Newman was expected to make.
The following day Birger’s lawyers supported the motion with heated arguments. The State’s Attorney resisted with equal vehemence. Judge Miller denied the motion. Then he called on Birger’s counsel to introduce their witnesses. Afraid to put the gang leader on the stand until they knew what Newman would say, they announced that they would waive evidence in chief but reserve the right to introduce evidence in rebuttal, thus saving Birger’s testimony until the other defendants had given theirs. Hyland’s lawyer made the same announcement. So did Newman’s.
Again the judge asked the attorneys for the three defendants to present their evidence; again all waived. The case, therefore, would go to the jury on arguments only. Art Newman was satisfying his hatred of Birger at the risk of his own life. Spectators who had expected to hear the gangsters testify against each other stared in amazement as they watched the defense lawyers try to wriggle out of the net that the state had thrown around the prisoners. Observers saw, or thought they saw, fear in Birger’s eyes; Newman’s face semed to take on added hardness. Only Hyland maintained the smiling bravado that had characterized his manner from the beginning.
Thus the trial became a battle of words. In that contest Assistant State’s Attorney Glenn made the opening move. Fearful that the defense might waive arguments, as it had waived the right to present evidence, he set out to summarize the entire case of the prosecution. For ninety minutes he paced back and forth before the jury box, waving his arms, pleading, shouting. Long before he had finished, his shirt was wet with sweat, his collar a sodden rag.
Repeatedly Glenn emphasized the fact that the Thomassons were boys.
“Think of it, gentlemen,” he thundered, “Newman thirty-eight years old and Birger forty-four years old forcing two orphan boys, one seventeen years old and one nineteen years old, to go out and do murder for them! They thought the boys would go out and take the fall for the murder, and that the law would never find out who planned it.
“Who could be more guilty of murder,” he wanted to know, “than these men who made two orphan boys do the killing instead of doing it themselves?”
Reminding the jury that a witness had testified that Newman had said to Elmo Thomasson: “You do this and the law can’t take you from under the arm of Charlie Birger,” and that Elmo had died at Shady Rest, Glenn shouted:
“If that orphan boy who had no mother, no father, who depended upon Charlie Birger, gave his life, and let Birger send his soul to hell, what are we going to do with men like this?”
That question he answered himself: “Hang the conspirators by their necks until they’re dead!”
Following Glenn, two of Birger’s lawyers spent the entire afternoon attacking the credibility of the state’s witnesses. On the next day, however, Hyland’s counsel, H. R. Dial, took a new tack.
“Is it blood you want?” he asked, facing the crowded courtroom. Turning to the jury he said quietly: “I know that back under the old Mosaic law it was a tooth for a tooth and an eye for an eye, but even in those days they didn’t take three lives for one.
“If you find these men guilty of crime,” he continued, “why do you have to hang them? Won’t confinement in the penitentiary satisfy you? Do you have to have blood? I thought we were trying to stop the shedding of blood in Franklin County and Williamson County.
“When I finish,” Dial concluded, “nothing more can be said for Ray Hyland.… Gentlemen, I ask you to deal with him according to your human judgment, and then trust your God, your Judge, to deal likewise with you.”
That afternoon Dillon made a dramatic appeal, on Newman’s behalf, for leniency. After assailing young Thomasson’s testimony as that of a man motivated by hatred, he tried to break the force of the plea he knew the State’s Attorney would make.
“He is going to dope you gentlemen,” he warned the jurors, “into signing a death warrant for these men to hang until they are dead, dead, dead, until their tongues stick out of their mouths, and they hang suspended in the air.”
Hanging, Dillon pointed out, had been abolished by the Illinois legislature at its last session, and hereafter men who committed capital crimes would be electrocuted. But the penitentiary offered an even more humane form of pun
ishment.
“If you have to find these men guilty,” he begged, “give them some humane punishment, so that when the end of time comes, and the lightning strikes, the hills crumble, and the fire rages, as the pearly gates open we may meet these men, take them by the hand, and say that we have forgiven them.”
R. E. Smith, Birger’s chief counsel, concluded for the defense. Thomasson and Rone, he charged, were perjurers; the defendants were their victims. Then he, too, made a plea for leniency.
“Thomasson didn’t hang,” he shouted, “and he is the confessed murderer!
“If I hand you a pistol,” he asked, facing the men in the jury box, “would you kill Birger as he sits there? If you wouldn’t, would you ask the sheriff to do it? In the county to the south of us they hang men, and hang men, and hang men, and more and more murders are committed.”
Smith turned to Birger and held out his hands. “Charlie, in a few minutes your life is going to be taken from my hands and given to these twelve men.”
Then to the jury: “Gentlemen, Birger’s fate rests with you.”
It was Saturday morning when State’s Attorney Martin rose to conclude the case. He reminded the jurors of their admitted willingness to administer the death penalty, and warned them against the pleas for sympathy that counsel for the defense had made. With Smith’s attack in mind he defended Thomasson, the prosecution’s star witness, but declared that without one word from him all three men would have been convicted of the Adams murder.
Then he swept into his conclusion:
“I ask you, and the people of the state of Illinois are asking you through me, that you return a verdict of guilty in the case of Charlie Birger, and fix his punishment at death. And I ask of you the same verdict as to Art Newman and Ray Hyland.
“I see in your verdict the passing of the rule of the machine-gun gang and the establishment of the rule of the law. I know you men will say that the gang war has no place in this part of the state of Illinois, and that the gunman and gangster has no place in Franklin County.”
Early in the afternoon the case went to the jury.
Twenty-four hours later word spread through Benton that a verdict had been reached. Boys and girls, men and women, all in unaccustomed Sunday clothes, headed for the courtroom and filled it to capacity before the judge called for the jury. As the twelve men filed in, eyes red from lack of sleep, their set faces and their unwillingness to look at the defendants forecast the verdict they were about to announce: death for Birger, life imprisonment for Newman and Hyland.
The three gangsters sat silent and impassive. As the verdict for Birger was announced, his sister uttered a faint cry. (Mrs. Birger and the children were not present.) Mrs. Newman sighed and appeared to be relieved. At first no one seemed to be concerned with Hyland, but when the three men were being led from the courtroom, a large woman pushed through the crowd, threw her arms around him, and burst into tears.
“Mother, you shouldn’t have come,” Hyland said.
The guards moved rapidly with the prisoners to prevent a repetition of the scene.
Birger’s attorneys lost no time in filing an appeal for a new trial. In denying it Judge Miller read the condemned gang-chief a lecture in which he pleaded with him, for the sake of his children and in atonement for the evil he had done, to help the authorities clear up the crimes as yet unsolved. Then he sentenced him to die on the gallows between the hours of ten a.m. and two p.m., October 15, 1927, concluding with the ancient formula: “May God have mercy on your soul.”
Birger gulped, blanched, and asked permission to say a few words. Speaking almost incoherently, he denied that he had ever aspired to be a gang chief or that he had wanted to kill, and blamed Art Newman’s perjuries for his plight. His attorneys announced that they would appeal to the Supreme Court.
Newman and Hyland, glad to have escaped the death penalty, began serving their sentences. In mid-August, while Birger sat in his cell awaiting the outcome of the legal maneuvering that could prolong his life, if not save it, Sheriff Coleman of Williamson County announced the solution of one of the crimes to which Judge Miller had referred.
Almost a year earlier the charred body of Lyle Worsham, known as “Shag,” had been found in the ruins of an abandoned house fifteen miles south of Marion. According to a statement by Coleman (and at the subsequent trial of Dungey, Booher, and Thomasson the prosecution’s witnesses gave similar testimony, although the three were acquitted), Worsham had been seen a few hours earlier at a resort in Zeigler in the company of Fred Thomasson, an older brother of Harry and Elmo, Joe Booher, and Harvey Dungey—all Birger gangsters. Coleman had been hunting for Thomasson and Booher ever since. Now he had them in the Williamson County jail, and could reveal the story.
On the last night of Worsham’s life the three gangsters had taken him from Zeigler to Shady Rest, where Dungey accused him of talking too much to Carl Shelton. Worsham denied the charge. Dungey, insisting that he could prove it, forced Worsham to re-enter his car, and with the two others, started toward Marion. Birger followed in a second car, accompanied by Connie Ritter, Steve George, and others of the gang.
The two cars passed through Marion to the western part of the county and then turned south until they came to a lonely spot where thick timber bordered the road. There, Coleman said, Dungey stopped, pushed Worsham out, and ordered him to run for his life. A spotlight followed him. Suddenly he was hit by revolver fire from Dungey’s party. As he stumbled, two machine guns from Birger’s car, which had stopped behind the first automobile, cut him down.
Dungey, Thomasson, and Booher tossed the body into the weeds beside the road, still according to Coleman’s statement, and drove away. Birger, given a moment to think, became furious and cursed the machine-gunners in his own party for their recklessness—the noise and shells would show that this was a gangster killing. The men turned around, bundled Worsham’s body into one of the cars, and drove to Marion, where Birger bought five gallons of gasoline. After that they proceeded to an abandoned house they knew about, put the body inside, poured out the gasoline, touched a match, and fled.
The story, which Coleman declared had been corroborated by independent witnesses, would do Charlie Birger no good in his effort to escape the death penalty.
Early in October, however, it became evident that he would not pay that penalty on the 15th of the month, the date set by Judge Miller. On the 5th his attorneys filed a petition for a writ of error with the state Supreme Court, alleging that the verdict was contrary to the law and the evidence; on the 7th the court granted a stay of execution until it could review the case.
This was reassuring, but the developments in the case of Rado Millich, Birger’s former henchman, were not. Two motions for a new trial, the second filed under instructions from the Serbian Consul in Chicago, were turned down during the summer and early fall. Finally, four days before the date of the execution, the consul appealed to the governor for a stay, and at the same time asked the State Department to intervene. The governor referred the case to the State Board of Pardons and Paroles, which recommended that no stay be granted.
Shortly before ten o’clock on the morning of October 21 Millich was led to the scaffold. While his arms and legs were being bound he stood in silence. Then he began to read, in broken English, from a paper that Sheriff Coleman placed in his hand. His statement began with the assertion that he had killed Ward Jones in self-defense.
“None of you people,” he continued, “would have hung for killing him.… My lawyers, they say they do all they can for me. Charlie Birger was to hang October 15th, but he’s still alive.…”
The man about to die tore the paper to bits but kept on talking.
“I want to say to you people that the man sending me to the gallows, Arlie O. Boswell, is the man who had Lory Price and his wife killed, and some day you will know that I tell the truth. And that when Charlie Birger’s cabin was burned, Charlie Birger himself was in the front line.”
Turning to the sh
eriff, Millich said quietly: “Thank you very much. Go ahead.” Coleman sprang the trap.
That afternoon, in his cell, Birger commented on Millich’s statement: “The last shot of a poor dumb fool at the man who sent him to die.”
While Birger’s appeal to the Supreme Court was pending, Boswell brought Dungey, Booher, and Thomasson to trial for the murder of “Shag” Worsham. Ural Gowen and Clarence Rone, both of whom had ridden in Birger’s car on the night of the murder, corroborated the story of the crime that the sheriff had made public in August. The defendants, however, offered alibis, and the jury brought in a verdict of acquittal.
“Lucky boys!” Birger snorted enviously. “They sure got a break.”
Toward the end of February 1928, Birger heard the bad news. The Supreme Court had denied his appeal, and had directed that the original sentence of death be carried out on Friday, April 13. The decision seemed to come as a relief. He would rather be dead, he remarked, than live through another ten months in jail.
A month later R. E. Smith, who had managed his case from the beginning, filed another petition for a rehearing. This, too, the Supreme Court denied. But the lawyer had not yet reached the end of his resources. On April 12, the day before his client was to hang, he presented a plea for a stay of execution to the Board of Pardons and Paroles, and supported it by an argument to the effect that while Birger, accused only of plotting the murder of Joe Adams, had received the death sentence, the active killers had been let off with life imprisonment.
To the amazement of everyone, Arlie Boswell turned up at the hearing and urged that Birger’s plea be granted. Only the day before, he said, he had visited the condemned man, and had learned that he was willing to tell what he knew about the murder of Lory and Ethel Price. The Williamson County State’s Attorney wanted that evidence to use in the prosecution of the Price cases, and asked that the execution be delayed so that he could secure it.
Bloody Williamson Page 26
