Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 5, 1898

Mr. Coxe to Department of State, June 20, 1898.

In the court of oyer and terminer, Luzerne County, Pa.—Common-wealth of Pennsylvania v. James Martin and others—Trial of James Martin, sheriff, and others for the murder of Mike Ceslak.

Observations on the Testimony.

It may be assumed that the prosecution made out a prima facie case. One hundred and twelve witnesses were called by the Commonwealth, the majority of whom were eyewitnesses, and, in the absence of any defense, it would unquestionably have been the duty of the jury to have convicted the defendants, or at least enough of them, including the sheriff, to have supported a claim for compensation on behalf of the victims of the Lattimer shootings September 10, 1897, and their representatives. A detailed consideration of the evidence for the prosecution is not, therefore, necessary for present purposes.

The Commonwealth’s Case consumed nearly sixteen days of the trial, and on the sixteenth day the defense was opened. It is with reference to that defense that the following criticisms are presented.

The examination of witnesses for the prosecution was concluded on that day, the following witnesses being examined:

James Henahan, Michael Demshok.

Whereupon the defendants proceeded to present their case.

The following witnesses for the defense were then examined:

Catharine Weisenborn, Mrs. Glace, Mrs. Rose Gillespie, Mrs. Rose Gillespie (recalled), Mrs. Catharine Brenna, Mrs. Michael Gallagher, Mrs. Charles Mullen, Joseph Schulz.

the defendants’ case.

The first seven witnesses produced by the defendants were called to show the spirit and demeanor of the strikers on September 10 at Harwood, as well as of the McAdoo men in particular, prior to that date. The admission of the testimony as to the McAdoo strikers was strenuously resisted by the counsel for the prosecution, but it was allowed by the court for the reason that it might be of service to establish the justification for the calling out of the posse comitatus by the sheriff.

Catharine Weisenborn’s evidence only showed that a few of the strikers endeavored to compel others to join them, but there is nothing in her statement to indicate that there was real force or actual violence. She said that 50 out of 200 or 300 strikers had clubs. Her husband is an employee of Pardee & Co.

Mrs. Glace’s testimony was simply to the effect that there were a few disorderly but entirely harmless performances by a few of the McAdoo men; but no inference can be deduced from her evidence that there was riotous conduct on the part of the main body of the men. Her husband also is an employee of Pardee & Co.

Mrs. Rose Gillespie only showed that certain small parties of the strikers at Harwood on September 10 were not more than ordinarily demonstrative, and were not violating the law or committing any breach of the peace. She is a widow.

Mrs. Catharine Brennan’s testimony proved no objectionable behavior by the McAdoo men. She mentioned a few isolated acts of turbulence on their part, but nothing whatever that indicated a general state of lawlessness. She receives free coal from Pardee & Co. because of her husband’s death from accident in their mines.

Mrs. M. Gallagher did not testify to any very serious acts of the strikers. She mentioned one or two unimportant acts, not amounting to anything like criminal violence. Her husband also works for Pardee & Co.

Mrs. Charles Mullen’s testimony is absolutely unimportant. There is nothing in it to the discredit of the strikers. Her husband also is an employee of Pardee & Co.

Joseph Schulz’s testimony is to be similarly characterized. Its only item worthy of notice is a curious and doubtful statement of Martin Lochers, a witness for the prosecution, made to Schulz on September 6, to the effect that if Schulz did not go with the strikers “his death is there.” Joseph Schulz also is an employee of Pardee & Co.

Although the admission by the court of the testimony as to the McAdoo strikers may have been, technically speaking, unimpeachable, it had the effect, undoubtedly, of prejudicing the minds of the jury against the case of the strikers. It was beyond question introduced by the defense for this purpose alone.

seventeenth day of the trial, february 22, 1898.

The examination of witnesses for the defense was resumed, the following witnesses being examined:

Mrs. James Edmundson, James Edmundson, Peter Wolfe, John Boyle, James McGraw, Charles Mullen, John Ripple, Mrs. John Boner, Mrs. Anna C. Greeby, Michael Dogostena, Margaretha Ragons, Thomas M. Nellis, Mrs. O’Donnell, Elizabeth Mumey, Samuel Gerlack, Mrs. Steck, Johanna Carmosa, Jacob Berger, August Steck.

There were 19 witnesses called for the defense. They testified as to the conduct of the strikers at McAdoo on September 3 and their behavior and acts on September 9 and 10. A careful analysis of it shows it to fall far short of the requirements of the defense, as set forth in the opening address by their counsel, Mr. Ferris. Some of it seems, perhaps, to indicate in a slight degree a necessity for the calling out of the posse comitatus. As to this part of the testimony, as well as the rest of it, it is, however, in fairness to be observed that all these witnesses are obviously controlled by their interests and their strong prejudices. They are employees of Pardee & Co. and of a different race from the strikers, partaking of the hatred of the Hungarian, which undoubtedly exists to such an extent as to color testimony. Some of the witnesses swore also that the strikers carried clubs and revolvers on September 10, and there is a suspicious unanimity in their testimony about two pistols, or, as one witness has it, two guns, but these statements were so materially qualified on cross-examination that it is an unavoidable deduction that the main body was unarmed, although there may have been isolated cases of strikers carrying weapons.

Mrs. Edmundson mentioned some acts of violence by the McAdoo men on September 3. As far as the Lattimer procession is concerned, her evidence only shows an unimportant squabble between herself and the men, in which she was as violent as they were. She was able to get her husband from them without any difficulty. It is plain that she was in no dread of the strikers. Her husband works for Pardee & Co.

James Edmundson only said that but five or six of the McAdoo men had clubs; and that was all he testified to concerning them. The Lattimer crowd tried to force him to go along, but he was easily rescued by his wife. No riot or violence is to be inferred from his testimony.

Peter Wolfe merely swore that 3 or 4 men followed him on September 10, calling him an “Irish ____.” _____.” They showed him no violence and did him no harm.

John Boyle gave a brief account of the McAdoo men, September 3, coming armed with gas pipes and miners’ needles. He told nothing whatever to the prejudice of the Lattimer procession.

James McGraw testified that 2 men ran after him and shot after him, but didn’t say why they shot or that he had any previous talk with them. It is evident that he did not tell the whole story. He works for Pardee & Co.

Charles Mullen works for Pardee & Co. He said that after the crowd of 100 or 200 strikers going to Lattimer had passed 2 men ran after some af the people and shot. He didn’t know whether they shot at him or not. This does not affect the main body at all and it is, in substance, his entire testimony.

John Ripple also works for Pardee & Co. He testified to threats of 4 men armed with clubs, 2 with guns (he is the only witness who has spoken of guns), on September 9. These men were not identified at all and no connection with the strikers whatever was shown. As to the crowd that went to Lattimer on the 10th of September, his evidence is absolutely unimportant. It is apparent that the witness is an exceedingly timid person, as all his testimony is about his apprehensions, although no warrant for them is shown.

Mrs. John Boner’s testimony is of very little importance as far as the McAdoo men are concerned, except that they carried clubs and pieces of iron. But she mentioned no act of disorder or violence. Her son works for Pardee & Co., as does her husband also.

Mrs. A. C. Grebey is an old woman of 82 years. She related a remarkable story of a man saying to her “this time America, but in four years Hungarian country.” She testified to some having clubs, and two men with pistols. It is not a fair inference from her testimony that all the strikers were armed. Her sons work for Pardee & Co.

M. Dagostena’s evidence is not very important. Men came after him with clubs to compel him to join them, and when he said he was sick they let him go. He also is an employee of Pardee & Co. His cross-examination shows that he knew very little of what the strikers did on September 10 at Harwood.

Margaret Ragon’s testimony is very unimportant. It related to conduct of the strikers at Harwood on September 10.

Thomas M. Nellis only testified as to the Humboldt men on September 6. He spoke of their saying “everybody must stop work.” He also is an employee of Pardee & Co.

Mrs. O’Donnell simply repeated the story told by Mrs. Edmundson as to the strikers seizing Mr. Edmundson and his wife rescuing him.

Elizabeth Muney made general statements concerning the Lattimer strikers acting in a disorderly manner. Her husband also works for Pardee & Co. Like that of the preceding witnesses, her testimony is vague, inexact, and palpably exaggerated. As an illustration, on cross-examination she admitted that she only saw 1 man with a revolver out of the 200 that went through Cranberry.

Samuel Gerlack also works for Pardee & Co. He testified as to the McAdoo men on September 3. He said 300 of them were armed with clubs. They stopped an engine and crew and threw stones. They stopped him and some of his men, September 9, at Cranberry. On September 10 they stopped and chased his men, and committed some acts of disorder, but no damage was done to persons or property. The sheriff and deputies were present, but nothing that he related as having occurred could not readily have been prevented by the sheriff and deputies.

Mrs. Steck described some disorderly conduct of the strikers at Cranberry, September 10. She said they were armed with clubs and revolvers. She heard two shots fired.

Johanna Carmosa saw the strikers at Cranberry on September 10. She said that they had clubs and that one of them used threatening language. She saw one shot fired, but there was no damage to persons or property.

J. Berger is an employee of Pardee & Co. He gave a bombastic, extravagant statement, full of irrelevant and immaterial remarks, and bearing many indications of being largely an effort of the imagination. He made the incredible statement that he saw a man 900 feet distant draw a pistol and fire it. He flatly contradicted himself in the matter of glasses, testifying in his examination in chief that he did not need them to see at a distance and on his cross-examination that he did.

A. Steck only said generally that on September 10 a good many of the strikers had clubs and revolvers, but mentioned no acts of violence or disorder.

eighteenth day of the trial, february 23, 1898.

The examination of witnesses for the defense was resumed, the following witnesses being examined:

Michael Brennan, August Winters, Ludwig Louder, Robert Hillhouse, George Ermold, Laurence Ermold, Robert Depugh, John Shevelle, Mrs. Anne Krego, George Manster, Emma Rotga, Herman Loss, Mrs. Emma Steck, Phillimena Hoffman, S. J. Williams, A. B. Deremer, Mrs. Anna Reese, William Steibey, Dr. M. A. Robinson, Mrs. Carrie Haas, John Mumey, Gustav Jacz, Joseph Ermold, John Beach, sheriff’s proclamation, Rev. W, S. Hamlin, Condy O’Donnell, W. H. Snyder.

All of these witnesses, with one or two exceptions, are employees of Pardee & Co. They testified to the acts of the McAdoo strikers on September 3, those of the strikers of the 6th, 7th, and 9th, and also to the conduct of the men who went to Lattimer on September 10. The greater part of this testimony concerns the McAdoo men on September 3, and there is nothing of importance or of service in determining the question whether there was justification for the killing of Ceslak and others at Lattimer on September 10. And eliminating the evidence of the Silver Brook episode of September 3 as having occurred in an adjoining county and consequently of no concern to the sheriff’ of Luzerne County, there is scarcely any testimony which impartially considered, affords a warrant for the summoning of the posse comitatus. Up to this point, therefore, the defense is obviously weak.

Michael Brennan swore that 6 of the strikers on September 10, at Cranberry, left the main body and pursued him with clubs and he ran into the brush. He heard two shots. His testimony only shows isolated acts, for which it would be unfair to hold the main body responsible, particularly as he was a half mile distant. He is an employee of Pardee & Co.

August Winters testified to acts of disorder of the McAdoo men on September 3, and of others on September 9. While he swore they had clubs he mentioned no other weapons, nor did he say that any real violence to persons or property was committed. He saw nothing of the strikers on September 10. He is an employee of Pardee & Co.

L. Louder was stopped work for about one hour at Cranberry by 30 to 40 men on September 9. Afterwards he resumed work without molestation. On September 10, 30 to 40 men told him not to work. He went to work, however, without hindrance. He gave no evidence of violence or lawlessness, except the striking him with a stone by one man, not identified. He, too, is an employee of Pardee & Co.

R. Hillhouse told of his being stopped on September 9 and of a trifling altercation between himself and an unidentified body of men, after which he was allowed to go to work. He is an employee of Pardee &Co.

George Ermold saw some strikers on September 9, who allowed him, without objection, to go to work, but he gave some unimportant testimony as to maltreatment of his boy by 4 or 5 of the strikers on September 9, at Cranberry. The witness is a brother of one of the defendants, who was released before the trial.

L. Ermold, son of the preceding witness, told of his being not very seriously assaulted by a few of the strikers, when he was following his father, at Cranberry, September 9.

Robert Depugh only swore that 50 to 60 men stopped him on September 9, but he gave no testimony as to violence to persons or property. He is an employee of Pardee & Co.

John Shevelle’s testimony was of distinct advantage to the prosecution. It only referred to Crystal Ridge, September 8. He said that the sheriff requested a body of 300 to turn back and “they scattered around.”

Mrs. A. Krego swore that some of the strikers at Cranberry, September 10, had clubs, and that she heard one shot. Her husband works for Pardee & Co.

George Mansten only spoke of 3 young men meeting him, September 9, and telling him he need not go any farther. There were 60 to 75 in the main body. He swore to no violence or disorder at any time. He works for Pardee & Co.

E. Rotga, in response to improper leading questions as to whether the strikers carried clubs on September 10, said yes. Her testimony is of no value, her answers being invariably embodied in the question put to her. Her husband also works for Pardee & Co.

H. Loss told of 3 men chasing him into the brush September 10. All had clubs. He heard one shot fired. He works for Pardee & Co.

Mrs. E. Steck testified to some trifling acts of disorder on the part of a crowd of strikers, but mentioned no date.

P. Hoffman testified to strikers coming to Cranberry with clubs, but gave no date. She said they shot at John Krego’s son twice. This alleged shooting is uncorroborated, and it is evident that it is a surmise, as, by her cross examination, it appears John Krego was some distance in the brush at the time.

S. J. Williams swore to disorderly acts of McAdoo strikers September 3. On September 9 they dispersed at the sheriff’s request. He said he did not know what they did September 8. On September 9 the witness “persuaded “the strikers to let him go to work. On the morning of September 10 he was approached by a young man who told him he had better not go to the office. Nevertheless, he went to work until 1 p.m. After that the strikers came, and, he said, with clubs, but he swore to no acts of violence or injury to persons or property. He testified, also, that the sheriff, with 4 or 5 deputies, stopped 75 to 100 strikers on September 7, and without trouble. Whatever value to the defense an analysis of his examination might manifest was materially lessened by his very skillful cross-examination by Mr. Scarlett, of counsel for the prosecution. This witness also works for Pardee & Co.

A. B. Deremer gave a brief account of the performances of 25 to 30 men at Crystal Ridge September 3, as also of the slight disorder September 7, and the prompt disbandment of the strikers at the sheriff’s request. On September 10 he saw 2 men only, with clubs, assaulting a man. He works for Pardee & Co.

Mrs. A. Reese’s testimony is quite unimportant; she saw 2 men chased, but did not know by whom.

W. Steibey saw 4 or 5 strikers at Crystal Ridge September 10, and saw 2 men with clubs beating another man. He works for Pardee & Co.

Dr. M. A. Robinson testified as to certain injuries received by the men referred to by the last witness and as to the character of the road from West Hazleton to Lattimer.

Mrs. Carrie Haas said that the strikers on September 10 tried to “persuade” the men away. She was at a meeting in Cranberry on September 9, where the talk was in Polish. She heard some of the Poles say they would not let the English and the Germans get ahead of them; that there were 3 Poles to 1 Englishman, and if the English would not do as they said they would crush them. The introduction of this evidence was resisted by the prosecution, but was admitted by the court on the ground that it tended to throw light on the question of justification for calling out the posse comitatus. It is believed that this action of the court extended beyond the limits of a sound discretion, and indicates the bias of the judge’s mind. The meeting referred to by the witness was an unorganized one and was made up of squads, so the witness swore, and no action was had on the proposition. The remark was made by one person outside of the meeting, and its admission as evidence, under the circumstances disclosed by the witness herself, was wholly irregular, and calculated to prejudice the minds of the jury against the prosecution.

John Mumey gave a vague account of the strikers chasing him and firing two shots after him September 10.

G. Jacz’s story is absolutely trivial and unimportant.

J. Ermold said that the strikers did not molest or interfere with him as an engineer of mine locomotive September 9. On the morning of September 10, 15 or 20 of them ordered him to go back, but witness and the night watchman displayed revolvers and the strikers let him go to his work. On the afternoon of September 10 he saw nobody chasing anyone and heard no shots fired, except two over among the old houses at Cranberry. He is an employee of Pardee & Co.

John Beach was obviously reserved as the important witness of the day, and yet, despite the length at which he was examined, there is very little in his testimony that supports the plea of justification. This witness is an outside foreman of C. Pardee & Co. He said the McAdoo men on September 3 were all armed with various weapons; there were some threats and some disorderly conduct on the part of detachments of the strikers, but there was no injury to persons or property, and upon the persuasion of the witness they dispersed. On September 6 some 20 to 25 strikers came and endeavored to unhitch a mule team from a wagon, but desisted in compliance with the persuasion of the witness. There were some threatening words, but no injury to persons or property.

At this point the sheriff’s proclamation of September 6, 1897, was offered in evidence by the defense, under objection by the prosecution, because no part of the justification set out by the defense, there being no proof of riot up to the time. Its introduction was unquestionably of considerable value to the defense.

As to September 10, witness saw about 150 to 200 men at Harwood, a majority with clubs. There were no threats or violence or injury to persons or property.

This witness is a brother-in-law of defendant Turnbach and father-in-law of another defendant, McShea.

His cross examination brought out the fact that he had said to the strikers, “You had better not go to Lattimer, as bullets will be flying around there.”

His cross examination resulted in a material qualification of much of his testimony for the defense.

Rev. W. S. Hamlin’s testimony is unimportant and irrelevant. He was obliged to join the strikers at Silver Brook on September 7, and who upon persuasion immediately released him. They were not in any way identified as the Lattimer strikers of September 10, and the court should have directed his testimony to have been stricken out.

C. O’Donnell saw some strikers on September 10, at Crystal Ridge, with clubs, but he specified no particular acts except that a few of them chased some men. There were no threats or violence or injury to persons or property. He also works for Pardee & Co.

William H. Snyder testified to the disorder at Silver Brook referred to by Rev. W. S. Hamlin. His testimony should also have been stricken out, as the Silver Brook strikers have not been identified with the Lattimer strikers of September 10 by the defense; and Silver Brook not being in Luzerne County, such disorder as existed there did not justify the calling out of the posse comitatus.

nineteenth day of the trial, february 24, 1898.

The examination of witnesses for the defense was resumed, the following witnesses being examined:

Daniel Heller, William H. Gardener, August Hulzheiser, Peter Renker, Rudolph Heinzel, Robert Airey, James Long, Charles Weikranyz, Henry Eby, Richard Dunn, Frank Sherry, W. J. Hayes, Anthony Billet, Paul Dinhafer, Oliver Smith, Dennis McGovern, John Strutler, John McGlynn, Edward Walter, Charles Spangler, David McFarlahd, Adam Weir, John McFadden, William Kelshaw, David Nattress, William Kauffman, Joseph Barsheftsy, Dennis McGinley, John Peteit, George Banda, Samuel Bartlett, Thomas Nesbitt, John G. Scott.

These 33 witnesses were almost without exception employees of the various coal companies, and testified in general to occurrences on September 2, 3, and 7 at various places—McAdoo, Silver Brook, Jeanesville, Ebervale, Beaver Brook, and Yorktown. One man spoke of two unimportant disturbances at Crystal Ridge on September 10. There was no identification of any of the participants in the acts of the strikers mentioned by the different witnesses with the Lattimer strikers of September 10. A careful, dispassionate estimate of the entire evidence presented on this day of the trial affords no warrant for the belief that a calling out of the posse comitatus was necessary. A few witnesses do indeed specify some performances of the strikers that were violent, so far as injury to property was concerned, but there is nothing in any of the testimony that occasions the conviction that at any time during the disturbances described by these particular witnesses life was at all in danger. Various witnesses refer to their fears, but no facts are presented that justify such fears on the part of reasonable people, nor is there sufficient proof of the state of public terror, which is the legal warrant for a posse comitatus. Up to this point in the trial there appears, therefore, not the slightest pretense of the justification interposed as a defense for the killing at Lattimer on September 10.

D. Heller detailed some evidence at Silver Brook on September 2, in the adjoining county of Schuylkill. The strikers forced the witness along some distance, but he readily escaped home again. There was no violence to persons or property.

W. H. Gardiner testified to similar disorder at Silver Brook on September 2. On September 7 strikers whom he could not identify fired three shots at him. No connection was shown with the Lattimer strikers.

August Hulzheiser is employed at Silver Brook colliery. On September 7 he was forced to go with the strikers to McAdoo. He testified to no acts of injury to persons or property or to any real disorder.

P. Renker only referred to the strikers at Silver Brook on September 3 compelling him to accompany them a little way. One man made a threatening speech. There was no damage to persons or property. He could not identify any one of the strikers.

R. Heinzel spoke of occurrences at Silver Brook September 2. He really saw nothing out of the way on that day. On September 7 some strikers grabbed him and threw him in a ditch and pulled him in the ranks. They then clubbed him, “but everything else was all right,” he said. He said families were frightened. He could not identify any of the strikers. He admitted that the strikers did not leave anybody on guard at the breaker between September 2 and September 10 to keep the men from going to work.

R. Airey saw the strikers from McAdoo at Silver Brook on September 2. They forced him to join the ranks and march to near Hazleton, They had clubs, and he swore they threw them away after carrying them a little way. There was no injury to persons or property.

James Long is the superintendent of Silver Brook colliery. He detailed disorderly proceedings on the part of 800 to 900 strikers at Silver Brook September 2. They smashed windows, and one man with a club struck witness with a club on his shoulder. On September 7, at Silver Brook, also, he witnessed some trifling acts of disorder, inseparable apparently from a large body of 300 strikers, but not amounting to a breach of the peace. There was really nothing more serious than the forcing along of Rev. Mr. Hamlin for a very short distance, and whose story has already been told, and the capture of the night watchman and his immediate release without difficulty. It was only on September 2 and 7 that there were any strikers at Silver Brook. There was a suspension of work during that time there because of want of cars. This especially appears by this witness’s testimony. The occurrences related by him were in an adjoining county, and in no way were they, or the actors in them, identified with the march to Lattimer on September 10. Impartially considered, this testimony, in itself, presents no proof of justification for the summoning of the posse comitatus.

Charles Weikranz is employed a Silver Brook. He testified as to trivial acts of some men at Silver Brook September 2, but he failed to identify any of them. On September 7, at Silver Brook, some strikers ran after him and he ran into the brush and one man hit him on the arm with a club, but the witness readily escaped.

Henry Eby testified to the acts of some 15 to 20 strikers at Beaver Brook with clubs and iron bolts. They got on his engine after it had stopped and ordered the witness to run the engine away. They committed no injury to persons or property. He could not identify any of them. On September 9, he said—but was uncertain as to the date—he had an altercation with a striker, in which the strikers pulled out a revolver and threatened to shoot. They then went about their business. He could not identify this particular striker.

Richard Dunn has been a hoisting engineer for the Beaver Brook Company for nineteen years. He told of a body of 15 to 20 stopping him from hoisting coal on September 2, none of whom he was able to identify.

Frank Sherry is a fruit dealer at Hazleton. He told a vague story, and was not certain as to the date, of men at McAdoo grabbing his wagon and getting his peaches. They carried stones and clubs. He absolutely failed to identify any of the men.

W. H. Hayes is an outside foreman of the Lehigh Valley Railroad Company at Audenried. A large part of his testimony is about his own and other people’s apprehensions, and which he admitted was hearsay, but without detailing facts or circumstances in their justification. Upon cross-examination, however, he said that he “faced the strikers without terror or fear.”

A. Billet’s testimony is of more value to the prosecution than to the defense. He swore to some turbulence, but to no more than it is the common experience to find attending every large body of undisciplined marching men.

P. Dinhoefer testified to trifling disturbances by some unidentified strikers at Yorktown on September 2. Upon September 3 they forced him, apparently without any great opposition on his part, to go along with them. He went about a half mile and readily escaped. Neither he nor anyone else was hurt.

Oliver Smith has worked for Pardee & Co. for fourteen years. Since January 1, 1898, he has been inside foreman at Crystal Ridge. Before that date he was an ordinary laborer. He related no very serious acts of disorder at Crystal Ridge on September 10. All the actors were strangers to him.

D. McGovern told of a number of men knocking his tooth out on a day in September at Yorktown, He did not identify his assailants, nor mention the particular day. He is a miner.

John Strutler’s testimony was of no value to the defense. Indeed, his cross-examination showed clearly that, as far as he saw or knew, the strikers at Yorktown on September 2 were an orderly assemblage. With this witness, as with so many others, a very objectionable method of leading the witness was employed by the counsel for the defense. For example, the question was constantly asked, “Did they have clubs?” and then, upon objection by counsel for the prosecution, an equally objectionable form was substituted, such as “What, if anything, did they have in their hands’?”

Edward Walter works at Yorktown for the Lehigh Valley Railroad Company. He saw a crowd there early in September, but specified no date. He indicated no disorder or violence whatever. He only fixed the date, September 3, subsequently in response to a leading question by counsel for defense.

Charles Spangler is in the employment of the Lehigh Valley Railroad Company. He testified to certain not very disorderly performances on the part of the strikers on the two days in September not specified, at Stony Brook.

David McFarland is superintendent of coal mines at Jeanesville for the Lehigh Valley Railroad Company. He gave a detailed account of disorderly proceedings, lasting for only fifteen minutes, however, at Jeanesville, on September 3, although no one was injured, nor was any property destroyed. On September 7, according to his story, carefully weighed and sifted by the cross-examination, the strikers did nothing that was unlawful or improper. Like other witnesses, he spoke of fears and apprehensions, but presented no facts to justify their existence.

Adam Weir is manager of a store at Jeanesville. He testified to a body of 500 to 600 strikers coming to Jeanesville on September 3 and asking him to go along with them. He declined and they passed on. As with the other witnesses, in response to a leading question, “What did they carry?” he said, “Pick handles and clubs.” His cross-examination made it very clear that they were acting in a lawful manner in every respect, and that his statement that they were all armed was at least an exaggeration.

John McFadden is a boss at Jeanesville. He said the strikers, on September 3, ordered the men to leave No. 4 colliery there, and forced the witness to go with them to Hazleton crossing. There he left them. He said “he believed” he was forced to go. There was no real violence to persons or property. His cross examination brought out the fact that the particular strikers were anything but a formidable, terror-exciting body.

William Kelshaw is an Englishman. He is a trackman at Jeanesville for the Lehigh Valley Railroad Company. Two of the strikers on September 3 took two of his tools and tried to get him to go along, but he refused and did not go. He went home and was saved by his dog from a striker. His story about the dog and the strikers is at least a remarkable one. Nothing is found in such testimony as this that indicates a necessity for a posse comitatus.

D. Nattress could not fix the date on which he saw strikers at Jeanesville in September. He is an old man of 80; the strikers tried to seize him, but he ran away. He said the majority had clubs, and by a remarkable coincidence he saw one mining needle in the great crowd. He said there was no injury to persons or property.

William Kauffman is a boss for the Lehigh Valley Railroad Company. He said the strikers at Jeanesville, September 3, were all armed with clubs. They seemed to have had little difficulty in securing his company. He went as far as Hazleton and then left them without any trouble. He said that on a report that there were policemen at Hazleton the remark was made among the strikers that “they were not afraid; they were all right,” putting their hands to their hip pockets.

Joseph Barshefsky is a Pole. His testimony does not advantage the defense. He voluntarily joined the strikers at Jeanesville on September 3.

Dennis McGinley is a conductor on the Lehigh Valley Railroad. On September 3 a party tried to hold him up with his train. They stoned him, and one man threatened him with a mining needle. He swore that he caught a number of stones in his hands, but he was contradicted and discredited as to this, and consequently in his entire narrative, by the witness immediately following.

John Peteit was the engineer of McGinley’s train and repeated part of McGinley’s story, but flatly contradicted him in the matter of McGinley catching the stones in his hands.

George Bawa was the brakeman of McGinley’s train. He said it was slate and coal and not stones the men threw at McGinley. He denied also that McGinley caught the stones.

S. Bartlett is a carpenter and works for the Audenried Coal Company. He specified acts of disorder and lawlessness by 200 strikers at McAdoo, September 3, and Ebervale, September 7. He did not identify them with the Lattimer strikers of September 10.

Thomas Nesbitt was clerk and coal shipper at Ebervale. He desribed some acts of disorder and violence at Ebervale on September 7. Nobody was injured; windows were smashed. He only knew one man in the crowd.

John G. Scott is superintendent for Ebervale, and repeated in substance the story of Thomas Nesbitt. He, also, only knew one man in the crowd.

twentieth dat of the trial, february 25, 1898.

The examination of witnesses for the defense was resumed, the following witnesses being examined: George Denerche, John Shellenberger, Enoch Howell, Otto Rakling, Rev. Mr. Herbst, John Graham, John J. Fidler, M. J. Oswald, Edward Meyers, Milton Setser, Elliott Oberender, John Wagner, Charles Mulherin, Frederick P. Zerbey, Frederick P. Zerbey (recalled for cross examination), Matilda Faust.

Nearly all these witnesses testified to occurrences at Kyle’s strippings, Hazleton, Harwood, Cranberry and Drifton on September 3, 6, and 10.

Setser is the sheriff of Carbon County, and told how a very serious disturbance at Drifton was quelled without violence or bloodshed.

The testimony of John Wagner is of value also on this point. Indeed, as is presently set forth, it is palpable from a great part of this day’s proceedings that, reasoning from a fair comparison of the Lattimer emergency and the other situations here described, there was no more of a crisis on September 10 than on previous days.

George Denerche told of some men at Kyle’s strippings, on September 6, telling him he should not go to work, and of 3 drunken men in the evening assaulting him. These people were unidentified. The testimony was therefore irrelevant and valueless, so far at least as the defense is concerned.

John Shellenberger is foreman of steam shovel at Hazleton mine No. 1. September 3 the strikers were all armed with clubs. They compelled the witness to go to Harwood with them, where there was a meeting, at which it was agreed to go to Lattimer, but not on that day. He testified to no real disorder or violence.

Enoch Howell is a mine laborer. On September 3 he saw strikers with clubs, and he made this important statement: “They did not act any way rough with me and I did not see them act any way rough with anybody else.”

Otto Rakling is a driver boy, 16 years old. On September 3, two men with clubs forced him to go to Harwood. The other men had clubs, and he said one man had a miner’s needle.

Rev. Mr. Herbst only said that of the strikers at West Hazleton on September 10, after they passed the deputies, some had long sticks and some had short, and that they were determined.

John Graham’s testimony is of no importance. He drove through a party of strikers early in September at Yorktown. He could not fix the date at all nor could he say how many there were. A man who got on his wagon was hit in the mouth by a striker.

John J. Fidler is a cigar manufacturer. He saw a body of strikers at Cranberry, September 10. Many of them had sticks and were very demonstrative. One man, about 100 yards behind the main body, had a gun. It was the only gun there. Witness was driving in a buggy with a Mr. Thomas. Neither was disturbed or molested in any way.

M. J. Oswald is a hotel keeper at West Hazleton. He saw strikers at Old Cranberry, September 10. He heard two shots fired. One man had a gun. He did not see the man with the gun afterwards and did not know him.

Edward Meyers is a constable at West Hazleton. He testified to some acts of disorder at West Hazleton, September 10. Although this witness testified through an interpreter, it is remarkable that he was able to remember and repeat an English speech by the sheriff’ to the strikers. He saw a man shot, but did not arrest him because, he said, he had no warrant. (As a matter of law, a constable who witnesses the commission of a crime has a right to arrest without a warrant.)

Milton Stetser was sheriff of Carbon County in September, 1897. He had a consultation with Sheriff Martin at Hazleton, September 6. The witness received formal notice from property owners on September 8 and 9 to protect their property. On September 8 he took a body of deputies from Mauchchunk to Beaver Meadows. The county line between Luzerne and Carbon runs through Beaver Meadows. He met Sheriff Martin there with some of his deputies. About 400 or 500 strikers came there unarmed, but quite a lot carried clubs. They rushed for the breaker and were stopped by the sheriff and the deputies. Afterwards one of the strikers shot at them. This was on September 9. He left on September 10 because he had a dispatch from Governor Hastings that troops were called out. The witness was asked whether Sheriff Martin and he had a consultation on September 9 as to how their deputies should act. This was objected to by the prosecution, but the question was admitted by the court after argument. It is believed that its admission was improper. Some of the reasons for this belief are presented in the arguments of counsel for the prosecution (p. 1666 et seq. of stenographer’s notes of testimony). Its admission assumes that the legal warrant for the posse comitatus had been established. This, however, as already intimated, is far from being done. Besides, determination to do no harm on September 9 has nothing whatever to do with a possible determination to do harm on September 10.

The witness further said that when the man shot at him he gave an order to his deputies to shoot. He also made this significant remark: “They were determined in the start, before we got them started; but after we got them started there was no more trouble.”

Elliott Oberender is the agent for Coxe’s mines at Drifton. He “expected” trouble and sent for the sheriff, who came on September 8, and swore in some deputies. Much of this witness’s evidence is pure hearsay. He gave no real facts as to disorder. He told of a crowd of 1,500 to 2,000 men at Beaver Meadows. The works there were stopped. As to the preliminary acts at this time, he said, on cross-examination, that he spoke from hearsay (p. 1690). The crowd had clubs and were demonstrative. He argued with them for about twenty minutes, and they all went away. There was no injury to persons or property. He proceeded to repeat Sheriff Martin’s instructions to the deputies sworn in at Drifton about keeping cool, and that he hoped there would be no occasion for shooting; that the deputies were to take their instructions from the witness. As to this, his evidence is incompetent, because the sheriff has no power to delegate such duties. Besides, as already observed, a determination to keep cool on September 9 affords no justification for failing to do so on September 10. The witness said that the deputies at Drifton were selected by the superintendent for the sheriff. All that the sheriff’ did was to swear them in and ask the ages of a few. This was also an illegal act on the part of the sheriff. He can not delegate the duty of selecting a posse comitatus.

John Wagner was one of the posse comitatus at Drifton. Sheriff Martin, on September 8, gave instructions to keep cool and not to hurt anybody unless they destroyed property and the deputies found themselves or their lives in danger. The witness made the probably exaggerated statement that, on September 8, the town of Beaver Meadows was in possession of the strikers. Most of his testimony, too, is hearsay. He said there were about 1,500. He had a talk with the leaders, and, with the assistance of Oberender and Rowland, persuaded the men to disperse. The strikers did no injury to persons or property, although they had clubs and needles. He said he talked to them in a gentlemanly sort of way. According to his testimony, on two separate occasions an assemblage as turbulent and determined as were the Lattimer men on September 10, according to the most unfriendly accounts, were dispersed without a shot being fired or anybody being injured on either side.

Charles Mulherin said that the Lattimer strikers at West Hazleton, on September 10, had clubs. He is a weighmaster in the employ of the Lehigh Valley Coal Company.

Frederick P. Zerbey is the superintendent of the Lehigh Valley Coal Company at Hazleton. The substance of his highly colored story is that a crowd of strikers, with clubs and sticks, came to the breaker at Hazleton on September 3, made a demonstration for about twenty minutes, and then left without injuring any person or property. On September 8 he saw Sheriff Martin with one deputy stop a crowd in the streets of Hazleton. This witness’s account of the occurrences at West Hazleton on September 10 seems to indicate that the strikers’ attitude gave the sheriff and deputies no just cause to interfere with them. If this be so, there is a fair inference that disappointment on the part of the deputies developed their temper by the time they again encountered the strikers at Lattimer.

Matilda Faust spoke of 50 strikers at Lattimer September 7, but mentioned no acts of violence to persons or property. She said they were afraid on the night of September 10 to stay at home and went to Ebervale.

twenty-first day of the trial, february 26, 1898.

The examination of witnesses for the defense was resumed, the following witnesses being examined:

George Weisenborn, John L. Simons, John Krapf, Mrs. Elizabeth Harvey, Mrs. Annie G. Goodwin, Mrs. Madge Kilmer, Genevieve Wakling.

The evidence presented on this day does not at all support the positions taken by the defense. Their most important witness was Mrs. Elizabeth Harvey, the only witness of the Lattimer shooting examined. Her examination in chief, presently to be commented on at length, falls short of the purpose for which she was apparently called, while her cross-examination presents forcibly and convincingly the undoubted explanation of the way the shooting at Lattimer originated. In this respect her testimony is in the highest degree important.

George Weisenborn is a blacksmith at Harwood. He told of 70 or 80 Harwood strikers, with clubs and gas pipes, on September 6, at Harwood trying to compel a teamster to unhitch mules from a coal cart. The witness persuaded them to desist. They threatened no one and no harm was done to anything or anybody. He said that F. Kubitsky did not have his drill sharpened by the witness between September 3 and September 10, but he admitted on cross-examination that this might readily have been done by one or two other blacksmiths there at the time.

John L. Simons’s testimony was of very little, if any, importance. He saw 40 to 50 men drive other men from a breaker at Hazleton on September 3. They were, he heard, McAdoo men. On September 10 he saw 3 or 4 men with clubs, whom he could not identify and knew nothing of their destination, crossing the street at Hazleton.

John Krapf lives at Cranberry and spoke of some people with sticks chasing other people at Cranberry, September 3. They were McAdoo men. Mentioned no injury to persons or property. Like so many other witnesses, he spoke of his fears, without relating any circumstances to warrant them. Indeed, he admitted that when he went to West Hazleton, several days after September 10, because he was afraid, he left his family home to look out for themselves.

Mrs. Elizabeth Harvey is the wife of the physician at Lattimer. She saw the shooting on September 10, and described so much of it as she had witnessed. About 100 feet up the road the sheriff stepped toward the strikers and halted them. They talked a few minutes and then marched on. Then the firing commenced. The sheriff was tussling with two men. While he was tussling the rest of the strikers rushed toward the deputies. The witness did not know how far the strikers were from the deputies when they fired and could give no idea. An intelligent reading of her testimony conveys the impression that the firing preceded the rush of the miners toward the deputies. This is not the story told by other witnesses for the defense. A probable account of the exact nature of the shooting on September 10 is found in this witness’s statement on cross-examination that the people in the rear of the procession forced those in front forward. This is extremely material and important. On this point she swore: “Those from the rear rank kept crowding on the front men. These front men were then driven on toward Lattimer by those behind, and when they came about opposite the deputies they were fired upon, and they started to run after the volley backward as they came. The shots struck the men when they were running” (p. 1748).

The bias for the defense of the witness is manifested in her admission that up to January, 1898, her husband was paid primarily by the Pardee Coal Company for services rendered to the miners, who naturally make up the bulk of his patients, the amounts of his bills being subsequently deducted from the miners’ wages by the company.

Mrs. Annie G. Goodwin’s husband is a stable boss for Mr. Pardee. They live at Lattimer. She described the performance of about 100 strikers who came from Ebervale, September 7. Half of them had willow sticks. They appear to have been ordinarily boisterous. But she said she was terrified, and, like so many other witnesses for the defense, she presented no circumstances of sufficient seriousness to justify her fears, unless she was an exceptionally timid and nervous woman. It would appear from her cross-examination that such was her temperament.

Mrs. Madge Kilmer detailed some disorderly conduct of unidentified strikers at Lattimer, September 7. They were there about fifteen minutes, and did no harm to persons or property. As to September 10, her testimony was unimportant. She only heard the shooting, which she said only lasted “about a second.”

Genevieve Wakling’s husband is engineer at Lattimer and an employee of Pardee & Co. for six years. She told of a striker at Lattimer, September 7, saying “Lattimer chased us to-day, but the s— of b— would not chase us to-morrow.” They did not get to the breaker, and nobody chased them, so that the remark, if made, was insensible. She, too, spoke of her fears, but they were based upon obviously exaggerated reports to the effect that “the strikers were coming to blow up every man, woman, and child at Lattimer.”

twenty-second day of the trial, february 28, 1898.

The examination of witnesses for the defense was resumed, the following witnesses being examined: Cora Heimbach, Stephen Druckenmiller, William Wolff, George Mauey, Mrs. Catharine Craig, W. W. Smith, Oliver Liebensberger, William A. Evans, Coroner Frank McKee, Benjamin Norris, John Kuntz, M. D., John D. Landmesser.

Two features of this day’s testimony for the defense are especially worthy of particular notice. One is the evidence as to the state of terror among the people. On this, as well as on previous occasions, the defendants’ witnesses have spoken of their great fear after the shooting. This is palpably irrelevant and seriously prejudicial to the prosecution. If it proved anything it is that these people only feared danger as the legitimate consequence of the deputies’ acts in shooting the strikers at Lattimer. There can be no escape from this conclusion in the mind of any unprejudiced individual.

Again, observe the evidence as to the clubs and sticks alleged to have been carried by the strikers on September 10. Nothing in the testimony on this point bears out the pretense that they were extensively furnished with such weapons. Of a character with the rest of the evidence on this subject is that of W. W. Smith, who began by saying generally “the crowd had clubs.” This he was forced to qualify, after being repeatedly urged to explain on his cross-examination, by saying that “he should suppose there were 50 sticks of all kinds,” and finally he admitted that he “would rather not say, because he did not count them.”

A very important witness in the estimation, apparently, of the counsel for the defense was Mrs. Catharine Craig. As it is presently made very clear, she was in the end so seriously discredited on her cross-examination that such value as her testimony might have had for the defense was altogether destroyed.

It is a very suggestive commentary on the character of these proceedings that at the end of the twenty-second day of a trial for homicide, in which a very strong prima facie case was made out on the part of the prosecution, no really substantial proof of the justification set up as a defense has been offered either by way of suggestion during the cross-examination of the Commonwealth’s witnesses or in the testimony of the witness for the defense itself.

Cora Heimbach is 18 years old. Her father is a blacksmith in the employ of Pardee & Co. She told of going for her brother to Miss Coyle’s school at Lattimer on September 10 and taking him home, having told Miss Goyle that the strikers were coming. Her family all left before the shooting, because they were afraid the strikers would return and blow up the place. This is plainly an afterthought. It can not be too emphatically urged that there has been no evidence of facts or circumstances presented to justify such an extravagant and irrational fear. Indeed, her cross-examination made it abundantly plain that whatever fears existed were exclusively because of the shooting, and this is candidly admitted by other witnesses who have preceded and followed her.

Stephen Druckenmiller is a coal dealer at Hazleton and gets his coal from the Lehigh Valley Coal Company. He went with Constable Jones to Lattimer September 10 and saw the shooting, in a buggy with Jones. When the strikers came the deputies were lined up along the fence. One ran in an alley, without a coat; beckoned the strikers to come on. Sheriff Martin came out and cried “Halt.” The strikers did not stop, and passed the sheriff on the left hand side, about 10 to 15 feet. The witness heard a shot and then two, and “then the whole thing went off.” The man that appeared to the witness to beckon to the strikers was not a deputy. He said the strikers had clubs, but on cross-examination this was materially qualified as “sticks,” and then, again, he was compelled to admit that there were not more than 25 sticks in the whole body of men, which he said was about 500 in number. He saw no weapons among the dead, although he had unusual opportunities for observing them, and was a witness, too, for the defense.

William Wolff was the conductor of a trolley car September 10. He saw the strikers at Harleigh. Some had clubs. Turnbach, one of the deputies, got on his car at Farley’s Hotel. He did not remember any remark by Turnbach on the car, but on cross examination he recalled that Welsh was on the car. At Lattimer the men were passing toward the deputies and heard a shot and then a volley. That was all he said. Like the preceding witness, and like Mr. Smith, he corrected his statement about the clubs by saying that quite a few had sticks, probably 30 to 40, “some pretty good sticks and some small sticks,” but he could not remember seeing any at all at Lattimer among the 400 or 500 there.

George Mauey was at Lattimer and heard the shooting, but described it differently from the other witnesses. There was one shot and then two, then a volley, and then a few scattering shots. He saw the dead and wounded and identified a number of the deputies as being present after the shooting. He mentioned occurrences at Hazleton mines on September 3 and at Crystal Ridge September 7. At Hazleton the McAdoo men, to the number of 25 or 30, chased men away from the breaker, and at Crystal Ridge on September 7 the sheriff and deputies met a body of men, which witness understood were from McAdoo, and with considerable difficulty and “persuasive force” prevailed on them, after fifteen or twenty minutes, to disperse. He mentioned no real violence or injury to persons or property. He said that at Crystal Ridge, of the McAdoo men, 1 out of 5 had clubs.

Mrs. Catharine Craig is the wife of a machinist in the employ of Pardee & Co., at Lattimer. She saw the sheriff on September 10 trying to stop the crowd. They surrounded him and shoved him over the road and rushed past him. It is certain that she saw nothing after this for several minutes at least, and it is an important hiatus in her testimony, for she ran into the house from the gate with her boys, and did not look again until one of the boys called her attention to the proceedings on the road. Then she said she saw the sheriff and men were still tussling. The men pushed him, and they were coming to the deputies. Then she heard, not saw, the shots. This last statement of hers is especially noteworthy as a test of the accuracy of her story. It is difficult to understand how, if she saw all she pretended to have seen, she could of all things have failed to see the shooting. She was most seriously discredited on her cross-examination by her admission that she had previously said to Mr. Loughran, one of the counsel for the prosecution, that she did not know anything about the shooting.

W. W. Smith was burgess of West Hazleton in September, 1897. He told of 50 strikers on September 3, apparently the McAdoo men, repeatedly referred to, and to whose performances have been given undue and unjust prominence to the serious disadvantage of the prosecution. One man was hurt, not seriously. There were 3 special policemen who had been sworn in a year before. There has been only one occasion for their services, during September 3, and that was on the occasion he testified to. The witness also saw the strikers at West Hazelton, September 10. The deputies pressed them back with their guns, and told them to go back home. The strikers soon after that filed around to the left of the town. Witness told the chief of police, Jones, to persuade the strikers to go back. The crowd had clubs. This he qualified on his cross-examination, after being repeatedly pressed, by saying that he should suppose there were 50 sticks of all kinds, and finally he confessed that he would rather not say, because he did not count them.

Oliver Liebensberger is a building contractor at Hazleton. He described the shooting at Lattimer. He made no reference to the strikers being armed at all, and said that the sheriff’s pistol was the only weapon he saw. Although he was quite near, being but 12 to 15 feet behind the deputies, he pretended that he did not know who fired the first shot. When the sheriff confronted the strikers those behind shouted to “go ahead.” One man in the second or third row made a rush toward the sheriff. Then, the witness said, he did not see the sheriff until the affair was over, although he flatly contradicted himself directly by saying that the strikers had pushed the sheriff in the gutter; and the witness indulged in a palpable effort of the imagination by adding that “it looked as if they were beating him.” His account, so far as he speaks from his own observation, is readily reconciliable with what is doubtless the true version of the shooting, namely, that which was elicited from Mrs. Harvey on her cross-examination on February 26. This witness further said that he went to Lattimer to see the strikers take the guns from the deputies. This suggests a reasonable theory, that this apprehension, although groundless, may explain the justification of the shooting. Such a baseless rumor doubtless reached the ears of the inexperienced deputies. In the end this witness would not deny that he had previously told Mr. Knopp and others that the shooting was an outrage.

William A. Evans is a reporter for the Hazleton Sentinel. He described a trifling affair at Hazleton, September 10. He followed the deputies to Lattimer. The sheriff was there a short while with the strikers and then he made a grab with his left hand over to the second or third row and yanked a man toward him. The 40 or 50 strikers grabbed him and pulled him toward the right of the way the witness was facing. The men behind pressed forward and came running toward the deputies, and while all this was going on the shooting occurred. This was not at all inconsistent with the theory supported by Mrs. Harvey’s testimony on February 26, just referred to; he said he saw no weapons on the strikers, yet twenty minutes after the shooting was over he found a revolver on the ground between 3 dead men. This is far from conclusive evidence. The revolver might too easily have been dropped there by a deputy, as it is in evidence that some of them left arms on the ground. It is very significant that this witness did not report the finding of the revolver to his newspaper, and that he had sent in two reports to the paper before he saw the revolver at all. He admitted that while he was away telephoning to his paper for fifteen or twenty minutes the dead and wounded were changed and people had been on the ground. In fact, as to the revolver, his story was completely discredited by his cross-examination. He also said that when the firing began the sheriff was in the center of the road, yet he had previously testified that the sheriff was on the right of the road at that time. After the shooting dead men were found within 10 or 15 feet of the line of the deputies, and the other strikers left the road and ran for the deputies. The first part of this statement bears the stamp of improbability, as, according to his story, the firing was so prompt that it was simply impossible for the strikers to get so near. It has not been pretended by anyone else, counsel included, that the entire body of strikers ran toward the deputies. All the other evidence and the circumstances disprove this part of the witness’s testimony. The witness identified a number of the deputies as being present at the shooting.

Coroner E. McKee identified the pistol referred to by witness, Evans. The inquest over the dead of Lattimer was held at Hazleton about two weeks after the shooting.

Benjamin Norris was a motorman of the car that took the killed and wounded from Lattimer. He found an unloaded revolver in the inside pocket of a coat that had been lying under a dead man. It was a striker. Some of the deputies carried the body into the car. It was twenty minutes or half an hour after the shooting. A number of people and a great many deputies were there.

The witness also swore that Bœtticher, a witness for the Commonwealth, told him he was well paid for what he had to say.

As to the revolver story, it is uncorroborated; and the lapse of time between the shooting and its alleged discovery, as well as the fact a number of people were on the ground meantime, deputies included, and as it was not proven to be the man’s coat or even that of a striker, deprive the testimony of that importance which is essential to proof on the point that the strikers carried deadly weapons on September 10. At all events, it was unloaded, and there was no proof of its empty barrels being the result of their discharge during the affair or immediately previous to it.

Concerning the Bœtticher matter, it is simply to be said that the statement is incredible. Bœtticher’s testimony was not cumulative among a host of witnesses; and it is a notorious fact that the prosecution was without funds to squander, even if it be unwarrantably assumed that they had undertaken to purchase testimony.

John Kuntz, M. D., was called to prove that two men, perhaps inaccurately designated as “Hungarians or Polanders,” were professionally treated by him in the lockup at Hazleton between 2 and 3 p. in., September 10. One had a scalp wound and the other, who claimed to have a broken arm, was uninjured. It is not apparent that this testimony is material. It was, it would seem, introduced to show that the men were those referred to by some of the Commonwealth’s witnesses as being injured by the deputies at West Hazleton. In the absence of anything like identification, this evidence, viewed in its most favorable light, is worthless.

John Landmesser told of meeting the strikers at Harleigh on September 10, and of his volunteering advice to them as to their duty and the duty of the sheriff, to which the strikers only replied scornfully. Then the witness stopped talking, as he said it was no use. Some, he said, had clubs, some sticks, and some canes. Leaving out of consideration this vague reference to weapons, it is difficult to see the materiality of such evidence on the trial of defendants for murder whose plea is justification. For aught to the contrary that this testimony discloses, the strikers were strictly observing the law when the witness met them and intruded his unsolicited opinions upon them.

twenty-third day of the trial, march 1, 1898.

The examination of witnesses for the defense was resumed, the following witnesses being examined:

Louis Meis, Alfred Kulp, William H. Taylor, Harry Dryfuss, jr., Thomas A. Harris, George Thomason, Samuel Ennis, Daniel Ferry (recalled further cross-examination), Oliver Liebensberger (recalled for further direct examination), Thomas Hall, William Shoemaker, James Martin (defendant, cross-examination).

The majority of the witnesses examined on this day were called to impeach the credibility of certain of the prosecution’s witnesses. To what extent this was successful is indicated in reference to the particular witness, which presently follow. As to this, it is to be observed that it is remarkable that in a trial for murder where the sole defense is justification so little evidence on the subject has been presented and so much time consumed in attempts at contradicting witnesses in trilling matters unconnected with the issue and not discrediting the mass of evidence, even though the effort should have been effectual in eliminating the particular testimony.

The principal and most important witness is defendant, Sheriff Martin. An extended summary and characterization of his testimony is embodied in the observations on the testimony taken on March 2, 1898, his cross-examination being extended over until that day.

The testimony of L. Meis is not important. His examination in chief was completely neutralized by his cross examination.

That of A. Kulp may be similarly characterized.

W. H. Taylor exhibited photographs of the strikers at McAdoo, September 3.

H. Dryfuss, jr., exhibited photographs of Lattimer, September 10.

Thomas A. Harris is the bookkeeper and paymaster for C. Pardee & Co. He described disturbance of 50 to 75 strikers at Lattimer, September 7. He was a deputy at Lattimer with a loaded gun on September 10. He was approaching the deputies when he heard the shooting. When he reached there after the shooting he found the majority of them standing in line. He saw dead and wounded and indicated their positions on the map. He was originally indicted, but there was a nolle prosequi as to him. He was subsequently recalled to locate the road at Lattimer where the breakers were situated. No. 3 is the one to which the strikers were going on September 10.

George Thomason is the superintendent of the Lehigh Traction Company, of which Mr. Kline, one of the counsel for the defense, is president. Thomason saw the strikers at West Hazleton, September 10. They were violent and dangerous. The deputies were lined up before them. He had charge of the car which took the deputies part of the way to Lattimer, as far as Farley’s Hotel. There, he said, the strikers had clubs. He saw the shooting. He said the deputies did not push the strikers with their guns. The sheriff, himself, subsequently said they did.

Samuel Ennis is the official court stenographer. He took the testimony in the preliminary hearing before the two judges sitting as committing magistrates. He prepared a correct manuscript of it. This was produced for the purpose of contradicting various witnesses of the prosecution by attempting to show that they had sworn differently at the preliminary hearing than they did at the trial. There were read extracts from this particular testimony taken by this witness at the preliminary hearing of the following witnesses for the Commonwealth: Guscott, Holman, Marinko, Yeager, Eagler, Novatry, Shefronik, Sevarko No. 1, Recek, Czia, Angelo, Locker, Bonin, Sevarko No. 2.

There were some discrepancies shown between their evidence at the preliminary hearing and that given on the trial, but not enough to seriously affect their general credibility.

Daniel Ferry, a witness for the Commonwealth, was recalled He denied that he had a talk with Oliver Liebensberger (a witness for the defense) about the strikers, September 10, or that he told Liebensberger that the crowd was in an ugly mood, or that they came near taking the guns from the deputies at West Hazleton, and that they would do it at Lattimer.

Oliver Liebensberger was recalled by the defense to contradict the preceding witness (Ferry). This raised a question of veracity between two witnesses of perhaps general equal standing as to credibilty. Even admitting Ferry to be a liar, it does not affect the issue materially. Ferry was not a striker and much less a leader of a strike.

Thomas Hall proved nothing of value to the defense. He told a very lame story. He worked at Lattimer in September and said he did not know of any complaints there in September. They were stopped there by a crowd on September 7. This was altogether qualified on cross-examination by his saying that he would not undertake to swear that the Lattimer people were satisfied with the wages they were receiving, or with the price of powder, or with the fact that they were obliged to deal in the company’s store. They heard the strikers were coming and left of their own accord before any strikers appeared.

William Shoemaker gave similar general testimony on his direct examination; but on cross-examination he endeavored to escape a positive answer as to whether there were not complaints by saying that he never was around when any talk of that kind went on.

In point of fact, that such complaints were unusual is almost a matter of history, which, under the law of evidence, proves itself.

He left of his own account and not because of any compulsion.

Neither of these two witnesses established the fact that they were driven out of work on September 7. They left voluntarily.

twenty-fourth day of the trial, march 2, 1898.

The examination of witnesses for the defense was resumed, the following witnesses being examined:

James Martin (resumption of cross-examination), Samuel B. Price, Ario Pardee Piatt, Alfred E. Hess.

The examination of James Martin, sheriff, was concluded on this day of the trial. He was naturally the most important witness for the defense, and its merits depend in very great measure upon the efficacy of his testimony. A careful and just estimate of this, occasion the conclusion that it does not all fulfill the promise of the opening address of his counsel that it would settle the fact that there was justification for the Lattimer shooting. Indeed, it fails to establish the necessity for the summoning of the posse comitatus. An accurate condensation of the essential features of his extended narrative is presented in the following reference to his evidence: On arriving at Wilkesbarre from Atlantic City on September 5 he did not go upon the ground forthwith, as presumably from the position taken by the defense was obligatory upon him, but on Monday, September 6, he went to Hazleton, and only consulted with Zerby and Platt, two interested persons and very unfriendly to the miners, and who made serious misrepresentations to him. All the evidence in the case shows them to have been misrepresentations. Encouraged by these misrepresentations, and having neglected to acquire for himself any knowledge on the subject by diligent inquiry and personal examination from independent sources, he hastened to secure a posse comitatus. At the suggestion of Messrs. Zerby and Piatt, alone, he selected Thomas Hall to get this posse comitatus for him. This was his initial error. The duty of such selection is one that the law forbids a sheriff to delegate. His insufficient excuse is that he was so unacquainted with the neighborhood as to make a personal attention to the matter impossible. His next blunder was to issue a proclamation, in which he referred to persons “terrorizing the people the way they were going there.” He was absolutely without adequate proof at that time that there was a condition of affairs in the Hazleton region which could truthfully be so characterized. Immediately after this action, and as indicating how he was wanting in sincerity and independence, he went to the bicycle races at Hazleton for the entire afternoon. This circumstance indicates that there could not have been a state of public terror in a neighborhood in which bicycle races were going on. In the meantime Hall got the posse comitatus together for the sheriff, the sheriff having no hand in their selection. He contented himself with going to the hall and swearing them in in the evening and with directing them to meet him early the next morning (Tuesday, September 7), with guns. How these guns were procured is told in the testimony of a subsequent witness (A. P. Platt), hereafter to be referred to. The first performance of the posse comitatus was to attend a ridiculously trifling disturbance at Crystal Ridge, September 7, which was evidently greatly magnified in the sheriff’s account of it, and which ended quite harmlessly and peaceably. After that they went to Beaver Brook, in the adjoining county, at the call of the manager there, only to find everything quiet and orderly. The sheriff and his men returned to Hazleton, peacefully took his dinner, and went back to Wilkesbarre, having seen nothing whatever to justify any proclamation or any posse comitatus with Winchester guns.

On the next day (Wednesday, September 8), he went to Drifton in response to a telegram and swore in some deputies there, obviously on a report the accuracy of which he did not take the trouble to investigate. These deputies, also, were apparently selected for him, as they met him at Drifton and were promptly accepted by him. He then went to Cranberry and Harwood, found everything in order, and returned to Hazleton. While at dinner there he heard that what he and the other witnesses for the defense persisted in calling “the mob” were at Stockton Junction. He went thither with 1 deputy, had a talk with “the mob,” and as they seemed indisposed to disperse, he told them they must, as “the people were in a state of terror.” So far as the evidence discloses, up to this time there was nothing in the situation to warrant this statement as to “a state of terror.” It was a wholly unwarrantable assumption. The strikers were readily dispersed. Then he went to Crystal Ridge with 50 deputies. There was some discussion between him and some of the strikers. No violence was, however, committed, and the sheriff went away. He then made the important admission to Mr. F. Pardee that he, the sheriff, had no right to interfere with the strikers, as they were doing nothing wrong.

Up to the morning of September 9, therefore, according to his own testimony, there was no “state of terror,” and absolutely no occasion for summoning or maintaining a posse comitatus. He indeed admitted to Sheriff Setser at Crystal Ridge, at 10 a.m. on the 9th, that there was no need for a posse at that time. Later in the day there was a body of strikers whose numbers were not specified, and who were readily dispersed by the sheriff or deputies, and one man, after the “mob” had gone away, fired a gun at the deputies. He was not arrested, however, although it was, apparently, an easy thing to do, and the strikers departed unmolested. The sheriff and deputies remained until 4.30 p.m., but matters remained in their general peaceable condition and he left Hazleton at 5 p.m., arriving at his home at Wilkesbarre at 7 p.m. We find no “state of terror,” therefore, or anything out of the ordinary, up to the morning of September 10.

On Friday, September 10, the sheriff went to Drifton again. His posse there awaited him. He arranged to be in easy communication with “any part of the trouble.” What the “trouble” was a careful examination of his testimony up to this time does not make manifest. Upon dispassionately reviewing the events of the preceding four days, as detailed by this extremely interested and partial witness, it becomes only too plain that the single purpose of the call to the sheriff and the summoning of the posse comitatus was to defeat the strikers in their lawful efforts to secure an increase of wages.

Nothing happened on September 10 until 1 p.m., when, hearing that the strikers were coming to Hazleton No. 1, the sheriff and deputies went to West Hazleton and confronted a body of men, to whom he said “I want you to stop;” and one man replied, “You can’t stop us.” This expressed understanding of the striker was wholly in accordance with the sheriff’s own opinion as expressed to Mr. F. Pardee on the previous morning and already referred to (see his testimony, p. 1999). As to this, indeed, the sheriff’s whole attitude and conduct at the West Hazleton encounter indicates that he had serious doubts as to his right to stop the strikers. He and his deputies finally left there. Subsequently, word came that the strikers had resumed their march, and he said, significantly, they could not help it. However, he concluded to go to Lattimer with his deputies. At Harleigh he saw they were going to Lattimer. He and his deputies went there also. At Lattimer he said to his deputies that if the strikers said they were going to do nothing he would let them proceed. Here is another indication of his doubt as to his authority to interfere with them.

At Lattimer, on the highway, the sheriff ordered the strikers to stop, and they said they would not. The crowd surged around him. He drew his revolver. The crowd pushed him to one side of the row. One man struck him on the cheek. The sheriff got down on his knees. He is suspiciously vague in this critical part of the story. One man drew a knife and 2 held their revolvers out. But he does not say that any shots were fired by these 2 strikers or any others of them; and, accommodating this part of the evidence to the great mass of the testimony, as it is right to do, it is clear that nothing happened beyond what Mrs. Catharine Harvey stated in her cross-examination, and that is that the men in the rear of the column of strikers pressed the men in front ahead, so that they crowded ahead of the sheriff and forced him aside. It is worthy of note in this connection that he does not say that he gave the order to fire. If he was threatened with danger, as he and others have striven to imply by their testimony, the deputies could easily have come to his relief. The circumstances related by the sheriff present no justification for their remaining in line and firing indiscriminately. He did not order them to cease tiring, and admitted that he was very much surprised at the shooting, which of itself shows his belief that it was unnecessary. He confessed on his cross-examination that he did not originally confer with the mayor of Hazleton nor with any justice or constable, or invoke their assistance in the selection of his deputies.

It is impossible to avoid the conviction in the light of this testimony of the sheriff that there was really no abiding sentiment in his mind that the strikers were guilty of any criminal infringement of the rights of others. His principal anxiety seemed to have been how consistently to disperse those who had the right to march on the public highway. He was apparently divided between a desire to comply with the wishes of the people who had urged him to call out the posse comitatus and the belief that the strikers themselves were not seriously in the wrong.

Samuel B. Price was the sheriff’s chief lieutenant. Upon September 6 Hall asked him to serve as deputy and he told him he would. This confirms the sheriff’s story as to his unlawful delegation of his authority. The sheriff’s instructions to his deputies, as repeated by Price, vested a discretion in the deputies that was as unwise as it was unwarranted. Price gives the same account as the sheriff of the proceedings on September 7, at Audenried and Beaver Brook, and the dispersing of the deputies at Hazleton at noon. Also, there is presented by him a relation of the experiences in the afternoon—the going to various places on unfounded rumors of truth; the return to Hazleton, and their dismissal for the day. And so as to Crystal Ridge and Cranberry, on September 8, there was no real disorder whatever there or at Stockton on the part of those whom they persist in calling “the mob.” He was at Crystal Ridge all the afternoon with the sheriff, meeting 150 strikers, who did no violence, and who peaceably dispersed at 5 p.m. Likewise, on September 9, he went with the others about the country on false reports as to disorder; and finally he met a body of strikers at Beaver Meadows, with whom they had a little trouble; but there was no violence and no injury to person or property, or any real disturbances, so the deputies returned to Hazleton. Each night they went to their beds at home, leaving but a small guard, for form’s sake, over their guns.

So much for four days’ experience of the posse comitatus, during which the witness related nothing that afforded a justification for the necessity of the posse.

With reference to West Hazleton on September 10, Price mentions no real violence on the part of the strikers when they pressed back with their guns. He tells, indeed, of feeling 20 to 25 revolvers in the men’s pockets, but takes care to say he saw none.

Beyond saying that he got a “glimpse” of the “mob “making for the sheriff at Lattimer, he told nothing of the incident preceding the shooting. His back was turned to the strikers, and he says he was confronted by a “large Hungarian,” who fired at him from the alley with a revolver. This is the first time that any reference has been made to the “big Hungarian,” whose presence alone on the other side (the rear) of the deputies is unexplained. Price’s story as to this is altogether uncorroborated. Assuming that it may be true, the “big Hungarian” is not identified by this witness as belonging to the strikers’ body. In fact, he said he did not think he was one of them. Further than this, Price said that Eby, Berryman, and Ravert, of the deputies, were with him when the “big Hungarian” shot at him, but not one of these individuals was called to sustain Price. This omission on so important a point could not have been accidental.

Price said that he did not shoot at Lattimer. He mentioned a number of the deputies who were furnished with Winchester rifles and guns of the 16 shooter pattern. It was made clear by his cross-examination that there was no real state of terror in the Hazleton region prior to September 10.

A. P. Platt is the superintendent of Pardee & Co.’s store in Hazleton. He was an exceptionally and suspiciously zealous witness for the defense. His bias was evident and altogether in excess even of the bias of a defendent on trial for homicide. It is what might be styled an impersonal bias. He told in very effusive language of the occurrence at Cranberry, where 150 strikers had a demonstration, in which there was no violence to person or property, and about apprehensions for which he gave no substantial reasons.

Like the other preceding witnesses, he said the affair at Crystal Ridge, on September 7, was only a demonstration. They peaceably dispersed after having treated the sheriff “courteously.” So as to Beaver Meadows and other places, September 7, he “heard” of disturbances, but really saw none. They returned to Hazleton at night, as he says, “having seen nothing of a startling nature.”

On September 8 they were at Crystal Ridge all morning, as to which he repeated the expression, “nothing of a startling nature occurred.” Then they went to Hazleton and back to Crystal Ridge in the afternoon, met and dispersed a band of strikers with little difficulty, and here again there was no injury to person or property. There was a great deal of talk on these various occasions in foreign tongues, which he confessedly did not understand, yet Platt and other witnesses constantly testify to threats, etc., of the strikers, who, according to the witnesses’ reports, generally used their native language.

On September 9, at Beaver Meadows, there was held a demonstration by a more or less boisterous mass of the strikers, who, however, were easily dispersed without any semblance of riotous proceedings on the strikers’ part. He told substantially the sheriff’s story about the meeting of the sheriff and deputies with the strikers at West Hazleton.

At Lattimer, September 10, he said that the sheriff’s life was in danger, but duly allowing for his exaggerated and pompous manner of testifying, none of the circumstances related by him support his view; on the contrary, they are wholly inconsistent with it. None of the preceding witnesses for the defense, much less the sheriff himself, present any such elaborately embroidered narrative. There is a marked contrast in his skillfully devised testimony between the demeanor of the strikers at West Hazleton and at Lattimer. According to him, they were quite peaceable and friendly at West Hazleton and wildly ferocious at Lattimer. Nevertheless, he swore that a line across the road at Lattimer, as the deputies were arranged at West Hazleton, would have enabled them to press the strikers back with their guns, as they did at West Hazleton.

Note.—Remarks upon the testimony of Alfred E. Hess will be found on observations on the testimony taken on the twenty-fifth day of the trial, March 3,1898, his cross-examination being concluded on that day.

twenty-fifth day of the trial, march 3, 1898.

The examination of witnesses for the defense was resumed, the following witnesses being examined:

Alfred C. Hess (cross-examination resumed), John L. Salem, A. P. Platt (recalled), Charles J. Haen, Thomas Hall, Sheriff Martin (recalled), M. Conneff.

These witnesses were all defendants and participants in the Lattimer affair, with the unimportant exception of M. Conneff. Their testimony places the defense in no better position than it was left after the close of yesterday’s proceedings.

Alfred E. Hess is a civil engineer in the employ of the Lehigh Traction Company. He was one of the deputies, and captain of Company A of the posse comitatus. He repeated briefly the story told by the other witnesses for the defense, and gave no instances of injury to persons or property, or any really riotous conduct on the part of the strikers. As to Lattimer, he subsequently confirms Mrs. Elizabeth Harvey, already respectively referred to, in saying that “the front halted for a moment and they moved on from behind.” He compared it to a football scrimmage.

He contradicted other witnesses for the defense when he says Platt and other deputies rushed out to protect the sheriff at Lattimer. It can not be too frequently urged that the convergence of the roads there explains this witness’s account—rushing to the line of the deputies. Their advance necessarily and unavoidably brought them in that direction.

Hess’s fear that the strikers would charge on the deputies and take their guns from them is absurd and is a palpable afterthought. It is rendered incredible by his statement that only 3 or 4 of his men fired. Hess did not fire either.

Price selected Hess as deputy, not the sheriff. Like Price, he endeavored to create the impression that the deputies were very gentle with the strikers at West Hazleton.

His cross-examination made it very plain how, in consequence of the convergence of the two roads at Lattimer, the left of the deputies’ line was nearer to the public road than its right. Hess says they were 75 to 100 feet distant on the right and 15 feet on the left. The majority of his company was composed of men closely identified with the coal and iron interests.

It is believed that the refusal of the court to allow the Commonwealth to show the relations of the deputies with the coal and iron interests was improper. It is true that the evidence was practically introduced, but the expression of opinion by the court on its formal exclusion was calculated to prejudice the prosecution.

John L. Salem was another defendant. He was selected by Hall. At Lattimer he saw the sheriff approach the “mob.” There was, according to his testimony, a repetition only of the West Hazleton experiences, and nothing more serious or formidable. His account of the rush toward the deputies by the strikers tallies with Mrs. Elizabeth Harvey’s relation, just referred to. The witness was “just about overcome with the heat” and went back to lean against a fence, when he heard a shot fired from the left of the deputies’ line. By the time he got back into line it was all over.

Salem did not fire, either, he said. He did not see the sheriff down or getting up. He would not say that anybody rushed toward the sheriff at Lattimer.

Charles J. Haen was another defendant. He is in the employ of A. Pardee & Co. His account of the Lattimer affair shows no justification for the shooting, so far as the sheriff was concerned. According to Haen’s story, the sheriff was in greater danger than he was at West Hazleton. He tells of being shot at (he “thought he was shot at” were his exact words), and of then firing himself. He is the first witness of the defendants to admit having fired, and is the only one of all the few defendants that were called who made such an acknowledgment. His account of the strikers making a break to the deputies is likewise readily reconcilable with Mrs. Harvey’s often-quoted statement. As to his being shot at, this is the very first and only reference during the entire trial that has been made to any such occurrences. It bears the impress of pure invention. He mentioned 3 deputies who were immediately on either side of him, but not one of them nor anybody else was called, down to the termination of the trial, to corroborate this part of his testimony. This omission by the defense plainly indicates the untruthfulness of the story. So important an item of defense would not have been so neglected had the counsel had faith in the witness’s testimony on this point, or had it been possible to secure a confirmation of the story.

Thomas Hall was another defendant. To him was delegated the selection of the deputies by the sheriff on September 6. He really began the selection before he saw the sheriff. It is, at least, remarkable that no one but Hall heard the sheriff’s instructions to the deputies as detailed at length by this witness. It altogether fails of corroboration. He gave his version of the Lattimer affair; so far as he relates, there was nothing in the conduct of the strikers more serious than their actions at West Hazleton earlier in the day. His account of the strikers pressing forward is also quite in accord with Mrs. Harvey’s story, as well as that of the Commonwealth’s witnesses, and which give unquestionably the real character of the movement. The rear of the large column pushed the front forward, and, as already observed, the convergence of the roads unavoidably brought the head of the strikers’ column close to the left of the deputies’ line. A fair deduction from his testimony is that the shooting was premature, precipitate, and unwarranted by the emergency.

Hall said he did not fire, either.

M. Conneff is a court officer. He said he thought from the appearance of the sheriff’s cheek on the night of September 10 that he had been struck by something.

twenty-sixth (and last) day of the trial, march 4, 1898.

The examination of witnesses for the defense was resumed and concluded, the following witnesses being examined: Andrew Sevar No. 2 (recalled for further cross examination), Andrew Sevar No. 1 (for further cross examination), John Eagler (recalled for further cross-examination), Andrew Nowatny (recalled for further cross-examination), Martin Locher (recalled for further cross-examination), Frank Krupka (recalled for further cross-examination), A. P. Platt (recalled).

And here the defense rested their case.

The examination of witnesses for the prosecution in rebuttal then followed, the following witnesses being examined: T. P. Ryder, Mr. Strouse, Joseph Costello, Fred. Williams, Leo Chemeleakie, Andrew Sevar No. 2, John Eagler, P. F. Failon, Michael Nicholson.

And here the Commonwealth rested.

The proceedings on the last day of the trial possess no special importance. Various witnesses for the prosecution were recalled by the defense for further cross-examination, for the purpose apparently of showing that the evidence as to the resolution of the Harwood meeting of September 9 not to carry weapons was a fabrication, inasmuch as none of the witnesses testified on this particular point at the preliminary hearing before the two judges in September, at which the defendants were held for trial. The attempt to show this was not successful. It is to be observed as to this that there was no necessity for introducing this item of evidence at the preliminary hearing. In point of fact—although in strictness it is out of place in a criticism of the present proceedings—the representative of the Austrian Government, who was at Hazleton after the shooting, embodied in his affidavits a reference to this particular action of the Harwood meeting of September 9. This definitely disposes of the fabrication theory.

Other testimony, on the last day, to be briefly noted was that of the witnesses who showed in contradiction of the sheriff and other defendants that there were no signs of marks or bruises or discoloration on the sheriff’s face on the evening of September 10.

There was manifest impropriety in the court’s inquiry of Joseph Costello (p. 2354) whether Costello had written him a letter during the trial. This was put to the witness at the end of his examination in rebuttal of Hess’s testimony on the point of Hess’s threats to witness at Lattimer. Costello was an important witness for the prosecution, and the court’s question had nothing to do with the case, and in view of the court’s previous animadversions on anonymous communications which he averred had been sent him during the trial was doubtless of effect to prejudice the witness’s status with the jury as well as to injure the prosecution.

It is believed, too, that the court erred in refusing to admit the evidence of Fred. Williams (p. 2355) in proposed contradiction of Charles J. Haen as to the strikers making a dash at the defendants at Lattimer, September 10.

The evidence offered by the Commonwealth on this point was abundantly competent as rebuttal testimony under the well-recognized and constantly applied rules of evidence.

There was a verdict of “Not guilty” as to all of the defendants, and they were discharged.

General Review of the Trial.

The trial was, upon the whole, well conducted by counsel for the prosecution. They were embarrassed at the outset by the inadequate initial preparation of the case by the district attorney, who had original charge of it. The district attorney officiating at the trial came into office on January 1, 1898, and it is but fair to him to remark that had he had the conduct of the prosecution from the date of the preliminary hearing at which the defendants were held for trial, he could, and very probably would, have presented a stronger case for conviction.

It may with propriety and confidence be asserted that the jury were in sympathy with the defendants from the very commencement of the trial. They did but reflect the general sentiment of the community from which they were selected. Perhaps, had it been possible to try the case at an earlier day, this sympathy would not have been so active or so potent. Even, however, assuming it to have been entirely absent from the breasts of the jurors, it is only just to admit, in view of the very negligent original preparation of the case and the consequent status of the prosecution when the case came on to be tried, there was a real difficulty in securing the conviction of the defendants. This would have presented itself to the most impartial jury in this form—the inevitable doubt as to guilt which secures every accused person his acquittal. That this doubt was natural, regarding a number of the defendants, notwithstanding their presence and technical participation in the Lattimer affair, can not be denied or unfavorably criticised. In simple justice to the present jury, their verdict has a partial, if not wholly adequate, explanation in this aspect of the case.

It is believed that a trial or trials of the other indictments in this jurisdiction would very probably result similarly to this one. A change of venue would be absolutely essential to an entirely fair trial.

The trial resulted in a miscarriage of justice. Of the 109 witnesses called by the prosecution a very large majority were actual eyewitnesses of the occurrences at Lattimer on September 10, 1897. Their great number entirely precludes the possibility of their having told a prearranged story to the jury. It is a remarkably consistent narrative that each witness relates, and the fact that they were not permitted to hear each other’s testimony confirms the theory that no fabricated and partial account of the shooting could have been successfully determined upon by them in advance of the trial. Had the Commonwealth confined itself to a moderate, though legally sufficient amount of proof, it might have eventually left room for a just doubt as to the actual merits of the important issue. This was, indeed, in substance, the tactics adopted by the other side, and the Commonwealth’s liberal contribution to the history of the affair presents a suggestive contrast to the meager testimony offered by the defense as to what transpired at Lattimer, September 10, 1897. It is true that the defense called a host of witnesses. A large proportion of these were, however, offered solely for the purpose of showing a condition of affairs previous to the shooting in justification of the summoning of the posse comitatus. This part of the defense, as has already been urged, entirely failed to fill the measure of proof necessary to establish such a justification. The disorder and turbulence incident to strikes in general were undoubtedly set forth in graphic and picturesque language by these witnesses for the defense, again and again, but it is not believed that it is possible for any impartial person, uninfluenced by local passion or prejudice, to realize from all this mass of testimony that in the Hazleton region, during the week ending September 10, 1897, the community was in terrorem publici; which condition of the population of a neighborhood is an essential prerequisite to the summoning of a posse comitatus. There is, indeed, the frequently repeated expression of the fears and apprehensions of the witness for the defense. An accurate and just estimate of this testimony, however, occasions either the conviction that their fears were matters of afterthought or that the circumstances related by these same witnesses as developing such fears could not on the part of rational human beings, of the average standard of judgment and intelligence, have furnished any warrant whatever for their existence. It is highly probable, indeed, and their is fair ground for argument favorable to the prosecution based upon such probability, that the mere presence of the posse comitatus in the neighborhood of Hazleton for the week preceding the occurrence at Lattimer unduly excited the population, and gave birth to those very apprehensions. Certainly, the evidence is insufficient to establish a legal warrant for the formation of the posse comitatus on September 6. The strongest testimony on that point is, naturally, that of Sheriff Martin himself; but it discloses nothing, beyond vague representations made to him by interested and inaccurately informed persons, of a riotous or criminally violent character in the conduct or attitude of the miners. Therefore, the summary organization of the posse comitatus was a precipitate and premature performance. It was a palpable device, in the interest of the coal operators, to thwart the lawful schemes of their employees, under the color of law. Its precipitous and premature character, then, would of itself contribute, naturally and unavoidably, to stimulate the popular pulse to a feverish extent. Herein, consequently, is found the explanation of the apprehensions and fears of the citizens of Hazleton and its vicinity, and so sufficient is this explanation that there is no need to seek further to understand them. It can not be reiterated too frequently that there was nothing, so far as the entire testimony on the subject indicates, in the demeanor of the mining population at large to occasion a condition of general apprehension. To resume, the posse comitatus itself, and its performances, made such a state of mind not only possible but unavoidable.

As already observed, there was a great number of eyewitnesses on the part of the prosecution, who testified to the occurrences at Lattimer on September 10, 1897.

On the other hand, the witnesses called by the defense to testify to the Lattimer shooting were comparatively few in number. The most important of these were the sheriff and the deputies themselves. It is not to be overlooked that but 7 of the posse comitatus, including the sheriff himself, were put upon the witness stand; and that all of them but one, Haen, denied having fired at the strikers. When it is considered that the sole defense interposed was justification created by the presence of a dangerous mob of rioters, it is difficult to explain on any theory consistent with the innocence of the deputies why the fact of the shooting, impliedly admitted by the very character of their defense, should not have been testified to by some of these witnesses. Its careful exclusion by the counsel for the defense finds its obvious and only adequate explanation in the consciousness of guilt.

The preponderance of evidence as to the true character of the Lattimer affair is, then, unquestionably that of the Commonwealth’s side. As to the character of this evidence, it may with justice and confidence be asserted that it bears with it the customary marks of genuineness and truthfulness. Whoever is familiar with the subject of human testimony must recognize in the successive relations of these inexperienced and uneducated miners all the unfailing indicia of sincerity and veracity which distinguish trustworthy evidence from that which is fabricated and untruthful. The very discrepancies which occasionally interfere with the reconciliation of an account by one witness with that of another with equal facilities for observation do but serve, under a well-established principle of the law and philosophy of evidence, to affirm the essential acceptability of the general body of the testimony.

Whether the miners were armed or not at Lattimer on September 10 is, under the evidence as to what actually occurred there on that day, not very important. They, themselves, swore, to a man, that they were not armed. Some of the witnesses for the defense insisted that they were provided with clubs, and some mention was made of knives and revolvers. The witnesses for the prosecution were quite as worthy of belief as those for the defense, and far outnumbered the latter. The witnesses for the defense varied widely in their estimate of the number of the clubs carried, and so different were their estimates that the effect of their testimony on this point is at least seriously impaired. However it may have been, it is unquestioned and unquestionable that no threatening display or use was made of any weapons by the main body of the strikers on September 10, or, indeed, at any other time, and giving the testimony for the defense on this subject the widest possible range and indulgence, all that may, with any approach to accuracy, be asserted is that 2 or 3 of this large assemblage of strikers did, on the occasion in question, indulge in an alarming manifestation of weapons. Conceding so much—and it is the very utmost the evidence permits—there still remains an absolute absence of provocation for the wholesale destruction of human life which attended the encounter of the sheriff and his deputies with the miners on September 10. This feature of the case is extensively considered in the discussion of the testimony of Sheriff Martin.

Mr. Martin was the principal defendant, and, of course, the most important witness for the defense, and, as observed, the merits of the defense depend in very great measure upon the efficacy of his testimony. It is there shown, it is believed, that by the sheriff’s own carefully considered and rehearsed testimony a substantial provocation for the shooting by the deputies fails to be disclosed.

In the line of this criticism of the weakness of the defense’s attempt to establish a justification for the shooting on September 10, there is to be mentioned the testimony of Deputy Price, who was also the sheriff’s “chief lieutenant.” At the critical period Platt’s back was turned, and could tell nothing material or important concerning the action of the strikers just at that juncture. He did, indeed, tell of a “big Hungarian” firing at him, Price, while his back was so turned. There was, however, no attempt whatever made to identify this “big Hungarian” with the main body of the strikers, and there is no fair inference to be drawn as to such identification, but no other witness referred to the “big Hungarian,” and although Price said that three of the deputies saw the “big Hungarian,” not one of these deputies was called to sustain him.

Likewise the shortcomings of the defense are forcibly illustrated by the narrative of A. P. Platt, another deputy. He was an intensely interested and prejudiced witness, whose whole manner of testifying was bombastic and exaggerated in the highest degree. He insisted that the sheriff’s life was in danger, but gave no circumstances in support of his assertion. The contrast between his highly embroidered story and the simple relation of the average eyewitness called by the prosecution is impressively suggestive. As for Hess and Hall, the two other deputies, upon whose evidence so much importance was placed by the defense, especially with reference to the occurrences at Lattimer, it is to be remarked that neither witness told a story that would carry conviction to the impartial mind that the miners were sufficiently at fault to excuse their shooting by the deputies. Each of these witnesses confirms, in substance, the account of Mrs. Elizabeth Harvey, a witness for the defense, whose explanation of the movement of the strikers at Lattimer immediately before the shooting is undoubtedly the only true version, corroborating, as it does, the stories of the miners themselves. Mrs. Harvey had an excellent point of view, and on her cross-examination there was elicited the very important fact that the rear of the body of strikers, pushing ahead after the halt by the sheriff, forced those in front beyond the sheriff. Then it was that the firing was begun by the deputies. It is confidently urged that this statement of Mrs. Harvey presents the true condition of affairs immediately preceding the shooting at Lattimer. It is the statement of a hostile witness, animated by no purpose to assist the cause of the miners, yet it sets forth effectively that the pressure from the rear of the column forced the head of the column violently forward. This movement of the column of strikers did not afford a justification for the sudden and precipitate killing of nineteen men and the serious wounding of twice as many more.

A careful consideration of the entire testimony relating to the Lattimer affair, September 10, 1897, forces the conviction that the deputies were the victims of a sudden panic, under the pressure of which judgment and discretion entirely forsook them. The history of riots conclusively establishes the fact that bloodshed can almost invariably be avoided, and there was nothing in the attitude and demeanor of the miners at Lattimer which justifies the belief that their reckless slaughter was necessary. They were, unquestionably, unprovided with deadly weapons, and although they were turbulent and demonstrative—a condition inseparable from a large, undisciplined body of laborers—they were not rioters, notwithstanding the unjust intimations to that effect thrown out to the jury in the charge of the court.

There is no question that the verdict of the jury met with general acceptance throughout the country. The opinion had been almost universally expressed that the killing of the miners at Lattimer had a salutary effect, even though, as was commonly conceded might be the fact, there was no legal justification for the firing by the deputies. The state of mind which is crystallized in this opinion no doubt entered into the jury box. This indicates how impossible it is to secure local justice for those who suffered directly and indirectly by the Lattimer affair, or to obtain punishment for those who, without sufficient warrant, assumed to interpret and summarily execute the law. For this failure of justice on the part of the duly constituted authorities of the Commonwealth of Pennsylvania, a responsibility attaches to the Government of the United States for the deaths and personal injuries of subjects of a foreign power, in consequence of such denial and miscarriage of justice. This doctrine is succinctly stated by that preeminent authority, Mr. James Bryce, in the following language:

A foreign Government is prima facie entitled to redress for injuries lawlessly inflicted on its subjects, even if no treaty guarded this right, and a fortiori if a treaty does in fact secure it.

This redress may be civil by way of pecuniary compensation, or criminal by the punishment of the offenders.

The criminal form is more important, because it affords better security for the protection of alien residents in future.

If punishment fails to be awarded, the defects of judicial procedure, or the perverseness of those who administer it locally, will be no answer to the complaints of a foreign Government, and if the denial of justice is palpable, and the case serious, a foreign Government will be entitled to treat such denial as a grave breach of international rights, possibly even as a casus belli. (Legal and Constitutional Aspects of the Lynching at New Orleans, 1891. New Review, Littell’s Living Age, vol. 189, p. 579.)

The obligation of the Government of the United States to indemnify the subjects of a foreign power for injuries sustained under the circumstances indicated had been already practically admitted by the Department of State; “not as under obligation of treaty or principle of international law, but solely from a sentiment of generosity and pity. In view of the failure of the authorities to uphold the law or punish the criminals, it may reasonably be a subject for the benevolent consideration of Congress whether, with the distinct understanding that no precedent is thereby created, or liability for want of proper enforcement of the law, they will not, ex gratia, grant pecuniary relief to the sufferers.” (Mr. Bayard, Secretary of State, to Mr. Cheng Tsao Ju, February 18, 1886. Wharton’s International Law Digest, vol. 1, p. 486.)

The legal aspect of the question of the lack of justification for the shooting at Lattimer on September 10, 1897, may be thus presented: The sheriff of the county of Luzerne is, under long-established law and precedent, the conservator of the peace of the county, and his authority to assemble the posse comitatus, under a given emergency and to preserve that peace, is unquestionable. It can not be seriously maintained, however, that the sheriff is invested with such absolute discretion in the matter of the calling out of the posse comitatus that he can in no event be held accountable for the capricious or unjust exercise of that discretion. This would place in his hands a power that was, indeed, possessed by the sheriff in England in the Middle Ages, when he was a veritable autocrat, from whose ministerial acts there was no appeal. Although there has been no legislation, either in England or in any of the United States, diminishing in appropriate and explicit language the sheriff’s arbitrary prerogatives, the trend of judicial decision, an enlightened public policy, and the spirit of our institutions have been effectual in contributing materially to limit the sheriff’s authority. The criminal prosecution of Sheriff Martin and his deputies for the murder of Mike Ceslak was the first proceeding of its kind in the history of English or American law, so that there exist no precedents by which it may be measured or criticised. There have been, however, innumerable suits against sheriffs for civil damages for negligence, and for various acts of omission and commission, whether done colore officii or virtute officii, and these suits for the defaults or misdoings of sheriffs have been constantly sustained by the tribunals of both nations. The liability of the sheriff being so completely recognized by the law in civil proceedings against him, indicates plainly that the mediaeval immunity of the sheriff from responsibility for his official acts has been sensibly abridged.

Such being the case, therecan be no substantial reason presented for assuming that his liability for an extravagant exercise of discretion in the discharge of his duties as a conservator of the public peace should not at the present day be reviewable.

The claim of the Austrian Government against that of the United States is materially strengthened by the circumstance that the action of the sheriff and his deputies at Lattimer on September 10, 1897, was by no means of effect to restore order and obedience to law. So far from that result being secured, it precipitated a condition of affairs in the Hazleton region infinitely worse than that which, according to the testimony in the case of the Commonwealth v. Martin, existed previous to that date. There was thereby rendered imperatively necessary the immediate calling out of the State troops, whose presence was required to restore that peace and order which the unjustifiable shooting at Lattimer had destroyed, and the expense of whose transportation and maintenance entailed a charge upon the State of Pennsylvania of over $150,000. In the light of this remarkable sequel to the occurrence at Lattimer, and which is most inaccurately characterized as “a conflict,” it is impossible to adopt the conclusion that it was either inevitable as a lawful necessity or as a means to the end of enforcing obedience to the law.

Robert D. Coxe,
Of Counsel for the Imperial and Royal Austro-Hungarian Government.

14 South Broad Street,
Philadelphia, April 22, 1898.