1. Oscar Neebe. Not mentioned, so far as I can find, in the record of the evidence except that he was at a German picnic, eating cheese and drinking beer, where a peddler was plying his vocation selling Johann Most's book of revolution.

2. Samuel Fielden was at the meeting, made threats, shot, perhaps shot twice. This does not even tend to prove that before the shooting he had aided and abetted the bomb-thrower, who threw his bomb before this shooting. (Mr. Swett's brief, page 3.)

3. Albert R. Parsons had called and was attending a meeting on the south side; was sent for from Haymarket; went to Haymarket; made a peaceable speech; went with his wife and lady friend to Zepf's saloon, three-quarters of a block to the north, and was there when the bomb was thrown. (11.)

4. August Spies (19, 20, 21). He was at the Haymarket on Desplaines street, and came there from the north. Therefore he missed Schwab, who came from the east to the meeting to hunt him. He mounted a wagon for a speakers' stand. This wagon stood ten feet north of Crane's alley, on the east side of the street, and about fifty feet north of Randolph. He called meeting to order; called for Parsons as speaker, went for Parsons to the corner of Randolph and Desplaines, to the south-west, with his brother Henry, and then came back; spoke himself; remained on wagon; did not get off from the wagon and go ten feet south and then east into Crane's alley, with Schwab or any one else. When police ordered dispersion of meeting, he got down from wagon, with help of his brother, and went to Zepf's Hall. Before getting there, bomb exploded. (23, 31, 32, 33, 34, 35.)

Thompson swore (15) that Spies and Schwab were together walking about talking of "pistols" and "police." "Do you think one will be enough?" "If they come we will give it to them," etc., etc. These gentlemen conversed in English; both men were in a foreign country; offers were made to prove that ordinarily they spoke in German. Thompson received unknown sums of money from prosecution; wife the same.

Gilmer received unknown sums of money from prosecution (30). He saw Spies get down from the wagon, come into Crane's alley with Fischer; saw him light the bomb that was thrown from that alley.

The improbabilities of this story are:

1. He made no outcry. (29.)

2. He did not tell of this to any one, although the same evening, and a few moments afterwards he had different conversations about the meeting and talked with people in the street car going home. (29.)

3. He would not be positive he ever told even Bonfield he saw the fuse lighted. (29.)

4. He was not called before the coroner's jury the next day, nor before the grand jury where there were full investigations, notwithstanding before the grand jury met he had talked with the prosecuting officer in reference to what he knew. (30.)

5. He told Grinnell these facts Sunday morning after the Haymarket, but didn't tell him he knew the parties.

The only time which Spies got down from the wagon after he called meeting to order was to go for Parsons, which he did, with Henry Spies and Legner (page 19), going south-west across the street. The direction to the alley was ten feet to the south and then directly east. (9 to 21; 31 to 33.)

Order of dispersion was given a moment before bomb exploded.

1. Spies was on the wagon, and his brother Henry and Ernest Legner helped him down, and as they reached sidewalk bomb exploded. They went to Zepf's Hall, to the north, and did not go to alley at all, or towards it, which would have taken him ten feet south and east. It was three-quarters of a block north to Zepf's Hall. (31.)

2. Spies gave this same account when first arrested. (31.)

3. Just as Spies jumped from the wagon, Henry Spies, who had hold of his brother, was shot, and there was no shooting by anybody, as the whole case shows, until after the bomb exploded. (31.)

4. Ernest Legner, who knew all these facts, was before the grand jury, and his name was on the back of the indictment. Therefore, when the case was put together afterwards, Legner's testimony was adverse to the new theory of Thompson and Gilmer, and he was left cut as a witness on the trial. (32.)

5. These facts were not only sworn to by Henry Spies and not contradicted by Legner, but Spies was seen to get down from wagon when order for dispersion of the meeting was given, and his brother was seen to help him down.

1. By Joseph Bach. (32.)

2. By Max Mitlacher. (32.)

3. Sleeper T. Ingram saw Spies, as Fielden said, "We are peaceable," reach his hand down to be helped, jump down, and bomb exploded before he reached sidewalk. (32.)

4. Conrad Messer saw Spies get down when order of dispersion was given. (33.)

5 and 6. Krumm and Albright, stood in Crane's alley, no match was lighted in the alley. (33.)

7. William Murphy was on speakers' wagon with five or six others, when the order of dispersion was given, and no one got down. (33.)

8. Adolph Tennes saw Spies on the wagon when order for dispersion was given, and started off from it, leaving Spies on the wagon. (33.)

9. Fielden saw Spies on wagon when Capt. Ward gave the order of dispersion. (34.)

FISCHER, AS STATED BY GILMER, WAS WITH SPIES WHEN BOMB WAS LIGHTED AND THROWN, AND YET FISCHER WAS, IN FACT AT THAT VERY TIME, IN ZEPF'S HALL.

(1.) Wandray saw him there. (34.)

(2.) Lizzie Holmes saw him there before the bomb was thrown. (35.)

(3.) Thomas Brown saw him there just before bomb exploded. (35.)

Lieut. Shay says Fischer, when first arrested, in giving an account of himself, said he was at Zepf's Hall, when the bomb exploded. (34.)

(5.) Albert R. Parsons saw Fischer when he went to Zepf's Hall, sat awhile at the same table with him, went where his ladies were, and just then heard explosion of bomb.

THE BOMB WAS NOT THROWN FROM THE ALLEY, BUT WAS THROWN FROM THE EAST SIDE OF DESPLAINES STREET, ABOUT FIFTEEN OR TWENTY FEET SOUTH FROM THE ALLEY, AND FROM BEHIND A PILE OF BOXES.

(1.) Officer Haas, for prosecution:

From five to six feet south of the corner of the alley. (36.)

(2.) Reporter Hull, also for prosecution:

From fifteen to twenty feet south of Crane's alley. (36.)

(3.) Heinemann, also for the state:

From half way between Crane's alley and Randolph. (36.)

(1.) Barton Simonson:

From nearly twenty feet from the south line of Crane's alley, and from behind a pile of boxes. (37.)

(2.) Ludwig Zeller:

From five to six feet south of alley. (37.)

(3.) Frederick Liebel:

From midway between the alley and Randolph street. (37.)

(4.) Dr. James Taylor:

From twenty to forty feet south of the alley, from behind a pile of boxes. (37.)

(5.) William Urban:

From fifteen to eighteen feet south of the lamp-post at Crane's alley. (38.)

(6.) August Krumm:

Stood near the mouth of Crane's alley; bomb did not come from there, did come from twenty feet south of the alley. (38.)

(7.) William Albright:

Was in Crane's alley and the bomb was not thrown from the alley. (38.)

(8.) Joseph Bach:

Was in the alley but saw nothing thrown from the alley. (38.)

(9.) John Holloway:

Was in the alley but saw nothing thrown from the alley. (38.)

(10.) George Kochler:

This witness stood on a platform at the head of a stairway running on the outside of a building, and at about twelve feet elevation. He says the bomb came from east side of the street, opposite from which he stood, which was near north-west corner of Randolph and Desplaines. (38.)

(11.) Edward Lehnert:

From twenty paces south of the alley. (39.)

(12.) John Bernett:

Saw the man who threw the bomb; from about fifteen feet south of alley. (39.)

GILMER WAS SUCCESSFULLY IMPEACHED. (40.)

Made contradictory statements. (40.)

Told Graham May 5th, next day, he believed he could identify man who threw bomb. (41.) He described the man generally, but did not say it was Spies. He did not say anything about there being more than one man. Nothing occurred after the meeting to convince him of the identity of Spies and Fischer. (40.)

CHARACTER OF HAYMARKET MEETING AS DESCRIBED BY MAYOR HARRISON. (50.)

I. All facts accepted in the conclusion of guilt must be satisfactorily proven.

2. When such conclusion rests upon a variety of facts then each fact which forms the basis of the conclusion must be proved beyond a reasonable doubt the same as though the whole conclusion rested upon that fact.

Under these rules we must reject:

1. Thompson's evidence, because it is contradicted by the proof of facts absolutely inconsistent with it. (16, 17, 18, 19, 20, 21.)

2. The story that two men raised in Germany and speaking the German language, would come to America and plot crime publicly in English, when the subject-matter of such plotting were words to be understood between themselves, such as "pistols, police do you think one is enough, you think we

had better get more, now if they come we will give it to them, they are afraid to bother with us"-remarks simply addressed from the one to the other. The only object of this remark was to convey an idea from one to the other-that such conversation would be in English is self-evidently absurd. (22.)

We must, under these rules, also reject Gilmer's evidence.

1. He made no outcry when he saw the diabolical act done. (29.)

2. He did not tell any upon the car going home, although there was much talk and excitement. (Black and Salomon & Zeisler's brief, 59.)

3. He told his story to Grinnell the Sunday following and yet he did not tell enough to become a witness before the grand jury.

4. Facts absolutely inconsistent with the facts as given by Gilmer are stated by thirteen witnesses, five of whom were witnesses for the prosecution, and nine for the defense in contradiction of Thomson, and also in contradiction of Gilmer (17, 18, 19, 20, 21), and directly and incidentally he is contradicted by eighteen other witnesses. He is also contradicted in reference to his statement that the bomb was thrown from the alley at all, and consequently that he saw Spies and Fischer in the alley by fifteen still other and different witnesses.

5. Besides this Gilmer began his story with what proves to be an untruth, to wit, that he expected to meet Judge Cole and Governor Merrill at the Palmer House that night and he is impeached by nine witnesses who moved in the same circle that he lived in.

Can it be said that Thompson's evidence, contradicted by

thirteen witnesses, and Gilmer's evidence, who is contradicted by forty-six different witnesses and impeached by nine other witnesses, who begins his tale with an untruth to aggrandize himself, is to be received as satisfactory and convincing, and the facts testified to are to be received as proven beyond a reasonable doubt, the same as though the question of guilt itself depended upon such facts? (28 to 42.)

5. Michael Schwab:

He came to the Haymarket and Desplaines from the east. He was hunting Spies, who came on Desplaines street from the north. Schwab went there before Spies came, and left before he came. When Schwab left for the court house Spies was coming to the meeting from the north on Desplaines, and when Spies had called the meeting to order, and called out for Parsons, and finally when he went south-westerly to the corner of Desplaines and Randolph, and thence west towards Halsted, accompanied by his brother, and followed by two detectives, Schwab was on his way from the court house to Deering, and hence the two did not meet at all that night.

6. Fischer and Engel:

The evidence offered against these defendants was of the meeting at 54 Lake street. This evidence was of a substantive offense introduced into the case, and of which the defendants had no notice by indictment (58).

It was incompetant as to all the defendants except Engel and Fischer, but was received by the court against them all without any limitation as to its effect (59).

7. Louis Lingg:

The making of dynamite bombs ought to be but is not an offense under the laws of the State of Illinois.

Lingg cannot be convicted before a prohibitory law is passed, and the making of bombs alone, so long as not prohibited, is not a criminative circumstance (66).

I. Johann Most's book:

Foundation laid for the introduction of this book was:

(a.) Fricke saw the book in the library, next room to the Arbeiter Zeitung room. It was not even in the room or under the control of the Arbeiter Zeitung, and the defendants were not the Arbeiter Zeitung (68).

(b.) Hushberger, librarian, sold copies at picnics, at which picnics were Spies, Parsons and Fielding, and sometimes Neebe and Schwab (69).

(c.) Seliger saw the book sold on the north side by Hueber, a librarian (69).

(d.) Bonfield swore Fischer admitted to having read in some of Most's books about fulminating caps (69).

(e.) Capt. Schaack swore Lingg learned to make bombs from some of Most's books.

Upon this foundation laid, and as connecting all of the defendants with this book, it was admitted against all of them.

The book was published in German; two of the defendants, Parsons and Fielden, could not read German.

This book taught how to make bombs, how to poison daggers, and how to inaugurate revolution, and was written and published three years before the Haymarket meeting.

Letter inquired if a party named was trustworthy, and whether Most could safely send some of his "medicine" (meaning probably bombs for killing people or poisoned daggers) by him to the Hocking Valley, where labor troubles were pending.

This evidence was obtained by unreasonable seizure and search. (72 and 73.)

Spies was put on the stand in chief, in contradiction of Thompson and Gilmer, and for other purposes, but was not asked anything about these letters. He could have been cross-examined simply in reference to what he was examined in chief. The prosecution went outside of this, made Spies its own witness, asked him questions about the letter of Most, the court compelled him to answer, and thus the testimony of Spies on this subject stands as though Spies had been put on the stand by the prosecution and the court had compelled him to answer these questions (73).

Spies answered that he did not remember to have received the letter, but knew Most's handwriting, and supposed he received them. He never answered the letters, nor did any act except to receive them. These letters were written in 1884, and remained in Spies drawer in Arbeiter Zeitung since, until seized by officers, who opened the drawers by a locksmith and gave the letters to assistant state's attorney, who produced them and examined Spies in reference to them. (71 to 74; Black's brief, 174 to 183.)

This cross-examination was illegal, and the search and seizure was unreasonable, and the compelling Spies to answer the questions put was compelling him to give testimony against

himself. This was in violation of all the constitutions of the State of Illinois and of the constitution of the United States (75 and 76).

Black's brief, 180 to 183.
Wharton Cr. Ev., 8th Ed., 644, 682.
Com. v. Eastman, I Cush., 189, 215.
Payne v. Com., 31 Gratton, 855-9.
Smiths v. Shoemaker, 17 Wall., 630.
Com. v. Edgerly, 10 Allen, 184.
Bayd v. United States, 116 U. S. Rep., 616.

Fielden, Parsons and Spies were at the meeting a part or all the time.

Schwab was at Deering.

Fischer was at Zepf's Hall.

Engel was at his own home.

Neebe was at his own home.

Lingg was at his own home. (79 and 80.)

The conviction was had without proof of a corpus delicti. (91.)

The first class of counts are to the effect that the defendants did the killing personally.

The second class of counts are that the defendants aided and abetted some person in the killing.

There is no proof that any person named as defendant aided or abetted any one else in throwing the bomb that was thrown, or even knew of the fact of such throwing, or that the bomb was to be thrown by any body.

What counseling constitutes accessoryship? (91.)

The court erred in refusing to admit proper evidence offered by the defendants and in receiving against them and over their objections improper evidence.

(a.) In refusing to permit them to prove that Schwab and Spies ordinarily carried on conversations in their native tongue in order that the jury might apply the law of experience and probability to the case.

(b.) In admitting as evidence Most's Book of Revolution, with all its damaging recitals, against all of the defendants without a proper foundation being laid as to a connection between the publication or use of said book and any of the defendants.

(c.) A locksmith was used as a search warrant and the letters of Most of Spies were taken possession of forcibly by the prosecution. They were turned over to the state's attorney, and when Spies was put upon the witness stand by the defense and interrogated in reference to other subjects, he was, on cross-examination, asked in reference to these letters, and forced by the court to admit that he received them, and they were offered in evidence, although unlawful evidence.

(d.) These letters, even if found properly, were unlawful evidence, because a letter written by a stranger is the act of such stranger, and if simply received and is not accepted or acted upon by the party receiving it, is what is known in the law as res inter alios acta, and inadmissible.

(e.) The court erred, also, in receiving in evidence fulminating caps, bombs, combustible tin cans, etc., etc., without first establishing a legal connection between such articles and any of these defendants.

(f.) The court also erred in permitting to be received in evidence and exhibited to the jury, bloody clothes worn the night of the Haymarket massacre by persons other than the party the indictment named as having been killed there.

(g.) Also, in the introduction in evidence of the flags, mottoes, found by unreasonable search and the result of seizure of the Arbeiter Zeitung office.

The doctrine of conspiracy was misconceived and misapplied in this case.

(a.) In not requiring the prosecution to establish by proper proof the conspiracy first, and then introducing the acts and declarations of all done in pursuance of such conspiracy as the act or declaration of one. Instead of which the court admitted as against all, the individual acts of each for years before, when such acts were individual and independent in their character, and out of the multiplicity of such separate and independent acts inferred some conspiracy to do something.

(b.) The court did not require the acts done under the conspiracy to be done in furtherance of the conspiracy and thus make the act done by the individual the act of all by virtue of the original agreement to do all the acts necessary to the accomplishment of the unlawful purpose, but permitted all acts of all kinds to be proved in a sort of legal jumble against all the defendants.

(c.) Schnaubelt, having thrown the bomb or being badly frightened by a general supposition, disguised himself by shaving off his whiskers, etc., and, he not being on trial, the court permitted the prosecution to prove this act of Schnaubelt in disguising himself as tending to show the guilt of the parties then on trial. (80.)

The verdict of guilty in the case stands upon a mixture of lawful and unlawful evidence, and a verdict thus sustained has a doubtful and uncertain foundation, and a count of review should set it aside.

This court, in Gifford v. The People, 87 Ill., 210, has decided

that where it is doubtful if the defendants were guilty, as it is doubtful in this case, the Supreme court will set aside the verdict upon any error of law in the rulings of the court below.

The court below also held that jurymen who were properly challenged for cause, were competent jurymen, and the cause of challenge was not good. The court thus caused an exhaustion by the defendants of all their peremptory challenges, and thus under the rulings of the court the defendants were obliged to accept men who were partial and were finally tried by a partial instead of an impartial jury. (Black and Salomon & Zeisler's brief, pages 299 to 335.)

The court also refused questions to be put to jurymen as the ground of a peremptory challenge, and this court has once before reversed a cause from this very judge, for the very same reason alone.

In the trial of Aaron Burr, similar to this in notoriety, Chief Justice Marshall defines what the constitution of the United States means by article 6, in reference to an impartial jury. The clause of the constitution of the United States was adopted by the State of Illinois in 1818, 1848 and in 1870.

The meaning of our constitutions both before and since 1870 has been repeatedly given by this court, and the doctrine of Chief Justice Marshall has been repeatedly affirmed (Black's brief, 305.) In these decisions this court has often decided that a new trial must be granted because jurymen were taken who were less objectionable than those rejected and taken under the ruling of the court in this case.

The court below, in giving us a partial, instead of an impartial jury, took refuge under a statute of the State of Illinois. (Black's brief, 311.)

We show that if this law is necessarily construed as contrary

to the constitution of the United States and of this State, one or the other must yield. The act under such circumstances will be held void, so far as such conflict exists. This act, we claim, should be construed as in conformity with the constitution and declaratory thereof. Therefore, we still have the constitution of the United States and the constitution of this state and the decisions construing them.

The conduct of a special bailiff was most outrageous, and the facts show that he determined to get and did get a jury to hang the defendants. (Black's brief, 391.)

The instructions of the court were wrong, and the wrong theory of the law was adopted throughout the case, which was carried into these instructions. (Black's brief, 232 to 240.)

LEONARD SWETT,
For the Plaintiffs in Error.
Chicago, March 17, 1887.

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