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CHAPTER XVIII.
The First Trial

Sylvester Critchlow Arraigned – Pinkertons on the Stand – The Prosecution Makes a Strong Showing – A Suspicious Carnegie Banquet – Attorneys Erwin and Argo to the Rescue – An Alibi for the Defense – John S. Robb Attacks Mr. Erwin – The "Northwestern Whirlwind's" Magnificent Oration – He Captures the Court and Confounds the Prosecution – "Not Guilty" – The Backbone of the Murder Charges Broken

SYLVESTER Critchlow was the first of the Homestead men to be placed on trial in the Allegheny County Criminal Court, the charge against him being the murder of T. J. Connors.

On the morning of November 18, 1892, Critchlow was arraigned before Judges Kennedy and McClung. A great crowd assembled in the court room, curious to observe the opening scenes in the memorable legal battle which was to ensue, but to the great disappointment of the throng, the judges ordered the room to be cleared of all except members of the bar, witnesses, jurors and reporters.

The prisoner was perfectly cool and self possessed. His wife and mother sat near him, watching with womanly solicitude every step in the proceedings, the issue of which meant so much to both.

The array of legal talent on both sides was formidable. The prosecution was in the hands of District Attorney Burleigh, assisted by Messrs. D. F. Patterson, John S. Robb, E. Y. Breck, P. C. Knox and Assistant District Attorney Harry Goehring. Counsel for the defense were: Messrs. W. W. Erwin and G. W. Argo, of St. Paul, Minn.; E. A. Montooth, Thomas M. Marshall, William J. Brennen and William Reardon, of Pittsburgh, and John F. Cox, of Homestead.

Immediately upon the opening of court, Critchlow was ordered to stand up, and having heard the charge read, pleaded not guilty in a clear, firm tone of voice. Attorney Brennen asked to have the indictment quashed on the ground of an irregularity in the drawing of the grand jury panel. The motion was overruled, and the selection of jurors began, this process being conducted by Mr. Burleigh for the prosecution and Mr. Marshall for the defense. Within a few hours, the following "good men and true" were selected: Peter Roth, John Herron, James Marshall, Amos Mashey, Chris Wiggand, C. S. Eaton, Chris A. Sende, James M. Wright, D. J. Herlehy, W. A. Freyvogel, Burns Wadsworth and Louis Jackman.

The District Attorney, in his opening speech, after having given the conventional explanation as to degrees of murder, asked the jury to avoid the impression that the case on trial was one of treason or was to be considered in connection with Homestead. "We are," he said, "simply trying Sylvester Critchlow for the murder of T. J. Connors, who was killed in the barges at Homestead on July 6. The barges were there lawfully and for a peaceable purpose… We will show that Sylvester Critchlow was behind the barricade with a rifle, shooting down to the barges within easy range of Connors, and firing in a direction in which he would likely hit Connors."

"You must also remember, gentlemen, that the Commonwealth of Pennsylvania is the prosecutor and Sylvester Critchlow is the defendant. There is no private prosecutor here. The case will be prosecuted by public officials and no one else will be allowed to interfere. Other counsel may appear in the case, but they will be in subordination to the district attorney."

Dr. McKennan, Superintendent W. A. Cowan, of the West Penn hospital and Rev. Father Leonard Lynch were the first witnesses examined. They testified to the death of Connors and the nature of his wound.

Captain John W. Cooper, of the Pinkerton agency, followed with the familiar story of the river expedition and the battle at the landing. He also swore positively to the position of Connors at the time when he was shot and the hour at which he fell.

Captain Cooper was subjected to a searching cross-examination by Mr. Brennen, but went through the ordeal without permitting himself to become confused. Mr. Brennen sought to show (1) that the witness was not of good moral character and (2) that Connors was accidentally shot by one of his own comrades.

At one point the cross-examination ran as follows:

Mr. Brennen. – Were you not a "Hey Rube" for a circus for nine years?

Mr. Burleigh. – What in the name of common sense is a "Hey Rube?"

Judge Kennedy. – Yes, Mr. Brennen, we would like to know what you mean by a "Hey Rube."

Mr. Brennen. – I mean a circus fighter. The witness knows what I mean.

Witness. – I was detailed by the Pinkerton agency to accompany the Barnum circus in the capacity of a detective. I was with the circus for nine years.

W. H. Burt, also a Pinkerton detective, recounted the incidents of the fight at the landing and described the shooting of Connors as follows: "I knew T. J. Connors. He was on the boat. I saw him between 11 and 12 o'clock that day. That was before he was shot. He was near the bow of the boat. Three or four minutes later I saw two men picking him up. He had fallen about twenty-five feet from the bow of the boat. He was placed on a table and a medical student from Chicago, who had hired as a guard, bandaged the wound on Connors' arm."

Detectives P. J. Connors and Joseph Malley gave evidence of similar tenor to that of the two preceding witnesses, and Captain Rodgers and Deputy Sheriff Gray repeated their well-worn story of the Little Bill.

This stage of the proceedings was reached on the afternoon of Saturday, November 19, at the customary hour of adjournment. The court decided to hold a night session, and accordingly at 7 P. M. the examination of witnesses was resumed.

J. M. Dickson, H. H. Hervey and J. H. Slocum, clerks in the employ of the Carnegie firm, swore that on the morning of July 6 they saw Critchlow with a gun in his hand going towards the mill gate. Each of them positively identified the prisoner.

Charles Reese, a newspaper artist, being sworn, said that he saw Critchlow, with a gun in his hands, occupying an exposed position in the mill yard, near the pump house. Somebody had said to witness, "There is Critchlow. He is a regular dare devil." Mr. Brennen elicited from the witness the fact that he had attended a gathering of newspaper reporters called together by Capt. E. Y. Breck, attorney for the Carnegie firm, at the time when the Critchlow case was before the grand jury. This affair had created no little scandal when it occurred, some of the newspapers openly stating that Captain Breck had invited those whom he intended to use as witnesses to a banquet for the purpose of "coaching" them. Mr. Reese, however, denied that there had been a banquet or, that he had received any formal invitation from Captain Breck. Nevertheless, the evidence was regarded as establishing a reasonable presumption of the use of unfair methods by the prosecution.

Isaac J. Jury, a constable residing in Homestead, swore that he saw Critchlow in the mill yard and advised him to get out, but that his warning was not heeded.

The most damaging testimony of all was given by Samuel Stewart, a clerk, in the Homestead mill. He said:

"I know Sylvester Critchlow; saw him near the Company office between 8 and 9 o'clock on the morning of July 6; next saw him back of the barricades, near the pump house on the river bank; he was kneeling back of the barricade, a gun in his hands; the gun projected through the barricade between the second and third beams; the barricade was built of steel 'I' beams; his gun was pointed toward the barges; the bows of the barges were nearest to the barricades; you could see into the boats from where Critchlow was kneeling; the door of the outer barge was open; I saw Critchlow fire once in the direction of the barge; saw him aim carefully and pull the trigger; I remained there about 20 minutes; Critchlow was there when I arrived, and was still there when I left; I cannot tell the kind of gun Critchlow had, except that it was a single barrel."

On cross-examination witness stated that he also saw Anthony Flaherty, Joseph A. Hall and James Flannagan shoot from behind the barricade. He stuck firmly to his story in the face of Mr. Brennen's questioning. Stewart's examination ended the Saturday night session.

When the trial was resumed on Monday morning, Detective Malley was again placed on the stand and swore to having seen Critchlow on the river bank with a gun in his hands and to have heard him called by name. Photographs of the burning barges, the barricades and the mill yard, taken by order of the Carnegie Company on July 6, were put in evidence, and here the commonwealth rested.

Attorney George W. Argo made the opening speech for the defense. He explained that he and his colleague, Mr. Irwin, had been sent by the laboring element of the Northwest to assist in the defense of the Homestead men. "As far as I am concerned," he said, "I was not selected on account of any extraordinary ability, but because for years I have been in touch with labor. At one time I was a barge builder near this city. My parents resided in Washington County."

In setting forth the reasons for demanding an acquittal, Mr. Argo enlarged upon the enlistment of armed men to invade Homestead "within two days of the anniversary of the signing of the Declaration of Independence" and, after describing the expedition of the Pinkertons went on to say:

"These men were not laboring men. It was an invasion of armed men employed by a man named Frick; it was an assault upon this grand old commonwealth; it was an assault upon the state in which the Declaration of Independence was signed; this armed body of men who invaded this state and trampled upon the soil made sacred by the feet of Washington; these men were not under the command of any regular officer of this county; they were men who could not be sworn in as deputies or special officers. Under the evidence in this case these men made an attack upon the people of Homestead; there is not any evidence that Frick owned one dollar's worth of property in Homestead. These men sneaked in on a dark, foggy night; they were met, not by strikers, for there is no evidence that there was a strike, but by the good people of the town, who, when the armed foe attempted to land told the latter not to come ashore; begged of them not to interfere with their rights, begged of them not to attempt to land. Not a particle of evidence has been given that these foreign emissaries had any right there. The men, the peaceable citizens, attempted to defend their rights. A young man named Foy went down to the gang-plank to plead with the men not to come ashore. He was met by a lot of armed men. Becoming alarmed he turned to go back, when he slipped and fell across the plank. As he fell he was shot in the back by some one on the barges. That was the beginning of the terrible battle. It will appear in evidence in this case that the first shots were fired from the barges and not by the people on shore. We will show you that preparations had been made for this trouble one month before it occurred. We will show that a stockade or high fence had been built around the works, a fence like that built in the west to repel Indian attacks. This fence was full of portholes, and resembled the outer wall of a fort. There is no evidence that the people who were on the banks on the morning of the invasion were strikers. They were peaceable citizens of Homestead. Every man in that crowd had a right to defend himself with arms; the law gives to every man the right to defend himself, to defend his family; to defend his neighbors and his friends; this right is given every man by a power higher than the law of man. The people were attacked by an armed foe and they had the right to use weapons in self-defense. The evidence shows that the men on the barges were in command of officers whose names are known, who have testified in this case, yet your honorable district attorney has made no effort to bring these men to justice. Thus he becomes a defender of these armed invaders of your county."

Mr. Argo further outlined the plan of defense as showing that the Critchlow who was seen behind the barricades was another Critchlow and that the prisoner was not present when Connors met his death.

W. M. Erwin followed with a spirited address in which he said that the prosecution rested entirely on the theory that there had been a riot, which he characterized as a "doubly damned fiction." "Is there," he asked, "another such hard-hearted, villainous man within the limits of the land as this man Frick, whom we find hob-nobbing with the leaders of the Republic. This man Frick, whose name will be more notorious than that of the man who fired the Ephesian dome, did not apply to your courts or your legislature, but violated the agreement with his men, and assumed, like a tyrant, to act as arbiter; this most brutal tyrant of all tyrants tried to force his men to bow to his will by an armed force of invaders. Thus have these scoundrels defied the laws of the commonwealth. Carnegie bent the eternal laws of God and the poorer imitations by man. We will show that the defendants only tried to straighten these laws. If there is no Judas Iscariot among you, gentlemen of the jury, you will plant the flag of independence on your hills."

Captain O. C. Coon, of Homestead, was the first witness called by the defense. He testified that he was at the mill landing when the Pinkerton barges arrived, and described the opening of the battle as follows:

"When the plank was thrown out my attention was called to a man on the barge; he had a gun in his hand; there was a boy on the shore; he was tantalizing the man; the latter raised his gun to shoot the boy; I said to him: 'For God's sake don't shoot that boy, for he is only a boy.' I asked him if he was a deputy sheriff, he said no; I asked him if he was a guardsman, he said no; I then said 'you are a Pinkerton'; he replied that he was, and, holding up his gun, said his party was going to enter the mill in fifteen minutes; the boy on shore continued to call the man on the barge; the latter raised his gun and aimed at the boy, but someone pushed his gun down; when he raised it again he had it drawn on me; about that time a boy came running down to where we were, slipped and fell across the gang plank; a minute later there was a shot from the barge, and I heard afterward that the boy on the plank was shot in the side; the first shot fired after the landing was fired by either the second or third man on the plank; I do not know who he was; I went there to try and preserve order; I never saw Critchlow to know him until I saw him in court to-day."

Charles Mansfield, of Homestead, effectually offset the evidence of Charles Reese. He swore that he had been in the mill yard and conversed with Reese. Asked as to the nature of the conversation, he said:

"I was in a cupola with Mr. Reese. I saw a man named Critchlow go into the pump-house. I said to Reese, 'There goes Critchlow into the place where Morris was killed. He will be killed sure. You had better get a good sketch of him.'"

Mr. Brennen – "Was the man you pointed out to Reese the defendant?"

"No, sir."

"Who was the man?"

"I do not wish to state."

"Was his name Critchlow?"

"It was."

Numerous witnesses were then introduced to prove an alibi for the defendant. Samuel Rothrauff, J. Miller Colgan and J. J. Baird testified that they saw Critchlow in Braddock before 10 A. M. on July 6. Mrs. Bridget Coyle said that she saw him at 3 P. M. a mile distant from the mill on his way home. "There's no lie about it," exclaimed Mrs. Coyle, in answer to Attorney Patterson's questions, "but you're trying to make me tell a lie, and I wouldn't do it for all the money Carnegie has." Three witnesses corroborated Mrs. Coyle's statement and a half-dozen others accounted for Critchlow's movements in the evening.

The taking of all this testimony occupied the court throughout a second night session.

On Tuesday, the fourth day of the trial, the defendant testified in his own behalf, denying that he had been on the Carnegie Company's grounds at any time on the day of the battle. A light suit of clothes which he claimed to have worn on that day was exhibited as an offset to the evidence of witnesses for the prosecution who coincided in the statement that the Critchlow whom they had seen wore dark clothing.

Critchlow's wife was sworn and said that at 4 P. M. on July 6, at which hour, it was alleged, defendant had been behind the barricades, he was at home sleeping.

This closed the case for the defense.

Only one witness was called by the commonwealth in rebuttal, and his evidence was valueless.

Mr. Marshall, for the defense, submitted a number of points, among which was the contention that, when it is certain that one or more persons committed a crime, but it is uncertain which, all must be acquitted.

Mr. D. F. Patterson responded for the prosecution, taking special exception to the plea against individual liability.

Four hours were allowed to each side for the closing arguments.

Mr. Robb, for the commonwealth, arraigned the defense in scathing language for seeking to belittle the laws of the commonwealth in the eyes of the jury. "There is, gentlemen," he said "some mysterious power that comes from the blue sky above the clouds that leads us away from the law; we have been told this by an attorney from the other side. Has it come to this, as we are told, that there is not law enough in Allegheny county or Pennsylvania for a plain cause? We have been told, but thank God those who made the statement are not citizens of our state, that we are all, from the man who sits on the supreme bench to the district attorney, corrupt. We have been told that in their cause there has been a mysterious, swimming atmosphere, something that would develop in this cause. But when you hear his honor you will know how plain is your duty and how plain is the law."

And again:

"The Carnegie company may have done wrong; we all do wrong, but is that any reason why our laws and our great flag, which was referred to so eloquently by the gentleman on the other side in his opening address should be trampled underfoot by rioters? My forefathers were not so high as the forefathers of the gentleman who addressed you yesterday; mine were only privates; his were away-up officers. But if I were not a better citizen of Allegheny county than to advise a jury to disregard its solemn oath I should hope that I should be stricken dead."

Mr. Erwin, who, since the delivery of his fiery speech of Monday, had come to be known among the members of the bar as the "Northwestern Whirlwind," followed Mr. Robb. There was dead silence in the court-room when he began. Surely he would respond in kind to Mr. Robb's virulent attack on him! But no. The Westerner was too shrewd to let himself be drawn off into the mere by-ways of argument, and with but a passing contemptuous allusion to Mr. Robb's onslaught, he proceeded calmly and impressively with the discussion of the main issue. As one of the newspapers put it, "The strategy of the prosecution to lead into a by-path had failed, and he stuck to the high road and tramped defiantly along the highest part of it."

After a few preparatory remarks, including his brief reference to Mr. Robb's speech, which he characterized as a "gauzy affair," Mr. Erwin plunged into his subject as follows:

"Unhappily for you, and I think for the county, the propelling causes that led to the riots at Homestead are not shown in evidence. Under your oaths you cannot merely presume on them. I think that is unfortunate for the country, the state and the city. After the news of the battle flashed over the wires calm minds awaited the result of the investigation. That it has not been touched is a matter of sincere regret. You are now put in an iron vest by your oaths, and you can presume nothing except such presumptions as are legal and presumable. We of the defense are in no way responsible for this. A man has the right to rebut only the testimony addressed against him, and that is so strong that if you committed the murder you would not have a chance to prove I did it. And thus we are bound hand and foot, and our mouths are open to receive what the prosecution presents."

Mr. Erwin defined indictments as mere accusations, and said that the law's presumption of innocence was as a shield on which the prosecution must pile evidence until the weight is so heavy that it breaks the prisoner down. The speaker referred to the important part that intuition plays in law cases, and said in that respect women often possessed it more acutely because they were nearer like the angels. Going further, he adverted to the exclusion of any evidence that there was a strike at Homestead or that Mr. Frick had hired an armed body there. The constitution, he said, still gives the people right to bear arms in their defense.

"The cloven foot of the power that invoked this invasion of Pennsylvania has been hidden from you," continued he. "I know not whether accidentally, but it has been concealed. You know, though, that it was Frick, the blackest name there ever was; you know that Frick, whoever he may be, put on board the Little Bill arms and men for this invasion of Pennsylvania.

"And, therefore, you are bound to presume that if the proceeding had a just excuse it should be shown, and the absence of it is favorable to the prisoner. What was there that even justified Frick in arming men like that? You do not know. I cannot but presume that it is so black he dare not show it in this open forum before the republic. The great question with you, gentlemen, is, under the evidence we have before us, was this battle at Homestead a riot or an authorized invasion? That's the first question. If you answer it was an invasion that's the end of it. It requires no proclamation of the governor to resist an invasion. I do not see how under the evidence you can see anything else than an invasion. I would like to have shown you what an irresponsible constabulary the Pinkertons are, but that is denied us."

Mr. Erwin sarcastically said that Mr. Robb in his endeavor to carry them by storm became the personification of a rioter, and forgot to tell them that if Mr. Frick had not sent the Pinkertons to Homestead there would never have been a battle. There may have seemed a reason to Frick, but the state had not shown anything of that. People for self-aggrandizement may often do things that, if shown in court, might convict them of what they charge against others, and that is murder.

"If you find there is no excuse for that invasion the people of Homestead should have pursued and shot the Pinkertons even at God's altar, and further still have gone across the line that separates the dead from life and shot them while they lay on the bosom of the prince of hell," shouted Erwin in a particularly passionate outburst that seemed to appal the court. "If there was no invasion, you must ask yourselves was the riot such as to make the people on the shore responsible for that tumult. Who were on those boats? Three hundred men from the slums of Philadelphia and Chicago, armed with 150 Winchesters, and revolvers and maces. And they were under captains and had waived their right to think for themselves; had sworn to obey their captain when he told them to kill the people at Homestead. This shows you the abandonment of individuality and concentration of power under one executive head; and that is the primary principle that constitutes war. Were the people on the mill shore who had fired on the Pinkertons down the river? Not one of them. Is there any evidence that the people on shore were responsible for that firing down on the shore? Not a particle. Perhaps the prosecution did not go into it for fear they might show that Frick was guilty of murder. The evidence has not been put to you to show that the people on shore were there to repel any but 'scabs.' If you cannot determine these points you should acquit the defendant."

Mr. Erwin then went into an analysis of the testimony of the Pinkerton witnesses for the prosecution; and defined detectives as men who could not make a living at any honorable pursuit, and preferred to hunt men instead of serving the Almighty by working by the sweat of their brows. He said it was hardly possible the jury could like a human hyena. Had the Pinkertons been honorable men the district attorney would have shown the jury evidence of such and thus helped to strengthen their statements. The speaker justified burning oil and dynamite and anything else that could be thought of if used against the Pinkertons. There was no intent in the gathering of the crowd on shore; and, therefore, the individual up for justice could not be held guilty for what happened. Erwin held that if Critchlow was on the scene of battle he had a perfect right to be there. It was a point of law older than Rome, copied by Cicero, that when arms are used all political laws are set at naught. The resistance of the Homestead people was a "majestic" performance. Were not three hundred rifles cowed by eight behind the barricade?

Stewart, "that magnificent volunteer witness," was a preposterous liar and a "squirt" who was eyeing the fighters.

Here the orator asked his colleagues how long he had to speak and was told to go on without regard to time. Taking up a synopsis of the testimony he proceeded to analyze the statements of witnesses for the commonwealth with telling effect. His sarcastic commentaries set the court-room in a roar, even the tipstaves being so amused that they forgot to cry order until Judge Kennedy aroused them.

The witnesses for the defense, Mr. Erwin said, were all reputable citizens of Homestead. He thought it impossible to construct a better alibi than had been proven for Critchlow. No machinations of testimony could make such an excellent alibi as the one presented. In view of it all, he could not look for any decision other than in favor of acquittal, even though the district attorney had so artfully presented the testimony as almost to compel the jury to decide for the commonwealth against their consciences.

In conclusion the speaker pictured the misery that would be inflicted on Critchlow's family, if the bread winner were snatched away.

"That is the greatest speech ever delivered in this court house," remarked the veteran, Thomas M. Marshall, when Mr. Erwin had finished. "I want to retire from the bar now, for I have been snuffed out."

On Wednesday morning Mr. Marshall spoke. He laid much stress on the surreptitious entry of the Pinkertons and the assumption that somebody had authority to give these private hirelings orders to shoot. "The order from Captain Cooper and Captain Heinde to shoot entitled them to be shot," said the speaker vehemently. "When there is war," he continued, "the man that arrives first on the battlefield has the right to shoot first. But why did the Pinkertons come down upon Homestead like thieves in the night? Who is it that likes darkness? Why did not Mr. Frick say he was bringing these men here to protect his property and not to intimidate people? Why did they steal into Homestead with guns that shot sixteen times?"

Mr. Marshall attacked the evidence for the prosecution, and especially the identification of Critchlow by the Pinkertons, who could only have seen the man once or twice, if they had seen him at all, and were, therefore, not qualified to swear to his identity. He held that the district attorney had no right to throw the weight of his talents and influence against the defendant. That officer's client was the commonwealth, and yet Mr. Robb spoke of "our clients" as if Frick and the commonwealth were identical. "I don't believe," said Mr. Marshall ironically, "that H. Clay Frick had anything to do with this prosecution, oh, no! I don't believe that anybody connected with the Carnegie Company had anything to do with the attempt to take away the lives of these Homestead men. And this man Lovejoy who made these informations, he had nothing to do with the Carnegie interests; oh, no! Love – joy! L-o-v-e-j-o-y! I don't say his name should be Loveblood; but I do say that there are several people in the Carnegie Company who should have their names changed."

In concluding his address, Mr. Marshall said: "The real capitalist is the workingman, the producer, who has nothing but his paltry $3 a day, while the lordlings, the so-called manufacturers, walk abroad as social gods and revel in the luxury made by the sweat of the workingman's brow."

District Attorney Burleigh, in his speech closing the case for the commonwealth, volunteered the statement that he was in the pay of no man but was there solely to plead for justice in the name of the commonwealth. He taxed the defense with relying mainly on artifice and meretricious oratory; scouted the idea that the Pinkertons were "invaders," and declared that Mr. Erwin's defense of the right "to shoot down on the very bosom of the prince of hell," three hundred men "caged like rats in those barges," was anarchy-red, rampant anarchy!

Mr. Burleigh contended that the Carnegie Company in massing and attempting to land the Pinkertons with the permission of the Sheriff, acted within its legal rights. The landing had been attempted at night because it was desired to avoid a breach of the peace.

The closing portion of the address was given up to an endeavor to discredit the testimony adduced to establish an alibi for the defendant.

Judge Kennedy occupied only forty minutes in charging the jury. He held that a man mixing with a riotous crowd and not helping to quell the disturbance was as guilty as the active participants. The Carnegie Company had a lawful right to protect its property, even with Pinkerton detectives, no matter whence the guards came, and the people on the shore had no right to shoot down the men on the barges.

After one hour's deliberation the jury returned a verdict of "Not Guilty," to the surprise of the court and the delight of Critchlow's weeping wife, who remained near him to the last.