CRIME: Who Wouldn’t Be Worried?

Flashlamps fizzed in Chicago’s crowded Federal Court last week. Guards banged shut the doors. Beginning was the decisive battle in the Federal Government’s long campaign to put Alphonse (“Scarface” to strangers; “Snorkey” to friends) Capone in prison. For three years the Government had waged its campaign, spent over $195,000 on it. For almost as long Gangster Capone had been trying to sidestep charges that he failed to pay a Federal tax on $1,038,654 income during the years 1924—29. Now Scarface Snorkey was on trial.

The Judge was bushy-browed James Herbert Wilkerson, no friend of Capone. It was he who, two months ago, exposed and repudiated a “deal” between prosecuting and defense attorneys whereby Capone was to plead guilty to tax evasion in return for a recommendation that he be given a light sentence. In court Capone’s attorney had asserted that the agreement was approved by Attorney General Mitchell and “an Assistant Secretary of the Treasury.” In Washington the Department of Justice had admitted approving this deal, insisted the procedure was customary. Undersecretary of the Treasury Ogden Livingston Mills had denied knowing anything about it. Judge Wilkerson had upset the plans by declaring: “The court will listen to recommendations, but it is utterly impossible to bargain with a Federal court.” Then he had allowed frightened Capone to change his plea to not guilty, had sought—and failed —to have a grand jury indict him under the Jones (“5 & 10”) Law for violation of the Volstead Act (TIME, Sept. 21 et ante). Leaving off his judicial robes, Judge Wilkerson leaned over his desk in a business suit, showed that he took more than a passing interest in the case.

The Defendant was sweating, uncomfortable. For the second time in his life he was uncertain of “beating the rap” (staying out of jail).* If convicted he might be sentenced to 32 years in the penitentiary, fined $80,000. Before him he had the example of his brother Ralph (“Bottles”) Capone, who had been sentenced to three years in Leavenworth on a similar charge (but had obtained a stay of mandate until Oct. 20 to file an appeal). Jack Gusick, a Capone lieutenant, had been given five years in prison; other important gangsters were behind the bars. Sighed Scarface Snorkey:

“Who wouldn’t be worried?”

The Prosecution was headed by softspoken, wild-haired U. S. District Attorney George Emmerson Q (for nothing) Johnson. Field marshal of the Government’s forces seeking to break up gang rule by the left-handed method of jailing gangsters for tax evasion, his success would be measured by his ability to dispose of Capone. Frankly disappointed when the “deal” fell through, he was now excited, eager, mysterious. So far he had kept secret the list of his “surprise” witnesses.

The Defense had wanted that list. Long had adroit Lawyer Michael Ahern protected Capone’s legal interests, kept him out of serious trouble (TIME, Sept. 21). He, too, had been disappointed when his client had to stand trial. Well he realized that this was his hardest case. To assist him he had owlish Albert Fink, whose jovial voice was frequently heard exclaiming: “Oh, my conscience!” Mr. Ahern was irascible, objected to crowding by

The Press, which was having a field day. Local papers covered the trial from all angles; out-of-town papers sent special writers. Hearstpapers, evidently considering it a better spectacle than the World Series (see p. 22), sent Colyumist Damon Runyon, who began by interviewing Capone in the grandest manner: “I found Al Capone at Colosimo’s restaurant. . . .” Other newshawks reported the details of Capone’s attire from tie (blue-striped) to fedora (white), noted the fact when he changed his suit (blue to grey). Gaudiest phrase of the trial was coined by the New York Evening Post’s correspondent, Michael W. Straus, who referred to Cicero’s gambling houses as “gold-belching pits of evil.” The Press soon became interested in

The Jury: one farmer, two retired merchants, a country grocer, two painters, a real estate dealer, an insurance salesman, a clerk, a lubricating engineer, an abstractor, a wood patternmaker out of a job. All were more than 45; all but one were rustic. Mr. Ahern did not like the jury. Judge Wilkerson stated: “Nothing is to be decided except whether this man evaded and attempted to defeat these taxes.” He overruled most of Capone’s objections, quickly filled the box. Most of the jury immediately began to show signs of sleepiness. The grocer, A. E. Maether of Prairie View, alone was all attention.

For the Prosecution, first star witness was Rev. Henry P. Hoover, Congregationalist minister of Berwyn, Chicago suburb. He knew a good deal about the “gold-belching pits of evil.” As a member of the Western Suburban Ministers’ Association he took part in a raid in 1925 on a Cicero gambling house. Telling about it, Minister Hoover’s eyes flashed, his tight lips bit off his words: “I looked behind the partition and I saw this man [Capone] taking money from the till. He was stuffing it in his pockets. Someone . . . said: ‘Who is this man?’ and he said: ‘Al Brown. Is that good enough for you?’ Then Mr. Capone said: ‘Why are you fellows always picking on me? . . . Reverend,’ he said, ‘why can’t you and I get together?’ I said: ‘What do you mean?’ He answered: ‘If you’ll let up on me here in Cicero I will withdraw from Stickney.’ ”

Scarface Snorkey snorted, as though everybody must know he had never used a two-syllable word where a one-syllable word would do.

Chester Bragg, another raider, said Capone had broken into a place while it was being raided. “I asked him: ‘What the hell do you think this is, a party?’ and he said: ‘I’m the owner of the place.'” Immediately after the raid, Raider Bragg’s nose was broken with a blackjack.

The Government, considering Capone’s ownership of gambling houses proved, set out to show how he had spent the returns, holding that large expenditures would prove the existence of a taxable income. While Snorkey dug a stubby forefinger into his right ear, letters were read from Lawrence P. Mattingly, Washington income tax attorney retained by Capone in 1930, to show that Capone offered to compromise with the Government and pay a delinquent tax on $226,000 for the years 1926-29. Capone, the letters showed, got one-sixth of the income from his syndicate’s operations. As the letters were read over the strenuous objections of Snorkey’s attorneys, who maintained a lawyer could not “confess” for his client, Attorney Fink heaved a sigh. “Oh, my conscience!” he sighed. “They’ve got him nailed to the cross now!”

Witnesses from Florida said Capone had spent $40,000 for his Palm Island home, $100,000 to improve it, swore to a $6,500 meat bill, a $2,085 hotel bill, a $9,000 telephone bill, asserted he distributed $5 tips and spent thousands of dollars on cakes and macaroni. Prize Miami witness was one H. F. Ryder, a garrulous carpenter whose $1,011 bill had been paid by “Mr. Al—Mr. Capone—the gentleman there.” Witness Ryder said Capone’s friends “gave me a sandwich sometimes,” thought “Mr. Al was a mighty fine man,” even though he still owed him $125. He told of being paid $250 from “a roll that would choke an ox”—as big as Judge Wilkerson’s fist. “There were money wrappers by the handful around the place. All marked $1,000.”

Scarface Snorkey had grown glummer & glummer, angrier & angrier. He scowled at Carpenter Ryder, whispered with his lawyers, mopped his brow. The jury had waked up, was following the testimony with wide-eyed interest. Leaving the courtroom one day Snorkey and his bodyguard, Philip D’Andrea, brushed aside Federal Judge Walter C. Lindley to get into an elevator. Two days later D’Andrea was arrested, searched in the corridor by Secret Service men before gaping policemen, charged with carrying a concealed weapon (.38 calibre revolver). D’Andrea showed a badge reading “Deputy Bailiff of the Municipal Court,” was told it was no good. Capone rivals began a war of succession, killed one James L. Quigley, minor gangster.

*First time was in 1929 when Capone was tried and convicted in Philadelphia for carrying a pistol. He spent ten months in jail, his only prison term to date. But underworld legend says he went to jail that time on purpose, to avoid being assassinated in Chicago.