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The United States 6260

V8.
Victor L. Berger, et al.

This being the day and hour to which the further trial of this cause was on yesterday .continued, come again the parties by their attorneys, and the defendants in their own proper persons, come also the jury who were duly elected, empanelled and sworn herein as aforesaid, and the trial of this cause proceeds, and during the examination of witnesses, the usual hour of adjournment having arrived, it is ordered that the further trial of this cause be continued until January 6, 1919, at ten o'clock A, M.

210 And afterwards, to wit, on the 6th day of January, A. D. 1919, the

following order was had and entered of record in said cause, before the Honorable Kenesaw M. Landis, Judge, to wit:

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The United States 6260

V8.
Victor L. Berger, et al.,

It is Ordered by the Court that the Clerk of this Court telegraph a subpoena duces tecum to the Adjutant General's Department, Madison, Wisconsin, and to the Local Draft Board of the 8th District of Milwaukee, Wisconsin, for certain documents.

211 And afterwards, to wit, on the 6th day of January, A. D. 1919, the

following order was had and entered of record in said cause, before the Honorable Kenesaw M. Landis, Judge, to wit:

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The United States 6260

V8.
Victor L. Berger, et al.

Come the defendants at the close of all the evidence, and enter their motion for an order directing the jury to find the defendants not guilty, whereupon the court having heard the arguments of counsel, and being fully advised in the premises, it is ordered that said motion be and the same hereby is denied.

212 And afterwards, to wit, on the 7th day of January, A. D. 1919, the

following order was had and entered of record in said cause, before the Honorable Kenesaw M. Landis, Judge, to wit:-

The United States 6260

18. Victor L. Berger, et al.

This being the day and hour to which the further trial of this cause was on yesterday continued come again the parties by their attorneys and the defendants in their own proper persons, come also the jury who were duly elected, empaneled and sworn herein as aforesaid and the trial of this cause proceeds and at the conclusion of the argument of this cause to the jury the usual hour of adjournment having arrived, it is ordered by the court that the further trial of this cause be continued until tomorrow morning at ten o'clock.

213 And afterwards, to wit, on the 8th day of January, A. D. 1919, the

following order was had and entered of record in said cause, before the Honorable Kenesaw M. Landis, Judge, to wit:

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The United States 18.

6260 Victor L. Berger, et al.,

And thereupon on motion of the defendants the said jury is polled, and each and every juror to the inquiry made of him by the Clerk “was this and is this now your verdict" answers in the affirmative, and thereupon the said defendants enter their motion for a new trial, and the hearing of said motion is continued until January 23, 1919. 214 And afterwards, to wit, on the 8th day of January, A. D. 1919, the

following order was had and entered of record in said cause, before the Honorable Kenesaw M. Landis, Judge, to wit:

The United States
V8.

No. 6260.
Victor L. Berger, et al.)

This being the day and hour to which the further trial of this cause was on yesterday continued, come again the parties by their attorneys, and the defendants in their own proper persons, comes also the jury who were duly elected, empanelled and sworn herein, and the said jury having heard the evidence by the parties adduced, arguments of counsel and charge of the court retire to their room to consider of their verdict, and afterwards return into court and render their verdict, and upon their oath do say,

We the jury, find the defendants Victor L. Berger, Adolph Germer, J. Louis Engdahl, William F. Kruse and Irwiu St. John Tucker, guilty as charged in the indictment.

215 And afterwards, to wit, on the 23rd day of January, A. D. 1919, the

following oriler was had and entered of record in said cause, before the Honorable Kenesaw M. Landis, Judge, to wit:-

The United States
V8.

No. 6260.
Victor L. Berger, et al.

On motion it is ordered by the court that the hearing of the motion for a new trial herein be continued until January 25, 1919.

216 And afterwards, to wit, on the 25th day of January, A. D. 1919, the

following order was had and entered of record in said cause, before the Honorable Kenesaw M. Landis, Judge, to wit:

The United States
V8.

No. 6260.
Victor L. Berger, et al.

Come the parties by their attorneys, and on motion it is ordered that the hearing of the motion for a new trial herein be continued until February 3, 1919, at ten thirty o'clock A. M. It is further ordered that the affidavit of Thomas Nixon, and draft of affidavit, be impounded with the Clerk of this court.

217 And afterwards, to wit, on the 25th day of January, A. D. 1919,

there was filed in the Clerk's Office of said Court, in the above entitled cause, an Affidavit of Thomas Nixon; same being in the words and figures following, to wit:

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THOMAS NIXON being first duly sworn, on oath deposes and says that he was one of the jurors in the trial of the above entitled cause; that he resides at 4858 North Monticello Avenue, Chicago; that he is acquainted with Joseph Buckner, bailiff or deputy marshal of said United States Court, and that he knows a W. H. Streeter, who is also a bailiff or deputy marshal, and that said Buckner and Streeter, together with Mr. William Barber, had charge of the jury during the trial of said cause.

This affiant further says that on December 19, 1918, while Mr. Kennedy and I were talking in my room Mr. Ballou came in and he said : "Gernier is the damndest liar I ever heard and he told nothing but God

damn lies on the stand." 218 I asked him to tell one lie Germer told, whereupon he said he had

nothing further to say on the matter, and didn't. This was after clinner in the evening.

On December 21st at the table in the Great Northern Restaurant the jury were seated and located as follows:

J. T. Buckner

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Mr. Streeter at the table struck it with his right first to emphasize his remarks which were as follows:

“ Every damn one of those fellows is guilty and if I had my way I would hang every one of them."

On January 3, 1919, Mr. Streeter remarked at the noon meal at the Great Northern that:

Berger is a damn lying Dutchman and ought to be in Hell." He also made similar remarks at the table in the evening at the Palmer House. This was our first meal there. Before going over to the Palmer House,

in our room the same evening just before retiring Mr. Streeter said: 219 “I wish that damnd lying Dutchman Berger would get through with

his damn lies." On January 5, 1919, which was Sunday, about 8 o'clock P. M. In Wakem and Mr. Kennedy's room at the Hotel Majestic, at which time Mr. Ballou, Mr. Light and Mr. Bartholomew and I were also present, Mr. Staunton said:

“I am very much opposed to Socialists in every way and make them out dirty liars and claim them guilty."

He said he had talked with his son on New Year's Day about the case. Afterwards he contradicted this statement and said that he:

“Long ago talked of having no use for Socialists at any rate.”

On January 7, 1919, in the morning immediately after dressing, Mr. Streeter said :

“I wonder where I can buy a copy of the life of Benedict Arnold ?" I answered, “I think at McClurg's.” He replied: "Arnold was the damdest son-ofa-bitch of a traitor this world ever knew and these sons-of-bitches are just like him."

It was generally reported that Mr. Hendee had lost money in playing cards with Buckner and had given Buckner his check for $10. Mr. Wakem, Mr. Joyce and Mr. Sheldon were in the games and report was among the jurors that Mr. Buckner had gotten the greater part of the $30 lost by Joyce and $20 by Wakem. During the deliberations of the jurors I asked Mr. Buckner for a copy of the

Judge's instructions to the jury. These Mr. Buckner the Judge would not 220 give them. Mr. Buckner was asked for a copy of the Bill of Rights and

the Declaration of Independence, and replied these were not to be had. He was asked for a copy of the indictment which was then given to the jury. We did not see a copy of the Espionage Act.

This affiant further says that he is ready to appear in open court and testify to the statements herein made.

THOMAS C. Nixon. Subscribed and sworn to before me this 21st day of January, 1919.

Max HALEFF, (Seal)

Notary Públic. Endorsed: G. No. 6260. Municipal Court Chicago vs. Affidavit of Thomas Nixon. Filed Jan. 25, 1919 at

o'clock --M. T. C. MacMillan, Clerk.

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221 And afterwrads, to wit, on the 25th day of January, A. D. 1919, there was

filed in the Clerk's Office of said Court, in the above entitled cause, memorandum of Thomas C. Nixon; same being in the words and figures following, to wit: Memorandum of Thomas C. Nixon.

79

EXHIBIT ONE JAN 25—1919 H RH

Dec. 13, 1918.

Streeter carried into our room in Hotel Majestic one quart bottle Pebble Ford Whisky-paid for by Mr. Wakenr.

Dec. 17

Mr. Streeter carried into our room in Hotel Majestic one quart bottle Pebble Ford Whiskey-Paid for by Thomas C. Nixon.

Dec. 19%

Mr. Kennedy and Myself in my roonf talking when Mr. Ballou entered. Stated Witness Germer the damndest liar he ever heard and that he told nothing but dam lies on the Stand- I asked him to tell me of one lie Germer told— Whereupon he stated he would have nothing further to say on the matter- and did not- This took place after dinner in the evening.

Dec. 21-

Streeter carried into our room in Hotel Majestic one quart bottle WhiskyPaid for by H. A. Ballou

No date— front memory

At table in basement of Great Northern Hotel Mr. Streeter struck table with his right first to emphasize his remarks—which were as follows: “Every damn one of those fellows is guilty, and if I had my way, I would hang every one of them.

No Note from memory- Dec. 19

In rooni Hotel Majestic just before going to supper—Mr. Streeter said “ Did you ever hear such God damn lies as that Son-of-a-bitch told me on the stand today.

Dec. 22, after noon.

Streeter, Ballou and Nixon on Street cars to Lincoln Park viewed anintalsBirds & Monkeys Walked back to Hotel

222

EXHIBIT TWO, JAN. 25, 1919. H. R. H.

January 3rd 1919

Mr. Streeter remarked at noon time meal a Great Northern that “Berger was a damn lying Dutchman and he ought to be in hell” He also made similar remarks at dinner table in the evening at Palmer House at our first meal there Mr. Streeter in our room in Hotel just before retiring stated he “wished that damn lying dutchnsan Berger would get through with his damn lies

January 5–1919 Sunday

About 8 PM in Mr. Wakem-Kennedys room Hotel Majestic Stanton, Kennedy, Ballou, Light, Bartholomew & Nixon, Stanton said he was very much opposed to Socialists—in every way makes them out dirty liars and claims them guilty— He admits talking to his son New Years day about the case Then contradicts himself and States he “long ago talked of having no use for socialists at any rate."

January 7—1919

The very first thing Streeter said upon dressing this A. M.—“I wonder where I can buy a copy of Benedict Arnold "-I answered "I think McClurg's he replied “Arnold was the damnedst Sun-of-a-bitch-of a traitor this world, ever knew and these Suns of bitches are just like hint.”

Mr. Handee, it was generally reported had lost money in playing cards with Mr. Buckner and had given Buckner his check for $10.00. Mr. Wakem, Mr. Joice and Mr. Sheldon were in games, and the report was among the Jurors that

EXHIBIT THREE JAN. 25, 1919. H R H

223 Mr. Buckner had gotten the greater part of Thirty dollars lost Mr.

Joice and $20.00 by Wakem That Mr. Buckner who had played cards and pitched nickles with the Jurors is the same Mr. Buckner heretofore referred to as Buckner

During the deliberations of the Jurors, Nixon asked Mr. Buckner for a copy of the Hon. Judge's instructions to the jury, this Mr. Buckner said the judge would not give them. Mr. Buckner was asked for a copy of the Bill of Right and Declaration of Independence and replied “these are not to be had." He was asked for a copy of the indictment which was then given the jury. We did not see a copy of the Espionage Act.

Endorsed : 6260. U. S. v. Berger, et al. Impounded Juror Nixon. Filed Filed Jany. 25, 19. T. C. MacMillan, Clerk.

224 And afterwards, to wit, on the 3rd day of February, A. D. 1919, there

was filed in the Clerk's office of sad Court, in the above entitled cause, a Motion for New Trial; same being in the words and figures following, to wit:

IN THE DISTRICT COURT OF THE UNITED STATES

For the Northern District of Illinois,

Eastern Division.

United States of America

18. Victor L. Berger, et al.

MOTION FOR NEW TRIAL.

Now come Victor L. Berger, Adolph Germer, Irwin St. John Tucker, J. Louis Engdahl and William F. Kruse, by their attorneys, Seymour Stedman, Henry Cochems, William A. Cunnea and Swan M. Johnson, and move the Court to set aside the verdict rendered herein and to grant a new trial, and for reasons therefore show the the court the following:

1. The Court erred in overruling defendants' motion to quash the indictment and each count thereof.

2. The Court erred in overruling the defendants' demurrer to the indictand each count thereof.

2-a. The Court erred in overruling the plea of former acquittal flled by Adolph Germer.

2-6. The Court erred in overruling petition and motion for change of venue. 3. The verdict is contrary to the law of the case. 4. The verdict is not supported by the evidence in the case.

5. The Court, upon the trial of the case, admitted incompetent evidence offered by the United States.

6. The Court erred in denying defendant's motion and petition for 225 a change of venue.

7. The court erred in refusing competent evidence offered by the defendants.

8. The Court erred in refusing to direct a verdict of “not guilty” at the close of the evidence in behalf of the Governinent.

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