Mr. CONIFF. The desk was just where it is now? Mr. WHEELER. Yes; but I do not believe it is the same one. believe it set back a little farther.

I

Mr. CONIFF. The location is about the same?

Mr. WHEELER. Yes, sir.

Mr. CONIFF. And these gentlemen could have heard the request that the judge made to you?

Mr. WEELER. No; I do not believe they could have heard the request the judge made to me.

Mr. CONIFF. Why?

Mr. WHEELER. Because he did not speak out loud.

Mr. CONIFF. Was he concealing it; did he seek to conceal it? Mr. WHEELER. There was a question as to whether or not it was whisky, and we have no chemists in this district, or at that time we did not, and all beers and moonshine and wine, etc., there might have been a doubt and he wanted to send it to a chemist on West Gay Street for analysis, and, as Judge Baker was the judge on the bench, why I answered his question by delivering it in there. I do not know whether he wanted to test it, whether he wanted to send it away, or whether he was going to turn it over to the marshal, or whether he was going to turn it back to the prohibition department, or what he was going to do with it. It was none of my business. Mr. CONIFF. He did not tell you?

Mr. WHEELER. No, sir; I never had any instructions.

Mr. CONIFF. He did not tell you what he wanted it for?

Mr. WHEELER. No, sir; he did not.

Mr. CONIFF. But you picked it up and

Mr. WHEELER. I did, and went around behind that wall with it. Mr. CONIFF (continuing). And took it into his room?

Mr. WHEELER. Yes, sir."

Mr. CONIFF. All right.

Mr. SCHUCK. You were a Federal prohibition agent at that time? Mr. WHEELER. At that time; yes.

Mr. SCHUCK. That is all.

Mr. CONIFF. At Martinsburg, do you recall who were present when the case was disposed of?

Mr. WHEELER. What officers-who was present, you mean?
Mr. CONIFF. At Martinsburg?

Mr. WHEELER. All of the agents I know of were there-Rayne Miller, Joe Doerr, Cole Stalnaker.

Mr. CONIFF. Do you know whether Mr. Byrer was present?
Mr. WHEELER. I believe Mr. Byrer was present.

Mr. CONIFF. And the clerk of this court?

Mr. WHEELER. I imagine he was. I do not recall whether he was or not.

Mr. CONIFF. And you do not recall how the case finally ended? Mr. WHEELER. No, sir; because sometimes we were not called. If we was not in the court room, they would raise Cain because we was not there, and if we were in there, they would raise Cain because they said we were running over top of one another, and they would tell us to go out and get some cases. I do not recall who was there. Mr. FOSTER. What year does he say that was?

Mr. CONIFF. In 1921 he says.

Mr. WHEELER. If I recall right, it was in the January term. I am not sure whether it was the May term here or the January term, 1922, here; I am not positive.

Mr. CONIFF. Either the January or May term, 1922?

Mr. WHEELER. Yes, sir; May, 1921, or January, 1922. I am not positive about that.

Mr. CONIFF. It might have been 15 months later?

Mr. WHEELER. No; because my last cases were at Martinsburg. Mr. CONIFF. I was trying to get the assistance of you gentlemen as to the time when the case was proceeding here and get a record of

that time.

Mr. WHEELER. It was either May, 1921, here, or January, 1922, here.

Mr. SCHUCK. Do you recall whether it was before Judge Brown was district attorney?

Mr. WHEELER. It was.

Mr. SCHUCK. That was probably 1921, then-May, 1921.

Mr. WHEELER. Either May, 1921, or January, 1922; I do not recall. Mr. CONIFF. But you can not remember the name of the boy that was charged?

Mr. WHEELER. No, sir. I think it was the lady and her son. As I say, I believe. I won't be positive of that, because I had some thirtyseven hundred cases, and I do not recall all the names of them.

Mr. SCHUCK. That is all we have to offer now on those three propositions.

Mr. BROWN. We will reserve the right, in the morning, to tender a copy of a report made by Mr. Palmer, special agent, I believe, of the prohibition department. The question was asked me, I believe, on cross-examination, relative to a report made by Mr. Pierce or Mr. Palmer, in connection with Mr. Gorden, of Clarksburg, United States commissioner there, who was in the department over at Elkins-whether I had reported that to Judge Baker, and I answered that I had not reported it. Now, we desire to file a copy of the report in reference to Commissioner Gorden, made by Mr. Palmer, that was laid before Judge Baker, and that was the reason I did not make any further report, because I had made one report about this commissioner and no action had been taken, and I want to file that in the morning.

There are some other matters that do not concern Mr. Gorden at all in here, and I want to look over it and I will have to hold on to this report, because it is an office file and it involves some matters that are not disposed of, and I will either have to have a copy of it made to retain in my office or to have this back; but, before the committee leaves here I will hand it to the committee.

Mr. DYER. You simply want to go in the record the statement that you did report to the judge concerning this commissioner; is that true?

Mr. BROWN. I did in regard not to the Elkins incident but in regard to another incident of probably as serious a character, just a short time before that, at Clarksburg.

Mr. DYER. That is only, of course, to complete your answer to the inquiry made of you; that is all, is it not? It has no material value? Mr. BROWN. Well, it has a very material bearing, perhaps not so much on the matter under consideration to-day, but it does have a

very material effect upon some of the other charges that have been filed, but not charges that have been taken up to-day or considered. Mr. FOSTER. The point you make is it gets information to the judge that you could not personally testify to, but the record shows got to him?

Mr. BROWN. Yes; that is it. And another matter I would like to inquire about: Has there been a copy of the order entered in Martinsburg by him in 1921 relative to the 800 quarts of liquor stored at Clarksburg? Has that been filed?

Mr. CONIFF. I think so.

Mr. BROWN. I am not sure about that. If it has not, why, we will file a copy of that.

Mr. DYER. You can prepare that, Judge Brown, and submit it to counsel.

Mr. BROWN. Yes; I will do so.

Mr. DYER. And see if there is any objection.

Mr. BROWN. Yes.

Mr. DYER. But, of course, we do not want to take any time over it. Mr. FOSTER. I was wondering whether the attorneys for Judge Baker would rather we adjourn until 9 or 9.30? To-morrow is theirs, by our arrangement.

Mr. DYER. Yes. We will take a recess until 9 o'clock, gentlemen. Mr. CONIFF. We will be here at 9 o'clock. We feel we had better do that.

(Thereupon, at 9.30 o'clock p. m. the committee adjourned until to-morrow, Wednesday, November 26, 1924, at 9 o'clock a. m.)

SUBCOMMITTEE OF THE COMMITTEE ON THE JUDICIARY,

HOUSE OF REPRESENTATIVES, Parkersburg, November 26, 1924. The subcommittee this day met at 9 o'clock a. m., Hon. Leonidas C. Dyer presiding.

Mr. DYER. Gentlemen, we are ready to proceed.

TESTIMONY OF HON. WILLIAM E. BAKER, UNITED STATES DISTRICT JUDGE, NORTHERN DISTRICT OF WEST VIRGINIA

(The witness was duly sworn by the chairman.)

Mr. NESBITT. Judge Baker, do you remember the case referred to here as the Sawa case at Wheeling?

Judge BAKER. I do.

Mr. NESBITT. Tell the committee, Judge, all of the facts concerning that case.

Judge BAKER. In the May term, 1922, on the 17th day of May, in the Wheeling term, there was brought before me a young man named Mike Sawa, jr., or Adolph Sawa, against whom there were two informations, Nos. 6454 and 6455. No. 6454 was for unlawfully and knowingly possessing property designed for the manufacture of liquor, intended when manufactured to be used in violation of the Volstead Act. There was a 15-gallon still, a 10-gallon still complete, and 100 gallons of rye mash.

29045--25-PT 1—— 12

The other information against the young man was for unlawfully and knowingly possessing for beverage purposes two gallons of intoxicating liquors, commonly called "moonshine." The case was brought up in court. The defendant was a young stripling, approximately 18 years of age, of apparent foreign descent, and spoke good English.

Something made me suspicious that that young man was not guilty of running a distillery of this dimension. In the meantime one of the prohibition officers and I can not recall which-came to me and assured me that in the circuit court the young man had pleaded not guilty, that it was not his stuff, although he was the only male person at home when the search was made of his father's home. However, when arraigned the young man pleaded guilty.

I thereupon questioned him, saying, "Young man, I do not believe you are telling me the truth, and what the judgment of this court shall be in this case depends to a great extent upon whether I think you are fair and frank with the court and telling me the whole truth."

I immediately confronted him with the stills.

Is it not a fact that these were your father's stills and this was his mash and was his moonshine liquor, and that you are just being made the goat of this matter?

He dropped his head in silence. Pursuing that line of questioning, he led me to believe positively that it was his father and not himself. I was informed that his father was in the back end of the courtroom.

I thereupon called Mr. Schuck and requested that he issue a similar information against the father as had been issued against the son and filed.

This was done. Thereupon I directed Clerk Coffman to issue a capias for Mike Sawa, and one of the marshals went to the rear of the room, as I recall, or possibly just outside of the room, and took up the father, Mike Sawa, on the capias.

He was brought to the bar of the court and in company with his son. He spoke broken English. Using his son for an interpreter, I detailed what the charges were to him and asked if he was guilty or not guilty and what he had to say about it.

At that time the son said about as follows:

He said it was his mash, his stills, and that he manufactured that 2 gallons of liquor. That was another offense other than that already charged, and thinking that any father who would take an 18-year-old son, who, by the way, it developed later worked every day in the factory that was developed through my questioning and have him assume this statement, I felt that such a man should have a jail sentence. Not only had he violated the Volstead Act but he violated that law of the duty of a father to a son, the paternal law.

I thereupon called Mr. Schuck and suggested that he go out and prepare an information against the father, Mike Sawa, sr., for manufacturing the liquor. He did so. He came to the clerk's desk, got the informations, proceeded to the trial table, and added to No. 6454 the following words in his own handwriting.

Mr. FOSTER. This was on the 17th; was it, Judge?

Judge BAKER. This is on the 17th.

Mr. HICKEY. And the defendant was in court?

Judge BAKER. The defendant was in court. He and his son sat right there at the side. Mr. Schuck had added, "and did unlawfully manufacture 2 gallons of moonshine liquor."

I remember remarking, "Charlie, that is not what I asked you to do. To prepare another information is what I asked you to do. But, as informations may be amended at any time, although that indictments may not, I guess it will do. We will let it stand, anyway."

Realizing that that was rather a serious offense, I called Judge Ritz, who was then judge of the police court and now recently elected judge of the criminal court of Ohio County, and Attorney Bradshaw, and especially requested them to go over these accusations with this old gentleman, as he spoke English not very well, and was especially careful to see that he had not only counsel but counsel of mature years and experience.

Mr. HICKEY. Pardon me, Judge; was his son with him?

Judge BAKER. His son was right along with him.

Mr. HICKEY. And he spoke English?

Judge BAKER. Yes; excellent English.

Mr. HICKEY. He understood?

Judge BAKER. Yes. On the 18th, the following day

Mr. FOSTER (interposing). May I ask you before you go to the 18th, was this amended information exhibited to the attorneys you assigned?

Judge BAKER. I was just going to say that this amended information was turned over to these attorneys, Judge Ritz and Mr. Bradshaw. Whether they had their conference that evening-that was along in the evening or the next morning, the 18th, I am not sure. Anyway, they retired from the court room with the father and sonboth of these lawyers-and stayed approximately a half hour and returned to court stating that they had gone over this case and that Mike Sawa, sr., wanted to plead guilty to the charges, as read in both informations.

Mr. FOSTER. This is on the 18th?

Judge BAKER. This is on the 18th. Thereupon I pronounced judgment, as I recall, of $1 against the young man and against the father I pronounced judgment of $500 for possession and four months in the Ohio County jail for the manufacturing charge in information No. 6454. I took occasion to say then to the father that, to my mind, it was a very reprehensible crime for a father to have a hard-working boy working in the mills every day, and when a charge came up for manufacturing liquor to try to lay it onto the boy.

I remarked to him that I believed it was because he thought the boy had no property out of which the fine could be gotten and therefore he was going to take that position. However, that was on the 18th. The matter was dismissed from my mind after that, hundreds of cases coming up time after time. But the reason that this case made such an indelible impression upon my mind was the action of the father in trying to put an 18-year-old boy in jail for his own crime.

There was some misunderstanding. Judge Brown seemed to think that I was wrong and took the position later-I do not know how long afterward-he wrote me a letter on July 22, in which he stated his version of this situation.