Mr. COFFMAN. Absolutely not. I never even suspicioned Judge Baker of being under the influence of liquor while he would be on the bench. I have seen Judge Baker; I would shake hands with him; I would be in his private office with the district attorney when I have consulted with him about matters I was interested in, with the the district attorney or his assistant, and have had opportunity to know, during the time I have been in court, whether or not Judge Baker would be under the influence of liquor, and I say absolutely

not.

Mr. CONIFF. Did you ever see him take a drink since he has been on the bench?

Mr. COFFMAN. I never did.
Mr. CONIFF. You may ask.
Mr. SCHUCK. That is all.

TESTIMONY OF MR. GEORGE M. HOFFHEIMER

(The witness was duly sworn by the chairman.)
Mr. NESBITT. Where do you reside, Mr. Hoffheimer?

Mr. HOFFHEIMER. Clarksburg, W. Va., in this judicial district.
Mr. NESBITT. What is your profession?

Mr. HOFFHEIMER. I practice law.

Mr. NESBITT. Will you tell the committee how long you have been practicing law?

Mr. HOFFHEIMER. About 26 years.

Mr. NESBITT. What is the nature of your work there, as a practitioner: civil or criminal?

Mr. HOFFHEIMER. Civil entirely.

Mr. NESBITT. Will you tell the committee some of your regular clients the names of some of your regular clients?

Mr. HOFFHEIMER. Well, that is probably presuming something. I represent regularly the Baltimore & Ohio Railroad Co., as division counsel; I represent locally the Graselli Chemical Co., the Consolidation Coal Co., and perhaps some others.

Mr. NESBITT. You know Judge William E. Baker?

Mr. HOFFHELMER. I do.

Mr. NESBITT. Do you practice in his court?

Mr. HOFFHEIMER. Yes, sir.

Mr. NESBITT. You remember the first term that he held at Clarksburg, following his appointment in April-that is the term in April, 1921?

Mr. HOFFHEIMER. I remember the first term, although I would not assume to give the precise dates. If that was his first term, I remember it.

Mr. NESBITT. Did you have business with the court on that day? term?

Mr. HOFFHEIMER. I was.

Mr. NESBITT. Did you have any business with the court on that day?

Mr. HOFFHEIMER. My recollection is that I did, although I must say that I have had to refresh my recollection by what I assume to be a correct memorandum from the court dockets. I could not say that I have any direct recollection of that.

Mr. NESBITT. Were you in court on the second day?

Mr. HOFFHEIMER. It is a question of whether I have a recollection or inference on that point. My recollection is that it was the prac tice of the court to call the civil docket on the second day of the term at that time, somewhat to my disgust, and I think from my general custom of being present at the call of that docket, on which I generally had quite a few railroad cases, among other things, that I was present on that date. I will have to leave it in that way, rather than from any precise recollection. I know I was in court more than on the first day.

Mr. NESBITT. Do you know what day of the week the first day of the term was?

Mr. HOFFHEIMER. The regular day is Tuesday, I think the second Tuesday in April, if I am not mistaken about that. I think so. Mr. NESBITT. Now on Thursday of that week, were you with Judge Baker at any time during the day or evening?

Mr. HOFFHEIMER. I can not assume to give you the precise day of the week. I do recall that during that week, Judge Baker took dinner with me one evening at the Waldo Hotel, but I can not tell you the day.

Mr. NESBITT. On the occasions on which you came into contact with Judge Baker, during that term of court-and I am referring now to both the daytime and the evening-did you at any time observe anything in Judge Baker's appearance or demeanor to indicate that he was in any degree under the influence of liquor?

Mr. HOFFHEIMER. I did not. But I wish to qualify that statement: I saw nothing which attracted my attention. Naturally, you assume that people are sober and, unless the contrary appears, you go upon that assumption, the same as general reputation, and then you hear something to the contrary. I recall nothing that indicated to my mind that he was intoxicated or under the influence of liquor. Mr. NESBITT. You may cross-examine.

Mr. SCHUCK. That is all.

Mr. NESBITT. Or that he had been-did you see anything in him to indicate that he had been under the influence of liquor and was recovering?

Mr. HOFFHEIMER. Well, I do not know that I am a competent judge, but I will answer that no.

TESTIMONY OF MR. HARRY H. BYRER

(The witness was duly sworn by the chairman.)

Mr. CONIFF. Mr. Byrer, you are one of the counsel for Judge Baker?

Mr. BYRER. I am.

Mr. CONIFF. How long have you practiced law?

Mr. BYRER. More than 32 years.

Mr. CONIFF. For how long were you connected with the district attorney's office, Mr. Byrer, as assistant?

Mr. BYRER. Eight years.

Mr. CONIFF. Eight years?

Mr. BYRER. Yes; lacking two or three months.

Mr. CONIFF. How long have you known Judge Baker?

Mr. BYRER. Well, more than 25 years.

Mr. CONIFF. And how long were you in office after Judge Baker became judge?

Mr. BYRER. Judge Baker went into office in April, 1921, and I resigned on the 15th of January, 1922-about 10 months.

Mr. CONIFF. Ten months?

Mr. BYRER. Yes.

Mr. CONIFF. And you were present at all the terms that intervened you got out of office?

until

Mr. BYRER. Yes.

Mr. CONIFF. Were you at Martinsburg his first term?

Mr. BYRER. I was.

Mr. CONIFF. Were you at Clarksburg with him at the April term? Mr. BYRER. I was.

Mr. CONIFF. Now, at the Martinsburg term-that was not the term, however, at which this order was entered?

Mr. BYRER. No.

Mr. CONIFF. Now, at the term here, Mr. Byrer, there is some testimony that the judge appeared late, either the first day or second day, in open court, and that when he did come his appearance indicated he had been drinking, or getting over a drunk-some indications that he had had a party of some sort. Did you see him and were you with him each day while he was here during the Clarksburg term?

Mr. BYRER. You mean the Clarksburg term?

Mr. CONIFF. The Clarksburg term; yes.

Mr. BYRER. Not here?

Mr. CONIFF. I mean Clarksburg; yes.

Mr. BYRER. I went to Clarksburg at that first term of court, which was held by Judge Baker, primarily to be present at the time the district judge considers the accounts of the marshal, for the reason that the regulations require that a representative of the Unied States attorney's office shall be present and shall approve certain accounts. I was there for that purpose, and Judge Baker was expecting to have a very large class for naturalization, and he asked me to stay and help him, inasmuch as he was inexperienced in that practice, with the naturalization. I stayed there two full days. I am not sure I was there the last day.

Mr. CONIFF. And you saw him frequently?

Mr. BYRER. I saw him, yes, indeed, all of the time that I was there. I stopped at the same hotel at which he stopped.

Mr. CONIFF. You saw him during court and out of court? Mr. BYRER. Yes; and I was with him on the bench, by his side, during all of the time he was naturalizing these foreigners. There was a very large class of them-my recollection is about 80.

Mr. CONIFF. It has been testified, Mr. Byrer, that he gave indications of having been drinking, having had a party-that his eyes indicated it and his face indicated the same. What is the fact about that?

Mr. BYRER. I would say that is absolutely not true.

Mr. CONIFF. During all the time, Mr. Byrer, that you were ant officer of his court, were you at every term that he held?

Mr. BYRER. I presume I must have been, because I was in charge of all of the trial work in his court.

Mr. CONIFF. It brought you in contact with him daily, I assume?

Mr. BYRER. Yes, indeed.

Mr. CONIFF. Now, tell the gentlemen of the committee whether during all the time you remained an officer of the court, after his appointment, you ever noticed any intoxication on his part or any evidence that he had been or that he was drinking on any occasion? Mr. BYRER. I never did.

Mr. CONIFF. After your severance from the official force, how frequently did you see him?

Mr. BYRER. Well, I have not had any business in Judge Baker's court except some civil business, and I have attended, I think, every term of court that he has held at Martinsburg; but I do not recall that I have attended a great many terms elsewhere since my term of office expired.

Mr. CONIFF. Well, at the terms at Martinsburg, since you severed your connection with the district attorney's office, have you ever noticed any indications of his drinking?

Mr. BYRER. I never have. I may say, generally, I never have seen Judge Baker at any term of court when I thought he was drinking or had been drinking.

Mr. CONIFF. With reference to these destruction orders, Mr. Byrer, what part did you take in them and do you recall what reasons, if any, were given, especially for this order concentrating these liquors at Elkins?

Mr. BYRER. I remember about that very distinctly. During all the time that I was in the office of the United States attorney, we were having a great deal of trouble about the marshal's office and vaults being broken into and robbed. When Judge Baker came upon the bench that was current. He had information of it and the marshal himself, Mr. Smith, was very anxious to have some plan devised that would correct that condition. I remember very definitely that Mr. Hannen presented or asked me to prepare an order for the destruction of some liquor which he had at Clarksburg, and I took the matter up with Judge Baker-I think probably I prepared an order at the instance of Mr. Hannen-and presented it to Mr. Baker. At that time he told me that the marshal had been in consultation with him about the liquor business generally. He discussed it further at great length at that term of court. We went over the Volstead Act and the great many hiatuses in the act itself, and the condition that existed in West Virginia with respect to the inability to make sales of liquor in this State, because of the State prohibition act. And the result of it all was that Judge Baker decided that he would take the time to investigate the whole situation, consider it carefully. In the meantime, I think I recall distinctly that he suggested that some of the liquor which was then in custody was probably bonded liquor and that it ought not to be destroyed; it ought to be turned over to hospitals or disposed of in some other way. He had that under consideration, and particularly we had under consideration this phase, that the Volstead Act failed to provide in any instance where there is not a trial what disposition shall be made of liquor. It happened very often with prohibition officers and with the marshalMr. CONIFF. You mean trial or conviction?

Mr. BYRER. Well, after a case had been tried. It happens very often, did then, that the officer, in making a raid under a search

warrant, would seize a considerable quantity of liquor, maybe a still and other apparatus, and would not be able to make an arrest Under those circumstances, there is no provision under the Volstead Act for the destruction of the liquor unless it be thought, not the Volstead Act, but another act of Congress which provides for the confiscation and destruction-and that provides for the sale of intoxicating liquors which have been improperly transported from one State to another.

Mr. HICKEY. Is that the Reed Act?

Mr. BYRER. That is the Reed Act, known as section 240 of the Federal Penal Code. Therefore, to meet that condition, it was necessary for use to devise a plan, which was really what I designate a fiction in pleading, and in libel proceedings covering such cases as that, where there had been interstate transportation either under that act or any other act, in violation of the Volstead Act, we had proceedings in rem, in which the property was confiscated and inasmuch as there could not be any sale of intoxicating liquors, either at auction or otherwise, in the State of West Virginia, by reason of the State statute, we had to devise some means of getting rid of this liquor and, therefore, we charged the fact in the libel proceeding that the liquor was deleterious and impure, under the provisions of the Pure Food and Drugs Act, which was generally the case. In any event, in those instances, it would not happen very often anybody would claim the liquor, and the matter would go unchallenged and the order then of destruction could be made.

Now, under that state of affairs and that complication that existed, Judge Baker came in, I think I may say, wholly unfamiliar with the Volstead Act, because he was not, during my term of eight years, a practitioner in the Federal court in criminal matters and, consequently, it was all new to him. He had to take time to review it all and he was particularly anxious, as I recall, to inquire from the Attorney General's office whether or not some provision could be made to turn over any of this liquor that was good and suitable for medicinal purposes to hospitals, and that occasioned a lot of delay during the summer, and it was not until September, at the Martinsburg term of court, that the order of September 27 was prepared. The later order, which is dated October 20, was prepared up at Wheeling and I was not present when that was prepared.

Mr. CONIFF. Do you recall, Mr. Byrer, the practice that had prevailed before the judge came in, of keeping special talks on the destructions of liquor and making reports, and so forth?

Mr. BYRER. There never was any custom to make any formal report, so far as the records of the courts are concerned, about the destruction of liquor. I always understood that the deputy marshal who destroyed liquor made a return of the fact on the destruction order, as we would make a return on processes which had placed in his hands for service.

Mr. CONIFF. Mr. Conrad had a letter here which seems to have been dated at Martinsburg, to Mr. Smith, one day previous to the date this order was passed. Do you know how that happened?

Mr. BYRER. I could only account for that by the fact that it very frequently happened an order would be endorsed by the judge to be entered, say, on the 26th, and the clerk would not enter it until the next day, by reason of the fact he was crowded with work, or it