might not, in fact, come to his hands until the next day. That may have occurred that way. That is the only explanation I can make of

it.

Mr. CONIFF. Do you recall the Judge's appointment of several people to supervise these destructions, Mr. Byrer?

Mr. BYRER. I remember he discussed it with me, but I do not recall the fact that he entered an order to that effect. I know he discussed it with me and discussed the personnel of the committee; I remember distinctly he had in mind Mr. Samuel T. Spears, a lawyer of Elkins, who was known to be an ultra dry.

Mr. CONIFF. You may ask.

Mr. SCHUCK. When was it, Harry, that you resigned?

Mr. BYRER. The 15th of January, 1922.

Mr. SCHUCK. You were not at all of the terms of court previous to that time and after Judge Baker had gone on the bench, were you? Mr. BYRER. I think I must have been, unless it was the fall term at Elkins. It seems to me I was not up there.

Mr. SCHUCK. Were you at the fall term at Wheeling in October,

1921?

Mr. BYRER. Yes; I was there, but I left before the business was entirely finished and you concluded the term.

Mr. SCHUCK. You were there part of that term, as I recall.
Mr. BYRER. Nearly all the term.

Mr. SCHUCK. How?

Mr. BYRER. Nearly all the term, I think.

Mr. SCHUCK. I do not think of anything else.

Mr. CONIFF. That is all.

Mr. DYER. That is all, Mr. Byrer.

Mr. CONIFF. Call Mr. Moore. I think this is probably the last witness.

TESTIMONY OF MR. CHARLES W. MOORE

(The witness was duly sworn by the chairman.) Mr. CONIFF. Mr. Moore, what is your business? Mr. MOORE. I am a lawyer.

Mr. CONIFF. A lawyer?

Mr. MOORE. A lawyer; yes, sir.

Mr. CONIFF. Mr. Moore, attention has been called to an incident at Elkins, I believe, at which you were defending some client and that, during the course of the trial, you went up to the judge's desk, to Judge Baker's desk, with a view to changing the plea of not guilty to "Guilty," if the court would follow your view and a light sentence, or light punishment, should be inflicted if that were done, and the court there, so loud that the jury could hear, said that "Your client is guilty as hell," etc. Do you recall this incident? Mr. MOORE. I recall the incident; yes, sir.

Mr. CONIFF. What occurred?

Mr. MOORE. We were trying a foreigner by the name of Bennie Farise. I was associated with another lawyer, Mr. Clifford, of Clarksburg, and I had wanted to enter a plea of guilty in the beginning, and the testimony became overwhelming against us and the case was hopeless, and I proposed to him-he was the senior counsel— that I go to Judge Baker and ask him if he would extend some leniency if the plea was changed.

I approached the judge's bench and leaned over his deck to talk to him about it and, in the course of my remarks, said to him, in a low whisper, "Of course, they have proved he was guilty as hell," and went on to talk about it. He said that he did not see how-he did not feel justified in extending me any leniency then. I told him, argued with him in a nice way, it would save some time of a busy court and, as I started to leave, Judge Baker said, in a whisper-it was not so low a man with good ears, in front of him, I would say, maybe might not have heard him 8 or 10 feet away-he smiled at me and said, " Charlie, you just said he was guilty as hell." The jury box at Elkins is on that side of the court room; the judge's bench is here, and the clerk's bench in front [indicating]. I approached Judge Baker from this side [indicating], and his face was turned toward me, and I perhaps was 2 or 3 feet from him, going in this direction, away from the jury [indicating], when he made that remark, and I do not believe it is possible that the jury could have heard what he said.

Mr. DYER. Mr. Moore, of course the stenographer can not get your testimony correctly unless you indicate what direction and the dis

tance.

Mr. MOORE. I could not give the exact distance, but the jury box is on the north side of the courthouse; the judge's bench is in the east end, and the clerk's desk, of course, is in front of the judge's bench. I approached around the clerk's desk from the south side and retreated that way, when this remark was made.

Mr. CONIFF. How far were you from the nearest juryman when you had this first conversation with the judge?

Mr. MOORE. I do not know the distance, how far; I suppose 15 feet.

Mr. CONIFF. How far were you from the nearest juryman when the court repeated your remark?

Mr. MOORE. Well, I was, if anything, a little farther off, because I retreated in this direction [indicating], retreated toward the south, and the jury box is on the north side.

Mr. CONIFF. Well, is it your belief, Mr. Moore, to such an extent that you can tell the committee, if you will, that any juryman heard that remark, or could have heard it?

Mr. MOORE. Well, I do not think they could.

Mr. FOSTER. Which one made the remark the louder, do you think-you or the Judge?

Mr. MOORE. He made it the louder. Our faces were just close together when I made it, and he made it slightly louder than I did, because I had started back, and he said it with a smile, and Mr. Clifford and Mr. Matthews, as I recall, did not stop trying the case, but were going on with the trial when I held this conversation. Mr. Clifford was the senior counsel and went on with the trial when I made this proposition to the court.

Mr. CONIFF. What was the result of the trial?

Mr. MOORE. Oh, they found him guilty very quickly; they lost no time. They confirmed my judgment. [Laughter.]

Mr. FOSTER. They did not use the same language in the verdict, though?

Mr. MOORE. No; but I felt like using it. [Laughter.]

Mr. CONIFF. The result was just the same?

Mr. MOORE. The result was just the same.

Mr. CONIFF. The verdict was as emphatic as your language had been, and as strict?

Mr. MOORE. Yes, it was; and I think the judge then landed on him with an ax. He was charged with possession, and he fined him $500, if I recall correctly.

Mr. CONIFF. There was no impropriety in what you said or in what the judge said that you think affected the jury?

Mr. MOORE. Oh, no; there was no impropriety in what was said. It was a crowded court room of people-more people than are here present now.

Mr. CONIFF. And it is your belief the jury did not hear this remark?

Mr. MOORE. That is my earnest, honest, belief, if I ever told the truth, and I think it could be substantiated by every man on that jury.

Mr. CONIFF. That is all.

Mr. SCHUCK. At the time you went up to the bench to talk with the judge about that matter, Mr. Matthews went with you, did he not?

Mr. MOORE. He did not.

Mr. SCHUCK. Mr. Matthews is mistaken when he says that?
Mr. MOORE. He is.

Mr. SCHUCK. And is Mr. Hiteshew mistaken when he says he asked you what the judge said about the remark, when you came back, and you repeated to him "Your client is guilty as hell?"

Mr. MOORE. No; Hiteshew, when I got back, was standing at the counsel table. I do not know where he had been when the judge and I were talking; I have been informed he was back of me; but when I went back Mr. Hiteshew said to me, "Didn't he say he was guilty as hell?" and, considering it of no importance, I know I just said "Yes." I did not give the exact verbiage, but just said "Yes." I did not consider it of enough importance to go on and repeat it word for word; I did not suppose there would ever be anything to it. Mr. SCHUCK. That is all.

Mr. CONIFF. We would like to know how much time we have. We have several witnesses and will have to select among them. We can not put them all on.

Mr. DYER. The committee can sit until 6 o'clock, judge. Will that give you ample time?

Mr. CONIFF. Oh, yes; I think so. I think we will perhaps have to cut out some, but we can do that, perhaps, without inconvenience. I will call Mr. Coffman.

TESTIMONY OF MR. I. WADE COFFMAN-Recalled

Mr. CONIFF. Mr. Coffman, it is testified to by Mr. Charles Sharp, the officer, that on a given date, I believe the 26th of April, 1923 or 1922-you heard his statement?

Mr. COFFMAN. Yes.

Mr. CONIFF. That one evening, in the McClure House, you were were plainly drunk, in company with Judge Baker, whose arm you

had, or he had your arm. Tell the gentlemen of the committee what is the fact about that, if you have any recollection of any such affair? Mr. COFFMAN. I do not. I deny it emphatically.

Mr. CONIFF. Were you intoxicated in the McClure lobby at any time?

Mr. COFFMAN. In company with Judge Baker?

Mr. CONIFF. Yes.

Mr. COFFMAN. No, sir.

Mr. CONIFF. It has been testified by Mrs. Marian Greer that she saw you in a maudlin drunken condition in her office in the city of Parkersburg on the occasion that you heard her describe. What is the fact about that?

Mr. COFFMAN. The lady is mistaken.

Mr. CONIFF. It is testified by Mr. Brown that you were grossly intoxicated in the court room in Wheeling during a session of the court. You heard his statement about that. What is the fact about that, Mr. Coffman?

Mr. COFFMAN. That is not true.

Mr. CONIFF. You do drink, do you, Mr. Coffman, to some extent? Mr. COFFMAN. Perhaps too much.

Mr. CONIFF. To what extent do you drink on duty?

Mr. COFFMAN. I am rather careful about that.

Mr. CONIFF. You have heard the statement about this Eddie Haines, who says that on one occasion he took some whisky to Patrick King's, in the city of Wheeling, on an occasion when he says Judge Baker was in King's house. What is the fact about that? Mr. COFFMAN. And I believe he says I was there?

Mr. CONIFF. Yes, he said that you were there, as I recall.

Mr. COFFMAN. I have never been in Mr. King's house in my life. Mr. SCHUCK. I would be more apt to; I was on trial. I got hit several times and I noticed it.

Mr. CONIFF. That is my recollection; I am not sure.

Mr. SCHUCK. Go ahead.

Mr. COFFMAN. I have never been in Mr. King's house. I know generally where he lives, out the pike; I do not know him very well, but have met him a time or two.

Mr. CONIFF. Then there was Fred Wilkinson, who swore on one occasion he had to lead or carry you up the steps of the Federal building-no, that Haught had to carry you or lead you up the steps of the Federal building at Clarksburg, on account of your drunkenness. What is the fact about that?

Mr. COFFMAN. That is false; that is not true.

Mr. CONIFF. Now, somebody else has sworn, Judge Brown has sworn that on one occasion, on the B. & O., when you had the drawing room on the way to Martinsburg, that there was a suitcase there, I think he said belonged to you, so heavy that somebody there had to make a second effort to lift it, the insinuation being it was full of booze, I assume. What is the fact about that?

Mr. COFFMAN. That is ridiculously untrue. Dorsey Brown is a much stronger man than I am, and I had to carry that suit case on and off the train, or after I got off the train, and I carried it very successfully, and I did not have to tug at it, it being my personal clothes, and so on.

Mr. CONIFF. Also that during the evening the suit case was transferred into the toilet compartment of the car. Do you remember that?

Mr. COFFMAN. I have no recollection about that at all.

Mr. CONIFF. What is the fact about it, as you recall?

Mr. COFFMAN. I do not recall anything about it. I am sure I did not have it full of liquor and had no liquor in it, and if Mr. Brown came in to pay his respects, and the little compartment was crowded, I suppose the suit case might have been moved out. I have no recollection about it.

Mr. CONIFF. And at several times after it was moved into the toilet compartment, the compartment was visited by you and by Judge Baker?

Mr. COFFMAN. That is not true.

Mr. FOSTER. And the conductor of the railroad.

Mr. CONIFF. That is right-and the conductor of the train.

Mr. HICKEY. And there was a prohibition agent, I think, on the train and in the party.

Mr. COFFMAN. Yes; Mr. W. D. Brown.

Mr. CONIFF. That is right; and he is the man, I believe, that tried to lift the suit case.

Mr. COFFMAN. Yes.

Mr. CONIFF. Do you rceall this Mr. Brown, the prohibition man, being there

Mr. COFFMAN. I have no recollection of it. If he asked me what I had in my satchel, I perhaps am too frivolous sometimes with my friends and acquaintances, and may perhaps have said to him, "That is an embarrassing question," but I was just jesting if I did say so. I do not have any recollection about it and no significance should be · attached to it.

Mr. CONIFF. And now, Mr. Coffman, as to the testimony that the place was practically filled with the fumes of liquor. Do you recall any such condition as that?

Mr. COFFMAN. I do not.

'Mr. CONIFF. Was there anybody there in your party under the influence of drink that night?

Mr. COFFMAN. No, sir.

Mr. CONIFF. Now, with reference to Judge Baker, Mr. Coffman; how long have you known him?

Mr. COFFMAN. Well, I have known him intimately, except for the last three or four years. I knew him in a political way; I got acquainted with him in politics, but was not associated with him except during one campaign, and that was not very intimate, until a few months before I accepted the clerkship.

Mr. CONIFF. Now, of course, I will confine my questions to your intimacy as clerk. How long have you been clerk-all the time since Judge Baker was on the bench or not?

Mr. COFFMAN. No; since August 1, 1921.

Mr. CONIFF. You succeeded Mr. Barrett?

Mr. COFFMAN. Yes, sir.

Mr. CONIFF. Now, since that time, Mr. Coffman, you have had, of course, the intimacy with the judge that would naturally follow that position?

Mr. COFFMAN. Yes, sir.