Mr. SCHUCK. That is true; it is unfortunate, and it is the first information we have that he is out of the jurisdiction of the court. Mr. FOSTER. Why can not we pass on now and if we should have an adjourned session and he is available, take that up later?

Mr. SCHUCK. I will say this to the committee, that he has made the statements contained in that affidavit at least on three different occasions and then made the affidavit accordingly, and it is highly important, by reason of the fact that it shows, to our notion, a conspiracy there, if the committee will, that it ought to be before you in the form of proper evidence. I concede the right of the gentlemen on the other side to cross-examine, and I think in due time this should be presented.

Mr. DOMINICK. This affidavit contains everything you want to bring out?

Mr. SCHUCK. Yes, sir.

Mr. DOMINICK. I suggest, Mr. Chairman, that you just allow the affidavit to go in at this time as a part of the evidence introduced on the part of the complainant and then, at any subsequent hearing we have, allow Judge Baker's attorneys to cross-examine this witness, when we can get jurisdiction of him.

Mr. DYER. We will defer the matter entirely at present, if that is satisfactory.

Mr. DOMINICK. I think this affidavit ought to go in.

Mr. DYER. In view of the objection of counsel for Judge Baker, I think it best not to admit it at this time. We may be able to get the testimony, if the committee considers it of importance, before we finish.

Mr. SCHUCK. Call Mr. Jonathan Paul.

Mr. DYER. There are three witnesses here, Mr. Schuck-Jonathan Paul, Walter Pierce, and A. C. Blaisdell, who are in Washington, D. C. Is that correct?

Mr. BROWN. Yes, sir; that is my understanding.

Mr. DYER. The committee preferred to take their testimony in Washington, to save expense. Also Allen B. Hume.

Mr. BROWN. Very well.

Mr. DYER. Are there any more witnesses, Mr. Schuck?
Mr. SCHUCK. Yes. Call Mr. R. L. Merrick.

TESTIMONY OF MR. RICHARD L. MERRICK

(The witness was duly sworn by the chairman.) Mr. BROWN. Mr. Merrick, where do you reside? Mr. MERRICK. Washington, D. C.

Mr. BROWN. What is your profession?

Mr. MERRICK. I am a lawyer, sir.

Mr. BROWN. What official connection have you had with the Government, if any?

Mr. MERRICK. Well, my last connection was as a special assistant to the Attorney General."

Mr. BROWN. How long did you occupy that position?

Mr. MERRICK. Well, I was with the Department of Justice three years and about four months; about eighteen months of that time, of possibly two years, as a special assistant to the Attorney General.

29045-25-PT 1—— 7

Mr. BROWN. Located in the city of Washington?

Mr. MERRICK. With headquarters in the city of Washington, yes,. sir.

Mr. BROWN. When did you sever your connection with the department?

Mr. MERRICK. September 30, 1924.

Mr. BROWN. And what business are you engaged in now?

Mr. MERRICK. I am engaged in the practice of law in Washington. Mr. BROWN. Are you acquainted with Judge William E. Baker? Mr. MERRICK. Yes, sir.

Mr. BROWN. How long have you known him?

Mr. MERRICK. I met Judge Baker in Martinsburg, W. Va., I think, in September of 1922. Possibly it was in 1923, early in 1923. I think, however, it was in September, 1922.

Mr. BROWN. That is the first time you had ever seen him?

Mr. MERRICK. Yes, sir.

Mr. BROWN. How frequently have you seen him since, and under what circumstances?

Mr. MERRICK. I did not see him again until July 1, 1923, at Elkins, W. Va.

Mr. BROWN. Under what circumstances did you see him there; what were you doing there and what was he doing there?

Mr. MERRICK. Well, I was assigned to what is known in the Department of Justice as the Harness case and went to Elkins with other counsel on behalf of the Government to present the case to the grand jury, and on that occasion that was the second time I had seen Judge Baker?

Mr. BROWN. And what was Judge Baker doing there at Elkins? Mr. MERRICK. On the morning, if I remember correctly, of July 1-possibly it was July 2-1923, with other counsel on behalf of the Government, I went to the Federal building in Elkins, having at that time in my possession a commission or appointment, issued by the Attorney General, to appear before the grand jury. We went into Judge Baker's chambers to have him look over the commissions. to see if they were in proper form, and also to notify him that we were there for the purpose of presenting that case. We went into Judge Baker's chambers and I sat down directly opposite the judge, and the other counsel, Mr. Early, sat at my left. We presented our appointments or commissions to Judge Baker and, on that occasion, he O. K.'d them, or I think he wrote the word "Approved" and then signed his name.

Mr. BROWN. What did you observe at that time, if anything, in regard to his being intoxicated or drunk?

Mr. MERRICK. Well, I smelled the judge's breath across the desk and his breath smelled as if he had been drinking.

Mr. BROWN. And what was his appearance?

Mr. MERRICK. Well, I thought at that time that he was pretty well under the influence of liquor. I would not say that he was drunk, but he appeared to me as having had something to drink.

Mr. BROWN. Well, what were the indications; that is, what signs

of his having been drinking did you notice?

Mr. MERRICK. Well, his eyes appeared to be red and his appearance was somewhat different than the time I had seen him at Martinsburg-his complexion seemed to be much more ruddy.

Mr. BROWN. And how did his appearance coincide with his appearance at other times during that term of court while you were there?

Mr. MERRICK. Well, I thought on one other occasion that the judge had been drinking. I do not recall that I saw him at Elkins more than two or three times. His appearance was entirely different than it was on one occasion when the judge and myself and Mr. Frank Hogan, of Washington, and John J. Parker, another attorney on behalf of the Government, from Charlotte, N. C., went out to see the golf links, the new Country Club's golf inks at Elkins, in the judge's car.

Mr. BROWN. You mean to say that his appearance that day was different from what it was on the morning you went and transacted this official business?

Mr. MERRICK. Yes, sir.

Mr. BROWN. How long were you there at Elkins?

Mr. MERRICK. We were there practically all the month of July. I think we left there on the 28th of July, if I am not mistaken, 1923. Mr. BROWN. You may inquire.

Mr. CONIFF. I do not recall there is anything in the charges about this incident at all.

Mr. HICKEY. Was there any statement made at that time which would indicate intoxication?

Mr. MERRICK. Well, I do not think the judge was intoxicated, that is, to the extent that he was not in possession of his faculties. He greeted Mr. Early and myself; we shook hands and sat down and talked a minute or so. We presented our appointments. The judge approved them and then, a little while later, if my memory serves me correctly, the judge charged the grand. jury, I think the same day either that same day or the next day; I think the same day. Mr. HICKEY. Did you hear him deliver the charge?

Mr. MERRICK. I did, sir.

Mr. HICKEY. Was there anything in what he said to indicate intoxication?

Mr. MERRICK. Not to indicate that he was drunk. He did not charge the grand jury to my satisfaction. Of course, that is my

opinion.

Mr. HICKEY. I know, but that is a question for the court to decide, according to his knowledge of the law. Was there anything he said in his charge to indicate that he was drunk?

Mr. MERRICK. Well, I do not think that a judge would charge the grand jury the way he did if he was in full possession of his faculties.

Mr. DYER. What did he say?

Mr. MERRICK. Well, his charge was fairly good, up to a certain extent. I do not think his definition of conspiracy and the evidence required to prove it was in accordance with the law. Of course that was my opinion.

Mr. CONIFF. What was his definition?

Mr. MERRICK. I do not believe I can give it. It was about a column or two columns and a half long in the newspaper the next day.

Mr. CONIFF. As you heard it, what was wrong with it?

Mr. MERRICK. I just stated I did not think his definition of conspiracy and the evidence required to prove it was as full and complete or in accordance with the law as I thought it should be. Of course that is a matter of opinion.

Mr. CONIFF. I was going to ask if you will concede that you might be wrong and he right?

Mr. MERRICK. Absolutely.

Mr. FOSTER. That would not be evidence of intoxication?

Mr. MERRICK. Oh, no; I did not say it would be evidence of intoxication.

Mr. FOSTER. Did you think it was the outcome or result of having drunk too much?

Mr. MERRICK. Well, I thought it might have had some influence on his charge-the fact that he had been drinking.

Mr. FOSTER. While his conception of the law differed from yours, at the same time did he state clearly his view of it?

Mr. MERRICK. I think he did, sir.

Mr. FOSTER. There was nothing incoherent about it, then?

Mr. MERRICK. Oh, no; only a few hesitations, perhaps because of his manner of speech. I did not know at that time, but I thought then that drinking might have had something to do with it.

Mr. FOSTER. Some of us who try cases before juries might frequently think the jury was drunk, because frequently they do not agree with us.

Mr. MERRICK. Oh, absolutely; I do not think the judge was drunk. Mr. CONIFF. You never heard the judge deliver a charge before! Mr. MERRICK. No; but I heard him speak from the bench.

Mr. FOSTER. You, as a representative of the Department of Justice, had given weeks and perhaps months of study to the case you were going to present?

Mr. MERRICK. I had, sir.

Mr. FOSTER. And you had fixed notions as to what you thought would be a proper definition of conspiracy?

Mr. MERRICK. Absolutely.

Mr. FOSTER. The judge, charging the grand jury before which your case was to be presented, did not charge in line with what you thought, as the result of months of work, should have been a proper charge on conspiracy?

Mr. MERRICK. That is true.

Mr. FOSTER. There was no evidence of intoxication in back of it, that you saw?

Mr. MERRICK. I would not say that was evidence of intoxication, no, sir; but, coupled with the fact I had smelled liquor on his breath, I thought his drinking might have had something to do with the charge he gave.

Mr. FOSTER. Was the charge prepared in writing?

Mr. MERRICK. I think so; he seemed to be reading it off, it, at least.

part of

Mr. FOSTER. You say he had an odor of liquor on his breath when he read the charge. I was wondering, if the charge was affected as the result of liquor, if you would not think the liquor must have affected the charge when it was composed?

Mr. MERRICK. I thought it did. I do not know whether he composed it the night before, or when.

Mr. CONIFF. This commission that he examined; he did it properly?

Mr. MERRICK. There was not anything to do with that except to read it over.

Mr. CONIFF. Now, another court did not quite agree with your construction of conspiracy. That case was afterwards tried in this room to a petty jury, and when you got through the court directed a verdict for the defendant, did it not?

Mr. MERRICK. That is true.

Mr. CONIFF. That was not Judge Baker, either?

Mr. MERRICK. No.

Mr. CONIFF. And the Supreme Court of the United States-
Mr. MERRICK. No, sir; it was never appealed.

Mr. CONIFF (continuing). Sustained the proposition established by Judge Groner

Mr. MERRICK. No, sir; it was never appealed.

Mr. CONIFF (continuing). In support of his ruling, excluding your evidence.

Mr. MERRICK. No, sir. That case was tried in two weeks, and it should have been tried in six weeks or a month.

Mr. CONIFF. That is not Judge Baker's fault.

Mr. MERRICK. No, sir; and I am not charging that up to Judge Baker.

Mr. CONIFF. I am trying to get back to your innuendo, saying you smelled liquor on Judge Baker's breath, and thereafter there followed a charge to the grand jury that was not up to your idea of what it should be. You mean by that that this liquor had something to do with it, don't you? Do you mean to give that impression, or not?

Mr. MERRICK. That is the impression I had at that time.

Mr. CONIFF. You did not agree with the idea the judge had of conspiracy?

Mr. MERRICK. No, sir; I did not.

Mr. CONIFF. But the court who tried the case here before the petit jury agreed with Judge Baker and dismissed the case without requiring the defendants to put in any testimony, did he not?

Mr. MERRICK. No, sir; the defendants put in all their testimony. Mr. CONIFF. Yes; that is right; but the court, notwithstanding that, directed a verdict upon it?

Mr. MERRICK. Yes, sir.

Mr. CONIFF. Did he do anything else that indicated this odor of whisky had anything in the remotest degree to do with the performance of his duty?

Mr. MERRICK. On a subsequent occasion

Mr. CONIFF. I mean on this particular occasion, at Elkins?

Mr. MERRICK. This is at Elkins, I am talking about.

Mr. CONIFF. I mean this case you are speaking of. I want to get

through with this one instance.

Mr. MERRICK. Let me make my explanation, if you please.

Mr. CONIFF. No; you are speaking of other instances, or want to. I want to get through with this one instance.

Mr. MERRICK. All right, sir.