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172

THE JOE HILL CASE

Let us consider whether or not this has been
definitely fixed upon the defendant, or whether
vague suspicions, prejudgments, inference and
speculations have been allowed to usurp the
place during the trial that should be filled with
convincing and satisfying evidence.

The young son who was present, the only
living witness to the tragedy, says:

"Two voices shouted, 'We've got you now!'"
(Abs. 80); the men had on red bandanna handkerchiefs,
so that the point came down over
their chin. They had on soft felt hats. There
was a little difference in the height of the
men; the taller was leading, and nearest the
father.

"The defendant's height is about the same
and his size compares (Abs. 92) just the same
as the man I saw."

Is there any identification of any person in
this evidence?

The next witness to identification in Phoebe
Seeley:

"Going home that night, we met two men as
we were crossing Jefferson street (Abs. 182).
One was slightly taller than the other; the
taller man turned, directing his gaze toward
us and I noticed a red handkerchief on the
neck of the taller man (Abs. 183). His face
was thin and a sharp nose and rather large
nostrils." (Abs. 185).

Recall, if you please, that at this point the
defendant was without counsel, and one of the
friends of the court suggested (Abs. 186), that
the questions were all unfair and all leading
and that the witness was receiving the answer
she should make from the district attorney.

And she continues:

"I have seen the defendant standing since
and his height is very much the same with the
height of the man that turned and looked at
me."

Now listen to the district attorney: (Abs.
188.)

Q. How does the nose of Mr. Hillstrom
compare with the nose of the man that looked
at you there?

A. Very much the same.

Q. How do the marks on the left-hand side
of the face and neck correspond with the
marks you saw on that man?

A. They look a good deal alike to me as
on the same man I saw.

Special features are pointed out; comparisons
are invited as to detail--efforts, by suggestion,
to make the witness see what she had
never seen. A man fair to the defendant and
to the state would never have so wilfully disregarded
the rule as to manufacture fancied
resemblances in the excited imagination of a
woman testifying in a court room. He would
have said: If you notice any resemblance,
state the facts on which it is based, and be so
sure about it that you can state it in your own
language--for remember that the life of a man
depends upon it, and there must be no guess-work,
no vague impressions, but facts that
satisfy the conscience. Instead of that he
does all but ask her directly to state that the
men are the same. By all possible stretch of
imagination, helped out by suggestions, her
nearest guess is "that they looked very much
the same."

* * * * * * * *

Concluding, I now ask your honors frankly,
if you, or any one that is dear to you, was
condemned upon the inconclusive, disjointed
fragments of suspicion, misnomered by the
state as evidence against this defendant, would
you say that you or they were JUSTLY condemned
and that the crime charged had been
proved against you beyond a reasonable doubt?

Would you, or would you permit anyone
dear to you to go to his death under this
flimsy testimony and then say that you or he
had been tried, fairly and impartially, according
to the law of the land, and in accordance
with the safeguards provided by the constitution.

Now, your honors, unless you can answer
these queries firmly by YES, you must reverse
this case. So far as the law is concerned, you
must each stand in Hillstrom's place, and
standing in that place you must be able to
say upon your conscience that you have been
proven guilty beyond a reasonable doubt after
a fair and impartial hearing; after a full opportunity
to present and prove your defense,
both in person and by counsel and that you
are condemned because you are the guilty
agent of the crime that the state here seeks to
punish.

Being normal and just men, the members of
the final tribunal of the property, liberty and
life of every man in this state, you cannot
concur in the sentence imposed on this man,
because there is in the abstract of the record
that error which commands you to say that
great and manifest injury has been done to
this defendant; that there has been such a
disregard of constitutional safeguards in the
trial, that to affirm the judgment would be to
place in jeopardy every man and to have his
life staked upon the conjectures, the worthless
comparisons, the fancied resemblances and the
prejudgments of those utterly unable to speak
a single fact that could satisfy the reason;
thereby establishing a precedent that would
make law and decent procedure give way to
the chaos that has enwrapped the great nations
of Europe, where solemn obligations of
high contracting nations are mere scraps of
paper and where hatred and prejudice direct
evil forces to the utter destruction of mankind.
And no less in kind or degree, because
directed against a single man, the defendant--
a defenseless, almost helpess and an illegally
convicted young man.

O. N. HILTON

Of Counsel for Appellant and Defendant.