UA Library

Depositions of Edward Byrn and Patrick Hawe, and Robert Thomas, used in the State of Arizona vs. Harry Walters trial.

UA Special Collections AZ 114, box 2, folder 1, exhibit 2.

The following exhibits are linked: Butte Exhibit 1 and 2, 4.


In the Superior Court of Cochise County,
State of Arizona.

The State of Arizona,
-v- No. 2684.
Harry Walters.

In the above styled and numbered cause, it is agreed by and between the parties acting by and through their respective counsel, that the depositions of Edward Byrn, Jr., whose address is Room 350 Federal Building, Butte, Montana, Patrick Hawe, whose address is 814 West Copper Street, Butte, Montana, and Robert E. Thomas, whose address is 309 Granite Street, Butte, Montana, shall be taken on behalf of the undersigned defendants herein, upon oral examination before Edward B. Howell, Notary Public, being an officer authorized to administer an oath under the laws of the State of Montana, at his office, Room 201 Lewisohn Building, Butte, Montana, at two o’clock P. M. on Monday, the 8th day of December, or as soon thereafter as practicable, on the following terms and conditions, to-wit:

1st: The taking of said depositions shall begin at two o’clock P. M., Monday, December 8th, 1919, and continue from time to time until all such depositions have been taken.

2nd: Said witnesses shall be examined by counsel for defendant and cross-examined by counsel for the state as though present and testifying in court, and all objections to such testimony shall be noted by the stenographer taking such testimony and no objection as to manner and form of taking and as to form of question not so noted may be urged by either party on the trial of the cause.

3rd: The depositions need not be signed by the witnesses, but must be reduced to writing by the stenographer, both the question and the answers, and all objections to be passed on by the Superior Court.

4th: The depositions when taken, may be offered in evidence by either party hereto, subject to such objections as may be lawfully interposed thereto, but subject to no objection as to manner or form of taking depositions, or form of questions that has not been made on the taking of such depositions and noted by the stenographer taking same.

5th: Said depositions when taken, shall be returned to the "Clerk of the Superior Court of Cochise County, Tombstone, Arizona," by express.

6th: Said depositions shall be taken at room numbered 201 Lewisohn Building, Butte, Montana.

7th: Compliance with each and all of the statutory provisions for taking testimony in criminal cases under the laws of the State of Arizona is hereby waived and it is agreed that the depositions taken under this agreement and in compliance therewith may be introduced upon the trial of the above styled and numbered cause as though taken in all respects in conformity to the statutes of Arizona, but subject to any and all objections and exceptions except to the manner and form of taking same and as to form of question.

8th: The Notary Public taking the deposition shall first publicly administer an oath to the witness that the answers given to the direct and cross interrogatories shall be the truth, the whole truth and nothing but the truth, and the said Notary shall cause the said questions and answers to be taken down a stenographer and then transcribed, and the said Notary shall then write his name upon each page of said depositions and upon each exhibit offered in evidence, and shall certify that he has done so, and shall certify that the provisions of this article of this agreement have been complied with and shall thereupon return the said depositions to the Clerk of the Superior Court of Cochise County, Arizona, as hereinbefore provided for.

In consideration of the foregoing, the defendant hereby waives the right to a trial within sixty (60) days of the date of the filing of the information herein as provided for in Subdivision 2 of Section 1274 of the Penal Code of the State of Arizona, and no advantage of claim of right thereunder shall ever be asserted by the defendant herein, and this cause shall stand as if continued on the application of the defendant until the first day of January, 1920, and shall be tried as soon thereafter as may meet the convenience of the Superior Court of Cochise County, Arizona.

In Testimony whereof, this agreement is signed in duplicate this 8th day of December, 1919.

R. N. French
County Attorney, Cochise County, Arizona.
Robt T. Neill
Frank E. Curley
Wm. H. Burges
Attorneys for the Defendant, Harry Walters.


In the Superior Court

of Cochise County,

Arizona.

State of Arizona,
-v- No. 2685.
H. E. Wootton.

State of Arizona,
-v- No. 2686.
Fred Sandtner, James Boyd and Phil Tovrea.

State of Arizona,
-v- No. 2687.
Bert Polley, J. P. Hodgson, J. C. Ryan, Harry Anderson, Wm. White, Arthur Houle, Cass Benton, Sam Frankenberg, H. Benton and Bassett Watkins.

State of Arizona,
-v- No. 2688.
Wm. Toland, John Rainey, Jas. Henderson, John Angius, Henry Bohnfalk, Joe Colford, Geo. McGee, Biddy Doyle, B. C. Williams, Ned White, Oscar Wager, N. D. Naverette, Jess Toland, Geo. Scott, Allie Howe and Frank Salmon.

State of Arizona,
-v- No. 2689.
James Glason, Mike Cunningham, L. G. Jackson and Gerald Sherman.

State of Arizona,
-v- No. 2725.
Phelps Dodge Corporation, et al.

In the case of the State of Arizona vs. Harry Walters, No. 2684, on the docket of the Superior Court of Cochise County, Arizona, an agreement has been made for the taking of the depositions of Thomas J. Sheenan and others in Chicago, Illinois, and Elwin Berridge and others in Rockford, Illinois, copies of which agreements are hereto attached.

An agreement has also been made for the taking of the testimony of witnesses hereafter to be offered by the defendant, Harry Walters, in Salt Lake, Utah, Butte, Montana, Spokane and Seattle, Washington, and in Sacramento and Los Angeles, California, a copy of which agreement is hereto attached.

It is hereby agreed that the testimony so taken in the said Walters case may be introduced in the trial of the above-styled and numbered causes as well as any other causes that may be pending in the Superior Court of Cochise County, Arizona, known as the "Deportation Cases" and arising out of the deportation of July 12, 1917, as though taken therein and upon the same terms and conditions, but subject to all objections and exceptions except as to the manner and form of taking depositions and the form of questions.

In consideration of the foregoing, the defendant hereby waives the right to a trial within sixty (60) days of the date of the filing of the information herein as provided for in Subdivision 2 of Section 1274 of the Penal Code of the State of Arizona, and no advantage or claim of right thereunder shall ever be asserted by the defendant herein, and this cause shall stand as if continued on the application of the defendant until the first day of January, 1920, and shall be tried as soon thereafter as may meet the convenience of the Superior Court of Cochise County, Arizona.

In Testimony whereof, this agreement is signed in duplicate this 17th day of October, 1919.

R. N. French
County Attorney, Cochise Country, Arizona.
W. V. "__"
W. H. Burges
Attorneys for all defendants in all of the above-styled and numbered causes.

In the Superior Court of Cochise County,

State of Arizona.

The State of Arizona,
-v- No. 2684.
Harry Walters.

In the above styled and numbered cause, it is agreed by and between the parties acting by and through their respective counsel, that the depositions of Thomas J. Sheehan and Maurice Klein, whose address is room numbered 804, Federal Building, in the City of Chicago, State of Illinois, W. L. Furbershaw, whose address is room numbered 1101 at No. 208 South LaSalle Street, in said City and State, Russel H. Lutz, whose address is No. 192 North Clark Street, in said City and State, Phillip J. Barry, P. R. Hilliard and John W. Hughes, whose address is room numbered 588, Federal Building, in said City and State, Frank J. Quinn, William A. Cahill and J. W. Hastie, whose address is No. 210 South Desplaines Street, in said City and State, B. H. Wilder, whose address is No. 19, South LaSalle Street, in said City and State, Ivan Ritchie, whose address is suite numbered 700 at No. 30 North Dearborn Street, in said City and State, and such other witnesses as said defendant may offer shall be taken under oath and on oral examination, before Maurice F. Dunne, a Notary Public in and for Cook County, Illinois, on the following terms and conditions, to-wit:

1st: The taking of said depositions shall begin at 10 o’clock A. M., Monday, November 3rd, 1919, and continue from time to time until all such depositions have been taken.

2nd: Said witnesses shall be examined by counsel for defendant and cross-examined by counsel for the state as though present and testifying in Court, and all objections to such testimony shall be noted by the stenographer taking such testimony and no objection as to manner and form of taking and as to form of question not so noted may be urged by either party on the trial of the cause.

3rd: The depositions need not be signed by the witnesses, but must be reduced to writing by the stenographer, both the question and the answers, and all objections to be passed on by the Superior Court.

4th: The depositions when taken, may be offered in evidence by either party hereto, subject to such objections as may be lawfully interposed thereto, but subject to no objection as to manner or form of taking depositions, or form of questions that has not been made on the taking of such depositions and noted by the stenographer taking same.

5th: Said depositions when taken, shall be returned to the "Clerk of the Superior Court of Cochise County, Tombstone, Arizona," by Express.

6th: Said depositions shall be taken at room numbered 722 Rookery Building, in said City of Chicago, State of Illinois.

7th: Compliance with each and all of the statutory provisions for taking testimony in criminal cases under the laws of the State of Arizona is hereby waived and it is agreed that the depositions taken under this agreement and in compliance therewith may be introduced upon the trial of the above styled and numbered cause as though taken in all respects in conformity to the statutes of Arizona, but subject to any and all objections and exceptions except to the manner and form of taking same and as to form of question.

8th: The Notary Public taking the deposition shall first publicly administer an oath to the witness that the answers given to the direct and cross interrogatories shall be the truth, the whole truth and nothing but the truth, and the said Notary shall cause the said questions and answers to be taken down a stenographer and then transcribed, and the said Notary shall then write his name upon each page of said depositions and upon each exhibit offered in evidence, and shall certify that he has done so, and shall certify that the provisions of this article of this agreement have been complied with and shall thereupon return the said depositions to the Clerk of the Superior Court of Cochise County, Arizona, as hereinbefore provided for.

In consideration of the foregoing, the defendant hereby waives the right to a trial within sixty (60) days of the date of the filing of the information herein as provided for in Subdivision 2 of Section 1274 of the Penal Code of the State of Arizona, and no advantage of claim of right thereunder shall ever be asserted by the defendant herein, and this cause shall stand as if continued on the application of the defendant until the first day of January, 1920, and shall be tried as soon thereafter as may meet the convenience of the Superior Court of Cochise County, Arizona.

In Testimony whereof, this agreement is signed in duplicate this 17th day of October, 1919.

R. N. French
County Attorney, Cochise County, Arizona.
W. F. "__"
W. H. Burges
Attorneys for the Defendant, Harry Walters.

In the Superior Court of Cochise County,

State of Arizona.

The State of Arizona,
-v- No. 2684.
Harry Walters.

In the above styled and numbered cause, it is agreed by and between the parties acting by and through their respective counsel, that the depositions of Elwin Berridge, whose address is 1418 Myott Avenue, Rockford, Illinois, David Adamson, whose address is 332 Baker Place, Rockford, Illinois, William Johnson, whose address is State’s Attorney’s office, Court House, Rockford, Illinois, G. W. Ginders, whose address is Sheriff’s office, Court House, Rockford, Illinois, Homer Read, Captain of Police, whose address is Police Station, Rockford, Illinois, and F. A. Daniels, Police Officer, whose address is Police Station, Rockford, Illinois, and such other witnesses as said defendant may offer shall be taken under oath and on oral examination, before Robert M. Gibbony, Notary Public in and for Winnebago County, Illinois, on the following terms and conditions, to-wit:

1st: The taking of said depositions shall begin at 10 o’clock A. M., Monday, November 17th, 1919, and continue from time to time until all such depositions have been taken.

2nd: Said witnesses shall be examined by counsel for defendant and cross-examined by counsel for the State as though present and testifying in Court, and all objections to such testimony shall be noted by the stenographer taking such testimony and no objection as to manner and form of taking and as to form of question not so noted may be urged by either party on the trial of the cause.

3rd: The depositions need not be signed by the witnesses, but must be reduced to writing by the stenographer, both the question and the answers, and all objections to be passed on by the Superior Court.

4th: The depositions when taken, may be offered in evidence by either party hereto, subject to such objections as may be lawfully interposed thereto, but subject to no objection as to manner or form of questions that has not been made on the taking of such depositions and noted by the stenographer taking same.

5th: Said depositions when taken, shall be returned to the "Clerk of the Superior Court of Cochise County, Tombstone, Arizona," by Express.

6th: Said depositions shall be taken at room numbered 215 Trust Building, Rockford, Illinois.

7th: Compliance with each and all of the statutory provisions for taking testimony in criminal cases under the laws of the State of Arizona is hereby waived and it is agreed that the depositions taken under this agreement and in compliance therewith may be introduced upon the trial of the above styled and numbered cause as though taken in all respects in conformity to the statutes of Arizona, but subject to any and all objections and exceptions except to the manner and form of taking same and as to form of question.

8th: The Notary Public taking the deposition shall first publicly administer an oath to the witness that the answers given to the direct and cross interrogatories shall be the truth, the whole truth and nothing but the truth, and the said Notary shall cause the said questions and answers to be taken down a stenographer and then transcribed, and the said Notary shall then write his name upon each page of said depositions and upon each exhibit offered in evidence, and shall certify that he has done so, and shall certify that the provisions of this article of this agreement have been complied with and shall thereupon return the said depositions to the Clerk of the Superior Court of Cochise County, Arizona, as hereinbefore provided for.

In consideration of the foregoing, the defendant hereby waives the right to a trial within sixty (60) days of the date of the filing of the information herein as provided for in Subdivision 2 of Section 1274 of the Penal Code of the State of Arizona, and no advantage of claim of right thereunder shall ever be asserted by the defendant herein, and this cause shall stand as if continued on the application of the defendant until the first day of January, 1920, and shall be tried as soon thereafter as may meet the convenience of the Superior Court of Cochise County, Arizona.

In Testimony whereof, this agreement is signed in duplicate this 17th day of October, 1919.

R. N. French
County Attorney, Cochise County, Arizona.
W. V. "__"
W. H. Burges
Attorneys for the Defendant, Harry Walters.

In the Superior Court of the State of Arizona, in and for the County of Cochise.

State of Arizona,
Plaintiff,
vs
Harry Walters,
Defendant.

State of Montana,

County of Silver Bow.

Be it remembered that, pursuant to the stipulations hereto annexed and on the 8th day of December, 1919, at my office in the Lewisohn Building in the city of Butte, County of Silver Bow and state of Montana, residing at Butte, Montana, personally appeared Edward W. Byrn Jr. and Robert E. Thomas, witnesses produced on behalf of the defendant in the above entitled cause now pending in said court, who, being first by me duly sworn, were then and there examined and interrogated by Robert T. Neill, of counsel for said defendant; and I do further certify that at that time the said Robert N. French, county attorney for Cochise County, Arizona appeared for and on behalf of the State of Arizona, and the said Robert T. Neill and William H. Burgess appeared for and on behalf of the said defendant.

I further certify that George H. Macdougall was duly sworn to truly and correctly take down in shorthand said testimony in the above styled and numbered cause and to transcribe the same, to the best or his skill and ability.

EDWARD BYRN, JR.,

After being duly sworn, testified as follows:

DIRECT EXAMINATION

BY MR. ROBERT T. NEILL;

Q What is your name, residence, official position, if any, and how long continuously have you occupied such official position?

MR. R. N. FRENCH: Objects to the taking of the deposition of this witness in the criminal cases in which it is taken, on the grounds that the defendant, Harry Walters, is not present, nor is either of the defendants in said criminal cases present, and further, because it is unconstitutional and illegal in this, that it can have no bearing on any issue in the said criminal cases.

A My name is E. W. Byrn, Jr.; I reside in the city of Butte, Montana. My business is a Special Agent of the Department of Justice, in charge of the office of the Bureau of Investigation of the Department of Justice for the District of Montana. I have been such Special Agent since March 1st, 1912, and in Montana continuously for a period of more than five years last past.

R. N. French objects to the answer of the witness and moves to strike the same on the grounds heretofore assigned.

Q Where were you, and what was your business during the months of April, May, June and July, 1917.

R. N. French objects to the question for the reason that the defendant, Harry Walters and neither of the defendants in the criminal cases are present, and because the deposition can have no bearing on any issue involved in the criminal cases.

A My business was as stated above, and I was conducting such business, principally in the state of Montana, during those months. At this time I am not able to state my exact whereabouts on every day during those months in question, but can easily supply the same, and I would state generally that by far the major portion of that time was spent in Montana and in the city of Butte.

R. N. French objects to the answer of the witness and moves to strike the same on the grounds heretofore assigned.

Q Were you acquainted with one, Peter Kirkinen, and if so, state to what organization, if you know, he belonged in the month of June, 1917, and what position he occupied in such organization.

R. N. French objects to the question on the ground heretofore assigned, and on the further grounds that it is irrelevant incompetent and immaterial and has no bearing on any issue involved in either the criminal or civil cases in which the deposition is taken.

A I knew Peter Kirkinen on the date mentioned and for a considerable period of time thereafter in the city of Butte. He was at that time, and during all of the time of my acquaintance with him, a delegate of the Industrial Workers of the World, actively engaged in carrying on the propaganda work of the organization and securing new members of that organization.

R. N. French objects to the answer of the witness and moves to strike the same because it is incompetent, irrelevant and immaterial and has no bearing on any issue involved in either the criminal or civil cases, and because it seeks to introduce as an element of defense in the criminal as well as the civil cases the I. W. W. organization and its propaganda and activities, when, as a matter of fact, the said organization was in no way connected with and had nothing to do with the kidnapping and deportation of the miners from the Warren district of the state of Arizona on the 12th of July, 1917, and has no bearing whatever on any issue involved in said cases.

Q Mr. Byrn, in your official capacity which you have indicated, did you at any time have any business dealings with Peter Kirkinen, and if so, indicate what such dealings were.

R. N. French objects to the question on the ground that it is incompetent, irrelevant and immaterial and because it has no bearing on any issue involved in either the said criminal or civil cases, and the name of the person referred to in the question is not connected in any manner with the kidnapping and deportation of the miners from the Warren district on July 12th, 1917.

A I have had various dealings with Peter Kirkinen, I appearing in the matter as an agent of the Department of Justice, Kirkinen appearing as an official, namely, a delegate of the Industrial Workers of the World, on various dates in the year 1917.

R. N. French objects to the answer of the witness and moves to strike the same on the ground that it is incompetent, irrelevant and immaterial and has no bearing whatever on any issue involved in either the said criminal or civil cases in which the deposition is taken.

Q In your dealings with Mr. Kirkinen have you ever had occasion to see him write and have you ever seen any specimens or writing which Kirkinen told you were his writing?

R. N. French objects to the question as incompetent, irrelevant and immaterial and because it has no bearing on any issue involved in either the criminal or civil cases in which the deposition is taken, and because it is not a proper way to prove the familiarity of the witness with the handwrite of the person inquired about.

A In my dealings with Peter Kirkinen I did on one occasion see him write, and I took from his person on one certain occasion, namely, the 29th of September, 1917, various papers in writing, which papers in writing were written in long hand, which long hand was admitted by Kirkinen to be his handwriting. On that same day, on September 29th, 1917, Peter Kirkinen in my presence wrote and signed his name.

R. N. French objects to the answer of the witness and moves to strike the same in both the criminal and civil cases, on the ground that it is incompetent, irrelevant and immaterial and on the further grounds that the writings referred to as seen by the witness have not been produced, and counsel has had no opportunity to examine them; and because it is not the proper way in which to prove the witness’s familiarity with the handwrite of the party inquired about, and because nothing in the writing of the party inquired about can have any bearing on any issue involved in either the said criminal or civil cases in which this deposition is taken.

Q State whether or not, Mr. Byrn, you are familiar with the handwriting of Peter Kirkinen, and can you identify it when shown to you.

R. N. French objects to the question as incompetent, irrelevant and immaterial and because it has no bearing on any issue involved in either said criminal or civil cases in which the deposition is taken, and because the question is leading and suggestive, and because the witness has heretofore stated on one occasion he saw the party inquired about write his name, and that this one act of the said party in the presence of the witness, together with the statement of the said party to the witness that he had written the paper taken from the person of the said party is all the knowledge, as far as the evidence now shows, that the witness had of the handwriting of the party.

A I am familiar with the handwriting of Peter Kirkinen and can identify samples of his handwriting when the same are submitted to me.

R. N. French objects to the answer of the witness and moves to strike it in both the criminal and civil cases on the ground that it is incompetent, irrelevant and immaterial and has no bearing on any issue involved in either the criminal or civil cases in which the deposition is taken, and because the evidence so far taken does not sufficiently disclose in what manner the witness became familiar with the handwrite of the said party referred to in the question.

Q I hand you herewith two photostatic copies of letters the first being numbered 11915, and the second being numbered 11917, and I ask you to examine them and state whose signature, if you know, appears on the letter 11915, and what marks, if any, appear on the letter marked 11917 of any person whom you may know, and how you recognize such signature and marks, if you do so recognize them?

R. N. French objects to the question in both the criminal and civil cases on the ground that it is incompetent, irrelevant and immaterial and because the witness has not been properly shown to be an expert on handwriting, and because the evidence of the witness himself fails to show such familiarity with the handwriting of the party inquired about and of which the said photostatic copies are supposed to be copies of a letter written by the said party, as to entitle the witness to testify as to the handwriting of the said party; and because the photostatic copies have not been properly identified.

A With reference to the document mentioned as No. 11915, which document is a photostatic copy of a typewritten letter, I would state that certain handwriting appearing thereon as follows: "Del 773 Peter Kirkinen 476 east Broadway St. Butte, Montana," is written in the handwriting of Peter Kirkinen, and is recognized by me as the handwriting of Peter Kirkinen. With reference to the document referred to as No. 11917, which document is a photostatic copy of a letter, I beg to state that, appearing on this letter is the following handwriting: "Del 773;" and that this handwriting is recognized by me as being that of Peter Kirkinen, known to me personally as delegate 773 of the Industrial Workers of the World, and later on as delegate 1318 of the Industrial Workers of the World.

R. N. French objects to the answer of the witness and moves to strike the same in both the criminal and civil cases, on the ground that it is incompetent, irrelevant and immaterial and has no bearing on any issue involved in either of said criminal or civil cases; that the witness has failed to show that he is an expert on handwriting, and has failed to show such personal knowledge of the handwriting of the party whose name is signed to the photostatic copy sought to be introduced as to entitle him to testify as to the said handwriting. Further said counsel objects to said answer in all of said cases on the ground that the said photostatic copies have not been sufficiently identified in the case and are not sufficiently authenticated, and because the said photostatic copy No. 11917 and the copy numbered 11915 are in no way connected with the kidnapping and deportation of the miners from the Warren district on July 12th, 1917, and the matters and things shown in said photostatic copies have no bearing whatever on any of the issues involved in either the said criminal or civil cases, but are letters addressed to William D. Haywood and to Harry Lloyd and signed by Peter Kirkinen, who has no connection with, and had no connection with the said kidnapping and deportation of said miners on said last mentioned date.

Q By means of identifying this Peter Kirkinen, Mr. Byrn, state whether or not, within your own knowledge, it is the same Peter Kirkinen who was indicted in Chicago as a co-defendant with W. D. Haywood in the case of United States vs. William D. Haywood.

R. N. French objects to the question on the ground that it is incompetent, irrelevant and immaterial and has no bearing whatever on any issue involved in either the criminal or civil cases in which this deposition is taken, whatever bearing it might have had on the trial of said Haywood and others in Chicago; that the said photostatic copies signed by Mr. Kirkinen which are sought to be introduced now have not been properly identified and are not properly identified and are not properly authenticated.

A I am personally well acquainted with Peter Kirkinen. Prior to the date on which the indictment was secured I was consulted as to the identity of the parties who should be made parties defendant in this action, and among others suggested Peter Kirkinen as a proper person to be made one of the parties defendant. Further, Peter Kirkinen was made a party defendant jointly with William D. Haywood and a hundred sixty odd others, and I personally placed Peter Kirkinen in custody subsequent to the return of the indictment with a view to effecting his removal to Chicago to stand trial on this charge, and did effect his removal to Chicago on a date shortly subsequent to September 29th, 1917.

R. N. French objects to the answer of this witness and moves to strike the same in both the criminal and civil cases on the ground that it is incompetent, irrelevant and immaterial and has no bearing whatever on any issues involved in either the said criminal or civil cases in which the deposition is taken; and because it seeks to introduce as an element of defense in the said criminal and civil cases the order of the Industrial Workers of the World, which is in no way connected with, and has no bearing whatever on any issue involved in said criminal or civil cases, and is sought to be introduced as a ground of excuse for the kidnapping and deportation of the said miners on July 12th, 1917, and can only have the effect of moulding public opinion in favor of the defendants in said cases, and possibly of biasing of prejudicing any jury that may be called on to try any of the said cases or either of them; and because that part of the witness’s deposition which refers to being consulted about the arrest of the party referred to in his answer is hearsay, and because the photostatic copies with which the said party is sought to be connected have not been properly identified and are not properly authenticated.

Q As a means of indicating one of these photostatic letters from the other, Mr. Byrn, be good enough to state to whom the one numbered 11915 appears to be addressed and to whom the one numbered 11917 appears to be addressed.

R. N. French objects to the question on the ground that it is incompetent, irrelevant and immaterial and has no bearing whatever on any issue on either the criminal or civil cases in which this deposition is taken; that the said photostatic copies signed by Mr. Kirkinen which are sought to be introduced now have not been properly identified and are not properly authenticated.

A The document referred to as No. 11915 is a typewritten letter addressed to Harry Lloyd, dated at Butte, Montana, June 5th, 1917. The document referred to as No. 11917 is a letter addressed to William D. Haywood, dated at Butte, Montana June 5th, 1917.

R. N. French objects to the answer of the witness and moves to strike the same on the ground that it is incompetent, irrelevant and immaterial and has no bearing on any issue involved in either the criminal or civil cases in which the deposition is taken, and because the said photostatic copies of said letters mentioned by the witness have not been properly identified and have not been properly authenticated, and the whole matter is an effort to bring into the criminal, as well as the civil cases growing out of the deportation of the miners from Bisbee, Arizona, on July 12th, 1917, an element of defense which is illegal and intenable, and has no bearing whatever and is no justification for anything that occurred on said last mentioned date.

Q Mr. Byrn, please hand Mr. E. B. Howell, the Notary Public, the two photostatic letters which are marked 11915 and 11917 respectively, and ask him to mark them Butte Exhibits 1 and 2, respectively as a part of your testimony in this case.

R. N. French objects to the introduction of such photostatic copies for the reason that they are incompetent, irrelevant and immaterial and further because they have not been properly identified and because they are not properly authenticated, and further, because they have no bearing on any issue involved in either the criminal or the civil cases.

A Let the record show that I have done so.

R. N. French objects to the answer of the witness and moves to strike the same on the ground that it is incompetent, irrelevant and immaterial and because the said photostatic copies have no bearing on any issue involved in either the said criminal or civil cases, and because it seeks to introduce as an element of defense or excuse in said criminal cases in which the deposition is being taken, the I. W. W. organization and its propaganda and activities, when, as a matter of fact, the said organization is in no way connected with and has no bearing on any issue involved in either the said criminal or civil cases.

Q I have in my hand a one page mimeographed sheet, the title of which is: "War is Hell; we don’t want it." I wish you would examine it and state, if you know, who, if any one, had the same or one identical therewith, and how you know that.

R. N. French objects to the question as incompetent, irrelevant and immaterial, and because it is not the best evidence, and because it was not illegal to quote the language of General Sherman and to endorse the sentiment expressed by General Sherman, and because it seeks to introduce the literature and propaganda of the Industrial Workers of the World into both the criminal and civil cases in which this deposition is taken, as an element of defense, or at least as an excuse for the kidnapping and deportation or the miners from the Warren district on July 12th, 1917, which is illegal and untenable.

A The document in question, handed to me by Mr. Neill, is identified in form, substance and in every detail with a document which was taken by me on September 5th, 1917, at Butte, Montana, from the possession of Peter Kirkinen in his room at 320 east Granite street.

R. N. French objects to the answer of the witness and moves to strike the same on the grounds that it is incompetent, irrelevant and immaterial and has no bearing whatever on any of the issues involved in the said criminal or civil cases in which this deposition is taken, and because it is no the best evidence, and because the absence of the original of the copy inquired about and about which the witness testifies has not been properly accounted for; and because it seeks to introduce the literature and propaganda of the I. W. W. Organization, which has no connection with and no bearing upon the kidnapping and deportation of the miners from the Warren district on July 12th, 1917, and because this copy has not been properly identified.

Q I will ask you, Mr. Byrn, whether or not you can, and are willing to attach the one taken from Peter Kirkinen to your deposition, and if not, what is the rule of the Department of Justice and of your superiors in reference to permitting papers to leave its jurisdiction and its custody?

R. N. French objects to the question as incompetent, irrelevant and immaterial and as having no bearing on any of the issues involved in either the said criminal or civil cases in which the deposition is taken; and because the witness is not a proper person to state what the rule of the Department is, and it is not the proper manner in which to show what the rule of the said department is, and that it is incompetent for any purpose to show what the rule of the Department is, and can only have the effect seeking to introduce the propaganda of the I. W. W. organization into the criminal and civil cases in which this deposition is taken, when, as a matter of fact, the said organization had no connection with it, and its activities have no bearing upon any issue involved in either the said criminal or civil cases.

A The original document, of which these documents are duplicates, is in the files of the Department. Having examined the original, I can state the this is a true copy or duplicate. It is the policy of the Department to retain in its files all original documents and not to take the same therefrom for use in collateral matters, and I would therefore decline to produce the original document, but in lieu thereof I produce these duplicates or copies, and I ask the Notary to mark them for identification Butte Exhibit No. 3.

Mr. R. N. French objects to the answer of the witness and moves to strike the same on the ground that it is incompetent, irrelevant and immaterial; and because said copy referred to in his answer has not been properly identified and is not properly authenticated; and because the absence of the original, of which the paper offered purports to be a copy, has not been properly accounted for; and because the witness has not stated that the original is in his custody at this time; and no witness in whose custody it appears to be has yet stated any grounds for the absence of said original; and because it has not been properly authenticated; and because it has no bearing whatever on any issue involved in said case, but seeks to introduce the propaganda of the Industrial Workers of the World, which said organization has no connection with the deportation and kidnapping of the miners from Bisbee on July 12th, 1917.

Q I hand you a photograph, on the back, at the lower left hand corner of which appears: "Copelin, photo, 422 Dearborn street, Chicago." Please examine that photo and, if you can, state of what it is a photograph, and what is your means of knowledge of the correctness of your statement.

R. N. French objects to the question on the ground that it is incompetent, irrelevant and immaterial, and because it has no bearing upon and is no way connected with any issue involved in either of the said criminal or civil cases; and because on its face the photograph is just another way that some one had of expressing their aversion to war, the same method, not quite so emphatic as General Sherman in his famous expression, "War is Hell," and perhaps not so eloquent as the lecture of William Jennings Bryan on "The Prince of Peace."

A I have examined the photograph which is handed to me by Mr. Neill, and would state that the same is a photograph of a certain flag or banner, the same flag or banner being made of a thin, red, cotton material, having two short hemp ropes attached to it on the two right hand corners, the banner bearing the inscription: "Dawn with War." That this photograph is identified by me as a true copy of the banner, some ten to twelve feet long and approximately four feet wide, which was taken by me in the city of Butte on June 6th, 1917, and which banner was taken from the possession of John Korpi, and I hand this photograph to the Notary and ask that he mark it Butte Exhibit No. 4, and attach it to my deposition.

R. N. French objects to the answer of the witness and moves to strike the same on the ground that it is incompetent, irrelevant and immaterial, and because it has no bearing on any issue involved in either the criminal or civil cases, and because it seeks to introduce as an element of defense in both the criminal and civil cases in which this deposition is taken, the order of the Industrial Workers of the World with its activities and propaganda, which has no bearing upon, and is in no way connected with the kidnapping and deportation of the miners from the Warren district in the state of Arizona on July 12th, 1917; and because it has not been properly identified and is not properly authenticated.

Q Mr. Byrn, what, if anything, did you do with the flag of which you state that this is a photograph, and where did you last see it?

R. N. French objects to the question upon the ground that it is incompetent, irrelevant and immaterial, and has no bearing on any issue involved in either the criminal or civil cases and because the flag referred to in question, or banner, has no connection with the kidnapping and deportation of the miners from the Warren district in Arizona, on July 12th, 1917, and is an effort on the part of the defendants to bring into both the criminal and civil cases an element of defense which is wholly illegal and untenable, to-wit, to I. W. W. propaganda and activities.

A The banner remained in my possession until such time as the same was introduced in evidence in court, first in the state of Montana, and later at Chicago in the I. W. W. trial in which William Haywood was the principal defendant. It was left by me with the clerk of the court in Chicago at the time that it was introduced at that trial, and was subsequently seen by me on a date approximately one year ago, when it was used in evidence in the trial of certain industrial workers of the world at Sacramento, California. When I last saw it, it was in the custody of the clerk of the United States Court there as an exhibit.

R. N. French objects to the answer of the witness and moves to strike the same in both the criminal and civil cases on the grounds that it is incompetent, irrelevant and immaterial and has no bearing on any issue involved in either the criminal or civil cases; and because it seeks to introduce as an element of defense the I. W. W. organization, its propaganda and activities, which said organization has no bearing whatever and no connection with the kidnapping and deportation of the miners from the Warren district on July 12th, 1917, upon which the same criminal and civil cases are both predicated.

Q To what organization did John Korpi, about whom you have testified belong at the time that this banner or flag came into your possession?

R. N. French objects to the question on the ground that it is incompetent, irrelevant and immaterial and because the said party in question is in no way connected with the kidnapping and deportation of the miners from the Warren district on July 12th, 1917, and because it is immaterial what organization he belonged to, whether it was the Methodist church, the Baptist church, the Socialist, the Republican party or the I. W. W. organization or any other organization; and the activities and propaganda of any organization whatever is wholly irrelevant and immaterial to any issue involved in either the said criminal or civil cases.

A John Korpi was, on June 5th, 1917, and for a considerable time prior and subsequent thereto, a member of the Metal Miner Workers Industrial Union No. 800 of the Industrial Workers of the World. While he held no official position in that organization, he was a most active leader, collecting funds, making speeches and furthering the cause of that organization in every way in his power.

R. N. French objects to the answer of the witness and moves to strike the same on the ground that it is incompetent, irrelevant and immaterial, because it has no bearing whatever in any manner on any issue involved in either the said criminal or civil cases in which the said deposition is taken; and because the I. W. W. or the Metal Workers of the World or any other organization has no connection with and no bearing upon the kidnapping and deportation of the miners from the Warren district on July 12th, 1917.

Q Mr. Byrn, the defendants in this case aimed to take the deposition of one, Patrick Hawe, and gave notice to that effect. He is not here this afternoon. Do you know where he is, and if so, where is he and how long has he been gone, and what is our opportunity to get hold of him to take his deposition?

R. N. French objects to the question on the grounds that it is incompetent, irrelevant and immaterial and has no bearing on any issue involved in the case; and because it is not a proper manner in which to account for the absence of a witness, notice of whose deposition has heretofore been given. If the witness is not present, he is not present, and that is all there is to it; and no excuse that this witness can testify to will avail anything either for or against the matter, and no presumption can be indulged in because of the absence of the deposition of the witness referred to as absent.

A Mr. Hawe left Butte more than a month ago en route to his old home in Ireland to settle certain business affairs there, and I presume that he is in Ireland at the present time; at all events he is not in the city of Butte.

R. N. French objects to the answer of the witness and moves to strike the same on the ground that it is incompetent, irrelevant and immaterial, because it has no bearing whatever in any manner upon any issue involved in the case; and because it is not a proper manner in which to account for the absence of a witness, notice of whose deposition has heretofore been given. If the witness is not present, he is not present, and that is all there is to it, and no excuse that this witness can testify to can avail anything either for or against the matter; and no presumption can be indulged in because of the absence of the deposition of the witness referred to as absent.

MR. NEILL: That is all; you may examine.

R. N. French, representing the state of Arizona in the criminal cases and representing the attorneys for all the plaintiffs in the civil cases, declines to cross-examine the witness and moves to strike his evidence as a whole, and each and every part thereof, on the grounds that the said testimony is incompetent, irrelevant and immaterial to any issue involved in either the criminal or civil cases, and because it seeks to introduce as an element of defense into both the criminal and civil cases the order or the Industrial Workers of the World, its propaganda and its activities, which is in no way connected with, and has no bearing upon the kidnapping and deportation of the miners from the Warren district on July 12th, 1917; and because the exhibits filed as a part of the testimony of the witness have not been properly identified and have not been properly authenticated, and are not the best evidence of what they and each of them purports to be copies of.

Signature

Edward M. Byrn, Jr.

Subscribed and sworn to me the 9th day of December, 1919.

Edward B. Howell

Robert E. Thomas,

After being duly sworn, testified as follows:

-DIRECT EXAMINATION-

BY MR. NEILL:

Q What is your name, age, place of business, and how long have you continuously resided in the city of Butte?

R. N. French objects to the taking of the deposition of the witness in the criminal cases on the grounds that it is illegal and unconstitutional, neither Harry Walters nor any other of the defendants in the criminal cases being present in person; and because the evidence of the witness can have no bearing on any issue involved in the criminal cases.

A Robert E. Thomas, age thirty-seven; manager of the Butte Ice Company; in Butte twelve years.

R. N. French objects to the answer of the witness and moves to strike the same for the reasons last above stated.

Q Mr. Thomas, did any thing of an unusual character attract your attention on June 4th and 5th, 1917; and if so, go ahead in your own way and state what it was, and describe what occurred within your own knowledge.

R. N. French objects to the question because it is incompetent, irrelevant and immaterial and has no bearing on any issue involved in either the criminal or civil cases, and because it is too indefinite and uncertain.

A Yes, sir. On June 4th I happened to be over at the I. W. W. hall, which is the Finlander hall, which we know as the I. W. W. headquarters in Butte, Montana. After the meeting had adjourned that night I happened to be outside and as I waited these Finnish women and men were coming out, and I overheard one of them say: "We will put a stop to these soldiers." There was considerable trouble and gatherings as I went down, which the police officers watched, you know, and of course I was a civilian, and I was there more as a sightseer than anything else; so I waited awhile, and they were around in different parts of the town, and I did not hear a great deal after that one remark. But the next day I offered my car to Mr. Murphy, the Chief of Police, and he said he was awfully glad to get it and he wanted several more, and there would be trouble, and during the whole day I was driving around, and I was with Officer Hawe and Officer Engram. After they had left the I. W. W. hall on Arizona street we went up to Copper street and west on Copper to Main, where the I. W. W. started to get in line for their march, in front of the Federal Building, and we went up there with the car, and Officer Hawe got out and caught this fellow, John Korpi, and he had this red banner under his vest. As he saw the car coming up he had it in his hand, but he shoved it under his vest, and the officer got out and took it away from him and put him in the car, and I took him back to the station with the two officers; I drove the car. This was a demonstration against the conscription, you know, and these people were just anti-Americans; that is all there is to it; and I. W. W.’s, dynamiters, anarchists, you might say. I should say that it the parade there was possibly fifteen hundred to two thousand active members that were ready to start. I don’t remember what time of day it was, because I worked all day around with the officers; but it was in the afternoon. I don’t really remember just what time it was.

R. N. French objects to the answer of the witness and moves to strike the same on the grounds that it is incompetent, irrelevant and immaterial; because it has no bearing on any issue involved in either the criminal or civil cases; and because it seeks to introduce as an element of defense into both the criminal and civil cases the order of the Industrial Workers of the World, which is in no way connected with and has no bearing upon the kidnapping and deportation of the miners from the Warren district on July 12th, 1917; and because it is hearsay, and the names of the parties mentioned by the witness in his answer whom he heard make the remarks testified to by him do not appear, and we do not know and have no means of finding out who they were or whether they were in any way connected with the said deportation on the said last mentioned date.

Q I show you herewith a certain photograph which has been heretofore identified by Mr. Byrn and marked: "Butte Exhibit No. 4 E. B. Howell." Please look at it and state whether or not you have seen the original, and if so, what is the original and where did you see it?

R. N. French objects to the question on the ground that it is incompetent, irrelevant and immaterial, and because it assumes that the photograph referred to in question has been properly identified, when, as a matter of fact, an issue has been raised on that question by an exception to the evidence of the former witness referred to in the last question; and because it seeks to introduce as an element in defense or in excuse, rather, in both the criminal and civil cases, the I. W. W. organization and its propaganda and activities, which has no bearing upon either the criminal or civil cases, and can only have the effect of moulding public opinion in favor of the defendants and possibly of biasing or prejudicing any jury which may be called on to try either of said cases.

A I have seen the original on June 5th, 1917, when it was taken from John Korpi’s person and taken down to the City Hall with John Korpi in my machine. The original is a red flag, I don’t know the exact size, but I should judge about five or six feet long, possibly, and possibly three feet wide, with the lettering on it — we couldn’t quite tell what it was when I saw it, it was a little dirty; but it was: "Down with the war," or "Damn the War," one of the two.

Q You recognize the picture?

A Yes, sir.

R. N. French objects to the answer of the witness and moves to strike the same on the grounds that it is incompetent, irrelevant and immaterial, and has no bearing on any issue involved in either the criminal or civil cases, and seeks to introduce as an element of defense in both the criminal and civil cases the I. W. W. propaganda and activities, and because said exhibit has not been properly identified and is not properly authenticated; and because of its uncertainty, and because it is not the best evidence; and because the occurrence testified to by witness occurred in Butte, Montana, and the miners were deported from the Warren district in Cochise County, Arizona, and no connection has been shown whatever between the said occurrence and the kidnapping and deportation of the miners from the Warren district on July 12th, 1917.

MR. NEILL: That is all; you may cross-examine.

R. N. French, representing the state of Arizona in the criminal cases and representing the attorneys for the plaintiffs in all of the civil cases, declines to cross-examine the witness, and moves to strike his evidence, both as a whole and each question asked and each answer therein contained, on the grounds that the same is incompetent, irrelevant and immaterial and has no bearing on any issue involved in either the criminal or civil cases, and because it seeks to introduce the I. W. W. organization and its propaganda and activities into both the criminal and civil cases in which the deposition is taken, which is illegal and untenable, and can only have the effect of prejudicing the minds of the public in favor of the defendants in said action.

STIPULATION

The reading over of the foregoing deposition of Mr. Thomas to him by the Notary Public, and the signing of the same as transcribed by him, is hereby waived by R. N. French on behalf of the state of Arizona and also on behalf of the attorneys who represent all of the plaintiffs in the civil cases, and likewise by counsel representing the defendants in both the civil and criminal cases.

State of Montana

County of Silver Bow

Be it known that I took the annexed depositions, pursuant to the annexed notices and stipulations; that I was then and there a duly appointed, qualified and acting Notary Public in and for the state of Montana, residing at Butte, Montana; that by virtue thereof I was authorized to administer an oath, and that each witness, before testifying, was duly sworn to testify to the truth, the whole truth, and nothing but the truth; that the testimony of each witness was reduced to writing under my direction, and was carefully read over to him by me before he signed the same. I do further certify that I caused the said questions and answers to be taken down by G. H. Macdougall, a stenographer, and then transcribed, and that I have written my name upon each page of the said depositions and upon each exhibit offered in evidence, and that I have in all respects complied with the requirements of Article 8 of the stipulation under which these depositions were taken.

Witness my hand and official seal this 9th day of December, 1919.

E. B. Howell