in the case of
PEOPLE V. HENRY SWEET
In the RECORDERS COURT
THE HONORABLE FRANK MURPHY
Wednesday, May 12, 1926
[The final closing argument in the Henry Sweet trial was delivered by Robert Toms, the Wayne County Prosecutor, who had the unenviable task of countering Darrow's closing the day before. Toms, who had relentlessly prosecuted the Sweets, was suspected by some of outright racism; but in person he was an affable man, and toward Darrow he had adopted a courtesy that disarmed the great advocate, who enjoyed playing off the hostility of prosecutors.
[In his closing Toms reads at length from the statement that Henry Sweet gave to the police after the shooting. At this date, police could interrogate arrested persons for protracted periods (in the case of the Sweet defendants, two days) before they were allowed to see a lawyer, although the practice was already disapproved; in his closing Darrow had criticized it vehemently, and Judge Murphy's charge warns the jury to take the resulting statement "with great caution." In his statement, Henry Sweet admitted having shot into the crowd "[t]o frighten them so they would leave us alone so we could go and finish our supper." Because of Henry Sweet's admission, it was he that the prosecutors decided to try first after the defense had successfully moved for separate trials the second time round. The admission also then became the centerpiece of Toms' rebuttal, since it suggests motives that fall far short of the fear that is legally required for self-defense. The forensic evidence, however, was insufficient to link Henry to the actual killing of Leon Breiner. Ossian Sweet testified at his brother's trial, but Henry did not.
[Through the rest of his speech, Toms steadfastly defends the prosecution view of the events: that the crowd outside the Sweet house had not been directly threatening, and that there was almost no damage to the house; that the Sweets themselves not only had no clear reason to be afraid, but were not afraid in fact; and that the explanation for their volley of gunfire must lie elsewhere. Although this view was consistent with the Sweets acting from irrational panic, Toms insinuates at several points in his closing that they were actually influenced by pro-Negro propaganda, and at one point he apparently begins to read from such a tract; he also suggests that the NAACP, which paid for the Sweet defense, should be viewed as a radical organization. More broadly, he tries to represent the conflict as one between two sets of rights: "Which is the more important, gentlemen, the right to live where you please, the right to live in a certain neighborhood, the right to live in a certain house, or the right to live at all?" Whether this representation is convincing and true to the facts, readers may judge for themselves.
[Seeking to counter Darrow's emotionalism, Toms maintains a generally calm diction until the conclusion of his speech, when he pumps up the volume: "Back of all your sophistry, gentlemen of the defense, back of all your transparent philosophy, back of your prating of the civil rights, and your psychology, and your theory of race hatred, and fear, and slavery, back of all that rise the dead body of Leon Breiner with a bullet hole in his back."
[Toms was later elected a judge on the Circuit Court of Michigan.
[This text of his closing is taken from the informal transcript
that the NAACP made of the closing arguments; a copy of this transcript
is preserved in the Burton Historical Collection of the Detroit Public
Library. About two-thirds of the original speech is given here; most
omitted passages are repetitious or digressive, and some are lengthy altercations
with Darrow and Chawke. I and my research assistant, Patrick
Hogan, have corrected misspellings and punctuation, altered the paragraphing,
emended the text in a few places, and added some explanatory notes.
The outline is intended to guide readers within this sprawling speech.
– Prof. Bruce W. Frier, Law School, The University of Michigan.]
|"A Further Avalanche of Language"|
|"What Do You Mean by a ‘Negro'?"|
|"The Solution of This So-Called Race Problem"|
|"Exclude All the Prejudices That You Have"|
|"Now, Let Me Talk a Little about Sympathy"|
|"Certain Undisputed Facts Here"|
|"There Are Some Civil Rights That We Don't Feel Are Worth Fighting For"|
|"How Frightened Was Henry Sweet?"|
|"It Seems to Me That Curiosity Has Become a Crime"|
|"This Fiendish Conspiracy"|
|"Our Theory of the Law"|
|"Did Breiner Have To Be Sacrificed on the Altar of Civic Freedom?"|
|"You Can't Give a Man Back His Life"|
|"So They Would Go Away and Let Us Finish Our Supper"|
|"Let Us Suppose That These Were Two Antagonistic Groups"|
|"We Will Throw a Scare into These White People"|
|"The Mussy Things That Darrow Doesn't Like to Hear"|
|"We Are Naturally Drawn to People of Our Own Color"|
|"A Scheme for Forcing Colored People into White Neighborhoods"|
|"Let Us Talk About Stones and Things"|
|"Mr. Darrow's Attempt to Pervert the Testimony"|
|"Two Holes Made by Stones Or Eight Holes Made by Bullets?"|
|"A Defense That Could Be Made for Any Negro Charged with Crime"|
|Conclusion: "What Did Breiner Do to Forfeit His Life?"|
|"How Do People Lose Their Civil Rights, Any of Them?"|
Introduction: "A Further Avalanche of Language"
MR. TOMS: May it please the court, and gentlemen of the jury,
I want to first express my personal appreciation of the patience and continued
interest with which you have listened to this case during the wearisome
weeks we have been here trying to do a public duty. I realize that
it has been an occasion of some discomfort and inconvenience for you and
that your service here has been or should be labeled as a patriotic one.
It is not pleasant. It is not convenient, but you have faced it,
and faced it cheerfully and patiently, and I for one want to commend you
for it and state that I appreciate it.
I dread to impose on you a further avalanche of language after what you have been subject to for the last two or three days. Unfortunately, it falls to me to pile on the straw which will probably break the camel's back, but I cannot feel but I must say something, at least, as it is my duty to on behalf of the State at the conclusion of this trial.
Rebuttal: "What Do You Mean by a ‘Negro'?"
Now, I have learned a lot about the Negro problem in sitting through this case twice. I mean, I have to learn a lot. The more I hear, the more I am convinced that I don't know much about it. I don't know whether it is a Negro problem, or whether it is a white problem, or whether it is both, but the more I study it and the more I hear about it, the more I am convinced nobody knows much about it; that it is a problem which has arisen recently and which is changing so rapidly that no one can claim to be an authority on it. I do not know what a Negro is. What do you mean by a "Negro"? Do you mean a person who has any trace of African blood in his veins? I can't say that in the ordinary acceptance of the term we mean a black person, because so many Negroes are not black. Some of them are very white, so what do we mean by a "Negro"? What it means in the ordinary acceptance of the word is a person who has the slightest trace of African blood in his veins. In other words, he may be 99.9 per cent white man, but we feel the other tenth makes him a Negro. So our problem isn't altogether with the black man unless we are going to modify our definition of the word "Negro."
When does a man cease to become an Italian? Suppose a man's mother married a German, and suppose his grandmother married a German, and then his mother married a Finnish man. How long would that have to go on before he would cease to be called German? Probably only one generation, but with the Negro we look at it differently. Whether we ought to, or not, I am not arguing. We do. We say that as long as any trace of African blood remains in a person's veins, whether we can see it, or not, that person is a Negro. Now, you see that complicates the problem. That makes it more difficult of solution.
"The Solution of This So-Called Race Problem"
Now, I don't know what the solution of this so-called race problem is. I don't think Mr. Darrow knows. I don't think he would presume to claim to know. I do know some things that are not solutions of it. I know you can't deport the Negro. I know you can't send then off to some foreign country. In the first place, there is no legal basis for it. It can't be done legally. It couldn't be done physically. It couldn't be done economically. You might just as well take them halfway across the ocean and sink the ship as to try to deport them to some foreign land. I can't conceive of trying to deport a man like—well, like Mr. Johnson—James Weldon Johnson, or like Dr. Sweet, or like Walter White, or Mr. Perry. [James Weldon Johnson, a poet and novelist, was Executive Secretary of the NAACP; Walter White was Assistant Secretary. Julian Perry was Ossian Sweet's personal attorney: ed.] We can't deport men like that. Where are you going to colonize them? How are they going to live? Where is going to be the Negro country? No, that won't work. You can't segregate them. Their social and economic lives are too closely interwoven with that of the white race to segregate them, and there isn't and there can't be any legal method of segregation.
Now, you hear people say, why, I don't mind a Negro, so long as he keeps in his place. I have often heard that. What do you mean by "his place?" What is the Negro's place? It isn't a stable place. It isn't a thing that you can pound. It is changing. It is changing with the increasing number of the Negro. It is changing with his migration. It is changing with his increase in intelligence and education, and culture, and skill. The Negro's place yesterday isn't his place today. The Negro's place throughout the reconstruction period following the Civil War isn't even a guide to what his place is today. So some of these wise people who say that the Negro should be kept in his place should be asked, "Well, granted, but what is his place?" So, that isn't the solution to the Negro problem.
I know one other thing that isn't a solution of it, when I read a statement which says that, "I see the birth of a new nation to fulfill His promise that out of Egypt shall come a prince—"
MR. DARROW: Just a minute, your Honor, I object to this.
MR. TOMS: I thought you would.
MR. DARROW: I don't know what paper it is. [The source is apparently a political pamphlet: ed.]
MR. TOMS: I know that this will never solve the Negro problem, for anyone to claim that the Negro race is to be a ruling race in this country.
That isn't going to lend one jot or tittle to the solution of this problem for anyone to claim that this land no longer will be a white man's land, and I will say this that if a man like Mr. Darrow, to whom the Negro looks up, on whose words the Negro waits and pays attention to, for him to say to a room that was crowded with colored people, as this room was yesterday, that when a Negro is in contact with the police, he is in the hands of the enemy, that is tearing down. It isn't building up. We are going to have police as long as you and I are here, or maybe anybody else.
MR. DARROW: Are you sure I said that?
MR. TOMS: Exactly so. I have it exactly, that the Sweets in headquarters were in the hands of the enemy.
MR. DARROW: Oh, I don't like to interrupt you, but I didn't mean that, and I don't think I said it. I said anybody under arrest and being sweated, was in the hands of an enemy. I didn't say anything about colored people; just the same as white. [Darrow is correct: ed.]
MR. TOMS: I will have to have the jury remember what you said. I wrote it down as you said it, and I am giving you my recollection of it, but if anybody, especially standing in the position that Mr. Darrow does, is for the colored people, who to them is somewhat of a hero and leader, for him to say to them that the police are their enemies, that doesn't help to solve the Negro problem. That doesn't fit in with his theory that he would like to see man's love for his fellow man the basis for the settlement of this problem. . . .
. . . . Now there is only one way that this thing is going to be solved, in my humble and perhaps immature judgment. We have got to live with these people. They are going to be here the rest of our lives, and the rest of the lives of our children, and their children. There is no way out of that situation. We have got to occupy the same land together. We have got to be citizens of the same great country together, and we might as well face that now. We can't solve it by laws, nor by any regulated sociological or economical restrictions. It has got to be done by mutual forbearance, by mutual charity, by mutual respect for each other, and by giving the colored man a chance to elevate himself to education and law observance, and all other methods to a point where he gains our respect. Now, that is being done. That is being done in thousands of instances. And as soon as he has done that, this problem will settle itself. Our prejudices will be wiped out then, perhaps.
But I am sure of one thing, that you and I can't find the solution of it here today. It isn't our business to find it here. That isn't what we are here for. That isn't what Mr. Darrow is here for. Here is a problem that in order to even understand it, to say nothing of solving it, may require years and years of study and research. Why should we, twelve men picked at random, in one settled spot in Detroit, attempt by a verdict to render any intelligent solution of a problem which never can be solved in our lifetime anyway. So, let us not try to do it. Let us not be persuaded into trying to do it by Mr. Darrow. Let us not get off onto a sidetrack here. Our business isn't to determine whether the legal—whether the social status of the Negro is a proper one today, or not, or whether his ancestors have been fairly treated. That is interesting, but it isn't what you are here for. So, I ask you from the start not to let yourself be switched off into philosophical speculation as to what some day somebody is going to do with the Negro problem. We are here to find out why a man was killed, whether someone is to blame for it and if so, whom?
"Exclude All the Prejudices That You Have"
Now, let me talk about prejudices a minute. I have got a lot of them. I am prejudiced against some Negroes. I am prejudiced against some white men to such an extent that I don't think I could be argued out of it. My grandfather was prejudiced against Democrats. It happens that he was one of the founders of the Republican party out at Jackson [Michigan] in 1846, and he used to say that he didn't think that all Democrats were horse thieves, but it was funny that all horse thieves were Democrats. Now, that is just prejudice, of course. It is pure, unadulterated, unreasoning, blind prejudice. . . .
And you, each of you, have such prejudices. Do not deceive yourselves. You have. And you can't put them out of your mind. But I want to tell you this, that among my pet prejudices, I do not hold one against the Negro. I have known some fine Negroes. I once ate dinner with Bert Williams, and spent the evening with him; as delightful an evening as I ever spent. I broke bread with Walter White when he was here at the last trial. I wish that he was here now. And I have a Negro in my office, a competent, trustworthy fellow. My two children this morning are in the keeping of a colored woman, and in spite of that fact that I am prosecuting this case, I am not a bit afraid, not a bit. So, I haven't any prejudice against a man on account of his color. I think if you were to ask Mr. Darrow, he would say that my attitude throughout these two trials is some evidence of that.
MR. DARROW: It is.
MR. TOMS: So I will join with him in asking you to exclude all the prejudice that you have, all of it, from your deliberation in this case, and I include in that, the prejudices which Mr. Darrow has tried to instill into you.
"Now, Let Me Talk a Little About Sympathy"
Now, let me talk a little about sympathy. Mr. Chawke [Thomas Chawke, defense co-counsel: ed.] says that Breiner's body was dragged in here to play upon your sympathies, and he bemoaned that. He said it wasn't right, and yet Mr. Darrow's argument was nothing in the world but a potent, a forceful and moving appeal to your sympathies. Why, what else was there to it? The only thing that he asked you to do was to let your heart go out to this boy whom he is defending and to think what it would mean to him to be convicted. Oh, remember your own boys, remember Mrs. Sweet, a mother. Sympathy? Why, his whole argument reeked with it and yet his associate says, Let there be no sympathy here for Breiner. Now, sympathy hasn't any place in determining the truth. Sympathy may have a lot of place in determining what we shall do when we find out the truth. It should have, perhaps. But your job here is to find out what are the facts. And what do those facts show? Sympathy hasn't any place in that.
Weighing testimony, finding out who is telling the truth, what place has sympathy in a task of that kind? That task should be approached from reason and logic alone, and experience, so, I am asking you not to approach your work as jurors in this case from a sociological point of view wherein prejudice and sympathy may enter and perhaps properly; not to attempt to decide whether or not the Negro race has been unjustly dealt with in the United States, as Darrow would have you, or as he would have you decide why our school teachers, if any, but rather that you would confine your deliberations to this question: Who shot Leon Breiner and under what circumstances? Now that is all you have a right to decide. Why, Darrow asks you to acquit Henry Sweet, to find him not guilty, because certain social and economic conditions have not been favorable to the Negro race. His appeal is entirely that of the philosopher, the sociologist, the poet, but not at all that of the lawyer who is arguing the proofs of the case. . . .
"Certain Undisputed Facts Here"
What are facts? Facts are truths. Now, how do you find out what is the truth? Well, there is the tough job in that. That is why twelve men are asked to do it instead of one. What is the truth? Now, obviously, you can't have a man's mind spread out on the table in front of you and put a microscope on it and say, "Well, there is the truth, and there isn't the truth," and so on. The science of determining the truth is not an exact one, and never can be. We will never know whether some people—whether those people were telling the truth, or not. We can hazard a guess. We can form our best judgment. We can be sure up to a certain point, but beyond that, we may be wrong. So, there is no way to tell just exactly and scientifically where the truth lies.
[In a lengthy omitted portion, Toms discusses getting at the truth even when eyewitness testimony is contradictory. He uses the testimony about the stone throwing as an example.]
Now, there are certain undisputed facts here. I think you will concede that, won't you? There are a couple of things that we do not disagree on. All right. You probably will disagree as to what I say. Well, the first one is that Breiner is dead. That is eternally true. That is a fact that isn't going to change. The second is, that he was shot, and that that caused his death. He was shot in the back. The third is that he was standing near the north porch of the Dove house when he was shot. The next is that a number of shots were fired from the front and north side of the Sweet house just preceding the time of Breiner's being shot. That wasn't disputed. It isn't disputed that there were ten weapons in the Sweet house just preceding the time of Breiner's being shot. That wasn't disputed. It isn't disputed that there were ten bullet marks at various places in the neighborhood and that eight of them were in the immediate vicinity where Breiner stood. Seven—now, that isn't disputed. You needn't worry about that. You don't have to decide where the truth is there. We can agree. I mean, we can agree.
It isn't disputed that not one person trespassed upon the property of Dr. Sweet on the night of September 9th.
MR. DARROW: Trespassed?
MR. TOMS: Set foot on it. Is that what you mean?
MR. DARROW: His foot on it.
MR. TOMS: Is that the difference?
MR. DARROW: Oh, you said, set foot on it. I thought you said trespassed.
MR. TOMS: I did say trespassed. By that, I meant, went on to his property.
It is undisputed that the only damage to the Sweet house were the two holes in one pane of glass, in the front window, and a sort of half-hearted claim, based on an impression, that the window on the south side of the house on the second floor might have been broken, and that constitutes the sum total of the damage to the Sweet house. It isn't disputed that not one finger was laid on any of the ten people in that house. It is not disputed that not one hair of their heads was harmed. It isn't disputed that there were no people on the sidewalks immediately around the house, that is, on the west side of Garland in front of the house, and the north side of Charlevoix at the side of the house. [The Sweet house stands at the intersection of Charlevoix and Garland in eastern Detroit: ed.] It isn't claimed that there was any mob or crowd over there. It isn't disputed that 391 rounds of ammunition were found in the house, and that 14 shells of five different calibers were found discharged in that house. It isn't disputed that no threats of any kind were directed at the members of that household that night. Well, I guess that is all. There may be some other things that are not disputed. That is a lot better than we thought, when you get it all together. It is quite a bit, and quite significant. The undisputed facts of this case are very important. They go a long way towards proving what happened there that night, the undisputed facts.
MR. DARROW: If you want to be exact, cut out the last one. It is disputed about that.
MR. TOMS: That there were threats that night?
MR. DARROW: Claim the whole thing was a threat for two days.
MR. TOMS: Well, all right, if you want to call that a threat. The situation was a threat. That is what Mr. Darrow means. Now, nobody had addressed a threat. Nobody spoke a threatening word to any of the inmates of the house that night. I guess that won't be disputed. Well, that is what Dr. Sweet said. I don't imagine they will dispute that. All right. Now, there we have the foundation and the background of this situation.
"There Are Some Civil Rights That We Don't Feel Are Worth Fighting For"
And then we come to the question of civil rights. Let me talk about rights, if I can, for a moment. Now, I will admit frankly, without any evasion at all, that Dr. Sweet had a right to buy that house and move in there. It wouldn't make any difference whether I admit it or not, because the law gives him that right, and I couldn't deny it to him. That is granted, the granted right of any citizen to live any place that he can buy a home, and I grant his right to defend it against invasion and attack, if attacked. I also claim the right of people to sit on front porches, at least, their own front porches. I claim the right of people to visit their neighbors. I claim the right of people to go on public highways, especially on hot summer nights, and I claim the right of people to go to grocery stores, whether they buy Chesterfields [cigarettes: ed.] or milk. And I claim the right of citizens to exercise the privileges without being shot at while they are doing so. Now, you talk about rights. We all have rights. Sometimes we do not claim them. Sometimes we are rather ashamed of claiming them. I have a right to play my piano late at night if I want, and the fact that there is a woman upstairs who is on her death bed, need not make any difference to me. They can't stop me playing my piano. . . .
We are continually waiving our civil rights. We are willing to do it. We do not know that we do it. We do it instinctively. There are some civil rights that we don't feel are worth fighting for and insisting upon. Now, I don't say that your right to live in your own house is one of those. I don't; claim that at all. But let us not forget that there are other civil rights besides the right to live in the spot that you choose, and that you can't subordinate every person's rights to your rights, just to live where you want. That doesn't wipe out the rights of every one else. Well, what a ridiculous position to take, to say that Breiner was a party to a foul conspiracy because he was out on that street that night. He left home. Why? Why? Because a colored family moved in across the way. I suppose Mr. and Mrs. Dove should have stayed upstairs in their hot, stuffy flat on a summer's night, because a colored family had moved in across the way. The colored family had a right to move in, and the Doves must bow to that right, and they had their own right to sit on their own front porch. I suppose the man who went down to the grocery store to get some Chesterfields should have smoked a pipe or gone without the Chesterfields, rather than join this foul conspiracy and show himself on the public highway at night in front of a house where Negroes had moved in.
What about Mrs. Hintiez? She certainly, if she had known she was to be a witness for the defense, could have let the dog go without his milk, the dog's civil right to have his milk; they should have been forgotten and Mrs. Hintiez's solicitude for her pet should have been kept indoors, rather than go out on the street in the neighborhood of the place where a colored family had moved in. Oh, rights. Rights are mutual. Rights are common. They are not all on one side in this case.
"How Frightened Was Henry Sweet?"
Now, let's talk about fear. . . . Here is the whole defense in this case. It is a defense which is founded on fear. Well, now, fear isn't a thing that you can put your finger on either, or put in a box. There are so many degrees of fear. . . . [F]ear can be great or small, or reasonable or unreasonable, based on nothing or based on something substantial.
Now, in connection with honesty in this case, how frightened was Henry Sweet and what was the basis of his fright, because if he wasn't frightened there wouldn't be any defense here, that Henry Sweet was frightened, and they go clear back to the time his brother, the Doctor, was seven years old, to lay the foundation for that fright, and by inference, they say, if Doctor Sweet was frightened, Henry was frightened just as much, and every other defendant in that house, every other occupant was frightened just as much as the spokesman, Doctor Sweet, was frightened. They sort of standardized their fear. They said, "We will plot a fear here, about that size (indicating), yes, that is big enough to cover this case. That is our fear; David and Washington and Latting and Henry and Otis and Ossian, all of them, we all have the same fear." . . .
You can't put 11 people in the house and say they are all afraid to the same extent of the same thing. It is ridiculous. But that is what they have done here. They have said, "We will elect Doctor Sweet, and he will tell you how afraid we all were." . . .
Well, now, let's just see how frightened they were? They moved in there conscious of the situation, fully expecting that their house would be torn down; if they didn't expect that, why did they arm themselves to prevent it? They moved in there expecting trouble, expecting to have to defend their lives, and yet how do they act? These ten terror stricken, mortally afraid people, what did they do? And what happened to them?
Well, they moved in on the 8th. Nothing happened all day on the 8th. Now, so you have the night of the 8th. Something fell on the roof and stopped, and on the 9th the Doctor gets up, puts his wife in a car with him, and they go out shopping and attending to his practice, ministering to the sick, buying furniture, doing some shopping, getting some cooking utensils from Doctor Carter, living just their own ordinary life, leaving this house, which they would have to protect by firearms. That is all unprotected, left it at the mercy of the mob, didn't even stay there to guard it, but went casually about their every day business, of buying furniture to furnish the house which was to be torn down by the mob, $1200.00 worth of it to be delivered when? The next day, on the 10th. How fearful they must have been that the mob was going to demolish the house? When they bought $1200 worth of furniture for it to be moved in the next day? What about fear under those circumstances?
And when they get home, go in the house, and some other Negroes came in the house, Dr. Carter, and as he parks his car in front of the house—Dr. Carter isn't here. I would like to have you see him. No one would mistake him for a white man, and he comes up the steps undisturbed, goes there three times in eight hours. Well, just when do you think these people ought to begin to realize that there wasn't so much to this mob business as they thought? How long would it take to prove to them that they were not in such danger as they thought?
And then Henry Sweet, how terrified he was. He must have been down in the basement hiding behind the furnace, trembling, shaking in terror of his life, at the white mob. Well, not so you could notice it. Henry goes out on the porch, and sits down and reads for three quarters of an hour in a swing on the front porch. Then he says, "Well, this is pretty tough. I guess I will go and get a cigar," and comes over to the white man's grocery store and buys a cigar and comes back, and walks up and down in front of the house, and finally from sheer ennui, he says, "I guess I will go in the house." Frightened to death.
That was the day that—that was the 9th, that was the day when they were all terror stricken, when their house was to be demolished. And that is what they call being frightened. So overcome with fear that they felt it was necessary to shoot 104 feet to kill a man by putting a bullet through his back to protect themselves. Oh, that fear theory is just a smoke screen, gentlemen. It is just a smoke screen. It is plain subterfuge. Well, they got to have some defense, and the fact that this man is a Negro, immediately offers the defense of fear, of race persecution, and of hereditary terror. Why talk about being afraid? Why were these people inside running about? According to Dr. Sweet, frightened, terrorized, and someone rings the doorbell, and they go and say, "Come in." And it is his brother, and his friend Davis. Do you think you could have dragged him to that door, that front door? If they had been frightened, really frightened? Two friends come up in an automobile and they say, "Hello, come in." Frightened? Oh, there are a few things, little things—which show that they never were frightened until they found out that it was necessary to be frightened, in order to justify their actions. [A short recess: ed.]
"It Seems to Me That Curiosity Has Become a Crime"
Now, in our alphabetical progression of topics, we have got curiosity. Now, it seems to me that curiosity has become a crime since we started this case. This makes most of us criminals, including Darrow. It is a perfectly natural human attribute to be curious. Why, look at this court-room yesterday—not so much so today—yesterday it was packed with curious people who wanted to see Clarence Darrow in action. I suppose I might infer that he is more of a curiosity than I am because there aren't so many people here today.
MR. DARROW: They all know you.
MR. TOMS: Well, I will grant that. I won't even argue about that.
MR. DARROW: All right. That is fine.
MR. TOMS: Well, you can't call people conspirators because they are curious, and if we are going to do that. Let us be consistent about it.
Let us make everybody that is curious a conspirator. Why, Darrow has been curious all his life. I don't mean curious. I mean has been interested. I don't know that I ever saw a man who was so interested in digging into corners finding out about people and things and theories and events. Why, curiosity is the salvation of the race intellectually. That is the only thing that makes us want to find out more. . . .
Just curiosity, that is all, just normal curiosity, and a very compelling, universal human trait. And I imagine that if any of you would have been going by the neighborhood of Garland and Charlevoix that night, and had seen two or three of seven or eight policemen, you would have stopped, and maybe you would have asked what is all the trouble. What is all the shooting for? And nobody would have tried to make a criminal out of you for that, except Darrow. I wouldn't have blamed you. We have done it. I have done it. I have ducked into crowds lots of times, and found it was just some fellow with a little dancing figure on a thread, or some fellow selling collar buttons, or a patent device to thread a needle, and you will find that men whose time they consider most valuable standing around, standing around watching that fellow thread a needle. Well, according to Darrow, every one of them ought to be in jail on the charges of criminal conspiracy, because they were curious.
[Toms considers the testimony of several onlookers from this perspective.]
"This Fiendish Conspiracy"
Oh, it is ridiculous, gentlemen. It is ridiculous to take 71 people picked at random out of—how many would you say—I don't know, say 500, if you like, to take 71 people, and say that every one of them is a liar, and a cowardly cur, because they happened to be there. I could at least condone it a little bit if he would confine it to the members of the Waterworks Park Improvement Association. I could at least see some vestige of a point in argument—not much, but some—but to include in the fiendish conspiracy people who didn't live in that neighborhood, people who didn't own their property, people who rented, professional people, workmen, grandmothers, mothers, children—that about covers it—everybody—everybody who happened to be there on that street, regardless of how he happened to be there, could not be innocent. There were no innocent people there. All there for the same purpose. All liars, and all criminal conspirators.
Why, it might easily happen that I had been passing through there that night, as the Spauldings were, or you, or you, or any of us. It takes something more than just being in front of a Negro's house to put into your mind the intent to kill him and burn his house. Doesn't it? What about Breiner? Breiner who suffered the penalty of this thing—even Breiner is branded in the same category with the others. He should have been home. Well, of course, that is safe. If you stay home, you won't get killed in this particular manner. Your house may fall down, or a burglar may break in and kill you in your home, but at any rate you won't get shot, for being on the street.
Has it come to a pass that is a Negro family moves on to a street, every other person must stay off the street? Or be branded as a criminal conspirator against that Negro? What about the people who didn't live in that neighborhood? What about the people that were not members of the Waterworks Park Improvement Association? How glad they must be that they are not. What about them? Are you going to throw them all into the same hopper that grinds out liars and gophers and cowardly curs? I say, it has come to a strange pass if you can't walk on the public street past the house occupied by a Negro without being bedamned as these people have been.
[In the passage that follows, Toms quotes at length from the cross-examination of Philip Adler, a reporter for the Detroit News who appeared as a defense witness. In response to the question: "Do you characterize these people along there as a neighborly, quiet, orderly crowd, don't you?" Adler had responded: "Yes."]
He said that the crowd on Garland Avenue was a neighborly crowd, men in shirt sleeves, home people, and it was quiet and orderly. Now, I am willing to let it go at that, perfectly willing to take Adler's word for that. I wonder if the defense wants to call him a liar. They haven't so far and then he said that the crowd down on Charlevoix Avenue was a dressed up crowd, as distinguished from a neighborly—oh, I suppose he meant by that, that the men had their coats on, and their shoes on, and they were not out in slippers, and chatting with neighbors, up and down the street on a warm summer's evening.
Did you ever do it? Did you ever do it? In the middle of the summer, did you ever go over to the corner store for a paper or a cigar without your coat on? Maybe in your slippers. Maybe you took a youngster along with you, and you met some neighbors over in the drug store, and you stopped to chat about the ball game that day, or how rotten the Tiger pitcher was, or how bad business is; maybe walked back with your neighbors. That is what I mean by neighborly. I guess that is what Adler meant by neighborly. Would you like to be called a cowardly crowd for doing that, if you happened to pass the home of a Negro?
"Our Theory of the Law"
Well, I wanted to digress just a minute, to see if we can get our bearings, as far as the law is concerned. The court will give you the law in his charge later. I have a right, as Mr. Darrow has exercised his right, to tell you our theory of the law; to tell you what you believe that law says with reference to the right to kill in self defense—or protection of the home. I don't know, but the better way to do it—let me read it to you [source unknown: ed.] —
"A person, though attacked in his own house, has no right to kill unless it becomes apparently necessary to save his own life or prevent a felonious destruction of his property or the commission of a felony therein; he is not justified in a killing to prevent a mere trespass on the property, even in his own dwelling.Now, that is the whole sum and substance of this case.
"The force used by him—that is, the method in repelling an attack, or protecting his home—the force used by him must be neither greater in degree nor earlier nor later in point of time than is necessary or apparently necessary. It is the duty of the householder to prevent the injury of his house by means not fatal if he can do so consistently with safety. In other words, he can't shoot sooner—nor he can't shoot at all—unless it is apparently and reasonably necessary to do so.
"The attempt to invade the home must be manifest, that is, it must be so plainly made that no reasonable doubt exists as to the purpose of the aggressor.
"But a mere demonstration towards, or even an effort to break into a dwelling will not excuse a homicide by the owner or inmate to prevent the breaking in. There must be such a demonstration of an immediate intention to do violence as to induce a reasonable belief that the party threatened will lose his life, or suffer serious bodily injury unless he immediately defends himself against the attack, even though in his own home. If, through carelessness or fright, or undue excitement, he takes the life of another, when it is not necessary and when he has no reasonable ground to believe that it was necessary, the killing is not excused. He must not take life if he can otherwise repel the assailants. He is not justified in killing unless the killing is to all reasonable appearances necessary to preserve his own life or prevent great bodily harm. There must be reasonable ground for believing the danger imminent, immediate and pressing. Before a person may be excused for taking life in the defense of person or home, he must have tried all reasonable means which would, under the circumstances, naturally occur to a humane man to repel the attack before taking life."
"Did Breiner Have To Be Sacrificed on the Altar of Civic Freedom?"
How necessary was it that Breiner should have died? What could have been done to prevent it? Anything? Did Breiner have to be sacrificed on the altar of civic freedom here? Wasn't there some way out? Wasn't there some way that Breiner could have been spared to his family, and still the colored people have been guaranteed their right, the right to live. Oh, I think so. And that is the basis of my feelings in this case. There was an easier way, a less tragic way, of guaranteeing to these Negroes their rights as citizens. It wasn't necessary to have killed a man. It doesn't seem to me that Breiner had to die that Sweet should have his rights. I can't figure out? I can't convince myself that Breiner was a necessary sacrifice, or that anyone else was, much less Breiner, or that Haugberg [Erik Haugberg, seriously wounded in the shooting: ed.] should have been wounded. Wasn't there some way that Dr. Sweet could have enjoyed his home and have been guaranteed his rights under the law, without killing a man, and wounding another?
I think there was. Why, one shot fired in the air—well over the heads of this crowd—safely over the heads of this crowd—would have brought every police officer on the gallop to this house. It would have been an alarm that would have brought every reserve, and every man in that vicinity rushing to that house. What could the police do when bullets were fired, after the man was shot? What could they do then? The toll had been exacted, the price had been paid. They couldn't save Breiner then.
Suppose that Henry Sweet in the front room upstairs was as terrified
as he said—here was the crowd, still across the street—not on his property,
not on the porch, not on his walks, but across the street, and staying
there. They had been there all the time. No attempt made to
cross and attack the house. But suppose that the situation was so
fraught with terror that Henry Sweet said, "I am a goner unless I get help."
I can't imagine that, even with his mentality, his history, his background,
I can't imagine his thinking that, but suppose he did. One shot fired
in the air would have brought help instanter.
That is one thing that could have been done. What was the telephone in the house for? I suppose he didn't have any confidence in the police that were there. Why, I don't know. . . .
Here was a policeman out on the sidewalk in front of the house. Did Dr. Sweet try to communicate with him? He opened the door and let his brother in. Did he try to call the officer at that time? Did he do any of the dozens of things that he could have done before it became necessary to kill a man?
"You Can't Give a Man Back His Life"
You know the law doesn't view human life lightly. Your life is the only thing you have that is worth a good deal. Some people, that is about all they do have, and oh, how jealous they are of it; how they want it; how they fight to keep it, and the law recognizes that. And it doesn't condone the taking of human life lightly. The whole theory of the law for centuries has been, do everything else first before you kill, because you can't repair that damage. You can't give a man back his life. You can take his property away from him. He can get some more. You can take his health away from him, and he will regain it, but you can't give him back his life, once you take it. And so the law says, and properly, you shall not kill except as a last resort. Can you say, gentlemen, and do you believe that there was no other course open to the Negroes except to kill? I can't believe it. I can't believe that it was necessary.
You see, it wasn't as if they were unprotected entirely. It wasn't as if they had suddenly found themselves confronted with a mob which they themselves couldn't cope with. They had protection. They had policemen there. They had enough policemen there so that no one crossed on to their property. The police had protected them for forty-eight hours from any personal injury, and they had come and gone from that house. Why did they suddenly feel that the force which had protected them for forty-eight hours and given them access to go and come was insufficient? And was suddenly in such a state of collapse that they had no other recourse except to kill?
"So They Would Go Away and Let Us Finish Our Supper"
Why, how frightened they were. They spent the evening playing cards. Here are men who are in terror of their lives, frightened—who feared immediate, pressing, and impending death, lynching, their house torn down, about their heads, playing cards. And Henry Sweet says, " Oh, I thought I would shoot so they would go away and let us finish our supper." Oh, is that the price of interfering with a meal? Death? Do you disturb the tranquility of the evening meal at the risk of your life? Let us see what Henry Sweet does say, I mean, let us see what he said before he had to have a lawyer to tell him to tell the truth. Now, here is the statement of a man which was taken the night that this thing happened, with his recollection fresh, without his having the time to conjure up, and manipulate, and manufacture fears and defenses. Here is what he says:
Q. You were at the house tonight when the trouble started?And so on—telling who were the people.
Q. What time did you come to the house today?
A. Been there all day.
Q. Did you leave the house at any time today?
A. Once, this afternoon.
Q. Where did you go?
A. I went to the drug store on the next street, and got some cigars.
Q. What time was that, about?
A. About 4:30 in the afternoon.
Q. Who was at the house when you left to go to the grocery store?
A. Who was there?
Q. Yes. Doctor come home at that time?
Q. And his wife?
Q. Well, then, after you got back there to the house, what did you do?And nobody, nobody made a move toward him.
A. Sat on the porch and began to read.
Imagine trying to read and understanding what you are reading, at 4:30 in the afternoon. Later than that. Got back at 4:30. Imagine trying to read, when you are in such a mental state that you are terrorized—that you are loading your gun, that you are bringing your guns into the house and stationing your men about the house at the different windows; imagine being in that frame of mind, in such a state of terror, that you felt you had the right to kill a man to save your own life. Could you sit down to read and play cards?
Q. How long did you sit on the front porch?
A. Oh, I guess about three quarters of an hour.
Q. And then did you go into the house?You see, Henry knew about the police.
Q. Any trouble while you were on the front porch?
Q. Policemen there, wasn't there?
Q. How many?
A. I am afraid to say.
Q. Was there more than one?
Q. They were walking up and down, protecting the house, is that right?
Q. What was the first of the disturbance, that you know, what happened?I don't know the number. And then he identifies the rifle.
A. Oh, I was in the kitchen, I heard stones and things falling on the house.
Q. Then, what did you do when you heard that?
A. I went upstairs.
Q. Whereabouts did you go?
A. In the front room.
Q. What did you do when you got up there?
A. I got my rifle.
Q. What rifle? Is this—
A. That small one.
Q. This one here?
Q. Where did you get this rifle from?Do you remember, that is where it was found finally?
A. I had it in my room.
Q. Which room was yours?
A. Middle room upstairs, on the side of the house facing Charlevoix.
Q. Where did you have it there?Now, that is the room that Dr. Sweet couldn't state that anybody else was in that time that he was lying on the bed. Do you remember, looking out at the crowd across the street for fifteen minutes? He didn't see his brother Henry doing these things.
A. In the corner.
Q. After you got it, what did you do?
A. Went to the front window.
Q. What did you do then?
A. I began to watch the stones and things.
A. I began to watch the stones and things.Then, of course, he didn't wait to see what effect that would have, or whether any help came.
Q. Were you at the window?
Q. And how long did you remain at the window?
A. I remained there until the stones began to come in on me.
Q. Did the stones come through the window?
Q. How many stones came through the window?
A. I don't know; I never counted them there.
Q. Was the window open or closed?
A. It was closed.
Q. Did you kneel down at the window there?
Q. Then what did you do?
A. I began to look out the window.
Q. What did you see when you looked out there?
A. A crowd of people.
Q. Where were they?
A. Across the street.
Q. What were they doing?
A. What were they doing? Throwing stones.
Q. What did you do then?
A. I didn't do anything until the stones began to come in on me.
Q. Then what happened?
A. I tried to protect myself.
Q. What did you do?
A. I fired the rifle.
Q. Where did you fire it?
A. The first time in the air.
Q. Whereabouts? You mean, straight up in the air?What is 70 degrees? This is 90—70 (indicating).
A. No, on an angle, about 70 degrees, I guess, from the ground.
Q. What did you do then?—Now, here is a chance for Henry Sweet to give his own justification for the thing—here is a chance for him to say that he was in mortal terror of his life, if he was afraid, if he didn't fire, he would lose his life or his brother's property would be destroyed? Now, this is right after he did it, that he makes this statement.
A. And I fired again at the crowd.
Q. How many times did you fire in the air?
A. I don't know.
Q. Did you fire more than once?
A.. I couldn't say.
Q. How many shells does the gun hold?
Q. And you say you fired in the crowd?
Q. And where was the crowd?
A. Between the store and the first house [across the street from the Sweet house, ed.], and between the first and second houses; and in the meantime there were officers standing there where that crowd was scattered, and the people throwing stones and hit over the officers head. They didn't attempt to do anything to stop it.
Q. Is that all the people were doing, throwing stones?
A. I couldn't say that is all they were doing; that is the particular thing I noticed.
Q. You say you fired at the crowd?
Q. Just what part of the crowd did you fire at?
A. Between the store and the first house.
Q. When you fired, did you aim at those people standing down there?
A. Not anybody, just firing.
Q. Were you firing at the crowd?
A. Not particularly firing at the crowd, but in that direction.
Q. You knew if you pointed your rifle down there, you were going to hit somebody?
A. Well, that is if you are going to take aim, but if you are going to shoot in the direction, you are not going to hit anything.
Q. Why did you fire as close as that?
Q. Why did you fire as close as that?Well, if that is a good reason for killing a man, all right. If a man must be shot because not he, but some other people were there moving around, are disturbing the quiet of my supper hour, I will quit. We are all done if that is the reason for killing a man.
A. To frighten them so they would leave us alone so we could go and finish our supper.
[In a lengthy omitted passage, Toms argues against a defense theory that Leon Breiner was actually shot by the police in crossfire. In the middle of this argument, he court adjourned for a lunch break, and resumed during the afternoon.]
"Let Us Suppose That These Were Two Antagonistic Groups"
Who had the advantage here? Let us suppose that these were two antagonistic groups, which were bent on doing damage to each other. Who had the better chance of doing it without harm to himself? Well, in the first place, the Negroes were behind solid walls. In the first place, they had the only guns which anyone has been able to show here, and plenty of them. In the first place, they were in darkness. They were at a point of vantage where they could shoot without being seen or anticipated. They were at a place where they could not be hit if shot at themselves. The only difference is that there were ten of them, and more people on the other side of the street. Well, numbers don't mean so much always, numbers of men; numbers of bullets make a difference; advantage in position makes a difference. I remember reading about the immortal Three hundred at Thermopylae.
MR. DARROW: Three hundred?
MR. TOMS: Was it three hundred?
MR. DARROW: Well—
MR. TOMS: How they stood off the whole Persian army because they had the advantage of position. I remember in days when I used to recite at school, "When Horatio at the bridge—"
MR. DARROW: "Out spoke brave Horatius."
MR. TOMS: Horatio was alone, but he was out on the bridge. So that numbers don't make so much difference provided the other fellows have the advantage of position, of protection, or are in a strategic point, or have more bullets. There were 391 bullets here not counting those that were found empty in the house, the empty shells. That is a pretty fair advantage right there. They could have taken care of three hundred of this crowd before they could have gotten anybody on to their property, if they would have found it necessary.
That gave them quite an advantage, but, in addition, they are in darkness, behind solid walls, and the people across the street given no chance to retreat—or to change their minds, or to get to places of safety; women, what difference does that make? Children? No chance to get under cover. No chance to protect themselves. No chance to change their minds, if they had been intent on destroying this house. No chance to repent, but suddenly, unannounced, and without warning, there flashed forth from four sides of this citadel showers of bullets: What could the white people do? Stand there and take them, that is all. They have no means to protect themselves. I don't call that bravery. I don't think that makes a hero and martyr out of a man, to fire under these circumstances.
And, by the way, why from four sides of the house? Where are the mob? Nobody testifies even amongst the defendants, nobody testifies to any threatening crowd except across Garland Avenue from the front of the house. What were the two men on the back porch firing at? They were not shooting towards the so-called mob on Garland Avenue. What were the people on the south side of the house firing at? Who has testified to any mob over there? Dr. Sweet? No. He didn't see any mob over there. Now, mind you, the only mob which frightened the man inside, the mob that he saw; certainly, if Dr. Sweet, if Dr. Sweet didn't see a crowd on Charlevoix Avenue, he wasn't frightened by them, was he? I don't believe if they were menacing him in his house, or they were intending to tear down his house, they should have fired out on that side of the house, just the same as if they had seen the threatening mob there. And who was threatening from the rear of the house, from the alley? Well, we will play safe. We will fire out there too.
MR. DARROW: Mr. Toms, have you any doubt that anybody fired back to the alley, or to one side or the other side?
MR. TOMS: Well, firing from the back porch.
MR. DARROW: I know, but they could fire from the front to the back proch.
MR. TOMS: All right. That is another trick bullet.
MR. DARROW: I don't want to interrupt you.
MR. TOMS: That is all right. I am glad to be interrupted if I am wrong. Now, here is a picture of the back porch. Can you tell me how the men who stood on this side of it, firing into Charlevoix Avenue, could be firing at the mob which is around here on Garland Avenue? The man on the other side, who fired between the two houses, is in a different situation. He was firing between the Sweet and Getke house, and might possibly have hit the crowd on the other side of Garland, but what about this boy? This fellow who stood on the south side of the back porch and firing into Charlevoix Avenue? He wasn't shooting at the mob in front of the house, unless he had another one of these trick guns that shoots in semi-circles.
"We Will Throw a Scare into These White People"
No, the whole thing—the whole thing resolved itself into this, gentlemen of the jury, into an attitude toward the people of the neighborhood which can be expressed by this: We are not going to take what Turner took. We will throw a scare into these white people at the very first crack out of the box that will let them know that we mean business. And so they kill a man to scare the white men and let them know that the colored people did not mean to be driven out easily. Now, there is no legal justification for that. They had no right, morally or ethically, or legally, to kill Leon Breiner just to impress on the white people that they didn't propose to be driven out, and that is just what happened.
"The Mussy Things That Darrow Doesn't Like to Hear"
Well, now, let us try the case of Sweet versus the Waterworks Park Improvement Association. That is the case Darrow would like to have tried all the way through here; either that, or Darrow versus—what was that name, of the schoolteachers—
MR. CHAWKE: S-t-o-w-e-l-l.
MR. TOMS: Darrow versus Stowell, he would have liked to have tried that, or Hintiez versus Davis, or Sweet versus the Detroit Police Department, any case—any case that he could think of except the People of the State of Michigan versus Henry Sweet. He doesn't like that, and he doesn't like to have us talk about Breiner's death, and about Breiner being shot, and about Breiner being buried, I don't blame him. He says it is mussy. And when he used the word, I couldn't help but think of Dr. Sweet's vivid and wonderful description of the burning of the colored boy in Florida, when Dr. Sweet was seven years old; mussy—that is kind of mussy to talk about pouring kerosene on him, and that sort of thing. That is my idea of mussy. Oh, you see, that doesn't hurt Dr. Sweet any.
The mussy things that Darrow doesn't like to hear are the ones that don't do Dr. Sweet and his brother credit. So he hates to see Breiner brought in here. Breiner, poor Breiner, just a figurehead here. What an innocent figure he has turned out to be. Just some man who was killed, that is all. Just the man who is dead. Well, that is mussy. Who made it that way? Who created the muss? What is the only violence and bloodshed in this whole case? Well, it is the violence and bloodshed that was caused by a bullet fired from this house. That is the only bloodshed. That is the only mussy feature. I am not surprised he doesn't like to hear about it. It isn't pleasant. We don't any of us like to hear about the dead, but we ought, none of us, to forget them.
"We Are Naturally Drawn to People of Our Own Color"
Now, the Waterworks Park Improvement Association is just one of those associations all over town, a lot of neighbors who are interested in their property, in their schools and streets, and police protection, and the other things that neighbors have in common, get together to form an association. Now, you know it is perfectly natural for people to colonize. Man is a gregarious animal. He herds. He always has and I guess he always will. We are naturally drawn to people of our own tastes, or our own color, and I don't know how you are going to change that. I don't know whether it is commendable. I don't know whether you can justify it, but it is there. It is just one of those prejudices, maybe. We naturally herd with our own kind, animals do it, human animals do it. . . .
So, for the Waterworks Park Improvement Association to band together, if you please, to prevent Negroes from moving into the neighborhood, it wasn't unreasonable, providing they did so by legal methods. Now, of course, there would be a legal method of doing it by placing restrictions on their property. They couldn't do it legally by force and coercion, and if they did that, no one holds any brief for them, or justifies it. But where there are two possible ways of doing it, of maintaining a white character for their neighborhood, if you like, leave it to the defense to claim conclusively that they are interested only by their desire to drive them out illegally. It isn't possible that any of these citizens, these men who work in our city, and pay our taxes, it isn't possible that they could have intended to keep their neighborhood restricted to white families by legal methods. No.
Why, nobody in that neighborhood could have done anything legally according to the defense, or, say, where you have the choice, of giving the man credit for intending to do a thing, by a legal and proper method, or by an unlawful or violent method, don't by any means give him credit for being decent. Don't suspect for a minute that he meant to obey the law, or that any of them that belonged to the association, planned to accomplish their purpose lawfully. We can't do that. Why, that is attributing a decent motive to a person. You mustn't ever do that. You must not ever assume that people have any decency or integrity in their make-up. Attribute the dirty motive always. Charge them with having a criminal intent. Say that they meant to break the law. Don't for heaven's sake let anyone suspect that you can see that they might have intended to the thing lawfully, which they could have done.
So, we have this interpretation on the purposes of the Waterworks Park Improvement Association, that they filed their articles of association in Lansing as a mere subterfuge, camouflage; that their by-laws meant nothing; that every solitary member was actuated by a desire to do violence to the Negro, and they had no other purposes.
"A Scheme for Forcing Colored People into White Neighborhoods"
Well, I suppose, I could make some remarks about the National Association for the Advancement of Colored People. Well, if I did, here is what I would say about them. They are a high-minded, well-meaning, altruistic group of people who are trying to better their own race. I admire their standards. I admire their personnel. I respect their purposes. That is what I have got to say about the colored organization. I think they are a fine body of men and women, who are doing an immeasurable amount of good for their own people. If they are the type of mind of some other people, I could say the National Association for the Advancement of Colored People was just a trick. It is just a scheme for forcing colored people into white neighborhoods. It is just a scheme for grabbing public offices for colored people. It is just a scheme for securing marriage with the white race.
[There followed a lengthy objection from the defense: ed.]
Now, I don't want you to gather any inference that is unfavorable to the accused from anything that I have said about the National Association. Not a bit, nor that is unfavorable to that Association. Oh, you see my point, just difference in breadth of view. That is all.
MR. DARROW: I do not believe you see our point now. Do you want me to tell you quietly what I think?
MR. TOMS: Suppose I change the subject. Will that do it?
MR. DARROW: Oh, well, I have a high regard for your honesty, and I do not believe you see just exactly what I do.
MR. TOMS: Tell me.
(The conversation was inaudible to the reporter.)
MR. TOMS: Well, I probably haven't got the point of it. But I am perfectly willing to attribute to the colored organization the highest motives. I don't for one minute suspect them of any subterfuge. I will take their by-laws at face value. I will subscribe to their constitution without thinking for one minute there is any secret or undisclosed purpose which doesn't appear in their by-laws. Well, that is that.
"Let Us Talk About Stones and Things"
Now, let us talk about stones and things. I want to show you a picture of that house that has been bombarded—wait, I will quote this verbatim—bombarded by an infuriated mob for two whole days and two whole nights.
MR. DARROW: Who said that?
MR. TOMS: You. "Besieged," "besieged," not bombarded. You said, "besieged." There is a house with thirty windows in it (indicating). There is a house with thirty windows in it, that was besieged by a hostile mob for two whole days and two whole nights, and this picture was taken at the end of that period, the next day, thirty windows, and the sum total of all the damage resulting from the siege, by the hostile mob, is one pane of glass, three by ten inches, broken. What a trifle bargain for a human life, only one pane of glass worth a quarter, for a human life. Well, if the stones were pouring in on this house, as some people have said, where did they land? How did all but one of the thirty windows escape this infuriated mob which was bent on the destruction of this place, not a blade of grass trampled? The hedge in perfect condition, the rose-bush in bloom at the side of the house, and this place overrun by an infuriated mob for two days and two nights!
[Toms develops this theme in a long omitted passage, during which he also argues that the defendants' statements to the police were not coerced: ed.]
Now, it has been claimed here that the police were in cahoots with the crowd, in sympathy with the crowd, and yet, the police didn't lend the crowd assistance. They kept them moving. It is admitted that they kept them from coming on the other side of the street, either street, where the Sweet house was. Now, if the police were in sympathy with the crowd, and wanted to see them do any damage to this house, how easy it would have been for the officer who was on the west side of Garland to have let people slip past him, and to have let a crowd congregate in front of this house. How easy it would have been for the inspector, if he was in sympathy with the crowd, to have sent two or three men down there.
Does his going down there in person indicate that he wasn't interested in the situation? Does the fact that this superintendent of police himself went out there, the deputy superintendent, indicated that he didn't take the situation seriously enough, or used every other reasonable effort to afford protection for this house?
Of course, I can see where the people on the other side of the
street might have some complaint, that they were not afforded any protection.
I can see where they might very justly complain, but nothing was done to
protect the neighbors who were using the public highway on the other side
of the street. There were no officers put in the Sweet house to see
whether or not that mob was dangerous, or threatening, or armed.
We can see where the white people along Garland Avenue have pretty serious
grounds to complain, but nothing was done to see that they were protected
from being shot from a mob–and ten is a mob!–which was armed, and barricaded
inside of a house, but I don't see what grounds they complain at all in
the house for.
The crowd was kept moving—unless they think that the street should have been clear, and that everyone who presumed to use the public highway that night, who was so officious as to dare to put their nose outside of their own doors that night—unless it can be claimed that they should have been driven indoors, and herded into their houses, and their windows closed, and perhaps shutters drawn, and barricaded, so that they couldn't look out, or throw stones out, or shoot out. It seems to me that is the only other thing that the police may have done.
Mr. Darrow complains that no one was stopped and asked, "What is your business here?" Well, just what right did the police have to ask citizens walking on the public highway in their own neighborhood, or standing on their own porches, or lawns, "What business have you got here?" . . .
Now this crowd is said to be hostile, and yet after one of their number had been killed and another one wounded and the lights were turned on in the house and the shades were up and the colored people inside were exposed to view, not a finger was laid on that house. No one returned the fire. No one attempted to hurt the Negroes inside. No stones were thrown through the windows. No one went on the property of the Sweets even after the shooting, even with that provocation, with that which must have stirred the crowd, if anything would. They still maintained themselves as a lawful assemblage. They did not retaliate. They did not seek revenge. They did not formulate any attack, with the shades up and the lights on and the people who had done the firing in plain view. How hostile was that crowd? If ever there was an example of self restraint, even by a mob, there it was.
"Mr. Darrow's Attempt to Pervert the Testimony"
Now just as an example from Mr. Darrow's attempt to pervert the testimony for the sake of working on your sympathy, he drew a picture here of these colored people besieged for two days and two nights. What did he say? Ten blacks penned in this house for two days and two nights, with a surging mob around them. I don't remember what Henry Sweet—
MR. DARROW: I referred to the evening.
MR. TOMS: Two days and two nights does not refer to the evening. That is just what you said. I take what you mean from what you say. And we can assume that the jury will do the same. Henry Sweet was not penned in the house for two days and two nights while he was buying his furniture and attending to his practice. Mrs. Sweet was not penned in the house when she went with him. Davis and Otis Sweet, who did not come there until the night of the 9th in an automobile, they were not penned in the house for two days and two nights. Where is your mob surging around them? When they moved in? No. When Henry Sweet was out on the porch reading his book. No. Any time during the day of the 8th or 9th was there a mob surging around them? No. They did not even claim that themselves. The testimony of the defense does not say that. Nobody says that except Mr. Darrow who tells you that he wants to stick to the testimony. Well, he did not do it then and he did not do it when he said that Mr. Andrew testified that Breiner was at the meeting over on the school house yard, the meeting of the Waterworks Park Improvement Association. Mr. Darrow has been going through the testimony ever since trying to find something which would justify that statement to you that Breiner attended that meeting of the Waterworks Park Improvement Association. . . .
"Two Holes Made by Stones Or Eight Holes Made by Bullets?"
Now, let us talk about holes. We found two of them in the Sweet house, both in one pane of glass three by ten made by stones. We find eight of them made by bullets in the houses of people around the neighborhood. Where do you think the odds were? Two holes made by stones or eight holes made by bullets? Talk about odds and advantage. Who had the better show for his life that night? Let us look. There are two boxes of stones. We will give those to the crowd outside. We will do better than that. I will ask you please, unless there is some legal objection that you won't interrupt, would you mind? . . .
What are the odds, gentlemen? Who had the even break that night? The people with those guns and that ammunition secure in the darkness behind the walls of the house with the lights out, or the people out on the street in the open, in daylight, with a lot of little stones? What a miracle it is that only two people were casualties that night.
"A Defense That Could Be Made for Any Negro Charged with Crime"
Now the defense that has been presented here is a defense that could be made for any Negro charged with crime. It could be said of any defendant, if he is a Negro, just what has been said here in behalf of Henry Sweet. This is going to be a standard set defense for any Negro involved in an altercation concerning a white man. Now let me ask you this. Suppose you bring a verdict of "Not guilty." Someone comes to you afterwards and says, "Mr. So and so, you were on the jury in the Sweet case?" "Yes, I Was." "You found him ‘Not guilty'?" "Yes." "Well, then you must have found that Breiner deserved to be killed?"
MR. DARROW: I object to that statement. It does not follow at all.
MR. TOMS: Now, is there a legal objection to it, or do you just disagree with my conclusion?
MR. DARROW: You haven't any right to make a statement that is not justified by the evidence; that, as a matter of law, does not at all follow that a verdict of not guilty would be returned in this case would mean that Breiner was to blame.
MR. TOMS: Well, all right. I will withdraw the statement rather than leave it open to the suspicion of being unfair. . . .
Conclusion: "What Did Breiner Do to Forfeit His Life?"
A verdict of "Not guilty" in this case means this, that Breiner came to his death without anyone's breaking the law; that Breiner came to his death without anyone's unlawful act. Well, for what reason are people deprived of their lives? For what reason are people deprived of their lives without the law being broken? They forfeit them for some misconduct of their own. What did Breiner do to forfeit his life? Was he careless? Was he malicious? Was he criminal? Did Breiner do something from which you can say his death was his own fault? And that nobody is to blame for it?
Let us see what he did. Breiner walked out of his house. He had a right to do that, didn't he? He goes down the street to the store. Has he done anything yet for which his life should be taken? He walks back up to the Dove house and stops to talk to some of the neighbors. What is done so far? He stands at the corner of the Dove porch smoking his pipe, talking to a neighbor with his back to the Sweet house. Was he making an attack on the Sweet house? With his back turned toward it, was he threatening the Sweets by turning his back on them? Did he constitute an imminent threat, pressing and immediate danger to the Sweets by standing 104 feet away from them smoking his pipe, talking to a neighbor? Tell me if you can, one overt thing Breiner had done in this case which justifies the taking of his life?
Does it mean that men can't do what Breiner did that night without being shot? Does it mean that Breiner has violated any law for which he deserved death? Did Breiner harm someone for which he should suffer as he did?
Now Mr. Darrow asked you if you had your choice between going out here and having your leg cut off by a street car, or being a Negro which would you choose? If you had your choice between losing your hearing or your eyesight and being a Negro, which would you choose? If you had your choice between being Leon Breiner today and being a Negro, which would you choose?
"How Do People Lose Their Civil Rights, Any of Them?"
I want to talk about civil rights just a second. There is one civil right that is more precious than all the others that you can think of and which no man surrenders except at the command of his God or his Country, and that is the right to live. When John Hancock and five others of our forefathers signed the Declaration of Independence, they affixed their signatures to one eternal principle upon which this country is founded and that is this doctrine: All men are endowed by their Creator with certain inalienable rights, and among these is the right to live, the right to life, liberty, and the pursuit of happiness. I have not any doubt that in setting out these inalienable rights our forefathers put the most important one first, because without that right, all the others are of no importance. An inalienable right to live first, and then liberty and the pursuit of happiness or the right to live where you please follows.
Let us ask ourselves, What has Leon Breiner done to be deprived of this fundamental, inalienable right to live? How do people lose their civil rights, any of them? They lose them by their own misconduct, by their own breach of the social rules under which we elect to live. That is the only way they lose them. Now, had Breiner committed some outrage that his right to live should be taken away from him, and if so what? What outrage has he committed? And have it taken away from him without any chance to defend it. You can't take away a man's liberty without giving him his day in court, without giving him a chance to defend himself and be heard. You can't take away a man's property without due process of law.
What due process of law or chance to be heard did Breiner have before his right to live which is so much more important was taken away from him? Which is the more important, gentlemen, the right to live where you please, the right to live in a certain neighborhood, the right to live in a certain house, or the right to live at all? Certainly the latter. Breiner, had he been given a chance to state would have said, "I will live anywhere. I will live anywhere in this world, but let me live. I won't insist on living ion Garland Avenue or Charlevoix, if you are going to kill me if I do. I will live anywhere, but oh, let me live." Now, let us not be misled as to the real issue here.
MR. DARROW: I want to take exception to this. I don't know how much more of this there is. I was waiting to get through with it. I want to take an exception to that statement. It has not the slightest bearing upon this case. It is utterly fallacious and untrue. It might just as well apply to a pure accident or to a man who is killed while someone is defending himself, or run over by an automobile. Breiner's right to live has not the slightest thing to do with the facts of this case. It is simply a question of whether these defendants, purposely under the rules of law, took somebody's life. Somebody is not necessarily guilty because another man loses his life. I want to take an exception to it.
THE COURT: You may proceed.
MR. TOMS: Let us not be misled as to what we are to determine
here, what the real issue of this case is. We are not trying a group
of hoodlums in Chicago, nor a mob in Tulsa, Oklahoma, in 1910, or in Chicago,
or East St. Louis, or Orlando, Florida. [Toms refers to Ossian Sweet's
testimony, in which he had mentioned some notable anti-black riots after
World War I. The Tulsa riot was actually in 1921; a notorious massacre
of 1923 occurred in Rosewood, a town just outside of Orlando where Dr.
Sweet grew up: ed.] We are not fundamentally concerned with the
prominence or distinction of the defendants or their witnesses, or any
organization which sponsors them. It is not so important to us that
Doctor Sweet was once a good waiter or worked as a bell-boy, or that he
studied medicine in Europe, or graduated from Wilberforce University.
That is not of much importance here. This is all a smoke screen,
gentlemen, thrown out to hide the real question to be decided here, and
that is who was responsible for the death of Leon Breiner? On whom
should the hand of guilt be placed?
Back of all your sophistry, gentlemen of the defense, back of all your transparent philosophy, back of your prating of the civil rights, and your psychology, and your theory of race hatred, and fear, and slavery, back of all that rise the dead body of Leon Breiner with a bullet hole in his back. You can bury it if you will, or if you can, beneath all the copies of "The Crisis" and "The Defender" and "The Independent" and the other committees' reports in the world; bury it if you can, and still out from under that avalanche appears the mute face of Leon Breiner and the lips are forever mute. All your specious arguments and all your beautiful ingenuity born of many years of experience, and all your sociological theories and all your cleverly conceived and manipulated race psychology, can never dethrone justice in this case.
Leon Breiner, just a poor insignificant American citizen, just one man in thousands, but a living human being with a right to live, without aspirations and with hopes and with ambitions, and with the God-given right to work them out, Leon Breiner, chatting with his neighbor at his doorstep, is shot through the back, from ambush, and you can't make anything out of those facts, gentlemen of the defense, or gentlemen of the jury, but cold-blooded murder.
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