Capone: The Life and World of Al Capone

by John Kobler

The hero's father lived to see none of these honors conferred. On November 8, 1939, while driving along Chicago's Ogden Avenue, he was killed by two men firing shotguns from a passing car. They were never identified. The objects the police removed from O'Hare's pockets included a rosary, a crucifix, a religious medallion, a note he had written in Italian and a doggerel verse clipped from a magazine. "Margy, Oh, Margy," the note read, "Quanto tempo io penso per te. Fammi passar una notte insieme con to [How often I think of you. Let me spend a night with you]." The verse went:

  The clock of life is wound but once And no man has the power To tell just when the hands will stop At late or early hour. Now is the only time you own. Live, love, toil with a will. Place no faith in time. For the clock may soon be still.

  On the eve of the trial Damon Runyon, who was reporting it for Hearst's Universal Service, wandered into Colosimo's Cafe, saw Capone at a table with a group of gangsters, politicians and lawyers, and, having known him in Florida, joined the party. How did Capone estimate his chances? he asked. "I believe I've got at least an even break," replied the resilient gang lord.

  He upbraided the press for its exaggerations. "It would have been utterly impossible for me to have done some of the things charged to me. Physically impossible. . . . Racketeer! Why, the real racketeers are the banks."

  Runyon noted in his dispatch next day: "It is impossible to talk to Capone without conceding that he has that intangible attribute known as personality, or, as we say in the world of sport, `color.' "

  Tuesday, October 6

  Squad cars carrying fourteen detectives convoy Capone the three miles from the Lexington Hotel north to the Federal Court Building. The lead car pauses at each intersection while its occupants survey the side streets for signs of friends or foes who might attempt to rescue or kill Capone. "Nobody's going to zuta anybody around here if we can help it," says the chief of detectives. Approaching the Federal Building, the motorcade turns into a tunnel, normally used only by delivery trucks, that ends at a basement entrance. The detectives guide Capone through an underground labyrinth to a freight elevator. The sixth-floor corridor is kept clear until he has entered the courtroom.

  When the first venireman's name is called, Capone's face clouds. The name does not appear on the copy of the list he had obtained. At the last minute Wilkerson has nullified any possible subornation by the simple expedient of switching panels with a fellow judge.

  As the selection of jurors proceeds, Capone bleakly studies the decor. A white marble dado, trimmed with gilt, rises halfway up the walls. Above them are murals depicting scenes from American colonial history. Behind the judge's bench Benjamin Franklin addresses the Continental Congress, his right hand outstretched toward George Washington. The windows are too high and narrow to admit enough light, and electric bulbs in the chandeliers and sconces burn all day. Phil D'Andrea fusses over Capone, when not glowering at the jurors, flicking a piece of lint from his master's mustard-brown suit, adjusting his chair closer to the counsel table.

  Judge Wilkerson wears no robes over his dark-blue business suit. His iron-gray hair is tousled. As he questions each venireman at length, he sits on the extreme edge of his swivel chair. In striking contrast with his colleagues, U.S. Attorney George E. Q. Johnson (he adopted the "Q" to distinguish himself from innumerable George Johnsons) has the look of an esthete. His silken gray hair, parted straight as a ruler down the middle, lies on his high-domed head like birds' wings. His complexion is rosy, his mouth thin and sensitive. Four assistant U.S. attorneys sit at his table-William J. Froelich, Samuel G. Clawson, Jacob I. Grossman and Dwight H. Green (the last a future governor of Illinois) -and Johnson entrusts the examination of witnesses to them, content to remain the silent strategist.

  By 4 P.M. the jury has been empaneled. It consists chiefly of smalltown tradesmen, mechanics and farmers, who have sworn that they harbor no prejudice against the defendant, no wish to see him imprisoned.

  Wednesday, October 7

  The government's first witness, an Internal Revenue clerk, testifies that Capone filed no returns for the years 1924-1929. Chester Bragg follows him to the stand to repeat Capone's admission of ownership during the Smoke Shop raid. A pale, nervous Shumway then tabulates the Smoke Shop profits during his two years as its cashier. They exceeded $550,000.

  Thursday, October 8

  Assistant U.S. Attorney Clawson submits in evidence Lawyer Mat- tingly's foot-in-mouth letter to Agent Herrick. "A lawyer cannot confess for his client," objects the portly Fink. "When my client conferred power of attorney in this case to enable him to keep out of the penitentiary, it did not imply the power or authority to make statements that may get him into the penitentiary."

  "It might have that effect ultimately," remarked the judge.

  Oh, my conscience! In his dismay Fink mingles wrestling and Biblical allusions. "This is the last toe. They have got him nailed to the cross now. This is putting the last toe on him."

  Ahern interjects: "The Supreme Court has often held that it is human nature to avoid tax. We had a Boston tea party-"

  "I suppose," says the judge, "this is a Boston tea party."

  But Capone's hopes still burn bright. How can lawyers who charge such fees, who have saved him time and again, fail him now? In the evening, at the Lexington, a tailor measures him for two lightweight suits. "You don't need to be ordering fancy duds," says Frankie Rio. "You're going to prison. Why don't you have a suit made with stripes on it?"

  "The hell I am!" Capone retorts. "I'm going to Florida for a nice, long rest, and I need some new clothes before I go."

  Friday, October 9

  The wholesale price of alcohol has jumped from $30 to $32 per five-gallon can. The Chicago Herald-Examiner ascribes the rise to the cost of Capone's defense.

  The public relations council for the Protestant Churches drops a hint to its clergymen: The reason they receive less publicity than Al Capone is because they are so much less picturesque.

  A spectator advances to the counsel table and grasps Capone's hand. "I'm Benjamin Bachrach, public defender," he says.

  An athlete from Kiel, Germany, pausing in Chicago on a roundthe-world walking tour, asks Capone, through an obliging court attendant, if he will sign his "memory book." "I've signed too many things," says Capone. "Tell him no."

  D'Andrea takes his customary seat behind Capone and fixes his dark, piercing eyes on the witness stand.

  Dwight Green calls the government's first Florida witness, Parker Henderson. Squirming under D'Andrea's gaze, he testifies to the Western Union money orders he picked up for Capone, to the purchase of the Palm Island house and the addition of shrubbery, a boat dock and swimming pool. The small chalk-white man who mounts the stand next betrays intense anxiety. He is John Fotre, manager of the Western Union office in the Lexington Hotel, from which many of the money orders were telegraphed. Though cooperative in pretrial examination, he now claims he doesn't know who sent them. Judge Wilkerson speaks to him sharply: "You better think this over."

  After the court recesses for the day, Wilson reproves the frightened witness. "What can you expect," says Fotre, "when they let one of Capone's hoodlums sit there with his hand on his gun?"

  He has no need to name the hoodlum. Wilson details Sullivan and Mike Malone, who has finally dropped his disguise, to verify the charge.

  Saturday, October 10

  The two agents enter the crowded elevator behind D'Andrea. Malone brushes against him and nods to Sullivan. He has felt the contours of a revolver.

  When the agents report to Wilkerson, he enjoins them from any action that might affect the witnesses yet to testify. They must handle D'Andrea outside the courtroom, and he will adjourn the trial for a few minutes during the morning session while they do so.

  At a prearranged signal a bailiff notifies D'Andrea that a messenger is waiting in the corridor with a telegram for him. As the bodyguard leaves the courtroom, the agents, hard on his heels, hustle him into an antechamber, seize his revolver, and
turn him over to the police. Claiming the right to carry concealed weapons, he flourishes deputy sheriff's credentials, such as those several Capone lieutenants carry.

  "Your Honor," Ahern pleads later, trying to mollify judge Wilkerson, "this defendant has taken care of his mother and sisters. To me, he is a high class boy. I like him. . . . If Your Honor understood D'Andrea's mind and his heart, you would know that he did not mean any affront to the Court."

  Wilkerson finds D'Andrea guilty of contempt of court and sends him to jail for six months.

  The procession of witnesses who have sold things to Capone and can contribute to the picture of his net worth and net expenditure is a long one, and their testimony consumes two all-day sessions. There are the butchers and bakers, the real estate agents, the decorators, furniture dealers, building contractors, tailors, jewelers. . . .

  One of the Miami contractors, Curt Otto Koenitzer, settles himself into the witness chair, smoking a cigar. A deputy marshal takes it from him (laughter). After his brief testimony-Mrs. Capone paid him $6,000 for his work on the bathhouse and a garage-Koenitzer retrieves his cigar to the huge amusement of the audience and exits grinning.

  In the corridor a pretty brunette witness from the Miami Western Union office expresses disenchantment with Chicago. She hardly considers the trip worth her time even at government expense. "What do y'all do for excitement up here?" she asks.

  Tuesday, October 13

  "When counsel speaks of Al," says judge Wilkerson to Fink, "I assume he means the defendant."

  "Yes. Is Your Honor affronted?"

  "I think I should prefer the term defendant."

  Fink feigns shock when the next witness, a former Internal Revenue agent, admits that in the course of investigating Capone he drank beer with him in a Cicero speakeasy. "Beer," he repeats without shame. "Good beer, too."

  Wednesday, October 14

  The Anglo-Italian historical novelist Rafael Sabatini, about to embark on an American lecture tour, concedes Capone to be "a center of that atmosphere of treachery, intrigue, shots in the dark and raw power in which historical romance best grows," but disqualifies him as a proper subject for the genre because "he seems really to have no ideals." The future writer of historical romances, Sabatini predicts, will probably find Mussolini the most inspiring personality of his day for "the power and the intrigue are there, and the ideal with them."

  The last important prosecution witness is Fred Ries, who implicates Pete Penovich, Jimmy Mondi, Frank Pope, Jake Guzik and Ralph Capone, as well as the defendant, in the affairs of the Smoke Shop.

  Thursday, October 15

  A nonagenarian veteran of the Civil War, wearing his old blue uniform and medals, totters up to the bench with a bouquet of faded flowers for the judge. He is ushered to a front-row seat, where he soon falls asleep, not to awake until the adjournment.

  The principal defense argument centers on Capone's misfortunes at the racetracks. As Fink tells it, no unluckier gambler ever placed a bet. He nearly always lost. Eight bookmakers estimate the increasingly large sums Capone paid them year after year, ranging from $12,000 in 1924 to $110,000 in 1929. It seems that practically all the money the government claims he made out of his gambling houses the bookies took away.

  Oscar Gutter, a Chicago bookie, who keeps his derby on until the judge tells him to remove it, testifies to a $60,000 loss by Capone in 1927. Asked under cross-examination how he remembers, he replies: "My ledger showed that at the end of the season."

  "I thought you didn't keep any books," says Green.,

  "Well, I kept them from month to month so I could pay my income tax." (Laughter)

  "Why didn't you keep them permanently?"

  "Well, it was an illegitimate business."

  Joe Yario, a self-styled "gambling broker," operating in a Chicago "soft drink parlor" (his euphemism for "speakeasy"), refers airily to "two, three, ten thousand dollar losses," but cannot specify a single individual bet.

  Judge Wilkerson: "Do you know what it is to remember anything?"

  Yario: "I never kept no books."

  Budd Gentry, a Hialeah bookie, is asked by Dwight Green to name the horses Capone backed in 1929 for a purported loss of about $10,000 each. He shakes his head.

  "Can you give the name of just one horse that the defendant bet on?"

  "I have five or six in mind, but they just won't come out."

  In any event the argument is futile, a grasping at straws, for taxpayers may deduct gambling losses only from gambling winnings, and Capone's lawyers insist that he hardly ever won. All the bookies' testimony shows is that he did receive income totaling, during the year in question, at least $200,000. For the additional income, evidenced by his possessions and expenditures, the lawyers advance no plausible explanation.

  Torrio, who has been sitting quietly apart since the first day, is expected to testify, but the defense counsel never calls him. Nor do they call Capone.

  Friday, October 16

  There is a flurry among the spectators as Beatrice Lillie, the chief attraction of The Third Little Show, playing at the Great Northern Theater, visits the courtroom with her husband, Lord Peel.

  Prosecutors Grossman and Clawson between them recapitulate the government's evidence. Fink then leads off the defense summation. "Suppose Capone believed that money he received from so-called illegal transactions was not taxable," he asks the jury, "suppose he discovered to the contrary and tried to pay what he owed, would you say he ever had an intent to defraud the Government?" He paused and gazed fondly at his client. "No, and neither would I. Capone is the kind of man who never fails a friend."

  The defendant swallows hard, and his eyes fill.

  Ahern continues the summation with an historical analogy. "In Rome during the Punic Wars there lived a senator named Cato. Cato passed upon the morals of the people. He decided what they would wear, what they should drink, and what they should think. Carthage fell twice, but Carthage grew again and was once more powerful. Cato concluded every speech he made in the Senate by thundering, `Carthage must be destroyed!' These censors of ours, these persecutors, the newspapers, all say, `Capone must be destroyed!' The evidence in this case shows only one thing against Capone-that he was a spendthrift. . . ."

  Saturday, October 17

  Reporters and spectators have been impressed by the diversity, richness and colors of Capone's wardrobe. In the eleven days of the trial he has worn as many different ensembles, ranging from light browns through grays and blues to a climactic grass green on this, the final day.

  Johnson, speaking at length for the first time, winds up the summation for the government. His winglike coiffure flapping with the vehemence of his emotions, he assails the Capone legend. "Who is this man who has become such a glamorous figure? Is he the little boy from the Second Reader who has found the pot of gold at the end of the rainbow that he can spend money so lavishly? He has been called Robin Hood by his counsel. Robin Hood took from the strong to feed the weak. Did this Robin Hood buy $8,000 worth of belt buckles for the unemployed? Was his $6,000 meat bill in a few weeks for the hungry? No, it went to the Capone home on Palm Island to feed the guests at nightly poker parties. Did he buy $27 shirts for the shivering men who sleep under Wacker Drive? . . ."

  Capone casts despairing eyes around him, as if appealing to the audience against such gross injustice, he who has performed so many good works.

  Without using the terms "net worth" or "net expenditure," Judge Wilkerson expounds the principles underlying them in his charge to the jury. Regarding the crucial Mattingly letter, he explains: "The statements of a duly authorized agent may be proof against the principal the same as if he had conducted in person the transaction in which the statements were made . . . if you find that under the power of attorney and the authority, if any, given at the interview in the revenue agents' office, considered with all the other facts and circumstances shown here in evidence, Mattingly was employed to get together information and to make an estimate and to g
ive his opinion thereof to the bureau, then the fact that Mattingly made a statement as to what his opinion on that subject was is a fact to be considered by you. .. .

  The jury retires at 2:40 P.M.

  Capone stands in the corridor, forcing a smile now and then at people who stare at him from behind a cordon of guards. When night falls and there is still no word from the jury, he decides to wait at the Lexington.

  Watching the windows of the jury room from another section of the block-wide building, the reporters can see the shirt-sleeved jurors locked in debate. Shortly before eleven, almost eight hours since they entered the room, a burst of applause resounds through the sixth floor. The last dissenting juror has bowed to the majority.

  Notified by phone, Capone bundles himself into his overcoat, slaps on his fedora, and hurries down to his limousine. By eleven o'clock he has returned to his seat at the counsel table, sweating from the exertion, and judge Wilkerson is putting the question to the foreman of the jury, "Have you reached a verdict?" The foreman hands the bailiff a sheet of paper. The bailiff passes it to the clerk of the court, who reads it to the court.

  The verdict indicates a considerable muddle in the minds of the jurors, and it confuses prosecution and defense alike. On the first indictment for 1924 they vote not guilty. On three of the twenty-two counts in the second indictment-Nos. 1, 5 and 9, charging tax evasion in 1925, 1926 and 1927-they vote guilty. Guilty also on counts 13 and 18, charging failure to file a return for 1928 and 1929. On the remaining counts, all charging tax evasion, not guilty. The confusion arises from mutually exclusive verdicts covering 1928 and 1929. The puzzled attorneys fail to understand how Capone can be guilty of filing no returns (13 and 18), yet at the same time be innocent of tax evasion (14 to 22). Nevertheless, after conferring with the judge, Johnson lets the verdict stand undisputed. The defense counsel will file an appeal with the U.S. Court for the Seventh District, arguing that the indictments had failed to specify sufficiently the means Capone employed to evade income tax.