Capone & Caponies

Alphonse Capone cocked one blue-clad leg over another blue-clad leg in Chicago's Federal Court last week, and every newshawk in the courtroom* gasped in amazement. Snorkey wore no garters.

As acutely sensitive to Snorkey Capone's sartorial condition as the newshawks were: the jury that was trying him for attempting to evade payment of a $215,000 Federal Tax on $1.038,000 income from 1924 to 1929; Judge James Herbert Wilkerson; Prosecutor George Emmerson Q. Johnson; Defense Attorneys Michael Ahern and Albert Fink. After hearing Snorkey linked to Cicero gambling houses ("gold-belching pits of evil" to eloquent Michael Straus of the New York Evening Post) and hearing accounts of lavish personal and household expenditures in Florida (TIME, Oct. 19) the judge, the jury and the reporters had been treated to a detailed description of the rich raiment in which Gangster Capone clothed himself. Eleven rustic jurors and one from the city had listened, gaping, to witnesses who told about the $135 suits he bought by the half-dozen, the $27.50 shirts ordered by the dozen, the $20 hats & shoes, $150 overcoats, the 30 diamond belt buckles for which he had paid $275 each.

The newshawks looked temporarily baffled, then went out and began writing stories about who would succeed Snorkey as gang chief. Consensus was that it would be cocky, sleek-haired Hymie Levin, not his quieter lieutenant, Murray Humphries. Editor Jack Leach of The Daily Northwestern, student paper at Northwestern University, published an editorial entitled "Get This, Capone," warning Snorkey not to attend any more football games.

Next move for the prosecution was to call bald, bespectacled Fred Ries, who testified he handled the finances of four Cicero gambling houses, gave the checks to wizened little Bobby Barton, chauffeur for Jack Gusick, Capone's "financial secretary." Barton, known as "The Little Man," did not testify, but kept popping in & out of court to be identified. Snorkey seemed interested in Ries's testimony, caused spectators to recall gossip that gangsters were looking for him since he helped to get Gusick a five-year sentence. A handwriting expert identified Capone's signature on one of the checks Ries said were gambling profits. Up jumped Prosecutor Johnson, spoke his first words of the trial:*

"The Government rests."

The Defense was not ready. Sadly, indignantly Lawyer Fink protested that it was unfair to give him no warning. Judge Wilkerson was unimpressed, said the defense would have to be ready by 10 a. m. next day.

By 10 a. m. Lawyers Ahern & Fink had assembled eight bookmakers with shiny shoes. To them Snorkey was no smart gambler. One William Yario said Snorkey had lost some $50,000 in two years to him. Bookie Sam Gitelson thought his profits were $25,000. Bookie George Lederman took another $25,000. Bookie Milton Held got $35,000. A sharp-eyed hunchback named Oscar Gutter swore he had won $40,000 from Capone; Harry Belford, better known as "Hickory Slim, the Dice Guy," $25,000. Other bookmakers got smaller amounts. Altogether Snorkey's fondness for playing the Caponies seemed to have cost him some $200.000. Snorkey smirked, did not seem ashamed. One Bud Gentry breezed up on the stand, recalled that Prizefighters Sharkey & Stribling and Mrs. Tex Rickard had been Capone's guests in Florida, said that at the end of the 1929 racing season he had won $110.-000 from Snorkey. He could not remember any of the horses Snorkey had bet on. The defense rested.

During much of one day's testimony Snorkey had his eyes on slim Beatrice. Lillie, who sat with the reporters. He wanted to meet her, but his lawyers objected. Chirruped Actress Lillie: "Well, I wasn't billed, but if pressed I'll sing a song for you."

Argument. Assistant U. S. Attorney Jacob I. Grossman estimated the Capone income at $120,000 in 1924; $250,000 in 1925; $195,000 in 1926; $220,000 in 1927; $140,000 in 1928; $104,000 in 1929--total $1,029,000. Declared he: "When they [the defense] put those gamblers on as witnesses they admitted that we had proved our case. Why prove deductions if we have not proved income?"

Mr. Fink, still feeling hurt, thought the language of the indictment was "vague, indefinite, uncertain," felt that a great injustice had been done to Snorkey in charging him with "attempting" to evade tax payments. Snorkey, he said, had only "omitted" to do his duty. In Washington, Treasury officials punched a hole in Snorkey's only defense by pointing out that race track losses could not be deducted from his income. If he lost consistently, they explained, the money he lost must have come from other sources than the track, and therefore he must pay income on it. Lawyer Ahern deplored the "great public clamor" against Snorkey, called him a "mythical Robin Hood." Prosecutor Johnson indignantly insisted the Government was presenting the case with "high purpose."

Charge-Judge Wilkerson hitched his chair toward the jury box and leveled his bushy brows at the jurymen, to deliver his charge. Excerpt:

"Mere failure to file an income tax does not constitute 'attempt' to evade or defeat the tax. ... To convict you must find beyond reasonable doubt that there was intent to defraud and also some act done in furtherance of that intent. . . ."

Snorkey looked blissfully contented as the jury filed out. In a bright green suit ($135) and green-spotted tie he stood in the corridor and smiled. Also pleased with Judge Wilkerson's dispassionate charge were Counsel Ahern & Fink. A moment later Snorkey disappeared. It was 2.40 p. m.

Verdict-At 10:50 p. m. the jury was ready, but Snorkey was nowhere to be seen. Lawyer Ahern rushed to a telephone. Fifteen minutes later in popped Snorkey, panting, sweating. He tossed a green coat & hat on the counsel table, mopped his fat head with a green handkerchief. In came the jury.

"We, the jury, find the defendant guilty on counts i, 5, 9, 13 & 18 in the second indictment, and not guilty on counts 2, 3, 4, 6, 7, 8, 10, n, 12, 14, 16, 17, 19, 20, 21 & 22."

Judge Wilkerson looked puzzled. So did Messrs. Ahern & Fink. "Inconsistent," mumbled the prosecution. Snorkey grinned broadly.

Soon the meaning of the verdict became apparent. The jury had decided Snorkey feloniously "attempted to evade & defeat" the income tax in 1925, 1926, 1927, but in 1924 & 1928 he only "failed" to pay up. The jury apparently thought he had tried his best in 1929.

The prosecution huddled and counted up. For each of the two years Capone had merely neglected to pay his tax, he might be sentenced to a year in the penitentiary; for each of the other three years he could be given a five-year sentence; on every count he could be fined $10,000; total, 17 years, $50,000. Inconsistent or not, the Government was satisfied with the verdict, moved to attach his worldly possessions in lieu of the $215,000 he owed.

Snorkey did not think Judge Wilkerson would give him the maximum penalty. He grinned in all directions around the courtroom, then got to his feet, hurried to an elevator, descended to the street, jumped into a waiting automobile and disappeared into the sprawling city whose thousands of illicit night haunts were his Empire.

* Among them: a representative of the Christian Science Monitor, which seldom prints crime news.

* Not in five years has Prosecutor Johnson argued a case in court, except to sum up.

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