The Palace of Fashion - Trial
(Reprinted with the very gracious permission of the Don L. Griswold Trust and the Colorado Historical Society in cooperation with the University Press of Colorado, publishers of the History of Leadville and Lake County, Colorado: From Mountain Solitude to Metropolis by Don L. Griswold and Jean Hervey Griswold, Boulder, 1996, pages 1138-1145.)
Later in the morning (March 12, 1883) a large crowd gathered in front of the criminal court at 205 West Chestnut Street for the purpose of attending the opening day of the arson trial of the four Palace of Fashion employees Fred Butler, Isaac Kamak, Maurice Zippert, Reubin Weil and of Reinhold Rosendorf, a barber and close friend of Zippert. Great interest in the trial had been aroused by the many unanswered questions growing out of the East Chestnut Street conflagration and the death of one man in May of 1882. Most of the questions revolved around the origin of the fire------had it been for profit, arson for the kick of it to see which volunteer fire company could reach the blaze first, or had it been arson because of a personal grudge.
The reader will recall the verdict at the coroner’s inquest following the burning of the Palace of Fashion, Windsor Hotel and the Academy of Music had been “the deceased [afterward identified as Arthur Ballou] had come to his death by fire caused by parties unknown”; and at the inquest Fred Butler, the manager of the Palace of Fashion, had denied the accusation someone with a grudge against him had set the fire, but had said he had heard a man named Wilson did have ill-feelings against Thomas Kendrick, the manager of the Windsor, and had suggested the fire could have been set for the purpose of burning the hotel rather than the Palace of Fashion. The reader also will recall several witnesses appearing before the grand jury had testified the five men suspected of arson had been seen removing merchandise from the dry goods store both before and after the start of the fire; others that the blaze had been started with either coal oil or benzine, that the enormous amount and value of merchandise consumed by the fire had been exaggerated; and that some of the witnesses had shown a definite dislike of Jewish people in their testimony. As a result Butler, Kamak, Zippert, Weil and Rosendorf had been charged with arson by the grand jury.
At 10 A.M. Monday morning, March 12, 1883, their trial was begun, with Judge George Goldthwaite presiding, District Attorney H. C. Kellogg, M. L. Rice and Daniel Sayer the prosecuting attorneys, and Thomas D. W. Yonley, M. J. Waldheimer, both of Denver, together with G. G. White, Philip O’Farrell and Charles S. Thomas of Leadville the defense attorneys. Monday, Tuesday and part of Wednesday were given over to the selection of the jurors. Later on Wednesday the first witnesses called by the prosecution and cross-examined by the defense testified as to the estimated value of the stock in the Palace of Fashion at the time of the fire, placing it at $25,000, and on the amount of insurance carried on that merchandise. Next several of the prosecution witnesses, those who had been in the vicinity when the blaze had become noticeable, testified as to what they had or had not seen. They told how the fire had spread rapidly up the outside wall at the back of the Palace of Fashion building, and one of them, a workman at the Harrison Reduction Works, said the flames were the color of coal oil burning rather than of wood. None of them testified as to having seen any fire under the Palace of Fashion.
The last witness to testify on Wednesday was P. P. Brown, assistant to the deceased veterinarian, Thomas O ‘ Connor, at the time of the fire, who repeated most of what O’ Connor had testified to the coroner’s inquest. Brown then made an additional point, stating he had been paid to remain in Leadville until after the arson trial and for not saying anything that would identify the men he had seen going in and out of the Palace of Fashion on the night of the fire.
Testimony on Thursday from the witnesses who were at the fire or had escaped from the Windsor Hotel before it had gone up in flames detailed what they had seen, particularly about the removal of merchandise and account books from the Palace of Fashion and of the ledger from the Hotel Windsor. When Ben Wood took the stand he claimed he had seen the removal of some expensive-looking merchandise from the Palace of Fashion to the May & Schoenberg’s store.
Adding to the emotional atmosphere of the trial was the testimony of several witnesses claiming they had been offered bribes by men representing either the five defendants or the insurance companies or both. For example, witness M. A. Bowen said:
...Charles Hines and Sayer came to me and said they would make it worth my while if I stated all I knew. No one else offered me anything. I was told that the Jews would pay nothing, but that the insurance companies would.
As well as giving the day’s testimony, Thursday’s Chronicle also carried an article headlined BLACKMAIL in which the writer summarized the general attitude toward the Jewish people and the background of anti-Semitism, reviewed the history of the East Chestnut Street fire and described the sensation of the day; parts of the article are quoted below:
The people of the race that hung their harps on the willows and wept have been persecuted for centuries. Theirs has been an unhappy lot, but they have born it with an heroic fortitude which anyone should strive to emulate. They have accepted adversity with a smile, and prosperity with a dignity and grace proverbial of them. Scattered over every section of the world, they have by their indomitable perseverance, with but few exceptions, procured a home for themselves at least, and many have won their fame and fortune they so richly deserve Leadville has her quota of this ancient race, and they are counted among her most respected citizens. They have been highly esteemed by many of their fellow townsmen, but a few whose real character will be illuminated by the light of justice in a few days have made five of them the subjects of a blackmailing scheme, and a most infamous one at that. Some forms of blackmail are more reprehensible than others, but that which places men in the position of murderers cannot receive too severe punishment. Men have been charged with the perpetration of crimes they never committed, of arson and murder, but happily by the confession of one of the guilty parties they will, unless by an outrageous miscarriage of justice, be permitted to go free.
...It was openly declared by some that these five persons had burned the building to obtain a large amount of insurance, which, it was alleged, had been placed on the building. The parties named------were arrested on the charge of arson and murder, and held to bail. Nearly everybody is acquainted with what followed. Successive grand juries were tried in order that indictments might be found against the defendants, but these efforts were unsuccessful. At last indictments were returned, and the case of the people vs. Fred Butler et al. is now on trial in the criminal court. It has been asserted in some quarters that witnesses have been bribed and sent away in order that they might be unable to give testimony, and that efforts had been made to “fix” the jury, but these statements, as stated in THE CHRONICLE on Monday, will not bear investigation and are utterly without foundation.
Some time ago there was a member of one of the companies at the central station named J. H. Brogan. He had made for himself around town a somewhat unenviable reputation. Suspicion pointed toward his being connected with several incendiary fires, but he escaped punishment. A few months ago overpowering evidence was produced to show that he had burned a building [the Famous Shoe Store], and he was indicted for the crime of arson. Brogan was convicted and sentenced to imprisonment in the state penitentiary at Canon City for one year. He is now serving out his sentence at that rendezvous of the blue bloods of Colorado’s society.
A gentleman named I. M. Monash, without any aid whatever, went to work on the case. He endeavored to obtain employment for a party in some of the fire companies, but was unsuccessful. By keeping company with some of the central fire company when on their carousals, however, he managed to secure clues which led him to suppose that Brogan was one of the parties who burned the building [the Palace of Fashion]. He wrote to M. J. Waldheimer, esq., of Denver, and Henry Frankle, also of Denver. The result was that on the second day of March two strangers to the atmosphere entered the portals of Canon City penitentiary. One was M. J. Waldheimer, esq., of the law firm of Waldheimer & Jenkins, of Denver, a gentleman of eminent legal stature. The other gentleman was Henry Frankle, esq., of the firm of Frankle & Butler. They had an interview with Brogan, and “without force, intimidation or threat from any source whatever,” he made an affidavit implicating himself, Bryce R. Blair and Walter Wilson in the burning of the Palace of Fashion and Windsor hotel. What prompted such action can not be ascertained. ...A writ of habeas corpus has been gotten out by the defendants for Brogan, and is now in the hands of Sheriff Becker, and he will in all likelihood be produced as a witness for the defense before the trial ends.
Bryce R. Blair and Walter Wilson, the two other parties, are fugitives from justice. The former ran off with about $1,000, the property of his friends. The following is the affidavit made by Brogan before a notary public:
“STATE OF COLORADO, ss.
“COUNTY OF FREMONT,
“The People vs. Fred Butler et al.
“I, J. H. Brogan, at present confined to the Colorado state penitentiary, being first duly sworn according to the law, do voluntarily and without force, intimidation or threat, from any source whatever, freely make the following statement of facts in relation to the fire and burning of the Windsor hotel and Palace of Fashion, situated at Leadville, Lake county, state aforesaid, on the morning of the 19th day of May, 1882. I was in bed on the evening before, between the hours of 9 and 10 P.M., in the central fire station, at Leadville, and with me in the same bed was W. T. jackson, a brother fireman, with whom I slept. At about 10 P.M. I was woke up and called by Bryce R. Blair and Walter Wilson, who came to the door of the bedroom and insisted upon my going with them, as they said, to the ‘Comique’, to call the dances. I at first hesitated, but they persisting, I went with them down stairs, when Blair said he wanted me to put fire to the Windsor and Palace of Fashion. He said he had two beer bottles with him, which he proceeded to fill with oil from lamps in the fire station. He asked me to carry the oil, which I refused to do. We then all went out together, toward the Windsor hotel, and he went behind the wash house or laundry of the hotel, after I refused to go with him, and with a candle and a cigar box in his overcoat pocket.
“Blair waited for a light from the smelting works, in the rear of the Palace of Fashion, to see to go in under the building, and then he proceeded to scatter the coal oil on the floor and side of the wall of the Palace of Fashion. The cigar box he then filled with oil and paper, put the candle in the cigar box and lit it. He then came out from under the building and we all went over to the Central fire station. I then went into my room and went to bed, leaving Blair and Wilson. The reason why I make this statement is to relieve my mind and conscience of a burden that had oppressed it since the foregoing occurrence took place, and in the interest of justice and to prevent innocent persons from being wrongfully prosecuted.
“J. H. BROGAN.”
“Sworn to before me this 2nd day of March, 1883.
[seal] W. F. Baker
The publication of Brogan’s statement as to how and who had set the fire and how he reluctantly went along with Blair and Wilson caused a great deal of talk on the streets and in the saloons, arousing more interest than ever in the trial.
Thursday’s session closed and Friday’s opened with Policeman Harry E. Williams on the witness stand for the prosecution. He was the officer who Thomas O’Connor had found and talked with during the early stages of the fire. Williams’ testimony, with repetitions deleted, was reported in this manner:
Harry E. Williams was called to the stand and deposed------”I am a policeman here. I was at the fire which burned the Palace of Fashion. My attention was first called to the Palace of Fashion by Dr. O’Connor. I met him, and he said there was something wrong going on there. I went up near the rear of the building. A man skipped inside, and Mr. Zippert stood by the side of a box. I asked them what they were doing, and they said they were putting some goods in. It was about 1:30 in the morning. O’Connor and I went up Harrison avenue, and turned up Chestnut street. O’Connor went through the alley, and I started to go with him. He called my attention to two parties who were coming out of the Palace of Fashion. I turned and went toward the Palace of Fashion, and stood on the east side of the lower door on the north side of Chestnut street. Those two men were about six or seven feet from me. I opened my overcoat and I said: ‘What are you packing there? ‘ One had a bundle on his shoulder, and the other had a gunny sack. I think over his right shoulder. The man with the sack said it was washing he was taking to his room. They went through the alley towards O’Connor’s stable. I started after them and followed them out on State street. I remained at the corner of O’Connor’s stable. They continued through the alley, and I followed them as far as the rear of the Texas house. I went back to the stable and O’Connor and I went to Wyman’s and took a smile. We went to the Delmonico and I treated to cigars. I offered him my whistle in case he should see anything more and call the police. He did not take it. I left O’Connor there and went to the corner where the Little Church [Saloon] is. There was a man coming up Harrison avenue towards the First National bank across to the bank of Leadville, and then into Still-born alley. I followed him, and he had two bundles, but I lost sight of him. I called Dr. O’Connor and we hunted for the man but did not find him. I left O’Connor and went home, and I went to bed, and my wife woke me up stating that there was an alarm. I came down Oak street and got to the Palace of Fashion. I went in by the rear door, which I kicked open. I noticed at the rear end of the building a fire under the floor. I noticed a can full of coal oil on the floor. I saw a man carry a can of that description into the store. I do not know who it was who did that. That was when I first went into the alley. When I got to the fire the building that I was in was on the west side, and the principal part of the fire was in the south-west corner. One of the two men who came out on Chestnut street was a little lame, and he was the one who spoke to me...
“... I went to the Globe at 9 o’clock on the evening before the fire. I was with a man named Fluker... I cannot recollect who or what was being played...
After Williams’ testimony on Friday morning, the prosecution concluded its presentation of evidence against the defendants, then:
... The question of taking the case from the jury was discussed at length, on motion of counsel for the defense. The grounds on which the motion was based was that no evidence had been given which imputed in the least the burning of the building to any of the defendants. As no evidence had been given to connect Rosendorf and Wiel with the burning of the building, they were discharged. The case for the defense was taken up, and before the giving of any evidence M. J. Waldheimer, esq., addressed the jury in a very able and forcible manner:
David May was the first witness. He swore: “... There was only three dozen of fancy shirts sent earlier to the Palace of Fashion by mistake, and they were returned to Butler & Co.’s store.”
“ ... I was aware of all goods that came into the store [May & Schoenberg’s]. I know that the goods came from a firm in New York, because I saw the bills and marked the goods. Goods also were received from the same firm, Frankle & Butler of Denver, during the months of April and May. I have no personal knowledge of where the goods came from outside of the bills.”
Moses Shoenberg swore: “The only thing that I can remember that came to our store from the Palace of Fashion was three dozen of fancy underwear that had been sent there by mistake. I knew where the goods came from because I received Frankle & Butler’s bills.”
Two of their employees, Jacob Holcomb and Louis R. Johnston, confirmed the testimony of May and Shoenberg about receiving, then returning the goods to the Palace of Fashion.
Defense attorneys then called the only woman to testify, Mrs. Sadie Hazeltine, who said:
“ ... I reside in Leadville. I have been a saleslady in the Palace of Fashion. I was there at the time of its destruction by fire. There was no depreciation of stock before that time. I was there the day before the fire, and the stock of goods was larger, if anything, than at any time previous to that.”
“... There may have been goods shipped in the month of May, but I did not see them. I was only absent three days from the store all the time I was there. I do not know anything about the wholesale shipments. I was always in the front part of the store, and left every night at 7 o’clock. The curtains that hung over the windows were thick.”
On Friday afternoon the defense attorneys concentrated on three fronts------the attempted blackmail, impeachment of Officer Williams’ testimony, and in establishing the merchandise in the Palace of Fashion at the time of the fire was not overvalued. Two employees of the Denver Frankle & Butler store came to Leadville and testified as follows:
James Lawrence Pettis took the stand and swore: “I reside in Denver now. I am bookkeeper for Frankle & Butler there. I saw Mr. Daniel Sayer in Mr. Frankle’s private office in Denver. Mr. Sayer left the office and Mr. Frankle followed him out of the office. Mr. Sayer presented to Mr. Frankle a bill as a claim for the loss by the burning of the building at Leadville and demanded money.”
Mr. William Morris swore: “I saw Mr. Sayer at Frankle & Butler’s store in Denver last July. He was in Mr. Frankle’s private office, and I overheard their conversation. I heard Mr. Frankle say to Mr. Sayer: ‘This is a blackmailing scheme, ... and I see you have joined the rest of the blackmailers,’ and ordered him to ‘get out of here as fast as you can go!’ “
Four of the witnesses called that afternoon in defense of the men still charged with arson raised reasonable doubt as to the validity of Williams’ testimony, and as the witnesses for the prosecution had done, they and the defense witnesses of succeeding days did not change their statements when cross examined.
In the matter of the value of the goods lost in the Palace of Fashion fire, two of the city’s insurance agents, Walter D. Stevens and Uriah B. Wilson were put on the stand; Stevens stated:
“I reside in Leadville. I am in the insurance business. I know the Palace of Fashion building since Mr. Frankle first took possession of it. I was in the store a week before the fire. I looked over the stock of goods within a month before the fire. The value of the stock of goods in my judgment exceeded $80,000. The stock seemed to be as full before then as it ever was. The house was quite a distance from the ground and I could just see along the floor of the east room by standing on the ground. The building stood on posts. I noticed this between sixty and ninety days before the fire. After the fire I made an examination as the agent of the companies.
“I came here in the spring of 1880. I have been in the insurance business since 1866 I have had a good deal of experience in the examination and valuation of goods. I went into the mercantile business in 1850. I knew of the Palace of Fashion, and Frankle & Butler was the name of the firm. I was acquainted with the stock, because we carried insurance on it. I examined the stock between May 5 and the date of the fire. I made this examination, owing to a change in the rate of interest from six to eight per cent. Two of the policies ran out about May 1, and I went into the store and made a casual examination of the stock in receiving them. I thought the value of the stock was from $75,000 to $80,000. I noticed in the clothing department, about three-fourths of the way back, there was a stove. I told Mr. Franklin that if zinc was not put around it the coal would fall out some day, and with the draft through the cracks the store would be burned up. I represented at that time from fifteen to twenty insurance companies. At about May 5, or thereabouts, I am not sure that Frankle & Butler desired to change any policies.”
Cross-examined by Judge Rice: “I made an examination of the quality and amount of goods. I took some of the goods out. I saw some stockings worth $12 a pair.”
Saturday’s courtroom was filled to capacity since it was generally known Sheriff Becker had brought Jack Brogan from the penitentiary and that Brogan would take the witness stand sometime during the day. The opening of court was delayed by the sickness of one of the jurors who thought he might be coming down with the smallpox. A doctor’s quick physical checkup of the man proved otherwise, and Judge Goldthwaite opened the session at 9:30A.M. During the morning and the first part of the afternoon five witnesses bluntly stated Harry Williams’ “reputation for truth and veracity in this community is bad,” and L. T. Pierce went so far as to assert:
“I heard him lie in a case I had against him... I would not believe him on oath.”
Other witnesses including several expressmen testified they had delivered a large amount of valuable merchandise to the Palace of Fashion and George W. Cook stated:
“I am the Denver and Rio Grande Railroad company’s agent here. I was their agent in March, April and May, 1882. I know what goods were received during those months.” The witness then related from bills prepared what the goods were [and explained]:
“The goods were all of the finest quality because they were shipped as such and we have a system of examination.”
It was about 4:30 P.M. when Brogan was led into the courtroom by a deputy sheriff and according to one newsman he was “the cynosure of all eyes.” His testimony was almost identical to his signed and notarized statement, but he did further implicate himself by adding:
“Blair went under the building. I was with him... Blair said ‘Now wait until you see a flash from the smelter and go in then.’ I did so. He poured the coal oil on the joisting and saturated the center wall floor above the joisting, and put a candle in a cigar box filled with oil and lit it... Wilson was standing on the corner watching. It might have been over an hour after this that the alarm of fire was given...
More evidence implicating both Brogan and Walter Wilson as accomplices of Blair was given by W. T. Jackson and Moses W. Sommers. Jackson who testified late Saturday, was quoted as stating:
“I was sleeping at the Central fire station on the night of the 18th of May, 1882, in bed with Jack Brogan. Walter Wilson and some one else came to our door, and they said: ‘We want Jack Brogan to go to call the dances at the Comique.’ He came back about 3 o’clock in the morning.
... “I am a member of the fire department. Brogan went to bed about 9:30 or 10 o’clock. He was not asleep when the parties came to the door about 10 o’clock I think. Brogan said: ‘You tell them if they ask for me, that I am not here.’ He called Mr. Wilson’s name, and Sandy McCusick. Mr. Wilson said: ‘Is Jack Brogan there?’ I answered: ‘He is not.’ They then conversed in low tones, and Wilson again said: ‘We know he is there, and we want him to call a dance.’
“Brogan came back in about fifteen minutes before the fire alarm was given. I am not positive that Bryce Blair slept at the central station. I heard he was in Salt Lake. I do not know where Walter Wilson is. Brogan was sober enough to call for a dance, I should judge. When he came in I saw there was something the matter with him. I said, ‘Jack, what’s the matter with you?’ He said, ‘I guess it’s gone out.’ I said, ‘What has gone out?’ He said, ‘We set the Palace of Fashion on fire.’ I heard the alarm then. The reason why I did not know anything about the matter was that all I knew about it was mere hearsay. I could bring no witnesses to prove what Brogan had said. I never spoke to him on the subject after that. He stayed here until he went to the state’s prison. I have told the story to a good many men at the central station...
Moses Sommers was the first witness [called Monday morning]. He swore: “I have been living in Leadville since February, 1882. I remember the Palace of Fashion fire. I was at the Alhambra Saloon on the night of the fire. I was working at the Harrison Reduction works. I slept at the Central fire station, and went in there between 10:30 and 11:30. Walter Wilson went there with me. He went and looked for the keys of the oil closet, but could not find them without disturbing Mr. Lynch, who was the janitor. I saw Brogan at the Alhambra with Bryce Blair, Walter Wilson, Sandy McCusick, Dennis Manning and myself....”
Cross-examined by the district attorney:
“I was a fireman then and am now. It was about 10:30 when we left the Alhambra. I noticed that Brogan was there when I left. Wilson accompanied me to the central station and then I went to bed. Wilson looked for the keys for about five minutes and then went out the back way saying that he was going back to the Alhambra to get some more drink. I do not know where Blair or Wilson are now. I heard that Blair was in Salt Lake city.”
The defense asked leave of the judge to ask the witness what Wilson said he was going to do with the oil, which was permitted, and the witness proceeded.
“Wilson told me he wanted to set a fire on lower Chestnut Street with the oil. He also said, ‘You fellows will probably have a run before morning.’ That was a kind of a by-word. It was a common thing to have a run when we were told that. It did not concern me.”
Whether Walter Wilson was the same Wilson who Fred Butler had reported as having ill feelings against Thomas Kendrick was not clarified.
The rest of Monday’s session and of Tuesday morning’s were given over to the interrogation of the remaining defense witnesses, including Henry Frankle, Maurice Zippert, Isaac Kamak and Fred Butler by their attorneys and by District Attorney Kellogg.
“I have resided in Denver over two years. I resided in Leadville two years before that. I am engaged in the dry goods business. Henry Frankle and Louis Butler owned the stock of goods in the Place of Fashion. Fred Butler received one-third of the profits of the house as wages for superintending the business. I had been in Leadville about one week before the fire. The firm of Frankle & Butler consists of Henry Frankle and Louis Butler. It is only here that Fred Butler had an interest. When I was here about the first of January, the stock of the Palace of Fashion was worth between $67,000 and $68,000. The value of the fixtures were worth $4,000. Some of the fixtures were not put up, as I had intended to fix up a new store that I had bought. The only goods saved from the fire were a few satins, and remnants and jewelry in a case, worth about $800.”
In the cross-examination of Frankle the only additional information elicited was an estimated value of the stock between January and the time of the fire which he put at between $76,000 and $78,000. When Maurice Zippert was put on the stand, he flatly denied all accusations made against him by the prosecution, particularly those of Harry Williams. Zippert declared he shared a rented room with Reinhold Rosendorf, who had come by the Palace of Fashion the evening before the fire, that they had left the store between nine and ten o’clock, had gone to their room and to bed, and that both had slept until six o’clock the next morning when Reuben Weil awakened them with the news of the night’s conflagration. Isaac Kamak testified he was the first to see the fire in the southwest corner of the Palace of Fashion, that after awakening Weil and Butler, he had taken the account books to the Delmonico Restaurant, then returned to Palace of Fashion and:
... helped to take out a box of silks. I believe the boy had a bag of silks also. These were put in Dan Golding’s store. We never used any kerosene or coal oil in the stove. I do not know a man named P. P. Brown. I was in Newton, Kansas, when the indictments were found against us by the grand jury. Mr. Frankle telegraphed me to come back, which I did, and surrendered myself to Sheriff Becker. I have no knowledge as to the origin of the fire.
Fred Butler swore: “I have lived in Leadville for four years. I have a profit interest in Frankle & Butler’s business.” The witness gave similar testimony to that of Mr. Kamak, as to his actions before, at and since the fire.
Among the five other witnesses called before the defense concluded its case late Tuesday morning was Sheriff Becker, who testified he, at the request of Henry Frankle had tried to locate Blair, but up to that time had been unsuccessful. Testimony given by the other four added nothing new to that which had already been given.
A Chronicle newsman’s description of the high interest in the trial and his detailed account of the proceedings subsequent to the closing of their case by the defense attorneys read:
... From early morning yesterday [Tuesday] to late at night the old court room on Chestnut street was crowded, not only with the friends of the defendants, but also sympathizers with those who were prosecuting the Jews for their alleged perfidy. After Judge Goldthwaite had charged the jury on the part of the defense and prosecution, District Attorney Kellogg spoke at great length. He reviewed the case thoroughly, and thought that sufficient evidence had been adduced on the part of the prosecution to warrant a conviction. Judge Yonley [the first of three of the defense attorneys to collaborate in summing up why the three men on trial should be acquitted] followed and addressed the jury in an eloquent manner. While Judge Yonley’s delivery is not all that could be desired by a lawyer of such attainments, his eloquence covers the defect. After the court met again, at 2 o’clock, Judge G. G. White took the floor for the defense. He reviewed the testimony on both sides. He sneered at the insinuations thrown out that Brogan had been bribed to make the statement he had, but thought that the man ought to hang. He made a comparison between P. P. Brown, Officer Harry E. Williams and Brogan, and declared that the man who made a confession of a crime which would break his neck was the superior of the men who perjured themselves to deprive men of their liberty and perhaps their lives. Judge White spoke most of the time in a conversational tone and his oratory seemed to have a telling effect. The last address, on behalf of the defense, was that of Mr. Charles S. Thomas. What the previous speakers had neglected to point out to the jury Mr. Thomas called their attention to. His speech was enlivened by little passages of humor which provoked the laughter of those present, much to the discomfort of the judge, and was, as a whole, the most analytical of all the speeches. The court was then adjourned to 7:30 o’clock.
Long before the hour to which the court had adjourned the room was crowded. It was known that Judge Rice would finally address the jury on behalf of the prosecution. It was a dramatic scene. The dim lights of the lamps coupled with the smoke of the pipes and cigars gave everything a gloomy and ominous appearance. Instead of a court room it looked more like a conspirators’ den. The tall form of Judge Rice stood erect while he addressed the jury for over two hours. His eloquence was magnetic but his sarcasm bitter. He excoriated lawyers Yonley, Thomas and White, but let M. J. Waldheimer off by simply saying that gentleman liked always to have a few extra dollars in fees to treat his friends. He did not want the defendants to be acquitted because they were Jews, nor did he want them convicted because they were Jews. He went so far as to charge that had it not been that Dr. O’Connor knew a great deal about the burning of the Palace of Fashion he would be alive today. Judge Goldthwaite objected to this line of argument and it was discontinued. Although the address of this leader of the criminal bar in Colorado was a masterpiece of oratory, it was so bitter in its sentiments that he made very few friends by it. He endeavored to impress upon the jury that the fact stated by the lawyers for the defense that Brogan would be hung was a distortion. Brogan would not be hung. His acquittal would be an easy matter as soon as his sentence was served out at Canon City and he was arrested for the burning of the Palace of Fashion and Windsor hotel. Bryce Blair and Walter Wilson could be obtained as witnesses on his behalf, to swear that he did not commit the crime. If the defendants in the case were convicted of arson they could not be tried for the murder of Ballou. At the close of Judge Rice’s address the court room was cleared of all the spectators and lawyers and the jury were locked up in it. It was a time of anxious excitement. No doubt was entertained as to the innocence of the defendants; but it was feared that the jury would disagree. In the saloons and in the neighborhood a large number remained. It was not until 1 o’clock this morning that Judge Goldthwaite was sent for, in order that the jury might announce the verdict they had arrived at. On the judge’s taking his chair, and asking what was the verdict, foreman C. H. Lawrence replied: “Not guilty as to all of the defendants.” A love feast followed, and it was by the vigilance of two deputy sheriffs that the friends of the defendants were prevented from making outbursts of enthusiasm. No one seemed gladder that the trial was at an end than Mr. Henry Frankle, who was extremely vigilant.
It is evident to all who had taken an interest in the proceedings and testimony adduced that there could be but one verdict------the one rendered. As a prominent judge remarked “the defense had destroyed the motive and proved that some other parties had committed the crime, which left no other alternative to the jury but to acquit the defendants.” Few believed all of Brogan’s statement, but there was an air of truth surrounding it which created a doubt of the guilt of the defendant.
On the street this morning [Wednesday] the verdict has been the subject of discussion. Mr. Frankle has received a number of congratulating dispatches from different parts of the country and he feels as happy as a clam at high tide.
Wednesday’s paper also carried this editorial:
WHEN public announcement was made of the fact that criminal indictments had been returned by the grand jury [in the fall of 1882] against Fred Butler and his associates, charging them with having burned the Palace of Fashion, for the purpose of securing a large amount of insurance, THE CHRONICLE promptly recorded its disbelief that the awful charge could be sustained, and asked for a suspension of public opinion until the case could be heard. Our judgment has been fully vindicated by the outcome of the trial------a long, tedious, but fair and impartial, examination------in which every fact bearing upon the case was brought to light. The indicted parties go forth today entitled not only to that full confidence of the commercial world which they previously enjoyed, but to the sympathy of a community as victims of what we now believe to have been one of the vilest conspiracies, with gain as its incentive, ever conceived in the minds of men. We have no fault to find with the grand jury, for the evidence furnished it by the parties to the plot was of a very different character from that adduced in court... That evidence, voluminous as it is, contained not a single fact that would be considered as raising a reasonable suspicion of the guilt of the indicted parties; whereas the testimony of Brogan, confessing the crime himself and implicating others, left the prosecution without a thread to hang upon. The animus of this now celebrated prosecution is so palpable that we cannot write about it with a becoming degree of patience, and we dismiss it with congratulations to the defendants for their happy issue out of their tribulations and for the becoming manner in which they have demeaned themselves during the trying ordeal.
The feeling and belief justice had been rendered was celebrated on Wednesday evening; Thursday’s Chronicle account of the affair:
A love feast such as that which took place in the Clarendon hotel last evening has seldom been witnessed. There were few of those present who knew when partaking of their supper that they would be called upon to attend another and a more inviting one. The occasion was what may be called an impromptu testimonial supper tendered to Mr. Henry Frankle, Fred Butler, Isaac Kamak and M. I. Zippert by their many friends, as an expression of their kindly feeling and sentiment toward them on the result of the trial. The affair was a most enjoyable one. At 10 o’clock those who had been bidden to the banquet began to assemble. The large dining room of the Clarendon presented an enlivening appearance from the tastefully laid table, and augmented by the lively strains of music artistically rendered by Brown’s Third Regiment band. Shortly after 10 o’clock the guests sat down to the festive board and did ample justice to the inviting viands. Judge Waldheimer occupied the seat of honor with an ability which has become characteristic of him. The menu, considering the short notice Monsieur A. La Pierce had received, was all that could be desired, and was efficiently served under the supervision of the steward of the occasion, Mr. James Duckett. A good word is due to the ushers for their efforts to accommodate every new guest. They were Mannie Hyman, Sol Rice, Herman Eliel, Jake Sands and David May. After two courses had been partaken of, Judge Waldheimer read several congratulatory dispatches received during the day by Mr. Frankle, prefaced by a few well chosen remarks. He read to those present congratulatory dispatches from thousands of miles away, which the magnetic wires had brought. In the name of that noble goddess representing all that is grand, high and pure justice, he asked those present to listen to the dispatches. After reading of them had been finished Judge Waldheimer said: “Perhaps my friends have already burdened you with the messages of the telegraph. It is my province, my duty, to announce the different toasts to which I know due justice will be paid in responding. I take great pleasure in proposing the toast. The city of Leadville I am glad here people are freed from bigotry and
superstition. I am happy to discover it. I see before me the mayor and the two different mayors [during the trial, the two mayoral candidates had been chosen, Attorney and Mine Manager John D. Fleming by the Republicans and Mr. John H. Heron by the Democrats]...” In reply to the toast Mayor Dougan said: “The toast being the city of Leadville, I suppose I must respond. I was bidden to the feast at the last hour, and had I known that I would have been called upon to make a speech, I would have taken the afternoon to prepare it. I presume there is not a fair-minded man in the city of Leadville that is not rejoiced at the result of this trial. The verdict removes every stain from the lives and characters of the gentlemen involved in it. I accept the remarks of Mr. Waldheimer. The people of Leadville are free from bigotry and superstition. I am glad I am a member of that community which does justice on all occasions. It will be my duty, gentlemen to welcome here either Jew or Gentile.”
John D. Fleming spoke briefly: “Coupled with the modesty that a modest man must feel after the eloquent and feeling remarks of Dr. Dougan, I cannot do justice to any subject. Judging from the silence, I thought that something ominous was upon us tonight. Thanks to Bacchus and old John Barleycorn, ‘What dangers thou canst make us scorn,’ this has been removed. I prefer simply to pledge myself, and I know I will find a responsive chord in each of your breasts to the friends of Frankle and Butler echoing the sentence in the dispatch: ‘Truth crushed to earth will rise again.’ I thank you.”
The toast, “The Insurance Companies,” was responded to by Walter D. Stevens. He supposed he ought to have some one to speak for him. No one rejoiced more than he did in the result of the trial. During the trial he felt as though he was one of the defendants himself. He knew the gentlemen to be innocent, yet there was a suspense that entered into his soul.
Captain Jacque was called upon as one who had figured prominently in Colorado history to tell what he knew about Lake county warrants. Capt. Jacque said he could talk with the gentlemen present single handed and talk them to death, but he could not make a speech. Every one in the county ought to glory in the verdict returned.
In introducing Judge G. G. White, to respond to the above toast, Judge Waldheimer alluded to him as the gentleman bearing the name of the “emblem of purity and innocence, Good God White.”
“I regret,” said Judge White, “that I have not been called upon to discuss a very eloquent subject. Lake county in a financial sense is not panning out very well. She did endeavor to make a little strike at the last session of the legislature but the governor put an injunction on her. I think most of you would prefer United States government bonds to Lake county warrants. I am not anxious to discuss the past history of the county. The action of the governor was one that swept the feet of the people from under them. I make this statement as an apology. We feel proud in the success of our mines and otherwise. Lest we may not have an opportunity to drink I hope you will excuse me.”
Charles S. Thomas responded at length to the toast: “The Bench and the Bar.” He did not think that upon two or three moments preparation he could respond to the magnitude of the sentiment to which his distinguished friend had called him. He reviewed the history of law and justice and alluded to Jehovah, the first law giver and the prophet, as its expounder. He pointed out Rabbi Joseph Benjamin Disraeli and Gambetta as examples of the genius of the Jewish race.
Philip O’Farrel followed with a humorous speech in response to the sentiment, “The jurymen of our country.” He said he had got confounded as to the respective parties of today. “We are not here either as democrats or republicans. We are here to rejoice with, and say amen, to the verdict by the people of Lake county. I have got mixed regarding the relations of St. Patrick to Moses. I rejoice though at the verdict of acquittal for these gentlemen who have been the victims of a mean conspiracy.”
“Waiting for the Verdict” was responded to by Judge Havens. “I had concluded,” he said, “that we had enough speeches. I had hoped that I would be permitted to leave the room without having to make a speech. I congratulate the gentlemen who have passed through this trying ordeal. I do not mean to say this in flattery, but I have known these gentlemen for two years and a half, and they have demeaned themselves in strict consonance with the usages of society. I never had one moment’s doubt as to the resultof the trial, yet I felt anxious and was in suspense. After eight days they have been acquitted, without a blemish upon their characters.”
Henry Frankle was next called upon, and in taking the floor he was greeted with prolonged applause. He said: “I do not know how to express my feelings. I am still suffering from the effects of the trial. I came to this country a poor boy, and struggled hard to accumulate money honestly. Today it is said I have got lots of money. It was said by the blackmailers who charged the boys with burning the Palace of Fashion: ‘Frankle & Butler are worth millions of dollars, and they must bleed.’ On the 20th of May I received a dispatch in Denver from Leadville stating that my house had been burned. I went to the insurance companies, and they will not deny it, and offered a reward of $1,000 if they could discover the men who set the fire. I employed detectives in the matter. At the coroner’s inquest, the boys were acquitted. After the grand jury had indicted them, men came to me and said: ‘If you put up some money, we will keep quiet.’ I said to them: ‘Go and tell all you know, but not one cent shall I give for blood money. ‘Kamak came from Kansas City and surrendered himself at my request. If they were guilty, I wanted them to go to Canon City. If they were guilty, I was guilty. I take this opportunity of thanking Judge Goldthwaite, the district attorney and other officers in the case for their courtesy. “
J. H. Monheimer responded to the toast, “The Merchant Princes of Leadville,” by saying: “It seems to me that persecution is the rule. I don’t see why I should be called upon to speak to you tonight. Not an iota of evidence was produced in the trial just ended that has condemned in the least any of the men interested. It has been an unjust persecution by some of the people of Leadville. It was a black-mailing scheme, but I rejoice at the result of the trail and say that the dry goods tonight are at par.”
Jacob Schloss, being the oldest wet goods merchant in Leadville, followed with a brief address, in which he related the periods of Jewish persecution.
Samuel Adams did not want to attempt to make a speech. He would say, however, that he had known for two years past Mr. Butler, and he deemed him incapable of committing such a crime as he had been charged with.
Fred Butler, as a substitute for a speech, gave a scene from Julius Caesar, which was ably rendered. Speeches were made by Joseph Jenkins, Mr. Shaw, Moses Sommer, Philip O’Farrel, M. I. Zippert, Isaac Kamak and others. At 4 o’clock the company was dismissed and those who could retired.
The last paragraph of the account was a long list of the men attending and showed the gathering was a mixture of both Jewish and Gentile representatives of Leadville’s leading citizens.
Henry Frankle’s inference anti-Semitic feelings still existed was reflected in a story told on the streets and in the business establishments after the arson trail had come to a close; the story is quoted below as it appeared in the Saturday, March 24, Chronicle:
Some startling theories have been promulgated by those who are supposed to know, accounting for the unanimous verdict of “not guilty” in the case of the people vs. Fred Butler. The latest of these is the jury was bribed. By whom it cannot be ascertained, although it is asserted that it was by two parties who wanted to make something out of the insurance companies. Although this rumor has been widely circulated, yesterday and today, it is not given any credence by the lawyers on either side.
The story is that on Wednesday, March 14, while the lawyers on both sides were arguing the question as to whether each of the defendants had the right to challenge ten of the jurors, the jurymen that had already been selected were taken for a walk. It was while out for the walk, in charge of a deputy sheriff, that it is claimed a purse was handed to James Shinn of the jurymen. It is further alleged that the purse contained $4,000 which was to be expended in bribing the jurors. The matter was kept as quiet as possible, and an officer was detailed to investigate the matter. He succeeded in running down the two men who had started the rumor to earth. An investigation was made into the characters of the two men, and they were found to be not very savory. The cause assigned for the raising of false rumor was that they wished to make some money out of the insurance companies. The matter was dropped, and nothing more said about it until yesterday, when it was again renewed. One of the jurors in the case was met on Harrison avenue this morning. In answer to an inquiry as to what truth there was in the story that the jury had been “fixed,” he said:
“It is a lie out of whole cloth.”
“Did James Shinn receive any money that you know of?”
“No, sir, he did not.”
“Did any one attempt to bribe you or any one else in the jury room?”
“No, sir, I have heard a great many silly rumors, but I can say that no jury ever rendered a verdict more conscientiously than that one.”
“What reason do you assign for the starting of these rumors?”
“I think they have been started by men who are unfriendly to the parties acquitted. The only money ever the jury received was from Mr. Frankle, who gave any of them who went to him seventy-five cents for their county warrants, when they were only worth twenty-five cents. This, however, I think is nobody’s business, as God knows we worked hard enough for it.”
Of the five men acquitted or dismissed at the arson trial Kamak and Zippert left Leadville soon after they won their freedom, but the other three remained in the city for several years------Fred Butler as manager of the Palace of Fashion, Weil as an employee in the store and Rosendorf as a barber.
As to Brogan, after he was released from the penitentiary in 1884 he disappeared before any action by Leadville authorities was taken. Eight years later he turned up in Leadville, was recognized, taken into custody by a police officer and was charged with vagrancy. The district attorney was notified, a capias issued and J. H. (Jack) Brogan was charged and held to stand trial for the murder of Arthur Ballou. For some reason, probably the lack of witnesses and of sufficient evidence, he was released from the Lake County jail on the 25th day of March, 1891, and promptly left the region. Neither Blair nor Wilson were ever located and as a result these three alleged perpetrators of the East Chestnut Street disaster never brought to trial.
Copyright 2017 • Temple Israel Foundation