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Convicting the Innocent: Errors of Criminal Justice
(1932)
by Edwin M. Borchard
Case #11
Floyd Flood
ILLINOIS
About twelve miles southeast of East St. Louis, Illinois,
there lies in St. Clair County the snug little town of Freeburg. At 2.15 on
August 23, 1924, the drowsy afternoon peace of Freeburg was violently broken
by the daring holdup of its First National Bank. A Flint car carrying six
men drove up before the bank; four men entered, armed with revolvers. They
ordered the president (Russell E. Hamill) to enter the vault, covered the
cashier (Miss Susie Wolf) and the bookkeepers (Miss Minnie Holst and Miss
Emma Wolf), and escaped with over ten thousand dollars in cash and currency.
They left town in the Flint car, speeding toward Fayetteville.
Police officers took up the trail immediately and traced the car to the
Mississippi River, where it was found abandoned. Some of the stolen currency
consisted of new $5.00 and $10.00 national bank notes of the looted bank
which had not yet been placed in public circulation. It was therefore
possible to broadcast a definite description of these notes through banking
channels in the nearby states. Shortly afterward, some of the currency was
spotted at the bank of Jonesboro, Arkansas, and led to the arrest of two men
there who gave the names James Breene and Ralph Southard. Much of the loot
taken from the Freeburg bank was found on this pair, and they were promptly
returned to the St. Clair County Jail at Belleville, Illinois.
At about this same time the police authorities in St. Louis, Missouri,
notified the Illinois authorities that Floyd Flood, a painter and chauffeur,
was under arrest, and that he fitted the description of one of the bandits.
It is not clear just why Flood was apprehended. The arresting officers told
one of Flood's attorneys that he had been taken up because he was a "bad
egg," although he had no criminal record. Flood claimed that the arresting
officer had a grudge against him because his girl friend had refused the
officer a date, after which the officer threatened to "make it tough on her
sweetheart." No charge appears to have been entered against Flood in St.
Louis as a ground for his arrest. The police authorities merely noticed that
Flood seemed to fit the description of one of the Freeburg bandits, and they
so notified the Illinois authorities.
In view of the information furnished by the St. Louis police, Misses Susie
and Emma Wolf went to St. Louis to identify the suspect. They were told that
one of the robbers had been captured. At police headquarters, Flood was
placed in the "show-up cage," a contrivance about ten feet square which
enables identifying witnesses to examine suspects under flood lights,
although the suspects are unable to see the witnesses. The police forced
Flood to turn his coat collar up, put on a cap not his own and pull it down
over his eyes, stretch his hand forward and say, "Stick 'em up." The police
had been informed that one of the bandits, so attired, had thus acted. Under
these conditions the two women identified Flood as the bandit who had
covered them during the robbery.
Flood was indicted, jointly with Breene and Southard, for the robbery, and
they were tried before Justice George A. Crow in the St. Clair County
Circuit Court on December 2-5, 1924. The case was prosecuted for the state
by Hilmar C. Lindauer. Flood was defended by Attorney Joseph B. McGlynn of
East St. Louis. Indisputable testimony was adduced connecting Breene and
Southard with the robbery. According to the testimony of the witnesses,
including the bank president, Breene was the bandit who forced the president
into the vault. Southard was definitely identified as the driver of the
Flint car. President Hamill was unable to identify Flood. The Misses Wolf
and Miss Hoist, however, did positively identify him. Among the numerous
other witnesses who identified Breene and Southard as having been among a
group of men who had been seen camping near Freeburg on the night prior to
the robbery, only two, August and Clem Wesnusky, youthful Freeburg coal
miners, asserted that Flood was in the group.
In view of Flood's contention that he had not been in Illinois for over a
year, his defense, naturally, was an alibi. It was to the effect that on the
morning of the robbery, he arose late, had breakfast at 9.30, after which he
went into the garage at the rear of his house and worked on his machine
until 12.30, when his family had dinner. After that, he returned to the
garage and worked there until about 2.30 o'clock. Between 2.00 and 2.15 he
called up the Yellow Cab Company, for which he drove a taxi, to request
leave (he was supposed to report for duty at four o'clock). His request was
denied. He reported at the Cab Company office for work at 3.30 and checked
out with his cab at four o'clock. The defendant took the stand in his own
defense, and his testimony was corroborated by his father, mother, a
visiting aunt and cousin, several neighbors, and several employees of the
Cab Company.
The jury apparently gave little credence to the alibi testimony, for it
returned a verdict of guilty against Flood, as well as against Breene and
Southard. On December 18, 1924, a motion for a new trial having been denied,
Flood was sentenced to serve from ten years to life in the Southern Illinois
State Penitentiary. Breene and Southard received like sentences.
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While Mr. McGlynn was preparing a writ of error, Breene
sent a message to him from the penitentiary requesting an interview. Mr.
McGlynn granted the request. Breene and Southard thereupon confessed their
part in the robbery and said that four other men, whom they refused to name,
had assisted, but that they did not even know Floyd Flood. A little later,
two more of the gang were caught in Ohio, and they named the six
participants as Breene, Southard, John Lyons, Benjamin Ingram, Arthur
Richardson, and Brice McConnell. They made an affidavit that they had never
heard of Flood, and that such a person had had no part in the affair. They
said that after the robbery, the gang took the loot out into the woods,
divided it, and then scattered. When Susie and Emma Wolf were informed of
these developments, they admitted the possibility of a mistake in their
identifications. An application for a pardon was filed, but Mr. McGlynn had
an uphill fight of over a year, against the opposition of the Bankers
Association, before a pardon could be obtained. It was necessary to account
for every one of the six robbers and to obtain their convictions or
confessions before final action freeing the innocent man was taken. Finally,
all six were caught and convicted, whereupon the Bankers Association helped
Mr. McGlynn to secure the long overdue pardon for Flood. On January 21,
1926, Gov. Len Small commuted Flood's sentence to expire at once, on the
ground of his innocence.
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This mistake in identity was largely induced by the power
of suggestion exerted by the St. Louis police upon the Misses Wolf. To pick
up Flood on the merest suspicion, to state to these ladies that one of the
bandits had been captured, to dress him up to fit the known description and
compel him to act the part, was too persuasive to resist. Notwithstanding
the consistent testimony of numerous alibi witnesses that Flood was in St.
Louis at the very moment the robbery occurred, the jury preferred to believe
the affirmative evidence of the Misses Wolf and Hoist against the
overwhelming contradictory evidence. Again it is observed that an
identification by the victim of a violent crime is given preponderant
weight. Flood was ultimately saved by the fact that the crime was a joint
enterprise, and that all the culprits were accounted for, so that by
elimination, an innocent man, as in the New Jersey case of Sweeney, could be
weeded out and his innocence established.
BIBLIOGRAPHY
1. Record in the case of People v. James Breene,
alias George W. Mason, alias Whitey and Ralph Southard, alias Rudolph
Southard, alias Elgin Custer and Floyd Flood. Office of the Clerk of
the Circuit Court of St. Clair County (September Term, 1924), Belleville,
Ill.
2. Summary of testimony given at the trial prepared by O. A. Krebs, Court
Reporter, Belleville, Ill.
3. Certified copy of Floyd Flood's commutation of sentence dated January 21,
1926, granted by Gov. Len Small.
4. Acknowledgment: Mr. Joseph B. McGlynn, East St. Louis, Ill.
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