A Bank Robber, But No Murder

Makley-court

A Bank Robber But No Murderer

D M Testa

 

 

A BRIEF INTRODUCTION

I was born and raised in Dillinger country, a little flyspeck community in northwest Ohio. Nothing much goes on around this part of Ohio now days but in the early 1930’s, the place was hoppin’.

 Charles Makley and the rest of the Dillinger gang were long gone by the time I arrived on the scene. Didn’t matter. There were the stories. My grandma, my father, along with assorted other family members had lived through the bank robberies and the murder trials.  All of them had their own versions to tell of what life was like back then. Some of the best came from the old timers at the local beer joint.

 Years later after I’d grown-up and moved away, I decided to record a little bit of my family’s history before it was too late. My grandmother’s death and my father’s dementia had made me realize how precious the oft-told family stories actually were, especially ones, which gave a little bit of color and perspective to local history.

 Trust me. I hadn’t been looking for any shocking new facts to reveal about John Dillinger. And I really wasn’t into writing an investigative piece on gangsters, law enforcement or how the judicial system worked in the mid-1930s.  

Here’s how it started…

 

ABOUT FIVE YEARS AGO….

It was April and I was jazzed. There were hints of the warm weather soon to come. The snow was beginning to melt enough to actually see patches of grass. Robins had rolled back in, fresh from sunnier climes. And I’d finally finished my story. Besides the actual writing, it had taken months of labor-intensive, mind-numbing research to check and recheck the historical facts. There were just a few more things to look up. I was ready to add the finishing touches and finally put this project to bed when in the middle of reviewing old newspaper clippings, this story popped out at me. 

The Chronicle-Telegram, Elyria, Ohio – Tuesday, September 10, 1935 

Widow Of Slain Sheriff Sues County

In a $5,000.00 damage suit filed today in Lima Common Pleas Court against Allen County commissioners, Mrs. Lucy A. Sarber claimed her husband, the former sheriff, Jessie L. Sarber was “lynched” the night of October 12, 1933 by a “mob” bent on liberating the late desperado, John Dillinger, from the county jail.  

The action believed one of the first ever filed in the state is based on provision of a section in the Ohio General Code.

Sarber’s death at the time was attributed to wounds received when he was shot in the Dillinger escape.

Surprised because I’d never heard about this particular event before, I wondered why Lucy Sarber wasn’t happy. All three of the men tried for the murder of her husband had been found guilty. Two already died the previous year in the Columbus prison while the third was to spend the rest of his life there.

 Perhaps 1935 didn’t happen to be such a good year for Lucy. Her son, Don, finished out his father’s term as sheriff, lost his bid for re-election, and left the office in January. His departure meant she was no longer the jail matron, losing both her job and her home. Evidently Lucy Sarber felt that she was owed more.

 As I re-read the article, it struck me that she had altered her story from her testimony at the murder trials held the year before.

 I decided to go back and take a closer look at the trial coverage. Then I went back even further to the time when the crime was committed, reading and re-reading newspaper articles. This time I was paying far more attention to the details than ever before. And that’s when I began to notice the discrepancies.

 Some were what you’d expect from a murder case of that magnitude. Not all of the information released was going to be accurate. And not all of the witnesses would tell the exact same story. But as time went on, and after reviewing transcripts from the trials, I came to realize that one of the three men who had been tried and convicted for Sheriff Sarber’s murder wasn’t even inside the jail on the night of October 12, 1933.     

 That man was Charles Makley.    

 You may be asking yourself, “So what? That was seventy five years ago. Who cares if they got the wrong guy? They were all crooks. ”

 Well I do. Simply put, no one can cheat justice forever.

 It dawned on me that it’s one thing to write about your own family but quite another to try proving a man’s innocence from events that happened so many years ago. Starting to feel overwhelmed I briefly considered contacting a historian to tackle the project. (Yeah, yeah, shove the responsibility off on somebody else. That’s the ticket!)

 But then I rejected the idea. After all these years, it seemed like this story had found me. So what if I wasn’t the world’s greatest investigative reporter?  I did believe in Charles Makley’s innocence. It was time to suck it up and try making things right by him.

 

THE SET-UP

If you aren’t already familiar with the history of the first Dillinger gang and some of the events surrounding their lives, here’s a quick recap. John Hebert Dillinger’s start in crime began inauspiciously enough with a botched robbery attempt in his hometown of Mooresville, Indiana. Dillinger, who was twenty-one at the time, was found guilty and sent to prison for the next nine years.

 While there, Dillinger became friends with a handful of prisoners who were planning to escape. Two of the men had immediate family in the Northwest Ohio area, Charles Makley and Harry Pierpont.

 Because Dillinger’s parole date was coming up shortly, he was chosen to operate as the outside connection for the others. After his release in May of 1933, he began a series of robberies to raise money for the escape of the others.

 One of his holdups happened to be the Citizens National Bank of Bluffton, Ohio in August of 1933.

Prior to Jesse Sarber being elected the sheriff of Allen County in 1930, he had been the owner of a used car sales business. And before the autos, there was a livery stable. Evidently the 1929 stock market crash had put a damper on the purchase of used cars.  Despite having no previous law enforcement experience, Jesse Sarber chose to embark upon the more lucrative field of public service.

In true wild west style, five bandits who looted the Citizens National Bank here Monday noon of $1,500 to $2,000.00 shot their way out of town after unwittingly setting off the bank’s burglary alarm by stepping on a secret switch.”    Tuesday, August 15, 1933, The Morning Republican and The Findlay Courier, Findlay, Ohio 

 A little over a month later, after he had stolen enough money for bribes to smuggle weapons into the prison for his buddies, John Dillinger was captured in Dayton, Ohio and transferred to the Allen County Jail in Lima, Ohio to stand trial for the Bluffton bank robbery.

 Several days afterwards, his friends carried out their escape from the Indiana State Prison. Upset when they learned that their benefactor was back in jail, they decided to return the favor.  

 However, first they needed more money. Charles Makley convinced the rest that his hometown bank in St. Mary’s, Ohio would be a juicy target. On an October afternoon, Makley, Harry Pierpont and at least three others got away with $11,000. Many of the witnesses inside the bank recognized Makley.  

Although Lima, Ohio, is just up the road from St. Mary’s, Sheriff Jesse Sarber didn’t pay much attention to the warnings from some of his prisoners that John Dillinger was planning to be busted out. Sarber was preoccupied by the appeal of Art Miller, a convicted murder. Art Miller testimony, Thursday, March 15, 1934, Charles Makley trial, Lima, Ohio 

On, Thursday, October 12, 1933, six of the convicts John Dilllinger had helped escape drove to Lima, Ohio. Around 6:30 PM, three of the men entered the Allen County Jail, while the other three stood guard outside. At the time, Sheriff Sarber was sitting at his desk, reading a newspaper, while his wife Lucy was sitting across from him working a crossword puzzle. Deputy Wilbur Sharp was seated on a couch near the desk. Testimony of Wilbur Sharp  and Lucy Sarber, Thursday, March 8, 1934,  Harry Pierpont trial, Lima Ohio.

 Once inside, the leader of the three approached Sheriff Sarber asking to see Dillinger. He identified himself and the others as officers from the Indiana State Prison. Surprised because the door the men had entered was supposed to be locked, Sarber asked for their credentials. Testimony of Wilbur Sharp and Lucy Sarber, Thursday, March 8, 1934, Harry Pierpont trial, Lima Ohio. Testimony of Wilbur Sharp, Thursday, March 15, 1934, Charles Makley’s trial, Lima Ohio

 The leader pulled a gun and said “Here’s our credentials.” Sarber made a move forward  (perhaps reaching for his revolver) when the leader fired. The bullet entered Sarber’s abdomen on the left side, traveling downward and exiting his right leg. Testimony of Wilbur Sharp and Lucy Sarber, Thursday, March 8, 1934, Harry Pierpont trial, Lima Ohio. Testimony, TR Thomas MD. Friday, March 8, 1934, Harry Pierpont trial, Lima, Ohio

 The leader then demanded the keys to Dillinger’s cell. When the sheriff refused, one or more of the men struck the sheriff on the head. Lucy Sarber offered to go get the keys so they would leave her husband alone.  Testimony of Wilbur Sharp and Lucy Sarber, Thursday, March 8, 1934, Harry Pierpont trial, Lima Ohio. Testimony of Wilbur Sharp, Thursday, March 15, 1934, and Lucy Sarber, Friday, March 16, 1934, Charles Makley’s  trial, Lima Ohio.

 Once Dillinger was freed, Deputy Sharp and Lucy Sarber were locked in the jail cells while the gang beat it out of town. Testimony of Wilbur Sharp  and Lucy Sarber, Thursday, March 8, 1934,  Harry Pierpont trial, Lima Ohio.

 The sheriff’s son, Don, arrived shortly afterwards to find his father lying on the floor in a pool of blood surrounded by a crowd of onlookers. His mother and Deputy Sharp were still back in the cells with the remaining prisoners. Sheriff Sarber was taken to Lima Memorial Hospital where he died on the operating table at approximately 8:00 PM. Testimony, Don Sarber, Thursday, March 15, 1934, Charles Makley trial, Lima, Ohio

 Although Harry Pierpont was the unofficial leader, at the time, his identity was unknown. So this gang of outlaws became known by the press after the jail break as the “Dillinger gang”.

 Over the following three and a half months, Dillinger and company robbed several more banks and plundered two police arsenals for guns, ammunition, and bullet proof vests. 

 In late January of 1934, while cooling their heels and warming their buns in Tucson, Arizona, John Dillinger, Harry Pierpont, Charles Makley and Russell Clark were captured by the local authorities. Over $27,000.00 just in cash was recovered from their persons and belongings.

Dillinger was bundled off to the escape-proof jail of Crown Point, Indiana where on March 3, 1934, he broke out once again. The subsequent chases and robberies caused the FBI to become involved. And John Dillinger had the “honor” of being named “Public Enemy Number One.

 Harry Pierpont, Charles Makley and Russell Clark were returned to Lima, Ohio where they faced a city eager to punish the criminals who murdered their sheriff along with a prosecutor who was looking to further his political career.

 After quickie back-to-back trials, all three were convicted of the murder of Sheriff Jesse Sarber.

  

OPENING STATEMENT 

According to the book, Convicted But Innocent, the most common pattern of wrongful conviction involves factors such as eyewitness misidentification, community pressure and character evidence that the defendant “was in trouble with the law before.” (Convicted But Innocent, R.Huff, A. Rattner, and E. Sagarin, 1996, Thousand Oaks, CA: Sage Publications.)  

 In Charles Makley’s case, all three of the aforementioned points applied about equally.

And the prosecution took full advantage of that. Instead of taking the time to present a case built on actual evidence, the prosecution simply replayed the Harry Pierpont trial, which had taken place the week before. That had been an open and shut case, with the jury taking less than an hour to reach a guilty verdict and a recommendation of the death penalty.

 During a portion of Makley’s trial, while the prosecution was intently questioning a Tucson, Arizona officer, about details of the arrest of Harry Pierpont, Makley interrupted, shouting,

    “It seems like Pierpont is on trial here instead of me, doesn’t it?” Thursday, March 15, 1934, Charles Makley trial, Lima Ohio

 

When the defense presented a request for a new trial, the judge overruled it. He declared that the defendant “was given a fair trial and the witnesses who supported his alibi deliberately perjured themselves.” He concluded with the observation. “It has been the experience of the court, that nine out of ten alibis are false and fictitious. Almost all alibi witnesses deliberately perjure themselves.”  Saturday, March 24, 1934, Russell Clark trial, Lima, Ohio 

So was the prosecution taking the easy way out or were they putting up a smokescreen to hide the fact that they didn’t have much, if any, of a case against Charles Makley?

 Unfortunately for Makley, his attorneys weren’t all that prepared and decided to try another alibi defense. It hadn’t worked for Harry Pierpont. And it didn’t work for Makley.

Hindsight being what it is, the defense should have taken their time to scrutinize the “evidence” being presented. Most of it was flimsy and there were some downright contradictions. The defense would have stood a much better chance of showing that yes, Charles Makley might have been in Lima on October 12, 1933 but that he never was in the sheriff’s office.

 This time around I’ll take a turn, laying out a defense that will address the main points of the prosecution’s case against Charles Makley. I’ll use information taken from trial testimony, newspaper articles, and other historical documents. And I’ll be throwing in a surprise or two. So fasten your seatbelts because it’s going to be a real interesting ride.

 

CAUSE OF DEATH

This was a problematic area for the prosecution. The cause varied depending on whose trial you were at and which “expert” was doing the testifying. Sheriff Sarber had been shot and struck on the head.  Charles Makley stood accused of pistol whipping the sheriff.

 The Certificate of Death listed the principal cause of death as “Homicide by Firearms”.  Under the heading of Contributory Causes of importance not related to principal cause, the certificate stated:

“Bullet entering abdomen on left side and coming out in the right thigh, severing the right femoral vein.” Jess L. Sarber, Certificate of Death, October 14, 1933, State of Ohio

 Officially, no mention was made of any other wounds to the head or otherwise.  However, the prosecution tried to split the proverbial baby by having two causes of death.

“The evidence will show that as the result of the shot and the blows, Sheriff Sarber died.” Opening statement by Ernest Botkin, March 8, 1934, Harry Pierpont trial, Lima, Ohio.

This legal maneuver created the misinformation which has been repeated by many over the years that the blows to the head were the cause of death. It is simply not true.

 So how important were the head wounds?

 Common procedure in murder cases was to call the coroner as the first witness. This places the victim’s body squarely in the jury’s line of sight. In this case, the coroner’s report was at odds with what the prosecution was trying to sell to the jury so he testified later on.

 Harry Lewis, the Allen County Coroner, did note  

    “ two* wounds on the head, both about three inches long.”  Testimony, March 9, 1934, Harry Pierpont trial, Lima, Ohio

 The prosecution realized they might be on shaky ground because the medical doctor who examined Jess Sarber after his attack gave even less importance to the head wounds.

 T. R. Thomas, MD examined Jesse Sarber while he was on the operating table. He reported that,

“He had lost considerable blood. On examination, we found a bullet wound in the left abdominal wall and there was a hole thru the bowel. The bullet came out his right leg.” When asked if there were other injuries, Dr. Thomas said, “Two* scalp wounds, one a clean cut one and the other, a ragged one. There was no fracture of the bones.” Testimony, March 9, 1934, Harry Pierpont trial, Lima, Ohio

 When the forty dollar question of what had caused Jesse Sarber’s death came. Dr. Thomas stated.

“Primary cause, without doubt was the bullet wound. He died from shock, loss of blood, and other causes. There was not just one thing that caused his death. Testimony, March 9, 1934, Harry Pierpont trial, Lima, Ohio

 About one week later at Charles Makley’s trial, another doctor present the night Sheriff Sarber died and who later attended the autopsy performed at the funeral home, also testified.

“Death resulted from a loss of blood and shock.” Stated Frank Morris, MD, Thursday, March 15, 1934, Charles Makley trial, Lima Ohio

 But when the prosecution pressed Dr. Morris further about the blows to the head being the probable cause of death, Morris played along with the agenda by speculating,

“The wounds on the sheriff’s head alone might have caused death. I (sic) had seen death caused by less serious wounds than those suffered by Sheriff Sarber.” Thursday, March 15, 1934, Charles Makley trial, Lima Ohio

 Upon cross examination, Dr. Morris was asked to give examples of these less serious but still deadly head wounds. He could not. 

     *Don’t forget to keep count of the number of head wounds, which were two. We’ll be comparing that to what the eyewitnesses said later on.

  

COMMUNITY PRESSURE

The swell of public opinion against the three of the defendants was overwhelming. Upon reading through the trial descriptions, one can find many instances of how the local press, along with the prosecution, considered the trials a mere formality.

 Most of the local newspapers ran almost daily coverage of the Dillinger gang after Sheriff Sarber’s death. The hometown paper, the Lima News, devoted a tremendous amount of space to the events for obvious reasons. They gave detailed information concerning the on-going investigations, the grand jury trials, and every other facet of the case.

 What we would now consider press releases coming from the sheriff and prosecutor’s office, were given front-page prominence from October of 1933 through April of 1934. It was those statements, which made me initially skeptical over who exactly had participated in the Sarber murder. When you began comparing the statements from one month to another, things changed dramatically with regards to Charles Makley’s role in local events.  

 In fact, several days after the murder, as reported by The Lima News, local law officials made the following statements.

On Thursday, October 19, 1933, newly appointed  Allen County sheriff, Don Sarber and Police Chief of Lima, John W. Cook announced that six men who participated in the Sarber slaying and release from county jail of John Dillinger, suspected bank robber, had been positively identified as among the men who fled the Indiana prison three weeks ago.  They did not reveal the manner of identification, but regarded it as “sure.”

 “They (Sarber and Cook) gave the names of six as Harry Pierpont, previously identified as the man who fired the fatal shot, Harry Copeland, Russell Clark, Edward Shouse, Charles Makley, and John Hamilton.”

“Copeland and Clark were in the sheriff’s office when Pierpont shot the elder Sarber as he reached for a pistol after his demand to see his visitors’ credentials had been answered with a flourish of revolvers.”

“Shouse, Makley, and Hamilton, the sheriff and police chief asserted had stations at various points on the outside of the jail while their comrades invaded the prison and freed Dillinger.”

 Also in that same October 19th issue, The Lima News ran pictures of the seven men above the headline “Sarber Killers Identified”. The caption underneath Makley’s photo is “Charles Makley second of the alleged lookouts for bandit raiding gang.” 

 The October 19th article was no misstatement on Sheriff Don Sarber and Police Chief John W. Cooke’s part. In an announcement one day later, Prosecutor Ernest Botkin swore out first-degree warrants against seven men (Dillinger, Pierpont, Copeland, Clark, Shouse, Makley and Hamilton.) Botkin declared:

Harry Pierpont has been identified as the actual slayer. Present with him in the jail at the time of the shooting were Harry Copeland, 37, and Russell Clark, 33.” 

 Even as late as November of 1933, the official word from Lima was:

“Prosecutor Ernest Botkin of Allen County, Ohio said two witnesses in the Sarber slaying had identified Harry Copeland from pictures as one of the men who strode into the Lima jail in asking for Dillinger

 Don Sarber and John W. Cook also confirmed that

“…the identifications were made from photographs.” Friday, October 20, 1933, The Findlay Morning Republican and Courier, Findlay,Ohio

 The police in the area had photos of Charles Makley prior to October 12th because W.O. Smith, the conservator at the St. Mary’s bank identified Makley based on photographs shortly after that robbery. St. Marys is located the next county over from Lima, Ohio.

Those photographs were probably in the Lima police hands hours after the Sarber murder. This leads to the conclusion that the eyewitnesses had the opportunity shortly after the crime to view Makley’s photo but did not identify him as one of the three men who entered the jail. 

But the St. Mary’s bank robbery helped to seal Charles Makley’s fate.  By the time he was caught in Tucson, authorities already had Harry Copeland and Ed Shouse in custody. Copeland was caught in November of 1933 and Shouse shortly afterwards in December. Two months later, they weren’t nearly as newsworthy or carrying as much money on their persons as the foursome who’d been bagged in Tucson.  And this presented a problem.

Several other states had laid claim to Dillinger, Pierpont, Clark and Makley. The amount of legal wrangling done with the Tucson officials was mind-boggling. Ohio craved justice for the murder of Jesse Sarber, which meant they were after Harry Pierpont and Russell Clark. I believe they threw Charles Makley into the deal for other reasons.

Since he was the closest thing to a hometown boy Lima had, local officials were eager to punish him for the brazen robbery of the St. Mary’s bank. But they also wanted something more than just robbery and accessory charges on him. If the headline-drawing Makley was tried for first-degree murder, this would send a message to the entire country that Lima, Ohio would not allow criminals to go unpunished.

However there was a catch. If they went ahead and tried Makley for Sarber’s murder, the count would go up to four men inside the office.

Harry Copeland, who was according to eyewitnesses, the third man who entered the jail office, made it a case of one too many suspects. Four men participating in the murder would be contrary to all previous testimony including information given to the grand jury. Even Ernest Botkin probably wasn’t keen on the idea of convincing a jury that somehow his eyewitnesses couldn’t count.

But trying Charles Makley for the Sarber murder would give Ernest Botkin more political bang for the buck. It was also proving more difficult than he anticipated extraditing Harry Copeland back to Ohio. So the prosecution came up with a different scheme. Harry Copeland was just conveniently forgotten about in most of the process. If reminded, Ernest Botkin would emphatically state that shortly both Copeland and Shouse were coming to Lima to stand trial, but it was all just window-dressing because it never happened. 

During the closing arguments for Charles Makley, Botkin:

“…turned and pointed to Makley’s complacent expression and said that the Dillinger raider’s face bore a guilty look.”  Friday, March 16, 1934, The Republican Courier, Findlay, Ohio

As the lead attorney for Allen County, Ernest Botkin had been in the prosecutor’s office for a few years, first working as an assistant before moving up the ranks. Unfortunately, Botkin allowed public opinion to sway his judgment like many other folks at the time. He got caught up in an Old Testament version of “an eye for an eye” or in his own words “measure for measure.”  Saturday, March 17, 1934, The Marion Star, Marion, Ohio

 Botkin certainly played the case out in the press, manipulating information to bias public opinion but his tactics didn’t stop with reporters. At the start of the Charles Makley trial, the lead prosecutor intimated in his questions to prospective jurors that he expected attempts would be made to contact them by Dillinger. His tries at conjuring up the boogey man fell flat when he asked each juror if they had been approached by anyone “suspicious” concerning the case since being called for service.

No one had.

Tuesday March 13, and Wednesday, March 14, 1934, Charles Makley trial, Lima, Ohio.

 And this was not the first murder trial in which Botkin succumbed to community pressure by trying to send the wrong person to the electric chair.

 

THE QUARRY MURDERS

In many ways the murders of seventeen year-old Thelma Woods and twenty-one year-old Earl Truesdale on Memorial Day of 1931 was a turning point for Lima, Ohio. The young couple who were out on a first date, had been brutally attacked after leaving a dance at the local park. Both had been struck in the back of the head with a blunt object, their bodies weighted down by stones and then thrown into an abandoned stone quarry outside of Lima. 

Immediately anyone who had ever known the couple became a suspect. But the local authorities (including Sheriff Jesse Sarber and Ernest Botkin) couldn’t make the charges stick to a soul. The idea that the murderer of Thelma Woods and Earl Truesdale was still out there terrorized the town. Editorials took turns sniping about the inability of the police force to turn up a suspect. Finally almost a year and a half later, law authorities, desperate to find the killer, went after Earl’s older brother, Loren, accusing him of murdering the pair in a jealous rage.

Loren was immediately arrested. Supposedly he confessed, claiming that jealousy promoted the killings. However less than twenty four-hours after this confession was made, Loren Truesdale denied any part of the murders.

Furthermore, he went on to claim that it had been forced after a six-hour interrogation held in an abandon farmhouse in the country.

“Prosecutor Ernest Botkin, Sheriff Jess Sarber and an official of a private detective agency were said to have been the inquisitors”  August 10, 1932, Mansfield News, Mansfield, Ohio

Loren Truesdale described being beaten, threatened, and subjected to the use of a marijuana cigarette.    

Loren’s subsequent incarceration and trials seemed like a dress rehearsal for the trials of Charles Makley, Harry Pierpont, and Russell Clark less than a year later. Truesdale was held in the Allen County Jail under the supervision of Sheriff Jesse Sarber. Interestingly, Loren had difficulty conferring with his lawyer even after murder charges had been filed. That sounded familiar since the three Dillinger gangsters voiced the same complaint a few months later.

This time however, Sheriff Sarber actually got into legal trouble when it was revealed he had repeatedly refused Loren’s requests to meet with his attorney, a gentleman by the name of Clarence W. Long. Friday, March 17, 1933, Marion Star, Marion, Ohio

Long, a count-appointed attorney, was given the unpopular job almost by default. Although the American Bar Association indicated that $2,000 was the pay rate for a murder trial, the Lima court would compensate Long only $350. Charles W. Long stated that he “believed in the innocence of Truesdale enough that the pay rate was fine.”   

A few months prior to the arrest of Loren Truesdale, a convict by the name of Lloyd Ziegler, who was now serving a term in the Mansfield Prison, confessed that he and two other youths had been the murderers. Botkin discredited this confession because Ziegler changed his story when brought to Lima. Besides Ziegler would have to serve out his existing prison sentence before anything else could be done. Instead Botkin put the finishing touches on a first-degree murder case against Loren Truesdale based on his “confession”.   

On December 5, 1932, the trial began. There was very little useful physical evidence. A drop of blood noticed on the hammer that police thought was the murder weapon was unusable. By the time it was examined, the blood drop was desiccated.  It couldn’t be determined whether the blood was animal or human, let alone a match for Woods or Earl Truesdale. 

As the trial continued, it became apparent that Loren Truesdale was deaf and had a difficult time understanding the questions being asked. The Lima News mentioned that he was “hard of hearing and conscious of it, he (sic) made answers to questions he often didn’t hear.” 

The first trial ended in a hung jury. Undaunted, Ernest Botkin next tried to have Loren Truesdale declared insane. If found so, Truesdale would be sent to the State Hospital for the Criminally Insane without a trial.

That tactic failed. Loren Truesdale went to trial for a second time on March 6, 1933. To help Loren at that trial, a Lima inventor came up with an amplification device that allowed Loren Truesdale to hear the testimony.

Many of the same witnesses who testified at the first trial, returned. Even Lloyd Ziegler, who was still confessing to the crime, was brought back to Lima.

It took this jury five hours to find Loren Truesdale innocent on March 31, 1933.

Ernest Botkin had made the “confession” of a young man who couldn’t hear let alone understand what was being asked of him, the centerpiece of his plea for the death penalty. He had no eyewitnesses, no circumstantial evidence, and really nothing else of probative value. Yet he was quite willing to send a man to his death without further investigation of another’s confession to the crime. Why?

Botkin had political aspirations. He used the power of the Allen County prosecutor’s office to further his own career. If Allen County wanted criminals quickly caught and convicted, he’d be glad to oblige. The problem with these tactics was it might not always be the right person. 

History shows he attempted to break into the state government. Less than a year after Charles Makley’s  trial, he was out of the prosecutor’s office and on to bigger things. A new governor had been elected and Botkin was up for nomination as state liquor control director.  Tuesday, February 26, 1935, Marion Star, Marion, Ohio

His ambitions were short-lived. By 1938, Ernest Botkin was back in general practice, working as a defense attorney. Four years later, Ernest Botkin was disbarred for “misconduct and irregularities at a hearing.” Tuesday, December 6, 1949, Lima News, Lima, Ohio

Note: Unless specifically attributed, the sources of information concerning The Quarry Murders are: May 29, 1938, Lima News and May 23, 2007 and May 30, 2007, Kim Kincaid, Lima News, Lima, Ohio

 

CHARACTER EVIDENCE

Charles Makley had a history of bank robberies long before he met up with John Dillinger and company. As early as 1919, Makley was one of the suspects in an Ohio job. And his reputation as a robber wasn’t the only thing to cause a scandal in St. Mary’s, Ohio.

He had lived with his brother, Fred and his family off and on for three to four years, working the occasional odd job to keep up appearances while continuing a string of robberies. Although many of these hits were out of state, Makley recruited a group of his old friends from St. Mary’s to be a part of his gang.

By 1928, business was booming. And Charles Makley had added a new member to his gang. His sister-in-law and her young daughter relocated to Hammond, Indiana, where Makley had transferred the bank robbing business.

Bank detectives over the years suspected that Charles Makley was involved in several Ohio robberies. But since he had left St. Marys, they couldn’t track him down. A break finally came when a distraught Fred Makley told one of the detectives that his wife and daughter had moved out. He explained how Edith still stayed in touch but he suspected that she had joined Charles in Indiana. Her next letter to Fred was intercepted. The Ohio bank detectives didn’t waste much time before they decided to act. Edith Makley’s return address was used to round up the entire gang, including the elusive Charles Makley.

Charles Makley and his sister-in-law, Edith Slife Makley, were both arrested.  Charles cut a deal with the law. If his sister-in-law was released, he would plead guilty, which is how he ended up in the Michigan City prison. A fateful decision, since the Indiana State prison was where he became friends with John Dillinger.

Edith Makley and her daughter returned to St. Mary’s. By the time of Charles Makley’s trial, she was back living with her husband, Fred. Evidently, the past was forgiven because Fred Makley appeared as the sole witness for the defense. Friday, March 16, 1934, Charles Makley trial, Lima Ohio

As juicy as this all was, it proved nothing when compared to Charles Makley’s latest associate. His murder trial was turned into an extended distraction about John Dillinger with as much inflammatory “evidence” thrown into the process as possible.

During the Pierpont proceedings, the judge revealed to a packed courtroom, he had received a letter “that predicted the jail delivery of Pierpont, Makley and Clark before the end of the trial.” However, he never acknowledged the possibility that this was just one of the many prank letters rolling into Lima on a daily basisInstead the judge used it as an excuse to be accompanied everywhere he went by armed National Guardsmen, including of course, the courtroom. He cited the “Dillinger threat” as the reason. Wednesday, March 7, 1934, Harry Pierpont trial, Lima, Ohio

So was he right about a Dillinger threat?

At the jury selection of Charles Makley’s trial, Judge Everett announced, “We have received direct word that Dillinger is on his way here with a jail wrecking crew.” This was based on a report from Toledo, Ohio that John Dillinger had been spotted. Monday, March 12, 1934, Charles Makley trial, Lima, Ohio 

The judge happened to be off by a few miles since less than twenty-four hours later; Dillinger and his new gang robbed the First National Bank of Mason City, Iowa.

 

PROTECTING THE PUBLIC

In his first public statement made after his appointment as the new sheriff of Allen county, Don Sarber declared, “his initial aim will be directed toward the capture of his father’s slayers”  What he failed to mention was his disinclination once they were caught, to allow Harry Pierpont, Charles Makley or Russell Clark the opportunity to contact attorneys when the three were remanded over to him in Lima. Arraignment of Harry Pierpont and Russell Clark, Thursday, February 15, 1934, The Republican Courier, Findlay, Ohio

 

Another of Don Sarber’s tactics to keep the Dillinger gang corralled during their stay in Lima was rather unusual. When the trio learned that John Dillinger had escaped his Indiana jail, they remained fully dressed day and night.

“Officers, as a result, have removed all their clothing except their undergarments.” Wednesday,March 7, 1934, Mansfield News,Mansfield, Ohio    

One can’t really blame him. He was young, inexperienced and had the whole community, including his mother, breathing down his neck. But all things considered, Sarber’s unusual circumstances still could not excuse overlooking due process.

Charles Makley’s initial arraignment had to be postponed for several days because Makley was not permitted to confer with an attorney. Harry Pierpont’s lawyer finally had to make a request on Makley’s behalf to the judge at Pierpont’s own arraignment. And these pretrial problems were only a hint of the prejudicial events to follow.  Arraignment of Harry Pierpont and Russell Clark, Thursday, February 15, 1934, The Republican Courier, Findlay, Ohio

Once the trials started a little over two weeks later, Don Sarber unveiled his own method of crowd control. He monitored the jury selections with a machine gun in his hands aimed at the defendants and their counsel the entire time. Don kept this same stance during parts of the actual trials. The only exceptions being the times he acted as a witness for the prosecution.  He also ordered one of his deputies to sit beside the jury box with a rifle slung across his knees and a pistol in his holster.

At the time, Don Sarber told the press it was for the protection of the court. However everyone in the courtroom probably was counting his or her lucky stars that Don didn’t accidentally fire the machine gun similar to his mishap in the jail office.

Bright and early on the first day of jury selection for Charles Makley’s trial, the red danger light began flashing a warning. It had recently been installed on the front of the jail to notify National Guardsmen stationed at the barricades that something was amiss inside.

The problem? Don Sarber was examining a gun when it accidentally went off. The shot ricocheted wildly before becoming lodged in the floor. No one was hurt except for Sarber. The hammer bruised his finger and the incident his pride. Tuesday, March 13, 1934, The Republican Courier, Findlay, Ohio

  

THE DISAPPEARING DEFENSE

Lima had a strange sense of justice in the 1930’s. There were so many questionable decisions made during the trials that I was curious to find out more about the defense team.

As it turned out, there were actually two sets of attorneys for Harry Pierpont and Charles Makley. The other man on trial, Russell Clark kept his same attorney throughout.

The first group of lawyers dropped out a day or two before the actual trials started. The second set then had to scramble because the judge refused to grant their requests for continuances to get up to speed. Their lack of preparation accounted for a good measure of the poor strategies and inconsistencies during all of the trials.

Harry Pierpont and later on, Charles Makley started with at least one good trial attorney, Charles W. Long. He was the city of Lima’s solicitor but occasionally took on additional work. He was the lawyer who had successfully represented Loren Truesdale a few months earlier.

In his mid-thirties, Long knew his way around a courtroom, having taken on Ernest Botkin and winning handily. He was capable, which meant there was a chance that Makley or Pierpont might not be convicted. In some circles, this was considered an outrage.

The Lima City Council and the Lima News went to work, roundly criticizing Long for defending the accused slayers while continuing in the office of city solicitor. This hadn’t been a problem in the past but circumstances evidently changed when the defendants were members of the Dillinger gang.

Charles W. Long made it through the arraignments but things got so hot that Harry Pierpont’s mother, Lena, made a surprise appearance at a city council meeting where she accused the members of “trying to prevent Harry Pierpont from having a fair trial.”

The council member who was making most of the accusations, John Keville, president of the Citizens and Taxpayers League, evidently smelled trouble and snuck out of the room before Mrs. Pierpont addressed the council. None of the council members, who remained, had anything to say face to face with a fiery Mrs. Pierpont. Tuesday, February 20, 1934, The Lima News, Lima, Ohio

When Charles Makley was finally allowed to contact the outside world, he immediately hired Eugene Lippincott. Lippincott had a fair amount of trial experience, having been the AllenCounty prosecutor ten years earlier.

 He discovered discrepancies from the first grand jury. Two of the jurors who had served were not called from any jury pool, they simply showed up. Some said they ringers.

 It was a good catch by Lippincott. However, local sentiments prevailed. A few days before Long, Eugene Lippincott exited the lion’s den as well.

Long filed a libel suit against the Lima News. This was based on an editorial which made accusations against him taking anyone associated with John Dillinger as a client. But just a day before the start of the first trial, Long finally gave in to the pressure and stepped down. Tuesday, February 20, 1934, The Republican Courier, Findlay, Ohio

The gangsters were now left with a rag-tag team of lawyers, only one of whom was familiar with Ohio law. These three fought an uphill battle. There were requests for a change of venue because of the difficulty in finding impartial juries. Much of the evidence was already in the public domain because the press had done a good job of reporting every little detail whether it was true or not.

However, the judge felt that Lima, Ohio could be as impartial as any other location, so he overruled all of these motions.

 

CIRCUMSTANTIAL EVIDENCE

The “circumstantial” evidence introduced in the Makley trial was basically meaningless, intended only to prejudice the jury. As the prosecution was questioning one of the eyewitnesses, it was asked what Sheriff Jesse Sarber had been wearing on October 12th.

When the witness replied that it was “a tan suit”, Ernest Botkin seized the opportunity and dramatically pulled a pair of bloody trousers from a box and introduced them as evidence. The defense objected to the exhibition:

“…because it will not tend to prove or disprove anything, and it is being done for the sole purpose of prejudicing the jury against this defendant.”   Thursday, March 15, 1934, Charles Makley trial, Lima Ohio

It was obvious that the prosecution had made no serious attempts to gather any significant physical evidence such as fingerprints or even footprints. This was a major blunder since various witnesses repeatedly mentioned during all three of the trials how the jail office floor was covered with multiple prints left from bloody shoe soles.

During the Pierpont trial, the current sheriff Don Sarber (son of the slain sheriff) stated, “a few bullets were found in the jail office and taken by ballistic experts.” But throughout the course of all three trials, no ballistic reports were given. The exact number of shots, in question at times, was never backed up by scientific evidence.

In reality, there was absolutely no circumstantial evidence, including physical evidence, presented during the trial showing that Charles Makley was ever inside the jail office the night of October 12th, 1933. Charles Makley trial, Tuesday, March 13 through Friday, March 16, 1934, Lima, Ohio

 

EYEWITNESS MISIDENTIFICATION

Conventional wisdom, particularly among non-lawyers, is that circumstantial evidence is generally less reliable than eyewitness testimony. But at the same time, numerous psychological studies have shown that human beings are not very good at identifying people they saw only once for a relatively short period of time. 

In 1932, E. Borchard acknowledged the problem of eyewitness reliability. His book, Convicting the Innocent Garden City, NY: Doubleday reported that eyewitness error contributed close to 45% of the wrongful convictions in his sample. These findings were published two years before the Makley trial was held.

Some of the variables that Borchard discussed in his book showed up as classic examples during Charles Makley’s trial. For instance, although both eyewitnesses stated that they were “sure” in their identifications, Borchard found the level of confidence expressed by witnesses does not strongly correlate with their accuracy of identification.

Another significant point was the time delay in regards to Makley’s identification. It has been proven over and over that memory distorts and declines over time.  

The presence of a weapon was another variable of Borchard’s, which affects the accuracy of witnesses. Instead of focusing on facial distinctiveness, the witness tends to concentrate on the weapon. In the case of the Lima eyewitnesses, it would be not just one weapon but at least four.

Along this same theme, Borchard found that the amount of stress a witness experiences has an inverse effect on their ability to make an accurate identification. In other words, witnesses who have moderate arousal or stress tend to have a better acquisition of information than witnesses who are highly traumatized. I can’t imagine a much more traumatic situation than witnessing a family member or friend being assaulted. 

Unfortunately for Charles Makley, the one mechanism in place by which the court system attempts to separate reliable from unreliable eyewitness testimony is the cross-examination. Makley’s attorneys never asked either of the eyewitnesses about the lighting, the duration of the encounter, the stress that each experienced or other factors, which might have undermined the reliability of their identification. They also neglected to challenge the “no show” of one of the prosecution’s star witnesses.

Ed Shouse was former member of the Dillinger gang and by his own admission, present at the jail breakout of October 12th. Despite the prosecution calling him as an eyewitness, Shouse was questionable. He acted as a lookout, outside the jail so although he testified at the trials of Pierpont and Clark, Shouse could only state who he saw enter the Allen County Jail and what he heard from outside the building. A large part of his testimony concerning what went on inside was basically what he overheard others say and his own speculation.

The prosecution was hungry for evidence against the three accused men and Ed Shouse was happy to oblige. Along with his agreed upon testimony, it seems likely Shouse made some sort of arrangement even though Prosecutor Botkin insisted there was no deal.

Evidently Ernest Botkin had a different definition of a “no deal made” than the majority of people since Shouse was never brought to trial in Lima, Ohio. Instead Ed Shouse simply disappeared.

In an article discussing the abandonment of indictments from the Allen County grand jury, it was noted that :

“Of the thirteen old indictments on the court docket, one is a first degree murder charge against Edward Shouse returned in 1933 in connection with the John Dillinger gang operations here in Lima, Ohio. Authorities have been unable to locate Shouse.”  July 26, 1945, Lima News, Lima Oho

At the Pierpont trial, Ed Shouse stated how he saw Harry Pierpont, Charles Makley, and Russell Clark enter the jail office. However when it came time for the Makley trial, Shouse refused to testify. He claimed that he did not want to come to Lima and “squeal” on Makley.

Why?

Ed Shouse testified against Harry Pierpont and then didn’t have a problem returning two weeks later as a prosecution witness at Russell Clark’s trial. Thursday, March 8, 1934, Harry Pierpont trial and Wednesday, March 22, 1934, Russell Clark trial, Lima, Ohio. 

The explanation given was that Ed Shouse liked Charles Makley well enough not to want to testify at his actual trial. However, it seems doubtful that his motives were based totally on friendship or even a guilty conscience. Thursday, March 15, 1934, Charles Makley trial, Lima, Ohio

Perhaps Shouse was afraid to come back as a witness because he might be caught lying during the Makley trial, which could seriously jeopardize his “no deal” deal struck with the prosecution. He might have had doubts about his ability to fill in the details during a thorough cross-examination if he was making up the story. 

At the time of Charles Makley’s trial, Ernest Botkin said of Ed Shouse’s no-show “His testimony is not essential.” Thursday, March 15, 1934, Lima News, Lima, Ohio. 

However four months later when discussing the case, during Makley’s appeals process, Botkin commented that he “also could have sent Russell (sic) Clark to the chair, if he had been able to introduce the testimony of Edward Shouse.” Botkin claimed that when the time came for Clark’s trial, Shouse refused to testify. July 5, 1934, Lima News, Lima, Ohio 

When asked why, Botkin answered that Russell Clark had once saved Shouse’s life.   And no, this wasn’t any misquote by the reporter. The entire article, starting with the headline “Clark Escape Saga of Gang – Shouse Silent Because He Once Had His Life Saved” is all about how Edward Shouse out of gratitude, refused to testify at Russell Clark’s trial.  July 5, 1934, Lima News, Lima, Ohio 

Confused? It gets even better.

 

EYEWITNESS TESTIMONY – Part One

When the dust finally settled, there were just six eyewitnesses to the Sarber murder. Only three of them ever gave an “official” accounting, Mrs. Lucy Sarber, Deputy Wilbur Sharp, and Sheriff Jesse Sarber. Jesse Sarber gave a statement shortly after the breakout to his son, Don who was a Deputy Sheriff of Allen County at the time. That statement was admitted as evidence during the trial of Harry Pierpont.

Here is the consensus of the three eyewitnesses:

#1. Three men of unknown identities entered the Allen County Jail.

#2. One of them introduced the group as officials from Michigan City and asked to see John Dillinger.

#3. Sheriff Sarber was shot once and struck an undetermined number of times.

There were three points that all of the eyewitnesses agreed upon. After that, the stories differ. Sheriff Sarber died before being able to testify in court. Over time, Mrs. Sarber and Deputy Sharp’s stories changed. Their initial statements regarding how events unfolded and more importantly, the identities of the assailants are different than their testimony at the murder trials of Pierpont, Makley, and Clark.

The first eyewitness called, Deputy Wilbur Sharp had no law enforcement experience prior to Sheriff Sarber’s election. He was a used car salesman working for Jesse Sarber and had known him for nine years. After Don Sarber left the sheriff’s office in 1935, Sharp did not stay in law enforcement. Instead he became a machinist, eventually moving to Florida where he died in the 1980’s.

Unfortunately his inexperience as a lawman showed on October 12, 1933. When he came on duty that night at 6:00 PM, he took off his gun and belt, placing them on the sheriff’s desk before sitting down nearby. On that same night he also neglected to lock the east door of the jail office after himself when he came on duty. This would be the door the three men entered when they came to free John Dillinger. These facts came out during Deputy Sharp’s testimony at the trials.

For approximately four months, Wilbur Sharp said that he could identify Harry Pierpont and Harry Copeland but not the third man. Sharp’s statement to Lima News on January 25, 1934 is characteristic of his stance from October 1933 through February 1934.  Sharp:  

“…named Pierpont as the trigger man in Sheriff Sarber’s killing, and Copeland as the man who covered him with a pistol during the raid, maintained Friday that his identifications were positive and that he will so testify at their murder trials” Sharp continued, saying he was unable to identify Makley as one of the raiders because “my view of him was obstructed by Mrs. Sarber.”

None of the prisoners who were being held in the Allen County Jail ever saw Charles Makley there the night of October 12, 1933, although they were able to identify Harry Pierpont and Harry Copeland as being present.

Art Miller testimony, Claude Euclid testimony, Thursday, March 8, 1934, Harry Pierpont trial and Art Miller testimony, Thursday, March 15, 1934, Charles Makley trial, Lima, Ohio

However, on March 8th 1934, during the Harry Pierpont trial, Wilbur Sharp’s story changed.

 

Why?

 

One can only speculate. Perhaps the guilt Sharp carried by not locking the door that fateful night weighed into his decision to change his version of events. Who knows? Here are some excerpts of Wilbur Sharp’s testimony from the Pierpont trial. Judge his words for yourself.

Three men entered the east door of the Allen County jail office. Sharp was sitting on a davenport near the desk. According to Sharp the:

“…sheriff and Mrs. Sarber were sitting at the desk talking, then the sheriff started to read a newspaper. Mrs. Sarber was located at the end of the desk. Three men entered the east door of the jail office and went to the end of the desk.”  Testimony, Thursday, March 8, 1934, Harry Pierpont  trial, Lima, Ohio

A month and a half earlier, Sharp stated that he couldn’t see the third man because Mrs. Sarber was in the way. Now Sharp testified Mrs. Sarber was sitting at the end of the desk. How could she be blocking the man? From existing police and jail records, none of the men associated with John Dillinger were so short of stature that a person sitting down could block a view of their face.

Possibly Deputy Sharp did not want to admit that he was not paying enough attention to the three men who entered through a door which he was supposed to have locked. Sharp noted Harry Pierpont was the first man in but had no idea as to who entered next. 

The deputy went on to relate that the man who did the shooting was “directly to the left of the sheriff”. He identified him as Harry Pierpont. Sharp then located the other two.

“One to the west and the other to the east of Mrs. Sarber, who was at the end of the desk.” Testimony, Thursday, March 8, 1934, Harry Pierpont trial, Lima, Ohio

He continued his description …

“The shot knocked him (Sarber) down on the floor, kind of on one elbow. He tried to raise up and one of the men ran around and clubbed him over the head with his gun. One stepped in front of me with two guns in his hands. Mrs. Sarber tried to go to the sheriff but they wouldn’t let her. I told them to let him alone as they had already hurt him. Another man then walked around to the sheriff and hit him over the head with his gun.”

Sharp was asked his location when the sheriff was shot. He replied:

“ I was standing up as the first shot was fired. Mrs. Sarber was on my left.” Testimony, Thursday, March 8, 1934, Harry Pierpont trial, Lima, Ohio

He identified Charles Makley as the man who hit the sheriff over the head the first time, then stated that Harry Pierpont was the one who hit the sheriff a second time. Sharp noted that five gunshots in total were fired. Two were aimed at Sheriff Sarber, the first one hitting him.

“I think the third shot was fired accidentally while they hit him (Sarber) over the head. I saw them strike him about three times. The third time they hit him with the gun, it went off and the bullet went thru the door.” When asked if he saw where that bullet went, Sharp replied, “Yes, into the ceiling of the other room.” Testimony, Thursday, March 8, 1934, Harry Pierpont trial, Lima, Ohio

Another shot was fired into the jail to keep the other prisoners back while Dillinger was being freed. But that was only four shots accounted for. What had happened to the fifth gunshot?

The judge called a break when the prosecution finished.  After the break, the defense began to cross-examine Sharp. When they got to the subject of the number of bullets fired, he suddenly “remembered” the missing shot had been fired into the ceiling. Sharp also now “remembered” the gun that accidentally went off belonged to Charles Makley.  Testimony,Thursday, March 8, 1934, Harry Pierpont trial, Lima, Ohio

By the next week, during Charles Makley’s trial, Sharp’s testimony changed again. Perhaps it was because he was a witness on the same day that Ed Shouse announced he would not come back to testify against Makley. In Sharp’s new version Makley’s actions became more violent. Was Deputy Sharp trying to make up for the loss of Shouse as a witness? 

His embellishments would also be at odds with the prosecution’s opening statement.

“…who took his gun and brought it down on the sheriff’s head in one or two vicious blows and then forced Mrs. Sarber to get the keys to the jail.”  Ernest Botkin, Wednesday, March 14, 1934, Charles Makley trial, Lima, Ohio

On March 15th, 1934, Deputy Sharp states:

“The shorter one of the three ran around to the sheriff’s side and clubbed him three or four times over the head. The first time he (Sarber) was struck, he didn’t go down. About the second or third time, he did, and it was Makley hitting him.” Sharp said as he raised his right hand, demonstrating how the sheriff was hit. Testimony, Thursday, March 15 1934, Charles Makley trial, Lima, Ohio

But only a week earlier, he had testified that there were a total of three blows to the sheriff’s head from both Makley and Harry Pierpont. Testimony, Thursday, March 15 1934, Charles Makley trial, Lima, Ohio

It is also interesting to remember that two wounds to the head, not three or four, were what the Allen County Coroner listed as well as what was described by the medical doctors. There were no additional bruises or contusions mentioned in the coroner’s report or by the doctors.

Sharp stated during Charles Makley’s trial that the gun had discharged at close range when Makley struck the sheriff on the head. However, no gunpowder burns or residue appearing on the sheriff’s head was ever noted by the coroner or described by either doctor.

 Testimony, Thursday, March 15 1934, Charles Makley trial, Lima, Ohio

 

Makley’s attorney immediately challenged Sharp as to why at this trial, Charles Makley had become the only one who struck the sheriff?  Sharp replied that Pierpont (sic)”also clubbed the sheriff.” Testimony, Thursday, March 15 1934, Charles Makley trial, Lima, Ohio

Another discrepancy showed up as well.  During the first trial, Sharp claimed the sheriff had tried to rise after he had been shot but stayed down after being struck once. Now it took two or three blows to the head. 

When the defense attorney questioned Sharp about the number of blows, Sheriff Sarber’s actions, and how exactly Makley “forced” Mrs. Sarber into getting the keys, by comparing his testimony at the Pierpont trial with what he was now describing, Sharp was stumped.

He finally offered as an explanation that he “misused the words clubbed and hit.” and never actually answered the question.  Testimony, Thursday, March 15 1934, Charles Makley trial, Lima, Ohio

During cross-examination, Sharp was questioned as to his “lateness” in identifying Charles Makley as the man who struck Sheriff Sarber. He replied:

“They showed me the pictures but I didn’t say anything at that time. I was not able to tell if it was Makley on the pictures from the view I had of him the night of the jail raid.” Sharp claimed he wasn’t sure until Makley was brought back to Lima (a full four months later) to stand trial that “…in his own mind” he could make a positive identification. Testimony, Thursday, March 15 1934, Charles Makley trial, Lima, Ohio

There had been no police line-up done. While working in the jail, Deputy Sharp observed Makley and decided that he was the man. Defense attorneys never followed up with any questions concerning exactly what kind of view Sharp supposedly had of the man who had struck the sheriff. Bertillion photos of Makley included a full face and a side view. According to trial testimony these were the pictures shown to the two eyewitnesses.  

It is interesting to compare Deputy Wilbur Sharp’s testimony to an interview he gave to the Lima News on October 13, 1933, less than six hours after the murder of Jess Sarber.

Sharp relates how a trio of strangers entered the office and walked over to the sheriff’s desk. After they requested to see Dillinger, the sheriff asked for their credentials.

“The big man stepped back into line with the other two and drew a pistol – an automatic.” When Sheriff Sarber moved forward, “The big man fired. That’s when I stood up and that is when I expected to get it.”

“The big man’s two confederates turned on me with their guns.” Sharp continued, describing how his gun was retrieved from the sheriff’s desk where it was laying in front of Mrs. Sarber. “After Jess had been wounded, the big man asked for the keys to the jail.”  

Frightened, Sharp told the trio he didn’t have the keys:

”I don’t know how they got the keys, whether they forced Mrs. Sarber to get them or whether they found them. But they got them and they unlocked the outside door, heading to the residence.” 

“Before they did this, however the big man shot toward Jess again, then turned on him and clubbed him over the head with the butt of the automatic.”

A bit of a difference from October 13, 1933 to March 15, 1934, wouldn’t you say?

 

EYEWITNESS TESTIMONY - Part Two

Deputy Wilbur Sharp had problems remembering key details during his questioning by both sides. The prosecution had similar issues with the other eyewitness, Lucy Sarber, widow of the murdered sheriff. Her testimony given in the Charles Makley trial contradicted some of what she said a week earlier at the Harry Pierpont trial.   

Copeland and Clark, were in the sheriff’s office when Pierpont shotthe elder Sarber … Shouse, Makley, and Hamilton had stations at various points on the outside of the jail while their comrades invaded the prison and freed Dillinger. ”

Don Sarber, October 19, 1933, The Lima News, Lima, Ohio

“…the identifications were made from photographs.”

 Don Sarber, Friday, October 20, 1933, The Findlay Morning Republican and Courier, Findlay,Ohio

On Friday, March 16th, 1934, Lucy Sarber took the witness stand. Apparently the sheriff’s widow was suffering from what was described at the time as a “throat ailment” because she spoke mainly in broken sentences, frequently stopping to sip water from a glass placed on the railing in front of her. Charles Makley, ordinarily a smiling person, wore a serious expression as Mrs. Sarber told her story.         

Mrs. Sarber testified that she could only identify two of the three men who were in the office at the time of the shooting.  The third man, she said, stood behind her most of the time in the office. Mrs. Sarber stated that she:

 “did not know the man who struck her husband was Charles Makley until the Monday after her husband’s funeral when she was shown Bertillion pictures.” (Monday, October 16th,). Friday, March 16, 1934, Charles Makley trial, Lima, Ohio.

Remember it was three days after Lucy Sarber stated that she supposedly identified Charles Makley that her son, Don Sarber, made a statement to the press based on sources, which he considered “sure.” (October 19, 1933). He identified Pierpont, Copeland, and Clark as the three who entered the sheriff’s office. Since one those sources was Don Sarber’s own mother, it is hard to believe that they hadn’t conferred before he made that statement.

The first instance Mrs. Lucy Sarber actually does go on record publicly identifying Charles Makley as “the man who hit poor Dad.” was on January 26th, 1934. This was one day after Makley, Pierpont, Clark, and Dillinger had been captured in Tucson. At the time she named “Charles Makley as the other gangster who stood beside Pierpont.” But she doesn’t mention that Makley was the one who struck the sheriff on the head. January 26, 1934, Lima News, Lima, Ohio

However, on the day of the trial, Mrs. Sarber pointed to Charles Makley:

“Yes, there can be no question about it. Yes, he hit poor dad a terrible blow. I’ll never forget that face as long as I live,” she sobbed with tears brimming in her eyes. Friday, March 16, 1934, Charles Makley trial, Lima, Ohio

Here are some of the points that Wilbur Sharp and Lucy Sarber couldn’t seem to agree on between trials.

#1. What was the suspect (Makley)  wearing?

#2. How many times was Jesse Sarber struck?

#3. How many men struck Jesse Sarber?

#4.The location of the man/or men who did the striking.

#5. Did a gun go off accidently when Sarber was struck?

#6. Which man requested the jail keys?

#7. Did Jesse Sarber speak to his wife after being shot?

On cross-examination, the defense asked Lucy Sarber if during the Pierpont trial, she had stated “I couldn’t say as to that” when asked who was hitting the sheriff? Friday, March 16, 1934, Charles Makley trial, Lima, Ohio

The defense rested. Botkin started his re-direct. He asked Lucy Sarber to explain how she “couldn’t say as to who was hitting her husband.”

Mrs. Sarber replied:

 “I left the room to get the keys. I was walking out, and I don’t know then what they were doing to Dad, but I know they were doing something.” Friday, March 16, 1934, Charles Makley trial, Lima, Ohio

She went on to relate how she actually saw her husband hit only one time on the head, claiming:

“Then this man standing in the doorway, he raised a terrible gun and hit dad over the head with all his might.”   Friday, March 16, 1934, Charles Makley trial, Lima, Ohio

Surprisingly this redirect revealed a significant contradiction between Mrs. Sarber’s testimony and Deputy Sharp’s. According to Sharp, Mrs. Sarber was in the room while both Makley and Pierpont struck her husband.

Lucy Sarber went on to relate that Pierpont was the one who requested the jail keys after the sheriff had been struck (yet another difference from Sharp’s testimony the day before.)  Mrs. Sarber complied so they would leave the sheriff alone. But she never testified hearing (if she was indeed out of the room) or seeing (if Sharp was correct) the gun go off accidentally when the sheriff was struck. Friday, March 16, 1934, Charles Makley trial, Lima, Ohio

There was also disagreement between the two about the location of the man who initially struck the sheriff. Sharp asserted that he was by the desk, near Mrs. Sarber before he “ran around the end of the desk.” Lucy Sarber places him as “…standing in the doorway.”  Friday, March 16, 1934, Charles Makley trial, Lima, Ohio.

The discrepancies continued to add up. Testimony at all three trials reveal that neither Deputy Sharp nor any of the prisoners who were being held in the Allen County jail at the time heard the sheriff speak after being shot. Art Miller, one of the prisoners, had testified that he had heard moaning but nothing else.

Lucy Sarber however, told a much different story at the Makley trial.

“Just then, Dad raised on one elbow and said; “Oh, men why did you do this to me?” then he said; “Oh mother, I believe I’m going to have to leave you.” Friday, March 16, 1934, Charles Makley trial, Lima, Ohio

 Neither Deputy Sharp nor Mrs. Sarber ever mentioned in their testimony that the man who “ran around to the sheriff’s side” had a limp. Charles Makley’s right leg was shorter than his left. It was documented in his prison records that he walked with a limp.

Wouldn’t this be a distinctive feature, which would have helped these two eyewitnesses make a positive identification? 

This embellishment caused many in the courtroom to reach for the handkerchiefs. Evidently they didn’t realize the door to the jail cells was wide open. No one else heard the sheriff say anything, let alone make such a speech. In fact no other witnesses who testified at any of the trials ever mentioned the sheriff at any point after being attacked make a reference to dying.

And finally, in what is supremely indicative about the reliability of these two eyewitnesses, Deputy Sharp testified that Charles Makley was wearing a “dark gray outfit” while Lucy Sarber said he was wearing “light. Thursday March 15, and Friday, March 16, 1934, Charles Makley trial, Lima, Ohio

 

 

CLOSING ARGUMENT

So did the prosecution actually make their case against Charles Makley “beyond a reasonable doubt”?

The evidence given to put Charles Makley inside the Lima jail on the night of October 12, 1933, lacked, shall we say, a certain credibility?  The only tangible evidence presented was from the two eyewitnesses, who contradicted each other on many key details.

But what motivation was there to “polish” the truth about Charles Makley? Here’s a thought.

The Lima News May 29, 1934

JUDGEMENT FOR $30,000 GIVEN MRS. SARBER

Directed Verdict Against Dillinger Gangsters Obtained In Civil Suit At Tucson, Ariz.

Mrs. Lucy A. Sarber, widow of Jesse L. Sarber, slain sheriff of Allen-Co. Tuesday won a $30,000 civil judgment against three of John Dillinger’s henchmen from a jury in Tucson, Ariz.

The jury returned the verdict against Harry Pierpont, Charles Makley, and Russell Clark after being instructed to do so by Judge Fred W. Ficketi of Pima-Co who heard the suit which Mrs. Sarber brought to deposition.

James Weadock, Jr., member of the firm Machenzia, Weadock, and Weadock, who took the depositions for Mrs. Sarber during the first degree murder trials of the desperados here, said the judgment is expected to be collected from $30,000 found in possession of the gangsters when they were arrested by Tucson officers. It was against this money that the widow’s action was directed.

However, there is one last piece of evidence, which must be considered before coming to a final conclusion.

A third eyewitness to have his testimony introduced into the trials was Sheriff Jesse Sarber. The defense objected but had been overruled. Judge Everett considered anything said or done in the jail that night as “fair game.” Thursday, March 8, 1934, Harry Pierpont trial, Lima Ohio

Although Jesse Sarber spoke from the grave, in many ways, his testimony was the most helpful. He had the best view of all three men in the office because he was facing them. The press and public opinion didn’t have a chance to taint him. There wasn’t a significant time lapse from when the event took place to his statement. He simply said what he saw.

Don Sarber, acting in his official capacity as a deputy, testified how he found his dying father on the floor:

“He said,‘ I did not know any of the men. They were all big fellows.”  Thursday, March 8, 1934, Harry Pierpont trial, Lima, Ohio

 

   What would the jury have thought if they had been shown a photo taken during the Tucson, Arizona arraignment two months earlier where Charles Makley looks dwarfed when standing between Harry Pierpont and Russell Clark? 

The discrepancies in height are clearly obvious. 

 

It would have been nice if the defense had caught the statement They were all big fellows.” and then pointed to official prison records, which noted Harry Pierpont’s height at six foot, Harry Copeland’s height at five foot, eleven inches, and Russell Clark’s height as being over six feet. In contrast Charles Makley was recorded as standing five foot, seven inches.

Could Don Sarber have lied or misheard his father’s statement? Possibly, but I doubt it. If he had, his testimony would assist the defense since Charles Makley was shorter of stature.

In all likelihood, Don Sarber was repeating what he actually heard his father say. None of the defense attorneys caught its significance or how useful it could have been for Charles Makley’s defense because when Don Sarber testified at Makley’s trial, that portion was omitted.

Makley’s lawyers were having a difficult time keeping up during all three trials because not all of the court transcripts were available to them at the time. It was a costly oversight because it might have saved Charles Makley from what followed. 

“Makley’s conviction is another victory for the law against one of the most vicious criminal organizations.” Prosecutor Botkin said after hearing the verdict, “I congratulate the jury for their courageous and prompt action. The death penalty alone fits the crime. The only effective remedy against gangdom is measure for measure.” Statement by Ernest Botkin, Saturday, March 17, 1934, The Marion Star, Marion, Ohio

But Mr. Botkin doesn’t have the last word on this matter after all. 

They were all big fellows.”

If this is the truth and there is no reason to doubt the sheriff, then Charles Makley could not have been one of the three men who were in the jail office on October 12th 1933. If he was not inside the office, then he could not have murdered Sheriff Jesse Sarber.

Charles Makley’s crime that night was acting as a look-out outside the Allen County Jail. How ironic that the sheriff, who was murdered more than seventy five years ago, helped exonerate another victim of the same tragedy with long overlooked information.

 

“Justice, like the will of God, doesn’t always manifest itself on the spur of the moment. It doesn’t come when you think it would. You just gotta wait it out.” Marcia Clark

 

 

Photo and Illustration Credits for A Bank Robber But No Murder

 

  • Head Shot of Charles Makley, ACME, March 13, 1934
  • J.L Sarber Ad, 1927 (Author’s Collection)
  • Allen County Sheriff’s Office and Jail, frame taken from newsreel footage, 1934
  • Lima Memorial Hospital, Lima, Ohio, Hires News Agency (Author’s Collection)
  • Pima County Courthouse, Tucson, Arizona, Genuine Curtiech (Author’s Collection)
  • First National Bank, St. Mary’s Ohio, Weixelbaum, (Author’s Collection)
  • McCullough Lake, Lima, Ohio, Hires News Agency
  • Alienist article, The Lima News, January 27, 1933
  • Allen County Courthouse, Lima, Ohio,  Weixelbaum, (Author’s Collection)
  • From left to right- first row: Jessie Levy, Harry Pierpont, Lena Pierpont. Don Sarber with gun is standing behind Harry Pierpont. Lima, Ohio, Hires News Agency, March 8, 1934 (Author’s Collection)
  • Bertillion Photo of Ed Shouse
  • Close-up of East Door/ Allen County Sheriff’s Office, frame taken from newsreel footage, 1934
  • From left to right: Charles Makley, William Fogarty, Lima, Ohio, ACME, March 12, 1934 (Author’s Collection)
  • Bertillion Photo of Charles Makley
  • Dark versus Light Charles Makley (Author’s Collection)
  • Lima Line up (Author’s Collection)
  • Tucson Arizona Arraignment, frames taken from newsreel footage, January 1934

 

 

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