100 Years Ago Today: Arbuckle to be tried for manslaughter instead of murder, September 28, 1921

After 350 pages of testimony, the first installment of People vs. Arbuckle ended with a single page.[1]. In two paragraphs, dated Wednesday, September 28, 1921, Judge Sylvain Lazarus informed the district attorneys and defense counsel of his decision and reasons for it. Before it was rendered, however, he spoke at length to reporters. The court, Lazarus said, was still ready to hear any of the witnesses Frank Dominguez wanted to call, such as Fred Fishback and the medical expert for whom Rappe’s hospital records had been procured. Dominguez declined.

Isadore Golden then restated the District Attorney’s position that sufficient evidence had been submitted for the murder charge. He added that if the preliminary investigation had been a jury trial, the jury would have “brought in a verdict of guilty as charged [and] that verdict would stand if taken up to the higher court.”[2]

Dominguez countered with the fact that the Coroner’s Court and Grand Jury had only recommended that Arbuckle be tried for manslaughter and, given the evidence, even that charge should be dismissed.

“Now gentleman,” Lazarus intervened, “before making a decision, the court will indulge in a little discussion.” He then gave a lecture, castigating Matthew Brady, the American people and institution, the Eighteenth Amendment, the St. Francis Hotel for not minding Arbuckle and his friends, and so on. “Sitting as I am in a privileged attitude,” he began,

without the fear of contradiction, and with the comfort that no one can stop me if I take too long, or talk aside from the case, I may have my say.
There is just enough evidence here, I may say, barely enough, to justify me in holding the defendant, without further facts and circumstances which the district attorney said would more strongly establish the fact that Roscoe Arbuckle is guilty of the crime of murder. This is an important case. We are not trying Roscoe Arbuckle alone. We are not trying the screen celebrity who has given joy and pleasure to all the world.
Actually, in a large sense, we are trying ourselves.
We are trying or present-day morals, our present-day social conditions, our present-day looseness of thought and lack of social balance.
The issue here is, really and truly, larger than the guilt or innocence of this particular unfortunate man. The issue is universal and grows from condition which are matters of comment and apprehension to every true lover and protector of our American institutions.
The thing which happened on September 5, 1921, happened in the heart of San Francisco, the most beloved city in the world, in one of the largest and most pretentious hostelries of the city, in broad daylight.
The thing that happened there was the culmination of an orgy which, according to the testimony of a chambermaid in the hotel was well known to the management—no, I won’t say the management—but it was well known in and about the hotel.
We need not speak of the bacchanalianism or saturnaliaism, or sybaritism, or any of the terms of the ancient days. We are supposed to live and breathe and have our being in a better and more advanced age. Nevertheless, this thing, this orgy that continued many hours, and resulted in the death of Virginia Rappe, a moving picture actress, was not repressed by the hotel management. It is of such common occurrence that it was given no attention until something happened, until the climax made it notorious.
And the same things happen in other big cities all over the world.
I am talking almost as I would to an audience, but you will let me say this: In this thing is a public lesson larger than the district attorney would have us understand. I had really hoped and expected that all the evidence possible on both sides would be presented here, so that this humble police court would be the avenue through which a full and complete revelation would be made, so that it would become a forum in which the public would have the opportunity to determine the guilt or innocence of this man, whose celebrity, justly so, has traveled to the four corners of the globe.
Roscoe Arbuckle has brought joy and pleasure to his fellow men. He is therefore more valuable in the scheme of creation than lawyers and judges, who but add gloom to existence.
The testimony shows that during the whole afternoon in these rooms, 1219, 1220, and 1221, in the St. Francis hotel, a condition, let us charitable say a festivity, prevailed. Men and women came and went, their movements so irregular the witnesses found it difficult to say who occupied certain rooms at certain times.
Much liquor was drunk in this prominent hotel, despite the recent unpopular addition to the constitution of the United States. The complaining witness, who was not put on the stand, has been described as being in a particularly inebriated condition.

Judge Lazarus bemoaned that certain witnesses “were absolutely worthless.” He mentioned Al Semnacher by name. In regard to the ice, Lazarus said that it was regrettable but it had no connection to the charge of murder. Indeed, it was a “abhorrent thing” but, if Arbuckle had known the real extent of Rappe’s injury, he wouldn’t have done it.

Ultimately, the judge had been swayed by the last person to testify.

The only witness in the entire case who gave any direct testimony bearing on the guilt or innocence of Roscoe Arbuckle was the nervous chambermaid, Josephine Keza. Passing along the corridor she heard the sound of revelry, and then she heard a woman’s voice crying, “No! No! O my God,” and a man’s voice saying “Shut up!” This is the only testimony which any conceivable possibility shows a connection between the defendant and a crime.

The district attorneys surely, on hearing this, had to wonder what had happened to Lazarus, whose side was he on? He seemed to be almost disappointed that his “humble police court” had been cheated of making a Supreme Court decision.

Milton U’Ren interrupted the judge and asked him if he had overlooked Rappe’s own words, “I’m dying. He hurt me.”

 “No,” Lazarus snapped back, “but I am taking into consideration the fact that she was in great pain; that she said he hurt her, but not that he had attacked her. Reminds me of that line in Lord Byron’s “Don Juan”—‘And saying she would ne’er consent, consented.’” And with that retort from the bench, much of the courtroom burst out laughing.

When order was restored by the bailiff, Isadore Golden reminded the judge that a voice, likely Rappe’s had said “O my God, no! No! No! No!”

This gave the judge another opportunity to elicit laughter from his audience. “Too many no’s,” he said and got serious once more.

Now, gentlemen, murder in its category and in its punishment is the most serious crime. The question for me to decide from this merest outline of evidence, this skeletonized description of what occurred in those apartments on Labor Day, is whether I am justified in holding the defendant for murder. And I do not believe I am justified in sending him to trial on this grievous charge. Therefor I hold him for trial on the charge of manslaughter.

Arbuckle was seen smiling at this news and pressed Minta Durfee’s hand. Not unlike a pitcher’s mound consultation, District Attorney Brady removed his straw hat and spoke to Golden so that he couldn’t be heard or his lips read. But Judge Lazarus heard Golden mention “rape.” “There has been no actual rape, forcibly and without the young woman’s consent,” the judge said. “There has not even been any attempt at rape shown. It might have been other acts committed by the defendant which caused Miss Rappe’s death.”

“What acts can your honor imagine?” asked Golden.

“Perhaps a simple assault and battery,” Judge Lazarus responded. “Perhaps criminal negligence”—but in effect he had judged Virginia Rappe as having contributed to her own status as the now silent victim. She had been judged but People vs. Arbuckle only addressed the reduced charge, “that a felony, to-wit: Manslaughter, has been committed and that there is reasonable and probably cause for believing the defendant, Roscoe Arbuckle, guilty thereof.”

Judge Lazarus’s decision was still a partial victory for Matthew Brady and his assistants. At least the case was still alive. Manslaughter was obviously the most justifiable charge—but it posed no less a challenge for the state than convincing a jury of murder for the same reason: of the two people who knew what happened, one was dead and the other wasn’t talking upon the advice of his lawyers.

Frank Dominguez and Milton Cohen had come very close to a dismissal of the case. Judge Lazarus had no real harsh words for Arbuckle. Lazarus scolded him about the ice but saw it as more overreaching, more theater on the part of Brady to get the murder charge. Though the judge showed sympathy for Arbuckle, the man who made the world laugh, he was also moved the the chambermaid Josephine Keza and allowed the case to move on to the Superior Court. He also ordered that Arbuckle could post bail in the sum of $10,000 in bonds or $5,000 in cash (about $146,000 and $73,000, respectively, adjusted for inflation).

In a matter of minutes, the worst of the suspicions that had dogged Arbuckle lifted. He and Minta Durfee found himself applauded after Judge Lazarus’s decision. Instead of a gauntlet of irate and militant clubwomen, Arbuckle was mobbed by well-wishers in Judge Lazarus’s antechambers. Some women stepped forward and shook hands with Fatty and congratulated him while he, with a free hand, expertly rolled a cigarette from a sack of Bull Durham tobacco. Even some members of the WVC were moved to side with Arbuckle. One of theim, Mrs. Janie K. Compton, handed Durfee a note before the court convened: “Tell Mr. Arbuckle I am praying for the complete vindication which he deserves on the testimony I have heard here.”[3]

Arbuckle returned to his cell to pack his suitcase. His lawyers posted bail, the cash amount already secured from the San Francisco branch of the Bank of Italy. Outside the Hall of Justice on Kearney Street, Arbuckle and Durfee posed for photographs—and were met by even more women who greeted him with cries of “Hurrah for Fatty!” “Good for you, Fatty!” “Hit ‘em with a pie, Fatty! Atta boy!” Then, after posing for a final photograph, Arbuckle climbed inside his brother’s automobile and drove off to an undisclosed hotel.

Roscoe Arbuckle (Calisphere)

[1] People vs. Arbuckle, 351.

[2] The following passage is based on Edward J. Doherty, “Arbuckle Freed on Bonds,” Chicago Tribune, 29 September 1921, 1–2. Unless otherwise noted, all quotations are from this reportage.

[3] “Arbuckle to Escape Trial for Murder,” Oakland Tribune, 28 September 1921, 1.

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