There are no photographs of Roscoe Arbuckle on the stand during his third trial.
This one was taken during his first trial testimony, November 1921 (Newspapers.com)
Unlike the first Roscoe Arbuckle trial, no transcript of Arbuckle’s testimony from his third trial is known to exist. Reporters, working with much less space—and interest in the case—typically described Arbuckle’s second appearance on the stand as much the same as his first—save for a few particulars. Milton U’Ren conducted the cross-examination. It received almost no coverage. In the earlier trials, reporters had noted the crowd size and what Minta Durfee was wearing. But they were silent this time. Nor did they mention any celebrities among the attendees as there had been when Arbuckle first testified in November 1921. (Buster Keaton and his wife Natalie Talmadge were in San Francisco “to visit friends” according to the San Francisco Call and, presumably, they could have been there to give their friend moral support and see him acquitted.)
What follows is an aggregation of newspaper accounts of Arbuckle’s day in court on April 5, 1922, at 10:45 a.m. Although certainly not like a transcript or the detailed reportage of Arbuckle’s first appearance on the stand, there is enough extant documentation to see that the prosecution wasn’t simply going through the motions on a case that many seemed to believe couldn’t be won.
Dr. Shiels had taken the stand as a defense medical expert witness three times during the course of the Arbuckle trials. He was tasked with demonstrating to the jury that a spontaneous rupture of the bladder wasn’t uncommon and was likely a contributing cause of Virginia Rappe’s death. If the walls of her bladder were weakened by disease, then any strain could have caused her bladder to rupture. Sneezing, coughing, vomiting, and the like, could cause such an injury. If he mentioned the injury could result from her straining to urinate or defecate, those details might have been struck by newspaper editors.
Dr. Shiels fields of expertise and his contributions to the Arbuckle trial get more attention in our book. But he is a link between one crime of the century and another. He is also credited with inventing a few terms used by Thaw’s San Francisco lawyer Delphin Delmas: brainstorm for what was essentially dementia praecox and a new and native disease, dementia Americana, for those crimes of passion in defense of a woman’s virtue, such as a wronged mother, wife, sister, or daughter. (By extension, one could imagine that impetus as the “pleasure principle” of the prosecution in pursuing Arbuckle.)
After Dr. Shiels testified, Gavin McNab, Arbuckle’s chief counsel announced that “Mr. Arbuckle will take the stand” and began the preliminary questioning in his Scottish brogue with the usual inquiries—who Arbuckle was, his business, and the like.
Reporters noticed that fewer spectators were present in the courtroom than had been for Arbuckle’s testimony at this first trial. They noticed, too, that the comedian had exchanged the robin’s egg blue spring suit that he had been wearing in recent days for dark blue serge—as though to indicate the seriousness of the moment which was also evident in his “clear, steady voice, speaking each word carefully and slowly.”
Arbuckle was nervous as he began to answer questions about the Labor Day party. Lacking the transcripts, we only have his answers as they were paraphrased by reporters. But the general outline of his testimony was the same as it was at the first trial—not a straight narrative but one interpolated by McNab’s questions, which led Arbuckle into room 1219 and back out.
A few days earlier, the jury had heard Arbuckle’s first trial testimony and cross-examination read in court by Assistant District Attorney Leo Friedman. This had been prefaced by the testimony of two newspapermen who had spoken to Arbuckle on September 9, hours after Rappe died. A trap had been set for Arbuckle to impeach himself.
The United Press wire service provided the most detailed account which appeared first in the afternoon and evening newspapers published on April 5.
“There was gin,” Arbuckle said, “Scotch whiskey and orange juice in the room when the people came. Some ate their breakfast there and some had their lunch, whatever it happened to be for them. For me it was breakfast. Most everyone drank. I did not, as I was just out of bed. While we were eating. Mrs. Marie [sic] Taube came in to see me. I was then dressed in my bathrobe.”
McNab stopped the testimony and asked that the “wicked bathrobe” be placed in evidence. To which one of the prosecutors—most likely Milton U’Ren—shouted, “We object to the word ‘wicked.”
“It goes out,” ruled Judge Harold Louderback. With that, the bathrobe, described as “a big, flaming purple affair, was then waved before the eyes of the jurors who were startled by its gay color.”
Arbuckle continued. “Mrs. Taube left and every one enjoyed themselves until about 3 p.m., when I went into my room to dress because I had an engagement with Mrs. Taube. I locked the door as I went in. I did not know anyone was in there. If I had I would not have locked it. I walked across the room and opened the bathroom door. It struck something and I looked and saw Miss Rappe lying on the floor.
“She was sick. I picked her up and carried her out and laid her on the bed.” At this point, Arbuckle rose from the witness chair and showed the jury how he accomplished this. In his first trial testimony, he helped Rappe walk from the bathroom to the smaller of the two beds, closest to the corridor. He sat her down. Then she laid down without assistance.
“Then I went back to the bathroom,” Arbuckle resumed, “and when I came out she was on the floor of the bedroom. I picked her up again and put her back on the bed and then called Mrs. Delmont.”
“When I came back into the room,” said Arbuckle, “Mrs. Delmont and Zey Pyvron were working over Miss Rappe. Miss Rappe began tearing at her clothes. She tore the sleeve off her waist and then she pulled up her skirt and tore the lace off one of her garters, like this.” He showed the jury, demonstrating on himself.
“They had a towel under her head and were rubbing her with cubes of ice like they have in hotels. I said, ‘What are you doing with this ice?’ and I picked up a piece of it.
“Mrs. Delmont said, ‘Get out of here, I know how to take care of Virginia.’ Here Arbuckle stood up again and became “emphatic.”
“I put the ice down and said, ‘You get out of here and shut up or I’ll throw you out of the window.’ I said that to Mrs. Delmont. That’s just what I said to her.” Then Arbuckle added something new, a simple detail to what was already known: That Maude Delmont showed off her calves.
“She had on Lowell Sherman’s pajamas,” Arbuckle continued. “They were rolled up to her knees.
“Mrs. Rappe never said a word while I was in the room. She moaned and groaned. I heard her. But she never said anything. Mrs. Taube came and I told her Miss Rappe was sick and asked her to call Mr. Boyle, manager of the hotel, and get a doctor.
“Mr. Boyle came up to the room and said he had another room for Virginia. I took Virginia in my arms and carried her down the hall. Half way I let Mr. Boyle take her as she was slipping in my arms. Then I went back to my room and spent the rest of the afternoon there and had dinner at the hotel that night.”
McNab then asked a series of questions in which Arbuckle described his arrest in San Francisco on the night of September 10, 1921.
“I came to San Francisco to tell my story when I heard Miss Rappe was dead,” Arbuckle said.
“When I got there, I was arrested on Market Street and taken to the Hall of Justice and held for two hours and a half and then I was taken into a room where Mr. U’Ren, the Assistant District Attorney, was waiting and I was asked some questions and then they put me in jail and charged me with murder.”
“Naturally, when I found myself in jail, a man begins to try to figure out why and it was then that I thought for the first time of having found Miss Rappe lying on the floor of my bathroom and then I knew how I came to be arrested.” With that, McNab dismissed his witness from the stand at 11:45 a.m. and the court adjourned for lunch.
The Oakland Tribune printed Mae Taube’s name as May Taube, which is illustrative of how far out of mind she had become, for she was never called to testify, whether for the prosecution or the defense. She had, of course, given a statement to the District Attorney’s office. But had not mentioned that Arbuckle intended to take her for a drive in Pierce-Arrow on the afternoon of September 5. That she was never asked to substantiate Arbuckle’s testimony is not only curious but an obvious mistake by the prosecution. Either she was beyond the District Attorney’s subpoena power or it was assumed she would substantiate Arbuckle’s account. Nevertheless, a “grilling” examination, like the kind employed on other reluctant prosecution witnesses such as Al Semnacher, Alice Blake, and Zey Prevost, might have revealed inconsistencies in Arbuckle’s story.
But there was no probing of whether the planned joy ride around San Francisco might be an invented alibi. All of the reportage suggests that Arbuckle had reduced it to simply an “engagement,” without any description of its nature. Also missing in the reportage is any earlier admission by Arbuckle that the party was organized by third parties and he had just gone along with it, didn’t invite the guests, and only knew Virginia Rappe among them. These details should have been reported again since they were salient, instead, only minor ones surfaced in the Oakland Tribune.
“I went into the bedroom and locked the door,” Arbuckle said. “I went to the bathroom and the door struck something. I looked in and saw Miss Rappe on the floor. She was holding her stomach and moaning.
“I gave her some water and asked if there was anything I could do for her. She said, ‘I want to lay down.’ I carried her to a bed and returned to the bath. When I came out into the room, Virginia was on the floor. I again placed her on one of the beds and went out for Mrs. Bambina Maud Delmont, her friend, and one of the guests.
“A number of the guests came into the room, including Miss Alice Blake, Mrs. Delmont, Miss Zey Prevost, and others. Miss Rappe sat up on the bed tearing her clothes. Her sleeve was hanging by a thread and I pulled it off.
“I went out of the room and returned later. Miss Rappe was lying nude on the bed. I tried to cover her up and Mrs. Delmont tried to stop me. I said to Mrs. Delmont: Shut up, or I will throw you out the window.”
In addition to the summoning of Harry Boyle and moving Rappe to another room, Arbuckle denied all knowledge of Jesse Norgaard, who testified that while he was a watchman of a motion picture studio in Culver City, Arbuckle attempted to bribe him to obtain the key to Miss Rappe’s dressing room.
Arbuckle confirmed certain statements regarding first aid given to Miss Rappe, made in Los Angeles to Warden Woolard, reporter for the Los Angeles Times. He admitted telling Woolard that “Miss Rappe had thrown a fit.” He denied having been ordered out of the hotel.
A statement to Woolard that he ordered Mrs. Delmont out of his room “because she became too boisterous,” as admitted by Arbuckle [was read to him]. “She was in pajamas and I told her to go and dress herself,” he explained.
The San Francisco Call also reported on Arbuckle’s testimony and cross-examination, which began during the afternoon session. The Call’s reporter remarked that “Arbuckle’s appearance on the stand was marked by frequent objections from Assistant District Attorney Milton U’Ren and a clash between Superior Court Judge Harold Louderback and Gavin McNab, chief counsel for the defense.”
Arbuckle stated that he had come “to San Francisco for the purpose of telling all I know about the case when I was arrested and taken before U’Ren.” Here U’Ren jumped to his feet and objected. Judge Louderback then had this part of Arbuckle’s testimony stricken out of the record.
McNab then began to complain about that the court had allowed the prosecution too much, especially the reading of Arbuckle’s first trial testimony and cross-examination so as to impeach his witness.
McNab said he had never heard of such license on the part of a criminal court. To this, Louderback reminded McNab and the courtroom of his, McNab’s, inexperience in criminal cases. While seemingly one of countless objections heard during the Arbuckle case, Louderback touches on something we will deal with in the book: that McNab, one of the best civil case lawyers in California at the time, wasn’t such a vaunted criminal defense lawyer as he is described in earlier Arbuckle case narratives.
Indeed, McNab had replaced one of the best criminal case lawyers in the state, Frank Dominguez, a strategy that may not have been for the best given that three trials were needed to reach a conclusion and the financial cost to Arbuckle for even one trial was considerable.
The Call provided a brief survey of Arbuckle’s morning testimony, noting that “the jury did not give him the rapt attention that the jury in the first trial accorded him when he testified.” This casual detail isn’t without merit given how little time the jury needed to coming to its decision compared to the two previous juries.
Arbuckle told of his arrival in San Francisco from Los Angeles with Fred Fishback and Lowell Sherman. He said that he had known Rappe for five years. He said that he “had an idea” how she had come there, but was not asked to expand on that. He named the guests: Al Semnacher, Rappe, Delmont, Alice Blake, Zey Prevost, and Ira Fortlouis.
Arbuckle described the breakfast–lunch and said that he didn’t drink during the meal and was never intoxicated.
He saw Alice Blake leave and return about 3:20. Virginia Rappe he had seen go into room 1221. Later he went into room 1219, remember he had an engagement at 3 o’clock with May Taube, a friend.
The Call then describes the “wicked robe” objection and moves on to how Arbuckle found the door leading into his bathroom stuck.
He shoved it open and saw Virginia Rappe lying on the floor and groaning. He picked her up, put her in a chair, wiped her face, and gave her a drink of water. She became ill again.
The defendant then picked her up and carried her into room 1219 and put her on a bed, he testified. When he returned from the bathroom with more water, he said, the girl had fallen on the floor between the two beds
The witness demonstrated how he had stooped and lifted the girl back to the bed. She was “moaning and groaning.”
He went into room 1220 and told Miss Zey Prevost that Virginia was sick. He also notified Mrs. Delmont, whom he found in room 1221.
The defendant at this point, in response to questions from his counsel, denied that during the time he was in room 1219, he had heard kicking or knocking at the door.
What varied here from the first trial testimony was the introduction of a chair in the bathroom. (This could have been assumed by the reporter.) And like the United Press reportage, Arbuckle seems to have streamlined his earlier testimony by the way he carried Rappe rather than helped her on her own power and how she was placed on both beds in room 1219.
When he returned to the room to the room, Virginia was tearing her clothes and groaning. She was tearing at some lace on her sleeve. He said he pulled the piece of lace off and handed it to her and told the other girl to make her stop yelling.
He left the room and came back and found Mrs. Delmont fixing an ice pack. There was ice on the girl’s nude body. He picked up a piece.
Mrs. Delmont, he said, screamed at him to “leave her alone. I know what to do for Virginia. You get out!”
“I told her,” testified Arbuckle, “to shut up or I’d throw her out of the window. I then telephoned to Mr. Boyle, the manager, telling Mrs. Delmont to get dressed. She was wearing Sherman’s pajamas.”[Here the Call doesn’t mention that it was Mrs. Taube who called the hotel manager.]
The witness told how he and Boyle had carried the girl across the corridor to room 1218. He denies that at any time he had heard the girl say, “I’m dying,” “He hurt me or “No, no, my God, no.” [The context for each statement was different and omitted here.]
“Did you say ‘shut up’ to her?” asked McNab.
“No, not to her. I told Mrs. Delmont that.”
“Did you at any time place your hand on the door while in the room with Virginia Rappe [the context being the fingerprint evidence]?”
The witness also denied that he had discussed the “ice incident” when he met Sherman, Fishback, and Semnacher the next day.” [This was an allusion to Semnacher’s testimony that Arbuckle said he inserted ice into Rappe’s “snatch.”]
He declared that until the present trial he had never known Jesse Norgaard, who testified for the state that Arbuckle once offered him money for a key to Virginia Rappe’s room at the Culver City studio.
It was during his testimony regarding the interview he gave to Warden Woolard, Los Angeles newspaper reporter, on the night of Miss Rappe’s death, that Arbuckle began to become obviously incensed by the insinuation he had been lying.
He denied that he had told the newspaper reporter that the door of room 1219 had remained unlocked. That is, he said, “I don’t remember telling him that I locked the door.” It was here that he made the remark about his being arrested while on his way to confer with the police about the case.
U’Ren objected to the testimony as not being proper and McNab came back with the assertion that he was not trying to impeach the testimony of Woolard. He then criticized the action of the prosecution in trying to impeach Arbuckle by the reading of his previous testimony before the defendant had then been placed on the stand.
The Call is the only newspaper that covered Arbuckle’s cross-examination. Most reporters, apparently in a hurry to file their copy, only reported that Milton U’Ren’s lackluster performance didn’t match that of his colleague Leo Friedman back in November. This was surprising given how passionate U’Ren was to prove Arbuckle’s guilt or win some pyrrhic victory in seeing Arbuckle banned from appearing in motion pictures. Arbuckle remained unshaken and his story varied little from that told at the first trial
only in being somewhat more detailed. Arbuckle was calm and possessed and withstood the battery of questions in straightforward style.
U’Ren sought to emphasize the fact that Arbuckle had never told his story until he faced the first jury. Arbuckle, in reply, reiterated that he had kept silence upon advice of his former counsel, Frank Dominguez.
“And that’s why he is not my counsel now,” he added.
U’Ren stressed the fact that Arbuckle in discussing his case with Los Angeles newspapermen don the night of Miss Rappe’s death, declared there were “no locked doors during the party.” Arbuckle subsequently told the jury that his having locked the bedroom door, when alleged, he entered the room t dress, had escaped his memory, until finding himself in the city prison, he had carefully reviewed all the circumstances of the party.
The Associated Press reporter heard Arbuckle say something early in his testimony that wasn’t said at the first trial—and not reported elsewhere. It has also been ignored in Arbuckle case narratives. In response to one of Gavin McNab’s questions about why he had come to San Francisco in the first place, the comedian told what could have been two white lies, simply filler to humanize his story for the jury.
Arbuckle’s complete testimony lasted three hours, the cross-examination consuming two-thirds of that time. The witness was dressed in a somber blue in contrast to the light spring sartorial effects he had worn for the past several days. He smiled upon taking the stand, as though in enjoyment of the experience, but appeared bored at some points in the cross-examination.
The courtroom was crowded throughout his session on the stand, but the throngs were thinner and less enthusiastic to hear than those which greeted his premiere as a witness on the occasion of the first hearing of the case.
He explained that he came to San Francisco two days before the fatal party purely for pleasure. “I had a new car to try out,” he said. “Later I was going to the golf tournament at Del Monte.”
Apparently, Milton U’Ren made nothing of the new car and destination, preferring to focus on Arbuckle’s veracity on minor points, such as whether doors were locked or unlocked. But it was accepted by U’Ren and his colleagues—as well as reporters and everyone writing about the case afterward—that Arbuckle already had booked his return passage on the Harvard in advance. Indeed, the San Francisco Chronicle poked fun at his person, calling him “considerable cargo.”
“Elaborate arrangements were made by Al Levy to provide a mirthful voyage, with ‘Fatty’ as jester”—which suggests Arbuckle was expected along with his entourage. Furthermore, Levy was the proprietor of a famous Hollywood restaurant, Levy’s Café, where Arbuckle was a regular.
Given that some minor Paramount executives were also on board suggests that Arbuckle was in San Francisco to promote the studio and its movies. This would make his stay at the St. Francis Hotel a layover until it was time to sail back to Los Angeles and participate in the capstone of Paramount Week, a showing of Arbuckle’s latest film, Gasoline Gus (1921) at Grauman’s Million Dollar Theater.
Arbuckle was introduced to his future second wife, Doris Deane, on board thanks to the efforts of his wingman Fred Fishback, who, with his friend Ira Fortlouis, had also steered Virginia Rappe to the Labor Day party. This story is one of the few reliable episodes in David Yallop’s The Day the Laughter Stopped, for he simply copied Deane’s own affectionate memory of meeting Arbuckle for the first time.
But was Arbuckle expected aboard the Harvard or did he take advantage of the opportunity to leave the St. Francis Hotel because he was seeking to distance himself from situation? Did he need to further test out a “new” car that he had already driven up from Los Angeles? He had mentioned trying out a new car on a drive to a golf tournament in Del Monte. It was never made clear what car he was referring to, given that the famous Pierce-Arrow, the “palace” on wheels, wasn’t exactly new. He had ordered another car from the same San Francisco coachmaker who had outfitted the Pierce-Arrow but it was either not ready or he had decided not to take delivery.
Then there is the destination for this automobile. Arbuckle undoubtedly meant that he was intending to drive south on the Pacific Coast Highway to see the California state golf championship at Pebble Beach, that is, Del Monte.
For anyone present when and if Arbuckle casually mentioned what he intended to do on the day after his ill-fated party, “Del Monte” fit a puzzle piece apparently overlooked. Rappe’s manager in his statement to the District Attorney and later during a preliminary hearing—and possibly at his subsequent appearance as a prosecution witness, said that had Rappe not gotten sick at the party, he and Maude Delmont would have gone on from San Francisco on the late afternoon of September 5 and stopped at Del Monte for the night—or was it to take in the golf tournament as well?
And there it is, Delmont, Del Monte. To bring that up would just throw more chaff at the jury in all the names and other details they needed to keep straight.
 Adapted from United Press, “Arbuckle on Stand in Own Behalf,” Pomona Progress, 5 April 1922, 1; “Arbuckle Tells of His Fatal Party on Labor Day,” Modesto Evening News, 5 April 1922, 1; “Arbuckle Tells Story on Stand,” Oakland Tribune, 5 April 1922, 1; “Judge Flays Lawyer in Arbuckle Defense,” San Francisco Call, 5 April 1922, 1,2; “Defense Rests in Arbuckle Case; Is Surprise,” San Francisco Call, 6 April 1922, 2; Associated Press Night Wire, “Arbuckle Takes Stand,” Los Angeles Times, 6 April 1922, I:2; and other corroborative sources.
 “Arbuckle on Harvard,” San Francisco Chronicle, 7 September 1921, 18.