The contents of the casting director’s wallet, October 1921

The mysterious death of Al Stein in the early hours of October 9, 1921, raised eyebrows a century ago in the weeks leading up to the first Arbuckle trial. The following passage is another from our work-in-progress that highlights several “sideshows.” This one, we feel, deserves a sidelong look, so to speak, for the way it calls attention to two Labor Day partygoers: Fred Fishback and Ira Fortlouis.

Their conduct in the Arbuckle case deserves more curiosity. Hence the detail below that might make the final edit in this or another form.

The day before Paramount and Famous Players–Lasky brass met to discuss their Arbuckle problem, Universal Pictures and Hollywood’s film colony suffered another casualty attributed to alcohol and a dissolute lifestyle. Fred Fishback’s personal assistant, Albert F. Stein, body was found dead in Los Angeles during the early hours of Sunday, October 9, one month after the death of Virginia Rappe. Propped up by two pillows on the floor of his bedroom, his face had turned blue from having choked to death. The only mark on his body was a two-inch scratch on his face. Newspapers described the scene at the Golden Apartments on 1130 West 7th Street as a “liquor orgy,” which began when Stein returned home with three men just before midnight on Saturday, October 8.

Stein, the son of a Jewish bookkeeper and his Mexican American wife, was twenty-seven when he died. During his short life, he had married, fathered a young son, and once played professional baseball in the California leagues for a minor league team owned by the Santa Fe Railroad. Although he was good enough to be a prospect for the St. Louis Nationals and the Chicago Cubs, Stein decided against the vicissitudes of a minor league baseball team and found work in motion pictures.

Stein’s real talent wasn’t in front of the camera but behind it. He quickly rose in the ranks at Sunshine Comedies, where he came under the wing of Henry Lehrman and undoubtedly was in almost daily contact with Virginia Rappe between 1919 and 1920 at the Culver City plant—where Stein, too, experienced the frisson of having Roscoe Arbuckle and Buster Keaton working in the neighboring studio.

When Lehrman started his own company in 1920, Stein was promoted to casting director. When his mentor went bankrupt at the end of that year, Stein was quickly picked up by Fred Fishback for Century Film Corporation, where Stein continued to work as an assistant and casting director. Naturally ambitious, Stein served Fishback well and was expected to take charge of one of Century’s units in November.

In a series of articles in September, the New York Daily News tried to make sense of what happened to Arbuckle and Rappe at the St. Francis Hotel following her death by investigating the culture and mores of the film colony. Men in Al Stein’s position were known to take advantage of it. “There is a lascivious maxim concerning the gateway to success in the pictures,” that screen tests were a stock joke. “Strict vigilance does not always prevent refractions,” opined the Daily News given the anecdotal evidence. “[N]ot long ago a casting director was discharged after rumors of questionable affairs with women seeking parts in pictures.”

Although Stein wasn’t the man in question, he was no exception and the rigors and pleasures of his motion picture work took a toll on his marriage, more so than the away games of his brief baseball career. When he died, Stein was already divorced and cohabitating with two young, pretty “studio girls,” a term used for aspiring young actresses who had yet to make a screen debut or still worked as extras and showgirls. The threesome began shortly after he moved into his apartment in September. A blonde, whom he registered as his sister, Mildred Bellwin was followed by her friend, a redhead, Jean Monroe. Both were members of the Pantages Broadway Follies. They were his first responders on the October 9.

According to their statements to the police, they kept to their rooms and did not see Stein and his friends. Their story, told in an “airy” manner, suggested that the gathering was a stag party. When it ended around midnight, however, both young women joined Stein in his bedroom and just “talked” for about an hour. Then the women retired to their shared bedroom and left Stein alone in his.

Another hour passed and Jean Monroe was awakened by a “terrible gaspy, creepy noise of some kind,” as she described it, “a ghastly thing to hear at 2:30.” She woke her roommate. When they found Stein, he was lying half out of bed with his head on the floor and his feet still under his bedclothes. They splashed his face with cold water. But his breathing became more labored, he began to turn blue.

Monroe and Bellwin then called Stein’s older brother Carl, who soon arrived and summoned a doctor—and the police. But it was too late. His brother had already passed.

According to the police, wine and whiskey bottles littered his room and the kitchen. A bottle of “moonshine” was also found—and a pronounced scratch on one of Stein’s heavy cheeks. Asked to explain the scratch, Stein’s roommates said it was self-inflicted two days earlier. He had picked up a nail file in their presence and said, “It’s funny how people hurt themselves with things like this.” Then he proceeded to draw the blade across his cheek. But that wasn’t the only thing that was strange about scene in Stein’s bedroom.

When police searched his billfold, they found a list of names and telephone numbers that, according to the Los Angeles Times, “indicated that he had a wide field of women acquaintances.” Also found was a telegram addressed to Ira Fortlouis at the Century Film Corporation from District Attorney Matthew Brady dated September 19 that read: “Please report to district attorney’s office, San Francisco, immediately.” On the back in pencil, was a note, presumably the text of wired response to Brady’s request. But it wasn’t from Fortlouis: “Will be at your office tomorrow noon—Fred Fishback. Leaving for San Francisco today.”

Stein’s billfold contained one more mystery. There was a check for $25, made out to Fishback by the director Frank Beal and endorsed by Fishback. On the surface, it seemed as though Fishback delegated some personal business to Stein and used Brady’s telegram like a scrap of paper.

Bellwin and Monroe were subsequently jailed on suspicion of having poisoned Stein—and Fred Fishback found himself in the middle of another scandal that mixed alcohol and showgirls—as well as the Arbuckle case until a better explanation was found for the District Attorney of San Francisco’s telegram in a dead man’s wallet.

Two Los Angeles police detectives spoke to Fishback. They had a theory that Stein had been summoned to San Francisco as a potential witness for the prosecution. They believed that he could have been murdered since none of his drinking companions had suffered the same ill effects. But what the detectives learned from Fishback provided no further clues and was likely little different from what the comedy director told the Los Angeles Times. “I have known Al Stein for several months,” Fishback said,

and in all my dealings with him he had been sober and industrious. I did not know that he was a drinking man. I was greatly shocked to hear of his death and immediately offered to do what I could. Who the two girls are I do not know. The only time I saw them was last Friday, when I stopped for a moment at Al’s apartment on business. I asked him then if both the girls were living there in the same apartment and he explained that he merely occupied the front room while they occupied the rest.

When no poison was found in Stein’s stomach, the coroner determined that Stein had died of acute alcoholism. There was no crime. Stein’s brother Carl, for his part, saw no drinking problem. He said his brother Al was subject to heart attacks and suffered choking fits.

In the end, Stein’s roommates were only charged with “vagrancy” and released. Fishback made the funeral arrangements and the case quickly faded before the Matthew Brady arrived to conduct his “open house” in Los Angeles. There was no curiosity on his part. His deputy, Milton U’Ren, only said that Stein didn’t “figure in any important connection in the case against Roscoe Arbuckle”—nor could he address why Stein had in his possession a telegram intended for Ira Fortlouis.

Al Stein (Newspaper Enterprise Agency, private collection)


Gestational cystitis and Rappe’s Baby Girl: Nurse Roth speaks out, October 28, 1921

The work-in-progress features a chapter on October 1921. During this time, Arbuckle’s defense team and strategy changed. Frank Dominguez, the comedian’s lead counsel in September, allegedly resigned to pursue his own interests in Los Angeles. But his departure had more to do with his strategy of insinuating that Maude Delmont and Al Semnacher had tried to blackmail Arbuckle with Rappe’s torn undergarments, which they had secreted away to Los Angeles.

Dominguez probably didn’t believe in such a scheme. It only served to further undermine the credibility of Maude Delmont. Once she testified at the preliminary hearing or trial, a masterful cross-examination would destroy the prosecution’s case. No jury would convict Arbuckle after this alleged extortionist, alcoholic, and drug addict was deconstructed in the witness chair.

But this strategy presupposed a crime, that Arbuckle had done something wrong, like raping Virginia Rappe, failing to report a slapstick-worthy accident in the act of consensual intercourse—a horrific embarrassment!—and the like. Such a defense only made the problem worse for Joseph Schenk, Adolph Zukor, Jesse Lasky, and others were stakeholders in Arbuckle’s career. They knew that their star comedian had to be completely innocent of any wrong doing, “squeaky clean,” as it were. Thus, there had to be a kind of legal, ethical, and situational “estrangement” from the parttime actress and society girl who, until she suffered her fatal injury, was Arbuckle’s friend, “one of the gang.”

Dominguez’s partner and Arbuckle’s personal lawyer, Milton Cohen, was also part of the comedian’s defense team. Cohen authored the strategy of “deconstructing” Virginia Rappe. He had been her personal attorney and knew more about her than any of his colleagues. That is, he knew that of the many reinvented people in Hollywood, with their different names and confected backstories, Rappe’s was a blank slate. If she didn’t have any skeletons in her closet, he could put them in there.

Dominguez’s successor, Gavin McNab, was readily on board to develop this strategy with Cohen’s counterpart in Chicago, the lawyer Albert Sabath, a close friend of Rappe’s first boyfriend, Harry Barker. The strategy was simple enough: to blame the victim before Arbuckle’s manslaughter trial in November and get it out into the press before jury selection.

Arbuckle’s defense team spent much of October to find witnesses who could turn Rappe’s uterus inside out as it were. They had an immense war chest and weren’t shy about intimidating the District Attorney of San Francisco with how much money they had as the postscript below the following news item makes clear.

The news item in question is the capstone to a wave of such articles that DA Matthew Brady dismissed as “propaganda.” These appeared in various forms published by the Hearst syndicate’s International News Service (so much for the evil William Randolph Hearst meme of so many previous Arbuckle case narratives and biographies).

We devote an earlier blog entry to this topic because of the centrality of the cystitis–pregnancy strategy in getting Arbuckle acquitted in April 1922. Although we can’t fault the law of diminishing returns after three trials, the money spent on his defense didn’t convince enough of the public that Arbuckle was moral, upright, and untainted by his so-called Labor Day “orgy.”

Here, we return to the “propaganda” campaign because of the unusual features of this version from the Los Angeles Evening Herald of October 28, 1921. It gives a description of Rappe’s “daughter,” as though she were a tiny clone of the mother. This article, too, was the first to give a name to Rappe’s bladder disease.

Readers should note that premature infants were considered sideshow oddities in the early twentieth century. Nurse Roth, without any pang of conscience, knows that she would suffer no censure for mentioning that such homunculi were put on display like circus freaks—this along with being such a good friend and confidante to Virginia Rappe.

Attorneys in Chicago Hear Story of Acquaintance of Actress

By International News Service

CHICAGO, Oct. 28.—Shadowed secrets from the hidden past of Virginia Rappe, dead movie actress, were drawn to light today in an effort to clear Roscoe “Fatty” Arbuckle from responsibility for her death. The dead actress’ early life was revealed with many sordid details by Mrs. Josephine Roth, her lifelong friend.

The revelations included the fact that Virginia had been a mother, her child dying when 5 years old. The most startling statement made by Mrs. Roth was that the actress was in constant danger of a sudden shock.


“If I could tell my story to a jury of physicians, ‘Fatty’’ Arbuckle would be freed in 10 minutes,” was her dramatic statement. “Virginia could have died at any time from a sharp fall or even a sudden misstep.”

Her story was told to Assistant State’s Attorney Frank Peska, who represented District Attorney Brady of San Francisco. It was to be repeated later to Attorney Brennan of Arbuckle’s defense counsel, who arrived this afternoon.

Mrs. Roth told her story with tears, in her eyes.

“Virginia’s memory is still so tender,” she said.


She declared that Miss Rappe was a constant sufferer from systitus [sic], a chronic disease of a vital organ. Mrs. Roth, who had acted frequently as nurse to the former model, then described in detail the medical attention given the ailing woman. This treatment had been continued until 1913, when Virginia left Chicago, said Mrs. Roth.

“A baby was born here to Virginia. It was so small and frail, it was placed in an incubator and exhibited at a local amusement place,” said the former nurse.


“The child was very beautiful. She had Virginia’s black hair and big black eyes. She died when 5 years of age.”

Other depositions were taken during the day from Miss Virginia Warren, also a nurse; Jay Abrams and a prominent theatrical producer, whose name was withheld.


SAN FRANCISCO, Oct. 28—The fight to save Roscoe “Fatty” Arbuckle from prison today assumed a wider scope with the circulation of the rumor that unlimited money for defense purposes has been placed at the comedian’s command. Lawyers, picked not for price but for the success they have achieved in San Francisco courts, have been engaged to conduct the defense. A nation-wide search for evidence, admittedly costing heavily, was underway today.

Gavin McNab, recently named chief counsel for Arbuckle, has frankly stated a group o{ men with investments in motion pictures have employed him. It was generally believed here that McNab’s fee went high into five figures and perhaps six.

Charles Brennan, another of Arbuckle’s lawyers, expected to reach Chicago tomorrow, in his search for evidence. Later, Brennan is expected to go to New York and Washington, where other witnesses are believed located.

Among those he will see in the east will be Lowell Sherman, Broadway favorite and picture star, who was a guest at Arbuckle’s party preceding Virginia Rappe’s death. The entire story of Virginia Rappe’s life Is being pieced together by the defense as a foundation for a theory that she died from unavoidable causes for which Arbuckle had no responsibility.

Source: Los Angeles Evening Herald, 28 October 1921, A3.

Nurse Josephine Rafferty Roth, infant, and onlooker, ca. 1910s (Private collection)

“I heard a man’s voice say, ‘Shut up.’”

The following passage is from 1 Judges, that part of our book dealing with the preliminary investigation of Judge Sylvain Lazarus in late September 1921. Lazarus, A police court judge, had been tasked with determining if Roscoe Arbuckle should be tried in the Superior Court of San Francisco on a charge of murder in the first degree or manslaughter.

The testimony of Josephine Keza, the last witness, convinced him to decide on the lesser charge. Otherwise, the judge could have decided against charging Arbuckle for any crime given his grim view of the other witnesses and the failure of putting Maude Delmont on the stand (see 100 Years Ago Today: Arbuckle to be tried for manslaughter instead of murder, September 28, 1921).

Mrs. Keza would testify in all three Arbuckle trials.

Josephine Keza in her St. Francis Hotel maid uniform, Oct. 1921 (Newspaper Enterprise Association, private collection)

After the clinical charts pertaining to Virginia Rappe had been handed over to the defense and entered into the court record, the next witness appeared. She wasn’t Maude Delmont. Although Josephine Keza had been deposed by Milton U’Ren among other St. Francis Hotel employees ten days earlier, her appearance caught Arbuckle’s defense team off-guard.

Freda Blum, who covered the Arbuckle trials for Hearst’s San Francisco Call and International News Service, noted the contrast between the twenty-two-year-old Polish immigrant and the fashionable young women who testified before her. “Unlike the one who ‘models’ for her bread and the other whose ability to entertain earns for her a living,” Blum observed,

the third witness revealed herself in a far different status—one engaged in menial labor. Josephine Keza is a chambermaid at the St. Francis and assigned to the section of the hostelry where the party took place. She wore the unmistakable “beat silk” of the servant class, with long gloves and a last winter’s hat.

Josephine Keza is a foreigner and the English language is difficult for her. She was alternately confused and enthralled by the orations of the defense and prosecution, and when the court released her from the stand, she quietly left the room and went back to her housecleaning.

Milton U’Ren hurriedly questioned his new witness. “Do you remember that Mr. Arbuckle—Roscoe Arbuckle—the gentleman sitting here and some other gentlemen occupied some rooms is the St. Francis Hotel on Labor Day?”

Keza did and U’Ren continued. She described for him that, while cleaning vacant rooms on the twelfth floor, she had heard a woman scream from the direction of Arbuckle’s party. Keza was uncertain about the time. She estimated it to be between 2:00 and 2:30 p.m., which, unlike prior testimony, provided an actual window for Rappe and Arbuckle to be inside room 1219. This pushed the time of Rappe’s injury taking place earlier than previous timeframes, which thus far could only be inferred between 3:00 and 4:00 p.m.

Keza recalled that she hurried down the hall and stood outside room 1219, having heard a woman pleading, crying, “Oh, no, no! Oh, my God! Oh, no!”

“And did you hear a man’s voice in the room?” U’ren asked.

Keza responded, “I heard a man’s voice say, ‘Shut up.’”

With that U’Ren turned his witness over for cross-examination, knowing that Dominguez wasn’t prepared. Although furious and incredulous for the introduction of such a witness, he comported himself and calmly, firmly asked who had deposed her. He was, in effect, ferreting out whether she had been coached by the prosecution. “Who told you to come here and tell this outrageous story?” Dominguez asked with an incredulous tone.

The witness explained that she had given a statement more than a week before to Assistant District Attorney U’Ren.

“Are you in the habit of listening at the doors of the rooms?” asked Dominguez.

Keza understood enough English to know that the lawyer was insulting her. She denied that she eavesdropped for diversion. “When we hear shrieks like those, of course,” she said, “We run to see what is the matter.”

Given the noise, shouting, laughter, and music emanating from the Arbuckle suite on Labor Day afternoon, it was hard not to pay attention. Then, Keza, according to Oscar Fernbach of the Examiner, “positively, unswervingly, and with even added force” repeated to Dominguez what she had heard through the door of the room 1219.

Arbuckle, whose reactions to Zey Prevost and Alice Blake were more of boredom than interest, had come to life when he saw the hotel maid. According to Edward J. Doherty of the Chicago Tribune, the comedian began

rubbing his red chin. Streaks of white showed on them from the pressure of his fingers. Frank Dominguez, his chief counsel appeared utterly bewildered. The spectators were leaning forward, drinking in every word.

Miss Keza, a large woman in a blue dress splashed with white, her string of pearl beads, her gray elbow gloves, gay stockings, and sandals, and her wide black sailor hat, was a little conscious of the crowd, a bit amused and perhaps a bit delighted, at the bomb shell she had exploded.

Dominguez took the witness; he questioned her at length, but only made her testimony stand out the plainer. Every question brought more dynamite for the defense. He dropped her suddenly and finally after she had stated she did not always listen at doors and explained—

“But when there’s music and dancing and loud talking you sometimes want to listen.”

Now, leaning forward in his chair as well, Arbuckle whispered to his lawyers. He surely recognized Keza, who had been in an out of his suite throughout the day before and after Rappe’s crisis. This came up as Dominguez pressed Keza to tell him who had been the first person to hear her story, even before she shared it with the other maids.

“I don’t know who it was first—everybody,” Keza answered and then remembered an exception. “I said to a lady in the hotel by the table I heard the girl scream.”

This overlooked statement stands out. It means that Keza had been in room 1220 and after Rappe had been moved to room 1227 as the party went on without her, as the frolicking continued with the arrival of Betty Campbell and Dolly Clark.

As damning as Keza’s testimony sounded, she couldn’t see through the walls of 1219 and Dominguez knew this.

“I heard all afternoon screaming,” she answered as he continued to query her about the level and kinds of noise coming out Arbuckle’s suite—and so revealed that the “screaming” could have been just the ambience from any of the rooms or all three.

“And in 1221,” Keza continued. “And 1220 was all music and dancing and all kinds of noise—and doors slamming and everything—and by the time there was a girl[’s] scream I saw one gentleman came out and after him one lady, but I could never say which one it could be—because I didn’t see her very good, and she was undressed.”

Without being asked, Keza divulged that the hallway door to room 1220 was open. She made it plain to the court that she was alert to the sounds from Arbuckle’s suite for much of the afternoon.

Dominguez’s next line of questions addressed Keza’s opportune hovering right outside room 1220.

Q: The fact of the matter is, you never heard this language at all; isn’t that true—isn’t that the fact—you never heard this language at all, did you?”

A: What I don’t hear?

Q: I mean these voices—you didn’t hear them at all in 1219?

A: I didn’t hear them say “Oh my God?”

Q: Yes.

A: I did hear it, plain, too—and I heard a lot of slamming the doors just the same at that time.

Q: What is that?

A: I heard the door slamming at that time.

Q: Did anybody tell you to tell this story here in court?

A: When?

Q: That you heard these voices in that room—did anybody tell you to tell it here?

A: Well, I had nobody to tell me.

When Dominguez asked Keza if she had reported the “conversation,” his euphemism for the voices she heard, meaning to the hotel management, Keza said no. “You are sure it ever occurred?” he asked.

Before Keza could be browbeaten any further and give the defense an advantage, Isadore Golden objected. Dominguez had already asked that several times. Judge Lazarus agreed. Flustered, Dominguez responded that he hadn’t repeated this question and that the record would show it.

Golden: Three times.

Dominguez: I beg your pardon; not in this form. It is a peculiar witness, Mr. Golden.

Golden: There is nothing peculiar about the witness, she is a very hard-working woman.

Dominguez: That is all.


A new legend about Virginia Rappe: Anna Mariania

At this writing, we are revising the part of the manuscript dealing with Arbuckle’s first trial venue, the Police Court preliminary investigation that would determine whether to charge him with murder or manslaughter before referring the case to the Superior Court of San Francisco.

There is an extant court transcript for us to reference. And this phase of the Arbuckle case was well documented by the press, especially the reporting filed by Evelyn Wells of the San Francisco Call and John H. Richardson of the Los Angeles Evening Herald. Both newspapers were part of the Hearst chain and their coverage hardly evinces the yellow journalism asserted by most other Arbuckle case narratives. Nevertheless, one can find some strange items like the piece about Virginia Rappe’s mysterious past. An edited version first appeared in the Los Angeles Evening Herald on September 26, 1921. But a much longer version, reprinted here, was published in the Pomona Bulletin the following day.

In all likelihood the feature was “propaganda” provided by Arbuckle’s defense lawyers, or a “friendly” third party, to associate Rappe with the Chicago underworld and the demimonde of the notorious Levee district. The target audience was the press, especially the wire services, and ultimately the jury pool in San Francisco, the prosecutors, and the judge.

The following reportage, without byline or dateline, covering Rappe’s early years and introduction to show business, is a marvel of creativity, more like the work of screenwriter than a lawyer if one can imagine the prose as intertitles in a silent film. (During the third Arbuckle trial, a witness was found to posit Rappe as a nightclub entertainer early in her career. See Inexpert witness shopping (Chicago style).) And if this piece wasn’t propaganda, the story of Anna Mariania–Virginia Rappe shows the frustration that many journalists had in trying to piece together Rappe’s background, so much so that they resorted to making things up. Resorting to fiction, too, is hardly restricted to 1921. One can find creative license throughout “authoritative” biographies of Arbuckle and other actors of the silent era, histories, scholarly monographs, and the like.

Virginia Rappe Was Child of Steel Puddler

From obscure poverty as the daughter of an immigrant steel worker to a place in the sun of screen popularity with attendant luxury, this was the career of beautiful Virginia Rappe, according to investigators into the past of the girl for whose death Roscoe Arbuckle, film comedian, is now imprisoned.

Though known by thousands, she was a girl alone. Seemingly she did everything possible to remain alone, to cut herself off from a past with its share of storm and cloud in the hope of future happiness. But a tragic death intervened.

Contrary to recent reports of the girl’s parentage, Virginia Rappe was born Anna Mariania, say those who claim to know. The secret of her dark, flashing beauty lay in an Italian–Jewish parentage. Her father, according to information obtained by investigation, was a steel puddler at Braddock, Pa..[1]

But the life of a steel worker’s daughter amid the grime and soot of the mills was not to the taste of Anna. Eager to see the world, to taste of a life more alluring than that to which she was accustomed, the girl joined a repertoire troupe, which passed through her home town, and went on the road.

The leader of the show was named Rappe, and it was from him that the future film favorite took the name by which she was afterward known, Virginia Rappe.

After some months with traveling show, it is said Virginia went to Chicago. Here she became a cabaret dancer, and was a popular entertainer at the famous establishment of “Big Jim” Colosimo, king of the Chicago tenderloin, who was mysteriously murdered a year ago.[2]

Her strange, dark beauty, exploited in a “hooch” dance, became one of the attractions of the resort, and drew the attention of many admirers.[3]

But the lure of the movies took possession of the girl who had already gone far on the road from the humble home at Braddock. The bright lights of Chicago’s night life held her, but not so closely. She longed for something else. Ambition whispered, “You can star in pictures. Others do. Why not you?”

And she listened.

Among those who came to Colosimo’s was a certain motion picture director. He was attracted to the girl, who told him of her desire to come to California, to enter motion pictures. He encouraged her. With her beauty and talent, he said, she could make a success. He would help her.

Virginia came. Six years ago it was she left Chicago. In time the film director starred her in comedies and she became well known as a screen beauty.

There were tales of many admirers. There was Tony, who was only a waiter at one of the city’s most exclusive restaurants, but whose hot Italian blood flamed with love for the voluptuous beauty of Miss Rappe.

His room was a photograph gallery of the picture girl. He had three portraits of her on the ceiling that he “might see her the first thing in the morning and the last thing at night,” so he said.

And she returned his love. After dinner with other admirers when her waiter sweetheart would serve her every wish, she would leave the first man of the evening to go home with her more humble love.

There were rumors that one who had done much for her had deserted her. But who could tell? She was the same vivacious beauty, in love with a “good time.” And it was while out “for a good time” that Death stalked in where only Joy had come before.

Source: The Bulletin (Pomona, California), 27 September 1921, 8.

[1] Braddock, a suburb of Pittsburgh, was the site of Andrew Carnegie’s first steel mill.

[2] Vincenzo “Big Jim” Colosimo, called the “underworld czar” of Chicago, who made his fortune on prostitution, was shot to death on May 11, 1920, possibly by Al Capone or an out-of-town hitman as he advanced in his “career.”

[3] Hooch, i.e., any sexually provocative dance better known as the “hoochie-coochie.”

Dr. Charles E. Barnes, the quack whose heroic measures saved Arbuckle?

Our unconventional narrative leads in with the life or legend of Virginia Rappe. It leads out with an epilogue that follows some of the figures from the Arbuckle trial and the so-called “Rappe curse.”

Practically all members of the jury declared that the most important piece of evidence in their minds was the testimony of Dr. Charles Barnes of Omaha, defense surprise witness, who impeached the testimony of one of the state’s principal witnesses, Mrs. Fox, and declared that he had treated Miss Rappe for the same sort of trouble which the defense claimed was the cause of her death.

Edward W. Brown, jury foreman[1]

A century ago this week, Minta Durfee made the decision to part ways with Roscoe Arbuckle. Like the vaudeville actress that she was at heart, she could see that her role in “standing by” her estranged husband for eight months was over. Despite Adolph Zukor’s promise to release two new Arbuckle films as well as Gasoline Gus (1921), he and other stakeholders in Arbuckle agreed with Will H. Hays, the Chairman of the Motion Picture Producers and Distributors of America, that the ban on Arbuckle’s films should continue for the present.

Arbuckle was also prevented from going back to work on new films. If Durfee hoped to ride on his coattails again in making her own comeback, those hopes had been dashed. She decided to return to her apartment on Riverside Drive and Arbuckle remained behind in Los Angeles to settle his debts. He put his West Adams Street mansion on the market and looked for someone to buy his beloved Pierce-Arrow “palace car” that he drove to San Francisco and his ill-fated Labor Day party at the St. Francis Hotel.

On her return to New York City, Durfee got off the train in Omaha to spend a couple of days with a special friend, made during the course of the third Arbuckle trial, Dr. Charles Edwin Barnes. His rebuttal testimony on April 10, challenged the assertion of Katherine Fox, Virginia Rappe’s guardian and mentor, that Rappe had been healthy and suffered from no illnesses (see also Katherine Nelson Fox . . .). Dr. Barnes took the stand and said that he had treated Rappe for cystitis in Chicago during the summer of 1909.

Barnes, too, also tested Fox on her marital status and residence in 1909, dropping her maiden name of “Dot” Nelson in such a way that made her sound more like a moll or madam than the woman who paid for Rappe’s dance lessons and clothes—and encouraged her to model and perform on stage.

There was no surrebuttal on the part of Mrs. Fox, who sat through Barnes’ testimony. The prosecution challenged Dr. Barnes’ notes and records. But the case went to the jury and they made their decision to acquit in minutes. They returned to the courtroom with a ready statement that could have been written by Adolph Zukor himself, insisting that the injustice done to Arbuckle and his career be remedied.

Newspaper reporters were quick to see that Dr. Barnes had scored a “direct hit” on the prosecution’s case. For us, however, it is another indication that the victim—the woman—was on trial no less than the famous motion picture comedian.

The defense scored in the third trial of Roscoe “Fatty” Arbuckle today when it placed Dr. Charles E. Barnes of Omaha, formerly of Chicago, on the witness stand to rebut the testimony previously given by Mrs. Catherine [sic] Fox of Chicago. At the conclusion of Dr. Barnes testimony and several other witnesses from Southern California the defense announced it had completed its case. The state asked time to check up by telegraph certain portions of Dr. Barnes’ testimony, and the court [i.e., Judge Louderbeck] granted until 10 o’clock tomorrow morning for the prosecution get this information. The court announced, however, that if the state was not ready to proceed at that time he would order the case closed and arguments started.

Dr. Barnes testified that for three months—from June through August—in 1909 he had treated Miss Rappe for an abscess and a chronic ailment and that it was Mrs. Catherine Fox, whom he pointed out in the court room as Miss Dot Nelson, who had introduced him to Miss Rappe and who had brought the girl to his office for treatment.

Mrs. Fox has testified that during the year 1909 she had seen Virginia every day and that at no time was the girl under the care of a physician.

“When did you first meet Dot Nelsen [sic]?” the doctor was asked.

“The latter part of 1908, at the boarding house run by my mother,” Dr. Barnes replied. “Dot Nelson lived in a room across the hall from my room at the time and I saw her every day. The last time I saw her was in August 1909,” the witness continued.[2]

“Do you see any change in the person you recognize as Dot Nelson,” Assistant District Attorney Leo Friedman asked the witness.

“None whatever, I could never mistake her. She has changed but very little,” the witness replied.

Shortly after he met Miss Rappe in a social way, at the States restaurant, said the physician, he treated her for acute gastritis. Then in June, 1909, he declared, she visited him with Miss Nelson, because of her health. An examination revealed an abscess and a condition which necessitated an operation. The operation, Dr. Barnes said, was performed by himself and a Dr. Wicks.[3] He found the organ, which was mentioned so prominently in this case [i.e., the bladder], in a diseased condition, and continued his treatments for over a period of three months.

Five prescriptions, which the physician said he had written for Miss Rappe, were introduced in the evidence. The prosecution tried in vain to confuse the doctor regarding the dates, but the witness always corrected his cross-questioner and at times caused the spectators to laugh at his answers.

The court, however, took the pleasure of the laughing away from the spectators by announcing he would clear the room if it was repeated.[4]

Although some newspapers reported the “chronic ailment” as cystitis, what little testimony that survives in reportage doesn’t have Dr. Barnes using this exact term.[5] In any case, he had exposed Mrs. Fox as an “imposter” and liar. Marjorie Driscoll of the San Francisco Chronicle, who had covered the three trials for months, wrote effusively—and, perhaps, relieved that Barnes had finally put an end to the Arbuckle case so that she and her colleagues could move on.

Dr. Charles M. [sic] Barnes was literally and figuratively the biggest gun fired by the defense. He was a double-barreled weapon, for his testimony not only tended to show that Virginia Rappe had at one time suffered precisely from the ailment claimed for her by the defense, but the load from the other barrel landed squarely on Mrs, Catherine Fox, state witness to Miss Rappe’s excellent health.

Dr. Barnes identifies Mrs. Fox in open court as the “Dot Nelson” who had visited his office in company with Virginia Rappe in the summer of 1909, when she was treating Miss Rappe for serious illness. Mrs. Fox had previously admitted having born the nickname of “Dot” in the days before her marriage, when she was Miss Nelson.

Mrs. Fox sat in the front row and radiated silent but vigorous denials as Dr. Barnes testified. If looks could slay, Dr. Barnes would have crumpled on the spot.

Dr. Barnes produced his prescription book containing duplicates of prescriptions he said he furnished Miss Rappe. The state drew some consolation from his admission that there no dates in the book, but he insisted that it covered the period in question, declaring that he remembered many cases therein referred to.

Whereas Mrs. Fox previously testified that she never knew Dr. Barnes, Dr. Barnes yesterday said that for two years between 1899 and 1900 he and Mrs. Fox, then Miss Nelson, not only lived in the same boarding house, kept by his mother, but occupied rooms across the hall from one another. He also said that he had seen her on other occasions since that time, and described a meeting in a Chicago café, denied by Mrs. Fox.

A ray of light for the state appeared during the cross-examination when Dr. Barnes said that he considered Miss Rappe cured of her illness at the time his treatments ceased. The prosecution failed, however, to shake his testimony involving Mrs. Fox.[6]

So, who is Dr. Barnes? He was an incompetent surgeon and a quack. But so were many doctors during the early twentieth century who provided what they believed to be what we now call “alternative medicine.”

According to the Directory of Deceased American Physicians, Barnes was born in Madison, Wisconsin, in 1881. While on the stand during the third Arbuckle trial, Barnes disclosed that he had lived in the same boarding house as Katherine Fox, but there is no census data for either of them until 1910.

A graduate of the Chicago College of Physicians and Surgeons (1903), Barnes was trained as an allopath. His career had few highlights until much later, but he did have a curious connection to the art model community of Chicago to which Rappe belonged.

In September 1905, the Physical Culture Society of Chicago appointed him as one of three physician judges for a beauty contest in which he decided on which woman would be “the model,” displaying the most beautiful “symmetry of form.”

In 1907, Dr. Barnes married the daughter of a physician, Laura Reese. The couple had no children and lived on West Garfield Boulevard, on Chicago’s South Side, before moving to the Saratoga Hotel in 1908.

Dr. Barnes practiced medicine in Chicago at least until the summer of 1909—when he had crossed paths again with Katherine Fox and with Virginia Rappe for the first time. But Mrs. Fox had been married to Albert Fox a wealthy window glass salesman and heir to a glass-making firm in upstate New York, for six years, and had likely long since moved from the boarding house of Dr. Barnes’ mother.[7]

That same year saw Dr. Barnes declare bankruptcy. In the autumn, he relocated to Crete, Nebraska. There he took over another physician’s practice and opened the “Barnes Hospital.” Dr. Barnes also practiced in Mountain Grove, Missouri (1909) and Rock Island, Illinois (1911).

In late 1916, Dr. Barnes opened a new practice in Omaha, Nebraska. Not only did this give him access to more patients and billings, but he could now avoid accusations of malpractice, especially when he performed surgeries. In Omaha, Dr. Barnes ran advertisments for treatments of chronic diseases that required less heroic measures, such as hay fever, asthma, constipation, lumbago, pimples, “cancer cured without a knife,” and the like. He claimed he could cure what other doctors could not and the long lists of diseases in his advertainments along with their wording would have denoted a quack to members of the American Medical Association. Ironically, none of his advertisements mentioned cystitis.

in the late 1910s, Barnes’ career suffered a few setbacks though none as severe as what some of his patients suffered while under his care. In 1919, he attacked his office girl and threatened to dissect her because she refused to comb her hair. She sued him for $15,000. He also had to deal with unsatisfied patients who also took him to court. Then, in 1921, his advertisements no longer ran in Omaha newspapers.

In early April 1922, he took the stand as a surprise witness at the third Arbuckle trial. His photograph, in which he is wearing what look like medical lamp goggles, appeared in the Omaha newspapers and he became a local celebrity.

Screen Shot 2022-04-26 at 9.53.52 PM
The doctor who saved Arbuckle’s career? Source:

Unlike other witnesses who claimed to have treated Rappe during her youth, Dr. Barnes wasn’t still living in Chicago, where such witnesses came forward or were recruited by the lawyer Albert Sabath (see Inexpert witness shopping Chicago style . . .). Although Sabath likely sought such a star rebuttal witness, that Barnes didn’t appear until the third trial suggests that he had come forward himself. The late date is telling because Dr. Barnes might have neutralized Mrs. Fox during the second trial, which nearly convicted Arbuckle except for one juror voting in his favor. One could almost imagine Barnes writing Minta Durfee. It might explain why they became friends.

Dr. Barnes moved on after his brief taste of fame. In 1923, he advertised his latest offering, “Electronic Diagnosis and Treatment,” for which he trained under Dr. Albert Abrams, the inventor of such devices as the “Oscilloclast” and the “Radioclast.” That Dr. Barnes proudly mentioned this association shows his nerve or recklessness since Dr. Abrams was already known as quack and had been under investigation for years.

In 1925, Dr. Barnes and his wife separated. Then his career suffered as he turned to more desperate ways to earn income. Three years after his testimony clinched Arbuckle’s acquittal, he himself was arrested under circumstances no less bizarre than the comedian for whom he bore a resemblance.

Dr. Charles E. Barnes, wealthy Omaha physician, charged with being the head of an immense dope ring, was released under $10,000 bond, the maximum provided by law, after he waived preliminary hearing before U.S. Commissioner Mary Mullen here today.

Andrew Durant, an actor and female impersonator, and D. H. Armstrong, also arrested with Barnes, are being held for investigation.

Dr. Barnes is charged with having sold Fred Mapes, under indictment for embezzling from the Becker Asphaltum company of which he was general manager, a quantity of morphine yesterday. Mapes gave the doctor a marked $10 bill in payment for the drugs and police charged the money was found in Barnes’ possession.

Miss Josephine Nepodal, eighteen-year-old office assistant of Dr. Barnes, is held under technical arrest also. She has given the police valuable information in the case.[1]

In February 1926, Dr. Barnes was charged on 31 counts of violating the Narcotics Act, for which he could receive five years for each, or a total of 155 years in prison.

Incredibly, and while still under indictment for the narcotics violations, Barnes was arrested in January 1927, on first degree murder for the death of a Sunday school teacher and farmer’s daughter, with the unfortunate name of Wealthy Timpe Nelson, who was married on her deathbed as she bled out from a botched abortion for which her fiancé paid Dr. Barnes $125.[2]

Barnes’ lawyer tried to get the charge reduced to manslaughter—and as he awaited trial, his wife sued for divorce. Dr. Barnes served no time for his crimes. A diabetic, he died, at the age of 46, on May 20, 1927, after a short illness attributed to his own preexisting condition. Mrs. Barnes arranged for his funeral in Chicago, where he is buried in Mt. Hope Cemetery.

[1] “Release Barnes on Bond,” Lincoln Star-Journal, 4 August 1925, 13.

[2] “Dr. Barnes Bound Over in His Case,” Lincoln State Journal, 24 January 1927, 1.

[1] Qtd. in “Arbuckle Freed of Manslaughter,” Omaha Daily, 13 April 1922, 2.

[2] Realize that this woman was married to Albert Fox at the time. There is no mention of him here.

[3] Most likely Seth Wicks, who, like Barnes, graduated from the College of Physicians and Surgeons in 1903. He could hardly vouch for Barnes’ allegations since he died in 1920.

[4] Associated Press, “Arbuckle Defense Closes Case with Doctor’s Evidence,” El Paso Times, 11 April 1922, 2.

[5] A typical example is found in “Doctor Tells of Treating Miss V. Rappe,” Oxnard [California] Daily Courier, 10 April 1922, 1.

[6] Marjorie C. Driscoll, “Defense Ends Testimony in Arbuckle Case,” San Francisco Chronicle, 10 April 1922, 7.

[7] We haven’t been able to identify her as yet to corroborate his testimony.

Arbuckle’s lawyers as witnesses . . . for the prosecution?

On Saturday, April 8, which was a short session for the third and final Arbuckle trial now entering its third week, Assistant District Attorney Leo Friedman called Gavin McNab, Arbuckle’s lead attorney, to take the stand. According to the Associated Press reporter, McNab “absentmindedly” did so without being sworn in.[1] More accustomed to examining witnesses rather than being questioned as one himself, McNab was asked how he obtained the deposition of Mrs. Helen Madeline Whitehurst taken by Albert Sabath, the Chicago attorney.

Earlier in the week, she had taken the stand and claimed to have seen Virginia Rappe drinking in her Chicago cafés and her own home in 1914 and 1915, becoming ill and tearing off her clothes—the behaviors that she exhibited in Arbuckle’s hotel bedroom on Labor Day 1921.

During her examination, McNab confronted her about a discrepancy found in her deposition regarding how many times she saw Rappe fall ill in her home: a “number” of times versus only two.

Whitehurst claimed her deposition had been altered and McNab then offered the deposition as an altered document. This seemingly minor detail, however, prompted the prosecution to expose the true nature of Sabath’s relationship to the defense—as a purveyor of tainted evidence and witnesses all designed to damage the reputation of Virginia Rappe.

McNab said that Sabath wasn’t a defense attorney and that his office didn’t correspond with him. If Sabath had acted as a defense attorney, McNab said, those arrangements had been made “in the east,” adding that he didn’t know who sent him the deposition, stating that it merely came to him “from the east.”

The prosecution’s strategy here was simple: to reveal that Sabath had really been in the employ of the defense during the time that he had been commissioned by the court to take depositions in Chicago. In that capacity, Sabath should have been answerable to the court and expected to be impartial. Logically, such a strategy put jury members in the strange position that if any of them voted to acquit Arbuckle, it would be with the knowledge that there might have been false testimony presented. By placing the burden of guilt on the jury, Brady and his assistants hoped to bolster their case against Arbuckle made entirely on circumstantial evidence and also parry the defense’s attacks on Rappe’s character—to restore the victim to her victim status.

McNab expressed a certain plausible deniability by stating that his colleague on Arbuckle’s so-called “million dollar” defense team, Charles H. Brennan handled the “eastern agents” of the defense. But that was as far as Friedman got before McNab’s chief assistant, Nat Schmulowitz objected—and Judge Louderback sustained. McNab left the chair and Friedman called Brennan to the stand. He testified—this time under oath—that he knew Sabath, having met him in October 1921. He also admitted that Sabath handed him the deposition in Chicago in late February but denied that Sabath worked for the defense. In contrast to the AP Night Wire, Oscar Fernbach of the San Francisco Examiner reported that Brennan said that Sabath, “in the time of procuring a statement for the defense from Mrs. Helen M. Whitehurst, was not a commissioner of the court.”[2]

A cursory look at the reportage from October 1921 and February 1922 reveals that Sabath, indeed, had been working closely with the defense. This, of course, put Judge Louderback in a more uncomfortable position than the jury. The judge could now be seen as having favored the defense. He had commissioned a lawyer who obviously worked for Arbuckle’s defense since October if not earlier—and Sabath himself wasn’t the least bit covert about it. He had offered to defend Arbuckle at the third trial in the wake of the second trial. He had personally dispatched one of his Chicago witnesses for the defense, Nurse Virginia Warren, to San Francisco so that she was well prepared to take the stand and say that Rappe gave birth to a premature infant in 1908.

This small but bold move by the prosecution ended the rebuttal phase of the third Arbuckle trial. It was followed by a brief surrebuttal, in which Harry Barker, although sick from a cold or flu, repeated his testimony from November 1921, in which he, as Rappe’s former Chicago sweetheart, suffered her hysterics vis-à-vis a drink or two. Ironically, Brady and his associates were aware that Sabath was Barker’s friend, business partner, and fellow litigant in a long-standing lawsuit that already made its way to the California Supreme Court. But they had thus far made nothing of this curious connection. Time was running out. The public was impatient. Hundreds of thousands of dollars, if one adjusts for inflation, had been spent by the state to prosecute Arbuckle.

Gavin McNab (l to r) making a point at the defense counsel table to Milton Cohen, Roscoe Arbuckle, Charles Brennan, and Joseph McInerney (

[1] Associated Press Night Wire, in various newspapers, 9 April 1922.

[2] Oscar H. Fernbach, “M’Nab Poor Witness for Prosecution,” San Francisco Examiner, 9 April 1922, 2.

100 years ago today: How to make Virginia Rappe’s favorite cocktail on the stand

Mrs. Winifred M. Burkholder appeared as a prosecution witness on April 6, 1922, during the final Arbuckle trial. After the defense announced that it had closed its case, she took the stand to rebut the parade of witnesses who testified in support of the defense contention that Rappe had suffered from a chronic ailment that compromised the structural integrity of her bladder such that it could burst spontaneously. The primary target of her rebuttal was, Virginia Warren, a Chicago nurse who claimed that Rappe gave birth to a child in 1908—the year that followed Rappe’s appearance in the Chicago Tribune as a rising young art model much in demand.

Like Rappe, Burkholder was a model but older and from an entirely different background. She had abandoned her husband and young son in rural Minnesota a in 1908 or ’09 to study fashion design and illustration in Chicago. During this time she reinvented herself and likely met Rappe either taking the same classes or working the same fashion shows.

Burkholder also managed models and led a troupe of young women on a tour of various department stores in the Midwest and South in 1913. Rappe was one of her stars in the traveling “Promenade des Toilettes” and garnered much attention for the “tango skirt” with its risqué slit up the front.

Burkholder kept in touch with Rappe as late as 1914, another year in which the defense found a doctor who claimed to have delivered another of Rappe’s purported progeny. Since his deposition was tossed out, Gavin McNab, Arbuckle’s chief counsel, concentrated on trying to shake other aspects of Burkholder’s rebuttal, especially in regard to her dates.

Rappe’s guardian, Katherine Fox, testified that Virginia was in San Francisco in the late summer of 1914. But Burkholder insisted that Rappe was in New York City visiting relatives, a family with the surname of Gallagher.[1]

During the course of asserting that Rappe had never been seriously ill or pregnant to her knowledge,  Burkholder disclosed Rappe’s favorite drink.

Mrs. Burkholder said that she frequently went to cafes with Miss Rappe and that the girl, though not in the habit of drinking extensively, would order a Bronx cocktail before dinner and a French liqueur afterward. This brought the question from Gavin McNab, chief defense counsel:

“How is a Bronx made?”

“Of gin and orange juice, I believe,” the witness responded, “and Virginia had hers made mostly of orange juice, as she did not like the taste of gin.”[2]

She got the basic ingredients right but for a really good Bronx cocktail the bartender should add a little dry vermouth and a dash of orange bitters.

The great irony here is that a Bronx was Arbuckle’s favorite cocktail for his traditional late breakfasts according to Merritt in Room 1219. But it must be said that Arbuckle liked the sweet vermouth variant, also call an “orange blossom.”

CREATOR: gd-jpeg v1.0 (using IJG JPEG v62), quality = 90

[1] “Gallagher” is the maiden name found on the death certificate of Rappe’s grandmother. But that surname doesn’t agree with the correlative information on the death certificate of Rappe’s mother, Mabel Rapp. This is why, in the closing arguments, McNab was incredulous about the woman buried as being Rappe’s true grandmother. For us, it’s still an intriguing clue that might shed light on Rappe’s paternity, which, for her, was a man in New York.

[2] A.P. Night Wire, “Defense Is Contradicted,” Los Angeles Times, 7 April 1922, 1.

April Fool’s Day 1922: Fred Fishback testifies for the defense

The comedy director Fred Fishback[1] was one of Roscoe Arbuckle’s two traveling companions who arrived at the St. Francis Hotel on the evening of September 3, 1921. The other was one of the first Hollywood actors who specialized in “heavy” male roles, Lowell Sherman. But unlike Sherman, Fishback had testified at the previous two trials and had made himself available for Arbuckle’s defense. The resulting notoriety temporarily interrupted his work as a director and forced him to work under the name of Fred Hibbard.

A tall and athletic man—Fishback was a swimmer—who neither smoked nor drank made an unusual participant in Arbuckle’s revels as well as Arbuckle’s roommate in room 1219. He made for an even stranger roommate for Virginia Rappe’s manager, Al Semnacher, when he moved from the Palace Hotel to the St. Francis during the late afternoon–evening of September 5. Fishback and Semnacher slept on another floor.

Fishback, naturally, didn’t want to return to 1219 given what had happened there in the mid-afternoon, when Rappe was found going in and out of shock given the true nature of her injury. He was, like the women at the party, a first responder. He had handled Rappe’s body twice. The first time was corroborated by prosecution witnesses: Fishback had lifted Rappe up on one side, while Maude Delmont and Zey Prevost had taken the other arm and leg, and carried Rappe into the bathroom and placed her in a bathtub filled with cold water. The object of this treatment was to bring Rappe back to her senses so that she could explain what was wrong with her.

The second time as Fishback testified was when he took Rappe by the ankles and held her upside down vertically. To do this, he claimed to have stood on the bed so as to allow blood to flow back into her brain and thus bring her back to consciousness.

That he could hold a woman up like this wasn’t questioned. Fishback appeared to be physically capable of doing so. The more curious feat was the act of standing and balancing on a mattress that was supported only by bedsprings rather than a modern box spring mattress. Thus, we can imagine Fishback’s act of first aid akin to a trampoline gag worthy of a comedy director. Fishback, too, stated that his big hands had likely caused the bruises on Rappe’s arms, which the prosecution had to Arbuckle.

What seemed like an act of mercy, however, worked well for the defense. The jury would have to consider that Fishback might have accidentally caused her ultimately fatal bladder rupture. That and Fishback’s dogged loyalty to his friend, Arbuckle, made him an effective prosecution witness. He was unshakable on the stand. His loyalty to Arbuckle began early, when he refused to sign a statement that, ironically, quoted him accusing Lowell Sherman of trying to “upstage” when Sherman and Arbuckle conspired to to rid themselves of his company after Rappe’s crisis.

Still, the whole exercise with Rappe’s limp body seemed too opportune. And no one else witnessed such a robust display despite the other accounts of what was done to help Rappe.

Fishback also served to deflect the direction of the accusations that Rappe was said to have uttered—“I am dying” and “He hurt me”—which the prosecution contended were aimed at Arbuckle. Gavin McNab, Arbuckle’s chief counsel, said if Rappe had said anything like this, it was directed at Fishback.

Fishback previously stated and restated that he never heard Rappe say anything. But on April 1, 1922, he recalled that he only heard her say one word, “Don’t”—but who was the recipient of this simple, human request goes unmentioned in the reportage.[2]

There was also a light moment as the Saturday session came to an end, which suggests that the two prosecutors didn’t believe that Fishback had stood on the bed and held Rappe up. McNab, undoubtedly reflecting the upbeat mood at the defense table, asked Assistant District Attorney Milton U’Ren if he would like to subject himself to a demonstration. But U’Ren declined being held upside down by his ankles, saying that he did not care to be “manhandled.“

A rare photograph of the man behind the camera: Fred Fishback (l) serving Edith Roberts (c) sparkling grape juice on the set of A Baby Doll Bandit (Exhibitor’s Herald, August 2, 1919)

[1] Fishback is the conventional Americanized spelling but newspapers in 1921 and ’22 also spelled his name in keeping with his Romanian Jewish ethnicity (e.g., Fischbach or Fischback).

[2] Associated Press, “Fischbach on Stand in Arbuckle Trial,” Los Angeles Times, 2 April 1922, I:4.

100 years ago today: Virginia Breig collects the bill, March 28, 1922

In the wake of the third trial and despite his acquittal, lawyers for Roscoe Arbuckle had their say about the female prosecution witnesses. “In looking upon some of the women in this case,” said Gavin McNab, Arbuckle’s chief counsel, “I have been reminded of the beautiful line of Ruskin’s: ‘Wherever a true woman is, home is always around her.’ What a contrast to some of the women we have seen here.”[1] Unable to contain himself, his assistant, Nat Schmulowitz, made light of the victim, “Miss Rappe was the personification of the pitcher who went to the well once too often.”[2]

One of these witnesses took the stand on March 28, 1922, during the third trial. Reporters took notice of her and were more fulsome in their coverage unlike previous witnesses (see our blog entry for yesterday). Virginia Breig was the secretary for the Wakefield Sanitarium. Her job title included what we now refer to as a business office manager. She handled the hospital’s accounts, which included collecting bills for services rendered—and the bill for Virginia Rappe’s three days at Wakefield between September 7 and 9, 1921, was apparently still due months later. The responsible party was presumed to be Roscoe Arbuckle. He allegedly informed the management of the St. Francis Hotel that he would pay for Rappe’s room and the hotel physician’s visits. But he had already settled with the hotel on the day after his Labor Day party on September 5 and returned to Los Angeles aboard the SS Harvard. So who would pay for Rappe’s hospital care fell through the cracks. That it shouldn’t be her was one of her chief worries in her finals days, for when she was conscious, she was made it known how little money she had and who should pay.

Maude Delmont and Rappe’s nurses testified that Rappe wanted Arbuckle to do the right thing and settle her hospital bill. This didn’t happen and as the Arbuckle case began to consume the nation’s interest, the matter of Rappe’s bill was left on the desk of Virginia Breig.

Virginia Breig née Martin was born in Arkansas and was twenty-seven years old when she testified. In the 1920 census she lived at 380 Geary Street, just behind the St. Francis Hotel. Her husband, William Breig, was an optometrist and optician for Kahn’s Department Store in Oakland. Her profession is listed as “None.” But prior to 1920, as Miss Virginia Martin, she had worked as a bookkeeper in Sacramento, having relocated there from Windsor, Colorado, in 1912. There her name appeared in the society pages of the Bee from time to time—including an announcement of her wedding in San Francisco in July 1915, near the headquarters of her husband’s employer, the Chinn-Beretta Optical Company, makers of fine gold wire-rim frames and lenses.

Virginia Breig probably didn’t need to work. She and her husband had no children. Voter registration records list her variously as a housewife or secretary. But at some point in the first years after the couple moved to the Bay Area, she took a job as bookkeeper for the Wakefield Sanitarium. This was probably after 1918, when she was an overseas canteen worker for the YMCA, serving coffee to doughboys, perhaps as far away as the battlefields of France.

As an employee at Wakefield, Breig was in a position to mix with the nursing staff and knew about individual doctors and patients. She often saw the latter before they were discharged. One of her duties was to deliver the hospital bill to the patient’s room. This came out during when she took the stand.

It was Mrs. Breig’s testimony that Virginia Rappe had accused Roscoe “Fatty” Arbuckle of being responsible for her injury so should be accountable for her medical costs.

The word in the courtroom was that Mrs. Breig had attempted to compel the defense to pay the unpaid hospital bill of Virginia Rappe, and had threatened to furnish the District Attorney with evidence which she said “would not sound good.” Gavin McNab and his associates characterized her story as a “frame up,” and sought to shatter it while the jurors and the spectators listened in amazement.[3]

Bill collectors, as we know, often intimidate and strongarm over the phone—but this moment, in the midst of a manslaughter case watched by the nation, reads as patently bizarre. So, why would Mrs. Breig do this? Why would her employer? Over a bill that amounted to less than $1,100 adjusted for inflation—a steal by modern standards — for a three-day stay terminal stay including an autopsy at no extra charge!  Why would a private secretary be so tactless, even heartless as to visit a dying woman to deliver the bill?

Breig was hardly so cold-blooded but more likely was following a process that was part of her job. Dr. Wakefield’s institution wasn’t a charity hospital and the bill presumably would have been charged to the estate of Ms. Rappe had she not survived to pay it herself.  Dr. Wakefield probably reminded Breig of the outstanding bill as the Arbuckle case wound its way through the courts and eventually she found an opportunity to discuss payment.

Mrs. Breig took the stand as the afternoon session was drawing to a close. She declared that she had entered Virginia Rappe’s room at the sanatorium on the morning of the day she died, for the purpose of presenting a bill of $64 which was payable in advance.

Breig reassured Rappe that if Arbuckle or anyone else paid, she would be reimbursed. But Rappe said that she wasn’t going to leave Wakefield alive. She would never get the money back.

“Miss Rappe told me,” said the witness, “that although she had a little money she saw no reason why she should pay the bill, as Arbuckle had been the cause of her being there and should settle it. I asked her what Arbuckle had done to her, and her reply was:

“‘Well, I don’t know, but he took me by both arms and forced me back on the bed.’”

And Mrs. Breig declared that the actress had said she knew she was not going to live.

“When did you first tell the District Attorney about this?” thundered Gavin McNab as he took the witness in hand.

The reply was “Last Saturday.”

“And was it not after I had informed you that you must tell the District Attorney what you claimed to know?” demanded Arbuckle’s chief counsel.

The jurors sat up straight in their chairs. The spectators leaned forward in amazement. Here, indeed, was a sensation.

And from the questioning it transpired that Mrs. Breig last Saturday had called up Gavin McNab and demanded that he pay that bill or make Arbuckle pay it; that she had declared that, were it not settled, a way would be found to produce testimony highly detrimental to the defendant; that McNab had refused to be responsible for the bill, and that he had told Mrs. Breig plainly that it was her duty to go to the district attorney if she knew anything about the case.

All of this the witnesses [sic] admitted but she denied that in conversation with McNab over the telephone she had said anything about “testimony.”

“I had a witness present while I was talking,” she snapped.

“And believe me, I had a witness listening on the wire while you were talking,” was McNab’s rejoinder.

McNab meant that he had his secretary, Miss Lillian Dunne, pick up an extension. McNab had had much experience dealing with surprise witnesses and other people who wanted to be paid to talk or keep their silence. This woman seemingly just wanted her books balanced out of the largesse being paid for Arbuckle’s defense.

Given the scenario, Mrs. Breig was either naïve or mad. But she didn’t act on her own per se. Rappe’s nurses and the nurses who talked among themselves about this case had decided that this unpaid bill might be the leverage necessary to prevent an acquittal and achieve a guilty verdict. That is, the nurses wanted justice. The state, obviously running out of options, took a gamble on Breig.

The chief counsel for the defense made it plain that he likewise had informed the district attorney’s office of the conversation. It was admitted by Assistant District Attorney U’Ren that McNab had told Leo Friedman of the circumstances.

“But I received my information independent of this,” U’Ren explained, “Mrs. Breig got one of the hospital nurses to call me up and then I subpoenaed her.”

Under McNab’s cross-examination Mrs. Breig declared that no one was present when Virginia Rappe made her alleged accusation, and at the same time she admitted that a nurse employed by Dr. M. E. Rumwell was in almost constant attendance upon the patient [my italics].

When asked why it was that she never had spoken of this circumstance before or never had offered her testimony at the previous trials, the witness parried by declaring that the alleged facts she had just presented had been a matter of discussion among the hospital nurses for months.

This is to say that Rappe’s story was common knowledge at Wakefield. But it still doesn’t answer the question unless she means that no one wanted to be the first to break it or suffer the consequences of being in the newspaper. Surely, Mrs. Breig had to think of her husband’s reputation, whose name regularly appeared in Kahn’s advertisements touting its optometry department and eyewear. But why did she call McNab just to settle the bill? Why do so, going around the district attorneys? I have to think that the inefficacy of the prosecution witnesses made it pointless. They had all been cross-examined and humiliated in court by McNab and the other defense counsels. Maybe Mrs. Breig saw it as a moral victory if she got Arbuckle’s lawyers to pay.

Perhaps, too, the state had a hand in putting Mrs. Breig up to this Hail Mary not unlike some of the defense’s surprise and opportune witnesses who testified to Rappe drinking, going into hysterics, or tearing off her clothes, mimicking all the behaviors of Labor Day 1921. District Attorney Matthew Brady and his assistants could have exploited the Breig testimony had McNab been foolish enough to pay Rappe’s bill as victory loomed. But he was too canny to fall for it and managed to use it to his advantage.

Other bits and pieces of Mrs. Breig’s testimony appeared in other newspapers as she took the stand again on April 5.

Mrs. Breig testified that she went to Miss Rappe’s room at the sanitarium the morning of the day she died, to present the patient with a bill. She said that Miss Rappe looked at the bill and said that she really should not pay for it, as “he was responsible for my being here.”

“You can pay the bill after you leave the hospital. You won’t leave for a week or so,” she [Mrs. Breig] said she told Miss Rappe.

“I wish I knew I was going to live that long,” was Miss Rappe’s reply, according to Mrs. Breig, “but I’m going to die.” Then, Mrs. Breig testified, Miss Rappe accused Arbuckle of attacking her. She said that the girl told her: “He grasped me by the arms and threw me on the bed and threw his weight on me After that I knew nothing.”

Her testimony was the first which told of a direct attack on Miss Rappe.

Defense counsel, following Mrs. Breig’s appearance on the stand, moved that her evidence be stricken from the record on the grounds that no proper foundation had been laid for its introduction.[4]

While it seems rather early to present a bill when the patient hasn’t been officially discharged, this is because hospitals at the time still charged a weekly rate that was billed accordingly. But how much the dying Rappe said was used by McNab in his closing arguments to show that Breig’s story was to him an obvious fabrication.

“Miss Rappe could not tell Dr. Rumwell, her physician, what the matter was, as she told him she was intoxicated and did not remember,” McNab said. “Therefore how could she tell Mrs. Breig, this bill collector of the hospital, what had happened?

“Mrs. Breig was willing to sell her testimony to me for the price of Miss Rappe’s bill and I told her that the best market for such testimony is the district attorney’s office.”[5]

But McNab had not asked the court to have Mrs. Breig’s testimony tossed out. “The prosecution questions us as to why we did not attempt to rule out the testimony of Mrs. Breig,” he said, “The impeaching testimony offered by my secretary, Miss Dunne, was ruled out on motion of the prosecution.”[6]

Although Mrs. Breig kept her husband’s name out of the newspapers, their marriage, if not already, was troubled following her two days on the stand.  In 1924, the Oakland Tribune published a story that referenced events that occurred three months after she took the stand at the third trial, under the headline “Wife Sued on Drinking Accusation”:

Extravagance in the matter of clothes and other indulgence in liquor are charged against Mrs. Virginia Breig in a divorce complaint filed by William Breig, 1024 Grand avenue, an optometrist with offices in a local department store. Breig asks for a decree and to be awarded all the community property, which includes the business, an automobile and household furniture.

Breig recites that on their wedding anniversary in 1922 they had invited friends to their home for 6 o’clock dinner but that his wife did not return home until 8 o’clock and then in a semi-intoxicated condition. On other occasions wife became sick and bedridden from over indulgence in liquor, he says.

The husband further complains that his wife has engaged in such extravagances as a fur coat, nagged him for more money and was discontented, although he turned over practically all of his earnings. On many occasions she has failed to return home in time to cook the evening meal, he says, and once she expressed a wish that he was dead. They were married in 1915 and separated March 15.[7]

Processed By eBay with ImageMagick, z1.1.0. ||B2

A man with deep pockets? (private collection)

[1] “M’Nab Attacks State Attorney, Also Assails Testimony of Mrs. Virginia Breig,” Charlotte Observer, 12 April 1922, 4.

[2] “State’s Star Witness Flayed by Arbuckle Defense: Characters of Women in Case Also Attacked,” San Bernardino County Sun, 12 April 1922, 2.

[3] Oscar H. Fernbach, “It Was Fatty,” Says New Witness: Hospital Secretary Declares Miss Rappe Told Her Arbuckle Caused Her Last Illness,” San Francisco Examiner, 29 March, 1922, 3. All subsequent extracts are from this reportage unless noted otherwise.

[4] “Fatty Arbuckle in Self Defense,” Butte Miner, 6 April 1922, 3.

[5] M’Nab Attacks State Attorney, Also Assails Testimony of Mrs. Virginia Breig,” Charlotte Observer, 12 April 1922, 4.

[6] “Arbuckle Case Will Be Given to Jury Today,” Albuquerque Journal, 12 April 1922, 1.

[7] “Wife Sued on Drinking Accusation”: Oakland Optometrist Charges Extravagance, Intoxication in Divorce Action Plea; His Patience Vain, He Says,” Oakland Tribune, 25 March 1924, 20.

Two reporters testify and test-bed inferences based on scant reportage

Which faded first, public interest in the Arbuckle trials or the press coverage? Since metrics for the former didn’t exist in 1922, it would seem the latter. As the days stretched into weeks, the number of reporters in Judge Harold Louderback’s courtroom dwindled. The headlines gave way to the death of Pope Benedict XV, the murder of William Desmond Taylor, Lenin’s declining health, the Arthur Burch trial in Los Angeles, and the other intractable problems of the world. By the end of the first Arbuckle trial much of the coverage had already been relegated to below the fold and inside newspapers. This became the norm for the second trial. Fewer stories were bylined. But Marjorie Driscoll for the San Francisco Chronicle and Oscar Fernbach for the Examiner soldiered on. Nevertheless, their copy read as though they were bored by the Arbuckle case or believed their readers were. There was little that was new to report. That Arbuckle wore the same blue Norfolk suit to court each day was like a mantra.

For the authors of books and articles about the Arbuckle case, however, the lack of reportage is either a boon if one wants to get in and get out so as to meet a deadline and page count. For us, however, it means inferring from newspaper sources that are, to paraphrase researcher Joan Myers, dicey. But this relative lack of competition allowed the few remaining reporters to focus on details and hope that they could hold the reader’s attention—an expectation that was also placed on three different juries with three different outcomes.

The prosecution and defense virtually repeated themselves in the second and third trials that lasted into spring 1922. Nevertheless, there were subtle changes in strategy. After the second trial ended in a hung jury—10 to 2 for conviction—the defense understood that it could no longer hold back on Rappe’s past. The newspapers reported this as if it were new, but Arbuckle’s lawyers in San Francisco, Los Angeles, and Chicago had started to deconstruct Rappe’s “good girl” image before she was even buried in Hollywood Forever Cemetery.

Ironically, while the press took less interest in the Arbuckle trial, San Francisco District Attorney Matthew Brady and his assistants took more interest in the press—indeed, in the earliest pieces written about the Arbuckle case. Therein, they brought into the light the first statements that Arbuckle made to reporters about his Labor Day party and the death of Virginia Rappe.

Curiously missing was the foundation of Arbuckle’s “Good Samaritan” testimony from the first trial, that he gave aid and comfort to Virginia Rappe after finding her writhing on his bathroom floor in room 1219 of the St. Francis Hotel, leaving it up to the jury and public to see that he should be seen as a decent man rather than an uncaring rapist. The clipped, matter-of-fact testimony that Arbuckle gave was also intended to emphasize that he was alone with Rappe in the bedroom for just eight minutes—a claim that could be corroborated with nothing but circumstantial evidence.

But Arbuckle’s version of events wasn’t heard by anyone but his lawyers until late November, nearly two months after his arrest. Why hadn’t he mentioned his heroics in room 1219 to the two reporters who had contacted him just hours after Rappe’s death and before his arrest? He likely would have saved himself and the motion picture industry a world of grief as it might have prevented the clamor for government regulation of the motion picture industry and de facto the private lives of performers, producers, writers, etc.

Arbuckle’s fantastically opportune testimony came late. It was like the missing piece in a jigsaw puzzle, a story that would dovetail with the established timeline as described by prosecution witnesses and account for the physical evidence that had been presented in court, notably fingerprints.. It rendered Arbuckle an innocent victim of circumstances who had, against the odds, stumbled into a medical emergency and found himself accused of rape and murder. But if this puzzle piece was contrived, carved out of new cardboard, so to speak, as Brady and his assistants believed, it was imperative to attack its cardinal weakness, its timing.

Arbuckle said that his original chief counsel, Frank Dominguez, had ordered him not to say anything in his own defense in September 1921. The public animus against was just too much to overcome in the weeks after Rappe’s death. Arbuckle claimed that he was intentionally silenced. But eventually he had been given the opportunity to speak out and took it.

While he hadn’t been particularly forthcoming when interviewed on the day of Rappe’s death, he did mention his alibi, that he was intending to get dressed in room 1219 to take a female friend out for a drive in his Pierce-Arrow during the afternoon of September 5 and by coincidence he discovered Rappe on the bathroom floor.

The prosecution believed that what Arbuckle told the two reporters on September 9 was important to have before a jury not for what was said but also for what wasn’t. A close reading, or rather a close hearing of the reporters’ testimony allowed one to infer that Arbuckle was more than a passive participant at the party and his traveling companions were solely to blame for the women, the alcohol, etc. But it was a stretch by the prosecution to believe they could convince a jury that Arbuckle’s omission of discussing his concern for Rappe’s suffering — in light of what he would describe in his sworn testimony two months later — was evidence that he was a man covering up a crime. (see “Arbuckle’s testimony of November 28, 1921).

Warden Woolard of the Los Angeles Times was one of the two who interviewed Arbuckle after the news broke about Rappe’s death and he testified at both the second and third trials. Due to the abbreviated coverage of these trials, we can only infer that he repeated his original reportage of Saturday, September 10, 1921, to one of the two assistant district attorneys who conducted the examination. To him Arbuckle seemed to be a man unconcerned about the problem that Rappe’s death presented and confident he could straighten the matter out with the chief of police in San Francisco. But the prosecution would question why many of the details Arbuckle later testified to were not mentioned on September 9. Woolard’s interview with Arbuckle happened at Grauman’s Million Dollar Theater which may sound innocuous but was at the time a seat of power in Hollywood so it’s likely Arbuckle was being counseled by Frank Dominguez or Milton Cohen to arrange for it as damage control. We can infer that the prosecution framed the arrangement of this interview as an indication that Arbuckle’s comments were something less than extemporaneous.

Unfortunately, Woolard’s testimony revealed little beyond what he had originally reported. At the second trial, however, he added that although Arbuckle denied hurting Rappe, he had pushed her down on the bed to keep her quiet. Arbuckle also said that there were no locked or closed doors at the party all afternoon. In regard to Maude Delmont’s description of the party being “rough,” Arbuckle responded that the only thing rough about the party was Delmont herself.

After Woolard left the stand, the jury heard Arbuckle’s first trial testimony read into the record of the second by Assistant District Attorney Leo Friedman, who was known for the insinuating tone he added to such readings.

Woolard said that he was prompted to seek out Arbuckle on September 9, 1921, hours after Rappe’s death, because he had read a San Francisco Chronicle wire that, apparently, had been written by someone who had heard Delmont’s side of the story as well as earlier comments by Arbuckle. The San Francisco reporter of these accounts was George R. Hyde. He took the stand at the third trial on March 25, 1922—just after Woolard presumably repeated much of his testimony from the second trial.

We have little to work with regarding Hyde’s testimony, only one detail emerges, that he made a long-distance telephone call to Arbuckle’s house and that someone he presumed to be Arbuckle answered his questions. Unlike Woolard, however, Hyde was asked to provide a carbon copy of his interview notes to the defense though it appears that they provided any useful revelations. That said, we must infer that either Leo Friedman or his colleague, Milton U’Ren, treated Hyde’s published interview as a de facto deposition that could be used to challenge statements Arbuckle later made under oath, such as his declaration that he was never alone with Rappe and that doors were never locked in the suite. Like so many paper cuts, the inconsistencies would not be fatal in themselves but could add up if the jury had the patience to process them.

Neither Woolard nor Hyde were cross-examined. The defense elected not to do so as not to give their stories any more time on the stand . To do otherwise risked calling attention to them, imprinting them on the jurors’ minds. Arbuckle’s lawyers did, however, argue that the two reporters’ testimony should be inadmissible. But the court allowed the testimony. It was then followed by another reading of Arbuckle’s first trial testimony on Monday, March 27 by Leo Friedman.