In June, 1906, Cook County superior court judge Ben M. Smith
(1863-1954) ruled that Iroquois Theater manager,
Will J. Davis, should be tried outside Cook County,
Illinois. This was the second venue-change
ruling, the first having been voided by the
1905 quashing of the original indictment.
Levy Mayer, argued a fair trial was not possible
in Chicago while prosecutor
John J. Healy argued the $65,000 expense
($50,000 for the receiving county and $15,000 for
Cook County to take the show on the road) was not
necessary. Smith ordered both sides to amass
affidavits from Chicagoans to support their
positions and gave them a June 1, 1906 deadline for
The 1906 affidavit party was
less dramatic than the one in 1904 but not
without its moments. Healy criticized Mayer's
12,045 affidavits as signed by people who had not
read the contents, though he could cite only two
such examples by name.
As legal counsel
to the Illinois Manufacturer and Illinois Employers'
associations Mayer had turned to his clients to
help him gather signatures.
paycheck: " Sign this."
John: "What is it? Will an X do?"
Whatever time Healy's
office spent talking to signers of Mayer's
affidavits was time that might have been better spent
obtaining more than 4,000 affidavits from folks who
thought Chicagoans could be unbiased. As it
was, even if half Mayer's signers had been too
illiterate and could only mark an "X" for their
name, the remaining 6,000 represented 50%
more folks who thought a fair trial could not be
held in Chicago. Assistant state attorney
Harry Olson submitted statistics of newspaper
references to the Iroquois fire 1904 to 1906 in an
attempt to demonstrate that public interest had
diminished but Judge Smith had little choice
but to compare Mayer's six-foot-tall pile of
twenty-seven volumes of affidavits to the
state's two-foot stack. He granted the venue change.*
It should be noted that Healy
didn't twiddle his thumbs when he should have been
gathering affidavits. His office ran into a
snarl. Mayor Dunne initially directed the
police department to gather affidavits from
businessmen but when said gentlemen objected to
leaving their shops and offices to go before a
notary, Dunne rescinded the order. Healy said
it was political.
Mayer, probably with a suitably straight face, said
his team's objective in moving the trial outside
Chicago was not intended to obtain a jury that would
acquit or convict, just one that would be impartial.
As to Healy's cost-related objections Mayer
demonstrated equal measures of Solomon and hubris,
suggesting the losing party pay the extra cost.
Smith recommended the two parties work together to
arrive at a mutually acceptable location for the
trial but if that proved impossible, he'd select
one. Mayer submitted a list to Smith of a half
dozen possible locations and four months later both
sides agreed with Smith's selection of Danville in
Vermillion County, the state's 5th district.
Subpoena's were delivered to two hundred witnesses
on October 5, 1906 bringing them to judge Smith's
courtroom the following day to learn they'd be going
to Danville in January, 1907.**
Smith had been on the bench less than a year when
petitioned by the defense attorneys in the Iroquois
case. He was elected in 1905 to fill the
vacancy caused by the death of Henry M. Shepard.
A 1890 graduate of the Union College of Law (today
Northwestern's Pritzker School of Law) he spent
several years with various private practices and as
assistant state attorney under Charles S. Deneen.
(Some of his favorite prosecutorial wins from the
Deneen years are listed
Smith was married to
Katherine C. Welton Smith and had two daughters,
Francis and Mabel. Called Benny by his
family, he was born in Colona, Illinois, the son of Rufus and Hattie Smith.
Amongst qualifications cited in Ben's biography
while campaigning for the superior court judgeship
was his self reliance and effective prosecution of
several cases. He had left home at age sixteen
and put himself through law school at night while
working as a country store clerk, on the railroad,
in the county clerk's office in Cambridge, Illinois
and as a law clerk. Cases of which he was
proud during his years with the state attorney's
Marjorie H. Crosby for
allowing her thirteen year old son Thomas to
shoot to death deputy sheriff Frank E. Nye when
Nye tried to force entrance to the Crosby home
to enforce a writ of restitution on the Crosby's
property. She'd been advised to
resist by two attorneys, who were not
prosecuted. Presumably they didn't expect
the resistance to involve a bullet.
George Krueger for
killing his wife
Mrs. Hagenow, a
Dr. Michael C. Jennings,
liked by no one, for murdering a neighbor, liked
by everyone, because the neighbor persisted in
feeding his horse in front of the doctor's
After his Iroquois Theater
In 1912 Ben was chief justice
of the superior court and was appointed to the
first district appellate court. Chicago courts
were badly clogged and it came to the attention of
Chicago newspapers. Attorneys wanted their
traditional two months off for the summer and didn't
want country judges relieving the court clog.
Any/all/none of that may have contributed to his
decision in December, 1912 to announce he'd be
retiring at the end of his 3rd term and returning to
private practice. He cited a wish to build a
successful legal practice before he got too old and
relief at leaving behind the expense of political
A long time member of
athletic clubs, Ben remained fit enough after retirement to play golf into his eighties but
his mind betrayed him in the end. A year before his death,
at age eighty-nine, his mental acuity failed and he twice became lost
after heading off on errands, involving the police
department and media.