Finally, it came down to the testimony of Harry Donenfeld. His presence loomed over the entire proceedings as every one of the case's participants knew him and most had reason to fear him. To even casual observers, Donenfeld's long, disreputable past was well-known:
"Last week the new owner and the future of the Police Gazette were revealed. The owner is Merwil Publishing Co. consisting of Irving & Harry Donenfeld and Mrs. Merle Williams Hersey. Merwil Publishing Co. issues five of the smuttiest magazines on the newsstands..." [TIME MAGAZINE, "Barber's Bible", July 31, 1933]
Victor Fox makes a brief reappearance on the stand after Donenfeld in rebuttal to conclude the testimony. I have included that here as well.
-- Harry Donenfeld, plaintiff witness herein referred to as The Witness
-- Victor S. Fox, defense witness herein referred to as The Witness
-- Asher Blum & Raphael Koenig, attorneys for defendant Brun Publications (Fox)
-- Samuel Fried, attorney for co-defendants Kable News Co. and Interborough News Co.
-- Horace Manges, attorney for the plaintiff Detective Comics, Inc.
-- Judge John Woolsey, herein referred to as The Court
TESTIMONY OF HARRY DONENFELD
Although brief, Donenfeld's testimony was--like the man himself--direct and uncompromising:
Manges: Mr. Donenfeld, you are president of the plaintiff corporation?
Donenfeld: I am, sir.
Manges: Did Mr. Fox ever submit to you a dummy for a magazine Kid Comics?
Donenfeld: No, sir.
Manges: Did Mr. Fox ever submit to you a any dummy with the "Wonderman" character on it?
Donenfeld: No, sir.
While much of his testimony is devoted to detailing--and apparently proving with canceled checks--that he was not in New York City at the time Fox claimed to have met with him to propose KID COMICS, it is during cross-examination on another matter that Donenfeld shows some anger:
Blim: Haven't you pleaded guilty in the Federal Court recently for sending obscene matter through the mails?
Donenfeld: No, sir, I was never involved in any Federal Court action.
Blum: I would like to have you search your memory because I want the correct answer, if you remember it. Haven't you pleaded guilty in the Federal Court recently?
Donenfeld: Do you think I'm going to perjure myself?
Blum: I don't know.
Donenfeld: I have made a definite statement that I was never indicted, never had any business with any Federal authorities or any Federal courts; never been indicted and never pleaded. Is that clear?
Blum: That is clear.
Donenfeld: O.K., sir.
The simmering animosity between Donenfeld and Fox is laid bare when the latter takes the stand briefly in an attempt to rebut Donenfeld's words:
Manges: Have you any proof at all besides your word that you saw Mr. Donenfeld in New York between January 10th and January 20th, that those dates are correct, in 1938?
Fox: I was unprepared for the question, but if I have the time--I keep memorandums of all my conversations with Donenfeld as I found that they were not always according to Hoyle.
With Fox's testimony, the trial ends. We have the advantage afforded by time to know the outcome of the case in Detective Comics favor. Despite several appeals, the decision stands.
The ironies surrounding this case abound. The chilling effect DC hoped the decision would have on any other potential imitators didn't materialize. Even while the case was being heard, new super-powered characters were hitting the newsstands. By the time all appeals had been exhausted, the floodgates had been irrevocably opened. Even Victor Fox never visibly hesitated, as his comics featured one super-hero after another.
Within a decade of this 1939 case, the alliances involved had drastically changed.
Although Victor Fox had stiffed Eisner and Iger the $3,000 he owed them at the time of this case, they continued doing business with him. In fact, Iger, long after Eisner had split from the partnership, would be producing material for Fox's comics virtually until he stopped publishing in the 1950s. The aforementioned Eisner-Iger split left the former partners at odds, particularly evident in Iger's bitter memories later in his life.
Jerry Siegel, already angry over DC's shady accounting practices denying him and Shuster any profits from their creation, would--with Shuster--eventually sue the corporation. The first suit, initiated in 1947, ended not only with DC prevailing, but the ostracizing of both creators from DC for years.
By 1944, M.C Gaines ended his relationship with DC with the sale of All-American to Donenfeld's emerging National Comics. This too was an acrimonious split that had been exacerbated by tensions between him and his partner, Jack Liebowitz. Even Gaines' editor and protégé, Sheldon Mayer, switched his allegiance by staying with DC when Gaines went on to form Educational Comics.
Having the opportunity to present this extraordinary historical document has been a true privilege. I don't question whether it was luck or something I did that prompted the finder of this transcript to contact me and then to allow me to publish it online, I'm just thankful that he did.
And to answer all those who wondered where this document had been found...
it is available to us all, where it has always been, in the National Archives.