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The working titles of this film were The Terrible Terrys; Prison Break; The Life of Touhy; Roger Touhy, Self-Made Man; The Escape of Roger Touhy and Roger Touhy, Last of the Gangsters. Actor Moroni Olsen's first name is misspelled "Maroni" in the opening credits. The following written statements appear after the opening credits: "The portrayal of Federal Bureau of Investigation characters in this picture is not to be construed in any manner whatsoever as an endorsement or approval by the Federal Bureau of Investigation. We wish to acknowledge our appreciation to Governor Dwight H. Green of Illinois, P. T. Sullivan, Director of the Department of Safety, and Warden Joseph E. Ragen, who generously granted us permission to photograph all prison scenes at Stateville Prison, Joliet, Illinois. All characters appearing in this film are fictitious with the exception of the members of the Touhy gang and those other persons whose true names are used herein."
At the film's end, Warden Ragen appears onscreen and gives the following speech: "They say crime doesn't pay. I disagree-crime does pay. It pays off in disgrace to yourself and family-and for those who continue to disregard law and order even while in prison, this is the only answer-solitary confinement. I wish that every man, woman and child in America could see for themselves just how a person who has lived outside the law-lives behind prison bars. I would much rather see you here as a visitor than as a permanent guest of the State of Illinois."
The picture is loosely based on the life of Roger Touhy (1898-1959), a successful bootlegger who operated in the suburbs of Chicago. According to modern sources, contrary to the film's depiction of Touhy as a murderous, hardened criminal, the real Touhy was a businessman more interested in the quality of his illegally brewed beer than in ruling a gang. Some modern sources note that Touhy used guns borrowed from local police officers and off-duty officers to drive his beer trucks and intimidate emmissaries of Al Capone, who was interested in taking over Touhy's well-run operation. Despite his lack of a real "gang," Touhy succeeded in staying beyond Capone's reach, and in 1933, was acquitted in a case in which he was accused of kidnapping brewer William A. Hamm, Jr. Later that year, however, Touhy was again brought to trial and convicted of the kidnapping of John "Jake the Barber" Factor. According to modern sources, the kidnapping of Factor, himself a criminal, was engineered by Capone and Touhy was framed for the crime to get him out of Capone's way.
When Touhy's attempts to obtain a retrial were unsuccessful, he accompanied gangster and former schoolteacher Basil "The Owl" Banghart and several others when they broke out of the Stateville Federal Penitentiary on October 9, 1942. Touhy was recaptured on December 29, 1942, and in the early 1950s, his conviction was overturned due to perjured testimony. He was finally released in 1959. Less than a month after his release, Touhy was gunned down and killed by an unknown assailant, presumably a member of Capone's old gang.
According to a October 13, 1942 Hollywood Reporter news item, executive producer Bryan Foy first decided to make a film about Touhy after reading a newspaper account about his escape from prison. A March 17, 1943 Hollywood Reporter news item announced that Lloyd Nolan, who had originally been cast as "Roger Touhy," was permitted to withdraw from the role after taking "a stand against portraying any more screen gunmen." According to a April 2, 1943 studio press release, Kent Taylor was then signed to play "Touhy," with Preston Foster playing a "gallant G-man." In a September 1943 article, New York Times reported that Taylor's and Foster's parts were subsequently reversed.
According to a May 24, 1943 studio publicity statement, Anthony Quinn was originally assigned to play informer "Smoke Reardon." He was instead cast as "George Carroll" when "it was called to Producer [Lee] Marcus' attention that Quinn is one of the very few Latin-American actors of any prominence in Hollywood and it would not be conducive to inter-American amity to have him as such a despicable character." Hollywood Reporter production charts and news items include Ralph Byrd and William Marshall in the cast, but their appearance in the completed film has not been confirmed. Although Joseph MacDonald is credited by Hollywood Reporter production charts as the film's photographer, Glen MacWilliams is listed as the director of photography in the onscreen credits. A modern source notes that director Robert Florey interviewed the real Touhy and his men at the penitentiary.
After completion of principal photography, the film encountered many obstacles, including protests from the Federal Bureau of Investigation following a preview of the film held at Stateville in July 1942. Claiming that the studio had credited local law enforcement officials with actions taken by the FBI, the agency demanded that Twentieth Century-Fox reshoot part of the film. Retakes and additional scenes were shot in September 1943 and March 1944. According to information in NARS at Washington, D.C., The Office of Censorship disapproved the picture for export to other countries. Correspondence indicates that the film was first viewed by a member of the board on June 17, 1943 at a length of 6,582 feet. The studio then "did some editing and added a brief 'crime-does-not-pay' ending, and the final version, measuring 5,873 feet, was viewed on March 24, 1944 and disapproved shortly afterward. According to a December 4, 1947 New York Times article, the MPAA declared the picture "unsuitable for re-release or re-issue," as part of its ban on gangster films.
In 1943, Touhy himself attempted to keep the picture from being distributed. Claiming that the film was "injurious to his pride and family position," Touhy won a temporary restraining order against exhibition of the picture in early August 1943, but his permanent injunction against the film's release was denied. After the film's retakes and additional scenes were filmed, it was finally released in July 1944. On August 15, 1944, Touhy filed a million-dollar libel suit against Twentieth Century-Fox and exhibitors showing the picture in the Chicago area. On November 1, 1949, according to Hollywood Citizen-News, the studio settled with Touhy for $15,000 and the case was dismissed. Although a May 1960 Daily Variety news item announced that Esquire Productions, an independent Chicago-based production company, would be making a film about Touhy, the picture was not produced.