History of Santa Clara County California with biographical sketches, Part 10

Author: Sawyer, Eugene T
Publication date: 1922
Publisher: Los Angeles : Historic Record Co.
Number of Pages: 1934

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HISTORY OF SANTA CLARA COUNTY

"The record which old John Burton kept of his cases was a very meager one, and hence a large mass of interesting court notes have been lost with the passage of years. Some few recorded cases there are, and in the recollec- tion of our pioneers a few more remain to illustrate the unique character of primitive jus- tice here. From among the ancient documents reposing in our city archives the following case has been exhumed and translated for this sketch. Pedro Mesa was accused of stealing Thomas Jones' horse. The record reads :

" "Territory of California vs. Pedro Mesa- May 1, 1847. The parties having appeared and the case entered into, after weighing the case and taking testimony, judgment is rendered that defendant shall pay a fine of $5, and $9 for saddling the horse, and costs of court taxed at $4.75; $2 for the guard.' Alcalde Burton evidently did not regard horse-stealing as a very serious offense, and does not seem to have visited upon it a sufficient penalty to make the avocation unprofitable. It is curi- ous to note that Alcalde Burton records him- self as 'weighing the case and taking the tes- timony.' It would appear from all we can learn that it was the mental habit of the old captain to weigh the case first and make up his mind about it, and then, as a mere form- ality, 'take the testimony.'

"Another of Alcalde Burton's decisions has survived the tooth of time. Juan Lesaldo and his wife did not agree and yet had hardly reached that point where they agreed to dis- agree. Juan, therefore, laid before the alcalde a complaint, of which, with the subsequent proceedings, the following record remains : Juan Lesalda vs. Maria de los Naves. On complaint of plaintiff, that defendant, his wife, he believes, is about to abscond, he therefore claims that she be brought before the court to show cause why she will not live with him. The parties having appeared and the case en- tered into, April 27, 1847, it is directed that they be united again, and if not they shall be imprisoned until they consent to live together. May 1st. A letter was sent to the priest at Santa Clara, who ordained that they should be compelled to live together. After three days' time was given she refused to comply. May 4, 1847. Defendant was put in prison until she should comply with the order of the court.' Here the record ends, and whether Maria de los Naves was ever brought back to the arms of her spouse by the stern rigor of the law remains a problem which may well be submitted with "The Lady or the Tiger' to our modern dames for a solution. So far as known the precedent set by Alcalde Burton has not been followed by those who have suc- ceeded him in a judicial effort to adjust the

differences which have ever arisen in domestic life. There are, however, a few fragmentary records of Burton's decisions which show that he foreshadowed at least some phases of our modern law. On March 7, 1847, Alcalde Bur- ton dismissed a complaint brought by Gabriel Castro against Antonio Hernairo to recover plaintiff's winnings in a horse-race. It does not appear whether Hernairo was the loser in the wager, or only the stakeholder, but if the cause had been tried before our present courts instead of before the old alcalde, the same rule would be applied.

"There are a few other cases preserved in scant records, which, if not yet precedents, might well be made so. In 1847 P. Real com- plained before the alcalde of 'men who stand in the church doors to look at the women as they come from mass.' The alcalde judged that it was a 'practice which should be stopped in the interests of religion, morality and public tranquility.' In another case a Mexican was complained of for selling liquor and was tried without a jury, as the alcalde naively explains that the 'native element of the juries in such cases failed to convict.'

"The Court of the First Instance was estab- lished in San Jose in the spring of 1849. R. M. May was the first occupant of the bench as judge of the court. He was shortly suc- ceeded by Judge Kincaid, who remained on the bench until the court was abolished by the formation of the state. The pioneer members of the bar were Peter O. Minor, C. T. Ryland, Craven P. Hester, James M. Jones, William Van Voorhies, Judge Almond, William T. Wallace, George B. Tingley, Rufus A. Lock- wood and others, some of whom lived in San Jose and some of whom came down from San Francisco when cases required. The yarns which those old 'Nestors' told upon them- selves, upon their clients and upon each other, would fill a volume. One of the earliest cases tried before Judge Kincaid was the famous mule case of Caldwell vs. Godey. The plain- tiff sued the defendant for the possession of a mule which he averred was his property. The defendant denied the allegation and the case came on. Caldwell produced a dozen or more reputable witnesses who swore that they had known the plaintiff in Missouri, where he had owned the mule; that they had crossed the plains with him when he brought the mule to California ; that there was no doubt as to the identity of Caldwell's mule. On the other hand, the defendant produced as many wit- nesses, equally reputable, who swore they had known the defendant, Godey, and his mule in Texas, and that they had come to California with the mule, and there was no earthly doubt that this was Godey's mule. They also swore

HISTORY OF SANTA CLARA COUNTY

that the mule was branded with a diamond on its hip. The court was sitting in the old Juz- gado and was in a quandary indeed. At this point John Yontz. the sheriff, came into court and asked his honor if he should bring in the witness. The judge, all innocent, told the sheriff to 'bring him in.' The sheriff brought 'him' in and the witness was the mule. He filled the courtroom with his presence and the court with righteous indignation. 'Mr. Yontz,' said his honor, sternly, 'take that mule out of here, sir.' 'But your honor ordered me to bring him in,' responded Yontz, 'and I obeyed the order.' The scene was ludicrous in the ex- treme ; the sober face of the facetious sheriff ; the still more sober aspect of the innocent mule; the judge's withered face pale with in- dignation, and the countenances of the specta- tors red with mirth. The witness was taken out, but his introduction won the case for the defendant, for there upon his newly-shaven hip appeared the diamond brand to which the other witnesses had sworn."

The constitution ordained and the first legislature established a complete system of courts which should supersede the courts of the Alcalde and the First Instance. These were District, County and Justice's courts, and they were put into operation during the year 1850. Judge John H. Watson was appointed the first district judge of the Third Judicial District, which included the counties of Contra Costa, Santa Clara, Santa Cruz and Monterey. J. W. Redman was our first county judge. The influx of population into the state had brought lawyers of all degrees of excellence from all quarters of the globe. The session of the first Legislature had left a number of law- yers who were its members to increase and adorn our local bar. Of the many bright minds who practiced law before Judges Wat- son and Redman and their successors, the fol- lowing are a few: Freeman Mckinney, Wil- liam T. Wallace. F. B. Murdoch, William Mat- thews, A. L. Yates. E. K. Sanford. Horace Hawes, Rufus A. Lockwood, J. Alexander Yoell, John H. Moore, Judge Almond, Wil- liam Stafford, William D. Harvard, C. T. Ry- land, George B. Tingley, Alexander Campbell, A. P. Crittenden, James M. Jones, Lawrence Archer, Thomas Bodley and Judge R. F. Peck- ham. These were not all, but they will exam- ple the local bar, and while many of these are gone forever from our vision, from those who remain the quality of the rest may be esti- mated. I will tell the stories of the early bar in much the same order that they have been told to me:

"Judge Watson was, by profession, a physi- cian, who had learned a sufficient smattering of the law to secure a seat upon the bench, for

which place there was little competition among lawyers, for the reason that the salary was comparatively small, while the fees at that time were large to the lawyer who was competent to be judge. The style of Judge Watson's charges to his juries was, therefore, often free from legal verbiage and of legal principles as well, as the following story of the case of Dean vs. Mckinley will illustrate: The case was tried in Monterey County and took its origin in this wise: Mckinley was a merchant at Monterey in the '40s. It was part of his busi- ness to stock traders who were going to the mines. Dean was one of these traders and he bought from Mckinley a stock of goods, prom- ising to pay him when he returned. Several years passed and Dean did not return until after the American occupation. He came back 'broke.' and showed no disposition to pay McKinley for his goods. Finally the latter went before Alcalde Mariano Malarin and had Dean arrested and imprisoned for the debt. The Monterey jail at that time was in no condition to keep a prisoner long against his will, but it suited shiftless William Dean to stay there. He was his own jailer and when evening came he would pull the plug out of the jail door and go to the fandangoes or other places of amusement, and after the fun was over would go back to the jail, lock himself in and go to sleep, swearing he 'would make old Mckinley pay for this false imprisonment of an American citizen.' Well, when the Dis- trict Court was organized Dean, incited there- to by several lawyers on contingent fees, sued McKinley for large damages for his alleged 'false imprisonment.' The case came on for trial with a cloud of attorneys on either side. It was a prolonged case and when concluded was argued at great length by all of the attor- neys. When finally the cause was submitted to the jury, Judge Watson squared himself about pompously, and delivered the following charge :

"'Gentlemen of the jury, as the mariner re- turning to his post after a long sea voyage is enabled to catch a faint and fleeting glimpse of the land through mists and fog which sur- round it, so you, gentlemen of the jury, may be able. by the aid of the court, to catch a dim conception of the facts in this case through the obscurity which the arguments of counsel have thrown around it. I will illustrate the merits of this case with a simile. I will liken this case to a railroad train. The court is the track, the attorneys are the engine, and the client is the grease. You all know, gentlemen of the jury, how an engine will run when it is well greased. In fact, I have seen engines so well greased as to cause them to "play such fantastic tricks before high heaven as made angels weep." To carry the simile further,

HISTORY OF SANTA CLARA COUNTY

gentlemen, suppose that a railroad train runs over and kills a man. Who is to blame? The engine, the track or the grease? I think, the engine. Gentlemen of the jury you will bring in a verdict for the defendant.'

"Judge Redman, who presided over the County Court, was a good lawyer, but was also a man of many peculiarities, of strong prejudices and of eccentric modes of expres- sion. Some of the lawyers of his court he had a great liking for, and toward others he manifested dislike without any apparent rea- son. Among the former class was William T. Wallace, for whom he had a strong affection, and always, out of court, called him "Billy, my boy.' Among the latter was J. Alexander Yoell, against whom, frequently and unjustly, Redman showed his feeling. One day after the trial of a hotly contested case in which Yoell took a vigorous part, Judge Redman limped (he had a wooden leg) out of the courtroom, leaning on Wallace's arm. Presently he said, in a reflective and solemn way, as though speaking to himself: 'It would not be idola- try.' 'What would not be idolatry?' asked Wallace. 'It would not be idolatry to bow down and worship him,' said the Judge in the same reflective way. 'Worship whom?" asked Wallace. 'It would not be idolatry to fall down and worship Yoell,' responded Redman. 'And why not?' asked Wallace. 'Billy, my boy,' said the Judge solemnly, 'have you for- gotten the commandment which says, "Thou shalt not bow down and worship the likeness of anything that is in heaven above, or that is in the earth beneath, or that is in the waters under the earth"? Now, Yoell is not like any- thing that is in the heaven above, nor in the earth beneath, nor in the waters under the earth, and therefore I'll be dashed if it would constitute idolatry to fall down and worship him.'

"Another member of the early bar whom Judge Redman disliked was F. B. Murdoch, who later went into local journalism. Mur- doch had a case of J. H. Moses against some- body and got a judgment. One of the wit- nesses in the case was named Moses Scott, and when Murdoch came to write his decree he wrote the name of the witness in it by mistake for that of the plaintiff. Discovering his error later on, he made a motion before Judge Redman to set aside the decree and have entered an amended one, and when he had concluded Judge Redman said: 'Mr. Mur- doch, your motion is denied. It has long been the well settled rule of this court that when an attorney comes before this court with a case and burns himself he will be compelled to sit on the blister.'

"Among the attorneys who practiced before Judge Redman was Freeman McKinney, whom all the early pioneers will remember. He was a little fellow with a long red beard which came down to his waist, and withal a man of a good deal of force and dignity. One day a fellow was arraigned before Judge Redman for horse-stealing. He had no attorney. The Judge appointed Free Mckinney to defend him, with this instruction: 'Mr. Mckinney, the court appoints you to act as attorney for this defendant. You may retire with him and get his statement of the case. You will give the prisoner the best advice and assistance you are able in view of the law and of the facts he may give you.' Mckinney went out with the prisoner to the door of the Court House and asked him if he had any money. The fellow said he had a fifty-dollar slug. 'Give it to me,' said McKinney. The fellow reluct- antly gave up the slug. 'Now,' said McKin- ney, 'as a matter of fact, you stole that horse didn't you?' The prisoner admitted to his at- torney that he did. 'In that case,' said Mc- Kinney, 'I advise you to get into the brush as fast as the Lord will let you.' The prisoner 'got,' and presently Mckinney wandered back into the court room and sat down. Soon the case of the horsethief was called. 'Where is your client, the prisoner, Mr. Mckinney?' in- quired Judge Redman. 'I don't know, your honor,' answered McKinney, with the utmost sang-froid. "The last time I saw him he was making for the brush about as fast as he could go.' 'Is it possible, sir,' thundered the court, 'that you have permitted the prisoner to escape?' 'Your honor,' said Mckinney, calmly, 'I have obeyed to the letter the order of this court. Your honor appointed me as the at- torney for the defendant with the instruction that I should give him the best advice I was able in view of the law and the facts. The facts were, as the defendant admitted to me, that he stole the horse. The best advice I could give him was to get into the brush.' 'Humph!' snorted Judge Redman with dignity. 'Call the next case.'

"The story of how Jo Johnson summoned Judge Redman into court one morning, and the penalty therefor, is fresh in the minds of more than one member of the bar. Judge Redman liked his tipple and would also 'buck the tiger' on occasion. The County Court was held for a season in a building which stood near the corner of Santa Clara Street and Lightston Alley. A saloon was across the street in which Judge Redman spent much of his time and where he often lingered beyond the hour for convening his court. One day the assembled bar grew impatient at his ab- sence. Freeman Mckinney called the bar to

HISTORY OF SANTA CLARA COUNTY

order and gravely moved that the bailiff be instructed to call 'old' Redman at the door of the court three times, and that if he failed to answer he be fined for contempt of court. The bailiff was Jo Johnson, and taking the matter in all seriousness, he went to the door and in a powerful voice called out : 'Old Redman ! Old Redman! If you fail to answer you will be fined for contempt of court.' The sten- torian tones of Bailiff Johnson penetrated to the room where Judge Redman was seated at his game of cards. He deliberately finished the game and the lawyers heard the uneven thump of the Judge's wooden leg as he crossed the street. He entered the court slowly, ascended the bench with dignity, and then said with judicial severity: 'Mr. Clerk, enter a fine of seventy-five dollars against Jo John- son for contempt of this court.' When Jo Johnson afterwards told this story he always ended it in an injured tone: 'The worst of it was that the blanked old fool made me pay that fine.'

"Apropos of Judge Redman's social infirmi- ties, the following story is told as an actual fact: The bar became tired of the Judge's lapses and eccentricities, and at last felt called upon to request him to resign. The request was signed by every member of the bar in the county and was served one evening upon the Judge. The next morning his court room was full of lawyers to see what effect their petition would have upon Judge Redman. The Judge entered the room, perfectly sober and with a sad and contrite expression upon his face. He walked with halting step down the aisle and awakened a feeling of pity in the breasts of several who had signed the request. The court opened with the customary 'Hear ye,' and then the venerable form of the Judge arose from the bench. He looked timidly around as though searching for a friend, and then in faltering tones addressed the bar. 'Gentlemen of the bar,' he said, 'last night I received a petition from you, signed by all of your number, couched in respectful language and setting forth reasons why I should tender my resignation as judge of this court. Con- scious of my many infirmities and realizing the necessity of a pure judiciary, throughout the silent hours of the past night I have given to your petition painful and, I may add, prayerful consideration. I feel, gentlemen, that you have acted from a high sense of duty in this matter (here the eyes of the members of the bar be- gan to moisten with tears), and in responding to your petition requesting my resignation, I would simply say (here the Judge straightened up and altered his tone) that I will see you all in hell first, and then 1 won't resign. Mr. Clerk, call the next case.'

"It was one of Judge Redman's infirmities, if it be such, to be fond of horse-racing and to bet freely on his favorite. Horse-races were very frequent in the early '50s and Judge Red- man generally contrived to make the sessions of his court conform to the time of the race. One day a cause was on for argument wherein John H. Moore represented one side and a San Francisco attorney the other side of the controversy. A race was coming off that day. Judge Redman had little difficulty in per- suading Moore to submit the case without ar- gument in order that both court and counsel might attend the race. The San Francisco attorney, however, insisted on arguing his side of the case. During the first portion of his speech Judge Redman listened patiently, but as the hour for the race approached the Judge became fidgety and cast anxious glances at the hands of the clock with increasing fre- quency. At last, when the hands of the clock had all but reached the hour of the race, the attorney closed his speech. As he sat down the court hurriedly arose and without a break uttered the following sentence: 'I will take this case under advisement until 10 o'clock tomorrow morning. This court is adjourned. Moore, I'll bet you $100 the black filly wins the race.'

"One of the most celebrated cases in Red- man's court was the trial of a mulatto girl named Mindy Johnson for grand larceny in 1852-53. Mindy was a very good-looking girl of ripe charms and quite popular among the bloods of the bar. It was even reported that Judge Redman had a weakness for Mindy. She was by vocation a cook and washerwoman and one day fell from grace to the extent of steal- ing some articles of clothing and a carpet sack with $300 in money from the premises of a man named White. The theft was discovered and Mindy was arrested and indicted. In those days grand larceny was a capital offense. The evidence was clear and the girl's own confes- sion seemed to seal her fate. She was tried before Judge Redman and convicted. The verdict of the jury was recorded and the mo- ment for her sentence came. Judge Redman was at his wit's end for an excuse to save her, but he had none. 'Mindy,' said the Judge with assumed severity, 'stand up.' Mindy stood up. 'Have you any cause to show why judgment of the court should not be pronounced against you?' At this moment Freeman Mckinney. who with William T. Wallace, had been Min- dy's attorneys, arose, and with much dignity moved the court for arrest of judgment upon the grounds that it had been shown in evi- dence that Mindy was brought to Cali- fornia by a man named Clarkson as a slave and had never been manumitted. That

HISTORY OF SANTA CLARA COUNTY

as a slave she was property and that as a property she could not commit grand lar- ceny. 'Ah!' said Judge Redman, with a sigh of infinite relief, 'that's the point which the court had in mind during the whole trial of this case, but did not want to suggest to coun- sel for the defendant. I am glad to see, young man, that you have not forgotten your early training in law nor failed to burn the midnight oil in this case. The point is well taken; the defendant is discharged, the jury is dismissed and the court is adjourned.' District Attorney Moore protested, but his protest availed naught. The court remained adjourned and Mindy went on her way rejoicing." The record of this remarkable case, if anyone is curious enough to consult it, is to be found in Record Book H. Court of Sessions, among the musty files of the office of the County Clerk.

"There is another story of Judge Redman in which John H. Moore figures in his capacity as District Attorney. In 1852 the state legis- lature passed a law depriving the county court of jurisdiction to try certain offenses, of which grand larceny was one. It took some time in those days to get the official copies of the statutes distributed about the state. There was pending in Judge Redman's court about that time a peculiar case of grand larceny. A somewhat lawless limb of the law had gone out deer hunting, and failing to find deer had shot and carried home a fine young heifer be- longing to a Spaniard, who, discovering the of- fender, had the lawless lawyer indicted. He retained Lawrence Archer and William T. Wallace to defend him and the case came on for trial. Of course Archer and Wallace wished to clear their client both because he was such and also because he was a fellow at- torney. Possibly Judge Redman shared in this desire. It was a hot May morning some weeks after the legislature had adjourned that the case was called in Judge Redman's court. District Attorney Moore arose and asked that the case be certified to the District Court in consequence of the statute recently passed which took away the jurisdiction of the county court. 'Mr. Moore,' said Judge Redman, 'what evidence have you to offer showing that the court has no jurisdiction to try this case?' Mr. Moore respectfully called the attention of the Court to the statute which the legislature had passed. 'But what proof do you present of the passage of any such statute?' asked the judge. 'Why, everybody knows that the statute was passed,' said Moore, 'and here is a newspaper containing the statute in full,' answered the district attorney. 'Mr. Moore,' said Judge Red- man, 'this court does not act upon what every- body knows in depriving itself of a jurisdic- tion so often exercised, and, furthermore, I

will inform you, sir, that a newspaper is not evidence of anything in this court. Proceed with the trial.' In vain the district attorney protested that the court had lost its jurisdic- tion. The court insisted on going on with the case, until at last the district attorney, in a rage at the court, left the room. This stopped the case and the attorneys for the defendant wanted it to go on. After a while Judge Red- man sent the sheriff after the district attor- ney and again demanded that he either go on with the case or produce a certified copy of the statute. Mr. Moore would not do the one and could not do the other and went off again inwardly (and I suspect outwardly) cursing the court. Again and again he was sent for and again and again the procedure was gone through by the Judge, and so the hours of a sweltering day moved on in the old adobe court house until at last Judge Red- man, after a last attempt to get Moore to try the case, commanded the clerk to enter upon the minutes of the court that the case having been called and the district attorney having been ordered to proceed with the trial, and having both refused to do so and failed to show by proper evidence that the court had lost jurisdiction of the case, the prisoner was discharged. So the lucky dog of a law- yer escaped justice and Messrs. Archer and Wallace won a bad case without a struggle.

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History of Santa Clara County California with biographical sketches, Part 10

Author: Sawyer, Eugene T Publication date: 1922 Publisher: Los Angeles : Historic Record Co. Number of Pages: 1934

Author: Sawyer, Eugene T
Publication date: 1922
Publisher: Los Angeles : Historic Record Co.
Number of Pages: 1934