USA > Indiana > Early Indiana trials: and sketches. Reminiscences > Part 1
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PELO
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REYNOLI GENEALO
ALLEN COUNTY PUBLIC LIBRARY 3 1833 00827 3127
Gc 977.2 SM58E 7147596
Midleton Walla & Co Lier's & Printers.
EARLY
INDIANA TRIALS :
AND SKETCHES.
REMINISCENCES BY HON. O. H. SMITH.
CINCINNATI: MOORE, WILSTACH, KEYS & CO., PRINTERS. 25 WEST FOURTH STREET, 1858.
Allen County Public Library Ft. Wayne, Indiana
Entered according to Act of Congress, August 6, 1857, by HON. O. H. SMITH In the Clerk's Office of the District Court of the United States, for the District of Indiana.
7147596
TO THE READER.
PART of the sketches contained in this book, were originally pub- lished in the Indianapolis Daily Journal, edited by Berry R. Sulgrove, Esq., and were extensively re-published by other papers in most of the States ; these have been revised and corrected by the author. Many of the sketches, all the letters, and part of the poems, have never been published before. Each sketch is complete and requires the reading of nothing previous to understand it.
THE AUTHOR.
INDIANAPOLIS, IND., December 25th, 1857.
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December 25, - 1854
This
book is respectfully -- inscribed to my friends
EARLY INDIANA TRIALS;
AND SKETCHES.
REMINISCENCES BY HON. O. H. SMITH.
[FRIDAY MORNING, JULY 3, 1857. EARLY INDIANA.
THE writer proposes to consume a leisure hour by calling upon his recollections of the early trials of important cases in Indiana, which may be interesting, at least to some of our pioncer settlers who are yet living witnesses of the truth of his reminiscences. He proposes to confine himself to the Third Judicial Circuit of the State, and to the time when the Hon. Miles C. Egglestou was Presiding Judge of the circuit. The Third Judicial Circuit included what was then known as the Whitewater country, and extended from the county of Jefferson north to the State of Michigan, some two hundred miles in length, and from the Ohio line on the east, to White River, some seventy-five miles west. The country was new, sparsely settled, and being on the western frontier, the towns and villages were filled with Indians, trading their peltries, wild game and moccasins ornamented with the quills of the porcupine, with the settlers, for calicoes, whisky, powder, lead, beads, and such other articles as met their fancy. The population of the country embraced by the circuit, was a hardy, fearless and generally honest, but more or less reckless people, such as are usually to be found advancing upon the frontiers from more civilized life, and consequently there were more collisions among them, more crimes committed calling for the action of the criminal courts, than is common in older settled and more civilized parts of the older States.
The judiciary system at the time referred to was, like the country, in its infancy. The Circuit Court was composed of a president judge, elected by the Legislature, who presided in all the courts in the circuit, and two associate judges, elected in each county by the people. These " side judges," as they were then called, made no pretensions to any particular knowledge of the law, but still they had the power to
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EARLY INDIANA TRIALS.
over-rule the presiding judge, and give the opinion of the court, and sometimes they even " out-guesscd " the president, giving the most pre- posterous reasons imaginable for their decisions, as, in one instance, that a writ of scire facias to revive a judgment, would not lie, unless it was sued out within a year and a day. The decision of the associates was affirmed in the Supreme Court, for other reasons of course. The court-houses were either frame or log buildings, arranged to hold the court in one end and the grand-jury in the other. The petit-jury being accommodated in some neighboring out-building, used for a kitchen of the neighboring inn, during vacation. The clerks had very little qualifications for their duties. Still they were honest, and the most of them could write more legibly than Rufus Choate, United States Senator. The sheriff's were elected by the people, as they are now, and seemed to have been selected as candidates on account of their fine voices to call the jurors and witnesses from the woods, from the door of the court building, and their ability to run down and catch offenders. The most important personages in the country, however, were the young lawyers, universally called " squires " by old and young, male and female. Queues were much in fashion, and nothing- was more common than to see one of these young "squires," with a wilted rorum hat that had once been stiffened with glue in its better days, upon a head, from the back part of which hung a queue three feet long, tied from head to tip with an eel-skin, walking in evident superiority, in his own estimation, among the people in the court-yard, sounding the public mind as to his prospects as a candidate for the Legislature. There were no caucuses or conventions then. Every candidate brought himself out and ran upon his own hook. If he got beat, as the most of them did, he had nobody to blame but himself for becoming a candidate ; still he generally charged it upon his friends for not voting for him, and the next season, found him once more upon the track, sounding his own praises.
The court-rooms in those days were prepared and furnished with much simplicity, and yet they seemed to answer all the purposes absolutely necessary to the due administration of justice. The building, as I have stated, generally contained two rooms-the court-room being the largest,-at one end of which there was a platform elevated some three feet, for the judges, with a long bench to seat them. These benches were very substantial in general, sufficient to sustain the most weighty judges ; yet on one occasion the bench gave way, and down came three fat, aldermanly judges on the floor. One of them, quite a wag, seeing the " squires " laughing, remarked-" Gentlemen, this is a mighty weak bench." The bar had their benches near the table of
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EARLY INDIANA.
the clerk, and the crowd was kept back by a long pole fastened with withes at the ends. The "crowds" at that day thought the hold- ing of a court a great affair. The people came hundreds of miles to see the judges, and hear the lawyers "plead," as they called it. On one occasion there came on to be tried before the jury an indictment for an assault and battery against a man for pulling the nose of another who had insulted him. The court-room was filled to suffocation. The two associate judges on the bench. The evidence had been heard. and public expectation was on tip-toe. All was silent as death, when my young friend, then "squire," afterward Judge Chas. H. Test, rose and addressed the court : " If the court please." He was here interrupted by Judge Winchell from the bench. " Yes, we do please ; go to the bottom of the case, young man. . The people have come in to hear the lawyers plead." The young squire, encouraged by the kind response of the judge, proceeded to address the jury some three hours in excited eloquence upon the great provocation his client had received to induce his docile nature to bound over all legal barriers and take the prosecutor by the nose. All eyes were upon him, and as he closed, Judge Winchell roared out, "Capital; I did not think it was in him !" The jury returned a verdict of " not guilty," amid the rapturous applause of the audience. Court adjourned, and the people returned home to tell their children that they had heard the lawyers " plead." How different this from an incident that the writer witnessed in the city of Baltimore in the year 1828. Happening to arrive at Barnum's Hotel, too late for the Chesapeake boats to Philadelphia (there were no railroads then), and having to lie over till morning, I accidentally strolled around to the United States Court-room. Curiosity led me to open the door and step in. The United States Marshal politely gave me a seat. There was a venerable judge on the bench, a lawyer addressing the court, another taking notes of his speech. These three, and the marshal composed every person but myself in the room. They were all strangers. I asked the marshal who they were. " The judge," said he, "is Chief Justice Marshal; the gentlemen addressing the court is William Wirt, and the one taking notes is Roger B. Taney." Three of the most distinguished men in the United States, and yet in a city with a population of fifty thousand souls, they were unable to draw to the court-room a single auditor. I heard the arguments of these great men by mere accident, but I shall long retain a distinct recollection of them.
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EARLY INDIANA TRIALS.
[SATURDAY MORNING, JULY 4, 1857.
TRIAL OF FULLER.
AT the Mareh term, 1820, of the Dearborn Circuit Court, Judge Eggleston took his seat on the bench, as the successor of the Hon. John Watts. The judge was a young Virginia lawyer, a cousin of the Hon. Wm. S. Archer, of the U. S. Senate. He was a fine scholar and a well read lawyer. His integrity and his moral courage were above suspicion, while his impartiality commended him to the approbation of all. He will long be remembered by the writer, one of the young members of the profession, for the judge was ever willing to hear all that could be said by the humblest member of the bar, and when he decided, even against him, his manner gave courage to increase prepa- ration for the next case. I received my license to practice law from his hand, after a short examination in person. Ilis remarks in signing the license made a deep impression upon me. My means were exhausted, and it was a question of life or death with me. The judge kindly remarked, " Mr. Smith, I will sign your license, but you are only prepared to commence the study ; don't be discouraged, but per- severe in your studies and you may yet stand high in your profession."
The March term (1820) of the Dearborn Circuit Court was memo- rable for the trial of Fuller for killing Warren. Palmer Warren, the deceased, was my room-fellow at our boarding-house while I was a student. He was a young, pleasant man, of good reputation. Fuller was his senior in years, also highly respectable. These young men, it seems, became attached to a young, though not handsome girl, with a broad English accent, and both proposed marriage. The young lady preferred Warren, and rejected Fuller, who, in the moment of excited feelings, shot Warren with a pistol, first offering him one to defend himself, which Warren refused to accept. The ball entered the left breast and penetrated the heart. Warren fell dead. I was not there at the time, but saw his vest afterward, with the bullet-hole through it. As these young men were highly respected in Lawrence- burgh, especially Fuller, who was a great favorite, the trial excited unusual interest. I was present at the trial. The young judge took his seat upon the beneh for the first time. The prisoner was brought into court by Capt. Thomas Longly, the sheriff, and took his seat in the box. He was dressed in black, except his white vest; his countenance com- posed, and his eye steady. Anios Lane and John Test appeared for the State, Daniel J. Caswell, Charles Dewey, Samuel Q. Richardson, John Lawrence and Merritt S. Craig, were of counsel for the prisoner. The jury was empanneled with some difficulty. The evidence was pos-
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TRIAL OF O'BRIAN.
itive and conclusive, still the arguments of counsel occupied several days. Every appeal that it was possible to make to the jury by the able counsel for the prisoner, was fully met by the closing speech of Mr. Lane for the State. The jury, after a short absence, returned a verdict of " guilty of murder in the first degree." The judge, after overruling a motion for a new trial, pronounced a most impressive and solemn sentence of death, by hanging, upon the prisoner. The court-room was filled to overflowing with both men and women. All were much affected, and many tears were shed. The prisoner looked pale and agitated, yet it was apparent that he was not without hope. The execution was fixed at a distant day by the court, to afford an opportunity to test the legality of the conviction in the Supreme Court. The judgment was affirmed by the last judicial tribunal and the record returned. The people in Dearborn almost in mass sigued a petition to the Governor for the pardon of Fuller; and such were his hopes that he refused to escape from his prison, when he could have done so. Time rolled on, and brought the fatal hour, but no pardon ; and Fuller was publicly executed in the presence of thousands. This case will long be remembered in old Dearborn.
TRIAL OF O'BRIAN.
THE mind of the reader and my own recollections, may require rest from this deep tragedy, by relating other cases of a more comical character. Shortly after the trial of Fuller, the court called the ease of Michael O'Brian, indicted for the larceny of a watch, the property of Jemmy O'Regan. The prisoner appeared in the box. He was a little pock-marked Irishman, who was evidently acquainted with the " dear cratur," as well as the private resting-places in the out-houses of the city. In the witness-stand sat Jemmy O'Regan, the prosecu- ting witness-a small, rather good-looking Irishman with a flaming red head, and one eye that looked as if it had been put in with red putty ; the other eye had long taken leave of his countenance. Gen. James Dill was the elerk of arraigns. The General was a distin- guished connecting specimen of the last and present generations- a perfect gentleman, with a fine ruffled shirt, white vest, buff pants and a long queue down his back, with a solemn look and voice that would almost arouse the dead. The General, speaking to the prisoner, " Michael O'Brian, stand up and hold up your hand." "I will just do that very thing as ye ask me." "You are indieted for stealing Jemmy O'Regan's watch ; are you guilty or not guilty." Michael bowing to the floor, " Not guilty, my lord !" This "brought down
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EARLY INDIANA TRIALS.
the house," as the saying goes. The ease was submitted to the court without a jury. Jemmy was sworn and was the only witness. He . went on to identify the watch ; gave the number and maker's name, and then with tears in his eyes, " It is the same watch me ould mother gave me when I left Ireland, peace to her sowl." The identity of the watch was completely proved, but still the larceny was not traced to Michael O'Brian. Judge Eggleston-" Jemmy O'Regan, did you find the watch upon Michael?" "Sir, your honor ?" Judge-" I say, did you find the watch with him." Jemmy, with the most indig- nant contempt in his eye, looking the judge in the face, "Find the watch upon him ? and didn't I tell yer honor that it was the watch me ould mither gave me in Ireland. Had I found him with it, do ye think I would have troubled your honor with him ?" Judge-" The prisoner must be acquitted, on the ground that there is no evidence that he ever saw the watch." Jemmy-" And how could he see it your honor, when he was drunk and aslape on the flour all the while he stole it ?"
FIRST FEE.
I LEFT Dearboru immediately after these trials with my license- arrived at Versailles, Ripley county, the next day, and fairly entered into professional life. My shingle was exposed to the gaze of the passers- by for some days, but no client called. My laudlord of course looked for his dollar and a quarter at the end of the week, his boarding price, and I began to doubt whether the profession of the law was what I had supposed, the road to wealth and fame, when a loud knock at the door aroused my attention, and in stepped a man of a most herculean frame, apparently much excited, and asked if the " squire " was within. I said "yes." Says he, " I have a very important case, squire, and have come to fee you." This was indeed music to my ear, the first of the kind I had ever heard. The case was stated ; a neighbor had, without asking, bored one of his sugar trees. " If he had asked it," said my client, " he might have bored a dozen of them and welcome." Here was a plain case of trespass quare elausum fregit, as my Black- stone told me. The advice was given, the action brought, and warmly contested by Merritt S. Craig, my worthy competitor for wealth and fame at Versailles. I had left the office of the justice after my first speech and was eating dinner at my boarding-house when in rushed my client and announced the result in his stentorian voice, " squire, we have beat him, verdict 12} cents, good ; but squire I want you to stick to him, as he now swears he will plunge it into ekkity ; here is your fee of $2,50.". This was my first client, my first case, and my first fee.
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BEEF CASE.
[TUESDAY MORNING, JULY 7, 1857.
BEEF CASE.
IN the spring of 1820 I left Versailles, and settled in Connersville, in the beautiful Whitewater valley. John Conner, the proprietor, lived there at that time, and as he had been many years in his youth among the Indians, at their homes, Connersville was daily filled with his first forest friends, The only hotel was kept by my distinguished friend, Newton Claypool; the only attorney in the place was my friend William W. Wick, who was soon after elected judge of the " new pur- chase circuit," including the seat of government. Court was in session when I arrived. The great case of Isaac Jones against Edward Har- per was on trial. The facts of the case were simply these : Jones sold Harper twenty-five cents worth of beef in the market; Harper had no change to pay for it. Jones, some days after, called on lIarper for his pay. Harper refused to pay, alleging that the beef made his family sick. Jones brought suit before Edmund Harrison, a justice of the peace, laying his damages at $2. 50. Several hung juries fol- lowed each other before the justice. At length a verdict for Jones for twenty-five cents was had, from which Harper appealed to the Circuit Court, where jury after jury, at successive terms had disagreed ; and now came on the final trial. The people of the country in mass were in the court-house, the jury in the box, and the lawyers in their seats when I entered the room; the young judge, Eggleston, sitting between William Helm and Edward Webb, his portly associates. General James Noble, John Test, Amos Lane, and James B. Ray, the - counsel for Jones, occupied one end of the long table before the jury, William W. Wick, Daniel J. Caswell, and William C. Drew the other .- Jones and Harper sat at the ends of the table, deeply anxious as to the result, ready to give any required information to their counsel. The evidence was heard; the case argued some two days with great energy by the able counsel ; the court charged the jury with the usual ability of Judge Eggleston ; the outsiders seemed to doubt of the ver- dict, as they took sides with the lawyers. The jury was out all night, and at the opening of the court next morning, returned a verdict for the defendant. Jones lost his beef; his only farm and home was sold by the sheriff to pay the costs-over $1,100; and the last time I saw him he was poorly dressed, riding a little pony, carrying a few pecks of corn to a neighborhood horse-mill. Harper was broken up in paying his lawyer's fees.
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EARLY INDIANA TRIALS.
ROOT DOCTORS.
ONE morning I was introduced by my landlord to a small, black- eyed man, wearing a plain coat and speaking the plain language of " thee and thou," as Dr. Burr, from New Philadelphia, Ohio, who was about to settle in Connersville, as a root doctor. Some days after, there was nailed up to the weather-boarding of the hotel, an enor- mous swamp-lily root, almost as large as a man, with head, eyes, nose, ears and mouth nicely carved, arms and legs with feet stuck on, and just above the sign on a board, marked with chalk, " Joseph S. Burr, Root Doctor; No Calomel." The news of the arrival of the root doctor spread over the country like wild-fire, and hundreds came from all parts of the country to see the doctor and the big root. We had in town at the time a first-rate Allopathic physician, by the name of Dr. Joseph Moffitt, who looked upon the strange root doctor as a quack, intending to gull the people, and spoke of him freely with the utmost contempt, while on the other hand the root doctor openly charged Dr. Moffitt with killing his patients with "calomel". The people soon began to take sides, some for roots and some for calomel. It was a sickly season and a good many of Dr. Moffitt's patients died ; each case of death was referred to by the root doctor as evidence that the calomel doctor was killing the people and many believed the slan- der. Dr. Moffitt was at length almost driven to despair, and called upon me to bring an action of slander against Dr. Burr; I objected at first, but ultimately yielded at the urgent request of the Doctor. The action was brought ; some five of the first attorneys of the circuit were engaged on each side. The trial lasted more than a week ; the lawyers distinguished themselves, the proof pro and con left the case in doubt in the minds of the jury and bystanders whether the people died " with the fever " or were killed by the " calomel doctors". The widow of a man who had recently died was called as a witness by Dr. Burr. Dr. Moffitt, who sat by me, whispered in my ear, " I have him now; I can prove by a witness in court, that her husband died before I got there." The jury failed to agree and was discharged; the case continued. The root doctor ran away, and the suit was dismissed by Dr. Moffitt at his own proper costs.
The effect of this trial upon the practice of medicine in Fayette county, as well as upon the necessary qualifications to practice, was prodigious. Dr. Burr granted diplomas to his students upon thrce weeks' study. The country was soon filled with root doctors. One of his graduates, by the name of Thomas T. Chinn, a constable three weeks before, barely able to write his name, sallied forth with his diploma to the then " new purchase " as Dr. Chinn. " Root Doctor and
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ROOT DOCTORS.
no Calomel," flung to the public eye upon his new-painted sign hung upon the limb of a tree. A few weeks after, I met him in the street. " Well, Doctor, how goes the practice ?" "Only tolerable ; I lost ninc fine patients last week, one of them an old lady that I wanted to cure very bad, but she died in spite of all I could do. I tried every root I could find, but she still grew worse, and there being nobody here to detect my practice, like the other regular doctors, I concluded to try calamus, and dug up a root about nine inches long and made tea of it. She drank it with some difficulty, turned over in the bed and died. Still, I don't think it was the calamus that killed her, as all the Cal- amus doctors are giving it in heavier doses than I did." Such was his ignorance that he knew no difference between calomel and calamus, and yet he got patients.
SANG HOE.
THERE grew ont of this root-doctoring matter another warmly con- tested and exciting trial, after this wise ; Dr. Moffitt for the purpose of ridiculing Dr. Burr, spoke to one Martillow Remington, a black- smith, to make a " sang hoe " for Dr. Burr to dig roots with-directing him to finish it nicely and present it to Dr. Burr. The blacksmith knew that it was intended as a capital joke. The hoe was finished as bright as a piece of Sheffield cutlery, and presented to Dr. Burr, as an insult from Dr. Moffitt. Dr. Burr contrary to the expectations of Dr. Moffitt, not only received the hoe, but returned to Dr. Moffitt his warmest thanks for the present. Remington then called upon Dr. Moffitt for his pay for making the hoe. The Dr. refused to pay, on the ground that it was all a joke ; but Remington set up his labor on the hoe as a consideration on his part, and hurled the joke part of the transaction back upon Dr. Moffitt. An action soon followed by Rem- ington against Dr. Moffitt, before a justice of the peace. The trial was warmly contested, many witnesses testified, all stating the making of the hoe by the plaintiff, but each giving it as his opinion that it was all a joke. Next morning the opinion of the justice was to be given. The office was crowded at an early hour. The time for the decision to be delivered arrived, when the constable ordered "Silence in the court-house." Squire Hazelrigg-" This is a very important case, upon which I have thought much, and after mature deliberation, my opinion is, that it was all a joke. I have looked through the statute, Espinasse's Nisi Prius and Peak's Evidence, but can not find that an action will lie for a ' joke ;' judgment for the defendant of course." I was congratulated by my client for my able defense-but the end
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EARLY INDIANA TRIALS.
was not yet. The obstinate counsel for the blacksmith refused to sub- mit to the opinion of the court, and took an appeal to the circuit court. Costs accumulated, continuances were had for the absence of witnesses; a number of lawyers were employed on both sides. The case was argued at great length by able counsel, and was ultimately submitted to the court. Judge Eggleston decided, that so far as the blacksmith was concerned it was no joke, and gave judgment for the plaintiff for $7 damages and over $300 costs. Dr. Moffitt very good-naturedly remarked, upon seeing the amount of the cost bill, " Judge Eggleston was right; this is no joke."
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