USA > Indiana > Courts and lawyers of Indiana, Volume I > Part 21
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Another slander case. In one of the oldest communities of the Whitewater valley society had been thrown into two hostile factions by the slanderous statement of one woman that another had stolen a goose. All the women in the com- munity were in the court house as witnesses and all the men had come to hear the lawyers and see fair play generally. There were a score of witnesses to prove character, though
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nobody's character was ever questioned. There was a like number of witnesses to prove the spoken words, which nobody denied. The whole question hinged on the ownership of the goose. The plaintiff, represented by Governor David Wallace, Senator James Noble and General Mckinney, proved that she owned and always had owned the goose in question from the time it bursted its shell. The defendant, represented by Wil- liam R. Morris and Senator O. H. Smith, proved by an equal number of witnesses that she had raised and always owned the said goose. She had proved that as a young gosling it had a peculiar habit of wanting to play in the water. The case seemed on the "ridge." After noon the plaintiffs asked leave to introduce one more witness. She was a dignified old lady of seventy years. She testified that for sixty years she had been intimately acquainted with geese, knew the one in ques- tion well, and knew it belonged to the plaintiff. "Take the witness," said Mr. Wallace. Smith was suspicious and ad- vised that no cross questions be asked. He was overruled, however, and Mr. Morris asked: "How do you know that this particular goose belonged to the plaintiff ?" "Because she was white and paced. I owned her great-grandmother and she paced, and so did all of that breed." The answer was con- clusive and determined the suit, in spite of a two-days' argu- ment. Nor did it occur to the defendant or her lawyers that all geese paced. The verdict followed of one dollar and costs. But the social factions were not healed.
Keeping order in court was frequently no pleasant task. The pioneers were healthy and boisterous. Many were not overburdened with reverence for courts and lawyers.
Sanford C. Cox tells an interesting incident which illus- trates the extremities as well as the resources of some of the early courts. A burly settler was arrested for whipping his wife. He had enough respect for the constable to promise to accompany him. But when about half way to the squire's office he reconsidered the case and decided that courts and lawyers had no moral right to interfere in his domestic affairs. He so informed the constable and refused to go farther. While they were parleying, a hunter appeared and was forth- with formed into a posse comitatus. They marched the cul-
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prit off to the squire's office double quick. Before they ar- rived the witnesses had held a consultation and decided that it would not conduce to their personal pleasure to testify against the accused, so they had bolted. The squire had no way of detaining the accused. The hunter again came to the rescue, pried up the lock of a heavy worm fence, placed the prisoner's neck between the rails and so left him until the witnesses were again gathered up.
On one occasion Judge Bethuel F. Morris was trying a slander case. The attorney for the defense was hanging his case on the inability of the plaintiff to prove the identical words as charged. Several witnesses had testified that the defendant accused the plaintiff of stealing hogs, but they were unable to testify to the exact words. This, according to Espinasse, the authority of that time, was absolutely neces- sary. As the attorney was rather buoyantly arguing his case and, rising to a climax, had shouted, "Gentlemen of the jury, the court will tell you that the identical words must be proven and there is no evidence to prove that my client ever said the words charged," the old weazen-eyed plaintiff poked his head in the one window of the court room and drawled out, "Don't lie about it, Judge, I did say he stole my hogs and I'll never take it back." The attorney mopped the sweat from his face and slowly remarked, "Judge, I wish you would have my client put in jail; he has been drunk and crazy ever since this suit began." The Judge immediately ordered him jailed and he was kept there till his attorney had won the case.
On a similar occasion one of the parties kept interrupting the trial with his remarks. The Judge, at the suggestion of the attorneys, had ordered him to be quiet, but he soon forgot the order. Finally losing his patience, the Judge cried out, "Sheriff, take that man to jail and keep him there till ordered to release him." "There ain't no jail," responded the sheriff. "Then take him beyond the hearing of this court and bind him to a tree until this case is closed." The sheriff executed the order.
In the early days many horse thieves rendezvoused on the north bank of the Ohio, in what was then Clark county; when arrested, they usually evaded the law by means of a new trial,
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setting aside the verdict of the jury, or otherwise. The Judge, an honest man, was applying the law honestly, but, feeling that public opinion was against him, he resigned. In his place was appointed Marston G. Clark, a cousin of the conqueror of Kaskaskia. He was unused to the law, but a man of good sense and integrity. The log jail was full of horse thieves. The penalty provided then by law was thirty- nine lashes on the bare back. The grand jury did its duty and the first case, against John Long, was called. The court ordered the sheriff to bring in the prisoner. "There he is," responded the officer, "I brought him along with me." The Judge then read the indictment charging him with stealing an Indian pony. Before the prisoner could answer, the attorney arose, saying: "May it please your honor we plead in abate- ment that it is a misnomer. His name is John H. Long." The Judge overruled the plea, saying he was well acquainted with the defendant and was satisfied they had the right man. "We then move to quash the indictment," said the attorney. "State your objections." "First, there is no value of the horse laid. Second, it is charged in the indictment to be a horse, when in reality he is a gelding." "I know an Indian pony is worth ten dollars," returned the Judge, "and I shall consider that a gelding is a horse. Motion is overruled." The trial proceeded to a verdict of thirty-nine lashes. Counsel then moved in arrest of judgment that it was not proved that the horse was stolen in Indiana. "That I consider a more serious objection. I will consider it till morning," ruled the court. "Sheriff, keep the prisoner safe and adjourn court." As soon as the crowd was gone, he turned to the sheriff. "Sheriff, at twelve o'clock tonight, you and your deputy take the prisoner into the woods, well beyond hearing, and give him thirty-nine lashes well laid on the bare back, put him in jail and bring him into court in the morning and say nothing to anyone." The order was obeyed and court convened in course. "I have been thinking of the motion in arrest and feel it best to grant a new trial." Long sprang to his feet. "Oh no, for Heaven's sake, I am almost whipped to death. I discharge my attorney and withdraw the motion." Judge: "Very well; clerk, enter
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the verdict and mark it satisfied. Call the next." No more dilatory motions were made.
The following case from Howard county represents not only some peculiarities of early practice, but a kind of suit now rapidly disappearing. The plaintiff was asking damages of the defendant alleging that he had lost a number of sheep killed by the latter's dogs. John U. Pettit was on the bench. Murray and Lindsay represented the plaintiff and Henry A. Brouse represented the defendant. When the plaintiff's evi- dence was all in, the Judge turned to Brouse and asked if he had any evidence. "None," he replied. The client was astounded. "What, hain't you goin' to put in any evidence ? Ain't that what I hired you for?" "Mr. Brouse," sternly ordered the Judge, "can't you keep that boisterous client of yours still?" Mr. Brouse shot a withering glance at his client, who retorted : "That's all right, Mr. Brouse, you needn't look cross-eyed at me. If you hain't a goin' to git in any evidence for this court, I'm goin' to quit. There's plenty of other lawyers in this town besides you." The court again commanded the attorney to keep his client still or he would fine both of them. "I'll try, sir," courteously responded the lawyer, as he whispered rather audibly to his client to keep still as he had the plaintiff beaten without any testimony. The plaintiff had failed, as was usual in these cases, to prove the damage done by the individual dogs.
As would naturally be expected, many ludicrous errors were made by the early lawyers in the use of legal terms and expressions borrowed from other languages. A well-known lawyer of central Indiana, defending a client accused of larceny, exclaimed, "I tell you, gentlemen, these are the same identical, verbatim boots that my client bought in Cambridge City."
A rather pompous lawyer was defending a client againt a criminal charge. Rising to the climax, he exclaimed, "Gentle- men of the jury, how can you in the light of the eighteenth and nineteenth centuries convict my client here? It would be pre- posterous to convict him when he has already proven an albino."
Some instances may be given to show how widely attorneys
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traveled in the old days and as a result how widely their ac- quaintance reached. The first murder trial in Greene county was held in October, 1823, at the home of Martin Wines, in Burlington, one of the Associate Judges. Andrew Ferguson and Julius Dugger were defendants. Judge W. W. Wick, later of Indianapolis, presided. Addison Smith and Isaac Naylor prosecuted, Craven P. Hester and John Law defended. Hugh Ross, James Whitcomb, John F. Ross and Calvin P. Fletcher were other attorneys present. These attorneys represented fully half of the settled portion of the state.
One of the earliest trials remembered by the old settlers of Noble county was held at the village of Rochester in 1840. John W. Wright presided. The prosecutor was Lucian P. Ferry, of Ft. Wayne. The court had to furnish counsel for the prisoner, assigning Hon. Charles W. Ewing and Robert Breckenridge. The appeal of Mr. Ewing, known throughout the state for his legal ability and eloquence, was long remem- bered and the tradition of it still lingers. It will be noted that none of the attorneys in this famous case were residents of the county.
These same attorneys, Ewing and Breckenridge, of Ft. Wayne, figured in another famous trial before a Justice of the Peace in Noble county. In 1838 a posse of citizens pounced on the horse thieves then rendezvoused at Haw Patch, on the Fort Wayne-Goshen trace, and captured a dozen of them. They were threatened with lynching, but cooler coun- sels prevailed and all were taken by the enraged settlers be- fore Squire Nelson Prentiss, at Stones' tavern, a few miles south of Ligonier. Here they were defended by Ewing and Breckenridge and prosecuted by an attorney from Piqua, Ohio. The trial lasted ten days and ended in all being bound over to court. Part were sent to Goshen and part to Fort Wayne. The former were released on a habeas corpus writ, the latter broke jail. The hand of justice was only delayed.
In the Harrison murder case of Logansport, February, 1838, Judge Charles W. Ewing, of Fort Wayne, presided. Thomas Johnson was the regular prosecutor for the Eighth circuit. The counsel assigned by the court to the defendant were W. Z. Stuart and Daniel D. Pratt, both members of the
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Cass county bar. Judge Pratt had finished his studies under Calvin Fletcher in 1836 and had just located in Logansport. Mr. Stuart had been admitted February 20, 1837. Contrary to the rule, here was a case in which all the attorneys were local, but the obvious explanation is that neither party was able to employ an attorney. The accused was sentenced to hang and only escaped by timely suicide. It may be observed that at that time Calvin Fletcher, of Indianapolis ; James Rari- den, of Wayne county; Edward A. Hannegan, of Fountain; John B. Niles and others were regular attendants at the Cass county court which, on account of its proximity to the Treaty grounds, was a lucrative field.
One of the earliest contested cases on the Montgomery county docket was the State vs. Jesse Keyton for receiving stolen goods. Judge Jacob Call, of Vincennes, presided. Hon. John Law, then of Vincennes, but later of Evansville, prose- cuted. Joseph Cox and Nathan Huntington defended.
At the trial of the Fall creek Indian murderers in Madison county in 1824, Judge W. W. Wick, of Indianapolis, presided. Gen. James Noble, of Brookville, and Philip Sweetzer, of Co- lumbus, assisted Calvin Fletcher, of Indianapolis, in the prosecution; William R. Morris defended. In the trial of Sawyer, a short time later, Judge Miles C. Eggleston, of Brook- ville, presided. James Noble, Philip Sweetzer and O. H. Smith, of Connersville, prosecuted, while James Rariden, Lot Bloomfield, William R. Morris and Charles H. Test defended. These men, it will be noted, were gathered from the southeast quarter of the state. At the trial of Fuller, for the murder of Warren, in the Dearborn court, March, 1820, Miles C. Eggleston presided. Amos Lane and John Test prosecuted. John J. Caswell, Charles Dewey, Samuel Q. Richardson, John Lawrence and Merritt S. Craig defended.
In the murder case of State vs. Richard Cranmore, tried in Spencer county at the October term of court, 1834, Judge Samuel Hall, of Princeton, presided, John Pitcher, of Mt. Vernon, prosecuted, and J. R. E. Goodlet, of Evansville, de- fended, assisted by John A. Brackenridge, of Boonville, and elsewhere. The parties thus represented the "Pocket." In Perry county, at the November term, 1815, in a slander case,
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Crist vs. Connor, Isaac Blackford, then of Vincennes, presid- ing, William Prince, of Princeton, was opposed to Davis Floyd, of Jeffersonville. Old Humphrey Marshall, of Kentucky, ap- pears on this docket as a lawyer.
These few cases, selected from the different parts of the state, show, as no amount of mere statement could, how widely the lawyers of that day traveled. The leaders were known throughout the state, though, with one or two exceptions, it can hardly be said that those more learned in the law traveled so widely. Perhaps a score of men could be named who were especially noted for their itinerancy. Without attempting to make a full list, the following might be named: Davis Floyd, Charles Dewey, General W. Johnston, John Law, John Test, O. H. Smith, Calvin Fletcher, James Noble, Edward A. Hanne- gan, Charles H. Test, W. W. Wick, James Whitcomb, Charles Ewing, Miles C. Eggleston, James Rariden, Joseph A. Wright, Samuel C. Sample, John Pettit, David Wallace and Albert S. White. The list is not meant to be complete or exclusive, merely illustrative.
A band of them, usually a half score, frequently a score, in number, looked not unlike a detachment of rangers. Each carried large saddlebags, containing his library on one side and his commissariat on the other. A large, heavy blanket, tightly rolled, was tied on the back of the saddle. A heavy overcoat, used to keep out the cold and rain or, as a coverlet, if need be, was either worn or carried; most of them wore high beaver hats, in various stages of dilapidation-a more uncomfortable or inconvenient article to a horseback rider, especially along a narrow trail, could not be invented.
They usually traveled single file along the narrow trails. Their horses were in many cases as well trained as those of cavalry. Without much guidance by the riders, they picked out the most available paths, dodging mud, rocks, brush and other obstacles. The chief difficulty was that in choosing good footing the horses, frequently Indian ponies, had no regard for the overhanging boughs, which seemed to have a penchant for knocking off the tall beaver hats. Rivers and swollen streams were merely inconveniences. The horses were trained to swim them and, so far as the writer has noticed, no fatal
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accident happened to Indiana circuit riders on this account. There were no bridges till about 1830. All streams in the state were crossed readily by swimming except the Wabash and main White river. These were crossed by ferry, though the horses usually swam beside the canoe which carried the master.
Very little camping out was done by the circuit riders of Indiana. By the time a county was ready for a Circuit court there were enough settlers on the ground to take care of the Judge and lawyers. This remark does not apply to jurors and witnesses, however, who often, if not usually, camped near the court house. Indiana has always been plentifully sup- plied with taverns, so far as number was considered. The lawyers were always welcomed by the tavern keeper because they rarely complained. Being used to rough fare, they took what was offered them, which was always the best to be had, paid for it without murmur and went their way.
They were a jolly crowd, without being rough. Occasion- ally a game of poker was indulged in and not infrequently a good-natured "rough house" was pulled off, but the usual custom was to pass the time in social, especially political, con- versation, where wit and humor were the large factors. Inno- cent jokes were often perpetrated. When time came to retire, if there was nothing better, the lawyers spread their blankets and cloaks on the floor and, with their feet to the fire, lay down at least to sound sleep if not to pleasant dreams. They joined with full-grown appetites in devastating the corn bread, roasting ears, pork, squirrel, venison or whatever came on the table. Nothing pleased a tavern keeper or his wife so much as to see "real folks" eat the homely victuals apprecia- tively; the more they ate the more welcome the next time. "Bub" and "Sis" were not neglected. The lawyers always found a penny for them in exchange for little chores such as cleaning and oiling boots, currying horses, an extra cup of tea or coffee; so that even these looked joyfully forward to the time when the "big lawyers" again passed that way.
The following incidents of O. H. Smith will perhaps strengthen these impressions of travel on the circuit. The first refers to his trip to Fall creek in 1825. "The court was
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to meet the next Monday. On Thursday morning I mounted 'Gray Fox' (at Connersville). The only traveled route be- tween Connersville and the falls of Fall creek was by way of Indianapolis, then a small village in the woods. I arrived at the Capital on Saturday night and early next morning started alone on the path to Fall creek, on the east side. The main track lay on the west side; but the water was high and muddy and I thought it safest to go up on the east side without crossing. There were no bridges over any of the streams in that day.
"The day was dark and drizzling. My path ended some ten miles above Indianapolis in a thicket. I could get no farther in that direction. Turning the head of 'Fox' west, the creek, with its muddy waters and rapid currents overflowing the opposite bottoms, was soon in sight. I had twenty miles to ride and no time to be lost. Giving 'Fox' the rein, he ap- proached the bank, and, without a moment's hesitation, with a quick step, he plunged in and swam beautifully across the main channel, but the moment he struck the overflowed bot- tom on the opposite side-the water about four feet deep- he began to sink and plunge. The girth broke. I seized the stirrup leather to which my saddle bags were fastened, with one hand and the long mane of 'Fox' with the other, disen- gaged my feet in a moment and was gallantly dragged through the mud and water to the dry land. My hat was gone, but it was too early for mosquitoes and it made little difference, hat or no hat, so I got to court. All matters were soon adjusted. 'Fox' bounded on as light as a reindeer, and before dark I was in lively conversation with the other lawyers, before the large log fire at the hotel of Mr. Long."
The following story (again quoting O. H. Smith) is given at length in accordance with the legal principle that where the best evidence can be had no other will be accepted :
"The fall term of the Circuit court (1825) found Judge Eggleston and myself, well-mounted, once more on the circuit ; the Judge upon his pacing pony, the same which I later rode through a congressional electioneering campaign, and I on my gray 'Fox.' We were joined at Centerville by James Rariden, mounted on 'Old Gray,' one of the finest animals I have ever
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seen. Our court was to be held on the next Monday at Fort Wayne. We reached Winchester late in the evening and took lodging at the hotel of Paul W. Way.
"After an early breakfast, we were once more on our horses with one hundred miles through the wilderness before us. There were two Indian paths that led to Fort Wayne, the one by Chief Francis Godfrey's on the Salamonie; the other in a more easterly direction, crossing the Mississinewa higher up and striking the 'Quaker Trace' from Richmond to Fort Wayne, south of the headwaters of the Wabash river. After a moment's consultation, Mr. Rariden, who was our guide, turned the head of 'Old Gray' to the eastern path and off we started at a brisk traveling gait in high spirits. The day passed away; it was very hot and there was no water to be had for ourselves or horses. About one o'clock we came to the Wabash river, nearly dried up; but thence was grass on the banks for our horses and we dismounted, took off the saddles, saddlebags and blankets, when the question arose, should we hold the horses while they grazed, tie them to bushes, spancel them, or turn them loose? We agreed that the latter was best for the horses and easiest for us. The bridles were taken off and the horses turned loose to graze. A moment later 'Old Gray' stuck up his head, turned to the path we had just come, and bounded off at full gallop, swarming with flies, followed by the pacing pony of the Judge at his highest speed. 'Fox' lingered behind, but soon became infected with the bad example of his associates, and away they all went, leaving us sitting under the shade of a tree that stood for years on the banks of the Wabash. Our horses were taken up a week later at Fort Defiance, Ohio, and brought to us at Winchester on our return.
"It took us but a moment to decide what to do. Ten miles would take us to Thompson's on Townsend Prairie. Our sad- dles and blankets were hung up above the reach of wolves. Each took his saddlebags on his back, and we started at a quick step, Rariden in the lead, Judge Eggleston in the center and I brought up the rear. The heat was intense. None of us had been used to walking. I am satisfied we must all have broken down, but most fortunately there had fallen the night
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before a slight rain, and the water lay in the shade in the horse tracks. We were soon on our knees with our mouths to the water. Near night we reached the prairie, worn down with heat and fatigue. The thunders were roaring and the lightnings flashing from the black clouds in the west. A storm was coming up on the wings of a hurricane, and in ten minutes after we arrived at Mr. Thompson's it broke upon us and continued raining in torrents during the night. We were in a low, one-story log cabin, about twenty feet square, no floor above, with a clapboard roof. Supper, to us dinner, was soon ready. Three articles of diet were on the plain walnut table, corn dodgers, boiled squirrels and sassafras tea. To us it was sumptuous and thankfully received ; supper soon over, we turned in and such a night of sweet sleep I never had before nor since.
"The next morning our saddles and blankets were brought to us from the Wabash. The landlord provided us with ponies and we set forward at full speed, arriving at Fort Wayne that night and taking lodgings at the hotel of William N. Hood. Court adjourned early the next day and we all went up the St. Mary to Chief Richardville's to see an Indian horse race."
In 1827 it took Senator James Noble and Congressman O. H. Smith eighteen days to travel from Brookville to Washing- ton City. In May, 1833, Hugh Mccullough, then a lawyer, made a trip from Madison to Indianapolis in two full days in a stage coach. Judge Banta said it was a hard day's ride to the capital from Greenfield, Shelbyville, Franklin or Mar- tinsville. Aquilla Jones rode from Columbus to Indianapolis in two days. Meridian street he found swampy and knee-deep in mud. Mccullough says it took three or four days of hard riding to get to Indianapolis from the out counties. Reverend Manford, a Universalist preacher, rode from Cincinnati to Chicago at the time in two weeks. He found the Kankakee country dry. Had it been wet he probably would have spent another week. Dr. W. C. Foster, of Bloomington, in 1850,- thought the time would come when a man could leave his home in any part of the state on Monday morning and get to the capital by Thursday. Mccullough says there were two bridges in Indiana in 1833.
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