USA > Indiana > Vanderburgh County > History of Vanderburgh County, Indiana, from the earliest times to the present, with biographical sketches, reminiscences, etc. > Part 43
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EXECUTION OF HARVEY.
spirits with which he was supplied, for, abandoned as he was, he could not while in possession of his faculties act the part which was now put upon him. Your res- pondent left the spot in disgust, and meeting with Litton, he had the alteration effected, procured the necessary certificate from the clerk of the court aforesaid, and immedi- ate placed the whole of the papers in the hands of John Baddollel, Esq., etc. In the meantime, by neglect of his business and dissipation, Gall's financial con- dition grew so bad that he "could not withstand the temptation held out to him by this conclave of plain and honorable men who it appears thought that $300 was the fair market price of souls, and a full compensation for the small crime of perjury which they induced him to commit," for he went to Vincennes and swore he had lost a certificate which he knew at the time was in the hands of Mr. Audubon.
The answer charges that Gall never re- ceived the $300 named as a consideration by McDowell and his associates and further recites that Gall afterward told Audubon, " in contrition " that he had re- ceived only "one indifferent horse with an old saddle and bridle " which "your respond- ent cannot but suppose were given to him by his kind friends to enable him to leave a place where his stay might have been the means of laying open the plot so nicely and secretly formed, and rending asunder the web of infamy so ingeniously woven." Denying all fraud, combination, perjury, subornation of perjury, bribery, etc., he proceeds to answer the bill specifically at great length, first, however, congratulating the complainants "upon their good fortune in not being obliged to swear to the bill, as they have thereby escaped the temporal pains and penalties of perjury."
Mr. Audubon's attorney was J. Hillyer.
The case was not finally settled until the October term, 1822, when the following entry was made: "Whereupon, the cause coming on to be tried upon the original bill, answer and exhibits, it is ordered, adjudged and decreed, that the complainants take nothing by their bill, and that the said de- fendants go hence without day, and recover against the said complainants their costs and charges by them about their suit in this be- half expended, and the complainants be and remain in mercy," etc.
The first and only judicial execution in Vanderburgh county was the hanging of John Harvey, who was put upon his trial on Wednesday, June 4, IS23, and on the 7th day of June was sentenced. The crime for which the death penalty was inflicted was the murder of one Casey, near the old Mc- Dowell farm, in Union township. The trial was conducted before Judges Goodlett, Mc- Crary and Olmstead, and a jury composed of Joseph Wilson, Joseph McCallister, Jesse McCallister, Samuel Kenyon, Elisha Dur- phey, Lewis Williams, John Fickas, Henry James, Elijah Waters, Benjamin F. Barker, Vicissimus K. Phar and Robert Gibson. But one day was consumed in making up the jury and taking the evidence. The de- liberations of the jury were brief; the ver- dict, guilty. A new trial was asked for and denied; a motion to arrest judgment was overruled, and the following judgment entered :
" Whereupon all and singular the premises being seen and by the court here fully understood, it is considered by the court here that the said John Harvey return to the county jail from whence he came, from whence he must be taken to the place of execution by the sheriff of the county, to some convenient place within one mile of the court-house in Evansville, on Friday, the 27th day of June, instant, and then and
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there, between the hours of 9 o'clock in the forenoon and 2 o'clock in the afternoon, to be hung upon a suitable gallows, for that purpose to be erected, by the neck until he is dead "
The gallows was erected on the public square in Evansville, near the center of the southwest quarter. The militia was called out under command of Gen. Robert M. Evans, assisted by Col. Hugh McGary. The soldiers marched upon the ground four abreast, and formed a hollow square sur- rounding the gallows. They remained in position until the body of Harvey was cut down and laid in the coffin. When Maj. Warner (R. N.), then sheriff of the county, shook hands with the condemned man he cried like achild, even before springing the trap. Harvey died easily, and was buried near the foot of the gallows. His bones were dug up when the workmen were ex- cavating for the erection of the buildings now occupying the ground, and were gath- ered up and articulated by the late Dr. Isaac Hutchinson. Though the unfortunate man undoubtedly did the killing for which he was made to suffer, many persons doubted whether it was a case of murder. As is common in such matters, a woman was in the case.
Besides the cases mentioned, for nearly twenty years there were few trials of im- portance. The attention of the court was chiefly directed to petty criminal matters. Following the hard times of 1820, there were a few petitions of insolvent debtors for a release from the payment of debts. Some of these were presented by men who after- ward became prominent, among them John M. Dunham, Vicissimus K. Phar and E. Saterlee. Civil cases of small importance and the settlement of estates consumed much of the court's time. Divorce suits were not infrequent. The principal of these, perhaps,
because of the prominence of the parties, was that between Dr. William Trafton and his wife Hannah, and that against William Wagnon, brought by Mary, his wife; in the former case the property of Dr. Trafton was equally divided between himself and wife, Jay Morehouse and Horace Dunham being appointed by the court to make the division. Mrs. Wagnon alleged abandonment and infidelity, and, by agreement of the parties, obtained a decree. State cases were nu- merous, and were based on all sorts of vio- lations of law, those for assault and battery being the most frequent. In those days a man's readiness to fight and his skill in per- sonal combat were tests of his manhood. Indictments for assault and battery were re- turned against many of the foremost men of the county. Hugh McGary received more attention in this line perhaps than any other individual. He was once indicted for ob- taining money under false pretenses, and again for adultery,
but in neither of these cases was he found to be guilty. Gen. Elisha Harrison was tried for assault and battery with intent to murder. He was acquitted of the intent to murder but found guilty of the assault and battery. His fine was probably the lowest ever assessed by any jury in this county, be- ing one mill.
Among the pioneers there were few. if any, better men than John Ingle, and yet he, too, was tried for assault and battery. When arraigned he pleaded guilty and threw himself on the mercy of the court. The merciful judge punished him with a fine of one cent. Maj. Alanson Warner, a conspicuous figure of early times, well remembered by the older citizens of to-day, was also fined for a similar proof of temper. Ezekial Saunders, the pioneer preacher, and a good man, was indicted for usurpation, tried, found guilty, and fined one cent. There were also num-
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EARLY LITIGATION.
berless indictments for extortion, taking up horses, larceny, counterfeiting, selling liquor or practicing medicine without license, adul- tery, disturbing religious meetings, gambling, and apparently every form of wrong-doing that man's sinful nature could make pos- sible. Philip H. Brent and James McClane were charged with man-stealing; other in- dictments of the same kind were occasionally returned. Mark Wheeler was one of the purest and most upright men that ever lived in this county, and yet he was put on trial for marking a hog with intent to steal it. David Aikin was foreman of the jury that tried the case. It is hardly necessary to say that the verdict was " not guilty." In 1824 Samuel W. Hammond was indicted for issuing a challenge to fight a duel, and upon his trial by a jury of which George W. Jacobs was foreman, was found not guilty. In the next year Samuel Scott, for whom a township was named, was placed under bonds to keep the peace, especially as to Kirby Wood. Thus indefinitely the account might be carried on. Individuals are named in this connection with no desire to reflect discredit upon them but with a view of showing the character of the court's busi- ness and incidentally the conditions of society at the times referred to. The facts certainly furnish no support for theories of social retrogression.
The court's connection with the pension- ing of soldiers and sailors is worthy of notice, that practice now being unknown. By laws enacted March IS, 1818, pensions were granted to the survivors of the revolutionary war, and in order to receive the benefit of these laws applicants were required to make their proofs before the court within whose circuit they resided. The necessary proof was made in the following cases: In 1827, by Daniel McCollum, aged eighty-three years, and Shadrach Elkins, aged seventy-
eight years, both residents of Posey county. In 1829, by John Henson, aged sixty-two years, and in 1832, by Elijah Stinson, aged seventy-nine years, both residents of Van- derburgh county. The practices of the grand jury are also worthy of notice. If to-day grand jurors would take cognizance of such cases as in earlier times formed a basis for indictments the court would be kept remarkably busy, but perhaps a greater degree of social purity than now exists would be obtained. Some grand juries inquired carefully into all things affecting the public welfare, whether or not they were strictly violations of law. At the March term, 1822, the grand jury of that year, with William Pennock as foreman, made a general report to the court, denouncing the practice, which was said to prevail in the county, " of the candidates for the various offices treating electors and others with spirituous liquors for the purpose of obtaining their election." With concern and regret they viewed the practice as a public evil, subversive of repub- lican principles, and having a tendency to corrupt the morals and produce habits, which, if permitted to be pursued, would in the end destroy the pillars of the government. Their report was spread at length upon the records of the court and directed to be printed in the Evansville Gazette.
In March, 1832, Judge Samuel Hall presented his commission, signed by Gov. Noah Noble, as presiding judge of the fourth judicial circuit, and took his seat upon the bench. Previously Judge Hall had re- sided at Princeton, in Gibson county, where he was doing a small practice. He was not well known in Evansville, and probably never tried a case in the courts of this county before he was called upon to preside. He was a safe counselor, a good judge of law, cool, dispassionate and accurate, but pos- sessing few of the brilliant qualities that
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were necessary to the conspicuous advocate of that day. After leaving the bench he be- came president of the E. &. C. (now E. & T. H.) Railroad company, and was bet- ter known to the people generally as a rail- road man than as a lawyer. He was an able manager and proved himself an efficient man of affairs. He was deservedly popular, and was widely respected for his qualities of genuine manliness. He had the reputa- tion of being an upright and honorable citi- zen. Nothing derogatory to his character could be truthfully said by any one. The later years of his life were uneventful and he died in Princeton, where a son of his now resides. He took some interest in pol- itics, and at one time aspired to a nomina- tion for congress.
Judge Hall resigned his office in 1835, and was succeeded by Judge Charles I. Battell, appointed to the vacancy, who presided only through one term of court. Judge Battell was a resident of Evansville, and a conspicuous member of the highest so- cial circles. His service on the bench was of short duration, and it was not as a judge that he was best known. The firm of Bat- tell & Ingle had more extensive business re- lations throughout the east than those enjoyed by any other firm. Their work was chiefly of a commercial character, and their clients non-residents, and the Branch Bank, then doing business here. He was scholarly and devoted to his books. His practice was not of that general character which enabled him to acquire his knowledge from his associates at the bar, but required a careful consultation of authorities. His work was chiefly in the adjustment of com- mercial disputes and the settlement of es- tates - a very valuable branch of the practice, requiring the exercise of the greatest care and ability and permitting no display which would attract public notice.
Judge Battell was not practical, but consci- entious and careful to be right; in the privacy of his office he was a safe counselor. He was remarkable for his absent-mindedness, and was guilty of many queer freaks, due to that characteristic.
It is related of him that he often wrote letters to parties at a distance, enclosed them in envelopes, which he addressed to himself, posted them, and in due time received them back through the mails. If Evansville had a social beau in early times, it was Judge Battell. He was an old-school gentleman, polished, gallant and charming in conversa- tion, a most welcome guest at every social gathering, and a delightful companion at all times. He was unmarried and had no rela- tives here. He retired from the practice about 1847, and soon afterward, while in Ohio, met with a severe accident by the overturning of a stage-coach, which crip- pled him for life. He spent much of his time in Evansville, and occasionally visited in New York city, where he died, probably twenty years ago.
At the first regular election following Judge Hall's resignation Elisha Embree, of Princeton, Gibson county, was elected judge of the fourth judicial circuit, and was commissioned December 11, 1835, by Gov. Noah Nobles. His first term in this county was held in March, 1836. Judge Embree was a native of Kentucky and came to Indiana territory with his parents in ISII, locating near Princeton. He studied law in the office of Judge Hall, and was admitted to practice in 1825.
Before going on the bench he had served in the
state senate where he was one of the few who had the courage to oppose the internal improvement legislation which subsequently bore such evil fruits. In the practice of his profession at Princeton, he was eminently successful,
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AN ERA OF GAMING.
being early recognized as an able and elo- quent advocate and a sound and practical counselor. Throughout his career he main- tained an enviable position among the ablest members of the bar. His thorough acquaint- ance with every branch of the law, and his clear perceptive faculties, made him an ex- cellent judge. It was impossible for the best pleaders to confuse him or lead him away from the main point in a case by elo- quence, sophistry, or any art known to the profession. He never practiced in this county and was not known here as a prac- titioner. He was a plain man, practical and unostentatious. Though without polish or the graces which adorn the cultured gentle- man, his mind was vigorous, his manners simple, and his character above reproach. In personal appearance he was tall, angular, with high cheek-bones and large features. He always dressed in what appeared to be home-spun jeans-material not in general use among judges and lawyers even at that day. In appearance he was almost a fac simile of Gov. Williams, known to later generations, and familiarly called " Blue Jeans Williams," In 1847 he was elected to congress, defeating Robert Dale Owen, then at the height of his power and con- sidered impregnable. The campaign was looked at as a battle between giants, and was hotly contested. The chief issue was the tariff, Judge Embree setting forth the ad- vantages of protection to American indus- tries and diversified interests, and Mr. Owen arguing for free trade, and predicting the ultimate greatness of the nation, if ex- clusively a producer of raw materials and possessing a firm hold upon the world's markets. Judge Embree served but one term in congress and was defeated for re- election. Thereafter until 1863 when his death occurred he resided at Princeton man- aging his private interests.
of life he attained a distinguished position.
In the transaction of the chancery busi- ness of the court all of the old common law pleadings with their stilted and prolix ver- biage filled the pages of the records. The forms of actions were multifarious. Debt, trover, covenant, assumpsit, detinue, tres- pass, trespass on the case, etc., etc., were brought into use to suit the various combina- tions of facts. About 1835 a marked in- crease in this branch of the court's business was observable. Evansville had become a town of considerable importance, and men were so occupied with business affairs that they found less time for fighting. That di- version, however, was indulged in quite freely. Other forms of amusement began to interest the pioneers. The excitement of card playing had irresistible charms for the most of them. Their love for poker was wonderful. At that time the game was very popular and fashionable throughout the United States among those of high social standing. Many men of national repute succumbed to the enticements of the game and often "took a hand " at high stakes. Representatives and senators in congress, members of the cabinet and even the presi- dents yielded to the fascination. Steam- boats on the Ohio river were frequented by professional gamblers, some of whom were men of courage, education, social culture and many polite accomplishments who gave tone and grace to their unlawful profession. The evil prevailed at Evansville and led to scores of indictments and limitless sport.
Charles Hancock and John B. Mansell were tried in March, 1837, for keeping a gaming house, and on conviction were fined $50.00. They fought the case with vigor; asked for a new trial, were denied, and moved to arrest judgment, were over- ruled, and finally paid the fine and costs.
In every walk | There were indictments for keeping nine-
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BENCH AND BAR.
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pin alleys, and for other offenses connected with gaming.
During the campaign of 1836 between Van Buren and Harrison, the excitement in Evansville was very great. As a result, many wagers were made. Gen. Robert M. Evans and F. E. Goodsell staked $500 each on the electoral vote of Indiana, Gen. Evans betting that Harrison would get the vote. Both were indicted and fined, Gen. Evans in the sum of one cent, and Mr, Goodsell to the extent of $30.52. John Mitchell bet a coat pattern valued at $25 with William M. Walker, that Martin Van Buren would not be elected president of the United States. After the election both, though among the most prominent of Evansville's early citizens, were prosecuted and fined for their violation of the law. It may be remarked in passing that the now venerable Judge John Pitcher was the pros- ecuting attorney at that time.
About this time some other trials of a criminal nature attracted general attention. In 1830 Daniel Rose, of Armstrong town- ship, was indicted for manslaughter. " Not having the fear of God before his eyes, but being seduced by the instigation of the devil," he had killed Patsey Rose, his wife. It was charged that while she was heavy with child he had beaten her with a beach stick on June 10, in the year named; that on July 17, he had seized her violently and put her out of the house, she being sick at the time, having lately given birth to her child, and that two days later she died. Judge Charles I. Battell prosecuted the case, but it was not tried until September, 1832, when a verdict of "not guilty " was returned.
In May, 1835, a child was found dead in an open field near the dwelling of Nelson Jackson, and it was believed that Eliza Eaton was the perpetrator of the crime. She was unmarried and was
known to have given birth to a child. The indictment charged her with causing the death in three different ways: first, by tak- ing it to the field, secreting and deserting it, thus causing death for lack of nourish- ment; second, by choking it with a cord; third, by inflicting with some hard substance a mortal wound on its head - a cut three inches long and an inch deep being discov- ered on its head when found. The prose- cution was conducted by John Pitcher, but the woman was acquitted.
In the same year Samuel Taylor was in- dicted for stealing a horse from Joseph Rose, in Armstrong township. Horse-stealing was a crime almost equal to homicide. The case was continued through several terms. At length a writ of capias ad respondendum was returned, "not found," and the prose- cution of the case ceased.
Thomas Barnett, sr., was indicted for manslaughter in 1837, was tried two years later and acquitted; having had a previous trial, in which the jury failed to agree.
In 1835 Philip Hornbrook, a most excel- lent gentleman and pioneer citizen of Scott township, brought a case into court on ap- peal from a justice of the peace, as next friend of "Charles (a boy of color)," against Thomas Duncan, and Henry Smith, wherein it was claimed that the defendants, with " divers sticks, clubs, knives, dirks, swords, fists and other weapons," had beaten the boy, had tied with a rope and taken him about two miles against his will and had im- prisoned him twelve hours. On the tria the jury failed to agree, and a year later by agreement the case was dismissed, the de- fendants paying the costs. About the same time the grand jury returned a true bill against Edmond Maidlow, another of Scott township's best citizens, for harboring a ne- gro, it being charged that " Charles, a mu- | latto " had come into the state, had not given
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JUDGE LOCKHART.
bond that he would not become a pauper, and was hired and harbored by Mr. Maid- low who knew these facts. Mr. Maidlow was brought to trial in March, 1836, and found not guilty. These facts suggest that the hope of obtaining revenge was not with- out its charm even at that time.
Five colored people were brought into court on a writ of habeas corpus in 1836. They were Delila Leach and her four child- ren, who obtained their freedom upon the death of their master, James Leach, of Mis- sissippi, through the terms of his will, which also directed his executor to send them to Indiana or Liberia as they might choose. They arrived in Evansville with a copy of the late master's will and letters from the executor, and were taken possession of by Dr. William Trafton, who claimed that they were not emancipated by the will according to the laws of Mississippi, and that by the letter of the executor he was requested to take charge of them. The court, upon hearing the facts, discharged them from the custody and power of Dr. Trafton.
Following the financial crisis of 1837 there was an enormous increase in the civil busi- ness of the court. There was wide-spread failure in mercantile circles; suits for the recovery of debts, foreclosures and eject- ments were a most natural sequence. The letters of Amos Clark, one of the most prominent lawyers of that day, are quoted elsewhere in these pages to show the real conditions of the times. Judgments were taken against the best men in this part of the country. The rapid immigration pre- ceding that year had increased the number of citizens who were directed to the courts of this county for the preservation of rights and redress of wrongs, and thus a large nat- ural increase in the volume of the court's business had been effected. Three terms had been established where two had previ-
ously sufficed, but one of these, owing to the generally demoralized condition into which all public affairs of the state were thrown about that time was soon thereafter taken away. The litigation consequent upon the hard times of that period taxed the energies of the court probably as never at any other time, and certainly as never before.
The last mentioned of the president judges was Hon. Elisha Embree. His successor, Judge James Lockhart, commissioned in March, 1846, by Gov. James Whitcomb, was a resident of Evansville, and before ascending to the bench had become one of the foremost lawyers in this part of the state. His selection to the important office was a just tribute to his abilities and worth. A native of New York he was born 1806, and died in this city in 1857. Admitted to the Evansville bar in 1832, he soon gained recognition as an able and erudite lawyer. He was not a man of quick perception and ready speech, but studious and painstaking. When addressing court or jury he was slow, deliberate and earnest. His intense interest in any case which he undertook, and his deep, enthusiastic earnestness carried conviction. He was known as a book law- yer, plodding patiently through authorities and working his cases thoroughly. He was much like Judge Iglehart, well known to later practitioners, except that he lacked some of the smoothness of the latter and was not as clear a writer. Throughout his ca- reer as a practitioner he held a commanding position. On the bench he was impartial, just and thoroughly capable. For several years he was prosecuting attorney for the district, was a member of the constitutional convention in 1851, and was elected to a seat in the Thirty-second congress but died be- fore taking the office. He was well known as a politician throughout the district, and was a recognized leader of the democracy.
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