Centennial history of Missouri (the center state) one hundred years in the Union, 1820-1921, Volume I, Part 27

Author: Stevens, Walter Barlow, 1848-1939
Publication date: 1921
Publisher: St. Louis, Chicago, The S. J. Clarke publishing company
Number of Pages: 1074

USA > Missouri > Centennial history of Missouri (the center state) one hundred years in the Union, 1820-1921, Volume I > Part 27

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Thomas C. Burch came upon the bench in Chariton county about 1839. The legislature had created the eleventh judicial circuit. It was told of him that he had little patience with the delays of litigation. One, the calf case, in which a poor woman was claiming an animal which a neighbor had taken, was brought before him. The judge looked over the papers and came to the conclusion from the array of witnesses that the trial would require several days. He rebuked the lawyer of the poor woman for bringing such a suit. The lawyer replied "That it was not so much the value of the calf that was prompting the suit but a desire for justice."

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"Well," said the judge addressing the defendant's counsel, "what are you fighting for?"

"For the same that my learned brother is professing to seek-the ever living and eternal principles of right."

"Mr. Clerk," said the judge, "how many witnesses have been subpoenaed in this case?"

"Forty, your Honor."

"Do you want your fees in the case?"

"No, sir; I will relinquish them if it will tend to settle the case."

"Mr. Sheriff, have you any claim for your services?"

"No, sir; like the clerk, I will abandon my fees if the case stops here." Coming down from the bench and approaching the plaintiff, the judge said:

"Madame, how much do you want for your calf?"

"It is worth four dollars," replied the widow.

The judge thereupon took from his pocket four dollars, and, handing the money to the widow, said: "Mr. Clerk, strike this case from the docket."

The Darnes Trial.

Three professions-journalism, the law and medicine-were concerned in a celebrated case which monopolized public interest for several weeks in 1840. The beginning was a newspaper controversy. In the Argus, which was the . Democratic organ, appeared an article criticising severely the participants of a meeting where William P. Darnes was secretary. The Argus was edited by William Gilpin, the owner was Andrew J. Davis. Darnes had been the subject of severe criticism in the columns of the Argus before the publication about the meeting. He wrote to Mr. Davis, asking if the criticism of the meeting was intended to apply to him personally. At the same time Darnes referred to Gilpin with some contemptuous expression. Davis replied sharply. Gilpin came out in the Argus declaring he alone was responsible for what appeared in the paper. He denounced Darnes. This meant physical violence.

Darnes decided to hold Davis responsible, notwithstanding what Gilpin had written. He bought a cane, a small iron rod. Meeting Davis near the corner of Third and Market streets, he struck him upon the head with the cane. Davis was taken to the hospital. Three of the leading physicians of the city were called in. They determined to perform an operation to uncover the brain and take out any broken pieces that might be found. As a result of the operation, several fragments were removed. Davis died a few days afterward. The med- ical profession divided upon the question whether the operation was necessary.

Darnes came to trial. He had friends. Supporters of Davis were anxious that conviction should follow prosecution. As a result, able counsel were em- ployed on both sides. Gantt was one of the prosecutors. Geyer defended in a two days' speech. The trial lasted two weeks. It turned on the medical testi- mony whether Davis died from blows of the cane or from the surgical opera- tion. Among the doctors who took the ground that the symptoms did not require trephining was Dr. William Carr Lane, the first mayor of St. Louis. The opera- tion had been performed by Dr. Beaumont, who was a surgeon in the United States army and who obtained world-wide reputation as a writer and authority

OLDEST HOUSE IN LEXINGTON Built of logs and used originally as the court- house of Lafayette County

JUDGE JOHN W. HENRY

JUDGE HENRY CLAY MCDOUGAL

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upon the stomach and the functions of gastric juice. About the same number of doctors testified on one side as on the other. The court room was crowded throughout the trial. The jury returned a verdict of guilty of manslaughter in the fourth degree. Darnes was fined $500. At that time personal journalism of the most aggravated type prevailed among the newspapers of St. Louis, and editors indulged in very sweeping and bitter criticism of political opponents. It was public comment that the lightness of the verdict against Darnes was due to the fact that editors went too far in their comments.

Judge Henry and the New Madrid Titles.

Judge John W. Henry drew a graphic picture of life in Missouri as he found it when he came in 1845. He was twenty years old and fresh from Transyl- vania law school. He first tried practice in Boonville. In 1847 he was made attorney for the branch of the state bank at Fayette and moved there. The ap- pointment was given, he said, "because I was a Democrat and for no other rea- son. I was a perfect stranger in Fayette. One night I wandered into the local tavern where the fellows were wont to gather. There was a crowd there and among them was 'Captain Jack' Moon, a plasterer by trade, who owned a farm near town. He had a game leg and was blind in one eye. He had been in the war of 1812 and was as game a man as ever was, although I didn't know it. It seems that a Frenchman named Bogliole had been buying up New Madrid land titles in that neighborhood and ousting people from their land through the courts. As I stepped in somebody just for a joke spoke up and said :

"'Here comes Bogliole's lawyer now. He is down here to get possession of Captain Jack's farm.'

"At this the captain hobbled to the center of the room and asked me if I was Bogliole's lawyer. Thinking I'd carry out the joke, I answered yes.'

"'Are you going to get my farm?' he asked.

" 'Yes,' said I.

"'Well, you'd better bring your coffin and shroud with you when you come,' said the captain.

"'Well,' said I, 'if you want to kill me we can settle that right now. I haven't any weapons with me, but come up to my office and we'll see about it.'

"Captain Jack said 'all right' and followed by the crowd, we went to my office, a short distance away. There was a fireplace in the room and the uncertain light made a weird effect. As I entered the door I took down a large brass key hanging by the door, wheeled around and pointed it squarely at Captain Jack's breast. 'Now,' said I, gruffly, 'what are you going to do?'

"Before I had the words out of my mouth Captain Jack reached into a hind pocket and pulled out a sharp trowel that looked two feet long in the firelight.

"'Make a center shot, then,' he roared as he lunged at me.

"That took all the joke out of it for me and I made a leap for the door and bounded down the stairs without waiting to see if the captain was behind me. There isn't any doubt about it; I was scared 'most to death and it was a long time before the fellows at Fayette let up on me for my encounter with 'Captain Jack' Moon. Moon and I, how- ever, were afterwards the best of friends."

Judge Mullanphy on the Proprieties.

When Bryan Mullanphy was judge of the circuit court in St. Louis, he was charged with oppression. The complaint was made by Ferdinand W. Risque.

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The judge had ruled unfavorably to Mr. Risque in the case that was pending. The lawyer showed his disgust in the judge's presence. Three times in quick succession the judge imposed a fine of $50. Mr. Risque for the fourth time showed his contempt. Judge Mullanphy ordered the lawyer removed by the sheriff from the court room. On this the lawyer based his charges. The judge was tried before the criminal court and acquitted.

Judge Mullanphy had a keen sense of the proprieties when the honor of the bench was assailed. Information that he had been indicted was brought to him " while he was trying a case. The marshal went to the judge and told him he had a capias for him. He asked that as soon as the trial was concluded, the judge come into the office and sign the acknowledgment of the service with prom- ise to appear. Judge Mullanphy promptly declined the courtesy. Interrupting the lawyer who was addressing the jury, the judge said :

"Stop, stop: I can't go any further now,-the court is indicted. Mr. Sheriff, discharge the jury and adjourn the court; the court is indicted. The court will not continue in session one minute after being indicted."

The Risque affair had both comedy and tragedy passages. After the judge had ordered the lawyer from the court room, Risque stood outside the open door, shook his fist and made grimaces at the court. Thereupon the judge told the sheriff to shut the door, remarking that he would not "have the light of his countenance shine upon the lawyer."

Subsequently Judge Mullanphy and Risque met on Chestnut street at the south entrance to the Planters' house. George H. Kennerly, then county marshal, was present. Risque struck at the judge. Mullanphy drew the sword from his cane and started towards Risque. The marshal stepped between and "commanded the peace" after the form of those days. "Do you command the peace in your official capacity?" asked Mullanphy. The marshal said he did. "I always obey the officers of the law," said Mullanphy, sheathing his sword in the cane and walking away.

A case to which the Bank of the State of Missouri was a party came before Judge Mullanphy. The lawyer on the other side questioned the legal competency of the court to sit. He said Judge Mullanphy was a stockholder. The judge sustained the point and ruled himself off the bench for that cause. He said that "the court was not a stockholder in the bank; but the court's mother was a stock- holder, and therefore he would not try the case."

When Judge Mullanphy was examining a candidate for admission to the bar he asked a number of questions calculated to test the power of recollection. He announced his finding in these words: "You have a very particular memory, sir -very particular, and I shall grant your license with much pleasure." Judge Mullanphy was the seventh circuit judge, succeeding Lawless. He was a native of Baltimore and had been educated at the Jesuit college in Paris, with four years at Stonyhurst, England. Notwithstanding his eccentricities Judge Mul- lanphy was so painstaking and thorough on the bench that very few of his deci- sions were reversed. When he died the bar of St. Louis resolved that "all his oddities are but as dust in the balance when weighed against the uprightness of his life and the succession of his charities."

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When "Abby" Got the Best of Uriel Wright.

When J. R. Abernathy was teaching school in Audrain, one of the neighbors came to him with a complaint that some one had taken his "bee-gum." Aber- nathy consulted a law book and finding nothing in there about bee-gums or bees, he turned over the pages until he came to the form of procedure for "forcible entry and detainer." This gave him the suggestion and he started a suit for the recovery of the bee-gum by forcible entry and detainer. He was so success- ful that he decided to be a lawyer and prepared himself for admission to the bar. The court referred the application to Judge Jack Gordon, himself a lead- ing lawyer. Gordon asked Abernathy, so the tradition to the Audrain bar goes, if he could sing and dance. The examination was satisfactory. Gordon re- ported to the court that Abernathy might not be very strong on common law, but he was on the statutes. Abernathy was admitted.

Abernathy, or "Abby" as he was commonly called, got the best of the elo- quent Uriel Wright in the prosecution of a man for horse stealing. Wright was the terror of the lawyers less gifted with speech. The side which secured his services entered upon the trial with much confidence. Judge Fagg, of Pike county, in his charming reminiscences written for the Pike County News nearly twenty years ago, gave this account of Wright's defeat by Abernathy :

"The one great fault in Major Wright's defense of a criminal was the length of his speech. He was very fascinating in manner as well as in diction. He was a good judge of humanity and knew how to play upon the sympathies and feelings of an ordinary juror, but he did not understand the art of quitting when he was through. Consequently he sometimes became a little tedious. On this occasion he had been very successful in keeping both the jurors and the audience in a high state of merriment and good humor. "Abby felt that he had to exert himself to the full measure of his capacity to meet the counsel for the defense upon his chosen ground. He commenced by telling the jury that no one knew better than he did his inability to cope with Major Wright in learning or ability to talk; that he had been raised a very poor boy in the mountains of West Virginia; that he had only been able to get a very limited education and that he had had a hard fight with poverty from his earliest recollection. He succeeded at once in securing the closest attention and sympathy of the jury and he proceeded with much greater confidence in his ability to secure a conviction. He said there were two things that he found very difficult to understand in his boyhood. He didn't understand how it was possible for a man to know enough to enable him to talk four hours in succession, and, as there wasn't level enough country in those mountains to make a race track four miles in length, he could not understand how a four-mile race could be run. His father, however, moved to Kentucky while he was a boy and settled some little distance from Lexington. It was not long before he heard of a four-mile race to be run over the celebrated race course at that place. He had to walk the entire distance and he labored hard and patiently until it was reached. To his utter amazement, he said, the four-mile face was made by running around the same track four times. The idea had never struck him, and without this practical demonstration he could never have been able to solve the mystery. He said he never found out how four-hour speeches could be made until he listened to his friend, Major Wright, and he found out they were made in precisely the same way that they run four-mile races,-by running round the same track four times. His victory was assured without another word. The fellow went to the penitentiary for the longest term authorized by the statute."

Evolution of Missouri's Judicial System.

At the first annual meeting of the Missouri Bar Association, held in St. Louis, in 1881, Jay .L. Torrey, afterwards of national fame as the colonel of

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Torrey's Rough Riders in the Spanish-American war, told in succinct form the beginning and development of the judicial system of Missouri:

"The constitution of 1820 vested the judicial power of the new state in a supreme court, a chancellor and three circuit courts. The supreme court was composed of three judges, and held sessions in different parts of the state. The chancellor held an equity intermediate court of appeal. The circuit courts exercised original equity and the supreme court final equity jurisdiction. The judges were appointed during good behavior by the governor, by and with the advice and consent of the senate, were required to be thirty years of age at the time of appointment, and to retire upon attaining the age of sixty-five years, and were to receive a salary of not to exceed $2,000 per annum.

"In 1822 the office of chancellor was abolished by constitutional amendment; limitation as to salaries was stricken out. In 1849 the constitution was further amended to make the term of judges for the supreme court twelve years and that of the circuit judges eight years. At the same time it was provided that all of the judgeships be vacated on March 1, 1849.

"In 1850, Missouri, through further amendment of the constitution, provided that judges be elected instead of appointed. The constitution of 1865 reconstructed the judicial system of Missouri. It changed the terms of the supreme judges so that one judge should go out every three years. It established intermediate courts of appeal, called district courts. The state outside of St. Louis county was divided into districts of three circuits each, the circuit judges in each district constituting the district court to hear appeals. In St. Louis, the three circuit judges met in what was called 'general term' and performed the same function as the district courts out in the state. All appeals and writs.of error from lower jurisdictions were heard at these district court sessions and might, without restriction, be appealed to and prosecuted in the supreme court. The qualification of thirty years of age was retained and residence of five years in the United States and three in Missouri was required but no retirement age was fixed.

"In 1870, the district courts were abolished, by amendment, and in 1875 the judges of the supreme court were increased to five; the term was made ten instead of six years.

"Then came the present state constitution of 1875 creating the St. Louis court of appeals with jurisdiction in St. Louis city and county and the counties of St. Charles, Warren and Lincoln, with final jurisdiction except that 'appeals shall lie from the decisions of the St. Louis court of appeals to the supreme court and writs of error may issue from the supreme court in all cases where the amount in dispute, exclusive of costs, exceeds. the sum of $2,500; in cases involving construction of the Constitution of the United States or of this state; in cases where the validity of a treaty or statute of, or authority exercised under the United States is drawn in question; in cases involving the construction of the revenue laws of this state, or the title to any office under this state; in cases involving the title to real estate; in cases where a county or other political subdivision of the state or any state officer is a party and in all cases of felony.' The term of office was made twelve years and divided so that one judge would go out every four years."

Missouri's "Odd Case."

In the Missouri reports is recorded a case which C. O. Tichenor embalmed as one of the "Odd Cases" of the world's litigation. A doctor brought suit for two dollars for medical services. The patient filed a set-off for one dollar and a half. He deposited in court fifty cents and the costs which had accrued. The doctor wasn't satisfied with the judgment given him for the fifty cents and ap- pealed to the circuit court. One of the parties to the litigation took a change of venue to another circuit judge. The case was tried by jury which found against the doctor, who appealed to the supreme court of the state. There was no dis- pute about the amount of the bill. Neither was it disputed that the patient had

ROGER NORTH TODD First circuit clerk and recorder of Boone County

. 1.

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loaned the doctor one dollar and a half but the doctor set up that the loan was made in poker chips while the patient and he were sitting in the game. He set up, or his lawyer did for him, that the patient should not be given credit for the dollar and a half because the chips were given "for the purpose of being used in betting on said game and defendant knew the purpose of the loan." The su- preme court reversed the decision of the lower court, holding that the jury had not been properly instructed as to the law of the case. The litigants seemed to have settled out of court for the case did not get back to the supreme court.

The contest over the will of Colonel Philip Williams was one of the cele- brated cases of Missouri. It was tried at Paris. Judge Henry S. Priest, after- wards of St. Louis, had his baptism of fire in court at that time, pitted against some of the most famous men at the Missouri bar. There were extraordinary features in the colonel's will. He mentioned a woman whom he had known away back in his early days in Virginia and who claimed that he was the father of her son. The colonel said, in his will, "I do not of my own knowledge know that said Williams is my son, but it being ungallant to dis- pute the word of a lady in such matters, I hereby bequeath him the sum of $10,000."

The Early Conferences of Missouri Judges.

In 1905, Shepard Barclay told at the conference of judges of Missouri some reminiscences of those who were prominent in the earliest of these conferences. Of Judge George H. Burckhartt, he said this first president of the conference was such an enthusiastic hunter that he had caused to be pictured on the seal of the Moberly court of common pleas a deer hunt as having taken place on the very spot where that city is located.

"He once decided a case against an old and familiar friend who was deeply disgruntled at the decision. When the lawyers assembled that night at the hotel where they were stopping, this disgruntled friend took a seat apart, unwilling to mingle in the merriment of which the judge was always the center. Judge Burckhartt told to those immediately surrounding him the story of a coon hunt which had taken place on his farm the previous week. He described how one of his old negro servants of the war days was with him, chasing coons with a pack of dogs. How a coon got into a tree which the darkey began to chop down. As the tree was about to fall and was swaying, a celebrated coon dog, 'Jeff,' leaped out of the pack into the darkness, to every one's surprise, just at the time the tree began to fall, in the direction where the dog was running. Jeff got to the point where the coon endeavored to spring to another tree and was just in time to catch him down. The judge told how his faithful colored man clapped his hands and shouted: ' 'Massa Buck, dat's the smartest dog dat eber lived. I do believe he done studied law,- he knows ebery time just where to jump.' At this point in the story, the deep voice of the disgruntled lawyer in the corner exclaimed: 'That's a durn sight more than his master ever did-he never studied law and never knew which way to jump.' This, of course, produced a roar of laughter in which the judge joined."

Of Judge John J. Lindley, Judge Barclay said he had a "natural and easy manner on the bench. On one occasion an aged German, summoned on the panel of jurors, came forward to present an excuse. When questioned he said, 'Judge, I no understand good English.' The judge replied, 'Don't let that bother you, my dear friend, you will hear mighty little of it in this courtroom.'"

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Of Judge Thomas T. Gantt, presiding judge of the St. Louis court of appeals, in its beginning, Judge Barclay said: "His classical learning was extensive and he enjoyed the use of colloquial Latin. I remember his story of Groundhog day. We met on that day in the Law library and I made some remark concerning the groundhog. Whereupon he entered into a most interesting narration of the origin of the superstition about that animal. He said that the tradition was an- cient and to be found recorded in the Monkish documents of the Middle Ages in words which he quoted, a sort of barbarous and mongrel Latin meaning that 'if the sun shines on the day of the purification of the Virgin, there will be more winter after that day than before.' He said that the superstition about the groundhog was another form of stating the same idea but that he had been unable to trace the origin beyond the point mentioned. Judge Gantt used the Latin with quite as much ease as he did the English."

Of Judge Francis M. Black, Judge Barclay said he "was another of those present at the initial meetings of our conference. It was amusing to hear his frequent expressions of disgust at the drudgery and slavery of office, and of his firm resolve to retire at the close of his first term; yet that singular fascination which public life acquires for those who have once breathed its atmosphere led him to yield later to the general desire of his party friends and to accept a nom- ination for a second term. Judge Black possessed a sterling and inflexible sense of justice." Indeed, if there was any blemish on his official work, it lay in his overpowering desire to reach the moral justice of each case, even at the risk of sometimes impinging on the rules of technical law in the effort."

Judge Wagner, like Judge Black, in the opinion of Mr. Barclay, was "prone to toss legal difficulties aside and to deal broadly with the large features of litigation. He wielded a most trenchant pen and used a sort of sledgehammer logic which attracted wide attention. His judicial writings are often quoted with strong approval by Doctor Wharton in his erudite treatise on the law of negligence. He has left one amusing memorial of his efforts to harmonize the severity of the written law with the exigences of rural life in the case which records the arrest of the phantom hogs in Trenton, Mo. (Spitler vs. Young, 63 Mo., 42). That town had an ordinance declaring that all hogs running at large in the corporate limits were nuisances and the owner should pay a fine of $1 for every twenty-four hours a hog should be at large therein. A citizen outside the town had a bunch of hogs in a pen which a storm washed away, permitting them to pay a coveted visit to the streets of Trenton. The hogs were taken up by the town marshal who refused to surrender them until the owner paid the fine. Judge Wagner held that the hogs were entitled to the fredom of the city saying, 'Whilst physically they were found in the streets, or within the cor- porate limits, yet they were not there within the meaning and spirit, as con- templated by the ordinance. The ordinance was designed to prohibit hogs from running at large or within the town in the ordinary sense. The hogs were turned out by a power over which plaintiff had no control,' and the ordinance was there- fore inapplicable to the phantom hogs. The marshal was held bound to give them up and pay costs."

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Centennial history of Missouri (the center state) one hundred years in the Union, 1820-1921, Volume I, Part 27

Author: Stevens, Walter Barlow, 1848-1939 Publication date: 1921 Publisher: St. Louis, Chicago, The S. J. Clarke publishing company Number of Pages: 1074

Author: Stevens, Walter Barlow, 1848-1939
Publication date: 1921
Publisher: St. Louis, Chicago, The S. J. Clarke publishing company
Number of Pages: 1074