USA > Missouri > Macon County > General history of Macon County, Missouri > Part 22
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"You are here to right a wrong; for, as I see it, a great one has been done. Let us read the Bible, history and poetry-they are all good-but let us try this case simply on the cold facts introduced in evidence ; there our only duty lies."
At that trial the jury found the defendant guilty of murder in the second degree and fixed his punishment at fifteen years in the peni- tentiary. At this, Alma Gurgin, the daughter over whom the killing occurred, rushed into her father's arms and cried :
"Oh, Father! Who will take care of me now !"
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An appeal was taken to the Supreme Court and the ease sent back for re-trial. On the second trial Judge Shelton, the successor of Judge Ellison, was on the bench. The evidence was pretty much the same as it was on the first trial. The jury this time acquitted the defendant and he returned to his family.
On the 26th day of May, 1896, George Anderson, a farmer living south of Atlanta, stabbed his wife to death and then attempted to kill himself. Parties who entered the room directly after the tragedy say that it was splattered with blood and the furniture knocked about everywhere. This indicated that there had been a fierce fight before the man succeeded in overpowering his wife, who was a large, strong woman. Anderson was a small man. It was never known just why he committed the crime, though it was said there had been occasional disagreements, at one time a separation. Anderson was a man of good habits. He and his wife attended Sunday-school and church regularly and they stood well in the community. The murderer was brought to Macon on a stretcher. He refused to employ counsel or to make any defense. Judge Ellison requested Judge R. S. Matthews to defend him. When Anderson was arraigned in court Judge Ellison asked lim :
"Are you guilty or not guilty?"
"Guilty."
"Guilty? Do you understand, Mr. Anderson, the consequences of a plea of this character?" asked the court.
"Yes, sir."
"Do you know that the result would be punishment by death?"
"Yes, sir," promptly.
"Have you a lawyer?"
"No, sir."
"Do you want one ?"
"No, sir."
"How long have you lived in this county, Mr. Anderson?"
"Ever since 1867, except five years. I was in Kansas in 1866."
Anderson refused to go upon the stand. His lawyer made a splen- did fight in his behalf, trying to show that the defendant was erazy. One man on the jury refused to bring in a sentence of guilty. The other eleven were unanimous for conviction. Judge Ellison immedi- ately ordered another venire and next week Anderson was re-tried. The same evidence was gone through with, and the same hard fight made by the defendant's lawyer and the same instructions given. Ander- son still preserved his stolid indifference, sometimes lying with his
.
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head upon a table and never speaking to his lawyer or assisting him in any way. In this second trial the jury was unanimous for conviction. When the day came to sentence Anderson, Judge Ellison called on the prisoner to come forward and listen to what he had to say.
"George Anderson," said the judge, "you have been tried and found guilty of murder in the first degree, the result of which, without further intervention, will be a sentence of death pronounced upon you. Have you anything further to say why the sentence of the law should not be pronounced ?"
"No, sir."
"You have not?"
"No, sir."
"Mr. Anderson," said Judge Ellison, in a voice vibrating with emotion, "I am but a humble instrument of the law in this painful ordeal. It has been my hope that my long service upon the bench, soon to expire, would close without facing an hour like this. But it has been decreed otherwise. Your plea of guilty was rejected by the court, thinking that probably a fair trial would elicit some fact showing your mental irresponsibility for your awful deed, proven and confessed. No such proof was adduced. One of the most intelligent juries I ever saw has found you guilty. I approve of that verdict. That you committed the deed is confessed; that you were at the time conscious of the act as well as of its wickedness is clear beyond a doubt.
"I shall not, as is too commonly the case, avail myself of the oppor- tunity of reading you a long and painful lecture. Your remorse is evident and natural. Into other hands I commit you for spiritual aid and comfort, and, obeying the mandate of the law, I pronounce sentence of death; that the sheriff of Macon county, Missouri, take you hence to some place of safety until the 21st day of August, 1896, when, between the hours of 8 a. m. and 4 p. m., at or near the county jail of Macon county, you be hanged by the neck until dead, and may the God of mercy and justice have compassion upon your soul."
Anderson received his sentence with the same indifference that he had shown to all the other proceedings. A few days before his deathi he sent for a newspaper man and requested him to write up something. The reporter tried at that time to get Anderson to confess his purpose in killing his wife, but he refused to discuss the subject. All he wanted was a sort of card of thanks to those who had been kind to him while he was in jail.
A. J. Asbury was the sheriff of Macon county. He had charge of the execution of Anderson, assisted by Sheriff Pratt of Marion county.
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Missouri. The condemned man seemed to be in excellent spirits on the morning of his last day on earth and he ascended the gallows with an almost buoyant step. Elder G. W. Buckner delivered an earnest invoca- tion, but Anderson made no statement whatever. The execution was in the courtyard north of the old jail. A small crowd was admitted by tickets secured from the sheriff. It is estimated that something like 2,000 people were in Macon that day, but none of them witnessed the hanging. The body of Anderson was taken to an undertaking establishment, and then the crowd was allowed to file by to take a last look at him. While the crowd was in town a dramatic incident occurred on the streets. Hon. L. A. Thompson, the lawyer, stood on the rear step of a band wagon, which was being driven around through the principal streets of the city. In the wagon was Henry Marshall, a negro, who, it is said, had been run ont of Macon a few days previous because of his "preaching" Democratic doctrine. Mr. Thompson had sent word to Marshall that if he would come back to Macon he would guarantee his protection. The streets were full of people, all wonder- ing what the curious sight meant, until the wagon completed its tour of the town and then was stopped on the square at the head of Vine street. Mr. Thompson, in his shirt-sleeves and cooling himself with a palm-leaf fan, stood on the lower step of the band wagon and explained the meaning of his procession. He told the crowd that Marshall had been run out of town for talking on the side of the Democrats and that he had guaranteed him protection if he would come back and make a speech. Mr. Thompson said that he had never heard of Marshall before, but as soon as the incident was brought to his attention he had become interested. The Democrats in the big crowd applauded Mr. Thompson, who then introduced Marshall. Marshall made a little talk withont any interruption whatever and went on his way rejoicing. He was not molested in any manner on the occasion of his second visit.
A case involving two prominent families of Shelby county was tried in Macon, on change of venue, in December, 1897. The defendant was A. Tolbert Smock, a druggist. He was accused of having shot and killed M. L. Cheuvront, on the streets of Shelbina, the night of July 22, 1897. According to the testimony, Mrs. Smock, who was young and very good-looking, had been attending an ice-cream social in the park, and was returning home with her friend, Miss Nellie Hop- per. Mrs. Smock testified that Cheuvront had been looking at her at the park and that as she and Miss Hopper walked homeward Chenvront had followed them. On reaching home Mrs. Smock said that she called to her husband, who came out, and, noticing her agitation, went out on
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the street where Cheuvront was. Smock, the defendant, stated that as he went out he had his revolver in his hand and that as he stumbled Cheuv- ront put his hand in his pocket and raised it in an attempt to strike. Smock says he then fired two shots to protect himself.
Cheuvront was a man of about forty-six. He had a wife and two children. He is said to have enjoyed a good reputation in Shelby county.
J. H. Whitecotton, of Paris, Missouri, was the leading attorney for the defense. He was assisted by J. D. Dale, of Shelbyville. George Humphrey and Sam Elliston. of Shelbina and W. H. Sears and R. W. Barrow, of Macon.
Robert A. Cleek, prosecuting attorney of Shelby county. V. L. Drain, of Shelbyville. H. Clay Heather, prosecuting attorney of Marion county, and Ben Franklin. of Macon, represented the state.
A good many witnesses were sworn on both sides. The state sought to prove that Cheuvront was a man of good standing and that he had no thought of accosting or of following Mrs. Smock. The memorable event of the trial was the closing speech by Mr. Whitecotton. It was made just before Christmas. Among other striking illustrations used by the eloquent attorney was the following :
"Ah! Gentlemen! I may be wrong in my figures and in my deduc- tion from this evidence. I may have made mistakes, for which I trust you will pardon me. But there is one person who testified and who must be believed if anything on earth is true. You saw her carried into this court room in the arms of her husband. Today, gentlemen, she lies upon her deathbed. The angels of heaven fluttering across the great blue vault above us are preparing to receive her. Her mother -long since gone-with yours and mine, is there with arms out- stretched to receive poor Mrs. Swift! You wonder how she was able to reach this court room from her home far off in the country. Why didn't she die ? What great unseen power fanned the ebbing life in her bosom until this session came on? Ah! I will tell you what kept the dying spark alive. It was because the Great Father of the Universe, who always stands by poor, unfortunate humanity, decreed otherwise, and issued the fiat that she should live to save her boy-to save her boy! Thanks to the great merciful God of heaven for it! Take her now from her misery ; take her away to her heavenly home, for she has said before a jury of her countrymen, 'My boy was assaulted there, and what he did was done in defense of his life.' And she told you exactly how and where this tragedy occurred."
As he presented the striking figure Mr. Whitecotton's strong voice
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choked with emotion and many of the spectators eried. Especially was this noticeable among the women, whose handkerchiefs were bobbing against their eyes all over the court room.
In spite of the very effective speech the jury hung, four standing solidly and determinedly for conviction. The defendant was released on a bond of $3,000. Smock was tried again at the Macon Circuit Court and all of the witnesses, except Mrs. D. B. Swift, who had appeared at the first trial, were re-examined. At the second trial the defendant was found guilty of manslaughter and punishment fixed at six months in jail and a fine of $100. Some indignation was manifested over the verdiet, and the Macon Times-Democrat expressed itself as follows:
"The verdiet is an outrage upon this community and it is just such moekery as this that disgusts people with juries and courts and causes them to take the law into their own hands and mete ont justice."
At the April term, 1897, of the Macon Circuit Court, the juries disagreed in three of the largest cases tried. At the June term there was a similar result on two important eases. The big actions, all for re-trial, loaded up the already heavy September docket. Lawyers began disenssing a method for insuring a result in big cases. Some advocated one thing and some another. It was pretty generally admitted that one of the great causes of the delay and expense was the inability to secure twelve men who would think alike on an issue which had been elabo- rately presented by the contending lawyers. Letters were sent ont to the prominent attorneys of the state, asking for their views regarding better methods than the one in nse. The matter was discussed exten- sively throughout the state and in 1900 a constitutional amendment was adopted providing for a verdict from three-fourths of the jury in civil cases. This feature alone has been a long step towards relieving the lower courts of accumulated business. There has been no change. however, in the rule requiring a unanimous verdiet in criminal cases.
The questions submitted to the lawyers and some of the answers are as follows:
1. Would it not be to the great advantage of the legal fraternity, as well as litigants, if a plan were adopted that would insure a result on every case that went to trial? 2. What suggestion could you offer to improve the jury system or plan of substitution ?
Major A. W. Mullins, Linens: (1) } think so; but the judgment of man is so imperfeet that final judgment or even a verdiet cannot be obtained in the first trial in all cases. (2) I believe in the jury system, and would not abolish it, but it may become advisable in civil cases to
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accept a verdict from three-fourths or a less number than the entire panel.
J. E. McKeighan, with Lee & McKeighan, St. Louis: (1) Certainly. (2) In every case where the jury of twelve do not agree let a majority verdict be returned, which, however, shall require the express approval of the court on motion of the successful party before such party shall be entitled to a judgment thereon.
J. D. Dale, Shelbyville: (1) Yes. (2) I have long entertained the opinion that nine jurors selected should make a verdict, except for crime punishable by death. I have in my mind another change that would facilitate litigation, and from which the public would derive very great benefit; to-wit: The abolition of the Circuit Judge's office and the selection of a Judge for each county, to be clothed with the same powers and jurisdiction that Circuit Judges are now clothed with, and to require said Judge to hold terms of court as Probate Judges are now required to hold them.
Judge R. S. Matthews, Macon: (1) Yes. (2) Three-fourths of the jury to make the verdict and that County Courts and sheriffs be required to select intelligent men for jurors.
W. O. L. Jewett, Shelbina: (1) Yes, but how is this to be accom- plished? It can only be achieved by having the jury composed of an odd number and a bare majority allowed to make a verdict. I do not believe the time has come for so radical a change in the jury system. An experiment may be advisable to allow in civil cases a two-thirds verdict. After the experiment has been tried we could better judge of its advisability. (2) I have no suggestion other than the above, except to throw every safeguard around the summoning and impanelment of juries. Our officers and County Courts are not always careful enough in the selection of jurors. All human systems are imperfect, and will always be so. We can only approximate perfection. The jury system has its faults, but it is the best system yet devised for adjusting human disputes.
Captain Ben Eli Guthrie, Macon: (1) It would certainly be a good thing if it could be accomplished. But the great question is, can it be accomplished with a reasonable show of justice? The experience of mankind has furnished a negative answer. The jury system in some form or other has been on trial from the earliest dawn of history. It has been improved and modified as the intelligence and experience of the race indicated. But a satisfactory substitute has nowhere appeared. It may be bold to say it will not appear, because all things seem pos- sible to the human race. But it is reasonably safe, however, to say that
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a substitute will not be found. (2) The only apparently practically efficient improvement of the jury system is to improve the intelligence and integrity of the jurymen. All optimists think this is going on from day to day, as the general average of intelligence and integrity of eit- izenship advances. This is the remedy. General increase of the intelli- gence of the body of citizens raises the standard of the sense of justice and increases the demand for honest and intelligent verdicts by an enlightened public opinion, and renders more efficient the jury system. Advance the standard of general intelligence and the moral sense of the people, intelligent and honest jurors follow as a necessity, and they insure an intelligent and honest verdiet and enhance the chances of a result in every trial.
Nat M. Shelton, Lancaster: (1) Unquestionably, yes. (2) I have thought for some time that it might be safe to so modify our jury law that the concurrence of nine out of twelve should constitute a finding. This would be a conservative move in the direction suggested, and if the trial gave better results the reform could be enlarged upon. Under our constitution, however, I am of the opinion that any reform of the system having for its object anything other than the unanimous con- currence among the twelve could only be made to apply to civil pro- ceedings, the provision as to the inviolability of the right of trial by jury being evidently an adoption of the system as a common law, and having special reference to criminal procedure.
B. R. Dysart, Macon: (1) I would oppose a majority verdict, except by agreement of the parties. (2) Many unjust verdicts have been prevented by less than a majority and even by one juryman.
W. H. Sears, Macon: (1) As I understand the matter, our jury system can be changed only by a constitutional amendment to that effeet. I am in favor of the present system. Jurymen, like other people, do not always see things alike, and, unfortunately, it results in many hung juries in important cases. But, in my opinion, it is better to have it this way than for a majority or two-thirds to have the priv- ilege of deciding the matter. Juries are frequently discharged from the consideration of cases when, if held longer, they might reach a decision.
George A. Mahan, Hannibal: (1) Yes; whenever a suit is brought it should speedily come to trial, and it is best for all parties concerned that a decision should be had. The failure of a jury to agree brings courts of justice into disrepute, and prevents the citizens from leaving disputes to such arbitration with any assurance that justice will be done. Under the jury system as now applied it is very seldom that any deci- sion is had under the law and evidence. The courts fail to afford jus-
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tice to litigants. (2) I am inclined to the opinion that the jury system in all civil cases should be abrogated, and all such cases tried before a court composed of three judges. While the expense would probably be no greater than now, such a court would try cases much more rapidly and always certainly, and hence, in the end, with more satisfaction to litigants and lawyers. When you come to consider the delay in obtain- ing and selecting a jury and the time consumed by the jury in agreeing or failing to agree, it may be safely said that the business of the court would be disposed of in half of the time by three judges. As it now stands, any civil case may be tried before the court by agreement, and many cases are so disposed of at each term of court, leaving the jury without work and under full pay. I see no good reason why all civil cases should not be tried and disposed of by a court composed of three judges, and the jury system abolished.
Gardiner Lathrop, Kansas City: (1) I should say that it would unquestionably be of great advantage to the legal fraternity, as well as to litigants, if a plan were adopted that would insure a result on every case that went to trial. With frequent mistrials, the costs amount to more, in many cases, than the whole sum at stake. (2) I have been for several years very much in favor of a two-thirds or three-fourths verdict, if not a majority verdict, in civil cases. All other questions in life affecting important interests are decided by a majority, and I see no reason why the same rule should not obtain in courts of justice. I think extensions of the referee system would also be an improvement on the present jury system, making the finding of the referee equivalent in legal effect to a verdict.
George W. Martin, Brookfield: (1) Yes. (2) As time passes along and jury after jury fails to agree, as criminals go unpunished on that account, as bills of costs are piled up for taxpayers to settle, as charges and rumors of bribery are from time to time circulated and believed, as the absurdity of allowing one or two cranky or corrupt jurymen to stand in the way of the punishment of crime force themselves upon the minds of the people the conviction becomes more general that the system should be changed, and people are rapidly coming to the conclusion that a substantial majority of a jury, say, two-thirds, or even something less, ought to be permitted by law to decide in civil cases.
R. W. Barrow, Macon: (1) Yes. (2) One of the primary causes of hung juries is, of course, that all jurors most unanimously concur in the verdict. A system that permits one juror to thwart the judg- ment of eleven other jurors, equally as good, is illogical. If our jury system were changed so that in all civil cases nine out of the twelve
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could return a verdict, I believe that justice would be done in a greater number of cases than under the present plan. Under clear instructions from the court defining the law, it seems to me that the judgment of three jurors against one, as to the facts, would furnish a safe and conservative basis for a judgment, and that the great majority of hung juries would be prevented. When we consider that courts have the right to refuse security for costs, that the burden of proof is on the plaintiff and that present possession is regarded as prima facie right to property and that courts have the power to set aside verdicts when unsupported by evidence, with the right of appeal to higher tribunals, it seems that civil rights and status quo are sufficiently protected with- ont giving to one juror, against the wishes of eleven others, the power to tie the hands of the court.
N. A. Franklin, Unionville: (1) I can scarcely say yes to the first question. We should be careful how we make inroads on established forms and ancient customs. I think that such a change as your ques- tion implies would result in a serious strike at the whole jury system. Our jury system could be vastly improved without impairing its use- fulness as a safeguard to life and liberty. I would amend the law so as to disqualify any citizen from acting as a juryman who could not readily read and write and who did not understand the English lan- gnage. I would disqualify any citizen from serving on a jury more than twice in one year, and thus abolish the professional juror. It is a familiar sight to see a dozen or twenty men standing around in the sheriff's way when the court calls for a jury, and who freqnent our courts from time to time to get their names on the jury list. I would go after the business man. Of course, he doesn't want to act and will refer the sheriff to half a dozen men who do. The very reason 1 would make the business man serve is because he doesn't want to, and the reason I would disqualify the other fellow is because he does. I would likewise disqualify all ministers and justices of the peace; also all liquor men. Most of these reforms could be made by our county courts and trial eourt officers, but a statute as a reminder would not be a bad thing. I do not believe a man should be disqualified because he had read of the case at bar in the newspapers; all intelligent men read newspapers and intelligent men make the best jurymen.
In May, 1898, there were a number of mysterious occurrences in Macon homes and in those near the city. Houses were entered and women frightened. In most of the places invaded there were no men in the house. Sometimes small articles of food and other things were stolen. The intruder seemed to have no particular purpose, but he was
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most active. Nearly every night some residence was the subject of his attentions. Finally, the night prowler committed a ferocious deed. He went to the home of Mrs. Ann Browitt, about a mile west of Macon, and attacked Mrs. Browitt's two daughters, who were sleeping in the same bed. In talking of the occurrence one of the girls said that the man entered the room, making a noise like some wild animal. He struck her several times in the face with a sharp-edged, short-handled hoe. The girls jumped out of bed and fled. The assailant followed Ethel, the older girl, and chased her out into the yard. He caught her and brutally beat her in the face with his curious weapon. The girls stated that the man seemed to be actuated by some crazy ferocity. There seemed to be no particular reason in what he did, except to hurt them as much as possible. There were no men in the house.
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