USA > Missouri > Boone County > The bench and bar of Boone County, Missouri; including the history of judges, lawyers, and courts, and an account of noted cases, slavery litigation, lawyers in war times, public addresses, political notes, etc > Part 19
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HONORED POLITICALLY
In 1912, the Progressive party, some times called in jest the "Bull Moose" party, honored two members of the Boone county bar, Morton H. Pemberton and F. W. Niedermeyer. Mr. Pemberton was nominated as its candidate for congress in the eighth Missouri district, and Mr. Niedermeyer was nominated as its candidate for secretary of state of Missouri.
ANONYMOUS
A story is told on a Boone county lawyer, whose name is with- held. It seems that he represented a plaintiff in a personal injury case against a railroad, and the question of the extent of the plaintiff's
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injuries was an important one. It also seems that this lawyer was badly under the influence of liquor at the time of the trial. The railroad attorney referred to the condition of the plaintiff's attorney, and said that he did not know the difference between temporary and permanent. In reply, the plaintiff's attorney seemed to take in the situation, for he said: "This railroad lawyer says that I don't know the difference between temporary and permanent. And he also says that I am drunk ; well that's temporary. But he hasn't got any sense; and that's permanent."
The following story was told by Judge Burckhartt on Crum- baugh, Bass, Truitt, Bedford, Gentry, Webb Gordon and other law- yers who began the practice during the 'eighties; but as to which one was the real party, deponent saith not. A negro with a police record was indicted for an assault, and the court asked him if he was guilty or not guilty ; to which the negro replied that he was not guilty. The court then announced that Mr. was appointed to represent the defendant. The negro asked if that was Lawyer -, and when the court told him that it was, he said, "Well, Judge, I will plead guilty."
An old lawyer once ran against a young lawyer for the legisla- ture, and both attended a gathering in Sturgeon, where dancing was the order of the day. The young lawyer was a graceful dancer, and in a short time he had nearly all of the ladies on his side. One young lady who was a friend of the old lawyer told him that he was about to lose out, and that he certainly would lose out unless he actively par- took of this part of the entertainment. The old lawyer insisted that his dancing days were over, that he was out of practice, etc., but no excuse was accepted. So this young lady and the old lawyer started off together in a waltz. After making a desperate attempt and realiz- ing that his effort was a failure, the old lawyer said, "Look here, Miss P., there is no use talking, I can't do two things at once, I can't think about politics and at the same time keep my feet going."
In 1891, a certain physician was on the witness stand in the pro- bate court, and a certain lawyer undertook to prove by him that a certain farmer was a person of unsound mind. So the lawyer asked what were the habits of the farmer, with reference to sobriety. The old physician, who was feeling extra good, said, "Well, sir, he takes a drink whenever he feels like and thinks it is nobody's business, and so do I and so do you." When asked if the use of intoxicants did not have a. tendency to make a man of unsound mind, the physician again observed, "Well, sir, if it did, it would be mighty hard on men like you and me."
JNO. H. OVERALL
CHAPTER VIII.
NOTED CASES
Some interesting, unusual and noted cases have been tried in Boone county, and some of them read like fiction. But all that are herein mentioned can be vouched for. It is unfortunate that a more complete list cannot be given, and that more of the interesting details have been forgotten.
FIRST CASE APPEALED
The case of Parthenia Easton vs Michael Woods was noted for the brevity of the record, and the difference between procedure then and now. It was an action of trover, to recover the value of a horse. It was tried before a jury in the circuit court in June, 1824, and ten months later the judgment was affirmed by the supreme court. On the circuit court record appears the bill of exceptions, copied out in full and signed by Judge Todd at that term; hence it was "made a part of the record." The bill of exceptions occupies four lines more than one page of the circuit court record book. The decision of the supreme court is also interesting, for it is a little over one-half a page long (see Easton vs Woods, 1 Mo. 506). Thompkins & French and Jno. F. Ryland, of Franklin, and Jesse T. Wood, of Columbia, have the honor of being the lawyers in the first case appealed from the Boone circuit court.
SENDING CHALLENGING LETTER
At the February term, 1831, the grand jury indicted Ira P. Nash, physician, surveyor and pioneer, for sending a letter, challenging Gil- pin S. Tuttle to fight a duel. The wording of the letter was very adroit, but the intention of the writer was clear. The indictment was signed by R. W. Wells, attorney general, and the trial occurred before Judge David Todd, in Columbia. It resulted in the conviction of Nash and his being fined one hundred dollars, the only man ever convicted of that offense in this county, and one of the few ever con- victed in Missouri. The letter is as follows : Sir :
I have always been fond of the chase, and of gunning. I have experienced great satisfaction in the chase, in the countries of West Florida and New Mexico, and in the states of Virginia, Kentucky, Indiana, Illinois, Louisiana, North Carolina, S. Carolina, Missouri and Tennessee-in the extreme eastern part of the latter, I took my
(205)
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first chase when quite a boy. Now, Sir, the object of this communi- cation is to let you know that there is not anything could be more greatful to my feelings than to take a short hunt with you, in some place not exposed to Indiana depredations, and as my first chase was in the East of Tennessee, I propose to take this (perhaps my last) chase in the extream West of that state, say in the Mississippi bottom opposite New Madrid. I propose the hunting camp to be located some where near the Mississippi river (nigh to where the eye of Leonard flashed on Major Berry) and then and there the preliminary arrange- ments will be made for the hunt, by say our camp keepers-and they will, no doubt, give you liberty to execute your threat of 12th of June last, on me-and if you stick close to the chase, I insure that we will have something of better color, if not so strong scented, as that with which you plastered my letter 10th of last June. To Capt. Gilpin S. Tuttle, Yours, &c.,
Nashville, Mo.
I. P. Nash.
P. S. Sir-I most seriously invite you to this hunt-you may ob- ject to the season, but 'tis the best time to save meat and skins, and the climate is more mild at New Madrid than here. I have frequently observed that men by being campmates (each doing his duty) would become great friends, and agreeable associates. Therefore this meas- ure is absolutely necessary three days after this is delivered, I shall call at Nashville for an answer for this invitation, believing most con- fidently that you will perfectly understand this prelude at the first glance. There is an embargo (and something worse) on those who execute certain instruments of writing in Missouri, which criminal words I have, and will avoid. But there is no law (that I know of) which prohibits hunting parties.
Yours, I. P. Nash.
OFFICE FOR CIRCUIT CLERK
In 1832, the case of County of Boone vs Todd (3 Mo. 140) was decided by the supreme court. It was a proceeding by mandamus to compel the county court of Boone county to pay one hundred and twenty dollars for the rent of a room in the residence of Roger North Todd, which was used by him as a clerk's office and recorder's office for a number of years. The court house of 1824 did not have any office for the clerk, and the county court insisted that he was not entitled to any. The court went so far as to refuse to pay for a record book in which to copy deeds, holding that Mr. Todd must bear that expense also. But the circuit court decided that he was entitled
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to an office, and if none was provided the county should pay rent for one; and this decision was affirmed by the supreme court. This was the first Missouri case to hold that the county should furnish an office for its officers. In this day when the county furnishes an office, heat, light, stationery, office furniture, janitor service, ice water and telephones, it seems hardly possible that an office or a record book would not be considered necessary. This suit resulted in the clerk's office building in 1835.
As late as May 8, 1866, the following appears of record in the county court : "Ordered by the court that the room in the southeast corner of the court house on the lower floor be set apart for the use of the county attorney, and that he pay a reasonable amount for the use of the same, to be deducted out of his salary."
February 1, 1871, was the first time the prosecuting attorney was furnished with an office free of rent (it was afterwards the sher- iff's office), and he was allowed "sufficient fuel for the use of one stove."
THE MORMON CASES
In 1838, after the Mormons were driven out of Jackson county, they gathered in large numbers near the town of Far West, in Cald- well county, built a temple, and advertised for their friends in Illinois to come and join them. There were conflicts between the Mormons and the Gentiles, retaliations, etc., until serious trouble seemed inevi- table. The Mormon war, or Mormon insurrection, created great excitement in northwest Missouri, and the state troops were called out by Governor Boggs, and they were joined by volunteers from Boone, Howard and other counties; and some fighting took place. The leaders were taken into custody, and turned over to the civil authorities, and their friends agreed to leave the state. As a result of the war, indictments were found against Joe Smith, Jr., Hiram Smith, William Osborn, Luman Wight, Parley P. Pratt, Luman Gibbs, Maurice Phelps and others, charging them with treason, murder, and resisting legal process; and against King Follett, charging him with robbery. The defendants appeared before Circuit Judge Austin A. King, formerly of Boone county, and asked for a change of venue, on account of the prejudice of the inhabitants of all the counties in that part of the state. The application was sustained and the venue awarded to Boone county. The following letters are of interest and explain themselves :
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City of Jefferson Mo. July 9th 1839,
To Roger North Todd, Esq.
Clerk of Circuit Court, Boon County Missouri.
Dr. Sir,
I am requested by the Governor to request you to forward to him at as early a period as practicable copies of the Indictments pend- ing and proceedings had in the Circuit Court of Boon County against such of the Mormon prisoners as have escaped from custody ; in order that their re-capture may be effected as speedily as possible. The request here made is intended not only to obtain authentic informa- tion of the recent escape from the county jail of Boon County, but also of the prior escape of those who fled from custody while on their way from Daviess County to the County of Boon, as the causes had been transferred to your court, and that tribunal had become possessed of it absolutely (see R. C. page 488 Sect. 27). I presume the certifi- cate or return by the Sheriff of Daviess County of the escape of his prisoners was made to your office. As yet no intelligence, except that conveyed by rumour, has reached the Executive of the escape of any one of the Mormon prisoners. And as it is important, from many considerations, that the prosecutions should be conducted, without un- necessary delay and the guilt or innocence of the prisoners established, you will excuse me for requesting that you give this matter your immediate attention.
I have the honor to be, Sir,
Yr. Obt. Svt. Jas. L. Minor, Sec. of State of Mo.
Columbia Mo., July 12th 1839,
Hon. Jas. L. Minor,
Secretary of State, Jefferson City Mo. Dr. Sir.
I am in receipt of your esteemed communication of the 9th inst., and in reply beg to inform you that the Mormon prisoners were granted a change of venue from Daviess and Caldwell counties to the Circuit Court of Boon county, as you will see by certified copies of the in- dictments herewith enclosed. On their way to Columbia, the defend- ants Joe Smith Jr. and Hiram Smith managed to escape from the Sheriff of Caldwell county, and have not been heard from since.
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ELI PENTER
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On July 4, the patriotic people of this locality (and you will ex- cuse me for saying that this embraces our entire citizenship) were engaged in a public celebration, which celebration took place something like one mile distant from the court house square. All of the Mormon prisoners, save the two Smiths, were confined in the county jail on that day; and, when the time came for Jailor John Kelly to take them their dinner, he was assaulted by them, knocked down and Parley P. Pratt, King Follett and Maurice Phelps escaped through the open door. Great credit is due Mr. Kelly, who, though seriously wounded, prevented the escape of the other prisoners. Mr. Kelly gave the alarm, but, owing to the fact that nearly all of the men in Columbia were at the fourth of July celebration, and the further fact that these prisoners fled in the opposite direction from the public gathering, all succeeded in making their escape.
However, Pratt and Follett have since been re-captured, owing to the dilligence of Sheriff John Martin and Deputy Sheriff F. A. Hamilton, of this county ; and these two defendants and their co-de- fendants will be tried at a special session of court, which has been called by Judge Reynolds, of this circuit.
Kindly convey this information to His Excellency, the Governor, and assure him that the public officials and private citizens of Boon county will do their best to avoid any further disturbance. You will also kindly assure the Governor that the Mormon prisoners will be properly cared for and fairely tried.
Believe me sir, I am
Yr. Obt. Servt. Roger North Todd, Circuit Clerk.
The indictment against Parley P. Pratt, Luman Gibbs and Mau- rice Phelps was in twelve counts and alleged that the defendants "and divers other evil disposed persons (whose names to the Grand jurors aforesaid are as yet unknown) not having the fear of God before their eyes, but being moved and seduced by the instigation of the devil," committed murder, in Caldwell county. The last count of the indict- ment charged that Joseph Smith, Jr., Luman Wight and Sidney Rig- don, knowing of the murder committed by Pratt, Gibbs and Phelps, harbored and maintained them in Ray county.
Follett and Gibbs were tried before Judge Thomas Reynolds, of the Boone circuit court, at the August term, 1839, and both were acquitted. Colonel Alexander W. Doniphan, Major James S. Rollins and Judge David Todd defended them; and Circuit Attorney James M. Gordon, of Boone county, and Circuit Attorney William T. Wood,
14
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of Ray county, represented the state. After the acquittal of Follett and Gibbs, the cases against the remaining defendants were continued in order that the defendants could procure the testimony of Gen. David R. Atchison, also the depositions of witnesses in the state of Illinois and territory of Iowa. At the next term of court, the cases were dismissed, and thus ended the greatest combined legal, military and religious contest in Missouri.
UNIVERSITY SUBSCRIPTION CASE
In 1839, the sum of one hundred and seventeen thousand, nine hundred dollars was subscribed, on condition that the State Univer- sity should be located in Columbia. When the University was located in Columbia, of course the money had to be paid, but some of the subscribers were unable to raise the amount promised. Accordingly, the Curators of the University brought suit against Jas. S. Rollins, Moss Prewitt, Edward Camplin, Wm. Y. Hitt, Sidney S. Robinson, Jefferson Garth and the others who guaranteed the payment. This case was continued along for a term or two, and finally the guaran- tors made good the shortage, and the case was dismissed.
It is said that Jas. M. Gordon made his first fees of importance, collecting these subscriptions; and he collected all of them. Some persons mortgaged their homes in order to pay their subscriptions ; and some of the mortgages had to be foreclosed.
ANOTHER UNIVERSITY SUBSCRIPTION CASE
At the April term, 1842, the case of State ex rel. Curators of University of Missouri vs William Lampton et al. was tried, and re- sulted in judgment for the plaintiff for five hundred and ninety-three dollars. This was a suit on the bond of William Lampton, constable of Columbia township, and it was alleged that the defendant, Lamp- ton, collected various sums of money from persons who subscribed for the location of the University in 1839, that he failed to account for said money, etc.
THE POISON CASE
It seems that there were sensational cases in the "olden time", as well as now days, though possibly not as many. In 1847, Samuel C. Grubb and Sally Ann Hendrick were charged with the murder of John Hendrick, by mixing arsenic in coffee and causing him to drink the poisoned liquid. A preliminary examination was had, and both
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defendants were bound over without bail. The deceased was the husband of Sally Ann Hendrick, and they lived near the farm of Grubb in Perche township. One witness testified that Mrs. Hendrick said she wished her husband was dead. It was claimed that Grubb wanted the young wife of Hendrick to leave him and move to Grubb's house ; and it was further claimed that Grubb bought arsenic from a Colum- bia druggist, inquired of a physician how much of that poison was sufficient to kill a man, and, after the death of Hendrick, said that Hendrick had been murdered and that some other man in the neigh- borhood might soon be murdered. A statement was made by Hen- drick shortly before he died that he believed Grubb had mixed the dose for him, and that his wife gave it to him. Both defendants were arrested in Randolph county, a few days after the death of Hendrick. But in spite of these circumstances, the skill and eloquence of A. Leon- ard, Samuel A. Young and Sinclair Kirtley were sufficient to raise a reasonable doubt, and secure a verdict of not guilty.
COL. SCHWABE IN COURT
For some years after the Civil war, there was a strong southern feeling in Boone County, and Col. H. C. Schwabe, one of the leading republicans of the county, knew how to take advantage of it. Gen. Odon Guitar and Col. Schwabe were both republicans, but belonged to different factions, and were constantly sparring at each other.
Not long after the war, a negro was being prosecuted by Col. Schwabe, who claimed that the negro had stolen a quilt from Schwabe's dwelling. After Col. Schwabe had taken the witness stand and iden- tified the quilt, General Guitar, who represented the defendant, asked how he could distinguish that quilt from the thousands of others just like it, as he had had no experience in handling such articles. Col. Schwabe hesitatingly said, "If you want me to tell all I know about that quilt, I guess I will have to tell you. During the war, you (re- ferring to General Guitar), Captain Cook and I were out in Black- foot, doing what the government called 'confiscating property' but what we called 'helping ourselves.' We came to a widow's house, and all she had left was three quilts ; one was a silk quilt, one was a woolen quilt and one was a calico quilt. So the boys took the silk quilt and gave it to you, and they took the woolen quilt and gave it to Captain Cook, and they took the calico quilt and gave it to me, which is the very quilt this nigger stole."
Not long after that, Col. Schwabe was in court, and Judge Burck- hartt fined him ten dollars for talking out loud and causing some parties to laugh, among whom was Luther Crumbaugh, then deputy
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sheriff. Col. Schwabe paid his fine; and a little later, he begged the judge to remit it, saying that he had profound respect for the court, and meant no contempt at all. The judge broke out in a laugh, and remitted the fine on condition that Col. Schwabe would leave the court room and never return. Col Schwabe agreed to this and left the court room as fast as he could walk ; but picked up Judge Burckhartt's stove pipe hat and carried it off with him. Judge Burckhartt said, "Mr. Sheriff, go and call Col. Schwabe, tell him to come back and bring back the court's hat, or the court will fine him many times ten dollars."
HE WAS NOT GUILTY
In October, 1871, Frank Meyer left Columbia and went in com- pany with Robert Schwabe to Rocheport, and the last time the two were seen together was near the bank of the Missouri river. Schwabe was expecting to buy cattle, which Meyer had agreed to butcher for him. Schwabe suddenly disappeared and Meyer returned to Columbia, and exhibited considerable money. The supposition was that he had . murdered his companion, taken all of the money off of the dead body and thrown the body in the river. There were many suspicious cir- cumstances against the defendant, none of which he could satisfac- torily explain, neither could he account for the absence of Schwabe. So positive was the proof that Jno. C. Schwabe, a brother of the supposed murdered man, visited Thos. B. Gentry, a justice of the peace of Columbia township, at midnight, made complaint and had a warrant issued for Meyer. When the officers went to the defendant, he resisted arrest; and when overpowered by them, he said that he wished he had a knife as he wanted to cut his own throat. Col. H. C. Schwabe, father of Robert Schwabe, advertised for the missing man, offered a reward for the recovery of his body and had a number of men spend much time trying to get the body out of the river. Great excitement prevailed in Columbia and near Rocheport. After the evi- dence was taken at the preliminary examination, and while the prose- cuting attorney was making his closing argument, the supposed mur- dered man, while on his way to Columbia, was arrested by a man de- siring the reward and taken into the court room. He had been to Cooper and Saline counties, had written home, but the letter was mis- carried.
Col. Schwabe declined to pay the reward, but suit was brought and he was compelled to pay it.
JUDGE SHANNON C. DOUGLASS
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THE GOOSE CASE
As far as known, the first justice of the peace in Missouri to deliver a written opinion was Thomas B. Gentry, of Columbia town- ship. Not far from the historic Bonne Femme Baptist Church, and near the banks of a little stream, now called "Goose Creek", two women had a difficulty, which resulted in the name for the creek, a bruised head for one woman, and a criminal prosecution in the mag- istrate's court for the other woman. The time consumed in the trial of this little case was five days; three days in the taking of testimony, one day in argument and the justice took one day to consider the case. Seven of Boone county's leading attorneys, Odon Guitar, Squire Turner, A. J. Harbinson, Wellington Gordon, J. DeW. Robinson, F. F. C. Triplett and H. C. Pierce, took part in this noted trial ; and a host of witnesses and many spectators thronged the old court house. The written opinion of Justice Gentry is as follows, and the same was read by him to the eager crowd in the court room :
"State of Missouri vs Rachael Scott. The defendant is charged with feloniously assaulting, with a dangerous weapon, and maiming, wounding, disfiguring, causing great bodily harm and endangering the life of Sarah P. Gans, under such circumstances as would have constituted murder or manslaughter, if death had ensued. The de- fendant entered a plea of not guilty, she admits the striking but claims that it was done in the defense of her own property, to-wit, two geese.
"From the evidence in this case, it appears that for some time previous to the 28th of February, 1872, Mrs. Rachel Scott, the de- fendant, and Mrs. Sarah P. Gans had been living on neighboring farms south of Columbia; and that for a long time they had not been on friendly terms. On that day, Mrs. Gans entered upon the premises and within the enclosure of the defendant, without permission or invi- tation, and began driving four of her own and one or two of Mrs. Scott's geese. The testimony also shows that the defendant warned Mrs. Gans to let the geese alone, stating to her in a loud tone of voice that two of those geese belonged to her (defendant), but that Mrs. Gans continued to drive all of the geese toward the front gate, which she had previously propped open. She was in the act of driving them through said gate and onto the Columbia and Ashland gravel road, when the defendant struck her.
"I regard the entry of Mrs. Gans upon the defendant's premises, under the circumstances, as a trespass; and the attempt to drive off defendant's geese, or goose, as the case may be, without permission as a still further trespass. Mrs. Gans was clearly in the wrong place,
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