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 22
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State vs Mcclintock. John McClintock was prosecuted for shoot- ing and killing one Henry Penegar, at the town of Nashville, in 1845. As far as known, this was the only homicide that occurred in Nash ville. This case was unusual in another respect. On March 26, 1846, McClintock was tried and convicted of manslaughter, and sentenced
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to three years in the penitentiary. He did not file a motion for a new trial, but on April 2, 1846, Governor Edwards granted him an uncon- ditional pardon. This pardon was filed with the papers in the circuit clerk's office; and the defendant was discharged, never having gone to the penitentiary.
Another interesting paper in this case is the account of Thomas Selby, a Columbia tavern-keeper; it was for "boarding, lodging and fires for twelve men, the jury in the case of State vs John McClintock, for four days, and keeping eleven horses belonging to said jury".
Road Overseers Cases. The good roads movement struck the country about 1852, and a novel method was resorted to to have the roads improved. A great many of the road overseers were indicted for failure to have their respective roads worked, for allowing stumps to remain in them, brush to grow up, and large stones to accumulate. Among those who were thus indicted were James S. Rollins, who was overseer of the road that passed his own place, now the Columbia and Providence road, also Pleasant H. Robnett, an extensive farmer on the Cedar Creek gravel road, Wm. Y. Hitt, for whom Hitt street was named, Allen White, William Cave, Joel Parmer, Jas. P. Angell, James Hicks and other prominent citizens. Not only did the grand juries of Boone county get after the road overseers, but the same methods were pursued by the grand juries of Howard, Saline and Lafayette counties. After numerous indictments were returned against the road overseers, and much publicity given the matter, the circuit attorney entered a nolle as to them all.
In March, 1848, Wm. W. Hudson, then professor of mathematics and astronomy, and afterwards president of the Missouri University, lived where the dean of the agricultural college now lives, and was road overseer of the Columbia and Jefferson City road. He was in- dicted for failure to work what is now the Columbia and Ashland gravel road, plead guilty and was fined ten dollars.
Toll Cases. Many of the early mills of the county were horse mills, and the law required the miller to grind the grain for one-eighth part, when the team was furnished by the owner (see R. S. Mo. 1845, sec. 5, page 742). In February, 1855, John Onan, who lived north- west of Columbia, was indicted for grinding grain and taking for toll more than one-eighth part, when the owner furnished the team. He was tried, convicted and fined five dollars.
In 1903, I. N. Boring was tollgate keeper for the Columbia and Cedar Creek Gravel Road Company, and he was fined for collecting toll when the turnpike was not up to the condition required by statute (see R. S. Mo. 1899, secs. 1234-5). In 1883, Sherwood Harris, who
W. H. ROTHWELL
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was tollgate keeper for the Columbia and Rocheport Gravel Road Company, was fined for a similar offense. And in 1914, Orvil Harrel- son was fined for passing through the tollgate of the Columbia and Blackfoot gravel road, without paying the legal rate of toll.
Some years ago, a young man named Toalson tried to ford Rocky Fork Creek, there being no bridge, and he and his horse came near being drowned. Accordingly, he instituted a prosecution against the tollgate keeper of the Blackfoot gravel road, for collecting toll when the road was not in good condition. It was held that the gatekeeper was guilty, and a small fine was imposed.
Railroad and Turnpike Bonds. On February 8, 1866, David H. Hickman and James L. Stephens presented a petition to the Boone county court, which was the longest petition ever filed in any pro- ceeding in this county. It contained a double column of signatures and the petition, when spread out on the floor, extended across the court house from east to west. Every lawyer in the county had signed the petition. It was a petition, asking the county court to appropriate money with which to build a railroad from Columbia to Centralia, and also to appropriate money with which to construct a gravel road from Columbia to Claysville by way of Ashland, another gravel road from Columbia to Rocheport, and a third gravel road from Columbia east to the Callaway county line. A crowd of anxious citizens had assembled in the court room, and for once in the history of this county, proceedings in court were greeted with applause. The court, composed of Judges James W. Daly, David Gordon and John Berkebile, on that day decided to appropriate two hundred thousand dollars to be used in paying for the Columbia branch to connect with the North Mis- souri Railroad (now the Wabash), and also decided to appropriate one hundred and fifty thousand dollars to be used in paying for the three gravel roads above mentioned. Bonds of this county were then issued for those sums. See County Court Record, Book "P", pages 513, 514 and 515.
On May 20, 1871, another meeting was held in the county court room, and another petition presented to the Boone county court, ask- ing it to appropriate eight thousand dollars to aid in the construction of the Columbia and Blackfoot gravel road. The court, composed of Judges James Arnold, David Gordon and James Harris, made the order (see County Court Record Book "S", page 188) ; and that road also stands as a monument to the wisdom and foresight of our fathers and our grandfathers.
Rocky Fork & Perche Bond Cases. In 1869, the Louisiana & Mis- souri River Railroad was projected through Boone, Howard and Sa-
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line counties, its line extending through Rocky Fork and Perche town- ships. The county court ordered an election in those townships, and bonds to the amount of twenty-five thousand dollars were voted by each township, and the bonds given to the railroad company. The grade was completed and bridges were constructed, but the project was abandoned, owing, it is said, to the failure of some parties in Sa- line county to comply with certain terms just as the railroad bonds were ready to be sold. Mr. R. B. Price is the authority for the state- ment that the death of David H. Hickman, of Columbia, the financial head of the enterprise, had much to do with the failure to complete the road. Then the holders of the township bonds brought suit in the United States court at Jefferson City. The defense was that the bonds were voted at an election held at a time when the great majority of the citizens of Boone county were disfranchised, as a result of the bitter- ness of the Civil War. But the bondholders proved that, at said election, there were two ballot boxes at each precinct, and the legally qualified voters had their ballots deposited in one box, and those citi- zens of the county who were not legally qualified had their votes placed in the other box; and that more than three-fourths majority in each box favored the issuance of the bonds. Accordingly, Judge Arnold Krekel decided in favor of the bondholders. Afterwards in 1880, pending the appeal, a compromise was effected, and the tax- payers of those townships paid sixty-six per cent of the indebtedness. Senator Jno. B. Henderson and Gen. Odon Guitar were attorneys for the bondholders; and Henry A. Cunningham and Jno. H. Overall represented the taxpayers.
They Could Run. During the early seventies, a one-legged man was arrested in Columbia, charged with passing a forged check to a farmer residing on Hinkson Creek. In order to accommodate the large number of people who wanted to see such a man tried, Justices Jas. R. Shields and T. B. Gentry, before whom the preliminary exam- ination was held, conducted said examination in the old court house. When the defendant was brought from jail to the court room, every one looked at the poor fellow as he walked on two crutches, and many were the words of sympathy expressed for him. In the midst of the taking of the testimony, the defendant arose and walked out of the court room, saying he would return in a moment, and, thinking that he would not try to run, the justices consented and the constable did not follow him. After waiting awhile, Mr. Wellington Gordon, then county prosecutor, said to the officers, "You better look after that prisoner ; for during the war, I saw a one-legged man run like the devil". To the surprise to everyone, the one-legged man did not return,
EV M. BASS
T. T. SIMMONS
C. B. SEBASTIAN
JOS. H. CUPP
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and he never has returned. His attorney, Capt. H. C. Pierce, whose fee was not paid, was as much surprised at his client's running stunts as anyone.
Col. F. T. Russell was appointed by the circuit court to defend a one-armed man, and he went with him to the jury room in the old court house, which was used as a consultation room. As soon as the door was shut, the defendant jumped out the second story window, reached the ground in safety and made his escape. Col. Russell jok- ingly expressed it, "The man must have lit straddle of a horse, for in a moment he was galloping north past Christian College".
J. L. Stephens, while representing the state, visited Rocheport on official business, a one-eyed negro having been arrested in that locality on the charge of grand larceny. W. E. Nicklin had been retained by the defendant, and he was given permission to retire to the vacant lot just outside of the J. P. office for consultation. But it was evident that the defendant had another purpose, for as soon as he got a whif of the bracing air from Moniteau Creek, he crossed that stream with so much rapidity that the calls to him from his attorney and the pistol shots from the constable failed to stop him. Mr. Stephens did not receive any fee for what might be termed that "quasi judicial proceed- ing", and Mr. Nicklin was just beginning to talk business when his client, as Nicklin expressed it, "took a change of venue to Howard county".
The Sharp Case. Lewis Sharp was a well-known farmer and live stock man, who resided in Boone county for a number of years, but he was the father of a disorderly son, George Sharp. Perhaps George was not so much to blame, for the Civil War had just closed, and there was so much turmoil during that strife that many well- meaning people became disorderly. But George kept up his disturb- ances after the war closed, and he was so noisy and abusive in his manner that his father filed complaint before a justice of the peace of Columbia township, alleging that George Sharp was a dangerous in- dividual, and that the father's life had been threatened, and asking that George be required to give bond to keep the peace. A trial was had, and it attracted much attention, because of the relationship of the parties. The justice found that George Sharp had threatened the life of his father, that George was a dangerous person and required him to give bond in the sum of one thousand dollars. An effort was made by George to give the bond, but he failed, so rather than see his son go to jail, the father signed the bond himself.
One Physician Kills Another. In 1876, Dr. Benjamin Austine and Dr. Thomas H. Keene, two physicians in Hallsville, became ene-
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mies over an anonymous circular letter, and so great were their dif- ferences that the former shot and killed the latter. It was claimed that Dr. Keene was the author of this letter, and also that Dr. Keene made divers threats against Dr. Austine. It is a singular circum- stance that Dr. Keene was shot and killed in Hallsville at almost the same spot where some seven years before he had shot and killed a man named Peter Evans. General Guitar defended Keene for killing Evans (see State vs Keene, 50 Mo. 357), and Keene was finally ac- quitted ; and later General Guitar defended Austine for killing Keene. The justice found that Dr. Austine was justifiable and discharged him; and the grand jury failed to indict him. Col. S. Turner also defended Dr. Austine.
State vs McDearmon. In 1882, the case of State of Missouri vs Thomas H. B. McDearmon was transferred to Boone county, on a change of venue from the Cooper circuit court. Mr. McDearmon was Marshal of Boonville, and he was charged with the murder of Amos B. Thornton, who was editor of the "Boonville News", and the killing occurred on Main street in that city. It was claimed that two articles appeared in that paper, reflecting on the character of the defendant. Perhaps no case in recent years had a greater array of legal talent than this case. The state was represented by John R. Walker, of Cooper, and J. DeW. Robinson, of Boone; and the defendant was represented by Shannon C. Douglass and Col. S. Turner, of Boone, Sam C. Major, of Howard, J. H. Johnson, John Cosgrove and Draffin & Williams, of Cooper, L. L. Bridges, of Pettis, J. G. McDearmon, of St. Charles, and Nat C. Dryden, of Lincoln county. The prose- cuting attorney and two of defendant's attorneys were witnesses to the shooting, also Lon V. Stephens, afterwards governor, and J. F. Gmelich, afterwards lieutenant governor. It was during the argu- ment of Judge S. C. Douglass in this case, that he asked the jury to "remember the Golden rule, which we all learned at our mothers' knees, 'do unto others as they do to you'". The defendant was ac- quitted.
At the trial of this case, Mr. J. DeW. Robinson, not being ac- quainted with the witnesses nor the locality, and desiring to make no mistake, wrote his speech out in full and read it to the jury. As far as known, this was the first and only instance when a lawyer read his speech in Boone county.
State vs Shroyer. In October, 1876, Michael Shroyer, his wife and two little boys left Indiana in a covered wagon, ostensibly for a farm in Kansas. While near Lick Fork Creek in Bourbon township, it was supposed that Shroyer dealt his wife a blow on the head, which
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caused her death. In February following, the skeleton of a woman was found near this creek, under a pile of brush and stumps, and her skull had been crushed in. The names of the parties were not known, but Thos. S. Carter, then editor of the "Sturgeon Leader", began working on the case and ascertained the names and former residence of this mover, and also that the day after he passed through Bourbon township, he had two children with him, but no woman. Shroyer had a cripple hand, and this was a means of his identification, and finally resulted in his arrest. Certain clothing of the dead woman was found under this brush, and preserved for six years, and the same was identified by some witnesses who came on from Indiana. In 1882, Shroyer was found near Joplin, at work on a railroad, under an assumed name, was arrested and brought to Boone county, where he was tried in April, 1883. The evidence against him was circumstantial. but pointed strong towards his guilt, but there was some doubt as to whether he struck the woman deliberately or in the heat of passion. So the jury gave the defendant the benefit of the doubt and found him guilty of murder in the second degree. He took an appeal to the supreme court, but dropped dead in the penitentiary before his case was finally decided. C. B. Sebastian and J. G. Babb represented the state; and the defendant was represented by Col. S. Turner.
The Bible Case. In 1888, one C. J. Chase visited Boone county. representing himself to be a member of the well known book firm of Potter, Chase & Co., of Cincinnati. He claimed to be establishing agencies and represented that the business of selling Bibles, with handsome pictures and maps in them, was not only a profitable busi- ness, but a good religious work. He struck J. I. Jennings, W. H. Kincaid and other farmers near Centralia, and told them that they could ride around the country, wear good clothes and make plenty of money by accepting of such an agency. When a man would agree to act as agent, Chase had a note and deed of trust on the man's farm prepared, and the man invariably signed the papers, expecting soon to receive the consignment of Bibles, make a fortune and save the world. Chase then assigned the notes over to innocent purchasers, left Cen- tralia on the midnight train, and Potter, Chase & Co. declined to recognize his contracts. Suit was brought by Jennings against W. C. Todd trustee, and Bush the assignee, and the circuit court set aside the deed of trust, and ordered the note cancelled on the ground of fraud; but the judgment was reversed by the supreme court (see Jennings vs Todd, 118 Mo. 296).
In the meantime, Chase was indicted by the grand jury for ob- taining money under false pretenses, and, after the diligent efforts of
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Deputy Sheriff R. L. Withers, was located out in Kansas. Chase stayed in the Boone county jail for some time, not being able to give bond. His wife, who seemed to be an excellent woman, moved to Columbia and got numerous women interested in her husband's case. She arranged with Mr. R. L. Todd of Columbia, and with Senator Jas. M. Proctor, of Sturgeon, to sign the four hundred dollar bond for her husband. These gentlemen would not sign the bond unless that sum of money was deposited with them. So Mrs. Chase undertook to raise the money. She visited numerous persons, told of her husband's troubles, told of her little children and of the hard time that she was having, while her husband was suffering in jail. She got four hundred persons to loan her one dollar each, with the understanding that the same would be deposited with the two gentlemen above named, and be used by them to pay to the state, in the event Chase did not appear at the next term of court. If he did appear, as she felt certain he would, the money would be returned. To the surprise of every one, Mrs. Chase raised the money, her husband was released on bond, and then she and her husband left Boone county ; but where they went, deponent sayeth not. The bond was forfeited at the next term of court, and four hundred Boone county citizens lost one dollar each.
The Hultz Cases. In May, 1888, the people of Columbia and vicinity were shocked to learn of the shooting of Allen Vawter by Marshall J. Hultz. Both men were well to do farmers, residing near each other, on what is now the Columbia and McBaine road, and both men were of high standing in the community. The shooting occurred on the public road in front of the Hultz place. Vawter lived about thirty-six hours and died, having made a dying statement to Jas. C. Gillespy and Dr. W. T. Lenoir. Perhaps the largest crowd that ever assembled in the court house was at the preliminary examination before Justice W. E. Boulton, the court room, hall and stairway being filled with interested and excited spectators. Hultz was charged with murder in the first degree, was tried in the Boone circuit court one year later and convicted of murder in the second degree. For the first time in the history of the county, the state filed an affidavit at the beginning of the trial, alleging prejudice on the part of the sheriff, and the court appointed two elisors to summon a jury. This was one of the errors assigned. Col. S. Turner and I. W. Boulware repre- sented the defendant, and interposed the plea of self-defense. Carey H. Gordon, prosecuting attorney, and Gen. Odon Guitar represented the state. The widow of Vawter brought suit against Hultz for damages on account of the killing of her husband, and this case was taken on a change of venue to Randolph county, where judgment
JAS. W. SCHWABE
JERRY G. BABB
JUDGE ALEXR. PERSINGER
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was given her. The principal defense in the civil case was that the defendant had not been convicted of murder in the first degree; but the supreme court held for the first time that a defendant guilty of murder in the second degree was liable in damages to the widow of the deceased (see Vawter vs Hultz, 112 Mo. 633). The criminal case was also taken to the supreme court, and the judgment was affirmed, the court holding that the appointment of elisors was a mat- ter discretionary with the trial court (see State vs Hultz, 106 Mo. 41). Judge Jno. A. Stewart, then a neighbor of Hultz, was appointed deputy sheriff to go out and arrest him. He did so, visited the de- fendant's farm, found him on a mule in a wheat field, and told him of the decision of the supreme court. In getting down off of the mule, Mr. Hultz got down on the side opposite from the officer, took out a knife with a long blade and cut his throat, death resulting in a few minutes.
Babb vs University. The first water-closet operated in Boone county was the one constructed at the State University in 1885, and it resulted in lawsuit. This closet was in the basement of the main build- ing, and the sewer from it extended west to Sixth street and emptied on residence property owned by Wm. J. Babb, a Columbia lawyer. It was claimed that the property was greatly damaged, and the jury found for the plaintiff in the sum of nine hundred and fifty-eight dollars; and this judgment was affirmed by the court of appeals (see Babb vs Curators, 40 Mo. App. 173). In his argument before the jury and in the higher court, Col S. Turner, who represented the plaintiff, told of the number of students, teachers and employees of the University, and then figured out the quantity of filth that would be "pitched over into Mr. Babb's front yard, and immediately under his front window, in close proximity to his optical and olfactory nerves".
County Judges' Cases. The Judges of the Boone county court, Judges Wm. F. Roberts, Jas. M. Angell and Frank M. Smith, were prosecuted for neglect of official duty, violating section 3423 of R. S. Mo. 1889, in that they failed to ascertain by actual examination and count the amount of the balances and funds in the hands of the county treasurer. A demurrer was sustained by the circuit court at the trial at the June term, 1891, and all three were discharged. J. DeW. Robinson was prosecuting attorney, and enjoyed the distinction of being the only prosecutor of this county to prosecute members of the county court.
At the same term of court, Boone county recovered a judgment against Judge Jas. M. Angell for $90, and against Judge Wm. F.
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Roberts for $50, for charges made by them for attending adjourned terms of county court. It was claimed that Prosecuting Attorney C. H. Gordon advised the judges of the county court that they were then not entitled to charge for attendance upon adjourned terms, and Judge F. M. Smith followed his advice; but the other two judges sought advice from another lawyer.
A few years later, Judges Ben M. Anderson, Geo. W. Trimble and Jno. A. Stewart, the newly elected judges of the county court, brought suit against Judges Roberts, Angell and Smith on account of the loss of part of the Rollins Aid Fund, and for an accounting. The circuit court decided in favor of the plaintiffs, but the supreme court, by a majority opinion, reversed the judgment (see 147 Mo. 486).
Niedermeyer vs University. F. W. Niedermeyer, afterwards a member of the Boone county bar, was the only University student to bring suit against the curators of the Missouri University. Having entered the junior law class, Mr. Niedermeyer desired to finish his course, but the curators raised the tuition fee. This extra fee of ten dollars, Mr. Niedermeyer paid under protest, and then brought suit to have it refunded to him. The circuit court decided against Mr. Nieder- meyer, but the court of appeals held that the State University must act fair towards its patrons, and reversed the case (see Niedermeyer vs Curators of University, 61 Mo. App. 654).
Goshen Church Case. In 1894, the Goshen Primitive Baptist church, situated in Cedar township near Wilton, came into prominence, and furnished notoriety in the legal world (see Sitton vs Sapp, 62 Mo. App. 197). This was one of the so-called Old Baptist, or Hard Shell Baptist, or Ironsides Baptist churches, some times spoken of in de- rision as "Whisky Baptists". There were two factions in the church, known as the Glasscock party and the Turner party. Now, probably they would be called "Progressives" and "Stand Patters". The plain- tiffs brought suit against the defendants for forcible entry and de- tainer, and the Kansas City court of appeals decided that they were guilty. Another suit was then brought by the original defendants, a bill in equity, asking to have the title to the church property decreed in the Turner party, as the true church, and the court granted their prayer. Ministers of that denomination were in attendance upon court from Kansas, Illinois, Indiana, Kentucky, and various parts of Mis- souri, and different ones gave testimony as to the church doctrine, polity, etc. One minister testified that the Turner faction could not possibly be Primitive Baptists, as they believed in Sunday schools, paying a preacher and such things, which true Primitive Baptists could not tolerate. Gen. Odon Guitar, Wm. H. Truitt, Eli Penter and
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