USA > Missouri > The history of the bench and bar of Missouri : With reminiscences of the prominent lawyers of the past, and a record of the law's leaders of the present > Part 14
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During the morning of the 3rd of June, 1859, Joseph Charless, an old and highly respected citizen of St. Louis, was shot down by Joseph W. Thornton. Charless was the head of the house of Charless & Blow, the largest wholesale drug store in the West. He was also President of the State Bank of Missouri, and largely interested in the Pacific Rail- road. The party who killed Charless was a young inan of thirty-eight years of age, and belonged to a family, not so well known as that of Charless, yet still counting among its number men of high respectability and position. His brother, at the time of the killing, was doing an extensive livery business, and was afterwards connected with the city govern- inent as Alderman, and the close friend and associate of the Hon. James S. Thomas, Mayor of St. Louis. Young Thornton, more than a year previous, when a clerk in the old State Bank, had been accused of embezzling some of the funds of the bank. At the time of tlie alleged offence, Mr. Charless was not the President of the bank. Thornton was honorably acquitted, notwithstanding a very vigorous prosecution on the part of the bank officials.
The acquittal, instead of reinstating Thornton in favor with Mr. Charless, seems to liave had a very contrary effect. Thornton was a very sensitive man, and felt the indig- nity of the accusation keenly, so much so that shortly after his acquittal, he left the city and went South. He obtained employment in New Orleans, Memphis, Vicksburg, and it may be other points. In each place, he lost his position by reason of letters of an ac- cusatory character being written to his employers. The positions he obtained were in banks, and they having business relations with the Missouri State Bank, the influence of its President would be very strong. Naturally, Thornton felt very bitter because of his treatment, and lie doubtless came to St. Louis to seek some kind of redress fromn Charless. The few who saw him after his return, noted that he was always alone, wore continually a melancholy appearance, and seemed to be brooding over liis wrongs. His reflections culminated in his placing himself in a hallway down on Market below Fourth Street, and
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as Mr. Charless passed on his way to the bank by his usual route, Thornton stepped out and shot him twice. The shots proved fatal the following day.
Thornton was apprehended before he had time to give himself up, and was accom- panied to the police station, down on Chestnut near Second Street, by quite a number of people. He was there but a short time when he was hurried up Chestnut Street to the jail on the southeast corner of Sixth Street. At this time the crowd had so increased in numbers that the officers in charge did not wait to take him to the front door of the jail, but passed up the steps of the brick building where the police court was held at that time. This brick building was so constructed as to form a part of the wall of the jail on the Chestnut Street side. As soon as he and the officers with him were inside of the passage, the door was closed and virtually barricaded, notwithstanding the Police Court was still in session and this barricaded door the only outlet therefrom. Judge Thomas J. Daily was on the bench as Recorder, and I was City Attorney at the time. Thornton was passed into the jail yard through a window. I saw him as he passed onto the plat- form of the steps. He was pale, but calin and self-possessed. The Police Court soon closed its business and adjourned.
Of course when the news of the shooting of Mr. Charless spread through the city, the excitement was intense. A large crowd surrounded the jail, and threats of mob violence were indulged in. Quite a number of police were ordered there and to the neighborhood. As the afternoon passed, the crowd increased. Bulletins announcing the condition of Mr. Charless were issued from the press. Towards night it was generally understood that Mr. Charless would die. To prevent the apprehended outbreak, speeches were made by Dr. Joseph N. McDowell and Mr. Charles D. Drake. They were characteristic of the men. I was in the crowd, or near it, and heard them very distinctly. Some time before night, a telegraph pole was brought and laid opposite the jail on Sixth Street. Once thereafter it was picked up by a crowd and moved toward the door of the jail as if to be used as a battering ram. The police charged upon those having it in hand and arrested five or six. During the afternoon several others were arrested. They were tried for disturbance in the court the next morning, and a novel feature was presented which forcibly impressed ine at the time. At least half of those tried for over-zealousness in behalf of the out- raged law were recognized as parties who had been up in the Police Court as culprits, thieves and vagrants, time and again. As an extra precaution, towards night a detail of militia was ordered to be in readiness in case of need. Notwithstanding all that is here related, I am confident that at no time, except when the crowd followed the accused from the police station to the door of the Police Court, was there the least danger of inob violence to Thornton. At that time, in the first flush of anger for his deed, some reckless person might have rushed forward and struck him and thereby given an incentive to others to follow suit.
The press was very bitter in its denunciation of Thornton. He had no defenders. Even those who knew the provocation for his act were silent. The friends of Charless addressed an appeal to Judge Henry A. Clover to call an extra session of the Grand Jury, so that an indictment might be immediately returned against the accused. As the killing occurred on the 3rd of June and the next session of the Criminal Court, at which a Grand Jury would be empaneled, would commence the first Monday in July, the Judge very properly declined the request. No preliminary examination was had. The July Grand Jury indicted Joseph W. Thornton for murder in the first degree. The family of
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Thornton employed to defend him one who was among the ablest advocates at the bar. Christian Kribben had not only mastered by study our laws, but he had fully mastered our language. He spoke it as fluently and correctly as any lawyer at the bar. Besides this, he was a fine judge of human nature, was logical and forcible in his declamation, at times reaching the domain of impassioned eloquence. It is a matter of regret that Christian Kribben never carried out his intention, and defended young Thornton. The case was docketed for the last time in the Criminal Court somewhere about September 8, 1859. At the calling of the case it was announced that Mr. Kribben was too sick to be in court, and further, that there was no likelihood of his being able to be present during the term. The press and general public were clamoring for a trial. The court had already delayed for one time, though the time was quite short. The Court announced that the accused would be given one week to prepare for trial, and as Thornton had no lawyer to defend him by reason of Kribben's illness, he would appoint lawyers to defend himn. There- upon, the Court appointed Messrs. T. G. C. Davis and William H. Lackland (a younger brother of Judge Lackland), who had not been very long at the bar. These appointees entered upon the preparation of the case; but having so short a time, that preparation was by no means perfect. The trial which lasted but two or three days ended in conviction on September 21, 1859. The press and the general public were satisfied with the verdict, but there were very many who sympathized with Thornton and thought that his provocation had not received due consideration.
The most noteworthy event in connection with the trial of Thornton was the appear- ance for the last time in a criminal trial of the illustrious lawyer, Edward Bates. He was employed by the relatives of Charless to assist the thien Circuit Attorney, Mr. Charles G. Mauro, a conscientious, painstaking and persevering prosecutor. Two years following, Mr. Bates entered Lincoln's Cabinet, and his name is favorably associated with the political events of the most important period of our later history. Thornton was sentenced to hang on the 11th of November, not two months after his conviction. No appeal was taken. Before the day of execution arrived a very decided reaction set in favorable to saving the life of Thornton. Petitions and letters were sent to Gov. Stewart appealing for a commu- tation. The day before the one set for the cxecution, Gov. Stewart having not signified what his intentions were in the premises, several persons went to Jefferson City to see the Governor. He was not to be found. He kept away from the Capital on November 11, 1859, and numerous telegrams sent to him on that day were never read until Thornton had passed into the darkness of death.
Young and curious, I witnessed the execution of Thornton. I never have looked upon another. He stood on the scaffold calm, cool and resigned. There was no appearance of bravado. There was no sign of fcar. The strain for self control was only made apparent when he stepped upon the raised platform to have his arms pinioned and the black cap put over his head. As this was being done, he pressed his jaws together one or twice in a way that made the muscles of that part of his face slightly protuberant and rigid, while his hands clinched in unison. He was cxcecdingly genteel in appearance, dignified and defcr- ential, though polite to all those surrounding him. The stillness was oppressive. No word was heard except the reading of the death warrant and a short prayer from a priest. His farewells were few and inaudible. The small crowd assembled seemed dazed, appalled at the spectacle. Their faces were as pale as Thornton's. Some shed tears. The final scene was revolting. The drop was not sufficient to break the neck and in the throes of strangu-
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lation Thornton's hand quiveringly reached the side of the platform of the opening through which he had fallen, and he strained to pull himself up. A deputy hastily pushed the hand off, and he shortly after ceased to struggle. From the time of the shooting to that of his death, he never spoke a word of regret. He felt persuaded that the provocation he received justified his act, though the law said otherwise.
I mentioned Judge Wilson Primin as being a distinguished member of the bar in the old time, and that he was associated with the defense in the case of the Montesquieu brothers. This was not the only noted case he was engaged in. Quite a number could be mentioned; but I deem it best, in view of the length already of this article, to speak of himn in his judicial capacity. Judge Primm succeeded Judge Clover on the Criminal Bench. He went to the bench in 1863, and served until 1874. He made an admirable Judge. I became associated with him as Circuit Attorney in 1866, and continued in the position until 1872. During his term of service some very important and exciting trials were had. It was before him that I met for the first time in the forum Judge Lackland. It was in the case of the State vs. William Donaldson, charged with the murder of a negro named Anderson on the steamer "Great Republic," at the wharf in the City of St. Louis in the year 1868. Associ- ated as a worthy assistant in this case was Col. A. W. Slayback, killed by John A. Cock- erill, at that time editor of the Post-Dispatch.
The steamer "Great Republic" was the finest steamboat that was ever built on the Mississippi River. It ran between this city and the City of New Orleans. Captain Donald- son was known far and wide as a genial and generous man, and was one of the most popu- lar officers on the river. Some hours prior to reaching the landing in the city he ordered two negroes, one by the name of Anderson and the other by the name of Glover, to be placed in irons for insubordination. The steamboat landed about 12 o'clock at night, and the Captain came up into the city, and, meeting some friends, joined in a convivial glass and then returned to the boat. Before retiring he called the porter of the boat and requested him to accompany him to the baggage room, where the negroes were in chains, saying that he proposed to release them. He got an old single-barreled Derringer pistol, however, and carried it with him on his mission. When he got in the room he discovered that Anderson was asleep. He aroused him with a kick and made him get up and then get down again, on his command, some three or four times. The last time that Anderson was getting up the pistol exploded and the ball went crashing through his brain. Glover, who was still in chains, became so frightened that he shrieked and jumped, broke his chain and ran up on the levee, and, meeting an officer, gave the aların. Captain Donaldson sent for an attorney that night and delivered himself up. The attorney was L. M. Shreve. The killing occurred about the middle of the week. The Grand Jury was to meet the follow- ing week. In the interim, the porter of the boat who had accompanied Cap- tain Donaldson to the baggage room, and Glover, the only two eye-witnesses to the killing, disappeared-left the country for Europe and remained away for over a year. Cap- tain Donaldson was indicted, but because of the inability to obtain witnesses, the case was nolle pross'd. After this disposition of tlie case the two witnesses returned, Glover going down into South Carolina, and the porter, Samuel Ray by name, returning to his old home near Cincinnati. Ray was arrested and brought back to St. Louis; Glover was traced to his retreat in South Carolina and brought back to the city, and Captain Donald- son was reindicted. After a lengthy and exciting trial, he was acquitted.
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Judge Lackland was greatly hampered in his defense of this case, as he always claimed, by erroneous advice given to his client not to surrender himself immediately after the shoot- ing with a statement upon the Captain's part that the pistol was accidentally discharged. Captain Donaldson's reputation for peace and quiet and gentlemanly conduct was so universal that his friends have always claimed that the killing of Anderson was an accident. Not- withstanding the verdict in this case, the effect of the prosecution was to guarantee greater protection to negroes in their rights on steamboats on our Western waters.
Judge Primm, besides being a good lawyer, an eloquent advocate, a good classical scholar and able Judge, was withal a very agreeable companion and fond of story and anec- dote. There was a strong vein of humor in him which sometimes was made manifest in court. On one occasion there was a newly elected and aspiring young assistant Circuit Attorney helping in the prosecution of a homicide case. He was questioning the Coroner, a physician who had examined the wounds on the deceased. All at once he propounded the following startling question: "Now, doctor, you say you held the post mortem exam- ination on the body of this man. Will you please state to the jury whether you held that post mortem before or after he was dead ? " As a quiet laugh went around the bar, Judge Primm, with great dignity, leaned over his desk and said: "Mr. Prosecuting Attorney, I hardly think it necessary to press that question. I am convinced the attorney for the defense will admit that the post mortem examination occurred after the man was dead."
The Judge was of a very sympathetic nature and always dealt leniently with boys who were brought before him to answer petty accusations. One day, during my term of Circuit Attorney, a case was called by a party charged with petit larceny. The defendant was brought forward and turned out to be a boy that looked not more than twelve years of age. He was quite a bright looking lad, and by his conduct and bearing soon aroused the inter- est of the Judge. In those days cases of this kind were tried in St. Louis in the presence of the Court and its officers, the jury, witnesses and the parties immediately interested. The public were excluded from the court room. In other words, there was a private trial liad out of consideration for the feelings of all parties, and in case of conviction the child was sent to the House of Refuge. The jury were empaneled and duly sworn. The facts as related by the prosecuting witness were about as follows: He kept a sinall retail dry goods and clothing store on Franklin Avenue. His name showed him to be Hebrew and quite anxious to recover the value of the lost property. In some way the property, consist- ing of a bunch of woolen gloves, had been inislaid, but they were not really necessary to the trial, as the policeman at the time of the arrest found the property in the boy's posses- sion and took him back to the store where the owner had identified them. It seems that the boy liad been induced by a couple of older ones, stationed at a safe distance, to grab the bundle of gloves from a stand in front of the store and run away with them. He had done so and when seen and pursued had virtually run into the arms of the policeman. The anxious, frightened look of the little fellow as these facts came out were very noticeable and his small figure, fair face and genteel appearance aroused the sympathy of those present, and especially of the Judge. I could see this by the character of two or three questions he propounded to the policeman, who I had put on the stand first. The value of the articles charged in the indictment was, I think, two dollars. As soon as the witness left the stand the Judge beckoned me to him. As I walked up and stood on the steps leading to his seat, I could see a merry twinkle in his eye. "Mr. Circuit Attorney," said he, "see what is the lowest amount the prosecuting witness will take for his property and let's you and I com-
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pound this misdemeanor by you paying half and I the other half." It is useless to add that the boy soon thereafter walked out in freedom.
Major Wright appeared in several cases before Judge Primm after the war was ended, and though still comparatively vigorous, he had lost much of his old fire. The wonderful changes occurring during that exciting period and in his absence seemed to greatly depress him. He only remained in St. Louis a short time and then located among relations in Virginia, where he died. A favorite theme of discussion with Major Wright in a criminal trial, when appropriate to the facts, was that of identification. His contention was that no man should be convicted on the testimony of one witness, where the accused was a stranger and seen but once and for a short time. He fortified his position by a number of cases of mistaken identity taken from the books, together with a number from his long and varied experience at the bar.
In some respects his position was correct, but I could not entirely agree with him. As a general thing, I believe, unless under the most favorable circumstances, intelligent inen are slow to be positive about the identification of persons accused of crime. So much de- pends on the weakness or strength of the impressions made by the event producing them. Therein the nature of the event and the character of the individual govern. If the mind be aroused by a high state of excitement or emotion, and just at that time the impression is made by the association of a person with the exciting cause, the face seen under such circumstances is easily identified and rarely forgotten. Especially is this the case if the emotion be that of fear. The light of a flash of lightning enabled a lady, on her passage home from India, to see distinctly the features of a man who was robbing her trunk in the cabin of a vessel on a very dark night; and another like instance is given where, by the flash of a pistol or gun, sufficient light was momentarily afforded to enable not only an assailant to be recognized, but likewise the color and appearance of his horse.
In this connection and demonstrative of the power of the emotion of fear in enabling identification, I remember the recital of a case that occurred way back in the 'forties. I mentioned it incidentally once before in this article.
It was one of the early noted inurder cases of the city. Major Floyd was an United States officer stationed here and lived somewhere in the neighborhood of where the Fair Grounds is now- perhaps not that far out, but in that direction. He was murdered at night and robbed of quite a considerable sum. My recollection is that he was acting pay- master of the army. The murder was committed by five mnen, and at the time of its execu- tion, Mrs. Floyd was held in terror by threat of death by one of the actors. She was almost paralyzed with fear. During the time she caught but a glimpse of the assailant. The parties were tried separately. I have forgotten the name of this one whose fate depended almost entirely upon Mrs. Floyd's capacity to identify him. Blennerhassett was defending him. Mrs. Floyd was evidently a very conscientious lady. She was also intelligent and realized the awful responsibility of her position as a witness. The examination on the part of the State could draw nothing more from her than that she thought the prisoner at the bar was the man who stood over lier on the fatal night. He looked like him-had his general appearance, etc. When pressed to swear positively to his identity, she hesitated and would go no further than her belief. Thereupon, she was put to the cross-examination, and the result shows what damage may lurk in cross-examination.
Blennerhassett pressed her on the point of identity. "You cannot, Madam, swear positively that this is the man who stood over you that night, can you ? "
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"I hardly feel that I can," was the response.
"Look at him now; see his features. Prisoner, stand up before Mrs. Floyd."
The prisoner advanced toward her. He had no more than reached to within a few feet of her than the witness gave a shriek and cried out, "It is he," and fell in a faint.
As soon as she recovered she swore positively to his identity, and could not be shaken from her position. His movement toward her and the look from his eye reproduced the mind condition of that night, as a flash of lightning revealed the identity of the man.
But that there have been many errors committed in the identification of parties accused of crime is unquestioned. Many innocent persons have suffered by such errors. It is sur- prising to read the conflicting testimony in the Tichborne case, and there are many yet who think the real claimant was defrauded of his rights by the verdict rendered in that trial. Then there was the Newby case. How the jury could reach a conclusion of the guilt of the accused beyond a reasonable doubt when there was so large a number of witnesses swearing to the identity of Newby as the simon-pure Newby, I never could understand. A very noted mistake of this kind came under my own observation when defending Frank James at Gallatin.
The prosecution was endeavoring to corroborate Dick Liddle's testimony as to the presence in the neighborhood of the hold-up of Frank James, and they introduced a man by the name of Wheeler, I think it was, who swore that the day before the train robbery, he rode up to a blacksmith shop some iniles from Gallatin, and saw the defendant waiting for a horse that was being shod. He said it was a black horse, and after the blacksmith finished, the defendant mounted the horse and rode away. The witness was positive that it was defendant, Frank James. He said something to hin, but received no answer, though he did say something to the blacksmith about his horse or some other horse. On cross- examination, I could not shake him; he got stronger and stronger in assertions, and finally swore that under no circumstances could he be mistaken. The truth was that James never liad been there on the day mentioned; but the witness had seen and taken for Frank James a man who had been traveling through that part of the country for several years buying horses, and who on that date had his black horse shod, and spoke to the witness and the blacksmith. He was a slim, spare and light-haired man, who looked like James.
But, after all, the mnost remarkable case in my practice is the following :
In August, 1880, in the town of Eureka, Kan., the safe in the depot of the Santa Fe Railroad was broken open during the night, and quite a considerable sum of money carried away. For two days subsequent to the robbery a couple of strangers had been seen in the town and they had stopped at one of the hotels and registered. The principal one with whom we have to deal registered as "John Finnigan." The day following the robbery this "John Finnigan " was captured at a farin house of one Westbrook, several miles from Eureka. On searching him, several articles taken from the safe were found secreted on his person, and the evidence was conclusive that he had perpetrated the burglary, either alone or with another party. During his imprisonment at Eureka he was in the custody of the Sheriff as acting jailer, and his deputy. "Finnigan " was seen by a large number of cit- izens at the time of his preliminary examination, and was attended by a physician of the town, who lanced an abscess on his groin during the time of his incarceration. On the 12th day of October, the same year, he escaped from jail in company with two other prisoners, and disappeared. In Angust, 1883, three years after the burglary, John Finnigan, a former citizen of St. Louis, and then living in Dallas, Tex., was identified by a traveling salesman
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