USA > Texas > Governors who have been, and other public men of Texas > Part 21
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When the facts had been presented by me, and counsel for ap- pellee began his reply, Judge Stephens in his slow and somewhat drawling tone said, "I am an unworthy member of the Methodist Church, and in the discipline of that Church it is said in effect that to buy what you have no reasonable expectation of paying for ain't honest." Counsel for appellee did not recover from the force of that remark, and I secured reversal and rendition, and got my money.
The retirement of Judge Stephens from judicial service a few
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years ago was a distinct loss to the bench of Texas. He had de- monstrated legal and judicial ability of the highest order.
The only time I recall appearing before the San Antonio Court Chief Justice James and Associate Justices Fly and Neill com- posed the court. Justice Neill was very deaf, and used a long ear trumpet, leaned far over towards the table behind which counsel stood when addressing the court, and his trumpet extended still further out.
I was engaged in a trial before the jury on a lower floor of the Court House, and announced I would consume only fifteen minutes of the court's time, and I kept my promise, and secured a reversal of the judgment.
Both those able lawyers and most efficient judges, John H. James and H. H. Neill, have passed away, and of the original court, Justice Fly (now Chief Justice) alone remains. He has for 28 years adorned the bench, and made a record as judge of which he has the right to be proud.
Many of the judges of the courts of Civil Appeals who by rea- son of resignation or by death, or by failure to be re-elected are no longer a part of the courts, I did not know, and a number of them now on the bench in portions of the State in which I have never lived, and have but little acquaintance, I have never seen.
Justice H. Clay Pleasants who defeated me for the nomination in 1892 served something less than seven years before his death, but left behind him a record of most valuable service.
Gov. Sayers very wisely appointed his son, Robert A. Pleas- ants, successor, and he for more than 21 years, much of the time as Chief Justice, has performed the duties of the exalted and ex- acting trust with a high degree of efficiency.
As I recall Hon. W. M. Key, Presiding Judge of the Third Court of Civil Appeals, Hon. W. S. Fly, Presiding Judge of the Fourth Court, and Hon. Anson Rainey, Presiding Judge of the Fifth Court, are now the oldest judges of the Civil Appeals Court in point of service.
The bar is indebted to all of them for many very instructive and helpful opinions.
If I am not mistaken all of them have passed the quarter cen- tury mark of service. Justices Rainey and Fly were, I believe, appointed by Gov. Hogg. Judge Rainey was both Senator and Judge in the Ellis County District, but he married an East Texas lady, and if East Texas gets into the family, and the head of it goes out after an office, he generally gets it.
Genealogical research has revealed that East Texas people are descendants of the tribe of Eli, for they "get there".
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CHAPTER XXXI.
THE COMMISSION OF APPEALS.
In writing of the Commission of Appeals I do so as if I had no connection with that tribunal, except insofar as such connec- tion as I have enables me to write advisedly, and mean to be un- derstood as referring only to the other members of that judicial body.
The bar often feels that disposition of the business placed in the hands of the Commission is very slow, and that cases might be decided much faster.
There is no doubt that such is the fact, if speed be deemed more important than accuracy. To decide the questions which are contained in the records that come before the Supreme Court, and before the Commission rapidly, and at the same time with that accuracy which is essential to give them any value as prece- dents, is impossible.
If the record is to be skimmed over, and the work slurred over, it were better that no decision at all be made. If the bar knew the size of some of the records they would be more patient. Every case has gone through the District Court and the Court of Civil Appeals with a consequent constant accumulation of papers.
The records not infrequently contain a hundred thousand words -a number greater than is contained in an ordinary novel- often a statement of facts is equally as long or longer, to which is added briefs, exceeding in some instances 200 pages, which are followed by typewritten arguments, and supplemental ar- guments, and not infrequently the authorities cited are more than a hundred, and sometimes more than 200.
I recall a case, the record of which was assigned to me, in which the application for writ of error contained over 80 pages of typewritten matter, and which was followed by a typewritten argument nearly as long, or longer, and those papers had been preceded by a printed brief (?) of 160 pages, on paper an inch or two longer than the usual brief is printed on, and there were more than 40 assignments of error and authorities in proportion.
Any lawyer with any considerable experience will appreciate the time and labor required to analyze the contents of such a mass of papers and extract the wheat from the inevitable chaff. When that had been done in the case referred to, the opinion did not exceed a column in length. I know that the judges I am associated with examine every record, and every question, with scrupulous, painstaking care. If the question is one of unusual difficulty, and more than ordinary public interest, both sections of the court consult together.
Within the recent past five cases had been assigned, two to one section and three to the other, all involving the same difficult
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question. A writ of error had of course been granted in every case, as the Courts of Civil Appeals had differed upon the ques- tion. The entire Commission consulted upon the question, and it was debated from every angle.
Necessarily the Supreme Court handles the cases before they reach the Commission, and nothing is surer than that it examines with most intelligent and scrupulous care the work of the Com- mission, and when to that work is added the work of passing on applications for writs of error, and the decision of cases reserved for action directly at its hands, more speedy disposition of cases is impossible.
From nine Courts of Civil Appeals new records are being sent to the Supreme Court every day, and no three men, or no nine men on earth, with a proper conception of the responsibility resting upon them, and who desire to arrive at a correct conclu- sion could do more than is being done.
If there was no other reason for extreme care, the courtesy and respect due the Courts of Civil Appeals would make it an im- perative duty to review their work with open minds and with painstaking deliberation. To do less would be a failure to do full duty on the part of the Supreme Court and the Commission. Of course when a single brief cites a hundred or more authorities, the court does not attempt to examine them all, and the citation of such a number is inexcusable, as is indeed the citation of more than a few well considered and recognized authorities under each assignment of error. On this point I am of course express- ing only my personal views, as none of my associates on the bench have seen or know what I have written.
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CHAPTER XXXII.
ALEXANDER WATKINS TERRELL.
Whenever the judiciary of Texas is mentioned the name of Alexander Watkins Terrell immediately occurs to everyone, for while he was never upon the Supreme Bench, and so far as I have ever heard, never aspired to the position, he was for many years reporter of its decisions.
I heard the late Wm. Pitt Ballanger say that in the course of an argument he was making before the Supreme Court of the United States on one occasion he was asked from what authority he was reading or quoting. He replied, "from a Texas Report by Judge A. W. Terrell, who as a reporter has no superior in the United States".
No higher compliment can be paid his successor, the present, most efficent reporter, than to say he has maintained the, if I may coin a word, "Terrellean" standard.
Judge Terrell went upon the bench in the Austin District when a very young man, I believe when he was under thirty years of age, and filled the position with a very high order of ability.
He was a wonderful conversationalist. He had command of faultless English, and framed with ease beautifully flowing sen- tences. He was equally at home in the law in civil and criminal cases, and Texas never had a more efficient legislator. He was, too, a cultured scholar, and a delightful orator.
He ran easily the whole gamut of intellectual achievement. His address upon the occasion of the removal of the remains of Stephen F. Austin to Austin is a most polished, eloquent, and in- structive example of memorial oratory.
He was once entertaining a distinguished bishop of the Episco- pal Church and me, with some most interesting accounts of his experiences in Turkey to which country he was for four years minister. He said, "Bishop, they have trouble over there, be- cause when the fanaticism of the Armenians, who have been Christians for 2,000 years, and Mohammedan fanaticism clash, there is bound to be, there is-er-well, there's h-1 to pay. I beg your pardon Bishop, but no other term will express what I mean." The Bishop seemed to think that Judge Terrell was not wholly infelicitous in stating the situation.
The Judge had the commendable ambition to go to the Senate of the United States, and very reasonably desired to keep in fa- vor with the large German vote in his district.
He made a speech one day at some festive gathering in Austin, and next day he met Judge James E. Shepard, an old friend, who, as Hamlet said of Yorick, "was a fellow of infinite jest and most excellent fancy." He said, "Terrell, your political cake's all
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dough". "Why?" said the Judge in alarm. "Why yesterday in your speech you called the Germans 'blatherskites'." The Judge protested he did nothing of the kind. Judge Shepard said, "do you read German?" The judge said he did not. "Then" said Judge Shepard, "I will translate it for you. There is the word 'blumengarten,' that means blatherskites."
Judge Terrell took the paper and went at once to the office of publication and demanded an explanation. He was informed that he had been made the victim of jest-that the word meant "flower garden," or something of the kind.
He was immensely relieved. The jest was made richer by the fact that Judge Shepard knew no more about reading German than did Judge Terrell, but he enjoyed the joke to the latest day of his life. I have heard him tell it.
Judge Reagan and Judge Terrell were originally and for many years opposed to prohibition as a governmental policy. That they were conscientious and rested their objection on what they conceived to be fundamental grounds there is no doubt. That I wholly differed from them never led me to question their sin- cerety. Subsequent events of such nature as that to set them forth might be deemed an infringement of the proprieties, caused both men to change their views.
I met Judge Terrell on one occasion on the street in Austin and the name of a prominent Texas lawyer whom he greatly ad- mired was mentioned, and he said to me, "Norman, when I see such a man as he was who has just been spoken of, not only fig- uratively, but literally in the gutter, if it were not that the policy of prohibition is so opposed to my conception of democratic principles and the limits of governmental authority, I'll swear I would take the stump against the damnable liquor traffic."
In their later years both he and Judge Reagan did take the stump against it. Both were sober men, but they struck in de- fense of others.
In the course of a speech in favor of prohibition on one occasion Judge Terrell said, "The thorn which has pierced my soul was borne by the tree I nurtured."
The reason for his action can be safely inferred from that im- pressive metaphor.
He was born and reared in, or near, Columbia, Missouri, and told me once this most interesting story. There came to Colum- bia a traveling theatrical company playing a Shakespearean repertoire, among other plays, Othello.
The curtain was ready to rise one night, but the actor who took the role of Othello was not on hand. He was a large, black haired, black eyed, handsome man of great dramatic ability by the name of Parsons. A hurried search was set on foot, and one of the searching party happened to pass a Methodist Church in
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which a revival was being held. In some way he happened to learn that Mr. Parsons was in the Church. The searcher for the truant tragedian went to the door and asked an usher to tell Mr. Parsons to come out; that the theatre was full, and the curtain ready to go up. The message was delivered, whereupon Mr. Parsons arose, and in the very tones, and with the very gesture he had often used on the stage, said, "Othello's occupation's gone," and sat down. He never entered a theatre again, but joined the Church and C. B. Parsons became one of the greatest preachers in all the ranks of Southern Methodism.
It has been said that "the mighty gates of circumstance often turn on smallest hinge", and the results which flowed from that incident illustrate how forcefully the incidents and events in one life may affect the lives and destinies of others.
When C. B. Parsons became a minister he settled in Kentucky. Some reader of this may recall that in 1876-77 the great demo- cratic editor, Henry Watterson, for many years the most influ- ential private citizen of the whole South, if not of the nation, served six months of an unexpired term in Congress. He served out the term of Hon. Edward Young Parsons, a brilliant young democrat of Louisville, who died; and I have been informed the deceased Congressman was a son of C. B. Parsons, the great Methodist preacher.
It so happened that the currents of human destiny which had their source in an humble Methodist Church in Missouri, so flowed that they carried into Congress the son of the traveling "Othello", who was converted from an actor into a preacher, almost as suddenly as Saul of Tarsus was transformed on the Damascus road, from a persecutor of the saints into the ablest exponent and defender of the Christian faith the world has ever seen.
There have been many men in Texas who took seemingly deeper hold on the popular heart than did Alexander Watkins Terrell, but there has not been in her limits a more cultured, accomplished, and efficient man, or one socially more delightful and instructive.
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CHAPTER XXXIII. COURT OF CRIMINAL APPEALS.
The Court of Criminal Appeals was created by the Constitution which was framed in September 1875, and adopted by popular vote in February, 1876, at which time a full complement of State officials was elected. The Constitution went into effect in April, 1876.
The State Convention of the Democratic party was held in Gal- veston, in January, 1876, and the Hon. Malcolm D. Ector of Mar- shall, Hon. John P. White of Seguin, and Hon. Clarence M. Wink- ler of Corsicana were nominated as candidates for a seat on the bench of the new court, and were of course duly elected.
As has been said in a previous page, the spirit of the Con- federacy brooded over the deliberations of the convention, and no man whose record as a confederate soldier was not free from blemish had any chance of securing a nomination.
Gen. Ector had been a Brigadier General in the Southern Army and had lost a leg in one of the bloodiest battles fought in Ten- nessee, so he bore visible proof of his devotion to the Southern .cause. He was one of the district judges who was elected in 1866, and who were removed "as impediments to reconstruction" in 1867.
He was a gentleman of exalted personal character, and rendered most efficient service as an appellate judge.
Judge White had also rendered honorable service as a soldier, and had demonstrated a high order of ability as district judge.
Col. Winkler's character and services are dealt with on an- other page.
The work of the court over which Judge Ector presided proved that the convention and the people had chosen wisely.
The personnel of the court remained unbroken till Oct. 29, 1879, when Judge Ector died. Gov. Roberts appointed Hon. George Clark of Waco to succeed him, an appointment which was in every way most admirable.
The court as constituted after Judge Clark's appointment was called upon to pass upon the case of the State vs. Abe Roths- child, who had been convicted of the murder of a woman called "Diamond Bessie."
The case had aroused statewide interest, and the defendant having been represented by counsel who stood in the very front rank of the bar, the conviction was hailed as a great triumph of the law.
The conviction was reversed and it fell to the lot of Judge Clark to write the opinion. The reversal met with disapproval as widespread as was the approval given the conviction. While
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of course Judge Clark was responsible to no greater extent than were his colleagues for the conclusion reached and, the result of the appeal, yet the cry of "Give Us Barabbas" is nearly 2,000 years old, and the maddened populace always demands a victim, by whose sacrifice it seeks to appease its wrath.
The opinion is a masterpiece of logical and unanswerable rea- soning, couched in faultless English, and no honest and unbiased man, capable of passing upon such a question can read it today in Vol. 7, p. 519, of the Court of Criminal Appeals Reports, with- out reaching the conclusion that it correctly declares the law. Reading between the lines of the last paragraph, it is evident that Judge Clark had a premonition that the action of the court would meet popular disapproval. His language was:
"The appellant, stranger though he is, and guilty though he may be, has not had a fair and impartial trial, in that he was de- prived of the right of inquiry as to mode and manner of his pre- sentment, and was tried by a juror who had already prejudged his case."
These are the words of a brave and honest judge who sitting in exalted judicial position and dealing with the solemn issue of life or death for a citizen had the courage to hold aloft the constitution and the book of written law, and speak to the waves of popular passion which beat fiercely about the defendant, as the Master spake to the tumultuous waves of the Gallilean sea, saying: "Peace; be still". The emoluments of the office which he held offered no attraction to Judge Clark, but he could not afford to retire under the fire of popular disapproval, so he be- came a candidate for nomination before the convention which met in Dallas on August 10, 1880, but was defeated by Hon. James M. Hurt, whose reputation as a lawyer in the field of the crimi- nal law did not at that time extend beyond the southern boundary of North Texas, yet he proved to be a very able judge.
He possessed a mind of great logical power, and reasoned out of his decisions with luminous clearness.
He went upon the bench of the court before the election in 1880, Judge Clark having resigned October 1st, and Judge Hurt being the democratic nominee was appointed to the position, and by re-election in 1886 and 1892, he held the place until Dec. 31, 1898. He was a very democratic, amiable, approachable man, and was especially kind and considerate to young lawyers who appeared before the court.
It is said, with what measure of truth I do not know, that upon one occasion a young lawyer from some remote country district appeared before the court on behalf of the appellant. It was his first experience of the kind, and he became embarrassed by the questions put to him by Judge Hurt. The judge observing that fact said in his kind and fatherly tones, "My young friend, don't
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get flustrated. I don't mean to embarrass you by asking you questions. I mean to help you. Just go ahead and talk like you were talking to a Justice of the Peace down where you live." The young fellow promptly replied, "I can't do that, your honor, without running the risk of being fined for contempt of court, because if I were talking to a Justice of the Peace down where I live and he were to interrupt me with questions like you have done, I would tell him to shut his d-n mouth and not bother me." The reply "brought down" the court, and of the three, Judge Hurt's laughter was loudest.
Hon. Clarence M. Winkler died May 13, 1882, and Gov. Roberts appointed Hon. Sam A. Willson of Cherokee County as his suc- cessor. Judge Willson, like Judge Ector, was one of the victims of the iniquitous policy miscalled "reconstruction." He was a gallant confederate soldier in Hood's Brigade, and led his com- pany many a time and oft into the deadliest hail of battle. He was, too, a lawyer of marked ability and a citizen of exalted character, and was admired, honored and beloved.
In the first volume of Wharton on Criminal Evidence, page 491, in a note under the head of Res Gestae, will be found the language quoted below used with reference to the Court of Criminal Ap- peals of Texas, when it was composed of Judges White, Hurt and Willson: "This court is unquestionably the ablest criminal court in the United States."
Judge Willson resigned February 1, 1891, and was appointed reporter of the court February 6, 1891.
He held that position at the time of his death on January 24, 1892. The memorial tributes paid Judge Willson which are to be found in Vol. 30 of the Reports of the Court, deserve to be read by every layman, as well as every lawyer.
His son, Hon. Samuel Priest Willson, has ever since the creation of the Court of Civil Appeals for the 6th Supreme Judicial Dis- triet, the sessions of which are held at Texarkana, been the Chief Justice of that court. In that position he has demonstrated that the mantle of the father descended on worthy shoulders, and the names of both the father and the son have added luster to the judicial annals of Texas.
Gov. Hogg on February 5, 1891, appointed Hon. W. L. Davidson as successor to Judge Willson. Judge Davidson had filled for a number of years most acceptably the position of Assistant Attor- ney General, and his selection to succeed Judge Willson was most fortunate for the State.
He remained a member of the court for a few days less than 30 years. While the material was being gathered for this sketch of the court, the people of Texas were profoundly and distress- ingly shocked on the morning of January 25, 1921, to learn that he had been, in the twinkling of an eye, removed from the com-
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pany of his family and fellow men by the hand of death.
He had passed five years beyond the three score and ten years allotted as that span of life, beyond which "all is weakness and sorrow," but his intellectual powers were unabated and func- tioned in their pristine vigor, while his physical appearance would have led a stranger to believe that he was a score of years younger than he really was.
His death caused statewide sorrow and to the memory of no man who has ever died in Texas were greater honors shown. The funeral cortege moved from the University Methodist Church in Austin to the State Cemetery, and in addition to the religious services held in the Church, Hon. Nelson Phillips, Chief Justice of the Supreme Court, delivered a memorial address which will ever remain as a classic.
As a citizen, a soldier, a lawyer, a judge, and a man, Judge Davidson left behind him a stainless record. As a judge he was just, able, fearless, and was deaf to popular clamor. He was for 14 years presiding judge of the court, but on the 27th day of June, 1913, was removed from that position, an incident of which I shall have something to say on a later page.
Judge John P. White resigned as a member of the court on April 26, 1892, and Gov. Hogg appointed Hon. Eldred J. Simpkins of Corsicana as his successor. Judge Hurt was chosen as presiding judge May 4, 1892. Judge Simpkins was a cultured, scholarly man, and had been a most efficient State Senator, and was a lawyer of a high order of ability. He was elected to complete the unexpired term of Judge White in November, 1892, but was defeated for renomination by Hon. John N. Henderson of Brazos County, in 1894. Judge Henderson lost an arm on one of the battle fields of Virginia, where he bore himself most gallantly as a member of Hood's Texas Brigade. When it is said he be- longed to that famous command it is unnecessary to add that he went where the fighting was fiercest.
He had had the benefit of long experience both as district attorney and district judge, and in consequence was well fitted for a place on the bench of the Criminal Appeals Court.
He remained a member of the court until his death on Decem- ber 22, 1907.
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