USA > Texas > Governors who have been, and other public men of Texas > Part 22
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Judge Hurt was not a candidate for re-election in 1898, and Judge M. M. Brooks of Hunt County was nominated at Galveston, and was elected in the November election. Judge Hurt retired on the 31st day of December, 1898. After the election of Judge Henderson and Judge Brooks the court was composed of these two gentlemen and Judge Davidson. Gov. Campbell appointed Hon. W. F. Ramsey of Cleburne to succeed Judge Henderson. I have been told that Judge Ramsey said that when he was ap- pointed, he really knew very little about criminal law, but his
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opinions did not disclose the fact. They are marked by forceful reasoning, and a clear conception of fundamental principles, and often were couched in terms of eloquence. He resigned January 5, 1911, to take a place on the bench of the Supreme Court, in which position he added, if possible, to the reputation which he had won on the bench of the Court of Criminal Appeals. Hon. M. M. Brooks resigned January 1, 1910.
He rendered most efficient service as judge. He is a man of ability and courage, and his opinions were clear, pointed and strong. His retirement was a distinct loss to the bench. Gov. Campbell appointed Hon. Felix J. McCord of Longview as suc- cessor to Judge Brooks. Judge McCord was for a number of years judge of the Tyler district, in which position he demonstrated marked judicial ability. He was assistant attorney general at the time of his appointment to the bench, and when this is being written is an honored and influential member of the Thirty-seventh Legislature.
Hon. A. J. Harper of Limestone County qualified pursuant to election as a member of the court January 4, 1911, and Hon. A. C. Prendergast of MeLennan County qualified on January 9, 1911. The court was from that time until June 27, 1913, com- posed of Hon. W. L. Davidson, presiding judge, and Judges Pren- dergast and Morrow.
On the date last named Judge Prendergast qualified as pre- siding judge.
The removal of Judge Davidson from the position which he had so long honored was, it can be said, with entire truth, a sur- prise and shock to the bar and people.
The suggestion had never occurred to the popular mind that he would not continue in that position as long as he remained on the bench. The members of the court are vested with the power of choosing their own presiding officer. This being true, it is obvious that two of the court must agree that either the third member, or one of the two, shall be chosen. If the latter plan is adopted necessarily one man must vote for himself, and with the vote of the other of the two, the third man if he has been presiding judge is removed from the position.
The statute is an unfortunate one. There should be a Chief Justice of the Court of Criminal Appeals just as there is of the Supreme Court. If such was the case so unfortunate an incident as the removal of Judge Davidson could never occur.
The change was made, pursuant to power duly vested, but the possession of a right, or power, is one thing, while whether it shall be exercised and if so, how, is wholly another thing. Judge Davidson had filled the position of presiding judge with dignity and efficiency since the 2nd day of January, 1899, and had been a member of the court for more than 22 years, and was old enough
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to have been the father of either of his colleagues, and the public could see no reason why he should be displaced.
There are certain proprieties and amenities which while they are not creatures of statute, their observance nevertheless is ob- ligatory upon all men, but the impulse of obedience to and ob- servance of them must be inborn and instinctive. It is not, and cannot be a matter of education.
Violation of the obligation to observe them, invariably and evitably offends the popular sense of justice and propriety, and that was the effect which the removal of Judge Davidson had upon the minds of the people of Texas, and their disapproval found expression at the ballot box more than three years later, when one of the judges responsible for the change was defeated for re-election and his colleague did not offer for re-election.
There is in the minds of the mass of the people an inherent in- stinctive sense of propriety and justice. It may be said to be a natural impulse or emotion which cannot be defined, and which is defiant of analysis, but its existence is certain. If it be of- fended it wreaks upon the offender inevitable penalty.
Many readers of these pages will recall that in 1904 Gov. John- son of Minnesota was a candidate for re-election. He had been once, perhaps twice, before elected in a republican state. Mr. Roosevelt was a candidate for president and most likely if that had not been done which was done, as is hereinafter set forth, Gov. Johnson would have been defeated.
Some ardent republican, zealous for the success of the republi- can gubernatorial ticket, conceived the idea of digging up out of the records of a county poor house a certificate showing that the father of Governor Johnson had died an inmate of that in- stitution. The certificate was lithographed and copies in that form were scattered by millions over the state of Minnesota.
Governor Johnson had risen by sheer force of high personal character and great intellectual ability, from bitter poverty and deep obscurity, to the position of governor and had maintained always a stainless reputation and the employment of such means to compass his defeat stirred the people to deep indignation. Its effect was just the contrary of what was expected. The people gave expression to their resentment of such ghoulish and in- iquitously unjust action at the ballot box, and while Mr. Roose- velt carried Minnesota, by 70,000 majority, Gov. Johnson was re- elected by 30,000 majority, showing that the certificate which blazoned forth to the world a fact intended and calculated to un- justly harm a worthy citizen and faithful public official, cost the republican candidate 100,000 votes.
Judge Davidson became presiding judge again in 1917, and so remained until his death. Hon. W. C. Morrow of Hill County, a lawyer of demonstrated ability, who had as State Senator ren-
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dered most efficient service, qualified as successor to Judge Har- per on December 31, 1916, and Hon. O. S. Lattimore of Tarrant County was elected in 1918, and qualified January 1, 1919.
Judge Lattimore's fitness for the place was never questioned, and he has proven that his selection was in every way most felicitous.
Gov. Neff appointed Hon. F. L. Hawkins of Waxahachie to suc- ceed Judge Davidson, and the appointment met, so far as I have heard, unanimous approval. I have but the slightest acquaintance with Judge Hawkins, but Gov. Neff practiced before him in the Waxahachie district of which he had been judge for a number of years, and was therefore in a position to judge of his fitness for the appellate trial bench, and it may be safely assumed the Governor made no mistake in the appointment.
Since the last paragraph was written Judges Lattimore and Hawkins chose Judge Morrow as presiding judge, which action was obviously in accord with the requirements of propriety and justice.
It is a matter of pride and gratification to the bar of Texas that the opinions of the Court of Criminal Appeals of Texas are so often and so widely quoted, and in the northern and north- eastern states, where such radically erroneous and such disparag- ing opinions are entertained concerning Texas courts, it must have been a profound surprise to the bar to read the words of one of the greatest, if not the greatest of American writers on criminal law, that the Criminal Court of Appeals of Texas was, when composed of Judges Hurt, White and Willson, the ablest in the United States. Such a tribute has never before, so far as my reading has revealed to me, been paid any state court, civil or criminal, and it is one of which the bar and people of Texas should be very proud.
I have not intended in dealing with the matter of Judge David- son's removal, and so to speak, demotion, to give offense or do injustice to any man, but such an incident is a legitimate theme to be discussed. I can in no way better illustrate my personal views with reference to the course to be taken in such a situation than by setting forth my own action under similar conditions.
When on the night of November 22, 1919, Governor Hobby called me at my residence in Houston by 'phone and without the slightest previous intimation that he purposed so to do, ten- dered me a position on the Commission of Appeals, I did not know whether the position of presiding judge was one of ap- pointment by the Governor, or whether the selection rested with the court.
I had never read the law creating the Commission. I imme- diately wrote Judge Sonfield, the only member of the Commission with whom I was acquainted, and said to him that if the fact
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that I was to succeed Judge Montgomery, the presiding judge, gave me the right to demand that position, I hoped such course was not mandatory. That it appeared to me that justice and pro- priety required that one of the two gentlemen who had been col- leagues of Judge Montgomery should take the position, and that I would not take it, unless the law made it obligatory on me to do so. I was delighted to find that such was not the case, for I should have been most reluctant to have exercised the right.
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CHAPTER XXXIV.
THE TRAGEDY, THE PATHOS, AND THE HUMOR OF THE COURT ROOM.
The remainder of this humble volume may not be exactly ger- mane to my title theme.
There may be some who will think of it as a professor in a theological seminary thought about a trial sermon which an es- teemed friend of mine, now a clergyman in Houston, preached when he graduated from the theological seminary.
The old professor said, "Henry, I have but one comment to make on your sermon. If your text had had the smallpox your sermon never would have caught it."
It may be that there is no direct relevancy between what I have said already, and what I may say hereafter, but it will do no harm to set down and perpetuate either amusing or pathetic incidents, and perhaps some reader may be interested. Where the instances are stated of my own knowledge, I know them to be true, and where they are stated upon information of others, I believe them to be true.
The court room is supposed to be a place where all the pro- ceedings are conducted with great dignity and decorum, and such is usually the case, as it should be, but often fun and laughter relieve the stress and strain of the proceedings, and should not he sternly rebuked, because no offense is intended. Some of the most humorous, and some of the most pathetic incidents that have ever occurred, have occurred in court rooms.
It is a theatre where both comedies and tragedies are enacted, and joy and sorrow, hope and despair there often find expression. We weep in sorrow and weep for joy. The fountain of grief, and the fountain of gladness lie close together; and the tragic and the comic are often elements in the same judicial drama.
I suppose every judge can recall one or more cases, the inci- dents of which are more deeply impressed on his mind and memory than are those in other cases.
The memory of one case still abides with me. I had been reared in the same community with the defendant, and his relatives and my family were friends. He was charged with murder by poison. I had changed the venue twice on my own motion, and was re- warded for the last change by being hung in effigy in the town where the offense was alleged to have been committed. The indignity gave me no concern personally, but I had been reared in the town, and my aged mother lived there, or at least was there at the time, and it carried deep distress to her heart, as she was more to me than life itself. I would, had conditions made it necessary, have continued changing the venue until the case
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reached El Paso. I personally went with two sheriffs and guarded the prisoner for 115 miles, and put him in the jail of a county outside my own district.
My action aroused deep feeling against me, but I received a majority over two opponents in the election the next year.
I trust the narrative may be properly broken just here, to say that whenever it is necessary to call a host of opposing witnesses to determine whether a defendant can, or cannot, obtain a fair trial in any given county, that very fact proves in nine cases out of ten that he cannot; and the judge ought not to hear a single witness, but change the venue of his own motion. I could, per- haps, be properly termed a "crank" about fair trials.
I will, without money, and without price, defend any man who it appears to me deserves defense, if it appears that he is not going to get a fair trial in the court. Three times at least in the recent past I have interested myself in behalf of the pardon of prisoners when I had never seen, and from whom, or from no one for them, did I have any agreement for remuneration, de- pendent upon success, for I would not take such employment. I acted on behalf of justice and for no other reason. I did not believe they ought to have been convicted, and they were pardoned.
The counsel who had defended one of them asked me to read the testimony for, I believe he said, the defense. I said, "No, I will read it all," and I read and re-read it.
I had never seen the negro defendant in my life, but I wrote the Board of Pardons and the Governor that the conviction was an outrage on a hard-working, respectable negro, who owned his own home, yet had been sentenced to the penitentiary for 20 years for killing a half drunken deputy constable who unlawfully assaulted him. I told the authorities in my letter that I believed the judge, had he the case before him again, would give the negro a new trial.
The negro was pardoned. I never received, desired or expected a penny for what I did. I got a wronged citizen his liberty.
I return now to the case in hand.
An absolutely essential witness was the then Professor of Chem- istry in the University of Texas. At my own expense I wired an attachment for him. He was thoroughly qualified and a most cautious witness.
He would not say that he examined the stomach of a party of the name used in the examination, or that he received the stomach from the sheriff of a named county. He said, "I do not know. I received a stomach from the hands of a man who said he was the sheriff of the county you name, but I do not know whose stomach it was, nor do I know who brought it to me.
He then, with remarkable clearness and simplicity, and in lan-
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guage utterly free from professional nomenclature, or scientific terminology, explained how and by what process he analyzed the stomach, and how he knew that the stomach contained strychnine, and when the State turned him over to the defense there was no possible doubt that he had found strychnine as he said.
Somebody has said, "never dispute the right of way with a locomotive or take any chances with the hind parts of a mule." Josh Billings said, "Some folks keeps on borin' till they bore through and lose all the ile," and nowhere does that quaint philos- ophy find more frequent or distastrous confirmation than in the cross-examination of witnesses.
If I had been defending I should have let the witness severely alone. He was absolutely impartial, and was an educated scien- tific man, who knew, as few men I have ever seen did, all the secrets in the sphere of analytical chemistry, and every pass made at him on cross-examination proved to be a boomerang, and intensified the effect of his testimony.
It is folly to venture out against any intelligent, honest witness, who is telling the unvarnished truth.
Counsel for defendant may have doubted that the chemist was doing so, or have doubted whether he could produce visible evi- dence of the results of the analysis, so the eldest man of the several counsel, who has now been dead for a number of years, said, "Did you find in that stomach strychnine in visible, palpable form?" or words to that effect.
A faint smile lighted the face of the witness as he reached into the right hand lower pocket of his vest, and drew out two watch crystals with the concave sides glued together, and placing them between the thumb and forefinger of his left hand, turned them like a wheel, holding them up in plain view of the court, counsel, and jury, and as he was doing so, said to the interrogating coun- sel, "If you will kindly keep your eye on this you will see a powder falling from side to side. That powder is strychnine and came out of the stomach analyzed by me."
The counsel returned to the attack, "How do you know that the powder between those two crystals is strychnine?" The witness said, "I reduced some of it to a liquid form, and injected the liquid into the hind leg of a frog, and the frog died in 20 minutes with all the symptoms of strychnine poisoning."
"I also burnt the powder in conjunction with (I think he said, but I may be wholly mistaken) permanganate of potash, and the result was a blue flame, and strychnine is the only substance known to chemical science that will produce a blue flame when so burnt."
Counsel, undismayed, again renewed the attack, which seemed to me to be a most impolitic thing to do. He said with great
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earnestness and deliberation, "Do-you-sir-mean-to-tell- that-jury-that-you-found-enough- strychnine -in-that- stomach-to-kill-a-man?"
The witness seemed surprised at the question, and amused at the way in which it was put, as the evident implication was that the counsel did not believe he would commit himself that far, but the witness turned full front to the jury, and in a way that he seemed to intend as an imitation of the manner of speech of the counsel, said, "Yes-I-mean -to-tell-this-jury-that-I-found- enough-strychnine-in - that - stomach - to - have-killed -- twenty-men."
With what seemed to me far more of courage, than of tact or prudence, the counsel for the defendant put yet another ques- tion, "Do-you-sir-tell-that-jury-under-your-oath-as- a-witness-that-you-found-in-that-stomach-strychnine- sufficient-to-destroy-human-life- beyond -a-reasonable- doubt ?"
The witness, still sitting full front to the jury, said: "Yes, I- tell-this-jury-that-I-found-in-the-stomach-I-analyzed -strychnine-sufficient-to-destroy- human -life,-not-only -beyond-a-reasonable-doubt,-but-beyond -the-possibili- ty-of-a-doubt."
That was the last nail in the structure of testimony. The verdict in three and one-half hours from one of the best juries I ever saw.empanelled was guilty with the death penalty, and the pen- alty was carried out.
I have often thought I should like to see some of the criminal lawyers who seem to find delight in trying to confuse expert witnesses, try their hands on that Professor of Chemistry. I have seen lawyers, who made a specialty of criminal practice, who had in all their lives learned less about the principles of law, than that modest professor knew in an hour about the principles of the profound science of chemistry .
In the course of that trial I saw an exhibition on the part of one of the venire of moral courage, ingrained integrity, and sense of honor which deserves to be perpetuated.
He asked me a few days before the trial about the case, saying he had been summoned on the venire and hoped he would not be accepted. I, of course, told him I could not talk with him about the case.
When he took the stand and was called upon to answer the questions which, if answered in the affirmative would have re- lieved him from the duty he so sincerely desired to avoid, he was in evident mental distress, but slowly and in a manner that seemed plainly to say, "Oh, if I could only answer yes!" he slowly and hesitatingly answered, "No."
He knew relatives of the defendant who were worthy people,
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and he and the leading counsel for the defense were knit in such bonds of attachment as bound David to Jonathan, and Damon to Pythias, yet he served, and I have stated the result.
He is dead now, but his memory as an honest, brave man, abides still as the savor of a sweet incense in the community in which he was born, and reared, and died.
I have known judges who would have fined him for language used on a later occasion. He was asked the question, "What do you say to the allegation of plaintiff that you aided the de- fendant in defrauding him?" "I say it is a d-d lie," was the instantaneous response, and immediately he turned to me, and bowed, and said, "I beg your pardon, your honor."
I did not fine or reprimand him, but simply said, "Proceed with your testimony."
I knew his words sprang from the first impulse of an honest man, to refute a charge against his integrity, which no man could justly question, and he had no thought of showing disrespect to the court.
JOHN R. KENNARD.
One of my predecessors on the bench in the Twelfth District was Hon. John R. Kennard of Grimes County. The hand of the Divine never fashioned a braver or more honest man than John R. Kennard.
He was a fighting Confederate for four years, and it was his war record which enabled him to defeat for District Judge, Hon. George Goldthwaite of Houston in 1866.
He was no such lawyer, by any means, as was Judge Gold- thwaite, who had very few superiors as a lawyer, but Judge Kennard had a war record, better in the opinion of men of those days, than was that of his opponent.
He went out of office with nineteen other District Judges as "impediments of reconstruction" in 1867.
He was elected District Judge in 1880, when the district took in Houston County. He succeeded Hon. William D. Wood of Leon County, who was a most capable judge, and who had been a most efficient State Senator, and who died in San Marcos in com- paratively recent years, leaving a handsome estate.
John R. Kennard was sincerity and childish simplicity personi- fied. He was genuinely pious, and carried a Bible always in his inside coat pocket, but was not long-faced or Puritanical, yet lived up to his profession.
In many cases, when sentencing a defendant, he preceded the final pronouncement with a kind expression of regret and sym- pathy, and of hope that the defendant would be well treated, and never failed to assure him that the court had tried to do him justice. The last assurance, he gave a negro defendant on one occasion, and the negro said, "I bleeve dat Jedge in mah heart,
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I sho do bleeves you makes a pass at jestis if you don't hit it."
The County Judge of one of the counties in his district killed a man and, rather strange to say (having in mind the recollection of the sentiment and conditions prevailing in the county at that time), was convicted and given five years in the penitentiary. The old Judge began with his usual formula in passing sentence, but had not proceeded very far before he was interrupted by the defendant, who said, "See here, Judge, I came here to be sen- tenced to the penitentiary, not to hear any damn moral lecture." I discovered a year or two later that the defendant had a good deal of quiet humor and a surprising fund of sensible philosophy. I was passing through the penitentiary one day and found him attending to the grist mill. I had known him a long time, so I greeted him kindly, and said to him, "Judge, I hope you are getting along well." A faint, quizzical smile lighted his face for a moment, and he said, "To say the least, I've got a steady job."
His manner of cutting off the kindly admonition of the Judge reminded me of an instance which occurred in an East Texas court.
The Judge, whom I knew, was called upon to sentence a de- fendant to death. The judge was also a preacher, and he in- vested the situation with all possible solemnity. The defense put up by the convicted man was, as I recall, insanity, and notwith- standing the verdict, there was much doubt of his mental respon- sibility. The Judge, in most solenin tones, pronounced the dread sentence of the law, concluding with the words, "Hanged by the neck until you are dead-dead-dead!" He had scarcely uttered the last "dead" when the prisoner said, "And you go to hell- hell-hell!"
Judge Kennard was absolutely a matter of fact man, and unless there was some human element in a case which appealed to his easily-aroused but sincere emotions, he paid no attention to flights of oratory; and tropes, and similes, and metaphors, and quotations, were wasted on him.
A worthy member of the bar, who yet practices in the Twelfth District, was very prone to quote Scripture in his speechies, whether made to the jury or to the court. He was trying a case before Judge Kennard without a jury, and made a very earnest closing appeal, the peroration of which was, "And now we ask your Honor to render unto Caesar the things that are Caesar's, and unto God the things that are God's." Before the counsel could even take his seat, the old Judge said: "That's all right, but what am I going to do with these two men here that are fighting over a sawmill?" The Scripture quotation was lost on him.
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