USA > Texas > Governors who have been, and other public men of Texas > Part 23
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I never liked the criminal practice and rarely appeared on that side of the docket, but on one occasion I applied to the old Judge
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for bail for a defendant, charged with murder, who had hunted the deceased for six months, and killed him on sight. His reasons for doing so were that the deceased had eloped with his daugh- ter, and betrayed here into a mock marriage; though he was already a married man.
I argued that under such circumstances there could be no such a thing as a premeditated design, formed in a mind, capable of cool reflection. That no man could ever, after making such a discovery, have a calm mind, but the emotions raised on the first moment of discovery of the action of the deceased, would, like a falling cataract, gain increased impetus every moment, and the further the defendant traveled and the longer he searched, the more impossible would it be for him to contemplate anything coolly.
When I had concluded my opening address to the court, the court recessed until morning, when the District Attorney was to be heard. When he came in next morning, he said, "May it please your Honor, I have thought over the matter of bail in this case, and influenced, I will say, to some extent by the speech of counsel for defendant, have concluded to withdraw my objection, and agree to bail."
As he spoke I noticed that the old Judge's face was flushing, and that he was opening and closing his eyes rapidly, and the District Attorney had hardly uttered his last word, when the Judge said, "It would have made no difference whether you objected or not, I was going to give the defendant bail anyway," and the tears he made no effort to restrain, ran down his cheeks. His brave but tender old heart went out in sympathy to the stricken father, but when the case came to trial before the jury, he held the scales of the law poised on absolutely even beam.
He said, "What amount of bail do you suggest?" I said, "It makes no difference to us whether it is one thousand, or a hundred thousand." He said, "I will make it ten thousand."
There occurred then one of those scenes which proves that the hearts of all men who love honor, and cherish family pride, and are ready to defend both against every transgressor, are attuned to the same high note.
The defendant was an utter stranger, whose home was in a distant county, but when I turned to the crowd outside the bar and called for sureties, men began to step forward with right hands in the air to enter into a recognizance for the stranger. They came so thick, and fast, that the generous offer of some had to be refused. The tears of the Judge and the ready sympathy of the bystanders, made a touchingly pathetic scene.
There was, however, developed later, a deeper pathos as re- lated to the defendant. On the first trial there proved to be three jurors who were incapable of appreciating the lofty impulses, and
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motives, which prompted the defendant to rescue his daughter, and avenge the honor of his family, and they forced a dis- agreement of the jury, to the astonishment of the whole com- munity.
After the jury had been discharged the defendant talked to me. He was about fifty years old, and was a stalwart, manly, honest, true man. He had the frankest, dark brown eyes I ever saw. He was universally respected, and could have given bond for a mil- lion dollars if it had been required.
He said, "If that man had stolen my horses, I could have bought more horses. If he had burnt my barns, I could have built more barns. Had he burnt my home, I could have built another one. I own all the land lying around me between the two rivers near which I live, and I could have replaced any property that he might have destroyed; but he stole my only daughter, and her mother is twenty years older than she was the night my daughter left our home, and her health is broken down by sorrow, and for the first time a blot has been put upon my family name, though we have lived here from pioneer days, yet three men in this county seem to think I ought to go to prison for doing what I did. It seems to me to be mighty hard." When he finished tears had welled up into his big brown eyes, and I suspect tears dimmed my eyes also.
He passed over to join the silent majority some years ago, and I can repeat here with propriety what he told me. He said: "When I found that man I said (calling him by his full name), 'you have betrayed my hospitality and my friendship, you have broken the heart of my wife, you have stolen and disgraced my child and brought dishonor on my family name, and by G -- d I am going to kill you.'" He stopped there-the rest I knew.
I heard after the last trial had ended, that a big, stalwart farmer, with whom I had gone to school in a log cabin, got upon a chair in the jury room as soon as the jury had entered it, and said, "Every man who wants to clear the defendant say 'Aye,'" and there was a unanimous chorus of ayes, and the broken-hearted father was freed, as he ought to have been.
I wrote in that case the only speech I ever wrote to be deliv- ered before a jury, before or since. I, of course, did not read it to the jury and I argued in perfect good faith, to which faith I still hold, that upon principle, and by analogy the defendant was justified under the statutes of Texas. That he was, is as sus- ceptible of demonstration as is a problem in primary mathe- matics.
I recall an incident which occurred in Judge Kennard's court, in which humor and pathos were strangely blended. The District Attorney moved to dismiss a criminal case on the ground of the death of the defendant, a negro. The old Judge said, "How do
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you know that the defendant is dead?" The District Attorney said that he did not know it personally, but was advised that it was so. Whereupon, the old Judge said, "You had better be certain, because they asked 'me down in Grimes County to set aside the forfeiture on the bond of a negro called Simon Fairfax because they said he was dead, and they produced a lot of what they said was a hair cut from his head, but in a few days the sheriff had Simon in jail, and the defendant in this case may not be dead." There was a prominent lawyer of the district walking to and fro in front of the Judge's stand cogitating on a case soon to be called for trial. He heard the statement of the court and stopped and said to the Judge, "That defendant won't come back, I wish to God he could," and then resumed his walk to and fro.
The pathos of the incident arose from the fact that the defend- ant had invaded the premises of the lawyer, and had frightened his family, and perhaps threatened them with bodily injury, and the lawyer had killed him. He, therefore, knew there was no danger in dismissing the case.
I chanced to be standing by the Judge's stand in the court house at Madisonville one day, when a tall, strapping man, evidently considerably under the influence of liquor, approached the Judge's stand.
The Judge was trying a divorce case, a character of case which he had a strange and amusing penchant for trying. The man said, "I want to see you." The Judge said, "Just take a seat, I will be through in a few minutes." It took longer to get through with the case than the Judge had expected, and longer than the visitor was willing to wait, and he again approached the stand and said, "I want to see you, Judge." The Judge said, "Well, just be patient, I can't stop this case, I will be glad to see you as soon as it is over," and he again fixed his mind on the trial.
The law of physics, that two physical objects, cannot occupy the same place at the same time applied to his mind. He could not think of two things at once. He had as absolutely forgotten that the man had ever spoken to him as if he had never seen him, and when the case was ended he started to leave the court house. The man who had waited for him had just enough liquor in him to be mean, and walked up to the Judge and said, "You insulted me a while ago." The Judge said, "Are you the man that spoke to me, if so, what can I do for you?" The fellow said, "I have come to call you to account." He did not know the man he was speaking to. He would have been no surer of an explosion if he had dropped a coal of fire into a powder magazine. In an instant the old Judge said, "All right, if you want to call me to account, I am here. No man ever called John R. Kennard to account that didn't get an answer. I'll maul you till you can't see, and do it in a minute." The old man was about six feet three
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in height, and weighed about two hundred and forty pounds, and was afraid of nothing in human shape. The very sensitive would-be fighter saw he had stirred up the wrong man and like the witches in the play of "Macbeth," seemed to have van- ished into thin air. The old Judge was a candidate for re- election in 1884 but died seven days before election day. He was a true man to the last, and told his friends to get out another Democrat as a candidate and elect him; and they did.
I believe he has realized the truth of the assurance of that Master in whom he trusted with a childlike faith, that "the pure in heart shall see God."
WILLIAM H. BURGESS.
Shortly after the case referred to in the previous chapter had been tried the last time, I chanced to meet in the Senate Chamber of the Temporary Capitol that bright, witty, eloquent, chivalrous man, William H. Burgess, of Seguin, who was for a number of years a partner of Hon. John Ireland.
He was the author of the famous epigram, "You can no more run the Democratic Party without whisky, than you can run the Baptist church without water."
"Bill"Burgess, as his legion of friends called him, was a gallant soldier in Hood's Texas Brigade. He died a number of years ago, but his three sons, William H. Burgess, Richard F. Burgess and Russell Burgess, have proved themselves worthy scions of their knightly ancestry; a lineage of gentlemen and ladies of the "old regime" of the South, which furnished the world the highest types of Christian civilization ever known in any age or any land. It was not an aristocracy of money, but of blood, and worth, and virtue, and the sons of "Bill" Burgess are gentle- men by birth and breeding. I chanced to speak to Major Burgess about the case which had so much interested me. He said, "That was a remarkably interesting case, but it hardly equals the one which came before the grand jury in my district when I was District Attorney." My recollection is that he was elected District Attorney in 1876. I was curious to know of any case that could possibly be more tragic or more pathetic than was the one I had referred to, and he told me the following story: I do not, of course, undertake to repeat his language verbatim, but shall give it substantially, and in detail as he gave it to me.
After the grand jury had been organized, the foreman, who was an old man with gray beard, asked if there was any witness, or witnesses, conveniently at hand that might be called in while the bailiff was summoning others.
Some one said that the proprietor of a country store in which a man had been killed a few days before by a stranger, was in town. He was brought in and sworn, and was asked to tell all
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he knew about the homicide. He said, "I saw the man killed, but do not know the name of the man who killed him, as he was a stranger, and only stayed long enough to give his reasons for doing the shooting.
"He rode up to the door of my store and threw his bridle reins on the gallery and walked in. Several of us were sitting in some- thing like a semi-circle around the stove, on chairs, and nail kegs, and boxes. The man at the right hand end of the row had not been in the community very long, and none of us knew much about him. The stranger was well dressed and looked like a nice man. He looked at me and then looked down the line or semi- circle, till he got to the last man, and after looking at him closely for some time, quick as a flash, drew a six-shooter and shot the man twice before his body struck the floor, and when it reached the floor the man was dead. I and the rest of the crowd jumped up, but the stranger said, 'keep your seats, gentlemen, while I explain what you no doubt consider my remarkable action.' We sat down but he stood with his right foot on a chair and as well as I can remember now, he told us what I am going to tell you. He said, 'When the war broke out in 1861 I was eighteen years old. I joined the Southern army in Alabama, where our family lived and where I was born. It consisted of my father, my mother, and a sister about 16 years old, and myself.
" 'My sister was as beautiful as an angel, and I loved her as I did nothing else on earth, even more than I loved my mother. My family were comfortably well-off, as they owned a large plan- tation and negroes, so I did not take a furlough during the whole war. Some of my comrades were poor men, and I let them take my chance for a furlough. I rose to be a Captain before the war ended. When I got home my mother met me at the gate, sobbing violently. I knew her emotion was too great to be caused alone by joy at my return, so I thought of my sister the first thing, and asked where she was. My mother said she was in the house, but I must not see her. I unlocked my mother's arms from my neck, and rushed into the house, and went to the bedside of my sister. From her head to her feet,-she was a mass of sores. She was dying of a loathsome disease. I rushed back to my mother for an explanation. She said that during the war she at times went into the city and brought our sick soldiers to re- cuperate on the farm. One was rather a good-looking in- telligent man and he stayed about six weeks. He professed love for my sister, and she reciprocated his seeming affection, and when he asked for the privilege of marrying her my mother consented, as my father had died, and I might be killed in battle. They were married and in a few days the man left to return to his command. Shortly afterwards it was discovered that he was a married man with a family. I went to my sister's bedside, and
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knelt, and lifted up my right hand and swore to God, by the love I bore my dead father, and the love I bore my mother, and the idolatrous love I had for my sister, that the man who had de- ceived and betrayed her should not live upon the earth. My sister died that day, my mother soon followed her, and I sold the plantation, and cotton, and all the stock, and with a picture of the man which had been left at my home, in my pocket, began my search for him. In some way he found out I was on his track, and he fled. I followed him to the Mississippi and across it. I followed him over the Rocky Mountains and into the wilder- ness nearly to the Pacific Ocean. I followed him over the desert by day and by night. I lost his trail some time for weeks, but I never stopped my search for him. I never saw him till today, and there he lies.' When he got through the man mounted his horse and bowed and rode off, and that is all I know."
Mr. Burgess said when the witness had finished testifying tears were pouring down over the foreman's gray beard, and he rose and brought his brawny fist down on the table and said, "No bill, by G-d," and the other jurors said "no bill," and no indict- ment was returned. The avenger of his sister found no accuser. Of course, the old foreman violated the decalogue when he al- lowed his feeling to find expression by taking the Lord's name in vain, but I am inclined to believe his oath was treated as Sterne said "Uncle Toby's" oath was. "The accusing angel which flew up to heaven's chancery with it, blushed at it as he gave it in, and the recording angel dropped a tear upon the word that blotted it out forever."
JONES RIVERS.
The court rooms in the tier of counties lying along the Colorado and Brazos rivers, from Columbus to Georgetown, were the theatres in which were displayed the wit, and jests, and marvel- ous eloquence of Jones Rivers for many years.
Some gentleman, just who, I do not now recall, told me a num- ber of years ago, that he had heard Jones Rivers speak, and that he was capable of eloquence equal to that of Byron, as dis- played in his finest verse.
Like many lawyers of that day and time, he lingered too long over the intoxicating cup, and like most geniuses drank not wisely but too much. I never saw him in my life, but I have been told that he died in the town of Georgetown, Williamson County, in 1859.
The circumstances surrounding his death, and the way in which he met the call of the relentless messenger, is, I believe, well authenticated. I would not be sworn to the statement, but I have a very distinct recollection of hearing the facts from the late Howard Finley, who was a lawyer at Galveston for many
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years, and was a brilliant man, but like Jones Rivers, was his own worst enemy. My recollection is that he told me he was present when Jones Rivers died. In any event I do not believe there is any doubt about the truth of the story substantially as I shall relate it.
He was traveling the circuit, and was attending court at Georgetown. He was taken sick and a physician was summoned, who came promptly and examined the sick man closely and said, "Mr. Rivers, if you have any business, or other arrangements to make, you had best do so quickly, for you have not long to live." The patient received the announcement without a tremor and turning to some one in the room-and I think Howard Finley said he was the man-said, "Please raise the curtain over that window." The curtain of cheap thin calico was raised. The window frame was small, and the window lights only about eight or ten inches in size. The sash rattled in the frame as the inter- mittent blasts of a norther struck the house.
Georgetown, now a beautiful, up-to-date little city, in the center of one of the finest agriculture territories in the world, was then a mere hamlet on a hill, with almost limitless prairies stretching away on every side. There was a thin sheet of sleet on the ground, and the brown and sere grass could be seen through it. Altogether, it was a desolate and depressing scene.
The dying man said, "Well, I have not lived as I should have done, but God has been good to me, nevertheless, and His mercy has followed me to the very grave and gate of death. for He has called me to die in Georgetown, and I know of no place on earth that I could leave with less regret." He was dead in an hour. There may be those who are skeptical about any man meeting death with a jest, but there are repeated instances where men have done so.
A good many years ago there was a very witty, brilliant man in the city of Richmond, Va., whose name was August. He was very sick on the 31st day of July and one friend standing by asked another what day of the month it was. The reply was that it was the 31st day of July, and the man who asked the ques- tion said, "Well, tomorrow will be the first of August." The sick man then spoke up and said, "Yes, and tomorrow will be the last of August," which proved to be true.
I have been told that the proprietor of the hotel in which Jones Rivers died was named Ake, and it used to be said that the boys of the town worked the old man up into a fury, by inter- polating into the dying statement of Jones Rivers, after the word Georgetown, the words, "and in Ake's hotel."
The late William Pitt Ballinger of Galveston practiced law in Texas from 1847 till 1888. He married a daughter of a San Jacinto soldier, and knew all the prominent lawyers in early days in
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Texas. He once told the following story concerning the defense by Jones Rivers of Colonel C. C. Herbert, who was commonly known as "Claib" Herbert. C. C. Herbert was elected to the Confederate Congress during the Civil War. I have a faint recollection of having seen him once, and recall him as a brawny, broad-shouldered blonde, who looked as if he might have had the blood of Norseman ancestry in his veins. He was a planter who kept fine saddle horses, and a pack of deer hounds, and was big-hearted, generous and hospitable.
One day while he and a party of friends were enjoying at his table, a typical Southern dinner, such as only a "nigger" bare- footed, and with a bandanna handkerchief on her head could cook, and the equal of which no "chef" on earth ever did cook, a little boy about ten years old came running into the house, sobbing bitterly.
Colonel Herbert met him and asked what was the matter. Be- tween sobs the little fellow said, that the man he lived with (and who, in some way, had legal control of him) had beaten him. Colonel Herbert examined his body and it was evident that the child had been cruelly whipped. Colonel Herbert directed a servant to wash the hands and face of the little boy, and fix him a seat at the table. About that time some one hallooed at the gate, and Colonel Herbert went out in response to the call. He saw that the man at the gate was the individual with whom the little boy lived, and whose name, as I now recall, was Howard.
He was a typical Puritan, and talked with the high pitch and nasal twang, which unerringly identifies the descendants of that crowd which, owing to the greatest marine disaster of modern times-the safe landing of the Mayflower on Plymouth Rock- landed on the shores of America three or four centuries ago. When Colonel Herbert reached the gate in front of which Howard was sitting on his horse, Howard said: "Colonel Herbert, have you seen anything of that little boy who lives with me? It be- came necessary to chastise him slightly this morning and he has disappeared."
Colonel Herbert made no reply, but caught Howard by the collar, dragged him from his horse, and with a club or some other such weapon, gave him a fearful beating, after which he flung him under his horse, saying as he did so: "That'll teach you not to beat another orphan boy."
As soon as Howard was able to travel, he went to town, and the District Court being in session, went before the grand jury and an indictment for aggravated assault and battery was returned against Colonel Herbert. Colonel Edwin Waller, in whose honor Waller County was named, was District Attorney, and Hon. Fielding Jones was on the bench. The case went to trial immedi- ately, and Howard told his tale as a witness, and Jones Rivers,
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who appeared for the defendant, asked him enough questions to show that he had beaten the boy.
After Howard testified the State rested. The judge asked Jones Rivers if he had any witnesses. He said, "Only one, sir," and walked back to the rear of the court room and when he returned was leading by the hand the little boy. The boy was small for his age, and was ill clad, and bore all the indications of orphan- hood in poverty. He sat the boy down in full view of the jury, saying, "that is our only witness, and we will not have him sworn."
Colonel Waller said: "Gentlemen of the Jury, the defendant has not denied the testimony of the State's witness, and there is noth- ing for you to do but return a verdict of guilty, and assess such punishment as you think proper, under the instructions of the court."
Jones Rivers knew all the jurors, and knew their family history; and had known the father of the boy. He knew that the most intelligent man on the jury, who had been acting as foreman in other cases, had been a fellow soldier of the boy's father at San Jacinto. He knew, too, that he had married, late in life, and had twin boys about the age of the orphan boy, love of whom was the absorbing passion of his life.
Jones Rivers said: "Gentlemen of the Jury, I have two clients today, the one is 'Claib' Herbert, who is my friend, and your friend, and the friend of every man who needs a friend, and who has proved to be the orphan's friend. The other client is yonder, poor, frail, orphan boy, who sits before you, and whom Howard admits he beat.
"For aught I know, some of you stood side by side in the fighting lines with this poor child's father at San Jacinto, and with him help win a victory which made Texas free.
"For aught I know, some of you may have boys like this with which God has blessed you in your old age, and which you love as this boy's father loved him. Some of you are growing old. Your hair and beard are silvering with the frost of many winters. (He was describing the foreman of the jury exactly, and appeared to be addressing himself exclusively to him.)
"Soon you must pass over to the other side and join your com- rades who have gone before, and it may be that when you have gone, your little ones may be committed to the keeping of some Howard, as was this poor, striped and beaten child.
"It may be that the little eyes that now brighten at your coming will then be red with weeping (as he spoke he drew so near to the foreman that he could have touched him with his hand).
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