USA > Texas > Governors who have been, and other public men of Texas > Part 24
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"It may be that the little form which you draw close to your throbbing heart in the very rapture of a father's love, may be bruised and wounded by some Howard, as was and is the frail
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form of that poor child that sits there, in all the helplessness of orphanhood before you.
"It may be that the little arms that reach up and encircle your neck in expression of the love of a young heart, may be raised to shield his little body against the brutal blows of some Howard; and then, perchance, the God of the orphan, may in His infinite goodness raise up some 'Claib' Herbert to protect and avenge your darling, and if he did, would you have that protector and avenger punished ?"
The climax was reached, the old foreman could stand no more, and he rose and lifting both hands above his head, while the tears rolled down his cheeks, and fell on his gray beard, cried out, "No-No-No-N-o N-o," and dropping his head on the railing before him, with his face in his hands, sobbed aloud.
Jones Rivers, of course, sat down. Colonel Waller promptly rose and began the closing speech for the State, whereupon the old foreman stood erect and said, "Set down, Edwin Waller, set down, you are a good man and a good officer, but set down." Then turning to the judge he said, "Your Honor, we find the de- fendant not guilty." "So say you all, gentlemen?" said the court. The answer was unanimously in the affirmative, and the court said: "Let the defendant be discharged."
The witchery of the eloquence of one who possessed the "divine afflatus" which is as distinctly the possession of the orator as it is of the poet, and which is a gift of God, triumphed over the cold, abstract letter of the law, and won a victory for righteous- ness which had its support in the law of the God of right and justice.
Judge Ballinger, after telling me the story just related, said that "Claib" Herbert went on one election day to the voting place which was on, or near, his plantation. There being no law against saloons being open on election day, there was one open nearby. He said to the proprietor, "I want you to close up. I want no liquor sold here. If you do there will be trouble among the voters." The saloonman said that election day was the best day for his business, and he could not afford to close, and would not do so. In the twinkling of an eye "Claib" Herbert drew back and struck the saloonman full in the face, and he would have fallen but for the shelf behind him, and he rallied and put up a fight.
The next morning Colonel Herbert came into the saloon and the man squared himself for another fight; but Colonel Herbert raised his hand in protest and said: "No, I didn't come to fight. I came to ask you some questions which I want you to answer. Did I hit you first last night?" "Yes, Colonel, you struck me be- fore I knew it." "Did I hit you a fair blow?" "Yes, full in the face." "Did I knock you down?" "No, sir." "Did I draw
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blood ?" "No, sir." "Then 'Claib' Herbert's fighting days are over. When he gets the first blow, and a fair blow and neither knocks down or draws blood, he fights no more." Strange to say, he was' killed accidentally just after the Civil War while trying to stop a fight between two men.
THE COURT AND THE MOB.
A seat on the District Bench in East Texas, is not always cush- ioned with down, or garlanded with roses.
That it is not, I can personally testify, for while there are no better people in the world than can be found among the constitu- ency, which I served as judge for nearly seven years in the Twelfth District; yet, at times they became aroused and broke out in the form of mobs.
They did so on three occasions while I was on the bench and if any man has never faced a mob, I can inform him that the situation is not one to be sought. I have faced three Galveston storms, and I would rather face three more, than face one mob. I saw only two of the three which gathered in my district, but that number was an abundance. I do not mean to be understood as even appearing to boast, that on either occasion, I displayed any heroism, because I did not.
I knew that no man in either mob was going to offer me any violence. Many of the members of the first mob had known me all my life, and some of them and I had gone to country school together, and most of them were my friends. Those who formed themselves into a mob did not in either instance seek the cover of darkness, but operated in broad daylight, and nine out of ten were, under normal conditions, law-abiding citizens.
Such citizens do not form themselves into a mob unless under great provocation, and while they proceeded to effect the end they had in view, by unlawful methods, they were not at heart, criminals; yet, I am earnestly opposed to mob rule, and it should be relentlessly crushed out. When their passions have subsided and they have become normal, those who ordinarily constitute the mob, are fair minded.
Although the first one that I was forced to meet was formed in election year, and I was a candidate for re-election. I was, of course, in duty bound, to tell them, as they, every man armed, gathered in semi-circle around me, that their action was unlawful (they had killed two men the day before), and that the court was open to punish criminals, and I was, in duty bound to charge the grand jury that the acts of the mob was murder- which I did-yet, at the election, I received a clear majority over two opponents. I had to take the course I did or prove recreant to my trust, and unworthy to be a judge. There was no bravado
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in my action, for, as I have said before, I was in no danger of physical violence, and I simply did my duty.
Many judges in East Texas and elsewhere have been compelled to deal with mobs, and in all likelihood, others will have to do so in the future, and I believe that what I learned from my experi- ence with the second of the two mobs, may be worth space that it will take to record it; even if it be not exactly germane to the general purport of what I am writing.
I discovered that mobs are not actuated by contempt for the law, or by a spirit of defiance of the courts, nor by any sheer desire for vengeance, nor are they actuated by any brutal or blood-thirsty motive. I am sure no such motive prompted the mob to which I refer, and I believe that what was true of that one, is true of nearly every mob. I drew this conclusion from the following facts: I placed myself between the mob and the jail, in which the prisoner was supposed to be, and in which I believed him to be, and began to speak substantially as I had on the previous occasion about four years before.
One of the mob, whom I had never seen before, and for that reason I do not believe he lived in my district, interrupted me. The leader of the mob, whom I knew well, and who was a worthy citizen, ordered the man peremptorily away, and said to him, "Let the Judge talk," and while I talked to those hundred or more men, mounted and armed, bent on taking human life,-they bared their heads under the blazing August sun, and treated me with as much respect as if I had been on the bench in the court house.
The reply of the leader to what I said, revealed to me what I had never thought of before, and put the "mob," as the term is ordinarily understood, in a new light. He said: "Judge, we do not mean any disrespect to you, or to the law, or to the court. You are our judge, and we respect you as such, but this negro has gone into the house of one of our neighbors, and beaten a lady into insensibility, and ravished her, and he does not deserve a fair trial. Then, we do not want the lady to have to go into the court house and tell the facts before a crowd of people."
In the last sentence of that leader's talk he stated the gist and core of the reason for mob violence, when a woman is the victim of the crime. It is that she is compelled to go into court and by the unescapable compulsion of the rules of evidence, reveal the humiliating details and revolting physical facts con- cerning her own defilement.
Such an ordeal, in the eye of a pure and refined woman, is in but a slight degree, if any, preferable to death.
I have said the mob was not actuated by sheer brutality, and that statement was proven by the fact that while the victim of the negro's lust desired that he be burnt, the mob declined to yield to her request, and he was hanged, and not a shot was fired into
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his body, nor was it maimed in any way. I trust the idea that I have intended to convey will excuse this digression, for I be- lieve what I learned that day was of sufficient importance to be set down here, because the people of the South, have been accused by negrophiles who live elsewhere of indulging in mob violence in a spirit of sheer lawlessness. As I have said on a previous page, it takes no high degree of courage to face a mob when you feel assured that you are not going to be either killed or wounded; but when the mob spirit is in the air, and has extended its baleful influence into the jury box, and that influence is reflected by a death penalty assessed, which verdict is not authorized by the testimony, it takes a judge with a true conception of judicial duty, and with the courage to translate that conception into action, to meet such conditions as it should be met. The radic- ally erroneous idea, which to a large extent, has taken hold on the popular mind that no one man has the right to say that shall not be done, which twelve men have said should be done, has been the fecund mother of many mobs. Those who think that way, have the conception that a judge is a mere automaton whose duty it is to register the conclusions of a jury, though it is a reflection of prejudice, and of inflamed and vicious public sentiment.
Most happily for Texas, she has had, and no doubt has yet, judges who did not and do not agree with that conception of the judicial function, and who will not play the role of judicial automaton.
There was furnished in an East Texas county some thirty years ago most gratifying proof that one judge knew the law, and knew his duty, and dared do it. I knew him well, and exchanged districts with him during my term of service as judge.
A negro was indicted, and put on trial for murder. He was. convicted and the death penalty assessed against him. I do not know whether the judge waited for a motion for a new trial to be presented or not, but in any event, he coolly wiped the verdict out and set the judgment aside and the people murmured loudly, so loudly, as I have been advised, that their murmuring presaged or foreshadowed a mob. At the next term of the court a second trial was had, with the same result, and again the judge annulled the verdict by a new trial. The people were even more enraged. The judge, a small delicate, quiet, unassuming man, paid no more attention to the murmuring of the angry populace than he did to the sighing of the stately pines which towered above the court house. Before the next term of the court the officers of the law found a clue which, being followed, unraveled the mystery of the murder, and revealed that the twice convicted negro was as innocent as a babe unborn.
The life of an obscure, penniless negro was saved by the fidelity
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to duty and the courage of the judge, in the face of the verdict of twenty-four men that he deserved to die.
Heroism is revealed in many forms; but there are few higher types of heroism than that displayed by the judge who, with no music and no flags and none of the "pomp and circumstance of glorious war" to thrill and stir, executes justice and maintains truth in the face of popular clamor.
When he, "in the unvexed silence of a student's cell," strives to determine what is the law, and find the light, and in the fear of God, phrases and frames a judgment which he knows will call down upon him popular condemnation, and perhaps cost him his office, yet declares the law as he believes it to be, he is a hero in the sight of God.
There is, however, a type of heroism higher than that. The judge, who, when the mob has registered its wishes through the medium of the jury box and pronounced its mandate of death upon evidence which the law does not recognize, coolly annuls that mandate, and disregards the verdict begotten of prejudice and suspicion, and thereby declares that the law and not the inob, shall rule; rises to heights of heroism well nigh sub- lime. That was what the East Texas judge wrote twice on the record of his court with a stroke of his pen. That judge was Edwin Hobby, father of the man who was Governor of Texas when this sketch was being written.
A NOTABLE LEGAL BATTLE.
Every criminal case upon the result of which depends a man's life or liberty is full of human interest, and where able and skillful lawyers are engaged on both sides, and fight the case on its merits, the court room becomes a stage, and the legal drama makes appeal to the whole gamut of human emotions.
I sat a portion of one term at Galveston by exchange with Judge Gustave Cook and tried a homicide case. The case was one which aroused great public interest. Public sentiment was so strongly aroused against the defendant, that Judge Cook was severely criticised for allowing him bail.
The slayer and the slain were both professional gamblers, but the slain man had been well born, and well educated, but had gone off at a tangent, and become a sporting man-yet he was very popular, as he had the manners of a gentleman.
The defendant, on the other hand, was in every particular exactly the opposite.
The counsel for the State were F. M. Spencer, who had just retired from the position of District Attorney after fourteen years of continuous service, and who seventeen years later was Judge of the District Court of Galveston County, and who was both experienced and able as a prosecutor; W. C. Oliver, the incoming
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District Attorney, a most capable lawyer, and Jas. B. Stubbs, then and now, one of the ablest lawyers at the bar of Texas.
Marcus C. Mclemore, John Lovejoy and Col. Geo. P. Finlay appeared for the defense. A nol pros having been entered as to Colonel Finlay's client, a well known gambler of San Antonio, Colonel Finlay did not appear actively on the trial.
Marcus C. Mclemore was a graduate of an American university, and of the University of Heidelberg, and of the Paris School of Civil Law and was equally at home in the field of the civil and criminal law, and was a most skillful trial lawyer in either field.
John Lovejoy gave promise then of developing into what he afterwards became, a power before a jury in any kind of a case.
It took from nine in the morning till midnight to get a jury. I recall even now, how the defense strove to avoid taking the last man called. He was a singing evangelist and revivalist, and all gamblers were the children of Satan in his sight, but he had to be taken.
There was not a dilatory motion made, nor any technicality invoked by either side. So to speak, both sides stepped out in the open and fought without shields. In the vernacular of the prize ring, it was a "bare-knuckle" fight.
The skill manifested in examination of witnesses, and the rapidity with which they were examined I had never seen equalled before, and have never seen since.
There was no re-direct, or re-cross, or re-recross and re-redirect examination, which is always the unfailing indication, either of iniproper preparation, or of ignorance of the rules of evidence, or both.
What in the hands of less skillful lawyers would have taken an hour, was frequently disposed of in ten minutes. Many a case in which there were as many witnesses examined has taken a week, while unless my memory betrays me, thirty witnesses were examined, and the arguments presented, and the case put in the hands of the jury between 9:00 a. m. and 12:00 p. m., or midnight.
The whole trial illustrated the difference between lawyers and "shysters," between men fighting on principle, and on a high plane and men willing to get results by any kind of method, how- ever devious, as is the case in many murder trials, and between experts and bunglers.
The arguments were terse, eloquent, fair, strong. John Lovejoy was the least eloquent man of the five, but as I told him after the case was over, he made the speech best suited to the case. He leaned, indeed almost sat, on the edge of a table, and in a voice never raised beyond a conversational pitch, and without even a single attempt at eloquence, and with no effort to appeal to the emotions, but talking as if he were transacting a matter of busi- ness, put the case of his unpopular client before the jury with a
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persuasive and convincing power I had never seen surpassed before, nor have I seen it since.
He was my friend for many years, and I am glad to lay this deserved tribute on the altar of his memory.
It was a battle royal between five legal paladins, every one of whom wielded a shining lance.
The evidence made it necessary to charge the law on both de- grees of murder, and on manslaughter, and on self-defense, and upon when the right to pursue an adversary began, and when it ended.
I know of no judge who could have covered the case correctly in a shorter charge except Gustave Cook. I have seen a charge written by him with a pen on less than a page and a half of legal cap, which supported on appeal the death penalty.
It was the second charge I had ever written in a murder case, and it was very gratifying to me, a beginner on the bench, that not a single special charge was asked, nor a single exception taken to the charge given.
About nine o'clock next morning the jury returned a verdict of acquittal, which in some quarters was severely criticised, and for that reason, as a matter of justice to one of the finest juries I ever saw in a jury box, I took occasion to say the verdict was proper, as it was.
Five of the six able lawyers and knightly gentlemen who ap- peared in the case have "passed over," and only Jas. B. Stubbs remains. He and I are the only professional or official actors in a stirring judicial drama, who are left.
We, as that great wit, Dr. Ferris of Richmond, Texas, used to say, still linger "as monuments of God's mercy and the devil's forgetfulness."
AN HONEST TALESMAN.
On the trial of the first murder case in which I ever sat, eleven jurors had been empanelled, and I sent out for talesman.
The first man of six called was a farmer, who tilled his own farm, but well educated, and a man of a very high order of intelligence.
When asked as to his sympathy or bias, he said: "No, but I am conscious of a very profound sympathy for the parents of the defendant, who are my neighbors."
He answered all disqualifying questions in the negative, but added: "Mr. District Attorney, you have heard what I have said."
Both sides accepted him. In eighteen hours he brought in a verdict signed by him as foreman, giving the defendant five years in the penitentiary, and no motion for a new trial was even filed.
Such a man as that man was, is a moral asset of incalculable value to any community.
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COURT SCENES IN GRIMES COUNTY.
I recall an amusing incident which occurred in the course of a trial of an important criminal case before me, while I was on the bench in the Twelfth District.
The District Attorney,-a very fair, but very able representative of the pleas of the State, conceived the idea that a colored witness was testifying falsely, and for that reason put him through an unusually rigid and searching cross-examination.
He fired at the witness question after question in quick succes- sion, giving him no time to plan or prepare an answer, but pressing and plying him remorselessly, but at all times in the bounds of legitimate cross-examination. At last the witness was fairly cornered, and threw up his hands sand said: "Dar now, Mr. State's 'torney, you done cross talk me 'twell you cotch me lyin'." The crowd in the court room which had been listening with absorbed attention, broke into uproarious laughter, which I only perfunctorily tried to stop. I felt that the crowd was en- titled to relief from the tenseness of the situation.
In all my experience of eighteen years on the bench that wit- ness was the only one I ever heard admit he was lying.
In the same county and court room an incident occurred which was pre-arranged,-a fact in which I, of course, had not even an intimation, and which I did not discover until after the case was over.
Major H. H. Boone, who had been Attorney General of Texas, carried the plan into execution, but it was the conception of his partner, A. F. Brigance, a very shrewd and resourceful, but hon- orable lawyer. I would have been justified in fining both men, but the motives which prompted their action was so worthy and generous that I was utterly disarmed.
A country boy, more or less wild, and sometimes dissipated, had killed a negro under circumstances which made a successful defense very difficult, if not impossible.
He was not a common offender, nor at heart really a bad citi- zen, and he had an aged grandmother who was deeply devoted to him, and who was a noble old lady whose friend Major Boone had been for many years, and whom he highly esteemed, and whose anxiety for the fate of her grandson appealed to his sympathies.
The same District Attorney referred to as being a party to the incident previously related, was representing the State. He put in his testimony quickly but in a very impressive way, and rested.
Major Boone said: "Take the stand, Mr. Knott." Mr. Knott, commonly called "Tom," came around, and was sworn. He was a comical looking individual, though not lacking in intelligence.
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His head was round, and he had on his face a good natured grin, which made him rather attractive as well as amusing, and as he knew all the jury, his grin expanded when he looked at them.
Major Boone said: "Mr. Knott, did you know the negro that the defendant is alleged to have killed?" The question was a per- fectly legitimate one, as an apparent predicate laid for the pur- pose of proving the dangerous character of the deceased, and no objection was made to it. Instead of replying by a simple affirmative, Mr. Knott looked at the jury, broadly grinning, and said before any objection could be interposed, "I guess I did. Didn't I shoot his legs full of bird shot one night at Courtney while he was trying to climb into the bedroom of two young white ladies?" The District Attorney sprang up, shouting, "I object, I object," but he was too late. The bolt had been shot. The poison had been injected into his case, against which there was no antidote in the law. The District Attorney pulled his mustache and turned white, and then red, and Major Boone, after asking the witness a few other meaningless questions, dismissed him.
It would have been most impolitic for the State to have cross- examined, because though the testimony was utterly irrelevant, it was absolutely true, and cross-examination would but have in- tensified its effect.
Though the liberty of a young man of respectable family was at stake the round head, and the good natured grin of the witness and the indescribable way in which he made the interrogative response, was irresistibly amusing, and the inability of the Dis- trict Attorney to conceal the fact that he realized he was smitten "under the fifth rib" made the whole scene serio-comic. The rest of the proceedings were perfunctory, though I charged the jury the law as applied to the legitimate evidence, but "Mr. Knott" had decided the matter of the verdict.
Some days later Major Boone said to me: "Norman (he always addressed me that way out of court), I did not like to do what I did in the court the other day, but I could not see that boy go to the penitentiary and his good old grandmother die of a broken heart. I told Tom Knott you might likely fine him $50, and if you did, I would pay the fine. It was my only way out, and Tom Knott told the absolute truth."
I was sure that the witness had told the truth, or that at least Major Boone believed what he was going to swear to what was true, for if he had not, no influence on earth, not even his love and sympathy for his aged friend, could have induced him to put the witness on the stand.
In the same court a negro was indicted for murder. He had stationed himself at the end of a corn row and emptied a double- barreled shotgun into one "Sam Sparks," another negro. He was a big burly negro and I had him brought into court and assigned
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him counsel. I said, "Are you ready to go to trial?" He said, "What you talkin' erbout-trial "bout what?'" I said, "The grand jury says you shot Sam Sparks." He scratched his head and said, "Sam Sparks? Sam Sparks? Seem lak I been heerd dat name so'mers, but I disremembers whar it wuz. Sam Sparks? Me shoot Sam Sparks? I ain't got no 'membrance of shooting no sich nigger." I said, "You will go to trial tomorrow." He said, Mr. Jedge, I tell you whats de trouble. My brains is all done got outside of my haid like grapes, and I can't get 'em back. Dat's de reason I ain't got no 'membrance 'bout dat nigger Sam Sparks; but séem lak I heerd dat name 'fo' dis time. I speck my brains done been got back in my haid by termorrer, so I lak to go back to jail," so I let him go.
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