USA > Texas > Governors who have been, and other public men of Texas > Part 25
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The District Attorney felt certain of a conviction, but he sensed a purpose to interpose a plea of insanity to prevent a trial at all, and his vision of a fifty-dollar fee appeared to be growing dim. Next morning the negro's assigned counsel said he would enter a plea of guilty to murder, with the understanding that the death penalty would not be assessed.
I, of course, told him that I had nothing to do with the penalty beyond instructing upon it. The "crazy" negro got life imprison- ment. I never knew till long afterwards,-perhaps after I left the bench, that the whole scene was planned by his assigned counsel to save his neck. The "crazy" negro played his part with consummate skill.
It is impossible to translate into printed words the amusing picture presented by the negro seemingly struggling, and striving, to remember the name of a negro he had shot to death only a few days before.
A previous District Attorney of the same district was a great joker, and jester, and his indulgence in the habit resulted on one occasion in his overwhelming embarrassment, and the corre- sponding amusement of a large crowd in the court room.
An old colored brother was charged with the theft of a yearling. He insisted most strenuously that he was innocent "fo' Gawd," but wanted to know how he could get out easiest. The District Attorney said, of course, jestingly: "Just give me a yearling, and I'll nol pros your case." "No, sir, I ain't gwine to give no deestrict attorney my yearlin' when I ain't done nothin' to go to no pen fur." The case was called and the witnesses began to file in, and the old darkey got very nervous. When the State announced ready the old darkey, who was still sitting out in the body of the court room, rose and said: "Mr. Deestrict 'torney, I'll done it. I'll 'cept your proposition. You nul sqush de case and I'll give yer de yearlin' like you sayed." It was sometime before the court could restore order, but the "deestrict attorney" was cured of jesting with defendants,-at least in that way.
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In that court house where comical situations provoked uncon- trollable mirth I recall what was nothing less than a tragedy.
A young man just merging into manhood was being tried for murder. His father was a most worthy citizen, and his locks were slivered by the snows of many winters. The boy, drunk on the meanest of crossroads liquor, had killed a neighbor. Though de- fended by one of the ablest lawyers in Texas, acquittal was im- possible, and the jury gave him seven years in the penitentiary. When the verdict was read, the old father rose, and bending under the weight of years and ill health, walked towards the door of the court room, his white hair barely visible in the dim and flickering light of a kerosene lamp. His form was so bent over as that he seemed to say: "My burden is more than I can bear," and as he passed out into the night, while his "boy" was going to jail, my heart went out to him, though I had never known him. I heard afterwards that the old father survived the crushing blow only a short time.
Perhaps fifteen or twenty years had rolled around, when one day I chanced to be in the same town, and went into the court house. A man met me and grasped my hand cordially, and said: "Judge, I am glad to see you. Do you know who I am?" I ad- mitted I did not. He then told me who he was and it was the young man who got seven years for murder. I told him I was glad to see him and hoped he was doing well. He thanked me, and said: "I took my medicine, and have been doing well since I came out." I said, calling him by his given name: "I must say that as I recollect the facts you got off light." His reply was: "I wonder that they hadn't broke my d -- n neck." He had cause to congratulate himself.
The picture of that gray-haired father passing out into the night, broken-hearted, mourning for his boy even as David mourned for Absolom, is indelibly graven on my memory, and the recollection of it intensified the solemnity of the scene, when in duty bound, I passed sentence on his wayward boy.
There was then and there revealed an instance of the pathos of the court room. That boy, like hundreds of other boys, was the victim of liquor, and the procession of its victims from the courthouse to felons' cells was almost endless, yet men strove, and fought, and spent, to prevent the abolition of a traffic the fruits of which were crime, dishonor and death.
We see often in court rooms exhibitions of the spirit of man- hood and friendship and devotion to principle, that is above all price, or the temptation of sordid gain.
A man charged with murder was tried before me. The slain man belonged to a good family who desired to employ private counsel to prosecute. The facts revealed a social and family tragedy involving the good name of a woman.
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The defendant had served gallantly four years in one of the most famous fighting bridgades in the whole Confederate army, and the first lawyer approached with a view to his being em- ployed to prosecute, had been a comrade of the defendant.
He, without a moment's hesitation, declined to consider the employment, and no amount of fee could have tempted him to prosecute the fellow soldier side by side with whom he had dared death on a score of bloody fields.
In the same county a white man who had served gallantly in the same brigade just referred to, was charged with killing a negro. His plea was self-defense. One trial resulted in a hung jury. When the case was called for trial next time one of the ablest lawyers in Texas, and one of the most chivalrous soldiers that ever bled for his country, and whose empty sleeve bore silent testimony to his courage, announced that he would appear for the defense. I had reason to believe the defendant had no money, and knew some strong motive prompted the action.
The defendant was acquitted, and the next day the counsel ex- plained why he defended. He said: "I became convinced that the whole constabulary force of this county had combined for personal reasons to convict that defendant. I knew, too, that the defendant had been a gallant, faithful Confederate soldier who followed Lee for four years, and I meant that he should have a fair trial. I'll swear that no Confederate soldier shall ever be railroaded to the penitentiary while I am able to defend him."
On one occasion in Grimes County a little negro about 18 years old was put on trial for burglary. He was very unskillfully de- fended, but really needed no defense. To my surprise he was convicted. Major Boone chanced to be sitting in the court room and heard the trial. As we walked down to dinner at the hotel he said to me: "Norman, that conviction is an outrage, and I have too much respect for the law of my State, and too high a re- gard for my obligation as a lawyer, to be content to sit idly by and see justice so outraged, and I am going to take hold of the case." As I agreed fully with him, I said: "I hardly think you need trouble yourself, Major, I will take care of the boy," and I promptly granted a new trial, and there was never another.
Major Boone had no possible interest in the ignorant, humble little "nigger," but if I had not granted 'a new trial he would have flung himself without reserve of skill or energy, into his defense-out of his chivalrous love of right and justice.
The same splendid gentleman was a faithful democrat, and at one election exerted himself strenuously to defeat a certain man for re-election as sheriff, who was most obnoxious to the demo- crats, and succeeded. The defeated man preparatory to a contest desired to employ the lawyer who had been largely instrumental in his defeat. Chancing to meet him in the road one day, and
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having no doubt that all that was necessary to obtain his services was a liberal fee, which he was able to pay, said,-"How much can I hire you for as a lawyer to get me my office." The reply most astounding to the candidate was,-"You can't hire me at all. Do you suppose that after I have gone all over the county telling the people you ought to be beaten for sheriff, that you have got, or ever saw money enough to induce me to go to court and try to keep you in the office? You can't hire me at all, and I want you to know it." Such men as that maimed hero was- make us believe that indeed "man is but little lower than the angels."
I have no idea that he received a penny in the way of a fee in any of the instances related above.
As I said in the beginning of these desultory rambling sketches, it seems to me that such incidents as I have related concerning one who did honor to his profession, and to his state, reveal more clearly the inner real man than could be done in any other way.
They interpret his impulses, his motives and the ideals of duty, he cherished, and the standard by which he shaped his personal and professional conduct.
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ยท CHAPTER XXXV.
MEMORIES OF THE COURT ROOM.
I had occasion many years ago to stay for several days in an interior town 35 miles from a railroad. District Court was in session and an attorney who I happened to know, had been ap- pointed to defend a white man charged with murder of a negro with whom he had been gambling, and he asked me to help him.
The man was very vigorously prosecuted, and the local counsel and I together succeeded in getting him into the penitentiary for 99 years. We got interested in the defendant, and appealed and reversed the case.
A year rolled around before the case was reached again, when, though I lived a hundred miles away, I went back to the court and paid the way of a witness,-it being before witnesses re- ceived fees.
I did not know anything about jurors in that county, so I took any man who said he would give my client a fair trial.
The witness whose way I paid the way of was unquestionably present when the killing took place and testified that the negro applied to the white man an epithet so foul I cannot repeat it here. I said to the jury,-"he not only called him-, but pre- fixed the epithet with d-, and followed that with 'poor white,' and I say that neither the law of honor nor the law of manhood required any white man to take such an insult from a negro, and I believe this jury agrees with me. About half the jury nodded hearty assent to my statement. When they did so the old judge (for he was quite old) took up his charge and started with a pencil and wrote around the edges,-"I charge you first that the defendant is not being tried by the law of honor or the law of manhood but by the law of Texas." When he came to read his charge he began with the addendum, and as he proceeded, and whenever he reached a part which was to be followed by pains and penalties he would interpolate verbally "mark you gentle- men, mark you."
A friend to whom I once related the remarkable proceeding asked me why I didn't take a bill of exceptions to the court's charge and his interpolations. I said,-"Because I had twelve bills of exceptions in the jury box." The defendant was acquit- ted in ten minutes.
A few days later he came to the village in which I lived and I got him employment and loaned him a little money. In a few days he quit his job and decamped without repaying me. I con- cluded I had made a mistake in being instrumental in turning so worthless and ungrateful a wretch loose. His kind are only fit to adorn (?) jails and penitentiaries.
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The old judge lived on a farm several miles from town, and came in every morning in a gig or buck board.
I met him coming in as I was going back to the railroad. He said,-"Good morning, sir. You made the most outrageous speech yesterday I ever heard, but it was the speech for the case, and I wish you good luck." He was an honest old man, and by no means devoid of ability, but was the kind of judge which has cost Texas millions of dollars by acting under the delusion that the only province of a criminal trial is to convict and thereby becoming counsel for the prosecution, and committing reversible error.
A bystander in an East Texas Court who had intelligence enough to understand the tenor and effect of a charge in a crim- nal case, after listening to one delivered by a thoroughly honest judge whom I knew, but who believed in convictions, said,- "I'll swear, I always heerd that the State had only two speeches, but in this court she's got three. The deestrict attorney makes two and the jedge makes tother."
The judge last referred to was inclined to be very strict and rigid in the conduct of his court, and disinclined to encourage or permit levity. He had misdemeanor jurisdiction in one county, and had sent a defendant to jail, in default of payment of a fine.
A half-witted boy in the town came by the jail, and the prison- er said,-"Will you take a message to the judge and district at- torney for me? I can't get out of here you know." The boy said,-"What is it?" The prisoner told him. The boy said,-"If I go thar and tell that jedge that he will put me in jail." The prisoner said,-"Oh, no, he won't. It won't be you telling it for yourself, but for me." The prisoner pursuaded the boy to go, and when the boy got before the judge the latter said,-"Well, what do you want?" The boy turned his ragged hat like a wheel be- tween his fingers, and trembling all over said,-"That fellow in jail told me to tell you and the deestrict attorney something for him, but I'm skeerd to tell it." "Go on, go on," the judge said. "If I tell it Mr. Judge you ain't goin' to fine me or put me in jail is you?" The judge said "no, of course not. Go ahead and give the message." "Well-well, er, that fellow sayed to tell that d- jedge and deestrick attorney to go to h-l." The judge blushed deeply, as did the "deestrick attorney" but kept his word, and the messenger was not fined or imprisoned. The boy may have been half-witted, but he was smart enough to have uninten- tionally, or by design get the judge committed, or he would have been in jail in ten minutes.
Referring again to prosecuting judges, they do not appreciate the fulness of their error. They are really prompted by the de- sire to see the law enforced, and do not want to see guilty men
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escape either through technicalities, or the ingenuity of coun- sel, or laxness or corruption of juries, and such a spirit is com- mendable of course, but whether a defendant is convicted, or acquitted, is no official concern of theirs.
Their duty is to rule in, or rule out, evidence, and charge the law applicable to the facts, and nothing more.
Furthermore the conception that every acquittal is an outrage on the law, and that only conviction is its vindication is radi- cally erroneous. More men are convicted than are acquitted, and about as many are convicted as ought to be.
I have no mushy maudlin sentimentality about criminals. I have sentenced three defendants to the gallows and they were hanged, but the eternal howl about criminals escaping convic- tion is for the largest part, the veriest rot.
The courts do not of course always function perfectly. No hu- man agency has ever yet done so, and when some jury renders one outrageous verdict of acquittal the public is shocked, but it pays no attention to the ten verdicts of conviction.
Some two or three years ago I went for the first time in many years into a criminal court for the purpose of defending a "black sheep" of a worthy family, upon the request of his brother.
The defendant was acquitted and as I recall that was the third acquittal out of 103 trials. Every one of the defendants re- ceived, as I believe, a fair trial, because Cornelius W. Robin- son, criminal district judge of Harris County, and E. T. Branch, the district attorney give every defendant a "square deal." That judge, like most judges, thinks some provisions of the law are not wise, and he is sometimes very loath to give them in charge to the jury, but he will do so if precedent demands such action.
In the recent past a brother lawyer, and a very capable one, brought me a number of special charges which he said he in- tended asking the judge to give in a case in which the defendant set up as a defense that he had seen the deceased-a soldier- and his (defendant's wife) together under such circumstances as led him to believe that illicit relations existed between them.
The attorney asked me to look over the charges and tell him what I thought of them. I knew before I looked, that those special charges, like all others, were an abomination in the law, and I said-"I never gave a special charge in a criminal case in my life, and I will not review yours, but I will write just such a charge as I would give were I on the bench as my friend the judge is, and such a charge as you will find in my hand-writing in the same court, in an identical case."
I proceeded to do so and when I had finished the charge I ex- amined the case of Price vs. State, XVIII Criminal Appeals Court to see if the charge was correct as I had not examined that re- port in many years. The charge was correct.
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I chanced to meet the Judge before he delivered his charge and as we were boys together, and had been friends for many years, he talked freely to me about it. He said,-"I think I detect your fine Italian hand in that charge which counsel for the man on trial has handed to me." I said,-"Yes, I wrote it." He said,- "I don't believe in any such law." I replied,-"That may be, but it is settled law in Texas, and if you refuse to give it, or give what amounts to the same in legal effect, you will be reversed."
I had nothing to do with the trial, but I heard afterwards the substance of the charge was given.
The defendant was acquitted. I do not recall ever having been reversed for refusing special charge in a civil or criminal case. At one session of the Supreme Court, and the Court of Criminal Appeals at Galveston, I had 17 cases, civil and criminal, before them, and 15 were affirmed.
So long as any Judge holds to the view that it is his duty to see that the defendants are convicted, so long will judgments ren- dered by him be reversed. The law is no more vindicated when pains and penalties follow its decrees; than it is when some innocent man, or some man whose guilt is not proved beyond a reasonable doubt,-which is the same thing in law,-is acquitted.
There was nothing more God-like in the handing down of the decalogue to Israel at the foot of Sinai, than there was in speaking 'mid the awful travail of Calvary, pardon and peace to the dying thief.
It is very rare that a District Attorney can safely object to admission of evidence. If the jury are given all the testimony that will throw any light on the case, they will get at the right.
If a jury once gets the idea that evidence is being excluded at the instance of the State, which if introduced would reveal the whole truth, the defendant is half acquitted then.
A QUARTETTE OF ABLE LAWYERS.
Civil cases are sometimes as interesting as those of a criminal nature, because. there is nothing more interesting than is a new and close question of law, when discussed by able lawyers.
I had before me in one case Judge Sam Streetman of Houston, L. M. Dabney of Dallas, his brother, S. B. Dabney, and Presley K. Ewing of Houston, and it goes without saying that no point was overlooked, or any legitimate argument left unpresented.
Four such lawyers rarely appear in one case.
The question involved upon which the plaintiff's right to recover depended, was in a sense one of first impression, and as I recall, all four of the able lawyers discussed it, and the discussion was an enjoyable legal treat.
As I recall, Major John Lovejoy was also present, but he took no part in the discussion, except at some unexpected time he
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would interject some more or less relevant suggestion, and one which, in his inimitable way, injected such element of amuse- ment into a cold discussion of a question of law, as would have disturbed the solemnity of a Chinese funeral.
If it was held that under the facts the plaintiff could recover, and his injuries came within the terms of the indemnity con- tract, it would have constituted a pioneer case.
The impression made upon my mind was that all the parties were afraid to risk a decision of the 'Supreme Court, and as I recall, a compromise was arrived at, but not before Presley K. Ewing had for plaintiff by his ingenious reasoning carried the law, as he thought it to be, to a limit it had never before been carried, so far as I recall.
After the case had ended, Judge Streetman and I concluded that plaintiff's counsel would risk losing a case regardless of its magnitude, in order to establish a new rule of law.
He has successfully pioneered many times, and is not afraid to venture out into new fields, because he is a lawyer worthy of the steel of any foeman, and in my judgment has no superior as a lawyer at the bar of Texas. I believe many others will agree with me, and I do not believe that the sincere esteem and affection I have for him, the fruit of a friendship of more than thirty years duration, has biased my judgment. He practiced before me almost continually for eleven years, and I feel that I know whereof I write.
I have had but little occasion to complain of the treatment I have received at the hands of trial courts, or indeed of any court, hence do not mean to imply any invidious distinction between judges when I say that I recall the late Andrew P. McCormick as one of the most satisfactory, if not the most satisfactory judge I ever appeared before.
He, of course, was a much older man than I, and in politics was a Republican,-a fact, he being a native Texan, I found it hard to forgive, but he knew no politics on the bench.
When I was a young man, just married, and living in a most modest way, he was frequently a guest at my very humble board, and my wife and I cherish grateful recollections of his friendship.
He had one quality or element, or whatever it might properly be called, which is a propulsive power in any man, and that was self-confidence. It did not find expression in boasting, or vanity, or self-assertion, but he had confidence in his own knowledge of the law, and being an educated man of strong native intellect, and thoroughly grounded in the common law, and familiar with Texas statute law, his confidence was justified.
What I remember most clearly was his common sense, and his sense of justice, and what was, if possible, even more admirable, his readiness to admit his own error when he became convinced
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he had erred, of all traits in a judge the most admirable. None but big men possess it.
I heard the late Chas. L. Cleveland ask to take up the motion for a new trial in a case tried before him without jury. He said: "You need not discuss the motion, Judge. The court erred, and erred most egregriously. The motion is granted."
When quite a young man my older partner presented a motion for a new trial in a case tried before a jury. Judge McCormick said: "I have, for some reason, an impression that justice has not been done in this case. If plaintiffs are entitled to take half of the defendant's home, they can prove their case again. It may be that evidence can be discovered which will show they ought not to take it."
Before the court met again written and irrefragible evidence was discovered, which, when shown to plaintiff's counsel, who was a gentleman, he dismissed the action.
The keen sense of justice of an honest judge saved for the de- fendant the fruits of years of honest toil.
A smaller, narrower man of this kind that subscribes to the doctrine of jury infallibility would have said: "The jury are the judges of the facts, and I have no authority to invade their province. The motion is overruled."
No man believes more strongly in jury trials than I do, but I do not believe in making a fetich of them.
Twelve jurors who have heard conflicting testimony for days, and sometimes for weeks, and been argued at by lawyers, each side contending that a verdict for the other side would be an act of gross injustice, are just as apt to go off at a wrong tangent and do a foolish thing as is any one of the individual twelve units. They are by no means immune against error, but often err egregriously, as Judge McCormick said he did.
The plaintiff in a slander case once began to introduce evi- dence to prove the utterance of the slanderous language. Judge McCormick says: "Why do you take the time to prove your allegations? The defendant plainly admits using the language." I had not at the time had much experience in the practice, but I had drawn the answer, and I said: "Your honor, plaintiff cannot use our admissions as a weapon to destroy the effect of our general denial." He said: "I never heard of a case where you must prove what a man admits, but it is now the noon hour, and when court opens again you may be able to produce authorities."
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