USA > Texas > Governors who have been, and other public men of Texas > Part 26
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I knew I could, because I drew the answer with the authority before me: Fowler vs. Davenport, 21 Texas.
When I presented it he said: "You are right, and I am wrong. Go ahead, gentlemen, and prove your case for the plaintiff."
I do not know whether many judges felt as I did, that they
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had rather try a whole docket than to hear one sharply contested motion for a new trial, but I so felt.
The action of courts on motions for new trials has been the cause of more harmful prolongation of cases than has any other action exercised by courts, and more injustice has been done by granting than by refusing new trials.
This is true, because if a new trial is refused, the way of cor- rection is open and easy, but if it is granted the other side is helpless. Such a condition of law is iniquitously unjust.
It has happened times without number that capable lawyers have, after most careful preparation, brought actions, and recov- ered just verdicts, with the result that because the judge has conceived the idea that he has probably erred in giving, or re- fusing charges, or in admitting or excluding evidence, he destroys with one stroke of his pen the work of months,-perhaps of years, and often the loss is irretrievable.
No judge, though he be a Mansfield or a Marshall, can know as much about a case by hearing it tried as a capable lawyer knows who has studied it from every angle, and collected authori- ties on every point, and no judge can have any more interest in a case being tried correctly than has the man who brought it.
Many an able lawyer has won a victory he ought to have won, and been willing to risk his case on the law in the appellate courts, but was denied the right by the trial court to have it carried up; yet a judge is just as apt to err in determining whether he erred, as he is when he originally acted.
If the man against whom the motion is granted, had any possible way of relief in Texas, there would not be so much ground for complaint, but he is absolutely as helpless as if his hands were tied while firebugs set fire to his home.
Of course the mere intimation, much less contention, that there should be in Texas the right of appeal from motions granting a new trial just as there is from the refusal of one, will be received in some quarters as rank heresy.
The adage of the mossback is, "what has always been must always be, and what has never been must never be," and such a principle of action is absolutely at war with any progress in jurisprudence.
All wisdom did not die with "the fathers," and because they did not provide for appeals from orders granting new trials, is no reason why such a statute would not be wise, and promote the hastening of final determination of litigation.
The "fathers" did not allow any man in any case to testify in his own behalf, nor did they allow any man, however unjustly convicted, to go at large on bail pending appeal, but a more en- lightened policy now prevails by statutory provision.
All that is necessary is a simple statute providing, in effect,
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that appeals from judgments granting new trials may be taken, and when taken shall be prosecuted and conducted in like manner as is now provided in cases of other appeals. The statutes of Texas will be inexcusably defective until they contain such a provision.
Such is the law in Missouri. Within the recent past more than once it has been availed of in that State,-indeed it is almost so often used as are appeals from orders overruling new trials.
In the last case I read from that State a woman recovered upon an insurance policy on the life of her husband, a verdict for $5,000.00. The court was of the opinion that, under the law, the facts being practically undisputed, plaintiff had not the legal right to recover, and he therefore set the verdict aside.
Had the woman been unfortunate enough to have been com- pelled to sue in Texas, she would have had no road open to her to obtain relief, but would have been obliged to have waited and tried her case again, and run the risk of having another verdict set aside.
In Missouri she appealed and the appellate court set aside the judgment, granting a new trial and re-established the verdict,-a sensible, practical, just way to proceed, and a way that should be provided in Texas.
If the attorney for any litigant is willing to back the verdict he has recovered to the extent of the costs of an appeal from an order granting a new trial, he ought to have the right to do so.
I once tried a case before my old friend, Judge L. B. High- tower, Sr., in Liberty County.
I represented the Western Union Telegraph Company. The argument closed late at night.
I told the Judge that if he would allow the case to go over till morning I would write him a perfectly fair charge. He assented, and next morning used the charge, which was just what I would have given had I been in his place. On our way back to the hotel the night before he said to me: "Norman, you made a cracker-jack speech, but it will do you no good. No corporation ever escapes from this bunch over here."
When the jury came in I was at the far end of the court room. The verdict was for defendant,-a result almost without prece- dent in that court.
The Judge was so astounded that he called to me across the court room: "Norman, does that suit you?" I, of course, said it did.
A motion for a new trial was a waste of paper before him, and none was filed.
He strongly believed in twelve bonos et legales homines, and he was right.
Some verdicts are, of course, outrageous, but upon the whole
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juries are right on facts far oftener than courts are on the law. The reports will abundantly prove the truth of this statement.
Their stupidity is sometimes irritating. After a three days' boundary trial before me, in which, as is usual in such cases, there had been a swearing duel between surveyors, the jury came in, headed by a fine-looking man of apparent intelligence, who said: "We want to ask one question. We want to know where the original surveyor put the line between the two tracts of land." I said: "If the parties knew that you wouldn't be here. That is just what you were sent out to determine."
If the richest and most influential man in his (Judge High- tower's) district was a party to a case tried before him without a jury, and that man was shown to have been guilty of, or a party to anything fraudulent or "crooked," he would excoriate him in burning words in delivering his oral conclusions upon the facts.
He had no fear of any man's influence, and he loathed dis- honesty with unspeakable bitterness and contempt, and was not afraid to say so. Honesty, courage, impartiality, and legal ability, made him a Judge before whom every man could appear with confidence that his cause would be ably and impartially tried.
He was a better Judge asleep than some I have seen were when awake.
On one occasion a valued friend of mine, Finney McDonald, a good lawyer of Montgomery County, and I were trying a tele- graph case. In the course of the trial he objected to an inter- rogatory and to the answer: I said: "That's perfectly admis- sible," but he was not convinced as the answer contained in fact the core of my defense, and as a verdict for the defendant in Montgomery County was almost as unusual as one in Liberty County, I was as anxious to get the answer in as he was to keep it out.
It was after dinner, and the day was cold, and the Judge sat by the stove and had gone sound to sleep. I insisted that he be not disturbed, but my insistence was unavailing, so I gently woke him up. He said: "Well, what's the trouble?" I said: "I have asked the following question, which you can read. It and the answer are both objected to." He read both and instantly said, "objection overruled," and dropped his head back and in ten seconds was asleep again.
When the argument was over he gave a perfectly unobjection- able charge, and in about three and a half hours the jury returned a verdict for defendant. My friend on the other side was out- raged, and was sure the inadmissible (as he thought) evidence was responsible for the result. So far as I knew, or know yet, the identical question had been passed on but once in Texas, and that was in a telegraph case, reference to which I agreed to send
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my disappointed opponent. I did so immediately on my return, and he did not even file a motion for a new trial.
Another Judge, whom I assume was awake, had excluded evi- dence absolutely identical and the judgment was reversed. While writing this, I examined the case which I sent the losing side, as just stated.
My longest remembered memory of the bench is, if I may per- petrate an "Irish Bull," when I never reached it. The day I was twenty-six and one-half years old I was nominated for District Judge of the Galveston Court, but a combination of independent Democrats and Republicans defeated several Democratic candi- dates, myself among the number, by small majorities.
That against me was 108, while some of my colleagues got through by less than one-tenth of that number of votes.
Judge Stewart was elected by perfectly legitimate politics, and held the position for about thirty years.
Judge Andrew P. McCormick defeated Judge Chas. L. Cleveland for State Senator.
Judge Stewart was a good lawyer, and made a capable judge, and was a kindly, amiable man of unquestioned integrity. He practiced law before the Civil War and stuck to his country habits, and put on no frills,-indeed not as many as he should have done.
On one occasion the head of the Galveston Bar, who believed in observance of judicial appearance and propriety, escorted a New York lawyer to the court house to call on Judge Stewart. The New Yorker was accustomed to judges in gowns and seated apart far from humbler men, the very embodiment of judicial dignity. It was a hot day and Judge Stewart was trying a dull case. He had his coat off, both feet hoisted on the judge's stand, and was leaning far back smoking a cob pipe. The local lawyer, knowing how his guest felt, was deeply mortified, and it can be assumed the visitor was horrified, but he never saw a judge who had a cleaner official record than the Texas judge who so shocked his sense of judicial propriety.
The incident reminds me of one very similar which was related to me by a friend in Houston, one of the ablest lawyers at the bar.
He once lived in the country, and an old country friend had called to see him, who was uneducated, roughly dressed, un- familiar with city ways, brawny and unshaven, but was a manly, honest, plain-spoken old hero. While the two were discussing old times there came in a New York lawyer who was associated with the Houston lawyer in a case. He was dressed in the latest product of the sartorial art. The Houston friend said: "Mr. Winslow, allow me to present you to my old friend (giving his name), who was a brave soldier in war, and is a worthy and honored citizen in peace." The New Yorker acknowledged the
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introduction with gracious courtesy, and the introduction was hardly over before the old "Confed" said: "Cap'n (meaning his Houston friend), talkin' 'bout de war, when I got home from Virginny I didn't have a dollar. Thar wuz a nigger on my place what had eighty dollars, and he 'lowed as how he wanted to play poker. We elum up in de fodder lof' and I won ever dollar of dat nigger's money." The Captain, desiring to smooth over the contretemps, said, in his courtly, suave way: "Now you see, Mr. Winslow, the results of war. My friend romanced so much in camp that everything he thinks about he believes to be true, and he has imagined a story on himself." The old "Confed" didn't intend to have his veracity impeached, so he said: "You're wrong, Cap'n. Hit ain't no story. Hit's the God's truth. I sho' did skin dat nigger outen eighty dollars." The feelings of the "Cap'n" can be imagined, but not described.
The old "Confed" said to me one day: "Judge, kin I git offen the jury. I don't want to send nobody to the penitentiary or hang 'em, and I ain't gwine to do it." "Oh, yes, I reckon I would, too, if the law and the evidence said do it. I'd do what I swore." He stopped for a moment, and then added with vehement earnest- ness: "Unless he belonged to Hood's Brigade. I'll swear I wouldn't send no Hood Brigade man to pen or the gallows. They done suffered enough, God knows."
A tragedy crossed the life of that humble, sturdy old hero, and he was brought before me charged with homicide. He called a man to account for language used concerning a member of his family. A difficulty arose, and he killed the man. It was dis- tressing, and grieved me deeply, as I knew and esteemed both men.
When the indictment was returned I told the sheriff to with- hold execution of the warrant of arrest till the second day. I knew that the Reunion of Hood's Texas Brigade was to be held next day ten miles away, and the stalwart old defendant would want to mingle with his old comrades, and he was entitled to bail and could give a hundred thousand dollar bond, if necessary.
The next day he did not wait to be arrested, but came in and gave bail. He was, of course, acquitted. He was amusing in his sincerity and simplicity.
Misfortune fell hard upon the old fellow, but he bore it like the man that he was. I trust he rests in a peaceful tent on the eternal camping ground "beyond the river."
HON. GEORGE MASON-A GREAT LAWYER.
A case was tried many years ago in Galveston in which the late Colonel George Mason of that city played a most surprising part. The facts were related to me by Colonel D. A. Nunn of Crockett, as he and I rode over the sand hills of Leon County one hot afternoon.
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When memorial resolutions were presented, years afterwards, in honor of Colonel Mason at a meeting of the State Bar Associa- tion I summarized the facts in a brief address, and Colonel Nunn, who was present, told me afterwards he had forgotten he had ever related the incident to me, but that I had repeated the facts almost verbatim.
Colonel Nunn had spent two years in preparation of the case, and it took three weeks to try it. Single depositions cost as much as $50.
As I recall, Asa H. Willie and Charles L. Cleveland represented the defense. That it was well represented all who read this will know. When the case was to be argued one morning, Colonel Nunn went the night before to Colonel Mason's house, to plan the order of presentation of the mass of testimony.
To his astonishment and alarm Colonel Mason seemed to have no clear conception of a single issue, and scarcely talked coher- ently about the case. Colonel Nunn left almost in despair. Next morning he opened for the plaintiff, and counsel for the defense followed with arguments such as might have been expected of such lawyers. Colonel Mason had not proceeded far in his clos- ing speech before the accuracy of some date, or amount, or record, referred to by him was challenged.
There had been books of account, accounts of sales, drafts, stated accounts, and almost every conceivable kind of written evidence reaching back for years, and he had not made a single memorandum, or at least had none in hand.
He was a large, stately, ponderous kind of a man, deliberate of speech, and slow in movement. He said: "I refer to the rec- ord." The record sustained him, and every interruption met the same reply, and the same result followed. Not once was he in error. For seven hours he stood before the jury without the scratch of a pen, or a note, or word, or phrase set down as a reminder, depending on nothing but his great intellect and mar- velous memory.
He secured a verdict for every dollar-forty thousand or more, that he sued for.
There is not one man in ten thousand capable of such an achievement.
Colonel Mason evidently was in agreement with Judge Roberts, who said: "Never use a pencil, or paper, or make a note when trying a case. Depend wholly on your memory."
There is much sound philosophy in what the old judge said. The memory, like any other faculty, becomes weakened and often atrophied, if not cultivated and exercised. If we forsake reliance upon it and depend on writing, it will cease to function in a large measure.
George Mason was a son of the Mason who figured in the
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Mason-Slidell incident during the Civil War, and grandson of George Mason, who wrote the famous resolutions of 1798, which have furnished so many politicians a theme for argument, or at least for declamation, and was a great lawyer.
The collection of the judgment was almost as remarkable an achievement as its recovery. As I recall, Colonel Nunn told me it took several years, during which he was once shot at by the defendant, but his zeal knew no abatement, his industry was un- flagging, his persistency phenomenal, his courage dauntless. He conceived the idea that what purported to be a dresser or a bureau in the defendant's house was in fact an iron safe. No constabulary officer could, of course, break into the house, but Colonel Nunn succeeded in a perfectly legitimate way in making a levy on the dresser (?) and was rewarded to the extent of about $30,000.
Colonel Nunn appeared before me the first hour after I took my seat as Judge of the Twelfth District, in some very important matters, and my ruling very much offended him,-so much so that for years he refused to exchange the common courtesies of social life with me, and declared, I was told, that I was a "kid judge who developed in a day into a Jeffreys," but he was, while a man of strong feeling, at heart a just man. Several years rolled around and I found myself in his home town sitting as Judge in a case in which he took a leading part. He had not exchanged even the customary salutations with me, and tried the case, and made all objections as if he had a personal grievance against me, and the attorneys on the other side.
When it had been submitted to the jury he approached me and said: "Judge, come with me and I will drive you over our little town and around it." I, of course, cheerfully accepted his invi- tation, and after a delightful drive he carried me to his elegant and hospitable home, where I met his queenly and noble wife,-a sister of Hon. Frank A. Williams, and renewed my acquaintance with his charming daughter, whom I had known before.
It is a delightful memory associated with a big man physically and professionally, and who scorned every art of the "shyster."
When a man who had employed him in a case was asked by him what he could prove, the man replied by asking him what was necessary to be done. He said, as he drew up to his six feet five, "It is necessary for you to go through that door, and go quick, or I will kick you through." The client went.
JURIES.
Those citizens who are drawn to serve as jurors serve their country at a greater sacrifice,-at least most of them do,-and get less thanks for their service than do any other public ser- vants,-for such they are.
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I believe that a very large proportion of jurors are honest and try to do their duty, yet they are often interrogated on their voir dire as if counsel think they are crooks. Their place of birth, their age, their family relations, their residence, their business, the extent of their acquaintance, and every other element, re- lation and incident in their lives, that ingenuity can conjure up as a basis for a question is probed into, and half of the questions are an inexcusable waste of words, and time, and the people's money.
The man who is questioned as to fitness to serve on a jury is pitched from counsel to counsel as he were the ball in a game of battle-dore and shuttlecock, and he is led into the realms of meta- physics, psychology, and mental philosophy, and supposition, and conjecture, and probability until, unless he is a man of unusual intelligence, he does not know his own mind. I have thought sometimes that many men I have heard questioned on their voir dire would have been justified in returning the kind of answer that a man who was undergoing a civil service examination gave when asked, "How near does the sun ever get to the earth?" The answer was, "I don't know, but not near enough to interfere with my doing good work for the government."
If some venireman were to say in response to such questions as I have heard put to men who were being examined as a pros- pective or possible juror, that whenever he might have been born, or wherever he might live, or whatever his business might be, he would render a fair verdict to the best of his ability, I would not, were I judge, either fine or reprimand him.
I have known it to take from an hour to an hour and a half to select twelve men to try a civil case, when no talesmen were necessary, and when just as fair a jury could have been obtained in fifteen minutes.
Such a proceeding is nothing more or less than a studied and strenuous effort on the part of each side, to see that a jury is obtained that will not, by any possibility, give the other side a verdict.
Every lawyer knows that it is no unusual thing for it to take several days to get a jury in a murder case, but I have not the patience to write on that theme.
The examination of veniremen is, in such cases, carried to ex- tremes which reflect on the court that permits such trifling with the law, justice, and common sense.
If I were on the bench in the trial of a criminal case, and a venireman were to answer in the negative the statutory questions, which when answered in the affirmative make his exclusion from the jury mandatory, and were to say he could, regardless of what he had read or heard, and of what opinions had thereby formed, render a fair and impartial verdict, I would rule him a
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qualified juror and stop all further questions. If any court saw fit to hold such action erroneous it could take the responsibility. If there is any precedent that makes such action erroneous, the sooner it is overruled, the better it will be for the good name of the courts, and for the people.
If the examination of veniremen on their voir dire were per- mitted unrestrained to be carried to such limits as the >awyers who make a specialty of criminal practice would carry it, if not restrained, the result would be that every jury in a criminal case would be composed of either fools or knaves, or a mixture of the two.
A few years ago a court opened on the Canadian side of the boundary line on the same Monday that one opened on the United States side. Both had an important homicide case to try.
At the end of the week the Canadian court had tried the homi- cide case, and a number of others, and adjourned for the term, while in the court on the United States side the jury in the homi- cide case had not been completed.
Except when the character of the panel is unusually poor it would be just as safe, and just as promotive of justice, to draw twelve names out of twenty-four, shaken up in a hat, if an honest verdict is really. desired.
I went on one occasion into a court presided over Hon. E. R. Sinks who for 23 years so efficiently and acceptably filled the position of judge of the Brenham-Bastrop district. I was repre- senting the Western Union Telegraph Company and wanted to try, as I always did. In ten years service for that company I applied for a continuance but twice, and was forced to do so then by delay on the part of the other side,-yet I secured nearly 60 per cent of verdicts "for defendant."
On the occasion referred to Judge Sinks said: "Judge, I have no jury except those twelve men who have just been out on a murder case." I said: "I never saw one of them before in my life, but if they will give me a fair trial I will take them."
The local counsel could not well afford to repudiate twelve men who had been sitting in judgment on the life or liberty of a fellow-man, so they went to trial.
In three hours a fair verdict was rendered, which I promptly paid.
I defended the same character of case in Kerr County which had been brought there, though the plaintiff lived in Bexar County, because Kerr County had a large German population and the son-in-law of the plaintiff was a merchant in Kerrville.
I was never there before in my life, and knew but one man in the county, and knew him very slightly. All the panel were the same to me, and I do not recall striking a single name. The ver- dict was for the defendant.
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The average jury will do right if the law is given it in such form by the court as that it can understand it.
There is too much abstract law put in charges, both civil and criminal, and they are too long. Take, for example, a charge on assault with intent to murder. The average judge begins and defines murder, and before the degrees were abolished by statute, defined murder in both degrees, and then defined manslaughter, and then copied the statutory causes which will reduce homicide to manslaughter, and then went back and told the jury that if they believed the act of the defendant had he killed the deceased, would have been murder in either degree then his act was assault with intent to murder, but if they believed his act would have been manslaughter, then the assaulted party not having been killed, the act was aggravated assault and battery.
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