USA > Texas > Governors who have been, and other public men of Texas > Part 27
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When the charge is completed and read, the jury are as little enlightened as if it had not been given it, and the charge is from three to six feet long.
The court should tell them that if a defendant shoots at or cuts another wilfully and intentionally, and when he is in a state of mind sufficiently cool to contemplate what he is doing, then he has committed an assault on malice, and if he intended to kill the party assaulted the act was assault with intent to murder. That is all the law necessary unless the evidence requires a charge on a lesser grade of assault. If it does, fit the charge to the facts without copying the statutory grounds, which as Judge Clark said in Guffee vs. The State are purely illustrative, not exclusive.
Some years ago I was sitting as special judge in a large number of cases, in which the local judge was disqualified.
A criminal case was called in which he was not disqualified. It was for assault with intent to murder. I sat at the counsel table and wrote a charge, while he wrote one on the bench. I charged on aggravated assault and battery. He did not. Both charges were written with a pen. His covered eight pages,-mine cov- ered two
I handed him mine to examine. He looked at it, and turned it over and upside down before beginning to read, as if it were a rare curiosity. At last he said: "I don't see why this won't do. I'll give it," and he did. The defendant was convicted and no assault was made on the charge.
Referring again to the question of jurors and juries, it is to say that which is as trite as it is true, that there is no more important duty that can devolve upon any citizen, than to determine under oath disputed questions of fact upon which depend not only valu- able property rights, but most often the life or liberty of his fellow man. No duty so often involves a loss of time and money as does jury duty, and what is even a greater burden, jurors are often obliged in obedience to their oaths to condemn their fellow
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man to humiliation, disgrace, and suffering, and not infrequently to death, and they should be presumed to be decent, honest citi- zens, as the large majority of them are, and be treated accordingly by court and counsel, and the judge who is quick to fine one or more of them for being a few minutes late, or for even not coming at all, is very apt to exercise his power unjustly.
I learned a lesson on the subject of fines once that I have never forgotten. The incident had escaped my memory for the time being when I wrote some pages back that I had never en- tered but one fine in eighteen years' service.
A number of very important criminal cases were ready for trial, in all of which one humble citizen, a peddler, was an indis- pensable State's witness. He lived only three or four miles from town, and had been summoned, but was not present, and had sent on excuse.
His absence entailed great expense on the State, and I entered a fine against him nisi.
He never appeared, because to prevent his appearance some of the gang to which the defendants belonged had murdered him and buried him in a sand bed near his humble home.
I later sentenced one, who took no part in the actual murder, but was, in a statutory sense, guilty, to prison, and he served his sentence.
Juries are more blamed than praised, and more blamed than they should be, and I am glad to set down a few words in their defense, and pay them a tribute that is their due.
INSTANCES OF RARE PROFESSIONAL SKILL.
Any lawyer should be able to win a case where he has available plenty of testimony, and the law applicable to it will sustain a recovery, but none but a lawyer of the first order of ability can take a few disconnected, and so to speak, incoherent facts, and build up honestly a case that will support recovery.
Judge Waltus H. Gill came before me on one occasion with, in effect, a broken lantern and a dead man as the entire basis for re- covery. The rest of the evidence was a matter of deduction, and construction, and analysis of facts, and the connecting of the handling of trains in a yard with the dead man and the lantern. Not a single witness had seen the man fall, or had seen him killed.
The opposing counsel were as able as there are in Texas, but Judge .Gill built up a case that stood assault before the jury and all the courts.
The achievement stands out in my memory as the most skillful piece of professional work I ever saw done.
I was instrumental on one occasion in placing in the hands of my friend and neighbor, John W. Parker, of Houston, a personal
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injury action which was handled in such a way as to be on a par with the case tried by Judge Gill, and the cases were very similar, a dead man and a lantern being the foundation of both.
Mr. Parker had not a single witness when he announced ready, but depended on getting testimony out of the large number of witnesses the defendant railroad had present. It was a bold, but apparently hopeless venture, but he recovered and collected a large verdict.
To win such professional victories in open honest legal battle requires a combination of sound judgment, legal ability, and con- summate skill as a trial lawyer.
I feel that it is worth the space that it will take to show how the case last referred, to strikingly confirmed the truth of the scriptural adage, "Cast thy bread upon the waters for thou shalt find it after many days." Eccl. 11-1.
Years before the case was brought, an humble, uneducated man, not more than an ordinarily skillful carpenter, contracted to do certain work for me in enlarging the capacity of my very humble cottage in which I then lived.
What it should cost me was definitely agreed on. When the job was finished it had cost sixty per cent more than the agreed price. He frankly admitted he had made a mistake, and I knew that legally I owed him nothing. I reasoned, however, that he was a poor man, working at the then rate of $2.00 a day, and while what I would have to pay was then a very material sum to me, I concluded I was better able to do without than he was, and I paid him in full, for which he was very grateful.
Years rolled by,-the old carpenter died, but not before his son had married and brought his wife to the family home. The son was the victim of the railroad accident. When the widow in her weeds entered my office to request my assistance to get a settle- ment out of the railroad, she opened the conversation by saying: "I came to you because my father-in-law often told me of your kindness to him."
The railroad rejected her claim, and as I was on the bench at the time I put the matter in the hands of my son, and he associated Mr. Parker with him, and the result was as already stated. The bread I cast on the waters, though it did not find me, found one that is more than "me" in my sight.
Of course, the case was not tried in my court, because I do not recall ever having tried any kind of a case in which my son was interested, except where all my action was purely formal or pur- suant to agreement of all those interested in the proceeding. I declined to appoint him receiver of a large estate, though the parties most in interest specially requested his appointment and had a bond for $50,000 ready.
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I required them to go to another judge, who made the appoint- ment.
"Mankind is unco weak And little to be trusted.
If self the wavering balance shake, 'Tis rarely right adjusted."
With me a son is more than "self."
THE COURT'S RULINGS, AND ATTORNEYS.
No judge who has served for any considerable length of time on the bench can have failed to observe how differently different lawyers take the rulings of the court, especially in the matter of the admission or rejection of evidence, or that of action on motion for new trials.
Some lawyers manifest neither surprise or displeasure, or act as if they felt they had been aggrieved, but courteously reserve their exceptions, and proceed with the trial, or if the ruling makes further trial unnecessary or impossible, prepare for ap- peal. They recognize that the judge is liable to err, and that probably he may have ruled correctly, and are just enough to accord to him the purpose to do right.
Other attorneys act as if they felt that the judge had intention- ally done them injustice, and in most unpleasant ways manifest their displeasure, and cherish the judicial action as a personal grievance.
An impartial and competent bystander, who knew neither of two men each representing his respective class, who had wit- nessed such an exhibition, would assign each lawyer to his class, the first to the class of "lawyers"-the second to the class of mere "attorneys" who hold licenses, but who would not be a lawyer if he had a ream of licenses.
I have known capable, worthy lawyers who honestly believed judges ruled against them for personal reasons, and to gratify some personal grudge or dislike. I believe they are grossly mistaken.
I recall a case in which the Supreme Court said I erred almost inexcusably, yet Judge James A. Baker took his exceptions just as suavely and courteously as if I had directed a verdict in his favor.
In another case tried by him, in which he ultimately lost, he bore himself in the same way.
In the latter case I held that the fact that though the plaintiff was for months disabled by injuries received in a railroad wreck, his employers paid him his salary, could not be proved to dimin- ish the damages he suffered, as such payment was a matter of
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grace, with which the railroad had no concern. The Supreme Court approved the holdings.
Most strange to say, the identical question nearly thirty years later came before me. I held the same way. Writ of error was granted on that point alone, as I recall. The Supreme Court held the case for many months, and finally affirmed it, and cited the first case, which I had tried, as it appeared in the reports to support its holding.
The two cases are the only two, so far as I know, in which the question ever arose, and I know of no similar instance.
In ninety-nine cases out of a hundred the lawyer who attributes a personal motive to the judge is wrong. The duties of a judge are so important, and his trust so solemn, that it becomes in- vested with sanctity, and that man is as rare, as he is unworthy, who will prostitute it to personal ends.
Many judges are not learned in the law, but a dishonest one is most unusual.
I have lost repeatedly,-indeed in every case but one-tried before my friend, Henry J. Dannenbaum, one of my successors in the Sixty-first District Court, and while I believe he erred, yet I know he tried to give me a fair trial, because there was no more capable or upright judge on the bench in Texas.
TWO LAWYERS WHO KNEW THE LAW.
It is sometimes the case that civil actions in which no appeal to the emotions can be made, make a lasting impression on the mind of a judge.
Some twelve or fifteen years ago a lawyer of high personal and professional standing who is now dead, brought a suit for in- junction before me, and it was evident that his petition had been prepared with great care, and that he believed in his case.
Both parties to the action were corporations, and as I recall the case involved the question of the distinction between the "police power" (a most elastic term) and the right of "eminent domain."
Hon. H. M. Garwood appeared in person for the firm of Baker, Botts, Parker & Garwood, and demurred to the petition in such way as to present a question decisive of the case.
He had the right, of course, to open the argument on his de- murrer, and he supported his contention by an argument of such luminous clearness, and such persuastive reasoning, which though brief, so thoroughly convinced the opposing counsel that he had no right to relief by the process invoked, that he dismissed his case, and never again filed it.
Both men displayed legal ability,-the one by his masterly argu- ment,-the other by his demonstrated capacity to see the truth and force of the argument.
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If a mere "attorney," as contradistinguished from a "lawyer," had represented the plaintiff, he would have beaten the air, and vexed the judicial ear for hours, and have appealed, and would never have discovered that he had no case to begin with, till he received the bill of costs in the Supreme Court.
I heard through the medium of a friend a few years ago, that the Chief Justice of the Supreme Court of the United States was heard to say to a friend, with whom he was walking home in the afternoon, of one argument day, that "the argument made before us today by Mr. Garwood of Texas was the best argument I have heard since I have been a member of the Supreme Court." I am prepared to believe that statement was made.
JUDICIAL ABILITY AND WIT.
On one occasion that most efficient lawyer, able legislator, and admirable citizen, Walter Gresham, whose sudden death in the very recent past so shocked and grieved a host of friends, was replying to an argument made in support of an attack on certain of his pleading.
Hon. Andrew P. McCormick was judge of the court. He said: "I have very grave doubt of the sufficiency of your pleading to authorize the admission of the evidence you purpose to offer."
Mr. Gresham said: "My pleading is very broad, and I think covers the point." The judge, with a gracious smile and a char- acteristic twinkle of his eye, said: "Unfortunately, when things get too broad they get 'too thin' and the rule applies to pleadings."
Mr. Gresham caught instantly the meaning of the judicial bon mot and took leave to amend.
I was a participant in an amusing incident in the Supreme Court at Galveston on one occasion when Judge Moore was on the bench.
There were two cases on the docket involving the same ques- tion of law, and the question had never been before the court.
I was helping, or trying to help an unlicensed amateur real estate lawyer, who had furnished me an opinion he had dug up, which I found was destructive of his case, because it had been expressly disapproved on appeal to the next highest court in the succession of courts which function in New York, so I was at sea.
That admirable gentleman, Major W. B. Botts, then of the firm of Botts & Baker, was present. As I recollect he rarely appeared in any court, though he was a most excellent lawyer. The discus- sion in some way became very informal, and Judge Moore said: "Major Botts, what do you think of the question?" Major Botts replied: "To be frank with your honor, I am not prepared to express an opinion." Judge Moore then said to me: "What do you think about it, Mr. Kittrell?" I was more or less a beginner in the law, and had not much idea of any kind about the matter,
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so I said: "I can only say, as my older and abler brother has done, that I do not know what to say."
Judge Moore, with a hearty laugh, said: "Counsel and court seem to be in the same fix. We do not know either."
They found out, however, later, and made the question lumin- ously clear. It was the same question which was later determined in 53 Texas, 162, and as I recollect, the decision in whatever case it was first made, was an expensive one to the railroad company, but the justice of the holding cannot be reasonably questioned.
THE CLOSE OF MY JUDICIAL SERVICE IN HOUSTON.
There was one incident, or event, connected with my service on the bench in Houston,-the memory of which will abide with me till my heart throbs for the last time.
More than a year before my last term expired, I announced my purpose not to be a candidate for re-election.
Ten years to a day from the time I qualified, I administered the oath of office to my worthy successor,-Hon. John A. Read, and extended him my congratulations, and inducted him into the judge's seat. When I had done so one of the oldest and most distinguished members of the bar rose and, addressing me, said: "I desire to present you, sir, on behalf of the bar of Houston, a gift, which you will please consider as constructively present. It is a desk rug, chairs, and other appointments necessary to com- pletely furnish the law office to which you are about to retire, and which has been installed in that office."
I had no knowledge or intimation of such kindly purpose, and did not even know where the office was, as my son had se- lected it.
I found attached to the desk in a permanent way a plate beauti- fully engraved, to the effect that the gift had been presented to me by the bar of Houston in token of its appreciation of ten years' service as Judge of the Sixty-first District.
As soon as my successor had taken his seat he announced that his physician imperatively forbade his serving on the bench until the middle of the ensuing October,-a period of about eight months.
A bar meeting was called at once to elect a special judge, at which, as I recall, I was not present. One hundred and twenty- four out of one hundred and twenty-five votes were cast for me over the earnest protest of my son.
I told him, however, that under such circumstances I did not feel that I had the right to refuse such a call to service, and by repeated elections every sixty days I held until my successor was able to take the bench.
Its arduous labors proved too much for his strength and he sank to an early death, deeply and deservedly mourned by many friends.
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JUSTICES OF THE PEACE.
Nearly every lawyer and judge can remember some incident concerning some Justice of the Peace which always brings a smile.
It may be that some of the tales told of those subordinate judicial functionaries are apocryphal, but I have personal knowl- edge of some incidents which are calculated both to cause amuse- ment and to provoke incredulity.
I had occasion once to pass on the admissibility of an entry on the docket of a Justice of the Peace as evidence, and when the question had been passed on, I continued to glance through the docket.
I came upon an entry made in due and solemn form, which revealed that the Justice and the County Attorney had engaged in a fight in the court room, and the Justice determined that the majesty of the law should not be violated, without at least an appearance of vindication, proceeded in due and regular (?) form to swear out a complaint against himself, swear to it before himself, plead guilty before himself, and assess a fine of ten dollars against himself.
His sincerity might not have been, indeed could not have been, questioned, had he stopped there, but ten days later he entered an order reciting that a motion for a new trial had been filed, and after due consideration the court was of the opinion that the law was with the defendant; therefore, the judgment before rendered was ordered set aside and a new trial granted.
The affiant, the defendant, and the judge were combined in the person of his honor-the Justice of the Peace.
I venture to say that the record he made stands an isolation of uniqueness, and without precedent in judicial annals, even in the records of Justices of the Peace.
Some years before the Judge of the District Court while on his way across the country, met two men on horseback, and one was chained to the neck of his horse. The Judge asked the officer where the man was being taken. The reply was to the penitentiary from - County. The Judge says: "Why, court doesn't open there till tomorrow." The officer said quickly, "But (naming the Justice of the Peace referred to above), sent this man." The Judge directed the prisoner to be sent back, and in due form he was sentenced in the District Court.
Many years later, when I was Judge in the same district, I asked the Justice of the Peace if the story was true. He said: "Why the fellow plead guilty and I looked at the statute and it said the penalty was two years in the penitentiary, and I didn't see any use of bothering the District Court with him, so I sent him on to Huntsville."
There is a familiar adage that "Truth is stranger than fiction,"
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and if any reader has any doubt about the truth of the adage, if he will look on page 56 of Ex-Governor Frank R. Lubbock's most interesting memoirs, he will have all doubt removed.
Whatever Frank R. Lubbock wrote down may be accepted as true. He said he was the foreman of one of two juries, both of which returned verdicts in murder cases in Houston about 1838 or 1839.
That counsel for the defendants said their execution would be judicial murder, but that the Judge, whose name he gives, over- ruled all motions and entered a decree that "the prisoners, in consequence of the insecurity of the jail, the extreme cold weather, and their uncomfortable situation," be hung on the Fri- day following, which was done, and the spot where they were executed is called "hangman's grove" till this day.
Such judicial solicitude for the bodily comfort of convicted defendants has rarely been manifested, but it may be safely as- sumed that the defendants would have preferred to have endured a few days of extreme cold, rather than take the chances of land- ing where many good people believe the mercury will be found in the other end of the thermometer.
I knew a very kindly old man when he was Justice of the Peace at nearly 80 years of age. Another old fellow was a great lawyer in the minor courts, and had one form of peroration for all his speeches to court or jury, which was reference to his age, and his early entrance into the profession of the law.
He appeared one day before the venerable Justice in defense of a negro charged with unlawful gaming. There was no jury, and the lawyer concluded a most earnest appeal in these words: "I am sixty-four year old and have been a practicing of law for 43 year, and I never saw a more innocent man in my life than this defendant."
In a moment the old Justice said: "I see your 64 and go you ten better, and he's guilty as a dog, and you know it. Ten dollars."
The same Justice of the Peace, who sent a man to the penitenti- ary, heard a civil case without a jury, and announced to the parties that after he had been to dinner, and attended a horse race set for 2 o'clock he would render judgment.
He seemed slow to act and plaintiff's counsel approached him about it. He said: "I thought that old gray could run, and I bet the defendant the judgment on the race. The old gray come out fifty feet behind and you lost." He kept his word, and entered judgment for the defendant.
An attorney who had been Chief Justice of his State went out before a Justice of the Peace one day to oblige an old friend. The initials of the Ex-Chief Justice were W. P. He argued strenu- ously the controlling point of law, and as he did so, counsel for defendant smiled a smile that plainly implied,-I have an author-
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ity here that will overwhelm him. When the Ex-Chief Justice had closed his opening speech, the opposing counsel rose and said: "Now, your honor, I will show you how differently the gentleman talks now, from what he did when he was Chief Justice of the Supreme Court of this State.
"Here is an identical case, and let me read you his opinion, holding exactly to the contrary of which he has tried to make you believe is the law. When I have read it I shall say no more." He read the opinion, and sat down with a look of triumph on his face.
The Ex-Chief Justice picked up the book and opened it at the case and said: "Now, your honor, let's see who is trying to mis- lead the court. He has read you an opinion by a man of my name, but whose initials are C. J. You have known me thirty years and you know my initials are W. P. That's all I have to say." The old Justice said: "Yes, I see. You don't fool this court. Judgment for the plaintiff."
The opposing lawyer was too dumbfounded to object. That incident was related to me by a most intelligent daughter of the Ex-Chief Justice.
There is a thoroughly authenticated instance in Texas where counsel for a prisoner had to ride under whip and spur for fifty miles, more or less, to secure a writ of habeas corpus to prevent the hanging of the prisoner pursuant to a judgment of a Justice of the Peace.
JUDGE ROBERTS AND THE IRISH BARRISTER.
A most amusing incident occurred once during the session of the Supreme Court at Tyler, where Governor Roberts was pre- siding as Chief Justice.
That charming gentleman, Hon. Thomas B. Greenwood, Associ- ate Justice of the Supreme Court of Texas, told me recently that he had heard his father, a distinguished lawyer whom I had the pleasure of knowing, often relate it.
There lived at Henderson, Rusk County, before and during the War of 1861-1865 a lawyer by the name of Martin Casey. His name unmistakably identified his Irish nationality.
I do not recall ever having seen him, but have been told he was a highly educated man, and from the number of times that his name appears in the earlier reports, must have enjoyed a good practice at the bar.
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