USA > Texas > Governors who have been, and other public men of Texas > Part 29
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I held that the drawer of the check had nothing to do with the Clearing House, and was not in privity with it as he had no right to avail himself of its regulations in any way; hence was not bound by its action or non-action.
The Court of Civil Appeals said I was clearly wrong. The Supreme Court said I rendered a proper judgment, and the Court of Civil Appeals erroneously reversed it. I made a most elaborate finding of fact and conclusion of law, and my friend, John C. Logue, of Andrews, Streetman, Logue & Mobley, who handled the case for Dorchester, receiver, with great skill, as he does all cases, was kind enough to say that my findings and conclusions were the best he ever saw. Evidently the Court of Civil Appeals did not agree with him. I am glad the Supreme Court did.
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If any lawyer desires to take a course in mental athletics he can do so by reading the case of Underwood vs. Security, etc., Co., 207 S. W., 642. He will wonder, as I do, how I ever succeeded in being half right in that case.
The Court of Civil Appeals held I was half right, holding that the plaintiff was not entitled to recover on one of two policies, but was half wrong when I held she was entitled to recover on the other.
My friends, Judge Streetman and Richard West Franklin, com- monly called "Dick," were on opposing sides. Both appealed from my holding, but after the Court of Civil Appeals held I was half wrong in allowing any recovery, only Judge Streetman was left to try to get relief.
The company's lawyer was in the case, but his associate was not in need of his help. He can take care of himself. He did so to the extent of one-half, as the Supreme Court held with me as to the other half.
It took a widow eight years to get it decided, whether under a printed contract she was entitled to what the contract promised her. When Hamlet soliloquized, among the inventory of troubles which led him to desire to "shuffle off this mortal coil" was "the law's delay." Had he lived in this day and time he would not have soliloquized, but have "shuffled off" in sheer despair.
Major H. H. Boone and Captain J. C. Hutcheson of Houston often appeared in opposing sides before me, and when they did, there was a battle between legal gladiators fought out fairly and on the loftiest plane of professional ethics and honor. Neither man would urge before a court a legal proposition that he did not believe was sound.
I have sat as judge in many counties in Texas and spent alto- gether nearly eighteen years on the trial bench, and I have never had before me in any case any two men who knew their cases better, nor tried them more skillfully and honorably than did Major Boone and Captain Hutcheson. Some of the most interest- ing and difficult cases I have ever been called upon to try, were cases in which they were counsel, and unlike many lawyers they were helpful to the court, and as I was, when on the bench of an interior district quite a youthful judge, I needed help.
The judge, whether young or old, who thinks he does not need help from the counsel before him, sadly errs.
My personal regard for both men was very strong, and they knew I was going to give them, as far as lay in my power, a fair trial in every case, so in all the years in which they practiced before me not a single note of unpleasantness ever marred our intercourse.
Both men had one quality, or gift, or capacity,-I might almost say virtue, which is a most commendable one for any lawyer to
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possess,-that is, they could stand defeat in legal battle without whining or complaining, and they never quarreled with the judge if he gave a new trial. They appeared on the same side once before me in a personal injury case and secured a verdict for $30,000.00. It was manifestly against the weight of the evidence, and I set it aside, as did every judge, State and Federal, before which any case growing out of the same wreck was tried.
When court was over some friend asked Major Boone, in my presence, what kind of luck he had during the term. He replied : "First rate, I got a verdict for $30,000.00," and laughingly added, "but Norman here set it aside," but not a word of even implied criticism or complaint did he utter.
I have heard of the adage that the losing lawyer has three remedies: "to get a new trial, if he can; if he fails, then to appeal, and next get drunk and adjourn to the tavern and cuss the judge." It has seemed to me at times that some lawyers had the idea that the remedies were cumulative.
As I have said before, Major Boone's sons have proved worthy of their ancestry, and Captain Hutcheson's have done likewise. If there is one man who has better opportunity to determine the ability of lawyers, it is the trial judge. Therefore, I feel that I am prepared to write advisedly when I say that J. C. Hutcheson, Jr., who practiced before me for nearly eleven years, appearing in nearly every character of case, and who was appointed Judge of the United States District Court for the Southern District of Texas before he was thirty-nine years of age, has, in my judg- ment, no superior as a lawyer on the Federal Bench in Texas, and very few, if any, outside of it.
His younger half-brother is a member of the firm of Baker, Botts, Parker & Garwood, and long since "arrived" as a most capable lawyer. He arrived, too, as a soldier almost as soon as his feet touched the soil of France.
He enlisted, as I have heard, as a private in the artillery branch of the regular army.
As soon as he reached the front, and before he was given time to sleep or rest, he was assigned to a gun, and he stood by it and kept it in action for fourteen consecutive hours.
His father had seen service on the fighting front more than fifty years before, and stood at the post of duty till valor could no more avail; and on a foreign soil, with his mother and wife and little ones 4,000 miles away, the son proved the truth of the adage, which is as true as it is old: "Blood will tell."
LAW LICENSEES WHO MADE GOOD.
I recall four men whose law licenses I signed, all of whom have "made good" as lawyers,-a fact which has given me much
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pleasure: Thos. H. Ball, W. L. Dean, S. W. Dean and James E. Webb.
The three latter were all boys, from the post oaks of Madison County, while T. H. Ball was born and raised in Huntsville.
The Dean brothers came off of a small farm among the "Shin- oaks" in the northeast part of Madison County.
The younger brother, S. W. Dean, resigned from the bench of the Twelfth District after several years of most efficient service. W. L. Dean could have had the same position at any time, but he preferred to practice at the bar. He was for four years Senator from his district, and his name is associated with as much, perhaps more, important legislation than is that of any Senator who served in the Thirty-fifth and Thirty-sixth Legis- latures. I know of no man at the bar to whom I would more readily commit important litigation on either the civil or criminal docket than W. L. Dean, because he is a lawyer of the first class.
James E. Webb went to San Antonio in 1889 with a law license, and but little else except a high sense of honor, native ability, and untiring industry.
With such equipment he rose to the front rank in the exception- ally able bar of that city.
He was a gentleman from the crown of his head to the soles of his feet, and practiced his profession in accordance with the most exacting standards of professional ethics, and personal honor. His tragic death in the burning of the Country Club at San Antonio a few years ago deprived the bar of a lawyer of the first rank, and a valuable citizen, and carried sorrow to many hearts, and to none greater than to my own.
It gratifies me very much to know that his son and namesake, who bears a striking resemblance to his father, gives promise to prove a worthy successor to his knightly sire.
I have already dealt with the name of my valued friend, T. H. Ball.
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CHAPTER XXXVIII.
THE STATE AND THE DEFENDANT.
My service on the bench led me to the conclusion-which the observation of later years has strengthened-that the widespread conception of the function of the District Attorney and the measure of his duty which aforetime prevailed, and in the remote districts prevails, yet, it is to be feared to a harmful extent, is wholly erroneous.
It was that he was charged with but one duty, and that was to get convictions, and that it was not his duty to see that any witnesses were summoned who were not favorable to conviction.
The conception that all witnesses should be summoned and put on the stand-whom he believed to be credible-it matters not whether their testimony was favorable to the prosecution or not- never seemed to dawn on the mind of the average District Attorney.
Under the iniquitous fee system of paying District Attorneys, which has happily been cast into the junk heap, as it should have been forty years ago, a mercenary man, not possessed of moral principle, could become a menace to the liberty of the citizen.
I recall distinctly the first witness I put on the stand in a crim- inal case in the largest county in my district, when I was District Attorney, an office I held for about a year. His first statement was, "I done come here to testify fur de State-I ain't no witness fur de 'fendant." When I said to him: "I want you to understand you are here to tell the truth, whether it helps the State or the defendant," he was astounded as were the members of the bar sitting by, and the counsel for the defendant.
It is as much the duty of the District Attorney to see that the defendant gets a fair trial as it is of the Judge. Any District Attorney who keeps back, fails to disclose, or excludes any evi- dence favorable to the defendant of which he knows and which is available, does that which he has no right to do, and which proves him unworthy to hold his office.
A few years ago the editor of one of the leading law journals of the United States, went for one or more successive summers to England, and studied at first hand, the methods of procedure in the criminal courts of that country.
He attended the trial of cases in both the nisi prius and appel- late courts, and upon his return wrote most interestingly con- cerning what he saw and heard. He said that during the trial of an important criminal case the Queen's Counsel, an officer wliose function, as I understand, corresponds to those of the District Attorney in the United States, leaned over to the counsel for the prisoner and speaking sotto voce, said: "There is a point
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very favorable to the defendant which you seem to have over- looked."
If the fate of a defendant in some Texas courts depended on the County Attorney, or District Attorney, suggesting to his counsel a point in his favor, he would be doomed without hope.
Of course the erroneous and harmful conception of the function of prosecuting officers which I criticize, is not universal, but hundreds of lawyers will bear me witness that it exists, but fortunately for the administration of justice, to a far less extent, than it once did.
The writer above referred to attended a session of the High Court of Appeals in London, over which the Lord Chief Justice presided. That great judicial functionary receives a salary nearly four times as great as that paid the Chief Justice of the Supreme Court of the United tates. The appellant had been convicted of murder. In the course of the argument the counsel for appellant referred to the alleged unfairness of the identi- fication of the defendant.
The Lord Chief Justice said: "If there has been anything un- fair in the matter of identification, we will not hesitate to quash the conviction." It seems that there is no reversals and remands over there, but they "quash" a conviction and that ends the case. Either the counsel for appellant or the Queen's Counsel stated that there was in the Temple of the Court, or accessible in the city, an intelligent witness who testified on the trial. The Lord High Justice said: "Bring him in at once-we will hear him." He was brought in and testified.
That proceeding would be as impossible under the laws of Texas as it would be to try a defendant in his absence from the State. There is a case reported in Texas in which the defendant was convicted of the theft of a colt. He insisted the colt was his property and was raised by him. Obviously, it was a case of mistaken identity. He was convicted and appealed. Pending the appeal the colt, alleged to have been stolen, was found, or returned to the premises of the owner. Affidavits were at onee prepared, showing that a mistake had been made, and an entirely innocent man had been convicted, but the Court of Appeals would not consider them. They were not pierced by a pink tape, and fastened with a seal, and approved by a judge; in other words, were not part of the "record." The only way out of the judicial tragedy was to find some kind of error in the record and reverse the case. If the record had been absolutely flawless, the con- viction of a perfectly innocent citizen would have been affirmed- because of lack of some hoary precedent or a statute covering such a case.
It is not meant by what is said to criticize the court in any degree. It did all in its power under the law. I have never had
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any great measure of respect for any kind of precedent which conflicted with my ideas of justice, and had I been on the court, and my views could have prevailed, I would, when the affidavits were presented, have not only annulled the conviction, but have ordered the indictment burnt, the decree expunged from the record, and every vestige of testimony of the miscarriage of justice destroyed.
There was no statute or precedent for such action, but I know of no prohibitive statute, hence as my old friend, Governor Lub- bock, said about registering warrants when no law authorized it, I would have "made a law of my own."
The District Attorneys who served on my court gave me but little trouble in the way of such procedure, as I have criticized.
They were Ben Campbell, later the very efficient and progres- sive Mayor of Houston, and B. D. Dashiell. The mind of the former was so constituted that he was predisposed to believe in the guilt of every defendant, but he prosecuted with a fairness equalled to his vigor, which is to say with all possible fairness, and the same is true of the latter. In a certain homicide case in which the defendant was distantly related to me, but within a prohibited degree, the immediate predecessor of Mr. Campbell had insisted on a conviction, but the jury disagreed.
I did not go even into the court house while the defendant was on trial, but I heard that Mr. Campbell refused to ask a con- viction. When he met me later he said: "I would not ask any jury to convict that old man, because he was justified. He had to kill to save his own life."
I did not ask him for the reason for his action, but I knew that he would have done just what the defendant did, had there been forty men instead of ten preparing to assault him.
I recall a trial for homicide before me of a handsome, stylishly dressed "Octoroon," charged with killing her husband.
B. D. Dashiell prosecuted, and my Republican friend, Lock McDaniel, in the recent past United States District Attorney for the Southern District of Texas, as fair and square a man as ever lived, defended. It was a battle in the open, and I never heard two abler speeches. Rapier struck fire from rapier, but the champion of the defendant won, as he should have done.
Referring again to the English methods of procedure in crim- inal cases, the editor referred to said that no representative of the pleas of the crown dared to make any appeal to the emotions of the jury. If he did he was fined for contempt of court. I venture to say that a thousand lawyers in Texas can recall when they have known a District Attorney to open his case with a bare outline of the evidence, and in his closing speech not only appeal to the emotions of the jury, but assail the defendant in bitter terms.
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Whenever that is done, the judge should set aside the verdict as soon as it is returned.
Just before I left the bench, a civil case was being tried before me, in which all the plaintiffs were not only ladies and gentle- men of moral worth and high social position, but were my esteemed personal friends, as were their counsel, one of whom was pro forma plaintiff.
The defendant was a negro. The subject of the litigation was some city lots or a plot of city suburban land.
Just as the defendant was about to leave the witness stand, one of the counsel for plaintiff, a most worthy man, a capable man and my friend, said to the defendant: "Didn't you come to this city as a Federal soldier fifty years ago, or about that time?" I said: "That question is improper and should not have been asked, and if a verdiet is returned for plaintiff, I will set it aside. When or how the defendant came here, or from where, has noth- ing to do with this case. The only question to be determined here is, did, or did not, the ancestor of plaintiffs execute and deliver to defendant a deed to the land sued for?"
The jury found he did. I do not recall ever having seen a negro in a civil suit lose before a jury of white men when he ought to have won, and I have tried many such cases.
I do not mean to be understood as including Harris County in my comments on some District Attorneys, for while I have no desire to appear in the criminal court, and rarely do, I have been at times virtually obliged to do so. I did so while Hon. John H. Crooker was District Attorney, and have had occasion to have professional intercourse with his successor, Hon. E. T. Branch, and have found always that the office was conducted in accordance with what I consider the proper conception of its functions.
There is an investigator of facts attached to it, and he is sent out, not to work up a case for the State, but to get at the bot- tom facts.
In the recent past, to oblige a brother lawyer who had never had any experience in criminal practice, I appeared for a negro woman, a descendant of an old family servant of the brother lawyer.
The investigator came to my office and I had an eye-witness of the killing detail her testimony, and had my stenographer take it down. Before she began, the investigator of facts said: "I will read you, Judge, what I have." I said: "No, let this woman make her statement first." When she had finished he said: "That is just about what I have found out." I presented all the evidence to Judge Crooker and he dismissed the case.
In another case, with which I had no connection, a young man plead guilty to the felony theft of railroad brass. He had a wife
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and two children. It was before jobs were so plentiful and wages so high. He worked when work was obtainable, and his hands were hard from honest toil, but when he could get no job and his wife and children were cold and hungry, he committed a legal crime.
I said to Judge Crooker: "That is a case for a suspended sen- tence." He said: "No, I will dismiss it," and he did and he was right. "Blessed are the merciful, for they shall obtain mercy." I consider Harris County fortunate in the possession of the force of officers who represent the State in the criminal court. The Assistant District Attorney, J. V. Lea, was District Attorney in the interior, and also District Attorney in the Criminal District Court of Galveston and Harris counties. He is absolutely fair. He has represented the State, and appeared in civil cases before me, and we have been friends from our boyhood days, and I know of no man, barring none, who can sift the wheat out of the chaff in a mass of testimony, and put it before the jury, and apply the law to it, with more simplicity, clearness and power.
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CHAPTER XXXIX.
LEGAL VICTORIES.
There have been some remarkable legal victories in civil cases won in Texas. That achieved by Colonel George Mason by his remarkable, indeed marvelous argument of seven hours before a jury, in which, without a note or a memorandum of any kind, he sifted out, analyzed and presented to a jury the salient and controlling facts in a mass of testimony which it had taken three weeks to take, has rarely been surpassed.
The next one to occur to my mind is that won in the case of Dexter G. Hitchcock vs. The City of Galveston.
That chivalrous gentleman, gallant soldier, and splendidly equipped lawyer, Major F. Charles Hume, filed the petition in that case in the Federal Court when he was in his thirty-second year, though his client believed his attorney was forty-five, as he told me himself. The judge who first heard the case on de- murrers and exceptions and who tried it on the facts, afterwards became a member of the Supreme Court of the United States.
Hon. William P. Ballinger, Hon. George Flournoy and Hon. George Mason, three as able lawyers as were then in Texas, repre- sented the City.
On the trial before a jury, Hon. A. H. Willie appeared in the case. On his return from Congress he had been chosen City Attorney of Galveston and took Colonel Mason's place.
The demurrers and exceptions of the City were sustained. Major Hume had the courage to stand by his pleading.
His necessarily lengthy petition was written in his most peculiar but legible handwriting, and he told me that the preparation of the drawings showing the streets, blocks and sidewalks which his client undertook to work upon cost his client $800.00. They were used as exhibits to the petition. It was more than three years before the case was reached on the docket of the Supreme Court of the United States. He argued the appeal in person. while Judge Ballinger and Colonel Flournoy argued the case of the City.
The court divided four to three, reversed the Circuit Court. On the trial before a jury, Major Hume was first obliged to meet the objection that his client was not in fact a citizen of Illinois, as he alleged, but of Texas. He won on that issue. On the facts he secured a verdict for $112,000.00, and on passing on the motion for a new trial, the Judge said had the verdict been $200,000.00, he would not have disturbed it.
Though no appeal was taken, it required three years more to collect the judgment, but it was collected, principal and interest. "to the uttermost farthing."
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If any lawyer thirty-two years of age in Texas, or anywhere else, has in these modern days won such a legal victory against such odds, the fact has never come to my knowledge.
The third notable legal victory which recurs to my mind was won by a man whom I doubt if one man out of five of the bar of Texas ever heard of, much less saw.
If the attics in the homes of a generation or two back were searched, they will reveal dust-covered copies of a magazine, entitled "Godey's Ladies' Book, Sarah Josepha Hale, Editress." That lady, I have been advised, was the mother of William G. Hale, the lawyer I refer to.
He practiced prior to the Civil War in the Corpus Christi section of the State, as I now recall.
I have seen him and bowed to him on the street, but do not claim to have known him.
He was, I should say, not over five feet six or seven inches in height, and weighed not exceeding 140 pounds. He was always plainly, indeed often shabbily, dressed. He had a head that was very long through from front to back, and setting far back on it, wore generally a narrow-brimmed boy's hat, and both pockets of his coat were filled with "Dick Dead-Eye" and "Wild Bill" novels.
Like many of the great lawyers, he imbibed stimulants very freely, but the effects never reached above his neck.
If I am not mistaken, the first equity case in the way of a re- ceivership proceedings ever filed in the Federal Court at Galveston was filed about 1867 or 1868.
It was entitled N. A. Cowdrey vs. G. H. & H. R. R., or perhaps against certain bondholders or stockholders, or both.
Hon. John C. Watrous, who some may recall, Sam Houston endeavored strenuously to have impeached, was presiding judge of the court, and had been prior to the war.
He was, I have been advised, a very able man.
Mr. Hale represented the receiver, while Judge Ballinger and that distinguished and very able lawyer, Jeremiah S. Black of Pennsylvania, represented the defendants.
A member of the bar of Galveston told me many years ago that he heard Mr. Hale's argument in 1870.
He said while the other side were arguing the case, Mr. Hale sat in a large chair in almost a recumbent position, holding a newspaper, and apparently paying not the slightest attention to the argument of the great lawyers.
When his turn came to speak, he rose and beckoned to a negro in the back part of the court room, and the negro brought him a wicker basket, which he opened and took out, first, a neatly folded napkin, next, a silver flask, the screwed-on top of which constituted a cup.
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