Hiram Parks Bell: Amusing Incidents in Court
The following is Chapter 9 from Hiram Bell’s book, Men and Things, published 1907:
“It often happens that in the contention of strife and anxieties in court proceedings, something will occur to excite mirth and relieve the tension of counsel and litigants. The spectators are always on the ‘qui vive’ for something of this sort. It is astonishing how quickly they catch a sally of wit, a felicitous retort, or an exhibition of the ludicrous. They listen to the judges and lawyers and scan the witnesses in the expectation of hearing something either interesting or amusing. A witness was on the stand in Cherokee Superior Court. He was a minister of the Gospel. I have observed that a certain class of that sacred profession (I hope a small one) on the witness stand always seek to impress themselves upon the court and country---they generally succeed. I never understood the reason for it. But it has been true since the time of the Rev. Burwell Shines. The witness in question was a master in the figurative style of speech, as the sequel will show. He had made his statement in answer to questions on the direct examination. The late judge George N. Lester, conducting the cross examination, said, ‘Do I understand you to state so and so,’ repeating the statement made by the witness to which he replied with an air of offended sacradotal dignity: ‘Mistur Luster, I have chawed my terbacker.’
“On a certain Tuesday morning in Ellijay, just as I entered the courtroom, the judge called the case of George Ellis vs. William Cole, trover, and announced Greer for the plaintiff. The parties announced ‘ready.’ Counsel read the declaration to the jury and swore the plaintiff as a witness, who went upon the stand. He had an expression of peculiar sadness that engaged my attention, excited my curiosity, and presented an imploring appeal for sympathy. He was tall, angular and bony in physique, with very black hair and beard. His head had the appearance of having been just taken from a charcoal heap; his arms were long, and hands and feet large. His trousers lacked about four inches of reaching to his shoes, which were homemade and of primitive style. He was in his shirt sleeves---that is, he was without coat or vest---the collar unbuttoned. The buttons on his bosom were manufactured, of course, cotton thread. His shoulders were so round, or rather bent, that when they touched the wall his head projected about one foot from it as he stood upon the stand. As he stood thus he was the living personification of sorrow. From his testimony, which was delivered in monosyllables mainly, it appeared that he did a certain amount of ditching, for which Cole was to pay him a cow and calf and a rifle-gun. The gun was delivered; Cole refused to deliver the cattle. The calf had died, but another calf had succeeded it. The action was brought to recover the cow and her increase. Greer (feeling that he had proven a strong case), turned the witness to the other side for examination. ‘Ah, stop a moment, Mr. Ellis. What became of that cow and calf?’ With an expression of anguish that he would be supposed to show in looking for the last time upon his wife’s coffin, he answered in these words: ‘They tell me that the cow are dead, and that the calf what she had superior to that time were in the same fix.’
“Unity in variety seems to be a universal law of nature. Of all the multitudinous leaves of the forest, no two of them are precisely alike. The same is true of the forms, features, and intellectual attributes of the human race. Men appearing very much alike in many respects, yet differ widely in an infinite variety of characteristics. We meet, occasionally, a man of no merit, but great ignorance and self-assertion, who moves among his fellows with a sort of ‘hail, the conquering hero comes’ air that advertises him as a candidate for the popularity and fame among men, for which he has already given himself credit. His manners and movements are as pompous and bombastic as a Pronunciamento of Santa Anna in revolutionary times in Mexico. Whether this character results from a high soul with lofty aspirations that has been starved and dwarfed by the want of opportunities for expansion and development, or whether it is the offspring of narrow, contracted ignorance, stimulated by an unworthy and unattainable ambition, presents a problem that is referred to the psychological for solution. These reflections have been suggested by the character of a witness for the State in the case of the State vs. Richard Ratliff, charged with the offense of assault and battery in Gilmer Superior Court. This witness was a man of striking appearance and manner. He was slightly above medium height, a little rotund but of shapely figure, with rather a springy, yet dignified movement. His complexion was florid and nose decidedly red. He wore a black Prince Albert coat, a beaver hat, standing collar, supported by a rather wide black stock. Taken altogether, he was by no means a man of repulsive appearance---rather the contrary. His great pretention was his facility in the use of words; his strength lay in his capacity to coin them, and his weakness in his total ignorance of their meaning. The trouble out of which the indictment grew occurred at a ‘road working.’ Of course a ‘road working’ without at least one fight would be justly esteemed a failure. There was but one on this occasion, but this one had in it (according to the statement of the witness) the element of what the lawyers call a ‘continuendo,’ when the witness related the first part (for it took place in installments) and stopped. ‘Go on,’ said the solicitor-general, ‘and state what next occurred.’ Straightening up himself and adjusting his stock and standing collar with an expression on his face which gave the public notice that something important was about to happen, he said: ‘Previous aufter that, I was follering along before, and seen the priminary gwines on.’
“In Union Superior Court the case of John Doe ex dem. Brown, et al. v. Richard Roe, cas. ejr., and Smith, tenant, etc. was on trial. The defense was the statute of limitations. The late witty, humorous, eloquent John W.H. Underwood was counsel for defendant. A witness on the stand had stated clearly and intelligently about the possession of the lot sued for, how much was cleared, etc., when the following occurred. Counsel: ‘Mr. Witness, you say Smith is in possession of this lot of land, claiming it as his?’ Witness: ‘Yes, sir.’ Counsel: ‘You say Smith cleared twenty acres of the lot?’ Witness: ‘Yes, sir.’ Counsel: ‘When did Smith first enter into the possession of it?’ Witness: ‘I don’t remember the time.’ Counsel: ‘See if you cannot refresh your recollection?’ Witness: ‘Well, Squire, really, (scratching his head just behind the right ear), I can’t remember.’ Counsel: ‘Was it in the spring, summer, fall, or winter?’ Witness: (in a deep study for a moment), then brightening up, answered: ‘Ah! I remember now, Squire, it was the time that March Addington wintered John Butt’s bull.’
In the rural districts of the country, before the advent of railroads, telegraphs, daily mails, common schools, and cheap watches, even the most intelligent paid but little attention to dates. There was nothing in their surroundings that made it especially necessary to store away in the garrett of memory the rubbish of dry and useless dates. It was convenient for them to regulate their calendar by important events, occurring under their own observation. Very few knew or cared anything about the day on which Columbus sailed from Palos on his great voyage of discovery, or when he discovered San Salvador, or the date of the inauguration of the Reformation, or when the last of the ‘Stuarts’ was driven from the throne, the British dynasty changed and the ‘Bill of Rights’ adopted by the Convention Parliament. But, ‘Big Court,’ the ‘Camp-meeting’ and the ‘Fourth of July Barbecue,’ they attended and remembered. These events became epochal in their history, as the bases from which they reckoned time. The fact that March Addington ‘wintered John Butt’s bull,’ was perhaps of less importance than these historic events; yet it was by no means of insignificance in vindicating the truth of a question involving time. There is a deep philosophy underlying these facts. It is found in the statement that if you wish to interest a person in any matter, you must identify him with its activities. It is upon this principle that a wife never forgets the date of her marriage, or a mother the birth of her child. The question of time arises in some form in the trial of every case. The case of the State vs. Hugh Porter for malicious mischief was no exception to the rule. The fact alleged as constituting the offense was the killing of Shade Green’s cow by Porter in his cornfield. Mr. Green was a man of some humor, which, though in the rough, would sometimes sparkle. He was an honest man and a truthful witness; which, unfortunately, cannot be said of all witnesses. The cow was found dead in Porter’s cornfield; the damage to the corn, the habit of the animal, and the height of the fence were under investigation. John Echols, a witness, had described the height of the fence by stating that ‘he could stand astride of it.’ Mr. Green, the prosecutor, was on the stand. I asked him as follows: ‘How high was Porter’s fence?’ to which he replied: ‘If was about up to John Echols’ fork.’ To the question: ‘When was the cow found dead?’ he answered: ‘It was summers along in tater diggin time.’ I asked: ‘When do we dig potatoes?’ He replied: ‘Ah! well now, that depends entirely on when the bread gives out.’
“Augustus M. Russell was a man of strongly marked characteristics in many respects. In person, he was tall---six feet and two inches---his hair straight and black, with brown eyes and symmetrical form. His intellect was of a very high order, bright, active, and vigorous. By affinity, his relations and connection were, socially and intellectually, high; by the law of moral gravitation, his associations were otherwise. With his mental superiority, steady habits, close application and extensive research would have easily placed him among those at the head of his profession anywhere. As it was, his professional reading did not extend far beyond Hotchkiss’ Codification and Cobb’s Analysis and Forms. His clients and cases were of a class that did not yield a revenue equal to the ‘steel trust’ and ‘Standard Oil Company.’ To contemplate him as a whole was suggestive of royalty in ruins. The Hon. Alexander H. Stephens told me of an adventure he had with him in Calhoun, Georgia. Mr. Stephens made a speech during a political campaign at which Russell happened to be present. When he concluded, Russell’s friends and chums called on him to reply, which he did, and in which he most recklessly assailed Stephens with all sorts of charges without the slightest regard to truth---to one of which, that greatly nettled Mr. Stephens, he sharply said: ‘I deny the fact.’ Russell paused a moment and then said, ‘Yes, fellow citizens, that is the gentleman’s trouble, he always denies the facts.’ Mr. Stephens added that that lesson taught him the importance of caution in the use of words.
“In Lumpkin Superior Court, Russell was defending a client charged with an offense by special presentment of the grand jury. The presentment had not been entered on the minutes of court as the law required. He moved to quash the presentment on that ground. The solicitor-general moved an order to enter it on the minutes of court ‘Nunc pro tune,’ to which he responded: ‘May it please your honor, I have examined all the authorities, searched Hotchkiss and Cobb (and your honor knows Mr. Cobb was a very sharp man), and I cannot find in the books any authority for the making of a nunc pro tune business out of a special presentment.’ The judge ruled that there was such authority.
“Emancipation changed many things. Among them, the definition of the crime of disturbing religious worship. The change was from a ‘Congregation of white persons, assembled for public worship’ to ‘A congregation of persons assembled for Divine service.’ Before this change, J.P.C. was indicted and tried in Lumpkin Superior Court for the offense of interrupting and disturbing ‘a congregation of white persons, lawfully assembled for public worship.’ He was defended by Mr. Russell. There were two witnesses in the case, the Rev. Mr. Roberts, and the Hon. Eli Wehunt. The former was a primitive, or ‘Hardshell’ Baptist clergyman. The crime was alleged to have been committed while he was preaching on a certain Sunday at his own house. It appeared from the evidence that Mr. Roberts’ home was a combination of dwelling and still-house, and that the products of the still-house were stored in the smokehouse located at some distance from where it was made. The preaching was in that part of the combination used as the dwelling. It did not appear what the theme of the discourse was. Whether it was a learned digging in search of the Greek roots of immersion, or of the decree before the foundation of the world that foreordained whatsoever comes to pass, was left by the testimony in the case to conjecture. It was probably both. It did appear that Mr. Roberts and his neighbors had fine orchards and that the apple crop was abundant and that it was a ‘pity’ to allow the fruit to rot and waste. It further appeared that the neighbors frequently met at Mr. Roberts’, especially on Sunday (as it was a leisure day), though the visits were by no means confined to that day. It did not appear that any females attended that service. Nor did it appear whether the crowd of men met for the service or whether the service was improvised because the crowd had assembled. Mr. Roberts, in his testimony, stated clearly and distinctly that neither he nor his congregation were disturbed in the slightest degree. The Hon. Eli Wehunt, who, after the time of the trial, obtained the high honor of representing Lumpkin County in the General Assembly of the State---a county that had been represented by such men as the honorable W.P. Price and Honorable Weir Boyd---had been denied the advantage of an early education. Indeed, I am informed that he did not know a letter of the alphabet. He was of Dutch descent and of marked personality. He was of medium height and size; his eyes grey and set far back; his cheek bones high, and his forehead low; his beard long and red, carefully divided in the middle, each half neatly platted and skillfully tied into a knot under his chin. The color of his hair was immune from the power of description; the nearest approach to description is to say that it seemed to be a combination of pale claybank and Albino pink. There was nothing peculiar in his dress except that at the time of the trial, he wore a vest made of spotted, tanned fawn skin; and it was a picturesque garment. He testified that while Mr. Roberts was preaching on the Sunday in question in his dwelling, he and defendant met behind the smokehouse in which the brandy was stored---with no one but himself and the defendant present. The defendant abused him, and they had a private quarrel. With this evidence, the State closed; the defendant introduced none, and the court took a recess for dinner. Upon resuming the bench after dinner, the judge said, ‘Gentlemen, proceed with the argument of this case. Mr. Russell, state your points to the solicitor-general.’ Russell rose from his seat with some difficulty, and balancing and steadying himself as well as he could, responded to the judge’s order as follows: ‘M-M-may it please your h-honor, my point in the defense is that Eli Wehunt is not a congregation of white persons assembled for public worship.’ The verdict of the jury sustained the point.
“Almost every superior court has pending a case that attracts more than ordinary public interest. This was true of a case in Gilmer County, popularly known as ‘The Granny King case.’ Mrs. King was a kind-hearted old lady, who practiced a profession that made her especially popular with the married ladies in a thickly-settled community with a rapidly increasing birth rate. Mr. and Mrs. King owned a plantation containing some fine bottom land on ‘Owltown Creek.’ They had no children. Mr. King died. Most people have observed that it is not difficult to find those who desire the possession of what the late Judge Dawson A. Walker was accustomed to call ‘rich flatland.’ It turned out to be true in this case. The Ahab who sought this vineyard was a collateral relative who resided in Dawson County, whose name was ‘Montgomery.’ He applied for letters of administration. Mrs. King resisted the application on the ground that she, as the widow, was entitled to it. Rice, Boyd, and Smith represented Montgomery; James R. Brown and H.P. Bell represented the widow. Pending the controversy over the administration, Montgomery filed a bill in equity to recover the property. It turned out on the trial of the right to administration that Mrs. King had been previously married. She claimed to have been divorced but could only show one verdict granting it. Montgomery won the administration. Mrs. King set up in her answer and cross bill that her money, earned by her profession, paid for the land, that the deed was taken in his name, and that he held it as an implied, or resulting trust for her. On the trial, Boyd moved to dismiss his bill, to which counsel for Mrs. King objected, on the ground that she had set up false equities. In support of his motion, Boyd, among other things, said: ‘May it please your honor, we have met the gentlemen on the other side of this fight and vanquished them on every field; and now, may it please your honor, when we want to retire across the “Amicalola mountain,” and enjoy in peace our victory, the gentlemen won’t let us.’ The motion was refused, the case tried, and Mrs. King won. Fannin, Union, and Towns followed the circuit, closing with Towns. Boyd and Smith returned home in the same buggy. After a long silence, Boyd suddenly said: ‘Bro. Smith, we have no cause to complain of our luck during this riding; we have lost but one case.’ ‘That is true, Bro. Boyd, but we have tried but one,’ replied Smith---the ‘Granny King Case.’
“It is as refreshing to a lawyer as a fountain in a desert to a caravan to meet with a party in a case who will ‘swear the truth to his own hurt.’ In an age distinguished for its avarice, it is seldom a party in interest can be found who will not discolor the truth in favor of his interest. Occasionally, however, a rare exception to this general rule will occur. Such an instance took place in Fannin Superior Court. John A. Jervis, Esqr., sued John Brown, in ejectment, for the recovery of a lot of land. The defendant was an octogenarian---his hair white as snow, his rather small person slightly bent with age. The expression of his face placid and benevolent; he looked the very embodiment of peace and innocence. Jervis presented his evidence, showing his absolute right to recover. No counsel was marked or appeared for the defendant. Col. Weir Boyd, sitting by, seeing the situation, and humanely desiring to do a kindness to an aged, worthy, poor old man, or share with him in a division of the land in the event he recovered, or both, held a brief consultation with the defendant, said: ‘Your honor will please mark my name for the defendant;’ administered the witness’s oath to defendant and said to him: ‘Uncle Johnny, go on the stand,’ and proceeded to examine him as follows: Counsel: ‘Uncle Johnny, do you know the land sued for in this case?’ Witness: ‘I do.’ Counsel: ‘Who is in possession of this land?’ Witness: ‘I am.’ Counsel: ‘How long have you been in possession?’ Witness: ‘Nine or ten years.’ Counsel: ‘What improvements have you put on this lot?’ Witness: ‘I built a cabin and cleared twelve or fifteen acres.’ Counsel: ‘Did anybody ever disturb your possession?’ Witness: ‘No, sir.’ Counsel: ‘You state, Uncle Johnny, that you have occupied this land without disturbance, continuously, for nine or ten years, built a house on it, and cleared ten or fifteen acres of it,---all the time claiming it as your own?’ Witness: ‘I just went on the land and cleared, and built the house, and lived in it. I never claimed it. It is not my land.’ Counsel: ‘What! Do you say that this is not your land?’ Witness: ‘Yes, sir; I say that this land is not mine. I never claimed it. It belongs to the plaintiff.’ Counsel: ‘Come down, Uncle Johnny.’
Charles Alston of Towns County was insulted, or supposed himself insulted, to an extent that, in his opinion, demanded blood in atonement. He therefore challenged the offender. Whether the challenge resulted from the gravity of the offense, the homicidal impulse, supposed to be irresistible, in the constitutional organism of a certain class of the genus homo, or from hereditary chivalry (for he was a native South Carolinian), was never satisfactorily ascertained. The grand jury of the county, less in sympathy with the punctillios of personal honor than the enforcement of criminal law, indicted him for an alleged violation thereof. This rude action of the grand jury amused the people of the community but disgusted the defendant. He employed Col. Weir Boyd to defend him. the case, from its novelty in this section of the State, created great interest in the public mind; and from its importance, weighed heavily upon the thought of his faithful counsel. After its continuance for several terms of the court, it was finally tried, resulting in the triumphant acquittal of the defendant, to the disparagement of the penal code and to the honor of the code duello. After the adjournment of the court at which the trial took place, Boyd and Marshall S. Smith were returning home in a buggy, together as usual, Boyd driving the regulation mule and Smith intensely absorbed in an effort to untangle the knotty kinks in a skein of metaphysical abstrusities and ‘Distinguish and divide a hair, ’twixt north and northwest side.’ Boyd said to him: ‘Brother Smith, what do you think of my speech in the Alston case?’ Smith replied, ‘Brother Boyd, it was a failure.’ Boyd said (with solemn emphasis): ‘Brother Smith, I carried that speech too long, it soured.’
“Men do not always show wisdom in choosing an avocation. They sometimes disregard the advice of the Roman philosopher ‘to consult capacity and follow inclination,’ and follow inclination without consulting capacity. This truth finds a signal illustration in two applications for admission to the bar. They were made at different times, but to the superior court of the same county. One of the applicants was an ignorant, pretentious, pedantic pedagogue. He was tall, of very dark complexion, and elaborately and gaudily dressed. When the court met in the morning for the examination, he arose with a pompous, magisterial sort of movement. Having very much the appearance of a combined advertisement of an animal and circus show, he addressed the court as follows: ‘May it please your honor, as I have recently been engaged in the very interesting study of philology, I ask the privilege of answering the questions in this examination in a paraphrastic manner.’ The privilege was accorded. He answered the questions so very paraphrastically that the judge advised him to withdraw his application. C.W., the other applicant, had passed middle life by at least a decade. He had failed to realize his ambitious hopes for distinction in defeat for numerous small offices which he sought. He had taught singing school without discovering a bonanza in melody but was not without power in politics in his militia district, which was remote from the county courthouse. In stature, he was a little below medium size, in intellect, below mediocrity; and in culture, still lower. His two upper front teeth were missing, and the color of his hair was of the claybank variety. His application was duly filed, and the order of the court, appointing the committee of examination, regularly passed and entered on the minutes of court. The committee met the applicant, G.L. conducting the examination on common law. After asking: ‘What was law in general? What was civil law; what natural, and what revealed law was?’ And various questions about rights---alienable and inalienable, absolute and relative---all of which was Egyptian hieroglyphics to W., G.L. turned to the ‘economic or domestic relation,’ when the following occurred: G.L.: ‘Mr. W., how many kinds of persons are there in law?’ No answer. G.L., explaining, stated, ‘there are two, natural and artificial.’ G.L.: ‘What are natural persons?’ No answer. G.L., explaining again, ‘Natural persons are such as the God of nature formed; you and I are natural persons.’ G.L.: ‘What is an artificial person?’ ‘A woman,’ promptly answered W. G.L.: ‘Mr. W., how many kinds of children are there in law?’ ‘Two,’ answered W. G.L.: ‘That is correct. Now, Mr. W., what are they?’ W.: ‘Boys and gals.’ He was admitted, and a license certifying ‘that after examination he was found to be learned and well skilled in the knowledge of the law; and authorized to practice in all the courts of law and equity in this State, except the Supreme Court.’ Somehow litigants managed their business without his assistance. I never knew nor heard of his receiving a retainer or appearing in a case.
“Young men may avoid breakers ahead by choosing a life work with deliberation and decision and pursuing it with integrity and industry.”