Warren County Local History by Dallas Bogan
|Dallas Bogan on 19 September 2004|
|The following was taken from Dallas Bogan's book, "The Pioneer Writings of Josiah Morrow."|
|Return to Index to see a list of other articles by Dallas Bogan|
In the sketches of the early lawyers and judges of Warren County, given in
preceding articles, the fact was noted that none of the efforts at the bar of
the lawyers or opinions from the bench of the judges had been preserved. Ohio
made no provisions for publishing reports of cases decided in her courts until
1824, and then only of cases decided in the Supreme Court. Before that date,
it is true, newspaper sometimes gave imperfect reports of trials of great public
interest, but rarely was given even an abstract of an attorney's argument or
a judge's opinion or charge to a jury, and thus the fame of some of our distinguished
lawyers and judges for learning in the law rests wholly on tradition.
For this reason I deem it fortunate that I am able to give some rulings on the bench of Francis Dunlevy, the first president judge of the Cincinnati Circuit. These I take from a printed account in my possession of a trial in Cincinnati in 1807, four years after the judge was first elected to the bench.
The fact may be recalled that Francis Dunlevy was the only one of the early president judges who was not a lawyer at the time of his election to the bench, and that he was admitted to the bar after serving fourteen years on the bench. It should, however, be stated in this connection that he was a man of liberal education and wide intelligence, and that he had served in the territorial legislature and in the first constitutional convention. Although he had not regularly studied law in a law office, he was probably fitted for the bench than were most of the practicing lawyers of the new state. He was re- elected and served two terms of seven years on the bench. The case to which I have referred and in which he was the presiding judge was tried in Cincinnati a little over a hundred years ago and awakened more interest than any other trial in the early history of Ohio.
General James Findlay, after whom Fort Findlay and the city
of Findlay, Ohio, were named was then receiver of public money in the land office
at Cincinnati, and he found that large sums of money were stolen from him in
the two or three years preceding April, 1807. The receiver at that time did
not keep the public money in a bank, and perhaps it was not deemed prudent to
do so. He kept large sums of money at his home in a trunk and in iron chests,
securely locked, as he supposed. The kind of currency which then went to make
up the large sums in the public land office is shown by the description in the
indictment in this case of the packages of money stolen at three different times.
The defendant was indicted both for burglary and larceny. He was charged with stealing from the dwelling house of James Findlay in the township of Cincinnati in the county of Hamilton on August 16, 1805, eight banknotes of the value of $800 on May 30, 1806, bank notes of the value of $9,000, foreign gold of the value of $2,600 and coin of the United States of the value of $16,000, and one paper bundle containing notes of the value of $16,000.
The total value of all the sums stolen mentioned in the indictment was $47,000. In the trial General Findlay testified that he had lost upwards of $47,000 and to that sum he was positive. He believed also in the addition to the loss of the public funds, he had lost $7,000 of his own money. He testified that he generally kept his gold coin and bank notes in a trunk for convenience of change and also to be portable in case of fire; he also put silver coin in the trunk, but when it got full, he emptied the silver into an iron chest. Some of his clerks usually slept in the room in which the money was kept. When he first discovered his loss of money he avoided mention of it except to a few persons in his confidence, thinking he might make up the loss to the public himself, and might the more surely detect the thief.
The trial was commenced on April 21, 1807, at the same term of court at which
the indictment was found. On the bench were Dunlevy, presiding
judge, and Silver, Foster and McFarland, associate judges.
The prosecuting attorney was Arthur St. Clair Jr., and he was
assisted by Jacob Burnett, Ethan Stone and Elias Glover. The
counsel for the defendant were Nicholas Longworth of Cincinnati,
Joseph H. Crane of Dayton, Henry Brush of
Chillicothe and Richard S. Thomas of Lebanon. The defendant
was a man of means, owning much real estate, and was able to employ able attorneys.
Trials were not conducted then as now. On the first day a motion was made that the prisoner be permitted to take his place within the bar so as to be near his counsel, and it was not allowed. The prisoner was, however, given a seat in a box next behind his counsel and soon after, his wife, with her child, took a seat near him. After intimation from the bench she withdrew to the gallery where there were women among the spectators.
I have always understood that under our old constitution in trials in the court of common pleas the decision of legal questions was left to the presiding judge, and that he usually did not even consult the associate judges on such questions. But this was not the case in this trial. In several cases an opinion was announced as that of a majority of the court, and the presiding judge was not always on the side of the majority. After the trial Judge Dunlevy wrote the governor in an appeal for clemency to the prisoner, that many things were admitted as evidence against the accused that he thought ought not to have been admitted.
The most important witness against the accused was a mulatto who had formerly
been a servant to General Findlay and who admitted that he
was an accomplice in the crime committed, but he had not been indicted, and
possibly had been promised immunity if he would testify for the prosecution.
There was a long argument on the admissibility of the testimony of this witness.
Judge Dunlevy gave the opinion of the court as follows:
"The court will admit the testimony. I have always thought it a hard practice, but I cannot go against the universal practice and decisions of court. I think it a dangerous kind of testimony, but am bound to admit it. I disclaim any kind of discretion in this case, as I think it dangerous and tending to tyranny when exercised on the bench. We have admitted this kind of testimony and cannot now reject it. If there is any precedent in our court to the contrary, I know it not, and cannot be bound by it. I must say I know no difference between this case and any other. If a person is indicted for stealing a hundred thousand dollars or five cents, it is to me the same. I have always directed the jury to be very careful in admitting the testimony of an accomplice when uncorroborated by the other testimony."
This trial was concluded in four days after the beginning of the examination of witnesses, the court holding eight sessions. The argument before the jury occupied one day and one night session. Seven of the eight attorneys in the case addressed the jury speaking in the following order: St Clair, the prosecuting attorney, opened for the state and he was followed by Stone, also for the state: next Longworth, Crane and Brush spoke for the defense ad Burnet and Glover closed for the state. At the conclusion of the argument, Judge Dunlevy charged the jury. The following is given in the report of the case as the substance of his charge:
"You have for several days past assiduously and patiently attended to
the evidence and arguments in this cause and I am far from wishing to consume
more of your time. A few observations, however, I feel it my duty to make.
"The law by which crimes of this nature are punished is to be found in our statute book. Two different crimes are charged in the indictment, burglary and larceny. I will observe that the doctrine of principal and accessory is not recognized by our statutes. If a person be indicted as an aider, he cannot be convicted, but whoever are equally concerned become principals. It is conceded that the crimes laid in the indictment have been committed; it is, however, your duty to examine and determine this. Compare the facts in evidence before you with the counts in the indictment and determine whether they amount to the crimes laid in the indictment. If you are of a clear opinion they do examine how far or how many of these were committed by the prisoner. If you believe he did not commit the whole you must only find him guilty on those he did not commit, and not guilty generally.
"Counsel have told you that a particeps criminis is not admissible testimony. By admitting the testimony the court have declared their opinion. They have declared it was proper. I should be sorry to see any person convicted upon the solitary, uncorroborated testimony of an accomplice. But it has been the practice to admit this kind of testimony, and you must determine from the character of Britton and the manner of his story the credit to which he is entitled. Suspicions will always remain upon the accomplice. You must also take into consideration the circumstances attending the principal facts. Immaterial circumstances or slight presumptions have no weight unless joined with such other circumstances as have a necessary connection with the principal facts.
"Presumptive evidence is often of the strongest kind; where a number of circumstances take place which could not exist without the principal fact. This is a strong presumption that the principal fact happened. Clear and direct testimony is not always to be expected. In this case you must compare the whole evidence together, and compare it in separate parts and upon that comparison determine whether the prisoner has committed the crime charges against him.
"You are to discharge from your minds everything unconnected with the evidence. What will be the consequences of an acquittal or conviction of the prisoner is at this time of no consideration for you. Whether in either case it will be of serious loss and inconvenience to the public, or whether it will plunge individuals into misery, ruin and disgrace, you must act with firmness and decide with justice. You must not consider the character either of the prisoner of the prosecutor; you must determine by the testimony and by that only. Passion or prejudice, hatred or friendship must not govern you. Even the most darling attribute of humanity, mercy, must not incline you one little from the line of your duty. You must not judge from the ruin on the one side or from the punishment on the other, but from the stern dictates of the law and from the matters of fact.
"If the evidence does not appear to you reasonable and consistent, or if you doubt the weight of the evidence, it must, as to that part, go to an acquittal of the prisoner. You will throw his innocence into one scale and the evidence into the other, and bring in your verdict according to the solemn oath you have taken.
"If, in your belief, the evidence proves the charges laid in the indictment, the day laid is not material, provided it be so near the time when the facts were committed as to induce you to believe they were the same facts mentioned in the indictment."
In less than half an hour the jury agreed upon a verdict of "guilty as
he stands indicted." The sentence of the court pronounced the next day
was that the defendant for the burglary charged in the first count pay a fine
of one hundred dollars and be imprisoned thirty days, and for the larcenies
charged he pay a fine of one hundred dollars and make restitution to James
Findlay by paying him double the value of the stolen property, to wit,
$94,000, and that he be publicly whipped ten stripes on his naked back at 10
o'clock in the forenoon of the 23rd of May next, and stand committed until sentence
Before the day of punishment by public whipping arrived General Findlay who entered into an agreement with the prisoner by which restitution of the public money stolen was in large part to be made, and Findlay and his friends agreed to use their efforts to obtain from the governor a remission of the sentence of public whipping. When May 23 arrived the prisoner was taken to the place where corporal punishment was inflicted and the sheriff produced and read a pardon from Governor Thomas Kirker. Letters asking for the pardon had been written to the governor by General Findlay, Judge Dunlevy, Judge McFarland, Senator John Smith, the prosecuting attorney and other counsel for the prosecution.
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This page created 19 September 2004 and last updated
28 September, 2008
© 2004 Arne H Trelvik All rights reserved