A
tale of true poetic justice lies in a well-worn but seldom-opened docket book
in the Travis County district clerk’s office.
While the punishment assessed
in Cause No. 534, the State of Texas vs. Marcus B. Raper, may or may not have
fit the offense, the case tried in mid-January 1857 is definitely a bizarre instance
of crime leading to rhyme. Judge Thomas H. Duval presided over the matter in the
1840-vintage two-story stone courthouse then standing at 4th and Guadalupe streets
in Austin.
The long-ago proceeding and the judicial order that closed
it might well have been forgotten had it not been for the Travis County Bar Association,
which in 1940 included a mention of it in a 48-page commemorative booklet called
“One Hundredth Anniversary of the District Courts of Travis County, Texas.” At
the time, then district judge and future U.S. senator Ralph W. Yarborough served
as president of the association. Well-known as a Texas history buff, Yarborough
may have been the person who saved Cause No. 534 from total obscurity.
The
order entered by Second Judicial District Judge Duval, who not long after went
on to the federal bench, fails to note what offense Raper had been tried for,
but a jury of 12 “good and lawful men of Travis County” had found the defendant
guilty as charged.
Those men included A.O. Horne, S.G. Sneed, A.H. Chalmers,
Alexander W. Terrell, George Robinson, William P. De Normandie, Charles S. West,
I.L.W. Cooke, James W. Smith, John B. Costa, F.W. Chandler and A.G. Campbell.
Other than their residency in the same Central Texas county, the men had something
else in common: All were attorneys. Beyond that, at least one of them had a sense
of humor.
As soon as the state and the defendant’s attorney declared themselves
ready for trial, Raper entered a guilty plea. Judge Duval accepted that, but charged
the petit jury with determining Raper’s punishment. Not long after retiring to
the jury room for their deliberations, the panel notified bailiff Jonathan Frazier
that it had reached a decision in the case.
Once
the jury had been seated, the judge asked if they had reached a verdict. Foreman
Horne replied that they had and stood to announce it:
“We, the jury, lawful
men,
“fine the defendant, Dollars Ten.
“A guilty man beyond all doubt,
“Let the defendant pay himself out.
“Thus much we’ve said this freezing
morn,
“Your obedient servant, A.O. Horne.”
To what extent that brief
bit of legal poetry brought any disorder to the court in the form of laughter
is not known. However, that Judge Duval allowed the finding to be entered into
the record amounts to strong circumstantial evidence that he took no offense at
the levity.
The evident gaiety of the jurors, coupled with Horne’s reference
to “this freezing morn,” raises the possibility that the foreman and perhaps some
of his fellow panel members may have felt it necessary to stave off the cold with
a warming brace or two of whiskey during the course of their otherwise sober deliberations.
Of course, this would not have been out of any disrespect to the judicial system
or the peace and dignity of the state, but merely a measure of self-protection
against icy temperatures. They were lawyers, after all.
Whether Duval
sat sober as a judge that day is equally unknowable, but he duly entered an order
that the State of Texas should recover $10 from Raper along with court costs.
Further, he wrote, “…said defendant [shall] remain in the custody of the Sheriff
until said fine and costs are paid.”
Whether the defendant got a chuckle
out of the verdict is another mystery likely to remain unsolved. But it seems
safe to assume that while he may have shared a smile with the dozen lawyers who
determined his punishment, no one offered him a friendly snort before the bailiff
led him back to a jail not known for its creature comforts.
Later that year, Duval took his federal bench and one of the men who had served
on the jury that had administered poetic justice, Alexander Terrell, followed
him as judge of the Second District Court.
© Mike
Cox - November
10, 2011 column
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