EARLY INDIANA TRIALS;

AND SKETCHES.

REMINISCENCES BY HON. O. H. SMITH.

[FRIDAY MORNING, JULY 8, 1857.

EARLY INDIANA.

THE writer proposes to consume a leisure hour by calling upon his recollections of the early trials of important cases in Indiana, which may be interesting, at least to some of our pioneer settlers who are yet living witnesses of the truth of his reminiscences. He proposes to confine himself to the Third Judicial Circuit of the State, and to the time when the Hon. Miles C. Eggleston was Presiding Judge of the circuit. The Third Judicial Circuit included what was then known as the Whitewater country, and extended from the county of Jefferson north to the State of Michigan, some two hundred miles in length, and from the Ohio line on the east, to White River, some seventy-five miles west. The country was new, sparsely settled, and being on the western frontier, the towns and villages were filled with Indians, trading their peltries, wild game and moccasins ornamented with the quills of the porcupine, with the settlers, for calicoes, whisky, powder, lead, beads, and such other articles as met their fancy. The population of the country embraced by the circuit, was a hardy, fearless and generally honest, but more or less reckless people, such as are usually to be found advancing upon the frontiers from more civilized life, and consequently there were more collisions among them, more crimes committed calling for the action of the criminal courts, than is common in older settled and more civilized parts of the older States.

The judiciary system at the time referred to was, like the country, in its infancy. The Circuit Court was composed of a president judge, elected by the Legislature, who presided in all the courts in the circuit, and two associate judges, elected in each county by the people. These "side judges," as they were then called, made no pretensions to any particular knowledge of the law, but still they had the power to

over-rule the presiding judge, and give the opinion of the court, and sometimes they even "out-guessed" the president, giving the most preposterous reasons imaginable for their decisions, as, in one instance, that a writ of scire facias to revive a judgment, would not lie, unless it was sued out within a year and a day. The decision of the associates was affirmed in the Supreme Court, for other reasons of course. The court-houses were either frame or log buildings, arranged to hold the court in one end and the grand-jury in the other. The petit-jury being accommodated in some neighboring out-building, used for a kitchen of the neighboring inn, during vacation. The clerks had very little qualifications for their duties. Still they were honest, and the most of them could write more legibly than Rufus Choate, United States Senator. The sheriffs were elected by the people, as they are now, and seemed to have been selected as candidates on account of their fine voices to call the jurors and witnesses from the woods, from the door of the court building, and their ability to run down and catch offenders. The most important personages in the country, however, were the young lawyers, universally called "squires" by old and young, male and female. Queues were much in fashion, and nothing was more common than to see one of these young "squires," with a wilted rorum hat that had once been stiffened with glue in its better days, upon a head, from the back part of which hung a queue three feet long, tied from head to tip with an eel-skin, walking in evident superiority, in his own estimation, among the people in the court-yard, sounding the public mind as to his prospects as a candidate for the Legislature. There were no caucuses or conventions then. Every candidate brought himself out and ran upon his own hook. If he got beat, as the most of them did, he had nobody to blame but himself for becoming a candidate; still he generally charged it upon his friends for not voting for him, and the next season, found him once more upon the track, sounding his own praises.

The court-rooms in those days were prepared and furnished with much simplicity, and yet they seemed to answer all the purposes absolutely necessary to the due administration of justice. The building, as I have stated, generally contained two rooms-the court-room being the largest, at one end of which there was a platform elevated some three feet, for the judges, with a long bench to seat them. These benches were very substantial in general, sufficient to sustain the most weighty judges; yet on one occasion the bench gave way, and down came three fat, aldermanly judges on the floor. One of them, quite a wag, seeing the "squires " laughing, remarked-" Gentlemen, this is a mighty weak bench." The bar had their benches near the table of

the clerk, and the crowd was kept back by a long pole fastened with withes at the ends. The "crowds" at that day thought the holding of a court a great affair. The people came hundreds of miles to see the judges, and hear the lawyers "plead," as they called it. On one occasion there came on to be tried before the jury an indictment for an assault and battery against a man for pulling the nose of another who had insulted him. The court-room was filled to suffocation. The two associate judges on the bench. The evidence had been heard, and public expectation was on tip-toe. All was silent as death, when my young friend, then "squire," afterward Judge Chas. H. Test, rose and addressed the court: "If the court please." He was here interrupted by Judge Winchell from the bench. "Yes, we do please; go to the bottom of the case, young man. The people have come in to hear the lawyers plead." The young squire, encouraged by the kind response of the judge, proceeded to address the jury some three hours in excited eloquence upon the great provocation his client had received to induce his docile nature to bound over all legal barriers and take the prosecutor by the nose. All eyes were upon him, and as he closed, Judge Winchell roared out, "Capital; I did not think it was in him!" The jury returned a verdict of" not guilty," amid the rapturous applause of the audience. Court adjourned, and the people returned home to tell their children that they had heard the lawyers "plead." How different this from an incident that the writer witnessed in the city of Baltimore in the year 1828. Happening to arrive at Barnum's Hotel, too late for the Chesapeake boats to Philadelphia (there were no railroads then), and having to lie over till morning, I accidentally strolled around to the United States Court-room. Curiosity led me to open the door and step in. The United States Marshal politely gave me a seat. There was a venerable judge on the bench, a lawyer addressing the court, another taking notes of his speech. These three, and the marshal composed every person but myself in the room. They were all strangers. I asked the marshal who they were. "The judge," said he, “is Chief Justice Marshal; the gentlemen addressing the court is William Wirt, and the one taking notes is Roger B. Taney." Three of the most distinguished men in the United States, and yet in a city with a population of fifty thousand souls, they were unable to draw to the court-room a single auditor. I heard the arguments of these great men by mere accident, but I shall long retain a distinct recollection of them.

[SATURDAY MORNING, JULY 4, 1857.

TRIAL OF FULLER.

AT the March term, 1820, of the Dearborn Circuit Court, Judge Eggleston took his seat on the bench, as the successor of the Hon. John Watts. The judge was a young Virginia lawyer, a cousin of the Hon. Wm. S. Archer, of the U. S. Senate. He was a fine scholar and a well read lawyer. His integrity and his moral courage were above suspicion, while his impartiality commended him to the approbation of all. He will long be remembered by the writer, one of the young members of the profession, for the judge was ever willing to hear all that could be said by the humblest member of the bar, and when he decided, even against him, his manner gave courage to increase preparation for the next case. I received my license to practice law from his hand, after a short examination in person. His remarks in signing the license made a deep impression upon me. My means were exhausted, and it was a question of life or death with me. The judge kindly remarked, "Mr. Smith, I will sign your license, but you are only prepared to commence the study; don't be discouraged, but persevere in your studies and you may yet stand high in your profession."

The March term (1820) of the Dearborn Circuit Court was memorable for the trial of Fuller for killing Warren. Palmer Warren, the deceased, was my room-fellow at our boarding-house while I was a student. He was a young, pleasant man, of good reputation. Fuller was his senior in years, also highly respectable. These young men, it seems, became attached to a young, though not handsome girl, with a broad English accent, and both proposed marriage. The young lady preferred Warren, and rejected Fuller, who, in the moment of excited feelings, shot Warren with a pistol, first offering him one to defend himself, which Warren refused to accept. The ball entered the left breast and penetrated the heart. Warren fell dead. I was not there at the time, but saw his vest afterward, with the bullet-hole through it. As these young men were highly respected in Lawrenceburgh, especially Fuller, who was a great favorite, the trial excited unusual interest. I was present at the trial. The young judge took his seat upon the bench for the first time. The prisoner was brought into court by Capt. Thomas Longly, the sheriff, and took his seat in the box. He was dressed in black, except his white vest; his countenance composed, and his eye steady. Amos Lane and John Test appeared for the State, Daniel J. Caswell, Charles Dewey, Samuel Q. Richardson, John Lawrence and Merritt S. Craig, were of counsel for the prisoner. The jury was empanneled with some difficulty. The evidence was pos

itive and conclusive, still the arguments of counsel occupied several days. Every appeal that it was possible to make to the jury by the able counsel for the prisoner, was fully met by the closing speech of Mr. Lane for the State. The jury, after a short absence, returned a verdict of "guilty of murder in the first degree." The judge, after overruling a motion for a new trial, pronounced a most impressive and solemn sentence of death, by hanging, upon the prisoner. The court-room was filled to overflowing with both men and women. All were much affected, and many tears were shed. The prisoner looked pale and agitated, yet it was apparent that he was not without hope. The execution was fixed at a distant day by the court, to afford an opportunity to test the legality of the conviction in the Supreme Court. The judgment was affirmed by the last judicial tribunal and the record returned. The people in Dearborn almost in mass signed a petition to the Governor for the pardon of Fuller; and such were his hopes that he refused to escape from his prison, when he could have done so. Time rolled on, and brought the fatal hour, but no pardon; and Fuller was publicly executed in the presence of thousands. This case will long be remembered in old Dearborn.

TRIAL OF O'BRIAN.

THE mind of the reader and my own recollections, may require rest from this deep tragedy, by relating other cases of a more comical character. Shortly after the trial of Fuller, the court called the case of Michael O'Brian, indicted for the larceny of a watch, the property of Jemmy O'Regan. The prisoner appeared in the box. He was a little pock-marked Irishman, who was evidently acquainted with the "dear cratur," as well as the private resting-places in the out-houses of the city. In the witness-stand sat Jemmy O'Regan, the prosecuting witness a small, rather good-looking Irishman with a flaming red head, and one eye that looked as if it had been put in with red putty; the other eye had long taken leave of his countenance. Gen. James Dill was the clerk of arraigns. The General was a distinguished connecting specimen of the last and present generationsa perfect gentleman, with a fine ruffled shirt, white vest, buff pants and a long queue down his back, with a solemn look and voice that would almost arouse the dead. The General, speaking to the prisoner, "Michael O'Brian, stand up and hold up your hand." "I will just do that very thing as ye ask me." "You are indicted for stealing Jemmy O'Regan's watch; are you guilty or not guilty." Michael bowing to the floor, "Not guilty, my lord!" This "brought down