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  • Texas | Columns | "Texas Tales"

    Poetic Justice

    by Mike Cox
    Mike Cox

    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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