The first grand jury empaneled in Richland county, was composed of the following gentlemen:
*Israel Janney, Lattimore Rennick, John P Irish, Thomas H Daugherty, Starling McKinney, Loman Parmer, O L Britton, Daniel H Byrd, B B Sutton, William Mathews, Samuel Fleck, Stephen Finnell, Nathaniel Greene, George Goff, Thomas Mathews, Lucius Campbell and E M Sexton.
Terms of circuit court were subsequently held at Richmond, in April, 1851, September, 1851, and April, 1852. In September, 1852, court convened for the first time in Richland Centre. Since that time terms of court have been regularly held, with a very few exceptions, every spring and fall.
In 1852 Montgomery M Cothren was elected circuit judge to succeed M N Jackson. In April, 1858, he was re-elected and served for twelve years continuously.
*[Note. -- It is a fact well worthy of note, that Israel Janney, who was a member of the first grand jury, was also a member and foreman of the last grand jury empaneled in the county prior to the abolishment of that system].
At the fall term of court in 1857, there were some twenty-seven cases brought against Michael Carmichael, and a large number against Peter Meehan, of Richland Centre, for selling liquor without a license. They were convicted on some of the charges and acquitted on others. There had been a temperance crusade inaugurated at Richland Centre. One of the lawyers made the board of health of the village believe they had the right to order the abatement of liquor saloons, if they thought it injured the health of the community. They thought so and accordingly ordered that the saloons be closed up. The order was resisted. The temperance element thereupon acted under the order of the board of health and executed it, demolishing the dram-shops and pouring the liquor into a convenient pond. The parties who had a hand in the affair were prosecuted for damages; they go a change of venue and took the case to Grant county; from there it was carried to Dane county; and finally the papers were stolen or lost and the cases were dropped. These cases were the first of a series of liquor litigation which appear upon the record, cropping out every now and then, until with a very few years ago. In the history of Richland Centre will be found an extended account of the temperance movements of that place, from which most of the liquor cases came.
In August, 1858, the case of Arnest Herrlitz vs. Elizabeth Herrlitz, for divorce, appears on the records. The attorneys were James H Miner and D B Priest for the plaintiff, and A C Eastland for the defendant. The case, in itself, involved merely the general grounds for divorce: desertion and quarreling; but it came to a tragic termination. The notice of trial was served April 13, 1859, and between that time and the June term of court the plaintiff was murdered. Herrlitz lived in a little cabin in the town of Dayton. On the fatal evening, just after dark, he heard some one at the window, as though they were trying to find the entrance. He went to the door to tell them to come in, and just as he opened the door the cowardly assassin shot him. He did not see who did it; but lived long enough to go to his brother's, a half a mile distant, and relate the particulars. Squire Durnford was employed to look up the facts, and enough was found to lead to strong suspicions, but not sufficient to justify the arrest of any one. No arrests were made, and the matter finally dropped from the public mind as new matters arose to draw away the attention. The matter still remains shrouded in mystery, although in the minds of Herrlitz's friends the bare hope remains that eventually "murder will out."
The case of Ransom and Sophia Ragan vs. Samuel and Sidney Simpson, was only remarkable in point of the length of time it was in litigation. As the oracle says, "way back in 1856" the Ragans loaned money to the Simpsons, and secured it by taking a mortgage upon some real estate in the town of Ithaca. In 1858 this action was brought to foreclose the mortgage, and recover the money or property. Every possible defense was made; the case was put over several times; then compromised for a time; recommenced; continued; then abandoned, and on and on; this and repeat, remaining in the courts or out, barely long enough to begin a new action, until the spring of 1883, when Samuel Simpson was finally ejected from the land. All of the attorneys of Richland county were at different times engaged upon one or the other side of the suit, besides many from adjoining counties, and several distinguished lawyers from Madison. The amount of the mortgage was spent several times by both parties in prosecuting and defending their cases.
The early records of the circuit court have not been preserved -- some having been burned and others lost. The earliest records which are in the hands of the clerk of court commence with the term of court beginning May 9, 1859. At this time Judge Cothren was on the bench. The record states that "the sheriff, W H Joslin, opened the court by proclamation." There was considerable business to attend to at this term and court remained in session for several days. The sheriff returned the venire for a grand jury, and the following gentlemen were empaneled: W J Bowen, A Mullendore, R C Field, Jacob Yoder, T Whitcraft, William Chamberlain, D M Donnell, H J Morrison, D L Hubbard, John Chitwood, James A Sharp, Henry Collins, George Norman, Sr, J G S Hayward, Thomas Snyder, W P Lewis, H Conner, M D Hankins and Roswell Hamilton.
When the court ordered that the petit jury be called, the following gentlemen answered to their names: Demas Wherry, William Saterlee, L Rennicke, Sidney Rose, L Thompson, C Sharp, F M Stewart, J Manley, John Barret, William Robinson, E Combs, G D Lybrand, D Williams, R Barnes, James Brinley, George Krouskop, B Graves, D D Mosher, C Devoe, John Fry, E C Walker, L C Gouchenour, D O Chandler, John Jewell, Samuel Clayton, G P Derrickson and W M Murlin. The record continues that the following were excused: "A. Nudd, because he was a member of the bar; William Janney, M Whitcomb, Wallace Joslin, George E Hale and George L Dyke had gone to Pike's Peak, and J M Calloway on account of his privileges as a postmaster."
At this term of court J S Wilson, Charles D Stewart and William Farlin were admitted to the bar. The examining committee consisted of James H Miner, A C Eastland and George L Frost.
In 1860-1 political influence was brought to bear upon the Legislature by those who were dissatisfied with M M Cothren as judge, he being a democrat while this county was heavily republican, and particularly by the temperance element, and Richland county was taken from the fifth judicial circuit and attached to the La Crosse circuit.
In June, 1861, I E Messmore, of La Crosse, held the term of court here, and then drops forever from the records.
Hon. George Gale, of Trempealeau county, presided over the term of court held in November, 1861, and continued upon the bench until succeeded by Hon. Edwin Flint, of La Crosse, in 1863. Judge Flint held his first term of court here in June, 1863.
The case of Wildy Rickerson vs. J L McKee, an action on promissory note, which was tried at the April term of court, 1863, attracted wide interest. The following is a brief account of the cause of action: In the summer of 1862, the defendant, J L McKee, was nominated for county treasurer by the republicans of the county. E M Sexton, who was county treasurer at the time, announced himself as an independent candidate for the office. It seems that Mr. McKee, to secure his own election, gave to Sexton his promissory note for $300 in consideration of the latter's withdrawing from the field and throwing his influence toward the election of the former; the note being given on Sunday. Mr. McKee was elected to the office by a majority of 246 over his opponent, Thomas C Clark, and E M Sexton received seventy-eight votes. He then refused to pay the note, claiming that Sexton had worked against him, and thrown his influence toward the election of Mr. Clark. In the meantime, however, before the note became due, Mr. Sexton disposed of it and it came into the possession of Wildy Rickerson, as an innocent purchaser. Mr. Rickerson brought suit on the note in circuit court to recover the amount due, employing as his attorneys Eastland & Eastland. James H Miner, D B Priest and J Allen Barber were the defendant's lawyers. The plaintiff relied upon the fact of the note being prima facie evidence of debt, and its being in the hands of an innocent purchaser. The defendant's attorneys set up three strong grounds for defense: 1st. The note being given on Sunday. 2d. Want of consideration. 3d. It was against public policy. After a long and hard struggle, every point being taken advantage of, the case was decided in favor of the plaintiff, Mr. Rickerson, who recovered a judgment for the amount due on the note.
The case of Samuel Wood vs. Samuel Patrick, which was tried at the September term of circuit court, in 1863, was an interesting one to the citizens of Richland Centre. Dr O H Wood had owned the property where Hon James H Miner now lives. He sold it to Samuel Patrick, taking in part payment his note, secured by a mortgage on the property. The mortgage was never recorded and both note and mortgage was sold to Samuel Wood and subsequently disappeared mysteriously. In this action Samuel Wood sought to foreclose the mortgage and recover the amount due on the note. Samuel Patrick appeared as a witness on his own behalf, and swore that he had paid the note and destroyed the mortgage. Mr. Wood swore that the documents had been lost or stolen, and it appeared so conclusively that the latter was the case that Mr. Wood recovered the amount due, and in default thereof took charge of the property. He subsequently sold the same to James H Miner, who still lives there. A bill of indictment for perjury was soon afterwards found against Samuel Patrick by the grand jury and he left the country. He has never returned.
In 1864 Richland county again was attached to the fifth judicial circuit. Hon. J T Mills succeeded M M Cothren as judge of the circuit, and held his first term of court in Richland county in April, 1865. Judge Mills served twelve years upon the bench and gave excellent satisfaction.
The case of Patrick Quinn vs. Harvey Marshall, is cited as a sample of a class of cases which arose during the war. It seems that after one of the President's calls for men to go into the service, Marshall was drafted. He reported to Prairie du Chien. Patrick Quinn was a "substitute broker" at that place, and for a certain amount procured a substitute for Marshall. The latter refused to accept the substitute which he had bargained for, and Quinn employed Haselton & Dutcher as attorneys and brought this action for about $400 damages. James H Miner was retained by the defendant. A change of venue was secured and the case was brought to Richland county for trial in May, 1866. The case was warmly contested, and was postponed several times, until finally Marshall compromised the matter by paying Quinn $25 and the case was dropped.
In October, 1868, the case of George Carmichael vs. Andrew Elang and Martin Banker was disposed of. It attracted a good deal of attention, on account of the principles and rights of the parties which it involved. George Carmichael lived upon a farm on Sun Prairie, in Dane county. Mr. Elang, for a long time, was his hired man. Mr. Carmichael gave to Mr. Elang a tract of land containing forty acres, telling him that he could live upon it and give a mortgage of $300 in payment thereof. No money was paid. The mortgage was not recorded, as Mr. Carmichael had no doubt of Mr. Elang's honesty. For a long time Mr. Elang occupied the place and nothing was said about the mortgage. Finally, a man named Hawkins, who lived in the neighborhood, discovered the actual state of affairs. He went to Mr. Elang and succeeded in trading some other property for the forty acres. His next move was to sell the forty acres to Martin Banker, the co-defendant. Mr. Carmichael then brought this action to recover the amount of his mortgage. The defense was upon the grounds that the mortgage was not upon record and that the defendant Martin Banker had no notice of it; that the mortgage might be the fruit of a collusion between Mr. Elang and the plaintiff. But it was shown that Martin Banker knew of the existence of the mortgage, and the plaintiff recovered judgment. The attorneys in the case were James H Miner for the plaintiff, and Eastland & Eastland for the defendants.
At the April term of court in 1869, the case of E M Sexton vs. Richland county first came up for trial. The attorneys were Eastland & Eastland for Mr. Sexton, and O F Black, district attorney, and James H Miner for the county. This case was one of the most important that has ever arose in Richland county. The plaintiff held the office of treasurer of Richland county during the years 1861 and 1862. In November, 1861, he had an accounting and settlement with the board of supervisors. A committee of three members of the board examined his books, and found both the debits and credits so erroneous and confused (some errors being in his favor and others in favor of the county), that they rejected the books and ascertained the receipts of the office from other sources, and required him to produce proofs from other sources than his books of all disbursements allowed. They reported to the board that he had received $25,677.13 (giving the items) and had disbursed $26,592.46, "for all of which," they stated, "we find satisfactory vouchers and evidences that it had been paid;" and, after detecting one error in the footings, they found due the plaintiff a balance of $618.33. The board accepted the report and settled with the plaintiff upon the basis thereof; and at the end of 1862 had a full and satisfactory settlement for that year. In 1863 the county board discovered mistakes in the plaintiff's books, threatened him with a suit, and, for the purpose of protecting his bondsmen, he deposited with the clerk of the board money and securities amounting to $1000; at that and under the circumstances Mr. Sexton admitting that he owed the county. In 1866 he demanded a return of this deposit, on the ground that he did not owe the county anything; and a return being refused he brought this action to recover the amount so deposited. Eastland & Cothren were retained by the plaintiff, and James H Miner and Oscar F Black appeared on behalf of the county. When the case came into circuit court it was referred to A Durnford. The investigation before the referee consumed twenty-five days, and he reported as a part of his finding, that the defendants (the supervisors) had failed to establish, by evidence, that there was any mistake in the settlement of 1861; that "they had failed to prove that the vouchers which they produced in support of their defense did not, but ought to have entered into said settlement;" and that "a large number of the vouchers between the towns and the county, which constituted the basis of the settlement of 1861," had been lost; so that it was impossible to ascertain whether any mistake occurred in that settlement or not. The referee, therefore, reported that there was due the plaintiff, from defendants, said sum of $1000 with interest. Upon the report of the referee coming into circuit court, the attorneys for the county took exceptions to it and moved the court to set it aside. After a very lengthy argument, Judge Miner, for the county, speaking for three hours upon the point, the court found as facts: 1. That the defendants had established by evidence that there was a mistake in the settlement of 1861. 2. That they had proved that the vouchers entered in support of the defense did enter into that settlement. 3. That if any vouchers had been lost, their contents were proven by other documentary evidence equally worthy of credit (specifying them, or some of them). 4. That at the time the plaintiff deposited the $1000, he was indebted to the defendants in a still larger sum. Judgment was accordingly rendered in favor of the defendants (the county) for costs.
Mr. Sexton appealed the case to the supreme court, where the judgment of the circuit court was affirmed; the decision being announced at the January term 1870. As the case attracted wide attention and has now become a standard case of reference, the opinion of the supreme court regarding it, is here presented:
"By the court --- held: That settlement of county treasurer with county board, is not conclusive:
"1st. That the court might go behind such settlement, even after a lapse of six or seven years.
"2d. That upon satisfactory evidence of a mistake in such settlement, and that there was a balance due from the plaintiff, judgement was properly rendered against him, notwithstanding an alleged loss of vouchers used upon such settlement; especially where he did not show what those vouchers were, and for what purposes the amounts named therein were paid."
Justice Paine in his dissenting opinion claimed:
"1st. That the settlement should not be set aside without clear and positive proof of mistake.
"2d. The facts that the board, in such settlement, charged plaintiff with a larger amount of receipts, as well as credited him with larger disbursements; that his own books were then regarded as incorrect, both in debits and credits, and he was required to produce vouchers for all credits allowed him; and that these vouchers have since in part perished, forbids the setting aside of such settlement without the clearest proof of mistake; and the proof here is insufficient."
The case of Andrew Soldusky vs. T P and C C Derickson, at the spring term, 1870, was an important one. The parties had got into some quarrel over land difficulties, and the Dericksons assaulted Soldusky, beating him very badly with a pitch fork, as he claimed. He was laid up for a long time by the injuries received, and upon his recovery he commenced this action for damages. The jury gave him a verdict for $800, but this was reduced by the court to $650, which amount was paid by the defendants. The attorneys in the case were Cothren & Black for Andrew Soldusky, and Eastland & Eastland for the Dericksons.
The case of Robert Akan vs. Alfred Parfrey and Dexter E Pease, was first tried at the April term of court in 1870. This case was afterward carried to the supreme court, and has now become one of the most important standard reference cases in the Wisconsin reports. The history of the case is as follows: The defendants Parfrey, and Pease, in 1865, built a dam across Pine river, at Richland Centre, for the purpose of raising water to work their water mills. The dam caused the water to overflow Robert Akan's land above the dam, and he claimed damages. The defendants agreed to pay the plaintiff $200 a year for three years, for damage to the plaintiff's land, and the parties entered into a written agreement in the form of a lease, the plaintiff agreeing to take $200 per year for the flowage, and the defendant's agreeing to pay the same. At the expiration of the lease, the defendants continued to occupy the plaintiff's land without his consent. In February, 1870, the plaintiff brought an action against defendants under the mill-dam act of the State, for the purpose of having his damage assessed. The case was tried at the April term of circuit court in 1870, and the jury returned the following verdict: "We, the jury, find for the plaintiff, and assess the damage at $800, which shall be in full of all claim and demand for injury done to the plaintiff's lands at the present height of water, estimated at six feet and five inches;" or, "We, the jury, find for the plaintiff, and assess the damages to be annually paid the plaintiff by the defendants at the sum of $100, which shall be paid so long as the dam shall be used by the defendants or their assigns, at the present height of water, estimated at six feet and five inches, unless a re-assessment of damages shall be made herein, commencing from the expiration of the lease. James Tuttle, foreman jurors." The verdict was received and allowed by the court and recorded. The defendants moved to have the verdict set aside, and for a new trial, which was overruled by the court. On May 4, 1870, the plaintiff made his election of the alternative verdicts to take the $800 gross damages. The defendants failed and neglected to pay the plaintiff the $800, or secure the same; whereupon the plaintiff asked for judgment of $800 against the defendants, which the court refused to grant. This question of whether the plaintiff was entitled to judgment was carried to the supreme court at the June term, 1871, and determined against the plaintiff. Up to this time the case had been managed by A Durnford, and Cothren & Black for the plaintiff, and Eastland & Eastland for the defendants; but at this time James H Miner took charge of the plaintiff's case, and managed it to final termination, assisted a portion of the time by M M Cothren. On Aug. 14, 1872, the plaintiff served upon the defendants a written notice, reciting the substance of the proceedings in the case and demanded that the defendants reduce their dam, which they refused to do.
On Aug. 16, 1872, the plaintiff brought an action upon the verdict rendered in April, 1870, and demanded defendant's dam be abated or reduced, and a verdict was returned for the plaintiff and judgment and decree entered to the effect, that in case the defendants failed to pay the plaintiff the $800 with interest and costs within sixty days, the sheriff should reduce the dam so that the water would not overflow the plaintiff's land. From this decree the defendants appealed to the supreme court, asking that the same be reversed and a new trial granted. The whole controversy in the case was in regard to the form and sufficiency of the verdict. The defense contended: "That the verdict on which the action was based, to be valid, must find all the issues in the case and settle all matters controverted. That the mill-dam Act provided that 'if it shall be alleged in the complaint that the dam is raised to an unreasonable height, the jury shall decide how much, if any, the dam shall be lowered, and shall state such decision as a part of their verdict.' That the complainant in the former action, alleged that the dam was raised to an unreasonable height, but the jury failed to find anything upon that point." "Under this verdict," continued the defense, "we find an insuperable difficulty in determining the height of the water defendants have a right to maintain. Defendants contend that they have a right to keep the water up to the height it then was, though above the height estimated by the jury, while plaintiff contends that the water shall be reduced to an absolute standard of six feet and five inches. But if six feet five inches is fixed as the standard, then the verdict must also fix the place where the measurement is to be made, and fix it, not by inference merely, but so as to be definite and unequivocal; and this it utterly fails to do." In answer to the objection that the former verdict was based upon an estimated height of water of six feet five inches, the plaintiff's attorneys contended "that the plaintiff could take no advantage thereof, since in the event of his bringing another action, the allegation and proof of a greater height of water would not be sufficient to maintain his action. He would also be obliged to allege and prove that the height had been raised above what it actually was at the time the former damage was estimated, and that he was injured thereby. And this is just what the plaintiff would be required to prove in a new case, if the height of the water in feet and inches had not been mentioned in the verdict. Plaintiff declares, in the election itself, that it is an election to take $800 for his damages, and what is stated about the six feet and five inches can have no other meaning than to throw light upon the estimated height of water at the time the damage was estimated. In the event of the defendant's paying the $800, plaintiff would be estopped from claiming anything more, unless he could clearly show that the water had been actually raised upon his land by defendant's dam to a greater height than it was when the former damage was estimated." The whole gist of the contention will at once be seen from the sides taken by the parties. After a very warm contest, and lengthy argument, the supreme court affirmed the judgment of the circuit court, deciding in favor of the plaintiff, Robert Akan.
The case of Jacob W Lybrand vs. James and Santippa Ann Haney was at the fall term of circuit court in 1871. The prominence of the parties, the amount involved, and the elaborate opinion given by the supreme court when brought before that tribunal, renders the case important and of interest, recalling the taxes and tax titles of earlier days. The case was managed by James H Miner, attorney for plaintiff, with W E Carter as counsel; and Eastland & Eastland for defendants. Mr. Haney was the owner of large tracts of land in the southwestern part of the county, upon which he neglected to pay the taxes. The lands were sold year after year by the county for taxes. Mr. Lybrand purchased the lands at the tax sales. Mr. Haney failing to redeem the lands within three years after the respective sales, Mr. Lybrand obtained tax deeds of the lands, ten in all, upon nine forty acre tracts. The first deed was dated Aug. 11, 1865, and the last May 20, 1870. Before bringing the action to quit the title and fully obtain the lands, Mr. Lybrand proposed to Mr. Haney to quit claim the lands to him upon his paying the tax, costs of sale, and one-half of the accrued interest. This offer was not accepted, and Mr. Lybrand brought this action, setting forth the facts of the non-payment of the taxes, that deeds had been issued to him, giving a copy of each deed, and asked a judgment that he be judicially declared the owner, and that James and Santippa Ann Haney be barred and foreclosed of all right and equity of redemption. The defendants demurred to the complaint upon several grounds; among others that as to the deeds of 1865 they were barred by the statutes of limitations, and that the complaint did not state facts sufficient to constitute a cause of action. The demurrer was argued before the circuit court, Judge Mills presiding, and overruled. From this ruling the defendants appealed to the supreme court. At the January term, 1872, the case was argued before the supreme court, by A C Eastland on the part of Mr. Haney, and James H Miner for Mr. Lybrand. The ruling of the circuit court was sustained; but the court went further and held that no cause of action could be based upon deeds issued more than three years before the time of bringing the action. By this ruling, Mr. Haney was relieved from depositing the amount of tax, interest, costs and charges due upon the lands, which he was required to do before he would be permitted to serve and file his answer to the complaint, so that the plaintiff could accept and release the lands, or refuse and test the validity of the tax deeds, and take the lands. Mr. Haney made the deposit of something over $300. Mr. Lybrand accepted the money and released the lands, upon Mr. Haney's paying the costs, about $100, besides $50 in the supreme court.
About the only trial of any importance at the April term in 1872, was that of the State of Wisconsin vs. John and George Quackenbush. Oscar F Black appeared for the State, and James H Miner for the defendants. John and George Quackenbush had been arrested in December, 1871, for stealing a large quantity of hops from Alpheus Smith, on Willow creek. Upon preliminary examination they were held to bail, and in default thereof, remanded to jail. They laid in jail all winter, waiting for their trial before the circuit court. They had been troublesome guests for the sheriff, who found it necessary to chain them to the floor of the jail to prevent them from doing mischief. When the trial finally came off they were found guilty, but they came so near proving that the hops were of no value that the judge imposed only the light fine of $25, and astounded the bar and spectators by directing the sheriff to give the prisoners the limits of the county until the fine was paid.
The case of Jaquish vs. the Town of Ithaca, appears upon the calendar for the October term of circuit court in 1872. It was an action to recover damages for injuries to the person and property, suffered by the plaintiff by reason of a defective bridge, parcel of a highway in Ithaca, the defendant town. Eastland & Eastland, with Cothren & Lanyon, were attorneys for the town, and George C Hazelton and O B Thomas appeared for Mr. Jaquish. It appears that during the afternoon of March 8, 1871, the plaintiff attempted to drive a team of horses across the bridge in question, but the horses broke through or ran off the bridge into the water, and one of them was drowned, and the other soon after died from the injuries. The stream was usually very small, but at the time of the accident was so much swollen by rain and melting snow that the water ran over the bridge. The plaintiff claimed, and the testimony tended to prove, that in consequence of his exposure and exertion in endeavoring to rescue his horses, his health was seriously and permanently impaired. Therefore he brought this action for damages. A change of venue was taken to Vernon county. The most important points that were argued in the trial were, as set by the defense: When a highway has suddenly become deficient or out of repair, through some action of the elements, the town is not liable for resulting injuries, without notice and time to repair the defect; that when a party seeks to recover damages of another for an injury caused by the carelessness or negligence of the agents or servants of the other, he must himself be entirely free from contributory negligence. That plaintiff knew the condition of the bridge, and acted carelessly and negligently in attempting to cross it. It was not denied that the bridge was out of repair when the accident happened, but it was claimed that it had suddenly become so but recently before the time, by reason of a freshet in the stream; and that sufficient time had not elapsed thereafter, and before the accident, for the town authorities to repair it, or guard travelers against the danger. But there was evidence tending to prove that the town authorities had notice of the defect in the bridge. It was undisputed that the chairman of the board of supervisors of the town passed over the bridge on the same afternoon, and before the accident to the plaintiff, and saw that one end of some of the plank was loosened from the stringers. Upon this point the court held that notice of the defect to that officer, who was one of a board charged by law with the care and superintendence of the highways and bridges in the town, was notice to the town. There was considerable evidence tending to prove that the plaintiff was guilty of negligence which contributed directly to the injury; but still there was other evidence to prove that he exercised reasonable care to avoid the injury. The jury, after a full hearing found for the plaintiff, and assessed his damages at $700. The defendant then moved for a new trial, where the judgment of the circuit court was affirmed. One of the reasons urged in the higher court why a new trial should be granted, was that the damages were excessive; that except about $125, they were merely speculative. Upon this point the supreme court's opinion was as follows: "The testimony tends very strongly to show that the exertion by the plaintiff in rescuing his team, his exposure to the elements, and his agitation, all the direct result of the defect in the bridge, produced epilepsy, which disease was developed soon after the accident, and from which the plaintiff still suffers. The probability is that he will never recover. He describes himself as a wreck both in mind and body, and the testimony of the physicians is that the disease usually terminates in paralysis and mental imbecility or total idiocy. It is probable that about $500 of the damages were awarded for personal injuries. If the jury in the lower court found (as we presume they did find) that the epilepsy with which the plaintiff has been, and still is afflicted, was and is the result of the accident, the damages awarded are very moderate. Indeed, it would seem that the plaintiff and not the defendant is the party who may justly complain of the award."
The case of F S Hall vs. Aschel Savage, tried at the April term of court in 1873, evoked considerable interest, especially among the farmers. Mr. Savage lived in the town of Sylvan. It seems he sold a yoke of oxen to F S Hall, the plaintiff, and took $10 to bind the bargain, agreeing to deliver the oxen at Viola, at a specified time, three or four weeks distant. Shortly after this bargain was made, one of the oxen was taken sick. Mr. Savage took care of and tried to cure it, and did partially recover. At the appointed time, however, he took the oxen to Viola and delivered them to the plaintiff, receiving therefor the amount agreed upon. In a few days the ox died. Mr. Hall then secured the services of Cothren & Black, as attorneys, and commenced an action to recover the amount paid for the ox. James H Miner was retained as defendant's attorney. The point involved was whether the payment of the $10 so far completed the sale that any loss thereafter would fall upon the party buying or upon the one who sold. The case was first tried before Justice A L Wilson, of Richland Centre, where it was decided in favor of the plaintiff, he recovering a judgment for the amount paid for the ox. Mr. Savage appealed the case to circuit court, where it came to final trial at the April term, 1873. After a sharp contest on both sides, the decision of the justice's court was reversed, and judgment was rendered for the defendant.
At the April term of court, 1875, the case of State vs. Charles Holbrook and Buchanan Nicks was tried. The whole northern part of the county were interested in this case, although the case itself involved but little. It seems that the boys and young men, in the vicinity of Woodstock, had got into the habit of having a "good time," as it is expressed, at church, Sunday school, and other meetings of like nature. Their fun was not vicious, but provoking, such as throwing paper wads, laughing and carrying on generally. This was in vogue there for several years until it became intolerable, and then steps were taken to put an "effectual stop" to it. The first case was brought in December, 1874, against Charles Holbrook, Buchanan Nicks, Abner Hammond, Luther Waldsmith, Joseph Orr, O M Neff, and Lyman Clark, before Alden Haseltine, justice of the peace. James Lewis appeared for the prosecution and James H Miner, for the defense. The trial was a long one, lasting four days, and was attended by a very large concourse of people. A large number of witnesses were examined. It seems that all of the defendants were dismissed except the first two, and these were found guilty, the fines and costs amounting to $86. Judge Miner appealed the case to the circuit court, and again appeared for the defense. Oscar F Black prosecuted the case in circuit court. The case was disposed of at the April term, 1875. The boys had been arrested under the provisions of section 1, chapter 145, laws of 1866, which is as follows:
"Every person who shall, at any time, willfully interrupt or molest any assembly of people met for the worship of God, or any member thereof, or persons when meeting or met together for the performance of any duties enjoined on or appertaining to them as members of any religious society, or any wedding party, or other company or assembly of peaceable citizens, or for the recitation or performances of oral instruction in vocal music, within the pale of such meeting or out of it, shall be punished by fine not exceeding $20 nor less than $5."
Judge Mills, in his charge to the jury, defined what the law contemplates as "willfully molesting public worship, etc." The following quotation from the charge will show his interpretation of the law:
"It cannot be regarded as a molestation or interruption in view of the above law, for a person to leave his seat in a quiet and orderly manner, go out, and return again. But boistrous and noisy demonstrations with tongue or feet, such as every reasonable person should know would interrupt and molest the exercises of the meeting, would render the defendent liable to the penalty of the law, if guilty of such conduct. Gestures and grimaces calculated to attract the attention of and disturb the audience would be such an interruption as is contemplated by the law. All peaceable and lawful assemblies, equally with religious societies, are under protection of the law.
"It is your business to determine whether the evidence shows such conduct on the part of the accused or the contrary.
"I do not think the evidence against Buchanan Nicks sufficient to go before the jury."
The jury found Holbrook guilty, and he was fined $10. The other defendant was discharged.
The case of State of Wisconsin vs. N H Austin, upon the charge of perjury, was the most important case tried at the October term in 1875. N H Austin was a money lender, a man about fifty years of age, and a former resident of Richland Centre. He came here from Ironton, remained for a number of years, and in 1873 returned to the place of his former residence. During the summer of 1872, while in Richland Centre, he made one loan and a trade with a Mrs. Frank, and secured the two notes which were given, by a mortgage on a farm. When the time expired, he commenced foreclosure proceedings. She set usury as a defense, and succeeded in defeating Austin. A short time afterward, Austin was indicted for perjury, and upon a change of venue the case was brought to Richland county for trial. John Barker, district attorney for Sauk county, and J W Lusk, prosecuted the case; and Oscar F Black and W E Carter appeared for the defendant. The indictment or complaint charged that the defendant was guilty of perjury in swearing that there was no usury taken for a loan made by him to Mrs. Frank in September, 1872. Austin claimed that he loaned Mrs. Frank $56, July 8, 1872; that she also bought a hop press in September, 1872, for which she gave another note for $60. The Franks claimed that the note given July 8, was for the hop press, and the one in September for the loan. In these statements laid the gist of this action. Both sides swore to their statements. Eighty witnesses were examined. Hon. Alva Stewart, circuit judge of the circuit to which Sauk county is attached, and most of the members of the Sauk county bar appeared as witnesses. The defense relied upon proving the truth of Austin's statements. It was shown that the hop machine was patented by Mr. Brockway, of Richland Centre; that the first that he had manufactured was not completed until the 28th of August, 1872; that the regular price of them was $60, conforming exactly with the note given in September, 1872. Therefore it could not have been delivered on the 8th day of July, because it was not in existence at that time. The case was bitterly contested on both sides. The jury returned a verdict of "not guilty."
One of the amusing little incidents of the trial was: The counsel for the defense had proved that Austin had held the offices of justice of the peace and assessor of his town for many years; that he was a member of the Methodist Church, and an earnest exhorter. This was to give the defendant standing before the jury. When they came to the closing arguments, J W Lusk, as fine an appearing man as ever addressed any jury, in answer to the charge of counsel for the defendant, that the prosecution was malicious, in getting such distinguished lawyers, said, stooping down toward the defendant, "I have no enmity nor the slightest ill feeling against Austin," who was a little, shrimped up old man, "but I could earnestly say, may the Lord have mercy on his soul!" "Hold on! Mr. Lusk," exclaimed Judge Mills, from the bench, in his fine, screechy voice, "if Austin is an exhorter he had ought to answer, 'Amen!'"
In April, 1876, the case of C Cooper & Co. vs. F G and T C Rodolf, was tried. It attracted a good deal of interest, both on account of its being warmly contested, and because it involved a nice point of law. The plaintiffs were engaged in manufacturing, or at least, handling saw-mill machinery. They sent an agent to the defendant to sell their goods. Messrs Rodolf contracted for a saw-mill outfit with this agent. The contract, after setting forth the style and size of the different pieces of machinery, read, "and also a carriage twenty-four or thirty feet in length." The design was that the agent should learn which was wanted and then scratch out the other; but this was neglected in this case. In due time the goods arrived, and the "carriage" was found to be twenty-four feet in length. Messrs. Rodolf resisted payment for the goods, and when action was brought, set up among other points for defense, that the contract had not been fulfilled. The question then was: In a contract of this character, which of the parties had the right of choice. After a full hearing, the court held that the party who was first to act, or, in other words, the party who was to make the first move toward fulfilling the contract, had the right to choose, where the contract contained an alternative clause. Therefore the plaintiffs recovered.
The trial of the case of State of Wisconsin vs. Hugh Boyle, for assault with intent to kill, excited a good deal of interest at the October term of circuit court in 1876. It involved several very nice questions of law and fact. Hugh Boyle had been upon a spree for several days at Lone Rock, and when in this condition he was a very violent man. He had eaten nothing for almost two days. On the evening of the second day, he was sitting in a saloon beside Andrew Campbell, when suddenly he sprang to his feet, and, without any provocation, drew a revolver and fired at Campbell, exclaiming, "I'll blow you through!" He was soon secured, and this action was brought in the name of the State, charging him with an assault with intent to kill. The fact of assault was very evident, but the question was raised by the defense whether drunkenness excused it, and whether a drunken man could form an intent to kill. The defense did not claim that drunkenness excused the assault, but it was claimed that drunkenness did excuse that class of crimes where there must be not only a general intent but a specific intent to do the criminal act. In the course of trial it was argued upon this point, that the mind must be capable of forming the intent, and if Boyle was so drunk as to be incapable of entertaining the specific intent to kill, although he intended to injure, the crime of assault with intent to kill was not made out. That men are punished either according to the gravity of the intent combined with the act, or according to the gravity of the act combined with the intent, and, that a small act with a grave intent constitutes a great crime, or a great act with a small intent constitutes a grave crime. That, further, as the act of killing did not take place, the prisoner could only be punished for his intention, which he was too drunk to entertain. The attorneys interested in the case were E C Wulfing, James Lewis, James H Miner and W E Carter for the prosecution, and Eastland & Son and O F Black for the defendant. After a full hearing the jury returned a verdict of "guilty of assault" only. The judge fined Boyle $100, but instructed the sheriff not to collect the same in case it would embarrass the defendant!
At the same term of court a large number of the cases of farmers against the railroad company, upon appeal from the damages allowed by the commissioners appointed to appraise the lands, appear on record. The major portion, if not all, of these cases were compromised.
The case of R C Rounsavell vs. Elihu and D G Pease, was one of the most important civil actions tried at the October term of circuit court in 1876. The facts in this case, as near as they can be learned from conflicting statements, were as follows: Elihu and D G Pease were proprietors of a store at Richland Centre. One day an agent for a sewing machine company called at the store to get Mr. Pease to take the agency of the machines. Mr. Pease had his team at the door in readiness to go to Rockbridge. He told the agent that he would take the agency, but had no time to look over the contract which the agent produced. The agent prevailed upon Mr. Pease to sign the contract, however, and said he would fill it out afterward and leave a copy of it at the store. Mr. Pease claimed that he understood that he was merely taking the agency of the machines. The contract which he signed, however, when the blanks were filled, proved to be an order for a certain number of machines. In due time the machines arrived. Mr. Pease was not successful in selling the machines, and refused to pay for them. The company then brought this action on the contract. The attorneys were Miner & Wulfing, for the plaintiff, and O F Black and Eastland & Son, for the defendants. The court after a full hearing, held, and so instructed the jury, that if the blanks in the contract had not been filled out as agreed it was not binding. The jury took the view that the blanks were not so filled out, and Messrs. Pease received a judgment for costs. The case was carried to the supreme court and the decision in the circuit court was affirmed.
The case of Griffin vs. the Town of Willow, came up for trial at the fall term of court in 1876. It was an action by Daniel Griffin and wife for injuries to their persons which they alleged they sustained by reason of the defective highway. The evidence showed that at the place where the accident occurred, a ditch and break-water ran diagonally across the road, and that upon Griffin driving his wagon into this ditch, the axle-tree was broken, the wife was thrown from the wagon, the horses ran away, and both the plaintiffs sustained personal injuries. J W Lusk, of Sauk county, brought the action for damages; but not having time to try the case he left it in the hands of James H Miner, E C Wulfing and James Lewis, for trial. M M Cothren and O F Black appeared on behalf of the town. The case was warmly contested and the jury disagreed, being equally divided. A new trial was had in the spring of 1877, when J W Lusk was present and managed the case himself. In the meantime, Mr. Cothren had become circuit judge and took his place upon the bench. Lusk was advised to take a change of venue, but he thought he would receive as good treatment form Cothren as any other judge. O F Black and W E Carter, this time defended the town. Again the case was warmly contested; but Cothren in his charge to the jury and admission of the evidence, left the plaintiff no chance; so the defendant received a judgment for the costs. Lusk carried the case to the supreme court, where the judgment of the circuit court was reversed and the case came back to circuit court in Vernon county for a new trial. The matter ran along for some time, and finally the case dropped from sight.
The case of Thomas J Whitcraft vs. Town of Rockbridge, was one of the most important cases upon the docket for the fall term of court in 1876. James H Miner and E C Wulfing appeared on the part of the plaintiff, and Oscar F Black for the defense. Mr. Whitcraft, in company with others, was in a wagon crossing the Pine river in the town of Rockbridge, when the old "rickety" bridge gave way, and in the fall Mr. Whitcraft was badly hurt. He was laid up for some time, and his injuries were of such a nature that possibly he might never fully recover from their effects. He made a proposition to the town of Rockbridge to settle the matter for $250, but the town refused to give that much. He therefore began suit against the town for $500 damages. The road upon which the defective bridge was located was one which had been formally adopted by the county. This was done to legalize an act of the board of supervisors, in appropriating a small amount from the county funds to be applied towards repairing this particular road. The defense of the town in this action was based upon this fact. The defense set forth that the road in question was a county road; had been formally adopted by the county; and if any injury resulted from its being out of repair, the county must be liable, not the town. But after an exciting trial the jury viewed the matter in a different light, and gave Thomas Whitcraft a verdict of $316 and costs, amounting in all to $452.83.
In April, 1876, Hon. M M Cothren was again elected circuit judge, and served until January, 1883.
At the April term of court in 1877, the case of State of Wisconsin vs. Thomas McClary and Hugh Brooks first came up for trial. This was probably the most important criminal case that has ever been tried in Richland county. A great deal of feeling was engendered over the case, and it has been difficult for the historian to arrive at the true state of facts; but as near as they can be gleaned, the history of the case was as follows:
Many years ago, Hon. Charles G Rodolf erected a valuable grist-mill on Mill creek, in the town of Eagle. Mr. Rodolf was very popular, and his mill gained a very large patronage. One morning, in 1868, while the employees of the mill were at breakfast, the mill was discovered to be on fire. All efforts to save it were futile. The mill was burned to the ground, and very little was saved. Various conjectures were advanced at the time as to the origin of the fire. Mr. Rodolf soon rebuilt his mill, and one night about 12 o'clock, when it was well nigh completed, the mill was again discovered to be on fire, and this time some one was seen running from the mill. The party who discovered the fire went up stairs and there found an old glass-box partly filled with rags, shavings, papers, and other combustible material, all on fire. This was extinguished. Mr. Rodolf suspicioned one of his neighbors, had him arrested, taken before a justice of the peace at Richland Centre, and held to bail. He was afterwards indicted by the grand jury. Subsequent developments, however, proved that this party was entirely innocent, so the case was dropped. The work on the mill progressed. It was finished, and continued to run until the night of Feb. 6, 1876. Upon this memorable night, for the citizens of that vicinity, at between the hours of 12 and 1 o'clock, it was again discovered that the mill was in flames. It was totally destroyed, together with about $1000 worth of wheat and flour, which was in the mill. The day after the mill burned the Rodolfs came to the conclusion that the mill had taken fire from the stove, which was in an office adjoining the mill. Two prominent and, it seems, plausible reasons were given for this. One was, a snow had fallen early in the evening before the mill burned, and no tracks could be found the next morning; the other reason was, the unsafe condition of the stove. In the spring of 1876, it was whispered around the neighborhood that Thomas C McClary had stated that he had burned the first mill and had threatened to burn the other. The Rodolfs picked up scraps of evidence, and it was reported they had offered a large reward for information regarding the burning of the mills.
Hugh Brooks, one of the defendants mentioned, told Rodolf that Thomas McClary had hired him (Brooks) to burn the mill, agreed to give him $500, and had given him $5, and that he (Brooks) had burned the mill. Brooks soon after stated to another party that he had not burned the mill, nor had Mr. McClary hired him to, but there was money in it which he could make easier than by hard work. Brooks was arrested in July, 1876, and was locked up in jail, without any examination or order of commitment. At about this time the sheriff and C G Rodolf went to Spring Valley, Minn., to apprehend Mr. McClary, he having removed there in November, 1875. The friends of McClary sent Scott Kincannon to advise McClary what was being done. After full consultation, Kincannon and McClary's attorney at Spring Valley advised him to keep out of the way for a while, and in the mean time find out what they could. The sheriff and Mr. Rodolf returned without Mr. McClary. During the hot days of August, Mr. Brooks got restless and fled. He was again arrested and lodged in jail and remained there until Nov. 1, 1877. While in jail Mr. Brooks told several persons that he had burned the mill. This he afterwards denied; said he did not burn the mill, and stuck to it, so swearing upon his final trial, and claimed Rodolf hired him to so state. Mr. McClary's friends paid Mr. Kincannon liberally for his trouble, time, expense and counsel; and from the part he had taken it was supposed he knew the whereabouts of Mr. McClary. Mr. Rodolf sent for Mr. Kincannon to call and see him at Muscoda. Mr. Kincannon said he had sympathy for Mr. Rodolf's family, and in consideration of the $103 paid and $97 to be paid, he told Mr. Rodolf the whereabouts of Mr. McClary. F C Rodolf, by the aid of this information, arrested Mr. McClary in Illinois and brought him back to Richland Centre, in irons, in March, 1877. Mr. Brooks was remanded to jail, and Mr. McClary held to bail in the sum of $12,500, to await trial. Mr. McClary's bail was afterwards reduced by court commissioner Durnford to $6000 which was furnished.
At the April term, 1877, they were proceeded against by the State jointly, upon information, for arson. Mr. McClary's friends saw at once that his being associated with Mr. Brooks would be a sad blow for the defense. But how to get Judge Cothren to give separate trials was a question. A successful plan, however, was devised. Mr. Brooks made an application for a change of venue, setting forth in his affidavit that he feared he could not get an impartial trial in this circuit on account of the prejudice of the judges. The change of venue was accordingly granted, and the case of State vs. Hugh Brooks was taken to Dane county for trial. The attorneys were O F Black, E C Wulfing and George C Hazelton, for the State, and James H Miner, James Lewis, Eastland & Son and Dutcher & Brooks, for the defense. The trial at Madison was a long one, some forty witnesses being in attendance. The most important point raised in the trial was over the admission of testimony. Mr. Brooks had admitted before a justice of the peace that he had been hired to, and did burn the mill. The defense objected to the admission of this as evidence, on the ground that it was a confidential statement made to an officer of the law. The point was hotly argued and the judge sustained the objection. But during a recess for dinner he consulted one of the criminal lawyers who was in the city, and when court again convened he reversed his former decision and allowed the admissions of Mr. Brooks to be introduced. This placed Mr. Brooks in a bad position before the jury, and he could expect no leniency. If he had not burned the mill, as he claimed in his defense, then he was guilty of trying to get Mr. McClary in prison by false swearing, and if his former statements were true, then he was guilty. After being out a short time the jury returned a verdict of guilty, and the judge sentenced him to five years in the penitentiary.
The final trial of the State of Wisconsin vs. Thomas McClary, for complicity, took place at the fall term of circuit court in 1878, in Richland Centre. The trial excited great interest and was attended by a large concourse of people from all parts of the county. A great number of witnesses were sworn and examined. The testimony in a great measure was the same facts that have been related. Mr. Brooks after having made his first confession, that Mr. McClary had hired him to burn the mill, denied it, and stated that Rodolf had hired him to make the confession and throw the blame upon Mr. McClary, in the hope of forcing money from him (McClary). This was taken advantage of by the defense. Throughout, the case was managed in a most able manner upon both sides, not a stone being left unturned. The charge of Judge Cothren seemed to leave no hope for the defense, as will be seen from the following extracts from the charge, which will also serve to throw some light upon parts of the testimony introduced: Judge Cothren said to the jury: "If you find from the evidence that the defendant had a grudge against Rodolf, the owner of the mill, and had made threats that the mill should be destroyed, it justifies the conclusion that the defendant was under the influence of motives that might reasonably be supposed sufficient to prompt him to hire a person to burn the mill.
"If you find from the evidence that he employed, directed or counseled Hugh Brooks to burn the mill, you should find him guilty of the offense charged in the information. Brooks has been judicially found guilty of burning the mill.
It was not the result of an accident. You will consider the conduct of defendant in going from place to place to escape arrest, leaving his family and having letters directed to him under an assumed name. Such conduct usually attends consciousness of guilt. Such conduct is not consistent with the possibility of innocence. It is inconsistent with the probability of innocence, and if not explained upon some reasonable hypothesis, which renders it consistent with his innocence, it raises a strong presumption against him of guilt. You will consider the statement made by Mr. Kincannon (if you believe that the defendant made it) that he only paid Mr. Brooks $5 when told that they would prove he paid Mr. Brooks $50, and give it such weight as you think it deserves. You will consider the statement made to Tuck Rodolf when arrested (if you believe that it was made) that if it had been twenty-four hours later he never would have got him in this world, and give it such thought as you deem it entitled to. And in the same connection you will consider the statement made to the sheriff, George Matteson, that if he had got his money before Tuck got hold of him, he would have given them a bigger chase, and give it such weight as you think it deserves. It is established that Hugh Brooks fired the mill. If you believe that James McKinney went with Mr. Brooks at the time the mill was fired, and believe that defendant had told Mr. McKinney that he had hired Mr. Brooks to do the burning, and had asked Mr. McKinney if he would do it in case Mr. Brooks failed, your belief from the evidence will lead to the result that the defendant is guilty, as charged in the information. If you believe from the evidence that Mr. McKinney went with Mr. Brooks at the time the mill was fired, and believe that he was induced to go with Mr. Brooks upon Mr. Brooks' representation that the defendant had employed him to do it, and had agreed to pay him $500 for doing it, and finding in connection with the evidence, will justify you in finding the defendant guilty, though you should doubt that defendant had told Mr. McKinney that he had hired Mr. Brooks, and doubt that defendant had asked Mr. McKinney if he would do it in case Mr. Brooks failed. It is possible that Mr. Brooks never burned the mill. But we are not in this case to look for that possibility for the purpose of engendering a doubt. He has been tried and found guilty. That settles the question that he was at the mill and fired it. To raise any doubt upon that subject would require the clearest and most convincing proof that he did not do it. Every question involved in the idea that the burning might have been caused by a defective stove, that there was doubt about his doing it, on account of tracks in the snow not having been found, and his absence from the place of burning was passed upon in that case. You will take the fact that Hugh Brooks burned the mill as a fixed fact, and take that for your starting point, unless you are satisfied, from the evidence, that Mr. Brooks did not do the burning. Was the defendant accessory to the burning? Mr. Brooks in the beginning, charged that Mr. McClary employed him to do it. Mr. McClary fled. That is a circumstance. It is claimed that defendant, when informed of the charge, did not deny the charge. That is a circumstance. It is claimed that he made statements, inconsistent with his innocence, to Mr. Kincannon, to Tuck Rodolf and George Matteson. You are to judge. James McKinney says that he was present when the mill was burned. It is shown that he was in the neighborhood and might have been present. He is shown to be a man of bad reputation for truth and veracity. It does not follow that because his reputation is bad that the jury are bound to disbelieve what he said. A bad man may tell the truth. It is for the jury to say whether they believe him or not. Is his statement confirmed by others? They are to consider his manner of telling his story. His apparent intelligence and suavity, his means of knowledge, the interest he can have for telling a falsehood. Would he be likely to accuse himself of a heinous crime if it were not true? They are also to inquire whether the defendant is shown to be a man likely to confide in such characters as Mr. Brooks and McKinney. Did he associate with them? Was he here in Richland Centre eating at Mr. McKinney's house at the time Mr. McKinney said he was? Had the defendant boasted of a previous burning and threatened a subsequent one? Is Mr. McKinney's statement consistent with the fact of burning, and with his relations to the defendant and Brooks? If it is, and has inherent evidences of truth in itself, and fits in with all of the circumstances of the case and harmonizes with them, it may afford the jury the most uncontestable evidence of the defendant's guilt. You are to pass upon the credibility of every witness, and are the sole judges of whether any one is to be believed. Mr. McKinney is brought upon the stand by the public prosecutor. He is solemnly sworn to tell the truth. There is no apparent reason for supposing that he has any pecuniary interest in telling a falsehood. No reason apparent for his entertaining feelings of personal hostility towards the defendant. He has every reason for shrinking from branding himself as a mid-night incendiary. The presumption is that one will not falsely accuse himself. When he does inculpate himself does it not indicate that he testifies as one feeling the solemn obligations of his oath? It is your duty as reasonable men to believe or disbelieve? It is claimed that there is doubt of McKinney's statements, arising from tracks not having been found leading to or from the mill. To make this a ground for doubt you must be satisfied that there was such an examination made for tracks, as to very satisfactorally establish the fact that their were not any tracks made, when they must have been made if Mr. McKinney's statements are true. To warrant you in convicting you must be satisfied beyond a reasonable doubt that the defendant is guilty. The doubt must be reasonable and not merely imaginary. It must be such as to lead you to say my conscience is not satisfied of his guilt. Mere pity ought not to deter you from finding according to your convictions. Society in bringing criminals to justice, acts upon the principle of self defense. Let the guilty go free from the sympathy or soft heartedness of juries, and it is difficult to say who is safe or whether property possesses any value. The jury is clothed with the defense of the public when passing upon the guilt of the guilty. If from the whole case you entertain a reasonable doubt of the guilt of the accused, you will acquit him. If you have no reasonable doubt of his guilt you ought not to be deterred from any mere sentimentality from saying guilty."
After delivering his charge to the jury, Judge Cothren turned to the sheriff and ordered him to take the defendant in charge, and place him in jail, this notwithstanding the fact that he was under bail. The jury retired; the judge and a few others went to supper, but the major portion of the crowd hung around the court house in feverish excitement. In a short time the bell clanged! Every one rushed to the court house to hear the verdict, scarcely any one, not even the defendant or his attorney, even hoping for a verdict of not guilty. But in this they were mistaken; for, notwithstanding the charge of the judge, the verdict when read was not guilty! The old court house never before or since witnessed a scene like that which was then enacted! The judge ordered the defendant released and almost every one went to their homes feeling that justice had been done. Thus closed probably one of the most important criminal cases that have passed into the history of Richland county.
The case of N H Sliter vs. Luke Dean and Giles Cook, which was tried at the April term of court in 1879, attracted considerable attention. Sliter was a Baptist preacher; a small, bright, dapper fellow of a sensitive, mercurial temperament, and a good speaker. He preached in the town of Sylvan, where he had a large congregation. One Sunday, in the fall of 1878, he made some remarks which a young man, who was in the audience, took offense at, and deemed personal. After the services were over, the young man walked up to the pulpit and threatened the preacher with bodily harm. Sliter shoved the young man back. The affair produced great excitement at the time; but for several months nothing was done regarding it. In the meantime the young man had left the State. Finally, at the end of this time, Luke Dean, who was an elder in the Church and a local preacher, prevailed upon Giles Cook to procure the arrest of Sliter upon the charge of the assault mentioned. Sliter was arrested in Richland Centre. He was taken before 'Squire Webb, of the town of Sylvan, and remained under arrest all day and part of the night awaiting trial, but the prosecution put in no appearance and the case was dismissed. Sliter then commenced this action against Luke Dean and Giles Cook, for malicious prosecution, to recover damages. The Church in Sylvan, where Dean was a ember and also the Church at Richland Centre, where Sliter occasionally preached, were divided in sentiment over the affair. The trial in circuit court was had at the April term, 1879, and was an exciting one. The attorneys were Black & Burnham for Sliter, and Miner & Berryman and Ex-Judge Mills, for the defendant. After a full hearing the jury returned a verdict of $270 for Sliter. Mr. Sliter afterward abandoned the pulpit and began reading law. He now lives somewhere in the northern part of this State.
In April, 1882 George Clementson was elected judge and is the present incumbent. The Fifth district now embraces the counties of Richland, Grant, Iowa, La Fayette and Crawford. Terms of court are held in April and October each year.
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