Central Law Journal.

ST. LOUIS, MO., DECEMBER 20, 1907.

SOME INSTANCES OF POETRY IN JUDICIAL OPINIONS.

We are indebted to Judge James E. Withrow of the Circuit Court of St. Louis for citations to Missouri Reports in cases where poetic quotations were used to embellish the opinions of the Judges of the Supreme Court of Missouri who rendered them as well as from the attorney's briefs in that court. "The man who hath no music in his soul, And is not moved by concord of sweet sounds Is fit for treason, stratagem and spoils." So sang "sweetest Shakespeare fancy's child, Warbling his native wood notes wild."

It was in the Murphy and Glover test oath cases, 41 Mo. 357, 362, that Mr. Whittelsey, attorney for the appellant Glover, proceeding in behalf of his client, sought by the use of concord of sweet sounds, to move the court to believe that his client was not guilty of treason, stratagem and spoils, merely because he refused to take the test oath required by the Missouri Statutes as a war measure, which was sought to be retained, when the war had closed, as a political measure. The defendant was a lawyer and was indicted and found guilty of having practiced as an attorney-at-law, after the adoption of the new constitution, without having taken the oath of loyalty prescribed by Sections 9, 6, 3 and 14, Art. 2, of that instrument. Says Mr. Whittlesey: "He finds that it is a concern between the citizen and the state, and that he must bow at the image of the Baal of the day. In sadness and sorrow mourning over the misguided passion of his fellows, he must commune with his own heart, looking for that deliverence which comes at last to every suffering son of earth-assured that truth is not known by counting majorities and remembering that

"The best of men

That e'er wore earth about him was a sufferer, A soft, meek, patient, humble, tranquil spirit; The first true gentleman that ever breathed, Was not a favorite of the majority.'" The case of Anderson v. St. Louis, 47 Mo. 485, was a condemnation suit which inspired the following from Judge Wagner, who said:

"The jury was not legally constituted or impaneled; no notice was given; and to say that an individual could be deprived of his property under such circumstances would be worthy only of that state of society where the the sentiment prevails

"That they should take who have the power,
And they should keep who can.'"

The State v. Burgdorf was a rape case in which Judge Sherwood indicated that he had music in his soul and the prelude to his inspiration to verse was as follows: "The passion policy or a mere half way case will not do. It certainly must have been a very amicable struggle indeed, which would inflict no bruises on the girl; cause no out-cries during its continuance, and leave the lighted lamp standing still on the table, which in the effort for supremacy was grabbed by both contestants. Had it not been for the tell-tale crack in the door we doubtless would never have heard from this case. But accusation and guilt are not yet synonymous. Some attention has still to be paid to the evidence, and the court should not have permitted the verdict

'Baseless as the fabric of a vision.'"

Judge Sherwood was again moved to poetry in the case of the State v. Stratmann, 100 Mo. 550, which was a case for defiling of a ward; there the judge seemed to think that the statements of the prosecutrix, that the defendant always forced her, should have been taken with many grains of allowance, for he says, "with true. poetic instinct and something akin to a fellow feeling," that "her failure to make complaint although forced a good many times, only furnishes one in the long list of instances of which the profound philosopher of human nature, Shakespeare speaks:

"The wiles and guiles that women work
Dissembled with an outward show.'"

Judge Sherwood seems to have been the poet laureate of the supreme court, for the next case to which our attention is called by Judge Withrow is in 101 Mo. 330, to-wit, State v. Moore, which, was a larceny case where the evidence showed an attempt on the part of the defendant to escape when discovered in his crime.

"Suspicion always haunts the guilty mind,
The thief doth fear each bush an officer."

The next instance is found in the case of the Sate v. Wisdom, 119 Mo. 554, where Judge Gantt brings forth the shade of Shakespeare, in the following:

"O, gentlemen see, see, dear Harry's wounds

Open their congealed mouths and bleed afresh" and was inspired by the introduction of evidence in the case that the defendant refused to touch the body in the morgue at the request of a person who was prompted by the old superstition that the body would bleed afresh when touched by the murderer.

Again Judge Sherwood shines forth in Moeckel v. Heim, 134 Mo. 580. It was a case of fraud. Says that learned judge: "To require the plaintiff to except in advance in anticipation that the ruling might be against her, would seem a trifle exacting and somewhat unreasonable, and every lawyer knows that no one can except to a judgment or a decree, and that the only course to pursue when a judgment or a decree is rendered is for the party against whom it is rendered to file a motion for a new trial. This was what the plaintiff did and it was all she could do.

'Who does the best his circumstances allow,
Does well.

*Angels could do no more.'"

In the next Judge Sherwood shines brightly. It was a negligence case against a railroad company, entitled Kreis v. Missouri Pacific Railway Co., 148 Mo. 331, where the judge gleams this athwart the judicial heavens: "And to me it is a very comforting thought and pleasing reflection that amid all the vicissitudes and pressing exigencies of railroad damage suits they have never yet attempted to impeach 'Old Sol.' Perhaps they were deterred by his shining reputation. At any rate from his serene seat in the heavens,

'From his cairn on high,'

he still looks down upon the pigmy populations of earth with the same burning eye wherewith erstwhile he gazed upon Ananias, what time he went in before the apostles and lied to the Holy Ghost."

In the celebrated case of Oglesby v. Missouri Pacific Railway Co., in a lengthy explanation the judge again relieves in poetic numbers prefaced with the following: "If a chancellor, trained and bred to the law with long experience on the bench decides a case

contrary to the evidence, or decides that there is no evidence when we think there is, this court does not hesitate to reverse the decree, and will frequently enter in this court a decree for the unsuccessful party.

'On what meats has this one fed that it has grown so great,'

that they may disregard the clearest and most indisputable and uncontradicted evidence, and their act pass unchallenged and without remedy."

Once more in the case of State v. Brown, 168 Mo. 471, does Judge Sherwood refresh himself on a weary way, in the following: "I have pored over many a criminal record in this court, in my time, and I can frankly say that I have never read circumstantial evidence so strongly pointing towards the guilt of anyone, or which so cogently corroborates the testimony of an accomplice as this does that of Grant; it indeed furnishes

Confirmation strong

As proofs of Holy Writ.'"

Again in the case of State v. Bartlett, another murder case, 170 Mo. 672, we find Judge Sherwood walking hand in hand with his friend William Shakespeare and we are reminded of the tribute which Dante pays to Virgil when he says

"My master thou and guide,

Thou he from whom I bave derived that style
Which for its beauty into fame exalts ne.
Poet of all the tuneful train,

May it avail me much that I

Long with zeal have sought thy tomes,

And with love immense have conned them o'er."

As usual the quotation is preceded by a cogent observation in the crisp, expressive English, which no one could wield with more telling effect than Judge Sherwood. He says: "And though the objection to such supposed evidence, towit, that it was 'incompetent, immaterial and irrevelant,' which Judge Ryland, away back in the 21st Mo, said was 'no objection at all,' and this court every term of the court since, still holds, as the evidence was no evidence at all, when offered by the state, such general 'sheet lightning' objection was sufficient. (State v. Myers, 99 Mo. 107 and subsequent cases). It was thought necessary to note and notice the above point, lest through inadvert

ence

"Twill be recorded for a precedent;

And many an error by the same example, Will rush into the state.""

This was Judge Sherwood's last poetical quotation. The student sadly misses Judge Sherwood as he reads the volumes of the Missouri Reports after the 170th.

The next poetical quotation noticed was in the case of State v. St. Louis, and related to a mad steer running wild on the streets of St. Louis. Judge Marshall indulges in the following: "Under the circumstances and under the act aforesaid it was clearly the duty of the police to remove the nuisance. It does not appear from the record that Desmond could hit a boy on the opposite side of the street while leaning out of a window and shooting at a steer on the opposite side of the street. It would not be contended that he made a bull's eye on that shot. In fact such a remarkable exhibition of markmanship could not be explained upon the theory that

'Many an arrow at random sent

Hits mark the archer little meant.'

It rather depends for solution upon the precedent recorded in the Nursery Rhyme

'He shot at the goose and hit the gander.'"

In the case of St. Louis v. Galt, 179 Mo. 15, violation of a weed ordinance was charged. Somehow it touched a vein of humor in Judge Marshall's cranium which burst forth at length in poetic strain. Says the judge: "But with truly rural instincts, and with commendable and lively recollections of his boyhood days and tasks, the defendant eloquently objects to the sufficiency of the evidence to convict him of wrong-doing, because he says the evidence shows that one-third of the weeds on his lot were sunflowers; the emblematic flower of our sister state Kansas, the flower that has been immortalized by Moore in the lines

"The heart that has truly loved never forgets,
But as truly loves on to the close:

As the sunflower turns to her God when he sets,
The same look she turned when he rose.""

The judge concluded that if this unfortunate swain had been true to his early rural rustic instincts, he would have cut out the weeds and left the sunflowers and thereby avoided the rugged force of the ordinance. He also intimates that he would have also been upheld by the maxim "Sic utere tuo ut alienum non laedas," which being literally translated means under the circumstances: so pull the weeds as not to injure the sunflowers.

Judge Marshall however had a rival, for in 195 Mo. 287, in the case of Clifford Banking Co. v. Donovan Com. Co., we find Judge Lamm, one of the "tuneful train." He says in that case: "So that if appellant's contention be allowed and followed to its logical sequence, the case stands in this way: Respondent's assignor was a creditor to the Laclede Bank. That bank was not liable because of the negligence of such assignor. Appellant got the money of the Laclede Bank. It was not liable to that bank because that bank was not injured. Hence the case is at an end. If this be so, then, at least a part of the old Hudibrastic couplet, to-wit, 'He ran in debt by disputation And paid with ratiocination,'

is true, for while the debt, so to speak, was not created by disputation, it is certainly being paid by nimbleness of refinement of reasoning."

NOTES OF IMPORTANT DECISIONS.

CRIMINAL LAW-IS A VIOLATION OF A CITY ORDINANCE A CRIMINAL OR CIVIL PROCEEDING? The recent case of Peterson v. State, 112 N. W. Rep. 306. discusses the question whether an ordinance limiting the speed of trains and providing for the imposition of a a fine for its violation authorizes a criminal or civil proceeding. The Supreme Court of Nebraska in reaching the conclusion that the proceeding under the ordinance in question was a civil proceeding lays down the general rule that a prosecution for the violation of a city ordinance, which does not embrace any offense made criminal by the laws of the state, while in form a criminal prosecution, is, in fact, a civil proceeding to recover a penalty, and clear and satisfactory proof that the offense has been committed is sufficient to sustain a conviction. The opinion of the court is an interesting brief on this question. The court said: "At common law, and independent of statutory enactments, punishments for the violation of municipal ordinances were treated in the light of civil actions; imprisonment for noncompliance with the order of the court imposing the payment of a fine being looked upon, not in the light of punishment, but as a means of compelling a compliance with the orders of the court and enforcing payment. The general doctrine appears to be that, where an act is not criminal under the laws of the state, a municipal ordinance will not make it so, and that an action to recover a penalty prescribed by a municipal ordinance on account of an act not criminal by the general laws of the state, but for