CHAPTER X. THE COURTS.


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jUDGE HOWELL—BACKUS—CHARGE OF CHIEF JUSTICE TURNER TO GRAND JURY—IRISHMAN'S READY, WIT RESULTS IN LIGHT SENTENCE—EXTRACT FROM CHARGE OF JUDGE BACKUS TO GRAND JURY.

As stated in the third volume of this History, Judge Howell held one term of court in Pima County in the year 1864. He resigned his position, and was succeeded by Judge Henry T. Backus of Michigan. Commencing with the year 1866 all the courts of the Territory held their regular sessions. There is no data accessible from any of the counties, as far as I have been able to ascertain, concerning their work. It was a longtime before the decisions of the District Courts and of the Supreme Court of the Territory were kept in any methodical or regular manner. The only record we have in the year 1865 is the charge by Chief Justice Turner to the grand jury at Prescott, from which I quote the following:

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“Under the class of misdemeanors will be found in the code the following offenses, to which I invite your attention, viz.: Offenses against public peace and tranquillity; offenses against the public morality, health and police; offenses committed by cheats, swindlers and other fraudulent persons, and fraudulent and malicious mischief.

“These are minor offenses compared with felonies, and yet it may be said with truth that society suffers more from this class of crimes


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than from the more heinous, by reason of their frequent occurrence. ‘The little foxes spoil the vines.’ And hence the necessity for a rigid scrutiny into their commission by the grand jury. Crime, like everything else in the world is progressive, and hurries its victim on with fearful rapidity until it reaches its final goal. The boy who stole the pin ended his career of infamy on the gallows. Had that first little offense been punished, the whole course of his life might have been changed. It is a merciful policy to punish the smaller offenses with certainty and promptness.

“I would also call your attention, gentlemen, to the provisions of Chapter 59 on ‘Prohibition of Gambling.’ This chapter of the code imposes a tax or license on gaming tables therein named. A violation of the various sections of this chapter is made a misdemeanor and punishable with fine and imprisonment in the county jail until the fine is paid. Gambling is one of the greatest evils with which any community can be inflicted. The greatest sufferer is perhaps the victim of the vice himself, and other vices are almost always associated with it and follow in its train. It seems to be the present policy of our legislation to tolerate the evil by the imposition of a license or tax, thus compelling it to contribute something to the revenue of the Territory. It is a mooted point with many great and good men whether the ‘wages of iniquity’ can be made to contribute even to the material prosperity of any community where one dollar going into the treasury does not take out five in the increased expenditure of the government for the protection of society from the results of the existence of any fault or vice.


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“We, gentlemen, however, have nothing to do with the policy of this or kindred laws. It is enough for us to find them on the statute books—our duty is simply to faithfully and impartially administer the law as we find it. There is no more demoralizing influence operating on the citizens than law; a dead letter on the statutebook.

“There are two elements which enter into a crime, first, the intent, and, second, the execution of that intent in an act. To constitute a crime in law, there must combine the wrongful intent, and the Wrongful act. All crime exists primarily in the mind. The law presumes the criminal intent for the wrongful act. The presumption of the law is that every person intends to do what he does, and intends the natural, necessary and probable consequences of his act. This presumption of law is open to be rebutted by evidence.

“It sometimes happens that a man intends one wrong and unintentionlly does another—the intention and the act coalesce, and he is punishable for what he does. Therefore, if a man becomes voluntarily drunk, there is wrongful intent, and if he does a wrongful act, the intent to drink coalesces with the act done while drunk, and for this he is criminally liable.

“It is a doctrine laid down by all law writers that voluntary drunkenness furnishes no excuse for crime. Our jurisprudence deems voluntary drunkenness a malum in se, a wrong in itself, and hence its conclusion. Reason and common sense concur in saying that no man can be permitted to take advantage of his own wrong. If it be wrong to get drunk, then to make it an excuse


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for a crime would be taking advantage of, and receiving a benefit for his wrong.

“It is thought by some that an individual has a right to get drunk; that it is one of these personal and inalienable rights guaranteed by our free institutions to the citizen. No man has a moral or legal right to do wrong. The right to do right is full and complete. In civilized society every man must use his liberty so as not to abuse his neighbors. A different rule prevails among the savages who surround us, of which we have almost daily evidence.

“Greenleaf on Evidence says, that a man is not permitted to avail himself of the excuses of his own gross vice and misconduct, to shelter himself from the legal consequences of such crimes.

“This same legal author concurs with Bishop on ‘Criminal Law’ heretofore cited, that ‘it is a settled principle that drunkenness is not an excuse for a criminal act committed while in a state of intoxication, and being its immediate result.’

“I am happy to know that this rule of common law that ‘drunkenness shall not be an excuse for any crime,’ was incorporated into the criminal code of Arizona by its First Legislative Assembly. It indicates clearly that its members were men of high tone, morality and intelligence, and had a clear idea of what the interests of the Territory demanded, and I have no doubt they truly reflected the sentiments of the people.

“This rule of the criminal law is violated in cases of affrays and quarrels growing out of intoxication when the parties use deadly weapons intended to murder or wound a particular


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person, shoot at him, and by accident another individual is wounded or deprived of life. In this, and similar cases, the person unintentionally wounding or causing death is guilty the same as if he intended it.

“It will be your duty, gentlemen, if any cases are brought to your notice falling within the principle of the criminal law as above stated, to investigate the same, and if the facts disclosed by such investigation show that the criminal code of the Territory of Arizona has been violated, you ought, in the faithful and impartial discharge of your duty, refer the case or cases to a trial jury by indictment, in order that the wrong done to society may be atoned for and the majesty of the law vindicated in the certain punishment of the guilty parties.

“Gentlemen, we have passed from under the rule of the revolver and the bowie knife to that of law, order and good government. All acts of violence and wrongdoing must be promptly suppressed by the strong arm of government in certain and efficient enforcement of the laws, in order that the transition may be a realized fact, and the citizen feels secure in the protection of government to person and property.

“Violators of law and good order are more deterred by the certainty than the severity of punishment. Let it be understood that all infractions of law will promptly meet with condign punishment, and much will be done toward ridding the Territory of all acts of violence by those pests of society whose only vocation seems to be deliberate disregard of the laws of God and man, in the depredating, Apache-like, on the lives and property of others.


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“The supremacy of law must be maintained at all hazards; all good citizens will unite to ‘magnify the law and make it honorable,’ by respecting the rights of others in the least as well as in the greatest matters, ‘rendering to all their dues.’ And they will always look to law for protection of all their rights, both of person and property. In the faithful and impartial administration of justice and speedy execution of the laws is found the security and prosperity of society, and the object of its organization attained, Government, the agent of society, undertakes to redress all wrongs done the citizen. Therefore, it is that all prosecutions are in the name and by the authority of government. All its power and influence is enlisted in the pursuit of the criminal and his punishment. As the power of government is greater than that of the individual citizen, so is the security greater for the protection of all his rights, and the speedy punishment of the aggressor. Then why should any citizen give up the right arm of government for his own puny arm? Why should anyone give up the greater for the less protection? Why should any citizen violate his compact with society and attempt to avenge his own wrongs, and thus become himself guilty of a crime?

“When society through its agent, government, violates its contract with the citizen, and fails to secure that protection which it guarantees, then the individual may be justified in becoming his own protector and defender. This is a dissolution of society, and anarchy and confusion take the place of law and order; the physically weak become a prey to the strong, and


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might makes right. Another consequence may result from this failure on the part of government as has been witnessed in this country; vigilance committees taking the place of the regularly constituted authorities. ‘Wickedness in high places, and a throne of iniquity which frameth mischief by a law,’ cannot long be tolerated without dissolving the bonds of society—this is the lesson of history.

“The relative importance of the judicial department of government is seen in the fact that to it is committed the vast responsibility of the administration of the laws. It is the bulwark of our free institutions or it may be the sapper and miner of the foundation on which they rest, imperceptibly but surely undermining the corner stone of the temple of justice.

“No matter what may be the character of the laws enacted and placed on the statute-books by the Legislative Department, how much they may be calculated to promote the prosperity and happiness of the people, unless faithfully and impartially enforced by a pure, uncorrupted and uncorruptible judiciary, unless equal and exact justice is meted out alike to the high and the low, to the rich and the poor, those beneficent laws might as well not have received the sanction of the other departments of the Government which passed and approved them.

“If judges and jurors, ‘grand’ and ‘trial,’ fail in the discharge of their functions to raise the standard of honest men, the best system of government ever devised will be a failure so far as protection to the rights and liberties of the people are concerned. Public virtue and official ntegrity are not inconsistent with the principlesi


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of political economy. But I shall not stop to point out in detail the influence which the administration and enforcement of the laws by all the departments of government on the basis of inflexible justice between man and man would exert in promoting the material prosperity and highest good of the people of this young and promising Territory. It is enough to say that the history of the world shows that material prosperity and happiness advance step by step with the advance of the people in virtue, intelligence and Christian civilization.”

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The courts were not troubled much with matters of property. Almost all the cases brought before them were for some violation of the criminal law.

Judge Howard was the leading lawyer at Prescott, and, of course, defended almost every person charged with crime. Among the rest was a man named Fagan, who was charged with assault with a deadly weapon. The circumstances of the case were as follows: Fagan was an all-round saloon man, practicing always on the outside of the bar; never refusing a drink when offered, and usually filled up pretty well with Jersey lightning. Following him at all times was his dog. One night in a saloon someone kicked his dog. Fagan at once drew a knife, and a general fight ensued. Fagan was convicted of assault with a deadly weapon, and he, with other prisoners, was arraigned for sentence, Fagan taking his seat the last in the prisoner's dock. When his name was called, he sidled up to his counsel, Judge Howard, and in a stage whisper said: “Judge, I'm proud of the defense you made for me. You certainly did all


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that a man could do for another man, and I would ask you to do me one more favor, and that is, stand up there and take the sentence instead of me.” This produced a laugh, in which the Judge joined, and he asked Judge Howard whether he would receive the sentence, or whether it should be given to the prisoner. Of course Fagan received the sentence, but his Irish wit caused him to receive a very light one.

As previously stated, Judge Howell held one term of court in Tucson, in May, 1864, and shortly afterwards he resigned. The probabilities are that his dreams of fortune in gold mining or merchandising, as set forth in the letters previously quoted, failed to realize, for he told Governor Goodwin that he would not act as Judge in a district where two out of every three people were barefooted, court was held in an adobe shack with an earth floor, and a drygoods box was used for a rostrum. Judge Howell was born in New York state in 1811, and died April 3d, 1870, in Michigan.

The next term of court was held in Tucson in January, 1866. The following extract from Judge Backus’ charge to the grand jury, will give some idea of the state of affairs at that time in the Old Pueblo:

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“Gentlemen: I am comparatively a stranger to you, and in a strange land, and have had comparatively few opportunities to closely observe either the country or become intimately acquainted with your people, but from the best opportunities I have had, and to some extent schooled by former experience in other parts, I must say that no other portion of our wide land is covered by a more genial sky, or affords


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brighter hopes of material value in its physical composition than this, if her people are only true to themselves. And that no people I have ever visited in the same or similar circumstances present higher evidence of a pervading sense of the matters of civil order and obedience to law and good government than this with comparatively few, very few, exceptions, and none that I have ever seen who, as a body, unfortunately have been more grossly misrepresented by some of those who have assumed to speak for and of them. But this false reputation, if true to themselves, the people of Arizona can and must live down by the irresistible logic of facts.

“I am aware of no particular matter that it is now requisite or necessary for me to give you in charge, nor can I better epitomize your whole duty by a general charge than in the language of the oath that your foreman has just taken, and you through him, that is, that you ‘diligently inquire into and true presentment make of all public offenses against the United States and of this Territory, committed or triable within this county, of which you have or can obtain local evidence. You shall present no person through malice, hatred or illwill, nor leave any unpresented through bias, fear or affection, or have any reward or promise or hope, but in all your presentments, you shall present the truth and nothing but the truth according to the best of your skill and understanding.’ Under this oath, gentlemen, your intelligence will readily point out to you your duty. It would hardly be necessary or even proper for me further to enlarge upon this subject. Your deliberations are, of course, secret, and you are each of you


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bound to keep secret the counsels of yourselves and each of your fellows, and whatever shall transpire in your deliberations in the jury-room and also those of the counsel of the Government and the Attorney-General, who alone may be with you to advise you and aid you in your deliberations.”

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